United States v. Gabrion

employer if did not hire III. of heads busted” (internal marks quotation members union’s reasons, in part For these we affirm and omitted)). allegation remains is an What part dismissing reverse the order nonviolent, harassing, business albeit complaint, Pulte’s affirm the denial of the members disruption: that LIUNA’s injunction, preliminary and remand for systems Pulte’s communications clogged proceedings opinion. consistent with this dialing simply clicking mouse no cases in phone number. Yet Pulte cites disruption, unaccompanied

which business violence, complainant relieves a of its obligation negotiate. pre-injunction final, unpersua Pulte one proffers America, UNITED STATES of reversing sive reason for the district court. Plaintiff-Appellee, argues It that the NLGA does not fore injunctive under the close relief CFAA—a specific,

more later-enacted statute. The GABRION, II, Marvin Charles CFAA, however, regulates computer Defendant-Appellant. activity. crimes rather than labor And the 02-1386, 02-1461, Nos. 02-1570. injunctions NLGA’s “ban on federal is not simply lifted” because union’s nonviolent Appeals, United States Court of violates “some other nonlabor conduct Sixth Circuit. Assocs., statute.” Crowe & Inc. v. Brick Argued: Oct. 2010. (In layers & Masons Local No. 2 re Union Assocs., Inc.), 211, 214 Crowe & 713 F.2d Decided and Filed: Aug. 2011. (6th Cir.1983) (internal quotation marks omitted); citation Triangle see also Corp. v.

Constr. & Maint. Our V.I. Labor Union, (11th 944-45 Cir. 2005) (“[T]he prevent does not [NLGA] injunctions from issuing

courts to enforce positive imposed by duties other federal added) (internal (emphasis

labor statutes.” omitted)). quotation marks and citation Regardless specificity of the CFAA’s enactment, injunctive provisions

date of its refuge. afford Pulte no comply Because Pulte failed to with sec- NLGA, tion 8 of the the district court jurisdiction injunc- lacked to issue the if tion—even LIUNA’s calls and e-mails protected publicity fall short of and assem- 104(e), (f), § if bly, see U.S.C. and even evidentiary Pulte satisfied the section requirements, see id.

OPINION

MERRITT, Judge. Circuit first heard this case and

We rendered 14, 2008, 2-1 concluding decision March that murder in a National Forest falls subject jurisdiction, within federal matter Gabrion, States v. United F.3d 839 (6th Cir.2008). parties then sup filed plemental briefs in December 2009 and 2010; February and, after a second oral argument, prepared we are now to decide on merits. the other issues appeal case is a pursuant This direct 3595 in a death penalty U.S.C. federal case in federal murder tried court in Rapids, for a Michigan, Grand murder committed in the Manistee National For- defendant, Gabrion, est. The Marvin jury. sentenced to death Although on appeal defendant raises issues re- lating guilt sentencing phases trial, issues, we three find that all arising connection with the sentencing phase, are the difficult. most The first O’Donnell, Margaret ARGUED: Frank- from arises the need determine the fort, Appellant. Kentucky, Timothy for P. nature Gabrion’s severe mental and VerHey, Attorney, Assistant United States emotional disabilities in order to determine Michigan, Grand Rapids, Appellee. for competence his trial to stand at the sen- O’Donnell, ON Margaret BRIEF: Frank- phase tencing of the case after he had fort, Kentucky, McNally, Kevin M. McNal- physically lawyer attacked his in open Frankfort, ly O’Donnell, Kentucky, & Judy court in front of jury. The second Rice, Clarke, Diego, Clarke & San Califor- ruling arises from the of the District Court nia, Appellant. Timothy VerHey, P. Gabrion, in mitigate an effort his Joan Meyer, E. Assistant States United punishment imprisonment, to life could not Attorneys, Rapids, Michigan, for Grand fact that Michigan, use the where the mur- Appellee. occurred, der pen- had abolished the death alty. His counsel wanted offer in miti- BATCHELDER, Judge; Before: Chief gation and argue to the that in our MOORE, Judges. MERRITT and Circuit legal system trial would have place

had to take court state where life J., MERRITT, opinion imprisonment delivered the maximum punish- was the court, MOORE, J., ment, court, joined. which instead of in the federal if the BATCHELDER, 353-65), C.J. (pp. body victim’s had found been outside the Forest, opinion just delivered a separate concurring Manistee National 227 feet part in dissenting part. and away from where it found inside was the sentencing phase the At the of the case after His counsel wanted National Forest. verdict, guilty jury the the found the rather exis- life imprisonment, to choose jury of a number aggravating tence of factors: the State penalty, because than the death that harm a likelihood Gabrion would oth- penal- had the death Michigan of abolished future; brutal, depraved, in ers the anyone for more ty had not executed crime; premeditated nature of his arises The third issue years. than 160 daughter; of infant murder Timmerman’s of the failure the District Court from justice of in and obstruction order to avoid that it find that the jury must advise jurors for The apprehension rape. also outweigh mitigators be- “aggravators that he found as factors was im- in order to yond a reasonable doubt” signifi- a child he had a abused as and that The District pose penalty. the death Disorder. Personality cant Antisocial per- left undefined the measure Court required degree of certitude suasion or testimony psychiatric The and the liter- juror ques- ultimate concerning each to a that ature lead conclusion weighing pro- tion of fact resolved from an suffered extreme Antisocial Per- cess. sonality in Disorder the nature severe madness; agree psychopathic but we Michigan accused Marvin The State the District Court that this did render in Timmerman raping Gabrion of Rachel incompetent him stand trial. He knew There that he is no doubt August 1996. doing throughout what he was We con- in daughter her and her infant murdered however, clude, that the District Court did raping for awaiting while trial June 1997 failing give in respects by err two — jury guilt phase verdict her. The at the proper reasonable doubt instruction and gov- murder trial accepted counsel by refusing allow Gabrion’s ernment’s detailed evidence that Gabrion in mercy of the argue mitigation death with chains bound Rachel Timmerman ground on the that Gabrion penalty could during the first week of took June penalty not have received if boat, in alive her while small body away, been 227 feet had found out- into with cinder dumped her Oxford Lake side the National Forest. Counsel was bloated, her weigh blocks to down. Her from convince the prevented trying to body July drowned was found on mitigation in of the the administration in it had been the lake for several after in instance was random death this swamp The lake was a shallow weeks. and based on chance. The District body vegetation filled with so ruling respect error Court’s stay dumped where was from would 3592(a), which under 18 U.S.C. reads: not be another boat and would carried to “Mitigating determining factors —In body a current location or wind. a sentence is to be im- whether of death Forest, was within the Manistee National defendant, on a the finder of fact posed boundary. Timmer- 227 feet south any mitigating shall consider factor....” eyes and mouth covered with man’s were added.) analyze first (Emphasis willWe wrapped head. tape duct around her competence, mitigation, and reason- overwhelming addition to circumstantial problems. will then ana- able doubt We evidence, that Ga- three witnesses testified remaining The result lyze the issues. in- made to them for a brion had statements the case will be remanded retri- mur- phase himself of the case. criminating sentencing Timmerman’s al of will be the order The issues discussed der. tention incompetent in below.1 The stat that Gabrion was set out the footnote appeal: “The provides particularly during ute that on Court stand the sen trial — all Appeals tencing phase lawyer of shall address substantive he hit his in the after procedural appeal raised on the jury. issues face with his in front of the fist ” of a sentence of death.... 18 U.S.C. claim competence lost Gabrion 3595(c)(1). sentencing phase the trial when of he punched lawyer by his in the face is belied I. Gabrion’s Mental Disabilities and testimony Gregory of Dr. Saathoff. Competence to His Stand Trial professor He is a clinical psychology of began University Virginia. The actual murder trial on the He testified on 25, 2002, 15, 2002, February and ended on March March after Gabrion’s attack on Beginning pretrial lawyer. 2002. his matters Saathoff testified detail that years throughout three before and tri at trial part Gabrion’s behavior al, consistently disrupted Gabrion pro personality Gabrion’s deviant character ceedings many by At ways. pattern oral ized a recurring deception appellate appeal, before us on and in this his counsel fo instance effort to fake inc argument primarily cused her ompetence.2 the con- evaluation This after the at- Constitutionality 1. I. Gabrion's Mental Disabilities and XV. Penalty His of the Act’s Competence to Trial Evidentiary Stand Phase Standard Constitutionality XVI. of Other Acts Infor- Michigan’s II. Whether Abolition of the During Penalty mation Admitted Sup- Phase Penalty "Mitigating Death Is a factor” That porting Dangerousness” "Future as a Non- Jury May Consider Statutory Aggravating Factor III. The to Give Failure a Reasonable Propriety XVII. of Remarks Prosecutor Weighing Aggravators Doubt Instruction in During Closing Argument Mitigators Testimony XVIII. of Victim’s Mother Re- IV. Allege The Failure of Indictment to questing Penalty the Death Statutory Aggravating Factors Allegations Jury XIX. Bias Based on Subject V. Proof of Matter Jurisdiction Newspaper Post-Trial Juror Comment Request VI. Gabrion’s to Proceed Without Brady Alleged XX. Concerning Violation Counsel Competency Challenge to Government Wit- Physical VII. Whether Gabrion’s Assault ness Required of his Counsel Court the With- Jury XXI. Penalty Instructions in the drawal of his or a Trial Counsel Mistrial Phase VIII. Whether the Camera Conferences Judge between the District and Gabrion's De- 2. deception Dr. Saathoff illustrated this in the fense Counsel Outside of Gabrion’s Presence following testimony: Rights Violated Gabrion’s Q. Now, you day did also ask him what it IX. The District Court's Decision Not to year was and what it was? Report Suggesting Disclose a That a Govern- Yes, A. I did. May ment Against Witness Been Have Biased Q. say And what month did he it was? thought A. He he stated that it X. was Febru- The Removal aof Juror Who Was Al- ary. legedly Sleeping Q. In fact it was March? Videotaped XI. Testimony Admission of A. Correct. Coleman and Westcomb Q. you year thought Did he tell what he XII. of Gabrion it Examination Govern- Psychiatrist was? Testimony ment in Rebuttal Yes, Concerning A. he did. Gabrion’s Mental Health Evi- Q. Mitigation year you dence And did what he tell he thought Complaint XIII. Unresolved Ethics was? Filed Witness, Against Ryan thought Government A. He he Dr. stated that it was the Qualification year XIV. The Jury Death early pretrial Ga- proceedings, of From the the evaluations consistent with tack was without experts sought represent before himself mental health brion other seven began mag- evalua- example, lawyer. For the first a He inundate attack. Fallis of the by Emily writings say- Dr. given judge was istrate with letters and tion in Fort Worth lawyers Medical Center and ing Federal that his were “Satanic” be a Gabrion to 2000. She found May coop- frame him. trying to He refused Per- man an “Antisocial “sociopath,” a appointed lawyers by pro- erate with his inability sonalty include[d] Disorder [that] them. viding information. He harassed laws; manip- and lying rules and to follow called of one of example, For he the office others; irritability and impulsivity; ulating single than lawyers his more 80 times on irresponsi- and aggressiveness; consistent continuing court day while to inundate 2277.) (Vol. VII, JA Gabrion’s bility.” and phone letters calls. He staff with psy- for severe fits checklist behavior process appeal continues this on send- psychiatric in the literature chopathy writings to this ing voluminous and letters following characteristics: includes occasion, he called the district court. On Glibness/superficial charm 1. Hitler” judge an “evil and said court 14- judge having that the was sex with a 2. Grandiose sense of self-worth gotten year-old girl 13-year-old and had Need for stimulation 3. He girl pregnant. jury. insulted the He Pathological lying 4. dirty with over came to court black marks Conning/manipulative 5. and the “AZZA” on his his forehead letters guilt Lack of remorse or 6. during On some forehead. occasions affect 7. Shallow trial, unruly conduct Gabrion’s became so of empathy 8. Callous/lack had to him expel that the court from lifestyle and allow him to return re- Parasitic courtroom 9. the wrists As a legs. strained at controls 10. Poor behavioral had two precaution, Gabrion to sit between Promiscuous behavior 11. sexual was marshals when he allowed to return realistic, long-term goals of 12. Lack lawyer after his striking the courtroom Impulsivity 13. he Typically face. made observations Irresponsibility follow- to the courtroom audience like the versatility 15. Criminal sorry repre- “I to be to be ing: am forced shysters court kangaroo evil in a Kiehl, sented “A Cognitive Kent A. Neuroscience evil that murders its prostitute in a nation Evidence for Perspective Psychopathy: quiet be- by abortion. And I’ll be System Elsevier babies Dysfunction,” Paralimbic I (2006), being just forced as if were www. cause I am available Germany.” a few author. in Nazi These are but by searching for sciencedirect.com Gabrion, Q. writings any certain year, in fact it 2002? were Mr. And was this de- requests that he sent in to the medical That’s true. A. Q. partment asking various you determine or to others Did have occasion to types things, which is these through your materials Mr. common in review of other processed, ability purpose settings. And in it suits his order to when individual, the exactly day the name time of it is? these need to know what date, Yes, request. And on of course the A. sir. Q. given, year them the you do each of correct How do that? March; 2002; month, what correct recent records A. I asked to review the appeared to be the correct date. County Kent Jail to see if there from the examples many only instances of similar thankfully part be- affects small population; it is of the trial. but not the same as during havior the course gives the mental “in- illness rise to argues counsel appellate competence Incompetence to stand trial.” only problem the the solution to of Ga causing is described as a mental illness the disrupt proceedings efforts to the brion’s defendant “unable to be to understand the from the the in beginning proceedings of consequences nature and of proceed- the on including lawyer his attack his in ings against him or to assist in properly present March to the time is to 4241(a). his defense.” U.S.C. The competency hearing. a new Counsel order District Court must order a competency the Court concludes that District “commit hearing only when it has “reasonable and ted reversible error denied Gabrion incompe- cause” to the believe defendant is process by refusing to hold a compe due tent. the Id. Given outcome of all Ga- of tency during hearing” sentencing the previous brion’s evaluations and persis- the of do phase agree the case. We not be tent finding of his such malingering, no the and mental psychiatric cause health reasonable cause existed. The deliberate us, in records the case convince as they refusal of an actor assist in counsel Court, did the District that Gabrion knew crazy order to appear the playing —like what he was He was doing. “malinger play role of an idiot in a actor the —makes ing” psychiatric in literature as —defined incompetent stage on the but in real not a production “the intentional of false or court of law. Gabrion retained memo- his grossly exaggerated physical psycholog ry sought and to create the of appearance symptoms by ical motivated external in idiocy, imbecility, and of memory. loss centives,” in explained Diagnostic and Statistical Manual Mental Disor Michigan’s II. of Whether of Abolition (DSM-IV). faking ders was He incom Penalty “Mitigating the Death Is a petence disrupt in order to the trial.3 Jury May Factor” That Consid- er

Malingering, incompetence, faking try- court, ing to deceive pathological lying Very early case, in this the Dis and of a signs murder are mental trict illness Court thought Michigan’s policy 3. There is an record consisting Department Neurology extensive of Chairman of the of at evaluations, reports, testimony University of 9 men- of South Carolina in Charles- ton, 14, 2002; experts. by tal health who on March first evaluat- testified Dr. Jackson, by Emily Newton a psychologist ed forensic Fallís of Federal Medical 2000; Michigan, May State of who by Center in Fort testified March Worth Dr. 14, 2002; Scharre, Frank, by Douglas Dr. Cathy of Psychiatry Director Forensic School, neurologist at the Ohio State Medical Henry Hospital at Ford in Detroit in June 2001; who testified on March by and Dr. Richard DeMier and others Springfield, of Federal Center in Medical Scharre, Only experts, one of nine Dr. Missouri, during September the months of malingering, testified that Gabrion was not by and October was also 2001. He evaluated faking consciously insanity not in an effort Ryan, Dr. Thomas a board certified clinical disrupt proceedings. Dr. Scharre testified professor psychiatric of medicine at the Uni- counsel, request at the although of defense he 20-21, 2002; versity Virginia February did not or meet interview Gabrion. other Saathoff, by Gregory professor Dr. Jackson, of clini- expert, defense Dr. testified that dur- psychology University Virginia, cal at the ing appeared his interviews Gabrion to be 8, 2002; Waalkes, by on March Martin "deliberately telling the truth" "in- psychologist Hope Network Rehabilitation tended to deceive” order to create the Services, who days "impression” completely testified on March two unorganized aof attack; Griesemer, after David Dr. mind. impor- was an That is the reason the Sixth Amendment penalty the death against be taken into ac- requires jury tant factor should that the must drawn from Department of Justice. The count “the crime State and district wherein the counsel in an engaged government court have shall been committed.” Constitution- subject, only extended discussion ally, question imposing is quoted of which below: part localized. It must be must be They’ve capital ... [the MR. VERHEY: so punish- vested a local that the makers the Jus- punishment decision people ment will reflect the values they us that Department] tice told do Michigan in “to link order maintain a be- factor their consideration the not into contemporary community tween values from might fact that a ease come a state penal system.” Gregg Georgia, and the v. the death recognize penal- that does 153, 181, 2909, 49 U.S. S.Ct. that does. ty opposed as to a state (1976). L.Ed.2d 859 Well, I’m THE not—I don’t COURT: The District Court later ruled that but I argue you, to with want to want Michigan’s longstanding policy against the question. a pose this Shouldn’t make penalty death could not be or mentioned of the State of people difference? The factor, mitigating admitted a or dis- sitting Michigan ultimately are on the in argument cussed with the final of jury. people The of the State Michi- during of It penalty phase the the trial. ultimately are the ones of which this gan could not to as for be referred a reason the team judge prosecution and the sparing life. Failing to consider comprised. team a defense are Under specific language the allow- statute federalism, the system of aren’t state’s factor,” “any ing mitigating the court rea- policy sig- of public considerations some of soned without further discussion that the Department nificance to the Justice? any not fit Michigan policy did within of point of first described The view eight mitigating factors listed in the Fed- Judge colloquy District the be Penalty. ruling eral Death This is incon- (“the people of the case Michi ginning language sistent with the Act re- ultimately sitting jury”) are on gan to quiring “any factfinder consider large portion into account that a takes “any mitigating factor” and information population presumably somewhat is mitigating relevant a factor.” 18 U.S.C. penalty. skeptical about the death Michi 3593(c). 3592(a); § §id. penalty, abolition gan’s by Michigan legislature state adopted provides Act as follows: 1846,4 presumably reflects will of the aggravating Mitigating 3592. “jury trial is people, meant factors be considered in determin- judiciary.” their in the ensure control ing is whether a sentence of death Blakely Washington, 542 U.S. (2004). justified 159 L.Ed.2d 403 (2009) (noting sixty legislative over Michigan ”[o]f included its ban on the constitution, attempts petition death in its state becom- to revive and four drives Const, ing only See state to do so. Mich. capital punishment Michigan, none has 46; IV, § art. Eric A. Tirschwell & Theodore successful”); proven Eugene Wanger, G. His- Hertzberg, Politics and Prosecution: A Histor- Michigan's torical on Abolition of Reflections Perspective Shifting ical Federal Standards Penalty, Cooley 13 T.M. L.Rev. 755 the Death Pursuing Penalty Death Non-Death (1996). States, Penalty 12 U. Pa. J. Const. L. ( n ) Mitigating requires finding respect factors. —In deter- then that “a with mining sentence of death any whether factor unani- aggravating must be defendant, imposed on finder of be finding mous” but “a to a respect any mitigating fact shall consider mitigating may factor made fac- tor, following: including jury.” more members of the Based on (1) rule, Impaired capacity.... juror one could block the death penalty. (2) Duress....

(3) participation.... Minor There are no so far cases that have (4) Equally culpable defen- in a federal ques- ruled death case on the dants .... tion of permitting evidence or

(5) prior No criminal record.... concerning given jurisdiction’s poli- state ( n ) cy against the penalty. death There are a Disturbance.... cases, however, few that discuss the mean- (7) consent.... Victim’s ing “any language factor” (8) Other factors. —Other factors in Davis, in the Act. United States v. background, record, the defendant’s or (E.D.La.2001), F.Supp.2d has any character or other circumstance of been both repeatedly by cited other Dis- mitigate against imposi- the offense that approach trict Courts following of tion the death sentence. in the prof- instant matter. The 3592(a) added). § Thus, Id. (emphasis the mitigating fered evidence Davis was a (“shall”) requires statute consideration of argument, “residual doubt” defined the factor, “any including” mitigating a non- uncertainty court “a lingering as about eight exclusive list of The factors. statute facts, a state mind that some- exists large then sets out a aggrava- number of where ‘beyond between a reasonable capital for tors different It crimes. also ” Davis, doubt’ and certainty.’ ‘absolute open-ended aggravator provision has an 132 F.Supp.2d opinion at 456. The court’s “any similar to the mitigating factor” lan- following the contained crucial paragraph: (“The guage. § See jury, id. or if jury, court, may there is no the aspect The most notable consider the statute is any aggravating whether introductory other factor for the statement. The finder exists.”). (1) (2) which notice has been given “any of fact “shall” consider miti- mitigators, (3) Like aggravator factor, the list gating is ex- including the follow- pandable, First, we point ing.” as shall out in jury the “shall” or must expanded Section XV the government factors; the consider the mitigating is aggravators beyond Second, those listed to obligatory, discretionary. include not dangerousness.” Gabrion’s “future “any” Sec- the fact finder must consider miti- 3593(c) provides tion language more broad gating factor. is no qualification There “[Ijnforma- regarding mitigating factors: or limitation other than the factor “miti- may presented any tion be gate” against as to matter a sentence death. sentence, including Third, relevant to the any “[ijncluding following” the means mitigating or aggravating exclusive, factors.... subsequent the is not list but may present any The defendant informa- is instead illustrative. The identi- eight tion relevant to a mitigating factor.... fied examples specific factors are fac- that, ... given evidence, [T]he defendant shall be fan- if supported by tors opportunity to present argument ... mitigate against as to penalty. death appropriateness here, the case of impos- significantly Most for the issue 3593(d) (8) ing a death.” sentence of Section subhead which refers other factors record, phrase “any mitigating chance. The fac- background, “in the defendant’s plainly tor” includes information about any other circumstance or character or Michigan’s policy against the death penalty “any category is sub of the offense” and an on the absence of based being than mitigating factor” rather proportionality punishment when life or may of what be consid- outer boundaries chance death is made turn on and the mitigating. What 18 U.S.C.A. ered equally guilty psychopaths lives of other substantially broader 3592 allows spared. brought are The case was has Supreme what the Court de- than interest special serve a national like trea- requirements clared to be the minimal son terrorism different from normal According to under the Constitution. in punishing state interest murder. The Court, Supreme Eighth Amend- jury given opportunity should only ment consideration demands consider whether one or more of them that concern the those factors would choose a life than sentence rather “character or record and defendant’s death when the same any of the circumstances of offense considering the same defendant’s proper Ohio, 586, 604, ...” Lockett v. 438 U.S. punishment for the same crime prose- but (1978). S.Ct. 57 L.Ed.2d 973 Michigan cuted in state court could not statute, hand, other Under the impose penalty. Supreme Court’s mini- constitutional (8) of a simply mum is subhead non- arguments These are all “mitigating” exclusive list. statute demands they conceivably could because make a “any mitigating” fact consider fac- juror finder “the question appropriateness in the tor ... period. imposing case of a sentence of death.” 18 3593(c). § It possible U.S.C. is that their at 464.5 Id. arguments would very appealing not be question fact The is whether the case, jurors in this but is not the body of so to a line that location close question. question The is whether counsel penalty forbids the death allows counsel to making should be foreclosed from even try jurors to convince one or more them. penalty in these imposing the death cir- treat or death in a phase cumstances would life At the of sentencing a death arbitrary way question random and based on case the is not a semi-technical fendant, language 5. The of Davis been followed in if he received a life sentence instead has death, (on at least three other death cases: In United would never be released F.Supp.2d Sampson, States v. theory mitigate by that this information would (D.Mass.2004), proffered mitigating argu- jury's "assuag[ing] the fear of defendants' that "it be fair to ment was would not sen- (2) dangerousness”) future residual when [the defendant] tence to death others argument substantially doubt similar to the guilty equally or more who were awful Davis, one made in mentioned above. Id. at Id. at crimes had not been executed.” Moonda, *8-9. In United States No. 1:06 argument The court characterized this as a (N.D.Ohio July CR 2007 WL 2071924 and, "proportionality” adverting to 2007), citing Sampson a brief order 3592(a)'s expansive reading §of introduc- Davis, mitigating the court as evi- allowed above, tory paragraph from described Davis presentation dence the of "information to the concluded that this evidence was not barred jury regarding future confinement conditions as a matter of law from introduction. Id. at Prisons,” "popu- rebut the Bureau Bodkins, 194-96. In United States v. No. public perception prisons lar that federal are CRIM.A.4:04CR70083, WL (internal country quota- like clubs." Id. at *1 (W.D.Va. 2005), May District Court omitted). tion marks (1) allowed that the de- factors question like a sentencing enhancement tence on jury consideration of “any miti- issue Sentencing under U.S. Guide- gating factor” “any information rele- penalty lines. death The is never a “man- vant to a mitigating Congress factor.” did datory minimum.” such a case each not want death imposed without full con- juror call on must individual judgment sideration of the juror alternative. A drawn experience from lifetime of and would not “nullify” any provision of the learning and must decide whether to im- federal statute if she voted against pose penalty the death aor life sentence. death penalty because she learned that its broad, question multi-dimensional imposition only possible because of the is also the reason the happenstance total of where the victim’s error in this case cannot be said to be body found, and would be inconsistent under the “harmless” doctrine of “harm- with other murder cases Michigan since (18 3595(c) less error.” U.S.C. provides: 1846. In Gregg v. Georgia, 428 U.S. “The appeals court of shall not reverse or 205, (1976), 49 L.Ed.2d 859 vacate a sentence of death on account of the Supreme recognized Court that “past any harmless, error which can be including practice among juries faced with similar any special erroneous finding of an aggra- factual situations” is valuable information factor, vating where the Government es- in the capital sentencing process. Our beyond tablishes a reasonable doubt that dissenting colleague appears to be the first harmless.”) the error was We have no judge to suggest that allowing a jury to way knowing beyond a reasonable doubt consider such information is unlawful what jurors one or more would have done nullification may because it encourage the after listening lawyer to a arguing for life jury to consider life imprisonment. by effectively using Michigan’s longstand- In addition to our colleague’s “jury nulli-

ing policy buttress the argument, even fication of argument, federal law” the dis- respect to a murderer as vile as Ga- sent argues also that there is a difference brion. Accordingly, we reverse on this opinion among the circuits on the issue issue for penalty a new phase of the trial. of whether practices historic in a state fall In response to our decision on point, within language the “any mitigating fac- our dissenting colleague argues that our “any tor” or information relevant to a miti- opinion “an is endorsement of jury nullifi- gating factor.” No circuit has held that cation of federal law.” the Unless death such information is in litiga- inadmissible penalty mandatory is law, under federal tion. This circuit-split argument culmi- which not, of course it is mitigation of nates in the dissent’s that “the capital punishment by finding that historic case closely most analogous to Gabrion’s is practices and cultural inclinations in the United States Higgs, local area outweigh other aggravating fac- (4th Cir.2003).” The problem dissent’s is tors in the jury case is not nullification. that case, the Higgs like the others she Jury nullification jury and deliberation cites, does not raise the question same we which arrives at a verdict of life imprison- have here. Higgs Court is clear ment, are not the same. The latter is that question before it awas constitu- based on Socratic debate and choice after tional one—what the Eighth Amendment considering more complete information. requires concerning the admissibility of Normally, deliberation based on more mitigating evidence: complete information is considered prefer- able to less informed decision making. We de Higgs’s review novo claim that That is the reason for statutory insis- the district court Eighth violated the aggravating factors out- finding that by refusing submit Amendment circumstance, an element mitigating weigh mitigating a factors is jury, as eligible not have been must found Higgs penalty would of the death and be that doubt, if the murders had penalty beyond for the death a reasonable the same stan- jurisdiction of the occurred within constitutionally required for all other dard sought to Maryland. Higgs State questions of fact and mixed of law findings testimony that under expert introduce general question, fact. see the and On law, may Maryland of United States v. Gau- language broad “triggerman” only imposed on din, 506, 510-12, U.S. that, argue this and to

cases such as (1995) (criminal convic- 132 L.Ed.2d in an place the murders took because upon jury must determination tions “rest Maryland had an easement area where guilty every the defendant is ele- not have property, he could over federal of the crime with which he is ment land when that he was on federal known doubt,” in- charged, beyond reasonable murders. he committed the cluding “materiality” issues of and “mixed fact”). any questions claim of law and do not reach constitutional We clear, itself is and here because the statute Act, Penalty Under the Federal Death argu- that a constitutional party no claims death-eligible defendant “shall be sen- first. find no should be decided We ment if, tenced to death after consideration of circuit on the issue any with other conflict factors forth in section 3592 ... set 3592(a) sections under before us imposition of a sentence is determined 3593(c). § justified.” 18 of death is U.S.C. is committed to the This determination A Reasonable The Failure to Give III. weighing aggrava- jury, who is tasked Weighing Doubt Instruction factors; though the ting mitigating Aggravators Mitigators a “recom- styles Act this determination as argues that the District mendation,” judge it is one jury con penalty phase instruction Court’s 3594. Sec- obliged to follow. U.S.C. jury manner in which the cerning the 3593(e) degree states as follows to the tion aggravating and weigh jury: intensity required by the of belief rights. process his due factors violated all jury ... shall consider whether [T]he argues he that the should Specifically, factor or factors found aggravating that in order to im been instructed have all the mit- sufficiently outweigh to exist “beyond find a they death need to pose to exist to igating factor or factors found the element of reasonable doubt” death, or, in the a justify sentence of factors out aggravating that the sentence factor, mitigating a whether absence of The District weigh mitigating the factors. alone aggravating the factor or factors jury that it should did not advise the Court justify a sentence of are sufficient to persuasion measure of apply any particular consideration, upon Based this death. ques to this ultimate degree or of belief ... jury by unanimous vote shall the question on fact. This ultimate tion of whether the defendant recommend punish capital imprisonment which life death, to life should be sentenced to jury to the to answer ment turns was left possibility without of re- imprisonment was error be intuitively. We believe this sentence. lease or some other lesser degree certainty of greater a much cause added.) Thus the statute itself (Emphasis is at person when the life of a required is persua- in air the measure of We, therefore, up leaves jury’s hold that a stake. 326 decency jury’s requisite degree imposed correspond- of have a

sion and the high reliability ingly requirement of the of- of on the ultimate element belief the determination is the that death between concerning comparison fense appropriate penalty in a particular the instant aggravators mitigators. case. mind a case, “sufficiency” in the of mere itself, to the juror all the instructions is The nature of the decision life or that provision quoted death, jury, speaks forcefully using mirrored the thus a which above, implied. heightened beyond The instructions were standard of reason- a premise on the that there was no based able doubt. jury any to have in mind

need for A Beyond Reasonable Doubt Standard degree certainty. of particular Penalty Proceedings: Neglect- in Death A Fairness, ed Element 52 L.J. Ohio. disagree premise. of We with (1991) (quoting 220 Maryland, Mills v. 486 part of sentencing phase The of the case 367, 383-84, U.S. 108 S.Ct. 100 result in a proceeding may a criminal (1988)). Note, L.Ed.2d 384 See also “Vari- above, verdict death. As discussed Verbalistics, able The Measure Persua- necessary precon plainly requires Act as a Tennessee,” sion Vand. L.Rev. 1413 capital receiving dition to defendant’s (1958) (jury instructions on measure of government of death that sentence persuasion needed must and un- be clear prove aggravators and the find that derstandable). mitigators. Normally, in the outweigh case, govern Likewise, run-of-the-mill criminal supreme a number of state charged beyond ment is with “pro[ving] in death penalty courts thor- cases have every necessary reasonable doubt ... fact oughly analyzed the question of the meas- to constitute the crime” which a de ure of persuasion and that the concluded charged. Winship, fendant is In re 397 “beyond a reasonable doubt” standard is 358, 364, U.S. S.Ct. L.Ed.2d “to necessary jurors communicate to the (1970). requirement This insures “the degree certainty they must moral force the criminal law.” Id. It possess any mitigating do not factors by virtually has been “adhered to all com proven outweigh statutory aggravating jurisdictions.” mon-law Sullivan v. Loui arriving factors before ultimate siana, 275, 278, 508 U.S. judgment that death appropriate is the 182 (1993). 124 L.Ed.2d should People Tenneson, This penalty.” P.2d particularly (Colo.1990) cases). true death Professor cases. 792-94 (collecting Linda Carter has outlined the basic rea Recent trends federal constitutional this requirement: sons for application law confirm our of the basic

As the Court reaffirm- stated a case Winship process. rule of to the weighing ing principle that all evi- Supreme Court in Ring v. Arizona considered, regardless dence must be applied reasoning Apprendi v. New jurors whether the unanimous in were 466, 2348, Jersey, 530 U.S. 120 147 S.Ct. finding particular a mitigating circum- (2000) L.Ed.2d 435 first announced —which stance: increasing the that recognition facts a power The decision to exercise the of maximum sentence proven must be to a doubt, the State to jury beyond regard execute a defendant is a reasonable any unlike other decision citizens and less of whether a criminal purports statute public upon officials are to sentencing called to make those facts consider Evolving make. of standards societal ations rather than an of- elements of

327 indicted; made than he was when he was phase capital of a penalty the fense—to that the Sixth range penalties and held the of to which he is ex- prosecution, fac aggravating that requires posed penalty Amendment does not include the death a imposition of death required for jury required tors until the makes that factual jury, not a by be found sentence must “Ml finding of this element of the offense. 2428, 584, 609, 122 S.Ct. 536 U.S. judge. imposition facts essential to the of the level (2002). The Court 153 L.Ed.2d 556 that punishment of the defendant re- weighing of Ring did not have the issue ceives—whether the statute calls them ele- 2428, it, 597, 4,n. id. at before offense, factors, sentencing ments of the helpful in reasoning think its is but we Mary by jury Jane —must be found at resolving this issue. Government beyond Ring, a reasonable doubt.” 536 Ring’s import arguing limit tempts to (Scalia, J., U.S. at S.Ct. 2428 jury requirement Act’s that that the Thomas, J., joined by concurring). That factors presence aggravating of find requirement surely jury’s to the applies enough is beyond a reasonable doubt determination of whether the Government requirements. They satisfy constitutional proven worthy society’s has a defendant of that the Act a defendant is insist under punishment, spite ultimate of of features jury eligible” once the finds “death may his case that militate in favor of a life and thus that the presence aggravators, of sentence. weighing process, rather outcome of The refusal some our sister increasing eligibility, simply than that fixes to impose circuits death cases the ordi eligible range, within the punishment nary persuasion applicable measure all and so it is freed from constitutional weighing aggrava criminal cases on the applicable jury otherwise requirement mitigators tors and is based on their theo empty an formalism of findings. This is ry that not weighing does resolve Supreme explicitly sort the Court re fact, “process” question of but is instead Ring, 536 U.S. at jected Ring. See moral, at a designed opposed to arrive (“The dispositive question 122 S.Ct. 2428 factual, judgment. See United States v. effect.”) form, ... not of but of is one Cir.2007) (1st F.3d Sampson, 486 530 U.S. at (quoting Apprendi, weighing con (holding requisite that “the 2348). that, plain It is from the Act S.Ct. not a fact to process, stitutes a be found” jury presence finds the even after the weighing and that outcome of the “[t]he doubt, beyond a reasonable aggravators objective truth that process is not an proven more needs to be before the defen (further) susceptible proof either may to death: a defen dant be sentenced Fields, party”); States v. United truly “eligible” for the death dant is (5th Cir.2007) (holding is, penalty penalty —that jury’s aggravating decision that the factors imposed on him—unless legally cannot outweigh factors is “not a jury until the makes the determination mitig finding “highly subjective, of fact” but a aggravators outweigh (internal judgment”) quota “eligible” largely for the moral He is no more ators.6 omitted).7 that determination is tion marks and citations We death before Indeed, that, justify provides even where sufficient to a sentence of death.” the Act 3593(e). exist, U.S.C. mitigators no are found to must finding the additional of "whether still make reasoning in Fields was 7. The Fifth Circuit's aggravating alone are the factor or factors adopted wholesale the Tenth Circuit in reasoning of these whether a conduct depart from the cases defendant’s meets First, it points. man,” has never at two related of a “reasonable see Restatement the the constitutional re (Second) been case (1965)), § of Torts 283 & cmt. e beyond a quirement proof of reasonable (where punitive damages jury the is invit- jury the is applies only when tasked doubt ed to such weigh factors as the character “objective of the determination act, and intent of defendant’s ex- the the ... proof’ ... to or susceptible truthfs] harm, tent of the and the wealth of the Gaudin, In States v. “raw facts.” United making basically defendant in the moral 2310, U.S. 132 L.Ed.2d whether determination of his conduct was (1995), Supreme explicitly the Court 908), § “outrageous,” insanity id. see rejected jury the the notion of criminal as (where jury the asked is whether a defen- factfinder,” held a “mere that the re dant appreciate wrongful- could moral quirement beyond a proof of reasonable ness at of his conduct the time of his extends to resolution of doubt its mixed offense, alleged see Model Penal Code questions 513-14, fact. of law and Id. at (1962)), § 4.01 tortious interference with above, referred to 115 S.Ct. 2310. As (where jury contract is tasked with jury’s in that “the Court Gaudin held con weighing such as factors the defendant’s responsibility merely stitutional is not determining intent in alleged whether an facts, to apply determine the but the law to “improper,” interference is see Restate- those facts and draw ultimate conclu (Second) j ment Torts of 8c cmt. 514, 115 guilt of sion or innocence.” Id. at (1979)), many other mixed of issues Surely responsibility S.Ct. 2310. is all law and fact in tort and criminal law. more acute where ultimate conclu That weighing these various determina- innocence, just guilt is not or sion but life tions involve a process jury which the or death. weighs not they factors does mean that do Second, misapprehend these courts finding result in the of a fact. These jury nature of they determinations when require varying degrees determinations of “process” consider the idea of to be at i.e., certitude, proof, burdens of depending question odds with the of ultimate fact that policy on the or attitude of the law process In both resolves. civil and balancing the culpability the defendants law, criminal cases common we have punishment. versus the nature But long many had that require standards society our only has decided on one degree jury weigh that lead factors to an ulti- of certitude appropriate criminal cases: mate regards conclusion that the law as an beyond ag- doubt. Weighing reasonable fact, finding ultimate even when that gravators mitigators in versus death cases may moral, “fact” legal have as well as just many “objective,” one of well as the most aspects. ques- These include: —as (where an negligence “processes” tions drastic —of the that lead is invit- “weigh[ ed interests” ultimate fact. evaluating finding ] Fields, weighing United States v. 516 F.3d instruction but under the Act (10th Cir.2008), concerning review); a case an unrelat applying plain error United States addition, ed defendant. other courts have (8th Cir.2005) Purkey, 428 F.3d 749-50 issue, analogous reached conclusions (refusing weighing characterize under but in cases where the issue has not been Act as the determination of "fact” in squarely presented it is before us. See context of a Fifth Amendment indictment Mitchell, United States v. 993- challenge). clause (9th Cir.2007) (refusing a reasonable doubt

329 penalty. Assuming for the sake Finally, harmless-error Act’s notwithstanding, the law is clear the Fifth Amendment provision to deliver a refusing error in that a court’s indictments under the Federal requires to a a doubt instruction reasonable Penalty allege statutory ag Act to Death error not sus ease is a structural criminal factors,9 nonetheless find gravating we analysis. error See to harmless ceptible here. “The that error to be harmless Louisiana, 275, 281, 508 v. U.S. Sullivan appeals court of shall not reverse or vacate (1993) 2078, 124 L.Ed.2d 182 113 S.Ct. any of death on account of a sentence analysis apply harmless error (refusing to harmless, including any can be error which describing bur trial court erred where special finding aggravating of an erroneous case, reasoning in a criminal proof den of factor, establishes where the Government burden of misdescription “a of the beyond a reasonable doubt that the error jury’s findings”). ... vitiates all the proof 3595(c)(2)(C). § was harmless.” 18 U.S.C. determination that Ga Accordingly, our has not set out how he was Gabrion entitled to a reasonable doubt brion was statutory aggra the absence of harmed aggrava weighing as to the instruction in the Nor vating factors indictment. does requires the ting factors stating aggravating us how he tell sentence. reversal of his death per in the a factors indictment is se re subject harm quirement to the Act’s the Indictment to The Failure of IV. provision. less-error Allege Statutory Aggravating Factors To determine whether the absence was error, primary harmless we look to the two argues that his indict Gabrion (1) provide functions of the indictment: fatally deficient under the Fifth ment was crime, allowing notice of the the defendant allege any Amendment because it did not (2) defense; prepare bring statutory factors that aggravating public through grand jury charg- into the eligi him legally necessary were render ing v. Robin- decision. See United States year But one penalty.8 for the death ble (cit- (5th Cir.2004) son, 278, trial, 367 F.3d 287 government advised before States, 749, v. 369 ing factors it Russell United U.S. aggravating of all the 763-64, 1038, 240 in a notice that it would seek 8 L.Ed.2d prove would victim,” argues passing "intentionally 18 kill[] also that the in- defendant 8. Gabrion constitutionally 3591(a)(2)(A). deficient be- § dictment was U.S.C. allege any of the mens rea cause it did not intentionality based on enumerated in factors Supreme this circuit 9. Neither the Court nor 3591(a)(2) Penalty § the Federal Death Act. precise question, but we has addressed this indictment must Gabrion is correct that the each circuits that has note that of our sister of these mens rea factors because include one held, reasoning this issue has confronted impose they necessary are under the Act to each, substantially similar that the 18 U.S.C. sentence death. See require Fifth Amendment does the indictment Allen, 3591(a)(2); United States v. 406 F.3d aggravating allege statutory at least one 940, banc) (8th Cir.2005) (en (holding 943 Brown, See, e.g., v. 441 factor. United States requires the indict- that the Fifth Amendment (11th Cir.2006); United F.3d prosecutions under the Act to include ment in Allen, (8th v. 406 F.3d 943-44 States mistaken, factor). rea Gabrion is a mens (en Cir.2005) banc); United States v. Robin- however, thát his indictment omitted a mens son, (5th Cir.2004); F.3d United original superceding factor. Both the rea (4th Higgs, 353 F.3d Cir. States charged "willfully” Gabrion of indictment Quinones, 2003); Timmerman; United States v. killing equivalent Rachel this is (2d Cir.2002). requirement rea that the to the Act’s mens 330

(1962), States, government. and Stirone United 361 He also raises a second ar- 212, 218, 270, gument “patchworked” 4 that the U.S. 80 S.Ct. L.Ed.2d 252 character (I960)). of ownership parcels federal function, the Man- As to the first istee National any Forest renders murder aggravating had notice of the factors one jurisdiction conviction or finding of there year in advance of trial —more than suffi- violation process, equal protection, of due prepare cient time to a defense. As to the Eighth Judge Amendment. function, grand jury second no rational Moore has addressed these same federal could fail to find that prosecution jurisdiction criminal arguments pre- in her probable any aggra- lacked cause on of the vious, separate opinion subject matter factors, vating because the evidence of jurisdiction Gabrion, in United States v. probable cause on those factors was (6th Cir.2008) 839, 866-76 Robinson, strong. See 367 F.3d at 293. (Judges Batchelder and Moore gen- found Moreover, the fact that Gabrion’s sentenc- eral, subject juris- federal criminal matter ing unanimously later all found forests, diction in national Judge Mer- is, minimum, aggravating per- factors “at a ritt dissented on a separate ground that 16 grand jury suasive evidence of how a U.S.C. 480 does not criminalize murder Any would find.” Id. at 288-89. error forests). in the national Given the current was, therefore, harmless. posture of given the case and our previous- We can summarize the situation here no ly separately subject stated views on mat- Blackstone, better than who said the fol jurisdiction, ter all panel members of the lowing regarding why courts should not join Judge opinion, above, Moore’s cited reverse otherwise-proper convictions sim III, parts V, IV and which addresses these ply prosecution because the proceeded by issues. information rather than by indictment: “The same notice given, was the same Request VI. Gabrion’s to Proceed process issued, was pleas the same were Without Counsel allowed, had, the same by jury trial was California, Faretta v. judgment by same given the same Supreme Court observed that the Sixth

judges, prosecution as if the originally had right Amendment creates a self-repre been indictment.” 4 William Black 806, 818-32, 422 sentation. U.S. 95 S.Ct. stone, (cited Commentaries *305 in Hurta (1975). However, 45 L.Ed.2d 562 v. California, 516, 538, do 110 U.S. 4 S.Ct. right self-representation “is not ab (1884) 28 L.Ed. 232 (holding that the solute.” Martinez v. Court Appeal Indictment Clause of the Fifth Amend Cal., 152, 161, 528 U.S. 145 ment incorporated is not against the states (2000) L.Ed.2d 597 (holding that defen Clause)). via the same, Due Process dants have no right self-representation too, with Gabrion. on appeal). “Even at the trial level ... government’s interest in ensuring the Subject

V. Proof of Matter integrity and efficiency of the trial at times Jurisdiction outweighs the defendant’s interest act First, Gabrion raises a subject federal ing lawyer.” as his own Id. at jurisdiction matter upon based itself, S.Ct. 684. In Faretta the Court and combined with a factual argument that right noted that self-representa “[t]he the evidence was insufficient prove tion is not a dignity license to abuse the Gabrion murdered Timmerman at a loca- the courtroom. Neither is it a license not tion at Oxford Lake owned the federal comply procedural relevant rules of being destroying n. satanic and law.” U.S. evidence and substantive reason, Cass murdered Rachel “the Charles 2525. For S.Ct. Timmerman. may self-representa- judge trial terminate deliberately en- by a defendant who THE question, tion COURT: One more one miscon- gages in serious and obstructionist more outburst—(cid:127) Id.; Allen, Illinois v. 397 U.S. duct.” I DEFENDANT GABRION: have no cf. 342-43, 25 L.Ed.2d 353 possibility getting judge— a fair (1970) (holding that a defendant can forfeit upstairs. THE him COURT: Take right present Amendment to be his Sixth DEFENDANT GABRION: —where disorderly, being in trial if he insists on “so 14-year-old had a judge sex with of the court disruptive, disrespectful and girl got and 13-year- last week another with him that his trial cannot be carried on I I pregnant old that know of that can courtroom”). in the people right got take these to now. I possibility. nothing zero You’re but an above, I we set out Gabrion’s Section why you evil Hitler. Shit. And don’t tell attempt trial. His attempts disrupt to go FBI to that perverted arrest part was of that ef- represent himself bastard. unequivocally asserted his fort. Gabrion The District Court denied Gabrion’s mo- in a motion

right self-representation proceed pro four-page opin- tion to se in a in filed with the District Court October opinion ion. The asserted that Gabrion’s motion, ap- In that he called his Court, “disruptive in behavior his abu- “evil,” “corrupt,” counsel and pointed language obscene sive and motions and “liars,” stealing and he accused them of letters, his and failure to heed the advice earlier, Only from him. two months $1800 of counsel on commonsense issues concern- hearing a on whether Gabrion during behavior, his convince this ing pretrial evaluation, a undergo competency should willing Court that will not be or [Gabrion] proceedings and interrupted Gabrion trial ‘ground able follow the rules’ of ejected from the courtroom immedi- later, procedure.” One month ately following exchange: after the reconsideration, in filed a motion for which Sir, DEFENDANT GABRION: the vic- his apologized promised he and conform family public tim’s and the deserve to to the the courtroom. conduct rules of the truth from me. know however, day, Later at a that same hear- Sir, I THE COURT: haven’t addressed ing suppress, on a Gabrion con- motion to would, you yet. quiet you You’ll be if sistently interrupted proceedings. please. The District Court denied motion and may pro- You government:] [To “grave regarding indicated its doubts [Ga- ceed. ability to conform himself’ to mini- brion’s] you. Thank [THE GOVERNMENT:] mum standards of courtroom behavior. [My ap- DEFENDANT GABRION: totality disruptive Given destroyed evidence pointed has counsel] behavior, err in the District Court did not murdered Rachel Charles Cass precluding representing Gabrion from Timmerman. only himself. Gabrion’s behavior not fell sir, Sir, you’re THE either COURT: accepted minimum for court- below you sit in quiet today go upstairs rooms; it was of such character yours. the cell. The choice is unacceptable any would corner of My every choice society. DEFENDANT GABRION: civil The District Court had [my reason to believe this conduct would con- appointed counsel] is to fire prominent sel’s motion stage on a more to withdraw motion for tinue—and —if the opportunity rep- given Gabrion were physically mistrial after Gabrion assaulted Considering resent how Gabrion himself. attorneys, Stebbins, one of his David proceedings several interrupted courtroom jury. front of the The attack occurred promising after to con- only times hours during day pro- first form, Court was the District entitled to ceedings. Shortly after Gabrion punched empty promise simply view that head, Stebbins Stebbins made oral rhetoric. manipulative more motions for a and to mistrial withdraw as may practice It for trial be better counsel. The District Court denied the give of the doubt to courts to the benefit motions. Stebbins later renewed those who misbehaving defendants invoke their motions, Mitchell, time Paul and this Ga- right self-representation to and then re counsel, brion’s other trial also to sought they disrupt voke that if the case. right withdraw. The District again Court de- did not But the District need to do Court motions, reasoning nied the that there was At so with Gabrion.10 the time he moved withdrawal, good no cause for that Gabrion himself, represent persis he had been manipulate was trying to the proceedings, tently disruptive deeply disrespectful and that Stebbins and Mitchell were conscien- in court. He had filed numerous bizarre diligent, tious and and that the prob- same He had motions and letters. committed certainly lems would almost occur in a forty major while new infractions incarcerated County Jail. Given below, Calhoun his unbro trial. For the reasons we find that pattern ken both of misconduct inside and the District did not Court abuse its discre- courtroom, only possible outside of the tion in denying both motions. inference was that his serious misbehavior represented

would if he continue himself. A. The Motion to Withdraw as Ga- circumstances, Under such we do not re brion’s Trial Counsel quire the District Court undertake the empty time-consuming formality reviewing “When a District granting right self-representation his Court’s denial of motion to withdraw or only days to revoke it later. To do so counsel, we generally substitute must con would be to type facilitate same (1) (2) motion, sider: the timeliness of the disruptive and abusive conduct the Court adequacy inquiry of the court’s into the in Accordingly, condemned Faretta. (3) matter, the extent the conflict be District properly Court denied Gabrion’s tween the attorney client and whether motion proceed pro se. it great was so it in resulted a total Physical lack of preventing VIL Whether communication an As- ade (4) sault of his in defense, Counsel Court Re- quate the balancing of quired the Withdrawal of his Trial public’s these factors with interest Counsel or a Mistrial prompt and efficient administration of justice.” Mack, v. United States 258 F.3d argues the District (6th Cir.2001). Court should have his granted trial coun- “We review the case, Supreme opinion Court’s recent themselves. In that Court held that Edwards, 164, 177-78, Indiana v. 554 U.S. may a defendant meet the standard to be (2008), pro- S.Ct. 171 L.Ed.2d 345 competent to stand trial with the assistance of potential op- vides trial courts with another yet incompetent represent counsel him- dealing psychopathic tion for defendants self. Id. like represent Gabrion who assert desire to abuse of discre- court’s denial for defendant is unable to obtain a fair district trial.” Phibbs, Id. at 555-56. tion.” States v. United (6th Cir.1993) (internal quotation adequately The District Court consid omitted). marks “The denial of a mistrial opinion. the matter in its written ered generally within the discretion of the that a conflict Although is undeniable court, trial and our review of the court’s between Gabrion and his trial existed ruling is confined to whether the trial assault, physical after the that con counsel (internal court abused its discretion.” Id. flict not cause a total lack of communi did omitted). quotation marks cation: District Court found its opinion that Gabrion communicated with Other permit circuits have refused to (J.A. 560.) his counsel after the assault. mistrials prejudicial when the event a The fourth factor from the Mack case is unprovoked defendant’s own outburst If perhaps persuasive. the most the Dis Harris, E.g., court. United States F.3d granted trict Court had the motion to (7th Cir.1993); 1456 United States withdraw, it would have had two conceiva West, (4th Cir.1989); 877 F.2d 288 options: appoint ble substitute counsel for Aviles, United States v. 274 F.2d Gabrion, or hold that Gabrion forfeited his (2d Cir.1960). As these cases recognize, right represent to counsel and had to him by allow a defendant his “[t]o own miscon- self for the remainder of proceedings.11 duct to terminate trial temporari- his even option delayed The former would have ly would be to allow him to profit from his sentencing phase for months as substitute Harris, wrong.” own 2 F.3d at 1456. caught up thereby to speed, signif counsel precedent a Such also could have negative icantly detracting prompt from the effects on future provide trials: “it would justice. efficient administration The lat easy an device for provoke defendants to option ter would have undermined the mistrials they might whenever choose to public by permitting psycho interest a Aviles, 193; do so.” 274 F.2d at accord pathic manipulate defendant to the pro West, 877 at (reasoning per- F.2d ceedings represent so that he would him mitting mistrials in this situation would self, represented by rather than be trained “encourage by future misconduct defen- and conscientious counsel. Among the dants”). options presented by conceivable Gabrion’s conduct, grant To a mistrial we believe the District Court would be to allow a Accordingly, manipulative chose the correct one. we defendant like Gabrion to de- hold that the lay sentencing through District Court did not abuse his own dangerous by denying its discretion counsel’s motion misconduct. It prece- would also set bad to withdraw. by dent that could be manip- abused future Moreover, ulative defendants. the actual B. The Motion for a Mistrial prejudice to from the Gabrion wit- “A may nessing may defendant move for a this assault have been less legitimate mistrial where there is a claim than one expect, would as the assault was seriously prejudicial error such that the consistent with mitiga- defense counsel’s (3d Cir.1998); McLeod, Although Supreme neither the Court nor United States v. (11th Cir.1995). directly the Sixth Circuit express has held that an F.3d We indigent right opinion right defendant can forfeit his no here as to whether misconduct, misconduct, extremely may counsel his serious counsel ever be forfeited held, so, e.g., at least two other circuits have so and if whether Gabrion would have for- Leggett, particular United States v. 250-51 feited it in this case. judge Gabrion as the trict met with Gabrion on the record strategy presenting tion that, although and admonished him he had a mental disease. We therefore victim of right testify, testimony his must be District Court did not abuse hold that the likely truthful and would create serious by denying Gabrion’s motion its discretion strategic arising risks from cross-examina- for a mistrial. regardless.

tion. Gabrion testified At the conference, second defense counsel and the the In Confer- VIII. Whether Camera judge briefly district reflected on whether Judge the District ences between they properly right had balanced Gabrion’s Defense Counsel Out- Gabrion’s testify counsel’s ethical defense side of Presence Gabrion’s Violated The fifth duties. conference also involved Rights Gabrion’s testify, desire to Gabrion’s but this time argues appeal Gabrion the penalty phase of the trial. District Court committed error reversible The other two conferences dealt with by conducting five in camera conferences disruptive courtroom behavior presence outside of his over the course of legal question and the of the extent only people present the trial. The at these right which Gabrion had a to control trial judge, conferences were the district Ga strategy. morning One occurred the after counsel, reporter, brion’s defense a court punched Stebbins, defense counsel and sometimes law clerk. All of the five beginning at the penalty phase All conferences occurred on the record. the trial. The judge district had ordered the first conference but lasted ten minutes that proceed- Gabrion must either view the less, just and the first conference lasted shackled, ings remotely or be awear stun twenty than less minutes. At the time of belt, and sit between two U.S. Marshals. trial, any Gabrion was not aware of Gabrion’s defense counsel that agreed this these conferences. that argues Gabrion degree of appropriate, restraint was but these conferences violated his constitution they judge they told the district that had right process al to due right his to be stay court, advised Gabrion to out of so present every stage of trial under Fed jury that would not him in see re- eral Rule of Criminal Procedure 43. straints. The other conference occurred A background little on the conferences penalty-phase later proceedings. helpful. Three of them dealt with ethical Gabrion had insisted to his trial counsel problems stemming from Gabrion’s desire they that government’s cross-examine the testify. conference, At the first defense victim-impact witnesses to accuse those counsel judge discussed with the district witnesses of murdering Rachel Timmer- how best to balance right Gabrion’s to man. Gabrion’s trial wisely counsel be- testify in his during guilt defense accusing family lieved that victim’s trial phase of the with defense counsel’s killers, being her true after jury the same being suborning perjury. fear of accused of already adjudicated had guilty Gabrion explained Defense counsel that Gabrion murder, her strategy, would be terrible testifying, insisted on but defense counsel they sought but confirmation from the dis- believed that Gabrion would lie on the they trict judge could choose not to judge stand. The district proposed strategic follow Gabrion’s At wishes. questions conference, Gabrion either could submit judge agreed. the district testify Then, his counsel advance or could judge both the district and defense pursuant specific narrative form challenge choreo- counsel discussed the of balanc- graphing. conference, ing right present After the the dis- to be in the serially with the risk that his substantial relation to opportunity courtroom his defend require only argument himself. As his disruptive behavior would re- him, prejudiced these conferences Gabrion ejecting him front of the peatedly testimony contends that his was “devastat- subject great prejudice. would him to case, ing” for his might and that he have judge The district concluded the confer- testify decided not to had he observed at diligently “how emphasizing [de- ence strong opinions the conferences the voiced working.... fense are and are counsel] by both his defense counsel and the dis- they him can representing as well as under judge trict that he testify. should not But the circumstances.” Gabrion’s defense counsel stated on the they already record that had thoroughly Right A. The Due Process to Presence warned him of these dangers. And the Proceedings judge district also warned on the defendant has a due pro “[A] immediately record after the first confer- right present proceeding cess to be at a ence and before during Gabrion testified relation, presence ‘whenever his has a rea guilt phase. Both Gabrion’s defense substantial, sonably to the fullness his counsel and the judge district separately opportunity against defend him warned testifying, yet risks of charge.... presence of a defendant [T]he he regardless. testified It is exceedingly process is a condition of due to the extent doubtful that Gabrion would not have testi- just hearing that a fair and would be fied had he observed his defense counsel absence, thwarted his and to that ex judge and the district discuss this matter ” only.’ Gagnon, tent United States Moreover, together. Gabrion acknowl- 522, 526, U.S. 105 S.Ct. 84 L.Ed.2d edges appeal that he “did not trust his (1985) (quoting Snyder v. Massachu counsel,” and he does attempt to ex- setts, 291 U.S. 78 L.Ed. plain why warnings further people from he (1934)). The exclusion a defendant did not trust would have him dissuaded light “should be considered of the whole from testifying. Like the defendants record.” Id. at In S.Ct. 1482. Gagnon, Gabrion gained would not have Gagnon, Supreme Court held that the anything by attending these conferences. four process defendants did not have a due addition, Gabrion’s absence from the right present to at an in camera discus just conferences did not a fair thwart sion between the trial judge, defense hearing; contrary, on the the conferences counsel, juror and a regarding juror’s that demonstrated the admirable efforts of de- that concerns one of the defendants was fense judge counsel and the district to drawing sketches of the members. protect rights Gabrion’s and to facilitate a emphasized Id. The Court that the defen hearing fair for despite disrup- Gabrion his nothing they dants “could have done had argues tive antics. appeal Gabrion on that conference, been at the nor they would these conferences him in “kept the dark gained by have anything attending.” Id. about his own defense” that his de- merely It was “a short interlude in a com “disloyal.” Quite fense counsel were plex trial.” Id. conferences, opposite. During the the dis- though Even Gabrion was absent from judge trict and defense counsel consistent- conferences, just five brief rather than ly emphasized importance of Gabrion’s one, we believe that right pro- his to due right testify right present and his to be courtroom, cess was not denied. His absence from in they carefully but had to reasonably the conferences did not have a rights against balance those the likelihood perjury commit have testified had he attended the confer- would Gabrion by preju- he cause himself ences. He has no other claims of prejudice would dice, jury. They chose remaining gained anything in front so he would not have balancing by attending Any record. viola- perform conferences. tightrope an ethical They walked tion of Rule 43 from Gabrion’s absence —created by willingness to lie on the stand from in camera conferences was there- disruptive behavior court—while fore Accordingly, and his harmless error. we will rights his and mini- seeking protect still not reverse the District Court on this being Rather than mize harm to his case. claim.

disloyal, great defense counsel showed IX. The District Decision Not Gabrion, Court’s even after he

dedication Report Suggesting Disclose in the face. punched one of them Gabrion May That a Government Witness just hearing regardless a fair and received Against Have Been Biased Gabrion from the conferences. preclusion of his process to due Accordingly, right his argues the District not denied. disclosing Court erred to defense a report Department counsel Right at B. The to Presence Trial un- Responsi Justice’s Office of Professional der Federal Rule of Criminal Proce- bility. The report Chrystal concluded that dure 43 Roach, county a Michigan prosecutor who Subject exceptions, to several temporarily a Special served as Assistant Federal Rule of Criminal Procedure 43 Attorney pre-trial proceedings U.S. provides pres “the defendant must be Gabrion, against regula violated federal every stage.” ... trial Fed. ent by making improper tions public com 43(a)(2). Although Pro. Rule 43 R.Crim. ments about Gabrion’s ease several weeks Constitution, stems from the it “includes report after the initial indictment. The than the rights common-law and is broader suggested may that Roach have had protection provided in the Fifth and Sixth Gabrion; against vendetta Roach her lost Gibbs, Amendments.” States v. United appointment public federal due to her (6th Cir.1999). In cam prosecution statements. The called her as stage era conferences are a of the trial during guilt phase a witness meaning within the of Rule 43. United years trial over two later. She testified (6th Brown, 980, States v. 571 F.2d 986 briefly peripheral govern issues. The Cir.1978) (citing Gay, United States v. 522 report ment submitted the to the District (6th Cir.1975)). 429, However, F.2d 435 Court, which decided not to disclose it to analysis applies harmless error to viola defense counsel. '43,

tions of Rule reversal is required so argues report that would Gabrion only if prejudiced by the defendant was impeachment have been effective material Brown, error. 571 F.2d and that he therefore was entitled to re- assuming that Brady Maryland, Even Gabrion had ceive under v. 373 right 83, 1194, a to attend the conferences under U.S. 83 10 L.Ed.2d 215 S.Ct. (1963). 43, Rule in spite disrup argues of the likelihood of He also that the District lawyer, tive report conduct and his attacks on his Court’s decision not to disclose the prejudiced by he was not right his absence. As violated his under the Confrontation above, more of a thoroughly gov- discussed Gabrion Clause to demonstrate the bias credibly argue cannot that a trial. requests he would not ernment witness. He new

337 below, that both shortly For the reasons we find saw Gabrion near Oxford Lake be- body fore her was found there. lack merit. Several arguments expert testified that witnesses materials Report the Ethical found on her corpse A. Whether Was matched materials Brady Requiring Significantly, Material Reversal from Gabrion’s home. none Chrystal of these witnesses was Roach. Brady, gov Pursuant only Roach testified as to peripheral and give ernment must to defendant evidence uncontested facts: the progress of Ga- possession in its that is both favorable to court, rape brion’s trial state and a the defendant and material to or guilt his letter the district attorney’s office re- States, punishment. v. Schledwitz United ceived, purportedly from Rachel Timmer- (6th Cir.1999). 1003, F.3d “[I]t man, retracting rape her allegations. that obligation well-settled this disclosure testimony Roach’s far was from critical in includes evidence could be used to establishing guilt. Schled- Cf. impeach credibility of a witness.” Id. witz, 169 F.3d at (vacating 1016-17 defen- States, (citing Giglio v. United 405 U.S. dant’s conviction where the im- withheld 150, 154-55, 763, 92 S.Ct. 31 L.Ed.2d 104 peachment information “key” involved a (1972)). However, a defendant is entitled witness). There is almost no chance that recently trial to new for discovered Bra the result of guilt-phase proceedings dy only evidence when the evidence is would have been different had Gabrion Materiality requires material. Id. “a rea received report. Accordingly, the re- that, probability sonable had the evidence material, port was not and Gabrion is not defense, been disclosed to the the result of entitled to a new trial on grounds. these proceeding would have different.” been (quoting Bag Id. at 1012 v. United States B. Whether Gabrion’s Confrontation ley, 473 U.S. 105 S.Ct. Right Opportunity Clause to the for (1985)). A proba L.Ed.2d 481 reasonable Cross-Examination Was Denied bility proba does not mean a mathematical similarly argues more; rather, bility percent it is him District Court denied his constitu simply probability “a sufficient to under right tional to cross-examine Roach with outcome,” mine confidence id. “Be Department report. of Justice materiality Brady presents cause under right Sixth Amendment to confrontation fact, question mixed of law and our stan for ability secures defendants the to im dard of is de novo.” review United States peach prosecution witnesses bias. Dela (6th Cir.1991) Phillip, v. Arsdall, 673, 678-79, ware Van 475 U.S. (internal omitted). citations (1986). 89 L.Ed.2d 674 Although report may have been Arsdall, Supreme Van Court held helpful to Roach impeach and therefore right the defendant’s to confrontation was exculpatory and should have been dis- violated when the trial court “prohibited closed, confidently we believe that its ab- inquiry” all into possibility that a wit guilt sence did not affect the result of the ness was biased. But it that Id. also held phase of the trial. The evidence that Ga- right subject the denial of this harm is to brion had murdered Rachel Timmerman analysis. error less Id. at simply overwhelming. was Three wit- 1431. Whether the error is harmless be nesses testified that Gabrion had made yond a depends reasonable doubt on the statements to them incriminating following importance himself factors: “the of the in her that in they testimony prosecution’s murder. Others testified witness’ what cir-

case, testimony perform was cumula- their duties.” Under whether grounds cumstances and on what is the tive, of evidence or absence presence judge justified taking trial action? such contradicting the testimo- corroborating or question The Third Circuit answered this material ny points, witness on of the following manner: per- otherwise extent of cross-examination course, mitted, and, discretion, strength the overall trial judge, in his sound [T]he may juror replace case.” Id. him prosecution’s of the remove juror an alternate whenever facts that it is not at all first note obvious We are trial presented which convince the right to im- that constitutional judge juror’s ability perform that the for her bias peach Chrystal Roach was duty juror impaired. his as a the District Court chose Although denied. Cameron, United States v. 464 F.2d Department not to of Justice disclose (3rd Cir.1972). agree We with this Gabrion, allege does not report to analysis and hold that the trial court’s him prevented that from the District Court exercise of this discretion is not to be including pub- her using other materials — a showing prej- disturbed absent of bias or that gave lic statements rise to the re- See, e.g., udice to the defendant. United impeach Roach for her bias. His port—to Domenech, States v. Arsdall, is thus unlike where the case Van (2nd Cir.1973); Maxwell, United States v. any completely inqui- trial court shut down (2nd Cir.1967). F.2d event, ry any into we need not bias. case, right government decide whether his to cross-examina- In the instant re- denied, any quested juror tion was because such denial on two occasions that a plainly nodding during would constitute harmless error. removed for off the trial. above, prosecution’s As discussed case Defense counsel did not think she was against guilt phase sleeping Gabrion at the and did not want her removed. trial overwhelming, judge agreed and Roach’s testi- The that he saw her closed, mony pertained peripheral eyes matters and had been but said she would uncontroverted facts. therefore hold not replaced We be removed and at that time. However, that Gabrion is not entitled to a trial explained attorneys new he to the grounds. these that if he her at all excused he would do it

privately so as not to embarrass her. The X. The Removal of Juror Who government attorney agreed verbally on Allegedly Sleeping

Was plan the record to this and defense counsel say anything did not further at that time Under Federal Rules of Crimi about the issue. Tr. at 1606-07. 24(c), nal may, Procedure a trial court discretion, the exercise of its sound substi At the conclusion of the evidence and juror juror tute an for a regular judge jury, alternate after the had instructed the disqualified judge jury who has become unable or told the four of them were perform excusing his duties. The trial court’s exer alternates and that he would be cise of regard its discretion is not to the four from deliberations. He then read numbers, a showing including be disturbed absent of bias or off four Number prejudice According allegedly sleeping juror. to the defendant. As soon as 24(c), begin Rule the trial court is authorized “to the left the room delibera- who, replace jurors tions, prior judge to the time the defense counsel told the verdict, retires consider its become he had not read the correct numbers in disqualified jurors. judge or are found to be excusing unable the four re- “Yes, heavy-set I took out No. 84. was and a sponded girl sandy She with blonde hair, Coleman, snoozing. ... had been which objection by the one who She over defense, snoozing. I identified as allegedly looking photo found she was. like a continued, of Rachel I Timmerman. On cross-examina- today again found her She tion, Coleman stated that she did not call glassy-eyed pull- and inattentive. So I’m police seeing after photo as a ing person. her off as a The other three suspect, and she conceded that she refused definitely pulled ... were alternates. So I testify before grand jury. West- put her off and I No. who was an Spring comb testified that in the Okay?” spot. alternate her Defense Lloyd, her son who suffers from schizo- responded, “Okay,” proceeded counsel phrenia, told her about a conversation he judge to ask the who would be the next allegedly had with Gabrion in which Ga- juror if another alternate seated needed to Lloyd brion told gotten he had rid out. Tr. at drop 1769-1770. girlfriend permanently his in a bottomless While the record does not reflect that lake with chains and cement blocks. She judge finding juror made clear stated on cross-examination that she did sleeping removing No. 84 had been before police not tell the about this conversation her, attorneys he alerted the to what he with her son until three months after Ra- if planned to do he needed to remove her body chel Timmerman’s was found. out plan. and he carried Defense opportunity object counsel had an when Under Confrontation proposed plan again Constitution, told of the and then Clause United States testimonial, juror actually after No. 84 was replaced. out-of-court statements of not, against He did so we review for fered plain error. accused to establish the truth may of matter asserted be admitted review considering Our is limited to (1) only where the declarant is unavailable deprivation whether there was a of Ga- (2) and where the defendant has had prior Fifth process brion’s Amendment due opportunity to cross-examine the declarant. rights or his right Sixth Amendment to an Cr Washington, v. 541 U.S. awford jury. impartial Gabrion has failed to dem- 36, 68, 124 S.Ct. 158 L.Ed.2d 177 onstrate the court’s action in remov- (2004). Here, present Gabrion was with ing juror denying the request for a at depositions counsel both and his counsel deprived right new trial him of his to an extensively cross-examined both witnesses. and, impartial jury generally, more ato His hinges on the “unavailabili fair trial. ty” prong of the Sixth Amendment. We review the admission deposition testimo Videotaped XI. Admission of ny place at trial in of a live witness for Testimony of Coleman abuse of discretion. United States v. and Westcomb (6th Campbell, 845 F.2d Cir. Gabrion contends that right his 1988). him against confront witnesses was violat witnesses, government ed because two Ka question is one of When Coleman, witness, thryn Westcomb and Linda testi health of the there must be “the by videotaped deposition requisite finding fied at trial. of necessity” which is Coleman that she saw specific” dispense testified “case order to Oxford Lake June 1987 in an older confrontation in open Maryland court. pickup 836, 855, model blue truck with a boat in Craig, 497 U.S. (1990).

back. accompanied gov- He was two men L.Ed.2d 666 When “unavailable” for trial. In unavailability were not Ston- claiming witness eminent is er, illness, elderly the two witnesses came to a specific inquiry the must due day severity and duration of station near the courthouse the police the focus on both inquire give depositions. must as to the trial to Id. at The court before the illness. of the illness to 211-12. The there held their una- symptoms Court specific physical vailability “legal the witness is fiction” and a whether be determine at to the courthouse Confrontation Clause violation. Id. ly to come able Here, court in depositions must determine were taken Ms. testify, and probability is the that the case several there Westcomb’s months before whether that, long enough “so trial and in Ms. case illness will last Coleman’s several importance to the of the trial. The chronic nature proper regard weeks before postponed.” severity trial cannot testimony, problems be their health was (7th Clusen, fact, explained F.2d 937-38 to the court. specifically Burns v. Cir.1986). that poor Ms. health was so Westcomb’s trial in progress. she died while the was

Here, government for the read a counsel to, did, into the trial record from the doctor letter Because Gabrion was able Ms. Coleman and Ms. Westcomb both at their de- cross-examine both witnesses explained that both women which he positions, government and because the suf- lung chronic suffer from “advanced dis- ficiently unavailability demonstrated their heart disease.” Tr. at trial, ease” and “unstable testify no Clause Confrontation say, my went on to “It is 1130. The letter violation occurred. The did District Court professional opinion [that] neither these admitting its not abuse discretion women could tolerate cross-examination videotaped depositions of Ms. Westcomb seriously jeopardizing open court without and Ms. Coleman. safety. It

them health and would XII. Examination of Gabrion Gov- surprise they put to me if were into an Psychiatrist ernment and Testimo- unusual stressful circumstance for [sic] ny Concerning in Rebuttal Ga- them to either have a heart attack or brion’s Mental Health Evidence as It simply stop breathing. my is therefor Mitigation strong opinion they that not be forced testify open court....” Id. Ms. West- Gabrion contends that he was deposition comb was wheeled into her on a prejudiced when prosecution per gurney oxygen and Ms. Coleman had an to call Dr. expert Gregory mitted witness during depo- tank available for her use testify in during Saathoff to rebuttal sition. Tr. at 1134. penalty phase of the trial because Gabrion adequate made a have of Dr. government sufficient show- did not notice Saa unavailability testimony. ing regarding Specifically, both thoff s Gabrion ar un through representa- gues women its in-court examination itself was timely correspondence physi- tions and from their because was not conducted until 8, 2002, specific cian. The doctor’s letter was as to March between the conclusion of guilt phase days the nature of each woman’s and two illness and before very opinion penalty phase. clear in his that the women’s start of the Gabrion also they production if Dr. jeopardized health would be were contends Saa testify testimony forced to at the trial. re- thoffs on March two Sowders, trial, days penalty phase lies on 997 F.2d 209 into the Stoner (6th Cir.1993), argue untimely. argues that the witnesses was Gabrion also prej- Defense had testimony report. adequate Dr. Saathoffs rebuttal was counsel of scope prepare udicial and of the time to to cross-examine Dr. outside Saa- provided. testimony report. thoff on the contents of his Gabrion As to the timeliness of the examination As to Gabrion’s that Dr. gov- of production report, and the testimony prejudi rebuttal Saathoffs was discovery men- request ernment fded a cial outside the of scope and the case-in- psychological tal health and for a evidence testimony highlighted chief because it Ga 18, January examination 2002—a little on history brion’s of toward violence women guilt a phase over month before animals, disagree. and we Gabrion pre defen- response trial commenced and to witnesses, mitigation sented numerous in indicating might dant’s notice he raise cluding experts. four mental health While mental health both the trial and issues mitigation designed evidence was penalty phases. February de- On poor demonstrate Gabrion’s upbringing, fendant amended notice of his filed an appreciation wrongfulness lack of for the intention to mental health testi- introduce conduct, of his and the existence mental mony through doctors. response five injuries health due to issues sustained in he utilize Gabrion’s notice that intended to accidents, mitigation car evidence also experts, five government mental health downplayed dangerous Gabrion’s future sought four of Ga- additional examinations ness, Instead, especially toward women. by experts. brion mental health The Dis- Gabrion described as simply was “nerdish” granted request only trict Court as to discipline problem. govern and not a Dr. indicated would Saathoff and sought to rebut ment the rather mild im “strictly limit” Dr. Saathoffs rebuttal tes- age presented during penalty phase timony to that to which the door evidence and instead a man a violent show and opened was by Gabrion first. Dr. Saathoff who cruel nature could be threat examined Gabrion March prison staff and other inmates. Dr. Saa day due first that Gabrion was available opined that thoff also Gabrion was malin he at- necessity prepare for and rebut the gerer findings two of Ga guilt phase tend the the trial. health experts. brion’s mental Even if Dr. some isolated remarks Saathoff We find that Dr. examination Saathoffs beyond scope mitiga went of Gabrion’s report timely. and District were Once the testimony, Dr. testimony tion Saathoffs Court had that Dr. could ruled Saathoff was a fair a whole rebuttal Gabrion, examine an took examination mitigation unfairly evidence and did place on first one of the dates that Gabrion Gabrion. prejudice available, during which was the break guilt penalty phases between the Complaint Unresolved XIII. Ethics the trial. counsel Dr. Defense received Against Filed Government days on March report Saathoffs five Witness, Ryan Dr. During after the examination. the break guilt penalty phases govern between the de- that the Gabrion contends submitting supple- fense counsel was also ment withheld evidence of an ethics com reports plaint against Ryan, mental records. is no Dr. Thomas There filed expert govern- government indication the record that the rebuttal for the delayed request impeached ment in its to examine that would have phase, testimony. caught Gabrion or that Gabrion was off his contends that also guard by right Amendment to confronta- the contents of Dr. Saathoffs his Sixth correctly found District Court also the District Court’s was violated

tion Dr. counsel of examination defense counsel to cross- defense to allow refusal unad- an unsubstantiated and Ryan com- about about the ethics Ryan Dr. examine proper and would by judicated matter was not a letter filed was complaint The plaint. jury, especially as the Psycho- only confuse the the American psychologist a with had not been Ryan’s Psychopathy Hare Checklist regarding Dr. logical Association agree with administered to Gabrion. We capital unrelated in an consulting work reasoning and the District Court’s decision complaint The substance case. allowing for not the use of the unsubstanti- report in a expert filed an Ryan that Dr. unadjudicated complaint and ethics ated diagnosing case de- Maryland capital issue. and find no error this dangerous psychopath with- as a fendant clinical interview of conducting a out Qualification The Death XIV. Instead, Ryan used Dr. had defendant. Jury the defendant on to score records argues that the District At the Checklist.” Psychopathy “Hare’s lopsided jury in a by engaging Court erred time, pro- conformed to methodology ju prospective in which process selection had been used standards and fessional penalty expressed pro-death rors who However, in light multiple capital cases. empaneled, while their anti- views were defendant in the Ma- objections by counterparts equally penalty death of the Hare ryland case to the use Check- were struck for strong opposing views list, Ryan report. his Dr. withdrew essence, is cause. trial in the At the time of Gabrion’s systematically un that the District Court’s Court, Psychological the American District jurors prospective treatment of vio even had not commenced formal Association right to an unbi lated his constitutional investigation against Ryan Dr. con- ethics jury ased under the Sixth Amendment.12 cerning complaint by psycholo- fellow requested The Association had re- gist. “A criminal defendant has the sponse Ryan, from Dr. which was received from a right impartial to an drawn Al- by the Association October 2001. that has not been tilted in favor of venire prosecuto though capital punishment defense counsel did not have selective Ryan’s response, challenges Dr. rial for cause.” Uttecht complaint actual Brown, 1, 9, 127 S.Ct. 167 the substance of the docu- 551 U.S. was aware of (2007) (citing Witherspoon v. Psy- the fact that the American L.Ed.2d 1014 ments and Illinois, 510, 521, yet adjudi- had not 391 U.S. 88 S.Ct. chological Association (1968)). juror who is Accordingly, the District 20 L.Ed.2d 776 “[A] cated the issue. that, most, ability her substantially impaired there was a his or Court found under the psycholo- impose penalty professional dispute between two [statutory death-penalty] framework can gists in a collateral matter that was not cause; juror if excused for but probative Ryan’s of Dr. truthfulness. Murchison, (1972), U.S. argues lopsided and In re 349 12. Gabrion also that the se 133, 136, (1955)— guarantees L.Ed. 942 violated his 75 S.Ct. lection structure process process equal protection due violations where the trial due and of the law found However, judge conflict of he suffered from an obvious under the Fifth Amendment. interest, allege only page legal argument which Gabrion does not exist- presents one brief, aspect of his only feder ed in this case. Because this effect in his and the two underdeveloped, we do not con- Village argument is al cases he cites—Ward v. Monroe ville, 57, 62, 80, 34 L.Ed.2d sider it here. 409 U.S. substantially about the of the death impaired, removal use (citing impermissible.” Id. Wainw serious part cause is those who have doubts are Witt, 412, 424, 105 469 U.S. S.Ct. right v. people” “the whose “will” the de- jury is (1985)). Although L.Ed.2d signed represent legal system. our Witt, Uttecht, involved Witherspoon jury that must life “[A] choose between penalty jurors, to anti-death challenges imprisonment capital punishment can applies impairment rule of substantial do must do nothing little more—and less— jurors atti prospective whose equally the express than conscience of the commu- the ideo opposite end of tudes rest nity question ultimate or of life Illinois, spectrum. Morgan See v. logical Illinois, Witherspoon death.” v. U.S. 391 2222, 719, 728-29, 112 119 504 S.Ct. U.S. S.Ct. 20 88 L.Ed.2d 776 (1992) to re (applying 492 L.Ed.2d Witt (1968). “community” The deeply is divid- empan a death sentence due to the verse penalty. ed on the death See David Gar- juror). single pro-death penalty eling of land, Institution: Peculiar America’s jurors initially express If who some Penalty Abolition, In An Age Death 36- penalty about the death are ex- doubts (2010). strenuously 55 If pro-death penal- jurors initially cause but cused for who ty jurors going permitted, are jurors in preference or inclination favor express against who lean the death penalty should in cases penalty of the murder are death Otherwise, not be removed for cause. case, as occurred the instant accepted, jury such a can lopsided hardly express cannot be “a cross- jury representative people.” the “will community.” Supreme of the section The In these light principles, recently sentencing a jury Court has made argument has some force. In written re requirement. Ring constitutional Ari- sponses questionnaires dur orally and zona, U.S. S.Ct. dire, ing prospective jurors voir three ex (2002). plenary have L.Ed.2d Juries pressed strong personal views in favor choose death in power to between life and death for all sentences convicted murdere jury way these cases. Thus the is rs,13 prospective ex may important jurors and three selected become the most pressed strong personal outcome. sentencing equally determinant views people scruples who against penalty.14 pro- Both have no the death All six 969.) (JA prospective jurors strong Similarly, three with The der.” he in voir said Wehler, pro-death penalty attitudes were aggravating Alan dire that “the once circumstances Herrington, Roy During (JA Terry 971.) and proven, Erickson. are that's it.” But Erick- dire, "premeditated Wehler voir said that for son in voir dire also said that he would listen that, something yeah, or I murder like do imprison- would evidence and consider life 2508.) (JA eye eye.” in an for an But 968-70.) believe (JA ment. questionnaire, Wehler said that he his prospective jurors strong 14. The three impartial- judge fairly would evidence and penalty Timothy attitudes Do- anti-death were Terry Herrington ly. stated was in that he Hemmeke, nahey, Shelly Eric and Abrahams. every penalty the death case favor of "in Donahey questionnaire, box his checked a voluntarily someone ... where kills another stating impose could that he never the death (JA 944.) except an act of war.” In other dire, know, penalty. Donahey words, intentional, At voir admitted you "if it was an personal "might” (JA 948.) his views influence sen- eye.” his eye ques- an But his (JA 862-63.) tionnaire, tencing decision. But when Herrington he would said that impose aggravators asked whether he could the death weigh mitigators would penalty required, Donahey law if the so clear- court's stat- follow the instructions. Erickson "Yes, (JA ly questionnaire penal- responded: I could consider it.” ed in his "the death 864.) involving ty appropriate mur- for all crimes Hemmeke also checked the box on counterparts, the Dis- pro-death penalty that un- made statements jurors spective deeply their mistakably suggested equivocation was silent on the trict Court against for or views-—either personal held and attributed the inconsistent re- of one respectively penalty, the death to their lack of a sponses of the two others —would faithfully applying the from prevent them college education. ag- statutory system weighing nuanced during penal- mitigators gravators and appear are troubled We pushed But the district ty phase. when ance of uneven treatment the Dis how counsel, equivocated and all six judge or penalty trict handled the pro-death Court they temporarily put could stated that jurors penalty during and anti-death beliefs, listen to evi- personal their aside course, process.15 selection Of dence, statutory aggravators weigh ju prospective determination of whether a of the six mitigators. responses regarding attitude ror’s near-perfect symmetry jurors presented him substantially impair applying will from ideological spectrum: on both ends of the statutory framework in penalty-phase the (but equivocating) pro death-penalty three some that cannot be volves inferences (but jurors, penalty three anti-death and transcript from a bare alone. “[T]he made jurors. equivocating) judgment part trial makes a court based But the revealed attitudes of the while juror, judgment on the demeanor of the a jurors symmetrical, were prospective by reviewing owed deference courts.” Ut treatment of them was District Court’s techt, 9, at 127 But 551 U.S. S.Ct. 2218. all of not. The District Court struck three systematical transcript suggests when the jurors for cause penalty the anti-death ly of equivocating pro- uneven treatment objection, it empaneled over Gabrion’s but penalty jurors, and anti-death it is increas jurors pro-death penalty all three of the ingly unlikely culprit that is differ the sole motion to strike for despite Gabrion’s jurors. ences in the demeanor of those that cause. The District Court reasoned definitively We need not resolve the issue penalty jurors equiv- of the anti-death two case, however, any ocated, this because error guilty that other one and was only penalty the tria “fuzzy thinking.” Regarding phase of their three affected of opinion yet questionnaire staling Supreme No Court consid- that he could never im- has penalty. pose the death Hemmeke said at death-qualification ered whether the standard "pretty voir dire that he was set in no strength apply equal under rules such (JA 938.) penalty.” death But Hemmeke circumstances, or instead whether those rules clear that if the facts were there and the made give way to the fundamental constitutional gruesome, maybe go murder were he could right values of federalism and of a defendant’s (JA 939.) penalty. with the death Abrahams a to a that is fair cross-section of the pen- questionnaire that the death stated in his Fell, community. United v. States crimes, alty appropriate for certain but in J., (2d Cir.2009) (Calabresi, 283-86 dis- expressed change voir dire he a of heart and banc). senting rehearing from denial of en A possibly in- said that his moral values could strong argument exists that the latter should (JA terfere with his choice of sentence. 953- occur, thereby making gov- it harder for the 55.) pellucidly But he also stated that he penalty for anti-death ernment strike cause weigh aggravators mitigators and could jurors prosecutions in states that have abol- (JA 956.) required by the law. penalty. Although the death Id. we do ished here, irony we note the not reach issue 15. Our concern is amplified by the fact empaneling emphati- the District Court’s an prospective jurors were all drawn from a cally penalty jury pro-death in an anti-death penalty by state that has abolished the death legislative penalty and state constitutional enactment. state.

345 Arizona, ing Ring l,16 already the Dis reversing we are U.S. pen (2002). new Ring remanding for a trict Court S.Ct. 153 L.Ed.2d 556 independent ground on the alty phase invalidated Arizona’s death stat- penalty excluding relevant improperly that, provided capital ute—which after a evidence. guilty by jury, defendant was found a judge trial himself would find aggravating Constitutionality Act’s

XV. required imposition factors Penalty Evidentiary Phase penalty death sentence—as unconstitution- Standard al under the Sixth Amendment to a right Gabrion next asserts Ring, 588-89, by jury. trial 536 U.S. at Penalty facially Death un Federal Act is Ring 2428. The core holding S.Ct. constitutional, that the provides because it penalty is that where death re- statute Rules”) (“the Rules of Evidence Federal quires aggravating facts to be found before apply presented to material do not penalty imposed, facts those during penalty of a death parties phase by jury, must be judge. found trial. This issue is one first Id. 122 S.Ct. 2428. Gabrion asks Circuit, every in this but other impression us to this fur- reasoning extend one step rejected circuit which has confronted it has ther that those aggravating and hold facts See must, Act. upheld matter, as a constitutional proven Fulks, States v. United F.3d jury using to the evidence un- admissible Lee, (4th Cir.2006); United States v. 374 der He apparently raising the Rules. is (8th 637, Cir.2004); United F.3d 648-9 argument this constitutional for the first Fell, (2d v. 135, States 140-46 appeal, time on and so our is for review Jones, Cir.2004); United States v. 132 52(b); plain error. Fed.R.Crim.P. United (5th 232, Cir.1998). join 241-42 We F.3d Murphy, States v. 241 F.3d 450-51 circuits, reject argument, Gabrion’s those (6th Cir.2001). the Act and decline find unconstitutional on this basis. argument consciously takes a inspiration its decision of District the provides part in that

The Act relevant Fell, States v. United Court in 217 penalty phase penal- the of a during death (D.Vt.2002), rev’d, F.Supp.2d 469 F.3d trial, ty re- “[[Information is admissible (2d Cir.2004), which found the relevant of gardless admissibility its under the provision the Act of unconstitutional under governing rules admission of evidence the Due Process Clause of Fifth except may criminal trials that information and the Amendment Confrontation if is out- Clause probative be excluded its value Amendment. That by Sixth decision weighed danger creating of unfair thorough a issues, was reversed and well-rea- prejudice, confusing the mislead- 3593(c). Circuit, of jury.” opinion soned the Second ing the 18 U.S.C. Ga- largely analysis dispos- evi- we follow their principal argument brion’s is that this constitutionality argument in dentiary ing standard’s is of Gabrion’s the instant by Supreme reason- foreclosed Court’s matter. trials, guilt phase Regarding capital applicability special outside the con- of "broad Moreover, sentencing”). any Supreme suggested capital that errors Court has text of qualification require respect reversal. be harmless with to the in death do not error would McCree, 162, 183, guilt phase overwhelming v. due to the evi- See Lockhart U.S. ("re- dence, (1986) opinion, of 106 S.Ct. 90 L.Ed.2d 137 detailed elsewhere this ” jecting] Witherspoon guilt. the contention that has Gabrion's factors Ring required proof aggravating of that the Fed by noting begin

We a judge, a and not to are not collection to be made to of Evidence eral Rules reliable, the limitations and reliabili- proof rules: that should of constitutional Rules, presented by evidence ty guaranteed introduction of would best be coextensive with are not govern proven the Rules other matters before which required the Constitution. limitations juries in court. federal States, 493 U.S. v. United Dowling See obviously reliability about are Concerns 668, 107 L.Ed.2d 708 342, 352-54, 110 S.Ct. when the determination is apogee at their (1990) of evi in the admission (finding, death, literally life and as is the one of Rules, trial, an error under dence at capital sentencing proceedings. case in er declining to find a constitutional but Ohio, See, U.S. e.g., Lockett Fell, ror); (following 144-45 360 F.3d at (1978) 2954, 57 L.Ed.2d 973 98 S.Ct. and other Dowling cases reading (stating qualitative difference “[the] establish concluding “[the Rules] penalties between death and other calls ceiling nor the of constitu neither the floor greater degree reliability when evidence”). tionally permissible Where imposed”). sentence is evidentiary rule is not inconsistent given problem with Gabrion’s is his Congress principle, a constitutional that, capital sentencing contention modify authority ultimate retains “the context, only Rules are the means Dickerson v. United or set aside.” [it] assuring reliability, so much so that their States, 428, 437, 530 U.S. constitutionally required. application (2000). 147 L.Ed.2d 405 contrary, unique context of the On Act, Penalty In the Death Con- Federal penalty phase object ultimate —the evidentiary gov- enacted an standard gress which is not the determination of the ob- erning penalty phase capital prose- jective guilt fact of the defendant’s or in- that the Rules do not provided cutions abstract, nocence but the much more irre- only one limitation on the apply, and left ducibly moral determination of whether “information” (notably, the admission of individual, already adjudicated guilty, an speak of provision relevant does not even mercy presents deserves or dis- death — “evidence”): “may” that information be ex- reliability tinct concerns that could be outweighed if is probative cluded “its value different, thought to merit a plausibly by danger creating prejudice, the of unfair much broader set of limitations on what issues, confusing misleading or may The information be considered. Su- 3593(c). § jury.” 18 U.S.C. Gabrion long recognized has this to preme Court appeal argues prin- that the constitutional See, e.g., Gregg Georgia, the case. be ciple provision with which this is inconsis- 428 U.S. (and Congress’s of tent therefore outside (1976) (“We think it L.Ed.2d 859 desirable enact) authority to is the one announced in jury for the to have as much information factors, Ring: aggravating proof possible when it makes the before as part of which is of the business decision.”); sentencing Williams v. New penalty phase, proven jury must be to a York, 241, 246, 337 U.S. S.Ct. beyond a reasonable doubt. The link be- (1949) (noting prac- L.Ed. 1337 “sound Ring, primarily tween which concerned having tical “different eviden- reasons” identity of the trier of fact and not the tiary sentencing trial and govern[] rules limiting standards the material introduced a it, procedures”). may distract present argument What before that, guilt phase in the from its narrow deter- reliability: argues is Gabrion since guilt concerning mination innocence—a defen- a array wide of acts committed character, good dant’s or bad as demon- by Gabrion demonstrating his future dan acts, through prior strated for example— gerousness, which the Government sought may be vital to its determination of prove wheth- an aggravating was tending factor particular guilty er defendant before it penalty make death a appro more society’s punishment. priate deserves ultimate sentence. Uncharged alleg conduct Accordingly, Congress’s decision to relax edly by committed Gabrion discussed dur evidentiary specific standard for this ing penalty phase included: acts of is no purpose cruelty, constitutional defect. animal prior acts assault and misconduct, sexual and even un three also may contends that the Act charged homicides concerning individuals only deemed if be constitutional we create disappearance whose the Government a new “federal capital murder” offense sought to link to Finding Gabrion.17 no treat aggravating would factors as information, error the admission of this offense, as, elements of the argues, he reject argument. we by required Ring. He continues that we offense, not citing should create such an A. Standard of Review avoidance, principles sepa- constitutional powers, ration of and the longstanding procedural posture of this issue is proscription against the creation of com- complicated. somewhat In the their death law A mon crimes. similar was notice, the Government gave no- rejected by raised and Eighth Circuit tice, pursuant to the provision relevant Lee, in United States v. 648- Act, of their intention prove as a so- (8th Cir.2004), reject and we it here as “non-statutory” called aggravating factor well. We do not need to construe the Act that Gabrion “likely to commit crimi- creating already spec- new offense not nal acts of violence in the future which ified; above, complies as stated the Act would a continuing and serious threat Ring by requiring aggravating facts safety to the lives and of others.” See 18 jury, to be found judge. 3592(c) U.S.C. (authorizing the consider- “any [i.e., ation of other other than the Constitutionality XVI. of Other Acts statutory enumerated aggravating factors] During Information Admitted Pen- aggravating factor for which notice has alty Supporting Phase “Future given”). been Gabrion then made a com- Dangerousness” Non-Statutory as a prehensive motion to dismiss the death Aggravating Factor notice, penalty challenged the consti- challenges Gabrion next the tutionality ad of dangerousness this future during penalty phase mission the aggravating of infor variety factor with a argu- of unadjudicated mation concerning ments, criminal including that it was unconstitu- conduct and other “bad acts” unrelated to tionally vague and that it was irrelevant to charged the murder of Rachel Timmer sentencing the decision. He further asked During penalty phase Court, man. the alternative, of Ga the District in the to trial, Government introduced, brion’s the limit concerning information this factor to primarily through testimony, information that which concerned Gabrion’s future appeal, In his governing brief on Gabrion treats these identical to that his claim concern- allegations concerning uncharged last acts, ing uncharged the other we treat the two separate homicides as a claim of error. Be- together. claims of error legal question essentially cause the involved is

348 The claim for the of prison setting. arguing application a like his

dangerousness during in all re- the Federal Rules of Evidence motion court denied Gabrion’s penalty phase, primary reason Gabrion spects. limitation, for this which imposing offers appeal, chal on Gabrion Now a he would have us elevate to constitution- intro specific pieces information lenges requirement, reliability: argues is he al concerning phase penalty during duced reliability guaranteed that would be best acts,” uncharged “bad array a wide limiting acts in- concerning which that was nev on largely the basis acts for may presented formation criminally convicted those acts. er already defendant capital which has argument this relationship between tried been and convicted. in his to dis arguments made motion his discussed, But, already as penalty notice made before penalty miss the death phase presents a different for ad- context is, least, to say the the District Court dressing reliability than the guilt phase, Nonetheless, even were we to unclear. requires jury to which make a determi- arguments ap now on construe Gabrion’s of considerably scope. nation narrower sufficiently to the peal being similar evidentiary The Act’s loose standard prior ones made in his motion such aggravating its broad definition of factors they potentially preserved appel were for (balanced with, II opin- as Section of this failure, review, candidly late admitted his demonstrates, correspondingly ion a broad ap in their by appellate counsel brief factors) definition of a represent peal, contemporaneously to renew them by Congress maximizing preference during introduction information’s capital the information about defendant penalty phase plain limits our review to jury during available to the the penalty v. Kelly, error. United States Cf. policy phase, decision is consistent (6th Cir.2000) (reaching 655 a similar Supreme precedent Court this analogous of a conclusion in the context area, already as demonstrated cases ex defendant motion in limine to whose rejecting cited above contempo clude evidence was not renewed See, e.g., about Rules of Evidence. raneously to that admission evidence’s 153, 204, v. Gregg Georgia, 428 U.S. trial). (1976); L.Ed.2d S.Ct. York, 241, 246, Unadjudicated Williams New U.S. B. Prior and Fu- Acts (1949). L.Ed. 1337 Dangerousness ture hesitant, does appeal appear Gabrion on are under the especially We contest the proposition danger- future limited review under circumstances case, sufficiently ousness relevant to the deci- rule lim- craft constitutional making iting sion infor- phase introduction other acts qualify non-statutory as a fac- aggravating mation to for which the has acts defendant 3292(c). Instead, adjudicated criminally tor under U.S.C. guilty. 18 been We join every to be appears core other circuit has decided concerning unadjudicated that information in holding the issue that there is no such prior capital acts of convicted defendants constitutional barrier. See States United (10th Cir.2010) penal- Lujan, should not be admissible the during v. 603 F.3d 850 ty trial phase capital prove (allowing unadjudicated future introduction dangerousness, solely by phase); the during penalty virtue of fact homicides United Basham, unadjudicated. that those Much v. acts were States 331-32

349 (4th Cir.2009) (unadjudicated proffered by sexual mis- factors the defense “don’t conduct); Corley, ledger United States v. 519 balance the book.” prosecution The (7th Cir.2008) pointed also out that (unadjudi- F.3d 723-25 Gabrion had not ex- Lee, homicide); pressed remorse for the murder. cated United States Gabrion (8th Cir.2001) appeal argues (unadjudicated these remarks F.3d were arson). improper assaults, designed and were burglary, to incite an improperly retaliatory vengeance-based Accordingly, the District Court did not sentencing jury. decision from the Find- plainly admitting err in information con- ing impropriety no prosecutor’s the re- cerning unadjudicated by acts committed marks, reject argument. we Gabrion. analyze prosecutori

We claims of Dangerous- C. Limitation of Future al misconduct based on improper state Dangerousness ness Evidence to two-part ments under a test: we ask first Setting the Prison whether the remarks were improper, and they then whether flagrant were and war Finally, argues Gabrion that we should rant reversal. Carroll, United States v. follow the imposed by limitation some Dis- (6th Cir.1994). F.3d 1387-88 This trict Courts and restrict the introduction claim can be resolved under the part first dangerousness of future information to the test, of the Carroll as the remarks were danger the present defendant would under simply improper. Despite Gabrion’s life without the possibility parole, the apparent suggestions to contrary, only other possible capital result of a sen- prosecution argued never See, tencing hearing e.g., under the Act. “duty” death, had a impose or that Peoples, United States v. 74 F.Supp.2d Gabrion owed the family victim’s a debt he (W.D.Mo.1999) 930, 932-33 (finding that only could repay with his life. “ledg “dangerousness should not be measured er book” reference was a proper way of the same manner as if a defendant were to ” articulating the position Government’s ‘uncaged’ declining permit that, under the weighing of aggravating unadjudicated introduction of burglaries by Act, factors set up during penalty However, phase). we need tipped balance in the Government’s here, not decide this issue as Gabrion does favor. The comment about Gabrion’s unadjudicated not indicate which of the “debt” did not suggest that Gabrion owed acts alleged only would be relevant outside life; indeed, family victim’s his context, prison and it is unclear to us prosecution making very point which acts would fall outside of this limita- that the debt could not ever be repaid, no tion, impose were we to it. matter the sentencing result of their delib argumentation erations. This is fair from Propriety by XVII. of Remarks evidence, impact victim allowed the Su During Closing Prosecutor Tennessee, preme Court in Payne v. Argument 808, 827, U.S. 115 L.Ed.2d challenges next the pro (1991). priety of prosecution remarks made during closing argument Similarly, the remark about De phase. During closing argument, fendant’s lack of expressed remorse does prosecution argued that Gabrion “owe[d] not fall outside the acceptable bounds of repay” debt he can never argumentation. to Rachel Tim- In principal case Ga family, merman’s error, and brion cites for this claim of family of Rachel Timmerman’s capital that a sen- of several found Third Circuit to prove im- members called Government’s had been jury’s determination tencing victim-impact aggravator, aggra- and that by prosecution’s tainted permissibly jury only was one of four that the vator closing argument that the during stating beyond present found to be a reasonable even have the common defendant “didn’t circumstances, light of these it I doubt. say sorry I’m for what did.” decency to (3d Lehman, is clear that this remark did not substan- 925 F.2d Lesko v. sentencing jury’s Cir.1991). tially influence the deter- this remark to The court held Gibson, in Hain v. mination this case. on the defen- improper an comment Cf. (10th Cir.2002) 287 F.3d 1239-40 Fifth Amendment assertion of his dant’s in simi- (finding any error the admission of Id. at against self-incrimination. privilege evidence harmless be- here, impact lar victim But the Fifth Amendment 1544-45. yond a reasonable doubt where had issue; in Gabrion waived privilege is not aggravating also found other factors to be it, at trial deliver- testifying both and Moreover, penalty to the of present). as fac- ing an allocution. Government’s death, already vacating are we tually accurate reference to Gabrion’s for a sentenc- remanding new expressed during lack remorse these ing hearing. improper was not an at- appearances two him tempt penalize exercising to his Jury Allegations XIX. Bias Based right, appro- but rather an constitutional on Post-Trial Juror Comment concerning priate Gabrion’s Newspaper character. next contends that Gabrion Testimony XVIII. Mother Victim’s District Court abused its discretion in re Penalty Requesting the Death fusing request hearing his for a post-trial States, pursuant to Remmer v. United contends his due (1954), U.S. S.Ct. 98 L.Ed. 654 process rights were violated when the vic jury foreperson quoted after the was in a mother, Robinson, tim’s Velda was asked post-trial argument Rapids the Grand you you’re want to know “How do us how your “I saying Press as of Gabrion: read respond Rachel?” and going remember I off paper religiously. knew he was “By being him in the ed the first die Finding wall no abuse [before trial].” contem Michigan.” state of The defense discretion, reject argu we Gabrion’s remark, objected to poraneously ment. objection, ordering the court sustained the now con response stricken. Gabrion obligated The District Court is appeal that it was reversible er tends hearing conduct a Remmer whenever the process. ror and a denial of due “a claim of defense raises colorable extra juror.

Assuming—without deciding—that an neous influence” on a United States Owens, (6th Cir.2005) error arose relation to this isolated re- mark, influ (giving examples and that such an error was not of extraneous striking prior dealings cured the District Court’s ences: business with the defendant, record, work for the local any applying from the we are confident that attorney, conducting an out-of- beyond such error would be harmless district doubt, discussing the trial experiment, reasonable the standard for error court analysis employee). Act. with an As the District Court provided for 18 U.S.C. 3595(c)(2). argu- only recognized rejecting one Ms. Robinson below, Alleged Brady not the Remmer XX. ment this is classic Violation Con- cerning Competency situation, Challenge juror engaged a has where to Government Witness extraneous communications unauthorized Instead, during trial. the extraneous com- Gabrion contends that the District pre-trial, munications here occurred con- Court erred in rejecting his motion for a entirely foreperson’s reading in the sisted newly new trial on the basis discovered pre-trial of media accounts of Gabrion’s evidence, or, alternative, in the a violation behavior, fully during and were disclosed Brady v. Maryland, 373 U.S. dire, foreperson voir where the indicated (1963). S.Ct. 10 L.Ed.2d 215 capable setting that he was aside what discovery relevant evidence—the of which gleaned reports he had from media argues grant should him a new entirely Lloyd Westcomb, would decide the case based on trial —is the fact that a witness, Government presented information the courtroom. submitted to a com petency evaluation in a state court pro Preexisting knowledge concerning ceeding related to a criminal charge case, against him preexisting opinion pending during or even some as Gabrion’s trial. merits, to the Because the fact of the give competency does not rise to a evalua plainly tion was not light material in presumption against jury impartiality. (6th information Rivers, by disclosed during Westcomb DeLisle 161 F.3d testimony, his Cir.1998). reject we argu We decline to hold that contact ment. coverage juror media with that a has dis during closed voir dire rises to the level of employs This Circuit a four- extraneous requiring communications a part test in deciding newly whether discov hearing.

Remmer As the District Court (1) ered evidence merits new trial: realized, opposite to reach the result would new evidence must be discovered after tri impossible make it for a District Court to (2) al, the evidence could not have been any juror seat any pre-trial knowl (3) discovered earlier with due diligence, case, edge concerning a for fear of the the evidence must be material and not being verdict’s disturbed a post-trial (4) merely cumulative impeaching, hearing on the effect of that pre-trial the evidence likely produce would an ac Further, knowledge on deliberations. it is quittal if the case were retried. United purpose unclear what hearing Remmer Barlow, (6th States v. context, would given serve that the Cir.1982). plausible arguments There are relevant already communications had been that this evidence all prongs fails four dire, during disclosed voir and that test, materiality Barlow but is the juror would be testifying barred from point at which its failure is most obvious. about their effect on deliberations Fed During testimony, his Westcomb disclosed 606(b) ju eral Rule of Evidence (limiting him, both the pending charge against testimony ror about extraneous influences the fact that diagnosed he had been aas to “whether prejudicial extraneous infor paranoid schizophrenic. assuming Even improperly mation was brought ju to the submitting the fact of his to a compe ror’s attention” or any “whether outside tency pursuant evaluation charge to that improperly influence was brought to bear would impeachment have been admissible juror”). (the upon any The District Court did evidence District Court did not think was), its rejecting added, abuse discretion in Ga it it is difficult to see what request cumulative, brion’s for a hearing. opposed Remmer value would have government’s argument in of these that Gabrion’s impeachment light the as presented alternative in dangerousness weighed future favor two disclosures. Gabrion’s same reason. imprison- fails for the of life Brady argument penalty instead with- purportedly evidence Impeachment ment. meet a Brady must

held in violation granting Jury the materiality threshold to merit A. Refusal to Instruct about Ga- Bagley, v. a new trial. United States Courtroom Behavior brion’s 473 U.S. contends Gabrion that the District Court (1985) materiality as (defining L.Ed.2d 481 jury it refused the erred when to instruct is of which the nondisclosure evidence phase it con during penalty could in the confidence to undermine “sufficient an Gabrion’s behavior as sider courtroom outcome”). evidence’s cumula- Given the his inability indication of his to control (not significant nature to mention the tive separate and therefore as a conduct serve jury’s ver- supporting the other evidence against factor to be mitigating weighed case), difficulty in this we have no dict argues factors.18 also aggravating Gabrion the District conclusion accepting Court’s give that the refusal to an instruction such nothing that there was about Westcomb’s an on “explicit implicit” served as or bar that would under- competency evaluation addressing closing arguments. the issue in jury’s verdict. mine confidence the extent that courtroom To type mitigating behavior served some Jury XXL Instructions factor, adequately it was covered when Penalty Phase mitigating fac- District Court related the The standard of review jury, including to the that defendant tors whether, as a jury instructions viewed personality suffers from “severe disor- whole, they fairly adequately submit and ders,” injuries “traumatic have brain which jury. applicable the issues and law to the neurological impairments,” led to and A to deliver a re District Court’s refusal dysfunction impaired which his “brain has only quested instruction is reversible error ability to control his J.A. at conduct....” (1) a correct proposed if the instruction is 2025. Gabrion’s courtroom behavior was (2) law, substantially statement factor mitigating separate not a from those (3) by an actual jury charge, covered above, and the was listed District Court important give so failure to substan give to not instruc- proposed correct tially impairs defendant’s defense. And, addition, in- tion. Blanchard, F.3d United States they “any- structed that could consider Cir.2010). (6th argues that against else” that would thing mitigate failing give the District Court erred if imposition penalty, of the death even not (1) following requested instructions: specifically mentioned the defense. during the that his courtroom behavior at 2025-26. J.A. sentencing phase of trial could serve as (2) factor, separate give requested Nor did the failure to any argu- or power impair the Bureau Prisons had the instruction foreclose during closing restrict Gabrion’s interaction with ments defense counsel argue communication with Defense individuals both inside otherwise. counsel did prison, thereby mitigating phase and outside the many during occasions that, inability requested 18. The "Mar- his conduct.” instruction was tion of his to control 652). (Proposed vin Gabrion's is an indica- Instructions at J.A. at in-court behavior in- problems, that Gabrion’s mental brain could consider as one of the mitigating juries, resulting inability and the to control factors the fact that “the defendant will mitigated danger himself his sentence. The fact not be a in if the future he is jury specific highly the did not receive a confined in a structured and secure (J.A. 2025). about courtroom be- prison.” Second, instruction Gabrion’s federal way jury the precluded testimony havior no from Gabrion elicited from Cunning- considering along mitigat- outlining it with the other ham the restrictions available to they ing evidence heard. the Bureau of a danger- Prisons secure

ous inmate. Had the given District Court Concerning B. Bureau Instruction instruction, it likely govern- is that the Regulations Prisons’ requested ment would have a countervail- ing telling jury instruction the that no Gabrion contends that the District prison totally is secure and confinement in give erred when it failed to a Court re a maximum security prison federal is not a instruction quested regarding Bureau of guarantee that Gabrion will never threaten regulations regarding dangerous Prisons’ anyone or harm By in the future. allowing regulations inmates and the administrative Cunningham testify instructing By to it to control available Gabrion. re jury they the could consider as a instruction, questing this Gabrion wanted mitigating factor that Gabrion would not jury securely to show the that he could be if danger housed in a secure federal prison despite government’s held prison, addressed, Gabrion’s concerns were dangerousness that his future and the District Court did not abuse its was so severe that he should be executed in declining give discretion the request- it in keep because would be difficult to ed instruction. mates, prison female guards, and others on Gabrion, prison staff safe from as well Accordingly, jury guilt verdict at the difficult to prevent sending as him from phase of the trial is affirmed and the ver- threatening persons communications to dict of death at sentencing phase prison. argues outside the reversed. The case is remanded to the necessary the instruction is because the District for a Court new trial on the sen- government objected testimony by one tencing phase of pursuant the case to 18 Gabrion’s witnesses in the U.S.C. phase, Cunningham, Mark Bu concerning regulations BATCHELDER,

reau of Prisons’ and how the ALICE M. Chief Bureau controls Judge, concurring inmates considered to be in part dissenting safety a risk to the part. of other inmates and prison objection, Despite staff. howev I would affirm the district court in its er, Cunningham testify was allowed to entirety conviction and sentence. —both inmates, security to the different levels for Therefore, I generally concur por- monitoring as well as the of inmate com majority’s tions of the decision that affirm

munications, confinement, and visitation judgment of the district court without dangerous. for those inmates considered necessarily joining majority’s reason- impaired by

Gabrion’s defense was not ing agree or discussion. I that we need First, give the refusal to this instruction. not reach the issue contained in Section gave jury District Court an in- I join XIV but do not in the associated encompassed struction that con- respectfully dicta. I from dissent those portions cerns when instructed the that it of the majority’s decision that re- court, statutory unacceptably vague, specifically language Sec- district verse the infirm, constitutionally and therefore III. tions II and sentencing that a court must instruct holds II, majority conducts de In Section penalty-phase jury may impose that it that the of Gabrioris claim novo review1 if penalty only beyond it finds misinterpreted misapplied court district aggravating that the fac- reasonable doubt provisions of the Federal Death certain outweigh mitigating factors. tors (FDPA), Penalty Act of 1994 18 U.S.C. “any” the By reading §§ word 3591-3598. respectfully disagree I must with both of 3592(a) factor”) (“any mitigating §in and I that a rea- holdings. these would hold 3593(c) (“any information relevant to a § 3592(a) 3593(c) §§ reading sonable of and factor”) un mitigating unqualified as and sentencing impose allows a court to some limited, majority pro that the holds these argument on the the limits evidence capital mandate that a defendant visions may in that mitigation, defendant offer and jury any “mitigating” may offer to the properly court so in this the district did i.e., any evidence or argument, evidence or Similarly, I hold that the case. would conceivably that make a argument could Constitution does not dictate the manner juror question appropriateness the of the death-penalty aggravating which and “any” unlimit penalty. Reading death as mitigating weighed, factors are to be and necessarily the within requires ed inclusion therefore the district court could not and provisions Michigan’s policy of these two way did violate the Constitution the majority The against penalty. the death jury. it I affirm instructed the would the therefore concludes that the district court district court. by excluding Michigan erred reference to law. I. III, majority In Section the considers sentencing phase, gov- Gabrioris claim that the district court vio Prior to the the right process lated his constitutional to due ernment moved the district court in li- by misinstructing jury prohibit on the burden mine to Gabrioris counsel from factor, proof weighing aggravating arguing, mitigating as a that factors, mitigating again Michigan prohibits conducts state constitution IV, penalty. a de novo review.2 The district court in death Mich. Art. See Const. (“No jury only § structed the that it need find 46 providing law shall be enacted aggravating “sufficiently that for penalty.”). factors the death Gabrioris coun- factors, outweigh” Michigan’s prohibition, which sel conceded that is alone, language quoted directly mitigat- from the statute. taken not be a direct would 3593(e). factor, § majority ing explained actually See The finds the that he claim, violation, statutory we 2. Absent would review Absent a claim of constitutional challenge challenge to the district court’s exclusion of we would review a to the district jury evidence for an of dis- an abuse of discretion. General court’s instructions for abuse Joiner, Svoboda, 136, 141, Elec. Co. v. 522 U.S. 118 cretion. United States v. 633 F.3d 512, 479, (1997); (6th Cir.2011); Boyle v. S.Ct. 139 L.Ed.2d 508 United see also States, (10th Lujan, States v. Cir. United 556 U.S. 2010) ("We (2009) ("A judge review a 173 L.Ed.2d trial district court’s order excluding penalty phase choosing evidence from the has considerable discretion in 3593(c) capital language long case under 18 U.S.C. for of an instruction so discretion.”); point adequately an abuse of United States v. substance of the relevant (2d Cir.2008). expressed.”). Pepin, 514 F.3d imposition was before argue intended to last week concern- ing guilt, beyond this case would be has found a reasonable circum- arbitrary, given totality of the within doubt the crime occurred territory stances: federal or on federal property. This relitigated. already cannot be It’s potential case there is the this [I]n litigated. specific been It’s not a factor argument arbitrary, it would be that can litigated, and to make men- arbitrary potentially Michigan for this tion of it would be relitigating saying, victim, Michigan Michigan with a case Well, look, two, if it happened three defendant, in this somewhat accidental away, hundred feet it wouldn’t be. body finding property, on federal issue, course, may it’s an that we like to presents This itself in jury] say make this a multitude of [to [death circumstances before this penalty] arbitrary one[,] is an decision. In virtually every [c]ourt. body hap- location of the is somewhat [a]ppeals [c]ourt and the [c]ourt has penstance given and could be a factor that clear markings [the that it’s not a sub- sentencing jury] ject could consider. to instance, Were be discussed. For body violations, drug this found feet the other there are certain partic- [in] direction, ularly pertains cocaine, [case] would be Michi- as to crack gan and there no [court] would be death where there are some heavy rather sen- an penalty possible. arbitrary It’s fac- tences for crack cocaine distributors [un- with, der permitted tor that we feel we should be federal compared say, law] argue. Michigan to law. And this would [c]ourt permit never nor could by this [c]ourt [ ] alia, government replied, The inter permit law a defense get up counsel to inappropriate political argu- this was an say know, and jury], You [to under jury ment and “an invitation for this to Y, state a penalty law this has of X and provides cast aside what federal law for.” but here we are in federal court and it granted The district court motion and therefore, has a much higher penalty, so argument, holding barred the that it was this, you ought jury. to do 3592(a): factor mitigating not under This isn’t for—that isn’t material mitigating factors as set forth in the case. That isn’t material to the 3592(a) of 18 United States Code talks record[,] background, defendant’s or specific participation about ones: the character. That isn’t material to the crime, impairment capacity, case, circumstances of the nor does it duress, cetera, cetera; equally et et cul- other, mitigate way one or the and it is defendants, pable which is what some- proper subject not a It matter. would ago; one said here a little while and in fact permit jury speculate and it says: victim’s consent. And then it would in fact an insert extraneous ‘Any other factor the defendant’s process. matter into the record[,] character!,] background, or Thus, “preclud[ed] the district court de- any other circumstances of the offense argument concerning fense lack of mitigate against imposition of [a] penalty death under the law of the State of death sentence.’ Michigan mitigating factor.” as Now, jury beyond has found doubt, to find At argument, reasonable and had be- the close of evidence and jury cause that was one of the four essential the district court instructed the particular specific mitigating elements of the offense that consider factors and a violation of appeal, of the On Gabrion claims the commission “anything else about statutory4 a constitutional3 and a back- both Marvin Gabrion’s crime or about mitigate right present evidence that would or character ground sentencing jury theo penalty imposition of against the —on doubt,5 arbitrariness,6 ries of residual specifically argued ... or not whether counsel, disproportionality to the sentences meted supported which are but defense equally culpable seven out for other defendants.7 After almost by the evidence.” deliberation, is no need to dwell on the constitu jury imposed There hours of claim, The ma- tional is untenable.8 penalty. death 4. See 5. See 3. See jurisdiction was reversible jurisdiction when there remained residual jury tion.”); Supp. penalty jurisdiction.”). pellant Reply Br. at 42-43 ment have tion when an pellant related sider the fact that reiterating Michigan sion of 18 U.S.C. tal ror.”). offense was Michigan should have been allowed to under 18 fact that (Mar. made this consider as a ("This Eighth district (alleging "lingering ("This crime and a 'circumstance of the and, doubt about federal (Assigned 'catch-all' Argument not (Dec. fact that offense,' and, to consider as a Michigan is as been Appellant Appellant Appellant Br. at 118 7: 22, is an Amendment.”); [absence allowing Br. at 45 such, pursuant court violated the should have been instructed to con- 12, 2005) law] provision Error 28: "The failure "Michigan Michigan a this crime ánd instructed is not a death 2010) (Supplemental Reply Argu- that U.S.C. capital prosecution.”); Supp. committed important Michigan 10: "Failure to allow the arbitrary 227 clearly Appellant mitigating Br. at 118-19 "[t]his Br. (Dec. of the death § as § 3592(a)(8), (Assigned of 18 Michigan is jurisdiction a death at to consider the fact that mitigating circumstance 3592(a)(8) doubt as to whether as such, pursuant to the 14, 2009) is an is not Appellant Reply Br. at not a death factor related to this 120 within the exclusive a non-death to consider the fact U.S.C. Reply Eighth a a circumstance that [constitutional] penalty jurisdic- fact that the feet was 'circumstance of important consider.”); Ap- (Dec. (Dec. 12, 2005) (Dec. penalty jurisdic- 'catch-all' Error 28: "The a death (Dec. 12, 2005) penalty Br. at 28-29 (Supplemen- and Amendment to allow the violated the jury 3592(a)(8), 12, offense,' all that penalty Lockett jury should to the state,” provi- under factor 2005) death 2005) jury Ap- er- 7. See 6. See tion], than tencer ... not be covered 228 feet north of where it cerning "equally (referring death execution would not have been a United gan”); Appellant Reply Br. at 43 and territorial as a fense occurred defendant's the circumstances of the offense S.Ct. Fourteenth Amendments 2005) (arguing der the constitution of the State of Michi- of the Court announced that "the 2009) authority of a court to fendant is the evidence not mained residual doubt about federal his offense.” Id. at 604 n. tion”); maritime and territorial (Dec. (alleging al doubt about federal [that] difference between life [who] would not face the death acter, States "Nothing "geographical happenstance that In Lockett death.” 2954, jurors mitigating factor, no death penalty Appellant Appellant (asserting prior ultimate 12, 2005) [and States”); Appellant Reply Supp. Appellant proffers that "an in this in a 57 L.Ed.2d 973 character record, could v. therefore in bearing under federal The Lockett outside the penalty that "had the Ohio, parenthetical 'arbitrary' as a basis for a sentence less that "there remained residu- Br. at 119 opinion Br. at 120 jurisdiction or more precluded arbitrary (asserting have or the circumstances of on the defendant's or jurisdiction”). 438 exclude, could be considered [so] [t]his record and ^[1] limits the traditional require Br. at 45 culpable plurality jurisdiction Michigan jurisdic- exclusive maritime U.S. factor death” 227 feet made the law”). (1978), plurality from any aspect (Dec. 12, 2005) (Dec. that "there re- of the United to a case con- body 98 S.Ct. 2954. 586, 604, that the sen- imposed considering, that had barring Eighth defendants based reiterated: irrelevant, a Br. penalty”). 12, ^[2] been dis- (Dec. 14, (Dec. jurisdic- penalty this of- any was[,] char- 2005) at 42 of a on a de- un- the 12, 98

357 phrase not even address it and there- eludes that jority ‘any mitigating “[t]he does fore, rejects by implication. presumably, factor’ plainly includes information about statutory majority accept But the does Michigan’s policy against penal- the death claim. ty.” majority finds that the district court The universally But such a broad view is not specific by “failfing] erred to consider held. At least one member the Su language allowing ‘any of the statute miti- this view. See preme reject would Court 3592(a) factor,’” FDPA, §§ in the gating Collins, v. Graham 461, 490, 506 U.S. 113 3593(c), and relies on United States v. 892, 122 (1993) (Thomas, S.Ct. L.Ed.2d 260

Davis, (E.D.La.2001), F.Supp.2d J., (“By concurring) requiring that sen proposition phrase “any that tences be allowed to ‘consider’ all ‘rele mitigating qualifica- factor” contains “no circumstances, mitigating vant’ we cannot limitation,” tion or and therefore the de- mean ... are circumstances necessar present argue is entitled to fendant ily relevant for constitutional purposes if Id. ... “any mitigating period.” factor they any have conceivable mitigating val original; quotation internal (ellipses ue.”). appear rejected We have such a omitted). majority marks then de- broad view in this Circuit as well. In mitigating anything fines factors as Guida, (6th Owens v. 549 F.3d 419-20 juror conceivably question” “could make a Cir.2008), rejected we the defendant’s con appropriateness imposing tention By proposed in a given reading case. evid “any” “mitigating”, majority con- “automatically ence9 was relevant” and Guzek, 517, 526, adopted holding Oregon The Court this statement as a v. 546 U.S. Oklahoma, 104, 110, Eddings (2006), v. 455 U.S. S.Ct. 163 L.Ed.2d 1112 (1982); (and rejected) 71 L.Ed.2d 1 Court accord considered the "residual theoiy Scroggy, way doubt” Kordenbrock in different and its rea- (6th Cir.1990) (en banc). soning applied can be to the arbitrariness argument proposes that Gabrion here. To Michigan The fact that law does allow not analogize Sentencing traditionally Guzek: penalty aspect for the death is not an of how, where, concerns not the defendant com- record, personal Gabrion’s character or nor is crime, argu- mitted the but the evidence and (i.e., plan- it a circumstance of the offense the body— ment at issue here—the location of the ning murdering and of Rachel Timmerman where, how, only concern not he did so. The daughter). argues and her that he jury decided this issue—where Gabrion com- right present mitigat- has a constitutional to during guilt mitted phase. the the crime— ing argument sentencing evidence and to the thereby This evidence and would

jury on theories of residual doubt about feder- previously attack a determined matter and the jurisdiction, al arbitrariness due to loca- typically discourages law collateral attacks of body, disproportionality tion of the and this kind. See id. equally culpable other defendants. But these Harris, 37, 50, Pulley v. 465 U.S. 104 arguments lack constitutional bases. 871, (1984), S.Ct. 79 L.Ed.2d 29 the Court 164, 174, Lynaugh, In Franklin v. 487 U.S. comparative proportionality held that review 2320, (1988), 108 S.Ct. 101 L.Ed.2d 155 constitutionally required. "Any capital is not plurality [in Court said: "Our edict sentencing may occasionally produce scheme Eddings way ] Lockett and in no mandates aberrational outcomes.” Id. at juries, capital reconsideration in the sen- 871. tencing phase, of their 'residual doubts' over a guilt. lingering defendant's Such doubts are sought mitiga- 9. Owens to admit evidence in 'character,' any aspect petitioner’s not over prosecutor tion that the had offered her " 'record,' or a 'circumstance of the offense.’ plea agreement conditional for a life sentence (later withdrawn), reasoning compelling This is even more when and that she had offered to Owens, applied jurisdiction. plead guilty. to residual doubt about 549 F.3d at 403. 358 list) merely she one simply because non-exclusive as sub-cate- “wishe[d]

admissible factor,” argued The dissent present” gory “any mitigating it. Owens of which per evidence have could yet because there are others unarticulated. Id. spare defendant’s suaded view This renders Graham Owens in- life, meaning clearly within “fall[s] apposite, predicat- were inasmuch both ” evidence,’ ‘any mitigating at relevant id. (i.e., Eddings ed on Lockett and consti- (Merritt, J., dissenting), major but the 431 minimum), directly tutional refutes the ity rejected argument, at expressly id. reasoning of Johnson. reject has The Circuit also Seventh There certainly are courts that sub “A fac mitigating ed such a broad view. admissibility scribe view” of “broad against sentencing tor arguing is a factor view) (i.e., least five Davis district —at death; it is an argu this defendant to not courts at But there last count.11 are also gener

ment against courts not. The most thorough that do Johnson, al.” v. United States critique of presented Davis’s broad view is Cir.2000).10 (7th appar “This is Taylor, in United v. 583 F.Supp.2d States ent that the list mitigating from the fact (E.D.Tenn.2008), an FDPA case factors in the does include the [FDPA] (some sought in which the defendant to admit ugliness say) harshness or would immorality capital death evidence other federal penalty, but about cases only to the specific factors defendant. See which other murderers were not sen 3592(a), § in particular sub death, U.S.C. persuade tenced in an effort to (a)(8)....” section Id. sentencing jury sentencing him to comp death disproportionate by would be counter-argument, which stems “argue[d] The defendant [that] well, from is that FDPA Davis as arison.12 the FDPA than the is broader Constitution “substantially broader than what the Su- factors,” its consideration of preme has declared to the mini- Court at id. and the district court acknowl mal requirements under the Constitution.” edged Davis, that other district courts had ac is, at 464. F.Supp.2d That cepted admissibility, that broad view of id. using “including phrase following” 3592(a), (quoting at length Samp United States Congress made the list illus- (D.Mass. son, exclusive, 194-95 F.Supp.2d trative not and included the Su- 2004) (co- Davis, preme (quoting constitutional minimum 132 F.Supp.2d Court’s 463-64)). 3592(a)(8) § dified as subsection in the in Taylor But the district court Kelly, Fed.Appx. 10. v. Accord Schmitt 189 evidence it would mislead because 257, (4th Cir.2006) (quoting issues); 264 n. 5 John confuse the United States v. Lad- Bin ); Caro, F.Supp.2d son en, United States v. 483 (S.D.N.Y.2001). F.Supp.2d 156 370 (W.D.Va.2007); 520 United States v. Ede lin, (D.D.C.2001). F.Supp.2d 180 76 specific 12.The evidence that the defendant sought testimony to admit was of Kevin "the See, Moonda, e.g., United States v. No. McNally dispositions regarding the of other 1:06-cr-00395, 2007 WL at 2071924 *1 potential they capital compare cases and how (N.D.Ohio 13, 2007); July v. United States Taylor, to the F.Supp.2d instant case.” 583 Bodkins, 4:04-cr-70083, No. 2005 WL McNally attorney at 927. is an with the Fed- (W.D.Va. 11, 2005); May at *8-9 1118158 Penalty Project. eral Resource Counsel Death Honken, F.Supp.2d United States v. McNally appellant Id. at 927 is also n. 2. (N.D.Iowa 2004); Samp United States son, present counsel of record in (D.Mass. F.Supp.2d 193-98 2004) signatory (adopting case the on the briefs submitted the broad view of admissibili ty, excluding proffered appeal. in this but nonetheless the character!,] recognized any that “the Seventh Circuit or also other circumstance of statute mitigate against imposi- construed the more narrow- the offense that [has] Johnson, 675), ly,” (citing id. F.3d tion of the death sentence. in proceeded “engage statutory con- Second, Defendant’s reading of the

struction,” id.: statute would render the inclusion of Applying superfluous. the traditional tools of statu- ‘Other factors’ ‘Other fac- construction, tory provision. concludes tors’ is catch-all If stat- [c]ourt interpretation permitted beyond the Seventh Circuit’s ute other factors what persuasive. begins by factors,’ more in [c]ourt is contained ‘Other the stat- considering language of the statute ute would contain a description broader provision as a whole. One of a statute is than what is contained ‘Other factors.’ not considered in isolation or in a vacu- Under reading, Defendant’s the statute Rather, um. courts must consider implied contains an ‘other factors’ ad- statutory provision’s phraseology light dition to the actually ‘Other factors’ list- purpose of the overall structure and ed, thus rendering super- ‘Other factors’ Thus, legislation. must [c]ourt fluous. every to interpret provisions make effort Third, misplaced finds [c]ourt provisions that other in the statute so emphasis on the ‘any’ ‘any word miti- inconsistent, superflu- are not rendered gating Contrary factors.’ to Defen- ous, meaningless. assertion, dant’s the FDPA’s use of the First, statutory construction can- ‘any’ word does not indicate Con- [that] ejusdem generis applies here: gress greatly intended to expand the specific things ‘Where a statute lists fol- of mitigating definition factors over one, general lowed a more the canon required by the Constitution. The stat- ejusdem generis provides guidance. factor,’ utory language ‘any mitigating ejusdem generis, Under we attribute the 3592(a), § 18 U.S.C. is the same as the same characteristic of discreteness Constitutional requirement ‘any rele- preceding shared all the items to the vant factor’ mitigating Lockett and [in question.’ term in Applying this canon Eddings The FDPA’s exclusion of the ]. shows that the first seven factors are bearing word ‘relevant’ has no because eighth Although similar to the factor. elsewhere statute makes clear non- specific the list of seven factors is illus- relevant information is inadmissible. 18 trative, exhaustive, not description 3593(c). U.S.C. ‘Other factors’ does allow for factors considerations, Based on these entirely of an different nature from the [c]ourt concludes [that] All

illustrated factors. the illustrated required by factors FDPA are not as factors concern the defendant or the contends, broad as Defendant but are offense, including circumstances of the rather in line with the seven enumerated culpability, participation, punish- description factors and the of ‘Other fac- ment of Applying other defendants. contained in tors’ the statute. ejusdem it generis, is evident that the (citations characteristics of the enumerated miti- Id. at 934-35 and quotation omitted). gating descrip- Taylor factors are similar to the marks The district court testimony tion of ‘Other factors’ as those concern- therefore concluded that “such record, a ing background, proper defendant’s or inadmissible and is not for [wa]s 360 13 at that the district court‘had not abused its jury.” to a Id. 933.

presenting it. at excluding discretion Id. 635. rejected have Davis’s courts Circuit v. United States broad view well. court, sought In the district Caro had (1st Sampson, F.3d 44-45 Cir. 486 jury instruction on as a “residual doubt” 2007), sought to admit evi the defendant Davis, mitigating factor and cited 132 other federal defen dence “that numerous 467-68, authority. at F.Supp.2d Unit multiple convicted of murders had dants Caro, F.Supp.2d ed States v. argued sentenced to death”14 and been (W.D.Va.2007). n. 7 The Caro district may “trial court not restrict that the expressly rejected argument: court this presentation of relevant evidence offered system envisioned Under mitigation possible in of a death sentence” court, therefore, capital Davis defen- view). (i.e., the The First Circuit broad in guilty dant is found twice: first “This cannot disagreed, saying: argument guilt phase and then if the defendant true; were, a literally capital if it defen desires, guilt can revisit his in dant would have an unrestricted license to sentencing phase. Supreme The confusing misleading the most or introduce required two-stage Court has never this it long marginally evidence as as was rele guilt Congress determination and did reject vant. so absolutist a view.” Id. We Hence, provide not so the. FDPA. 45; Purkey, at accord United States v. argument support. Davis lacks sufficient (8th Cir.2005) (“The F.3d [FDPA] explain: Id. The court went on to very erects low barriers to the admission capital at sentencing hearings evidence [Supreme] Because the Court has nev- ... this does not mean that [b]ut er found that a defendant has constitu- defense carte blanche to any has introduce right tional to a doubt residual instruc- wishes.”); all evidence it see also tion, any entitlement to this instruction Mitchell, v. United States 502 F.3d must come from the applicable capital (9th Cir.2007) (limiting relevant miti statute. The FDPA that ‘in provides gating evidence to “evidence which tends determining whether a sentence of death logically to prove disprove some fact or defendant, imposed is to be on a circumstance which a fact-finder could rea any finder of fact shall mitigat- consider sonably deem to have mitigating value” 3592(a). ing § factor.’ 18 U.S.C.A. omitted)). (quotation marks mitigating statute then lists seven fac- it tors. While is true this list is not Caro,

In United States exhaustive, (4th meant to be the absence of Cir.2010), 634-35 the defendant statutory doubt as a mitigating residual sought to admit “a letter he had written to factor government is instructive. The government offering plead guilty” argued Congress but the district court the time the excluded the letter as enacted, FDPA was was aware of the argued irrelevant. Caro that “the letter 3593(c) holding was admissible under it Franklin that residual doubt because supported constitutionally is not a accep- required factor of miti- and, responsibility,” gating tance of but the Fourth circumstance had elected rejected so, Circuit language and held to do could have included i.e., presently pending appeal testimony This case is 14. This is the same evidence— McNally sought Kevin the defendant Taylor, the Sixth Circuit as United States v. —that Taylor, F.Supp.2d to introduce in at No. 09-5517. supra discussed note 12. sentencing, Higgs’s At expressly authorizing sought counsel the statute argue jury, mitigating “to the as a circum of residual doubt. consideration stance, Higgs that would not have been (certain citations, editorial Id. at 519-20 eligible penalty for the death if the mur omitted). marks, quotation marks jurisdiction ders had occurred within the Therefore, in con- the district court Caro because, Maryland” of of State “under cluded, suggestf FDPA ] “the words of the law, Maryland penalty may only the death proper mitigat- is not a that residual doubt on the in imposed ‘triggerman’ cases sought at 520. also ing factor.” Id. Caro this,” suggesting such as id. at that a 328— pos- without the jury instruction on “life disproportionate death sentence would be factor sibility parole” as similarly to the of other sentences situated well, rejected and the district court as in Maryland. Higgs’s defendants counsel (“A Johnson, miti- quoting argue sought also “because the arguing against factor is a factor gating took in an place murders area where Ma death; it is sentencing this defendant ryland had an prop easement over federal argument against not an the death erty, [Higgs] could not have known that he general.”), concluding in that “this factor is was on federal land when he committed wholly irrelevant to these considerations.” murders,” suggesting residual id.— appeal Id. did not these issues. Caro or that imposition pen doubt of the death closely analogous The case most case to alty arbitrary would be under the circums Higgs, Gabrion’s is United States v. tances.15 The district court excluded this (4th Cir.2003), F.3d which con- argument. evidence and associated Id. On kidnapping cerned the and murder of affirmed, appeal, the Fourth Circuit ex in the National three women Patuxent plaining: in Refuge, George’s Wildlife located Prince 3592(a) provides Section that ‘in de- County, Maryland. Higgs and his accom- termining whether a sentence of death is plice enticed the women to this secluded defendant, imposed to be on a the finder premeditated purpose location with the fact any mitigating shall consider fac- murdering Higgs them. at 290. drove Id. tor.’ In addition to seven enumerated car, supplied the women his the murder factors, requires statute consider- murder, weapon, and orchestrated the but ation of ‘other factors in the defendant’s accomplice actually his shot and killed record, background, any or character car. Higgs them while waited Id. other circumstances of the offense that the Patux- Although Maryland, located mitigate against imposition death Refuge ent National Wildlife is federal id., Higgs sentence.’ asserts that his un- jurisdiction, property under federal so knowing presence juris- within federal prosecutor charged Higgs the federal un- diction, statute, opposed jurisdiction to the der federal tried the case in feder- court, Maryland sought penalty, al id. State where he would have been guilty ineligible at 294. The returned verdicts death sen- tence, charges. on all Id. is a circumstance of the offense was, fact, specific posed property Mary- 15. This his owned the state of Appellant, jurisdiction the Fourth Circuit. See Brief of Maryland’s land and under ais 01-3, Higgs, 2002 WL United States No. totally and a circumstance of offense arbi- (4th 2002) Aug. 33958104 at 143 Cir. trary exposed Higgs factor that to the death ("The occurred on a fact these murders penalty.”). op- property as state easement over federal penalty if the murder had oc- against imposition of the death mitigates north, i.e., disagree. We curred 228 feet to the within the death sentence. jurisdiction Michigan, be- State Michigan cause does not have the death penalty that the death is An assertion penalty. majority The holds that because it is jurisdiction in one improper 3592(a) FDPA, 3593(c), §§ required bottom, is, in another at a allowed court to this evidence the district admit surrounding the debate reflection of limitation, argument without and re- penalty, which is propriety of (i.e., lies on the “broad view” the Davis legislative for policy matter of a view) But, admissibility. forego- as the such, it was not error to As branch. demonstrates, ing appears discussion mitigating it as a factor refuse to submit greater weight authority is in this case. against Davis’s broad view. And I note omitted). (citations marks Id. and editorial additional obstacles. a murder on Higgs committed federal Maryland. Gabrion committed property inflexibility The of such an absolute Michigan. property a murder on federal proposition appears to render it limitless.16 subject would not have been to the Higgs today, Michigan’s After law against Maryland law. Ga- penalty death under a penalty mitigating death is factor. But subject have been to the brion would not had, law, suppose Michigan not a but penalty Michigan death under law. Both merely pending legislation to abolish the disparity to their re- sought argue this penalty death a court admit that as —must sentencing juries and both district spective mitigating a pend factor? What about a permit argument. courts refused to It ing Supreme a campaign Court case or easy distinguish is not the two cases—or promise? Pope condemns the death arguments. sug- defendants’ Both two that a mitigating factor to be —is doubt, arbitrariness, gest residual and dis- argued sentencing jury? gen to the Read proportionality disparity based on the be- erously, admissibility this broad view of law. tween state and federal capital entitles a defendant’s counsel to present argument evidence or no matter that Maryland The Fourth Circuit held tenuous, tangential, specula how or even law was not circumstance of the offense only tive. The limit is counsel’s own crea mitigating Higgs, or even a factor. tivity creativity. lack of And if coun 328; —or Taylor, F.Supp.2d F.3d at cf. may present argument, sel such no matter (“France’s policy capital punish- unappealing jurors, how ineffective or capital] ment does not make [a [defendant day there will come when we hold coun more or [in States] United less deserv- failing sel ineffective for to do so? ing sentencing.”). of a death This same analysis appropriate present in the case. Furthermore, particular argu sought argue counsel Michigan appears the ment —about to be law— circumstance, jury, an endorsement of nullification of fed eligible Washington, Gabrion would not have been eral law.17 Hall v. Cf. fact, 3593(c) majority’s a stated limita- in—the view contains found Davis or the may tion: "information be excluded if its rendition of it. probative outweighed by danger value is creating prejudice, confusing unfair 17. There are those who hold a different view issues, given misleading jury.” that deference must be But this limi- anywhere policy preferences "contempo- tation does not fit —nor is it to be to local

363 (7th Cir.1997); 742, stage 750 New Mexico moved for cause at the voir dire of a F.3d Clark, 119, 793, 128 N.M. 990 P.2d 806 capital they express v. trial if an inability or (1999). that courts are not We have held unwillingness faithfully “to impartially and See, e.g., nullification. to endorse law”). apply the 1013, Krzyske, 836 F.2d States v. United Finally, approach this an in will create (6th Cir.1988) (“A jury’s ‘right’ to 1021 consistency application in the of the FDPA not, any it does reach verdict wishes how when Congress’s intent was to ensure uni ever, infringe duty on the of the court to Little, formity. Rory See K. The Federal jury only as to the correct law instruct Penalty: History Death and Some case.”); applicable particular to the see Thoughts Department About the of Jus Powell, also United States v. 955 F.2d Role, 347, tice’s 26 Fordham Urb. L.J. 434 Cir.1992). (9th 1206, fact, 1213 “it is (1999) (“While might possibly one argue duty juries in criminal cases to take favor of a federal death penalty regime court, apply the law from the that law lacks national uniformity —one they to the facts as find them to be from permit would similar federal crimes and McGrath, v. the evidence.” Merced 426 defendants to receive life or depen death Cir.2005) (9th 1076, 1079 (citing Sparf F.3d dant on regionalized, the district and cul States, 51, 102, 15 v. United 156 U.S. S.Ct. tural differences—that does not appear to 273, (1895)); 39 L.Ed. 343 accord United Congress be the statute has enacted nor is (6th 1020, Avery, 717 F.2d 1027 States v. policy Attorney it the stated Gener Cir.1983). urge counsel would al.”); see also United States v. Acosta-M jurors disregard federal law favor artinez, (1st Cir.2001) 252 F.3d 20 Michigan and decline to impose law (“There is little reason to think that the death because would be unavail defining federal interest in punishment Michigan majority able under law. The for federal crimes would have been consid holds that the court must allow this. And ered Congress to be a matter for local yet, juror expressed if a at voir dire power.”). Congress veto If intention, had intended prosecution could have that jurisdic to treat non-death-penalty juror Wainwright removed for cause. See 18 Witt, 412, 426, FDPA, tions differently 469 105 under the it cer v. U.S. S.Ct. 83 (1985) (jurors may tainly L.Ed.2d 841 be re- could have done so. But it did not. See, environmental, rary community e.g., Brig- rights, values." John tion to the sorts of civil ham, gun trafficking requirements Unusual Punishment: The Federal that are en- States, through ways Penalty forced federal criminal law in Death in the United 16 Wash. (2004) always legislation”). Poly (praising & mirrored in state U.J.L. 214 "the authority apply of the United States to its opposition currently jurisdictions criminal law in the face of local 18. There are with- Alaska, Hawaii, principle, penalty: a matter of else we would have no out the death Illi- nois, Iowa, Maine, Massachusetts, rights (quotation Michigan, federal civil law” marks omitted)); Little, Minnesota, Mexico, Roiy Jersey, K. The Federal Death New New New York, Island, Vermont, Dakota, Penalty: Thoughts History and Some About North Rhode Role, Wisconsin, Rico, Department Virginia, Justice’s Fordham West Puerto count, (1999) (recognizing Urb. L.J. "the the District of Columbia. At last there past courageous Attorneys eight role of some U.S. were federal death-row inmates from enforcing rights non-death-penalty jurisdictions: federal civil laws in the these Carlos Fell, (West (Vermont), antipathy”); Virginia), face of local United Caro Fell States Donald Cir.2009) J„ (2d (Raggi, (Michigan), Dustin Honken Marvin (Iowa), (Iowa), concurring rehearing) Angela in the denial of en banc Johnson Ronald Mikos (Illinois), (North Dakota), (arguing proposition Rodriguez that this would "be re- Alfonso (Massachusetts). jected opposi- Gary Sampson [issue] out of hand if the were See reasons, join I cannot foregoing beyond For the finds a reasonable doubt that the majority’s adoption aggravating outweigh the Davis broad factors mitigat admissibility. ing majority I would read factors. The recognizes view of 3593(c) 3592(a) § § having unique this is a among view the Circuits19 and, undeterred, Eddings same limits as the Lockett and thorough offers a rebuttal line of cases. See United States v. Rodri- other circuits’ reasoning. those And the (8th Cir.2009) 775, is, course, guez, majority 581 F.3d 815 engage entitled to (“The declining reasons for But liberty Justices’ exercise. we are not at recognize apply Supreme a constitutional rule with rebut the Court—we are bound FDPA.”). equal I force would its decisions. [to] provisions hold that these allow sentenc- Marsh, 163, In Kansas v. 548 U.S. 165- ing court limit evidence 66, 2516, 126 (2006), S.Ct. 165 L.Ed.2d 429 in mitigation, to be offered and that the the Court was asked to consider the con properly district court did so in this case. stitutionality of a statute that required the imposition penalty of the death “when the II. sentencing jury aggrava determines that At sentencing, jury Gabrion asked for a ting mitigating evidence and evidence are concerning instruction weighing ag- is, in equipoise” when the aggrava —that factors, gravating mitigating which ting “outweigh” factors do not mitigat required would have jury “to decide all, ing factors at but in equal are balance. you unanimously persuaded whether are In reaching its conclusion—that beyond a aggra- reasonable doubt that the scheme is constitutional —the Court ex vating proved factors outweigh any so mit- plained that it has “never held that spe igating justice factors that cannot be cific method for balancing mitigating and served absent sentence of death.” The aggravating factors in a capital sentencing court declined and instead instructed the proceeding constitutionally required.” only that it need find that aggra- 175, Id. at 126 S.Ct. 2516 (quoting Frank vating “sufficiently outweigh” factors lin v. Lynaugh, 164, 179, 487 U.S. 108 factors, language which is quot- 2320, (1988) S.Ct. 101 L.Ed.2d 155 (plurali ed directly from the statute. See ty opinion) (citing Zant v. Stephens, 462 3593(e). 862, 13, 2733, U.S. 875-76 n. 77 (1983))).20 L.Ed.2d 235 appeal,

On Gabrion claims that in struction process, denied him due in viola Consequently, I must respectfully dis- tion of the Fifth and Eighth Amendments majority’s sent from the holding today. I to the Constitution. majority agrees would hold that because the Constitution and holds that a sentencing court must does not dictate the manner in which instruct the penalty-phase jury that it may death-penalty aggravating and mitigating not impose the death unless factors are weighed, to be the district (5th Cir.2007);

http://www.deathpenaltymfo.org/federal- Purkey, United States v. 428 death-row-prisoners. 738, (8th Cir.2005). F.3d 748 Indeed, rejected Five Circuits have this view. the Constitution would allow “a 19. Fields, United States v. requiring 516 F.3d prove by 950 scheme the State to a mere (10th Cir.2008); Mitchell, preponderance United States v. aggra- the evidence that the (9th Cir.2007); Marsh, F.3d outweigh mitigators.” United States v. vators Sampson, (1st Cir.2007); (Scalia, J., 486 F.3d U.S. at 187 n. 126 S.Ct. 2516 Fields, United States v. concurring). 345-46 not violate the Constitution court did jury in accordance with the

instructing the of the statute. language

III. summary, I would conclude that the obliged to admit district court was concerning evidence or Michi- gan’s penalty; abolition of the death nor that, jurors required was it to instruct the impose penalty, they in order to “beyond must find a reasonable doubt” aggravating outweighed factors Therefore, factors. I re- spectfully portions dissent from these two majority’s

of the decision. I otherwise majority’s judgment. in the concur RE- CENTER FOR BIO-ETHICAL FORM, INC., Gregg Cunningham, and Murray, Plaintiffs-Appellants,

Kevin NAPOLITANO, capacity in her Janet as Secretary Department of Home- Security, Holder, Jr., land and Eric H. Attorney capacity in his General States, Defendants-Appel- the United lees.

No. 10-1439. Appeals, United States Court of Sixth Circuit. Argued: 2011. June Aug. Decided and Filed: 2011. Rehearing Rehearing En Banc

Denied Oct.

Case Details

Case Name: United States v. Gabrion

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 3, 2011

Citation: 648 F.3d 307

Docket Number: 02-1386, 02-1461, 02-1570

Court Abbreviation: 6th Cir.