United States v. Jones ( 1998 )

REVISED, February 10, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10113 and No. 96-10448
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LOUIS JONES, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Texas
January 5, 1998
Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.
Robert M. Parker, Circuit Judge:
The defendant, Louis Jones, appeals from a conviction of
kidnapping with death resulting, in violation of 18 U.S.C. § 1201.
After a post-conviction sentencing hearing, the jury recommended
the death penalty. The defendant challenges the sentence of death
imposed by the court pursuant to the Federal Death Penalty Act of
1994 (“FDPA”), 18 U.S.C. §§ 3591-97. After considering all the
issues raised by the defendant on appeal, we affirm both the
conviction and the sentence of death.
I. Background
On February 18, 1995, Pvt. Tracie Joy McBride was abducted at
gunpoint from Goodfellow Air Force Base. During the abduction,
Pvt. Michael Peacock was assaulted by McBride’s attacker and
severely injured while attempting to aid McBride. The base
launched an intense investigation into the abduction of McBride.
On March 1, 1995, Sgt. Sandra Lane informed investigators of
the Office of the Air Force Special Investigations (“OSI”), who
were investigating the abduction of Pvt. McBride, that her ex-
husband, Louis Jones, had attacked her on February 16, 1995, two
days before McBride’s disappearance. After convincing Lane to file
a complaint, the OSI investigators summoned San Angelo Police who
took a sworn statement from Lane. An arrest warrant was issued for
Jones based on the statement made by Lane. Jones was arrested later
that evening.
While in state custody for the abduction and sexual assault of
Sandra Lane, investigators from the OSI questioned Jones as a
possible suspect in the abduction of Pvt. McBride. The OSI
investigators advised Jones of his Miranda rights, but Jones
indicated that he did not want an attorney and that he was willing
to answer questions. In response to questioning by OSI
investigators, Jones gave a written statement admitting to the
abduction and murder of McBride. In his statement, Jones admitted
to taking McBride back to his apartment, tying her up, and placing
her in the closet. Jones stated that he then drove McBride to a
2
remote location where he repeatedly struck her over the head with
a tire iron until she was dead. Although Jones could not give
investigators directions to where the body was located, he
indicated that he could show them. Subsequently, Jones lead law
enforcement officials to a bridge located twenty miles outside San
Angelo under which the body of Tracie McBride was discovered. An
autopsy revealed that McBride died due to blunt force trauma to the
head. The autopsy also revealed evidence of sexual assault.
Louis Jones was indicted in an instrument that charged him
with kidnapping McBride with her death resulting, in violation of
18 U.S.C. § 1201(a)(2). The government alleged that the offense
occurred within the special maritime and territorial jurisdiction
of the United States. Conviction for kidnapping with death
resulting under the Federal Kidnapping Statute, 18 U.S.C. § 1201,
could result in a sentence of life imprisonment or death.
Exercising the discretion granted by the Federal Death Penalty Act,
the United States Attorney prosecuting the case decided to seek the
death penalty. As required by 18 U.S.C. § 3593(a), the prosecution
filed its Notice of Intent to Seek the Death Penalty. The jury
trial commenced on October 16, 1995 and resulted in a guilty
verdict on October 23, 1995.
Following Jones’s conviction, a separate sentencing hearing
was conducted to determine whether Jones would receive a sentence
of death. See 18 U.S.C. § 3593. To obtain a sentence of death, the
government had the burden of proving the following: the death of
McBride was an intentional killing; and the existence of one or
3
more aggravating factors make the defendant death-eligible. 18
U.S.C. § 3591(a). In the first stage of the sentencing hearing,
the jury was required to determine whether Louis Jones
intentionally caused the death of Tracie McBride. 18 U.S.C. §
3591(a). Regarding the intent element, the jury unanimously found:
(1) Jones intentionally killed McBride; and (2) Jones intentionally
inflicted seriously bodily injury that resulted in the death of
McBride.
The second stage of the sentencing hearing required the jury
to weigh any aggravating factors against any mitigating factors to
determine whether a sentence of death was appropriate. 18 U.S.C. §
3593(e). The government, in its notice of intent to seek the death
penalty, set forth four statutory aggravating factors1 and three
non-statutory aggravating factors.2 In order to consider an
1
The government alleged the following four statutory aggravating
factors:
(1) the defendant caused the death or injury resulting in
the death of Tracie Joy McBride during the commission of the
offense of kidnapping;
(2) the defendant, in the commission of the offense,
knowingly created a grave risk of death to one or more persons
in addition to the victim of the offense, Tracie Joy McBride;
(3) the defendant committed the offense in an especially
heinous, cruel, and depraved manner in that it involved torture
and serious physical abuse to the victim, Tracie Joy McBride;
and
(4) the defendant committed the offense after substantial
planning and premeditation to cause the death of Tracie Joy
McBride.
2
The three non-statutory aggravating factors are as follows:
(1) the defendant’s future dangerousness to the lives and
safety of other persons;
(2) Tracie Joy McBride’s young age, her slight stature, her
background, and her unfamiliarity with San Angelo, Texas; and
(3) Tracie Joy McBride’s personal characteristics and the
effect of the instant offense on Tracie Joy McBride’s family.
4
aggravating factor, the jury must unanimously find that the
government established the existence of an aggravating factor
beyond a reasonable doubt. 18 U.S.C. § 3593(c). The jury made
unanimous findings regarding the following two statutory factors:
Jones caused the death of the victim or the injury resulting in the
death of the victim during the commission of the offense of
kidnapping; and Jones committed the offense in an especially
heinous, cruel, and depraved manner. The jury also made unanimous
findings regarding the following two non-statutory aggravating
factors: McBride’s young age, her slight stature, her background,
and her unfamiliarity with San Angelo, Texas; and McBride’s
personal characteristics and the effect of the offense on her
family.
Once the jury found aggravating factors to exist, the jury
next had to determine whether any mitigating factors existed. To
consider a mitigating factor in jury deliberations, only one juror
must find that the defendant established the existence of a
mitigating factor by a preponderance of the evidence. Of the
eleven mitigating factors proposed by the defendant, ten mitigating
factors were found to exist by at least one or more jurors.3 In
3
The defendant proposed eleven mitigating factors, ten of which were
found to exist by one or more jurors (the number of jurors finding each
mitigating factor is enclosed in brackets):
(1) the defendant Louis Jones did not have a significant prior
criminal record [6];
(2) the defendant’s capacity to appreciate the wrongfulness
of the defendant’s conduct or to conform to the requirements of
the law was significantly impaired, regardless of whether the
capacity was so impaired as to constitute a defense to the
charge [2];
(3) the defendant committed the offense under severe mental
5
deliberations, the jury was asked to weigh the aggravating factors
against any mitigating factors to determine the propriety of a
death sentence. The jury returned a unanimous verdict recommending
death on November 3, 1995.
II. Constitutionality of Federal Death Penalty Act
The defendant challenges the constitutionality of the Federal
Death Penalty Act, 18 U.S.C. §§ 3591-97, on the following four
grounds: (1) the prosecutor’s ability to define non-statutory
aggravating factors amounts to an unconstitutional delegation of
legislative power; (2) the lack of proportionality review combined
with prosecutor’s unrestrained authority to allege non-statutory
aggravating factors renders the statute unconstitutional; (3) the
relaxed evidentiary standard at the sentencing hearing combined
with the unrestrained use of non-statutory aggravating factors
renders the jury’s recommendation arbitrary; and (4) the death
or emotional disturbance [1];
(4) the defendant was subjected to physical, sexual, and
emotional abuse as a child (and was deprived of sufficient
parental protection that he needed)[4];
(5) the defendant served his country well in Desert Storm,
Grenada, and for 22 years in the United States Army [8];
(6) the defendant is likely to be a well-behaved inmate [3];
(7) the defendant is remorseful for the crime he committed
[4];
(8) the defendant’s daughter will be harmed by the emotional
trauma of her father’s execution [9];
(9) the defendant was under unusual and substantial internally
generated duress and stress at the time of the offense [3];
(10) the defendant suffered from numerous neurological or
psychological disorders at the time of the offense [1]; and
(11) other factors in the defendant’s background or character
militate against the death penalty [0].
Additionally, seven jurors added Jones’s ex-wife Sandra Lane as a
mitigating factor.
6
penalty is unconstitutional under all circumstances. We review
constitutional challenges to federal statutes de novo. United
States v. Bailey, 115 F.3d 1222, 1225 (5th Cir. 1997).
A.
First, the defendant asserts that the prosecutor’s authority
to define non-statutory aggravating factors results from an
unconstitutional delegation of legislative power. The
nondelegation doctrine arises from the constitutional principle of
separation of powers, specifically Article 1, § 1, which provides
that “all legislative Powers herein granted shall be vested in a
Congress of the United States.” See Touby v. United States, 500
U.S. 160, 165 (1991); United States v. Mistretta, 488 U.S. 361, 371
(1989). Under the nondelegation doctrine, Congress may not
constitutionally delegate its legislative power to another branch
of government. See Mistretta, 488 U.S. at 372. Congress, however,
may seek assistance, within limits, from coordinate branches of
government. See id. So long as Congress formulates “an
intelligible principle to which the person or body authorized to
exercise the delegated authority is directed to conform, such
legislative action is not a forbidden delegation of legislative
power.” Id.
Jones asserts that Congress failed to formulate an
“intelligible principle” in § 3592(c) when it delegated the
authority to define additional aggravating factors to the
7
Department of Justice.4 On the contrary, the delegated authority
is sufficiently circumscribed by “intelligible principles” to avoid
violating the nondelegation doctrine. See United States v. Tipton,
90 F.3d 861, 895 (4th Cir. 1996). The authority to define
nonstatutory aggravating factors falls squarely within the
Executive’s broad prosecutorial discretion, much like the power to
decide whether to prosecute an individual for a particular crime.
See United States v. Armstrong, __ U.S. __, 116 S. Ct. 1480, 1486
(1996)(noting the prosecutor’s broad discretion in deciding whether
to prosecute); United States v. Johnson, 91 F.3d 695, 698 (5th Cir.
1996)(stating that “[a] prosecutor has broad discretion during
pretrial proceedings to determine the extent of the societal
interest in prosecution.") Obviously, Congress could not list
every possible aggravating factor. An exclusive list of factors
would bind the hands of the prosecutor in deciding whether to
pursue the death penalty.
Nevertheless, the prosecution does not have carte blanche in
devising non-statutory aggravating factors. At least four
limitations guide the prosecution in exercising its delegated
authority. First, the statute limits the scope of aggravating
factors to those for which prior notice has been given by the
4
In reviewing similar challenges to the death penalty provisions of
the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e), two other circuits
rejected this argument. United States v. McCullah, 76 F.3d 1087 (10th Cir.
1996); United States v. Tipton, 90 F.3d 861, 895 (4th Cir. 1996).
8
prosecution.5 See 18 U.S.C. § 3593(a). Second, the death penalty
jurisprudence devised by the Supreme Court guides the prosecution
in formulating nonstatutory aggravating factors. For example, due
process requires that information submitted as aggravating
genuinely narrow the class of persons eligible for the death
penalty. See Zant v. Stephens, 462 U.S. 862, 877 (1983). Third,
the district court functions as a gatekeeper to limit the admission
of useless and impermissibly prejudicial information. See 18
U.S.C. § 3593(c). And fourth, the requirement that the jury find
at least one statutory aggravating factor beyond a reasonable doubt
before it may consider the non-statutory factors further limits the
delegated authority. See 18 U.S.C. § 3593(d). The requirement of
at least one statutory aggravating factor secures sufficient
Congressional guidance in classifying death-eligible offenders.
Consequently, these limitations provide the prosecution with an
“intelligible principle” so that an unconstitutional delegation
does not occur.
B.
Second, the defendant argues the lack of proportionality
review combined with the prosecutor’s unrestrained authority to
allege non-statutory aggravating factors renders the statute
unconstitutional. Proportionality review examines the
appropriateness of a sentence for a particular crime by comparing
5
Section 3592(c) allows the jury to consider “whether any other
aggravating factor for which notice has been given exists.” 18 U.S.C. §
3592(c).
9
the gravity of the offense and the severity of the penalty with
sentencing practices in other prosecutions for similar offenses.
See Pulley v. Harris, 465 U.S. 37, 43 (1984). Although the Court
has upheld capital sentencing schemes requiring proportionality
review, the Court has never required such review as
constitutionally mandated. See Gregg v. Georgia, 428 U.S. 153, 204-
05 (1976) (plurality opinion) (noting the benefits of
proportionality review as a means of preventing arbitrary death
sentences, but not mandating such review). See also Pulley, 465
U.S. at 44-45 (“that some [capital sentencing] schemes providing
proportionality review are constitutional does not mean that such
review is indispensable”). Thus, the Constitution does not require
comparative proportionality review in every capital case, but only
that the death penalty not be imposed arbitrarily or capriciously.
See Pulley, 465 at 49-50.
The FDPA is not so lacking in other checks on arbitrariness
that it fails to pass constitutional muster for lack of
proportionality review. See id. at 880. The FDPA bifurcates the
penalty phase from guilt determination. During the penalty phase,
the jury must first determine whether the defendant intentionally
killed the victim, or intentionally committed or participated in an
act that resulted in the death of the victim. 18 U.S.C. § 3591(a).
Then the jury must make a finding, beyond a reasonable doubt, of
the existence of any aggravating factor or factors enumerated in §
3592(c). After finding the existence of at least one statutory
aggravating factor, the jury may consider the existence of
10
nonstatutory aggravating factors for which notice has been given by
the government. See 18 U.S.C. § 3593(d). Individual jurors must
then consider evidence of any mitigating factor that he or she has
found to exist by a preponderance of the evidence. Prior to
imposing a sentence of death, the jurors must conclude that
evidence of the aggravating factors unanimously found to exist
beyond a reasonable doubt, both statutory and nonstatutory,
outweighs the mitigating factors any individual juror has found to
exist by a preponderance of the evidence. Additionally, the
statute provides for appellate review to determine whether the
death sentence was imposed under the influence of passion,
prejudice or any other arbitrary factor. 18 U.S.C. § 3595.
Jones argues that the Constitution requires proportionality
review when the capital sentencing procedure allows the jury to
consider nonstatutory aggravating factors because of the danger
that the death penalty will be imposed arbitrarily, capriciously,
or freakishly. As long as the statute prevents an arbitrary death
sentence, the inclusion of relevant nonstatutory aggravating
factors at the sentencing stage does not render the death penalty
scheme unconstitutional. See Barclay v. Florida, 463 U.S. 939,957
(1983)(citing Zant v. Stephens, 462 U.S. 862, 878-89 (1983)). The
FDPA provides sufficient safeguards to prevent the arbitrary
imposition of the death penalty. First, the legislature designed
a narrow statute by applying the death penalty to a limited number
11
of criminal offenses.6 See 18 U.S.C. § 3591. Second, the statute
further narrows the class of persons eligible for the death penalty
by requiring a finding of at least one statutory aggravating
factor. See 18 U.S.C. § 3593(d). And third, the statute provides
for appellate review to determine whether the evidence supports the
special finding of an aggravating factor and to ensure that the
death sentence was not imposed under the influence of passion,
prejudice or any other arbitrary factor. See 18 U.S.C. § 3595.
Consequently, we hold that the Constitution does not mandate
proportionality review when the capital sentencing scheme permits
the jury to consider nonstatutory aggravating factors as long as
the statute provides for other safeguards against an arbitrary
imposition of the death penalty.
C.
Third, Jones argues that the relaxed evidentiary standard at
the sentencing hearing combined with the unrestrained use of non-
statutory aggravating factors renders the jury’s recommendation
arbitrary and unreliable. The Federal Death Penalty Act provides
for a relaxed evidentiary standard during the sentencing hearing in
order to give the jury an opportunity to hear all relevant and
reliable information, unrestrained by the Federal Rules of
Evidence. The FDPA provides:
6
A defendant may be sentenced to death if convicted of the
following offenses: espionage, 18 U.S.C. § 794; treason, 18 U.S.C.
§ 2381; or intentionally murdering or causing the death of a
person during the commission of certain crimes, see, e.g.,
kidnapping with death resulting, 18 U.S.C. § 1201.
12
The government may present any information relevant to an
aggravating factor for which notice has been provided
under subsection (a). Information is admissible
regardless of its admissibility under the rules governing
admission of evidence at criminal trials except that
information may be excluded if its probative value is
outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury. The
government and the defendant shall be permitted to rebut
any information received at the hearing, and shall be
given fair opportunity to present argument as to the
adequacy of the information to establish the existence of
any aggravating or mitigating factor, and as to the
appropriateness in the case of imposing a sentence of
death.
18 U.S.C. § 3593(c). Therefore, the defendant and the government
may introduce any relevant information during the sentencing
hearing limited by the caveat that such information be relevant,
reliable, and its probative value must outweigh the danger of
unfair prejudice.7
Although the Eighth Amendment requires a heightened
reliability standard in capital sentencing proceedings, the jury
must also receive sufficient information regarding the defendant
and the offense in order to make an individual sentencing
determination. See Lowenfield v. Phelps, 484 U.S. 231, 238-239
(1988)(the “qualitative difference between death and other
penalties calls for a greater degree of reliability when the death
sentence is imposed”). The Court has recognized that the defendant
must be given the opportunity to introduce information regarding
7
The relevancy standard enunciated in § 3593(c) actually excludes
a greater amount of prejudicial information than the Federal Rules of
Evidence because it permits the judge to exclude information where the
“probative value is outweighed by the danger of creating unfair prejudice”
rather than “substantially outweighed.” See Fed. R. Evid. 403. See also
Anti-Drug Abuse Act, 21 U.S.C. § 848(j) (codifying Fed. R. Evid. 403
standard of “substantially outweighs”).
13
mitigating factors, without traditional evidentiary restraints, in
order to provide the jury with the fullest possible information
about the defendant. See Gregg v. Georgia, 428 U.S. 153, 204
(1976) (“So long as the evidence introduced and the arguments made
at the presentence hearing do not prejudice a defendant, it is
preferable not to impose restrictions. We think it desirable for
the jury to have as much information before it as possible when it
makes the sentencing decision.”). See also Jurek v. Texas, 428
U.S. 262, 276 (1976) (stating that it is “essential . . . that the
jury have before it all possible relevant information about the
individual defendant whose fate it must determine”). Although the
sentencing hearing will not be governed by traditional evidentiary
restraints, the district court will prevent the evidentiary free-
for-all prophesied by Jones by excluding unfairly prejudicial
information under the standard enunciated in § 3593(c).
Consequently, the relaxed evidentiary standard does not impair the
reliability or relevance of information at capital sentencing
hearings, but helps to accomplish the individualized sentencing
required by the constitution. See United States v. Nguyen, 928
F. Supp. 1525, 1546-47 (D.Kan. 1996).
D.
Finally, the defendant argues that the death penalty is
unconstitutional under all circumstances. We are bound by Supreme
Court precedent which forecloses any argument that the death
penalty violates the Constitution under all circumstance. See
14
McCleskey v. Kemp, 481 U.S. 279, 300-03 (1987); Gregg v. Georgia,
428 U.S. 153 (1976).
III. Jury Instructions
A.
The defendant claims that the district court erred by failing
to give the defendant’s requested instructions. We review the
district court’s refusal to give a requested instruction for abuse
of discretion. See United States v. Townsend, 31 F.3d 262, 270 (5th
Cir. 1994). A refusal to give a requested instruction is
reversible error only if the proposed instruction was (1)
substantively correct, (2) not substantively covered in the jury
charge, and (3) concerned an important issue in the trial, such
that failure to give the requested instruction seriously impaired
the presentation of a defense. Id.
The actual jury instructions given by the district court
repeated the sentencing options available under the FDPA. The
instructions traced 18 U.S.C. § 3593(e) by informing the jury that
it could recommend death, life without the possibility of release,
or some lesser sentence. The defendant, however, contends that the
jury should have been instructed that a failure to reach a
unanimous verdict recommending the death penalty would result in
the court automatically imposing a sentence of life without the
possibility of release.8 The defendant’s proposed instructions
8
The defense proposed two jury instructions regarding the unanimity
requirement. Requested instruction number five, entitled “Unanimity
Required Only for Death Sentence,” provided in relevant part as follows:
15
were not substantively correct because the proposed instructions
informed the jury that the failure to return a unanimous verdict
would result in an automatic sentence of life without the
possibility of release. Such is not the case under § 3593, which
requires unanimity for every sentence rendered by the jury
regardless of whether the verdict is death, life without the
possibility of release, or, if possible under the substantive
criminal statute, any other lesser sentence. Life without the
possibility of release was not the default penalty in the event of
non-unanimity. On the contrary, the failure to reach a unanimous
decision regarding sentencing would result in a hung jury with no
verdict rendered. As such, a second sentencing hearing would have
to be held in front of a second jury impaneled for that purpose.
See 18 U.S.C. § 3593(b)(2)(C). Therefore, the district court did
not err by refusing to give the defendant’s requested instructions
because such instructions were not substantively correct.
In the event, after due deliberation and reflection, the jury
is unable to agree on a unanimous decision as to the sentence
to be imposed, you should so advise me and I will impose a
sentence of life imprisonment without possibility of release.
The defense’s requested jury instruction number four provided in relevant
part as follows:
If, after fair and impartial consideration of all the evidence
in this case, any one of you is not persuaded that justice
demands Mr. Jones’s execution, then the jury must return a
decision against capital punishment and must fix Mr. Jones’s
punishment at life in prison without the possibility of release.
16
B.
Additionally, the defendant contends that the district court
committed reversible error with the instructions actually given for
the following two reasons: First, Jones argues that the
instructions actually given by the district court caused the jurors
to recommend the death penalty under the false impression that the
failure to reach a unanimous verdict would automatically result in
the imposition of some lesser sentence. Second, Jones argues that
the instructions incorrectly informed the jury they had the option
of recommending some lesser sentence, in addition to the death
penalty or life imprisonment options. Thus, the defendant claims
that the instruction resulted in an arbitrary and capricious
imposition of the death penalty in violation of the Eighth
Amendment and Due Process.
We review all alleged errors in jury instructions for abuse of
discretion. United States v. Townsend, 31 F.3d 262, 270 (5th Cir.
1994). A conviction will not be reversed unless the jury
instructions, when viewed in their entirety, failed to correctly
state the law. See United States v. Flores, 63 F.3d 1342, 1374(5th
Cir. 1995). Thus, even if a portion of the jury instructions are
not technically perfect, the district court’s instructions will be
affirmed on appeal if the charge in its entirety presents the jury
with a reasonably accurate picture of the law. See id. (citing
United States v. Branch, 46 F.3d 440, 442 n. 2 (5th Cir. 1995)).
The district court will be reversed, however, if the interpretation
urged by the appellant is one that a “reasonable jury could have
17
drawn from the instructions given by the trial judge and from the
verdict form[s] employed in this case.” Id. at 175 (citing Mills v.
Maryland, 486 U.S. 367, 375-76 (1988)).
If the defendant did not object below, we review for plain
error. See Flores, 63 F.3d at 1374 (citing United States v.
Willis, 38 F.3d 170, 179 (5th Cir. 1994)). Under the plain error
standard, there must be an error that is plain and that affects
substantial rights. See Fed. R. Crim. P. 52(b). See also United
States v. Olano, 507 U.S. 725, 731 (1993)(explaining plain error
standard). Thus, an appellate court may correct a plain error only
if it meets the following criteria: (1) there must be an error,
which is defined as a deviation from a legal rule in the absence of
a valid waiver; (2) the error must be clear or obvious error under
current law; and (3) the error must have been prejudicial or
affected the outcome of the district court proceedings. See Olano,
507 U.S. at 732-35; United States v. Dupre, 117 F.3d 810, 816 (5th
Cir. 1997); United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994)(en banc). Additionally, an appellate court has
discretion in deciding whether to correct a plain error. See
Olano, 507 U.S. at 735-36. Such discretion should not be exercised
unless the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (citing United
States v. Young, 470 U.S. 1, 15 (1985).
The district court instructed the jury as follows:
After you have completed your findings as to the
existence or absence of any aggravating or mitigating
factors, you will then engage in a weighing process. In
determining whether a sentence of death is appropriate,
18
you must weigh any aggravating factors that you
unanimously find to exist--whether statutory or
nonstatutory--against any mitigating factors that any of
you find to exist. You shall consider whether all the
aggravating factors found to exist sufficiently outweigh
all the mitigating factor or factors found to exist to
justify a sentence of death, or, in the absence of a
mitigating factor, whether the aggravating factor or
factors alone are sufficient to justify a sentence of
death. Based upon this consideration, you the jury, by
unanimous vote, shall recommend whether the defendant
should be sentenced to death, sentenced to life
imprisonment without the possibility of release, or
sentenced to some other lesser sentence.
If you unanimously conclude that the aggravating
factors found to exist sufficiently outweigh any
mitigating factor or factors found to exist, or in the
absence of any mitigating factors, the aggravating
factors are themselves sufficient to justify a sentence
of death, you may recommend a sentence of death. Keep in
mind, however, that regardless of your findings with
respect to aggravating and mitigating factors, you are
never required to recommend a death sentence.
If you recommend the imposition of a death sentence,
the court is required to impose that sentence. If you
recommend a sentence of life without the possibility of
release, the court is required to impose that sentence.
If you recommend that some other lesser sentence be
imposed, the court is required to impose a sentence that
is authorized by the law. In deciding what
recommendation to make, you are not to be concerned with
the question of what sentence the defendant might receive
in the event you determine not to recommend a death
sentence or a sentence of life without the possibility of
release. That is a matter for the court to decide in the
event you conclude that a sentence of death or life
without the possibility of release should not be
recommended.
. . . .
In order to bring back a verdict recommending the
punishment of death or life without the possibility of
release, all twelve of you must unanimously vote in favor
of such specific penalty.
19
i.
We must first decide whether the instructions given by the
district court could have led a reasonable jury to believe that the
court would automatically impose some lesser sentence if the jury
failed to reach a unanimous verdict, as alleged by the defendant.
As we have previously stated, § 3593(e) requires the jury to return
a unanimous verdict regardless of whether the jury recommends
death, life without the possibility of release, or some other
lesser sentence. In arguing that the jury instructions and verdict
forms caused the jury confusion, the defendant points to the
following: (1) the district court did not repeat the unanimity
requirement each time the court mentioned the lesser sentence
option in the instruction; (2) decision forms B and C, which
recommended the death sentence and life imprisonment without the
possibility of release, required the signature of all twelve
jurors, while decision form D which recommended a lesser sentence
only required the signature of the foreman; (3) the court erred by
declining to instruct the jury on the effect of the failure to
arrive at a unanimous decision; and (4) after the sentencing
hearing, two jurors gave statements to defense attorneys attesting
to the confusion caused by the jury instructions.
Regarding the district court’s failure to repeat the unanimity
requirement each time the court mentioned the lesser sentence
option, the instructions could not have led a reasonable jury to
conclude that non-unanimity would result in the imposition of a
lesser sentence. See Flores, 63 F.3d at 1375. Reading the
20
instructions in their entirety, the court clearly stated that the
jury must reach a unanimous verdict. At no time were the jurors
ever informed that the failure to reach a unanimous verdict would
result in the imposition of a term less than life imprisonment. As
such, we hold that the district court did not abuse its discretion
by failing to repeat the unanimity requirement.
Additionally, the defendant argues that the disparity of the
verdict forms caused the jury to assume that nonunanimity would
result in a lesser sentence because form D only required the
signature of the jury foreperson, when forms B and C required all
twelve juror signatures. The defendant did not object to the
format of the verdict forms; therefore, we review for plain error.
See Flores, 63 F.3d at 1374. Although the verdict forms standing
alone could have persuaded a jury to conclude that unanimity was
not required for the lesser sentence option, any confusion created
by the verdict forms was clarified when considered in light of the
entire jury instruction. Consequently, we hold that no error
occurred.
Next, Jones argues that the failure to instruct the jury of
the consequences of not reaching a unanimous verdict resulted in a
violation of the Eight Amendment proscription against cruel,
unusual, and excessive punishment. Jones requested, but was
denied, an instruction on the failure to arrive at a unanimous
decision. Jones points to State v. Williams, 392 So. 2d 619 (La.
1980), where the Louisiana Supreme Court held that juries must be
informed of the consequences of failing to achieve a unanimous
21
verdict. The defendant does not persuade us by invoking Williams
because the Louisiana death penalty act, under which Williams was
sentenced, expressly provided that life imprisonment resulted when
the jury could not unanimously agree on the death penalty. Unlike
the Louisiana statute, the Federal Death Penalty Act requires the
jury to achieve unanimity or no verdict results. See 18 U.S.C. §
3593(e). Although the use of instructions to inform the jury of
the consequences of a hung jury have been affirmed, federal courts
have never been affirmatively required to give such instructions.
See Allen v. United States, 164 U.S. 492, 501-02 (1896) (upholding
the use of supplemental instructions to inform the jury of the
effect of a hung jury); United States v. Sutherland, 463 F.2d 641,
648 (5th Cir. 1972)(allowing use of Allen charge). Consequently,
we hold that no constitutional violation occurs when a district
court refuses to inform the jury of the consequences of failing to
reach a unanimous verdict.
Finally, the defendant attempts to prove the instructions
caused jury confusion through the use of juror affidavits.
Following the sentencing hearing, two jurors initiated
communications with defense attorneys in which the jurors referred
to alleged confusion caused by the instructions regarding the
unanimity requirement.9 Jones cannot utilize juror affidavits to
9
Juror Christie Beauregard called the office of the Federal Public
Defender and spoke with attorney Carlton McLarty and investigator Daniel
Salazar. Mr. Salazar executed an affidavit detailing the conversation he
had with Ms. Beauregard in which she stated that she was pressured into
changing her vote by other jurors who believed that the court would impose
a lesser sentence if the jury did not reach a unanimous verdict.
Juror Cassandra Hastings contacted defense attorney Daniel Hurley.
22
undermine the jury verdict. See Fed. R. Evid. 606(b); United States
v. Ruggiero, 56 F.3d 647, 652 (5th Cir. 1995). Federal Rule of
Evidence 606(b) bars juror testimony regarding at least four
topics: (1) the method or arguments of the jury’s deliberations,
(2) the effect of any particular thing upon an outcome in the
deliberations, (3) the mindset or emotions of any juror during
deliberations, and (4) the testifying juror’s own mental process
during the deliberations. See Ruggiero, 56 F.3d at 652. Under the
rule, a juror may only testify to extraneous forces which influence
jury deliberations. See Tanner v. United States, 483 U.S. 107, 121
(1987)(juror use of alcohol and drugs not extraneous influence on
jury deliberations). Allegations of jury confusion caused by jury
instructions would not be an outside influence about which a juror
could competently testify. See Peveto v. Sears Roebuck & Co., 807
F.2d 486, 489 (5th Cir. 1987). An “outside influence” refers to a
factor originating outside of normal courtroom proceedings which
influences jury deliberations, such as a statement made by a
bailiff to the jury or a threat against a juror. Id. (citing Fed.
R. Evid. 606(b) Advisory Committee Note and Judiciary Committee
Note). Rule 606(b) has consistently been used to bar testimony
when the jury misunderstood instructions. See, e.g., Robles v.
Exxon Corp., 862 F.2d 1201, 1204 (5th Cir. 1989) (holding that
juror testimony regarding misunderstanding of instructions
prohibited by rule 606(b)). The defendant argues that the
Ms. Hastings executed an affidavit stating that she changed her vote to
death under the mistaken belief that if the jury could not reach a
unanimous decision, then the court would impose a lesser sentence.
23
inapplicability of the Federal Rules of Evidence during sentencing
hearings precludes the use of Rule 606(b) to bar juror affidavits
impeaching the sentence. See 18 U.S.C. § 3593(c). The reasons for
not allowing jurors to undermine verdicts in jury trials, however,
apply with equal force to sentencing hearings. See Silagy v.
Peters, 905 F.2d 986, 1009 (7th Cir. 1990) (holding that a juror's
statements could not be used in a habeas corpus proceeding to
impeach the jury's sentencing determination). Noting that the
Eighth Amendment requires a “greater degree of reliability when the
death sentence is imposed,” we are convinced that Rule 606(b) does
not harm but helps guarantee the reliability of jury determinations
in death penalty cases. See Lockett v. Ohio, 438 U.S. 586, 604
(1978) (stating that the qualitative difference with the death
penalty requires a greater degree of reliability).
Jury deliberations entail delicate negotiations where majority
jurors try to sway dissenting jurors in order to reach certain
verdicts or sentences. An individual juror no longer exposed to
the dynamic offered by jury deliberations often may question his
vote once the jury has been dismissed. Such self-doubt would be
expected once extrinsic influences bear down on the former jurors,
especially in decisions of life and death. When polled, each juror
affirmatively indicated that he had voted for the death penalty.
We will not allow a juror to change his mind after the jury has
rendered a verdict. In this situation, the outcome could just as
easily have turned out the other way with the jurors not supporting
the death sentence convincing the death-prone jurors to impose life
24
without the possibility of release. If the jury truly feared that
the district court would impose some lesser sentence in the absence
of a unanimous recommendation, then the jury had the option of
imposing life without the possibility of release. Furthermore, the
jury never sought a clarifying instruction to remedy the alleged
confusion. Consequently, the affidavits do not convince us that
the instructions given by the district court could lead a
reasonable jury to believe that the failure to reach a unanimous
decision would result in the imposition of a lesser sentence.
ii.
Additionally, the defendant contends that the district court
erred because the instructions misinformed the jury that three
sentencing options were available, when in fact only two sentencing
options existed under the substantive criminal statute--death and
life imprisonment. See 18 U.S.C. § 1201. When a statute allows
the jury to exercise sentencing powers, due process requires that
a jury must be informed of all available sentencing options. See
Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). At Jones’ sentencing
hearing the district court informed the jury of the three
sentencing options available under § 3593 of the federal death
penalty provisions rather than limiting the instructions to the two
sentencing options available under § 1201, the substantive criminal
statute for which the defendant was convicted. The defendant did
not object to the inclusion of the “lesser sentence” option below;
25
therefore, we review for plain error.10 See Flores, 63 F.3d at
1374.
We must first determine whether the district court committed
error by instructing the jury of the sentencing options available
under § 3593, rather than limiting the instructions to the two
sentencing options which existed under the substantive criminal
statute. See Olano, 507 U.S. at 732-33. If any error occurred
regarding the available sentencing options, the error was caused by
the disparate sentencing options provided for in the Federal
Kidnapping statute, 18 U.S.C. § 1201, and the Federal Death Penalty
Act, 18 U.S.C. § 3593(e)(3). Under § 1201, a defendant convicted
of kidnapping with the death of the victim resulting shall be
punished by death or life imprisonment. See 18 U.S.C. § 1201.
Under the federal death penalty provisions, however, the jury may
recommend that the court sentence the defendant to death, to life
imprisonment without the possibility of release, or some other
lesser sentence, upon the unanimous recommendation of the jury. See
18 U.S.C. § 3593(e).
The defendant argues that the language of the kidnapping
10
At the charge conference, and in written objections, the defendant
objected to the court’s refusal to include the language “rather than a
sentence of life imprisonment without the possibility of release or a
lesser sentence” whenever the instructions referred to the jury’s
responsibility to determine whether the defendant should be sentenced to
death. If the district court had actually used the defendant’s requested
instruction, then we would review under the invited error doctrine. See
United States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th Cir.
1991). The district court, however, did not use the defendant’s requested
language. Furthermore, the defendant did not object to other references
in the instructions to the “lesser sentence” option. Consequently, we
review for plain error.
26
statute clearly limits the possible sentences to death or life
imprisonment. Moreover, the defendant argues that the term “life
imprisonment” in the kidnapping statute actually means life without
the possibility of release because parole no longer exists in the
federal system. Thus, the jury actually had only two sentencing
options--death or life without the possibility of release.
Conversely, the government argues that the jury in fact had three
options because Congress distinguishes between “life” and “life
without the possibility of release.” The government raises § 3594
as an example of the qualitative difference between life and life
without the possibility of release. Section 3594 states that if
the jury recommends a lesser sentence, then “the court shall impose
any lesser sentence that is authorized by law . . . . if the
maximum term of imprisonment is life imprisonment, the court may
impose a sentence of life imprisonment without the possibility of
release.” 18 U.S.C. § 3594. Thus, the government argues that the
jury in fact had the option of recommending death, life without the
possibility of release, or a lesser sentence, but the district
court was obligated to impose life without the possibility of
release as the only “lesser sentence” authorized by law.
In deciding whether the FDPA or § 1201 provides the
appropriate sentencing options, we must first determine what effect
the death penalty scheme has on the substantive criminal law. The
FDPA acts like a sentence enhancement provision in that it does not
add to or otherwise affect the penalties available under the
substantive criminal statutes. See United States v. Branch, 91
27
F.3d 699, 738-40 (5th Cir. 1996)(holding that 18 U.S.C. § 924(c)
does not create separate offense). Although the FDPA does not
function exactly as a sentence enhancement provision, we will
utilize the sentence enhancement analysis in order to determine the
effect of the death penalty provisions on the substantive criminal
law. In determining whether a statute creates a separate offense
or is merely a sentence enhancement provision, the court has
suggested the following four factors: (1) whether the statute
predicates punishment upon conviction under another section; (2)
whether the statute multiplies the penalty received under another
section; (3) whether the statute provides guidelines for the
sentencing hearing; and (4) whether the statute is titled as a
sentencing provision. Id. at 738 (citing United States v. Jackson,
891 F.2d 1151, 1152 (5th Cir. 1989)). These factors complement
traditional tools of statutory interpretation, namely, the text and
legislative history. Id. at 738. As with the sentence enhancement
provisions applicable to the use of a firearm during the commission
of a drug crime, the FDPA does not create a separate and
independent offense, but depends upon a conviction under another
section. See Branch, 91 F.3d at 738. Additionally, the death
penalty statute merely provides guidelines and procedures for the
sentencing hearing. Nothing in the text or legislative history
indicates that Congress intended to create new, separate offenses
under the death penalty scheme.11
11
The legislative history also supports a holding that § 3593 was
intended to create procedures for imposing the death penalty rather than
create additional substantive crimes. See House Report No. 103-467, 103rd
28
Although all three sentencing options were available to the
jury under § 3593, the defendant could only receive death or life
imprisonment under § 1201, the substantive criminal statute for
which Jones was convicted. Contrary to the government’s assertion,
no meaningful distinction exists between “life” and “life without
the possibility of release.” Thus, had the jury recommended some
lesser sentence, the court would have been obligated to impose life
without the possibility of release as the only authorized lesser
sentence. Because the substantive criminal statute takes
precedence over the death penalty sentencing provisions, the
district court should have instructed the jury of the sentencing
options available under § 1201. Consequently, the district court
committed error by informing the jury of the lesser sentence option
available under § 3593.
After determining that error occurred, we must next determine
whether the error was clear or obvious error under current law.
See Olano, 507 U.S. at 734; Dupre, 117 F.3d at 817. Prior to this
appeal, the death penalty sentencing provisions under which Jones
was sentenced had never been reviewed on appeal. No clearly
established law answered the question of whether § 3593 or the
substantive criminal statute under which the defendant is convicted
provides the correct sentencing options. The error was not so
obvious, clear, readily apparent, or conspicuous that the judge was
derelict by not recognizing the error. Consequently, we hold that
Cong., 2d Sess. (1994).
29
instructing the jury as to the sentencing options available under
§ 3593 was not plain error.
IV. Statutory Aggravating Factors
The defendant argues that the district court committed
reversible error by submitting statutory aggravating factors to the
jury which failed genuinely to narrow or channel the jury’s
discretion. The government submitted four statutory aggravating
factors to the jury during the penalty phase of the trial. The
jury made unanimous findings regarding two statutory aggravating
factors.
A.
Jones argues that the inclusion of statutory aggravating
factor 2(A), which merely repeated the elements of the crime, did
nothing to narrow the jury’s discretion, and thus, violated the
Eighth Amendment. Statutory aggravating factor 2(A), based on §
3592(c)(1), provides: “The defendant Louis Jones caused the death
of Tracie Joy McBride, or injury resulting in the death of Tracie
Joy McBride, which occurred during the commission of the offense of
Kidnapping.”
As stated previously, a capital sentencing scheme must
genuinely narrow the class of persons eligible for the death
penalty. Zant v. Stephens, 462 U.S. 862, 877 (1983). The use of
aggravating factors helps to narrow the class of death-eligible
persons and thereby channels the jury’s discretion. See Lowenfield
30
v. Phelps, 484 U.S. 231, 244 (1987). An aggravating factor which
merely repeats an element of the crime passes constitutional muster
as long as it narrows the jury’s discretion. See id. at 246. In
Lowenfield, the Court held that the constitutionally required
narrowing function in a capital punishment regime could be
performed in either of two ways: “The legislature may itself narrow
the definition of capital offenses, . . . so that the jury finding
of guilt responds to this concern, or the legislature may more
broadly define capital offenses and provide for narrowing by jury
findings of aggravating circumstances at the penalty phase.”
Lowenfield, 484 U.S. at 246. Thus, the requisite narrowing can be
done at either the guilt or penalty phase of trial.
The FDPA channels the jury’s discretion during the penalty
phase to ensure that the death penalty is not arbitrarily imposed.
The federal death penalty regime establishes the class of persons
eligible for the death penalty through its definition of capital
offenses, to include only treason, espionage, and certain
intentional killings. See 18 U.S.C. § 3591. Although the federal
death penalty regime defines capital offenses, the narrowing
function does not occur until the penalty phase of the trial. In
narrowing the jury’s discretion in federal homicide prosecutions,
the FDPA requires the jury first to find that the defendant had the
requisite intent. 18 U.S.C. § 3591. The FDPA further narrows the
jury’s discretion with the requirement the jury find at least one
statutory aggravating factor prior to recommending the death
penalty. See 18 U.S.C. § 3592(c). Thus, the FDPA narrows the
31
jury’s discretion through the findings of intent and aggravating
factors. Repetition of the elements of the crime as an aggravating
factor helps to channel the jury’s discretion by allowing the jury
to consider the circumstances of the crime when deciding the
propriety of the death sentence. The jury may constitutionally
consider the circumstances of the crime when deciding whether to
impose the death penalty. See Tuilaepa v. California, 512 U.S.
967, 976 (1994).
The narrowing function was not performed at the guilt phase
when the jury convicted Jones of kidnapping with death resulting,
but at the penalty phase when the jury found Jones intentionally
killed McBride and two statutory aggravating factors existed.
Although the jury had already found the defendant guilty of
kidnapping with death resulting at the guilt phase of the trial,
the jury did not consider whether Jones caused the death of the
victim during the commission of the crime of kidnapping until the
penalty phase of the trial. The jury could have convicted Jones of
kidnapping with death resulting in the guilt phase of the trial and
still answered “no” to statutory aggravating factor 2(A) in the
penalty phase if the jury found that Jones did not cause the death
of the victim during the commission of the crime of kidnapping.
The submission of the elements of the crime as an aggravating
factor merely allowed the jury to consider the circumstances of the
crime when deciding whether to impose the death penalty. Thus, the
kidnapping was weighed only once by the jury during the penalty
phase of the trial. Consequently, the repetition of the elements
32
of the crime as an aggravating factor did not contradict the
constitutional requirement that aggravating factors genuinely
narrow the jury’s discretion.
B.
Jones contends that the district court committed reversible
error by allowing statutory aggravating factor 2(C). Statutory
factor 2(C), based on § 3592(c)(6), provides: “The defendant Louis
Jones committed the offense in an especially heinous, cruel, and
depraved manner in that it involved torture or serious physical
abuse to Tracie Joy McBride.” Jones argues that the language used
in aggravating factor 2(C) was unconstitutionally vague, resulting
in the arbitrary imposition of the death penalty in violation of
the Eighth Amendment. As the Supreme Court stated in Maynard v.
Cartwright:
Claims of vagueness directed at aggravating circumstances
defined in capital punishment statutes are analyzed under
the Eighth Amendment and characteristically assert that
the challenged provision fails adequately to inform
juries what they must find to impose the death penalty
and as a result leaves them and appellate courts with the
kind of open-ended discretion which was held invalid in
Furman v. Georgia.
Maynard v. Cartwright, 486 U.S. 356, 361-62 (1988) (citation
omitted). Due to the difficulty in precisely defining aggravating
factors, however, “our vagueness review is quite deferential.”
United States v. Flores, 63 F.3d 1342, 1373 (5th Cir. 1995)
(quoting Tuilaepa v. California, 512 U.S. 967, 975 (1994)).
Consequently, an aggravating factor will be upheld as long as it
has some “common-sense core meaning . . . that criminal juries
33
should be capable of understanding.” Id.
The language “especially heinous, cruel, and depraved” without
a limiting instruction would be unconstitutionally vague. See
Maynard v. Cartwright, 486 U.S. at 364; King v. Puckett, 1 F.3d
280, 284 (5th Cir. 1993). Any vagueness in the language, however,
is cured by the limitation in the statute that the offense involve
torture or serious physical abuse. See Walton v. Arizona, 497 U.S.
639, 654-55 (1990) (citing Maynard v. Cartwright, 486 U.S. at 364-
65). Moreover, the district court defined each term in aggravating
factor 2(C) which resolved any possible vagueness or ambiguity of
the language.12 The statutory limitation, along with the district
12
The district court gave the following limiting instruction to
explain statutory aggravating factor 2(C):
To establish that the defendant killed the victim in an
especially heinous, cruel, or depraved manner, the government must
prove that the killing involved either torture or serious physical
abuse to the victim. The terms “heinous, cruel, or depraved” are
stated in the disjunctive: any one of them individually may
constitute an aggravating circumstance warranting imposition of the
death penalty.
“Heinous” means extremely wicked or shockingly evil, where the
killing was accompanied by such additional acts of torture or
serious physical abuse of the victim as set apart from other
killings.
“Cruel” means that the defendant intended to inflict a high
degree of pain by torturing the victim in addition to killing the
victim.
“Depraved” means that the defendant relished the killing or
showed indifference to the suffering of the victim, as evidenced
by torture or serious physical abuse of the victim.
“Torture” includes mental as well as physical abuse of the
victim. In either case, the victim must have been conscious of the
abuse at the time it was inflicted; and the defendant must have
specifically intended to inflict severe mental or physical pain or
suffering upon the victim, apart from killing the victim.
“Serious physical abuse” means a significant or considerable
amount of injury or damage to the victim’s body which involves a
substantial risk of death, unconsciousness, extreme physical pain,
protracted and obvious disfigurement, or protracted loss or
impairment of the function of a bodily member, organ, or mental
faculty. Serious physical abuse--unlike torture--may be inflicted
either before or after death and does not require that the victim
34
court’s instruction, gave the jury an aggravating factor with a
“common-sense core meaning” that they were capable of
understanding. Thus, the language of statutory aggravating factor
2(C) was not unconstitutionally vague and did not lead to the
arbitrary imposition of the death penalty in violation of the
Eighth Amendment.
V. Non-statutory Aggravating Factors
Jones argues that the death sentence must be reversed because
the nonstatutory aggravating factors considered by the jury were
unconstitutionally vague, overbroad, and duplicative. After giving
the appropriate notice required by § 3593(a), the government
submitted the following nonstatutory aggravating factors:
3(A). The defendant constitutes a future danger to the
lives and safety of other persons as evidenced by
specific acts of violence by the defendant Louis Jones.
3(B). Tracie Joy McBride’s young age, her slight stature,
her background, and her unfamiliarity with San Angelo,
Texas.
3(C). Tracie Joy McBride’s personal characteristics and
the effect of the instant offense on Tracie Joy McBride’s
family constitute an aggravating factor of the offense.
The jury unanimously found nonstatutory aggravating factor 3(B) and
be conscious of the abuse at the time it was inflicted. However,
the defendant must have specifically intended the abuse apart from
the killing.
Pertinent factors in determining whether a killing was
especially heinous, cruel, or depraved include: infliction of
gratuitous violence upon the victim above and beyond that necessary
to commit the killing; needless mutilation of the victim’s body;
senselessness of the killing; and helplessness of the victim.
The word “especially” should be given its ordinary, everyday
meaning of being highly or unusually great, distinctive, peculiar,
particular, or significant.
35
3(C) to exist beyond a reasonable doubt.
The government contends that factors 3(B) and 3(C) apply to
entirely different areas of aggravation--3(B) applies to McBride’s
vulnerability, while 3(C) applies to “victim impact” or the impact
of the murder on McBride’s family. Although the use of
vulnerability and victim impact evidence has been upheld on appeal,
the language used in 3(B) and 3(C) does not accomplish this goal.
See Payne v. Tennessee, 501 U.S. 808, 827 (1991) (victim impact);
Tuilaepa, 512 U.S. at 977 (vulnerability through age of victim).
The plain meaning of the term “personal characteristics,” used in
3(C), necessarily includes “young age, slight stature, background,
and unfamiliarity,” which the jury was asked to consider in 3(B).
Thus, nonstatutory aggravating factors 3(B) and 3(C) are
duplicative. As the Tenth Circuit recently stated, “Such double
counting of aggravating factors, especially under a weighing
scheme, has a tendency to skew the weighing process and creates the
risk that the death sentence will be imposed arbitrarily and thus,
unconstitutionally.” United States v. McCullah, 76 F.3d 1087, 1111
(10th Cir. 1996). We agree. Such double-counting of aggravating
factors creates the risk of an arbitrary death sentence. If the
jury has been asked to weigh the same aggravating factor twice, the
appellate court cannot assume that “it would have made no
difference if the thumb had been removed from death’s side of the
scale.” Stringer v. Black, 503 U.S. 222, 232 (1992). Consequently,
the district court erred by submitting the duplicative aggravating
factors to the jury.
36
Additionally, the defendant contends that the nonstatutory
aggravating factors are vague and overbroad, in violation of the
Eighth Amendment. See Maynard v. Cartwright, 486 U.S. 356, 361-62
(1988). We agree. Non-statutory aggravating factors 3(B) and
3(C) fail to guide the jury’s discretion, or distinguish this
murder from any other murder. We fail to see how the victim’s
“background,” her “personal characteristics,” or her “unfamiliarity
with San Angelo” made the defendant more death-worthy than other
murderers. Furthermore, the district court offered no additional
instructions to clarify the meaning of the non-statutory
aggravating factors. The use of the terms “background,” “personal
characteristics,” and “unfamiliarity” without further definition or
instruction left the jury with “the kind of open-ended discretion
which was held invalid in Furman v. Georgia.” See Maynard, 486 U.S.
at 361-62 (1988). Consequently, aggravating factors 3(B) and 3(C)
were invalid.
After determining that the non-statutory aggravating factors
submitted to the jury were invalid, we must next determine whether
the death sentence may stand. The Federal Death Penalty Act sets
up a weighing scheme in which the jury is asked to weigh any
aggravating factors found to exist beyond a reasonable doubt
against any mitigating factors found to exist by a preponderance of
the evidence. If the aggravating factors outweigh the mitigating
evidence, then the jury may recommend the death penalty. In a
weighing scheme, aggravating factors lie at the very heart of the
37
jury’s ultimate decision to impose a death sentence.13 See
Stringer, 503 U.S. at 230. Under a weighing statute, affirming a
death sentence when an aggravating factor has been found invalid
requires the appellate court to scrutinize the role which the
invalid aggravating factor played in the sentencing process in
order to comply with the Eighth Amendment requirement of
individualized sentencing determinations in death penalty cases.
See Stringer, 503 U.S. at 230. A rule automatically affirming a
death sentence in a weighing scheme as long as one aggravating
factor remained would violate the requirement of individualized
sentencing. See Clemons v. Mississippi, 494 U.S. 738, 752
(1990)(citing Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings v.
Oklahoma, 455 U.S. 104 (1982)). When the jury considers an invalid
aggravating factor at the sentencing hearing, the appellate court
must strike the invalid factor and then either reweigh the
remaining aggravating factors against the mitigating evidence or
apply harmless error review. See Clemons v. Mississippi, 494 U.S.
738, 741 (1990); Wiley v. Puckett, 969 F.2d 86, 92 (5th Cir. 1992).
If the appellate court chooses to reweigh the remaining
aggravating factors against the mitigating evidence, the court must
determine what the jury would have done absent the invalid
aggravating factor. See Stringer, 503 U.S. at 230. On the other
13
In non-weighing statutes, the jury must find the existence of one
aggravating factor before imposing the death penalty, but such factors play
no additional role in the jury’s determination of whether a defendant
eligible for the death penalty should receive it under the circumstances
of the case. See Stringer v. Black, 503 U.S. 222, 229-30 (1992)
(discussing the Georgia non-weighing death penalty statute at issue in Zant
v. Stephens, 462 U.S. 862 (1983)).
38
hand, if the appellate court chooses to apply harmless error
review, then the harmless error analysis can be applied in the
following two ways: First, the appellate court may inquire into
whether, beyond a reasonable doubt, the death sentence would have
been imposed had the invalid aggravating factor been properly
defined in the jury instructions. See Clemons, 494 U.S. at 754;
Wiley, 969 F.2d at 92-93. Second, the appellate court may inquire
into whether, beyond a reasonable doubt, the death sentence would
have been imposed absent the invalid aggravating factor. See
Clemons, 494 U.S. at 753; Wiley, 969 F.2d at 91. If the government
establishes that an error regarding aggravating factors is harmless
beyond a reasonable doubt, then the appellate court may not reverse
or vacate the death sentence, unless of course such error rises to
the level of a denial of constitutional rights. See 18 U.S.C. §
3595.
At this point, the appellate court may either reweigh the
aggravating and mitigating evidence or apply one of the methods of
harmless error review. See Wiley, 969 F.2d at 92. It matters not
which standard of review an appellate court chooses to apply
because all three standards lead to the same conclusion. If a
death sentence would be overturned under harmless error review,
then the death sentence would be overturned after reweighing, and
vice versa. The government asserts that we must apply the harmless
error standard. Although the statute provides that an appellate
court “shall not reverse or vacate a sentence of death on account
of any error which can be harmless,” 18 U.S.C. § 3595(c), the
39
statute does not establish a standard of review. Therefore, an
appellate court can choose to apply any of the available forms of
review as long as the defendant receives an individual
determination of the propriety of his death sentence.
In affirming the defendant’s death sentence, we apply the
second method of harmless error review. In applying the second
method of harmless error review, an appellate court must inquire
into whether, beyond a reasonable doubt, the death sentence would
have been imposed absent the invalid aggravating factors. See
Clemons, 494 U.S. at 753; Wiley, 969 F.2d at 91. This second form
of harmless error review requires the appellate court to redact the
invalid aggravating factors and “reconsider the entire mix of
aggravating and mitigating circumstances presented to the jury.”
See Wiley, 969 F.2d at 93.
After removing the offensive non-statutory aggravating factors
from the balance, we are left w i t h t w o s t a t u t o r y a g g r a v a t i n g
factors and eleven mitigating factors to consider when deciding
whether, beyond a reasonable doubt, the death sentence would have
been imposed had the invalid aggravating factors never been
submitted to the jury. At the sentencing hearing, the government
placed great emphasis on the two statutory aggravating factors
found unanimously by the jury--Jones caused the death of the victim
during the commission of the offense of kidnapping; and the offense
was committed in an especially heinous, cruel, and depraved manner
in that it involved torture or serious physical abuse of the
victim. Under part two of the Special Findings Form, if the jury
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had failed to find that the government proved at least one of the
statutory aggravating factors beyond a reasonable doubt, then the
deliberations would have ceased leaving the jury powerless to
recommend the death penalty. Therefore, the ability of the jury to
recommend the death penalty hinged on a finding of a least one
statutory aggravating factor. Conversely, jury findings regarding
the nonstatutory aggravating factors were not required before the
jury could recommend the death penalty. After removing the two
nonstatutory aggravating factors from the mix, we conclude that the
two remaining statutory aggravating factors unanimously found by
the jury support the sentence of death, even after considering the
eleven mitigating factors found by one or more jurors.
Consequently, the error was harmless because the death sentence
would have been imposed beyond a reasonable doubt had the invalid
aggravating factors never been submitted to the jury.
VI. Conclusion
After considering the eighteen issues raised by the appellant
on appeal, we conclude that the sentencing provisions of the
Federal Death Penalty Act are constitutional and that the
defendant’s death sentence was not imposed under the influence of
passion, prejudice, or any other arbitrary factor. Consequently,
the conviction and the sentence of death is
AFFIRMED.
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