United States v. Mikhel

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-99008
Plaintiff-Appellee,
D.C. No.
v. CR-02-00220-DT-1
IOURI MIKHEL,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 07-99009
Plaintiff-Appellee,
D.C. No.
v. CR-02-00220-DT-2
JURIJUS KADAMOVAS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued and Submitted January 10, 2018
Pasadena, California
Filed May 9, 2018
2 UNITED STATES V. MIKHEL
Before: Jay S. Bybee, Milan D. Smith, Jr., and Michelle T.
Friedland, Circuit Judges.
Opinion by Judge Bybee
SUMMARY*
Criminal Law / Federal Death Penalty
The panel affirmed Iouri Mikhel’s and Jurijus
Kadamovas’s convictions and death sentences for several
federal crimes, including multiple counts of hostage taking
resulting in death under the Hostage Taking Act.
Guilt Phase
The panel reaffirmed that the Hostage Taking Act does
not require proof of a nexus to international terrorism. The
panel held that the Act was a valid exercise of Congress’s
power under the Necessary and Proper Clause together with
the Treaty Power, and rejected as unavailing the defendants’
independent Tenth Amendment challenge. The panel rejected
as meritless the defendants’ argument that even if the Act
does not itself exceed Congress’s power, the subsequent
amendment authorizing the death penalty exceeded
Congress’s power.
The panel held that the defendants’ motion for recusal of
the district judge was untimely and fails on its merits.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MIKHEL 3
Affirming the district court’s rejection of the defendants’
Batson challenge to the government’s peremptory strike of a
juror, the panel held that the defendants did not meet their
burden of demonstrating race was a substantial motivating
factor.
The panel held that the district court committed no error
in empaneling an anonymous jury.
The panel held that the district court did not violate the
defendants’ Sixth Amendment right to a public trial by
excluding from the courtroom a person who was observed
behaving in an intimidating manner.
The panel held that the district court did not err in using
this circuit’s model reasonable-doubt jury instruction in the
guilt phase.
The panel explained that the purpose of 18 U.S.C. § 3005,
under which a capital defendant has the right to two counsel,
is not undermined by one attorney’s de minimis absence from
trial, and that any error stemming from the three-day absence
from trial of one of Mikhel’s attorneys was harmless. The
panel held that the district court’s denial of Kadamovas’s
motions for a continuance to allow one of his attorneys more
time to prepare did not violate § 3005, and that any technical
error would be harmless.
The panel held that the district court did not abuse its
discretion in excluding as irrelevant testimony of a person
who, without repercussion, committed perjury as a
cooperating witness in a different case.
4 UNITED STATES V. MIKHEL
The panel held that the district court did not plainly err by
failing to hold a competency hearing sua sponte at the outset
of trial, at the end of the guilt phase, and during the penalty
phase.
The panel rejected Kadamovas’s claim that under Bruton
v. United States Mikhel’s testimony and refusal to be cross-
examined violated Kadamovas’s Sixth Amendment
Confrontation Clause rights. The panel wrote that because
Mikhel’s testimony did not facially incriminate Kadamovas,
the testimony did not trigger the Bruton rule, and it must be
assumed that the jury followed the district court’s instruction
to disregard Mikhel’s testimony. The panel concluded that
any error in this regard was harmless.
The panel held that the district court did not abuse its
discretion in denying Kadamovas’s motions for complete
severance of his case from Mikhel’s or in denying his
requests for sequential penalty phases.
Rejecting Kadamovas’s evidentiary challenges to his
conviction for conspiracy to escape, the panel held (1) that
the district court did not err under Fed. R. Evid. 608(b) or the
Confrontation Clause in limiting the defense’s cross-
examination of a cooperating witness; and (2) that the
erroneous admission of a letter that was inadmissible hearsay
was harmless.
The panel held that the record supports the district court’s
determination that there was no pattern of Kadamovas being
denied computer access to review discovery materials as
contemplated by a stipulation with the government.
UNITED STATES V. MIKHEL 5
Penalty Phase
The panel held that the district court did not plainly err by
using this circuit’s model reasonable-doubt jury instruction in
the penalty phase.
The panel rejected the defendants’ contention that the
Eighth Amendment and the Federal Death Penalty Act only
permit evidence of a victim’s personal characteristics in
penalty proceedings to the extent they influenced, and thus
reveal something about, the relationship the victim had with
his or her family. The panel held that the district court did
not commit plain error in failing to exclude evidence of a
victim’s religion in the context of his commitment to his
family and celebration of life.
The panel rejected some of the defendants’ contentions as
to the propriety of the government’s remarks in penalty-phase
closing arguments, but agreed with the defendants that the
government should not have compared prison life to the
victims’ deaths. On plain error review, the panel held that the
latter statements did not so affect the jury’s ability to consider
the totality of the evidence fairly that it tainted the verdict and
deprived the defendants of a fair trial.
Assuming without deciding that there was error in the
district court’s jury instruction and verdict form on the non-
statutory aggravating factor of future dangerousnes, the panel
held that any error was harmless.
The panel rejected the defendants’ claim that the
government commented on their failure to testify at trial in
violation of their Fifth Amendment rights under Griffin v.
California.
6 UNITED STATES V. MIKHEL
Regarding Kadamovas’s contention that the government,
in questioning a witness, appealed to ethnic prejudice in
violation of Kadamovas’s Fifth Amendment right to a fair
trial, the panel held that there was no plain error.
The panel held that the district court did not abuse its
discretion in excluding an interview with Mikhel’s ex-
girlfriend, offered as mitigating evidence. The panel held
that the district court did not abuse its discretion in excluding
a portion of an interview with Mikhel’s cousin whose plea for
mercy was essentially an opinion about what the jury’s
verdict should be.
The panel held that the jury could have reasonably relied
on the government’s guilt-phase evidence to conclude that
Kadamovas presented a risk of future dangerousness beyond
a reasonable doubt.
The panel held that the district court did not abuse its
discretion in admitting an antique dagger with swastikas on
the handle, and did not commit plain error by admitting
testimony that Kadamovas referred to the victim as a “fat
Jew.”
The panel rejected Kadmovas’s argument that the jury’s
failure to find the mitigating factor that he had no prior
criminal record demonstrates that it disregarded its statutory
obligation to consider mitigating factors and therefore
rendered an arbitrary verdict. The panel explained that the
jury was not required to find any mitigating factor, and held
that the jury’s failure to find that Kadamovas had no prior
criminal record was reasonable.
UNITED STATES V. MIKHEL 7
The panel held that the district court did not abuse its
discretion in rejecting Kadamovas’s proffer of Lithuania’s
abolition of the death penalty as a mitigating factor.
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San
Diego, California; Barbara E. O’Connor, O’Connor & Kirby
P.C., Burlington, Vermont; Margaret Hills & O’Donnell,
Frankfort, Kentucky; for Defendant-Appellant Jurijus
Kadamovas.
Michael Tanaka (argued), Deputy Federal Public Defender;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; Sean J.
Bolser, Federal Capital Appellate Resource Counsel Project,
Federal Defenders of New York, Brooklyn, New York; Statia
Peakheart, Los Angeles, California; for Defendant-Appellant
Iouri Mikhel.
Michael A. Brown (argued), Assistant United States
Attorney; Lawrence S. Middleton, Chief, Criminal Division;
Sandra R. Brown, United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
Alexey V. Tarasov, Houston, Texas, for Amicus Curiae
Government of the Russian Federation.
8 UNITED STATES V. MIKHEL
OPINION
I. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. The Hostage-Taking Conspiracy. . . . . . . . . . . . . . 11
1. Death of Meyer Muscatel.. . . . . . . . . . . . . . . . 12
2. Death of Rita Pekler.. . . . . . . . . . . . . . . . . . . . 13
3. Death of Alexander Umansky. . . . . . . . . . . . . 14
4. Deaths of Nick Kharabadze and George Safiev
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. The FBI’s investigation. . . . . . . . . . . . . . . . . . 17
B. The Escape Conspiracy and Mikhel’s Second Escape
Attempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . 20
II. ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. The Guilt Phase. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. The Hostage Taking Act. . . . . . . . . . . . . . . . . 23
2. Defendants’ recusal motion. . . . . . . . . . . . . . . 31
3. Batson challenge. . . . . . . . . . . . . . . . . . . . . . . 37
4. The use of an anonymous jury. . . . . . . . . . . . . 43
UNITED STATES V. MIKHEL 9
5. Right to a public trial. . . . . . . . . . . . . . . . . . . . 46
6. “Reasonable doubt” instruction as to guilt.. . . 48
7. Right to two counsel under 18 U.S.C. § 3005
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8. Excluded testimony regarding cooperating
witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9. Mikhel’s competency.. . . . . . . . . . . . . . . . . . . 54
10. Kadamovas’s Confrontation Clause claim.. . . 68
11. Kadamovas’s severance motion.. . . . . . . . . . . 75
12. Kadamovas’s conviction for conspiracy to escape
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
13. Kadamovas’s access to a computer. . . . . . . . . 83
B. The Penalty Phase. . . . . . . . . . . . . . . . . . . . . . . . . 84
1. “Reasonable doubt” instruction as to penalty
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
2. Victim-impact evidence. . . . . . . . . . . . . . . . . . 87
3. Misconduct in penalty-phase closing arguments
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
4. Instruction and verdict form on future
dangerousness. . . . . . . . . . . . . . . . . . . . . . . . . 96
10 UNITED STATES V. MIKHEL
5. Griffin error. . . . . . . . . . . . . . . . . . . . . . . . . . 104
6. Examination of Dr. Mark Cunningham. . . . . 106
7. Mikhel’s excluded mitigation evidence. . . . . 108
8. Kadamovas’s future dangerousness. . . . . . . . 111
9. Nazi and anti-Semitism evidence.. . . . . . . . . 113
10. Kadamovas’s mitigating factors.. . . . . . . . . . 116
11. Lithuania’s abolition of the death penalty. . . 117
III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
UNITED STATES V. MIKHEL 11
BYBEE, Circuit Judge:
Between late 2001 and early 2002, defendants Iouri
Mikhel and Jurijus Kadamovas abducted, held hostage, and
killed five people, dumping each victim’s body in the New
Melones Reservoir outside Yosemite National Park. After a
five-month trial, a jury convicted them of several federal
crimes, including multiple counts of hostage taking resulting
in death under the Hostage Taking Act, 18 U.S.C. § 1203. As
summarized below, the evidence that Mikhel and Kadamovas
did these things—and did them without concern for their
victims’ suffering—was detailed, comprehensive, and in a
word, overwhelming.
In subsequent penalty-phase proceedings under the
Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3591 et
seq., the jury unanimously recommended that both defendants
be sentenced to death. Defendants now challenge their
convictions and death sentences on direct appeal to this court.
After extensive briefing and argument from the parties, and
our own careful review, we affirm.
I. BACKGROUND
A. The Hostage-Taking Conspiracy
Defendants are foreign nationals under the Hostage
Taking Act: Mikhel is Russian, and Kadamovas is
Lithuanian. Both lived in Los Angeles, California, during the
events underlying this case. Defendants were assisted at
various times by coconspirators Petro Krylov, Ainar
Altmanis, Aleksejus Markovskis, and Natalya Solovyeva.
Altmanis, Markovskis, and Solovyeva all pleaded guilty and
12 UNITED STATES V. MIKHEL
testified for the government. Krylov was tried and convicted
in a separate trial.
1. Death of Meyer Muscatel
In October 2001, Mikhel, Kadamovas, and Altmanis
discussed and rehearsed a plan to kidnap local real-estate
developer Meyer Muscatel. The plan called for Mikhel to
pose as a businessman interested in purchasing real estate.
To that end, Mikhel asked Muscatel to view a property with
him. Muscatel agreed and drove with Mikhel to the property
in question (actually Mikhel’s house), where Kadamovas and
Altmanis were waiting.
When Muscatel entered the house, Altmanis and
Kadamovas grabbed him. Altmanis bound Muscatel’s legs
with plastic ties, and Kadamovas handcuffed his arms behind
his back. Mikhel duct-taped Muscatel’s eyes and pistol-
whipped him in the head, drawing blood. Mikhel and
Kadamovas then took Muscatel’s wallet and credit cards and
questioned him about his finances. They attempted to
withdraw money from his bank account, but the bank froze
the account.
When Mikhel and Kadamovas determined they would get
no money out of Muscatel, they injected him with Dimedrol
(an antihistamine with sedative properties) and held him
down to the ground. Mikhel closed a plastic bag over
Muscatel’s head and pinched his nose shut, suffocating him
to death. Mikhel and Kadamovas then loaded Muscatel’s
body into Kadamovas’s van and drove to the New Melones
Reservoir. They carried his body to the edge of the Parrotts
Ferry Bridge and accidentally dropped it on a curb—leaving
blood stains—before tossing it into the reservoir. Kadamovas
UNITED STATES V. MIKHEL 13
later told his friend Markovskis that he had once thrown a
“fat Jew” (i.e., Muscatel) off a bridge. The incident,
Markovskis said, “was very funny” to Kadamovas.
2. Death of Rita Pekler
Following Muscatel’s death, Mikhel and Kadamovas set
their sights on kidnapping George Safiev, a wealthy Russian
businessman. First, they decided to abduct Safiev’s financial
advisor, Rita Pekler, to use as bait. In December 2001,
Kadamovas contacted Pekler pretending to be interested in
her advice on a real estate transaction. Kadamovas had
Pekler pick him up and drive him to a property he claimed he
was interested in buying (actually his home). Mikhel,
Altmanis, and Kadamovas’s friend Krylov were already
there; Mikhel was carrying a gun with a fake silencer, and
Altmanis had a stun gun.
When Pekler arrived, Mikhel restrained her and told her
that, if she brought Safiev to them, they would get her drunk
with vodka or inject her with Dimedrol and leave her
unharmed in a motel. Pekler told them she was pregnant and
afraid alcohol or drugs would harm the baby. Undeterred,
defendants persisted in trying to use her to lure Safiev. Pekler
eventually contacted Safiev, but he told her he was too busy
to meet. Shortly thereafter, Safiev left Los Angeles for
Russia. Mikhel and Kadamovas decided Pekler had outlived
her usefulness; they injected her with Dimedrol, strangled
her, and as with Muscatel, threw her body off the Parrotts
Ferry Bridge.
14 UNITED STATES V. MIKHEL
3. Death of Alexander Umansky
Later that same month, Krylov suggested abducting his
former boss, Alexander Umansky, who owned an automobile
shop. Mikhel posed as a customer who needed audio systems
installed in two cars and asked Umansky for a ride to one of
them. Umansky was excited about the opportunity and
agreed to pick up Mikhel. Mikhel directed Umansky to
Kadamovas’s house, where Kadamovas, Altmanis, and
Krylov already lay in wait—Kadamovas with a gun and
Altmanis with a stun gun. When Umansky arrived,
Kadamovas sat him on a chair, handcuffed his hands behind
him, and bound his legs with plastic ties. Mikhel and
Kadamovas then took Umansky’s keys, telephone, and wallet
and questioned him about his finances. Later, Mikhel and
Altmanis used Umansky’s debit card to withdraw money
from an ATM and were captured doing so on a surveillance
camera.
Umansky remained trapped in Kadamovas’s home for
three days, during which Mikhel and Kadamovas forced him
to call his brother and plead for money to secure his release.
Eventually, Mikhel and Kadamovas decided they no longer
needed Umansky alive. They sent Altmanis to buy weight
plates from a used sporting goods store. When Altmanis
returned, Mikhel shoved plastic bags in Umansky’s mouth,
duct-taped his mouth shut, and put a bag over his head, while
Kadamovas held him down and pinched his nose shut. When
these efforts proved ineffective, Mikhel and Altmanis twisted
a rope around Umansky’s neck and strangled him from
behind. Mikhel, Kadamovas, and Altmanis then tied a weight
plate around Umansky’s body and put it in Kadamovas’s van.
They drove to Mikhel’s house and—with the body still in the
van—had dinner with Mikhel’s girlfriend. After dinner, the
UNITED STATES V. MIKHEL 15
three of them drove to the New Melones Reservoir, where
they threw Umansky’s body off the Parrotts Ferry Bridge.
Mikhel and Kadamovas had previously sent the Umansky
family a ransom note demanding nearly $235,000. The
Umansky family contacted the FBI, which advised them to
pay just part of the ransom to give the kidnappers a reason to
keep Umansky alive. The Umansky family followed the
FBI’s advice and paid part of the ransom. Later, after
receiving a call threatening harm to other family members,
they paid the rest of the ransom money. An IRS investigator
traced how the ransom payments were laundered abroad
before being deposited in accounts held by Mikhel,
Kadamovas, and defendants’ business, Designed Water
World (a fish aquarium store).
4. Deaths of Nick Kharabadze and George Safiev
In January 2002, Mikhel and Kadamovas learned Safiev
was back in Los Angeles and decided to trap him through his
friend and business partner, Nick Kharabadze. They planned
for Kadamovas’s girlfriend, Solovyeva, to call Kharabadze
and tell him she had gotten his phone number from a friend
and wanted to meet him. Markovskis was part of the plan
and later testified that Mikhel and Kadamovas were in charge
and calling all the shots.
Solovyeva called Kharabadze and asked him to meet her
at what she said was a private club but was in fact Designed
Water World’s office. When Kharabadze arrived, Altmanis
and Markovskis were playing pool, Mikhel and Krylov were
drinking, and Kadamovas was standing behind a bar.
Kadamovas had a revolver hidden under the bar, and Mikhel
and Altmanis had guns concealed under their jackets.
16 UNITED STATES V. MIKHEL
Solovyeva asked Kharabadze to order her a drink, while
Krylov closed the outside door behind him. Mikhel then
handcuffed Kharabadze to a chair, took his keys, wallet, and
telephone, and explained they wanted him to help them trap
Safiev. At their direction, Kharabadze called Safiev and
convinced him to come to Designed Water World.
When Safiev entered Designed Water World, Mikhel,
Kadamovas, Altmanis, Krylov, and Markovskis converged on
him. Mikhel handcuffed Safiev and took his keys, wallet, and
telephone. Mikhel and Kadamovas then transported
Kharabadze and Safiev to Kadamovas’s house, where they
forced Safiev to call his business partner, Konstantinos
Tezhik, and beg him to transfer $940,000 to a foreign
account. Kharabadze and Safiev remained imprisoned in
Kadamovas’s house for four days. During this time,
Kadamovas recorded Safiev’s voice to use to extort more
money after he was dead. Kadamovas also told Markovskis
that he planned to continue abducting people and throwing
their bodies into the reservoir until he had $50 million, even
if it meant piling bodies up to the surface of the water.
After Mikhel confirmed receipt of the $940,000, he
decided Kharabadze and Safiev were no longer necessary.
He and the others got Kharabadze and Safiev drunk with
vodka and drove them to the New Melones Reservoir in two
cars. On the way, a policeman pulled them over for driving
too closely together. Mikhel exited his car and had a brief
conversation with the policeman, who sent him on his way.
Solovyeva later testified that Kadamovas said he would have
killed the policeman if he had seen the hostages in the car.
At the New Melones Reservoir, Mikhel killed Kharabadze
by placing a plastic bag over his head and tightening a plastic
UNITED STATES V. MIKHEL 17
tie around his throat. Altmanis tied a weight around
Kharabadze’s body and assisted in throwing it off the
Stevenot Bridge. Safiev had already been killed and thrown
into the reservoir in a similar fashion. Mikhel told Altmanis
that Safiev, like Pekler, had been difficult to kill because he
was “strong as a snake.”
Mikhel used Kharabadze’s and Safiev’s ATM cards to
withdraw money and was again captured on surveillance
cameras. Kadamovas then gave the ATM cards to his
associate, Vladimir Paniouchkine, who traveled to Germany
to withdraw more money. Mikhel used one of Safiev’s credit
cards to order about $9,000 in electronic equipment. In
addition, Mikhel called Tezhik in London and faxed him a
ransom note—which Safiev had signed before he
died—demanding another $4 million in ransom. Tezhik tape-
recorded his calls with Mikhel.
All in all, Mikhel and Kadamovas received over
$1 million in ransom money from the hostage-taking
conspiracy, which they spent on high-end cars, renovations
for their homes, lavish presents for their girlfriends, and
expensive vacations, among other things.
5. The FBI’s investigation
A father and son returning from a fishing trip discovered
Muscatel’s body near the Parrotts Ferry Bridge. Later,
Altmanis learned the FBI was investigating him, decided to
confess, and helped the FBI find the last four victims’ bodies.
The FBI wire-tapped Mikhel’s and Kadamovas’s phones and
recorded them discussing ransom money. The FBI also
secured data from their cellphones, which showed them
driving north on Highway 99 toward the New Melones
18 UNITED STATES V. MIKHEL
Reservoir on the days Muscatel, Pekler, Umansky,
Kharabadze, and Safiev died.1
The FBI searched Mikhel’s house and found extensive
physical evidence linking him and Kadamovas to the victims,
including the original $4 million ransom note for Safiev, a
record of Safiev’s and Kharabadze’s personal and financial
information, four sets of handcuffs, and plastic ties like those
found on the victims. Mikhel’s and Kadamovas’s
fingerprints were on many of these items, and Safiev’s and
Kharabadze’s DNA was on the handcuffs. The FBI also
found fourteen handguns, handgun parts, ammunition, a
silencer, an electric shock baton, a stun gun, and several
stolen or fraudulent passports.
The FBI searched Kadamovas’s two residences and found
additional evidence connected to the victims. At
Kadamovas’s house in Sherman Oaks, the FBI found several
weight plates (but no weight bars or other exercise
equipment) and an envelope with a phone number written on
it—the same number that defendants used to call the
1
After briefing in this appeal was complete, defendants filed a
supplemental brief claiming that the Supreme Court’s pending decision in
Carpenter v. United States, 137 S. Ct. 2211 (2017), may impact the
admissibility of their cellphone data. In Carpenter, the Court will address
whether the seizure of cellphone data pursuant to a court order under 18
U.S.C. § 2703, but without a warrant issued upon probable cause, violates
the Fourth Amendment. The government does not contest that the
cellphone data at issue here was seized in the same manner challenged in
Carpenter. But no matter how the Court rules in Carpenter, the decision
will have no impact on this case because the cellphone data only
corroborated other evidence. As discussed below, the evidence of
Mikhel’s and Kadamovas’s guilt was so overwhelming that even if we
thought it was error to admit the cellphone data, the exclusion of the
evidence would not have changed the verdicts.
UNITED STATES V. MIKHEL 19
Umansky family for ransom. At Kadamovas’s house in
Encino, the FBI found a distinctive dagger linked to
defendants’ money-laundering scheme, a handgun,
ammunition, and shoes with blood stains. The shoes matched
the shoeprints left in Muscatel’s blood on the Parrotts Ferry
Bridge. The carpet in Kadamovas’s house matched carpet
fibers retrieved from Kharabadze’s clothing.
B. The Escape Conspiracy and Mikhel’s Second Escape
Attempt
Following their arrests, Mikhel, Kadamovas, and Krylov
were detained at the Metropolitan Detention Center–Los
Angeles (“MDC”). Mikhel devised a plan by which he,
Kadamovas, Krylov, and others would smuggle tools into
their cells and bore holes through their cell walls to reach an
adjacent stairwell. Once in the stairwell, they would use a
hydraulic pump to push open the window’s bars, climb
through the window, and rappel down the side of the
building. A motorcycle gang would be waiting for them
outside and would spin off in different directions before
reuniting at a safe house. In accordance with the plan,
Mikhel successfully smuggled a veritable hardware store into
his cell, including hacksaw blades, wrenches, screwdrivers,
fishing line, paint, work gloves, bolt cutters, and a camcorder.
Kadamovas was originally housed elsewhere in the facility
but managed to change cells to be next to the stairwell
intended for the escape.
Mikhel invited fellow inmate Billy Parker to join the
escape conspiracy, offering him the necessary tools (for a
price) and warning him they would have to kill any guards
they met on their way out. Parker, however, informed MDC
officials. In Mikhel’s cell, officials found a large hole carved
20 UNITED STATES V. MIKHEL
in the wall and his cache of tools. In Krylov’s cell, they
found a smaller hole, hacksaw blades, and a screwdriver.
They did not find any evidence of tunneling or contraband in
Kadamovas’s cell. Nonetheless, there was extensive
evidence linking Kadamovas to the escape conspiracy, as
described in detail below.
After the first escape attempt, Mikhel was moved to a
high security section of San Bernardino County’s Central
Detention Center (“SB-CDC”). There, he was placed under
Special Administrative Measures and isolated from other
inmates. Despite these measures, Mikhel concocted a
detailed escape plan, which he outlined in a letter promising
$1 million to an alleged member of the Mexican Mafia in
exchange for help. Officials intercepted the letter, and a
deputy sheriff assigned to SB-CDC later testified that
Mikhel’s escape plan was very feasible.2
C. Procedural History
A grand jury indicted Mikhel and Kadamovas on one
count of Conspiracy to Take Hostages Resulting in Death
(18 U.S.C. § 1203), three counts of Hostage-Taking Resulting
in Death (18 U.S.C. § 1203), Conspiracy to Launder
Monetary Instruments (18 U.S.C. § 1956(h)), Conspiracy to
Escape from Custody (18 U.S.C. § 371), and Criminal
Forfeiture (18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853, and
28 U.S.C. § 2461(c)). The government filed a notice of intent
to seek the death penalty against both defendants.
2
Later, at the West Valley Detention Center, the measures taken to
secure Mikhel included blindfolding him and transporting him around the
facility in a wheelchair to prevent him from counting his steps to orient
himself.
UNITED STATES V. MIKHEL 21
The guilt phase of trial began in July 2006 and spanned
five months. The government’s case in chief was detailed
and thorough, including scores of witnesses who testified
over the course of more than thirty trial days. Defendants
initially rested their case after just three trial days, but the
district court permitted them to reopen their case when
Mikhel unexpectedly chose to testify. Mikhel testified on
direct for three days, at the end of which he refused to be
cross-examined. On Kadamovas’s motion, the district court
struck Mikhel’s testimony and instructed the jury to disregard
it. On January 16, 2007, the jury began its deliberations. The
very next day, it returned separate verdicts in each
defendant’s case, finding both defendants guilty on all counts.
The penalty phase began on January 24, 2007. The FDPA
requires the jury to make several findings before
recommending a sentence of death. Among other things, the
jury must find that at least one statutory aggravating factor
exists and that all aggravating factors proven by the
government “sufficiently outweigh” any mitigating factors
proven by defendants. 18 U.S.C. § 3593(e). The government
argued four statutory aggravating factors against both
defendants: (1) death during commission of another crime,
(2) procurement of offense by payment, (3) substantial
planning and premeditation, and (4) multiple killings. See
18 U.S.C. § 3592(c). The government also argued five non-
statutory aggravating factors against both defendants:
(5) future dangerousness, (6) contemporaneous convictions
for multiple offenses, (7) witness elimination, (8) emotional
suffering of the victims, and (9) victim impact. The
government’s penalty-phase case incorporated all of its guilt-
phase evidence. In addition, the government presented
several victim-impact witnesses and further evidence of
Mikhel’s escape attempts.
22 UNITED STATES V. MIKHEL
Mikhel proffered eighteen mitigating factors and
presented penalty-phase evidence regarding his upbringing,
mental health, and life in Russia, as well as several
videotaped interviews of his friends and family. Kadamovas
proffered nine mitigating factors and presented penalty-phase
evidence regarding statistical violence rates in prisons and the
former Soviet Union. The district court charged the jury on
February 13, 2007. Later the same day, after a brief three-
hour deliberation, the jury returned separate verdicts in each
defendant’s case. The jury unanimously found every
aggravating factor proposed by the government as to both
defendants. No juror found any mitigating factor as to either
defendant. And the jury unanimously recommended that both
defendants be sentenced to death. Accordingly, the district
court sentenced both defendants to death on each of the four
capital offenses. The court also sentenced them to twenty
years’ imprisonment on the remaining counts and ordered
over $1 million in forfeiture.
II. ANALYSIS
Defendants claim errors in both the guilt and penalty
phases of trial. We have had the benefit of extensive briefing
and oral argument in this case: the briefs totaled more than
1,700 pages, and the court heard more than three hours of oral
argument. The court granted generous extensions of time and
space to the parties for briefing; indeed, this direct appeal was
heard over ten years after the entry of judgment and fifteen
years after the crimes. We will address each claimed error in
turn.
UNITED STATES V. MIKHEL 23
A. The Guilt Phase
1. The Hostage Taking Act
Defendants were convicted and sentenced to death on one
count of conspiring to take hostages resulting in death and
three counts of hostage taking resulting in death under the
Hostage Taking Act, 18 U.S.C. § 1203. They seek to
overturn their convictions on grounds that the Hostage Taking
Act requires a nexus to “international terrorism” and that no
such nexus exists here. In the event the Act does not
require such a nexus, they claim it exceeds Congress’s
constitutionally enumerated powers and also violates the
Tenth Amendment. We review these questions of statutory
construction and constitutional law de novo. See United
States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012).
The United States is a party to the International
Convention Against the Taking of Hostages, Dec. 17, 1979,
T.I.A.S. No. 11081, 1316 U.N.T.S. 205 (“the Treaty”), which
binds its signatories to take “effective measures for the
prevention, prosecution and punishment of all acts of taking
of hostages as manifestations of international terrorism.”
Treaty, pmbl. The Treaty defines hostage taking as follows:
Any person who seizes or detains and
threatens to kill, to injure or to continue to
detain another person . . . in order to compel a
third party . . . to do or abstain from doing any
act as an explicit or implicit condition for the
release of the hostage commits the offence of
taking of hostages . . . within the meaning of
this Convention.
24 UNITED STATES V. MIKHEL
Id. art. 1(1). The Treaty, with limited exceptions, does not
apply where a hostage taking is committed within a single
nation, both the offender and victim are nationals of that
nation, and the offender is found within that nation. Id. art.
13.
Congress implemented the Treaty through the Hostage
Taking Act, which tracks the Treaty’s language:
(a) . . . [W]hoever, whether inside or outside
the United States, seizes or detains and
threatens to kill, to injure, or to continue to
detain another person in order to compel a
third person or a governmental organization to
do or abstain from doing any act as an explicit
or implicit condition for the release of the
person detained, or attempts or conspires to do
so, shall be punished by imprisonment for any
term of years or for life and, if the death of
any person results, shall be punished by death
or life imprisonment.
....
[(b)](2) It is not an offense under this section
if the conduct required for the offense
occurred inside the United States, each
alleged offender and each person seized or
detained are nationals of the United States,
and each alleged offender is found in the
United States, unless the governmental
organization sought to be compelled is the
Government of the United States.
UNITED STATES V. MIKHEL 25
18 U.S.C. § 1203. There are three elements to this crime:
“(1) a seizure or detention; (2) a threat to kill, injure, or
continue to detain; (3) with the purpose of compelling a third
person or governmental entity to act in some way or refrain
from acting.” United States v. Sierra-Velasquez, 310 F.3d
1217, 1220 (9th Cir. 2002). In addition, § 1203(b) requires
some international element, i.e., that the offense occurred
abroad, that the defendant is found abroad, that a defendant
or victim is a foreign national, or that the defendant sought to
compel something from the federal government.
Defendants’ interpretation of the Hostage Taking Act as
requiring proof of a nexus to international terrorism is both
infirm as a matter of statutory interpretation and foreclosed
by our prior decision in United States v. Lopez-Flores,
63 F.3d 1468 (9th Cir. 1995). The definition of a hostage-
taking offense in the Treaty and the Act makes no mention of
international terrorism. Defendants base their argument
instead on the Treaty’s preamble, which refers to “all acts of
taking of hostages as manifestations of international
terrorism.” Treaty, pmbl. (emphasis added). By its own
terms, the preamble’s reference to “international terrorism”
is illustrative only; it limits neither the Treaty nor Congress’s
implementing legislation.
Contrary to defendant’s argument, the statute’s legislative
history affirms that hostage taking is not limited to acts with
a nexus to international terrorism. See Lopez-Flores, 63 F.3d
at 1476 (quoting Legislative Initiatives Hearings, 98th Cong.,
2d Sess. 48–49 (1984) (statement of Victoria Toensing,
Deputy Assistant Attorney General) (“[T]he bill is not limited
to hostage-taking by terrorists, in keeping with the purpose of
the international Convention . . . .”)). Thus, in Lopez-Flores,
we held that the Act applied to alien smugglers who held
26 UNITED STATES V. MIKHEL
aliens for ransom. Id. at 1475–76. And in Sierra-Velasquez,
we rejected a narrow reading of Lopez-Flores and once again
upheld the conviction of alien smugglers. 310 F.3d at 1220
(“Lopez-Flores . . . does not limit hostage taking to the facts
of that case.”).
Nevertheless, defendants argue that the Supreme Court’s
more recent decision in Bond v. United States requires a
narrower reading of the Hostage Taking Act. 134 S. Ct. 2077
(2014) (“Bond II”). In Bond II, the Court held that Bond—a
microbiologist who had poisoned her husband’s lover by
spraying low-dosage toxic chemicals on her doorknob, car,
and mailbox—could not be convicted under the federal
Chemical Weapons Act. Id. at 2084–85. The statute, which
implemented the Chemical Weapons Convention,
criminalized the use of “chemical weapon[s].” Id. at 2085.
The Court considered the ordinary meaning of “chemical
weapons” and acknowledged that “the chemicals in this case
are not of the sort that an ordinary person would associate
with instruments of chemical warfare [i.e., the subject of the
underlying treaty].” Id. at 2090. For this reason, and given
the lack of any clear indication that Congress intended the
statute to reach purely local crimes, the Court refused to
“adopt a reading of [the Act] that would sweep in everything
from the detergent under the kitchen sink to the stain remover
in the laundry room.” Id. at 2091.
By contrast, Mikhel and Kadamovas’s conduct in
abducting and holding their victims for ransom fits squarely
within the Treaty and Hostage Taking Act and comports with
any ordinary understanding of a “hostage taking.” Moreover,
the Hostage Taking Act does not cover purely local conduct
but rather expressly requires some international component.
See 18 U.S.C. § 1203(b). Mikhel and Kadamovas’s offenses
UNITED STATES V. MIKHEL 27
not only met the Act’s requirements but had other
international contacts as well, further demonstrating an
appropriate federal interest in this case. For instance, Mikhel
and Kadamovas sent a ransom demand abroad and laundered
ransom money through foreign countries. We therefore
reaffirm, in accordance with our prior decisions in Lopez-
Flores and Sierra-Velasquez, that the Hostage Taking Act
does not require proof of a nexus to international terrorism.
This brings us to defendants’ constitutional argument. In
Lopez-Flores, we rejected challenges to the Hostage Taking
Act as unconstitutionally vague or as violating the Equal
Protection Clause, but we did not address the argument
defendants assert here—namely, that the Hostage Taking Act
exceeded Congress’s constitutionally enumerated powers and
violated the Tenth Amendment. Lopez-Flores, 63 F.3d at
1473–75. In this regard, we are persuaded by the Second
Circuit’s reasoning in United States v. Lue, which rejected a
similar argument and held that the Act was a valid exercise of
Congress’s power under the Necessary and Proper Clause
together with the Treaty Power. 134 F.3d 79, 82–85 (2d Cir.
1998).
The Constitution grants the President the “Power, by and
with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur.” U.S.
CONST. art. II, § 2, cl. 2. It also grants Congress the power
“[t]o make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.” U.S.
CONST. art. I, § 8, cl. 18. In Missouri v. Holland, the
Supreme Court held that, if a treaty is a valid exercise of the
President’s Treaty Power, then Congress’s statute
28 UNITED STATES V. MIKHEL
implementing that treaty is valid “as a necessary and proper
means to execute the powers of the Government.” 252 U.S.
416, 432 (1920). We and other courts have commonly
understood Holland to mean that the Necessary and Proper
Clause grants Congress broad authority to enforce our
country’s treaty obligations by statute. See, e.g., United
States v. Shi, 525 F.3d 709, 721 (9th Cir. 2008); United States
v. Rodriquez-Camacho, 468 F.2d 1220, 1222 (9th Cir. 1972).
Although this broad reading of the Necessary and Proper
Clause has been criticized and debated, see, e.g., Bond II,
134 S. Ct. at 2098–102 (Scalia, J., concurring), the Supreme
Court has never undertaken to clarify or correct our
understanding. We are thus bound by our prior cases.
As the Second Circuit held in Lue, there is no question the
Treaty at issue here is well within the President’s Treaty
Power. 134 F.3d at 83 (“Whatever the potential outer limit
on the treaty power of the Executive, the Hostage Taking
Convention does not transgress it.”). Furthermore, there can
be little question that the Hostage Taking Act fulfills our
country’s obligation under the Treaty. The Hostage Taking
Act tracks the Treaty’s language in all material respects,
compare 18 U.S.C. § 1203(a), with Treaty, art. I, and clearly
bears a rational relationship to the Treaty, see United States
v. Comstock, 560 U.S. 126, 134 (2010) (“[I]n determining
whether the Necessary and Proper Clause grants Congress the
legislative authority to enact a particular federal statute, we
look to see whether the statute constitutes a means that is
rationally related to the implementation of a constitutionally
enumerated power.”); United States v. Santos-Riviera,
183 F.3d 367, 373 (5th Cir. 1999) (“Congress rationally
concluded that a hostage taking within our jurisdiction
involving a noncitizen is sufficiently likely to involve matters
implicating foreign policy or immigration concerns as to
UNITED STATES V. MIKHEL 29
warrant a federal criminal proscription.”); Lue, 134 F.3d at 84
(“The [Hostage Taking] Act here plainly bears a rational
relationship to the Convention.”). Accordingly, the Hostage
Taking Act was a valid exercise of Congress’s power under
the Necessary and Proper Clause together with the Treaty
Power. See Holland, 252 U.S. at 432.3
Defendants’ independent Tenth Amendment challenge is
unavailing. The Tenth Amendment provides that “[t]he
powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” U.S. CONST. amend. X. The
Tenth Amendment is not a substantive, external constraint on
Congress’s power. Rather, it reflects a “truism,” “declaratory
of the relationship between the national and state
governments.” United States v. Darby, 312 U.S. 100, 124
(1941). The Tenth Amendment summarizes and, thus,
reinforces the relationship between the United States—whose
powers are limited and enumerated—and the states whose
powers are general, except as limited by the U.S. Constitution
and their own constitutions. Defendants’ argument that the
states have exclusive authority to punish hostage taking
depends on their ability to show one of two things: either that
the Constitution has not conferred any authority to Congress
to enact the Hostage Taking Act or, more improbably, that the
Constitution actually confers exclusive authority over hostage
taking to the states. The former they cannot show, because
“if Congress acts under one of its enumerated powers”—as
we have concluded it did here—then “there can be no
3
In light of this conclusion, we need not consider whether there might
be other sufficient constitutional bases for the Hostage Taking Act as well,
such as the Define and Punish Clause, U.S. CONST. art. I, § 8, cl. 10, or the
Commerce Clause, id. art. I, § 8, cl. 3.
30 UNITED STATES V. MIKHEL
violation of the Tenth Amendment.” United States v. Jones,
231 F.3d 508, 515 (9th Cir. 2000). As to the latter,
defendants have no evidence. See Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528, 550 (1985) (“With rare
exceptions, . . . the Constitution does not carve out express
elements of state sovereignty that Congress may not employ
its delegated powers to displace.”). Although California
undoubtedly has its own authority to punish defendants, that
only confirms the United States and California’s concurrent
jurisdiction—an example of the dual sovereignty doctrine. It
does not prove the exclusive jurisdiction of California. In
short, the Hostage Taking Act is consistent with Congress’s
“federalism-based respect for state and local authority in this
area of law enforcement.” Lopez-Flores, 63 F.3d at 1473.
Finally, defendants argue that, even if the Hostage Taking
Act does not itself exceed Congress’s power, the subsequent
amendment to the Act authorizing the death penalty does
exceed Congress’s power. The argument is without merit. If
Congress has the power to criminalize conduct, it also has the
power to prescribe a constitutionally permissible punishment
for that conduct. See Mistretta v. United States, 488 U.S.
361, 364 (1989) (“Congress, of course, has the power to fix
the sentence for a federal crime.”). Indeed, the Treaty that the
Hostage Taking Act implements requires its signatories to
make hostage taking “punishable by appropriate penalties
which take into account the grave nature of those offences.”
Treaty, art. II. The Treaty is not self-executing, see Medellin
v. Texas, 552 U.S. 491, 504–05 & n.2 (2008); it neither
prescribes nor forbids any particular punishment but
explicitly leaves it to each signatory to do so. Congress’s
amendment authorizing the death penalty for hostage takings
UNITED STATES V. MIKHEL 31
resulting in death was equally within its constitutional power
under the Necessary and Proper Clause as the original Act.4
2. Defendants’ recusal motion
Defendants claim 28 U.S.C. § 455(a) required Judge
Tevrizian to recuse himself after he applied to a local
screening committee for the position of United States
Attorney for the Central District of California—the same
office prosecuting this case. “We review the denial of a
recusal motion for an abuse of discretion.” United States v.
Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010).
On December 28, 2006, Judge Tevrizian held a status
conference and informed the parties that a search committee
had asked him to submit his name for the position of United
States Attorney for the Central District of California and that
he had done so:
There’s been a lot of rumors floating around
here. You know, I had announced that I’m
4
We acknowledge the Russian Federation’s amicus brief in support
of defendants but are unpersuaded by its arguments. As explained above,
Mikhel’s and Kadamovas’s conduct fell squarely within the Hostage
Taking Act, and we have previously held that the Act does not violate the
Equal Protection Clause. Lopez-Flores, 63 F.3d at 1473; see also Lue,
134 F.3d at 85–87. The Federation’s other argument—that the death
penalty violates the Eighth Amendment—is not for us to decide. See
United States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007) (“Whether
contemporary values dictate a different answer [to the constitutionality of
the death penalty] today is for the Supreme Court to decide; the Eighth
Amendment does not authorize this court to overrule Supreme Court
precedent ‘even where subsequent decisions or factual developments may
appear to have significantly undermined the rationale for [an] earlier
holding.’”).
32 UNITED STATES V. MIKHEL
going to retire just as soon as this case is over
and join a judicial arbitration mediation
service. A couple of weeks ago I received a
telephone call from a search committee that’s
looking to replace the United States Attorney
and they asked me to submit my name for that
position. The search committee is not
associated with the Justice Department nor is
it associated with the administration. They
make recommendations and they asked me to
submit my name. Whether anything comes of
it I don’t know, but I thought I should disclose
this to you. I’m not doing it for any financial
gain, because I made it very clear that if I do
take the position that I would do it for a dollar
a year, because of the fact that I’m on a
federal pension, judicial pension, and I don’t
believe in double dipping. So I do make this
disclosure to you. Again, I don’t know if
anything is going to come of it. I haven’t
been contacted by the administration. I
haven’t been contacted by anybody in
Washington.
Neither side made any objection.
Trial proceeded, and the jury returned guilty verdicts a
few weeks later. It was not until January 29, 2007, after the
government had rested its case in chief in the penalty phase,
that defendants moved for recusal. Judge Tevrizian denied
defendants’ motion the next day, stating that he had
withdrawn his name from consideration and that his
application had never progressed past a preliminary stage:
UNITED STATES V. MIKHEL 33
I advised and disclosed to all parties on the
record that I was contacted by a representative
of the local screening committee to apply for
the position of United States Attorney for the
Central District of California. None of the
parties or their counsel ever objected.
I submitted a form application and was
interviewed by the screening committee only.
I have never been interviewed by anyone of
the Department of Justice o[r] White House
counsel’s office. In fact, I never directly
submitted my application to the Department
of Justice or White House counsel’s office. It
was submitted only to the local screening
committee, who may have passed it on.
Again, none of the defense counsel or the
defendants objected when I made the
disclosure on the record weeks ago that I was
planning to apply for the position.
....
Yesterday I withdrew my name for
consideration for the position of United States
Attorney by notifying the local committee.
The only personal contact I had with either the
Department of Justice or the White House
counsel’s office was over the telephone,
yesterday, to inform them that I had
withdrawn my name from consideration.
34 UNITED STATES V. MIKHEL
I was also informed that my application
was never considered on the merits by the
Department of Justice or White House
counsel’s office.
Defendants filed a petition for mandamus in our court. We
denied the petition, noting that they had “arguably filed their
motion to recuse the district judge too late.”
“It is well established in this circuit that a recusal motion
must be made in a timely fashion.” E. & J. Gallo Winery v.
Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992).
“While there is no per se rule that recusal motions must be
made at a fixed point in order to be timely, such motions
should be filed with reasonable promptness after the ground
for such a motion is ascertained.” Id. (citation omitted)
(quotation marks omitted). Where “unexplained delay” in
filing a recusal motion “suggests that the recusal statute is
being misused for strategic purposes,” the motion will be
denied as untimely. Id. at 1296; see also United States v.
Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997); Davies v.
Comm’r, 68 F.3d 1129, 1131 (9th Cir. 1995).
Defendants discovered the alleged grounds for recusal on
December 28, 2006, but nevertheless waited until January 30,
2007, to file their motion. Although a delay of a little over a
month would not always, or even ordinarily, doom a motion
for recusal, defendants’ delay here renders their motion
untimely. Defendants were clearly notified that Judge
Tevrizian had put himself in the running to be United States
Attorney, yet they withheld their motion while trial was
ongoing and waited to file until after the jury’s verdicts
against them, and after the government rested its penalty-
UNITED STATES V. MIKHEL 35
phase case.5 See Rogers, 119 F.3d at 1380. We see “a
heightened risk” that defendants used a recusal motion “for
strategic purposes.” Preston v. United States, 923 F.2d 731,
733 (9th Cir. 1991). Defendants’ recusal motion asked Judge
Tevrizian to “declare a mistrial of the penalty phase, and then
recuse himself from presiding further,” but did not seek a
mistrial as to the guilt phase. Defendants likely recognized
that the evidence of guilt was overwhelming and, rather than
delay the inevitable, may have tried to throw a wrench into
the penalty phase in the hope that the government would
prefer accepting life sentences to conducting a fresh penalty
phase.
Defendants argue that whether they timely moved for
recusal is neither here nor there because § 455(a) and Canon
3C(1) of the Code of Judicial Conduct place the duty to
recuse on the judge. We have rejected this same argument
before. E. & J. Gallo Winery, 967 F.2d at 1295. “In fact,
28 U.S.C. § 144 expressly requires that a motion to disqualify
must be ‘timely,’ and we have judicially required as much
under 28 U.S.C. § 455.” Rogers, 119 F.3d at 1380.
Enforcing the timeliness of a recusal motion is necessary to
prevent litigants from using § 455(a) for strategic purposes.
Defendants cannot avoid their timeliness problem by putting
5
Defendants argue they did not become aware of the need for recusal
until late January 2007 when they read a newspaper article suggesting that
Judge Tevrizian was among the frontrunners for the position. This
argument is meritless. Judge Tevrizian’s statement in December 2006
clearly indicated he had submitted his name to the local screening
committee for the position. His disclosure was straightforward and
sufficient to advise all parties of the issue. Defendants’ alleged basis for
recusal did not turn on whether they thought Judge Tevrizian’s application
might be successful.
36 UNITED STATES V. MIKHEL
the onus of recusal on the district court. They filed their
recusal motion too late.
In addition to its untimeliness, defendants’ recusal motion
fails on its merits. Under § 455(a), “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably
be questioned.” 28 U.S.C. § 455(a). “The goal of section
455(a) is to avoid even the appearance of partiality.” United
States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (quoting
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
860 (1988)). Thus, we “ask whether a reasonable person with
knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned.” Id. (quotation
marks omitted). “The reasonable person is not someone who
is hypersensitive or unduly suspicious, but rather is a well-
informed, thoughtful observer.” Id. (quotation marks
omitted). “The standard must not be so broadly construed
that it becomes, in effect, presumptive, so that recusal is
mandated upon the merest unsubstantiated suggestion of
personal bias or prejudice.” Id. (quotation marks omitted).
Here, Judge Tevrizian promptly and clearly disclosed the
alleged grounds for recusal to the parties; his only contact
was with a local screening committee; he stated he would not
seek remuneration for the position, and there was no
opportunity for him to negotiate salary, bonuses, or the like;
his application was never considered on its merits by the
Department of Justice or White House Counsel’s office; and
he immediately withdrew his application when defendants
filed their motion. The fact that Judge Tevrizian immediately
withdrew his application is particularly significant. If
defendants had made a timely motion and Judge Tevrizian
had not immediately withdrawn his application, this issue
UNITED STATES V. MIKHEL 37
might have presented a closer question. As it is, we cannot
say that a reasonable person with knowledge of all the facts
would have questioned Judge Tevrizian’s impartiality.6
3. Batson challenge
Defendants made a Batson challenge to the government’s
peremptory strike of Juror 285, a black woman. “Purposeful
racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the
protection that a trial by jury is intended to secure.” Batson
v. Kentucky, 476 U.S. 79, 86 (1986). Ruling on a Batson
challenge requires a three-step framework:
First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. Second, if that
showing has been made, the prosecution must
offer a race-neutral basis for striking the juror
in question. Third, in light of the parties’
submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.
United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.
2015) (quoting Miller-El v. Cockrell, 537 U.S. 322, 328–29
(2003)). Ordinarily, we review the district court’s ruling on
a Batson challenge for clear error. See Snyder v. Louisiana,
6
Defendants also contend that Judge Tevrizian’s failure to recuse
himself violated their rights under the Due Process Clause. Because there
was no abuse of discretion under § 455(a), there was no due-process error.
See Exxon Corp. v. Heinze, 32 F.3d 1399, 1403 (9th Cir. 1994) (noting
that § 455(a) is more stringent than due process).
38 UNITED STATES V. MIKHEL
552 U.S. 472, 478 (2008). We have applied de novo review,
however, where the court improperly applied the three-step
framework. See, e.g., Alvarez-Ulloa, 784 F.3d at 565. We
need not decide which standard of review applies here
because defendants’ challenge fails even under de novo
review. We acknowledge, however, that under either
standard we are at some disadvantage because we are
assessing a cold record and cannot, as did the trial judge and
counsel, take measure of Juror 285’s visage, inflection, or
body language. See Snyder, 552 U.S. at 483 (“We recognize
that a retrospective comparison of jurors based on a cold
appellate record may be very misleading when alleged
similarities were not raised at trial.”).
The jury pool consisted of 270 potential jurors, and
each side had twenty-eight peremptory challenges. The
government used its thirteenth peremptory challenge against
Juror 285. Defendants made a Batson challenge, and the
government responded that its reasons for striking Juror 285
were that (1) her father was in prison on drug charges and
(2) she was lukewarm on the death penalty. Defense counsel
replied that “[e]very juror that the government has kicked has
been a juror of color, whether it’s been black, Hispanic, or
Asian.” When the government correctly pointed out that the
last juror it had struck was white, the district court stated
there was “no Batson challenge” and gave no further
consideration to the issue. Jury selection continued—with the
government leaving ten peremptory challenges unexercised—
and defendants never renewed their Batson challenge. The
final jury consisted of five white jurors, three Hispanic jurors,
two black jurors, one Asian juror, and one multi-race juror.
The parties agree that the government’s proffered reasons
for its peremptory challenge to Juror 285 mooted step one and
UNITED STATES V. MIKHEL 39
satisfied step two of the Batson analysis. Only step three is
at issue. “[A]t the third step, the trial court must decide not
only whether the reasons stated are race-neutral, but whether
they are relevant to the case, and whether those stated reasons
were the prosecutor’s genuine reasons for exercising a
peremptory strike, rather than pretexts invented to hide
purposeful discrimination.” Green v. LaMarque, 532 F.3d
1028, 1030 (9th Cir. 2008). “The defendant need not prove
that all of the prosecutor’s race-neutral reasons were
pretextual, or even that the racial motivation was
‘determinative.’” Currie v. McDowell, 825 F.3d 603, 605
(9th Cir. 2016). “Instead, to prove a Batson violation, the
defendant must demonstrate that ‘race was a substantial
motivating factor’ in the prosecutor’s use of the peremptory
strike.” Id. at 606. “It is true that peremptories are often the
subjects of instinct, and it can sometimes be hard to say what
the reason is. But when illegitimate grounds like race are in
issue, a prosecutor simply has got to state his reasons as best
he can and stand or fall on the plausibility of the reasons he
gives.” Miller-El v. Dretke, 545 U.S. 231, 252 (2005)
(citation omitted).
We consider first the government’s proffered reasons for
striking Juror 285 vis-à-vis its other peremptory strikes.
“Comparative juror analysis is a useful tool at Batson step
three and failure to strike similarly situated venire members
can ground a conclusion that purposeful discrimination
occurred.” Alvarez-Ulloa, 784 F.3d at 567 (citation omitted).
Defendants highlight Juror 285’s juror questionnaire, on
which she wrote “I am neither for or against the death
penalty.” She explained: “[T]he death penalty to me is no
joke. [L]ife to me is a gift so when it come[s] to taking
someone’s life a lot of things need to be tak[en] into
consideration.” In response to a question asking whether she
40 UNITED STATES V. MIKHEL
felt the death penalty was used too often, too seldomly, or
randomly, she wrote: “[I]f people had any concious [sic] as
to what would happen if they did the wrong, maybe even
getting the death penalty, they may think twice about what
they are about to do.” When asked whether her views would
cause her “substantial difficulty in voting for death as the
appropriate penalty,” she checked “No.”
Although these written responses suggested Juror 285
would have been willing to vote for the death penalty under
appropriate circumstances, her oral responses during voir dire
demonstrated far greater hesitance:
[Government]: . . . . Ma’am, in the penalty
phase, depending on the evidence as you
heard it, could you consider either
punishment, either life imprisonment or the
death penalty?
[Juror 285]: I can’t consider it right now
because I don’t know what it is.
[Government]: I’m not asking—
[Juror 285]: And I can’t base my decision on
something that I don’t know, so I can’t answer
that question for you.
[Government]: Absolutely. Could you just
consider the evidence presented by both
sides?
[Juror 285]: Yes, ma’am.
UNITED STATES V. MIKHEL 41
Juror 285’s hesitant responses during voir dire—particularly
her interruption of the prosecutor and unwillingness to give
an unequivocal answer to whether she could consider
imposing the death penalty—would understandably give
pause to any prosecutor trying a death penalty case. This
concern was reflected in the prosecutor’s extemporaneous
response to the challenge: “This has nothing to do with the
color of anybody’s skin. It has totally to do with their
attitudes concerning the death penalty and their ability to be
a fair juror and render the verdict that we think is appropriate
in this case.”
Defendants contend Jurors 67 and 84 (whom the
government did not strike) were as hesitant or more hesitant
to impose the death penalty as Juror 285. Juror 67, a
Hispanic male, stated he was “fairly neutral” on the death
penalty and wrote in his questionnaire that the death penalty
is used “unfairly” because “a great deal depends on your
ability to hire a competent lawyer.” But when the
government asked him during voir dire whether he could
consider imposing the death penalty, Juror 67 gave an
unequivocal response: “Certainly.” This prevents him from
being an apposite comparison to Juror 285.
Juror 84, a white male, wrote on his juror questionnaire
that he was neither 100 percent for nor against the death
penalty and that, “depending on the crime,” “the death
penalty should be a possible penalty.” He indicated the death
penalty is used “fairly” and is generally reserved “for the
most terrible crimes.” Although defendants correctly quote
his statement that he “really hate[d] to see anybody put to
death,” they ignore the remainder of his response: “[B]ut I
can see the reason for it in today’s society.” When asked if
he could consider imposing the death penalty, Juror 84
42 UNITED STATES V. MIKHEL
confirmed, “I believe so, yes.” Like Jurors 67 and 84, the
other jurors highlighted in defendants’ briefs all affirmed they
could consider imposing the death penalty—which is
precisely what Juror 285 did not do. In short, comparative
analysis does not show that the government’s concern over
Juror 285’s willingness to impose the death penalty was
pretextual.
There is less merit to the government’s other stated reason
for striking Juror 285: that her father was in prison on drug
charges. Juror 285 stated her “dad ha[d] gone to jail on drug
related charges” but that this would not influence her
decisions. Some non-stricken jurors also had family in prison
or had been charged with crimes themselves. Juror 67 had
pleaded guilty to a DUI, and Juror 8, an Asian male, had
pleaded guilty to misdemeanor assault. It is unclear whether
either juror was incarcerated, but the government apparently
did not follow up with them on the issue. That said, Juror
67’s father and cousin were both police officers, and Juror 8
wrote in his questionnaire that he “believe[d] in the death
penalty” and that it was “used fairly.”
Somewhat more troubling, Juror 39, a white male, had a
son who was imprisoned after pleading guilty to second-
degree murder. Juror 39 attested this would not influence his
decisions, but when asked whether the incident “left a bad
taste in [his] mouth regarding the criminal justice system[,]”
he responded “[t]hat’s a hard one for me to answer . . . .” He
then provided a lengthy explanation, exhibiting frustration
with his son for accepting a plea bargain without consulting
him and with the district attorney for charging his son with
first-degree murder rather than manslaughter. On the other
hand, Juror 39 represented that he had served on several
juries, all of which went to verdict. This provided a powerful
UNITED STATES V. MIKHEL 43
reason for the government not to strike Juror 39: a prosecutor
might assume that, if a prospective juror has served on
several juries that all reached a verdict, the juror is unlikely
to be a defense-friendly holdout during deliberations.
On balance, even if the government’s explanation about
Juror 285’s father’s criminal history seems weak, the
comparative analysis here provides little evidence of
discriminatory intent, particularly given the government’s
genuine and compelling reason for striking Juror 285 for
being lukewarm on the death penalty, and possible reasons
for not striking Jurors 8, 39, and 67 despite their criminal-
history responses. Furthermore, although the government
applied six of its eighteen exercised peremptory challenges to
black jurors, there were two black jurors on the final jury and
two black jurors as alternates. The government accepted this
outcome, leaving ten peremptory challenges unexercised.
Moreover, the final jury’s composition fairly resembled the
entire jury pool, with white jurors actually making up a
smaller percentage of the jury than they did of the pool. After
careful review, we cannot say defendants have met their
burden of demonstrating race was a “substantial motivating
factor” in the government’s peremptory strike of Juror 285.
Currie, 825 F.3d at 606.
4. The use of an anonymous jury
Empaneling an anonymous jury is permissible only if
“(1) there is a strong reason for concluding that it is necessary
to enable the jury to perform its factfinding function, or to
ensure juror protection; and (2) reasonable safeguards are
adopted by the trial court to minimize any risk of
infringement upon the fundamental rights of the accused.”
United States v. Shryock, 342 F.3d 948, 971 (9th Cir. 2003).
44 UNITED STATES V. MIKHEL
Defendants did not object to empaneling an anonymous jury,
and they do not challenge the district court’s determination
that an anonymous jury was necessary to ensure juror
protection. Rather, they claim specific precautions—a
cautionary instruction on the reasons for juror anonymity and
the disclosure of potential jurors’ names and addresses to
defense counsel—were required to minimize the risk of
prejudice to their Fifth Amendment right to a presumption of
innocence and Sixth Amendment right to an impartial jury.
As defendants raised neither issue below, we review for plain
error.7 See United States v. Mitchell, 502 F.3d 931, 967 (9th
Cir. 2007).
First, the district court took reasonable precautions to
safeguard defendants’ Fifth Amendment right to a
presumption of innocence. The district court did not instruct
the jury on the reasons for their anonymity but simply
informed them they would be referred to by number rather
than name. The questionnaire potential jurors completed
stated their information would “be kept confidential” and that
“[n]either your identities nor your answers will be released to
the general public or the media.” In short, the court treated
the jurors’ anonymity as routine and suggested through the
questionnaires that it was concerned about their privacy and
unwanted media attention. The court also repeatedly
instructed the jury that defendants were presumed innocent,
further mitigating any potential prejudice in this regard.
7
Plain error requires “(1) error, (2) that is plain, and (3) that affect[s]
substantial rights. If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466–67
(1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993))
(quotation marks omitted).
UNITED STATES V. MIKHEL 45
Although we upheld empaneling an anonymous jury in
Shryock, where the jury was given a pretextual reason for
anonymity, we did not say that giving a pretextual reason was
a necessary precaution. Simply treating anonymity as a
routine procedure and offering neutral justifications focused
on juror confidentiality also sufficiently guard against
prejudice. United States v. Fernandez, 388 F.3d 1199, 1245
(9th Cir. 2004) (collecting cases). Indeed, “the generally
accepted practice for minimizing prejudice . . . is to downplay
(not accentuate) the significance of the juror anonymity
procedure.” United States v. Ochoa-Vasquez, 428 F.3d 1015,
1037 (11th Cir. 2005). Had the district court done what
defendants now contend was required and given a cautionary
instruction on anonymity, the instruction might have drawn
more attention to anonymity and led jurors to speculate on the
subject. There was no error, let alone plain error, in failing to
give a sua sponte cautionary instruction on the reasons for
anonymity.
Second, the district court took reasonable precautions to
safeguard defendants’ Sixth Amendment right to an impartial
jury. As we recognized in Shryock, “the use of an
anonymous jury may interfere with defendants’ ability to
conduct voir dire and to exercise meaningful peremptory
challenges, thereby implicating defendants’ Sixth
Amendment right to an impartial jury.” 342 F.3d at 971.
Moreover, 18 U.S.C. § 3432 requires a “list of the veniremen
. . . stating the place of abode of each venireman” to be
provided to a capital defendant, unless “the court finds by a
preponderance of the evidence that providing the list may
jeopardize the life or safety of any person.” Defendants do
not dispute the district court’s finding that disclosing jurors’
identifying information would have jeopardized their lives or
safety. Instead, defendants argue it was plain error for the
46 UNITED STATES V. MIKHEL
court not to sua sponte disclose potential jurors’ identities to
defense counsel under a protective order.
The district court sufficiently safeguarded defense
counsel’s ability to conduct voir dire by providing defendants
with an eleven-page questionnaire for each potential juror
detailing age, marital status, city of residence, employment
history, and education, among other things. None of our
cases require, or even suggest, that providing potential jurors’
names and addresses to defense counsel is necessary in
circumstances such as these. Nor does § 3432 require
disclosing jurors’ identifying information to counsel when the
“life or safety” exception applies, as it undisputedly did here.8
The district court committed no error, and certainly no plain
error, in empaneling the anonymous jury as it did. See United
States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.
2011) (an error “cannot be plain where there is no controlling
authority on point”).
5. Right to a public trial
Defendants claim the district court’s exclusion of Armen
Harutiunian from trial violated their Sixth Amendment right
to a public trial. Harutiunian attended Mikhel’s last day of
testimony on January 5, 2007. He had been released from
federal prison earlier that same day. He had a visible
Armenian gang tattoo on his neck, told courtroom staff he
8
Defendants do assert that § 3432 required the district court to find
by a preponderance of the evidence that disclosing jurors’ identities to
counsel would have jeopardized jurors’ safety. The statute has no such
requirement; it refers to defendants, and the district court properly made
its finding as to defendants. Once the court made this finding, it was not
required by statute to disclose jurors’ identifying information to either
defendants or their counsel.
UNITED STATES V. MIKHEL 47
was a “friend” or “fan” of Mikhel, and was observed
behaving in a manner that was “intimidating in nature.” The
next week, the district court informed the parties that
Harutiunian would be barred from reentering the courtroom
going forward. Neither defendant objected, and neither
defendant gave any indication of an acquaintance with
Harutiunian. There is also no evidence Harutiunian ever
attempted to attend the trial again. Because defendants did
not object to the exclusion below, we review for plain error.
See Mitchell, 502 F.3d at 967.
“The right to a public trial entitles a criminal defendant at
the very least . . . to have his friends, relatives and counsel
present, no matter with what offense he may be charged.”
United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012)
(quotation marks omitted). “Nonetheless, in some
circumstances, exclusion of members of the public from a
judicial proceeding does not implicate the constitutional
guarantee.” Id. To determine whether a closure implicates
the Sixth Amendment, we look to whether the closure
affected the values undergirding the right to a public trial,
including ensuring fair proceedings, reminding the prosecutor
and judge of their grave responsibilities, discouraging
perjury, and encouraging witnesses to come forward. Id.
Nothing in the record here suggests Harutiunian’s exclusion
had any effect on these values, particularly given his lack of
any apparent connection to defendants or the case and the
absence of any evidence that he later sought readmittance to
the courtroom. The exclusion did not implicate defendants’
constitutional rights. The district court therefore did not err,
let alone plainly err, by excluding Harutiunian.
48 UNITED STATES V. MIKHEL
6. “Reasonable doubt” instruction as to guilt
Defendants challenge the district court’s use of our
circuit’s model “reasonable doubt” instruction in the guilt
phase.9 The parties dispute whether defendants preserved the
objection. We need not resolve that dispute because the
instruction was not erroneous even under de novo review.
Our model instruction provides that a “reasonable doubt
is a doubt based upon reason and common sense and is not
based purely on speculation.” Model Crim. Jury Instr. 9th
Cir. 3.5. Defendants argue this misstates the law: in their
view, a jury can use speculation to find a “reasonable doubt”
in favor of the accused. Defendants are incorrect. “[D]oubt
that does not rise above pure speculation is not reasonable.”
Ramirez v. Hatcher, 136 F.3d 1209, 1212–13 (9th Cir. 1998)
(citing Victor v. Nebraska, 511 U.S. 1, 17 (1994)); cf. United
States v. Ramirez, 714 F.3d 1134, 1138 (9th Cir. 2013) (“The
term ‘speculate’ has a vaguely pejorative cast; when judges
use it, they generally refer to inferences that are irrational or
impermissible.”). Moreover, we have repeatedly upheld the
model instruction. See, e.g., United States v. Alcantara-
Castillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015); United
States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006). There
was no error in using the model instruction in the guilt phase.
7. Right to two counsel under 18 U.S.C. § 3005
Under 18 U.S.C. § 3005, a capital defendant has a right to
two counsel, at least one of whom is “learned in the law
9
We address defendants’ challenge to the district court’s use of the
same instruction in the penalty phase in our discussion of that phase
below.
UNITED STATES V. MIKHEL 49
applicable to capital cases.” Four years before trial, the
district court appointed Richard Callahan and Dale Rubin to
defend Mikhel and Marcia Brewer and Richard Lasting to
defend Kadamovas. Rubin and Lasting both had prior
experience in capital cases.
Mikhel claims the district court violated § 3005 by
allowing trial to proceed for three days while one of his
attorneys, Callahan, was absent. In the second week of trial,
Callahan fell down the stairs in his home and suffered serious
head injuries. He was unable to appear in court the next day,
and Rubin asked for a continuance. The government
proposed instead that the parties proceed with examining live
foundational witnesses—subject to defendants being able to
recall those witnesses later—and with playing videotaped
deposition testimony. The court adopted the government’s
plan.
Three days later, Rubin determined Callahan would not
be able to return for at least another week and again requested
a continuance. The court granted first a one-week
continuance and then an additional two weeks. Mikhel
concedes that when trial resumed “Callahan had sufficiently
recovered from his injuries to participate in the trial.”
Ultimately, Callahan only missed three trial days, during
which the government presented six live foundational
witnesses and the videotaped deposition testimony of three
substantive witnesses. Defendants chose not to recall any of
the live witnesses for further cross-examination.
Mikhel does not cite, and we have not found, any
authority addressing whether counsel’s brief absence from
trial may violate § 3005. The statute neither states nor
implies that two counsel must be present in the courtroom
50 UNITED STATES V. MIKHEL
every day of trial, and we will not read the statute “so as to
put in what is not readily found there.” United States v.
Hood, 343 U.S. 148, 151 (1952). Moreover, we have
previously held that “the purpose of the two-attorney right is
to reduce the chance that an innocent defendant would be put
to death because of inadvertence or errors in judgment of his
counsel.” United States v. Dufur, 648 F.2d 512, 515 (9th Cir.
1980) (quotation marks omitted). That purpose is not
undermined by one attorney’s de minimis absence from
trial.10 To the extent Mikhel wishes to argue that his counsel
failed to adequately represent him, that is an ineffective
assistance of counsel claim, not a violation of § 3005.
Regardless, any error was harmless.11 Mikhel does not
allege any prejudice stemming from Callahan’s absence. Nor
could he. Both of his counsel worked on his case for years
before trial, and both were present at trial for, inter alia, voir
dire, openings, the testimony of the three key cooperating
coconspirators, Mikhel’s testimony, closings, guilt-phase
verdicts, the entire penalty phase, and sentencing. Callahan
was absent only for the examination of six foundational
witnesses (whom he could have recalled but chose not to) and
the deposition designations of three substantive witnesses (the
10
We need not address whether a more extended absence of second
counsel might violate § 3005.
11
Mikhel relies heavily on a pair of Fourth Circuit cases holding that
a court’s failure to appoint a second attorney after a capital defendant’s
request violates § 3005 and cannot be harmless error. United States v.
Boone, 245 F.3d 352, 361 & n.8 (4th Cir. 2001); United States v. Watson,
496 F.2d 1125, 1129–30 (4th Cir. 1973). Neither case addresses a
situation like that here, where a second attorney was appointed but missed
a handful of trial days.
UNITED STATES V. MIKHEL 51
admissibility of which was litigated before trial). Callahan’s
three-day absence in no way prejudiced Mikhel.
Kadamovas raises a similar but distinct argument. He
claims the district court violated § 3005 by denying his
requests to continue trial to allow one of his attorneys more
time to prepare.12 Even assuming without deciding that
denying a continuance could violate § 3005 under some
circumstances, there was no violation here. Trial in this case
was originally scheduled for 2002, but was continued several
times until it was finally set for July 2006. In November
2005, ten months before trial, one of Kadamovas’s attorneys
(Brewer) submitted a declaration stating she did not have
time to prepare the case to her client’s satisfaction. As a
result, the district court appointed Sonia Chahin in her stead.
In March 2006, Kadamovas unsuccessfully moved to
continue the trial date to allow Chahin more time to prepare.
Less than a week before trial, Kadamovas unsuccessfully
moved for a continuance again. Trial began as scheduled on
July 11, 2006, with potential jurors completing
questionnaires. There was then a month-long break to
accommodate Chahin—who had another trial that July—
before proceedings resumed on August 15, 2006, with voir
dire.
Notably, between appointment in November 2005 and the
beginning of trial in July 2006, Chahin billed almost 900
hours on this case. And in the four years leading up to trial,
12
Kadamovas also vaguely asserts that the district court’s denial of
his motions for a continuance violated his constitutional rights. He offers
no argument to support a constitutional violation, and we find no basis for
one.
52 UNITED STATES V. MIKHEL
Kadamovas’s other attorney, Lasting, billed over 4,000 hours.
Moreover, we cannot overlook the benefit Chahin derived
from Brewer’s prior years of work. Chahin was not starting
from a blank slate; she had ten months to get up to speed; she
billed 900 hours before trial began; and Kadamovas concedes
she played a substantial role at trial, taking 30 percent of the
witnesses. The district court’s denial of Kadamovas’s
motions for a continuance did not violate § 3005.
Finally, like Mikhel, Kadamovas makes little attempt to
explain why he was prejudiced in this regard. At best, he
states: “Chahin went from a six-week murder trial into this
grueling trial without reviewing much of the discovery and
never traveling to Lithuania to investigate Mr. Kadamovas’s
background.” But he does not explain what discovery Chahin
failed to review that might have changed the jury’s verdict or
why traveling to Lithuania was essential to effectively
representing him. His contention that Chahin had inadequate
time to prepare is also belied by the extensive hours she spent
on the case. Thus, even if there were a technical violation of
§ 3005, it would be harmless.
8. Excluded testimony regarding cooperating witnesses
Altmanis, Solovyeva, and Markovskis all testified for the
government as cooperating witnesses. On cross-examination,
defendants attacked their credibility by questioning them
about their plea agreements. On redirect, the government
sought to rehabilitate Solovyeva and Markovskis’s credibility
by eliciting testimony to the effect that their plea agreements
would be voided if they committed perjury. Defendants then
sought to one-up the government once more, proffering
Clifford Smith as an example of a cooperating witness who
had committed perjury in a different case without
UNITED STATES V. MIKHEL 53
repercussion. The district court held the proffered testimony
irrelevant. We review the district court’s evidentiary rulings
for abuse of discretion. See United States v. Orm Hieng,
679 F.3d 1131, 1135 (9th Cir. 2012).
Smith had no connection to defendants, the crimes, or the
investigation. He had merely testified in another case
pending in the same courthouse. According to defendants, he
committed perjury in that case and suffered no consequence
for doing so. Kadamovas argues that the government’s
efforts to rehabilitate Solovyeva and Markovskis created the
misleading impression that the government always controls
cooperating witnesses by prosecuting them if they lie. He
claims the government thereby opened the door to Smith’s
“profile” evidence regarding the United States Attorney’s
Office’s modus operandi with respect to cooperating
witnesses who commit perjury.
Contrary to Kadamovas’s arguments, the proffered
testimony was plainly excludable. There is nothing in the
record to indicate that any of the cooperating witnesses knew
that Smith had committed perjury and not been prosecuted.
Cf. United States v. Chang Da Liu, 538 F.3d 1078, 1088 (9th
Cir. 2008). Smith’s possible history of perjuring himself with
impunity was at most minimally probative of Altmanis,
Solovyeva, or Markovskis’s credibility and threatened to
create a distracting trial-within-a-trial regarding events
having nothing to do with this case. In this regard,
Kadamovas’s reliance on our decision in United States v.
Beltran-Rios is inapposite. 878 F.2d 1208 (9th Cir. 1989).
There, the defendant was charged with a drug trafficking
crime and argued in his defense that he lacked the typical
characteristics of a drug trafficker. Id. at 1210. We held that
the prosecution could rebut this argument through otherwise
54 UNITED STATES V. MIKHEL
inappropriate “criminal profile” testimony. Id. at 1212–13.
Here, by contrast, defendants’ proffered evidence had at most
an extremely limited bearing on the witnesses testifying.
There was no abuse of discretion in excluding the evidence.13
9. Mikhel’s competency
Mikhel argues the district court erred in failing to hold a
hearing to evaluate his competency at numerous points during
trial. “It is well established that a conviction obtained against
an incompetent defendant is a clear violation of the
constitutional guarantee of due process.” United States v.
Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997)
(quotation marks omitted). “Competency requires that the
defendant have the ‘capacity to understand the nature and
object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense.’” Id. (quoting
Drope v. Missouri, 420 U.S. 162, 171 (1975)); see also
18 U.S.C. § 4241(a) (codifying this standard). The
competency right does not end at a conviction but extends to
“post-conviction proceedings,” including the penalty phase of
a capital trial. United States v. Duncan, 643 F.3d 1242, 1248
(9th Cir. 2011).
The parties dispute whether the district court held a
competency hearing in this case. We need not resolve that
dispute and assume without deciding that no competency
hearing occurred. For this reason, and because defense
13
Kadamovas also argues the exclusion of this evidence rose to the
level of a constitutional violation by depriving him of his right to present
a complete defense. But even if the evidence was minimally relevant, it
did not violate due process to exclude it. See Wood v. Alaska, 957 F.2d
1544, 1549 (9th Cir. 1992).
UNITED STATES V. MIKHEL 55
counsel never moved for a competency hearing,14 we pass to
considering whether the district court plainly erred in failing
to order a competency hearing sua sponte. See United States
v. Dreyer, 705 F.3d 951, 960 (9th Cir. 2013).
In this respect, our “inquiry is not whether the trial court
could have found the defendant either competent or
incompetent, nor whether the reviewing court would find the
defendant incompetent.” Id. (alterations omitted). Rather, we
look to see “if the evidence of incompetence was such that a
reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence.” Id. (emphasis
added); see also Duncan, 643 F.3d at 1249 n.2 (discussing the
various ways we have articulated this standard); Chavez v.
United States, 656 F.2d 512, 516 n.1 (9th Cir. 1981) (same).
“To raise a genuine doubt, there must be substantial evidence
that, due to a mental disease or defect, the defendant is either
unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.”
United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014)
(quotation marks omitted). “Among the factors to consider
when evaluating whether a court erred in failing to order a
competency hearing sua sponte, are the defendant’s irrational
behavior, his demeanor at trial, and any prior medical opinion
on competence[;] however, none of these factors is
determinative, and even one of these factors standing alone
may, in some circumstances, be sufficient.” Dreyer, 705 F.3d
at 964 (citations omitted) (quotation marks omitted)
(alterations omitted).
14
Mikhel argues plain error review is improper because his counsel
“expressed doubt” of his competency at three different points during trial.
As we explain below, the doubts raised were highly tentative, and we are
unconvinced Mikhel ever squarely moved for a competency hearing.
56 UNITED STATES V. MIKHEL
Mikhel identifies three different points at which he
believes the court should have held a genuine doubt as to his
competency and therefore held a hearing: (1) at the trial’s
onset; (2) at the end of the guilt phase; and (3) during the
penalty phase. We begin by reviewing Mikhel’s pretrial
history of mental illness and then address each trial segment
in turn.
After his first escape attempt, Mikhel was moved to a
high security section of SB-CDC and placed under Special
Administrative Measures. In January 2004, more than two
years before his trial began, he attempted to commit suicide
by cutting an artery in his ankle. Mikhel would later explain
that this was an impulsive act that he did not plan out and that
he was feeling hopeless about his case at the time.
Following the suicide attempt, Mikhel was moved to the
West Valley Detention Center (“WVDC”), where he received
treatment from psychiatrist Dr. Inderpal Dhillon. Dr. Dhillon
originally diagnosed Mikhel with major depression and
prescribed anti-depressants. Later, she concluded he suffered
from bipolar disorder and revised her treatment plan
accordingly. During three meetings in early 2004, Dr.
Dhillon noted that Mikhel suffered from auditory
hallucinations, including speaking to people who were not
there and hearing electricity. Mikhel continued to be treated,
and nothing indicates that he suffered from any form of
hallucination at any later point.15
A year passed, and in April 2005, Mikhel attempted to
take his life a second time by hoarding his medications and
15
Indeed, Dr. Dhillon attributed these symptoms to a medication that
she had prescribed.
UNITED STATES V. MIKHEL 57
taking them all at once. He reported that his reason was the
same as before—that he was feeling hopeless about his case.
Afterward, Dr. Dhillon continued to treat Mikhel and noted
he was showing signs of hypomania, including increased
activity, racing thoughts, and feelings of grandiosity.
Another year passed, and in May 2006, Mikhel was
transferred back to MDC, where he would be held during
trial. The medical staff there diagnosed him with depression
and prescribed anti-depressants. Prior to trial, defense
counsel had psychiatrist Dr. William Vicary examine Mikhel.
In a September 5, 2006, letter, Dr. Vicary opined that
Mikhel’s demanding and irritable behavior was “largely due
to his untreated Bipolar Disorder.” He summarily concluded
that Mikhel’s competency would be “enhanced” with proper
treatment, but gave no opinion as to Mikhel’s competency to
stand trial.
On the eve of opening statements, Mikhel attempted
suicide a third time by trying to hang himself with a sheet.
Once again, his stated reason for doing so was hopelessness
about his case. The next day he insisted on appearing in court
in his jail garb, with a ligature mark visible on his neck. The
court addressed the incident with Mikhel’s counsel, who
stated that “with [Mikhel’s] suicidal frame of mind, I don’t
know that he’s competent.” Counsel suggested Mikhel
should be medically examined but never moved for a
competency hearing. The court agreed to another medical
examination and ordered an MDC staff psychiatrist to
evaluate Mikhel.
The following week, MDC’s chief forensic psychologist,
Dr. Ralph Ihle, completed a full forensic evaluation of Mikhel
and submitted a comprehensive report to the court. Dr. Ihle
58 UNITED STATES V. MIKHEL
spoke to Mikhel’s attorneys and reviewed Mikhel’s personal
history and prior treatment, including Mikhel’s medical
records, a declaration from Dr. Dhillon, Dr. Vicary’s initial
September 5, 2006, letter, and a follow-up letter from Dr.
Vicary reiterating his bipolar diagnosis. Dr. Ihle also
personally interviewed Mikhel and found that he was able to
follow directions and maintain daily routines at MDC; that
his demeanor was polite and cooperative; that he engaged in
appropriate reciprocal communication; that there was no
evidence of him experiencing hallucinations, delusions, or
confusion; that he had no significant deficits in attention,
concentration, or memory; and that he showed no signs of
odd or bizarre behavior, though he was depressed and
expressed that he felt hopeless about his case. Dr. Ihle tested
Mikhel’s intellectual functioning and believed he was “within
the high or above average range”:
Mr. Mikhel’s verbal behavior during the
evaluation suggested that he was within the
high or above average range of intellectual
functioning. He demonstrated adequate
English grammar for someone educated in a
foreign country, and an above average English
vocabulary. His speech was well organized
and sufficiently goal directed. His logic was
easy to follow, and his associations were
adequately organized with a normal flow or
continuity of ideas. He is also well read in the
subject of philosophy. He discussed his views
on existential philosophy works by Frankel
and Nietzsche, regarding the meaning of life
and Nihilism. He had good recall of some of
the passages or concepts espoused in the
books. In summary, the objective information
UNITED STATES V. MIKHEL 59
suggests that Mr. Mikhel is most likely
functioning in the high to above average range
of intelligence. He does not exhibit any
significant signs of cognitive impairment or
gross brain damage. His intellectual
functioning supports his having the present
ability to understand the nature and
consequences of the charges brought against
him, or to properly assist in his defense.
With respect to Mikhel’s understanding of the charges against
him, Dr. Ihle noted that Mikhel could clearly articulate the
charges; that he knew they were serious felonies and that he
could face the death penalty; that he understood the different
types of pleas and their legal consequences; and that he had
an adequate understanding of courtroom participants and
procedures, as well as appropriate courtroom behavior.
Mikhel told him he was willing to cooperate with an attorney
but lacked confidence in his present attorneys because they
did not follow his suggestions.
Based on the materials he reviewed and his personal
examination, Dr. Ihle concluded that Mikhel was competent
to stand trial:
Based on the information available, there
is evidence to indicate that Mr. Mikhel suffers
from a Major Depressive Disorder, but the
symptoms do not impair his present ability to
understand the nature and consequences of the
court proceedings against him, or his ability to
properly assist counsel in his defense.
60 UNITED STATES V. MIKHEL
The presence of a Major Depressive
Disorder, or any other disorder, does not, in
and of itself, render an individual so
compromised as to lack the ability to
understand legal materials and to cooperate
with defense counsel in a rational manner.
Despite the presence of symptoms of a Major
Depressive Disorder, the defendant was able
to articulate a coherent and comprehensive
history, and did not appear to have any
difficulties in expressive (i.e., speaking) or
receptive (i.e., understanding) language.
Overall, the defendant was able to offer
relevant and meaningful information to this
evaluator regarding both historical data and
legal matters. During the competency portion
of the evaluation, he provided appropriate
responses to the questions posed to him. He
did not appear to experience any difficulties in
communicating his thoughts to the evaluator,
nor did he parrot the information. Any
difficulties he exhibits with respect to legal
counsel are volitional, and a reflection of his
perception that his defense against the charges
is hopeless at this point.
Dr. Ihle submitted his report to the court on September
14, 2006, and the court found the same day that Mikhel was
“competent to stand trial.” Again, we need not decide
whether the court’s consideration of Dr. Ihle’s report
amounted to a competency hearing. What matters for our
purposes is whether the district court plainly erred in failing
sua sponte to order any additional competency proceeding.
Dr. Ihle’s opinion respecting Mikhel’s competency and the
UNITED STATES V. MIKHEL 61
absence of any clinical evidence of incompetence distinguish
this case from those in which we have found reversible error.
See, e.g., Duncan, 643 F.3d at 1246–50 (reversing denial of
a competency hearing where court was faced with five
competing expert reports, some finding “no evidence of
psychotic behavior” and others finding “severe psychosis”);
Odle v. Woodford, 238 F.3d 1084, 1087–89 (9th Cir. 2001)
(reversing for retrospective competency hearing because
defendant had well-documented brain damage resulting in
hallucinations, “psychotic behavior,” suicide attempts, and
“behavioral disturbances beyond his control”).
In this regard, Mikhel’s prior suicide attempts did not
require the court to sua sponte order a competency hearing;
not “every suicide attempt inevitably creates a doubt
concerning the defendant’s competency.” Loyola-
Dominguez, 125 F.3d at 1318–19. Mikhel attempts to
analogize his case to Loyola-Dominguez, where the defendant
also attempted suicide on the eve of trial. But the trial court
in Loyola-Dominguez did not elicit adequate information to
dispel serious concerns regarding competency. Rather, the
trial court inquired how long it would take to get an
evaluation and then conducted a brief colloquy with the
defendant. See id. at 1319 (“Also of concern is [Loyola-
Dominguez’s] response to the question from the court, ‘Do
you know what’s going on?’ Loyola-Dominguez answered,
‘I don’t know. I’ve never been like this, so I don’t know.’”).
Here, by contrast, the district court ordered a forensic
evaluation after Mikhel’s third suicide attempt and the
resulting report found no impairment to Mikhel’s ability to
understand the nature and object of trial or to aid in his
defense. Every doctor to examine Mikhel after a suicide
attempt reported that he tried to take his life because he
regarded his future as hopeless. Based on these facts,
62 UNITED STATES V. MIKHEL
Mikhel’s suicide attempts, although naturally concerning, did
not raise a genuine doubt as to his competency.
As for Mikhel’s decision to wear his jail garb in court,
this is the type of “bizarre action[ ]” we have said is “not
necessarily sufficient evidence to compel a [competency]
hearing” but is “a factor to be considered.” Torres v. Prunty,
223 F.3d 1103, 1109–10 (9th Cir. 2000). Mikhel later
provided a reasoned explanation for his decision, stating he
felt it would have been superficial to wear civilian clothes
only during the few hours a day he spent in court. His
decision to wear his jail garb did not create a genuine doubt
as to his competency. See Davis v. Woodford, 384 F.3d 628,
645–46 (9th Cir. 2004) (the defendant’s “decision not to wear
civilian clothes and to remain in the doorway of the
courtroom” during a capital trial did not mandate reversing
for a competency hearing given that he “was evidently aware
of the risks of his behavior . . . and rationally weighed those
risks”). Although we acknowledge the confluence of these
circumstances is concerning and that a competency hearing
might have been prudent, we cannot say the district court
plainly erred by failing to sua sponte order a hearing at the
outset of trial.
Next, Mikhel asserts the district court should have
ordered a competency hearing near the end of the guilt phase.
A few months into trial, Mikhel sent the court a handwritten
request for new counsel, which complained that his attorneys
were unwilling to implement his trial-strategy suggestions.
The court rejected Mikhel’s request, and defense counsel
asked that Dr. Ihle examine Mikhel again. The court refused,
stating it was receiving oral reports from MDC keeping it
“fully abreast” of Mikhel’s mental condition and that
“nothing . . . indicates [Mikhel is] slipping or failing in any
UNITED STATES V. MIKHEL 63
way.” Mikhel later filed a second request for new counsel
based on disagreements with his attorneys over whether he
should testify. The court again denied the request. At the
very end of the guilt phase, Mikhel testified on direct for
three days but refused to be cross-examined. The court struck
this testimony, and Mikhel refused to appear in court
thereafter (except to hear the guilt-phase verdict).
Mikhel’s requests for new counsel did not raise any
genuine doubt as to his competency; to the contrary, they
evinced his intelligence, his firm grasp of the proceedings and
the legal system, and his own strong views on the best
strategy for his defense. For instance, in response to Mikhel’s
allegations that his attorneys were not adequately
communicating with him or preparing him to testify, his lead
counsel asserted, and the court agreed, that Mikhel was
merely “attempting to put appellate issues into the record.”
Moreover, Mikhel’s stricken testimony, though perhaps ill
advised, was not irrational. The evidence against him was
overwhelming, and he had nothing to lose in this “Hail Mary”
attempt to exculpate himself and Kadamovas. Throughout
his three days of testimony—which we describe in greater
detail below—he carefully developed a theme that he was a
wealthy white-collar criminal operating at the margins of the
law and thus had no reason to engage in the comparatively
high-risk, low-reward violent hostage takings he was charged
with committing. This testimony clearly demonstrated the
native intelligence identified by Dr. Ihle, as well as the ability
to understand and respond to questions, convey a narrative,
and recall details from events spanning decades.16
16
Mikhel also highlights that he was unshaven and “unkempt” during
this stage of trial. But when his counsel raised the issue with the district
64 UNITED STATES V. MIKHEL
Accordingly, the final months of the guilt phase provided the
district court little or no reason to question Mikhel’s
competency.
Finally, we consider the penalty phase. Mikhel refused to
be present in court for any of the penalty proceedings. His
mitigation case proceeded without him and included
testimony from Drs. Vicary and Dhillon regarding his mental
health. Dr. Vicary asserted that Mikhel suffered from
paranoid delusion and reported that Mikhel said his attorneys,
the judge, and the government were “all working against
him.” Dr. Vicary attributed this in part to Mikhel being kept
under special administrative conditions for a long time and
believed prescribing a mood-stabilizing medication would
reduce these symptoms. He further testified Mikhel was
“faking health” as patients who want to avoid treatment often
do. He explained: “He’s crazy. He’s irrational. You cannot
sit down with [Mikhel] and spend time with him and ask him
questions before he gets into this ‘everything is rosy, I have
no problems, and it’s all just a conspiracy against me.’”
Days later, Mikhel filed another request for new counsel.
In a hearing in which Mikhel was initially absent, his counsel
represented that Mikhel wanted to submit to a psychological
evaluation “to show that he has no mental problems” and “is
totally competent in everything he does.” Counsel also
asserted Mikhel was “doing everything in his power . . . to
throw a monkey wrench into [the defense’s] ability to put on
any kind of a mitigation defense.” Counsel further stated: “I
have a question as to Mr. Mikhel’s competency. I don’t
object to him being submitted to an independent,
court, Mikhel explained he was unshaven because MDC limited his access
to a beard trimmer while he was on suicide watch.
UNITED STATES V. MIKHEL 65
psychological or mental evaluation.” The court responded
that, “based upon all the reports that I have received, he is
competent to stand trial.” Although counsel’s statement came
close to a request for a competency hearing, counsel himself
did not suggest that Mikhel might be incompetent. Rather,
counsel’s statement that he would not “object” to an
independent evaluation was an accommodation to Mikhel,
who wanted an evaluation to prove he was competent.
The court then heard from Mikhel, who extensively
criticized his counsel. Mikhel took issue with Dr. Vicary
referring to him as a “pathological liar” on cross-examination
and with his counsel’s failure to address this testimony on
redirect. Mikhel asserted this was an intentional omission by
his counsel: “In my opinion, he’s not doing that because he’s
going to use the very, very same statement to discredit me on
the further actions when his performance and his conduct will
be put in review later on.” Mikhel explained he had planned
to testify for two weeks in order to counter all of the
government’s evidence against him. The reason why he
refused to be cross-examined or attend the remainder of the
trial was because his counsel abandoned this strategy. The
court denied Mikhel’s request for new counsel.
Mikhel now argues that, by the end of trial, the
cumulative evidence of his purported incompetency
resembled that in Drope. There, the state court was aware
from a pretrial psychiatric report that the defendant had
difficulty participating in the exam, counting, and telling
time; was “markedly circumstantial and irrelevant in his
speech;” was diagnosed with a borderline mental deficiency
and depression; and had a history of purposefully falling
down flights of stairs to get attention. Drope, 420 U.S. at 165
n.1, 175–76. Moreover, in the midst of trial, the defendant
66 UNITED STATES V. MIKHEL
shot himself in the stomach. Id. at 166–67. The Supreme
Court held that the state trial court erred in not sua sponte
holding a competency hearing. Id. at 181–82.
Two key facts distinguish Drope from the instant case.
First, there was no forensic competency evaluation performed
in Drope, and no mental health professional had opined that
the defendant in that case was competent to stand trial. Id. at
180. Indeed, the psychiatric report—which called into
question the defendant’s ability to even comprehend the
proceedings and was thus far more drastic than the opinions
Drs. Vicary and Dhillon rendered—was the only professional
evaluation of the defendant’s mental health. See Mendez v.
Knowles, 556 F.3d 757, 773 (9th Cir. 2009) (distinguishing
Drope based, in part, on the “finding of the court-appointed
expert that Mendez was competent to stand trial”). Secondly,
the defendant in Drope was absent from the remainder of trial
due to his suicide attempt, and as a result, “the trial judge and
defense counsel were no longer able to observe him in the
context of the trial and to gauge” his competence. Drope,
420 U.S. at 181. Although Mikhel voluntarily absented
himself from the penalty phase, the district court held two
hearings with him in lock-up and thus had the ability to
observe his demeanor, comprehension of the risks, and ability
to respond to questions. See Davis, 384 F.3d at 646
(distinguishing Drope based on trial judge’s ability to observe
defendant on days he decided to sit at defense table rather
than courtroom’s doorway). Mikhel’s attempt to analogize
Drope to his case is without merit.
Mikhel also cites Torres, where the defendant was
convicted of shooting several doctors at a hospital due to
delusional beliefs they had injected him with AIDS as part of
a conspiracy against him. 223 F.3d at 1105. A court-
UNITED STATES V. MIKHEL 67
appointed psychologist diagnosed the defendant with “severe
delusional (paranoid) disorder,” and the defendant believed
his counsel and the court were part of the conspiracy against
him. Id. at 1105, 1108. While there are some parallels, this
case is not Torres. There, the defendant’s delusions were
well documented and evident throughout every facet of the
case, including his commission of the crime. Though Dr.
Vicary testified that Mikhel suffered from paranoid delusions,
he did not expound upon any perceived conspiracy.
Tellingly, Mikhel himself had many opportunities to express
such views through his requests for new counsel and the
resulting hearings, but he at most criticized his attorneys’
unwillingness to follow his desired trial strategy and
expressed his opinion that his counsel was attempting to
discredit him in anticipation of a charge of ineffective
assistance of counsel. Most notably, Mikhel’s own counsel,
who presumably had the most contact with Mikhel and had
the best opportunity to observe his mental state, never moved
for a competency hearing.
As we concluded for the trial’s guilt phase, this evidence
demonstrates Mikhel’s understanding of the nature and object
of the trial and his familiarity with his appellate rights. He
disavowed that he was trying to undermine his own
mitigation defense and blamed his absence from trial on his
disagreement with his attorneys. This bolsters the district
court’s conclusion that Mikhel was merely attempting to
manufacture issues for appeal. “Although there is little doubt
that [Mikhel] was recalcitrant and acted in ways that were
detrimental to his case, his interactions with the trial judge
indicated that he understood what was at stake during the
penalty phase and could make informed decisions.” Davis,
384 F.3d at 645; see also Garza, 751 F.3d at 1136 (“A
defendant who refuses to work with his lawyer out of spite
68 UNITED STATES V. MIKHEL
alone is not incompetent even if that defendant has a serious
mental disease or defect.”). Accordingly, the penalty phase
yielded no genuine doubt of Mikhel’s competency, and the
district court did not plainly err in failing to hold a
competency hearing sua sponte at any stage of trial.
10. Kadamovas’s Confrontation Clause claim
Kadamovas claims Mikhel’s testimony and refusal to be
cross-examined violated his Sixth Amendment confrontation
right and prejudiced him in both the guilt and penalty phases.
We review alleged Confrontation Clause violations de novo.
See United States v. Peterson, 140 F.3d 819, 821 (9th Cir.
1998).
Mikhel’s testimony on direct spanned three days. During
the first two days, Mikhel testified about his life before the
offense conduct at issue here. Much of this testimony
concerned his purportedly lavish lifestyle as a successful
smuggler and money launderer. For instance, he testified that
he purchased a $17 million yacht to smuggle “big quantities”
of money between countries, that he traveled throughout the
Caribbean, Europe, and Asia to advance his illicit enterprises,
and that he used a vineyard outside Modesto, California, as a
“safe house” for paperwork and money. According to
Mikhel’s counsel, the purpose of this testimony was to
proactively raise Mikhel’s past misconduct—which did not
involve kidnapping or murder—and to “establish[ ] a
foundation for what he did later.”
Mikhel had relatively little to say about Kadamovas in his
testimony, and what he did say offered innocent explanations
for some of the government’s evidence tying himself and
Kadamovas to the kidnappings. Mikhel testified that
UNITED STATES V. MIKHEL 69
Kadamovas once helped him smuggle money out of the
United States by strapping bricks of cash to their bodies using
plastic ties (thus explaining the plastic ties later found in
Mikhel’s home). He further testified that Kadamovas
participated in smuggling schemes to Cuba and Cyrus. And
he testified that Kadamovas assisted him in an extortion
scheme, in which they videotaped a meeting with a man who
sought their help hiring an assassin and then threatened to
publish the tape unless the man paid them $50,000.
On his third day of testimony, Mikhel turned to the events
underlying this case. He claimed that an unnamed associate
wanted Muscatel to be “taught a lesson” and that he hired
Altmanis for the job, merely instructing Altmanis to “do
whatever you think you’re supposed to do” without wanting
him to kill anyone. Mikhel said he told Altmanis, “I don’t
want to know what’s going to happen after you leave here.”
He also said that his conversation with Altmanis caused
him to be concerned about the money in his home, prompting
him and Kadamovas to drive to his Modesto safe house the
next day (thus explaining the cellphone data showing them
making that trip).
Mikhel also testified to some events connected to the
Umansky family’s ransom payments, asserting that he
believed he was only helping Altmanis launder this money
and did not know its provenance. With regard to being
caught on a surveillance camera using Umansky’s ATM card,
Mikhel said he purchased the card from Altmanis to facilitate
creating shell corporations. As for the Safiev-related plots,
Mikhel testified he used Pekler and Kharabadze to lure Safiev
into a meeting in order to help Safiev. Mikhel claimed that
unnamed individuals were after Safiev for cheating them of
$50 million, that he sought a meeting with Safiev to assist
70 UNITED STATES V. MIKHEL
him in disappearing to safety, and that he expected several
million dollars in compensation for his services. Mikhel
wove a complicated story to this effect, which included him
and Kadamovas once again making trips to the Modesto safe
house. Mikhel ended his testimony by attesting that he did
not kill Muscatel, Pekler, Umansky, Kharabadze, or Safiev.
When he refused to be cross-examined, the district court
struck his testimony and instructed the jury not to consider it
“in any matter against Mr. Mikhel or against Mr.
Kadamovas.”
Kadamovas argues that the district court’s instruction
could not cure his inability to cross-examine Mikhel under
Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the
Supreme Court held that a defendant is deprived of his Sixth
Amendment right of confrontation when a facially
incriminating confession of a nontestifying codefendant is
introduced at their joint trial, even if the jury is instructed to
consider the confession only against the codefendant.17
Bruton, 391 U.S. at 126. This holding “recognized a narrow
exception” to the “assumption of the law that jurors follow
their instructions.” Richardson v. Marsh, 481 U.S. 200,
206–07 (1987) (citing Bruton, 391 U.S. at 135–36). The
Court reasoned:
[T]here are some contexts in which the risk
that the jury will not, or cannot, follow
17
In the Bruton line of cases, “codefendant” refers to the individual
who confesses and inculpates both himself and the “defendant.” For
instance, in Bruton, Evans (the codefendant) confessed during an
interrogation that he and Bruton (the defendant) committed armed
robbery. 391 U.S. at 124. The confession was admitted at their joint trial,
but the trial court instructed the jury to consider it only as to Evans and not
as to Bruton. Id. at 124–25.
 UNITED STATES V. MIKHEL 71
instructions is so great, and the consequences
of failure so vital to the defendant, that the
practical and human limitations of the jury
system cannot be ignored. Such a context is
presented . . . where the powerfully
incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side
with the defendant, are deliberately spread
before the jury in a joint trial. Not only are
the incriminations devastating to the
defendant but their credibility is inevitably
suspect . . . . The unreliability of such
evidence is intolerably compounded when the
alleged accomplice . . . does not testify and
cannot be tested by cross-examination. It was
against such threats to a fair trial that the
Confrontation Clause was directed.
Bruton, 391 U.S. at 135–36 (emphasis added) (citations
omitted).
The Court narrowed Bruton’s scope in Richardson, where
it held that there is no Confrontation Clause violation if the
codefendant’s confession must be linked to other evidence to
incriminate the defendant. Richardson, 481 U.S. at 208.
“Where the necessity of such linkage is involved, it is a less
valid generalization that the jury will not likely obey the
instruction to disregard the evidence. Specific testimony that
‘the defendant helped me commit the crime’ is more vivid
than inferential incrimination, and hence more difficult to
thrust out of mind.” Id. The Court rejected the “contextual
implication” doctrine that required courts to assess whether,
in light of all of the evidence, a codefendant’s confession was
so powerfully incriminating that a new, separate trial was
72 UNITED STATES V. MIKHEL
required for the defendant. See United States v. Sherlock,
962 F.2d 1349, 1361 (9th Cir. 1989) (citing Richardson,
481 U.S. at 206).
The Bruton rule is thus “limited to facially incriminating
confessions.” Id. We have held that “[a] statement is not
facially incriminating merely because it identifies a
defendant; the statement must also have a sufficiently
devastating or powerful inculpatory impact to be
incriminatory on its face.” United States v. Angwin, 271 F.3d
786, 796 (9th Cir. 2001) (quotation marks omitted), overruled
on other grounds by United States v. Lopez, 484 F.3d 1186
(9th Cir. 2007) (en banc). We have also held that the Bruton
rule applies not only to out-of-court confessions but also to
when a codefendant confesses in court. Toolate v. Borg,
828 F.2d 571, 572 (9th Cir. 1987). Although it is ordinarily
a sufficient remedy to strike the testimony of a witness who
refuses to be cross-examined, “in-court confessions are no
less credible or powerful as a rule than out-of-court ones.”
Id. at 572–73. Thus, “the presumed inability of juries to
disregard an incriminatory codefendant’s confession” also
applies to in-court confessions and may result in a
Confrontation Clause violation. Id. at 574–75.
Kadamovas argues Bruton and Toolate mandate reversal
because Mikhel’s testimony “corroborated the government’s
case and directly implicated” him. Specifically, Kadamovas
contends the testimony “plac[ed] him in the events
surrounding the abductions of four of the victims and
validat[ed] the evidence about the trips to the [New Melones]
Reservoir.” The government counters that Mikhel’s
testimony does not implicate Bruton and Toolate because
Mikhel (1) did not confess to the crimes he was charged with
and (2) did not incriminate Kadamovas.
UNITED STATES V. MIKHEL 73
As an initial matter, we agree that Mikhel’s testimony
cannot accurately be described as a confession. While he
certainly corroborated portions of the government’s evidence
against him, he never admitted to conduct that would satisfy
any element of the hostage-taking charges, such as seizing or
detaining the victims, threatening to kill or injure them, or
holding them for ransom. Nor did he admit to conspiring
with others to commit these crimes.18 Rather, Mikhel’s
testimony was clearly an attempt to exculpate himself by
offering an alternate narrative for the government’s
overwhelming evidence against him. For instance, he
attempted to provide a non-nefarious explanation for why he
lured Pekler, Kharabadze, and Safiev into meeting with him;
why plastic ties were found in his home; and why cellphone
data placed him near the reservoir at critical times.
We need not decide, however, whether a codefendant
must completely inculpate himself in order to trigger
Bruton’s protection because Mikhel’s testimony did not
facially incriminate Kadamovas. See United States v.
Yarbrough, 852 F.2d 1522, 1537 (9th Cir. 1988) (“Bruton
does not require that all extrajudicial statements or
confessions not be used in a joint trial. Rather, only those
statements that ‘clearly inculpate’ the defendant or are
‘powerfully incriminating’ implicate the ‘Bruton’ rule.”).
Most of Mikhel’s testimony regarding the offense conduct,
including the events underlying Muscatel and Umansky’s
disappearances, made no mention of Kadamovas. When
Mikhel did insert Kadamovas into his narrative, he never
claimed Kadamovas seized, detained, threatened, injured, or
18
In contrast, it does appear that Mikhel incriminated himself as to the
charge of conspiracy to escape from custody. But Mikhel never mentions
Kadamovas in this portion of his testimony.
74 UNITED STATES V. MIKHEL
demanded ransom for any of the victims. Rather, Mikhel’s
attempt to exculpate himself also extended to Kadamovas,
providing Kadamovas, for instance, an explanation for why
his cellphone placed him near the reservoir around the times
of the victims’ deaths.
Kadamovas argues that parts of Mikhel’s testimony
corroborated the government’s evidence against him. For
example, Mikhel’s testimony supported the government’s
evidence that Kadamovas posed as a potential client to meet
with Pekler and that Solovyeva lured Kharabadze to Designed
Water World. But none of this evidence, on its own, directly
established that Kadamovas committed or conspired to
commit hostage taking. Instead, by arguing that Mikhel’s
testimony corroborated the government’s evidence,
Kadamovas implicitly acknowledges that the testimony must
be linked to other evidence in order to inculpate him.
Kadamovas thus asserts the precise type of “contextual
implication” argument that the Supreme Court rejected in
Richardson. Because Mikhel’s testimony did not facially
incriminate Kadamovas, it did not trigger the Bruton rule.
See Angwin, 271 F.3d at 797–98 (finding no Bruton violation
where the codefendant’s pretrial statements “could support”
the government’s narrative but were only “mildly
incriminating”). We therefore assume the jury followed the
district court’s instruction to disregard Mikhel’s testimony.
See Richardson, 481 U.S. at 206. There was no
19
Confrontation Clause violation.
19
Kadamovas alternatively argues that, even absent a Confrontation
Clause violation, Mikhel’s testimony violated Federal Rules of Evidence
403 and 404(b) and that striking the testimony was an insufficient remedy.
In support of this argument, however, he only cites cases involving
defective curative instructions. See, e.g., United States v. Merino-
UNITED STATES V. MIKHEL 75
Finally, any error in this regard was harmless. An error
is harmless if, absent the offending evidence, it remains
“clear beyond a reasonable doubt that the jury would have
returned a verdict of guilty.” United States v. Velarde-
Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc). The
evidence presented at trial to prove defendants’ guilt was
overwhelming and included the detailed testimony of three
cooperating coconspirators; the testimony of numerous other
witnesses linking defendants to the victims’ disappearances;
physical evidence retrieved from defendants’ homes and
Designed Water World’s office; DNA and fingerprint
evidence linking many of these artifacts to defendants or their
victims; cellphone data placing defendants near the reservoir
at the time of the victims’ deaths; and expert testimony
tracing ransom payments to defendants’ bank accounts,
identifying defendants’ voices in recorded telephone calls,
and matching Kadamovas’s shoes to shoeprints left in
Muscatel’s blood on the Parrotts Ferry Bridge. Indeed, the
district court remarked at sentencing that it had “never seen
a case where the evidence of guilt was so compelling as in
this particular case.” It is clear beyond a reasonable doubt
that Mikhel’s testimony impacted neither Kadamovas’s
convictions nor (for reasons explained in our discussion of
the penalty-phase below) his sentence.
11. Kadamovas’s severance motion
Kadamovas repeatedly moved for complete severance of
his case from Mikhel’s or, in the alternative, for sequential
penalty-phase hearings. The district court denied his motions.
Balderrama, 146 F.3d 758, 764 (9th Cir. 1998) (holding that “the
[curative] instruction was inadequate on its face”). There is no reason to
believe the district court’s instructions were ineffective here.
76 UNITED STATES V. MIKHEL
We review denial of severance for abuse of discretion.
United States v. Jenkins, 633 F.3d 788, 807 (9th Cir. 2011).
“Defendants jointly indicted ordinarily should be jointly
tried. Serious consideration must be given to judicial
economy. The burden is on the defendant to show ‘clear,’
‘manifest,’ or ‘undue’ prejudice from a joint trial.” United
States v. Polizzi, 801 F.2d 1543, 1553–54 (9th Cir. 1986)
(citations omitted). Severance should be granted “only if
there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or
innocence.” Zafiro v. United States, 506 U.S. 534, 539
(1993). “[L]ess drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice.”
Id.
“The test for abuse of discretion by the district court [in
denying severance] is whether a joint trial was so manifestly
prejudicial as to require the trial judge to exercise his
discretion in but one way, by ordering a separate trial.”
Jenkins, 633 F.3d at 807. Our review in this area is
“extremely narrow.” United States v. Mariscal, 939 F.2d
884, 886 (9th Cir. 1991) (citing United States v. Stirling,
571 F.2d 708, 733 (2d Cir. 1978) (severance question is
“virtually unreviewable”)). “The possibility of acquittal in a
separate trial is not itself sufficient to require severance.”
Jenkins, 633 F.3d at 807.
The joint guilt-phase trial was not so prejudicial as to
deny Kadamovas a fair trial, and the district court did not
abuse its discretion in denying Kadamovas’s severance
motions. Although Kadamovas cites Mikhel’s testimony as
evidence of guilt-phase prejudice, the district court granted
UNITED STATES V. MIKHEL 77
Kadamovas’s motion to strike that testimony and gave a
curative instruction. For the reasons discussed above, we
assume that the jury followed the court’s instruction and that
Mikhel’s testimony therefore did not prejudice Kadamovas.
Likewise, none of Mikhel’s unusual behavior during trial—
such as wearing his jail garb, appearing in court with a visible
ligature mark from his third suicide attempt, and refusing to
attend the final days of trial—demonstrated the kind of
manifest prejudice required to reverse a conviction for denial
of severance.20 Moreover, the court repeatedly instructed the
jury not to consider Mikhel’s absence against Kadamovas.
Kadamovas relies on the Seventh Circuit’s decision in
United States v. Mannie, which held that a district court
abused its discretion in denying motions for mistrial and
severance based on the “co-defendant’s severe and violent
disruptions during the trial.” 509 F.3d 851, 852 (7th Cir.
2007). But Kadamovas’s claim is, if anything, weakened by
this comparison. In one of many courtroom incidents in
Mannie, the codefendant yelled at defense counsel, “then
stood up, knocked one of his attorneys to the ground, grabbed
the other attorney by his necktie, and threw him to the ground
as well.” Id. at 855. Mannie exemplifies the “truly rare” case
in which jury instructions provide insufficient protection to
the right to a fair trial. Id. at 857. Here, by contrast, the
district court did not abuse its discretion in denying severance
at the guilt phase.
20
Kadamovas also cites an incident in which Mikhel applauded a
potential juror’s response during voir dire. There was no possible
prejudice as a result of this incident, as it took place only in front of the
potential juror, who was immediately excused and prevented from
discussing the matter with any other potential jurors.
78 UNITED STATES V. MIKHEL
Nor did the district court abuse its discretion in denying
Kadamovas’s requests for sequential penalty phases. Like a
joint trial, a joint penalty phase is favored for efficiency and
fairness, even though it raises a potential risk to the
individualized consideration due each capital defendant. See
United States v. Tipton, 90 F.3d 861, 892–93 (4th Cir. 1996)
(finding joint penalty hearing was not an abuse of discretion).
Kadamovas argues he was prejudiced during the penalty
phase by Mikhel’s continued absence from court, evidence of
Mikhel’s suicide attempts, the disparity in his mitigation case
versus Mikhel’s, and the government’s presentation of
evidence and arguments as to both defendants.
While it would not have been an abuse of discretion for
the court to conduct sequential penalty phases before the
same jury, it also was not an abuse of discretion to order a
joint penalty phase. None of the issues raised by Kadamovas
show the type of manifest prejudice or risk to individualized
consideration that would be required to vacate his sentence on
this ground. In this regard, we note that the jury rendered
separate verdicts and made individualized findings and
recommendations as to each defendant. Moreover, the
district court’s penalty-phase instructions required the jury to
give individualized consideration to each defendant, which
adequately mitigated any risk of prejudice. See Fernandez,
388 F.3d at 1243 (“We have repeatedly held that a district
court’s careful and frequent limiting instructions to the jury
. . . can reduce or eliminate any possibility of prejudice
arising from a joint trial.”); Tipton, 90 F.3d at 892–93
(holding that “frequent instructions on the need to give each
defendant’s case individualized consideration sufficed to
reduce the risk to acceptable levels” in joint capital penalty
hearing).
UNITED STATES V. MIKHEL 79
12. Kadamovas’s conviction for conspiracy to escape
Kadamovas was convicted of conspiring to escape from
custody under 18 U.S.C. § 371. Kadamovas argues this
conviction must be reversed because of two alleged
evidentiary errors: (1) limiting the defense’s cross-
examination of cooperating witness Jose Avila in violation of
the Federal Rules of Evidence and Confrontation Clause; and
(2) admitting improper hearsay evidence in the form of a
letter penned by Mikhel after the escape conspiracy ended.
We review a Confrontation Clause challenge based on the
exclusion of an area of inquiry de novo, United States v.
Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc), and
we review evidentiary rulings for abuse of discretion, Orm
Hieng, 679 F.3d at 1135.
Mikhel’s counsel sought to impeach Avila’s credibility by
questioning him about a 2001 drug trafficking offense in
Ohio and threats he purportedly made against a cooperating
witness in that case named Robert Walsh. The government
objected, and the district court ruled the line of cross-
examination irrelevant. Mikhel then proffered a letter from
the United States Attorney for the Northern District of Ohio
stating that a member of Jose Avila’s family had once
threatened an unnamed “potential witness” by saying “We
know where you are and where your family lives.” Mikhel’s
counsel told the court he “assume[d]” the letter was about
Walsh. The court again sustained the government’s objection
to the proffered evidence.
Federal Rule of Evidence 608(b) permits cross-
examination of a witness on prior conduct bearing on his or
her character for truthfulness or untruthfulness. Fed. R. Evid.
608(b). In addition, the exclusion of “otherwise appropriate
80 UNITED STATES V. MIKHEL
cross-examination designed to show a prototypical form of
bias on the part of the witness” can rise to the level of a
violation of the Confrontation Clause. Holley v. Yarborough,
568 F.3d 1091, 1098 (9th Cir. 2009). The Confrontation
Clause inquiry is (1) whether the excluded evidence was
relevant; (2) whether there were other legitimate interests
outweighing the defendant’s interest in presenting the
evidence; and (3) whether the exclusion of evidence left the
jury with sufficient information to assess the witness’s
credibility. Larson, 495 F.3d at 1103. “[T]rial judges retain
wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination based
on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Id. at 1101.
Even under de novo review, there was no Rule 608(b)
error or Confrontation Clause violation. Kadamovas’s theory
of the proposed testimony’s relevance was speculative,
attenuated, and convoluted. Other legitimate interests easily
outweighed the testimony’s minimal probative
value—particularly, legitimate interests in avoiding undue
delay and preventing a trial-within-a-trial on unrelated events
surrounding Avila’s drug trafficking offense and purported
threats in connection with proceedings in Ohio. The district
court did not err under either Rule 608(b) or the
Confrontation Clause in excluding this line of cross-
examination.
Kadamovas also challenges the district court’s admittance
of a letter concerning Mikhel’s escape plans. The escape
conspiracy was discovered on March 7, 2003, and
Kadamovas withdrew from the conspiracy no later than
UNITED STATES V. MIKHEL 81
March 17, 2003.21 Over a week later, on March 26, 2003,
Mikhel asked a prison guard to pass Kadamovas a magazine
in which he had hidden the letter now at issue. The guard
seized the letter, and Kadamovas never saw it. The letter
outlined steps Mikhel wanted Kadamovas to take to
communicate with other prisoners and stated: “[L]et’s start
putting into motion my big bluff. Out of concern for security,
for now I won’t describe the details to you. I’m just asking
you to do everything exactly as laid out below. We’ve made
enough mistakes.”
Generally, out-of-court statements are admissible for the
truth of the matter asserted if “made by the party’s
coconspirator during and in furtherance of the conspiracy.”
Fed. R. Evid. 801(d)(2)(E). Kadamovas argues Mikhel’s
letter was inadmissible because “once a party withdraws from
a conspiracy subsequent statements by a coconspirator do not
fall within this exemption.” United States v. Nerlinger,
862 F.2d 967, 974 (2d Cir. 1988). The government responds
that the conspiracy had revived by the time of Mikhel’s letter.
The problem with the government’s argument, however, is
that there is no proof of the conspiracy reviving other than the
contested hearsay. We may consider contested hearsay in
determining whether the Rule 801(d)(2)(E) exemption
applies, but there must also be “some evidence, aside from
the proffered statements, of the existence of the conspiracy
and the defendant’s involvement.” United States v. Gordon,
844 F.2d 1397, 1402 (9th Cir. 1988). Here, Mikhel’s letter
was the only evidence of an ongoing conspiracy to escape
21
Kadamovas confessed to his involvement in the escape conspiracy
on March 17, 2003, but the government conceded the confession was
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and was
inadmissible.
82 UNITED STATES V. MIKHEL
after Kadamovas’s withdrawal. The letter was therefore
inadmissible hearsay.
In any five-month trial involving dozens of witnesses and
hundreds of exhibits, there is likely to be some evidentiary
error. Our question on review is whether that evidentiary
error was harmless—i.e., whether, absent the error, it remains
“clear beyond a reasonable doubt that the jury would have
returned a verdict of guilty.” Velarde-Gomez, 269 F.3d at
1034. In this case, we have no doubt the admission of
Mikhel’s letter was harmless, as the letter was merely
cumulative of other evidence linking Kadamovas to the
conspiracy. Avila testified he went to Kadamovas’s cell in
“Nine South” to talk with Mikhel through the air vents and
that Kadamovas “pretty much told me a little bit about like
one of the plans and he just mentioned that—like behind his
pillow that he was supposed to like make a hole and they
were supposed to squeeze out of there and they were all
supposed to go out into the stairwell and meet at a certain
time.” Parker, a fellow inmate, testified he heard Mikhel
communicating through the air vents in a foreign language
with someone on “Nine South.” Coconspirator Sabrina
Tuinan testified she obtained four cellphones, three of which
were for Mikhel, her husband, and her brother-in-law.
Though she was not certain, she believed the fourth phone
was for “the other Juri,” i.e., Jurijus Kadamovas. Prison
records showed Mikhel had sent money to Krylov, Avila,
Cook, and Kadamovas—all members of the conspiracy. And
inmate housing records showed that Kadamovas managed to
be reassigned to a cell adjacent to the stairway the
conspirators intended to use for their escape. In light of this
evidence, the erroneous admission of Mikhel’s letter did not
impact Kadamovas’s conviction for conspiring to escape
custody. Nor could it have impacted his death sentence for
UNITED STATES V. MIKHEL 83
the reasons we explain in our discussion of the penalty phase
below.
13. Kadamovas’s access to a computer
Kadamovas claims the government breached its
stipulation with him regarding his access to discovery
materials on a computer. He requests a remand “for an
evidentiary hearing to determine whether the stipulation was
violated and, if so, the appropriate remedy.” “Stipulations
freely and voluntarily entered into in criminal trials are as
binding and enforceable as those entered into in civil
actions.” United States v. Shapiro, 879 F.2d 468, 470 (9th
Cir. 1989). We interpret a stipulation de novo and consider
whether the facts demonstrate a breach of that stipulation
under the more deferential clearly erroneous standard. See
United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996).
In November 2005, Kadamovas complained he lacked
sufficient access to a computer to review discovery in his
case, as he only had access on weekdays between 8:00 a.m.
and 2:00 p.m., and only when one of three visiting rooms was
available. He moved the district court to order that he be
granted access to a computer for ten hours a day. The parties
entered into a stipulation by which Kadamovas withdrew his
motion based on the prison warden’s representation that “Mr.
Kadamovas will, to the maximum practicable extent, be
granted daily access to his laptop computer, Monday through
Friday, excluding holidays, from approximately 7:00 a.m. to
3:15 p.m.” The stipulation was expressly subject to the
MDC’s safety, security, management, and operational needs.
Significantly, Kadamovas was a high security inmate housed
in MDC’s Secure Housing Unit and required three guards to
be present during all of his movements.
84 UNITED STATES V. MIKHEL
In March 2006, Kadamovas filed a renewed motion with
the district court claiming he was receiving insufficient
computer access and requesting leave to use a computer in his
cell. The court heard argument on the motion and denied
Kadamovas’s request, explaining that Kadamovas “always
had an opportunity to review this material, and he’s chosen
not to do it.” Three months into trial, after continued
complaints about insufficient computer access, the court
ordered that Kadamovas be permitted computer access in his
cell fourteen hours a day.
The district court did not clearly err in finding that
Kadamovas was receiving sufficient computer access in
accordance with that contemplated by the stipulation. A
detailed declaration from Federal Bureau of Prisons
Supervisory Attorney Eliezer Ben-Shmuel attested that
Kadamovas had regular computer access but was often not
using it. The declaration attached prison records approving
Kadamovas’s various requests to use his computer. Isolated
incidents of Kadamovas being denied computer access were
consistent with the stipulation’s terms providing that access
was “subject to the safety, security, management and
operational needs” of MDC. In short, the record supports the
district court’s determination that there was no pattern of
Kadamovas being denied computer access in violation of the
stipulation.
B. The Penalty Phase
As we find no reversible error in the guilt phase, we
proceed to considering the penalty phase. Generally, the
same jury that determines a defendant’s guilt must also
consider his or her eligibility for the death penalty under the
FDPA. 18 U.S.C. § 3593(b)(1). To impose a sentence of
UNITED STATES V. MIKHEL 85
death, the jury must first make the following threshold
findings: (1) the defendant was 18 years of age or older at the
time of the offense, id. § 3591(a)(2)(D); (2) the defendant had
at least one of four enumerated mentes reae, id. § 3591(a)(2);
and (3) at least one of sixteen statutorily defined aggravating
factors applied, id. § 3592(c).
If the jury makes these threshold findings, it must then
decide whether the aggravating factor or factors found to
exist “sufficiently outweigh” any mitigating factor or factors
found to exist to justify a sentence of death. Id. § 3593(e).
Aggravating factors must be found unanimously and beyond
a reasonable doubt; mitigating factors may be found by one
or more jurors by a preponderance of the evidence. Id.
§ 3593(c), (d). Based on its consideration of all aggravating
and mitigating factors, the jury recommends by unanimous
vote whether the defendant should be sentenced to death or
some lesser sentence. Id. § 3593(d), (e). In this case, the jury
unanimously found all nine of the government’s aggravating
factors against both defendants, and no juror found any
mitigating factor as to either defendant. The jury
unanimously recommended that both defendants be sentenced
to death.
1. “Reasonable doubt” instruction as to penalty
As it did in the guilt phase, the district court instructed the
jury in the penalty phase using our circuit’s model
“reasonable doubt” instruction. Model Crim. Jury Instr. 9th
Cir. 3.5. The court quoted the instruction nearly verbatim,
adapting it only slightly to refer to aggravating factors rather
than guilt:
86 UNITED STATES V. MIKHEL
Proof beyond a reasonable doubt is proof that
leaves you firmly convinced that an
aggravating factor exists. It is not required
that the government prove the existence of an
aggravating factor beyond all possible doubt.
A reasonable doubt is a doubt based upon
reason and common sense and is not based
purely on speculation. It may arise from a
careful and impartial consideration of all the
evidence, or from a lack of evidence.
Defendants did not object to the instruction in the penalty
phase, so we review for plain error. See Mitchell, 502 F.3d at
967.
Defendants contend that using the model instruction to
describe the government’s burden of proof on aggravating
factors—particularly, future dangerousness—was error
because aggravating factors inherently contemplate
“speculative inquiries and speculative evidence.” The
Supreme Court recently observed that the future
dangerousness inquiry is not a determination of “historical
fact,” but “a predictive judgment inevitably entailing a degree
of speculation.” Buck v. Davis, 137 S. Ct. 759, 776 (2017).
We do not understand this as requiring a different definition
of “reasonable doubt.” Notwithstanding the predictive nature
of finding future dangerousness, or of any other aggravating
factor, a reasonable doubt remains “something more than a
speculative one.” Victor, 511 U.S. at 19–20.
Defendants further contend the model instruction was
unfairly lopsided because it instructed jurors not to find a
reasonable doubt in their favor based purely on speculation,
UNITED STATES V. MIKHEL 87
without telling them not to speculate in finding the
government’s burden of proof beyond a reasonable doubt.
The instruction, however, left no room for jurors to
unreasonably speculate in making any finding favoring the
government. The instruction clearly explained that “[p]roof
beyond a reasonable doubt is proof that leaves you firmly
convinced that an aggravating factor exists.” This correctly
stated the government’s burden of proof. See, e.g., United
States v. Velasquez, 980 F.2d 1275, 1278–79 (9th Cir. 1992)
(approving “firmly convinced” language in reasonable doubt
instruction). It was not plain error to so instruct the jury. See
United States v. Soto-Zuniga, 837 F.3d 992, 1004 (9th Cir.
2016); Ruiz, 462 F.3d at 1087.
2. Victim-impact evidence
The government presented twelve penalty-phase
witnesses, eight of whom testified to the non-statutory
aggravating factor “Victim Impact.”22 Defendants challenge
the admission of this victim-impact evidence insofar as it
(1) concerned not a victim’s family but his or her professional
accomplishments or value to the wider community, or
(2) touched on a victim’s religion. At most, defendants only
made the first challenge below. Thus, we review the first
challenge for abuse of discretion, and the second for plain
error. See Mitchell, 502 F.3d at 967.
22
The eight victim-impact witnesses were Nancy Shapiro Muscatel
(Muscatel’s wife), Rachel Hoisman (Muscatel’s daughter), Roman
Khayumov (Pekler’s husband), Ruven Umansky (Umansky’s father),
Michael Umansky (Umansky’s brother), Evgenia Safieva (Safiev’s
daughter), Matvy Shatz (Kharabadze’s stepfather), and Ron Shelton
(Kharabadze’s friend).
88 UNITED STATES V. MIKHEL
Defendants first argue that the Eighth Amendment and
FDPA only permit evidence of a victim’s personal
characteristics in penalty proceedings to the extent those
characteristics influenced, and thus reveal something about,
the relationship the victim had with his or her family.
Although we have not previously addressed this issue, we
agree with several of our sister circuits that have held that
victim-impact evidence is not so limited. See, e.g., United
States v. Runyon, 707 F.3d 475, 499–501 (4th Cir. 2013)
(evidence of impact of victim’s death on friends and
colleagues and of victim’s service in Navy was admissible).23
In Payne v. Tennessee, the Supreme Court held that the
Eighth Amendment does not erect a per se bar to victim-
impact evidence in capital sentencing proceedings. 501 U.S.
808, 827 (1991). Victim-impact evidence gives a “quick
glimpse” of the victim’s life and of his “uniqueness as an
individual human being.” Id. at 822–23. Such evidence is
relevant to whether the death penalty should be imposed and
is no different than any other relevant evidence. Id. at 827.
It is generally admissible if it is not “so unduly prejudicial
23
See also United States v. Whitten, 610 F.3d 168, 187–92 (2d Cir.
2010) (testimony from victim’s colleagues on police force about
professional accomplishments was admissible); United States v. Bolden,
545 F.3d 609, 626 (8th Cir. 2008) (testimony from victim’s friends,
coworkers, and pastor about his relationship with his girlfriend and career
aspirations was admissible); United States v. Battle, 173 F.3d 1343, 1348
(11th Cir. 1999) (testimony from fellow correctional officers about impact
of victim’s murder on Atlanta prison was admissible). Only the Tenth
Circuit has adopted an arguably more restrictive view: in United States v.
Fields, it held that victim-impact evidence from a friend and coworker was
admissible, but was unwilling to extend the victim-impact inquiry further
to “community-level consequences.” 516 F.3d 923, 946–48 (10th Cir.
2008).
UNITED STATES V. MIKHEL 89
that it renders the trial fundamentally unfair,” in violation of
due process. Id. at 825.
Payne concerned testimony from a victim’s grandmother
but nowhere limited victim-impact evidence to evidence by
or about family members. Rather, it expressly affirmed the
state’s “legitimate interest in . . . reminding the sentencer that
. . . the victim is an individual whose death represents a
unique loss to society and in particular to his family.” Id.
(emphasis added). Contrary to defendants’ assertions, the
Supreme Court’s recent decision in Bosse v. Oklahoma,
137 S. Ct. 1 (2016) (per curiam), does not require a narrower
reading of Payne. Bosse held that Payne did not alter the
Court’s preexisting “prohibition on characterizations and
opinions from a victim’s family members about the crime,
the defendant, and the appropriate sentence.” Id. at 2
(emphasis added). Bosse did not speak to the scope of
victim-impact testimony admissible under Payne to show the
victim’s “uniqueness as an individual human being.”
Defendants alternatively argue that, even if the Eighth
Amendment does not limit victim-impact evidence in the
manner they suggest, the FDPA does. The FDPA provides
that non-statutory aggravating factors
may include factors concerning the effect of
the offense on the victim and the victim’s
family, and may include oral testimony, a
victim impact statement that identifies the
victim of the offense and the extent and scope
of the injury and loss suffered by the victim
and the victim’s family, and any other
relevant information.
90 UNITED STATES V. MIKHEL
18 U.S.C. § 3593(a). Defendants interpret § 3593(a)’s
references to “the victim’s family” as limiting the scope of
admissible victim-impact evidence. But that language is
illustrative, not exhaustive. Section 3593(a) alludes to one
possible non-statutory aggravating factor—“the effect of the
offense on the victim and the victim’s family”—and then
gives examples of how the government may prove that factor,
ending with the catchall “any other relevant information.” It
does not prohibit evidence of a victim’s professional
accomplishments or value to the community. The
government’s victim-impact evidence was relevant to each
victim’s “uniqueness as an individual human being” and was
not “so unduly prejudicial that it render[ed] the trial
fundamentally unfair.” Payne, 501 U.S. at 822–23, 825. The
district court did not abuse its discretion.
Defendants also argue that the district court plainly erred
in failing to exclude evidence of Muscatel’s Jewish faith—
specifically, that he was a “deeply religious man,” who was
“very committed to Kabala,” “observed Shabbat every
Friday, Saturday,” and helped start a children’s spirituality
program. We faced a similar issue in Mitchell, where the
defendant challenged testimony bearing on the victim’s
religion and cultural heritage as a Native American. Mitchell,
502 F.3d at 989. We saw “nothing untoward in this
testimony,” as “it would have been difficult if not impossible
to capture what [the victim’s] loss meant to her family
without reference to the significance that traditional Navajo
religion and culture played in their lives.” Id. at 989–90.
Witnesses testified to Muscatel’s religion in the context
of describing his commitment to his family and celebration of
life. As in Mitchell, this testimony was admissible to show
Muscatel’s uniqueness as a person. See id.; see also United
UNITED STATES V. MIKHEL 91
States v. Bernard, 299 F.3d 467, 479 (5th Cir. 2002)
(“Because religion played a vital role in [the victims’] lives,
it would be impossible to describe their ‘uniqueness as
individual human beings’ without reference to their faith.”).
In any event, the testimony added little risk of prejudice
because the jury already knew of Muscatel’s religion from
Markovskis’s guilt-phase testimony.
To the extent defendants argue that the jury found for
death because Muscatel was Jewish, the argument is
unavailing. As the FDPA requires, the district court
instructed the jury not to consider the religious beliefs of any
defendant or victim. 18 U.S.C. § 3593(f). We assume jurors
follow instructions. See Mitchell, 502 F.3d at 990.
Moreover, as the FDPA requires, each juror certified he or
she would have made the same recommendation irrespective
of the religious beliefs of any defendant or victim. 18 U.S.C.
§ 3593(f). “Absent a substantial indication to the contrary,
we accept the jurors’ assurance that no impermissible
considerations of race or religion factored into the verdict.”
Mitchell, 502 F.3d at 990. There was no plain error here.
3. Misconduct in penalty-phase closing arguments
Defendants assert that several of the government’s
remarks in penalty-phase closing arguments amounted to
prosecutorial misconduct requiring reversal. Because
defendants did not object to the alleged misconduct at trial,24
24
Mikhel objected four times in penalty-phase closing arguments;
Kadamovas objected zero times. None of Mikhel’s objections preserved
the prosecutorial-misconduct claims asserted here because none were
“specific enough to bring into focus the precise nature of the alleged
92 UNITED STATES V. MIKHEL
we review for plain error. See Mitchell, 502 F.3d at 967.
“Under the plain error standard, reversal is appropriate only
if the prosecutor’s improper conduct so affected the jury’s
ability to consider the totality of the evidence fairly that it
tainted the verdict and deprived [the defendant] of a fair
trial.” United States v. Sanchez, 659 F.3d 1252, 1257 (9th
Cir. 2011) (quotation marks omitted).
First, defendants contend it was improper for the
government to argue that their mitigation evidence did not
“excuse,” “explain,” or “justify” their crimes. For instance,
defendants highlight the government’s rhetorical questions:
“Do any of the mitigating factors in this case justify or
explain the horrible crimes committed by the Defendants? . . .
Do any of them lessen the culpability of the Defendants?”
According to defendants, statements like this incorrectly told
the jury they could only consider mitigating evidence that had
some nexus to the crimes for which defendants were
convicted. See Tennard v. Dretke, 542 U.S. 274, 284 (2004)
(rejecting the view that mitigation evidence must have a
nexus to the crime of conviction); Smith v. Texas, 543 U.S.
37, 45–46 (2004) (same); Poyson v. Ryan, 879 F.3d 875, 887
(9th Cir. 2018) (same), cert. pet. docketed, No. 17-1274 (Mar.
12, 2018).
Defendants mischaracterize the government’s statements,
which did not suggest that the jury could not consider
defendants’ proffered mitigating factors but only that the jury
should not give those factors much, if any, weight. The
FDPA requires the jury to decide whether “all the aggravating
factor or factors found to exist sufficiently outweigh all the
error.” United States v. Pineda-Doval, 614 F.3d 1019, 1026 (9th Cir.
2010) (quotation marks omitted).
UNITED STATES V. MIKHEL 93
mitigating factor or factors found to exist to justify a sentence
of death.” 18 U.S.C. § 3593(e) (emphasis added). The
government’s remarks that any mitigating factors did not
“justify”—or, for the sake of variety, did not “excuse” or
“explain”—defendants’ crimes were consistent with this
statutory language. The remarks were not improper. See
Sims v. Brown, 425 F.3d 560, 580 (9th Cir. 2005)
(prosecutor’s comments were not improper where he did “not
suggest that the jury cannot consider Sims’s background as
a mitigating factor but rather that it should not find that
[factor]”).
Second, defendants contend the government misstated the
law with respect to mitigating factors when it said the
following:
When you consider each of these
mitigating factors, I’d like you to ask yourself
as to each of them, when you go back to the
Jury room to deliberate. Ask yourself, first:
Does this factor actually exist? Are there
facts that support it? Then ask yourself: If
they do exist, is this really something that
would justify a lesser sentence?
And then, finally, if you do think that it’s
something that might justify a lesser sentence,
ask yourself: What weight, if any, you should
give it in your deliberation process?
According to defendants, this statement outlined a three-step
process that conflicted with the FDPA by telling jurors to not
“consider” any mitigating factors that did not justify a lesser
94 UNITED STATES V. MIKHEL
sentence. Cf. 18 U.S.C. § 3592(a) (the jury “shall consider
any mitigating factor”).
As a threshold matter, defendants’ argument makes little
sense: regardless of whether the jury found that the proffered
mitigating factors were factually unsupported or that they
simply did not justify a lesser sentence, the final result is the
same. To the extent defendants claim the government’s
statement erroneously asked jurors to entirely ignore the
proffered mitigating factors, their claim is belied by the very
statement they quote, which begins “When you consider each
of these mitigating factors . . . .” If defendants’ contention is
rather with the government’s separation into two steps of
whether a mitigating factor “justif[ies] a lesser sentence” and
what “weight” to give that factor, their argument is still
unavailing. As explained above, the FDPA requires the jury
to determine whether aggravating factors “sufficiently
outweigh” mitigating factors “to justify a sentence of death.”
18 U.S.C. § 3593(e). The government’s paraphrase of this
language may have been a little clunky, but it did not misstate
the law.25
Third, defendants claim the government improperly
inflamed the passions of the jury by comparing life in prison
to the victims’ deaths. For instance, the government argued
that defendants’ life in prison must be measured “against the
five lives, the five lifetimes of days that have been ripped
away;” that defendants will “get three square meals a day,”
while “[t]he last thing that Meyer Muscatel tasted in his life
was that boot cover that was shoved in his mouth;” that
25
This is particularly true in light of the government’s closing
argument as a whole, which repeatedly stressed jurors’ responsibility to
“weigh” all aggravating and mitigating factors.
UNITED STATES V. MIKHEL 95
defendants’ “privileges” of watching cable television or
reading books in prison are things the victims “only wished
they could do;” and that the jury should show no mercy to
defendants because defendants showed none to their victims.
These statements should never have been made. See
Mitchell, 502 F.3d at 995 (prosecutor should not have made
several comments, such as “Mitchell gets to come before the
jury and say ‘Spare my life.’ . . . I suppose that’s the beauty
of the system. Doesn’t work for the victim.”).26 The
government responds that it was merely trying to rebut
defendants’ argument that prison life was already so harsh as
to be a sufficient sentence. While the government was surely
permitted to argue prison life was less dire than defendants
made it out to be, the government should not have done so by
comparing life in prison to the victims’ deaths. The
comparison was not necessary to rebut defendants’ arguments
and appears to have been calculated to unnecessarily inflame
the passions of the jury.
That said, we cannot conclude that the government’s
statements so “affected the jury’s ability to consider the
totality of the evidence fairly that it tainted the verdict and
deprived [defendants] of a fair trial.” Sanchez, 659 F.3d at
1257. As in Mitchell, the comments here “were not, in and of
themselves, nearly as inflammatory as the graphic evidence
of the murders, or as powerful as the extensive victim impact
26
See also United States v. Johnson, 495 F.3d 951, 979 (8th Cir.
2007) (prosecutor’s statement “No matter how small [the defendant’s] cell
may be, it’s going to be larger than the coffin that [the victims] are laying
[sic] in now” was questionable; but permitting it was not plain error);
Bland v. Sirmons, 459 F.3d 999, 1027–28 (10th Cir. 2006) (it was
improper but harmless for prosecutor to compare defendant’s life in prison
to victim’s plight).
96 UNITED STATES V. MIKHEL
testimony, which was quite properly before the jury.”
502 F.3d at 995–96 (prosecutor’s comments were not plain
error). Moreover, the jury was clearly instructed that the
government’s argument was neither evidence nor law; that it
must avoid the influence of passion or prejudice; and that it
must weigh all aggravating and mitigating factors. There was
no plain error.
4. Instruction and verdict form on future dangerousness
Defendants claim the jury instruction and verdict form on
the non-statutory aggravating factor of future dangerousness
violated due process and impermissibly intruded on the jury’s
role as fact finder. We review de novo whether the jury
instruction and verdict form violated due process. United
States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). In
addition, we review the district court’s formulation of its
instructions for abuse of discretion. Id. at 898.
The government’s notice of intent to seek the death
penalty included the non-statutory aggravating factor of
“Future Dangerousness of the Defendant.” The notice
indicated the government would prove future dangerousness
in three ways: defendants’ continuing pattern of violence,
their escape risk and institutional misconduct, and their lack
of remorse. Defendants initially submitted a proposed future-
dangerousness jury instruction that closely tracked the
language in the government’s notice and specifically referred
to the government’s three methods of proof. The government
submitted a substantially identical proposed jury instruction.
At the jury charge conference, however, defense counsel
changed course and objected to the district court’s future-
dangerousness instruction on two grounds. First, defense
UNITED STATES V. MIKHEL 97
counsel argued the factor should be limited to future
dangerousness in federal prison. The court agreed and
altered the factor to read “Future Dangerousness of Defendant
If Confined To A Federal Prison For The Rest Of His Life
Without The Possibility Of Release.” Second, defense
counsel argued that the government’s three allegations
concerning the defendants’ future dangerousness—continuing
pattern of violence, escape risk and institutional misconduct,
and lack of remorse—should not appear anywhere in the
instruction or verdict form. The court rejected this argument,
and the final verdict form read:
Instructions: For each of the following
questions, answer “yes” or “no” to the five
numbered questions below. (You need not
answer “yes” or “no” to the lettered
statements contained in question number 1,
which merely describe the government’s
allegation of how the existence of a non-
statutory aggravating factor would be
demonstrated.)
1. Future Dangerousness of Defendant If
Confined To A Federal Prison For The Rest
Of His Life Without The Possibility Of
Release. Do you, the jury, unanimously find
that the government has proved beyond a
reasonable doubt that the defendant is likely
to commit criminal acts of violence in the
future that would constitute a continuing and
serious threat to the lives and safety of others,
including one or more of the following:
98 UNITED STATES V. MIKHEL
a. Continuing Pattern of Violence. The
defendant has engaged in a continuing pattern
of violence, attempted violence, and
threatened violence, including, at least, the
crimes charged in the Second Superseding
Indictment.
b. Escape Risk and Institutional
Misconduct. The defendant poses a future
danger to the lives and safety of other persons,
as demonstrated by his escape risk and
institutional misconduct, including, at least:
defendant’s participation in a conspiracy to
escape from the Metropolitan Detention
Center Los Angeles, California, which was
detected by the government on or about
March 7, 2003, and charged as Count Six in
the Second Superseding Indictment.
c. Lack of Remorse. The defendant has
demonstrated a lack of remorse for the capital
offenses committed in this case, as indicated
by his statements and actions during the
course of and following the offenses alleged
in the Second Superseding Indictment.
ANSWER TO SECTION IV, QUESTION
NUMBER 1:
Yes ____
No ____
UNITED STATES V. MIKHEL 99
The final jury instruction on future dangerousness used
substantially identical language but substituted “as evidenced
by, at least, one or more of the following” for “including one
or more of the following.”
Defendants’ challenge on appeal centers on the three
lettered subheadings describing the government’s future-
dangerousness allegations. In the penalty phase, Kadamovas
presented Dr. Mark Cunningham as an expert regarding
future dangerousness in prison. Dr. Cunningham described
several statistical studies of violence in prisons. Among other
things, he opined that, even though a conviction for
conspiring to escape is “a warning factor,” “[h]istory of
escape . . . does not seem to be reliably predictive of violence
in prison;” that “community violence [outside of prison] is
not a reliable predictor of prison violence;” and that given the
prevalence of “antisocial personality disorder” and repeat
offenses among prisoners, “remorse is not going to tell you
anything about who’s likely to be violent in prison.” Dr.
Cunningham concluded that Kadamovas was “quite unlikely
to commit acts of serious violence [if] confined for life in
federal prison,” especially in light of his age, his lack of
serious violence during pretrial custody, the low rate of
serious violence among capital offenders, and the low rate of
serious violence in U.S. penitentiaries.
Based on Dr. Cunningham’s testimony, defendants argued
to the jury that none of the three lettered subheadings listed
in the jury instruction and verdict form could predict future
dangerousness. Defendants now contend that the instruction
and verdict form prevented the jury from crediting their
argument and therefore amounted to a “permissive inference
instruction” that violated due process or, at least, was an
100 UNITED STATES V. MIKHEL
abuse of the district court’s discretion in formulating
instructions.
“A permissive inference instruction allows, but does not
require, a jury to infer a specified conclusion if the
government proves certain predicate facts.” Warren, 25 F.3d
at 897–98 (addressing the instruction “If it is shown that the
defendant used a deadly weapon . . . , then you may find, . . .
the existence of the malice”). Such an instruction violates
due process if it suggests a conclusion that “is not one that
reason and common sense justify in light of the proven facts
before the jury.” Id. at 897; see also United States v. Rubio-
Villareal, 967 F.2d 294, 296 (9th Cir. 1992) (en banc) (“A
permissive inference is constitutional so long as it can be said
‘with substantial assurance’ that the inferred fact is ‘more
likely than not to flow from the proved fact on which it is
made to depend.’” (quoting Ulster County v. Allen, 442 U.S.
140, 166 n.28 (1979))). In addition, a district court abuses its
discretion in formulating instructions if “the instructions—
taken as a whole and viewed in context of the entire
trial—were misleading or confusing, inadequately guided the
jury’s deliberations, or improperly intruded on the fact
finding process.” Warren, 25 F.3d at 898.
We assume without deciding that the district court erred
in listing the government’s allegations under the heading of
future dangerousness but conclude that any error in this
regard was harmless. Although defendants claim the
government forfeited harmlessness on this issue, the FDPA
requires that a “court of appeals shall not reverse or vacate a
sentence of death on account of any error which can be
harmless, including any erroneous special finding of an
aggravating factor, where the Government establishes beyond
a reasonable doubt that the error was harmless.” 18 U.S.C.
UNITED STATES V. MIKHEL 101
§ 3595(c)(2). We have held that even where the government
does not argue harmlessness, “we are not foreclosed from
considering prejudice ourselves. Indeed, under the FDPA we
must consider whether error in a sentence of death is
harmless.” Mitchell, 502 F.3d at 977 (emphasis in original).
In particular, “we may overlook the government’s failure to
mount a harmless error argument when . . . considerations of
length and complexity of the record, certainty of how
harmless the error is, and the consequences of reversal
(‘protracted, costly, and ultimately futile proceedings in the
district court’) counsel in favor of doing so.” Id. at 977–78.
These reasons strongly support a harmlessness inquiry in this
case. Furthermore, it is not even clear that the government
forfeited harmlessness in this case. Harmlessness was a
consistent theme in the government’s voluminous answering
brief, and though the government did not make a full
harmless-error argument with respect to the specific
instruction and verdict form at issue here, it correctly noted
that any error in this regard was subject “to a harmless error
review.” “[T]he rule of waiver is a discretionary one,” Ruiz
v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.
2012), and even if the FDPA did not require us to review for
harmlessness, we would exercise our discretion to do so here.
Error in a jury instruction or verdict form is harmless if it
is “clear beyond a reasonable doubt that a rational jury”
would have reached the same decision absent the error.
United States v. Anchrum, 590 F.3d 795, 801 (9th Cir. 2009).
The evidence of defendants’ future dangerousness was
overwhelming and included the brutal manner in which they
killed Muscatel, Pekler, Umansky, Kharabadze, and Safiev in
four separate incidents over the course of four months; the
cold and premeditated nature of their crimes (including
stopping for dinner on the way to dispose of Umansky’s
102 UNITED STATES V. MIKHEL
body); and their demonstrable indifference to their victims’
suffering (e.g., Mikhel saying Safiev and Pekler were as
difficult to kill as snakes, and Kadamovas laughing about
throwing a “fat Jew” off a bridge). The evidence showed not
only defendants’ violent actions but that they had announced
their intention to continue taking and killing hostages for
financial gain. Once they had been arrested and jailed,
Mikhel and Kadamovas carefully plotted their escape from
prison—a plan that involved other prisoners and that
acknowledged they might have to kill guards on the way
out.27 Mikhel later devised a second, solo escape plan despite
the Special Administrative Measures used to secure him.
That plan showed similar sophistication and a willingness to
involve criminal organizations with resources outside the jail.
Although defendants only faced the possibility of the death
penalty while awaiting trial, they proved resourceful,
determined, and desperate to escape incarceration without
regard to the attendant risk to themselves or others.
In assessing harmlessness, we must take into account that
future dangerousness was only one of nine aggravating
factors. Four of those factors were statutory: death during
commission of another crime, procurement of offense by
payment, substantial planning and premeditation, and
multiple killings. 18 U.S.C. § 3592(c). To those the
government added five more non-statutory factors:
contemporaneous convictions for multiple offenses, witness
elimination, emotional suffering of the victims, victim
27
The erroneous admission of Mikhel’s letter penned after
Kadamovas withdrew from the escape conspiracy does not alter this
conclusion. See supra at 80–83. Although the letter was probative of
Kadamovas’s future dangerousness, it was merely a drop in an ocean of
more probative evidence of future dangerousness.
UNITED STATES V. MIKHEL 103
impact, and future dangerousness. Under the FDPA, the jury
had to find at least one of the statutory factors to recommend
the death penalty, and it had to make a specific and
unanimous finding as to any statutory factor found to exist.
18 U.S.C. § 3593(d). By unanimous vote, the jury found the
existence of every aggravating factor the government
presented, both statutory and non-statutory. The jury
therefore had to weigh these aggravating factors against any
mitigating factor found by one or more jurors. Id. § 3593(d),
(e). In fact, no juror found any mitigating factor. The jury’s
unanimous findings make clear that it had no difficulty
weighing aggravating and mitigating factors: it found
multiple, independent reasons to impose the death penalty,
and no reason in mitigation to spare defendants. We can be
confident that any alleged error in the instruction on the
single non-statutory factor of future dangerousness would not
have changed the verdicts; even if the jury had not concluded
that defendants presented a risk of future danger, it would still
have had eight independent reasons (four statutory and four
non-statutory) to impose the death penalty and no reasons not
to impose it. See Mitchell, 502 F.3d at 977 (claimed error
respecting aggravating factor was harmless; “the jury found
five other statutory aggravating factors; only one is required
. . . [the defendant] remains death eligible even if this one
statutory aggravating factor is disregarded”).
In addition, we note that the district court mitigated any
potential prejudice to defendants by carefully and repeatedly
instructing the jury on its role as fact finder and on its
ultimate responsibility to weigh all aggravating and
mitigating factors in reaching a bottom-line recommendation
of death or a lesser sentence. Given the circumstances of this
case, we have no question the jury would have returned a
finding of future dangerousness and a recommendation of
104 UNITED STATES V. MIKHEL
death even if the instruction and verdict had not listed the
government’s three future-dangerousness allegations. In sum,
even if we thought there was some flaw in the instructions,
the callous and heinous nature of the defendants’ crimes, their
disregard for life, and their utter lack of remorse, would
“compel[ ] [us] to conclude . . . that it is not reasonably
probable that even one juror would have held out for a life
sentence over death.” Allen v. Woodford, 395 F.3d 979,
984–85 (9th Cir. 2005).
5. Griffin error
Defendants claim the government commented on their
failure to testify at trial in violation of their Fifth Amendment
rights under Griffin v. California, 380 U.S. 609, 611–13
(1965). “A prosecutor’s comment is impermissible if it is
‘manifestly intended to call attention to the defendant’s
failure to testify or is of such a character that the jury would
naturally and necessarily take it to be a comment on the
failure to testify.’” Beardslee v. Woodford, 358 F.3d 560,
586 (9th Cir. 2004). This rule applies equally to trial and
penalty phases. Id. at 587. Defendants preserved their
objection, and we therefore review the alleged Griffin error de
novo. United States v. Inzunza, 638 F.3d 1006, 1022 (9th Cir.
2011).
Defendants claim the government implicitly commented
on their failure to testify in two ways. First, defendants point
to the government’s statements that they never “expressed
remorse,” arguing that the jury inevitably understood the
government as referring to their failure to express remorse
while testifying. Taken in context of the government’s entire
closing argument, these statements clearly referred not to
defendants’ failure to testify but to their conduct during, and
UNITED STATES V. MIKHEL 105
in the months after, the killings. For example, the
government argued: “You heard about the actions that these
defendants took after each of their killings, up to and
including the escape attempts. They’ve never shown
remorse.” Statements such as this did not violate defendants’
Fifth Amendment rights. See Beardslee, 358 F.3d at 586.
Second, defendants challenge the government’s
statements comparing their lack of remorse to Altmanis’s
decision to confess and cooperate. According to defendants,
these statements suggested they lacked remorse by failing to
testify. The statements, however, were made in the context
of comparing the coconspirators’ conduct. For example, the
government argued: “[W]hat I would ask you to do, ladies
and gentlemen, is to compare; compare Ainar Altmanis;
compare his conduct with that of Jurijus Kadamovas.” The
government also noted that “[Altmanis] led the FBI to bodies
they never would have found in this case.” This was relevant
not only to establishing Mikhel and Kadamovas’s lack of
remorse but to rebutting one of their proffered mitigating
factors—i.e., that Altmanis was “equally culpable in the
crime” but would not be punished by death. See 18 U.S.C.
§ 3592(a)(4). Because none of the government’s statements
in this regard would “naturally and necessarily” be
understood as commenting on defendants’ failure to testify,
there was no Griffin error. Beardslee, 358 F.3d at 586–87.
Relatedly, Mikhel claims the same two categories of
statements invited the jury to consider his stricken testimony,
thereby violating the district court’s order striking that
testimony and amounting to prosecutorial misconduct. For
the same reasons given above, the government’s statements
regarding Mikhel’s lack of remorse and Altmanis’s
cooperation clearly referred to the coconspirators’ respective
106 UNITED STATES V. MIKHEL
conduct during and following the killings. The statements did
not refer to Mikhel’s testimony and thus neither violated the
district court’s order that the testimony be stricken nor
constituted prosecutorial misconduct.28
6. Examination of Dr. Mark Cunningham
Kadamovas presented expert testimony from Dr.
Cunningham regarding statistical violence rates in prison.
While cross-examining Dr. Cunningham, the government
asked the following questions:
Q. I’d like to ask you some questions about
the features that you accounted for in your
base rate studies in reaching your assessment
about Defendant Kadamovas?
A. Yes, ma’am.
28
Defendants also argue the government’s statements violated the
FDPA. The FDPA directs that the jury “shall consider any mitigating
factor,” including whether any “defendant or defendants, equally culpable
in the crime, will not be punished by death.” 18 U.S.C. § 3592(a)(4)
(emphasis added). Defendants ask us to interpret the words “in the crime”
to preclude the government from offering any evidence or argument
regarding a coconspirator’s behavior after the crime (such as Altmanis
cooperating with the FBI’s investigation). But § 3592(a) does not purport
to limit the scope of admissible evidence; rather, it lists several potentially
mitigating factors and ends in a broad catchall for “[o]ther factors in the
defendant’s background, record, or character or any other circumstance of
the offense.” It is § 3593(c) that principally governs the evidence
admissible in capital penalty proceedings, and that section permits the
government “to rebut any information received at the hearing” and to
“present argument as to the adequacy of the information to establish the
existence of any . . . mitigating factor.” The government’s statements did
not violate the FDPA.
UNITED STATES V. MIKHEL 107
Q. What percentage of the people in your base
rate studies were Russian or Lithuanian?
A. I do not know the ethnic origins of the
individuals in these studies. . . .
The government then proceeded to ask Dr. Cunningham
about whether his studies accounted for inmates who
committed more than one murder, committed murder with
premeditation, or were in their mid-30s. The clear intent of
these questions was to suggest that Dr. Cunningham’s studies
were not tailored to Mikhel or Kadamovas.
Kadamovas characterizes the government’s question
about persons of Russian or Lithuanian origin as an appeal to
ethnic prejudice that violated his Fifth Amendment right to a
fair trial. Although he concedes that Dr. Cunningham did not
substantively answer the question, he argues that “the mere
question, with its improper implication, constituted
misconduct.” Neither defendant objected to the question
below, so we review for plain error. See Mitchell, 502 F.3d
at 967.
Kadamovas relies principally on our decisions in Bains v.
Cambra, 204 F.3d 964, 974 (9th Cir. 2000), and United States
v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000). In Bains, we
held it was error for a prosecutor to generalize that “all Sikh
persons (and thus Bains by extension) are irresistibly
predisposed to violence when a family member has been
dishonored.” 204 F.3d at 974–75. Likewise, in Cabrera, we
held it was plain error to admit an investigating officer’s
repeated testimony about Cubans being drug dealers and
flight risks. 222 F.3d at 594–96. To the extent the
government’s questioning in this case could be interpreted as
108 UNITED STATES V. MIKHEL
appealing to ethnic or national-origin stereotyping, it was at
most a subtle reference and was not emphasized like the anti-
Sikh references in Bains or the anti-Cuban references in
Cabrera.29 There was no plain error in permitting the
government’s single question.30
7. Mikhel’s excluded mitigation evidence
Mikhel sought to introduce a number of videotaped
interviews of his friends and family. These were not
depositions: the witnesses were not under oath, and the
government was not represented. The district court admitted
several of the interviews, but excluded all of an interview
with Mikhel’s ex-girlfriend, Marina Karagodina, and a small
part of an interview with Mikhel’s cousin, Edward Mikhel.
Mikhel claims the exclusion of this evidence violated his
rights under the Eighth Amendment and FDPA. We review
29
Kadamovas also cites the Supreme Court’s decision in Buck.
137 S. Ct. at 769. In that case, defense counsel called an expert
psychologist who testified the defendant was statistically more likely to
be violent because he was black. Id. The Court held this testimony
supported an ineffective assistance of counsel claim and noted it “would
be patently unconstitutional for a state to argue that a defendant is liable
to be a future danger because of his race.” Id. at 775. Here, by contrast,
Dr. Cunningham did not even give a substantive answer to the
government’s question. Regardless, the government’s question did not
imply defendants were liable to pose a future danger based on their race
or ethnicity.
30
To the extent defendants argue the jury found future dangerousness
because of their national origin, the district court instructed the jury not to
consider national origin, and the jury certified it did not do so. We accept
the jurors’ assurance that no impermissible considerations factored into
the verdict absent substantial indication to the contrary. Mitchell,
502 F.3d at 990.
UNITED STATES V. MIKHEL 109
the exclusion of mitigating evidence for abuse of discretion.
See 18 U.S.C. § 3593(c); Mitchell, 502 F.3d at 991.
The Eighth Amendment and FDPA protect the right to
present relevant mitigating evidence in capital sentencing
proceedings. 18 U.S.C. § 3593(c); Eddings v. Oklahoma,
455 U.S. 104, 113–15 (1982). “Relevant mitigating evidence
is evidence which tends logically to prove or disprove some
fact or circumstance which a fact-finder could reasonably
deem to have mitigating value.” Tennard, 542 U.S. at 284.
Under the FDPA, “[i]nformation is admissible regardless of
admissibility under the [Federal] Rules [of Evidence], except
that in the trial judge’s discretion, information ‘may be
excluded if its probative value is outweighed by the danger of
creating unfair prejudice, confusing the issues, or misleading
the jury.’” Mitchell, 502 F.3d at 991 (quoting 18 U.S.C.
§ 3593(c)).
Among other things, Karagodina stated in her interview
that she had a good relationship with Mikhel, that Mikhel had
been good to her son from a previous marriage, and that
Mikhel deserved mercy. The district court excluded the
interview entirely, reasoning that Karagodina was being led
by the investigator’s questions, lacked first-hand knowledge
on some issues, gave irrelevant testimony about Mikhel’s
arrest and her feelings toward the police, and could have
traveled from England to the United States to testify in
person. To this list of reasons to exclude the interview, the
government adds that much of what Karagodina said in 2002
was no longer true by the time the penalty phase began in
2007. The government cites a 2005 interview in which
Karagodina called Mikhel a “scary man” and said that he had
threatened her, that she had switched phone numbers because
110 UNITED STATES V. MIKHEL
of him, and that she had changed her daughter’s last name
from “Mikhel” to “Karagodina.”
Parts of the Karagodina interview spoke to Mikhel’s
character and background and thus were at least marginally
relevant. See 18 U.S.C. § 3592(a)(8). Nevertheless, the
district court was within its discretion in excluding the
interview for its danger of creating unfair prejudice,
confusing the issues, or misleading the jury. See Mitchell,
502 F.3d at 991. As the district court explained, many of
Karagodina’s statements “were, at best, gratuitous remarks or
coached answers by defense investigators.” Moreover, had
the interview been admitted, the government would have had
no opportunity to cross-examine Karagodina on her alleged
involvement in Mikhel’s crimes and bring to light her
changed attitude toward Mikhel. Although it might not have
been an abuse of discretion to admit the interview, we hold
the district court did not abuse its discretion in excluding it.
Cf. United States v. Taylor, 814 F.3d 340, 363 (6th Cir. 2016)
(mitigation evidence may have been admissible, but it was
not an abuse of discretion to exclude it).
The district court admitted most of Edward’s interview
but excluded a small portion at the end in which he stated:
“The only thing I ask for to be merciful, the court to be
merciful. Maximum merciful as it is possible to my cousin,
to my relative. What else can I say? To be merciful, to be
merciful.” It seems Edward did not know Mikhel well, and
defense counsel conceded Edward had not seen Mikhel for
years. The district court reasoned that Edward’s plea for
mercy was irrelevant because it was “not a mitigating factor”
but “just a personal plea on behalf of the witness who has no
knowledge of what transpired here.”
UNITED STATES V. MIKHEL 111
Mikhel argues on appeal that a bare plea for mercy is
relevant mitigating evidence under our decision in Mitchell.
But that case does not help him. In Mitchell, we held the
district court “drew a fine, but appropriate, line” by admitting
testimony regarding witnesses’ “affection for [the defendant]
and their wish for his life to be spared,” while excluding
testimony offering “an opinion about what they thought the
jury’s verdict should be.” 502 F.3d at 991. Here, Edward’s
plea for mercy—particularly in light of his apparently limited
relationship with Mikhel—was essentially an opinion about
what the jury’s verdict should be. The plea did not bear on
Mikhel’s character, prior record, or the circumstances of his
offense. The district court did not abuse its discretion in
excluding it.31 See id.; see also Lockett v. Ohio, 438 U.S. 586,
604 n.12 (1978) (reaffirming “the traditional authority of a
court to exclude, as irrelevant, evidence not bearing on the
defendant’s character, prior record, or the circumstances of
his offense”).
8. Kadamovas’s future dangerousness
Kadamovas claims the evidence was insufficient for the
jury to find that he presented a risk of future dangerousness
if confined to prison. As described above, Kadamovas
offered Dr. Cunningham as an expert witness on future
dangerousness. Dr. Cunningham presented statistical studies
of violence rates in prisons and opined that Kadamovas was
“quite unlikely to commit acts of serious violence [if]
31
Moreover, any error in this regard was harmless for the reasons
explained above, particularly in light of the minimal to nonexistent
probative value of Mikhel’s proffered mitigation evidence. See McKinney
v. Ryan, 813 F.3d 798, 821 (9th Cir. 2015) (en banc) (reviewing the
exclusion of mitigating evidence for harmlessness).
112 UNITED STATES V. MIKHEL
confined for life in federal prison,” given his age, his lack of
serious violence during pretrial custody, the low rate of
serious violence among capital offenders, and the low rate of
serious violence in U.S. penitentiaries. Kadamovas now
argues that, in light of Dr. Cunningham’s purportedly
“unrebutted” testimony, there was no basis for the jury to find
against him with respect to the non-statutory aggravating
factor of future dangerousness. We review for whether any
rational trier of fact could have found this factor beyond a
reasonable doubt. See United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc).
Kadamovas simply overlooks the fact that the
government’s penalty-phase case incorporated all of its guilt-
phase evidence, which included the gruesome means by
which Kadamovas participated in killing five people; his
callous remarks about the victims; his statement that he
would continue taking hostages even if it meant piling bodies
up to the surface of the reservoir; and his conviction for
conspiring to escape custody. There was no shortage of
evidence suggesting that Kadamovas presented a risk of
future dangerousness if confined to prison. Although the
government did not present its own expert to contradict Dr.
Cunningham, it was not required to do so. The jury did not
have to find Dr. Cunningham’s statistical studies or opinion
testimony persuasive. Dr. Cunningham presented statistics
related to the probability that persons with certain
characteristics would be dangerous in the future. He did not,
and could not, testify that Kadamovas would not be
dangerous in the future. The jury could certainly have found
that Kadamovas’s own conduct was more probative of his
future dangerousness than Dr. Cunningham’s statistics about
future dangerousness generally. Thus, the jury could have
reasonably relied on the government’s guilt-phase evidence
UNITED STATES V. MIKHEL 113
to conclude that Kadamovas presented a risk of future
dangerousness beyond a reasonable doubt.
9. Nazi and anti-Semitism evidence
Kadamovas claims the government improperly introduced
“Nazism and anti-Semitism evidence” and prejudicially
portrayed him “as an anti-Semitic Nazi sympathizer.”32
Specifically, he argues the admission of (1) an antique dagger
with swastikas on the handle and (2) testimony that he
described a victim as a “fat Jew,” along with the
government’s references to that testimony during argument,
violated his constitutional and statutory rights. As
Kadamovas only objected to the dagger below, we review the
first challenge for abuse of discretion, and the second
challenge for plain error. See Mitchell, 502 F.3d at 967.
Coconspirator Krylov purchased the dagger at Mikhail
Gurevich’s pawn shop, which defendants used to launder
ransom money. Later, the FBI found the dagger at
Kadamovas’s home. Over Kadamovas’s objection, the court
ruled the dagger relevant and admissible to connect him to the
money-laundering conspiracy. Kadamovas requested that the
government “not focus or highlight the swastika on the
dagger,” and the court agreed the prosecution should not do
so. As a result, the prosecution never used the words “Nazi”
or “swastika” before the jury.
The dagger was admitted through the testimony of an FBI
agent who referred only to its “distinct markings.” Weeks
32
Kadamovas argues that these harms were exacerbated by the
improper victim-impact evidence touching on Muscatel’s Jewish faith. As
explained above, the victim-impact evidence was properly admitted.
114 UNITED STATES V. MIKHEL
later, Gurevich testified and mentioned the swastikas on the
handle in identifying the dagger as the one Krylov had
purchased. The court denied Kadamovas’s motion for a
mistrial based on this testimony, noting there was no risk of
prejudice as the dagger had been introduced into evidence
and the jurors would see it when given the exhibits.
Kadamovas did not ask for a limiting instruction or object to
the dagger’s consideration during the penalty phase, during
which it was never mentioned.
The dagger was relevant to prove the existence of a
conspiracy to commit money laundering and admissible
under both the Federal Rules of Evidence and the FDPA. The
district court did not abuse its discretion in balancing the
evidence’s probative value against its potential for unfair
prejudice, and minimized any potential prejudice by
instructing the government not to refer directly to the
swastikas—which the government did not do at any time.
The only mention of the swastikas to the jury came from
Gurevich, who did so in the context of explaining why he was
able to identify the knife from Kadamovas’s house as the one
he had sold years before to Krylov (a fact to which
Kadamovas did not stipulate).
Kadamovas also argues that admitting the dagger
implicated his First Amendment rights. His argument is
perplexing because he does not claim to hold any protected
belief or association regarding Nazism, but rather denies he
is a Nazi sympathizer. Regardless, his argument is without
merit. In Dawson v. Delaware, the Supreme Court held that
admitting evidence relating to the defendant’s membership in
the Aryan Brotherhood that was “totally without relevance”
violated the defendant’s First Amendment right to
association. 503 U.S. 159, 165 (1992). Dawson concluded
UNITED STATES V. MIKHEL 115
that “the Constitution does not erect a per se barrier to the
admission of evidence concerning one’s beliefs and
associations at sentencing simply because those beliefs and
associations are protected by the First Amendment,” but that
such evidence must be relevant. Id. Here, the dagger was
relevant to Kadamovas’s participation in the conspiracy, and
Gurevich’s testimony was relevant to the dagger’s
identification. There was no abuse of discretion in admitting
this evidence.
We turn next to Kadamovas’s challenge to Markovskis’s
testimony that he referred to a victim as a “fat Jew.” In the
guilt phase, Markovskis testified that Kadamovas laughingly
described throwing a “fat Jew” (i.e., Muscatel) off a bridge.
Markovskis said Kadamovas “didn’t mention the name of the
person, he described him only as a fat Jew, fat, heavy
person.” The government briefly referred to this testimony in
its guilt and penalty-phase opening statements and closing
arguments. It was not plain error to admit Markovskis’s
testimony, which was relevant to identifying Muscatel as
Kadamovas’s unnamed victim. Similarly, the government’s
reasonable repetition of Kadamovas’s words was permissible
to argue both Kadamovas’s connection to Muscatel’s death
and his lack of remorse.
Contrary to defendants’ assertions, the government did
not use Markovskis’s testimony to inflame the passions of the
jury or as improper propensity evidence. While a
prosecutor’s “appeal[ ] to racial, ethnic, or religious
prejudice” against a defendant violates the Fifth Amendment
right to a fair trial, Cabrera, 222 F.3d at 594, no such appeal
was made here in eliciting testimony from a coconspirator
that connected Kadamovas to one of the charged acts and
bore on an aggravating factor. We have also recognized that
116 UNITED STATES V. MIKHEL
“race or ethnicity is relevant and not prejudicial” when used
for identification purposes. Id. at 597 (emphasis added). It
was therefore not plain error to allow Markovskis’s testimony
or the government’s references to it.
10. Kadamovas’s mitigating factors
Kadamovas proffered nine mitigating factors, including
the statutory mitigating factor that he had no prior criminal
record (which he claims the government conceded below).
He argues that the jury’s failure to find even this one
mitigating factor demonstrates that it disregarded its statutory
obligation to “consider” mitigating factors and therefore
rendered an “arbitrary” verdict.
“Neither the FDPA nor [the Constitution] require a capital
jury to give mitigating effect or weight to any particular
evidence.” United States v. Basham, 561 F.3d 302, 337 (4th
Cir. 2009); accord United States v. Lawrence, 735 F.3d 385,
426 (6th Cir. 2013); United States v. Paul, 217 F.3d 989,
999–1000 (8th Cir. 2000). “There is no constitutional
requirement that the jury find a mitigating factor even when
it is supported by uncontradicted evidence.” United States v.
Higgs, 353 F.3d 281, 327 (4th Cir. 2003). Nor does the
FDPA’s “shall consider” language impose any such
requirement. See 18 U.S.C. § 3592(a); see also Higgs,
353 F.3d at 327 (noting that § 3592(a) requires the jury to
consider mitigating factors but nevertheless holding the jury
need not find any mitigating factor). Rather, our concern in
this regard is whether “there exists a reasonable likelihood
that the jurors believed themselves precluded from
considering relevant mitigating evidence.” Paul, 217 F.3d at
1000. Here, the jury was allowed to consider all of
Kadamovas’s relevant mitigating evidence. It was not
UNITED STATES V. MIKHEL 117
required to find any mitigating factor based on that
evidence.33
Moreover, the jury’s failure to find that Kadamovas had
no prior criminal record was reasonable. Kadamovas’s only
evidence in this regard was a letter from the Lithuania
Department of Informatics and Communications stating that
it had no “records of criminal activities or law suits in the
name of Mr. Jurijus Kadamovas.” Kadamovas offered no
testimony about the letter’s reliability, who wrote it, or what
it meant. The letter does not prove that Kadamovas had no
prior criminal record. It only showed that one agency in his
home country had no such record; it said nothing about the
reliability of the evidence or its implications for records in
other jurisdictions. Furthermore, the government did not
concede the point: at most, the prosecutor said it was
“[m]aybe” true Kadamovas had no record, “but he sure made
up for lost time.” Defendants bore the burden of proving
mitigating factors by a preponderance of the evidence, see
18 U.S.C. § 3593(c), and a reasonable trier of fact could have
found that Kadamovas failed to prove he had no prior
criminal record, cf. Lawrence, 735 F.3d at 421 (“Speculation
is insufficient to show arbitrary influence; there must be some
basis for concluding that emotion rather than reason swayed
the jury.”).
33
Even if the jury had found that Kadamovas lacked a prior criminal
record (or that there was at least no evidence he had a prior criminal
record), the jury still would have been required to weigh that mitigating
factor against all the aggravating factors it found to exist. See 18 U.S.C.
§ 3593(e). Nothing in the FDPA, the jury instructions, or the verdict form
required the jury to treat the lack of a prior criminal record as sufficiently
mitigating to render the imposition of the death penalty unjustifiable.
118 UNITED STATES V. MIKHEL
11. Lithuania’s abolition of the death penalty
Kadamovas proposed the following mitigating factor:
“Jurijus Kadamovas is a citizen of Lithuania, a country which
has abolished the death penalty.” The government argued
that Lithuania’s abolition of the death penalty was unrelated
to the offense, the circumstances of the offense, or
Kadamovas, and therefore was not a relevant factor. The
district court agreed and rejected the proposed factor.
Kadamovas claims the exclusion of this factor and related
evidence violated his statutory and constitutional rights. We
review the exclusion of mitigating evidence for abuse of
discretion. See 18 U.S.C. § 3593(c); Mitchell, 502 F.3d at
991.
As previously noted, the Eighth Amendment and FDPA
protect the right to present relevant mitigating evidence in
capital sentencing proceedings. Eddings, 455 U.S. at 113–15;
18 U.S.C. § 3593(c). A capital jury cannot be precluded from
considering as mitigating evidence “any aspect of a
defendant’s character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a
sentence less than death.” Lockett, 438 U.S. at 604 & n.12.
But evidence that does not bear on the defendant’s character,
prior record, or the circumstances of the offense may be
excluded as irrelevant. Id.; Tennard, 542 U.S. at 284–86;
Hamilton v. Ayers, 583 F.3d 1100, 1132 (9th Cir. 2009)
(“[V]irtually no limits are placed on the relevant mitigating
evidence a capital defendant may introduce concerning his
own circumstances.” (emphasis added) (quoting Payne,
501 U.S. at 822)).
Kadamovas contends Lithuania’s abolition of the death
penalty is relevant because it relates to (1) his background as
UNITED STATES V. MIKHEL 119
a Lithuanian citizen and (2) the circumstances of his offense,
as his status as a foreign national was an element under
18 U.S.C. § 1203. But the excluded mitigating factor was not
evidence of Kadamovas’s citizenship; it was rather evidence
of Lithuania’s abolition of the death penalty. Kadamovas’s
citizenship may well have been relevant to his background,
and indeed, one of the mitigating factors the jury considered
was that he “was raised under a communist system of
government that devalued the life of the individual.” In
contrast, Lithuania’s abolition of the death penalty has no
bearing on Kadamovas’s character, his prior record, or the
circumstances of his offense. Kadamovas’s proposed factor
was irrelevant.
In analogous cases, the Fourth and Sixth Circuits have
held that a federal capital defendant’s ineligibility for the
death penalty under state law is not relevant mitigating
evidence. Higgs, 353 F.3d at 328; United States v. Gabrion,
719 F.3d 511, 520–23 (6th Cir. 2013) (en banc). As the Sixth
Circuit explained:
That Michigan lacks a death penalty . . . has
nothing to do with Gabrion’s background or
character. It has nothing to do with the
reasons why he chose to kill Rachel
Timmerman. It has nothing to do with the
utter depravity of the manner in which he
killed her. And above all it has nothing to do
with his culpability for that offense or with
any other consideration the Supreme Court
has ever flagged as mitigating.
Gabrion, 719 F.3d at 522. The location of the offense on
federal land may have been relevant to the circumstances of
120 UNITED STATES V. MIKHEL
the offense in those cases, but that did not make it relevant
mitigating evidence that the defendant would not have been
eligible for the death penalty under different law. To hold
otherwise would simply be an invitation to jury nullification.
See United States v. Gabrion, 648 F.3d 307, 362–63 (6th Cir.
2011) (Batchelder, C.J., concurring in part and dissenting in
part) (“Gabrion’s counsel would urge the jurors to disregard
federal law in favor of Michigan law and decline to impose
the death penalty because it would be unavailable under
Michigan law.”), reh’g en banc granted, opinion vacated
(Nov. 17, 2011), on reh’g en banc, 719 F.3d 511 (6th Cir.
2013).
Kadamovas cites our decision in Mitchell, in which a
letter from the Navajo Nation opposing capital punishment
both as a general matter and specifically as to the defendant
was admitted as mitigating evidence. 502 F.3d at 989. Even
though the Navajo Nation’s opposition to the death penalty
was not proffered as a mitigating factor, seven of the jurors
wrote on the verdict form that they found it to be an
additional mitigating factor. Id. at 974, 989. Given that
Mitchell involved an intra-Indian crime committed in Navajo
territory, id. at 946–49, the fact that the Navajo Nation
opposed the death penalty for Mitchell personally may have
been relevant. That does not suggest, however, that the
general laws of Lithuania were relevant in this case.34
Lithuanian law had nothing to do with Kadamovas’s
34
Kadamovas asserts on appeal that Lithuania does oppose the death
penalty for him personally, citing a 2012 letter expressing the Lithuanian
Embassy’s position against the death penalty. We need not decide
whether that letter would have been relevant had it been written before
trial and proffered below. The evidence Kadamovas proffered to the
district court was not Lithuania’s opposition to the death penalty for him
personally but its abolition of the death penalty generally.
UNITED STATES V. MIKHEL 121
background, character, or offense. It was not relevant
mitigating evidence, and the district court did not abuse its
discretion in excluding Kadamovas’s proffered mitigating
factor. See Lockett, 438 U.S. at 604 & n.12.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.