United States v. Tipton

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-4005
RICHARD TIPTON, a/k/a Whittey,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 93-4006
CORY JOHNSON, a/k/a "O", a/k/a
"CO",
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-4007
JAMES H. ROANE, JR., a/k/a J.R.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
RICHARD TIPTON, a/k/a Whittey;
No. 93-4009
CORY JOHNSON, a/k/a "O", a/k/a
"CO"; JAMES H. ROANE, JR., a/k/a
J.R.,
Defendants-Appellees.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-4010
RICHARD TIPTON, a/k/a Whittey,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-92-68-R)
Argued: December 7, 1994
Decided: July 8, 1996
Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated and remanded in part by published opinion.
Senior Judge Phillips wrote the opinion, in which Chief Judge Wil-
kinson and Judge Ervin joined.
_________________________________________________________________
2
COUNSEL
ARGUED: Scott Lawrence Nelson, MILLER, CASSIDY, LAR-
ROCA & LEWIN, Washington, D.C., for Appellant Roane; Eric
David White, MORCHOWER, LUXTON & WHALEY, Richmond,
Virginia, for Appellant Tipton; Craig Stover Cooley, Richmond, Vir-
ginia, for Appellant Johnson. Robert John Erickson, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Paul F. Enzinna, MILLER, CASSIDY, LAR-
ROCA & LEWIN, Washington, D.C.; David Baugh, Richmond, Vir-
ginia, for Appellant Roane; Robert P. Geary, Richmond, Virginia, for
Appellant Tipton; John F. McGarvey, Richmond, Virginia, for Appel-
lant Johnson. Helen F. Fahey, United States Attorney, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
Richard Tipton, Cory Johnson, and James Roane were tried to a
jury on a 33-count indictment charging each with a number of federal
crimes, including capital murder, growing out of their concerted drug-
trafficking activities, principally in Richmond, Virginia during a
several-year period.1 Each was convicted on multiple charges, includ-
_________________________________________________________________
1 All were jointly charged with conspiracy to possess with intent to dis-
tribute and to distribute in excess of 50 grams of cocaine base, in viola-
tion of 21 U.S.C. § 846 (Supp. 1996) (Count 1), and with engaging in a
continuing criminal enterprise in violation of 21 U.S.C. § 848(a) (Supp.
1996) (Count 2). In addition, they were variously charged with capital
murders in furtherance of a criminal enterprise, in violation of 21 U.S.C.
§ 848(e) and 18 U.S.C. § 2 (1988) (Counts 3, 5, 8, 17, 18, 19, 24 and 25);
commission of violent crimes in aid of racketeering activity, in violation
of 18 U.S.C. § 1959 (Supp. 1996) (Counts, 4, 7, 10, 13, 14, 16, 21-23,
and 27-30); use of a firearm in relation to a crime of violence or a drug-
trafficking offense, in violation of 18 U.S.C. § 924(c) (Supp. 1996)
(Counts 6, 9, 12, 15, 20, and 26); and distribution (Count 31) and posses-
sion with intent to distribute (Counts 32-33) of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (1988).
3
ing capital murder; each was sentenced to death on one or more of the
capital murder charges on which he was convicted and to various
terms of imprisonment on other charges. Each has appealed challeng-
ing his conviction on various of the charges against him and the sen-
tence(s) of death imposed upon him. Save for the necessity imposed
by double jeopardy concerns to vacate their several convictions for
drug conspiracy violations under 21 U.S.C. § 846, we find no error
requiring reversal or remand among those assigned by appellants and
we therefore affirm their respective convictions and sentences in all
other respects.
The Government has cross-appealed the district court's order stay-
ing execution of the death sentences pending Congressional authori-
zation of the means of execution. We vacate that order and remand
for entry of appropriate orders.
I.
Recounted in summary form and in the light most favorable to the
Government, the core evidence revealed the following. Tipton,
Roane, and Cory Johnson were principal "partners" in a substantial
drug-trafficking conspiracy that lasted from 1989 through July of
1992. The conspiracy's operations began in Trenton, New Jersey
where Johnson and Tipton, both from New York City, became mem-
bers. In August of 1990, the conspiracy expanded its operations to
Richmond, Virginia where Roane joined the conspiracy in November
of 1991. The Trenton-based operation came to an end on June 4, 1991
when police confiscated a large quantity of crack cocaine and fire-
arms. In late 1991, the conspiracy's operations were expanded from
the Central Gardens area of Richmond to a second area in Richmond
called Newtowne.
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Also charged in this indictment were alleged co-conspirators Vernon
Lance Thomas, Jerry Gaiters, Sterling Hardy, and Sandra Reavis. Gaiters
and Hardy pled guilty and testified for the Government at appellants'
trial. Reavis, who was tried with appellants, and Thomas, who was tried
separately, both were convicted on various charges.
4
During the period of the conspiracy's operation, its"partners",
including appellants, obtained wholesale quantities of powdered
cocaine from suppliers in New York City, converted it by "cooking"
into crack cocaine, then packaged it, divided it among themselves,
and distributed it through a network of 30-40 street level dealers,
"workers." Typically, the appellants and their other partners in the
conspiracy's operations took two-thirds of the proceeds realized from
street-level sales of their product.
Over a short span of time in early 1992, Tipton, Cory Johnson, and
Roane were variously implicated in the murders of ten persons within
the Richmond area--all in relation to their drug-trafficking operation
and either because their victims were suspected of treachery or other
misfeasance, or because they were competitors in the drug trade, or
because they had personally offended one of the"partners."
On January 4, 1992, Tipton and Roane drove Douglas Talley, an
underling in disfavor for mishandling a drug transaction, to the south
side of Richmond. Once there, Roane grabbed Talley from the rear
while Tipton stabbed him repeatedly. The attack lasted three to five
minutes and involved the infliction of eighty-four stab wounds to Tal-
ley's head, neck, and upper body that killed him.
On the evening of January 13, 1992, Tipton and Roane went to the
apartment of Douglas Moody, a suspected rival in their drug-
trafficking area, where Tipton shot Moody twice in the back. After
Moody fled by jumping through a window, both Tipton and Roane
pursued. Roane, armed with a military-style knife retrieved from an
apartment where the knife was kept for co-conspirator Curtis Thorne,
caught up with Moody in the front yard of the apartment where he
stabbed him eighteen times, killing him.
On the night of January 14, 1992, Roane, Cory Johnson, and a third
person retrieved a bag of guns that they had left at an apartment ear-
lier that day. Roane then located Peyton Johnson, another rival drug
dealer, at a tavern. Shortly after Roane left the tavern, Cory Johnson
entered with another person and fatally shot Peyton Johnson with a
semi-automatic weapon.
On January 29, 1992, Roane pulled his car around the corner of an
alley, got out of the vehicle, approached Louis Johnson, whom appel-
5
lant Johnson thought had threatened him while acting as bodyguard
for a rival dealer, and shot him. Cory Johnson and co-conspirator
Lance Thomas then got out of Roane's car and began firing at Louis
Johnson. As Louis Johnson lay on the ground, either Cory Johnson
or Thomas shot him twice at close range. Louis Johnson died from
some or all of these gunshot wounds.
On the evening of February 1, 1992, Cory Johnson and Lance
Thomas were told that Roane had gone to the apartment of Torrick
Brown, with whom Roane had been having trouble. Johnson and
Thomas armed themselves with semi-automatic weapons and went to
the apartment where they joined appellant Roane outside. The three
then knocked on Brown's door and asked his half-sister, Martha
McCoy, if Brown was there. She summoned Brown to the door and
Cory Johnson, Roane, and Thomas opened fire with semi-automatic
weapons, killing Brown and critically wounding McCoy.
In late January, 1992, after being threatened by Cory Johnson for
not paying for a supply of crack cocaine, Dorothy Armstrong went to
live with her brother, Bobby Long. On February 1, Cory Johnson
learned from Jerry Gaiters the location of Long's house. Thereafter,
Tipton and an unidentified "young fellow" picked up Gaiters and
Cory Johnson who were then driven by Tipton to a house where the
group obtained a bag of guns. After dropping off the unidentified
third party, the group proceeded to Long's house. Upon arriving at
Long's house, Cory Johnson and Gaiters got out of the car and
approached the house. While Tipton waited in the car, Cory Johnson
and Gaiters went to the front door. When Long opened the door, Cory
Johnson opened fire, killing both Dorothy Armstrong and one
Anthony Carter. Bobby Long fled out the front door, but was fatally
shot by Cory Johnson in the front yard.
In early February 1992, Cory Johnson began to suspect that Lin-
wood Chiles was cooperating with the police. On February 19, 1992,
Johnson borrowed Valerie Butler's automobile and arranged to meet
with Chiles. That night, Chiles, Curtis Thorne, and sisters Priscilla
and Gwen Greene met Cory Johnson and drove off together in Chil-
es's station wagon. Chiles parked the car in an alley, and Tipton soon
drove in behind it in another car, got out, and came up alongside the
stationwagon. With Tipton standing by, Cory Johnson told Chiles to
6
place his head on the steering wheel and then shot Chiles twice at
close range. Additional shots were fired, killing Thorne and critically
wounding both of the Greene sisters. The autopsy report indicated
that Thorne had been hit by bullets fired from two different directions.
Tipton was charged under 21 U.S.C. § 848(e) and 18 U.S.C. § 2
with capital murder for eight of these killings (Talley, Moody, Louis
Johnson, Long, Carter, Armstrong, Thorne, and Chiles); Cory John-
son, with seven (Louis Johnson, Long, Carter, Armstrong, Thorne,
Chiles, and Peyton Johnson); and Roane, with three, (Moody, Louis
Johnson, and Peyton Johnson).
The jury convicted Tipton of six of the eight capital murders with
which he was charged under § 848(e) (Talley, Armstrong, Long, Car-
ter, Chiles, and Thorne). One of the other two § 848(e) charges was
dismissed (Louis Johnson) and the other resulted in acquittal
(Moody). Tipton was also convicted of conspiracy to possess cocaine
base with the intent to distribute (21 U.S.C. § 846), engaging in a
CCE (21 U.S.C. § 848(a)), eight counts of committing acts of vio-
lence (the eight killings charged under § 848(e)) in the aid of racke-
teering activity (18 U.S.C. § 1959), two counts of using a firearm in
relation to a crime of violence or a drug-trafficking crime (18 U.S.C.
§ 924(c)), and two counts of possessing cocaine base with intent to
distribute (21 U.S.C. § 841(a)(1)).
The jury convicted Cory Johnson of all seven of the capital mur-
ders with which he was charged under § 848(e) (Louis Johnson,
Long, Carter, Armstrong, Thorne, Chiles, and Peyton Johnson). He
was also convicted of conspiracy to possess cocaine base with the
intent to distribute (21 U.S.C. § 846), engaging in a CCE (21 U.S.C.
§ 848(a)), eleven counts of committing acts of violence (including the
seven killings charged under § 848(e)) in aid of racketeering activity
(18 U.S.C. § 1959), five counts of using a firearm in relation to a
crime of violence or drug-trafficking offense (18 U.S.C. § 924(c)),
and two counts of possession of cocaine base with the intent to dis-
tribute (21 U.S.C. § 841(a)(1)).
The jury convicted Roane of all three of the capital murders with
which he was charged under § 848(e) (Moody, Peyton Johnson, and
Louis Johnson.) He was also convicted of conspiracy to possess
7
cocaine base with the intent to distribute (21 U.S.C. § 846), engaging
in a CCE (21 U.S.C. § 848(a)), five counts of committing acts of vio-
lence (including the three killings charged under§ 848(e)) in aid of
racketeering activity (18 U.S.C. § 1959), four counts of using a fire-
arm in relation to a crime of violence or a drug-trafficking offense (18
U.S.C. § 924(c)), and one count of possession of cocaine base with
the intent to distribute (21 U.S.C. § 841(a)(1)).
Following a penalty hearing on the capital murder counts, the jury
recommended that Cory Johnson be sentenced to death on all of the
seven § 848(e) murders of which he had been convicted; that Tipton
be sentenced to death for three of the six § 848(e) murders of which
he was convicted (Talley, Chiles, and Thorne); and that Roane be sen-
tenced to death for one of the three of which he was convicted
(Moody). The district court sentenced Johnson, Tipton, and Roane to
death in accordance with the jury's recommendations pursuant to 21
U.S.C. § 848(l), and imposed various sentences of imprisonment upon
each of the appellants for the several non-capital counts on which
they were convicted and for those capital murder counts on which
Tipton and Roane had been convicted but were not given death sen-
tences.
On appellants' motion, the district court refused to order execution
of the several death sentences on the grounds that Congress had nei-
ther directly authorized the means by which the death sentences
imposed under § 848 should be carried out, nor properly delegated to
the Attorney General the authority to issue the implementing regula-
tions that were invoked by the Government. In consequence, the dis-
trict court stayed execution of the death sentences it had imposed until
such time as Congress had authorized the means of execution.
These appeals by Tipton, Roane, and Johnson and a cross-appeal
by the Government from the district court's stays of execution of the
death sentences followed.
Appellants present some sixty issues for our review. Most are pres-
ented as issues common to all; some only in behalf of particular
appellants.2 They pertain to the jury selection process, to the trial
_________________________________________________________________
2 We ordered that all common issues in these consolidated appeals be
presented and argued in one brief. Appellant Roane's brief served this
8
proper, and to the death penalty hearing and sentencing phases. Some
warrant extended discussion; others, for various reasons, warrant no
more than recognition or summary discussion. We will take first the
issues jointly and separately presented by the appellants. Lastly, we
will consider the Government's cross-appeal.
II.
We first consider a number of joint challenges by all the appellants
to various aspects of the jury-selection process.
A.
The principal challenge is to the district court's having conducted
portions of the jury voir dire out of the immediate presence of the
appellants. Appellants jointly contend that this violated their constitu-
tional right under the Fifth Amendment and their parallel statutory
right under Rule 43, Fed. R. Crim. P., to be personally present
throughout the voir dire process. The Government contends in opposi-
tion (1) that appellants effectively waived any constitutional or statu-
tory right they possessed to be personally present throughout the
process, or (2) that if the right was not effectively waived, any ensu-
ing error was forfeited by the appellants' failure to object either con-
temporaneously or by post-verdict motions, so that it is only
reviewable for plain error under Rule 52(b), Fed. R. Crim. P., and that
under that Rule's standard this forfeited error does not warrant appel-
late correction.
_________________________________________________________________
function, presenting potentially common issues along with issues specific
only to his appeal. Appellants Tipton and Cory Johnson filed separate
briefs presenting some issues specific to their respective appeals and
identifying those issues raised in Roane's brief which they adopted as
common issues. Their identifications of common issues are not always
as precise as might be, see Tipton Br. 11, 12; Johnson Br. 27-30, and
some issues identified as "common" may be questionable as such either
conceptually or as adequately preserved for review by all the appellants.
We have assumed an intention to adopt wherever the intention was not
clear, and have treated all adopted as common so far as was conceptually
possible.
9
To address these issues of waiver, forfeiture, and plain error
review, a fairly detailed account of the relevant proceedings is
required. The issues arose as a result of the district court's decision
to handle the jury selection process in a series of discrete steps
designed to accommodate what the district court obviously saw as
special difficulties posed by the size of the venire--250 prospective
jurors--and by the capital murder counts. Initially, as a matter of con-
venience for the prospective jurors, they would be examined in two
separate, roughly equal groups, with the second group not required to
report until the first group had been preliminarily screened. Prelimi-
nary screening of the two groups was intended to yield a group of
around 70 prospective jurors who had not been found excusable for
various individual reasons or not subject to challenges for cause.
From that preliminarily qualified set of venirepersons, the petit jury
and alternates would then be chosen by lottery and the exercise of
peremptory challenges.
The preliminary screening process of the two groups was to be car-
ried out in what developed as three distinct steps. In the first step,
general questions would be addressed by the court to the whole group
of prospective jurors concerning such generally non-sensitive sources
of possible disqualifying bias as knowledge of the case or of the par-
ties, witnesses, or counsel. This would be done in open court, with the
various defendants all present with their counsel. If in response to
specific questions from the court prospective jurors indicated by
standing that a question posed a possible problem they would be cal-
led individually to the bench where, with counsel present, they would
be further questioned on the matter by the court. In this step of the
process, challenges for cause would be ruled upon or granted sua
sponte, yielding a reduced set of prospective jurors. That set would
then be further screened in a final step designed in particular to
explore the sensitive subjects of death-penalty attitudes and possible
racial prejudices. This step would be conducted by the judge in cham-
bers with only counsel and individual prospective-jurors present with
him. Further challenges for cause would be ruled upon or granted sua
sponte during this final step in the screening process, which would
yield the final pool of prospective jurors from which the jury would
be selected.
Jury voir dire proceeded essentially in accordance with this plan.
The fact that at two of its proposed steps the process apparently would
10
be conducted out of the immediate presence of the defendants was
not, so far as the record shows, raised in advance as a possible prob-
lem by the court or any counsel in the case. That there might be a
problem was first suggested only after twelve prospective jurors from
the first group had been individually questioned by the court at the
bench following their indications of problems in response to the first
general question put to the group. At that point, counsel for one of the
appellants remarked simply, "I would remind [the court] that under
Rogers v. United States, [853 F.2d 249 (4th Cir. 1988)], our clients
must waive presence." JA 885. In immediate response, the judge
asked, "Does everybody waive presence of their clients?" Id. To this,
defense counsel who had first raised the issue remarked, "We better
take one second to be sure. This is a capital case." Id. The record then
indicates that following a conference of unspecified duration between
counsel and their respective client-defendants, counsel for each of the
appellants in turn stated to the court that his client, by name, waived.
Id. The process then resumed according to plan with further question-
ing at the bench of those prospective jurors whose responses to gen-
eral questions required further inquiry. During that phase of the
process, a significant number of prospective jurors were excused for
cause, either in response to challenges by counsel or by the court sua
sponte.
When this step had been completed and just as in-chambers indi-
vidual questioning of the remaining unexcused members of the group
was about to commence, the courtroom clerk inquired, apparently of
defense counsel, "if the defendants can go back to the lock-up or do
you want them in the courtroom . . . to be available to talk to them
if you want?" Roane's counsel responded, "Just send them back.
. . . ," and Johnson's counsel added,"They have waived." Though
the record is not clear on the point, it would appear that the defen-
dants were not actually taken from the courtroom at that time, but
only later after the in-chambers process had been underway for some
time. See JA 1101.
During that in-chambers process, the district court concentrated in
its questioning, as had been indicated to counsel, on death-penalty
attitudes and possible racial or other bias, and routinely allowed Gov-
ernment and defense counsel to pursue limited further examination on
those subjects. As a result of that examination, a number of prospec-
11
tive jurors were excused either upon challenge by counsel or by the
judge sua sponte because of intimations either of disqualifying death-
penalty attitudes (running both ways) or possible racial biases.
Although the second group of prospective jurors was brought in
and briefly examined in a general voir dire before in-chambers exami-
nation of members of the first group had been completed, a sufficient
pool of prospective jurors was obtained from the first group to allow
the jury to be selected entirely from that pool. This was done, as
planned, by the exercise of peremptory challenges to persons succes-
sively called to the jury box by lottery. This final step in the process
was carried out in open court, with all appellants present and able to
consult with counsel. A total of 52 peremptory challenges were allot-
ted to the then four defendants for exercise with respect to the regular
jurors and an additional two with respect to four alternates.
The upshot, for purposes of the denial-of-presence issue, is that
appellants were personally and immediately present during some but
not all portions of the overall voir dire process as it involved those
prospective jurors from whom the regular and alternate jurors ulti-
mately were selected. Specifically, they were personally and immedi-
ately present while the district court was addressing to the whole
group general questions respecting possible sources of bias from rela-
tionships or knowledge of the case, and during the final jury selection
process involving the exercise of peremptory challenges. They were
not immediately present, though in the courtroom, during any of the
judge's examination of prospective jurors at the bench in the presence
of their counsel. And they were not present during any of the in-
chambers examination of individual prospective jurors.
The Confrontation Clause of the Sixth Amendment and the Due
Process Clause of the Fifth Amendment together guarantee the right
of federal defendants charged with felonies to be present at all critical
stages of their trials. Illinois v. Allen, 397 U.S. 337, 338 (1969) (Sixth
Amendment); Snyder v. Massachusetts, 291 U.S. 97, 106-08 (1933)
(Fifth Amendment). Rule 43(a), Fed. R. Crim. P., deriving from these
constitutional guarantees and the even broader common law privilege,
see United States v. Gregorio, 497 F.2d 1253, 1257-59 (4th Cir.
1974), confers a comparable right to "be present . . . at every stage
of the trial." Included is the right to be present at the voir dire and
12
"impaneling of jurors." Snyder, 291 U.S. at 106 (dictum); Rule 43(a)
(as quoted).
The Government does not contend that the appellants' constitu-
tional and rule-based right did not extend to the specific portions of
the voir dire from which they were absent. Instead, as indicated, the
Government contends only that any such right as existed was effec-
tively waived by defense counsels' several in-court announcements of
waiver following consultations with their respective clients or that, if
it was not waived, any ensuing error, having been forfeited, does not
warrant appellate correction as "plain error" under Fed. R. Crim. P.
52(b). Responding to the Government's claim of waiver, appellants
jointly have raised two difficult issues: first, whether under Fourth
Circuit precedent the right of presence may ever and by any means
be waived in capital cases;3 second, whether--if waiver is possible in
_________________________________________________________________
3 The difficulty on this issue is created by this circuit's 1963 decision
in Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963), a capital case in
which it was held that the right to presence in such a case is "[s]o funda-
mental . . . that it may not be waived." Id. at 931 (principally relying on
Hopt v. Utah, 110 U.S. 574, 578 (1884)). Near (which was not brought
to the district court's attention) has never been expressly overruled on
this point either by this court or by the Supreme Court. Whether it has
been implicitly overruled is unsettled. At least one circuit has flatly held
that intervening Supreme Court decisions have established that waiver is
possible in such cases. See Campbell v. Wood, 18 F.3d 662, 671-72 (9th
Cir. 1994) (concluding that Snyder, 291 U.S. at 106, 117, and Allen, 397
U.S. at 342, by rejecting as "mere dicta" earlier statements of non-
waivability in, e.g., Hopt and Lewis v. United States, 146 U.S. 370
(1892), have rejected any such rule). A leading commentator also
believes it "highly doubtful" in light of these decisions that "there is
[now] such a limitation on waiver." 3A Charles A. Wright, Federal
Practice & Procedure § 723, at 18 (2d ed. 1982). On the other hand,
another circuit is not that sure on the point. See Proffit v. Wainwright,
706 F.2d 311, 312 (11th Cir. 1983) (on rehearing) (noting that earlier
non-waivability holdings of the Supreme Court have not been expressly
overruled, and reserving decision on the issue). And, expressing similar
uncertainty, the drafters of amended Rule 43 consider that so far as the
rule is concerned, the question of waiver in capital cases remains open
"for further clarification by the courts." Fed. R. Crim. P. 43 advisory
committee's note to 1974 amendment.
13
such cases--it may only be effected by a formal in-court proceeding
not provided in this case.4
Because we conclude that even if for either reason no effective
waiver occurred here, any ensuing error, having been procedurally
forfeited, does not warrant correction as plain error, we reserve deci-
sion on the difficult waiver issues and proceed to the discussion of the
plain error basis for our decision.
United States v. Olano, 507 U.S. 725 (1993), guides us here, both
as to the relationship between waiver of rights and forfeiture of errors
at trial, and as to the proper application of Rule 52(b)'s "plain error"
limitation on appellate correction (noticing) of forfeited errors.
Where a protected trial right has been effectively waived by a
defendant, as the Government claims occurred here, all possibility of
error respecting that right has been extinguished. Id. at 733. But even
where a right has not been waived, any entitlement to have error in
its denial or abridgement corrected on appellate review may be for-
feited by the "failure to make timely assertion of [the] right" at trial.
_________________________________________________________________
4 The difficulty of this issue involves uncertainty as to how, if waiver
is at all possible in capital cases, it may be effected. It is now settled that
without any formal proceeding, waiver of the right to presence may be
implied from a defendant's sufficiently disruptive conduct during trial,
see Allen, 397 U.S. at 342 (removal by court permissible); or from his
voluntarily absenting himself from a trial at whose commencement he
was present, see Taylor v. United States, 414 U.S. 17 (1973) (per
curiam), or from a stage of trial of whose nature he was aware, see
United States v. Gagnon, 470 U.S. 522 (1985) (per curiam). But, the
question whether non-disruptive defendants in custody such as appellants
here may waive the right to presence by any means other than an express
waiver following a formal on-the-record proceeding arguably remains
open. Appellants, relying on Johnson v. Zerbst , 304 U.S. 458, 464 (1938)
(proceeding required to insure "intentional relinquishment or abandon-
ment of a known right"), contend that a formal in-court proceeding is
required in such circumstances and was not provided here; the Govern-
ment, that waiver may and should be implied here, as in Taylor and
Gagnon, from a defendant's voluntary conduct, including his presumed
acquiescence through failure to object contemporaneously to the conduct
of proceedings in his absence.
14
Id. Such a forfeiture, does not, as does waiver, extinguish the error,
id., but it does impose stringent limitations, embodied in Rule 52(b),
on the power of appellate courts to correct the error. Olano has now
instructed, clarifying the matter, that under Rule 52(b) a court of
appeals "has authority" to correct forfeited error only if it is "plain"
and "affects substantial rights," and even then is "not required to do
so" unless the error is one that "causes the conviction or sentencing
of an actually innocent defendant" or otherwise"seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings." Id.
at 734-36.
Here, where we have assumed for purposes of this case that there
was not an effective waiver of the right at issue, there indisputably
was, however, a forfeiture of entitlement to appellate correction of
any ensuing error in denying or abridging the right. Not only was
there no contemporaneous or post-verdict challenge to conducting
portions of the jury voir dire outside the immediate presence of the
appellants, counsel for each appellant specifically invited the proce-
dure.
Proceeding then to the Olano analysis respecting forfeited error, we
further assume, without deciding, that error did occur in the form of
a "deviation" from the constitutionally-grounded legal rule that pres-
ence was required throughout the proceedings at issue.5 See id. at 732-
33. And, we also assume--as the Government seems to concede--
that any such error as occurred was "plain," in the sense that it is clear
on the record that the challenged proceedings were held outside the
immediate presence of appellants.
This brings us to the question whether the "plain error," whose
occurrence we assume arguendo, affected any"substantial rights" of
the appellants. Olano has now instructed that this may ordinarily (and
_________________________________________________________________
5 As indicated in earlier text, the Government relies only on its alterna-
tive claims of waiver and forfeiture, and has not contended that the gen-
eral right of presence during jury voir dire does not necessarily extend
to immediate physical presence during all its phases, and did not extend
under the circumstances of this case to the specific phases here in issue.
Because no such contention is advanced, we do not address it, and pro-
ceed on the stated assumption for purposes of this case.
15
perhaps only) be established by a defendant's specific showing--the
burden being upon him--that the error caused him actual prejudice by
affecting the trial outcome. Id. at 734. But Olano also noted--without
deciding--that aside from this most obvious means, there might be
forms of forfeited error that, for Rule 52(b) purposes, "affect substan-
tial rights independent of any prejudicial impact," and still other
forms from which prejudice should be presumed where the defendant
could not make a specific showing. Id. at 734-35.
As did the Olano Court, we must address all three possibilities,
assuming arguendo the existence of the latter two forms of correctible
forfeited errors as to which actual prejudice either need not or cannot
be proved. See id. at 737-41.
We first consider whether the assumed error here--conducting
some phases of the jury voir dire out of the appellants' immediate
presence--is one which could be found to "affect substantial rights
independent of any prejudicial impact." We can reserve, as did the
Olano court, the question whether any such category of forfeited plain
error does in fact exist. If it does, it seemingly could only involve vio-
lations of absolute rights entitled for overarching systemic reasons to
absolute enforcement without regard to any demonstrable (or pre-
sumed) prejudicial impact on the defendant. See Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991) (defining category of con-
stitutional errors that may not be found harmless because, without
regard to actual prejudice, they deprive defendants of "basic protec-
tions" of fundamentally fair trial). The constitutional and Rule-based
right to presence at all critical stages of trial, though obviously impor-
tant, is not such an absolute, systemic right. That it is not absolute is
of course settled by those Supreme Court decisions, most notably
Snyder and Allen, upholding the power of courts in certain circum-
stances to conduct trials (or portions) in absentia. See also Rushen v.
Spain, 464 U.S. 114, 117-18 (1983) (per curiam) (though right to per-
sonal presence is "fundamental," errors in conducting proceedings out
of presence of defendant may be found harmless). To the extent the
right is based, as is that claimed here, upon the Due Process Clause
(and Rule 43's codification), it exists only"to the extent that a fair
and just hearing would be thwarted by [the defendant's] absence," or,
put otherwise, it is limited to "those circumstances where a defen-
dant's presence has a relation, reasonably substantial, to the fullness
16
of his opportunity to defend himself." Snyder , 291 U.S. at 105-08.
The right is thus by definition limited to those circumstances in which
absence has a "prejudicial impact" on a defendant's opportunity effec-
tively to assist in his defense. The courts accordingly have so inter-
preted it, not as one to be enforced "independent of any prejudicial
impact" from a defendant's absence but as one actually dependent
upon the existence of such an impact. See, e.g., United States v.
Boone, 759 F.2d 345 (4th Cir. 1985) (absence from in-chambers con-
ference between judge and counsel respecting dismissal of juror did
not, under the circumstances, frustrate trial's fairness); United States
v. Fontenot, 14 F.3d 1364 (9th Cir. 1994) (absence from peremptory
challenge conference between judge and counsel not, under the cir-
cumstances, prejudicial); cf. Olano, 507 U.S. 738-39 (comparable
analysis employed in finding violation of Criminal Rule 24(c) not an
"error affecting substantial rights independent of any prejudicial
impact").
Accordingly, we conclude that if there be a category of plain errors
affecting substantial rights "independent of any prejudicial impact,"
absence from portions of a jury voir dire is not among them.
We next consider whether, assuming there is a category of plain
errors as to which prejudice should be presumed, the assumed error
here falls in that category. We conclude that it does not.
There may be circumstances of involuntary absence from jury voir
dire where prejudice should be presumed, but we think they could
only involve absences throughout the entire process. See United
States v. Crutcher, 405 F.2d 239, 244 (2d Cir. 1968) (complete
absence never harmless error). Such an absence almost assuredly
deprives a defendant of any effective means of giving informed
advice or suggestions to his counsel respecting the ultimate decisions
to challenge prospective jurors for cause or peremptorily. But not
every absence of whatever nature and duration and during whatever
phase of the voir dire necessarily has that effect. Some phases obvi-
ously are more critical than others. The potential prejudice from some
absences may be relieved by other circumstances. It all depends.
Where absence has not been total but only intermittent during the pro-
cess the courts accordingly have not presumed prejudice but have
analyzed the circumstances to determine whether prejudice has been
17
specifically established. See, e.g., United States v. Bascaro, 742 F.2d
1335, 1349-50 (11th Cir. 1984) (although peremptory strike phase of
voir dire is critical, no prejudice to defendants where attorneys con-
ferred about peremptories outside their presence, but defendants were
present both while questioning took place and when strikes actually
entered); United States v. Allessandrello, 637 F.2d 131, 137-141 (3d
Cir. 1980) (absence of defendants from in-chambers questioning of
venirepersons respecting pre-trial publicity not prejudicial in view of
their presence at substantial part of voir dire and their counsels' pres-
ence during in-chambers proceedings).
The absences here plainly were of the intermittent sort, not
approaching the total denial of any effective participation in critical
phases of the voir dire that might warrant a presumption of prejudice.6
Accordingly if prejudice is to be found here, it must be by specific
showing. Cf. Olano, 507 U.S. at 740-41 (comparable analysis
employed to hold no presumption of prejudice from violation of
Criminal Rule 24(c)).
Relegated to this means of showing error that "affected substantial
rights," appellants' burden is to persuade us of actual prejudice, i.e.,
that their absences "affected the outcome of the[trial]," or "probably
influenced the verdict[s]" against them either on the guilt or sentenc-
ing phases. Olano, 507 U.S. at 734-35. We conclude that they have
not carried that heavy burden.
Just how one shows that his absence during portions of a jury
selection process actually "affected the outcome of [trial]," or "proba-
bly influenced the verdict" against him has apparently never been
definitively explored. Literally applied, the standard would seem to
require a showing in the end that a defendant's absence resulted in
selection of a jury that probably reached a verdict different from that
which would have been reached by a jury selected with benefit of his
_________________________________________________________________
6 In their jointly adopted argument on the denial-of-presence issue,
appellants suggest that this case does involve a "complete exclusion of
[the appellants] from the entirety of the voir dire," so that prejudice
should be presumed. Roane Br. 29, 30. As we have pointed out, the
record flatly belies this as an accurate statement of the extent of appel-
lants' physical absences from the voir dire process.
18
presence at the times of his absence. If that be the ultimate burden,
it is a stringent one indeed--near if not beyond the limits of practical
possibility given the variables in the process and evidentiary restric-
tions. See Fed. R. Evid. 606(b). If we start analysis from the other
end, it is obvious that at a very minimum a defendant must show that
had he been present a somehow different jury would have been
selected. The due process-based right to presence is not violated,
hence could not be the source of prejudice, unless one's presence
demonstrably would have made some difference. See Snyder, 291
U.S. at 106, 107 (no violation, hence no prejudice possible, "when
presence would be useless, or the benefit but a shadow"). But, just as
surely, showing only that some difference would have resulted could
not suffice to show actual prejudice. If no more is shown, for exam-
ple, than that jurors 1, 3, and 5 would have been excluded, this could
not suffice to show that their presence caused the finally unfavorable
"outcome." Something more, for example, that jurors 1, 3, and 5 in
the above hypothetical were demonstrably biased, surely must be
shown, and even that might not, under all the circumstances, suffice.
Fortunately, we need not in this case seek to decide just what
showing between these extremes is required. Appellants, relying pri-
marily on their argument of presumed prejudice, offer nothing on
actual prejudice beyond the conclusory assertion that "[e]ven if defen-
dants were required to demonstrate prejudice, that prejudice was
patent in this case." Roane Br. 30. This obviously could not suffice
to show specific prejudice.7
_________________________________________________________________
7 Appellants' brief seeks to offer more specific support for this conclu-
sive assertion by referring to an affidavit of Appellant Roane appended
to their motion for supplementation of the record or remand. See supra
note 6. Although in denying that motion we refused to treat the affidavit
as properly before us, we observe that it asserted no more than that had
Roane been present, he would have insisted on excluding three identified
jurors by peremptory challenges. As indicated in text, even if this were
accepted as fact, it would not suffice as a showing of actual prejudice.
Nor would the stated bases for his challenges--relationships to law
enforcement officers and to the victim of a rape-murder--suffice without
more to tip the balance.
19
Accordingly, we conclude that appellants have not carried their
burden to show actual prejudice resulting from their absences during
portions of the jury voir dire.
Having earlier held that their absences could not constitute error
"affecting substantial rights independent of prejudicial impact," nor
"presumed error affecting substantial rights," we need not consider
whether, even if prejudicial, the assumed error so"seriously affect[ed]
the fairness, integrity or public reputation of judicial proceedings"
that correction was warranted. Olano, 507 U.S. at 741. Because
appellants have not shown that their absence from portions of the jury
voir dire "affected substantial rights," we conclude that any error
involved, having been forfeited, does not warrant correction.
B.
We next consider appellants' claim that the district court erred in
refusing to permit defense counsel to conduct adequate voir dire and
in failing itself to conduct adequate voir dire regarding possible racial
bias and attitudes respecting aggravating and mitigating factors if the
capital sentencing phase were reached.
1.
Appellants moved pre-trial, with supporting affidavits, that defense
counsel be permitted detailed participation in jury voir dire question-
ing on possible racial biases, pointing to the fact that each of the
appellants was black and to the pervasiveness in society of racial prej-
udice. The court denied the motion but invited defense counsel to sub-
mit proposed questions pursuant to Fed. R. Crim. P. 24(a). Counsel
submitted 62 such questions on such matters as beliefs in the trust-
worthiness and criminal propensities of black persons, whether the
prospective jurors lived in racially separated neighborhoods or
attended racially separated churches, and the like. The district court
declined to incorporate these questions in its own in-chambers ques-
tioning of individual prospective jurors, and put only a single question
respecting their possible racial bias: "Do you harbor any bias or preju-
dice, racial or otherwise, that would prevent you from being fair to
the defendants in this case?" See, e.g., JA 1009. The court then per-
20
mitted limited follow-up inquiry by counsel depending upon
responses made to his general question. JA 1061.
Appellants contend that this was insufficient to provide reasonable
assurance that if bias did exist, it would be uncovered, as they say was
their right. And, they argue that in this case its insufficiency was
exacerbated by the fact that the district judge was himself a black per-
son, thereby making the concealment of racial bias more than ordinar-
ily a risk.
We disagree and find no error in the district court's decision (1) not
to allow detailed questioning of the type proposed by appellants,
whether done by himself or defense counsel; and (2) to limit the ques-
tioning on this subject to the general question he put.
No question is raised of entitlement to some inquiry into possible
racial bias--whether under the Constitution, see Ristaino v. Ross, 424
U.S. 589, 597 (1976) (constitutionally compelled where racial issues
"inextricably bound up with the conduct of the trial") or under the
Supreme Court's broader supervisory rule for federal courts, see
United States v. Rosales-Lopez, 451 U.S. 182, 191 (1981) (compelled
where "circumstances . . . indicate . . . reasonable possibility that
racial . . . prejudice might have influenced the jury"). Inquiry was
made here; the challenge is only to its confinement to the single ques-
tion put by the trial judge, with opportunity only for limited follow-
up questioning by counsel.
Once the decision has been made to conduct any inquiry into this
sensitive matter, the exact nature and scope of that inquiry is commit-
ted to the broad discretion of the district court, and is subject to
review only for abuse. Rosales-Lopez, 451 U.S. at 189; Ham, 409
U.S. at 527; see also Fed. R. Crim. P. 24(a) (discretion extends to
party participation in voir dire). Powerful conflicting considerations
inform that discretion. On the one hand, there must be the concern to
root out a form of bias that prospective jurors may be particularly
reluctant to reveal. See, e.g., United States v. Lewin, 467 F.2d 1132,
1137 (7th Cir. 1972). On the other hand, there has to be an equally
weighty concern where race is not directly in issue not to overempha-
size in jurors' minds the facts and possible relevance of the racial
identities of litigants or witnesses. See Ristaino, 424 U.S. at 596 n.8
21
(danger of creating impression that justice in the courts turns on race
or ethnicity); United States v. Barber, 80 F.3d 964, 967, 968 (4th Cir.
1996) (en banc) (danger of "divert[ing] the trial's focus from the guilt
or innocence of the defendant to peripheral factors, such as the defen-
dant's race . . .").
Undoubtedly taking these considerations into account, the Supreme
Court has indicated that even where inquiry is constitutionally
required because of inextricably involved racial issues, questioning
may properly be confined to the sort of single, general question put
to jurors here. Ham, 409 U.S. at 525 n.2, 527 (question "Would you
fairly try this case on the basis of the evidence and disregarding the
defendant's race," held "sufficient to focus the attention of prospec-
tive jurors on any racial prejudice they might entertain").
In this case, given the critical circumstances that race was not itself
an issue and that none of the offenses charged was interracial in
nature, we cannot find abuse of discretion in the district court's deci-
sion to confine questioning on racial bias to the general question the
court put with opportunity provided for follow-up questioning by
counsel.8
2.
Appellants tendered a set of proposed questions respecting pro-
spective jurors' attitudes about various possibly mitigating factors as
they might influence jurors' consideration of the penalty phase. They
included inquiries into the prospective jurors' willingness to consider
factors such as a defendant's "deprived, poor background," "emo-
tional, physical abuse," "young age," "limited intelligence," and
"brain disfunction." The district court declined to incorporate these in
_________________________________________________________________
8 We reject appellants' apparent contention that the district judge's
decision to confine questioning to himself, as Fed. R. Crim. P. 24(a) spe-
cifically authorizes, constituted in this case an abuse of discretion
because the judge was a black person. Aside from the shakiness of the
reason advanced by appellants--that prospective jurors would be signifi-
cantly more inhibited by questions put by the judge himself than by ques-
tions put by others in his immediate presence--the adoption of such a per
se rule would be unthinkable as a matter of policy.
22
its own questioning, and when counsel for appellants attempted to ask
these or similar questions, refused to allow them. Appellants claim
that this violated their constitutional and rule-based right to a voir dire
adequate to assure an impartial jury on the critical capital sentencing
issue. We disagree.
It is important in assessing this claim to identify the voir dire right
at issue. In general terms it is the right, grounded in the Sixth Amend-
ment, to a voir dire adequate to assure a defendant a jury, all of whose
members are "able impartially to follow the court's instructions and
evaluate the evidence," Rosales-Lopez, 451 U.S. at 188, here instruc-
tions and evidence relevant to imposition of the death penalty. More
specifically it is the right to an inquiry sufficient to ensure--within
the limits of reason and practicality--a jury none of whose members
would "unwaveringly impose death after a finding of guilt" and hence
would uniformly reject any and all evidence of mitigating factors, no
matter how instructed on the law. Morgan v. Illinois, 504 U.S. 719,
733-34 (1992) (right to such an inquiry established).
Just how an inquiry adequate for this specific purpose should be
conducted is committed to the discretion of the district courts. The
Constitution no more "dictate[s] a catechism" for its conduct than it
does for any other subject of required voir dire inquiry. Id. at 729;
Rosales-Lopez, 451 U.S. at 189; Aldridge v. United States, 283 U.S.
308, 310 (1931). Obviously, the most direct way to get at the possibil-
ity that a prospective juror would always impose death following con-
viction is to put that very "reverse-Witherspoon" question directly to
him and take it from there. Morgan, 504 U.S. at 724 n.3. But, just as
obviously, that cannot be the "only means of ensuring . . . an impartial
jury" on the life-or-death issue. Id.
Here, by way of getting at that possible disqualifying bias, the dis-
trict court first explained to each juror that if guilt of a capital offense
was found in a first stage of the trial, the jury would then consider
whether to impose the death penalty in a second stage at which the
Government would try to convince the jury that aggravating factors
warranted death while the defense would try to convince the jury that
because of mitigation, death was not appropriate, and that this was
then to be decided by the jurors on the basis of that evidence and the
court's instructions on the law. See, e.g., JA 1170-72 (juror Catlett).
23
Against this background, the court then asked each prospective juror:
"[D]o you have strong feelings in favor of the death penalty?" See,
e.g., JA 1172 (juror Catlett). If the juror answered with an unqualified
"No," the court moved on. E.g., JA 1172 (juror Catlett). If, however,
the prospective juror gave any answer other than an unqualified "No"
the court then asked directly whether "you would always vote to
impose the death penalty in every case where a defendant is found
guilty of a capital offense." See, e.g., JA 1205 (juror Coleman).9 By
this course of inquiry the district court obviously considered that the
question, "Do you have strong feelings in favor of the death penalty?"
was sufficient for the purpose if it received an immediate and unquali-
fied "No" in response. Presumably, the thought was that except where
the response was hesitant or equivocal, a direct"reverse-
Witherspoon" question, such as "Does this mean that you would not
always vote to impose death following conviction?" would be at least
an unnecessary redundancy and possibly an imprudent risk of encour-
aging an opposite partiality. That only if "strong feelings in favor"
were revealed need there be further inquiry into just how strong; that
a person not strongly in favor of the death penalty necessarily is not
one who feels so strongly that he will always impose the death pen-
alty no matter what the circumstances. Cf. Lockhart v. McCree, 476
U.S. 162, 170 n.7 (1986). ("State may challenge for cause prospective
jurors whose opposition to the death penalty is so strong that it would
prevent [their impartiality].") We cannot say that such a view of the
matter is so implausible as to make the inquiry inadequate as a matter
of law. An inquiry which more explicitly embodies the "reverse-
Witherspoon" question might give greater assurance--might in some
cases be more prudent--but that is not the question for us. Under all
_________________________________________________________________
9 Of the twelve regular jurors who sat on the case five responded
unequivocally "No" to the question whether they had strong feelings in
favor of the death penalty and were not questioned further on that subject
by the court. JA 1496 (juror Hodson); JA 1483 (juror Hayes); JA 1465
(juror Harrison); JA 1172 (juror Catlett); JA 1470 (juror Harvey).
The remaining seven, each of whom answered the "strong feelings in
favor" question other than by an unequivocal"No," were then asked the
specific "reverse-Witherspoon" question by the court, and each answered
it, after further questioning, in the negative. JA 1372 (juror Faircloth); JA
1349 (juror Eike); JA 1431 (juror Griffiths); JA 1436 (juror Guthrie); JA
1205 (juror Coleman); JA 1216 (juror Cooke); JA 1361 (juror Jackson).
24
the circumstances--the question's logical adequacy to address the
ultimate issue of death-penalty impartiality, the context in which it
was put, the court's repeated admonitions that under the law consider-
ation of mitigating factors would be required--we could not find con-
stitutional abuse in the court's confinement of its"life-qualifying"
inquiry in this way.
We are bolstered in this conclusion by the fact that in this case
appellants never requested that a further specific"reverse-
Witherspoon" question be put to those prospective jurors who already
had responded unequivocally that they had no strong feelings in favor
of the death penalty. The right to any inquiry on this subject is depen-
dent upon request, Morgan, 504 U.S. at 736, and though appellants
requested detailed questioning about specific mitigating factors, they
neither requested that a specific "reverse-Witherspoon" question be
put to any prospective juror nor objected contemporaneously to the
district court's mode of inquiry as to basic death penalty attitudes.
From what has been said, it follows that the district court's refusal
to question or allow detailed questioning about specific mitigating
factors did not constitute an abuse of discretion. The undoubted fact
that such detailed questioning might have been somehow helpful to
appellants in exercising peremptory challenges does not suffice to
show abuse of the district court's broad discretion in conducting the
requisite inquiry. See Mu'Min v. Virginia, 500 U.S. 415, 424-25
(1991). Because we conclude that the district court's inquiry into
death penalty attitudes was sufficient to cull out any prospective juror
who would always vote for the death penalty whatever the circum-
stances, we cannot find error in the court's refusal to conduct or allow
further detailed inquiry about specific mitigating factors.
C.
Appellants jointly contend that three prospective jurors, Beazley,
Ellis, and Gainsburg, were erroneously removed for cause by the dis-
trict court in violation of appellants' rights under Witherspoon v.
Illinois, 391 U.S. 510 (1968), and its progeny. We disagree.
The Sixth Amendment's guarantee of an impartial jury is violated
by the exclusion of a prospective juror simply because he expresses
25
some reservations about imposing the death penalty in any case. Id.
at 520-23. It is not violated, however, by the exclusion of a juror
whose expressed reservations are such as to make him"irrevocably
committed to . . . vote against the death penalty regardless of the facts
and circumstances" of a case, id. at 522 n.21, or, short of that, such
as to "prevent or substantially impair the performance of his duties as
a juror in accordance with his instruction and his oath." Wainwright
v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S.
38, 45 (1980)). Whether such reservations as are expressed cross the
line into "irrevocable commitment" or "substantial impairment" is
perforce committed in the first instance to trial court discretion based
upon the voir dire inquiry. Because what is being inquired into is a
state of mind whose determination turns largely on assessments of
demeanor and credibility, matters peculiarly within the province of
trial judges, our review of those determinations is appropriately most
deferential. Witt, 469 U.S. at 428; Keeten v. Garrison, 742 F.2d 129,
135 (4th Cir. 1984); Briley v. Bass, 750 F.2d 1238, 1246 (4th Cir.
1984).
Here, we can find no abuse of discretion or error of law in the dis-
trict court's exclusion of these three prospective jurors. Following the
initial expression by each of some degree of reservation, each was
extensively questioned further by the court and by opposing counsel.
Each responded to some extent ambiguously as to the depth and likely
consequence of his or her reservation. In the end, however, each
expressed reservations, never retracted, sufficient to warrant the dis-
trict court's determination that they would substantially impair the
juror's performance of duty to vote for the death penalty if the evi-
dence and law so dictated.
Prospective juror Ellis, asked at the outset by the court whether on
the basis of the evidence and the court's instructions she could "make
an objective, reasoned and fair decision about imposing the death
penalty" responded "I don't know," and to the court's follow-up ques-
tion, "What gives you pause?" responded "I'm not sure at this time
if I could give the death penalty." Later, in response to the prosecu-
tion's question whether her personal opinion could"substantially
impair [her] service as a juror," she answered "I would hope not," and
to a reiterated, "But could it?" responded,"It might." Still later, in
response to defense counsel's question whether she could imagine
26
cases "where she could contemplate imposing the death penalty" she
stated that "there are some cases where I could," and to a follow-up
question whether in such cases her "personal feeling would get in the
way" answered "No." JA 1351-57. This simply left the court with
facially ambiguous and arguably contradictory indications of the
depth of her reservations. In those circumstances we have felt obliged
to "rely on the trial court's discretion in determining which responses
best manifested the juror's true opinions." Briley, 750 F.2d at 1246.10
We so conclude as to the court's removal of prospective juror Ellis.
The same analysis applies to the Court's removal for cause of the
other two prospective jurors. Prospective juror Beazley first
responded to the court's question whether he would be able to impose
the death penalty "disregarding any views that you might have as to
what the law is or ought to be" by saying, "I doubt it," and explained,
"If I get on the jury and I have to give a death sentence, I don't think
I could live with it . . . I really don't." Under probing by defense
counsel he later said "yes" to questions whether he could "imagine"
a crime sufficiently severe that he would impose the death penalty,
and whether the multiple murders charged in this case would "in your
estimation justify it." But when in conclusion he was asked "what
about a cold-blooded murder for profit?" his final response on the
subject was, "I feel yes, but like I say, I'm just a nervous person. If
I could live with it after I done it, I just wonder." JA 1063-65. We
cannot quarrel with the district court's obvious determination that the
first and last expressions by this venireman "best manifested the
juror's true opinion." Briley, 750 F.2d at 1246.
So also, with respect to prospective juror Gainsburg. After indicat-
ing some reservations about imposing the death penalty in any but "a
very limited number of situations," he responded to the court's ques-
tion whether in this case he could make "a fair, reasoned, objective
determination" whether to impose the penalty by saying, "I would like
to say yes. But I really suspect that my prejudices might to some
_________________________________________________________________
10 Significantly, the court, taking account of the fact that the most
directly contradictory expressions came in response to opposing coun-
sels' understandably weighted questions, remarked:"She gave a right
answer to [the prosecutor] when he asked it, she gave a right answer for
[defense counsel] when he asked it. She gave the wrong answer to me."
27
extent affect my decision." Though later, under questioning by
defense counsel, he stated that he "absolutely would consider it," he
immediately qualified this by saying, "But I honestly believe that my
decision would be based on my own biases and prejudices." And,
when the court then asked if by this response he was saying that he
didn't believe he could follow the court's instructions if they were
"not in sync" with his biases and prejudices, he responded, "I suspect
that's what I'm telling you." JA 1401-05. The court did not err in
excluding venireman Gainsburg based on the course of inquiry.
D.
Appellants' final joint challenge to the jury selection process is that
in exercising its peremptory strikes the prosecution impermissibly
struck a disproportionate number of women, thereby violating appel-
lants' constitutional right as recognized in J.E.B. v. Alabama ex rel
T.B., 114 S. Ct. 1419, 1430 (1994) (equal protection under Fourteenth
Amendment); see United States v. Lane, 866 F.2d 103, 104 n.1 (4th
Cir. 1989) (Fifth Amendment provides comparable rights in federal
prosecutions).
Appellants did not contemporaneously object on this basis to the
prosecution's exercise of peremptory challenges, and the Government
contends that this forecloses them on the issue in this court. Ordinar-
ily it would, see Clark v. Newport News Shipbuilding & Dry Dock,
937 F.2d 934, 939-40 (4th Cir. 1991), but appellants point out that
J.E.B. was only decided after completion of the trial in this case and
that at that time the rule in this circuit was that Batson v. Kentucky,
476 U.S. 79 (1986) (race-based peremptory challenges prohibited),
did not extend to gender-based challenges, see United States v.
Hamilton, 850 F.2d 1038, 1041-42 (4th Cir. 1988), so that their fail-
ure to object contemporaneously must be excused. To this, the Gov-
ernment responds that the failure is not excused, notwithstanding
Hamilton, because at the time of trial, there was a direct conflict on
the issue within the circuits and among the state courts, see, J.E.B.,
114 S. Ct. at 1422 n.1, so that appellants were obliged under Fed. R.
Crim. P. 51 to object in order to preserve the claim.
Without accepting the Government's position on procedural
default, we nevertheless conclude that the bare showing of gender dis-
28
crimination first attempted on this direct appeal does not suffice either
to allow first instance consideration by this court (as appellants con-
cede), nor to warrant a remand for first instance consideration by the
district court.11
III.
We next address a number of challenges, some joint, some sepa-
rate, to various trial court rulings at the guilt phase of the trial.
A.
Based on an underlying contention that the evidence on the con-
spiracy count tended to prove three separate conspiracies rather than
the single one charged, appellants jointly and individually challenge
a number of related district court rulings which denied (1) Roane's
motions for severance and for an in limine exclusion of any evidence
against him except that related to the Newtowne phase of any con-
certed drug trafficking activities, (2) related motions for instructions
limiting the evidence properly to be considered against particular
appellants, and (3) motions for a multiple-conspiracy instruction. We
find no reversible error as to any of these.
Critical to all of these challenges is the argument that the evidence
could have supported findings only of three separate conspiracies, and
not of the single one charged. Specifically, it is contended that the
evidence only supported findings of an original conspiracy centered
on Trenton, New Jersey involving the "New York Boyz" group that
included Tipton and Johnson, a separate conspiracy centered on the
_________________________________________________________________
11 The specific claim, supported by references to the record and an affi-
davit of counsel, is that the raw figures of the proportion of women to
men peremptorily challenged suffice to make out a prima facie case
under J.E.B./Batson. According to the affidavit, of the twenty women
who were called by lottery for possible selection as jurors in the final
stage of the selection process, eight were struck by Government peremp-
tory challenges while only two of the twenty-one men called in that stage
were struck. Roane Br. 58. No other suggestion of gender discrimination
than these raw figures is offered as the basis of a Batson/J.E.B. prima
facie case.
29
Central Gardens area of Richmond in which only Tipton and Johnson
of the appellants were involved, and another separate conspiracy cen-
tered on the Newtowne area of Richmond in which all three
appellants--Roane for the first time--were involved. We disagree
with this critical contention; the evidence supports the jury's finding
of the single conspiracy charged and of Roane's connection to it.
The indictment charged that "from on or about January, 1989, . . .
and continuously thereafter up to and including the filing of this
indictment," appellants and others conspired to possess with intent to
distribute and to distribute cocaine base "in the Eastern District of
Virginia and elsewhere." The evidence amply supports the jury's
finding that such a single conspiracy existed and that each applicant
was a participant in that conspiracy. In summary, the evidence was
sufficient to show the following: Such a conspiracy originated in the
Trenton, New Jersey area in 1989, involving as its core members a
group known as the "New York Boyz" and including as members
Appellants Tipton and Johnson and co-defendant Lance Thomas. In
1991, law enforcement efforts resulted in a cessation of the conspira-
cy's operations in the Trenton area but not in its continued existence
and operation elsewhere. At that time, some members of the conspir-
acy ceased their participation while some went to New York City and
others, including Appellants Tipton and Johnson, and Lance Thomas,
went to Richmond. Earlier, while still engaged in the Trenton opera-
tion, Tipton had organized a Central Garden operation in Richmond
that expanded the conspiracy's geographical area while continuing to
use its established mode of obtaining, processing, and distributing its
drug product. The Central Garden operation was supplied from the
New York drug source that supplied the Trenton-based operation.
Under Tipton's leadership, it employed the same methods of intimida-
tion and violence to dominate the crack cocaine trade in this new mar-
ket area of its operation. Shortly after the Central Garden operation
commenced, "Hess," one of the New York Boyz group, came from
New York to act as an enforcer for the operation; later, he returned
to New York to deal with "trouble" resulting from a police raid on a
house used by the New York Boyz. Appellant Johnson came from the
New York area to the Richmond area in the summer of 1990 for the
specific purpose, according to Tipton, of making sure that the losses
taken in earlier operations were not repeated there. Throughout the
Richmond-based operations, Tipton, as key man of the conspiracy's
30
operations there, asserted his ability to call on the New York Boyz
group--who remained in the New York area--to assist the Richmond
operation. Seeking to further expand the conspiracy's operations in
the Richmond area, Tipton directed the development of another distri-
bution network in the Newtowne area of Richmond. By late 1991, it
was the main focus and the most productive area of the conspiracy's
operations in the Richmond area. It was during the early stages of this
new market area's development that Appellant Roane joined the con-
spiracy. A cousin of Tipton's who "had a spot" in Newtowne, Roane
was brought in at Tipton's instigation in the Fall of 1991 soon after
being released from prison, to help develop that new area. From that
point on, he participated as a full "partner" with Tipton, Johnson, and
other conspiracy leaders in the ongoing operations of the conspiracy.
Appellants emphasize the evidence that membership in the groups
participating in the concerted drug trafficking activities in the Trenton
and Richmond areas shifted over time and that the activities were
widely separated geographically and in time. That evidence was of
course relevant to the ultimate factual issue whether the single con-
spiracy charged did exist, but it surely did not prevent a properly sup-
ported finding that it did. See United States v. Banks, 10 F.3d 1044,
1053-54 (4th Cir. 1993) (single conspiracy properly found despite
looseness of organizational structure, changing membership, shifting
roles of participants, limited roles and knowledge of some members).
Once that underlying contention is rejected, all the claims of error
dependent upon it fail. With its rejection, no appellant has any basis
for claiming unfair prejudice from the introduction and consideration
against him of any evidence about any activities of others in further-
ance of the single conspiracy charged. The basic rule is that persons
who have been indicted together, particularly for conspiracy, should
be tried together. United States v. Brooks, 957 F.2d 1138, 1145 (4th
Cir. 1992). Once the scope of that conspiracy is established, one's
having come late to or having varied his level of participation in it
from time to time puts him in a position "no different from that of any
co-conspirator who claims to be prejudiced by evidence that goes to
the activities of co-conspirators." United States v. Leavis, 853 F.2d
215, 218 (4th Cir. 1988). The Government may not properly be "de-
prived . . . of its right to detail the full scope of the conspiracy and
to present its case in proper context" simply because particular co-
31
conspirators were not involved in the full scope of its activities. Id.
That would be the effect of the severance and evidence exclusion and
limitation rulings that were denied; the district court did not, there-
fore, abuse its discretion in denying them.
Appellants' joint claim that "at a minimum," Roane Br. 75, they
were entitled to a "multiple conspiracy" instruction to enable fair pre-
sentation of this theory of defense fails essentially for the same rea-
sons. A properly requested multiple conspiracy instruction is not of
course required if the evidence only supports a finding of a single
conspiracy as charged. United States v. Crockett , 813 F.2d 1310, 1316
(4th Cir. 1987). It may be required, as may instructions on specific
defense theories generally, if sufficiently supported by the evidence.
See United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988).
Even where so required, however, failure to give it is not reversible
error unless a defendant can show that this caused him substantial
prejudice. See United States v. Maldonado-Rivera , 922 F.2d 934, 962-
63 (2d Cir. 1990). Assuming without deciding that the evidence here
might have supported findings of multiple conspiracies, we are satis-
fied that failure to instruct the jury to that effect could not have
resulted in unfair prejudice to any of the appellants, including Roane,
the conspirator last in.
To find such prejudice, we would have to conclude that the evi-
dence of multiple conspiracies was so strong in relation to that of a
single conspiracy that the jury probably would have acquitted on the
conspiracy count had it been given a cautionary multiple-conspiracy
instruction. We are not persuaded of that. The evidence of the single
conspiracy charged was not only strong enough to support the verdict
reached, it was strong enough in relation to that of only multiple con-
spiracies that we do not believe failure to give a special instruction
on this theory of defense possibly could have swayed the verdict on
this count.
32
Volume 2 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-4005
RICHARD TIPTON, a/k/a Whittey,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 93-4006
CORY JOHNSON, a/k/a "O", a/k/a
"CO",
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-4007
JAMES H. ROANE, JR., a/k/a J.R.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
RICHARD TIPTON, a/k/a Whittey;
No. 93-4009
CORY JOHNSON, a/k/a "O", a/k/a
"CO"; JAMES H. ROANE, JR., a/k/a
J.R.,
Defendants-Appellees.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-4010
RICHARD TIPTON, a/k/a Whittey,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-92-68-R)
Argued: December 7, 1994
Decided: July 8, 1996
Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated and remanded in part by published opinion.
Senior Judge Phillips wrote the opinion, in which Chief Judge Wil-
kinson and Judge Ervin joined.
_________________________________________________________________
2
COUNSEL
ARGUED: Scott Lawrence Nelson, MILLER, CASSIDY, LAR-
ROCA & LEWIN, Washington, D.C., for Appellant Roane; Eric
David White, MORCHOWER, LUXTON & WHALEY, Richmond,
Virginia, for Appellant Tipton; Craig Stover Cooley, Richmond, Vir-
ginia, for Appellant Johnson. Robert John Erickson, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Paul F. Enzinna, MILLER, CASSIDY, LAR-
ROCA & LEWIN, Washington, D.C.; David Baugh, Richmond, Vir-
ginia, for Appellant Roane; Robert P. Geary, Richmond, Virginia, for
Appellant Tipton; John F. McGarvey, Richmond, Virginia, for Appel-
lant Johnson. Helen F. Fahey, United States Attorney, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
_________________________________________________________________
OPINION
B.
We next consider a number of challenges to the appellants' several
convictions of continuing criminal enterprise (CCE) violations under
21 U.S.C. § 848(a) (Supp. 1996).
1.
It is claimed that the indictment failed adequately to charge a CCE
violation, specifically that it failed to identify the three drug-related
violations comprising the "continuing series of violations" element of
the offense and the five persons whose supervision, organization, or
management by particular defendants constituted another element.
There is no merit to this claim.
The indictment charged in Count 2 that, in violation of 21 U.S.C.
§ 848, all of the appellants engaged in a CCE by violating 21 U.S.C.
§§ 841 and 846 (1988 & Supp. 1996), "including, but not limited to,
those violations alleged in [this] indictment, which are realleged and
incorporated by reference herein, and . . . other violations . . . which
3
. . . were part of a continuing series of violations of [those] statutes
. . . undertaken . . . in concert with at least five other persons with
respect to whom [appellants] occupied positions of organizer, super-
visor, and manager, etc."
This language essentially tracked the statutory definition of the
offense and hence satisfies basic constitutional guarantees. United
States v. Amend, 791 F.2d 1120, 1125 (4th Cir. 1986). Appellants
cannot claim any unfair surprise under the particular circumstances of
this case from the failure of the indictment specifically to identify in
Count 2 the predicate violations and the five"supervisees" upon
which the Government's proof would focus. In the absence of a bill
of particulars, sufficient protection against unfair surprise may be
found in allegations in other counts of an indictment than that whose
sufficiency is directly challenged. That form of protection amply
served here. Count 2, as indicated, identified and incorporated by ref-
erence all violations of 21 U.S.C. §§ 841 and 846 charged against the
appellants elsewhere in the indictment. That gave each of them ample
notice of all the predicate drug-related violations relied upon by the
Government at trial, including the conspiracy charged in Count 1, the
drug distribution jointly charged in Count 32, and the several murders
in furtherance of the CCE variously charged under 21 U.S.C.
§ 848(e). Similarly, allegations in other counts of the indictment gave
adequate notice of all those persons, more than five, relied upon by
the Government as the minimum of five "supervisees" essential to
proof of CCE violations by each.
2.
It is contended that the district court erred in allowing the jury to
consider as predicate violations under the CCE Count any of the
§ 848(e) capital murders "in furtherance of" the CCE charged. Specif-
ically, the argument is that as a matter of statutory interpretation one
could not murder "in furtherance of" any CCE except one whose exis-
tence was proven independently of such a murder. There is a superfi-
cial plausibility to this argument, but the plain language of the
relevant statutory provisions defeats it.12 Section 848(e) provides in
_________________________________________________________________
12 The argument actually is two-pronged: (1) § 848(e) violations are not
properly considered predicate CCE violations under any circumstances;
or (2) alternatively, they may only be considered where the murder-in-
furtherance occurred after a CCE had already come into existence. We
think the plain language of the relevant provisions defeats both.
4
relevant part that "a person is engaged in a[CCE] if . . . he violates
any provision of this subchapter [I] or subchapter II of this chapter the
punishment for which is a felony, and . . . such violation is part of a
continuing series of violations of [either subchapter I or II] of this
chapter." The "murder-in-furtherance" provision in § 848(e) is "a pro-
vision of this subchapter [I]," hence by the statute's plain terms may
be counted "a part of a continuing series of violations" making up the
proscribed "continuing . . . enterprise." See United States v. Head, 755
F.2d 1486, 1490 (11th Cir. 1985) (telephone facilitation violations
under 21 U.S.C. § 843(b) (1988) properly considered predicate viola-
tions in CCE prosecution). The district court did not err therefore in
instructing the jury that it might consider any murder-in-furtherance
violations found under § 848(e) among the predicate violations
required to convict on the CCE Count.
Nor were appellants unfairly surprised by the way in which the
848(e) violations were charged as predicate violations in the CCE
Count. This was done by incorporating and realleging the conspiracy
count in the CCE Count, thereby realleging the several § 848(e) mur-
ders charged to each in the conspiracy count. Appellants were suffi-
ciently on notice by this indictment that the various § 848(e) murders-
in-furtherance charged to them in the several substantive counts, then
identified in the conspiracy count as overt acts, were among the predi-
cate violations charged in the CCE Count.
3.
Appellants make a cluster of interrelated challenges to the court's
instructions on the Count 2 CCE charge. Specifically, they contend
that the instructions given did not sufficiently emphasize that the jury
must find all the CCE elements as to each of the defendants; did not
advise that the jury must be unanimous as to which three (at least)
predicate violations each committed and which five (at least) persons
each supervised; and misstated the predicate violations element. We
find no reversible error in any of these respects.
The instructions as a whole unmistakably told the jury that it must
find each of the five elements of the CCE offense as to each defen-
dant in the case. Appellants pick out snippets of the instructions
which they claim could have misled the jury as to the need for indi-
5
vidualized consideration of each element as to each defendant, but
that possibility is belied by the instructions looked at whole. The court
specifically instructed that the Government must prove each of the
five elements that it had properly listed as to each of the defendants,
and generally cautioned that as to all the charges, the case of each
defendant must be considered "separately and individually." JA 4018,
4056. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) (instruc-
tions as a whole control).
The failure to instruct that the jury must be unanimous as to the
three (at least) predicate violations and the five (at least) supervisees
does not constitute reversible error. The court gave a general unanim-
ity instruction as to all elements of the offense. None of the appellants
requested a "special unanimity" instruction on these two elements, nor
objected to the court's failure to give one sua sponte. We review this
challenge therefore only for plain error, and find none warranting cor-
rection.
There is, preliminarily, a question whether there was error, plain or
otherwise. There is no general requirement of jury unanimity "on the
preliminary factual issues which underlie the verdict." Schad v.
Arizona, 501 U.S. 624, 632 (1991) (plurality opinion) (quoting
McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J.,
concurring)). A special unanimity instruction is required only when
there is a genuine risk of juror confusion or that a conviction could
result from different jurors having concluded that the defendant com-
mitted quite different acts within those of a prescribed set or among
multiple means of violating a statute. See, e.g., United States v.
Holley, 942 F.2d 916, 925-29 (5th Cir. 1991) (multiple false state-
ments charged in single count required special unanimity instruction).
There is a division among the circuits on the question whether under
this general principle a special unanimity instruction is required, upon
request, as to the predicate violation element in CCE prosecutions.
See United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988)
(required); United States v. Canino, 949 F.2d 928, 945-48 (7th Cir.
1991) (not required).
We need not decide that general question up or down in this case.
Here, the record plainly indicates that appellants could have suffered
no actual prejudice from the lack of a special unanimity instruction
6
on the predicate violation element. The district court properly
instructed that to convict each of the appellants on the CCE count the
jury must find that he committed at least three, see United States v.
Ricks, 802 F.2d 731, 733 (4th Cir. 1986) (en banc), of the predicate
acts listed in the indictment. By its verdict, it is clear that the jury
unanimously found each guilty of at least five predicate violations:
the conspiracy charged in Count 1, the drug possession charged in
Count 32, and at least three of the § 848(e) murders as variously
charged to them. Assuming, without deciding, that unanimity on at
least three predicate violations is required to convict, it is clear that
unanimity occurred here as to each appellant so that no actual preju-
dice from the failure so to instruct could be shown. See Olano, 507
U.S. at 734 (burden is on defendant to show actual prejudice from for-
feited error).
As to the failure to give a special unanimity instruction on the five
supervisees element, we hold, in accord with a majority, if not all, of
the circuits that have addressed the question, that none is required.
See, e.g., United States v. Tarvers , 833 F.2d 1068, 1074 (1st Cir.
1987); United States v. Bond, 847 F.2d 1233, 1237 (7th Cir. 1988).
We agree with those courts that the CCE focus in this element is upon
the size of the enterprise--set at a floor of five--rather than upon the
particular identities of those who make up the requisite number. See
Bond, 847 F.2d at 1237 (sufficient that jurors unanimously find that
at least some five were supervised by defendant, to require unanimity
on identities inimical to statutory purpose).
Appellants' final challenge to the CCE instruction seizes on an
obvious slip of the tongue when the court said while instructing on
the continuing series of violations element that the required proof was
that the continuing series of violations "was undertaken by the defen-
dants" (plural) rather than by each defendant individually. No con-
temporaneous objection to this obviously inadvertent misstatement
was made, so it could only be reviewed for plain error. So reviewing
it, it is obvious that no actual prejudice from it could be shown. In
other parts of the instructions the court sufficiently emphasized, as
earlier noted, that each element must be proved separately as to each
defendant. From the instructions as a whole the jury was adequately
advised that to convict each of the appellants on the CCE count, the
jury must find that he individually committed at least three predicate
7
violations and that in the course of doing so he individually super-
vised at least five other persons.
4.
Johnson and Tipton jointly claim error in the district court's having
amended its jury instruction on the CCE supervision element after
they had given their respective closing arguments. We find no revers-
ible error.
The court initially instructed the jury that the terms "organizer,"
"supervisory position," and "position of management," were to be
"given their usual and ordinary meaning"; that they "imply the exer-
cise of power and authority by a person who occupies some position
of management or supervision" but who "need not be the sole or only
organizer, supervisor or manager of the activities in question." The
Government did not object to this instruction when it was proposed
at the court's charge conference. But, after it had been given and after
Tipton and Johnson had concluded their closing jury arguments, the
Government moved for a supplemental instruction that more fully
reflected this court's interpretation of the terms in United States v.
Butler, 885 F.2d 195, 200-01 (4th Cir. 1989). Over defense counsel's
objection, the court gave a supplemental instruction whose central
points were that "a person may occupy a position of organizer, a
supervisory position or any other position of management without
having direct personal contact with [those organized, etc.]" and that
"it is . . . possible for a single [CCE] to have more than one organizer
[etc.]."
There is no question of the court's discretionary power to give
post-argument instructions "to remedy omissions in pre-argument
instructions or to add instructions necessitated by the arguments."
Fed. R. Crim. P. 30 advisory committee's note to 1987 Amendment.
But the rule plainly contemplates that parties will know what the
court will instruct before they make their arguments. See id. Here that
would have required either that the supplemental instruction not be
given or that appellants be allowed to supplement their closing argu-
ment after it was given. Neither occurred, so there was a technical
violation of the Rule. We conclude, however, that any error involved
was harmless. The supplemental instruction added but one element
8
not specifically reflected in the initial instruction: that to be an orga-
nizer, etc., a defendant need not have had direct contact with the per-
son organized, etc. This was an accurate statement of the law under
Butler. The fact that contact is not essential probably lies within the
"ordinary and usual" meaning of the term. Certainly it did not "contra-
dict or repudiate the thrust of [appellants'] closing argument," United
States v. McCown, 711 F.2d 1441, 1452 (9th Cir. 1983). Appellants
indeed do not suggest how they would have changed their arguments
had they been allowed to supplement them. Accordingly, though it
might well have been better to allow supplemental argument or at
least to inquire of the substance of any proposed before giving the
supplemental instruction, we are satisfied that any error in not doing
so was harmless.
C.
Appellants jointly contend that the district court erred in not mak-
ing sufficiently clear in its instructions on the various capital murder
counts under § 848(e) that to convict, the jury must find a substantive
connection between the murders and the continuing criminal enter-
prise with which each was charged.13 We disagree.
The specific contention focuses upon the court's instruction that to
find a defendant guilty of § 848(e) murder, the jury must find "First,
that the defendant was engaged in or working in furtherance of the
[CCE] charged in Count [2];" second,"that while . . . so engaged, the
defendant either intentionally killed or counseled .. . the intentional
killing of the individual named in a particular count; and three, that
the killing actually resulted." Under this instruction, the claim goes,
a defendant could be found guilty simply on the basis of a temporal
coincidence of a murder with a CCE; no substantive connection
between the two was required. Were this the only instruction touching
_________________________________________________________________
13 As the Government concedes, such a substantive connection must be
implied as an essential element of § 848(e). Appellee's Br. 94; see
United States v. Chandler, 996 F.2d 1073, 1097 (11th Cir. 1993). Appel-
lants make no claim that such a connection may not be implied as a mat-
ter of statutory interpretation. Cf. United States v. Whiting, 771 F. Supp.
476, 477 (D. Mass. 1991) (no substantive connection implicit in "engag-
ing in" prong, though implicit in "in furtherance of" prong).
9
the offense the contention would be a serious one. But, it is not. At
the outset of its instructions on the various murder counts, the court
pointed out that appellants were charged with two very specific, very
distinct types of homicide including "[k]illing while engaged in or in
furtherance of a [CCE]." JA 4039. Further, the court noted in this por-
tion of its instructions that it "would not be enough" to prove only that
a defendant had killed someone; that "each of the specific elements
of the federal crime charged" must be proved, JA 4041; and that the
jury must find the defendant "was engaged in or working in further-
ance of the [CCE]" and that the killing occurred "while the defendant
was so engaged." JA 4042.
Considered in total compass, see Cupp, 414 U.S. at 146-47, we
believe that these instructions sufficiently required proof of a substan-
tive as well as merely temporal connection between the § 848(e) mur-
der and the § 848(a) CCE charged to a defendant, though it must be
conceded that the substantive connection is not as clearly expressed
as it might be. Any concerns that invalidating confusion on the point
might actually have resulted are, however, removed by consideration
of the trial evidence and the Government's arguments to the jury. The
Government's evidence expressly linked each of the nine § 848(e)
murders of which the appellants were severally convicted to a further-
ance of the CCE's purposes: either silencing potential informants or
witnesses, eliminating supposed drug trafficking rivals, or punishing
underlings for various drug-trafficking misfeasances. In both its open-
ing and closing arguments the Government emphasized that the
§ 848(e) murder charges were "predicated upon the [CCE]" in that
they charged "murder in furtherance of a [CCE]." JA 3818, 1609,
3814-15. And it pursued this substantive connection-theme by argu-
ing that each of the murders charged had occurred"in an effort to fur-
ther [appellants'] drug business," JA 1610, pointing out, murder by
murder, the specific enterprise-connected motive for each. See, e.g.,
JA 1625-28, 1631-35. By contrast, the failure to have charged under
§ 848(e) an unconnected killing revealed in the evidence was
explained on that basis. All this considered, we are satisfied that no
reversible error resulted from the district court's instructions on the
nature of the § 848(e) capital murders charged.
10
D.
Appellants challenge the court's instructions on the"enterprise"
element of the offense charged under 21 U.S.C. § 195914 in several
counts. Because none objected to the instructions at trial, we review
only for plain error and find none warranting correction.
The specific claim is that in listing the elements of this offense, the
district court failed to differentiate between "an enterprise engaged in
racketeering activity" and the "racketeering activity" in which it was
engaged. The court did mispeak in twice referring to"racketeering
activity" when it should have referred to "enterprise engaged in racke-
teering activity." The two are different concepts: An "enterprise" is an
entity distinct from the "racketeering activity" in which it engages.
See United States v. Turkette, 452 U.S. 576, 583 (1981) (pointing out
distinction in RICO statute from which § 1959 elements derived).
Had this been all the court said in its instructions on the offense, it
is arguable that plain error would have occurred by effectively read-
ing the "enterprise" element out of the offense. But that is not all that
was said. Assessing the instructions as a whole, see Cupp, 414 U.S.
at 146-47, we are satisfied that, as the Government contends, the jury
was adequately told that the elements were separate and distinct ones
and that both must be proved. Viewed in total context, the two iso-
lated references to "racketeering activity" when "enterprise engaged
in racketeering activity" was appropriate must have been understood
as short-hand references to the "enterprise" itself. The court earlier
had read § 1959 verbatim, including the reference to an "enterprise
engaged in racketeering activity." JA 4044-45. This clearly identified
two different concepts. The point was further emphasized by the
court's identification of an "enterprise" as including "any group of
individuals associated in fact which is engaged in or the activities of
which affect interstate commerce." JA 4046. Further, the court had
_________________________________________________________________
14 In relevant part, § 1959(a) provides that
(a) whoever, as consideration for the receipt of, or as consider-
ation for a promise or agreement to pay, anything of pecuniary
value from an enterprise engaged in racketeering activity, or for
the purpose of gaining entrance to or maintaining or increasing
position in an enterprise engaged in racketeering activity, mur-
ders . . . shall be punished . . . .
11
already explained before making the two challenged misstatements
that what the defendants had to act to "gain entrance to" was an "en-
terprise engaged in racketeering activity." JA 4044. And finally, in the
course of the same passage in which the two misstatements occurred,
the court instructed that the jury could convict if it found the defen-
dants had acted for the purpose of maintaining or increasing their
positions in "the racketeering enterprise" or had received or been
promised in exchange for their acts pecuniary gain from "the racke-
teering enterprise."
It obviously would have been better had the court not made the two
challenged slips, but assessed in total context of the instructions, we
could not find them plain error warranting correction. See United
States v. Locascio, 6 F.3d 924, 941 (2d Cir. 1993) (district court's use
of arguably erroneous "short-hand" language in§ 1959 instruction not
erroneous when viewed in total context).
E.
Appellants claim that their constitutional confrontation rights were
violated by the Government's impeding their timely and effective
access to a number of its witnesses who were under the Government
Protection Program pursuant to 18 U.S.C. § 3521 (1988 & Supp.
1996), and further by the court's restriction of their cross-examination
of those witnesses respecting the reasons for their refusals to submit
to interviews by defense counsel. We find no error in these respects.
In a pre-trial order entered pursuant to 18 U.S.C.§ 3432,15 the dis-
_________________________________________________________________
15 At the time, § 3432 provided that
A person charged with treason or other capital offense shall at
least three entire days before commencement of trial be fur-
nished with a copy of the indictment and a list of the veniremen
and the witnesses to be produced on the trial for proving the
indictment, stating the place of abode of each venireman and
witness.
The statute has since been amended by the addition of a critical pro-
viso:
except that such list of veniremen and witnesses need not be fur-
nished if the court finds by a preponderance of the evidence that
providing the list may jeopardize the life or safety of any person.
Pub. L. No. 103-322, Tit. VI, § 60025, 108 Stat. 1982 (1994).
12
trict court ordered the Government to provide the defense with the
names and addresses of all its witnesses except those under Govern-
ment protection ten days in advance of trial date. The Government
complied by timely providing a list of 99 witnesses, including 18
identified as protected, giving addresses for all but the protected wit-
nesses. The court then denied a defense motion that these addresses
be submitted in camera to allow defense interviews before trial. The
court ruled that the Government's refusal to disclose the addresses
was authorized by its order and was consistent "with the letter and
spirit of the [Witness Protection] program," but stated that the court
would arrange for defense interviews with protected witnesses before
they testified. Once trial was underway, defense counsel were allowed
access to these witnesses, some of whom agreed to be interviewed,
but most of whom did not. In the course of this process the court
denied a defense motion that the court supervise the defense counsels'
access to these witnesses based upon an assertion that the prosecution
had interfered with their access by advising one such witness that he
need not submit to interview. Receiving the prosecution's response
that he had indeed advised the witness that whether to interview was
his decision, the court ruled that defense counsel was only entitled to
request interviews, not to compel them, and admonished the prosecu-
tion that the defense was to have a meaningful opportunity to seek
interviews.
We find no denial of constitutional rights in the court's handling
of defense access to the protected witnesses. As the court ruled, only
access is a matter of right, there is no right to have witnesses com-
pelled to submit to interview, hence no violation by a prosecutor's
advising witnesses to that effect. See United States v. Black, 767 F.2d
1334, 1338 (9th Cir. 1985); United States v. Walton, 602 F.2d 1176,
1179-80 (4th Cir. 1979). Except for not providing the addresses of
protected witnesses, the Government effectively complied with the
court's order and with 18 U.S.C. § 3432 by submitting its entire list
at least three days before the taking of testimony at trial began. The
failure to provide the addresses of protected witnesses was a technical
violation of § 3432 (in its then form) that may not have been curable,
as the district court sought to do, by drawing on the "spirit" of the
"Witness Protection Program," 18 U.S.C. § 3521 et seq. However, we
agree with those courts that have held that a defendant claiming a vio-
lation of the right to access that § 3432 is designed to protect must
13
show actual prejudice from any impairment or interference with the
right, see United States v. Pepe, 747 F.2d 632, 654-55 (11th Cir.
1984), and appellants have shown no particularized prejudice here.
Their access to protected witnesses was delayed, but this is justified
when, as clearly was the case here, the threat of violence is palpable.
See Walton, 602 F.2d at 1179-80. Access was ultimately provided,
and though appellants quarrel with its timing and its circumstances,
they have offered nothing indicating how exactly they were harmed
by the delay. Accordingly, we conclude that no prejudicial error
occurred respecting the appellants' constitutional right not to be
denied effective access to witnesses.
Finally, we find no violation of appellants' confrontation rights in
the court's refusal to allow defense counsel to cross-examine pro-
tected witnesses about the reasons for their refusals to submit to inter-
views. The motives and biases of all these witnesses were otherwise
freely exposed to cross-examination. The restriction imposed was
well within the district court's discretion.
F.
Appellants severally challenge the sufficiency of the evidence to
convict them on various of the counts on which the jury found them
guilty. We assess these insufficiency claims under the familiar test of
Jackson v. Virginia, 443 U.S. 307, 319 (1979), which asks whether
viewing the evidence in the light most favorable to the prosecution
"any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." And, applying that test, we
find no error among those assigned.
We review a voluminous trial record here and our review has dis-
closed a number of insufficiency claims whose lack of merit warrants
no extended discussion--indeed whose only justification would
appear to be an understandable abundance of caution. We will iden-
tify all the insufficiency claims made but confine detailed discussion
to those revealed by our review to warrant it.
1.
Each of the appellants challenges the sufficiency of the evidence
to support the requisite finding under the CCE count that he acted as
14
an organizer, supervisor, or manager with respect to five or more per-
sons. See 21 U.S.C. § 848(a),(b). Our review of the record satisfies us
that the evidence was more than sufficient to support the requisite
jury findings on this issue as to each appellant. Briefly, the crux of
the appellants' several contentions here--indeed their indispensable
point--is that appellants did not organize, supervise, or manage any-
one; that the persons relied upon by the Government as "supervisees"
and with whom they indisputably engaged in drug trafficking activi-
ties were essentially independent retail dealers with whom their only
relationships were those of seller and buyer. This essential factual the-
ory of their defenses, and the indispensable point of their insuffi-
ciency claims, is completely belied by the record. That record reveals
--certainly supports findings beyond a reasonable doubt--that these
"retailers," in more than sufficient numbers as to each of the appel-
lants, acted as "workers" who were either or both organized, super-
vised, and managed by appellants while acting as principal "partners"
in a concerted drug trafficking enterprise, and that some of these peo-
ple served variously not only as street dealers for the enterprise but
as sometime chauffeurs, hideout providers, weapons-keepers, and
general underlings for each of the appellants.
Our review of the record similarly discloses no merit in Roane's
further claim that the evidence on the CCE count was not sufficient
to prove that he had committed three (at least) predicate drug-related
violations, nor in Roane's and Johnson's respective claims that nei-
ther was shown to have "obtain[ed] substantial income as resources"
from the CCE, as required under § 848(c).
2.
Tipton who, as earlier indicated, was convicted of six of the eight
capital murders charged to him under § 848(e) and sentenced to death
on three of the six (those involving Talley, Thorne, and Chiles) chal-
lenges the sufficiency of the evidence to convict him on all but the
one involving Talley. We find the evidence sufficient to convict on
all those challenged.
The five killings at issue resulted from two separate episodes, one
involving the contemporaneous murders of Armstrong, Long, and
15
Carter; the other involving the contemporaneous murders of Chiles
and Thorne. We consider them in that order.
As our earlier summary account of the Armstrong, Carter, Long
murder episode reveals, the actual killings were done by Cory John-
son. The evidence of Tipton's culpability was only that of aider and
abettor; specifically that he was instrumental in planning the murders
and directly aided their execution by driving Cory Johnson, the desig-
nated executioner, to the scene, awaiting accomplishment of the deed
in a getaway car, then driving the executioner from the scene.
Similarly, though the evidence of the murders of Chiles and Thorne
most surely identified Cory Johnson as the actual executioner of both,
it also suffices to support verdicts against Tipton as principal or as
aider and abettor in those murders. Specifically it suffices to support
findings that Tipton and Johnson planned the executions of both vic-
tims for suspected treachery (Chiles) and thievery (Thorne) in relation
to the drug-trafficking enterprise, and that Tipton was present at the
scene as an active participant in seeing that the executions were car-
ried out and that those responsible escaped detection.
3.
Roane and Johnson raise like challenges to their respective convic-
tions on Counts 14 and 16. Each attacks the sufficiency of the evi-
dence to convict him of two counts of violating 18 U.S.C. § 1959 by
killing one Torrick Brown (Count 14) and wounding one Martha
McCoy (Count 16), thereby committing violent crimes"for the pur-
pose of . . . maintaining or increasing [his] position in an enterprise
engaged in racketeering activity . . . ." The evidence on these two
counts was that the killing of Brown and wounding of potential eye-
witness McCoy were prompted by a purely personal grievance of
Roane's against Brown for "messing" with his girlfriend. From this
circumstance, each appellant contends that the evidence was insuffi-
cient to show any enterprise-related "purpose" in his participation in
these deeds: on Roane's part, that it showed nothing but a private pur-
pose of revenge; on Johnson's, no more than a private purpose to
assist a friend in avenging an affront. But the evidence was sufficient
to support jury findings that the deeds were done by Roane and other
enterprise members, including Johnson, in part at least in furtherance
16
of the enterprise's policy of treating affronts to any of its members as
affronts to all, of reacting violently to them and of thereby furthering
the reputation for violence essential to maintenance of the enterprise's
place in the drug-trafficking business. The evidence also sufficed to
support further findings that participation in this sort of group retalia-
tory action in behalf of fellow enterprise members was critical to the
maintenance of one's position in the enterprise.
So considered, the evidence sufficed to show the requisite purpose
as to each of these appellants. We agree with the Second Circuit that
this purpose can be shown by proof that "a defendant who holds a
position in a RICO enterprise . . . committed an underlying crime of
violence with a motive of retaining or enhancing that position"; that
such "self-promotion" need not be "the defendant's only or primary
concern"; and that evidence suffices if from it a jury "could properly
infer that the defendant committed his violent crime because he knew
it was expected of him by reason of his membership in the enterprise
or that he committed it in furtherances of that membership." United
States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992).
Here, the jury properly could have inferred from the evidence of
the enterprise's policies of mutual support, violent retaliatory action,
and group expectations of its members that both Johnson and Roane
participated in the killing of Brown and the contemporaneous wound-
ing of McCoy as "an integral aspect of [their] membership" in the
enterprise and in furtherance of its policies. See id. As to Johnson,
who had no personal grievance against either Brown or McCoy, the
evidence clearly suffices to show "maintenance of his position" in the
enterprise as the sole or certainly dominant purpose of his conduct.
As to Roane, we agree with the Government that although the evi-
dence clearly established private revenge as his primary purpose, it
also supported a finding that once he had enlisted the aid of his fellow
enterprise members in his behalf, he acted not only for himself but as
a member of the enterprise in furthering its policies of retaliatory vio-
lence against any who sufficiently antagonized any of its members,
and in order to maintain his position in it.
G.
Appellants contend, and the Government concedes, that their sev-
eral convictions and sentences on the § 848 CCE and § 846 conspir-
17
acy counts cannot both stand because the § 846 conspiracy as charged
is a lesser included offense within the § 848 CCE as charged. We
agree. Rutledge v. United States, 116 S. Ct. 1241 (1996) (so holding);
see also United States v. Butler, 885 F.2d 195, 202 (4th Cir. 1989)
(same). Accordingly, we must remand for vacatur of the § 846 judg-
ments against each of the appellants.
H.
We have considered the various other challenges made by appel-
lants to guilt-phase rulings of the district court, 16 and find no revers-
ible error with respect to any.
IV.
We next consider a number of challenges to the district court's
conduct of the capital-penalty phase of the trial.
A.
Appellants contend that the district court erred in denying their sev-
eral motions for severance of their trials in the capital-penalty phase.
They point to social science studies suggesting that joint trials in this
phase lead to a higher percentage of death verdicts and to less individ-
ualized decisionmaking, and to the Supreme Court's recognition of
the constitutionally-grounded need for "a greater degree of reliability
when the death sentence is imposed," Lockett v. Ohio, 438 U.S. 586,
604 (1978), as confirming that heightened vigilance in applying sev-
erance principles is required in the capital-penalty phase. Roane Br.
116-17. More specifically, they argue that joint capital-penalty trials
necessarily reduce the jury's ability to give individualized consider-
ation to aggravating and mitigating factors, and that, in particular, 21
U.S.C. § 848(m)(8), which requires the jury to consider as a mitigat-
_________________________________________________________________
16 These include the court's failure to define the term "reasonable
doubt" in its guilt phase instructions; its refusal to remove juror Cooke
because of exposure to mid-trial publicity; and its denial of appellants'
motions to dismiss all the capital charges because of a violation of 21
U.S.C. § 848(o)'s guarantee of a "Right . .. to justice without discrimina-
tion."
18
ing factor that "[a]nother defendant . . . equally culpable . . . will not
be punished by death," perversely operates against jointly-tried defen-
dants in the penalty phase by encouraging juries to finesse the diffi-
cult relative culpability inquiry by simply sentencing all to death.
Roane Br. 118-19.
From all this, appellants contend that "joint capital sentencing hear-
ings are prima facie inconsistent with the Eighth Amendment." Roane
Br. 117. By this we understand them to concede that such joint trials
are not per se unconstitutional and to assert only that discretion as to
severance in this particular context is ultimately subject to constitu-
tional constraints derived from the Supreme Court's"individualized
consideration" jurisprudence as embodied in Gregg v. Georgia, 428
U.S. 153 (1976), and its progeny. Without accepting the "prima facie
unconstitutional" characterization, we basically agree with the posi-
tion that trial court discretion as to severance in the capital-penalty
phase must be considered so constitutionally constrained at its outer
limits and, as a corollary, that our standard of review is for abuse of
a discretion so constrained. Cf. Sampley v. Attorney Gen., 786 F.2d
610, 613 (4th Cir. 1986) (Sixth Amendment right to counsel ulti-
mately constrains discretion in ruling on continuance motions).
Reviewing under that standard, we cannot find abuse of discretion
here. The concerns raised by appellants are legitimate ones. But there
are countervailing considerations that properly may be weighed in the
discretionary balance. Because the relevant statutory provision,
§ 848(i)(1)(A), requires that, except in situations not present here, the
penalty hearing shall be conducted before the same jury that deter-
mined guilt, severance here would have required three separate,
largely repetitive penalty hearings before this jury. The same consid-
erations of efficiency and fairness to the Government (and possibly
the accused as well) that militate in favor of joint trials of jointly-
charged defendants in the guilt phase, see Lockhart v. McCree, 476
U.S. 162, 181 (1986); Richardson v. Marsh, 481 U.S. 200, 210
(1987), must remain generally in play at the penalty phase. The dis-
trict court was therefore entitled to weigh those considerations in the
balance.
More important of course than any consideration of inconvenience
or possible unfairness to the Government from sequential separate tri-
19
als are the possibilities of unfairness to the accused persons from a
joint penalty-phase trial--specifically the threat posed to individual-
ized consideration of their situations, and in particular the quite differ-
ent mitigating factors relevant to each. While such a potential risk was
certainly present here, as it will be in any case involving multiple
defendants, it could not of course have been entirely removed by con-
ducting three sequential, largely repetitive hearings before the same
jury. More critically, we are satisfied that the court's frequent instruc-
tions on the need to give each defendant's case individualized consid-
eration sufficed to reduce the risk to acceptable levels. At the outset
of the penalty phase, the court--obviously aware of the special risk--
admonished the jurors that they "must consider each defendant indi-
vidually." JA 4137. In its concluding instructions on the jury's duty
"to decide whether each individual defendant shall live or die," JA
4810-11, the court reiterated that the duty was"to make a decision
regarding each defendant and each capital case," JA 4817. Further, in
its instructions on the critical weighing process, the court especially
emphasized the need for individualized consideration by pointing out
that "not all aggravating factors alleged are alleged against each of the
three defendants, or in reference to each capital offense," JA 4794,
and that each defendant relied on mitigating factors specific to his
case. JA 4803. This critical point was further emphasized by the
court's submission of separate packets of penalty verdict forms for
each defendant. JA 4813. Still further emphasis occurred in the
court's remonstrances to Government counsel to "be specific" and to
"do it individually," whenever objections were made to Government
counsels' references to the defendants collectively. JA 4770-72, 4775.
We are entitled, in the absence of any directly negating evidence,
to presume that the jury heard, understood, and did follow these
instructions. See Richardson, 481 U.S. at 206. And we are bolstered
in the general presumption by the results of this jury's deliberations.
Only Johnson was sentenced to death on all of the capital murder
counts on which he was convicted. Tipton was sentenced to death on
three of the six on which he was convicted; Roane on one of three.
We therefore find no abuse of discretion in conducting a joint
penalty-phase trial in this case.
20
B.
Appellants make a number of interrelated facial and as-applied
constitutional challenges to certain of the capital sentencing provi-
sions of § 848, hence to the death sentences each received upon jury
recommendation for violations of the capital-murder provisions of
§ 848(e). We preface our discussion of the challenges with a summary
of the most directly relevant provisions and their applications in this
case.
In general the provisions at issue prescribe a "weighing-process"
involving jury consideration of "information" designed to establish
the existence of aggravating and mitigating factors as the basis for
deciding whether to recommend a death sentence. Non-exclusive
"statutory" lists of both aggravating and mitigating factors are pro-
vided in subsections (n) and (m) respectively. Only those statutory
and non-statutory aggravating factors of which a defendant has been
given prior written notice by the Government may be considered by
the jury, § 848(h)-(j), while any statutory or non-statutory mitigating
factor may be considered, § 848(j), (m). In the weighing process,
jurors may only consider those aggravating factors found unani-
mously to exist beyond a reasonable doubt, but any juror may con-
sider any mitigating factor found by him to exist by a preponderance
of the evidence, without regard to whether it has been found by any
other. § 848(k). The prescribed weighing process is a sequential one.
The jury first must determine that at least one of the four aggravating
factors listed in subsection (n)(1) exists. Id. These (n)(1) factors all
relate to the particular intention had by the defendant in relation to the
§ 848(e) murder of which he has been convicted: that he (A) "inten-
tionally killed"; (B) "intentionally inflicted serious bodily injury
which resulted in . . . death"; (C) "intentionally engaged in conduct
intending that the victim be killed or that lethal force be employed
against the victim, which resulted in the death of the victim"; or (D)
"intentionally engaged in conduct which [he] knew would create a
grave risk of death to a person, other than one of the participants in
the offense and [which] resulted in the death of the victim." If (some-
how) none of these (n)(1) factors is unanimously found to exist, the
jury proceeds no further and the death sentence may not be imposed.
§ 848(k). If any of the (n)(1) factors is unanimously found to exist,
the jury then considers whether one or more of the other statutory fac-
21
tors listed in (n)(2)-(12) also exists. If it does not so find, it proceeds
no further and the death sentence may not be imposed. Id. If it does
find at least one additional statutory aggravating factor to exist, it may
then also consider whether any properly noticed non statutory aggra-
vating factors also exist. Id. If they find one (n)(1) aggravating factor,
plus one further (n)(2)-(12) statutory aggravating factor to exist, the
jurors may then weigh all the statutory and non-statutory aggravating
factors they have unanimously found to exist against all mitigating
factors properly being taken into account by individual jurors to deter-
mine "whether the aggravating factors . . . sufficiently outweigh any
mitigating factor or factors" to warrant imposition of a death sentence.
If the jurors unanimously so find, they may, but need not, recommend
the death sentence. Id. If the jury so recommends, the court "shall sen-
tence the defendant to death"; if the jury does not so unanimously rec-
ommend, the court may only impose a sentence other than death.
§ 848(e).
Following this prescribed process, the Government re-introduced,
in transcript form, all the guilt-stage evidence of the capital-murders
of which appellants severally had been convicted. Further, it intro-
duced evidence respecting various post-trial episodes in which, while
in prison, each of the appellants had threatened reprisal against one
or another of the witnesses who testified against him at trial. Finally,
the Government introduced records of prior criminal convictions of
Johnson and Roane.
Each of the appellants introduced testimonial evidence designed to
establish statutory and non-statutory mitigating factors. Principally, in
each case, this evidence involved histories of childhood abuse in dys-
functional, unstable family situations and various forms of mental dis-
orders and disabilities.
Following the district court's comprehensive instructions on the
application of these sentencing provisions to the aggravating and miti-
gating factor information before it, see JA 3963-95, the jury returned
the several verdicts previously noted in the form of special findings
and ultimate recommendations. With respect to each of the seven
§ 848(e) murders for which Johnson had been convicted, the six for
which Tipton had been convicted, and the three for which Roane had
been convicted, the jury unanimously found as statutory aggravating
22
factors all four of the (n)(1) factors, plus the (n)(8) factor that each
of the murders was "the result of substantial planning and premedita-
tion." With respect to the murders of Chiles and Thorne for which
Tipton and Johnson had been convicted, the jury additionally found
the (n)(5) factor--creation of a grave risk of death to persons other
than the victim--to exist. With respect to the Talley murder for which
Tipton was convicted, the jury also found the (n)(12) aggravating
factor--commission of murder in an especially heinous, cruel, or
depraved manner involving serious physical abuse--to exist. Further,
as to each of the appellants with respect to each of the capital murders
for which he had been convicted, the jury found as additional non-
statutory aggravating factors the commissions of multiple murders,
substantial criminal histories, and memberships in a conspiracy that
had as a goal the murders of persons other than the victims of the cap-
ital murders in issue. Finally, as to both Johnson and Tipton with
respect to each of the capital murders for which they had been con-
victed, the jury found as an additional non-statutory aggravating fac-
tor that each had seriously wounded two other persons in the course
of committing those murders.
Some or all of the jurors found as to Johnson 18 mitigating factors;
as to Tipton, 12; and as to Roane nine.
On verdict Decision Forms which recited compliance in detail with
the court's instructions on the weighing process, the jury unanimously
recommended the death sentence for Johnson on all seven of the
§ 848(e) capital murders for which he had been convicted, those of
Louis Johnson, Long, Carter, Armstrong, Thorne, Chiles, and Peyton
Johnson; unanimously recommended the death sentence for Tipton on
three of the capital murders, those of Talley, Chiles, and Thorne, of
the six for which he had been convicted; and unanimously recom-
mended the death sentence for Roane on one of the capital murders,
that of Moody, of the three for which he had been convicted. As to
the other three murders of which Tipton had been convicted, those of
Long, Armstrong, and Carter, and as to the other two of which Roane
had been convicted, those of Louis Johnson and Peyton Johnson, the
jury reported itself "not unanimously persuaded" on the evidence and
in light of the court's instructions that the death sentence should be
imposed upon those defendants. Sentences were imposed accordingly.
23
1.
Appellants jointly challenge, as facially unconstitutional, the § 848
sentencing provisions, § 848(h)(1)(B), (j), and (k), which permit non-
statutory aggravating factors to be considered. Specifically, they con-
tend that by delegating authority to Government prosecutors to intro-
duce such factors for consideration in sentencing, Congress violated
separation-of-powers principles, thereby invalidating the whole pro-
cess.
We disagree. Assuming, without deciding, that by specifically
authorizing consideration of non-statutory aggravating factors noticed
by prosecutors, Congress actually delegated a legislative function to
the Executive Branch, as opposed to merely recognizing a tradition-
ally shared function with that branch, see United States v. Pretlow,
779 F. Supp. 758, 765-67 (D.N.J. 1991), any delegation involved was
sufficiently circumscribed by "intelligible principles" to avoid violat-
ing separation of power principles. See Mistretta v. United States, 488
U.S. 361, 390 (1989); accord United States v. McCullah, 76 F.3d
1087, 1106-07 (10th Cir. 1996).
2.
Appellants jointly claim that the (n)(8) aggravating factor--that
"the defendant committed the offense after substantial planning and
premeditation"--is unconstitutionally vague. Because the death pen-
alty imposed upon each of them was based in part upon the jury's
finding of that factor's existence, they contend that those death sen-
tences are, as to each of them, invalid.
We disagree. No objection on this basis was made in the district
court, so we review the claim only for plain error under the stringent
Rule 52(b) standard as defined in Olano. See supra Part II.A. And,
because mathematical precision in defining eligibility and selection
factors often is not possible, "vagueness review" is quite "deferential"
in any event. See Tuilaepa v. California, 114 S. Ct. 2630, 2635
(1994). Under such deferential review, an aggravating factor such as
the (n)(8) factor "is not unconstitutional if it has some ``common sense
core of meaning . . . that criminal juries should be capable of under-
24
standing.'" See id. at 2635-36 (quoting Jurek v. Texas, 428 U.S. 262,
279 (1976) (White, J., concurring)).
The specific claim of vagueness here is directed at use of the word
"substantial" as a modifier of "planning and premeditation" in defin-
ing the (n)(8) factor. "Substantial," the argument runs, is not suffi-
ciently precise in meaning to serve the discretion-channeling function
constitutionally required for applying eligibility factors in capital sen-
tencing. See id. at 2635; Arave v. Creech, 507 U.S. 463, 470-71
(1993).
We disagree. While, as the Supreme Court has recognized, "sub-
stantial" may have quite different, indeed almost contrary, meanings
depending upon its context, see Pierce v. Underwood, 487 U.S. 552,
564 (1988) (either, e.g., "large," or, e.g., "in the main"); Victor v.
Nebraska, 114 S. Ct. 1239, 1250 (1994) (either"not seeming or imag-
inary," or "to a large degree"), context, including clarifying jury
instructions, may supply the needed "common sense core of meaning
. . . that criminal juries should be capable of understanding."
Compare, e.g., Cage v. Louisiana, 498 U.S. 39, 41 (1990) (in total
context of reasonable doubt instruction, "substantial doubt" would be
"commonly understood [to] suggest a higher degree of doubt than
[would ``reasonable' alone]") with Victor, 114 S. Ct. at 1250 (in total
context of reasonable doubt instruction, "substantial doubt" not likely
to have been interpreted as higher degree than "reasonable").
Here, we are satisfied that in total context of the statutory text and
the district court's instructions on the (n)(8) aggravating factor, "sub-
stantial" as a modifier of "planning and premeditation" could only
have been understood by the jury to mean a higher degree of planning
than would have the words "planning and premeditation" alone--i.e.,
more than the minimum amount sufficient to commit the offense. The
district court instructed in essentially this vein, that "substantial plan-
ning means planning that is considerable, or ample for the commis-
sion of a crime at issue in this case: murder." JA 4796. We are
therefore satisfied that the (n)(8) aggravating factor's use of the word
"substantial" to modify "planning and premeditation" does not render
§ 848(n)(8) unconstitutionally vague, but instead, conveys with ade-
quate precision a commonly understood meaning of"considerable,"
or "more than merely adequate," thereby ensuring that the (n)(8) fac-
25
tor served sufficiently to channel the jury's discretion in assessing eli-
gibility for the death penalty. See McCullah, 76 F.3d at 1110, 1111
(accord).17
3.
Appellants Roane and Tipton each claim that even if the (n)(8)
aggravating factor is constitutionally valid, the information before the
jury was insufficient to support the findings of its existence as to
Roane's murder of Moody, and Tipton's murders of Chiles and
Thorne. We review such insufficiency claims under the same Jackson
v. Virginia standard applied to guilt findings. Lewis v. Jeffers, 497
U.S. 764 (1990).
Roane's contention as to the Moody murder is that the information
before the jury showed only that his involvement in Moody's murder
was confined to an unplanned, spontaneous effort to prevent Moody's
escape following his gun-shot wounding by Tipton. In essence, his
claim is that only unpremeditated, reflexive action on his part, not
"substantial planning and premeditation" preceded his stabbing mur-
der of the fleeing Moody.
We disagree. This account of the relevant information before the
jury respecting Roane's murder of Moody substantially understates
the relevant circumstances revealed by the trial evidence. The jury
had before it information that well before Moody's murder, a motive
for it, to which Roane was privy with Tipton and Cory Johnson, had
developed. Specifically, trial evidence showed that Moody and his
superior, Peyton Johnson, a rival drug dealer, were thought by Tipton,
_________________________________________________________________
17 Appellants relatedly argue, though they did not object below, that in
its jury instructions, see JA 4795, the district court erroneously indicated
that in considering the (n)(8) factor, the jury need find only substantial
planning and not, also, substantial premeditation. That this was necessar-
ily the meaning conveyed is not that clear. Even assuming that it was, we
could not find in such a slip plain error requiring correction under the
Olano standard. It is not conceivable that a jury which had found sub-
stantial planning of a murder would not also, if properly instructed, see
Walton v. Arizona, 497 U.S. 639, 654 (1990), have found substantial pre-
meditation of its commission.
26
Cory Johnson, and Roane to be standing in the way of their taking
over the Newtowne drug market whose development was Roane's
special function. Evidence from the guilt phase revealed that Roane
had in fact stated that Tipton and Johnson "and them didn't want
Maurice [Peyton Johnson] and ``Little Doug'[Moody] to work in that
area . . . selling cocaine." JA 3382. From this and other information
respecting the details of Moody's murder, the jury properly could find
that the visit of Roane and Tipton to Moody's apartment on the night
of his murder was for the pre-planned, premeditated purpose of mur-
dering him. It showed that they went there armed with the pistol used
by Tipton in wounding Moody although members of the enterprise
did not as a matter of policy ordinarily carry weapons. It showed that
Moody's initial wounding and eventual killing were in the pattern of
the comparable enterprise-related, cold-blooded assassinations of Tal-
ley some ten days earlier and of Moody's superior, Peyton Johnson,
the night after Moody was killed. If consideration were narrowly con-
fined only to Roane's conduct in killing Moody when he fled follow-
ing Tipton's failed murder attempt, there might be a serious question
whether that specific reactive conduct involved"substantial planning
and premeditation." But of course the issue was whether the murder,
not its exact means, was the result of substantial planning and pre-
meditation by Roane. And on that issue the jury had ample informa-
tion upon which to base its finding beyond a reasonable doubt that
Moody's murder was "substantially planned and premeditated" by
Roane in concert with Tipton.
Tipton's contention as to the murders of Chiles and Thorne is, as
the Government points out, simply a reiteration of his argument that
the evidence was insufficient to support his convictions on those two
murder counts. We have rejected that argument in Part III.F.2., supra,
and the reasons given apply to this argument as well. Specifically, the
information before the sentencing jury sufficed to support its finding
that Tipton, in concert with Cory Johnson, substantially planned and
premeditated those murders in which he and Johnson actively partici-
pated.
4.
Appellants jointly challenge the constitutionality of the (n)(1)
aggravating factor both facially and as applied. They are correct that
27
if this challenge succeeds on either basis, their several death sentences
must be vacated because this particular factor's existence is an abso-
lute prerequisite to imposition of the death penalty under the § 848
capital-sentencing scheme earlier summarized.
Consideration of the facial challenge requires close attention to the
statutory text of (n)(1) and to its intended functioning within the
weighing process prescribed by § 848's capital-sentencing scheme.
Under that scheme, a jury must, in order to recommend the death pen-
alty, first find as an aggravating factor under (n)(1) that
(1) The defendant--
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury
which resulted in the death of the victim;
(C) intentionally engaged in conduct intending
that the victim be killed or that lethal force be
employed against the victim, which resulted in the
death of the victim;
(D) intentionally engaged in conduct which--
(i) the defendant knew would create a grave
risk of death to a person, other than one of the
participants in the offense; and
(ii) resulted in the death of the victim.
Appellants' facial challenge is based on the claim that the (n)(1)
aggravating factor fails, as is constitutionally required, adequately to
guide and channel sentencing discretion in imposing the death pen-
alty. Roane Br. 133. We disagree.
Appellants properly point out that under the Supreme Court's deci-
sion in Arave, "[w]hen the purpose of a statutory aggravating circum-
stance is to enable the sentencer to distinguish those who deserve
28
capital punishment from those who do not, the circumstance must
provide a principled basis for doing so. If the sentencer fairly could
conclude that an aggravating factor applies to every defendant eligible
for the death penalty, the circumstance is constitutionally infirm." 113
S. Ct. at 1542 (citations omitted). And, they also point out, correctly
we may assume, that the four separate circumstances, (A)-(D), set out
as bases for finding the (n)(1) aggravating factor to exist essentially
replicate the threshold mental states constitutionally required for
death-penalty eligibility under Tison v. Arizona , 481 U.S. 137, 158
(1987), and Enmund v. Florida, 458 U.S. 782, 788, 792 (1982). From
these two propositions, they then contend that because "every mur-
derer must constitutionally satisfy one of these requirements to be
subject to the death penalty," the several (n)(1) circumstances that
merely replicate the required threshold eligibility states fail under
Arave to provide a principled basis for distinguishing those who
deserve capital punishment from those who do not.
This contention fails in its conclusion. The four (n)(1) circum-
stances do essentially replicate the required mental states for constitu-
tional imposition of the death penalty, but in doing so they reflect four
distinctly different levels of moral culpability, ranging downward
from direct "intentional killing," (A), to intentionally engaging in con-
duct with known potential for causing death that did in fact cause it,
(D). Depending upon the evidence, a properly instructed jury which
has returned an unspecific general verdict of guilty on a § 848(e)
capital-murder count may have found either that the defendant "inten-
tionally kill[ed]" or only "counsel[led], command[ed], induce[d], pro-
cure[d], or cause[d]" or "aid[ed] and abet[ted]" the intentional killing.
§ 848(e)(1)(A); 18 U.S.C. § (2)(a). 18
In requiring the jury at sentencing then to address and make find-
ings respecting these different circumstances--some of which are
necessarily implicit in any guilty verdict on a§ 848(e)(1)(A) murder
count--§ 848(n)(1) provides precisely the constitutionally required,
_________________________________________________________________
18 The alternative means to "intentional killing" that are provided in
§ 848(e)(1)(A) as elements of the offense simply replicate--for whatever
reason--the alternative means, in addition to aiding and abetting, that
make one "punishable as a principal" under the generally applicable pro-
visions of 18 U.S.C. § 2(a).
29
principled basis for further distinguishing between those murderers
thought deserving of death and those not thought to be. See Arave,
113 S. Ct. at 1543 (degree of culpability, as measured by specific
mental state, is proper basis for making death penalty choices among
murderers); Tison, 481 U.S. at 157-58 ("highly culpable mental state
. . . may be taken into account in making a capital sentencing judg-
ment"). They might well, for example, guide a discretionary decision
to recommend death for one defendant found guilty under § 848(e)
because he "intentionally killed," i.e. , was a direct executioner, but
not to recommend death for another defendant also found guilty not
because he had been the actual executioner of a victim but because
he had "caused" or "procured" his intentional killing by another and
thereby had "intentionally engaged in conduct intending that the vic-
tim be killed."
We therefore reject appellants' facial challenge to the constitution-
ality of § 848(n)(1).19
5.
Appellants jointly contend that, in any event, the (n)(1) aggravating
factor was unconstitutionally applied as to each of them in the sen-
tencing phase, thereby invalidating the several death sentences
imposed upon them. The contention is a serious one, and we conclude
that error did occur in the district court's submission and instructions
_________________________________________________________________
19 We understand the appellants' facial constitutional challenge to be
confined to the "failure-to-channel-discretion" theory discussed and
rejected in the text. See Roane Br. (as adopted) 133-37. Picking up on
an assertion in appellants' argument that repeating a guilt-phase element
(intent) as an aggravating factor ((n)(1)) "increases the bias in favor of
the death penalty," id. at 136, the Government relies on Lowenfield v.
Phelps, 484 U.S. 231 (1988), as foreclosing any such "impermissible-
duplication" claim. The appellants, however, expressly disavow that this
is an independent basis of their challenge, asserting that it is "much more
than that," hence not affected by Lowenfield . Roane Br. 137, n.100. We
have, as indicated, so understood their position, but to the extent an
"impermissible-duplication" claim inheres as such in their challenge, we
agree with the Government that Lowenfield forecloses it. See Chandler,
996 F.2d at 1092-93 & n.4 (accord).
30
respecting this factor, but we further conclude that the error was
harmless beyond a reasonable doubt as to each appellant.
Over appellants' objections, JA 4688, 4786, the district court, by
its verdict forms and its instructions, allowed the jury, if it chose, to
find more than one of the specific circumstances, (A)-(D), as a basis
for its determination of the (n)(1) aggravating factor's existence. The
special verdict forms listed these circumstances--as does the statute20
--as if they might be found cumulatively, see JA 414 (Tipton form),
and the court instructed that "you must find at least one from the first
category [the (n)(1) category] of aggravators." JA 4793, 4794
(emphasis added). Following the apparent authorization thus given,
the jury, as previously noted, found all four circumstances as to each
of the murders for which each of the appellants had been convicted,
including of course those for which it then recommended death sen-
tences.
Appellants contend that allowing such a cumulation of "multiple
overlapping aggravating factors, based upon a single element of the
_________________________________________________________________
20 See ante at 29-30. As there indicated, § 848(n)(1) in listing the (A)-
(D) circumstances contains no conjunction signalling whether it was
intended that only one of the circumstances should be found or that more
than one might be. Predictably, this regrettable omission quickly has led
to uncertainty on the point among district courts making early applica-
tions of the statute. In addition to the district court in this case, the dis-
trict court in McCullah, 76 F.3d 1087, apparently had assumed that
cumulative findings should be allowed. Other district courts, however,
seemingly have assumed that only one should be allowed. See, e.g.,
Chandler, 996 F.2d at 1082; United States v. Pitera, 795 F. Supp. 546,
556 (E.D.N.Y. 1992); Pretlow, 779 F. Supp. at 771.
Correctly pointing out that the statute does not in terms prohibit multi-
ple findings, the Government contends on this appeal, as presumably it
did in the district court, that the district court's submission for multiple
findings was proper. Gov't Br. 126 n.80. We observe, however, that per-
haps aware of the difficulty created by such an interpretation, the Gov-
ernment, in summarizing the (n)(1) provisions, elsewhere suggests that
a disjunctive reading should be implied. Id. at 122 (implying an "or"
reading).
For reasons following, we simply disagree with that position.
31
crime" to be considered in the weighing process unconstitutionally
skewed the process in favor of death. And they argue that skewing
was further exacerbated by the court's instruction to the jury that hav-
ing already necessarily found in the guilt phase that each of the mur-
ders in issue was intentional, the purpose of requiring a re-finding of
at least one of the specific intentions embodied in the (A)-(D) circum-
stances was simply "to insure that this factor was considered by you
at the first phase, or guilt phase." JA 4793.
We agree with appellants that the district court's verdict submis-
sion and instructions respecting the purpose of the (n)(1) factor(s) and
their proper application by the sentencing jury was erroneous. The
court's instructions misconstrued the essential purpose of the specific
(A)-(D) circumstances set out as discrete alternative bases for making
the required (n)(1) finding. That purpose, as earlier discussed, is not
the anomalous one of merely re-confirming (or, by not confirming,
impeaching?) the jury's earlier finding of intent in the guilt phase. It
is instead to focus the jury's attention upon the different levels of
moral culpability that these specific circumstances might reasonably
be thought to represent, thereby channeling jury discretion in the
weighing process.21 To allow cumulative findings of these intended
alternative circumstances, all of which do involve different forms of
criminal intent, runs a clear risk of skewing the weighing process in
favor of the death penalty and thereby causing it to be imposed arbi-
trarily, hence unconstitutionally. Stringer v. Black, 503 U.S. 222, 230-
32 (1992). On this basis, the Tenth Circuit recently has vacated a
death sentence imposed for a § 848(e) capital murder where the dis-
trict court had erroneously, in the Tenth Circuit's view, allowed the
jury to find both the (C) and (D) circumstances to exist as (n)(1)
aggravating factors. McCullah, 76 F.3d at 1111 ("while the factors are
not identical per se, [one] necessarily subsumes the [other]," and so
impermissibly duplicates).
_________________________________________________________________
21 In fairness to the district court, it should be observed that the court
also indicated in supplemental instructions to the jury that the (n)(1) cir-
cumstances served the function, beyond that of merely re-confirming its
guilt-phase criminal intent finding, of pointing up specific levels of cul-
pability depending upon the factual basis for the guilt finding. But, the
court then, erroneously we conclude, reiterated that the jury could find
more than one circumstance. JA 4837-39.
32
We agree with the McCullah court that such a submission (here of
all four (n)(1) circumstances) that permits and results in cumulative
findings of more than one of the (n)(1) circumstances as an aggravat-
ing factor is constitutional error. As earlier indicated, however, we
further conclude, as we properly may in appellate review, Stringer,
503 U.S. at 232, that the error was harmless beyond a reasonable doubt.22
In considering whether the error was so harmless, we keep in mind
the two possible ways in which it could have prejudiced--not been
harmless--in producing the challenged death sentences: first, by
causing the jury to assess the weight of the (n)(1) circumstances it
found on an unfair quantitative basis that gave four-fold effect to what
was essentially a single factor--criminal intent; second, by allowing
the jury to find a more morally culpable circumstance than was sup-
ported by the sentencing information, including the guilt-phase evi-
dence, that was before it. With those two possible sources of actual
prejudice in mind, we then ask what the record indicates the jury
would have done had it been properly instructed on its consideration
of the critical (n)(1) factor. If the answer is that it would surely have
done just what it did in the end under the erroneous instruction--
recommended each of the death sentences now challenged--
harmlessness is thereby demonstrated as to each. See Clemons, 494
U.S. at 754 (so stating proper harmlessness test).
To get at this, we have first to establish what a proper instruction
would have been as to those murders for which the challenged death
sentences were imposed. Fortunately, we need not decide for the lim-
ited purpose at hand whether as a general proposition a proper (n)(1)
instruction would always submit for jury consideration only those
(n)(1) circumstances, (A)-(D), for which there was sufficient evidenti-
ary support before the jury.23 Here, though on a mistaken legal prem-
_________________________________________________________________
22 The Tenth Circuit in McCullah recognized its power to conduct
harmless error review of a comparable error, but for unstated reasons
declined to do so and remanded for reweighing and resentencing by the
district court. 76 F.3d at 1112; see Clemons v. Mississippi, 494 U.S. 738,
754 (1990).
23 We need not decide it because of the fortuity noted, but we would
be amiss not to note the obvious potential for prejudicial error if a jury
were permitted to consider and find the (A) circumstance when the guilt-
phase evidence sufficed only to convict a defendant as a marginal aider
and abettor who did not participate directly in the killing. See note 24.
33
ise, that was indeed done as to each of the murders for which the
death sentence was imposed. For as to each there was evidentiary sup-
port for all four of the circumstances submitted, including (A), the
most culpable. Critically for our purpose, however, a proper instruc-
tion would also have directed that from among those circumstances,
(A)-(D), submitted for consideration as alternatives, only one should
be found as the basis of the required (n)(1) aggravating factor.
Accordingly, the harmless-error question for us becomes whether if
the jury had been instructed properly that as to each of the murders
in issue it might consider circumstance (A) and one or more of (B),
(C), and (D), but could only find one of these as the basis for its (n)(1)
finding, it would have reached the same result it reached under the
erroneous instruction. We are so convinced.
First off, it is obvious that as to each of the murders in issue, the
jury under a proper instruction would have found circumstance (A),
intentional killing, as the sole basis for its (n)(1) finding. It did, after
all, find this as the most culpable of the circumstances actually sub-
mitted to it; it is inconceivable that if confined to finding one, it
would not have so found. Might it, however, having found only that
one circumstance as an (n)(1) aggravating factor, then have accorded
it so much less weight than it did to the four circumstances it improp-
erly found that it would have come out differently in its weighing pro-
cess? We are satisfied that it would not have, for several reasons.
First, because, as the Government points out, each of the other
three (n)(1) circumstances, (B), (C), and (D), that the jury found is
necessarily subsumed as merely a "lesser-included" aspect of the (A)
--"intentionally killed"--circumstance. That being so obviously the
case, we cannot believe that the jury gave any greater weight to the
aggregate of overlapping mental-state circumstances than it would
have to the all-embracing (A) circumstance alone. We are bolstered
in this conviction by the district court's careful instructions which
emphasized both the impropriety of quantitative weighing of factors,
and the overlapping, "lesser-included" relationship between the (A)-
(D) circumstances it allowed the jury to find. In its original sentencing
instructions, the court emphasized that the weighing process "is not
a mechanical" one; that it is not "determined by raw numbers"; and
that "[i]nstead, you must consider them qualitatively." JA 4810. In
supplemental instructions, responding to a jury inquiry, the court
34
pointed out that one who under its instructions might be found to have
"intentionally engaged in conduct intending that the victim be killed"
under (C), might also be found, if he followed through on that inten-
tion with an "actual stabbing and shooting," to have "intentionally
killed" under (A). JA 4837-38. While, as indicated, this instruction
was given on the erroneous premise that more than one such circum-
stance could properly be found, it nevertheless served to convey to the
jury that, as necessarily subsumed circumstances, they were not to be
given cumulative weight.
Most critical, however, to our assessment that the jury did not in
recommending the challenged death sentences give more weight to
the aggregate of (n)(1) circumstances than it would have to the (A)
circumstance alone under a proper instruction, is the actual result it
reached on the various murders for which it had severally convicted
the appellants. Though it found all the (n)(1) circumstances as to each
appellant on each of these murders, it only recommended the death
sentence in respect of those murders as to which the evidence sup-
ported a finding either that the particular appellant was the actual
killer or was physically present as an active participant in the killing.
This clearly indicates to us that whatever misapprehensions the jury
may have received from the court's allowance of cumulative findings
of (n)(1) circumstances, the jury properly accorded the weight it
should have to the (A) circumstance in those cases where, under a
proper instruction, it would have been found as the sole (n)(1) factor.24
_________________________________________________________________
24 We do not overlook that the jury clearly was under misapprehension
--not only as to the propriety of making multiple findings on the (n)(1)
factor, but as to the relationship between the basis upon which it had
found guilt for a particular murder and the (n)(1) circumstance which
reflected that basis. Obviously worried about what (n)(1)(A)'s "intention-
ally killed" embraced, the jury requested supplemental instruction on the
point. In response, the district court gave instructions which in ways
were accurate and helpful, but it concluded with an unfortunate summa-
tion that clearly led the jury to believe that having found guilt, on what-
ever basis, whether as principal or aider and abettor, they had necessarily
found, for (n)(1) purposes, that a defendant had"intentionally killed," so
that any and all of the (n)(1) circumstances might appropriately be found.
JA 4837-39. This might well have prejudiced any defendant who
received the death sentence for a murder in whose commission he was
35
Neither, on this assessment, is there any possibility of the other
potential prejudice from erroneously allowing multiple (n)(1) find-
ings: that this permitted the finding of a higher degree of culpability
than was supported by the evidence. As to each of the murders for
which the death sentence was imposed, the evidence clearly (and
uniquely) supported a finding of the (A) circumstance.
We therefore conclude that beyond a reasonable doubt the district
court's error in allowing the jury to find all of the (n)(1) circum-
stances as an aggravating factor was harmless in respect of the several
death sentences imposed.
C.
We have carefully considered appellants' other claims of error in
the capital sentencing phase25 and find no error warranting correction
or discussion.
V.
We consider last the Government's cross-appeal from the district
court's order staying execution of the death sentences severally
_________________________________________________________________
not a direct participant, but of course we are not presented with such a
claim, there being no such defendant in this case. Our question is only
whether, all things considered, such a misapprehension could possibly
have prejudiced a defendant who had been found guilty because the jury
determined that he had directly participated in the murder's commission,
and we are convinced that the answer to that question is, beyond a rea-
sonable doubt, no.
25 These include, inter alia , facial challenges to the use of two non-
statutory aggravating factors--substantial criminal histories and partici-
pation in a conspiracy having murder as a purpose--; failure to define
reasonable doubt in the capital-sentencing instructions; failure to hold the
Government to penalty-phase discovery and proof requirements; failure
to instruct on proper use of mental and neurological impairments evi-
dence; failure to declare a mistrial because of a prosecutor's comment on
Tipton's failure to testify; and failure to order a new penalty-phase trial
because of the Government's withdrawal of death-penalty notice against
a co-defendant.
36
imposed upon appellants pending congressional authorization of the
means of execution.
At the time these death sentences were imposed, no federal statute
provided authorization for the specific means of executing such sen-
tences. Before enactment of the Sentencing Reform Act of 1984 (the
"Sentencing Guidelines"), 18 U.S.C. § 3566 had provided that with
respect to death sentences imposed under the few then extant federal
capital offenses the means of execution should be that "prescribed by
the laws of the place within which the sentence is imposed," or, fail-
ing such laws, as prescribed by the law of another state designated by
the sentencing court. Section 3566, however, was repealed upon
enactment of the Sentencing Reform Act and had not been replaced
by any other generally applicable provision when these death sen-
tences were imposed.
Effective on February 18, 1993, however, the Attorney General of
the United States had promulgated regulations providing that as to
death sentences imposed under § 848(e), "[e]xcept to the extent a
court orders otherwise, a sentence of death shall be executed . . . [b]y
intravenous injection of a lethal substance or substances in a quantity
sufficient to cause death." 58 Fed. Reg. 4898, 4901-02 (1993) (codi-
fied at 28 C.F.R. § 26.3). Invoking these regulations as authority, the
Government moved for issuance of an order of execution that would
permit a United States Marshal to carry out appellants' several death
sentences at a time and place to be designated by the Director of the
Bureau of Prisons. The appellants objected to issuance of such an
order, contending that the Attorney General's regulations were ultra
vires its powers, hence provided no authority for judicial issuance of
such an order; that Congress possessed the exclusive power to pre-
scribe, as a legislative matter, the means by which federal death sen-
tences should be executed; and that in the absence of congressional
authorization, the appellants' death sentences could not be executed.
The district court agreed and entered an order affirmatively staying
the executions until such time as Congress provided specific authori-
zation of means.
Since entry of that order, Congress has enacted the Federal Death
Penalty Act of 1994 as part of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796. This
37
legislation created a number of new capital offenses, and contained
capital-sentencing provisions for the new capital offenses and for pre-
viously existing ones which, unlike 21 U.S.C. § 848(e), did not con-
tain them. It also included a general implementation provision, 18
U.S.C. § 3596 (Supp. 1996), which authorized the execution of any
defendant "sentenced to death pursuant to this chapter," id. (emphasis
added), essentially as was provided in former 18 U.S.C. 3566, i.e.,
under the law of the state of imposition or of a court-designated state.
This provision, however, does not by its terms apply to death sen-
tences imposed under § 848(e).
At the present time, therefore, the situation remains as it was when
the district court issued its stay of execution order: The only formal
authorization for the means of execution is the regulation issued by
the Attorney General. We therefore address the correctness of the dis-
trict court's holding that this regulation is not constitutionally valid
because it purports to exercise a power which, being legislative, is
exclusively that of Congress. And, we disagree with that holding.
We conclude, first off, that although Congress clearly may, if it
chooses, preemptively legislate the means of executing federal death
sentences, its power to do so is not exclusive of the power of the
executive branch, where Congress has not acted preemptively, to pro-
vide those means as an aspect of its constitutional power to "see that
the laws be faithfully executed." U.S. Const. art. II, § 3. Congress has
itself authorized the Attorney General to "prescribe regulations for the
government of [her] department, . . . [and] the distribution of its busi-
ness . . . ," 5 U.S.C. § 301 (1996), has vested all functions of the
Department of Justice in the Attorney General, and has authorized
officers, employees, and agencies of the Department to perform those
functions, 28 U.S.C. §§ 509, 510 (1996). Among those agencies are
the United States Marshals, whose legislatively conferred obligation
is to "obey, execute, and enforce all orders of the United States Dis-
trict Courts," 28 U.S.C. § 566(a) (1993). We conclude that, absent
directly preempting congressional action, the Attorney General had
constitutional and statutory authority to provide by regulation the
means for executing death sentences imposed under 21 U.S.C.
§ 848(e), there being no claim made here that lethal injection is itself
an unconstitutional means.
38
Next, we conclude that Congress has not, either expressly or by
necessary implication, preempted the power of the executive branch,
through the Attorney General, to authorize the means at issue. There
is of course no claim that Congress has expressly provided some other
means for executing § 848(e) death sentences, nor that it has
expressly reserved that power to itself, nor that it has expressly for-
bidden exercise of the power by the Attorney General. Appellants
essentially claim, however, that Congress has by necessary implica-
tion asserted its exclusive power to provide the means, thereby pre-
empting any power otherwise possessed by the Attorney General to
act in the absence of express congressional legislation. We disagree.
The claims of implied preemption are based essentially on the fact
that from time to time Congress has exercised exclusive power in the
matter (before repeal of § 3566) and an almost exclusive power (since
enactment of the Violent Crime Control and Law Enforcement Act of
1994). But we know of no constitutional or separation-of-powers
principle which dictates that where branches share power in a matter,
the exercise of that power at any time and to any extent by the branch
having primary power acts totally and for all time to preempt exercise
of the power by the other branch in areas not expressly preempted by
the former. Cf. Wilkerson v. Utah, 99 U.S. 130, 137 (1879) (in
absence of statutory prescription for means of execution of sentence,
sentencing court had authority to prescribe).
Finally, we reject appellants' contention that even if the Attorney
General had power to issue the regulation in issue, its application to
appellants would violate the Ex Post Facto Clause because it was pro-
mulgated after the commissions of the capital offenses at issue. We
agree with the Eleventh Circuit in Chandler, 996 F.2d at 1095-96, that
this contention is foreclosed by Dobbert v. Florida, 432 U.S. 282
(1977) (application of constitutionally adequate capital-sentencing
provision enacted after commission of offense not violative of Ex
Post Facto Clause because procedural).
VI
We affirm the convictions and sentences of all appellants in all
respects except for their several convictions and sentences on the
Count 1 conspiracy count under 21 U.S.C. § 846. We vacate those
39
convictions and sentences for reasons given in Part III.G. of this opin-
ion.
On the Government's cross-appeal, we vacate the district court's
order staying execution of the several death sentences imposed upon
each of the appellants and remand with instructions to enter appropri-
ate orders for the executions in accordance with regulation promul-
gated by the Attorney General.
SO ORDERED
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