United States v. Mitchell

America, STATES UNITED

Plaintiff-Appellee, MITCHELL, Defendant- C.

Lezmond

Appellant.

No. 03-99010. Appeals, States Court

Ninth Circuit. 15, 2007. Feb. and Submitted

Argued Sept.

Filed REINHARDT,

Before: STEPHEN RYMER, BARRY PAMELA ANN G. SILVERMAN, Judges. Circuit RYMER; Opinion by Judge Dissent Judge REINHARDT.

RYMER, Judge: Circuit Mitchell, Navajo, appeals his Lezmond degree for first conviction and sentence murder, 1111, 1153, felony §§ 18 U.S.C. murder, carjack- §§ 18 U.S.C. death, ing resulting 18 U.S.C. involving other and related federal crimes Navajos Navajo on the Indian reservation A on Arizona. convicted Mitchell capital punish- all counts. Mitchell faced Penalty Act ment under the Federal Death (FDPA), 3591-98, §§ 18 U.S.C. because carjacking resulting conviction for Following penalty phase hearing, death. jury unanimously returned a recom- mendation of a sentence of death as to of the two were mur- each victims who district dered. sentenced carjacking Mitchell to death on count jury’s in accordance with the verdict. We requiring that no reversal conclude error occurred in connection with either convic- sentence, tion or and therefore affirm. I 2001, Mitchell, years then 20 October old, Kinlicheenie, Gregory Jason Nakai Jakegory Nakai to rob a trad- decided Rumann, Celia M. Assistant Federal ing post Navajo on the Arizona of the side AZ, Defender, Phoenix, Public and Michael year- Indian reservation. Mitchell and 16 O’Connor, AZ, Tempe, appellant P. for Johnny Orsinger old out from Round set Lezmond Mitchell. Rock, Arizona, Mexico, Gallup, for New Drake, R. Daniel Assistant United they October 27 to look for a vehicle could Attorney, Q. Kirby, States and Vincent during robbery. They steal to use Phoenix, Attorney, Assistant United States bought one knife and stole another while AZ, appellee the United States. Hitchhiking there. back reserva- tion, they picked up by were a trucker who part way. took them Meanwhile, Sunday, on the afternoon of (63 old) Alyce years October Slim Together, they and Jane hands of Jane Slim. year-old granddaughter, and her nine Defiance, Doe, go .body Arizona to dropped parts (along Fort the severed left Tohatchi, hoped hole, Mexico where Slim New glove) with into the and Denison, a Betty the services of to secure pulled them. The torsos were into covered ail- leg person, traditional medicine they the woods. Later burned victims’ drive that the It is a 35 minute ments. clothing, jewelry, glasses. and Mitchell pewter-colored double made Slim’s two Orsinger and washed the blood from the They got to truck. pickup cab Sierra GMC stream; nearby day, in a knives next was p.m. about Denison unable Tohatchi alco- also washed the knives with Mitchell her, another medicine thought but to assist hol to remove blood. Dale, woman, help. able to might Marie mother, Marlene, con- Jane’s became Lakes, Slim, to Twin She, and Jane drove Slim, cerned when Jane and who was Mar- arranged ap- where Slim New Mexico mother, not returned home. lene’s had day. next Dale for the pointment with phone to call on She tried Slim her cell home The three returned to Denison’s Sunday night, morning then the next off around 5 they dropped Denison where home, got checking no answer. After but granddaughter and her p.m., then Slim school, at Slim’s house and Jane’s Marlene they time were seen left. That is the last missing persons report Tuesday. filed a alive. Wednesday, On October somehow, route, and Somewhere Post, Trading Red Rock a convenience got into Slim’s Orsinger Mitchell and Navajo gas store and station located in front, and Jane were in truck. Slim territory, was three masked robbed right-rear passenger seat supplied Kinlicheenie the masks as men. stopped in the left. Slim Orsinger and car for use after the parents’ well as his Sawmill, Arizona, and to let Mitchell near abandoned; Mitchell carried a car, truck was Orsinger Orsinger but start- out 12-gauge shotgun, Jakegory Nakai stabbing her with a knife and Mitchell ed Yazzie, joined up being in. ended stabbed 33 rifle. Slim had a .22 caliber Charlotte times, right, with both from the left the floor manager, mopping the store was wounds on her hands that her, sixteen incised when one of the robbers assaulted fought the attack. Once indicated she pulling striking her with his firearm and dead, rear body pulled her onto the this, Watching another her a desk. behind to her. Mitchell put seat. Jane was next Allen, clerk, Kimberly behind ducked store truck some 30-40 miles into the drove the A saw Allen and shelving. second robber grand- mountains with Jane beside her the counters. When pushed against her body. mother’s know the combination Allen said she didn’t safe, her, you “If There, body dragged gunman out. to the told Slim’s us, truck and told you cooperate Jane was ordered out of the lie to me or don’t with lay Mitch- by Mitchell “to down and die.” you.” to kill He told Allen going we are twice, didn’t ell cut Jane’s throat but she did, gas pump. turn As she she- on the large Orsinger dropped die. and he then outside, which pickup parked truck saw head, on her which killed her. rocks beige as a double cab Chev- she described containing blood tied Twenty-pound rocks into a room rolet. Yazzie was taken back were found near the bodies. Jane demanded, pro- and she where the robbers Mitchell, vided, Nakai and money. more Orsinger Mitchell and returned registers emptied Kinlicheenie the cash dug site with an axe and shovel. tied down Allen the heads and and then Orsinger hole while severed safe They ing up, butterfly Yazzie in the vault room. made off them a silver knife fell $5,530 purse. with and Yazzie’s pocket. from a drove back to Kinlicheenie’s The robbers mother, Gregory Daisy Nakai and his place car and he followed the truck to a Nakai, consented to a search of the house. about a mile and a half south of Wheat- technician, FBI agents, Two an evidence fields, Arizona, where Mitchell set fire to it Navajo investigator and a criminal con- using Trading kerosene stolen from They ducted the search. retrieved the They Post. returned to the Nakai resi- butterfly silver knife and found a second split money. got dence and Mitchell butterfly knife with a black handle. Trace from Kinlicheenie. $300 amounts of blood from the silver knife were happens,

As it a customer matched to Slim. The search also girl- and his pulled parking up newspaper friend into the lot while the turned a that had a front robbery in progress page story was and saw two of Trading robbery, on the Post gunmen, the masked one of whom was and a cell phone belonging to Slim. wearing purple gloves. The customer also Agent Navajo Duncan and a criminal beige, saw a extended cab Sierra or Silver- investigator met at with Mitchell the Na- parked ado model truck tank. the fuel vajo Department Investiga- of Criminal girlfriend The customer’s took down the p.m. signed tions around 1:30 Mitchell plate gave license number and it to one and, rights waiver of his Miranda after the Trading employees. Post The next coin, flipping a agreed to talk. When day, Navajo police officer discovered an asked about his whereabouts on the week- pickup abandoned truck a a half mile and end of October Mitchell stated that he Wheatfíelds, Arizona, south of within the drinking had been around Round Rock. He Navajo Indian reservation. The officer being denied disappear- involved gasoline, portions detected the odor of and robbery. ances and Mitchell then agreed of the truck’s interior were burned. It examination, polygraph to a which FBI turned out to be Slim’s 2001 GMC Sierra Special Agent Kirk conducted about 5:30 pickup. investigators Criminal discovered p.m. Mitchell was reminded that his Mi- purple glove latex and Halloween masks rights applied signed randa still and he truck, inside the as well as Mitchell’s fin- FBI consent form reading after it. Kirk gerprints and Slim’s blood. told Mitchell that the test results indicated tip, Based this information and a he had inculpatory lied. Mitchell made investigators focused on Orsinger, Orsing- robbery agreed statements about the and father, Mitchell, er’s Jakegory Nakai and tape to a again recorded interview after Nakai, Gregory among others. On the being rights. reminded of his Miranda 4, 2001, morning of November Agent FBI Mitchell admitted his involvement in the Ray Duncan conducted a briefing with Trading robbery, Post and also confirmed criminal investigators and SWAT team of- present that he “things hap- when Navajo ficers of the Department of Law pened” to agreed Slim and Jane. He Enforcement. Tribal warrants were is- help investigators find the bodies. The sued and Gregory executed at the house of p.m. interview ended around 11:00 Mitchell, Nakai, Jimmy Nakai. Greg- and Orsinger day, was arrested the next No- ory Nakai were arrested. Mitchell had 5, 2001, he, too, vember agreed and to take asleep only been and wore a t-shirt and agents Orsinger to the shortcuts. He bodies. had diffi- pants, asked which so, culty he told an FBI agent doing agents were near a bunk called for Mitch- bed on the agent pick- floor. As the brought ell out. Mitchell directed idea, because he would also Orsinger’s the site. While officers to Navajo police Kirk that acknowledged to severed the feet. there, have in effect and rights were his Miranda 2, 2002, superceding July On indict- Ac- questions. more to answer agreed charging Mitchell and ment was returned Mitchell stated agent, cording murder; murder, felony Orsinger with that the lady,” “old he stabbed had death; robbery; resulting in carjacking witnesses show would evidence and/or counts; robbery-related kidnap- sevéral young girl’s cut the that he had say would murder, felony kidnapping. ping; On said he told Jane twice. Mitchell throat filed September die,” and that ground on the “lay down a notice of intent to seek death rocks, and gathered Orsinger then he and on the 18 U.S.C. as to Mitchell based on, took the two leading Orsinger with carjacking resulting charge head. on Jane’s dropping them turns Jury began April selection death. Orsinger that he and indicated day, court severed the On the same shovel, and severed an axe retrieved Orsinger. Open- trial of Mitchell and joint hands, in a parts and buried heads 29, April on ing given statements were and hole, cloth- victims’ foot-deep burned the 8, 2003, convicted Mitchell May on in a stream. cleaned the knives ing, and on all counts. jail and to tribal was returned Mitchell he did not Mitchell indicated that want judge on November before a tribal taken present during penalty phase, to be issued on No- indictment was 7. A federal attorneys explained and his FBI 29 an and on November vember uncooperative that Mitchell had become the tribal up from agent picked Mitchell with breaking contact them. in and was off to the courthouse jail drove him and to arraign- they obliged reason felt with- Arizona. Just before For this Flagstaff, Miranda reconsider, ment, his and agents read Mitchell After time ex- draw. waiver. signed a rights and obtained stated that he colloquy, tended Mitchell weeks to two explained one Mitchell being or there saw no benefit relevance robbery, he had Trading Post before the but presence, wished to did and waive commit- Jakegory Nakai about talked with problem attorneys. with his not have hitch- robbery. Orsinger ting a He and Accordingly, granted the court Rock, Gallup, from Round Arizona hiked but denied coun- present to be request not and while purchase liquor New Mexico request withdraw. sels’ mall shopping Gallup, the two visited May 14. phase began The and stole one knife they purchased where testimony presented from Ta to Ya They caught a ride another. what described family members who Mexico, picked they where were Hey, New impact the emotional were like and victims young girl near lady an up older by The defense murders on them. of the off asked to be let the border. mitigating evidence testi- presented Arizona, Sawmill, the truck and when near members, friends, and mony family stabbing the Orsinger began stopped, they portrayed whom of Mitchell teachers he admitted woman. student with high school as an excellent They put to five times. her four stabbed a brief except for problems disciplinary girl into the and the little the older woman marijuana, who possessing suspension for mountains where back, into the and drove college athlete with outstanding an out, rocks body threw they dragged Slim’s both in leader student prospects, football head, the victims’ girl’s and severed on the respectful to- sports, this was council Mitchell said and hands. heads (AIRFA), FBI Duncan Freedom Act of agent ligious teachers. also wards § Mitchell’s confes testified. He discussed U.S.C. sion, noting that Mitchell claimed to have initially possessed “Indian tribes exclu heavily time drinking at the of the been jurisdiction by sive over crimes committed sepa Duncan described a murders. also against one tribal member another in Indi carjacking and double murder involv rate country an' when crime was —even ” ing Gregory Orsinger Nakai and that took Getches, H. murder.... David Charles F. Navajo place during on the reservation Wilkinson, Williams, Jr., A. Robert Feder Orsinger pistol whipped the two vic which (5th ed.2005). al Indian Law 475 also See and then one of them in the tims shot Jr., Canby, William C. American Indian victim head. Nakai shot the other five (4th ed.2004). Today, Law by virtue Gregory times. States v. Na See. interplay the Indian between Coun (9th kai, Cir.2005), 413 F.3d 1019 cert. Act, try Crimes Act or Federal Enclave denied, Act, § Major Crimes U.S.C. (2005). L.Ed.2d 494 Evidence was intro jurisdiction 18 U.S.C. federal court Orsinger that neither nor duced Nakai major extends to certain crimes committed penalty, would receive the death and that Indian, against by Indian another Navajo capital Nation did not condone an Indian in country, Indian see United punishment general or for Mitchell’s Bruce, States in particular. crimes Cir.2005); Anderson, v. United States 391 jury unanimously found all four (9th 1083, Cir.2004), n. by F.3d 1085 3 and factors,” “gateway intent each of the statu- law, virtue of decisional federal juris- factors, tory and one aggravating non-stat- diction to extends intra-Indian violations of utory aggravating respect factor with to federal criminal general, laws of nation- juror both At one victims. least found the 1085-86; applicability. wide Id. at United mitigating existence of each of the factors. (9th Smith, 826, v. States 387 F.3d weighing

After the aggravating and miti- Cir.2004) (stating ju- that federal criminal factors, gating im- recommended risdiction extends to intra-Indian violations position of a sentence of death. The court 1513(b), § of 18 U.S.C. retaliating against sentence, timely imposed ap- and this witness, as it is a statute of nationwide peal followed. applicability); D., United States v. Errol (9th Jr., 1159, Cir.2002) 292 F.3d 1164-65 II (observing that the federal We first consider Mitchell’s chal charged could have Indian defendant who lenges jurisdiction of the federal court burglarized Bureau of Indian Affairs facili- and to application of the Federal Death tates located in country Indian with 18 (FDPA). Penalty Act He contends that 641, § government proper- U.S.C. theft of the FDPA carjackings does not extend to ty); 486, Begay, United States v. by against committed one Indian other (9th Cir.1994) (holding that a violation in country. Indians Indian In related ar 371, conspiracy, “applies 18 U.S.C. guments, Mitchell also submits that he equally everyone everywhere within the cannot be sentenced to death under the States, including Indians in Indian FDPA Navajo because the Nation never country”). opted into the federal capital punishment scheme, Major that the applying and that the FDPA in maintains these circumstances Crimes Act is the source of federal violates First sole Amendment jurisdiction and the American Indian Re- criminal over intra-Indian any has authoritative bear- re- ferent statute that, carjacking crimes, because here. ing question presented the crimes on the not one of in death is sulting Act, prose- he cannot be in the identified addition, relying In on Ex Parte However,-we court. for it federal cuted 556, 3 Dog, Crow 109 U.S. argument. rejected this previously have (1883), stresses that L.Ed. Male, See, v. Juvenile e.g., United States carjacking statute does not ex the federal Cir.1997) (9th 1344, 1350-51 118 F.3d jurisdiction over pressly provide intra- prop- could that the district court (holding this, he would Indian violations. From charged jurisdiction over erly exercise Congress did not intend have us infer applica- general criminal offense federal as this. How apply for it to cases such being enumerated bility, despite its Quiver, ever, Antelope Dog, Crow like Act, oc- an incident Major Crimes of an intra-Indian prosecution involved the in Indian coun- Indians curring between law; charged federal enclave murder under that Juvenile suggestion try). speak a federal criminal it does not Supreme contrary to earlier Male is two applicability. general statute that is of Be Antelope, opinions, United States Court this, that a yond general rule is federal 51 L.Ed.2d 97 S.Ct. applicability of nationwide is statute Quiver, 241 (1977), States v. and United jurisdic question otherwise silent 60 L.Ed. apply “will not tion as to Indian tribes (1916), by bound Ju- because we are fails (1) ‘exclusive them if: the law touches event, Antelope both Male. venile purely self-governance intra rights crimes, not Quiver involved enclave (2) matters’; application of the mural See Unit- general applicability. crimes of ‘abrogate rights to the tribe would law n. 7 Brisk, 522 & ed States (3) treaties’; or guaranteed Indian Cir.1999) argu- (rejecting identical history ‘by proof legislative there Quiver Antelope); see invoking ments intended Congress other means that some (rejecting 42 at 499-500 Begay, F.3d also on their law, apply not to to Indians including law] [the that our case the notion Jackson, 1283, Donovan v. Coeur d'Al 600 F.2d reservations....’” v. States (9th 1113, Farm, (9th Cir.1979), F.2d 1116 read as indicat- Tribal 751 can be ene 1286 Farris, Cir.1985) nation- (quoting of otherwise United States ing that federal laws Cir.1980)). in Indian apply do applicability 893-94 wide country). attempt explain no to how makes Mitchell might fall carjacking statute the federal for argument, proposed oral except sup exceptions, these within one time, is under- precedent that our the first have intended Congress must pose that summaries, in contained by legal mined employed Inter exemption an as such § history of 25 U.S.C. legislative language but not state Commerce Clause Begay. as such predate which decisions language in Clause Indian Commerce 102-261, at 3-4 Rep. H.R. Conf. No. See other) (or any in this § But silence (1991). 102-168, (1991); at 2 S.Rep. No. intént for the not manifest respect does at issue here. the same This is not statute n rather, tribes; to Indian apply law not to three-judge from the fact that Apart, of na is federal’statutes baseline to do what Mitchell power has no panel silent on the where applicability, tionwide asks, underlying premise reject we staffer’s) apply. to Indian issue, do presumptively attempt (presumably 5; Smith, n. at 829 387 F.3d tribes. See jurisdiction of the state federal summarize v. Tuscar Federal Comm’n a dif- see also Power purposes Indian crimes for over Nation, 99, 116, Nation, Navajo carjack- ora Indian 362 U.S. renders the (1960) (stating L.Ed.2d 584 ing inapplicable. pro- statute Section 3598 general applying that “a statute terms vides: all includes Indians and their persons Notwithstanding sections 1152 and interests”). property subject person juris- to the criminal government diction of an Indian tribal § argues Mitchell next subject capital shall be to a sentence apply should not this case because its chapter under this offense the im penalty authorization of the death jurisdiction Federal predi- for which is sovereignty given pinges on tribal the Na (as solely country cated on Indian de- religious

vajo longstanding Nation’s title) fined section 1151 of this capital punishment. opposition cultural which has occurred within the bound- Eighth For this he relies on the Circuit’s country, aries of Indian gov- unless the particular right view that “if a Indian or body erning of the tribe has elected that policy infringed by general is federal chapter have effect over land and law, criminal that law will be held not to persons subject jurisdic- to its criminal apply to Indians on reservations unless tion. specifically provided.” so United States (8th Cir.1983).

Blue, Thus, unambiguously the FDPA requires However, that a Blue itself held federal opt-in only jurisdiction where is based jurisdiction district court had over an in- not, country, Indian as Mitchell would tra-Indian violation 21 U.S.C. it, have whenever the federal (distribution 841(a)(1) marijuana capital punishment. seeks To construe distribute) possession with intent to as en § 3598 Mitchell does is inconsistent forcement of the federal narcotics laws plain language with the statute’s and the impermissibly infringe does not upon tribal statutory basic canon of construction that sovereignty self-government. Id. This qualifying language should not be read out applying line with our own decisions See, e.g., of the statute. v. Merck Bowsher federal criminal laws of nationwide applica Co., 824, 833, & bility to Indian tribes. (1983) L.Ed.2d (applying the “settled recognize Navajo We Nation principle statutory construction that we opposes the death on cultural and effect, if give possible, every must word Indeed, religious grounds. Attorney statute”). that a insists Navajo expressed General of the Nation contrary interpretation defeats the pur opposition possibility the Nation’s to the § pose of if government, preclud 3598 the capital seeking punish- United States seeking penalty ed from the death on the January ment in this case in a letter sent murder, basis of degree first can instead 22, Attorney 2002 to the United States for rely on a federal eligible death statute say, the District of Arizona. We cannot § such as may While a court refuse however, ideological opposition that plain language follow the if statute penalty by death its exempts own force produce results, it would unreasonable from, tribal members the reach of federal Co., v. Laundry Green Bock Mach. 490 laws, criminal presump- or overrides the 504, 510, 1981, U.S. 104 L.Ed.2d tion that criminal federal laws of nation- (1989), Congress 557 it is doubtful that wide applicability apply to Indian tribes. would special have intended to carve out exemptions to Indian for the tribes more Neither do we believe that tribes, eligible than 40 death opt-in provision FDPA’s for Indian federal offenses cov 3598, § 18 U.S.C. or the lack of an ered FDPA opt-in expressly say- without

949 States, way, because either his priate 527 standard Jones v. United ing so. See 2090, 373, 407, showing 144 L.Ed.2d makes no that the 119 claims fail. He U.S. (1999) informa- background (providing any 370 FDPA burdens the free exercise of 3591; FDPA) (citing 18 U.S.C. tion on case, Navajo religious belief. 1970-1982). 60005-60024, In- Stat. §§ challenge cannot succeed be free exercise to af- stead, appears opt-in provision based, rationally “a neutral law of cause authority much as as Indian tribes ford does not violate the general applicability pun- capital whether determining in states religion even right to free exercise in circumstances may imposed ishment incidentally par though the law burdens ap- general crimes of involving federal religious practice.” ticular belief or Miller government seeks plicability. federal (9th Cir.1999) Reed, 1202, death sentences obtains FDPA Smith, 494 (citing Employment Div. v. abandoned long that have since states 872, 879, 110 S.Ct. 108 L.Ed.2d Michael J. themselves. death (1990)). reliance on AIRFA Mitchell’s Mannheimer, the Federal When Zydney better, simply “AIRFA is fares no Unusual,” 74 Penalty is “Cruel Death create a policy statement and does not (2006) (reporting L.Rev. U. Cin. any judicially enforce of action or cause been people five have “since v. Ter rights.” individual Henderson able court for in federal to death sentenced Cir.2004). hune, F.3d that do not States conduct occurred see also 137 penalty”); death authorize the Ill (daily ed. Jun. Rec. S8488-03 Cong. (remarks presented A number of issues are

1991) Inouye suggesting of Sen. selection, the venire jury re- both of apply without relate crimes will capital otherwise be within panel. to what would and the gard jurisdiction). As of state or tribal scope departing for no reasoned basis there is A language, we de- plain the statute’s from contention that with Mitchell’s We start con- proffered accept cline to Mitchell’s jurors empanel used to procedures §of 3598. struction crimes, Navajo reservation Phoenix for Finally, assertion satisfactory non-capital apparently while religious opposi Navajo Nation’s given Etsitty, cases, see United States sentencing him punishment, capital tion to (9th Cir.1997), are unsatis- Amend FDPA the First under the violates penalty cases. factory for death AIRFA, raised for the first ment and jury petit of a selection “[T]he normally we Although appeal. time on section of the representative cross from a error,1 it makes no plain would review component community is an essential that, or the de novo whether difference tri- right to seeks, the Sixth Amendment appro- is the which Mitchell review Olano, Cir.1998) (citing v. United States Many that Mitchell raises 1. of the issues 1770, 732-36, 725, subject plain error review be 113 S.Ct. appeal are they (1993)). in the district Normally, were not raised the defen- cause L.Ed.2d 508 "(1) there was: Plain error lies where preju- court. error, (2) showing of specific must make dant obvious, (3) that that was clear or of affected the outcome dice—that the error (4) rights, seri that affected substantial plain order to establish proceedings —in fairness, public integrity, or ously affected 734-35, Olano, at S.Ct. 507 U.S. error. judicial proceedings.” Unit reputation of the 557, Randall, (9th 162 F.3d ed States Louisiana, 522, slightly al.” 419 U.S. ell’s numbers are different but Taylor (1975). his, 42 L.Ed.2d 690 accepting disparity even absolute of prima A facie vio- defendant establishes 4.15% exists between the venire and the requirement lation of the fair-cross-section population adult of the division. This is “(1) group alleged that the by showing disparity than the that less we found con group in be excluded is a ‘distinctive’ stitutionally permissible in United States (2) representation of community; v. Esquivel, 88 F.3d 726-27 Cir. juries in from which are group this venires 1996) (finding insubstantial an absolute in selected is not fair and reasonable rela- disparity of for Hispanics 4.9% who com persons of such in the tion to the number prised population 14.6% of the adult citizen (3) community; underrepre- that this only in the district but 9.7% of the master systematic exclusion sentation is due to of wheel). jury jury-selection process.” in group Regardless, “a violation of the fair Missouri, 357, 364, Duren v. requirement prem cross-section cannot be (1979). 58 L.Ed.2d 579 upon proof underrepresentation ised in Nakai, which involved one of Mitch- single jury. juries While must be drawn co-defendants, the court “accepted] ell’s fairly, representative from a source of the purposes appeal argument for [that] community, composition of each jury that Native in Arizona Americans consti- need not mirror that community.” of the group, although tute a distinctive our cases Miller, United States v. Navajo suggest Hopi are far from (9th Cir.1985). Thus, the defendant being unitary ethnic block.” 413 F.3d satisfy in Miller failed to prong the second 1022. We assume so here as well. when he introduced concerning evidence that his trial im- asserts only particular grand jury Id.; venire. properly transferred from Prescott Duren, 439 U.S. at 99 S.Ct. 664 cf. Phoenix, point by but abandons the devel- (defendant persistent showed disparity oping argument respect with to it. He venires). eight over months weekly does, however, develop his contention that points disparities in trial jury improperly administrator weeded Nakai, Gregory in which' 14.1% of the 199- jury questionnaires the 2329 that were re- person venire as drawn consisted of Native (out sent) turned of 3000 down to 263 Americans, only but 6.1% of pool “actually qualified” persons. Allowing for reported duty consisted of Native jurors mainly who were excused without Se Nakai, Americans. 413 F.3d at 1022. objection, a venire of 207 was set. Mitch- However, figure the 6.1% was the result of argues only ell that of this pool, 30—or a telephonic procedure specially used 14.49%—were Americans. Native The dis- case, deliberately which the court found, according trict court to the 2000 using avoided fig this one. The 14.1% census, population the adult provides point, ure a second data but this Prescott Division was 18.64% Native alone cannot demonstrate that the under- American, that Americans comprise Native representation systematic. Underrep- 16,7% jury of the Prescott master wheel juror resentation in the master wheel (from which the was drawn systematic, ju would be but the Prescott case), that people 17.23% of the 3000 se- ror only wheel has a 1.94% absolute dis lected from the wheel this case resided crepancy. reservations, within Indian and that 36 of (17.39%) 207-person the In Etsitty, expressed venire identified we concern with themselves jury as Native American. Mitch- process the selection in trans- trials representative Howev- to a Prescott to Phoenix. cross-section. ferred from As er, Etsitty in had to do with our concerns explained, ‘representativeness’ “[t]he con jury the different wheels Phoenix stitutionally required stage at the venire (where Americans constitute less of Native disrupted can be jury-panel at the stage” (where they and Prescott population) to a legitimate serve interest in permitting more). The district court cured constitute disqualification jurors of for reasons by using the problem here Prescott ability related to their in partic to serve wheel. It found there was little reason to 483, 803; ular case. Id. at 110 S.Ct. see jury suspect that Native Americans Lewis, also Evans v. 634-35 pool disparately impacted by would (9th Cir.1988) (“[T]he juror’s removal was geogra- transfer to Phoenix based on local part process of selecting petit access, phy highway and and Mitchell jury and composition not involve the did contrary. points to no evidence to the Therefore, the fair cross-sec venire. authority attach.”); ar offers tion right did not Harris v. Pul relating special capi nature of gument Cir.1988) ley, 885 F.2d punishment tal to the need for lower toler (“The fair cross-section rule is limited to disparity jury pools. ance for Nor is the method of summoning panel the venire any apparent. right representa to a selected.”). petit from which the jury is pool tive comes from the Sixth jury Because Mitchell does not show Amendment, Eighth, applies not the underrepresentation of Native jury all criminal trials. Americans on venires such as his was ei appears sug Mitchell also systematic, ther substantial or and because jurors that the gest striking various to a right representative cross-section unrepresentative jury. cause resulted in an selection, petit does not extend to However, Amendment imposes Sixth Mitchell fails to a constitutional establish juries actually “no requirement petit arising procedures violation out of the community chosen must mirror the were followed. groups reflect the various distinctive in the population. Defendants are not entitled to B a jury any particular composition.” turn relating We next issues to death Taylor, 419 S.Ct. 692. qualification and for-cause strikes. McCree, 173-74, Lockhart v. 476 U.S. (1986), 90 L.Ed.2d i accordingly Court declined to extend the requirement fair-cross-section death Did the district violate qualification, or “to invalidate fair- [on equal protection component of the Due grounds] cross-section the use of either for by engaging Process Clause in race-based peremptory challenges pro cause or jurors questioning potential by jurors” spective expressed opposition who making racially-discriminatory decisions to penalty. to the death In Holland v. Illi strike? nois, 474, 477-86, century, [the] “For over (1990), similarly 107 L.Ed.2d 905 the Court unyielding position Court has been its distinguished stage between the venire equal protection that a defendant is denied rejected panel stage, and the claim that a a jury of the laws when tried before from prosecutor’s peremptory challenges use of which members of his or her race have to remove African Americans from the panel purposeful right violated the Sixth Amendment been excluded State’s 952 (1981) (noting 22 that “[b]e- has no 68 L.Ed.2d Although a defendant ....

conduct impanel impar- an obligation in whole or cause the jury composed right ‘petit to a jury in first instance with the own tial lies [the defendant’s] of part persons rely he must right judge, have the trial and because race,’ does be he or she largely perceptions, are on his immediate fed- members select by jury tried whose nondiscriminatory judges ample eral have been accorded dis- criteria.” Powers by ed 404, 1364, Ohio, 400, determining 111 cretion in how best to conduct S.Ct. v. 499 U.S. dire”). (internal (1991) judge inquired the voir of all 411 citations 113 L.Ed.2d omitted). any- jurors whether there was applies prospective The same federal being Native equal protection thing about Mitchell’s Ameri- under ability can that would affect their to be fair the Fifth Amendment. component of Cf. 497, 499, impartial, unquestionably 347 U.S. 74 and which Bolling Sharpe, (1954). 191-92, 1629, 693, Judges, proper, see id. at 101 L.Ed. 884 S.Ct. S.Ct. 98 actors, course, obligation hinged questions but sometimes of similar are state by import ethnicity in the to the common shared to refrain from racial discrimination ju- jurors juror extends to all those and the defendant when the selection of she, too, jury are trusted with ror indicated that he or was Na- state actors “who Texas, 398, simply tive American. This was a natural selection.” Akins v. (1945). bias, 1276, way eliciting possible 89 L.Ed. 1692 and does not 65 S.Ct. violation, however, along facial pur To show discrimination lines. “[a] establish present way questioning suggest did the court’s pose to discriminate must be by systematic applying exclu it was different standards may proven which juror’s ethnicity. jurymen proscribed depending upon of the eligible sion of application of the law by unequal race or argument, At oral Mitchell at as to show intentional to such an extent tempted equal protection to cast his ar 403-04, 65 discrimination.” Id. S.Ct. gument as one under Alexander. As we (articulating principle grand for a 1276 explained Esquivel, Alexander-type Louisiana, jury); Alexander v. 405 see equal protection challenge is somewhat n. U.S. fair similar to Sixth Amendment cross- (1972) (noting that principles L.Ed.2d 536 requires the challenge, section defen prohibiting exclusion from service on dant a prima make facie case essentially the account of race “are same (1) showing group, “that the of which the grand juries petit juries”). and for member, appellant is a is ‘one that is a Thus, can establish a violation of class, recognizable, singled distinct out rights Fifth if he can show Amendment for different treatment under the laws’ purposeful by the dis racial discrimination (2) a underrepresentation substantial striking jurors trict for cause. group, “by comparing proportion Because Mitchell did not raise this issue group population of the in the total court, plain the district we review for er proportion group called to ror. jurors, ... a significant pe serve as over (3) purposeful time”; dis- discriminatory Mitchell tries to show riod of in tent, judge that the by suggesting may by showing crimination which be satisfied questioned jurors differently potential procedure “suscepti de- the selection pending they racially were Native ble of upon Whether abuse or is neutral.” (quoting American or not. cannot' see how the 88 F.3d at 725 Castaneda v. We Partida, 482, 494, ample district court’s dire abused its voir U.S. S.Ct. (1977)). Rosales-Lopez discretion. L.Ed.2d Mitchell fails to States, 182, 189, facie ease because he prima establish for the Native Most of underrepresen- ased American. substantial has not shown questioning prospective focused on this period of time significant a tation over juror’s stated moral because, opposition not Esquivel, he has as and court found penalty. death The district pro- the venire-selection how explained # 22’s answers that it would be “ex- from at to abuse. Id. susceptible cess was difficult, if for tremely impossible” her assume, to as appears Mitchell 727-28. opinions regarding the to set aside her claim, fair cross-section with his he did and that her bias toward death should ex- framework that the Alexander govern- against Native Americans and stage and into past the venire tend “troubling.” findings also Both ment was authority offers no for cause. He strikes well-supported are in the record. so, reason doing persuasive and no for defendant has why it should. “[A] Prospective juror # 24 himself of his demand that members right to injected respond race into the voir dire jury, on the final Alex- race be included” whether he ing inquiry to the court’s about 628, 1221, ander, 405 U.S. at 92 S.Ct. opinion penalty, had an about the death developed as fully the record is and since “Well, American, a Native this is some strike, each Mitchell to the basis for in our laws on the thing we don’t have discriminatory why each was must show thought being Native reservation:” He pretextual. ability would affect his to fair American be impartial. having and He to sit said complains that of 30 Na Navajo judgment of another would dire, appeared for voir tive Americans who ... emo long-term [him] “have a affect on trial court by the before 29 were dismissed spiritually,” tionally to certain extent However, we consider peremptories. if “come out to a least he were to respect prospective appeal only with result,” Navajo ceremonies certain bécause 3, 22, # 24 he fails jurors # # because life; therefore, it valuing are based on- may have been explain why the others him to sit as a would be “difficult” for As to for race-based reasons. dismissed ' Navajo. He also juror against a fellow them, ques only pressed court the district be thought that he would indicated jurors gave racial bias when the tions of wrong for the United States implicating impartiality, their answers Navajo for murder. The to death put to do so. entirely appropriate where it was this last recognized court district and discussion lengthy questioning disqualifi an automatic statement was not nothing # to do relating to 3 had almost er, # 24 said it given how difficult but race; on he excused for cause with juror because for him to sit as would be inability to set perceived account of his beliefs, judgment on a and to sit of his pen- religious opposition to the death aside #24 Navajo, court concluded the district alty. substantially impaired from be would this, in the voir his duties. played ing perform Race some role able to drawing infer Navajo impermissibly and who was not dire of # who was race, permissibly by the from #24’s but response questioning ences indicated his beliefs.2 responses own about thought she was bi- from his government that she (1987), brief, L.Ed.2d 622 reply 107 S.Ct. 2. For the first time in his #2, 3, 19, merely jurors were dismissed jurors because these argues exclusion scruples against expressing moral Witherspoon violates v. Illi- also nois, arguments We deem these penalty. death 20 L.Ed.2d Anderson, 472 (1968), United States v. Gray Mississippi, 481 U.S. waived. ii so is the least restrictive means to achieve end; jurors simply are not excluded to select procedures Did the used they opposed because are the death jurors exclude jury impermissibly if religious grounds, only on but Navajo traditional reli the basis of their they are unable to set those views aside culture, thereby violating the Re gion and See Wain (RFRA), impartially. the law apply and Act ligious Freedom Restoration Witt, 412, 420-26, the American In wright v. 2000bb, § 42 469 U.S. 105 U.S.C. (AIR- (1985). Act of 1978 Religious 844, dian Freedom S.Ct. 83 L.Ed.2d 841 issue, FA), § On this our 42 U.S.C. 1996? asserts, simply explana- Mitchell without plain error as was not review is tion, offended, that AIRFA was also but as court. raised in district already we have noted AIRFA creates no “suspends generally applicable RFRA judicially rights. enforceable individual ‘substantially burden a federal laws that religion’ unless the person’s exercise iii means of laws are ‘the least restrictive by refusing Did the district court err compelling governmental in furthering [a] ” prospective jurors strike for cause several Antoine, v. United States terest.’ 318 (# 34) 31-38, except for # 32 and # who Cir.2003) 919, 42 (quoting F.3d 920 capital punish- were biased favor of 2000bb-1(a)-(b)). U.S.C. Mitchell does ment? identify specific what federal rule or Navajo procedure burdened the exercise of A a defendant has constitution religion. argument We understand process al right due to remove for cause a disqualifying jurors whose be that the rule juror automatically who will vote for the Navajo pen views on the death traditional Illinois, Morgan See penalty. death alty substantially prevent impair would 719, 2222, 119 L.Ed.2d 492 performance juror duties as a their (1992). Supreme But the Court has made with their instructions vio accordance clear that a court’s failure to strike for RFRA, Navajo religion lates because the cause a biased veniremember violates nei opposed penalty. is to the death Mitchell guarantee ther the Sixth Amendment of an points out that has no Oklahoma, impartial jury, Ross v. 487 U.S. compelling keeping traditional interest 2273, (1988), 108 S.Ct. 101 L.Ed.2d 80 Navajos serving juries, from or in ob right nor the Fifth Amendment to due taining against Navajo a sentence a death process, States Martinez-Sala arising country for a crime in Indian zar, against Navajo. But another this mis (2000), L.Ed.2d 792 when the biased places question the focus. The is whether jury, veniremember did not sit on the even juror a the law apply is able to follow though peremp the defendant must use a which impartial way, in an facts tory challenge to him. compelling government strike Of the interest. And the jurors rule are excluding who unable to do veniremembers whom Mitchell challenges, Marsh, (9th Cir.2006); "equal protection, process, Smith v. due a fair trial (9th Cir.1999). sentencing reliable determination.” footnote, However, Similarly, summary in a Mitchell "[t]he contends mention of an issue improperly footnote, that the excluded district reasoning support in a without #1, 9,2, jurors part and 11 in due to their appellant’s argument, is insufficient to Navajo language use first without appeal.” raise the issue on Hilao v. Estate of providing interpreters, thereby erroneously Marcos, (9th Cir.1996). n. 4 applying Jury violating Act and Selection (1980)). juror at- need not indicate that jury. on the only # 36 sat “automatically” Ross and Martinez- distinguish against she would vote tempts claim is not arguing that his penalty, death nor be Salazar need bias shown perempto- use of a compelled on his based clarity”; with “unmistakable the trial court only shows ry challenge, but only impres- need left with a “definite injury at all. has asserted no prospective juror sion that a would be faithfully impartially apply unable to A court’s strike district refusal 425-26, the law.” Id. at 105 S.Ct. 844. reviewed juror challenged for cause is judge Deference is owed to the trial who States v. for abuse of discretion. United juror. sees and hears the Id. (9th Cir.1997). 666, 111 673 Miguel, F.3d However, plain here for er our review grounded this in rule is Because 52(b) under Fed.R.Crim.P. because ror guarantee the Sixth Amendment’s of an court to excuse Mitchell did not ask the impartial jury, Eighth and not the Amend v. juror # 36 for cause. States United Cf. ment, exclusions under are no different Mendoza-Reyes, 331 F.3d 1121 jurors any from exclusions of for other Cir.2003) (review plain is for of voir dire form of bias. Id. at object); defendant does not error where 844. A district court’s decision to excuse a Ross, States v. juror for actual bias is for abuse reviewed (9th Cir.1989) (district court’s treatment of Gonzalez, of discretion. United States where de juror plain reviewed for error (9th Cir.2000). 1109, 1112 made motion to remove after fendant juror gave # to Prospective .answers leave). Al juror announced desire to prescreening questionnaire the written question to one # 36 though response in pen- the death that show her beliefs about only punish thought indicated that she alty substantially impair ability her would certain kinds of “horrific” crimes ment for them, perform Among to her duties. she death, qualified be she later should box; “well, indicating checked the she “could nev- or im response by indicating death return, circumstances, er, in a she said a under ver- prisonment.” Thereafter ways keep could an number of she recommended a sentence of dict which strike, to open Neither side moved explanation mind. for death.” She wrote as plainly err not and the court did guilty a of why she couldn’t reach verdict striking sponte. her sua could as to a crime for which the defendant death, has the be sentenced to “No one

iv person’s another life—re- right to take striking court err in Did the district done'by person— gardless of evils merely because she ex- # 39 for cause society to the level of the evil it reduces im- scruples against pressed conscientious reflecting that doer.” She checked boxes posing penalty? the death given follow the instructions she would not a defen- by deciding the court whether juror may ex prospective A be if a death guilty guilty dant was or not her views on cluded for cause because of result, that her views sentence .would punishment juror’s when “the views capital penalty prevent would her about the death substantially impair ‘prevent would a recommending from the death juror in duties as a performance [her] automatically would punishment, that she and [her] accordance instructions with[her] ” a of life with- to recommend sentence vote Wainwright, oath.’ release, that she Texas, possibility out (quoting Adams S.Ct. 38, 45, not consider all the evidence before 65 L.Ed.2d 581 would compelling a questionnaire recommend either answers were making a decision to sentence, that dis- # life she would where 39 wrote in hand that no one death or hold the regard life, the law and right person’s has the to take another beyond a proof than higher burden and that she could not follow instructions if doubt, that she would not reasonable According- a death sentence would result. juror this case. want serve as ly, the court concluded that # 39 “would be (cid:127) substantially impaired to follow her oath as responses Her oral at voir dire were juror in and follow the law that case nuanced; example, more she would n her,” gives the Court and so was not imposing have “a difficult time” the déath instructions; qualified. landscape As the overall followihg penalty or related she,could # possibly supports impres- have sentenced to death 39’s answers definite and a serial killer from faithfully Charles Manson sion that she would be unable Bundy); “off the (presumably, Florida Ted law, impartially apply and the head,” top of she didn’t think she [her] applied district court the correct standard beliefs, could her but she would set aside determining, in so we- see no abuse of evidence; listening to all of the open discretion the dismissal of # 39 for “offhand,” fairly think she didn’t she could cause. sentence, but she couldn’t consider either being position know for without in the sure C evidence; seeing “prob- and she would sentence, ably” vote for life but wouldn’t government The used a peremptory automatically vote for a life sentence re- challenge to only strike the African Ameri- gardless keep of the and evidence would was, can member of the which venire mind; an open and she would “like to view, contrary to Batson v. Ken- could be to either death or open think” she tucky, 476 U.S. prejudgment. life and deliberate without (1986). L.Ed.2d 69 This followed a strike question final response judge’s of a Native that American the court disal-

whether she could set aside her views and grounds. lowed on Batson listen to the facts and law that the court gives keep open an mind and consider To prima establish a facie case of imposing violation, either sentence if she felt was a Batson a defendant must show # “I appropriate, responded only could “(1) cogni the defendant is a member of a try.... very do strongly feel about the (2) I. zable group; prosecution re has life, value of human no matter what that (3) moved group; members of such a like, life has done. But I—I to think I circumstances raise an ‘inference’ that the listen; open. would It would be would I challenges were motivated race.” Fer up prosecution and the defense Roe, (9th nandez v. 286 F.3d I give convince me. can’t a definitive Cir.2002). The burden then shifts to the sorry.” answer at this time. I’m government ground to offer a race-neutral challenge. for the Finally, the district Although the court that found court determines whether the defendant candid, # 39 tried to be it was left with the proven purposeful has discrimination. Id. “firm impression, based on her demeanor Although the burden with the defen court, rests here in struggle she would discrimination, prove purposeful dant point I don’t think she would the court must honestly persuasiveness consider the death evaluate the ac- duty proffered justification cordance with the of the instruction and her and deter addition, as an oath.” In it noted that the mine whether it should be believed. Kes (9th per- government then used another Cambra, The ser v. Cir.2006) (en banc). Afri- challenge only to strike the emptory panel. Re- can American member constitute Native Americans challenge, to Mitchell’s Batson sponding see purposes, Batson group for cognizable explanation offered the Americans, id., Fernan African see as do juror along with another that it struck Mitchell, dez, a Native at 1077. 286 F.3d experience ju- prior because both had American, challenges to may Batson raise acquitted ries that had defendants. Americans as well of African the exclusion that most of the district court determined (citing id. Pow Americans. See as Native Ohio, 400, 409-16, 111 S.Ct. finding prima facie case ers v. reasons for (1991)). 1364, 113 L.Ed.2d juror only Native American did against juror, to the African American apply government’s Whether prima that no facie case had been chal exercising peremptory reason Alternatively, the court found made out. explana adequate race-neutral lenge is explanation was government’s reviewed de novo. is an issue of law tion neutral, non-discriminatory, permissi- Steele, States See United ble; that he Cir.2002). juror that the had indicated (9th court’s The district jury in racially acquitting discrimi in an findings participated of fact as .to had challenges are mid-1980s, natory peremptory use of although in the he Colorado See United for clear error. reviewed circumstances; recall the could not 1132, 1136 n. 3 Annigoni, 96 F.3d States sufficient; and that explanation banc). Cir.1996) (en a de Whether carry his Mitchell had failed to burden. showing a facie of prima fendant has made reviewed for clear racial discrimination is that recognized in Fernandez We Steele, States v. error. United surrounding circumstances the relevant Cir.2002). (9th 906, 910 facie case of dis prima include a strikes perempto- used its first government The cognizable group. another crimination as to Na- only remaining the ry against strike (holding prior at 1078 that strike 286 F.3d jury panel. tive American member juror supported Hispanic prospective of an that under the court found The district discriminatory in general an inference of circumstances, of a the the use totality of African to strike of two germane tent only Native Ameri- against the first strike Americans). Here, government the struck the defendant panel can member when venireperson, only African American the Native American established victims were evidence dis compelling which is less government of- facie case. The prima a because two than in Fernandez crimination juror the indi- explanation that fered the there and were struck African Americans for di- he would look to the court cated discrimination difficult to infer it is more district court sentencing. at The rection two. At the on one strike than based only juror the that he was not found time, actually had the court here same to lack of knowl- uncertainty due express government found discrimination law, juror that had edge of a Ameri against Native exercising a'strike that he would follow indicated repeatedly can, in Fernandez trial court whereas .the and understood the court’s instruction prima a facie only found previously had a sentence. On would not direct the court tell from what said case. can’t We basis, govern- the court found the rul this into its court factored the district unpersuasive, and de- explanation ment’s ing. nied the strike. whether, object not decide Because Mitchell did not on this or

But we need Fernandez, totality court, under the following ground other in the district our circumstances, including prior dis plain error. review is See Mendoza- only Na criminatory attempt to strike the Reyes, at 1121. 331 F.3d juror, tive American the district court’s course, government Of prima was no facie case finding there proving every bears burden element the African Ameri of discrimination as to beyond of a crime a reasonable doubt. In erroneous, clearly venireperson can 358, 364, re Winship, 397 U.S. Mitchell does not show how the because (1970). However, 25 L.Ed.2d 368 finding alternative district court’s —that judge plainly by making does not err justification was valid prosecution’s statement the course of voir dire to ju That a persuasive incorrect. —was prospective juror determine whether a can valid, acquitted prior ror case is a impartial be fair and in relation to a race-neutral reason to strike. See United charge made in the indictment. Mendoza- Thompson, 827 F.2d States Reyes, That all Cir.1987). question the was whether Mitchell was juror American a when non-race-based responsible, query and the court’s did Therefore, proffered. reason is Mitchell’s nothing suggest prove to that he had to he Batson claim fails. Indeed, wasn’t. Mitchell’s counsel himself prefaced juror by voir dire relating his D “impression that there are certain crimes Mitchell faults the district court for hav- which, many you like people, would find ing government’s alleviated the burden of very troubling very disturbing and to hear proving the elements the MCA crimes among might about.... And them abe beyond a reasonable doubt when it told involving people, crime the murder of two jurors during voir dire that he awas Na- nine-year-old 65-year-old.” and a Navajo, tive American or that the crimes Mitchell submits that structural error of reservation, occurred on an Indian and Louisiana, the Sullivan v. 508 U.S. that the deaths of the victims had been 279-80, 113 S.Ct. 124 L.Ed.2d 182 so, In doing posits, “murders.” he the (1993), occurred, sort but in- Sullivan district court informed members of the jury containing volved a an un- instruction jury that charged these elements of the true, “beyond constitutional thereby crimes definition rea- impermissibly were shifting government’s thing burden at trial. sonable doubt.” No such happened no evi- points he cause dismissals. Yet to instructed court district here. claim) (and any- that he and into ... does not read dence not that it “must any along or done may -any have said over decision disagreed court thing Orsinger you should any what verdict Orsinger as to action suggestion way, or that took presumed was return,” the defendant that plain error No prejudiced that Mitchell. had the bur- government and innocent appears. charges every element prove

den doubt, and that a reasonable IV beyond beyond a reason- prove had to post-' his sought suppress and an Indian was that Mitchell able doubt they ground on the arrest statements in Indian Coun- the offenses occurred on involuntary, seeks reversal and were Major Crimes under for all counts try they taken footing this and because were Act. rights Fifth of his' Amendment violation did tell the district Because Arizona, under Miranda were established certain facts jury that 694 (1966), and 16 L.Ed.2d 86 S.Ct. Mitchell, but rather the burden shift or and under the Fifth to counsel right and explanatory charges stated Amendments. Sixth dire, and voir purposes bias-probing event show cannot because Mitchell A plain error. there prejudice, Cf. working had been Agent Purscell FBI 1, 10-11, States, 527 U.S. Neder United Orsinsger/Na- disappearance on the (ex (1999) 144 L.Ed.2d anonymous call on victims, got and kai omitting, misdes- errors plaining information on offering those November an ele conclusively presuming cribing, or possible homicide another and murders structural). offense are not ment of an turned The call out robbery. Nakai, met agents with whom Jimmy from E day, FBI agents The next night. from Orsinger severed meeting at joint held a investigators tribal jury. selection morning that trial on the office, led Duncan Gallup FBI that this deci- now claims began. Mitchell discuss Purscell, to share information dramatically nature changed sion had investigators of action. Tribal courses selecting jury, which he was the ease for truck, incident though that found Slim’s object request did not at the time but missing per- being investigated was still nothing points He continuance. circumstances. criminal possible sons with any effect of indicates record that calls strategy or counsel’s Purscell, supervi- decision an FBI point At some in judgment his counsel’s question into Attor- States sor, Assistant was voir dire. There with going forward (AUSA) in a conference' participated ney plain error. not was there It was decided call. probable to obtain information enough in plainly err Nor did war- or arrest search for a federal cause than, rather jury selection with proceeding at- possibly suggested The AUSA rant. sev after the starting it anew sponte, sua warrants. tribal arrest seek tempting'to was that his argues erance. Mitchell he thought investigators the tribal One of in participation by Orsinger’s tainted warrant, it was a tribal get could listing juror questionnaire, drafting the picked should be suspects that the decided excusáis, making ar juror stipulated public of concern for up tribally because for- respect to hearing with guments at safety. A in tribal warrant was fact ob- in the Orsinger’s remarks of counsel about tained, arrested, Mitchell was and FBI case,” “what happened this adding: him. agents interviewed “Rather than charges file federal and im- plicate only juvenile rights that posits actually Mitchell that he was not [Orsinger’s said counsel] were violated custody 'tribal when he confessed to respect with Orsinger, to Mr. but also the custody, FBI agents, but federal be- rights obvious that would have attended cause federal and tribal authorities acted filing of federal charges including the federally- in collusion to circumvent his right appointment immediate protected rights arraignment, to a prompt Mitchell, counsel for Mr. essentially Mr. silent, to remain and to the assistance of jail was stashed in the tribal counsel. He submits that collusion is evi- more than three weeks on these tribal given dent federally-funded that a task charges which no one connected with force this conducted the criminal investigation case believed going were ever using investigators pro- tribal as “an additional ceed.” Other than manpower,” passing comment, source of investiga- FBI, tion tip presentation was based on a Mitchell’s pitched that a entire- Miranda issues. The court only ly tribal arrest warrant was issued after issued agents AUSA, FBI conferred with an denying reasoned order Mitchell’s motion this route was a way chosen as to contact to suppress based on the voluntariness him, Mitchell and interview and that FBI Miranda waivers. After the initial hear- agents were the officials who ing, interviewed Orsinger filed a motion that addressed him three times. Consequently, Mitch- collusion specifically; issue inore view, ell’s his confessions are inadmissible join Mitchell did not in this motion. The they involuntarily given as were under 18 court ultimately held evidentiary another ' U.S.C. 3501. hearing- Orsinger’s motion, on for which Mitchell and his present counsel were but out, As the points they in which join did not participate. specific Mitchell did not raise this issue at The court issued a ruling delay detailed (and received) trial. requested and collusion issues with respect to Or- hearing on the voluntariness of his custodi singer. Understandably, it made no find- al Orsinger., statements. So did In argu ings or conclusions on these issues with ment at evidentiary the first hearing, Or- Mitchell; respect and Mitchell neither singer’s suggested counsel that the tribal sought to correct the impression court’s custody arrest and had been a facade orch them, he did not raise nor to adduce estrated deprive the FBI to Orsinger of evidence and elicit a ruling that would procedural federal rights juvenile, for a have determined discretely these issues speedy such as the presentation of federal to him. charges to a federal judge prompt and the appointment most, (Orsinger therefore, counsel. was a At our review is for not.) juvenile, but Mitchell During plain error. But even if passing argument, Mitchell’s joined counsel said he comment at the hearing first sufficed to right 3. The Sixth Amendment to counsel does the time of Mitchell’s arrest did at least in apply not proceedings. in tribal court See appoint some circumstances advisors for indi- (9th. Percy, United States v. 250 F.3d defendants, gent but these advisors were not Cir.2001). Act, Rights The Indian Civil necessarily attorneys, licensed and that some provides right U.S.C. for a to retained nonlawyer appointed such advisor was for , only. Percy, counsel 250 F.3d at 724 n. 2. The Mitchell. Navajo record here shows that the at Tribe on trib- arrest warrants to. obtain evidence the pursuit Orsinger’s on piggyback on that jointly decided and charges, al the for thereafter, appears no reason point It safety. public in interests course the the co-defen- treated to have court district his had not met Orsinger concluded that apparent no differently. There dants actual collaboration to demonstrate burden af- would two that the between difference tribal authorities and federal between delay collusion and disposition fect procedural federal of his him deprive feder- The poses. Mitchell now that issues rights.5 cir- were asserts that Mitchell rights al Fed. § 3501 and

cumvented, in found that Mitchell Alternatively assuming 5(a)(1), substantively similar are R.Crim.P. of collusion arising out issues preserved juvenile rights for a corresponding is under the delay, and our review and developed § 5033.4 plain for er- in 18 U.S.C. instead normal standards his situation distinguishes court ror, say the district no record we cannot indeed, developed he or that its findings Orsinger’s; in its clearly from erred our Applying all. law. Mitchell the point the not follow conclusion did record Doe, 155 F.3d “actual collabo- showing burden of United States had the opinion in Cir.1998) (en banc), the him of federal to deprive ration” intended Doe, at 1078. rights. basis of testimo- procedural the found on district investigators and agents investiga- Having the and tribal heard agents ny by federal a to seek in decision evidentiary hearings who were involved during tors case, Orsinger’s testify in evi- warrant insufficient tribal was concluding there after testimony of court found arrest search or federal to obtain dence was credible. and Duncan Agents Purcell warrants, in the November participants rights in the difference This means sufficient there was briefing determined determining judge in given," that the trial pertinent part: provides, in 4. Section all the circumstances shall take voluntariness custody juvenile is taken into a Whenever consideration, elaps- including the time into delinquency, juvenile alleged act of for an arraignment, if the arrest and ing between immediately ad- arresting officer shall interim; whether made was confession rights, legal juvenile of his vise such offense nature knew the defendant juvenile, and to a comprehensive language he charged or of which which he was with Attorney Gen- immediately notify the shall was the defendant suspected; whether parents, guardian, or juvenile's eral and required to make he knew was advised or custody.... of such custodian could any such statement and that statements mag- a juvenile be taken before shall him; the defendant against whether be used shall judge In no event forthwith. istrate of his prior questioning advised had been longer a than juvenile be detained counsel; defendant right whether being time period of before reasonable when of counsel the assistance was without judge. magistrate brought a before 3501(c) gov- allows the Section questioned. so, say presumably Although doesn't during which harbor six-hour safe ernment a part on Fed.R.Crim.P. argument rests in person under (b). made 3501(a) while a confession §§ 5(a)(1), part on and in custody of detention arrest or other 5(a)(1) provides: Rule or law-enforcement officer arrest within law-enforcement making an person A solely be- agency with- not be inadmissible shall take the defendant must United States person before bringing delay such magistrate delay cause of unnecessary before out judicial judge. magistrate or local state judge, or before a magis- 5(c) provides a[if as Rule officers unpub- appeal in Orsinger’s available], We resolved reasonably un- judge is not trate disposition. United lished memorandum provides otherwise. less statute (9th Cir. Orsinger, 03-10500 No. (b) States 3501(a) together provide that Sections 27, 2005). voluntarily June if admissible shall be a confession 962 (9th Cir.2001) (so

afforded to those in federal and tribal cus stating respect with to a discussed, tody was not the federal officers defendant in tribal custody); see also concluded there was insufficient evidence Alvarez-Sanchez, United States 350, 358-59, to obtain federal search or arrest 1599, war U.S. 114 S.Ct. rants, (1994) the tribal officers- concluded L.Ed.2d there (holding person that a questioned by was sufficient evidence to obtain a federal arrest officer while being charges, warrants on tribal held on charges both were con state any was outside public safety, protection cerned about they joint by afforded 18 U.S.C. 3501(c)).6 § ly decided to pursue a tribal warrant. While the court could have found other this, Given to the extent Mitchell main- wise, obliged do so as its that delay tains enough alone is require findings not without support are in the suppression confessions, of his the relevant Michaud, evidence. See United States delay period is not the from November 4 (9th Cir.2001) 728, 268 F.3d (stating until November period but is the on

that the district court’s factual determina November 29 between the time when tion regarding the existence collusion is Mitchell was picked up at jail the tribal error). only reversed for clear light In and when he presented magis- found, what it functionally was not judge trate in Flagstaff. Although Mitch- arrested charges federal when he was ell notes that his statements got progres- arrested, held, by tribal authorities on sively more incriminating, with the third— 4; put differently, November he was not and most incriminating occurring after — tribally arrested in order to deprive him of his arrival at the federal courthouse but procedural federal rights. Proof of delib before arraignment, points he to no evi- erate deprive suspect intent to of federal (and dence argue) does not that his No- procedural rights is required to trigger the vember 29 confession should have been protections 3501, Michaud, §of 268 F.3d suppressed under solely 3501 due to de- 735; Doe, at 155 F.3d at but lay that morning.7 lacking Therefore, in Mitchell’s case. he federally was not arrested until November B Interviews federal authorities in permissible meantime were and state object did not at trial to evi- ments obtained were admissible. Mi dence about the knife that out fell chaud, (so F.3d at stating pocket with pants of his residence, the Nakai respect ato defendant in custody); state but now maintains that it violated Mi- v. Percy, States 727 randa he because had been arrested at suggests 6. The delay dissent between develops district court any argument nor with agents enough when knew federal to make an respect event, to it any here. plain they compels arrest and when finding did appears. error Percy, See United States v. Dissenting op. collusion. at 1000-01. Not (9th Cir.2001) 726-27 (explaining 723-24, Percy, so. See 250 F.3d at (up- tribal, arguably that an arguably federal de- holding finding of no collusion where cross- counsel, fendant who does not retain does not agent certified arrested the de- federal/tribal indicate that he wants the assistance coun- charges fendant despite on tribal knowledge sel, and a valid executes waiver of his Fifth warrant; of an outstanding federal arrest counsel, right Amendment any also waives later; days defendant was interviewed 17 right Sixth Amendment might he counsel arrest). placed he was then under federal have) Illinois, (citing Patterson v. 7. Mitchell mentions the Sixth Amendment but (1988)). 101 L.Ed.2d 261 neither raised Sixth Amendment claim in robbery counts the on together Mitchell advised of been yet not had but point that to- left Orsinger were and admitted, while Mitchell offi As Mitchell rights. his counts. Then carjacking to re -on the gone gether have not probably would cer was robbery counts not trial on the if he—Mitchell—had pants his trieve circumstances, Orsinger was and Gregory, from these severed them. for asked counts when carjacking have believed on the possibly cannot severed the officer his trousers introduce im- to where filed a motion asking Mitchell Mitchell that elicit likely to reasonably days five against him evidence peachment would were incriminating. begin. towas The anything before selection govern- granted then district court

C robbery and rejoin the to ment’s motion Mitchell, finding that his confes- asserts Finally, against Mitchell counts carjacking im- agents that involuntary in a scheme of common they parts sions were were positive in a go things would prejudice. cause no plied joinder would and him he and told cooperated, if Mitchell way only under error presses Mitchell lawyer have a right to have the would 14(a). He has burden Fed.R.Crim.P. fact, when, ap- no in for him appointed trial was “mani joint proving of in for individuals possible pointment right his to fair in that festly prejudicial” credited The district custody. tribal v. States Lew abridged. United trial was findings were its testimony and agents’ Cir.1986). (9th is, F.2d no offered Mitchell clearly erroneous. not wrong, this standard heWhile believes confused he was evidence power change has panel three-judge that he agents, by the made promise standard, the district this Applying it. for counsel. ever asked its to exercise compelled court was Evidence the counts. to sever discretion V have charges would beén robbery on join- on center issues guilt phase Other trial separate on largely admissible rulings that evidentiary discovery; and der States See United counts. carjacking rights to ran afoul of claims Cir.1985) (9th 708, 712 Irvine, trial; confrontation, and fair process, due preju is no manifest there (holding that instruction; and abetting aiding and circumstances); States in such dice for miscon- a mistrial declining grant Cir. Kenny, closing ar- and statement opening duct on October 1981) (same). carjacking The gument. for the vehicle get-away provided two sets robbery October A plan or a common part of crimes were pretrial permeated difficulties Joinder legally one scheme, rendering evidence Orsinger, Mitchell, proceedings. other; crimes are as the relevant as tried to be were slated Nakai Gregory helps ex about one correlated, knowing only charged Gregory was but jointly more likel makes it so the other plain Orsinger robbery counts armed for the court fail also faults y.8 counts. murder in the only charged Rule a Federal to conduct ing explicitly Grego- sever decided The district court determining analysis Evidence Gregory out, keep also but ry to show the relevant robbery was also were so if that even suggests 8. Mitchell aggravating factor. gain pecuniary for phase, it wasn't guilt purposes of the disagree. Evidence phase, but we whether evidence on one of charges Amlani, set (9th States v. 705, 111 712 F.3d would have been Cir.1997). admissible a trial on However, the other. the court found that plain No appears error with respect to (which limiting it gave) instructions would contention, his first given he was not ameliorate the risk of prejudice. unfair questions or answers to the polygraph Mitchell argue does not this is incorrect. examination. Mitchell did move for a mis- Further, suggests, Mitchell sup- without trial when the sought to intro-

porting authority, that severance was re- duce anatomical drawings to aid in the quired the carjacking because count was medical examiner’s testimony. However, eligible. death But potential preju- for counsel acknowledged he had been dice turns on the factual relating evidence told that diagrams being were made and count, to that not on given whether a count the district break, court offered a which is death eligible. There is no reason to counsel accepted. In circumstances, these suppose that evidence of the carjacking, Mitchell’s substantial rights were not af- which was eligible, death was more preju- fected, nor did the court abuse its discre- dicial than murder, evidence of the which tion in denying a mistrial. was not. finally Mitchell argues that rejoining C of counts so game late prejudiced Mitchell finds various viola him. We fail to see how. Mitchell was tions of the Confrontation Clause in the himself responsible decision, for the late record. We do not. We review the dis having moved for the first time to intro- trict court’s construction hearsay of a rule duce prejudicial against evidence his code- novo, de its exclusion of evidence un only fendant days three business before der a hearsay rule for abuse discretion. jury selection begin. was to That prompt- United v. Ortega, States F.3d ed the district court Orsinger sever (9th Cir.2000). Alleged violations of the from Mitchell, and the prospect of having Confrontation Clause are reviewed de four separate trials prompted the decision novo. United States v. Ballesteros-Seling rejoin all of Mitchell’s counts. er, (9th 974 n. 2 Cir.2006). sum, joinder robbery and mur- ders counts permissible and declining i to sever them was not “manifestly prejudi- First, Mitchell not allowed cial” were, because they fact, related, cross-examination of Agents Kirk and and the evidence would in any- have come Duncan to elicit exculpatory statements way.

that he during made interviews to the B effect that he had cooperated with law enforcement, that he had denied killing Mitchell complains that anyone, and that he and Orsinger had been government committed two discovery vio drinking in Gallup. These affecting lations statements guilt phase. We re were inadmissible hearsay; view the district discovery court’s rulings was attempting himself, abuse of introduce discretion. them United States v. Danielson, they were not party-opponent admissions, Cir. 2003). reversal, For nor did the fact they defendant must were made in a show that the district more broadly court abused its self-inculpatory confession discretion, “the error bring resulted in them within the statement-against- prejudice to rights.” substantial interest exception. Ortega, 203 F.3d at during ques- lied States, testimony that Mitchell v. United Williamson (citing the trial court when removed tioning&emdash;was testimony.9 us to (1994)). asks struck that L.Ed.2d so. cannot do panel but this Ortega, ignore ii should this case argues also He capital gov- involves opening because statement its distinguished During sup- authority in by made but offers to statements punishment, referred ernment rules hearsay the claim the statements of port elicited those Orsinger Addi- cases. capital differently in Mitch- operate Kirk. Agent of during examination has been Ortega he submits tionally, v. Bruton Unit- afoul of this ran argues ell Washington, v. by 1620, undermined 20 States, 88 S.Ct. Crawford U.S. 391 ed L.Ed.2d 158 36, 541 (1968). alleged Bruton An 476 L.Ed.2d inapposite. is (2004), but 177 Crawford novo. de is reviewed violation it proposition the for stands (9th 786, 795 Crawford 271 F.3d Angwin, v. States to certain circumstances improper is grounds, other Cir.2001), overruled ac- the testimony against hearsay admit (9th F.3d 1186 Lopez, v. 484 United States hear- of the into one if falls even cused banc). Cir.2007) (en about nothing says It exceptions. say progeny, its Bruton “Under be able ought a defendant when by a made a statement of the admission hearsay evidence of admission compel violates codefendant non-testifying favor. in his that statement when Clause Confrontation constitutional Mitchell’s Neither powerfully clearly, facially, expressly, severely witnesses to cross-examine right Id. at defendant.” implicates rights process restricted, his due were nor co- only where However, applies Bruton elic statements inculpatory offended. inappli and is jointly, are tried defendants Kirk Agents examination on direct ited non-testifying codefendant cable when context taken out were Duncan See out, case here. was the is severed 203 Ortega, See distorted. or otherwise Gomez, 699 276 F.3d v. United States (no circum such violation F.3d 683 Cir.2001) States (citing United (5th n. 4& himself testifies stances, a defendant when Cir.1984) (5th Briscoe, F.2d 847 statements) (citing Unit exculpatory toas however, there (“For apply, Bruton to Fernandez, F.2d ed States co-defendants. trial with joint must be Nakai, curiam)); Cir.1988) (per that of from severed trial was Briscoe’s (same, consideration without at 1022 inappli is defendants; thus Bruton other not). testified or the defendant of whether cable.”)). been he had Duncan told That ability do nothing to with drinking had iii testimony that agent on impeach objection re- in without came Evidence pur And Mitchell’s give. did agent used the truck plate of the license garding state to elicit seeking reason ported robbers; information Post Trading by anyone—t killing he denied in which ments an un- from by law enforcement received Kirk’s Agent refute clarify and need he written only to applies Rule argument. of his argument that exclusion 9. Mitchell’s statements, oral not unrecorded recorded Fed.R.Evid. and confessions, exculpatory statements violated render does not first Rule 106 it for the he raised waived because hearsay. Ortega, by inadmissible is also foreclosed reply. It otherwise admissible time rejected similar we where F.3d at identified other, informant Slim’s truck had direct testimony to similar effect. been in the area of grandfather’s Mitchell waived error with respect to the house; and the goods value taken value of goods by agreeing to allow the during Trading Also, Post robbery. to reopen for Agent Duncan fingerprint examiner testified that his testify to what he was told. The finger- conclusions had been verified someone print examiner’s testimony was harmless else, and the medical examiner testified in light proper of his testimony as to his about incised wounds to Doe’s neck and a own conclusions and the abundant other diagram injuries may have been the evidence linking Mitchell to the crime. work anof assistant. Mitchell now claims And the medical examiner who conducted error. Our plain review is for Crawford and supervised the examination and com- Jawara, error. United States v. pletion diagram was available for Cir.2007). cross-examination, so Mitchell’s substantial rights were Confrontation Clause affected even if does anno- some not apply is, to non-hearsay, that tations it were “does someone else’s out-of-court not bar the use of testimonial statements statement. for purposes other than establishing the Mitchell also argues that his Crawford truth of asserted,” the matter nor does it rights again were violated in the penalty apply hearsay by to a declarant who ap phase because all of the evidence received pears for cross-examination at trial. during guilt phase was admitted dur- Crawford, 541 U.S. at 59 n. 124 S.Ct. ing the penalty phase as well. Assuming 1354 (citing Street, Tennessee 471 U.S. (without deciding) that applies Crawford 409, 414, 105 S.Ct. 85 L.Ed.2d 425 during a capital sentencing phase, there (1985) Green, and California was plain no error. As we explained, have 149, 162, 90 S.Ct. 26 L.Ed.2d 489 there was no obvious or consequential (1970)). Statements made the course of error, and Mitchell makes no Crawford police interrogation are nontestimonial effort explain how, to were, if there

when made “under objec circumstances affected his rights substantial during the tively indicating primary that the purpose penalty phase. of the interrogation to police enable assistance to meet ongoing an emergency,” iv but are testimonial when “circumstances objectively indicate that there is no Jason such Kinlieheenie cooper was a ongoing emergency, ating and that primary witness who testified for the govern purpose of the interrogation is to pursuant establish ment to a written plea agree prove past potentially events relevant to ment. Mitchell was able to elicit that later prosecution.” criminal Davis v. Kinlieheenie had plea entered a agree — Washington, U.S. -, ment; that he had facing been four counts 2273-74, 165 (2006). L.Ed.2d 224 relating robbery to armed with a potential minimum plain

No sentence years; of 62 error that if appears. Testimony by a patrol “things go to officer were way” about eyewit- [his] an under the information agreement gave nesses her he parked about car would instead receive a the Trading Post minimum was offered sentence years, as basis for of 7 a reduction action, not for its years; truth. if tip Even plea agreement re that Slim’s vehicle quired had been area testify him to truthfully regarding near grandfather’s house robbery were and the murders of Slim and hearsay, nothing came of it Doe, there and was as well as the murders of two other cooper- to willing was as he to Kinlicheenie Sam); order and (Begay victims friend Mitchell, longtime his he against ate agreement, of the the benefit obtain by the and as determined relative. the truth tell had case; in Mitchell’s prosecutor district contends that also Mitchell prosecute could prosecutor 608(b) well Fed.R.Evid. violated maximum seek any crime for him preventing rights by constitutional as his not believe did prosecutor if about Kinlicheenie questioning him from truth, as inform as well telling the was he have This would for theft. arrest prior could result which of Prisons Bureau of Kinlichee- weakly only probative been custody status. protective a loss truthfulness; regard- character nie’s go however, not, allowed was cannot inquiry line of less, off cutting and Sam Begay details into the evi- the other Mitchell as prejudiced have court’s because, district in the murders from Kinlichee- able elicit he dence murders would view, those discussion Kinlicheenie nie, admissions including He Rule under prejudicial too occasions, more was far several lied on had restriction undue was an claims this insig- rendered impeachment effective cross-examine. confront right from any additional value nificant there disagree We authority for his cites theft. for the In order restriction. undue such to court’s refusal a district argument satisfied, to be Clause Confrontation a witness about to ask a defendant permit some for allows agreement plea a “where in misconduct criminal of instance past a to a witness to flow detriment or benefit veraci- for character poor prove to order defendant testimony, of his result constitutional a defendant’s ty violates examine to cross permitted must process. due to confrontation rights to make clear sufficiently to witness of every exercise he, unless could Nor flow, will or detriment what benefit jury to a adverse Rule under discretion or detri the benefit trigger will what and violation. a constitutional defendant testi might witness ment, why the to show benefit or gain to falsely order fy v. States v United detriment.” avoid the (9th Cir. F.3d

Schoneberg, 396 items of discrete a number cites not nec It was 2005). allowed. This was improperly were he claims evidence of about detail to hear essary for of dis- for abuse review is Our admitted. (in Orsing murders which Begay/Sam Alvarez, F.3d cretion, States United Mitchell, Nakai, but not Gregory er objec- Cir.2004), no (9th unless 1194, 1205 the bene involved) to assess order were review event we in which made tion was coopera his for received fit Kinlicheenie Tisor, 96 error, States plain for It to lie. his motivation tion, thus Cir.1996). Harmless 370, 376 F.3d mar of distracting and been have would ob- preserved applies analysis error adduced value. probative ginal only a conviction will reverse jections; we bargain plea of what evidence ample than not likely ruling more if an erroneous a 62 off of years objectively worth—55 Alvarez, the verdict.10 affected subjective value of its year sentence—and his argue that does not Fed- suggestion Mitchell's We note analysis plain error subject failing to are not claims Penalty Act is infirm Death eral review, we FDPA. have but under plain-error allow because question here address need at 1205. Addressing assignments charge other than murder in conducting its error in turn: analysis Rule 403 is unsupported, but even so, would fail because he for, neither asked

Medical Examiner Hearsay. An ade- argues nor that it awas quate mistake foundation was laid for admission of give, a limiting Likewise, instruction. diagram during made the autopsy aas Mitchell’s argument business that the 803(6). preju- record risk of under Fed.R.Evid. dice in the penalty phase compelled exclu- Mutilation. Evi Post-mortem sion of the evidence in the guilt phase fails dence of post-mortem decapitation and if for no than, other reason as we shall dismemberment, thus photographs de explain, was admissible on the gateway it, picting was relevant motive, show intent factors and on one or more of the premeditation, and guilt; consciousness of aggravating factors. it tended to show that to, Mitchell needed to, and tried the identity obscure of Slim Victim Vulnerability. Evidence and Doe in order to have an injuries untraceable Slim’s leg was relevant both to vehicle for use in Trading Post rob explain why Slim set out to see medicine bery that he and his planned cohorts person and to premeditation because it commit. Beheading dismembering tends to show that posed Slim no threat to Slim and Doe to conceal who the victims Mitchell Orsinger, and they only killed were also light shed on the veracity of her because it furthered their plan to ob theory of defense—that he was tain untraceable getaway car. Mitchell present but did not participate in the kil object, did not and there was no plain lings—because glove linked to Mitchell error. through DNA evidence was found in the Victim Impact Evidence. Testi hole where severed parts buried, were mony by Doe’s mother that Doe didn’t tending to show participation in the muti go want to with Slim on the trip, but her lation, thus guilt, consciousness of thus her, mother made was not plainly so in participation in the killings. Also, as the flammatory that it should have been ex district observed, court the medical exam sponte. Nor, sua cluded in light of the iner had to discuss severance of Doe’s overwhelming guilt evidence of can it pos in head order to explain the difficulty in sibly plain error, have been in the absence determining whether and how her neck of a motion strike, to for the court sliced, to let was why and the examiner could stand an by not observation the medicine determine whether the slicing wounds woman whom Slim saw that day were fatal. that Slim Cause of death was obviously or Doe had been a beautiful important person, it because on and “it bore details relat awas ed in shame.” The same is Mitchell’s true of confession. The testi district mony by court two robbery painstakingly victims about going scrutinized graphic to the photographs hospital offered as a by result of having the government, been making hit with a gun refined and judgments having about been which scared and pushed should be evidence, received into around the and counters. how This was they should be relevant to cropped or show that displayed to taking was done prejudicial minimize by impact. violence, It force or did not an element of rob abuse its discretion in balancing probative bery.

value in prejudicial relation to effect under Opinion Evidence. An investigative Rule 403. agent testified, objection, without that he Mitchell’s suggestion that the court pictures took splatter” “blood on the erred by not considering elements of any truck; inside of the he authenticated the cir- probative is he was but that things, opinion express not but did photos involvement of his evidence cumstantial Similar- signified. photos what about error, it if there were Even the crime. photo- about agent testified FBI ly, an strong evi- given harmless blood had would be that he believed of rocks graphs robbery. linking the sub- him that testify dence not them, did but there As blood. was rocks on the stance did Age. and Weight, Height, agents, by the testimony expert no was evidence Or- time to at the object it allowing error plain was no there and his age weight, height, singer’s them. qualifying without later, he ar- thoughts own; having second put and Photos him to the door opened Hearsay gued that Informant from investigator Orsinger A tribal Canyon.” about act evidence “Mitchell’s in bad to went why he explain purpose The evident permitted was to strike. moved grandfather Mitchell’s where near to counter an area was Orsinger evidence had that he information to confirm intimidat- lived was theory that Mitchell defense Slim that informant from gotten Orsinger was though even Orsinger ed at some there supposedly was vehicle no error. was There than he. younger tire finding Although he testified point. argues DNA Evidence. admitted he also footprints, tracks admitted not have should that either match made to were no “efforts DNA irrelevant misleading, and confusing, foot- or the saw [he] tracks the tire doing so suggests that also testimony, and or shoes any tires saw [he] prints Daubert test. Daubert short of the fell case.” in this to someone belonged Inc., Pharmaceuticals, Dow Merrell erroneous. plainly been have cannot This 2786, 125 L.Ed.2d 579, 113 S.Ct. Investi- Home. in Nakai’s Seized Items gatek courts (1993) federal (making newspaper finding a testified gators evidence). reliability of scientific eeper for robbery and story on the front-page awith however, mentioned never Daubert, was the Nakai codes scanner police devel is argument court and district that Mitchell morning on the residence No this court. it in respect with oped argument there. arrested difficulty the real apparent; error plain merit- hearsay is newspaper lay case in this DNA evidence with the in for obviously came paper less. explana expert’s of the coherence with the home, for its not in the presence of its fact “match,” a constituted what tion of not story event, could the In content. exclude”—not “exclusion,” a “cannot jury only allowed the read the be method of the integrity inherent the with afar. from headline paper and the to see or results. ology solu- court’s object the not did Mitchell a expert, government’s the According irrelevant, as was not This evidence tion. possesses person the when exists “match” he fact contends, the because Mitchell (DNA segr sequence “alleles” the all of committing of suspected others different sample at ments) a from taken togeth- staying robbery were Trading Post chromosome), but aon (positions “loci” and a scanner police where er in house possesses he when is “excluded” person robbery covering article newspaper sample. from the taken the alleles none of evi- other corroborates also found were confusion centers complaint actually men and those that Mitchell dence “could person it meant about what there course robbery. Of commit did the ex- Undoubtedly excluded.” not be why explanations possible other are. model of clari- anot explanation pert’s these with place in a found Mitchell ty. basically She said it meant that likely alleles from understood this evidence that than person more one present are in the DNA linked Mitchell to the black knife and sample, yet never clearly articulated what Slim’s cell phone, and somewhat linked exactly the that a person fact cannot be him to the glove. mask and It definitely excluded from a sample says, about the connected Slim’s blood to the chrome knife probability person’s that the pres- is DNA found in Mitchell’s pants. sum, Mitch- ent in the sample, likely how it would be ell has shown no plain error. person would possess any given number of in a alleles yet mixture and still D not have contributed the DNA. requested aiding and abet Mitchell suggests that “cannot exclude” ting (Ninth instruction that was given Cir is very definition non-probative. cuit Jury 5.1), Model Instruction but now Thus, submits, he evidence beyond that claims that it omitted the element that the , matching Slim’s blood to the truck and accused had requisite intent of the found knives house, the Nakai underlying substantive offense. United matching rocks, blood to Doe’s should Garcia, States v. F.3d n. 2 not have been admitted because it told the (9th Cir.2005) elements). (listing Giving

jury nothing. We do agree; not the ex- the instruction plain error, was not howev pert’s testimony indicates that a “cannot er, because it included the statutory lan exclude” finding lot, can tell a and can guage 2(a) in 18 U.S.C. and stated that increase the probability that person’s someone must have committed the DNA crime present, depending on the number charged. United States v. Armstrong, at loci person which the be cannot ex- (9th 1238, 1244 F.2d Cir.1990). cluded. Apart from the evidence that Mitchell E

concedes was properly admitted, was told that there awas mixture of at identifies in three least person’s three DNA on the black stances of misconduct in government’s butterfly knife from which the expert con- opening statement. A district court’s re cluded that Mitchell and Jakegory could sponse to an objection on grounds loci, be at excluded all 14 Slim could prosecutorial misconduct, including denial not be at' excluded 13 and Or- of a mistrial, is reviewed for abuse of singer’s father and Gregory Nakai also discretion. Steele, United States v. could not excluded; that there was a Cir.2002). When ob mixture of at least people two on the jected to, subject misconduct is to harm knife, chrome and Slim matched major review, less error while conduct to which component loci, all which would be the defendant failed to object is reviewed expected to occur in billion Navajos; 1/650 for plain error. United Cruz, States v. de that Mitchell could not be excluded at 12 of Cir.1996). F.3d 14 loci on Slim’s phone; cell that Mitchell could First, not be excluded from the Halloween AUSA mentioned state mask because he had ments by some made of the Orsinger, alleles which Mitchell found, but alleles he claimed could not was in pro- have violation of the court’s or duced were present; also and that der not Mitchell to refer in opening statement, or could not be excluded as a during c'ase-in-chief, contributor the to any of Orsing all six loci that could be tested glove on a er’s statements that refer to Mitchell. buried with the body parts. The The AUSA stated that between Orsinger partial the DNA glove, that, to the as fied and Alyee Slim of the bodies Mitchell and atof least a mixture “was obtained according profile to located; that were Doe Jane Lezmond Mr. that admit and Orsinger individuals and two Kinlicheenie, Mitchell aas con- young not be excluded lady and could an old Mitchell they killed that mask, profile told the tributor,” Kirk to the Agent and as that when and girl; Johnny Or- to individu- talked at least three have a mixture “We “was Mitchell Grandma,” could says stabbed Mitchell you Mr. Lezmond He singer. And that als. I did. saying “I by to this responded a contributor as Mitchell excluded be not The dis- times.” a few Grandma individuals stabbed other There were mixture. that the with Mitchell agreed court trict contributors.” as excluded were who last the made have not should government lay the to enough difference There is not order, denied but prior its under statement plain misconduct. to constitute ear Mitchell for a mistrial. request Mitchell’s statements, Mitchell to these addition hearsay statements Orsinger’s that argues identify- government’s about complains not, or did him, they either but implicated this refer- Navajo. Neither ing Slim as prejudicial. to as not obliquely did so effect to the same testimony ence, nor jury that emphasized court also racially in- Kinlicheenie, was Yazzie evi- not are lawyers by the statements What way invidious. any flammatory or in. did not reasons For both dence. learned, their told, about jury was refusing mistrial. in its discretion abuse ethnicity was unavoidable. “Mitch- that Second, asserted AUSA many statements points Mitchell did or at her asked, you yell ‘Did ell was im- were he claims that closing in made ‘Lay die’? won’t the bitch that you yell objected at he neither to which but proper, he admitted die, And bitch.’ down on argument an much of develops nor trial and the effect to that said words he closing ar- reviewed haveWe appeal. . ground.” on down laid girl little of the to each attention close with guments Agent objection. interposed complains. about which comments expected Kirk, whom the put been have might things some While Mitchell said told he been had testify prejudicial see cannot felicitously, we more he slashed that “after only this, testified collec- remarks, singly impact from her, in throat, he told girl’s young tively. ground essence, lay down suggestion Absent die.” VI (and isn’t there faith bad statement guilt phase, during misconduct, Sometime nor plainly any), family apparently the victims’ substantial members affected it have could with wearing buttons courtroom in the instructions. sat light rights abe This could and Doe. of Slim pictures we find “When Third, AUSA stated: inherently prejudi “so it were if problem pair is a head hole, next [Doe’s] ,to a threat” unacceptable to pose cial there hear that will you And gloves. latex trial, meaning to a fair right defendant’s glove similar material is DNA presented risk is unacceptable “an masks found ... We the defendant’s. play,” coming into factors impermissible there’s hear that you will And the track. Risley, see, Norris e.g., de- all three linking material DNA some v. Lam Cir.1990); (9th Musladin worn were masks to the fendants Cir.2005), (9th 653, 656-57 F.3d arque, 427 did robbery.” Again, during the Musladin, v. Carey grounds, other on vacated testi- trial, expert the DNA At object. not - -, 649, U.S. is a largely matter within province (2006), L.Ed.2d 482 but is there Marshal, basis to which it unlikely for supposing the conduct posed here any Mitchell could have contributed anything such risk. All the record reflects is that substantial beyond his suggested ques- Mitchell’s counsel told the court week tions. every Mitchell had opportunity to later, and in with connection challenge different what the Marshal said about his matter, that out, some acting members of the victims’ and to state his position. own family were wearing buttons and that he does not suggest how he prej- had counsel it udiced on worked out either occasion. informally. There plain was no error. Nor has Mitchell any shown constitu tional violation. Neither discussion bears VII any connection presented to evidence On two occasions the district against Thus, Mitchell at trial. there was judge parte met ex with the United States no Confrontation Clause violation. Cf. Service, Marshals once to discuss security Kentucky Stincer, 730, 739-40, concerns to relevant the court’s reconsid 107 S.Ct. (1987) (indi 96 L.Ed.2d 631 ering its decision to transfer the to ease cating that the Confrontation “may Clause Phoenix, and another prior to the penalty protect well” right presence at a witness phase after Mitchell announced his refusal competency hearing because of the rela present. to be He claims both incidents tionship to trial testimony); United States violated Fed.R.Crim.P. 43 implicated v. Gagnon, 470 522, 526, U.S. 105 S.Ct. right his present be at a critical stage of 1482, 84 (1985) curiam) L.Ed.2d 486 (per the proceedings. objection No was lodged (indicating that the Confrontation Clause at the time. With respect to the first largely protects the right to presence, but instance, the court determined that the Due Process Clause is implicated in should hear from the Marshal any without stead “where the defendant is actually not one in attendance because of the Marshal’s confronting witnesses or evidence against concern about testifying him”). in open Likewise, there is no suggestion security matters; however, the court invit these discussions interfered ed counsel to suggest questions to pur way with right Mitchell’s to have the assis sued.- respect With second, to the Mitch tance of counsel, his from whom he was ell’s counsel asked judge speak with separated and no information was the Marshals about complaint withheld. No improper material was com that the Marshals “forced had him” to be municated so deny as to him a present when he did not want be. Dur fair trial. Finally, all for the reasons that ing the conference that followed with the there was no violation, Rule 43 there was Marshal, the Marshal apparently told the process no due violation. Id. at judge that Mitchell had stated (the his intent to S.Ct. 1482 process due right to be fight any attempt bring him to court present for only attaches when the defen “ the penalty phase. judge relayed this presence dant’s relation, ‘has a reason information bench, from the with Mitchell ably substantial, to the fullness of op present, day. the next As we indicated in portunity to against defend the charge Olano, United States v. ....’”) F.3d (quoting Snyder v. Massachusetts, (9th Cir.1995), and United States Dis 97, 105-06, 78 L.Ed. chner, 974 (1934)) (alterations 1512-13 Cir. 674 in original); Stinc 1992), meetings of this er, sort are not 482 U.S. at 107 S.Ct. 2658 (recog “stages” of the trial purposes of Rule nizing a defendant’s right to be present at 43. Securing facilities and transportation any stage criminal proceeding that factor mitigating a finding of A dence. presence if his outcome to its is critical of one more members or may be made of the fairness contribute would regard- may considered jury, and be the procedure). concur. jurors who of of the number less is (as here) mitigating VIII factor least one If all found, then decides whether jury the with of issues a number raises exist “suf- found to factors aggravating the under the sentencing capital to respect mitigating factors outweigh” ficiently the Act, including con- Penalty Death Federal 3593(e); § see also Id. to exist. found how and itself scheme stitutionality the of Brown, 441 F.3d States to him. applied it was Cir.2006) (outlining process). 1365-66 as a sentenc- death consider to In order identify- returned must findings be Special the requires FDPA the ing option, mitigating factors and ing any aggravating case, jury the or —first —in 3593(d). upon § Based Id. to exist. found reasonable a beyond unanimously find aggravating of the and its consideration of years (1) was 18 defendant the doubt: unanimous factors, jury by the mitigating offense; 18 the of the time older at age or defendant the whether recommends vote (2) had at 3591(a); the defendant § U.S.C. death, life im- be sentenced should reae mentes enumerated of four one least release, of possibility prisonment without intent fac- (often “gateway as referred Id. sentence. lesser some other or (3) 3591(a)(2); the exis- and tors”),11 § id. (e).12 3593(d), § statutorily sixteen one of atof least tence 3592(c). factors, § id. aggravating defined A findings, threshold these jury makes If the of the each asserts first pen- death for the eligible is the defendant is unconstitu- circumstances aggravating event, jury decides the alty. In that or both. applied as facially or tional or death a sentence of impose whether were aggravating factors statutory Six of re- possibility without imprisonment life gain; the jury: pecuniary presented appropriate determining the lease. es- offense was committing manner any whether sentence, jury considers cruel, sub- depraved; or heinous, pecially alleged factors aggravating nonstatutory vul- premeditation; and planning stantial be- proven been have by the killings; victim; multiple nerability of doubt, and whether a reasonable yond during occurred Doe of Jane the death by the proved been factors have mitigating commission attempted the commission of the evi- preponderance aby defendant partici- one of person, other than reae are: four 11. The factors/mentes offense, partic- such pants in victim; (A) intentionally killed a reckless constituted ipation in the act bodily in- serious (B) intentionally inflicted victim and the life disregard human of the in the death resulted jury that act. of the direct as a result died victim; act, an (C) intentionally participated taken, here, When, appeál person the life of contemplating that review appeals to the court directs statute intending that lethal be taken would including the case in the record entire with used in connection would force trial; informa- during submitted evidence partici- one of the than person, other hearing; sentencing during the submitted tion offense, died the victim in the pants sentencing employed in procedures act; or result aas direct findings returned special hearing; engaged specifically (D) intentionally and (b). 3595(a), 3593(d). § 18 U.S.C. violence, under knowing that the in an act so. We have done death to grave risk act created felony, of another kidnapping. 18 U.S.C. narrowing with respect function 8592(c)(8), (6), (9), (11), (1). § (16), One persons class of eligible for the death pen- non-statutory aggravating circumstance alty. ...” States, v. Jones United presented: that the defendant caused 373, 381, 2090, 119 S.Ct. 144 L.Ed.2d 370 injury, harm, and loss the victim’s fami- (1999) (citation omitted). Therefore, ly. jury The found each of these factors to “[wjhen purpose of a statutory aggra- exist. vating circumstance is to enable the sen- urged tencer to mitigating distinguish factors that those who deserve he did not have a significant capital prior punishment criminal not, from those who do record, § 3592(a)(5); id. per- that another provide circumstance must a principled son, equally culpable crime, in the will not basis for doing so.” Creech, Arave v. punished death, by § 3592(a)(4); id. 463, 474, U.S. 1534, 113 S.Ct. 123 L.Ed.2d if prison life in directed, were (1993) (citing v. Lewis Jeffers, 497 U.S. would be without possibility of re- 764, 776, 3092, 110 S.Ct. 111 L.Ed.2d 606 lease; that he responded well to struc- (1990)). Overbreadth is therefore a rele- environments; tured capacity his to vant concern and the basic rule is that appreciate the wrongfulness of his conduct factors “can be overbroad if the sentencing impaired, 3592(a)(1); § id. and that jury ‘fairly could conclude an aggrava- other childhood, facts background, ting circumstance applies to every defen- character, and record mitigated against ” dant eligible for the death penalty.’ imposition of sentence, the death id. Jones, 527 U.S. at 3592(a)(8). The court also instructed (quoting Arave, 507 U.S. at 113 S.Ct. that in factors, addition to these six mem- 1534). Vagueness is also applicable an bers of could consider anything doctrine, though “quite review is deferen- about the offense, circumstances of the or tial;” if “an aggravating factor has core anything else anyone relevant that individ- meaning that juries criminal should be ca- ually mitigated believed against imposition pable of understanding, it will pass consti- of the death All penalty. members of tutional muster.” Id. at 119 S.Ct. jury found the first three factors to exist 2090 (citing Tuilaepa California, 512 preponderance evidence; two 129 L.Ed.2d found Mitchell responded well struc- (1994)). We consider each of the fac- tured environments and would make tors at issue here in light of these princi- adjustment excellent if sentenced to life ples. imprisonment; one found his capacity appreciate his impaired; conduct six found Pecuniary Gain. first statu factors; other and seven wrote-in that tory aggravating factor the jury was in they found the letter from the Navajo structed on required a finding that Mitch Nation an additional mitigating factor. ell “committed the killing as consideration It ais requirement constitutional of cap- for the receipt, or expectation of receipt, of ital sentencing they schemes “perform anything pecuniary value.” See 18 13. In addition to statutory language, ceipt, expectation or of receipt” should be court defined jury: terms given their ordinary, everyday meaning “Consideration” in this context which obtaining means a includes expecting or

payment promise or payment something. return obtain "Anything pecuniary for services. The Government need not value” anything means in the form of mon- prove something pecuniary ey, value property, anything else having some actually changed hands. value, The words "re- economic advantage. benefit or Bernard, States case from 3592(c)(8). did ob Mitchell § U.S.C. (5th Cir.2002), on which that F.3d 467 complains 299 basis; now he ject on it Circuit relies, the Fifth because where unconstitutional Mitchell factor is this is pecu and of offenders to instruct the error class that it to narrow was held fails overbroad. and unconstitutionally factor where vague aggravating an niary value as by Woratzeck is foreclosed prevent The contention to victims shot carj ackers the (9th Cir.1996), Stewart, 329 F.3d v. Mitch their crimes. reporting from them “narrowing” chal a similar rejected which v. Chantha States on United reliance ell’s pecuni identical almost to Arizona’s lenge Cir.2000), (10th is also dara, 230 F.3d See also factor. gain aggravating ary that held Chanthadara misplaced. Stewart, 1058- F.3d v. Williams instruction value pecuniary of phrasing Cir.2006) (same). vague it because error case was given in that The merit. “core also lacks challenge ness it to which ‘offense’ specify to “failed is factor value pecuniary of meaning” homicide, the under not referred language and the face from obvious im to thereby failed robbery, lying jury. provided definitions at 1264. Id. necessary limitation.” pose a is factor this contends further Mitchell specified contrast, here the instruction automatically it because unconstitutional killing committed the “Defendant every for car- eligibility capital triggers ” as consideration.... reasons He death. in that results jacking 3593(c)(8) ap- plain terms by its Section aggravating value” “pecuniary which robbery scenarios to plies function be- narrowing no provides factor pecuniary kill to for motivated is defendant by definition carjacking is every cause every not the case That is reasons. of obtain- expectation” “in the committed de- aptly it but scenario carjacking-murder reading plain The value. something ing Slim here. happened what “in the scribed 3593(c)(8) applies it is that §of incidentally, or rob- not murdered in the were ... or Jane scenario murder-for-hire crime, but because (if committed up a solely the defendant to cover scenario bery di- flow expectation expected ‘in the gain murder “pecuniary a concomitant Bernard, pecuniary anything of receipt homicide.” rectly from Brown, at 1370. value’).” there was Accordingly, See at 483-84. construc- no alternative proffers plain error. when suggest he does Nor tion. Depraved. Heinous, Cruel and 3592(c)(8) considered appropriately is § which upon factor aggravating second not could value” “pecuniary jury if find it to required jury was instructed Trading or the truck Shm’s Alyce include espe- killing in an “committed 3592(c)(8) to § Limiting robbery. Post manner cruel, depraved heinous, or cially second read the would murders-for-hire physi- or serious torture in that it involved And Mitchell’s the statute. out of clause [Jane Alyce Slim and/or abuse cal 3592(c)(8) unconstitu- § insistence 3592(c)(6). Mitch- 18 U.S.C. See Doe].” every car- “encompasses it because tional is unconstitu- factor that this submits ell that was argument same is the jacking” that Con- given so tional, can’t be but Mitch- Woratzeck. rejected made by “especially meant what it defined gress directly tied killing was motivation ell’s speci- it cruel, when heinous, depraved” or spree was his crime gain, to pecuniary killing manner for this fied and Jane kill Slim needed ongoing—he “torture involve must aggravating, robbery could in the used the vehicle so See the victim.” abuse physical serious distinguishes That to him. be traced Maynard Cartwright, 486 U.S. 364- after Slim and Doe lost consciousness or (1988) 100 L.Ed.2d 372 were dead. (strongly suggesting that such a narrowing There is no question that post construction constitutional); would be mortem may mutilation constitutionally be Arizona, Walton 654-55, considered as an aggravating factor (1990) L.Ed.2d 511 death sentence See, determinations. e.g., (approving of an aggravator), such over- Lewis, Richmond v. 40, 48, 51, 506 ruled on U.S. grounds, other Arizona, Ring v. 528, 113 584, (1992) 536 S.Ct. 121 2428, U.S. 122 L.Ed.2d 411 153 L.Ed.2d (holding (2002); Jones, Arizona’s narrowing States v. con (5th Cir.1998). of struction its “especially heinous, 249-50 Alterna- cruel tively, depraved” or maintains that factor to the court’s include “needless charge defined the statute in mutilation of the overbroad victim” after death is con terms,14 particularly permitted because it stitutionally adequate) (citing Lewis v. Jef jury to consider conduct fers, occurred 764, 777-78, 110 S.Ct. instruction, 14. The court’s adopted essentially unlike may be inflicted either be- torture — verbatim from an instruction before the Fifth fore or after death and require not does Hall, Circuit in United States v. the victim be conscious of the abuse at the (5th Cir.1998), stated: However, time it was inflicted. the defen- The statutory aggravating second factor dant must specifically have intended alleged by the Government is that the De- apart abuse from killing. fendant committed the killing espe- in an Pertinent factors in determining whether heinous, cruel, cially depraved or manner killing a heinous, especially cruel, or in that it involved physi- torture or serious depraved gratuitous include: infliction of cal Alyce Doe], abuse to Slim [Jane and/or upon violence the victim beyond above and "Heinous” shockingly means atrocious. necessary killing; commit the need- heinous, killing For the to be it must in- less mutilation of the body; victim’s volve such additional acts of torture or seri- helplessness of the victim. physical ous abuse of the apart victim as set The word “especially” given should be its killings. from other ordinary, everyday meaning being highly of "Cruel” means that the defendant intend- unusually distinctive, or great, peculiar, ed to high inflict a degree pain by of torture particular, or significant. physical or serious abuse of the victim in In order to find that die Government has killing addition to the victim. satisfied its proving beyond burden of "Depraved” means that the defendant reasonable doubt that the Defendant com- killing relished the or showed indifference mitted the killing heinous, in an especially to the suffering of the victim in addition to cruel, depraved or manner that it in- killing the victim. volved torture or serious physical abuse to "Torture” includes mental as well as victim, you may only consider actions of physical abuse of the victim. In either the defendant. case, the victim must have been conscious rejected Hall vagueness and overbreadth of the inflicted; abuse at the time it was challenges, noting that the instruction made and the defendant have specifically must clear that what was contemplated was intended to abuse inflict physical severe mental or "apart killing, from” the pain rejected suffering victim, or upon Hall’s apart argument that the killing from definition of physi- the victim. "serious cal suspect physical abuse” was "Serious because it signifi- abuse” means a allowed jury cant or to consider considerable conduct injury amount of after the or victim lost damage to the body victim's consciousness. which The court why involves saw no reason death, a substantial risk of the jury precluded should unconscious- from consider- ness, physical pain, extreme ing substantial dis- such conduct because it was' evidence that figurement, impairment or substantial killing depraved committed in a man- member, the function a bodily organ, provides or ner in that it an indication that Hall faculty. mental physical Serious abuse— killing. relished the Id. at 415. non- on the was relevant mutilation even (1990)). is so This 111 L.Ed.2d im factor, victim statutory day aggravating next occurs the mutilation when challenge that not evidence; does such and Mitchell pact, conceal done and is post-mortem Even if of those appeal. ruling the class narrows plainly factor statutory rational not inform may death mutilation for the eligible blame factor, more non- are could inform who those ly aggravating identifies depravity their encompassing factor worthy on account statutory aggravating here, question noted, death; such as cold-bloodedness. after mutilation constitu of the reach however, is not be constitutional. plainly would factor Cf. argument good A tion, statute. Sanders, but Brown face does on its the text made that (2006) (noting can be L.Ed.2d mutilation, post-mortem encompass only where arises error constitutional on the to focus narrowed factor given aggravating not have could i.e., murder, on committing the of manner and circum facts the same weight beyond suffering inflicted kinds of specific fac sentencing other some stances under happens what itself—not killing of the act in tor). no difference would make This hand, as the the other On afterwards. had notice here, because Mitchell outcome out, have other circuits points government aggra- this would use government the that post-mortem that the accepted proposition 3592(c), and once § vator, 18 U.S.C. see the “seri within encompassed is mutilation the all of eligible, death became Hall, See aggravator. abuse” physical ous statutory and non- aggravating factors — is consti that this (holding at 414 F.3d mitigating all of the statutory alike—and cor it is also that tutional, suggesting and pot to into the thrown factors were interpretation); statutory of a matter rect as it fit. jury as saw the weighed by at 1261-62 thadara, Chan does the recognize We. sug authority is there (observing that instructional if were there argue not Hall’s construction an alternate gesting Nevertheless, we error, harmless. it was Brown, at 1362- 441 F.3d 3592(c)(6)); §of considering preju- from not foreclosed are only or no error was (holding there Indeed, FDPA the under dice ourselves. admitting post-mortem error hármless in a sen- error whether consider must we does not limit the FDPA because evidence in- harmless, § for is death tence of aggrava cruel, “heinous, depraved” the shall appeals of “the court structs while inflicted to abuse ting circumstance death of sentence alive). or vacate reverse was the victim can be harm- which any error of account do not we However, in case this find- special any erroneous less, including 3592(c)(6) §of reach to resolve need factor, where aggravating of ing to allow it were error if even because beyond reason- establishes Government as mutilation post-mortem of consideration harmless.” error was doubt able factor, un was it statutory aggravating 402-05, 119 S.Ct. Jones, See is The reason doubtedly harmless. overlook may we Regardless, statutory aggrava other found five jury harmless to mount failure government’s pass required is factors; only one ting here, consider- when, as argument error statutory of the three step through ing rec- complexity and length ations eligi death the defendant to make process is, error harmless ord, certainty of how el death Therefore, remains ble. (“pro- of reversal consequences aggrava statutory if this one even igible pro- ultimately futile tracted, costly, step Beyond disregarded. factor is ting court”) counsel the district ceedings in evidence held three, the district favor of doing so. United nine-year States Gonza girl, old pursuant to a plan to lez-Flores, Cir. obtain a car for use as a get-away vehicle 2005). in a robbery.

Unlike most harmless error inquiries, Kidnapping. jury was permitted to this is not a fact-based inquiry where the consider a statutory aggravating factor length complexity of the record’might that “the death of [Jane Doe] occurred deter appellate courts from sponte sua during the commission and attempted com- conducting a harmless analysis. error mission [her kidnapping].” See 18 Rather, analysis straightfor- here is 3592(c)(1). § U.S.C. Mitchell contends ward, jury and certain: found a statu- that because the kidnapping charge was tory aggravating factor that surplus if brought pursuant Major Crimes invalid; we know for sure what jury Act, the Navajo Nation must have opted-in would find as to a non-statutory aggrava- to the FDPA under § 18 U.S.C. 3598 be- ting factor based on mutilation. Accord- fore could be used as an aggravating ingly, we leave full reach factor permitting to recommend 3592(c)(6) § for another day. Error However, death. as we have explained, case, any, if beyond harmless a Mitchell subject to a capital sentence reasonable doubt. on account of his violating (carjack- ing planning

Substantial pre resulting death), a crime general, meditation; victim vulnerability; multi nationwide applicability that is an “offense statutory ple killings. Mitchell insists that the for which a sentence of provided.” death is agg planning 3591(a)(2). 18 U.S.C. § ravators—“substantial Having con- been premeditation, 3592(c)(9), § victim vul victed § on count, 2119 his offense nerability, 3592(c)(ll), § and multiple kill § under 1201 (kidnapping) was relevant to ings 3592(c)(16)”— in criminal episode, § “determining whether a sentence of death are vague and overbroad in that the justified is for an offense described in sec- was left guidance without sufficient to de 3591(a)(2).” tion 3592(c). §Id. termine what “substantial,” constitutes Non-statutory aggravating (cid:127) fac “youth,” “infirmity,” and “single criminal tors. Mitchell complains for the first time episode.” disagree. We Aggravating fac on appeal that the provision within tors by “are necessity general,” somewhat 3592(c) § authorizing government to and the Constitution does not demand pursue non-statutory aggravating factors precision.” “mathematical Tuilaepa, See is an unconstitutional delegation legisla 512 973, U.S. at 114 S.Ct. (quoting 2630 power. (without tive Assuming deciding) Walton, 655, 497 3047). U.S. at 110 S.Ct. that such an authorization even constitutes The Supreme Court has only “found a few a delegation legislative power, it vague, would factors and those in fact quite are “permissible be long so as there are similar to intelli one another” tendency their gible principles’ by which to pejorative involve adjectives exercise the that de delegated authority.” scribe a crime as a 974, whole. United Id. at States v. 114 Jensen, 2630; Arave, S.Ct. 698, (9th Cir.2005) 425 F.3d 472, 507 707 U.S. at S.Ct. (citing 1534. That not Mistretta, is United States v. case with 488 U.S. 361, particular 371, these factors. Nor 647, could S.Ct. 102 L.Ed.2d 714 these aggravating (1989)), facts apply denied, to “every cert 547 U.S. eligible defendant for the penalty.” 1664, 164 death (2006). S.Ct. L.Ed.2d 398 Mitch

Id. at all kill Not ell insists that government is “limited sixty-three year grandmother old and a only by its imagination” in deciding what at That is incor aggravator. as an qualifies FDPA is unconstitution- that the in contends out pointed Circuit the Fifth As

rect. statutory require are there it does argument, al because this identical rejecting in the charged govern to be factors aggravating of limitations a number non-statutory ag- Mitchell’s indict- Regardless, pursue indictment. power ment’s defendant including statutory aggravating charge did gravators, ment factor, notice of given pro- been government have upon must which factors 3592(c); Supreme Therefore, challenge U.S.C. is see 18 facial ceeded. several constitutional articulated 1367; has Brown, Court at 441 F.3d unavailing. See fac of aggravating use on the Robinson, limitations 367 F.3d States v. United functions as tors; that “the district Cir.2004). (5th of use the admission to limit gatekeeper complains also informa prejudicial impermissibly less and charge present failed one at least jury find tion”; that “the factors, but non-statutory aggravating beyond a rea factor aggravating statutory is nothing suggest is there may consider before doubt sonable rationale constitutionally required. The Jones, at nonstatutory factors.” statutory requirement underlying the Frank, 8 239-40; States also United see is that charged aggravating factors (S.D.N.Y.1998). Mitch 253, 266 F.Supp.2d prerequisite one of at least challenge existence overbreadth vagueness and ell’s here, from sentence a defendant’s increasing used nonstatutory aggravator non-statutory aggra harm, loss to A injury, imprisonment. life “caused that he given fails death trigger family,” likewise itself cannot vating factor victim’s] [the rejection vague See, v. Le States e.g., Court’s Supreme eligibility. Cir.2006); to a simi challenges and overbreadth ness Croy, 441 Jones, See aggravator. Brown, lar at 1368. 441 F.3d (observing that 400-01, 2090 378, S.Ct. 119 the that Mitchell submits also “comprehend no trouble have jury would are inade protections procedural FDPA’s it to consider “asked the factor that ing” admis Act authorizes because quate and the effect traits personal victim’s that penalty phase at the evidence sion of 401-02, Id. at family”); on her crime of the the Federal under not be admissible would ... (“Because factors [the] 2090 119 S.Ct. 3593(c), al Evidence, and that of Rules specific to jury to the evidence directed its regard to without lowing information they were case, not think we do for admission admissibility the rules under Con way in a offended overbroad trials, due violates at criminal of evidence stitution.”). Clause.15 Confrontation and the

process B apply not do Evidence Rules of Fed.R.Evid. proceedings. See sentencing held Court Ring, where the Based sug 1101(d)(3). Mitchell extent To the requires Amendment Sixth constraints, similar or they, gests judge to find sentencing than rather disagree. we apply, constitutionally must factor “neces- any aggravating existence in- demands punishment capital While penalty,” death imposition sary for pro- if may its be excluded information 3593(c) part: states relevant 15. Section by danger outweighed value is bative regardless its admissible is Information confusing is- prejudice, creating unfair governing ad- admissibility the rules under sues, jury. misleading the except trials criminal of evidence mission 980

creased reliability, “the Supreme Court than mitigating ones—although a jury has ... made clear that in order to must unanimously agree that the Govern achieve heightened ‘such reliability,’ more ment established the existence of ag evidence, less, not should be admitted on gravating factor beyond a reasonable the presence of aggravating and mitigat- doubt, § 3593(c), the jury may consider a ing Fell, factors[.]” United States v. 360 factor in mitigating weighing process its so (2d 135, Cir.2004) F.3d (citing Gregg v. long juror as one finds that the defendant Georgia, 203-04, 428 U.S. 96 S.Ct. its established existence preponderance (1976)); accord L.Ed.2d. evidence, (d).” §§ 3593(c), Jones, Lee, States 377, 119 527 U.S. at S.Ct. (8th Cir.2004) (agreeing that “the admis- sion of more rather than less evidence D during phase” enhances relia- argues Mitchell that the FDPA is bility). Moreover, the FDPA allows the unconstitutional because it is a “weighing district judge to exclude if evidence its statute” that includes non-statutory ag probative value is outweighed by the dan- gravating yet factors does provide ger of creating unfair prejudice, confusing proportionality review. Proportionality issues, or misleading jury. This review refers to the notion that imposition provides a constitutionally proce- sufficient of the death penalty would be “unaccepta dural safeguard for evidentiary reliability. ble in a particular case because [it is] Id.; Fed.R.Evid. 403 (allowing for ex- cf. disproportionate to the punishment im clusion probative when the value is “sub- posed on others convicted of the same stantially outweighed” by prejudicial ef- crime.” Pulley Harris, 37, 43, fect); see also Fulks, United States v. (1984). 79 L.Ed.2d 29 Pul (4th Cir.2006) F.3d (stating that ley squarely rejected the claim that the FDPA’s balancing test is a “ready requires Constitution proportionality re mechanism” with which trial courts can view in death sentences. protect defendants). 43-45, Id. at 871; Allen v. Woodford, 395 C Cir.2005). cites no authority suggesting that Pulley

Section 3593 is not unconstitution al, distinguishable merely proposes, because the places because it FDPA the authorizes of proving burden consideration of mitigating non- factors statutory on the factors, defense while giving aggravating govern join the and we ment right the other argue to circuits in rejecting first and last.16 this proposition. See, The order of e.g. march is the same as for v. Higgs, States trials generally 281, (4th under Fed. R. Cir.2003); Crim P. 320-21 United States 29.1. In addition, Jones, the FDPA “requires v. 232, (5th 132 Cir.1998) F.3d 241 more exacting proof (“As aggravating of factors long as the prevents statute an arbi- 3593(c) 18 provides U.S.C. pertinent 16. in any existence of aggravating factor is the part: government, and is not satisfied unless the The and the existence of such defendant a factor shall be is established permiited any beyond to rebut a information received reasonable doubt. The burden of at [sentencing] the hearing.... govern- establishing The the any existence of mitigating ment open argument. shall defendant, The defen- factor onis not is satis- permitted dant shall be reply. to gov- The fied unless the existence of such a factor is ernment shall permitted then be reply to by a preponderance established of the infor- rebuttal. The of establishing burden mation.

981 Mitchell. Orsinger parity between of rele- sentence, inclusion trary death eval- from jury precluded at was the Neither nonstatutory aggravating-factors vant during penalty very render issue this uating does not stage sentencing unconstitutional.”). of indeed, point was, the focal It phase. scheme penalty death 862, 103 S.Ct. U.S. mitigation. 462 Stephens, case in v. Zant Mitchell’s (1983), upon which 2733, 77 L.Ed.2d 235 Pulley, preceded which but F relies

Mitchell It contem- otherwise. suggest not does it would that maintains Mitchell fac- non-statutory aggravating that plated sentence Amendment Eighth violate the permissible. constitutionally tors were matu age and because of him death (observing 2733 103 at S.Ct. id. See (he 20 the time at .was rity level circum- “statutory aggravating that while Mitchell, is offenses). there According to necessary constitutionally a play stances himself between difference practical little does the Constitution .... function of who age under offender an possible ignore other jury require being sub from excluded categorically is factors”). aggravating by Simmons. death ject to the 1183, 161 578-79, 125 S.Ct. at E line this well drew Court L.Ed.2d his death that asserts Mitchell always raised “objections aware Amendment Eighth violates sentence rules,” id. at categorical against Orsing than culpable less he was because there rationales: driven two sen was Nakai, of whom neither er and of consensus” indicia “objective was his claim the extent To to death. tenced death sentencing juveniles against proportional right for inter-case rests on already had most States that, example, Martinez- review, See it is foreclosed. ity penalty “is (9th it; the death rejected Lewis, F.3d Villareal ju punishment” because “no fed disproportionate is Cir.1996) there (observing that at Id. culpable. inter- are less aas class requirement veniles eral constitutional sen Allen 1183; of death see also analysis 563-69, 125 S.Ct. proportionality case Cir.2006). culpability event, tences”). Nakai’s Ornoski, irrelevant. murder is double separate ain stan “evolving suggests less he presumption Mitchell’s against decency” weigh .sentenc dards unavailing. is also Orsinger than culpable death, but tohe such year-old ing Orsing Nakai, it is irrelevant As with so. this is indicia” “objective offers no separate double also involved er was his level explain how also fails issue in As to crimes murder. sen his death such that culpability is rejected case, implicitly punishment. disproportionate tence Or- than culpable less he was theory that distinguish course, qualities “[t]he Of “equally Orsinger finding singer disappear do from adults juveniles Further, Orsing crime.” in the culpable Simmons, 18,” turns individual when an had penalty for death ineligibility er’s may 1183, it so 574, 125 S.Ct. at 543 U.S. culpability; factual his do with nothing to mature is less true that be well capital ineligible categorically he was But wheth year old. 20 average than at years-old he was 16 because punishment mitigates not, and whether or true er Roper See the murders. the time the Consti crime, a question is against 569-74, 551, 125 S.Ct. Simmons, U.S. 543 aon case- answered to be permits tution Thus, (2005). is there 1 1183, 161 L.Ed.2d basis. by-case sentencing dis- arbitrary about nothing Mitchell insists that it is unconsti We resolve points these summarily. tutional in his case because he suffers from The bare allegation that the federal death juvenile. same infirmities as a As penalty we is “racist to its very core” cannot Alien, explained in there are “three traits sustain a constitutional challenge. It juveniles which, class, aas render them that “capital axiomatic punishment be im less and culpable therefore unsuitable posed fairly, and with reasonable consis placed in the worst category offend tency, all,” or not at Eddings v. Okla (1) maturity ers: lack of homa, an underde 104, 112, 455 U.S. 869, 102 S.Ct. veloped sense of responsibility resulting in (1982), L.Ed.2d but Mitchell makes no impetuous and ill-considered actions and effort explain in what manner race has (2) decisions; a heightened vulnerability to infected the FDPA sentencing process. negative influences and pressures; outside His related claim regarding disproportion (3) personality that is more transitory, ate impact relies solely on statistical data less fixed.” 435 F.3d at 952 (quoting Sim is, more, without likewise insufficient. mons, 569-70, 1183) See McCleskey v. Kemp, (internal omitted). quotations There is (1987) 95 L.Ed.2d 262 nothing suggest, nor does Mitchell (“[T]o prevail under the Equal Protection claim, that permitted was not to Clause, McCleskey prove must consider traits such as these as mitigating. decisionmakers in his case with acted dis Nor anything does presented by Mitchell criminatory purpose.”); Harris v. Pulley, penalty phase indicate a manifestly (9th Cir.1988). F.2d 1374-77 underdeveloped level of maturity. He was His unexplained and unsubstantiated as a “very described student,” excellent claim regarding prosecutorial discretion is council,” “active in student who spoke at foreclosed. See Campbell Kincheloe, his high graduation, school and knew “the Cir.1987) (observ- difference right between and wrong.” In ing that challenge to a state capital pun- sum, his death sentence is not barred ishment statute on ground Eighth Amendment. “vests unbridled discretion in prosecu- tor to decide when to seek the pen- death

G alty ... has explicitly been rejected by Mitchell asks us to Court”) declare the (citations the Supreme omitted). FDPA unconstitutional but par offers no Similarly unavailing is his contention that ticulars. In single sentence he asserts capital punishment is incompatible with penalty the death is racist “repre society’s values or otherwise categorically sents an intellectually Congres dishonest violates Eighth Amendment. See sional response” to the nation’s crime Gregg, 428 U.S. at 96 S.Ct. 2909. problem; vests uncontrolled discretion in Whether contemporary values dictate a prosecuting authorities; no longer com different today answer is for Supreme ports evolving with standards decency; decide; Court to Eighth Amendment and results in the execution of innocent does not authorize this court to overrule people. claim, related Mitchell pro Supreme Court precedent “even where vides statistical data from a web site and a subsequent decisions develop- factual Department of report Justice suggest ments may appear to have significantly that the federal death dispropor undermined the rationale for [an] earlier tionately applies minorities, in violation holding.” Simmons, 594, 543 U.S. at 125 of the Eighth Amendment and Equal (O’Connor, S.Ct. J., (in- 1183 dissenting) Protection Clause. ternal quotations omitted). and citation

983 fact, or the fact that sug- follow from authority no Finally, Mitchell cites ’ an inno- to seek the death executing government declined the risk of gesting renders, Nakai, un- capital punishment that sentences penalty against cent defendant danger The inherently inexplicably unconstitutional. FDPA are random. der the is one the Su- executing the innocent suggests of that such To the extent Mitchell See, of. long has aware Court been preme discrepancies of their force render own 238, Georgia, 408 U.S. v. e.g., Furman unconstitutional, his claim is fore- FDPA 2726, L.Ed.2d 346 367-68, 33 92 S.Ct. 314-18, by McCleskey. 481 U.S. at closed (“We (1972) (Marshall, J., have concurring) 1756. many innocent judging how way of can be executed but we I have been persons some.”); Atkins v. there certain that were judgment requires, § Mitchell’s As 3596 25, 304, 122 321 n. S.Ct. Virginia, be carried out that his execution provides (2002) (“Despite the 2242, 335 153 L.Ed.2d by the law of prescribed “in the manner must prosecution heavy burden presently Arizona.” Arizona the State of cases, ignore cannot capital in we shoulder injection. prisoners by lethal executes disturbing years fact that recent contends that A.R.S. 13-704. Mitchell row have been inmates on number of death un- injection cruel and lethal constitutes exonerated.”). has ex- Circuit The Second recognizes that punishment. He usual contention, see rejected the same pressly injection pre- method has lethal Arizona’s Quinones, 69 313 States challenge, viously withstood constitutional observed, (2d Cir.2002), and, the con- as it Stewart, 133 F.3d see LaGrand unde- hardly Mitchell’s is novel. tention Stewart, (9th Cir.1998); Poland v. 1264-65 fails. argument therefore veloped (9th Cir.1997), 1094, 1105 but those decisions of requests reconsideration H decency” evolving standards light “in penalty is that the death argues that inmates study suggesting and a new under the sought imposed infrequently anesthesia, leaving insufficient received FDPA, making it an “unusual” they paralyzed as die. conscious but them That Amendment. Eighth violation of may bring that Mitchell It is not obvious however, rare,17 are federal executions of his conviction appeal this claim on direct unconstitution- render the FDPA does not we could not consider regardless, capi- question al. The relevant —whether would be claim because review in the abstract violates punishment tal record. present on the impossible answered Eighth Amendment —was raised in district point wasn’t Gregg, 428 U.S. negative by pertinent appears. absolutely nothing claim, In a related S.Ct. the issue. decline address therefore We irra- applied is maintains that the FDPA — U.S. -, McDonough, Hill v. See Native he the first tionally because (2006) 2096, 2101-02, L.Ed.2d to it pursuant American to be sentenced could be challenge that a (indicating But it does not crime. for an intra-Indian (1988-2000) Survey System: A reported Statistical Department Justice 17. The (2000). three have been ''[fQrom govern- As of there state 2000 that 4,400 Her- See Joshua executions under FDPA. Dur- defendants. ments executed over comment, man, Process: Denies Due govern- Death ing period, the federal the same time Challenges the Fed- Evaluating Due Process and has not executed 33 ment defendants Act, Penalty DePaul L.Rev. eral Death since 1963.” out executions carried (2004). Justice, Penalty n.182 Death Dep't The Federal brought in a 42 U.S.C. 1983 action upon on the eve of penalty phase would be final). becoming a conviction’s detrimental to Mitchell’s interests and require would delay considerable and like- J ly empanelment of a jury. new A few challenge Another suffers a similar days later request, counsel renewed their problem misplaced and is also judge again inquiry Mitchell, made —that government has denied Mitchell’s last again, based on his assurance that rights by him from preventing participat- appointing lawyer another would make no ing lodge ceremony in a sweat in federal position, difference denied the mo- prison. Given that his current and future tion. prison conditions are unrelated to his sen- The denial of a motion for sub tence, bringing challenge on direct stitution of counsel is reviewed for abuse (there appeal inapposite is both way is no Cassel, of discretion. United States v. of telling when or whether Mitchell has (9th Cir.2005) (internal F.3d cita requested lodge a sweat ceremony and omitted). tion and quotations Generally, was) prison’s response what the pre- three factors are considered in reviewing mature. “(1)

the trial court’s decision: adequa IX cy of the court’s inquiry into the defen (2) complaint, dant’s Mitchell made extent of conflict the uncommon decision not to present penalty counsel, for the between the defendant phase. result, (3) aAs his counsel asked to withdraw. the timeliness of the motion and the We must therefore consider whether the extent resulting inconvenience or delay.” court abused its discretion in determining (citing Gonzalez, Id. United States v. proceed with the same counsel who (9th 1026, 1028 Cir.1997)). represented guilt Mitchell for the phase, There is no question close any (and and whether Mitchell could did effec- First, three. the district inquiry court’s tively) presence waive into the matter was more than adequate. phase. gave court plenty counsel opportunity to make their ques- case and A tioned Mitchell several pro- times before 8,May days On a few before the viding a reasoned explanation why it was penalty phase begin, was to counsel ad denying the request. Second, the “com- vised the court of Mitchell’s intent to waive plete breakdown,” communications presence. The district judge carefully Nguyen, States v. questioned Mitchell. just Mitchell said he Cir.2001), resulted from Mitchell’s desire didn’t present, want to be and that his longer to participate in proceed- counsel proceed could without him. A ings, not anything from specific to his rela- similar colloquy occurred day; the next tionship with his attorneys. The district Mitchell clearly indicated that he had no court found no actual conflict and sensibly issues with his attorneys’ continuing to concluded that appointing new counsel represent him. On basis of these would change Mitchell’s behavior or be statements, the court denied counsels’ re in his best Finally, interests. while Mitch- quest to withdraw. It found no irreconcil attorneys ell’s differences, were diligent able conflict; requesting actual withdrawal contrary, Mitchell once Mitchell opposed stopped cooper- was not counsel presenting mitigation ating, the timing hardly his behalf. could have been Further, it found that substituting counsel They worse. ready were go with the Nevertheless, ac- him to death or not. wanted them Mitchell phase, which penalty the knowledging the need that he understood conse- including Delay, probably to do. n inevit- jury, would be in the face of the court’s quences a new empanel court did the district Accordingly, “your very hangs able. that life the advice refusing its broad not abuse discretion during the your presence and that balance Garcia, 924 United States request. the may jury’s affect the de- sentencing phase (9th Cir.1991). 925, 926 cision,” position and repeated Mitchell his Noting strong gave the same reason. B made that a defendant argument could be out of questions arise more difficult The may presence during capi- his not waive presence: Should waiver Mitchell’s denied sentencing proceeding, tal the court hearing be- competency have held a ap- Mitchell to request and directed could waiver? and accepting Mitchell’s fore sought Mitchell’s counsel to counter pear. Fed. presence under it allow him to waive by citing the court’s observation Johnson 43? R.Crim.P. Zerbst, 1019, 82 counsel, had been Mitchell According to (1938),18 representing that L.Ed. pres- request to waive contemplating stages right present to be at all critical before the phase even penalty ence at the if the waiver is of trial can be waived May guilt phase. in the On jury verdicts by on the that it is accepted the court basis returned, .8, day verdicts were intelligently voluntarily, knowingly, and judge attorneys informed Mitchell’s that to force Mitch- made. Counsel added uncooperative that he had become things make worse as presence ell’s would longer no wanted clear that he made disruptive and refuse to might he become proceedings. in court Outside participate uniform. The court prison dress out of his presence of to doubt responded that it had reason waiv- counsel, told Mitchell that judge Mitchell, respectful been who had in his and would not be was ill-advised er the court’s throughout, would not follow responded: “I Mitchell best interests. directive. that I wish the fact just like to state would May hearing was held on Another 13th. district my appearance.” The to waive attorneys reiterated based to consider his then told Mitchell judge morning, received that on information they would discuss and that decision if that out and would not dress Mitchell day. again the next more detri- happen it would be were' he day again stated' The next judge beneficial. The district mental than at trial present to be did not want she be- again that meticulously explained said, “I why, Mitchell longer. When asked believing wrong lieved Mitchell was any relevance to me no benefit or don’t see mind, its already up made jury had Mitchell that judge told being here.” that he persuaded only juror one had to be both relevant opinion, it would be her death, and a sentence of did not deserve in detail explained She and beneficial. tip could the balance. presence that his about, hearing was sentencing what fact significance out the pointed She waiving presence reemphasized death looking at the Orsinger ill-advised, him in several differ- and told had a that Mitchell penalty, and indicated presence that his would substan- ways ent but his the death get chance not to jury sentenced tially whethér affect right a known quishment leading or abandonment v. Zerbst is the case estab- Johnson S.Ct. 1019. privilege.” U.S. at lishing "intentional relin- that a waiver is an sidebar, presence was critical. At and to preparing assist counsel in a de court told counsel that' it hoped fense;” is measured “evidence of reconsider, not, if would but he did it behavior, the defendant’s irrational his de grant would the waiver and have him court-, meanor in any prior medical watch on a proceedings closed-circuit opinions competence.” on his Id. (citing TV. Missouri, Drope 162, 180, v. 420 U.S. May 896, (1975)). held hearing Another was 14th S.Ct. 43 L.Ed.2d 103 “On noon, just at prior start of trial. review, inquiry is not whether the tri [the] appeared Mitchell before the court shack- al court could have found the defendant prison led and in clothes. He indicated competent either incompetent, or nor that he had refused to dress out because whether reviewing [the would find court] changed he not mind had his about want- incompetent....” defendant v. Chavez ing to present during penalty phase. be States, (9th 656 F.2d Cir. engaged The court then Mitchell a 1981). Rather, the record is reviewed “to colloquy to lengthy determine whether his see if the incompetence evidence of was knowing voluntary. decision was Sat- such that a judge reasonable would be was, that his answers it isfied showed expected experience genuine doubt granted request, court his indicating that respecting the defendant’s competence.” any change Mitchell time could his mind Id. being about present testifying. about It is clear from the record Mitchell The court also found that it wanted to understood the nature of the proceedings Mitchell, avoid any disruptiveness from and that chances of avoiding who his had informed the death Marshal he did not want to be in court and could ride on fight presence. would his He being sentencing there for phase, points psychiatric to no evidence that he which would not be in his best interests. was clinically somehow incompetent. Fi Following ruling, counsel renewed nally, Mitchell disruptive, was not did not withdraw, their motion to which was de- launch outbursts, into emotional main after confirming nied Mitchell that with he demeanor, tained appropriate and did not had lawyers. no issues with his Once the behave erratically. Torres v. Prunty, Cf. penalty phase got underway, the court ad- (9th Cir.2000) (de 223 F.3d monished the not to draw adverse scribing bizarre by courtroom conduct inference from the fact that the defendant petitioner habeas diagnosed who had been right testify exercised his not to or attend with a disorder, delusional severe which the proceedings. included wearing jailhouse blues; threat ening to attorney; assault his continually i disrupting the proceedings; and insisting given Mitchell insists that shackled). that he be handcuffed as well as demeanor,” “irrational behavior and short, gave the judge no “rea court should have a competency ordered son to competence.” doubt [his] Godinez hearing sponte. sua “Due process re Moran, 402 n. quires a trial court to hold a competency 2680, 125 (1993). L.Ed.2d 321 hearing sua sponte whenever the evidence While Mitchell recognized that his deci- before it raises a reasonable doubt wheth might sion self-defeating, . er he it mentally made competent.” defendant is Stainer, anyway. The court did Miles its best to talk Cir.1997). The Mitchell out competency doing standard for something the “ability to understand the proceedings believed imprudent his best (1912), L.Ed. where acknowledged what S.Ct. interests. but, was nei- counsel, that a who thought as Court held defendant court, and his my capital with a custody charged nor point, “Isn’t ther it at one put he by right presence the extensive could waive the As manifest offense decision?” alert, himself, understood voluntarily absenting to our Mitchell was exchanges, hint of doing, gave principled that there is “no what he current view proceed- grasp on lacking rational offenses a limiting noncapital basis for did Accordingly, the district ings. knowingly, voluntarily, ability defendant’s complete a more failing to hold err in not right pres- the intelligently and to waive sponte. hearing competency sua Wood, 662, v. Campbell ence.” Cir.1994) (en banc) (briefly sur- ii law). the That veying development of Fed.R.Crim.P. argues that constitutionally per- presence waiver of is ’ not that it could required presence however, necessarily missible, not does objection No capital case. in a be waived Rule 43. permissible it is under mean that Indeed, Mitchell’s on this basis. was made holding that to no cases points of waiver be- support attorneys argued in the circum- not an option waiver was district court. fore the here, read the Rule and we cannot stances (The upon cases which it. precluding 43(a) a defendant’s requires Rule rely, States he does such as United including sen every stage trial at presence (9th Cir.1997), and Lumitap, 111 F.3d 81 initially has tencing, but when defendant (3rd Moore, F.2d 547 United States 43(c) trial, for Rule allows present at been Cir.1972), situa- quite involve the different the present when right the to be waiver of him- trying to absent tion of a defendant voluntarily after the absent defendant is to avoid in-court from trial order self case, when noncapital in a begun; has trial upheld Both the district identification. during voluntarily absent defendant is deny a waiv- proffered court’s discretion per the defendant sentencing; or when er.) being after disruptive sists behavior 43(c)(1) warned.19 permits The default Rule initially who was when a defendant waiver to be right scope defendant’s right at trial present waives derived from every stage, trial present voluntarily No being absent. present by Sixth Clause Confrontation capital between is drawn distinction Process Clause and the Due Amendment Tellingly, Rule 43 noncapital defendants. Amendment, has evolved from Fifth before States, did make such distinction Diaz v. United case, (B) the defen- noncapital when 43(c) in a provides in full: 19. Rule voluntarily during sentenc- absent dant is (1) was ini- A who In General. defendant ing; or trial, pleaded tially who had present at (C) the defendant warns when contendere, right waives the guilty or nolo from the remove the defendant that it will following circum- present to be under behavior, disruptive but for courtroom stances: jus- persists in conduct the defendant (A)when voluntarily ab- is defendant the courtroom. removal from tifies begun, regardless the trial has (2) sent after If the defendant Waiver’s Effect. may defen- informed the trial right present, whether the court to be waives including during the ver- obligation completion, remain proceed dant of during de- sentencing, trial; dict’s return and absence. fendant’s provided: prosecutions it when “In It specifically authorizes waiver “in a non- death, punishable by not capital the de case” when the defendant is volun- offenses voluntary fendant’s after the tarily absence trial during absent sentencing; by nega- has been commenced in his presence shall implication, tive it doesn’t do so in a capital prevent continuing not the trial However, to and case. (c)(1)(B) subsection ap- including the return of the verdict.” plies only Fed. to “sentencing.” Logically and (1963) added), R.Crim.P. (emphasis structurally, “sentencing” connotes the States, quoted in Bartone v. United 375 proceeding when judgment pronounced 53 n. L.Ed.2d 11 and sentence is imposed, proceed- (1963). (c)(1)(A) Now, plainly subsection ing during which is determined whether applies regardless of the nature of the eligible defendant is death what Cohen, They offense. See Neil P. Can Kill sentence to recommend.21 In mandating 43(a) Me I’m presence, Gone: Trial in Absentia in Rule distinguishes among If Cases, Capital 36 U. Fla. L.Rev. 276- the initial appearance phase of a criminal (1984) 77 n. 24 (noting proceeding, trial stages, “1975 sentencing. construct, revision removed distinction Under this penalty phase between capital cases,” noncapital capital and so that case is plainly un a “trial stage.” Thus, (c)(1)(B) version, der current “in subsection capital both does pre- not cases, and clude noncapital Mitchell’s waiver. defendant can right waive his to be present provided he We conclude presented that Rule 43 no initially present the trial and was obstacle to presence Mitchell’s waiver of voluntarily absent after the trial comm for phase. enced”).20 X (c)(1)(B), Waiver under subsection which sentencing, relates to depend does upon Trial-related arising issues out pen- whether the capital ease is or noncapital. alty phase include whether there were 20. The 1974 amendment notes indicate changes These stylistic are intended to be question right whether the can be waived only....” advisory Fed.R.Crim.P. 43 commit- open was then ultimately clarify. for courts to tee's notes to (emphasis 2002 Amendments Advisory Rule Notes of Committee on added). governs Rule which corrections Amendment; Rules-1974 see also L'Abbe v. and reductions of explicitly sentences and is DiPaolo, (1st Cir.2002) (ob- referenced Rule 43 as an instance in which serving Supreme that "the Court has never presence is required, not See Fed.R.Crim.P. directly ruled on the issue whether a crimi- 43(b)(4), also stylistic underwent the same nal defendant right presence can waive his change in 2002. Advisory There Commit- case”). capital in a tee specific Notes address that revision and clarify change practice that "[n]o is intend- history 21. The changes of recent made to by using ed that term.” Fed.R.Crim.P. 35 Rule 43 "sentencing” also indicates advisory committee’s notes to 2002 Amend- pronouncement means the Up of sentence. ments. Courts had divided over whether effective, until the 2002 became Amendments "imposition of sentence” referred to the oral Rule "imposition 43 used the term of sen- announcement entry judg- of sentence or tence” "sentencing.” rather than See Fed. (2001). ambiguity ment. Because R.Crim.P. remained Advisory follow- Commit- ing stylistic Amendments, however, change "sentencing,” tee Notes to the 2002 Rule clarify again 35 was amended exceptions aside from a few in 2004 to add subsec- here, (c), provides: relevant tion language which "[t]he "As used Rule 43 has in this rule, part been amended general 'sentencing' restyling of the the oral means announce- of the Criminal Rules to ment of the make them more sentence." See Fed.R.Crim.P. 35 easily style understood advisory and to make and ter- committee's notes to 2004 Amend- minology throughout consistent the rules. ments. it; the letter was sent to evidentiary rul- tion because violations, mistaken Brady error, prosecutorial does not claim letter instructional ings, closing. opening oppo- misconduct the Tribe’s anything disclosed about capital punishment, or about its sition to A death opt pen- failure to federal on December Beginning already know. alty, that he didn’t Re- number of attorneys wrote a the court received the letter as gardless, seeking Brady government letters mitigation, Mitchell made evidence ef- “relating to material, including material it, jurors and seven fective use of found thereaf mitigation.” Soon sentencing and mitigating additional the letter was an im ter, for victim government asked short, factor. there is reasonable family from members. statements pact disclosure would probability earlier 13, 2003, day pen before the one May On result. produced have different turned began, alty phase along it had obtained the statements over B January 2002 from Attor letter with argues that his First Navajo Nation Unit ney General Amendment, Amendment, and due Eighth Attorney Charlton indicat Paul ed States gov were violated when the process rights punishment, both capital opposition ing testimony bearing ernment elicited as to Mitchell. matter and general as a race, heritage, and cultural religion favor- Assuming that evidence closing argument made statements in im- (the cer- Navajo letter and material able on the same factors. plying permissibly whether was, it is unclear tainly though (as he applies Plain error review because have would impact victim statements concedes) object not at trial. Mitchell did Raley been), prejudice. See there was (9th Cir.2006) Ylst, 470 F.3d i claim, Brady a a (noting prevail that to that, traditional- testified Geraldine Slim that the evi- must demonstrate defendant the Tribe trans- the maternal side of ly, favorable, suppressed, and it was dence is to children resulted). and culture mits Tribal values told the dis- Mitchell prejudice vein, miti- In a similar grandchildren. approach court that his trict been different process would have Slim gation Kimberly Houston and Marlene testi- information, if he had known about teaching responsible was fied Slim Navajo from the the letter particularly Navajo their heri- grandchildren about her not) (and Nation, does not still but did the Tribe’s tradi- passing down tage a con- did not ask for suggest how. He practices. tions it that members Nor is evident tinuance. nothing untoward this seeWe cooperated with family would have of the about victim’s testimony. “Evidence (or, indeed, way material Mitchell impact and the mur characteristics was); appears opinion their what family relevant and is der on the victim’s Mitchell’s counsel wanted they knew sentencing at a death admissible them, they did not wish but speak Stewart, 112 Gretzler proceeding.” also claims to him. speak Cir.1997) Payne v. (citing helped per- have information would 808, 827, Tennessee, 111 S.Ct. 501 U.S. not to Department of Justice suade (1991)). 2597, 115 “Admission L.Ed.2d 720 again, does penalty, but seek the death only be deemed un will of such evidence Department The suggest not how. unduly prejudicial if it is so constitutional posi- the Tribe’s obviously knew Justice that it fundamentally renders the sentence It’s been really hard ... to know that unfair.” Id. This evidence not. kind, someone within our own our own would people disrespectful be so for our daughters Slim’s did not call upon divine belief, own culture and our own our own Mitchell, authority to condemn insinuate values, traditional how we teach our atheist, that he was or otherwise inflame young people. jury on the of race or religion. basis circumstances, In the it would have been This opinion was inadmissible about difficult if capture impossible what crime error was obvious family Slim’s loss meant to her without because victim impact statements significance reference to the that tradition- “set[ting] forth family opin members’ Navajo religion al and culture played ions and characterizations of the crimes their lives. This was relevant victim im- and the defendant” are “irrelevant to a evidence, pact unduly and was not prejudi- capital sentencing decision.” Booth v. Ma Payne, cial. See U.S. at 111 S.Ct. ryland, 496, 502-03, 508-09, (“Victim impact evidence is simply (1987), 96 L.Ed.2d 440 over form another or method of informing the ruled grounds, on other Payne, 501 U.S. at sentencing authority specific about 2597; 830 n. see also Ber harm caused the crime in question.”) nard, 299 F.3d at 480 (holding that error in admitting a instructed, 3593(f) statement § was from the victim’s directs, father that that it the murder “just could not consider race useless act of religious violence” plain). beliefs of the But defendant or of any victim.22 fails to jurors assume that show that the prejudicial. We error was fol- low the addition, brief, instructions. Geraldine’s isolated, comment was 3593(f) requires juror each and could not sign have had more than a mar certificate that ginal impact neither religion jury. race nor on the played part in reaching the decision. All jurors

of Mitchell’s certified this was true. iii Absent a substantial indication to the con- The district permit court refused to de- trary, accept jurors’ we the assurance that fense express witnesses to opinion their on impermissible no considerations of race or Mitchell whether be given should the religion factored into the verdict. death penalty, although witnesses were al-

Geraldine Slim also testified more lowed to jury ask the spare to Mitchell’s problematically that: life. 3593(f) provides: Section any may victim jury, upon be. The of a court, hearing In a jury, finding held before a [concerning death], the a sentence of prior finding of a [concerning return certificate, also shall return to the court a death], a sentence of shall jury instruct signed by juror, each that consideration that, considering in whether a sentence of race, color, beliefs, religious national justified, death is it shall not consider origin, any or sex of the or defendant victim race, color, beliefs, religious ori- national not reaching involved in his or her gin, or sex of any the defendant or of victim individual decision and that the individual jury and that is not recommend juror would have made the same recom- sentence of death unless it has concluded regarding mendation a sentence for it would recommend a sentence race, question crime in no what matter question death for the crime matter color, beliefs, religious origin, national or race, color, beliefs, what religious na- sex any may of the defendant or victim be. origin, tional sex or of the defendant or of

991 433, 440, Carolina, 3593(c)’s North for ad standard Section (1990)). 1227, 108L.Ed.2d 369 Testi capital in a sen missibility of information mony that was adduced from than lenient is proceeding more tencing record and teachers about his family admissibility of evidence standard evidence mitigating was relevant In character Evidence. Rules of the Federal under tendency to show that it had a ad because regardless of is admissible formation was not penalty of the death Rules, imposition that in except under the missibility 3592(a)(8). By § discretion, justified. See U.S.C. information judge’s trial token, personal opinions about the same if value probative its “may be excluded proba are not verdict should be un what the creating by the outweighed danger factor any statutory mitigating issues, tive of or mis confusing prejudice, fair 3592(a)(1)-(8). § Id. identified that the jury.”23 This assures leading the 3592(a)(8). dis had district considering as from jury precluded “not be evidence, see irrelevant cretion to exclude of a defen factor, any aspect mitigating Ohio, 605 n. Lockett v. circum U.S. record character or dant’s (1978), 57 L.Ed.2d the defendant S.Ct. of the offense that stances than acted well within here. less for a sentence as a basis proffers Carolina, 476 v. South Skipper death.” discussed, already As we have 1, 4, 90 L.Ed.2d 106 S.Ct. U.S. guilt in the put evidence wanted Oklahoma, (1986) Eddings v. (quoting of the Sam and about the details phase 104, 110, 71 L.Ed.2d Kinlicheenie, impeach Begay murders (1982)). in the also wanted to do so and he culpability fíne, in order to contrast appro7 phase the court drew Here but. murders connection with the to whether testimony as Slim/Doe line for priate, with culpability in connection with Nakai’s penalty. death receive the should Sam/Begay The district murders. testify regarding It allowed witnesses to about to admit evidence court declined and their wish for Mitchell affection their murders, they had the Nakai details of spared, but did allow life to be for his char- on Mitchell’s bearing they apparent little about what opinion offer an them circumstances Mitchell’s. acter or the be. jury’s should thought the verdict However, the court did allow focused offense. so, kept the court doing testimony from FBI ie., evidence, to elicit “evi Mitchell mitigating relevant that, of an Au- as a result Duncan Agent or prove logically tends dence which murder, Nakai Gregory double gust 2001 which some fact circumstance disprove earjacldng, kidnapping, to was convicted reasonably deem fact-finder could charges murder degree/felony and first v. Dret value.” Tennard mitigating have penalty, to face the death but did not 274, 284-85, 124 S.Ct. ke, government to the (2004) introduce a letter from McKoy v. (quoting 159 L.Ed.2d may present information defendant part: The provides relevant The statute Informa- mitigating factor.... relevant to a may hearing, sentencing information theAt regardless of its admissi- is admissible tion any matter relevant presented as to be governing admission bility under the rules sentence, including any mitigating or the except trials at criminal of evidence required to permitted or aggravating factor proba- may excluded if its information be Infor- section 3592. under be considered danger outweighed by the tive value is trial may include the presented mation confusing the is- creating prejudice, unfair hearing is held transcript if the and exhibits sues, misleading jury. the or during judge present jury or before a 3593(c). § trial, 18 U.S.C. judge's discretion. at the or trial attorney stating Nakai’s that the Attorney written in as an additional mitigating fac- General of the United States had decided tor. against seeking penalty the death for Na- phase Guilt evidence. The district court kai. From this was high- able to jury instructed the that it could consider light the fact that Nakai was a “stone evidence guilt admitted phase as “escaped killer” that the death penalty.” well as presented in penal information We cannot see how the court abused its ty phase. In Mitchell’s view this allowed concluding discretion in that more infor- government to use offenses charged mation than this separate about these only Major under the Act, Crimes which murders would the issues confuse and mis- would not have been relevant or admissible lead jury. in the penalty phase to obtain a death objection Over expertise, Agent sentence on the carjacking offense. We permitted Duncan was on rebuttal to ex- already have explained why this is not so. plain how decisions are made to seek the Mitchell subject became capital punish penalty. death He indicated decisions ment virtue of his conviction for car are made after the cases are referred to jacking death, resulting in not his other Department and are Justice made at offenses, yet detailing evidence his double high level. properly Whether adduced murder necessarily was prov relevant to not, testimony Duncan’s was of such a ing the charge. carjacking Cf. general nature slight and of such value Cruz-Kuilan, (1st States v. that we say cannot in an resulted unreli- Cir.1996). We explained have also why determination, sentencing able as Mitchell Mitchell’s contention that this also allowed now jury maintains. already was inject race into the aware that Attorney General in- proceedings is unavailing; the fact of in the decisionmaking process

volved from unavoidable, race was and was the Attorney General’s letter declining to important to his own case in mitigation. penalty against seek death Nakai, which Mitchell introduced. Gateway intent The court in- factors. structed step two, that at jury should

C consider the gateway intent factors con- Mitchell asserts that the phase cerning personal intent of the defen- jury instructions and verdict forms violat- dant “in regard to the homicides for which his right process ed to due and a reliable he was convicted.” Mitchell takes issue sentencing objection determination. No with this focus on footing that it misled except “heinous, was made cruel or jury into thinking that the penal- death instruction, depraved” so our review is for ty was available the multiple murders plain error as to the rest. just rather than the carjacking. “Gateway intent” is a finding threshold for death The Navajo Nation’s letter. It eligibility required by the FPDA. Howev- not necessary for the specif er, 3591(a)(2) as the text of clear, makes ically instructed that it should consider the the requisite rea mens is the letter mens rea from the Navajo Attorney Nation’s involved in killing victim, the not General to the the mens Department United States rea in of Justice. involved instructions, committing The the triggering given, as Jones, clearly allowed offense. 376, 527 at consideration of catch U.S. 119 Cf. all jury factors. That 2090 S.Ct. in (noting the understood it a case where the could consider the is letter manifest in the defendant was convicted kidnapping of re- form, verdict where the letter was hand- in sulting death matter, that as “an initial

993 factor existed. statutory aggravating find to required jury was sentencing the these to—and did—find .intent, required was jury See requisite had the petitioner that beyond eligible, him factors, making death petitioner that 3591(a)(2); it concluded § - fac- these core doubt. Once inten- a reasonable victim and his intentionally killed government, the by injury re- established bodily tors were serious tionally inflicted put to the death”). Further, jury the it did not offend Constitution her sulting in miti- prove any to Mitchell about which burden on confused the have been could not of subject preponderance to aby gating Mitchell factor made convictions of 649, Walton, 110 ex- U.S. the district evidence. penalty; the death v. Kansas ‘You previously (plurality opinion); them: S.Ct. 3047 informed pressly — 2516, capital -, Marsh, ... 126 S.Ct. of guilty U.S. found defendant (2006) (“At bottom, in Death. Resulting 2524, Carjacking 165 L.Ed.2d of offense now is wheth- you that a state Walton, before held question the Court The sole in for this be sentenced may should the bur- place er Defendant statute death ” miti- prove offense.... to the defendant den on outweigh aggrava- circumstances gating step. weighing proof Standard of Lewis, 38 circumstances.”); v. ting that he judge Jeffers the district told Cir.1994). Thereafter, 411, 418 believing correct court was thought the first, “to consider role is the fact-finder’s find have to not jury did to factors found aggravating whether outweigh sufficiently factors aggravating mitigating outweigh the sufficiently exist a reasonable beyond factors mitigating justify a exist to found to factor or factors eliminated this he claims doubt. Now a or, death, the absence as stage, weighing sentence at the proof burden factor, aggravating is the whether mitigating whether death the issue well to of due are sufficient sentence, in violation or factors alone factor appropriate then, death,” and sentencing determina a justify a reliable sentence process, Washington, concerning tion, Blakely make a recommendation 3593(e). L.Ed.2d this 296, 303, 124 S.Ct. At U.S.C. sentence. Arizona, 536 find (2004); longer U.S. Ring task is stage, jury’s (2002); L.Ed.2d 556 rather, exist; is juror each factors whether Jersey, v. New Apprendi already found the factors to “consider” 147 L.Ed.2d 490, 120 S.Ct. judgment wheth- an individualized to make makes (2000). the FPDA reasons that Thus, He Id. justified. is a death sentence er essential; re Apprendi findings these two “equation” is an weighing step facts be submitted essential quires that jury’s discretion “merely channels beyond a reasonable jury be found may it by which with criteria providing re doubt; Apprendi rule of therefore or of life a sentence whether determine whether question only that the quires not Marsh, 126 See appropriate.” is death and the mitigators outweigh aggravators suggest does at 2526. sub justified be whether death question standard beyond-reasonable-doubt how proved they be mitted to —but upon superimposed sensibly be could doubt. reasonable beyond a be order why it must process, or to make or process, due with comport FDPA, the burden Under with reliable, to comply death sentence prove on the put properly required, itWere Amendment. i.e., the Sixth he eligible, was death that Mitchell under corollary obligation then the old, gate one at least years eighteen presumably would Fifth Amendment existed, least one and at factor way intent 994

triggered, and “fact” that aggravating the tions that evidence gate- established the outweigh mitigating factors factors would way and aggravating However, factors. by grand need to be found the jury and Mitchell’s rights substantial were not af- charged in the indictment. See United jury fected as the already had heard this Allen, States evidence. content, terms of references Cir.2005) (en banc); see also Jones v. to evidence adduced in the guilt phase States, U.S. 243 n. 119 were improper not because that evidence (1999) (“under 1215, 143 S.Ct. L.Ed.2d was properly considered in penalty the the Due Process Clause of the Fifth phase. 3593(c). See 18 U.S.C. Finally, Amendment and notice jury the trial the AUSA’s statement jury guarantees Amendment, of the Sixth any they hear would members of the victims’ (other conviction) fact than prior that in- family describe they “what went through creases the maximum for a crime and how this you” affected anwas obvious indictment”). charged must be in an This slip of tongue. Saying “you” instead of illustrates the flaw in Mitchell’s position, “them” in this context was neither miscon- jury for course the grand way has prejudicial. duct nor knowing what mitigating factors the defen- dant urge. will ii There is no authority suggesting that One of the statements made in Apprendi extends far as Mitchell as would about closing which Mitchell now com have it. plain review, Given error resolu- plains was improvident but not plainly im tion question whether it in fact proper. The argued AUSA that “[t]he error is not squarely presented. There- defendant, Mitchell, Lezmond has sen fore, simply we conclude that the court’s himself tenced to death.” Mitchell analo weighing plainly instructions not are erro- gizes to Caldwell v. Mississippi, 472 U.S. neous. 105 S.Ct. (1985), L.Ed.2d 231 Guilt phase findings. Mitchell con- but the statements that Caldwell con tends, time, .for the first jury were quite There, demned different. should not have been instructed that prosecutor told jury “your deci rely could on findings in guilt phase sion is not the final decision” and that it is determining the gateway intent factors. automatically reviewable Supreme nowhere, point goes as the jury was statements&emdash;unlike Court. These those not so instructed. To the contrary, here&emdash;had made to jury the effect of specifically jury told the it may affirmatively jury misleading by shift rely upon its first-stage guilt verdict of ing responsibility a death for sentence or factual determinations therein with re- onto 328-29, someone else. Id. at spect intent, and must decide 2633; see Oklahoma, Romano v. again. this issue 9,1, L.Ed.2d D (1994); Thomas, Waters v. 46 F.3d 1506 (11th Cir.1995) (rejecting a challenge ato i similar statement itas did not lessen criticizes the govern jury’s of responsibility). sense opening ment’s statement consisting en tirely of argument, though he faults made no objection such at the asking time either on that to consider how important basis for its grandmother content. Several state was to the community, and ments were inartfully phrased as summa- for suggesting that Mitchell turned his said, closing ar- government’s heritage. This cultural religious his back on that was riddled with comments gument closing] have arguments [in “[R]eligious For not have made. instance: should been every federal virtually condemned been in this case [to furnished “[I]nformation chal their to consider and state defendant, Attorney to this Calderon, General] as lenge.” Sandoval seek the death Cir.2001) [to it rose to that level (holding prose that 765, 777 rational, ... It well-rea- penalty].... was and ar the Bible paraphrased cutor who soned, you based information don’t sanc was the death gued this case was differ- you have before petitioner by God denied habeas tioned trial). I to call “What like [from Nakai’s].” ent How penalty phase a fair right to factors excuses for murder mitigating are cry a far ever, here are the circumstances free has because we have will.” “What Although those in Sandoval. from Lezmond Mitchell to earn minimum to done did, indirectly, at least allude AUSA slaughter people?” for the of two sentence that the in the sense it was same religion, jury before the gets “Mitchell to come it when stated: Navajo Nation’s letter did my suppose ... I that’s say ‘Spare life.’ religious Navajo cultural and part As beauty system. Doesn’t work concept of not support we do values victims, it for the defen- for the but works Navajo life sa- hold capital punishment. keep that in mind you dant. And need to teach religion us Our culture cred. the life of the asking why spare to when against life and to value instruct in a civilized “But we live defendant.” vengeance. human life taking of for Tombstone, society. Perhaps years ago, was evidence and letter was in As the back, strung would have been taken out he mitigation, in upon by Mitchell relied trial, gotten nothing He would up. have govern for the plainly not erroneous at this for seven this. We been like have credibility Mitch challenge the ment nothing has done weeks.” “The defendant Delaware, reliance. See Dawson ell’s message to be a opportunity to earn an 159, 166, 112 S.Ct. 503 U.S. no in He has earnéd prison. someone (1992) “just (recognizing L.Ed.2d 309 he in a cell whether opportunity live' right to introduce defendant has the as the He has earned the cell or not. likes evidence, mitigating of relevant sort degree while get college opportunity that evidence to rebut the State entitled someone chat with prison or to Internet own”); U.S. at Payne, 501 proof of its with He has shop prison. of a or to work (observing “[t]he nothing.” earned in counter legitimate has a interest State evidence”). Similarly, acting [mitigating] disagree with We to the Slim grandmother meant what on the evi fair comments that these were and tradition family in terms of culture not, arguably, even calcu dence were government’s part of properly passions arouse the lated to government’s aggravation. ease a burden he that Mitchell bore suggest be argument implicate did not question is whether not bear. The did jury would find “simply because liefs singly or collective they prejudicial, were reprehensible.” morally beliefs these error, “reversal reviewing plain ly. Dawson, im prosecutor’s if the ‘only is appropriate jury’s affected abili proper conduct so cites that Mitchell statements Other totality of evidence ty to consider the they were founded improper were and de- verdict that it tainted the fairly obviously figurative. or were the evidence 996

prived of a fair trial.” [Mitchell] impact crimes and the they had on the Weatherspoon, States v. 410 F.3d family. victims’ Without at all condoning (9th Cir.2005) (quoting 1151 United States prosecutorial excess, it plain is Smith, Cir.1992)). improper argument in this case could not not, The comments were in and of them- possibly have “so jury’s affected the ability selves, nearly inflammatory as as the to consider totality of the evidence graphic murders, evidence of the or as fairly” that it deprived Mitchell of a fair powerful as extensive victim impact trial. We misconduct, conclude that testimony, which quite properly before by cumulated, itself or when did not affect jury. The clearly instructed Mitchell’s substantial rights. proof, on the burden of and that the state- argument

ments and of counsel were not XI evidence; that any it must avoid influence Mitchell was sentenced on the non-death of passion, prejudice, any other arbi- (murder counts to life on counts 1 Alyce trary consideration; and that whether or Slim), (felony Alyce murder of Slim and not the call circumstances for a sentence of (murder Doe), Jane Doe), of Jane personal death is a judgment that the law Doe) (kid- (felony entirely up leaves murder of Jane to each and 7 member of the jury- napping); 180 months on each of counts (robbery truck), pickup (robbery The burden is Mitchell’s to show that Post), of the Trading (robbery and 10 the misconduct tainted the verdict. In Yazzie), Charlotte to be served concurrent- support, points he to a positive statement ly; 84 months on count 9 (brandishing a about his chances that the district judge firearm during violence); a crime of and made in trying to dissuade him from waiv- 300 months on count 11 (brandishing a ing presence, but just her statement was violence). firearm that, during a crime of He point effort to out to Mitchell how error, raises Booker was, critical which does not presence appear post-penal- not a ty preserved, to be phase assessment of the remand is unwarrant- strength of the ed. convictions, evidence.24 full On his firearm As review of the record the district shows, the evidence was sentenced overwhelming. Mitchell to the statutory By any measure, reasonable minimums. mitigating See U.S.C. proffered 924(c)(l)(A)(ii) factors (seven §§ Mitchell were weak years); when compared gruesome 924(c)(l)(C)(i) (25 nature of years). Similarly, Mitch- Mitchell, According the district court tion and your these lawyers— factors that government’s "noted [that] case with re- they have a lot of exhibits here that gard to the sentence of death was not over- seem to be particularly compelling that will However, whelming.” the district court not- probably exhibits, be introduced. Those ed thing. responding such to Mitchell’s your presence, with adequacy and the query waiving presence whether with its con- think, your lawyers, give you I good decision, sequences wasn't his what the court getting chance as pen- of not the death stated was as follows: alty. hope you And so I would really give decision, serious your It consideration ultimately your it’s deci- But, may It everything sion. difficult to listen and I don’t know what's factor- ing presented, your hope that's just you into but I you decision. I will know that give here, get have a being chance not to serious the death consideration to tomorrow, your presence dressing only being is critical. You and to here and have to you listening convince one—and don't even least to what is said and so that have to convince. you has to you can decide whether or not are convince mitiga- all of them. But going if in the say something your on own behalf. juror charges. Removal of this to statu- unknown pursuant to life was sentenced ell See, guarantees of e.g., 18 violated the constitutional mandatory sentences. tory 1201(a). and, 1111(b), process, his life due like equal protection Given §§ U.S.C. error, sentences, month sentences reversal of Mitch- requires his 180 the first not affect counts do robbery each of ell’s conviction. Furthermore, in rights.

his substantial of Finally, sentencing phase the Mitch- court the district fact that light of the Contrary trial rife with errors. ell’s was statutory maxi- to the sentenced Rules, provisions of the Federal the counts, robbery See 18 U.S.C. on his mum Mitchell to waive his permitted trial court that the sen- imagine cannot we sentencing phase; at the presence' had more favorable would have been tence result, jury part heard this critical of guidelines court known the district proceedings, and voted for the death advisory. were hearing facing without or from penalty, AFFIRMED. life, death, it de- individual whose was requires that termining. This error itself REINHARDT, Judge, Circuit jury that im- the sentence of death dissenting: Moreover, govern- posed vacated. affirming the majority errs both The was a closing sentencing argument ment’s death sen- upholding the conviction statements, improper exac- compendium of Mitchell, young Nava- tence of Lezmond resulting- erbating prejudice from of commit- guilty found jo tribe member sentencing absence from the Mitchell’s horrific murders robbery and two ting Finally, erroneously the court phase. in- During the Navajo in Arizona.1 land jury govern- that the failed to instruct crimes, agents these federal vestigation of proving ag- of ment had burden au- tribal eagerly cooperative convinced outweighed mitigating gravating factors Mitchell, who was then arrest thorities to cumulatively, the sen- factors. Considered days twenty-five custody in tribal held sufficiently prejudicial tencing errors were arraignment. Federal without counsel or va- Mitchell’s death sentence must be interrogated Mitchell repeatedly agents cated. detention, unlawfully during his tribal Therefore, although agree I with the from him a series of confessions. secured of Mitch- majority’s resolution of a number statements, were which inculpatory The claims, I dissent. respectfully other ell’s federal in violation of Mitchell’s obtained him at to convict rights, were then used I. Conviction sup- The trial court’s failure his trial. State- Suppression of Post-Arrest A. warrants reversal press the confessions ments conviction. Mitchell’s to an a conference that led Following error occurred dur- significant Another all the involved federal agreement between trial court allowed jury ing selection. authorities, arrest- Mitchell was tribal only African- to strike the prosecution morning of charges on the on tribal ed juror, accepting pretextual its American presented He not 2001. November juror was removed explanation magistrate until November to a federal race but because more because of his not period prolonged During had served on twenty years earlier he than detention, inter- federal authorities tribal a defendant of acquit that voted to carjack- from an armed file murder resulted subject the death 1. Mitchell Act, §§ 3591-98. ing. 18 U.S.C. Penalty See Death because under the Federal rogated him and obtained a set increas- I would join like to in the remarks of ingly incriminating [Orsinger’s statements. Mitchell about what I think counsel] argues that the happened district should have has I this case. think this suppressed they these statements because case is illustrative to all of us FBI about strategies and techniques were obtained violation of his federal in cases like this. right timely arraignment and to Rather than file federal charges coun- implicate only juvenile sel.2 In order to determine whether these rights [Orsinger’s rights during federal attached counsel] said detention, were violated with respect to Mr. necessary to decide wheth- Or- singer, but also rights er the obvious effectively he was in federal custody would have attended the during period filing between his tribal arrest charges including right to the imme- and his federal majority arrest. The con- appointment diate of counsel for Mr. cludes Mitchell was not in federal Mitchell, essentially Mr. Mitchell custody until was formally he was by arrested jail stashed in the tribal for more than ante, federal agents on November 29. See three weeks on these charges tribal disagree. at 962. I which no one connected with this case ante, 959-61, majority, Unlike the see at believed were going proceed. ever to I would not plain review this issue for Thus, Mitchell not only requested that the error. The Federal Rules of Criminal suppress statements, the custodial provide party Procedure may pre- “[a] but he also identified the failure to afford by serve a claim of informing error him pretrial rights ground as one for ruling court—when the court or order is suppression. complies This with the re- sought made or the action party —of 51(b). quirements of Rule take, wishes the court party’s or the Turning to the merits of Mitchell’s objection to the court’s action and the 5(a) claim, Rule of the Federal Rules of grounds for objection.” Fed. Criminal 51(b). provides Procedure person that a trial, R.Crim.P. Before who is arrested must be arraigned “with- moved a hearing for to determine whether 5(a) out unnecessary delay.” Rule both his custodial statements voluntary. were reflects and is by reinforced time, Supreme At this Mitchell was still being tried Court decisions requiring exclusion of pre- jointly with Johnny co-defendants Orsing- arraignment statements obtained in Nakai, er viola- Gregory par- both of whom tion of the prompt presentment require- ticipated in the voluntariness hearing. ment. States, See McNabb v. United During hearing, Orsinger’s counsel ar- 332, 341, 608, U.S. 63 S.Ct. 87 L.Ed. 819 gued that the FBI operation controlled the (1943); States, Mallory v. United leading to the defendants’ tribal arrest. 449, 455, 1356, 77 S.Ct. 1 L.Ed.2d 1479 He stated that the defendants were effec- (1957). This judicially developed exclu- tively in custody federal from the time of sionary rule is limited by 18 U.S.C. their tribal arrest sought leave to file 3501(c), § which created a “safe harbor” a new suppress motion to ground on the for statements obtained within six hours of that Orsinger deprived procedural detention. rights juveniles for established §

U.S.C. 5033. Mitchell’s counsel adopted In Alvarez-Sanchez, States v. this argument, stating: U.S. 128 L.Ed.2d states, ante, 2. majority As the at 960-61 n. Percy, See United States right Sixth Amendment to counsel does (9th Cir.2001). not attach to custody. defendants in tribal (1994), Supreme Court held that and from subsequent occurrences. Un- 3501(c) suppression of a cus- disputed authorizes facts the record show that only a person todial statement when has an Assistant Attorney and FBI custody agents been held in for more than persuaded tribal authorities to ar- federal giving six hours before statement. Id. rest Mitchell and then used the tribal However, 114 S.Ct. 1599. detention to interrogate him. Two pointed to one circumstance in agents Court testified that tribal arrest was a delay differently, way get suspects which would be viewed custody quickly into if “namely, they the situation that would arise so that interrogate could them.3 authorities, acting They state or local in collu- acknowledged also they were officers, taking sion with federal were to arrest aware that a suspect into tribal custody someone in order to allow the detain would mean that he would not agents interrogate him in viola- federal be entitled to certain rights, federal such right prompt pres- right tion of his federal as the to appointed counsel and right entment.” Id. at prompt arraignment. to a argues agents his arrest and interro- offered no plausible explanation gations exception why fall within this and that necessary to use a tribal required court was therefore simply district arrest rather than to arrest suppress Instead, his confessions. Mitchell on federal charges. the circumstances surrounding Mitchell’s collusion, To establish a defendant arrest and interrogation compel the con- by must show a collaborative effort clusion that delay filing in federal “proof two authorities involved and of a charges was the result of a deliberate deprive deliberate intent to a defendant decision to have the agents ques- federal procedural rights.” federal [his] him tion in violation rights. of his Michaud, United States v. 268 F.3d (9th Cir.2001) (citing United States Although the record does not include Doe, warrant, Mitchell’s tribal arrest Cir. review of 1998)). Here, question there is no as to the trial transcript indicates that Mitchell the former. for the in likely robbery.4 As “deliberate was most arrested for element, tent” necessary is not permit for Criminal conduct that a would de- defendant to extract admissions from the charged robbery fendant to be with under federal and Navajo tribal authorities that such the Nation Code would also allow may was their intent. Intent be charged shown the defendant with that objective from the circumstances sur offense federal law.5 sig- under The most rounding decision-making process “robbery,” nificant difference in as defined Purscell, agents they Agent 3.The also testified agents that wanted to one of the FBI in- interrogation, get custody quickly volved in Mitchell’s arrest and protect defendant into stated that he believed tribal arrest war- public safety. safety a Public concern is robbery According rant was for assault. whenever violent crimes are involved. The co-defendant, Orsinger, Mitchell’s after the pertinent question is not whether there was a agents tribal arrest told that federal him he defendant, legitimate reason to detain the but robbery charge. was arrested on an armed rather whether the manner in which the au- Orsinger agents, also testified that three FBI having thorities detained him arrested him— agents, post- and no tribal attended his first by tribal rather than federal authorities —re- interrogation. arrest affording flected a deliberate avoid effort to Alvarez-Sanchez, rights. him his federal See similarly robbery 5. The defined offense is 511 U.S. at 114 S.Ct. 1599. Navajo under the Nation Code and federal Navajo law. The Code describes the Nation codes, law, Navajo any including Nation for offense under in the two tribal homicide, that the threat or use See requirement year. Code’s criminal is one immediate, 303(b). an element not de- of force be §§ The maximum un- N.N.C. definition, creating federal scribed robbery der federal law for and homicide than under federal law. higher burden years respectively. is fifteen and death Agents Ray- FBI The statements made Accordingly, there can be little doubt that Purscell, Bradley mond Duncan and always the authorities intended that Mitch- that there agents federal had determined ell and his co-defendants be tried on would to obtain a feder- was insufficient evidence charges. federal rather than on tribal warrant, al but sufficient evidence search finding Even if the district that the court’s warrant, to obtain a tribal arrest are clear- agents’ testimony was credible were not ly governing with the law. inconsistent erroneous, was, clearly I and think that it acknowledged robbery Agent Purscell surrounding the circumstances the deci- subject juris- on Indian land is to federal custody sion to take Mitchell into tribal any explanation diction and could not offer requisite establish collusion with the in- suggesting any the existence of differ- tent, claim that despite the officials never probable ence cause needed for tribal explicitly depriving discussed defendant of Agent versus a federal arrest warrant.6 rights. agents Both FBI it quite made they trying Duncan said discussed testimony significant clear their that a robbery obtain federal warrant for but underlying motivation the arrest was to be rejected they approach because could interrogate able the defendant and that robbery not connect the to house. How- if he were tribal rather than federal above, ever, robbery as described federal custody, interrogation could be con- requiring does not include element ducted without him affording substantial place the offense take in a house. rights designed protect against to him self- Moreover, that the arrest for a tribal of- incrimination. arranged fense was a ruse to allow federal Moreover, agents if federal did not have interrogate officers to Mitchell without af- probable cause to obtain a federal warrant him fording opportunity to consult (in at meeting the time of the November 3 counsel a compari- becomes evident from which possible penalties son of the under tribal case the tribal officers also lacked and federal law. The maximum penalty probable arrest), cause for the tribal Whoever, robbery robbery § elements of and armed 18 U.S.C.A. within the follows: special jurisdiction maritime and territorial 491(A) States, violence, § person 17 N.N.C. A by commits rob- of the United force and theft, bery committing intimidation, if in the course of he attempts or takes or to take or she threatens or uses immediate force person presence from the or of another against any person with intent either to value, anything imprisoned shall be property coerce surrender of or to forestall years. more than fifteen taking retaining resistance to his or her or 2111, robbery encompassed by § Armed is see property. Burns, 840, 841, United States v. 492(A) person § A 17 N.N.C. commits armed (9th Cir.1983). robbery committing if in the course of rob- 491,

bery § as defined in 17 N.N.C. he or she robbery, 6. As in the case of if the arrest were accomplice: or an type for assault the of assault involved here (1) deadly weapon; Is armed with would constitute a federal crime as well as (2) deadly weap- Uses or to use a threatens crime, §§ compare tribal 18 U.S.C. dangerous on or instrument. 314-15, probable with N.N.C. and the The Federal Criminal Code describes the requirement cause would be the same. robbery: elements of clearly probable day had cause to agents arrest revealed additional evidence al- after November when he con- lowed the agents federal to obtain a feder- robbery. to in the participating fessed al days warrant December 5. Four after However, custody that, he remained in tribal on December the federal agents A questioned and was further. federal executed the warrant. indictment was not filed until November Here, the federal agents made no simi- agents On November FBI con- lar effort to obtain a federal search war- pre- ducted at least one more extensive rant as [they] gathered “soon as sufficient arraignment interrogation precisely be- evidence against To the con- [Mitchell].” they lawyer cause knew that a would be trary, suggests the record agents that the thereafter, shortly Mitch- appointed when deliberately delayed bringing un- n appear would before magistrate. ell jurisdiction. der federal On November evidence This establishes Mitchell was FBI and tribal officials executed effectively custody in federal from the time warrant, tribal and Mitchell was taken into Therefore, of his tribal arrest. federal custody. agreeing After to poly- take a

rights attached and the violation these graph failing, test and Mitchell made a rights requires suppression of statements statement agent federal inculpating during period. obtained robbery. himself Although this con- majority analysis errs given fession should have agents the FBI First, a contrary leads conclusion. sufficient probable evidence establish majority fails to the federal consider cause to obtain a federal warrant to arrest agents’ Mitchell, conduct after ar- Mitchell’s tribal hours later agents two FBI suc- rest. This court has clear that cessfully sought made to have Mitchell record post-arrest activity agents of federal confession. this recorded state- directly ment, finding relevant to a of collusion or Mitchell admitted for the first time Michaud, thereof. lack See 268 F.3d at present “things he was when hap- pened” Then, 734-35. Critical to the Michaud court’s to the victims.' day, the next conclusion that the offered “no defendant Mitchell led tribal officers to the crime scene, deny evidence of actual collusion ... where he confessed to participating right her federal appear magis- before a in both provided graphic murders and de- judge,” trate Id. was the timeliness post-mortem tails about the murders and charges brought with which federal were dismemberment. Even after this last against statement, her. Although Michaud had first FBI agents the did not a seek warrant, by been arrested state for kid- authorities federal but instead waited sixteen assault, nap and sexual days soon as the to file an eighteen “[a]s indictment and agents gathered days federal sufficient evidence They to a warrant issued. have then against from Michaud the of her interrogated search Mitchell one last time while van, they obtained an warrant custody shortly arrest and he was in federal be- the steps necessary took her prosecute they mag- fore him a federal presented in federal court.” Id. at ini- twenty-four days 734-35. An istrate —a full after he tial search of agents Michaud’s hotel room on had taken federal to the crime by December led to her committing arrest state scene and confessed to officials, a but search of her van later that crime of which he was convicted.7 majority’s Percy, 7. The reliance on agents was detained and the time federal (9th Cir.2001), proposition F.3d 720 for the questioned him. Id. at 724. The defendant delay compel finding this does not a of custody day into federal transferred First, unavailing. Percy, collusion is Here, after the interview. Id. Mitchell re- delay occurred between the time defendant Yet so arraignment. and before agents in tak- counsel the federal The actions of agents explicitly do not state long statement from as inculpatory one final ing they sought affording to avoid provides arraignment his Mitchell before protections in- federal and as deliberate defendants their especially strong evidence of they testify purpose also that a rights. long him his On as deprive tent they protect public, arrest was to agents FBI arrested Mitch- November a interrogate repeatedly him to be free to and drove would ell on a federal warrant indefinitely counsel held without Flagstaff. At the court- defendant the courthouse I not house, any arraignment. room or do believe they took him to a conference him such a result when it from this court intended and obtained another statement magistrate a held that the defendant must show “delib- bringing him before before deprive incrimina- intent” to a defendant of final and most erate judge. statement, gave rights. a detailed ting procedural scheme, describing robbery confession collusion, Mitchell has shown Because ante, at 945. carjacking, and murders. See right presentment to federal attached his agents admitted at trial that One of arrest, and state at the time of his tribal Mitchell this one last time they talked to during period made unneces ments lawyer they knew that would be because delay arraignment should be sary before appointed upcoming appearance at his Mitchell’s first statement suppressed. they opportu- would not have another may within the six hour safe have fallen. nity interrogate him without counsel. 3501(c), by harbor established 18 U.S.C. of deliberate This is direct admission subsequent confessions did not.8 but deprive intent Mitchell of his federal Although require this court does not exclu rights. statements, sion of all non-safe harbor delay arraignment jus conclude that these facts do not satis- is To recognize either of the reasons we fy requirement the “deliberate intent” tified already evidentiary admitting difficult for such statements. See Unit would turn Mendoza, agents FBI States v. pass burden into free ed (9th Cir.1998) (“We will admit a statement rights who know full well that the under if the substantially, and tribal law differ made outside of the safe harbor federal if deny delay public policy was reasonable or purposeful and who take actions to admission.”) weigh in favor of rights. defendants their federal Under concerns Poyck, 77 majority’s approach, agents (citing federal United States v. Van (9th Cir.1996)). agents, they with did F.3d We have could meet tribal here, delay overnight held that an or weekend encourage tribal arrest with unavailability magistrate of a express purpose interrogating de- due to the knowledge Poyck, reasonable. 77 F.3d at 289. fendants and with the Van However, arraignment Mitchell’s was de- interrogations these will occur without analysis custody long and did not conduct its own of the mained in tribal after the first officials, through Thus, interrogation by Percy federal is of no question. Id. at 727. questioning. successive rounds of additional majority to the here. assistance delaying Clearly, there is difference between interrogation delaying the initial the During questioning, 8. round of Mitch- his first custody interrogation once the transfer into disappearances in the ell denied involvement Second, place. has taken the defendant inability robbery, suppress to and the and an Percy challenge not the district court’s did of little this statement would therefore be collusion, finding there so the consequence. by finding appeal was bound on

1003 twenty-five days, by showing not one or two. case relevant layed circum Furthermore, as there was no intent support pros stances inference that the magistrate Mitchell before a when he take venirepersons ecutor excluded because arrested, delay arraignment the his 96, their race. Id. at 1712. At S.Ct. that exception. does not fall within Addi- step, the second the burden shifts to the delay in ar- tionally, given the deliberate prosecution justify articu strikes raignment, public policy weigh concerns lating “neutral related explanation to the suppression, favor of not admission.9 Cf. particular 98, case to be tried.” Id. at Poyck, (finding public 77 F.3d at 290 Van Finally, S.Ct. 1712. the trial court must policy require suppression did not and ex- determine whether the defendant estab is not a case where the plaining “[t]his purposeful lished discrimination. Id. At intentionally postponed arraign- officers stage, this third trial court rtiust not “[t]he they interrogate ment could the defen- so simply accept proffered reasons at face dant”). value; it duty ‘meaning has a to evaluate sum, In court erred in not district fully persuasiveness prosecutor’s suppressing inculpatory state- explanation race-neutral to discern wheth in- highly ments. The confessions' were pretext er is mere for discrimination.” Thus, criminating highly prejudicial. Rhoades, 1101, v. Williams this error reversal of Mitchell’s warrants (9th Cir.2004) (internal punctuation omit conviction. ted) Alanis, (quoting States Cir.2003)). 965, Jury B. Selection case, prosecution In this struck the Mitchell also contends that the trial only Native American and African-Ameri- allowing prosecution court erred in jurors surviving peremptory can to the 30, only strike Juror # African Ameri- stage selection. Mitchell raised juror can venire at the time he was strikes, challenges Batson to both and the Supreme recognized struck. As the Court court disallowed the of the Native strike Kentucky, in Batson v. (# 29) juror American but overruled the sub, (1986), 90 L.Ed.2d 69 objection to the strike of the African- cases, sequent guarantee the constitutional (# 30). permitting prose- American equal protection prosecutor forbids a juror cution to strike # the court found excluding jurors from because of their prima that Mitchell did not make out a a' prosecu- race.10 To determine whether and that facie case of discrimination guarantee by using per- tor violated this government presented persuasive non- emptory racially in a discriminato- strikes manner, discriminatory reason for the strike that ry apply prong courts the three First, pretextual. analysis announced in a was contends Batson. prima findings clearly defendant must establish a facie that these are erroneous concerns, respect public policy Although prima 9. With facie case described in agents' empha- some of the federal statements Batson required a that the defendant to show remove, importance arresting Mitchell and sized prosecutor peremptories used veni- coparticipants in order to remove them defendant, repersons of the same race public safety from the streets reasons. in Powers 476 U.S. at 106 S.Ct. However, goes for the ar- reason Ohio, 400, 402, rest, subsequent not the reason for the reten- (1991), Supreme L.Ed.2d 411 the Court re- custody in tion of Mitchell tribal or the inordi- requirement moved the the defendant delay arraignment probable nate in his after jurors and the stricken be of the same race. unquestionably cause existed. juror # 30. of his con- its decision to dismiss See reversal they and that warrant Dretke, 231, 239, He is correct. Miller-El viction. (2005) 162 L.Ed.2d 196 assessing prima facie case of dis In the Batson, (quoting juror # respect to the crimination with 1712) (“[T]he prosecutor give must a clear gave weight previous trial no to its reasonably specific explanation of his prosecution violated Bat- finding the chal- exercising reasons for legitimate juror only # Native by striking son added). govern- The lenge.”) (emphasis remaining panel.11 on the How American juror it # 30 be- ment stated that struck ever, in Fernan recognized as this Court past jury cause he had served on a Roe, Cir. dez rec- acquitted a criminal defendant. The 2002), jurors strikes of of prosecution’s jury question- ord indicates that on the assessing in one race are relevant strikes naire, juror twenty #30 stated that over jurors particu race. This is of of another ' years participated had in a earlier he of larly true when the absolute number small, state criminal trial which the verdict jurors group a racial is particular dire, guilty. During that was not voir challenges against and the use of may questions insufficient to him group support prosecution asked about contrast, Id at 1078. prior jury inference this service. In de- discrimination. Fernandez, peremptory we held that juror whether fense counsel asked #30 against Hispanic jurors helped es strikes he remembered the nature of the offense of discrimination prima tablish facie case anything prior Juror or about case. jurors. against African American Similar # “I think it occurred like responded: case, ly, in unlawful prosecution’s years [prior two or three earlier only juror strike of the Native American just And we had a little informa- trial]. giving circumstance rise to an relevant However, really I I guess tion. don’t.” inference of discrimination the strike of despite prosecution’s apparent lack of only juror. tri African-American dire, during interest in the issue voir failing al court erred consider this juror # despite 30’s statement he did concluding evidence and anything significance about recall prima facie case of did not establish case, prosecution declared that it discrimination. juror the one African-American be- struck prior jury of his service. The dis- cause

Turning step to the second of the Bat- may “clearly trict court held that this was al- analysis, son have facially “legitimate” offered a reason for lowed.” majority suggests Although previous

11. The the Court did discuss its cannot determine ruling juror juror only whether in on #30 the district ruling # it did to contrast on so ruling juror strikes, court factored in its However, # the two and not as a circumstance quite the record makes clear that juror relevant to the strike of #30: the trial court found no relevant circum- 29, although # # 30 is different from both juror being other than # 30’s African- stances recognizably protected are members of a American. The Court stated: group. previously For the reasons I stated prima I do not find that a facie case has totality with # 29 because of the strictly # been made because 30 is an Afri- particular circumstances of this case involv- nothing can-American male. I see else in being ing Native Americans and # 29 the facts and circumstances that have been only venireperson, and the Native American presented that the Court is aware of distinguish other reasons stated I think surrounding peremptory the exercise of the my # 29 from # 30 and consideration that challenge that raise an inference of would prima facie case has been made. discrimination.

1005 majority penalizing juror ac a past court and the lawful and The district question proposition cept proper responsible without “exercise of citizen permanently prevent can ship.” In addition to infringing upon the serving juries simply on all from someone juror’s serve, right to such strikes create because, previously, several decades jurors an incentive for to vote to convict in a acquit person once voted to individual possibility serving order to retain the of crime, in a possibly of a ease accused juries other in the future. This under offense, involving a minor non-violent even jury’s mines the in “guarding] role misdemeanor, in which the defendant a rights parties” encourages ju of the beyond question. his innocence established duty rors to violate their constitutional proposition, accepted generally, a if Such acquit required by when the law and the a burden place would substantial on.the society, evidence. As a we benefit from by any right citizen of the to serve exercise jurors having who can exercise their re jury. Supreme recog Court on a As fully fairly without the sponsibilities Ohio, 499 111 Powers v. U.S. nized government seeking improperly to influ (1991), “[j]ury 411 S.Ct. 113 L.Ed.2d ence their decisions. Permitting prosecu responsible an of citi service is exercise jurors tors to strike who have once voted community, of zenship by all members acquit an unknown on an defendant including might those who otherwise not charge pre unknown authorizes them to to contribute to our opportunity have previously vent those who have stood be Id. at 111 1364. civic life.” S.Ct. tween the state and the individual from voting, jury oppor service is both an Like again “being judicial sys ever of part tunity participate gov in the affairs of country tem of the preventing] [and] its by gov ernment and a means which our arbitrary use or abuse.” Id. at legitimacy: ernment maintains its Rico, (quoting Balzac v. S.Ct. Porto Jury preserves democratic service S.Ct. 66 L.Ed. 627 law, guards of the as it element (1922)). enough disqualify It is from parties contin rights of the and ensures serving penalty juries on death citi those by acceptance ued of the laws all of the capital who have reservations about zens States, people. See Green United punishment or who would reserve that 165, 215, 632, 2 L.Ed.2d 78 S.Ct. penalty for the most extreme offenses. (1958) (Black, J., It dissenting). 672[ ] — Brown, U.S. -, See Uttecht v. ordinary op “affords citizens a valuable 2218, 2224-29, L.Ed.2d 1014 S.Ct. participate process in a of portunity (2007). disqualify To also all those who government, experience fostering, that a might have ever believed defendant Duncan, hopes, respect one for law.” could be innocent would seem to cross ], supra, 391 U.S. at 187[ jury fair providing line between —a (Harlan, J., Indeed, dissenting). with peers adopting system one’s citizens —and exception voting, for most inherently proprosecution weighted is jury duty is privilege the honor and overwhelmingly in favor of conviction. opportunity to significant their most process. in the participate democratic though a strike for the reasons Even 406-07, at truly Id. suggested prosecution of the legitimate ordinary in the sense solely juror’s partic- A strike based on a word, the de min- it nonetheless survives along jurors with all of his fellow ipation placed prosecution burden on the imis in a trial of an undeter- prior acquittal analysis. Al- nature, earlier, the second of the Batson many years mined held “legitimate” rea- jury by though spoke Batson threatens the institution 1006 20, 1712, acquit, individualized

sons, jury that voted at 98 n. 106 S.Ct. 476 U.S. juror may cases continue assessment of that well lead the Supreme recent Court see, e.g., prosecution might Miller-El v. to conclude that he be language, to use this 231, 239, 2317, See, Dretke, e.g., 125 S.Ct. inclined to favor the defense. 545 U.S. (2005), Power, 733, applying courts 162 L.Ed.2d 196 881 F.2d 740 United States (9th Cir.1989) equated “legitimate” juror with step (noting challenged this have Elem, See, Purkett v. e.g., “race-neutral.” recently completed “had service on anoth 514, 765, 768, 1769, 115 131 U.S. S.Ct. jury” prosecutor er and the “feared the (1995) Hernandez, (quoting L.Ed.2d 834 juror might be hostile to the 1859) (“At at 500 U.S. him after calling again to serve so soon step inquiry, of the the issue is [second] trial”); juror long prior a in a his service as expla validity prosecutor’s the facial of the Thompson, States v. 827 F.2d discriminatory a intent is nation. Unless (9th Cir.1987) n. (quoting prose 1256 1 prosecutor’s explanation, in the inherent explanation juror that it struck a cution’s deemed race the reason offered will be just acquitted he a case a “because neutral.”); Page, Tolbert v. 182 F.3d However, couple ago”). of weeks when (9th Cir.1999) banc) (en (“Whether 680 past jury service over two decades by prosecutor a is an justification offered ago, consequence and of such minimal adequate explanation race-neutral is a juror cannot recall the substance novo.”) question (quot of law reviewed de case, inferring there is no basis for that his Bishop, ing United States prior acquit vote to would influence his (9th Cir.1992)) (internal quotation n. 1 present prosecu vote in the case. The omitted). face, explana marks On its questions during tion’s voir dire did not juror tion that a was removed because he all, acquittal at much past address the less acquit once voted to a is race- defendant supporting genuine reveal information a standard, the reason Under neutral. experience concern that would affect by prosecution “legit advanced here juror # present 30’s deliberations. Under purposes step imate” for two of Batson. circumstances, proffered expla these An absolute bar on service for a striking juror nation for # must voted; long ago, acquit citizen once who was, fact, pretext a for what a deemed an unknown defendant on unknown race-based .strike. district court’s de is, however, charges so divorced from the clearly contrary cision to the errone jurors required individual consideration of ous,' requires and this error as well rever damaging Batson and so to the fairness sal of conviction. See Powers v. that, independence jury system Ohio, 400, 412, S.Ct. Afri- when exercised to remove the sole Batson, (1991); L.Ed.2d 411 at U.S. must, panel, can-American on the under 100, 106 S.Ct. 1712. step, pretext. the third be viewed aas So Sentencing II. arbitrary justification

improper and can- presumed prosecution’s not be to be the appeal, On Mitchell raises numerous er- true motive. object during rors to which he failed to trial. I now consider the effect of three of juror ulti-

“Competence to serve as significant the most of these errors that mately on an depends assessment of indi- during sentencing phase occurred ability qualifications impartially vidual presented at a trial.” this case. The three errors are as follows: to consider evidence Batson, First, in permitting' the district court erred juror recently sentencing on a from the When served be absent has capital presence defendant’s require of the Federal dur- in direct violation phase, requiring sentencing proceedings This is a structural error and that ing Rules. the Mitchell’s sentence. reversal of permitting automatic erred in him to district court However, the error deemed not to be were correct, He is presence. waive his structural, part a it would then constitute notwithstanding majority’s difficulty the analysis. See Sec- the cumulative error of issue, the error plain. with the is D, at individual tion 1013-14. While infra 43(a)(3) that a provides Rule defendant of “may not rise to the level revers- errors sentencing. at present Although must be error, may nev- their cumulative effect ible non-capital may a defendant waive this prejudicial appel- be so ertheless right, capital may defendant not.12 The lants that reversal is warranted.” majority perplexing makes the assertion (9th Wallace, States 43(a)(3) apply that Rule does not because Cir.1988) Berry, States v. (citing United sentencing phase capital the of a trial is Cir.1980)). 200-01 ante, part “sentencing.” not of See at 988. the to Mitchell’s absence from addition contradicts both the common under- This the two other errors phase, (a) sentencing the standing nu- of nature rely prosecution’s I are the which during requiring improper phase purposes statements clos- and the rule’s merous (b) court’s failure to arguments and the at ing capital presence defendant’s sentenc- correct standard of jury on the instruct ing, plain meaning as well as the factors finding aggravating proof for rule itself. I factors. conclude outweigh mitigating trial, sentencing In a the term capital three cumulative effect of these

that the penal with term phase synonymous is would, and I accord- prejudicial, errors is inter ty phase. The two terms are used vacate Mitchell’s death sentence. ingly, statutory term changeably, along with See, sentencing hearing. e.g., Absence From Rice A. Defendant’s (9th Cir.1996) (en Sentencing Wood, Phase 77 F.3d 1138 banc) (observing capital that a defendant’s describes, ante, majority opinion theAs separate guilt into trial “was bifurcated 985-86, unequivocally stated at jury sentencing phases, with the same to attend the that he did not wish sentenc- both”). Law Dictio sitting in Black’s The district ing phase proceedings. Cf. (8th ed.2004) (noting “penalty nary strongly urged him to exercise his judge “[ajlso sentencing termed phase” is occasions, present on several right to be Indeed, Federal Pen phase”). Death why he carefully explained the reasons that if a de alty specifically provides Act Ultimately, with considera- should do so. eligible guilty is found death fendant reluctantly allowed him misgivings, she ble offense, conduct a judge the trial “shall argues that be absent. Mitchell now hearing to determine sentencing separate Rules of Criminal Procedure the Federal voluntarily during sentencing by being 43(a)(3) ... ence “Unless this rule 12. Rule states otherwise, 43(c)(1)(B) the defendant must be provides does not absent. Because Rule sentencing.” present defendants, at ... The rule is limit- facts do apply capital and the 43(c)(1)(B), permits waiver of by ed which reasons for waiv- support of the other case, noncapital when the provision "in er, 43(c)(1)(A) (B), we See Fed.R.Crim.P. voluntarily during is absent sen- defendant straightforward question presented with a are concedes, tencing.” majority Rule As the “sentencing” meaning as the about the 43(c)(1)(B) negative implication does not 43(a)(3). is used in Rule term pres- capital waive his permit a defendant to imposed.” opportunity present any 18 U.S.C. dant has the punishment 3593(b) added). It (emphasis evidence, is the mitigating jury— and to ask the (a.k.a. sentencing hearing sentencing body deciding on his sentence —for that the phase penalty phase) or the evi- mercy. Additionally, psychological in- adduced, arguments are dence is made presence fluence of the defendant’s on the by counsel, the opportu- the defendant has jury significant during is most the time nity body that to address the —the hearing when it the argument as to punishment determines what his —and whether he should live or die and when is to the defen- ultimate decision made as receiving is the information that serves as dant’s sentence. Finally, the for its basis decision. to the in- “sentencing”

The conclusion that presence extent that a legiti- defendant’s sentencing hearing cludes the is also re- sentence, a legitimizing mizes function quired by an examination of the reasons sentencing phase, is most critical the requiring at presence defendant’s argues when the State that there is cause cases, sentencing. non-capital In the re- full power by to exercise the measure of its quirement present that a defendant be at taking the life of a defendant and the alia, sentencing, inter “serves the defen- defendant seeks the alternative of life im- by facilitating dant’s interest allocu- short, prisonment. process In of de- ” Curtis, .... tion United States v. 523 F.2d termining a capital defendant’s sentence (D.C.Cir.1975). 1134, 1135 It at is sen- during sentencing penalty occurs or tencing oppor- that the defendant “the has phase. The Penalty Federal Death Act tunity to address issues relevant to his provides that at the conclusion of this Robinson, sentence.” United States phase, jury “shall recommend whether (6th Cir.2004). Additionally, F.3d the defendant should be sentenced to presence the mere of the defendant in the death, imprisonment to life without possi- during sentencing proceedings courtroom bility of release or some other lesser sen- psychological exerts a influence on the 3593(e). § tence.” jury 18 U.S.C. If the See, jury. e.g., Canady, United States v. and, judge recommends death is obli- (2d Cir.1997) (“In gated impose that sentence and has no context, courts, jury rejecting several impose penalty. discretion to a lesser See argument pres- the defendant’s (“Upon 18 U.S.C. a recommenda- useless, ence pointed is have to the fact 3593(e) tion under section that the defen- that the defendant’s mere presence exerts dant should be sentenced to death or life ”) ‘psychological jury.’ influence upon the imprisonment possibility without of re- (quoting Santiago, United States v. (10th Cir.1992)). lease, the court n. shall sentence the defen- 523 6 Thus, dant accordingly.”). although case, In a capital federal the reasons for present was when the re- requiring presence a defendant’s at sen- and, later, turned its verdict months when tencing applicable primarily are to the sen- judge sentence, entered the death he tencing hearing rather than to the formal was no more than a passive audience on pronouncement judge, of sentence decision-making these occasions. The pro- although presence the defendant’s is re- cess was over. The time when Mitchell’s noted, quired during both.13 As it is presence important, sentencing phase proceedings when he could —the sentencing hearing defen- an capital have been active in the sen- participant —that contrast, non-capital single In in a case the hear- nouncement of the sentence at a occur ing regarding pro- proceeding. the sentence and the States, the de- Gomez v. United 874- and influenced fencing proceedings (1989) sentence, during 104 L.Ed.2d 923 as to his termination phase. Any (holding re- defendant did not need to sentencing or show permitted to may prejudice resulting magistrate have been from a su marks he jury’s subsequent to the judge pervising make to the voir dire violation of the Fed were, practical or con- legal of no Act Magistrate’s decision eral because the defen during His sen- sequence. absence have all critical right stages dant’s “to language hearing plain violated the tencing by a person criminal trial conducted with 43(a).14 purposes of Rule well as jurisdiction as preside” “among the basic can rights fair trial never be treated that Rule room for doubt There is little harmless”). determining whether 43(a)(3)’s that a defendant be requirement reversal, requires error automatic we look sentencing applies to sen- present at at whether the error is a “structural defect capital of a trial: tencing penalty phase affecting the framework within which the Because Rule sentencing hearing. simply trial rather than an error proceeds, 43(a) a defen- only noncapital states in process the trial itself.” Arizona v. during may presence waive his sen- dant Fulminante, 279, 310, 499 111 S.Ct. U.S. allowing in district court erred tencing, the (1991). 1246, Here, 302 113 L.Ed.2d voluntarily during absent Mitchell to be throughout penalty the Mitchell’s absence Furthermore, this er- phase. the penalty very nature phase pro affected the the requires re- a error that ror is structural a ceedings. The absence of defendant showing of specific without a versal even funda presence required when his is is as generally consid- prejudice. Although we lawyer, mental as the absence of his see context of error the er structural within 335, 344, Wainwright, v. 372 U.S. errors, Gideon errors are “numerous constitutional (1963), 792, 9 L.Ed.2d 799 or even though even subject to automatic reversal Ohio, Tumey v. judge. of the See rights.” they do not violate constitutional (1927). 437, 510, 535, 47 71 L.Ed. 749 S.Ct. Annigoni, v. 96 F.3d United States Cir.1996) (en banc). See, (9th required is so e.g., presence The defendant’s history Al- inconclusive. argues P. 43. I find majority that Fed R.Crim. 14. The 35(c), "sentencing” the word a defen- though which defines the earlier version allowed sentence,” the as "the oral announcement of noncapital case to absent from dant in a interpretation govern of Rule 43. the should cur- "imposition of sentence” while the the 35(c) specifically that the defini- states Rule noncapital a defendant to rent version allows sentencing applies "[a]s term tion "sentencing,” there is no be absent from added). (emphasis this rule.” Id. used in ap- practical between the terms as difference limitation, express Even aside from There is plied noncapital a defendant. that the defini- there is no reason believe sentencing proceeding noncapital one carry to other rules. In- should over tion impo- proceeding that cases and it is at that deed, every that it there is reason to believe The word the occurs. .sition of sentence Rule because that should be limited to "sentencing pro- "sentencing” term and the provisions set rule contains several meanings with re- ceeding” have far broader sentencing. on the date of deadlines based negative capital A spect to a defendant. im- 35(c) dead- simply clarifies how those Rule plication is also under such circumstances Rule 43 serves a lines should be calculated. notes, Thus, general committee broader. completely purpose. fact that different hardly ambiguous applied, are are as which explains that "sentence cor- it in one section questions that other- critical conclusive of is of proceeding under Rule 35 rection” is by looking the would be resolved wise question be- relevance whatsoever to the ordinaiy meaning construction of plain or leg- majority also relies on the fore us. The question. terms in history to Rule of the amendments islative whether, may plead inquiry his counsel and critical “[t]he that he assist mercy jury. Additionally, whole, from trial circumstances of the significantly could well have af presence they remarks were prejudicial so like- proceedings, fected the course ly jury adversely influenced aggra presentation mitigating of the defendant and deprived the defendant of vating evidence. contrast to cases Patel, fair trial.” v. United States only which the defendant was absent' dur (9th Cir.1985). verdict, see, ing of the pronouncement argument Much of the pro consisted of (9th Wood, e.g., Rice v. 77 F.3d Cir. hibited statements intended to arouse the 1996), a a judge conversation between passion jury. of the See United v. States see, juror, e.g., Spain, Rushen Leon-Reyes, 177 F.3d Cir. 114, 119, 78 L.Ed.2d 267 1999) (“Prosecutors may not make com (1983), testimony, see, or the readback passions ments calculated to arouse the e.g., Hegler Borg, 1474-75 instance, prejudices jury.”). For (9th Cir.1995), a an capital defendant has prosecution commented: I like “What play” during pénalty “active role to mitigating to call factors are excuses for Rice, phase of his trial. 77 F.3d at Cf. murder because we have free will.” Re Because Mitchell’s absence was garding defense witness who offered miti that permeated error the entire gation testimony, prosecution stated: phase, may “quantitatively not be as “By way, using the defendant’s these sessed the context of other evidence , ” people, Manipulating They too. presented.... at them. 499 U.S. Fulminante 308, 111 It impossible up begging S.Ct. 1246. to are there you his life. Do determine from a review of a record think begged when [Jane Doe] she was penalty imposed whether the would have lay told to arguing down and die?” In a been if different an absent defendant had death sentence would a “message” to present during been sentencing the Mitchell, prosecution suggested the phrase. jury could consider its own trauma in hear ing I about the “It message would reverse the death sentence on murders: is a defendant, basis of the court’s fundamental error all right, message is a in allowing Mitchell to be absent from the you us, challenged you have have sentencing hearing. Annigoni, See things come before us with going are at (holding that a violation of nightmares to cause us long as we are 24(b) Rule of the Federal Rules of Crimi- alive.” Procedure, nal regarding peremptory chal- vein, In prosecution a similar sug- lenges, is an error requiring automatic re- gested already Mitchell had received mer- versal). alternative, In the I will consider cy by virtue of the trial itself: “Perhaps the Rule 43 error below as if it were mere years ago, Tombstone, he would have been error, trial in which case it would consti- back, strung taken out up. He would have part analysis. tute of the cumulative error trial, gotten nothing a like this. haveWe pp. See section D at 1013-14. been at this for seven gone weeks. We’ve great lengths jury. to choose the We Closing Arguments B. presented have a trial. You have made majority opinion As the acknowledges, your findings. yet gets And still he ante, the government many made ” you come say, ‘Spare my before life.’ improper closing statements in argu- its determining improperly ments. In Other whether these im- statements shifted proper reversal, statements alone warrant proof burden of to Mitchell to show that factors are sufficient prosecutor vating The themselves warranted. was not

death done has Lezmond Mitchell justify “What a sentence of death. asked: minimum for the sentence to earn a “beyond a reasonable doubt” stan Nothing.” Simi- slaughter people? of two if applies finding aggravating dard “The defendant has larly, he remarked: outweigh mitigating factors factors is a opportunity to be nothing to earn done finding of fact that serves to increase the He has prison. in message to someone judge may impose maximum sentence a in a cell opportunity to live earned no a defendant. “Other than the fact of a not. He has he the cell or whether likes conviction, prior any fact that increases get college opportunity earned beyond pre for a crime chat prison or to Internet degree while statutory maximum must be scribed sub shop or to work with someone beyond a jury, proved mitted to In nothing.” earned con- prison. He has Apprendi reasonable doubt.” v. New Jer where the prosecution with cases trast 466, 490, sey, 120 S.Ct. 530 U.S. by reminding the clarified its comments (2000). Arizona, In Ring L.Ed.2d 435 v. that the had burden jury Supreme Court held that Apprendi Cabrera, see, v. proof, e.g., United States sentencing phase capital applies Cir.2000), the Arizona, 584, 588, Ring trials. no such this case offered prosecution 556(2002) 153 L.Ed.2d reminder. defendants, noncapi- than (“Capital no less However, in the context of the entire defendants, conclude, tal we are entitled to trial, conclude that these state- I cannot which determination of fact on reversal. It is not ments alone warrant legislature conditions an increase themselves, they were so clear that punishment.”). their maximum so hold they process violated due prejudicial Arizona, it overruled ing, defendant of a fair tri- Walton “deprived Nonetheless, Patel, F.2d at 795. al.” 111 L.Ed.2d 511 improper state- prosecutor’s the numerous (1990), that it allows a sen “to the extent law and contrary applicable Were ments jury, a tencing judge, sitting without The sentencing phase error. constituted circumstance neces aggravating find an therefore be of these errors must effect penalty.” the sary imposition of death of our cumulative part considered as a 122 S.Ct. 2428. Ring, 536 U.S. analysis. error finding that the that There is no doubt mitigating factors aggravating outweigh “Beyond Include Failure C. pun- maximum factors increased Mitchell’s Weighing Doubt” in Reasonable Penalty Act Federal Death ishment. The Instruction step the final in determin- provides that as argues that the district Finally, Mitchell justified, jury the death is ing whether jury by failing to instruct the court erred must consider: of that the bore the burden factor or aggravating all the whether that beyond a reasonable doubt proving sufficiently out factors found to exist outweighed mitigating aggravating factors factors mitigating all factor weigh or Instead, the instructions stated: factors. justify a sentence of found to exist to you process asks whether weighing This death, or, mitigating of a in the absence ag- unanimously that the persuaded are factor, factor aggravating whether sufficiently outweigh gravating factors justify a factors alone1are sufficient or, in factors the absence any mitigating factors, aggra- sentence of death. that the mitigating of 3593(e). finding, § Absent this position 18 U.S.C. concludes is flawed the maximum the court could sentence because it characterizes as an essential imposed impris- have would have been life by fact something cannot be found of release. possibility onment without the Ante, However, grand jury. at 993. Thus, only § 3594. See 18 U.S.C. majority creates conflict where none ex- finding this is a find- question is whether weighing process by ists. The mandated ing majority suggests of The that it applies regardless ju- fact. the Act of whether not, although is it concludes is mitigating rors have found factors. As the unnecessary question on resolve explains, mitigat- Act “in the of a absence that it plain error review. I conclude is factor,[the ing jury shall whether consider] necessary if to make the determination aggravating factor or factors alone are only to instruct because the failure justify sufficient to of sentence death.” jury proof is a the burden serious 3593(e). grand jury, 18 U.S.C. The part error that must be considered as of working knowledge mitigating without analysis. our cumulative error facts, capable making is a similar deter- majority suggests weighing upon aggravating mination based fac- process merely jury’s channels the discre fact, grand juries regu- tors before it. finding tion and that it does not result in a larly determinations, make factual for the Ante, of essential fact. at 993. The ma function, purposes body’s of that limited jority supports suggestion this with two having op- without heard the defendant’s First, observations. it cites dicta from posing facts might have caused it to , —U.S.-, Kansas v. Marsh opposite reach an Hearing conclusion. 2516, 2526, (2006), 165 L.Ed.2d 429 to the only story one-side of the rendering weighing step simply effect that the chan judgment grand jury is a hallmark of the jurors giving nels discretion crite system. ria to in deciding use whether or not to yet This court has not decided whether recommend a death sentence. While the weighing aggravators mitigators majority is correct that step channels in finding results of fact. It apparent juror discretion, the same can be said of Pre-Apprendi to me that it does. deci- every step other in the Federal Death rejected sions in other Eighth circuits Penalty sentencing process. Act’s Chan Amendment claim that “beyond a rea- neling incompatible discretion is not with applies sonable doubt” standard Rather, finding pre essential facts. it is weighing of aggravators mitigators, cisely by instructing juries which facts are but these decisions did not consider wheth- juror essential that the Act channels dis weighing er the a decision was “fact.” See cretion. Flores, 1342, United States v. 63 F.3d 1376 Second, majority suggests that (5th Cir.1995); Chandler, United States v. argument is inconsistent with (11th Cir.1993). 1073, 996 F.2d 1091-93 Fifth requirement Amendment that The one circuit court that has considered increasing penalty facts the maximum held, question Apprendi this since in the by grand jury charged found in context, claim, of a Fifth Amendment that the indictment. See v. Jones Penalty the Federal Death Act’s weighing States, 227, 6, 526 n. U.S. 243 process in finding did not result a of fact (1999). According 143 L.Ed.2d 311 . charged that must be in an indictment. to majority, grand jury since the can- See Purkey, United States mitigators not know which the defendant v. (8th Cir.2005) urge, (noting weighing

will cannot that aggravators find Thus, outweigh mitigators. majority process in- is not elemental fact but an Arizona, through Ring which the 120 S.Ct. 2348. v. merely “the lens stead facts that it has found approach focus the the Court relied on this hold jury must determina- an individualized produce ing aggravating prov factors must be tion”). However, reasoning faulty. jury beyond en to a a reasonable doubt. noted, weighing process does have (“Because As at discretionary aspect, requires but it also a aggravating Arizona’s enumerated factors an ultimate factual deter- jury to make operate equivalent as -the functional of an fac- aggravating mination about whether offense,’ greater of a element -the Sixth sufficiently outweigh mitigating fac- tors requires they Amendment be found a sentence of death. justify so as to tors (internal omitted). jury.”) a citation determines, penalty the death it so Unless functional there is perspective, From this imposed. cannot be in practical difference between' the discretionary Notwithstanding the ele punishment finding crease in due to the weighing step, three state ments of the aggravating and the increase due factor Apprendi held that supreme courts have finding aggravators outweigh to the weighing provisions applies to similar Federal Death mitigators. Because the statutes. See Mis penalty state death Penalty requires findings Act both in order (Mo. Whitfield, 107 S.W.3d souri to, judge for to sentence defendant 2003) (en banc) (noting weighing “re death, requires Amendment the Sixth findings prerequi that are quire[s] factual jury findings beyond to make these a rea to the trier of fact’s determination sites court erred in sonable doubt. The district eligible”); Woldt that a defendant is death concluding otherwise. (en (Colo.2003) People, 64 P.3d banc) (invalidating superseded Colorado D. Error Cumulative steps statute because three penalty death cumulatively, each of the er- Considered sentencing process, including weigh rors discussed above combined to preju: findings make ing, “required judges to jury’s respect dice Mitchell with to the eligible fact that render a defendant impose final the death determination death”); State, Nev. Johnson v. (Nev.2002) absence from penalty. Mitchell’s 802-03, (holding 59 P.3d 450 not phase proceedings meant that he was finding Apprendi Ring apply to the sentencing in the outweigh aggrava present participate not mitigation does tion). in the succinctly by hearing, point As the Nevada a critical determina- stated Court, jury’s finding on this Supreme fate. His absence also meant tion determination, a factual part issue “is face him required that the was not merely discretionary weighing.” period immediate before it decided Johnson, 802-03, 59 P.3d 450. 118 Nev. government’s im- that he should die. closing arguments appealed proper Ultimately, majority’s attempt undoubtedly exacer- jury’s emotions and step resulting weighing characterize the Fi- at the offenses. bated their revulsion find- something Apprendi other than required to de- nally, jurors were ing of fact reflects a level of formalism whether beyond cide a reasonable doubt rejected by Apprendi Ring. As both outweighed mitigating factors aggravating emphasized, inqui- “the relevant Apprendi factors, opt allowed to and thus were form, of effect-does the ry is one not of but having to make the more death without defendant to a required finding expose the required by stringent decision difficult and than that authorized greater punishment law. jury’s guilty verdict?” jury’s Given the nature of the function ZILA, INC., Corporation, a Delaware impose capital

determining whether Plaintiff-counter-defendant- punishment, apparent seems Appellee, errors cumulative effect of these was not in an important harmless. Each affected v. way aspect jury’s deci significant sion-making error process. Cumulative TINNELL, E. James Defendant- may plain include that fail the violations counter-claimant-Appellant. test, error but are nevertheless errors. Fernandez, Zila, Inc., Corporation,

See United States v. 388 F.3d a Delaware (9th Cir.2004) (considering 1256-57 Plaintiff-counter-defendant plain errors did not rise to the level of Appellant, error in a analysis); cumulative error v. Wallace, States v. 848 F.2d (9th Cir.1988) (holding 1476 n. 21 that an Tinnell, E. James Defendant-counter- trial, objected error that was not to at claimant-Appellee. - error, may not have amounted plain 05-15031, Nos. 05-15087. .should be in the considered cumulative errors, analysis). Multiple error if even United States Appeals, Court of individually, harmless when considered Ninth Circuit. may prejudicial have a cumulative effect deprives the defendant of the due Argued and Submitted Dec. 2006. process right to fair trial. See Karis Sept. Filed Calderon, 283 F.3d Cir.

2002); Stewart, Ceja

(9th Cir.1996). Here, the combined effect multiple sentencing phase may errors juror

well have caused at least one to vote

for death when he or she would otherwise light

have decided not to do so. In of this

probability, I would vacate Mitchell’s death

sentence.

III. Conclusion

I respectfully dissent. For the reasons above,

set forth I would reverse Mitchell’s

conviction and remand for a new trial. stand, however,

Should his conviction I

would, for the additional explained reasons opinion, vacate Mitchell’s sentence

and remand for a new sentencing hearing. notes court did here. Mitchell never contested earlier, acquittal years had been 20 but the American, and, in that he was a Native inquiry ground is not whether the is stra fact, stipulate to it. Advising offered to sound, tegically whether it is believa but that the Kesser, murder counts were be ble. 465 F.3d at 359. Nor does ing Major prosecuted pursuant govern Mitchell contest the fact that the another, entirely ment had moved to strike Act non- Crimes accurate sum juror African American for the same rea mary that shifted no burden at all to son. id. at (discussing compar 360-61 goes Mitchell. The for asking pro same Cf. juror analysis). finding ative of dis spective jurors testimony pic whether crimination where the used its graphic tures of a nature regarding the against only first strike Native Ameri murders in this case would affect their juror can when defendant and victims ability impartial. to be fair and There was compel were Native American does not occurred; question that murders had finding against pretext the African

Case Details

Case Name: United States v. Mitchell

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 5, 2007

Citation: 502 F.3d 931

Docket Number: 03-99010

Court Abbreviation: 9th Cir.