Filed: Aug. 13, 2020
Latest Update: Aug. 13, 2020
Summary: PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-9003 _ UNITED STATES OF AMERICA v. KABONI SAVAGE, a/k/a Joseph Amill, a/k/a Bonnie, a/k/a Yusef Billa, agent of Dirt, agent of Bighead, Appellant On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-07-cr-00550-003 District Judge: The Honorable R. Barclay Surrick Argued January 7, 2020 Before: SMITH, Chief Judge, JORDAN, and FUENTES, Circuit Judges (Filed: August
Summary: PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-9003 _ UNITED STATES OF AMERICA v. KABONI SAVAGE, a/k/a Joseph Amill, a/k/a Bonnie, a/k/a Yusef Billa, agent of Dirt, agent of Bighead, Appellant On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-07-cr-00550-003 District Judge: The Honorable R. Barclay Surrick Argued January 7, 2020 Before: SMITH, Chief Judge, JORDAN, and FUENTES, Circuit Judges (Filed: August 1..
More
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-9003
_____________
UNITED STATES OF AMERICA
v.
KABONI SAVAGE,
a/k/a Joseph Amill,
a/k/a Bonnie,
a/k/a Yusef Billa,
agent of Dirt,
agent of Bighead,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-07-cr-00550-003
District Judge: The Honorable R. Barclay Surrick
Argued January 7, 2020
Before: SMITH, Chief Judge, JORDAN, and FUENTES,
Circuit Judges
(Filed: August 11, 2020)
David E. Troyer
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Madeline S. Cohen
1942 Broadway
Suite 314
Boulder, CO 80302
Barry J. Fisher
Office of Federal Public Defender
39 North Pearl Street
5th Floor
Albany, NY 12207
Lawrence S. Lustberg [ARGUED]
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Appellant
Geoffrey M. Wyatt
Skadden Arps Slate Meagher & Flom
1440 New York Avenue, N.W.
2
Washington, DC 20005
Counsel for Amicus Appellant
________________
OPINION OF THE COURT
________________
SMITH, Chief Judge.
TABLE OF CONTENTS
I. Introduction ...................................................................... 4
II. Factual Background .......................................................... 5
III. Procedural History .......................................................... 12
IV. Gaps in the Record ......................................................... 15
V. Substitution of Counsel .................................................. 27
VI. Vicinage Challenge......................................................... 47
VII. Fair-Cross-Section Challenge ........................................ 51
VIII. Batson Objection .......................................................... 73
IX. Transferred Intent Instruction ......................................... 98
X. Lay Opinion Instruction ............................................... 123
XI. Penalty-Phase Proceedings ........................................... 134
A. Background ................................................................. 135
B. The Government permissibly argued that Savage posed
a risk of future dangerousness. ........................................ 141
C. The District Court did not plainly err by admitting
victim-impact statements. ................................................ 159
3
D. The District Court’s admission of autopsy photographs
offered to support the “especially heinous, cruel, or
depraved” aggravator was not improper. ......................... 169
E. The Government’s argument against the “equally
culpable” mitigator did not violate the Fifth or Sixth
Amendments. ................................................................... 176
F. The Government properly rebutted the mitigators
relating to Savage’s relationship with his family. ........... 184
G. The verdict sheet’s format did not violate the Eighth
Amendment...................................................................... 196
XII. Conclusion ................................................................... 200
I. INTRODUCTION
Kaboni Savage led a regional drug trafficking operation
in North Philadelphia referred to at trial as the Kaboni Savage
Organization (KSO). The KSO distributed large quantities of
controlled substances and, not surprisingly, fiercely protected
its network and territory through the use of guns and violence.
Threats to the organization, whether perceived or real, were
quickly tamped down or extinguished. Early in the KSO’s
operation, Savage took care of such threats himself, but as his
power grew, his enforcers did his bidding without question.
Even while detained on criminal charges, Savage
continued to manage the affairs of the KSO from his prison
cell. He led by retaliating against those who dared to cooperate
with government agents and prosecutors. What makes this
case stand out is that Savage not only arranged for the murder
4
of the prosecution’s main witness in a murder case; in a later
case, he orchestrated the firebombing of the family home of
another cooperating witness in a fashion that ensured no one
would survive. Eventually, Savage was charged with, inter
alia, a dozen counts of murder in aid of racketeering, among
other serious offenses. The Government sought the death
penalty.
This appeal follows the jury’s guilty verdict on all
charges and the imposition of a sentence of death. For the
reasons that follow, we will affirm.
II. FACTUAL BACKGROUND
Savage began his career in illegal drug trafficking by
selling for others. By the early 1990s, he was peddling
phencyclidine (PCP) on his own, operating predominantly out
of his mother’s house on Darien Street in North Philadelphia.
Before long, he was a distributor selling PCP in various forms,
as well as marijuana. He utilized numerous dealers who
controlled drug corners in the vicinity of Erie Avenue in North
Philadelphia. For a time, he was in a partnership distributing
crack cocaine. But by the late 1990s, Savage had come into
his own. He was “running everything,” A17:8749,1 dealing in
“more than five, six, seven kilos” of cocaine at a time.
A17:8759.
As his cocaine sales increased, Savage began to dilute
the drug and then recompress it to increase the quantity. His
1
The citation to A17:8749 indicates that the quotation is from
the Appendix, Volume 17, Page 8749.
5
profit margin rose accordingly. In the early 2000s, Savage’s
“right-hand man” was Eugene Coleman. A21:10960–61.
Coleman helped distribute cocaine to various individuals in the
“family”—Savage’s distribution network—and also handled
proceeds from the drug sales. A17:8728, 8764. Savage’s inner
circle included “enforcers” who carried out Savage’s
commands without hesitation. Among the enforcers were
Kareem Bluntly and Lamont Lewis. Although loyal to Savage
for a time, Coleman and Lewis eventually cooperated with the
Government prior to their respective guilty pleas in February
2004 and April 2011. Both testified at Savage’s trial about the
operations of the KSO and its use of violence.
And that violence was often deadly. For example, in
March 1998, when Savage was in the vicinity of competitor
Tybius Flowers’s drug corner, a driver by the name of Kenneth
Lassiter accidentally bumped into Savage’s car. A
confrontation ensued and Savage demanded that Lassiter pay
for the damage. Despite Lassiter’s apology, Savage “pulled a
gun out . . . and shot him once.” A13:6461. Lassiter died from
the gunshot wound. Flowers witnessed the murder.
More violence followed. Mansur Abdullah belonged to
the Savage “family,” and he and Savage would supply each
other with cocaine. It was Savage who first taught Abdullah
how to dilute and recompress cocaine, which eventually raised
the suspicion in Savage’s mind that Abdullah was
overcharging him. In September 2000, Abdullah visited
Savage to collect a debt. Savage paid him with cash placed in
a red sneaker box. He then directed Kareem Bluntly to
accompany Abdullah back to his home, ostensibly to provide
protection because of robberies that had recently taken place.
6
Bluntly was armed. Coleman was directed to pick up Bluntly
soon afterward. When Coleman and Bluntly returned a half-
hour later, Bluntly handed Savage the red sneaker box with the
cash still inside. Although Bluntly had carried out the
instruction to shoot Abdullah, he was unsure if Abdullah was
actually dead. Savage instructed Coleman to find out.
Coleman followed orders and later confirmed that he saw
Abdullah “keeled over” in his car. A17:8823. Philadelphia’s
assistant medical examiner determined that the cause of death
was multiple gunshot wounds to the head, chest and abdomen.
Carlton Brown was another victim of multiple gunshot
wounds to the head and chest. Although Brown was a member
of the Savage family, Savage suspected Brown of killing
Savage’s good friend Ronald Walston. Savage instructed
Lewis that “he ha[d] to do it,” which Lewis understood to mean
he had to kill Brown. A21:10923. Lewis obeyed, and Brown
died.
Lewis also killed Barry Parker at Savage’s direction. It
appeared Parker was attempting to take over Steven
Northington’s drug corner, so Northington complained to
Savage, his supplier. Savage replied to Northington that
“[n]obody come and take nothing. You have to handle your
business. This is what we do.” A17:8850. On February 26,
2003, at Savage’s command, Lewis left Savage’s house with
Northington, who identified Parker at the drug corner. Lewis
then eliminated Northington’s competition by shooting Parker
several times in the chest. Clearly Savage did not hesitate to
protect his organization by killing those who threatened to
interfere with his distribution network.
7
He also had no qualms about murdering those he
believed were cooperating with law enforcement. In March of
2003, Savage suspected that Tyrone Toliver, Coleman’s friend,
was a “snitch.” A17:8873. When Toliver had difficulty filling
a cocaine order, he looked to Savage to supply him. Although
Savage did not have cocaine available, he agreed to help and
directed Coleman to take Toliver to Coleman’s apartment
where the organization regularly recompressed cocaine.
Bluntly arrived at the apartment shortly thereafter. To
Coleman’s surprise, Bluntly shot Toliver in the head. At
Savage’s direction, Bluntly and Coleman disposed of the body.
In addition to the benefit of eliminating someone
Savage thought was a snitch, the Toliver murder allowed
Savage “to put some dirt on” Coleman. A21:10959. Coleman
knew a lot about the KSO’s operations, and “everybody
thought [Coleman] was weak and if he got into some trouble,
he would tell.” A21:10960.
Around this same time, in a further effort to assure the
loyalty of those closest to him and to thwart any thoughts his
allies might have of cooperating with law enforcement,
Savage, along with Lewis and two other high-ranking members
of the KSO, made a pact. In short, the men agreed that if any
one of them cooperated with law enforcement, “our mothers’
lives would be in danger.” A21:10960. Although Coleman
was not present when the deadly pact was made, Savage made
sure that Coleman learned of it.
In 2004, Savage was prosecuted for Lassiter’s murder.
While jailed awaiting trial, Savage continued to intimidate and
threaten others with retaliation if he suspected they were
8
working with the Government. First, Savage set his sights on
eyewitness Tybius Flowers, the prosecution’s main witness.
Savage told Lewis, who was also in jail, that he was not
worried because Flowers “would never make it to court.”
A21:10915. Savage made similar remarks to another prisoner.
Savage’s prophecy came true when Flowers was killed in a
shower of bullets as he sat in his car outside of his aunt’s house
the night before trial. While there were no eyewitnesses,
Northington later told a fellow prisoner of his disdain for
snitches and disclosed that “he [had] slumped [Flowers] and
sent him to rat heaven.” A23:11738–40. Savage, too, revealed
he had played a part in Flowers’s murder, advising the same
fellow prisoner that he had “spanked the case” and would be
released soon. A23:11831.
Savage’s brutal efforts paid off. Lacking Flowers’s
testimony, the prosecution foundered and Savage was
acquitted of Lassiter’s murder. He was released from
Philadelphia County prison on April 8, 2004. But within a
week, federal authorities arrested him on drug trafficking and
other charges.2 Even while detained, Savage continued to
direct the KSO’s operations from his jail cell. He was enraged
that Coleman, who was also in jail, was assisting the
2
A jury ultimately convicted Savage in December 2005 of 14
federal counts related to charges stemming from his role in the
KSO, including conspiracy to distribute cocaine, money
laundering, firearm offenses, and threatening to retaliate
against witnesses. On April 27, 2006, he was sentenced to
thirty years’ imprisonment. We affirmed the conviction and
sentence. See United States v. Walker, 392 F. App’x 919, 921
(3d Cir. 2010).
9
prosecution. Coleman received threats from other inmates who
had connections to the KSO. While in the visiting room of the
prison, Coleman saw Savage’s sister, Kidada Savage. She
encouraged him not to “let these crackers break you.”
A18:8938. Kidada later wrote to Coleman, encouraging him
not to reveal anything to federal agents, closing her letter with
the statement: “Death before Dishonor (to your family).”
A18:8946. Coleman understood that parenthetical to threaten
his personal family, not members of the KSO. Later, when
Coleman was in a holding cell in the federal courthouse,
Savage and one of his associates were placed in an adjacent
cell. Immediately, Savage spoke of killing the “rats” and told
Coleman that his family should die as well. A18:8953–54.
By this time, Savage had instructed Kidada to have
Lewis firebomb Coleman’s family home in retaliation for
Coleman’s cooperation with the Government. In a telephone
call from prison on the evening of October 8, 2004, Savage
spoke with both Kidada and Lewis. Lewis agreed to do
anything Savage ordered, even if it meant “kill[ing] somebody
for him.” A21:10981. After the call concluded, Kidada
relayed to Lewis the directive from Savage to firebomb the
Coleman house. She instructed Lewis to torch the home late
that night when “everybody”—Coleman’s mother and
brother—would be there. A21:10986. Kidada drove Lewis to
the block where Coleman lived and “pointed out the house.”
A21:10988. She also informed him that guns and a pit bull
may be inside. Lewis told Kidada that his cousin, Robert “BJ”
Merritt, would help him. Kidada promised Lewis $5000 for
doing the job.
10
Around 4:00 a.m. the following morning, Lewis and
Merritt took two cans filled with gasoline to Coleman’s house.
Lewis kicked in the door and fired his gun twice. Merritt lit
and threw both cans into the house, causing an explosion. Fire
then ravaged the structure, resulting in the deaths of all six
occupants: Coleman’s mother, Marcella Coleman; his infant
son, Damir Jenkins; his twin-brother’s fifteen-year-old son,
Sean Rodriguez; his sister Regina Nash’s twelve-year-old son,
Tajh Porchea; his cousin, Tameka Nash (whom Coleman
regarded as a sister); and Tameka’s ten-year-old daughter,
Khadijah Nash.
Acting on Kidada’s instruction, Lewis called her and
left a message that Savage’s order had been carried out. It was
not until later that Lewis learned that four children had died in
the fire. When Lewis confronted Kidada about the children in
the house, Kidada responded to Lewis, “F*** ’em.”
A21:11006. Kidada paid Lewis only part of the $5000 he had
been promised. Merritt received a used car and $500.
Subsequent recordings of prison conversations between
Savage and others demonstrated his complicity in the Coleman
firebombing. They also revealed Savage’s great satisfaction
that the killings had taken place, and the intercepted
conversations revealed plans to kill yet other witnesses and
their families. Savage’s continued threats were troubling
enough that in February 2007, the United States Attorney
General authorized the Bureau of Prisons to impose Special
Administrative Measures (SAMs) restricting Savage’s
communications with others, including his family. See 28
C.F.R. § 501.3. In April 2009, an indictment in this case was
returned naming Savage, Lamont Lewis, Robert Merritt and
11
Steven Northington as defendants. United States v. Savage,
No. 2:07-cr-550, ECF 51 (E.D. Pa. Apr. 8, 2009).
III. PROCEDURAL HISTORY
The Fourth Superseding Indictment was later filed in
May 2012 against Savage, Merritt, Northington and Savage’s
sister, Kidada Savage. By the time of trial,3 the charges against
Savage were as follows:
one count of conspiracy to participate in a
racketeering (RICO4) enterprise, 18 U.S.C. §
1962(d);
twelve counts of violent crime in aid of racketeering
(VICAR) murder, § 1959(a)(1), for the Lassiter,
Abdullah, Brown, Parker, Toliver, Flowers, and six
arson murders;
one count of VICAR conspiracy to commit murder,
§ 1959(a)(5), for the conspiracy to commit the arson
murders;
one count of retaliating against a witness, § 1513, for
the arson murders in retaliation for Eugene
Coleman’s testimony and other cooperation; and
3
Before trial, the District Court dismissed a witness tampering
count under 18 U.S.C. § 1512(a)(1)(A).
4
Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961–68.
12
one count of using fire to commit a felony, §
844(h)(1), for the fire used to commit VICAR
murder at the Coleman house.
Shortly after Savage was indicted in 2009, the District
Court appointed Christopher Warren as counsel of record.
Because the charges carried a maximum penalty of death, the
District Court also appointed Timothy Sullivan as learned
capital-qualified counsel pursuant to 18 U.S.C. § 3005.5
Savage sought a replacement for Warren, so in 2010 the
District Court appointed Christian Hoey and allowed Warren
to withdraw. Sullivan’s conditional appointment as a federal
magistrate judge spurred further substitution. In November
2012, the District Court granted Savage’s motion to appoint
additional learned counsel, appointing William Purpura. The
District Court then allowed Sullivan and his associate to
withdraw in December 2012. At trial, Hoey and Purpura acted
as counsel of record.
The Government provided pretrial notice of its intent to
seek the death penalty for the VICAR murder and witness
retaliation counts,6 as required by 18 U.S.C. § 3593(a). The
District Court rebuffed Savage’s attempts to strike the notice.
5
The District Court later allowed Sullivan’s associate, Brett
Cook, to join the defense team.
6
When retaliation against a witness consists of killing a person,
as in this case, the punishment is that associated with murder
and manslaughter. 18 U.S.C. § 1513(a)(1), (2)(A); see also
§ 1513(c) (addressing maximum term of imprisonment for
13
The extensive pretrial proceedings also addressed the
composition of the jury. The District Court rejected defense
efforts to limit potential jurors to residents of Philadelphia
County and to expand the source of potential jurors beyond
voter registration lists.
Hundreds responded to the summons to jury service and
filled out questionnaires at the District Court’s instruction. The
District Court and counsel questioned potential jurors during
voir dire proceedings that began on November 5, 2012. After
thirty days of voir dire, jury selection concluded. The panel
was composed of ten white jurors, two black jurors and six
alternates—five white and one black. Although Savage
interposed Batson challenges to the exclusion of certain black
jurors, the District Court determined that the Government
exercised its peremptory strikes on a race-neutral basis.
Trial began on February 4, 2013. The Government’s
case featured more than seventy witnesses, over a thousand
exhibits and many recordings of intercepted conversations. On
the fifty-fifth day of trial, the jury returned a verdict finding
Savage guilty of all counts. At the conclusion of the guilt
phase, the District Court placed the jurors in recess for seven
days (extended an eighth day), after which the penalty phase
commenced.
The capital sentencing hearing, conducted pursuant to
18 U.S.C. § 3593(b) before the same jury, took seven days.
The jury was presented with evidence of both aggravating and
retaliation based on attendance at or testimony in criminal
case).
14
mitigating factors under § 3592, and on May 31, 2013, it
unanimously voted that Savage be sentenced to death on each
of the thirteen eligible counts, pursuant to §§ 3591(a)(2) and
3593(e).
On June 3, 2013, the District Judge formally
pronounced a sentence of death on each eligible count: twelve
VICAR murders plus witness retaliation. Savage was also
sentenced to life imprisonment for the racketeering conspiracy,
as well as two ten-year terms of imprisonment for the VICAR
conspiracy and the use of fire to commit a felony. The District
Court waived a $1600 special assessment as to all counts.
After sentencing, Savage moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29, a new
trial under Rule 33 and arrest of judgment under Rule 34. The
District Court denied those requests in September 2014.
Savage timely appealed from final judgment and the
denial of his new-trial motion.7 Although he raises a host of
issues on appeal, he does not challenge the sufficiency of the
evidence for any of the crimes of conviction.
IV. IF ANY GAPS EXIST IN THE RECORD, THEY DO NOT
ENTITLE SAVAGE TO RELIEF.
We first address Savage’s most foundational claim of
error, an error which he contends prevented him from proving
7
The District Court had jurisdiction over the federal charges
against Savage pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
15
that he preserved certain issues while also eclipsing his ability
to spot and raise other issues. Despite the vast appellate record
before us—over eighteen thousand pages spanning more than
thirty-four volumes—Savage contends he lacks access to “at
least 50 letters, e-mails, and other undocketed written
communications that the district court exchanged with the
parties.” Def. Br. 339. He also claims the record omits “at
least 50 unrecorded” oral communications involving the
District Court, including sidebars, in-chambers charge
conferences to hammer out jury instructions, and conversations
between the District Court and jurors where counsel was not
present. Id. Savage argues these alleged omissions violate the
Constitution, the Federal Death Penalty Act and the Court
Reporter Act. But “the real centerpiece of [his] argument” is
Federal Rule of Appellate Procedure 10. Oral Argument Tr.
126:20–24.
Rule 10 provides appellants a way to reconstruct
missing portions of an appellate record. And though we have
previously granted a new trial when an incomplete record
prejudiced an appellant, see Simmons v. Beyer, 44 F.3d 1160,
1168-69 (3d Cir. 1995), we have always required appellants to
attempt Rule 10 reconstruction before seeking relief. See, e.g.,
Roberts v. Ferman,
826 F.3d 117, 125 (3d Cir. 2016).
Yet Savage attempts to skirt that prerequisite. He
argues that before forcing him to undertake Rule 10
reconstruction, we should permit him to take wide-ranging
discovery from the District Court—including searching the
District Judge’s files for any undocketed written
communications and scouring his personal notes for insight
into any untranscribed oral communications. Alternatively,
16
Savage contends the District Court’s refusal to submit to that
examination entitles him (at least) to a presumption that the
defense properly preserved all issues or (at most) to a new trial.
Quite simply, Savage overreaches. The record in its
existing form enables us to decide his appeal consistent with
precepts of fundamental fairness and with our obligation under
the Federal Death Penalty Act to “review the entire record.” 18
U.S.C. § 3595(b). If indeed gaps exist—and the Government
argues there are none—Savage’s failure to pursue Rule 10
reconstruction forecloses relief.
* * *
We can easily dispatch Savage’s constitutional claim.
Although due process demands a record “sufficiently
complete” to facilitate “an adequate review of [the
defendant’s] conviction . . . . neither the Supreme Court, nor
our Court, has held that due process requires a verbatim
transcript of the entire proceedings or that an incomplete record
confers automatic entitlement to relief.” Fahy v. Horn, 516
F.3d 169, 190 (3d Cir. 2008). That’s hardly surprising, since
at the time of the Founding and for generations thereafter,
contemporaneous (let alone verbatim) accounts of trial
proceedings in federal court were the exception and not the
norm. See Oswald M. T. Ratteray, Verbatim Reporting Comes
of Age, 56 Judicature 368, 368–69, 373 (1973); see also Miller
v. United States,
317 U.S. 192, 198–99 (1942).8 We decline to
8
Indeed, incomplete transcription remained common in some
state courts until relatively recently. See Oliver v. Zimmerman,
720 F.2d 766, 768 (3d Cir. 1983) (“The general trial practice
17
graft what is a relatively modern development onto the Due
Process Clause or any other constitutional guarantee. The
Constitution does not require an all-encompassing trial record
to identify issues for appeal.
The same goes for Savage’s Federal Death Penalty Act
claim. As he points out, § 3595(b) obliges us to “review the
entire record” in capital cases. But that subsection also
specifies a minimum set of contents the “record” must include:
1. “the evidence submitted during the trial”;
2. “the information submitted during the sentencing
hearing”;
3. “the procedures employed in the sentencing
hearing”; and
4. “the special findings returned” as to aggravating and
mitigating factors.
Id.; cf. Gardner v. Florida, 430 U.S. 349, 361 (1977) (“[I]t is
important that the record on appeal disclose to the reviewing
court the considerations which motivated the death sentence in
every case in which it is imposed.”). Savage does not dispute
either that the current record clears these statutory minima or
that it adequately discloses why he received the death penalty.
in Pennsylvania is that only testimony of witnesses and
statements of the court are transcribed as of course. Opening
and closing speeches are not transcribed unless requested by
counsel, but any objection lodged during the course of such
speeches is transcribed together with the judge’s ruling
thereon.”).
18
Nor does Savage explain why, even if our § 3595(b)
obligation extends beyond the four discrete categories we have
enumerated, it stretches so far as to cover the items he claims
are missing. At most, we think our obligation to “review the
entire record” is cabined by Rule 10(a), which defines “the
record on appeal” as “the original papers and exhibits filed in
the district court; the transcript of proceedings, if any; and a
certified copy of the docket entries prepared by the district
clerk.” In other words, § 3595(b) does not reach the
untranscribed conversations and many9 of the unfiled writings
9
Insofar as any of the writings Savage identifies could be
considered “original papers and exhibits filed in the district
court,” he has failed to adequately demonstrate any non-
speculative prejudice from the absence of those writings on
appeal. Relatedly, Savage has not articulated how the
purportedly missing items could or would give rise to “any
difference[s] . . . about whether the record truly discloses what
occurred in the district court,” and, indeed, failed to have any
such differences settled by the District Court, as is his
obligation. Fed. R. App. P. 10(e)(1). Neither Rule 10(a) nor
§ 3595(b), to the extent that statute incorporates Rule 10(a),
provides an appellant relief in such circumstances. See United
States v. Smart, 448 F.2d 931, 936 (2d Cir. 1971) (“The
missing documents would appear to have no significance to the
issues which could be advanced on appeal. Those records
necessary for prosecution of the appeal—the minutes of the
trial and the minutes of the suppression hearing—are intact and
were available to [the appellant] and his appellate counsel.
[The appellant] has failed to show any prejudice to his right to
appeal resulting from the missing documents.”).
19
Savage claims are missing here. Indeed, for those
communications (or their reconstructions) to have become part
of the “record on appeal,” Savage needed to move to
supplement the record. Cf. United States v. Moreno, 857 F.3d
723, 727 (5th Cir. 2017). He did not, so there is no Federal
Death Penalty Act violation.
That leaves his Court Reporter Act claim, which—as
Savage acknowledged at oral argument—applies only to any
untranscribed oral communications. The Court Reporter Act
requires “[e]ach session of the court” to be “recorded
verbatim,” including “all proceedings in criminal cases had in
open court.” 28 U.S.C. § 753(b). Though the Act does not
prescribe a remedy for violations, courts have awarded relief
up to a new trial. E.g., Simmons, 44 F.3d at 1168–69; see
United States v. Sussman,
709 F.3d 155, 170–72 (3d Cir.
2013); see also United States v. Kelly,
167 F.3d 436, 438 (8th
Cir. 1999) (collecting cases).
Litigants typically seek relief under the Court Reporter
Act when an unanticipated technical malfunction, human error
or natural disaster renders transcripts of proceedings
unavailable. See, e.g., Kelly, 167 F.3d at 437 (recording and
notes destroyed in a fire before they could be transcribed);
United States v. Brand,
80 F.3d 560, 562 (1st Cir. 1996)
(transcripts “permanently lost”); United States v. Sierra,
981
F.2d 123, 125 (3d Cir. 1992) (court-reporting system
malfunctioned); United States v. Antoine,
906 F.2d 1379, 1380
(9th Cir. 1990) (court reporter “unable to locate her trial notes
and tapes”); United States v. Preciado-Cordobas,
981 F.2d
1206, 1209 (11th Cir. 1993) (transcription unavailable because
of a “defective ribbon in the stenotype machine used . . . to take
20
down the proceedings” and since the “backup” “tape
recording” “either could not be found or was unintelligible”);
United States v. Selva, 559 F.2d 1303, 1304–05 (5th Cir. 1977)
(court reporter’s tape recorder malfunctioned). But a few
courts have concluded that “[t]he duty to comply with” the
Court Reporter Act “lies with the court, not the parties,” and
they have granted relief when a district court held off-the-
record sidebars—something Savage claims occurred in this
case. United States v. Nolan,
910 F.2d 1553, 1560 (7th Cir.
1990); see also, e.g., United States v. Haber,
251 F.3d 881,
889–90 (10th Cir. 2001); United States v. Gallo,
763 F.2d
1504, 1529–30 (6th Cir. 1985); United States v. Garner,
581
F.2d 481, 488–89 (5th Cir. 1978); see also
Sierra, 981 F.2d at
127 (“The Court Reporter Act applies to all proceedings in
open court, which includes sidebar conferences.”).
At the outset, we question whether Savage
appropriately invokes the Court Reporter Act for the first time
on appeal. To be sure, remanding a case for record
reconstruction or a new trial over a Court Reporter Act
violation makes some sense when a conversation everyone
thought was being recorded evades transcription because of an
unforeseeable circumstance. In such a case, no one could have
known to raise the Court Reporter Act in the District Court.
Yet granting Savage’s request for relief under the Court
Reporter Act—raised now for the first time—makes far less
sense. His trial counsel apparently knew the untranscribed
conversations were not being recorded and thus arguably
“waive[d] an objection to the court’s failure to comply with
§ 753(b) . . . by acquiescing in the court’s procedure.” Nolan,
910 F.2d at 1560; see also
Gallo, 763 F.2d at 1531; cf. Garner,
21
581 F.2d at 488 & n.4. But even were we to excuse Savage’s
failure to object at trial, his Court Reporter Act claim still fails
on its merits. We cannot excuse Savage’s failure to pursue
Rule 10 reconstruction.
Only when a defendant shows a “colorable need” for the
missing transcripts will we grant Court Reporter Act relief.
Fahy, 516 F.3d at 190 (quoting Karabin v. Petsock,
758 F.2d
966, 969 (3d Cir. 1985)). To show a colorable need, a
defendant must do two things. First, a defendant must make “a
specific showing of prejudice.”
Sierra, 981 F.2d at 125. In
other words, a defendant must particularly assert what the
missing record would show and why it would justify relief. See
id. at 127. Second, a defendant must explain why Rule 10(c)’s
record-reconstruction procedure cannot cure the prejudice. See
Roberts, 826 F.3d at 124–25 (collecting cases).10
10
Every circuit to consider this issue has agreed that an
appellant must specifically show prejudice and explain why
Rule 10 reconstruction won’t work before obtaining Court
Reporter Act relief. See
Kelly, 167 F.3d at 438 (collecting
cases). That said, the Fifth Circuit has relaxed those
requirements when an appellant has new counsel on appeal and
the alleged omission is “substantial and significant.”
Selva,
559 F.2d at 1306. (The Eleventh Circuit follows that rule as
binding precedent, since it predates 1981 legislation splitting
the original Fifth Circuit into the present-day Fifth and
Eleventh Circuits. See
Preciado-Cordobas, 981 F.2d at 1212.)
Savage tries to engraft that partial exception onto our caselaw,
but we have already refused. See
Sierra, 981 F.2d at 126
(noting “[t]he Selva approach has not been widely followed”
22
Savage comes closest to alleging prejudice by
speculating that a more complete record might show that he
preserved objections to various legal issues we must otherwise
review under the heightened plain-error standard applicable to
unpreserved error. We address standard-of-review issues as
we encounter them in the following Parts. To resolve his Court
Reporter Act claim, we need only note that Savage has never
and explaining how it perversely incentivizes “defendant[s] to
dismiss trial counsel and seek appointment of new counsel on
appeal”); see also Haber, 251 F.3d at 889–90.
What’s more, even under the Fifth and Eleventh Circuits’
standard, Savage still would not obtain relief: the omissions he
alleges don’t qualify as “substantial and significant.” Whether
a gap counts as substantial and significant in those courts
“depends upon the likelihood that error which could be pursued
on appeal occurred during those parts of the trial for which we
do not have a verbatim transcript, and which the reconstruction
does not allow us to review.” Preciado-Cordobas, 981 F.2d at
1214. In practical terms, gaps relating to “indispensable part[s]
of the proceedings, both in terms of time spent and potential
influence on the outcome,” might justify reversal.
Id. But
“[m]ere speculation, entirely unsupported or contradicted by
the record, that error may have been committed during an
unrecorded part of the trial simply is not enough to support a
finding that omissions are substantial and significant.”
Id. The
latter aptly describes Savage’s approach here. Savage does not
dispute that we know what happened during the most critical
trial stages. Rather, he seeks a new trial because we don’t
know what happened in some sidebar and in-chambers
conferences.
23
formally sought to reconstruct any untranscribed
conversation—even though Rule 10 “provides a specific
mechanism by which the parties can have [a] dispute over the
contents of the trial court record resolved, and clearly places
the responsibility for initially creating the record on the
appellant.” Roberts, 826 F.3d at 123.
Savage argues it would be futile to pursue Rule 10
reconstruction since his attorneys on appeal did not participate
in his trial and therefore cannot be expected to know what went
on in the untranscribed conferences. But Rule 10 provides for
that eventuality: a defendant may submit a declaration saying
he does not remember what happened, passing the ball to the
government to document its recollection and giving the
defendant a chance to object before allowing the District Judge
to resolve any remaining discrepancies in accordance with the
provided documentation and with any notes he has retained and
his own recollections. At least one court of appeals has
approved that very procedure under similar circumstances. See
United States v. Wilson, 16 F.3d 1027, 1029 (9th Cir. 1994).
That reasoning also thwarts Savage’s stunning request
for discovery of the District Court’s files, the District Judge’s
personal notes, and the work-product of every lawyer involved
in the case. Of course, the District Judge may rely on his notes
and recollection in certifying a reconstruction’s accuracy—just
as prosecutors may rely on their notes and recollections to rebut
an appellant’s initial reconstruction. But it does not follow that
Savage can discover everyone else’s notes or recollections.
Savage cites no rule entitling him to such discovery, and we
will not create one. Nor will we wade into the thorny privilege
24
questions and perverse incentives that such a rule would surely
precipitate.
In short, Rule 10’s text puts the ball in Savage’s court.
The Rule and our caselaw require a collaborative
reconstruction effort that includes opposing counsel and the
District Judge. But it starts with the appellant. Otherwise, an
appellant could “manufacture his own disputes, attribute legal
significance to them, and then claim that they only can be
resolved by an examination of testimony that is unavailable.”
Sussman, 709 F.3d at 172. That appears to be what Savage
attempts here, and it is an approach we will not countenance.
* * *
We close this Part with three observations from our
supervisory perch as a Court of Appeals, and from our shared
perspective as three former trial judges. First, the record
omissions Savage most often rehashes include the two
untranscribed charge conferences (one during the guilt phase
and one during the penalty phase), plus “extensive[]”
undocketed emails swapping proposed jury instructions (which
we view as a “virtual” charge conference). Def. Br. 344. To
the extent Savage claims that this constitutes legal error,
neither Federal Rule of Criminal Procedure 30 nor the Court
Reporter Act require on-the-record charge conferences. Still,
and even though off-the-record charge conferences routinely
occur in the Eastern District of Pennsylvania (and elsewhere),
we observe that the practice does have the potential to allow a
legal error to go unnoticed and uncorrected. Relative to the
costs of an entire criminal prosecution—especially a four-year,
multidefendant capital case like this one—there seems little
25
expense saved or convenience gained by a charge conference
conducted without a court reporter present.
Second, when it comes to making motions and
preserving objections, the obligation rests with trial counsel to
ensure the record reflects all motions or objections. Deciding
to raise or to forgo a potentially meritorious objection often
entails balancing fraught—and sometimes countervailing—
considerations, both tactical and strategic. We will not bless a
result where any potential record gap empowers creative
counsel to resuscitate a waived objection on appeal.
Third, Savage credibly alleges that the District Court
twice talked to the jury without counsel or a court reporter
present. We know about the first conversation because the
transcript from the last day of the Government’s guilt-phase
case reveals that the District Judge advised counsel, after the
Government rested: “I’m going to go back and talk to the jury
and tell them what we’re doing, the fact that we’re not going
to be back until next Monday.” A25:13393–94; see also id. at
13406 (“Ladies and gentlemen, at this point we’re going to
recess, and let you go back to get some lunch. It’s 12 o’clock.
I understand lunch is on its way up. I will come back and talk
to you briefly to advise you of the schedule that we are going
to be operating from here on. Okay?”). But the actual
discussion was not transcribed, and we are unaware of its being
restated on the record later.
We know about the second conversation because, in a
break during the various closing arguments, an attorney
brought up a “housekeeping matter”: “I believe the Court
yesterday was going to talk to the jury about whether or not
26
they are available tomorrow or not.” The District Judge
responded, “They will be here tomorrow if—I told them also
tomorrow if I can charge—if I can begin charging the Jury in
the morning, first thing, then we will do that and let them
deliberate. However, if closings—if closing statements are still
going on tomorrow morning, we are going to recess until
Monday and let them come back on Monday for the charge.”
A28:14848. Here too, this after-the-fact summary is the only
information we have about the judge–jury exchange.
Though we cannot know exactly what was said, what
we do know assures us that the conversations were entirely
scheduling-related. That said, we further stress the advisability
of having counsel present for all interactions between the court
and jurors, and our preference that such interactions be
transcribed. See also Gallo, 763 F.2d at 1529 n.37.
V. THE DISTRICT COURT DID NOT ERR BY SUBSTITUTING
COUNSEL.
Savage claims that he was denied his Sixth Amendment
right to counsel because the District Court waited until four
days before voir dire began to substitute new lead counsel. We
conclude that the District Court’s substitution constituted
neither structural nor trial error.11
11
We leave for a future date the question of whether a
structural error claim is subject to waiver or forfeiture. That
said, we are not persuaded by the Government’s argument that
Savage waived, forfeited or invited any alleged trial error.
27
A. Background
On June 23, 2009, the District Court appointed Timothy
Sullivan to represent Savage as learned capital-qualified
counsel. Christian Hoey was appointed to represent Savage
alongside Sullivan on February 19, 2010. In January 2011,
Sullivan was appointed as a U.S. Magistrate Judge, but because
this appointment was contingent on the current incumbent of
that magistrate judgeship being confirmed as a district court
judge, there remained uncertainty as to if and when Sullivan
would assume his new office. While the record does not make
clear when Sullivan first brought this issue to the District
Court’s attention, it does contain representations that Sullivan
advised the District Court of his pending appointment as early
as January 2011.
The District Court addressed the issue of Sullivan’s
pending appointment during a June 2012 hearing. Soon
afterward, on June 19, 2012, Sullivan submitted a letter to the
District Court proposing the appointment of William Purpura
as additional learned capital-qualified counsel.12 The letter
explained that
[i]f circumstances warrant, and Mr. Sullivan
seeks leave to withdraw from this case in the
near-future, Mr. Purpura has indicated that he
wishes the Court to be on notice that he might
request a short continuance until October 2012.
This request will only be made if Mr. Purpura
12
Around this time, Sullivan’s associate, Brett Cook, also
joined the defense team.
28
requires additional time to prepare for trial and
for any penalty hearing case. Mr. Purpura is
prepared to meet with the Court to discuss these
matters.
A33:17393. Accompanying the letter was an account of Mr.
Purpura’s considerable capital case experience. Sullivan
followed up with the District Court’s courtroom deputy via
email on June 25, 2012, writing, “Mr. Purpura is anxious to
receive word from the Court on his appointment since each day
counts now.” A4:1864. The record does not reveal a response
to Sullivan’s letter and follow-up email.
On either June 24 or July 24, 2012,13 Savage submitted
a pro se, ex parte “emergency motion” for appointment of new
counsel or to proceed pro se. A4:1858–63. Savage asserted
that the District Court was “well aware” of Sullivan’s pending
appointment, that Sullivan was “preoccupied” with his
appointment, and that Sullivan was “underperforming” in
preparing Savage’s case. Id. at 1858. Savage also claimed that
Sullivan “knows nothing about the basic facts,” did not visit
him unless there was to be a hearing, was “wholly ineffective,”
“cares nothing about my case,” and like Hoey, was a
“compulsive liar[].”
Id. at 1858–59, 1862. Moreover, Savage
alleged that there were disputes between Sullivan and Hoey
resulting from ineffective communication.
13
While the motion was dated June 24th, Savage states in the
body of the motion that he is writing on the 24th of July. That
said, the District Court did not receive the motion until August
9, 2012.
29
He then requested “concerned dedicated counsel” to
protect his Sixth Amendment rights.
Id. at 1858.
Savage
closed stating: “If a man/attorney does not want to be apart
[sic] of a defense team, why would I want him to defend me or
why would the court keep him on my case[?]”
Id. at 1862.
On August 10, 2012, the District Court’s courtroom
deputy forwarded Savage’s letter to Sullivan, observing that
the letter was received in chambers and adding simply, “Please
advise.” Id. at 1857. The District Court took no further action
with respect to Savage’s self-styled motion.
Savage, through counsel, moved ex parte for
appointment of Purpura as additional learned counsel on
October 16, 2012. This motion explained that Sullivan could
be sworn in before the end of the year (at which time he would
immediately assume his duties as a magistrate judge) and that
“Mr. Purpura will be prepared to move forward with the
representation of Mr. Savage under existing [sic] Court’s
schedule.” A33:17390. It also expressed that “[t]he
appointment of Mr. Purpura must occur as soon as possible in
order to permit him sufficient time to familiarize himself with
the discovery, work with Mr. Sullivan and become familiar
with the mitigation evidence, the aggravating evidence and for
any penalty hearing.” Id. Counsel further represented that
“Mr. Savage has no objection to Mr. Purpura replacing Mr.
Sullivan, if necessary.” A33:17391.
On November 1, 2012, the District Court held a hearing
to address the motion for appointment of counsel. Sullivan
advised the District Court that he had discussed the matter with
Savage, declaring: “I believe Mr. Savage is amenable and
30
consents to the relief that we seek.” A7:3312. The District
Court then confirmed this, asking Savage: “You are satisfied if
this Court were to go ahead and make that appointment; is that
correct?” Id. Savage responded, “Yes.” Id. The District Court
then turned to Purpura and asked if he was “ready to take over
representation of Mr. Savage,” to which Purpura replied:
Your Honor, I cannot represent that I’m ready to
take over the representation of Mr. Savage. I
don’t think the Court would expect me to make
that representation. I have met with Mr. Savage.
We met back in June. At that time I know Mr.
Sullivan filed the first motion on this particular
issue.
Obviously jury selection starts on Monday. I’ve
talked to Christian Hoey, who seems to know the
case almost as well as Mr. Savage himself, as far
as going through the discovery. So we have gone
through everything there.
Mr. Cook, as well, and Mr. Sullivan, has had this
case in litigation as well as the defense. I believe
that I can add right now a lot to this team to keep
this train on the track and to go forward at this
point. But if the Court is asking me specifically,
if at this very moment could I step into the shoes
of Mr. Sullivan who has been here for three and
a half years, I would have to honestly tell the
Court that that is not possible.
31
A7:3312–13. Seeking clarification, the District Court inquired
further: “[A]re you satisfied that you can get yourself up to
speed so that this matter is not going to be delayed?” A7:3313–
14. Purpura responded,
Judge, I can tell the Court honestly that I am
experienced in Federal as well as State capital
cases. I would do nothing except this particular
case, whatever amount of time it took me per
day.
Teresa Whalen[14] is a close associate and friend
of mine. I’ve tried capital cases in the District of
Maryland with her, and I know that she will help
bring me up to speed as well as everybody else.
It’s a big team effort.
So the answer is yes, I’ll do everything in my
power to be brought up to speed, and I have the
experience to do it. I hope to make Mr. Savage
satisfied of that as well.
A7:3314. The Government did not object to the motion, and
after conferring with the local office of the Federal Public
Defender, the District Court recorded the appointment of
Purpura.15
14
Teresa Whalen was an attorney representing co-defendant
Kidada Savage.
15
The District Court entered an order formally appointing
Purpura as additional learned counsel on November 16, 2012.
32
The initial hardship stage of jury selection had already
taken place on September 26 and 27, 2012, but voir dire began
on November 5, 2012, less than a week after Purpura’s oral
appointment. Savage then moved, on December 13, 2012, for
the appointment of additional associate counsel Marta Kahn
and Brady Locher. No order reflecting their appointment
appears in the record, however, and neither Kahn nor Locher
appear as counsel of record on the District Court docket.
Nevertheless, the Government avers—and the record
reflects—that Kahn did participate as additional counsel.
Sullivan and Cook moved to withdraw on December 19, 2012,
which the District Court granted.
At no time did either side seek a continuance.
Voir dire concluded on Tuesday, January 29, 2013. The
following Monday, February 4, 2013, the guilt phase of trial
got underway. Although substantial discovery was conducted
pretrial, Purpura never told the Court that he was inadequately
prepared or that he needed more time. The trial concluded
more than three months later, with the jury returning a guilty
verdict on all charges on May 13, 2013. The proceedings next
advanced to the penalty phase, which began on May 21, 2013.
The jury returned a death penalty verdict on May 31, 2013.
B. Savage did not suffer a constructive denial of
counsel: there was no structural error.
The Sixth Amendment guarantees a criminal defendant
the right “to have the Assistance of Counsel for his defense.”
U.S. Const. amend. VI. In practice, this means that
33
constructive denial of the assistance of counsel requires per se
reversal.16 See Perry v. Leeke, 488 U.S. 272, 280 (1989).
The Supreme Court has held that “it is a denial of the
accused’s constitutional right to a fair trial to force him to trial
with such expedition as to deprive him of the effective aid and
assistance of counsel.” White v. Ragen, 324 U.S. 760, 764
(1945); see also United States ex rel. Tillery v. Cavell,
294 F.2d
12, 20 (3d Cir. 1961) (“Effective aid and assistance of counsel
is of necessity impossible where counsel is not given
reasonable time to consult with the accused and prepare the
case.”). Yet the Court has declined to “fashion a per se rule
requiring reversal of every conviction following tardy
appointment of counsel.” Chambers v. Maroney,
399 U.S. 42,
54 (1970); see also United States v. Cronic,
466 U.S. 648, 661
16
“In Arizona v. Fulminante, 499 U.S. 279 (1991), the
Supreme Court recognized a distinction between structural
defects, which require reversal, per se, and trial errors, which
require a reviewing court to engage in harmless error analysis.
Structural defects are defects in the constitution of the trial
mechanism, which defy analysis by harmless-error standards.
A structural defect affect[s] the framework within which the
trial proceeds, rather than simply an error in the trial process
itself. Without these basic protections, a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt
or innocence, and no criminal punishment may be regarded as
fundamentally fair.” Lewis v. Pinchak,
348 F.3d 355, 357 (3d
Cir. 2003) (internal quotation marks and citations omitted).
34
(1984) (“[E]very refusal to postpone a criminal trial will not
give rise to [a presumption of prejudice].”).
Instead, courts must look to whether “the surrounding
circumstances make it unlikely that the defendant could have
received the effective assistance of counsel.” Cronic, 466 U.S.
at 666; see also
id. at 659–60 (circumstances necessitating a
per se reversal may exist “when although counsel is available
to assist the accused during trial, the likelihood that any lawyer,
even a fully competent one, could provide effective assistance
is so small that a presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial”). This
question
necessarily involves a comparison of the time of
the appointment with all the attendant
circumstances, such as the gravity of the charge,
the experience of appointed counsel, the extent
of his knowledge and participation in similar
cases, his opportunity for preparation and even
what he may have been told by the defendant
which may reduce the area of necessary
preparation.
Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970).
Precedent provides some insight into the circumstances
that constitute a constructive denial of counsel requiring per se
reversal. In Avery v. Alabama, the Supreme Court held that
there was no denial of counsel where counsel was appointed
three days before a capital trial began. 308 U.S. 444, 453
(1940). The Court concluded that the defendant was “afforded
35
the assistance of zealous and earnest counsel” who “contested
every step of the way leading to final disposition of the case.”
Id. at 450. “That the examination and preparation of the case,
in the time permitted by the trial judge, had been adequate for
counsel to exhaust its every angle is illuminated by the absence
of any indication, on the motion and hearing for new trial, that
they could have done more had additional time been granted.”
Id. at 452.
We similarly held, in Tillery, that per se reversal was
not warranted where an attorney was appointed to represent a
defendant on the day of trial.17 294 F.2d at 22. There, the
attorney had practiced law for fifteen years, had met with the
defendant twice prior to trial, and had heard his account of the
crime.
Id. The defendant had also failed to disclose any
witness or alibi requiring investigation.
Id. at 20–22.
Likewise, in United States ex rel. Mathis v. Rundle, we held
that the late appointment of counsel did not require per se
reversal where counsel had “a good reputation and solid
credentials” and was able to review a colleague’s notes from
an interview with the defendant, but did not have time to
interview the defendant himself, did not ask for a continuance
when witnesses did not appear because he “had no reasonable
expectation” that the witnesses would help, and “was unable to
say that he had been insufficiently prepared to go to trial.”
394
F.2d 748, 752–54 (3d Cir. 1968), overruled on other grounds
by Moore,
432 F.2d 730.
17
As federal capital cases rarely involve a constructive denial
of counsel, we turn to non-capital caselaw for guidance.
36
In contrast, the Supreme Court has clearly stated that
trial counsel who merely goes through the motions is really no
counsel at all. The Court concluded in Powell v. Alabama that
per se reversal was required since the defendants “were not
accorded the right of counsel in any substantial sense”: the
representation provided was “pro forma rather than zealous
and active”; “[n]o attempt was made to investigate” and “[n]o
opportunity to do so was given”; and the defendants were
instead “hurried to trial.” 287 U.S. 45, 58 (1932).
We similarly held, in United States ex rel. Washington
v. Maroney, that the defendant was constructively denied
assistance of counsel where counsel was appointed the day of
trial, made no pretrial preparations, consulted with the
defendant only briefly in the back of the courtroom, did not
object to the admission of a possibly coerced confession, and
failed to impeach the key government witness or call any
character witnesses on the defendant’s behalf. 428 F.2d 10,
14–15 (3d Cir. 1970); see also Vance v. Lehman,
64 F.3d 119,
122 (3d Cir. 1995) (explaining that the per se rule may apply
where counsel fails to subject the prosecution’s case to
adversarial testing, has little or no legal training, or is prevented
from assisting the defendant).
Savage argues that Purpura’s late substitution
constituted a constructive denial of counsel that requires per se
reversal. Several facts weigh in favor of Savage’s claim:
The District Court appointed Purpura only four days
before voir dire began. See Moore, 432 F.2d at 735 (“A
belated appointment of counsel [is] strong evidence in a
defendant’s behalf.”).
37
The guilt-phase trial lasted slightly longer than the time
Purpura had between appointment and trial to prepare.
See Washington, 428 F.2d at 14 (“[C]ounsel for an
indigent defendant, held in custody, must be appointed
by the court sufficiently far in advance of trial to enable
counsel adequately to prepare the defense.” (internal
quotation marks omitted)).
This was a complex death penalty prosecution involving
conduct that extended over more than a decade and
involved twelve murders. Discovery was substantial,
including numerous recordings that would have
required significant time to review. See, e.g.,
A34:18093 (MR. PURPURA: “We understand the
Government has given us volumes of evidence, actually
probably too much evidence for me to review. We are
trying to review it and trying to catch up. . . . At this
point I’m having difficulty between the forest and the
trees.”); A34:18100 (MR. PURPURA: “The amount of
discovery here is so gargantuan that we have no
notice.”); cf. United States v. Accetturo,
842 F.2d 1408,
1413–14 (3d Cir. 1988) (concluding that the district
court’s determination that twenty-four days was
sufficient for counsel to prepare was not an abuse of
discretion where the district court stated the amount of
evidence was rather discrete, intermittent and of small
quantity).
The District Court may have been aware of Sullivan’s
potential exit from the case as early as January 2011, but
it failed to act until November 2012. Cf. Chambers,
399
38
U.S. at 54 (“Unquestionably, the courts should make
every effort to effect early appointments of counsel in
all cases.”). Because courts have an independent
obligation to ensure that the rights of criminal
defendants are protected, this delay does give us
pause.18 See, e.g., Gregg v. Georgia, 428 U.S. 153, 187
(1976) (“When a defendant’s life is at stake, the Court
has been particularly sensitive to insure that every
safeguard is observed.”); Glasser v. United States, 315
U.S. 60, 71 (1942), superseded on other grounds by
Fed. R. Evid. 104(a) (“Upon the trial judge rests the duty
of seeing that the trial is conducted with solicitude for
the essential rights of the accused.”).
Nonetheless, Savage fails to take into account numerous
facts that undermine his constructive denial of counsel claim:
In addition to representing to the District Court that he
had the experience to familiarize himself with the case
in a timely manner and that he was prepared to
undertake the efforts necessary to do so, Purpura
affirmatively stated to the District Court that he could
be ready for trial. See Morris v. Slappy, 461 U.S. 1, 12
(1983) (“In the face of the unequivocal and
uncontradicted statement by a responsible officer of the
court that he was fully prepared and ‘ready’ for trial, it
18
We also recognize that this substitution involved lead
counsel, the only capital-qualified counsel then on the record.
See 18 U.S.C. § 3005; see also § 3599; Martel v. Clair, 565
U.S. 648, 659 (2012).
39
was far from an abuse of discretion to deny a
continuance. On this record, it would have been
remarkable had the trial court not accepted counsel’s
assurances.”).
The District Court’s statements on the record indicate
that it thought Purpura would be able to adequately
prepare in the amount of time available. See, e.g.,
A34:18070 (THE COURT: “I would anticipate that Mr.
Purpura could get up to speed by that time.”).
Purpura was an experienced death penalty counsel.
Savage did not lodge any pro se objection to the
substitution or lack of a continuance.
Neither Purpura nor Savage pro se moved for a
continuance.
Sullivan consistently indicated a desire to remain on the
case while his appointment to a judgeship was pending
and was uncertain about if or when he would need to
withdraw. He even contributed to and participated in
over six weeks of voir dire.
Hoey’s contribution to Savage’s defense was
substantial. He was on the case almost from the
beginning, remained after Sullivan withdrew, and
according to Purpura, seemed to know the case almost
as well as Savage did—at least as to discovery
materials.
40
The District Court had to weigh significant issues of
judicial administration, including the involvement of
multiple defendants and the availability of numerous
attorneys.19
Considering all the attending circumstances, we
conclude that Savage did not suffer a constructive denial of
counsel. First, Purpura was an experienced capital-qualified
counsel. Second, Purpura relied on his experience in
representing to the District Court that he could get “up to
speed” in time for trial. Third, neither Purpura nor Savage
himself moved for a continuance or indicated that Purpura was
unprepared to proceed to trial. Given that capital defense
counsel are not, as a rule, timid creatures, we have every reason
to believe that if Purpura thought he needed additional time to
prepare, he would have moved for a continuance. Fourth,
although Purpura was lead counsel and the only capital-
qualified counsel, Hoey had been a member of Savage’s
defense team for several years, and he remained on the team to
assist Purpura in both preparing and trying the case. See United
States v. Merlino, 349 F.3d 144, 149–50 (3d Cir. 2003)
19
See
Morris, 461 U.S. at 11–12 (“Trial judges necessarily
require a great deal of latitude in scheduling trials. Not the least
of their problems is that of assembling the witnesses, lawyers,
and jurors at the same place at the same time, and this burden
counsels against continuances except for compelling reasons.
Consequently, broad discretion must be granted trial courts on
matters of continuances; only an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of counsel.”
(internal quotation marks and citations omitted)).
41
(defendant was not “left bereft of counsel”). Fifth, it is
reasonable for us to infer that Purpura inherited some work
product from Sullivan and Hoey. Sixth, and most importantly,
our careful examination of the record confirms that Purpura
provided Savage with zealous representation throughout trial.
See United States ex rel. Chambers v. Maroney, 408 F.2d 1186,
1195–96 (3d Cir. 1969) (“This is not a case where belated
appointment of counsel may have resulted in the failure to call
witnesses . . . or in the failure to raise defenses of which counsel
was unaware or which he was unprepared to pursue, or in an
improvident plea of guilty.” (internal footnotes omitted)), aff’d
sub nom. Chambers,
399 U.S. 42. In fact, it is unclear to us
what more Purpura could have done had he requested and
received additional time to prepare.20
The situation that the District Court confronted was not
one where, “although counsel is available to assist the accused
during trial, the likelihood that any lawyer, even a fully
competent one, could provide effective assistance is so small
that” per se reversal is required. Cronic, 466 U.S. at 659–60.
Thus, there was no structural error.
20
Savage has alleged that the late appointment of Purpura
violated both his Sixth Amendment right to counsel and his
enhanced right to capital counsel under 18 U.S.C. §§ 3305 &
3599, but Savage was never without capital counsel. We
conclude that his statutory right to capital counsel was not
violated for the same reasons that his Sixth Amendment right
was not.
42
C. The District Court committed no trial errors in
the substitution of counsel.
In addition to his structural error claim, Savage alleges
that the District Court erred in delaying the substitution of
counsel by (1) overlooking Sullivan’s June 2012 letter; (2)
failing to adequately address Savage’s pro se, ex parte
emergency motion; and (3) granting substitution in November
2012 without a continuance.
1. Standard of Review
We review a district court’s decision regarding
substitution for an abuse of discretion. See Martel, 565 U.S. at
663–64. While “[t]here are no mechanical tests for
determining an abuse of discretion,” United States v. Restaino,
405 F.2d 628, 631 (3d Cir. 1968), the Supreme Court has held
that a motion for substitution should be granted when it is in
the “interests of justice,” Christeson v. Roper,
574 U.S. 373,
377 (2015). See also
Martel, 565 U.S. at 652 (holding that
district courts “should employ the same ‘interests of justice’
standard that [is applied] in non-capital cases” in evaluating
motions to replace capital counsel). “[F]actors a court of
appeals should consider in determining whether a district court
abused its discretion . . . ‘include: the timeliness of the motion;
the adequacy of the district court’s inquiry into the defendant’s
complaint; and the asserted cause for that complaint, including
the extent of the conflict or breakdown in communication
between lawyer and client (and the client’s responsibility, if
any, for that conflict).’”
Christeson, 574 U.S. at 377 (quoting
Martel, 565 U.S. at 663); see also United States v. Goldberg,
67 F.3d 1092, 1098 (3d Cir. 1995) (additional considerations
43
include “the efficient administration of criminal justice; the
accused’s rights, including the opportunity to prepare a
defense; and the rights of other defendants awaiting trial who
may be prejudiced by a continuance”).
An abuse of discretion may also occur where a court
makes no inquiry into a defendant’s request to substitute
counsel. See Goldberg, 67 F.3d at 1098; United States v.
Welty,
674 F.2d 185, 187 (3d Cir. 1982); see also McMahon v.
Fulcomer,
821 F.2d 934, 942 (3d Cir. 1987) (“Even when the
trial judge suspects that the defendant’s contentions are
disingenuous, and motives impure, a thorough and searching
inquiry is required.”).21
2. The District Court did not abuse its
discretion in its handling of counsel’s June
2012 letter.
Savage treats Sullivan’s June 2012 communication as
akin to a motion. Yet it was no more than a letter and did not
purport to be anything other than that. As such, the District
Court was not called upon to grant or deny relief.
Even if we were to conclude that the District Court
should have acted based on the letter, the District Court did so
21
Welty and its progeny are the basis for much of our Court’s
substitution of counsel caselaw. Yet for our purposes, they are
hardly a perfect fit. The court in Welty, for instance, denied
substitution. 674 F.2d at 187. Here, the District Court
eventually granted relief by appointing Purpura. Furthermore,
Savage consented to the substitution.
44
approximately four months later with the appointment of
Purpura. Savage’s only objection is that the District Court
should have acted sooner. Given the deference afforded to
district courts in matters of case administration, see Morris,
461 U.S. at 11–12; Fuller v. Diesslin,
868 F.2d 604, 611–12
(3d Cir. 1989), we see no abuse of discretion in the District
Court’s failing to substitute counsel promptly upon receipt of
Sullivan’s letter.
3. The District Court did not abuse its
discretion in forwarding Savage’s pro se,
ex parte emergency motion to counsel.
In his June/July 2012 pro se, ex parte emergency motion
seeking substitution of counsel or to proceed pro se, Savage
made several allegations that may have constituted good cause:
Sullivan was not working on the case diligently;
communication between Savage and Sullivan had broken
down; and Savage felt that Sullivan was untrustworthy. The
District Court did not directly address these claims. Rather, the
courtroom deputy transmitted Savage’s letter to Sullivan,
asking counsel to advise the District Court.
Considering the procedural history of this case, the
District Court’s actions were appropriate. Savage had
previously submitted numerous pro se filings seeking
substitution of counsel or permission to proceed pro se. The
District Court held hearings to address each of those motions
in turn, and Savage always retracted his grievances. While
courts must proactively address motions, given Savage’s past
actions and the deference afforded to district courts in matters
of case administration, see Fuller, 868 F.2d at 612, there was
45
no abuse of discretion in the District Court’s handling of
Savage’s pro se, ex parte emergency motion.
4. The District Court did not abuse its
discretion by substituting counsel without
a continuance in November 2012.
For the reasons stated below, we conclude that the
District Court did not abuse its discretion in substituting
Purpura for Sullivan.
First, Purpura was a highly experienced death penalty
counsel. His background could reasonably be expected to save
him valuable preparation time, not to mention court time.
Moreover, Purpura’s background and experience make it
extremely likely that he would have sought a continuance if he
believed he needed it. See Moore, 432 F.2d at 735. No
continuance was sought.
Second, Purpura affirmatively represented to the
District Court that he would be ready for trial. See Morris, 461
U.S. at 12 (noting that it “would have been remarkable had the
trial court not accepted counsel’s assurances”).
Third, Purpura was hardly alone in representing Savage.
He joined a team of committed lawyers, see Merlino, 349 F.3d
at 149–50, that included Hoey—who had been on the case for
nearly three years. Hoey helped Purpura prepare and was
involved extensively in voir dire, trial and sentencing.
Finally, Sullivan consistently indicated a desire to
remain on the case while his appointment was pending,
46
uncertain as he was about if or when he would need to
withdraw.
* * *
We are well satisfied that Savage did not suffer a
constructive denial of counsel and that the District Court did
not commit trial error in the handling of substitution of counsel.
VI. SAVAGE’S VICINAGE ARGUMENT LACKS MERIT.
Section 3235 of Title 18 provides that a trial in a capital
case “shall be had in the county where the offense was
committed.” 18 U.S.C. § 3235. Savage contends that the
“language and history” of this statutory section “show that it
encompasses the right to a jury drawn from the county of the
offense.” Def. Br. 115. The District Court disagreed, and so
do we.22
Section 3235 has its roots in the 1789 Judiciary Act.
The relevant section provided
[t]hat in cases punishable with death, the trial
shall be had in the county where the offence was
committed, or where that cannot be done without
great inconvenience, twelve petit jurors at least
shall be summoned from thence.
22
Because statutory interpretation presents a question of law,
we exercise plenary review. United States v. Randolph, 364
F.3d 118, 121 (3d Cir. 2004).
47
Act of Sept. 24, 1789, ch. 20, § 29, 1 Stat. 88. This statute
remained unchanged until 1862. At that time, Congress
enacted a new law that specified “[t]hat so much of section
twenty-nine of [the Judiciary Act] . . . as requires in cases
punishable with death, twelve petit jurors to be summoned
from the county where the offence was committed, be, and the
same is hereby, repealed.” Act of July 16, 1862, ch. 189, § 2,
12 Stat. 589. Thus, Congress explicitly eliminated in 1862 the
requirement in the Judiciary Act for a local jury in a capital
case. Thereafter, in 1948, § 3235—Venue in Capital Cases—
was codified in its current form:
The trial of offenses punishable with death shall
be had in the county where the offense was
committed, where that can be done without great
inconvenience.
18 U.S.C. § 3235. Consistent with the 1862 repeal, the title
and text of § 3235 omit any reference to vicinage or a
requirement for a jury to be summoned from the county where
the offense occurred.
In light of this statutory history and consistent with the
plain text of the statute, we conclude that the District Court did
not err in rejecting Savage’s “attempt to import a ‘vicinage
requirement’ into the statute.” A1:29–30. We agree with the
District Court that “[t]here is nothing in § 3235 that requires
the jury to be selected from the county of the offense.” A1:29;
see United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241
(1989) (instructing that “where . . . the statute’s language is
plain, ‘the sole function of the courts is to enforce it according
to its terms’”) (quoting Caminetti v. United States,
242 U.S.
48
470, 485 (1917)). Inasmuch as our task in interpreting a statute
is “to give effect to the intent of Congress,” we refuse to add a
vicinage requirement that Congress eliminated more than a
century ago. United States v. Am. Trucking Ass’ns,
310 U.S.
534, 542 (1940).
Indeed, our caselaw already acknowledges the repeal of
the Judiciary Act’s vicinage requirement in capital cases. In
Zicarelli v. Gray, we addressed whether a state prisoner’s
Sixth Amendment right to trial by a fair cross-section of the
community was “violated when he [was] indicted for crimes
arising out of acts occurring in one county of the state and
[was] subsequently tried before a jury drawn exclusively from
a second county in the state.” 543 F.2d 466, 468 (3d Cir. 1976)
(en banc). Our late colleague Judge Adams examined the
vicinage requirement under English common law, the
Constitution’s guarantee of a trial in the State where the crime
occurred,23 and the 1789 Judiciary Act together with its
requirements of vicinage in capital and noncapital cases.
Id. at
475–76. He distilled three themes from his historical review:
First, the proposition that a trial must take place
before a jury drawn from within the state and
federal judicial district in which the crime was
committed was considered salient enough to be
23
Article III, § 2, clause 3 of the U.S. Constitution provides in
relevant part: “The Trial of all Crimes . . . shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall
have been committed.” The Sixth Amendment also guarantees
that the trial shall be held in the district where the crime
occurred. U.S. Const. amend. VI.
49
guaranteed by the Constitution. Second, the
concept that a criminal trial must be before a jury
composed of residents of the county where the
crime occurred was not deemed to be of
sufficient consequence to be guaranteed by the
Constitution. Rather, if such a rule was to be
adopted, it would have to be done by Congress.
Id. at 477–78 (footnote omitted). The third theme concerned
the vicinage of jurors in both capital and noncapital trials,
prompting the observation that “[t]he mandate that 12 jurors be
summoned from the county of the crime in capital cases was
repealed in 1862.”
Id. at 478 n.60.
In short, no vicinage requirement has existed in capital
cases since 1862. If there is to be such a rule, Congress will
need to enact it once again.24
Finally, we reject Savage’s assertion that the District
Court’s denial of the motion to empanel a jury drawn solely
from Philadelphia County amounted to structural error. “The
purpose of the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should define
the framework of any criminal trial.” Weaver v.
Massachusetts, 137 S. Ct. 1899, 1907 (2017) (emphasis
24
Even if Savage’s argument had some traction, it would
derive from the right to have the trial conducted in the county
of the offense. That right is not “absolute . . . , but only a
qualified right in cases where such a trial could be had ‘without
great inconvenience.’” Brown v. United States,
257 F. 46, 48
(5th Cir. 1919), rev’d on other grounds,
256 U.S. 335 (1921).
50
added). Yet we observed in Zicarelli that the vicinage
requirement of drawing a jury in a capital trial from “the county
where the crime occurred was not deemed to be of sufficient
consequence to be guaranteed by the Constitution.” 543 F.2d
at 477–78. Accordingly, there is no constitutional guarantee to
support Savage’s contention that a structural error occurred
when the District Court refused to seat a jury comprised solely
of Philadelphia residents.
In sum, the District Court did not err in denying the
motion to secure the jury from the county of offense pursuant
to 18 U.S.C. § 3235.
VII. SAVAGE HAS NOT ESTABLISHED A VIOLATION OF HIS
CONSTITUTIONAL AND STATUTORY RIGHTS TO A JURY
DRAWN FROM A FAIR CROSS-SECTION OF THE
COMMUNITY.
Under the Sixth Amendment, a criminal defendant is
entitled to a trial by an “impartial” jury.25 One important step
in furthering impartiality is to draw jurors from diverse
segments of the population. See Holland v. Illinois, 493 U.S.
474, 480 (1990). The Supreme Court has declared this method
a constitutional guarantee by concluding that “the selection of
a petit jury from a representative cross section of the
community is an essential component of the Sixth Amendment
25
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed . . . .” U.S. Const. amend. VI.
51
right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528
(1975).
A corresponding statutory framework facilitates the
selection of a representative jury. The Jury Selection and
Service Act of 1968 (JSSA) provides that federal juries are to
be “selected at random from a fair cross section of the
community.” 28 U.S.C. § 1861. Federal district courts are
tasked with creating jury-selection plans consistent with this
fair-cross-section principle. § 1863(a). These plans generally
must draw potential jurors from “voter registration lists” or
“lists of actual voters,” but they also must identify other
sources “where necessary to foster the policy and protect the
rights secured by” the JSSA’s fair-cross-section principle.
§ 1863(b)(2).
The U.S. District Court for the Eastern District of
Pennsylvania has long drawn its potential jurors exclusively
from voter registration lists. See, e.g., Savage v. United States,
547 F.2d 212, 214–16 (3d Cir. 1976) (unrelated case describing
1968 version of jury-selection plan); A1:66 n.7 (describing
2009 version applicable here). That approach reflects the
Eastern District’s assessment that “[v]oter registration lists
represent a fair cross section of the community in the Eastern
District of Pennsylvania.” U.S. Dist. Ct. for Eastern Dist. of
Pennsylvania, Plan for the Random Selection of Grand and
Petit Jurors § 3 (adopted 2017).
52
The Eastern District forms its jury pool through
essentially three steps.26 Every two years, registered voters in
the jurisdiction are randomly selected to populate a master jury
wheel. Then the master wheel is culled by randomly choosing
individuals, mailing each of them a juror qualification form,
and evaluating their responses to identify who is disqualified,
exempt or excused from service. The result is a qualified jury
wheel. Finally, individuals randomly selected from the
qualified wheel are summoned to serve on venires (i.e., panels)
of potential jurors in Eastern District trials.
In preparing to challenge the Eastern District’s jury-
selection system, Savage sought discovery of extensive
information that went into creating the master wheel, the
qualified wheel and the venire.27 See 28 U.S.C. § 1867(f)
(providing for discovery). The District Court granted Savage’s
discovery motion in part, providing him access to the Eastern
District’s jury plan (2009 version) and spreadsheets containing
statistical information about the race and ethnicity of:
26
For purposes of this overview, the applicable 2009 version
of the Eastern District’s plan—as described by the District
Court in this case—does not differ from the presently operative
2017 version. See A1:66 n.7; 2017 Jury Plan §§ 3–7.
27
Savage’s co-defendant Steven Northington filed this
discovery motion and the follow-up motion to strike the
venires. We refer to both motions as filed by Savage since the
District Court determined that Savage had standing to join
them.
53
the potential jurors on the master and qualified
jury wheels assembled in 2007, 2009 and 2011;
the grand jurors who returned the First
Superseding Indictment;
the potential petit jurors who were summoned;
and
the subset of potential petit jurors who
“responded to the summons and showed up to fill
out a jury questionnaire on September 26 and 27,
2012.”28
A1:39.
Asserting a violation of his Sixth Amendment right to a
jury selected from a fair cross-section of the community,
Savage moved to strike the two panels of prospective jurors.29
He urged the District Court to draw jurors instead from lists
maintained by the Administrative Office of Pennsylvania
28
This was a case-specific jury questionnaire that the District
Court administered to the panels of potential jurors.
29
We assume the Eastern District summoned two panels
because of the impending trial in this case. See 2017 Jury Plan
§ 7(b) (providing option of two panels in anticipation of “a
highly publicized or extremely lengthy case or cases” calling
for “an extraordinary [sic] large panel of jurors”). In any event,
two more panels were added later because of “the Court
needing two additional panels to fill out questionnaires.”
A1:65 n.5; see also A1:70 n.9.
54
Courts, which supplemented voter registration rolls with
various other sources. The District Court denied the motion
because Savage had not made a threshold showing of a fair-
cross-section violation under Duren v. Missouri, 439 U.S. 357
(1979), and United States v. Weaver,
267 F.3d 231 (3d Cir.
2001). Savage now argues the District Court erred in
determining that he failed to satisfy two prongs of the Duren
standard.
After briefing in this case concluded, a different panel
of this Court decided a case presenting a fair-cross-section
claim, Howell v. Superintendent Rockview SCI, 939 F.3d 260
(3d Cir. 2019), reh’g denied, No. 17-1758 (3d Cir. Nov. 26,
2019), petition for cert. filed, Howell v. Garman, No. 19-8378
(Apr. 24, 2020). The Government raised Howell in a Rule 28(j)
letter, to which Savage responded. The parties had a further
opportunity to address Howell’s import at oral argument.
A. Standard for a Fair-Cross-Section Challenge30
Savage has the burden to establish a violation of his fair-
cross-section rights by identifying (1) “a ‘distinctive’ group in
the community” (2) that was “not fair[ly] and reasonab[ly]”
represented among potential jurors compared with its
representation in the community (3) because of “systematic
30
“Whether a defendant has been denied his or her right to a
jury selected from a fair cross section of the community is a
mixed question of law and fact, and is reviewed de novo.”
Weaver, 267 F.3d at 235.
55
exclusion of the group in the jury-selection process.”31, 32
Duren, 439 U.S. at 364.
In Duren, women comprised 54% of the relevant
population, but only approximately 15% of the weekly venires
in state court. Id. at 362–63, 365. Recognizing that women
were a distinctive group, the Supreme Court determined that
their underrepresentation was not only unfair, but attributable
to systematic exclusion because the underrepresentation
“occurred not just occasionally but in every weekly venire for
a period of nearly a year.”
Id. at 364–66. The Court could
easily pinpoint the exclusionary processes: the jury-selection
system included several exemptions expressly for women,
including an automatic exemption upon failure to respond to
the summons and appear for service.
Id. at 361–62, 366–67.
31
If Savage can make this prima facie showing, then the
Government would “bear[] the burden of justifying this
infringement by showing attainment of a fair cross section to
be incompatible with a significant state interest.”
Weaver, 267
F.3d at 237 (quoting
Duren, 439 U.S. at 368) (internal
quotation marks omitted). In this case, we need not reach the
Government’s rebuttal burden.
32
Savage forfeited the opportunity to pursue a JSSA claim here
by failing to raise it in the District Court. See United States v.
Baxter,
951 F.3d 128, 136 (3d Cir. 2020), petition for cert.
filed, No. 20-5133 (July 14, 2020). But because the fair-cross-
section standard is equivalent for claims under the Sixth
Amendment and the JSSA,
Weaver, 267 F.3d at 236–37,
excluding the JSSA claim makes little difference to our
analysis.
56
Here, Savage established the first Duren prong by
identifying a similarly distinctive group: black individuals.
But the District Court correctly determined that he failed at the
second prong because he had not demonstrated unfair and
unreasonable representation of that group. We also agree with
the District Court’s third-prong determination that Savage did
not show that any underrepresentation stemmed from
systematic exclusion.
B. Savage has not made a prima facie showing of a
fair-cross-section violation.
1. Blacks are a distinctive group.
To satisfy the first prong, Savage points to the alleged
underrepresentation of Blacks among prospective jurors. We
ask whether that group is “sufficiently numerous and distinct
from others in the population that if members of the group are
systematically eliminated, the defendant’s right to a jury
composed of a fair cross section of the community would be
violated.” Weaver, 267 F.3d at 239–40. We routinely
recognize that Blacks qualify as a distinctive group. See, e.g.
,
id. at 240; Howell, 939 F.3d at 266. No further discussion is
necessary on this point.
2. Blacks were not unfairly or unreasonably
represented on the qualified jury wheel.
Savage argues that representation of Blacks among
potential jurors was not “fair and reasonable” when compared
to the proportion of that group within the Eastern District
population. In evaluating Savage’s argument as to the second
57
prong, we look to statistics to assess the degree, if any, to which
Blacks were underrepresented. Weaver, 267 F.3d at 240
(noting the inquiry is “at least in part, a mathematical exercise,
and must be supported by statistical evidence”).
Our analysis involves (1) identifying that share of the
Eastern District population who are Blacks; (2) determining
the share of the Eastern District’s jury wheel or the venires in
this case that consisted of Blacks; and (3) deploying statistical
methods to evaluate any disparity between the two shares. See
id. at 240–44 (analyzing portion of master wheel);
Duren, 439
U.S. at 364–66 (using venires).
Population Percentage. Savage relied on census data
compiled by a consulting firm to calculate that Blacks
comprised 16.82% of the Eastern District population as of his
2012 motion. The District Court accepted this undisputed
statistic. But the District Court should have distilled the jury-
service-eligible population of Blacks in the Eastern District.
See Berghuis v. Smith, 559 U.S. 314, 319, 323 (2010);
Howell,
939 F.3d at 263, 266; Ramseur v. Beyer,
983 F.2d 1215, 1231
(3d Cir. 1992) (en banc). That jury-service-eligible statistic
does not appear in the record, so despite the District Court’s
error, we will consider the statistic representing the full
population of Blacks in the Eastern District.
Jury Wheel Percentage. The District Court decided it
was more appropriate to assess Blacks’ representation on the
qualified wheel than either the master wheel or two venires
assembled for Savage’s trial. In the District Court’s view, the
wheels would better capture any systematic exclusion. And as
between the two wheels, the master wheel contained limited
58
racial data, so the District Court determined the qualified wheel
reflecting juror questionnaire responses was preferable for fair-
cross-section purposes. The District Court also noted the
venire-based statistic was incomplete, for it did not account for
two more venires empaneled while the fair-cross-section
motion was pending.
On appeal, Savage does not challenge the District
Court’s reliance on the Eastern District’s qualified wheel33—
consisting of 8.37% black individuals,34 A1:71—so we will
rely on it as well. Precedent reinforces that the qualified wheel
is a valid option for assessing a fair-cross-section claim. See
Duren, 439 U.S. at 363–64 (stating fair-cross-section principle
with respect to “jury wheels, pools of names, panels, or venires
from which juries are drawn” (quoting
Taylor, 419 U.S. at 538)
(internal quotation marks omitted));
Savage, 547 F.2d at 214
(construing cross-section challenge as targeting qualified
wheel).
Statistical Methods. We work with two statistical
inputs: Blacks represented 16.82% of the Eastern District
population, but only 8.37% of the qualified wheel. We
evaluate the significance of this shortfall by calculating two
33
Specifically, the District Court considered “the 2011
Qualified Jury Wheel as of August 29, 2012.” A71.
34
Savage misattributes the 8.37% statistic to the master wheel
but does not object to our use of that statistic.
59
metrics: absolute and comparative disparities.35 Howell, 939
F.3d at 268.
Absolute disparity is simply the difference between our
two statistical inputs, or 8.45%. See Weaver, 267 F.3d at 238.
That means if we drew a venire of one hundred people from
the qualified wheel, we would expect to find about eight fewer
Blacks among them than if we drew one hundred people from
the Eastern District at large. See
Howell, 939 F.3d at 268 n.7.
Comparative disparity is the quotient of the absolute
disparity and the population percentage. Weaver, 267 F.3d at
238. We divide 8.45% by 16.82% for a comparative disparity
of 50.24%. Thus, Blacks were about half as likely to appear in
the qualified wheel as we would expect based on their share of
the Eastern District’s population. See
Howell, 939 F.3d at 268
n.8;
Weaver, 267 F.3d at 238 n.5.
The two methods have countervailing weaknesses when
it comes to evaluating the underrepresentation of a relatively
small minority: Absolute disparity tends to understate any
discrepancy, while comparative disparity tends to overstate it.
Weaver, 267 F.3d at 242–43 (collecting cases). So relying on
these methods “can be misleading” when a group’s population
percentage is small.
Berghuis, 559 U.S. at 329; see, e.g.,
United States v. Ashley,
54 F.3d 311, 313–14 (7th Cir. 1995)
(denying fair-cross-section claim when group comprised 3% of
35
We have also used a third metric, standard deviation, to
assess the reliability of sample data. See
Howell, 939 F.3d at
266–68. But no sampling occurred here. Instead we rely on a
statistic representing the entire qualified wheel.
60
relevant population but 0% of venire, due to absolute disparity
of merely 3%).
Still, the Supreme Court has expressly left open the
question of which method(s) courts should use to assess a fair-
cross-section challenge. Berghuis, 559 U.S. at 329–30
(mentioning absolute disparity, comparative disparity and
standard deviation). In Duren, the Court did not discuss any
methods, but simply determined the second-prong showing
was satisfied based on a side-by-side comparison of the
percentages of women in the population (54%) and in the
weekly venires (15%).
See 439 U.S. at 362–66. That seemed
to endorse the absolute disparity method. See
Weaver, 267
F.3d at 242. But more recently, in Berghuis v. Smith, the Court
observed that “neither Duren nor any other decision of this
Court specifies the method or test courts must use to measure
the representation of distinctive groups in jury
pools.” 559
U.S. at 329 (emphasis added).
This Court continues to use both absolute and
comparative disparity methods, see Howell, 939 F.3d at 268–
69, because, when applied together, one method can be
reasonably expected to offset the shortcomings of the other, see
Weaver, 267 F.3d at 241–43. Nevertheless, taking our cues
from Duren and persuasive authority, we have shown some
solicitude for absolute disparity. See
id. at 242 (observing it
“seems to be the preferred method of analysis in most cases”).
We considered the interplay of absolute disparity and
comparative disparity most recently in Howell, where Blacks
comprised 10.7% of the relevant population. 939 F.3d at 266,
268. The absolute disparity of 5.83% was “lower than or
61
similar to absolute disparities in other cases where courts have
found no constitutional violation, and in fact, numerous courts
have noted that an absolute disparity below 10% generally will
not reflect unfair and unreasonable representation.” Id. at 268
(collecting cases). We were also persuaded by authority
determining that “comparative disparities similar to the
comparative disparity in [Howell], 54.49%, were insufficient
to demonstrate unfair and unreasonable representation.”
Id.
(collecting cases). Evaluating the two statistical methods
together in light of “factually similar cases,” we concluded that
Howell had not met his burden under Duren’s second prong.
Id. at 269.
Savage argues that the District Court inappropriately
took “bright-line” approaches dismissive of an absolute
disparity under 10% and a comparative disparity for a small
population. These characterizations fail to appreciate the
District Court’s nuanced treatment of the absolute and
comparative disparities together. With the benefit of Howell,
we reach the same conclusion as the District Court—that the
two disparities are insufficient to show unfair and unreasonable
representation under Duren.36
36
We easily dispose of Savage’s argument that the District
Court failed to account for the “practical realit[ies]” of these
absolute and comparative disparities. Def. Br. 141–42. He
tries to explain, in layman’s terms, what the results of these
methods say about underrepresentation of Blacks from the
Eastern District. The only authority he cites is inapposite. See
id. at 141 (citing Garcia-Dorantes v. Warren,
801 F.3d 584,
588 (6th Cir. 2015)). So we maintain our established approach.
62
Here, the absolute disparity of 8.45% is only slightly
higher than the absolute disparities that fell short in Howell and
other cases where a minority group’s population percentage
was comparable to that of Blacks within the Eastern District.
See 939 F.3d at 268 (absolute disparity of 5.83%; population
percentage of 10.7%); United States v. Davis,
854 F.3d 1276,
1295 (11th Cir. 2017) (absolute disparity of 6.7%; population
percentage of 12.1%); United States v. Grisham,
63 F.3d 1074,
1078–79, 1081 (11th Cir. 1995) (absolute disparity in one
instance of 4.72%; relevant population percentage of 18.31%);
United States v. Clifford,
640 F.2d 150, 154–55 (8th Cir. 1981)
(absolute disparity of 7.2%; population percentage of 15.6%);
cf.
Ramseur, 983 F.2d at 1230–32 (absolute disparity of 14.1%
was “of borderline significance” in equal-protection analysis
overlapping with fair-cross-section analysis; population
percentage of 35.9%).
Although Howell looked favorably on jurisdictions that
have adopted 10% thresholds, see 939 F.3d at 268; see also
Davis, 854 F.3d at 1295;
Ashley, 54 F.3d at 314;
Clifford, 640
F.2d at 155; United States v. Maskeny,
609 F.2d 183, 190 (5th
Cir. 1980),37 we are wary of ossifying that consideration
through a rule when our own precedent requires us to consider
comparative disparity as well.38
37
In Berghuis, the Supreme Court was asked to impose a 10%
threshold, but the Court declined to reach the
issue. 559 U.S.
at 330 n.4.
38
Just as the Supreme Court has “not augur[ed] or authorize[d]
the fashioning of detailed jury selection codes by federal
courts,” we faithfully maintain that “[t]he fair-cross-section
63
Turning to comparative disparity, the 50.24% figure
here is similar to those deemed insufficient in other cases,
especially Howell. See 939 F.3d at 268 (comparative disparity
of 54.49%; population percentage of 10.7%); United States v.
Orange,
447 F.3d 792, 796, 798–99 (10th Cir. 2006)
(comparative disparities “rang[ing] from 38.17% to 51.22%”;
population percentages ranging from 1.64% to 8.63%); United
States v. Chanthadara,
230 F.3d 1237, 1256–57 (10th Cir.
2000) (comparative disparities of 40.89% and 58.39%;
population percentages of 7.9% and 2.74%, respectively); cf.
Weaver, 267 F.3d at 240, 243 (considering comparative
disparities of 40.01% and even 72.98% to be “of questionable
probative value” due to particularly small population
percentages of 3.07% and 0.97%, respectively).
Savage points out that the comparative disparity here
exceeds the “about 40%” disparity we called “borderline” in
Ramseur. 983 F.2d at 1230, 1232 (population percentage of
35.9%). But even if Ramseur lent some support when Savage
filed his briefs, it is less helpful in the wake of Howell. There
we determined that a comparative disparity of 54.49%—higher
than both Ramseur’s 40% and Savage’s 50.24%—was not
enough to tip the scales. The comparison with Howell is not
quite open-and-shut, for the somewhat higher population
percentage here (16.82% vs. Howell’s 10.7%) makes the
comparative disparity a slightly more accurate indicator of
underrepresentation. But we are unpersuaded that the statistics
in Savage’s case differ meaningfully.
principle must have much leeway in application.”
Taylor, 419
U.S. at 537–38.
64
Savage attempts to bolster his comparative disparity
argument by briefly invoking out-of-circuit authority that sets
a more modest standard for establishing unfair and
unreasonable representation. In Garcia-Dorantes v. Warren,
the Sixth Circuit decided that a habeas petitioner made the
requisite showing based on a population percentage of 8.24%,
an absolute disparity of 3.45%, and a comparative disparity of
42%, caused by a glitch in the electronic jury selection system.
801 F.3d 584, 590–93, 600, 603 (6th Cir. 2015). Because the
disparities in Savage’s case are somewhat larger, and the
population percentage is somewhat higher, his case may clear
the Sixth Circuit’s second-prong hurdle. No matter, we must
adhere to our own standard. Moreover, Garcia-Dorantes is
distinguishable on its merits for at least two reasons.
First, the Sixth Circuit expressly prefers comparative
disparity where small populations are involved because
absolute disparity tends to understate discrepancies in those
instances. Id. at 601–02. We agree with that premise, but we
also recognize the tendency of comparative disparity to
exaggerate discrepancies for small populations.
Weaver, 267
F.3d at 242. For that reason, we do not give comparative
disparity pride of place. See
id. at 241–43. Second, the
Garcia-Dorantes court relied on non-Third Circuit precedent
indicating that even more modest disparities met the second-
prong standard.
See 801 F.3d at 601–02 (citing Smith v.
Berghuis,
543 F.3d 326, 336–39 (6th Cir. 2008), rev’d on other
grounds,
559 U.S. 314 (2010); United States v. Rogers,
73 F.3d
774, 776–77 (8th Cir. 1996)). We must look to Third Circuit
caselaw, where Savage runs up against Howell and our other
precedent. Garcia-Dorantes may inform our understanding of
65
absolute and comparative disparities, but we are certainly not
bound by it.
Here, we have considered the absolute and comparative
disparities together in light of the relevant authorities, Howell
most particularly. We conclude that Savage fails to meet his
burden of proving that Blacks were unfairly and unreasonably
represented on the Eastern District’s qualified jury wheel.
Because Savage has not satisfied Duren’s second prong, he
cannot establish a violation of his fair-cross-section rights.39
3. Alternatively, Blacks were not
systematically excluded from the qualified
jury wheel.
Even if Savage were able to meet Duren’s second
prong, he would still need to show that Blacks were
underrepresented on the Eastern District’s qualified jury wheel
due to systematic exclusion from the jury-selection process.
The District Court observed no such third-prong showing.
Looking again to Howell, we agree.
39
Although “petit juries must be drawn from a source fairly
representative of the community,” the Supreme Court has
never required “that petit juries actually chosen must mirror the
community and reflect the various distinctive groups in the
population.” Taylor, 419 U.S. at 538. Still, we note Savage’s
concession elsewhere that two of twelve empaneled jury
members (16.67%) were black, approximating their 16.82%
share of the Eastern District population.
66
This is not a case where an exclusionary process is
“readily apparent” as it was with the several exemptions for
women in Duren. Howell, 939 F.3d at 269. Even so, a
defendant may establish an exclusionary process by identifying
“a large discrepancy over time such that the system must be
said to bring about the underrepresentation.”
Id. (quoting
Weaver, 267 F.3d at 244) (internal quotation marks omitted).
We evaluate evidence of “the nature of the system, length of
time studied, and ‘efforts at reform to increase the
representativeness of jury lists.’”
Id. (quoting Ramseur, 983
F.2d at 1234–35). From the record in this case, we are not
convinced that these factors demonstrate systematic exclusion
of Blacks.
Nature of the System. It goes without saying that
overtly barring a racial group from jury service constitutes
systematic exclusion from participation in the process.40 Such
practices are offensive not only to the Constitution but to our
values as a free society. Similarly, if a jury-selection plan
simply gave a racial group additional opportunities to opt out
that were not provided to others, and members of that group
often availed themselves of those opportunities, then the plan
would be systematically excluding that group too.41 See
Duren, 439 U.S. at 366–67 (evaluating results of exemptions
for women). Otherwise, “[a] selection process that is facially
40
Such a plan would also violate the JSSA’s ban on excluding
potential jurors based on protected characteristics such as race.
28 U.S.C. § 1862.
41
The absence of intentional discrimination is not dispositive
of a fair-cross-section claim,
Weaver, 267 F.3d at 244, unlike
an equal-protection claim,
Duren, 439 U.S. at 368 n.26.
67
neutral is unlikely to demonstrate systematic exclusion.”
Howell, 939 F.3d at 269.
Savage has not identified anything on the face of the
Eastern District’s jury selection process that draws racial
distinctions. The process relies exclusively on voter
registration lists, consistent with other facially neutral
processes this Circuit has upheld. See id. (voter registration
lists and driving records);
Weaver, 267 F.3d at 237, 244–45
(voter registration lists);
Ramseur, 983 F.2d at 1229, 1235
(voter registration and licensed driver lists);
Savage, 547 F.2d
at 215 (voter registration list).
We have, nevertheless, left open the possibility that
drawing on voter registration lists alone might be actionable
“under some circumstances” when use of those lists “over time
did have the effect of sizeably underrepresenting a particular
class or group on the jury venire.” Weaver, 267 F.3d at 244–
45. Accordingly, facial neutrality alone of a selection system
is not dispositive.
Length of Time Studied. Even if a process is facially
neutral, it might consistently produce disproportionately low
representation of a particular group. The Duren Court saw a
large shortfall in women’s representation in “every weekly
venire for a period of nearly a year,” reinforcing that
exemptions for women generated their systematic exclusion
from venires. 439 U.S. at 366–67. Extrapolating from Duren,
we have suggested that the use of a voter registration list alone
might still run afoul of the third prong if it produced
underrepresentation “over time”—enough time to deem the
underrepresentation “persistent.”
Weaver, 267 F.3d at 244–45.
68
But we have yet to determine the duration that would have to
be shown to constitute “persistence.” A two-year showing is
not necessarily enough, see Ramseur, 983 F.2d at 1230, 1235,
but something even shorter might suffice if the cause of the
underrepresentation were as “readily identifiable” and the
evidence as “similarly specific” as it was in Duren.
Howell,
939 F.3d at 269–70 (eight months sufficient in Duren, but not
six months in Howell).
At oral argument, Savage conceded that he had not
provided the District Court with any record of
underrepresentation over time. Oral Argument Tr. 185:15–
186:3; see also id. 186:19–20 (as noted by panel). But Savage
rejected the suggestion that this concession doomed his prima
facie case; instead, he insisted that a showing of duration is not
an “absolute requirement” to meet Duren’s third prong.
Id.
186:19–187:12. Howell forecloses that argument by stating
flatly that a study of underrepresentation “must have
demonstrated ongoing discrimination over a sufficient period
of
time.”42 939 F.3d at 269 (emphasis added).
Savage’s failure to show the District Court that Blacks
were underrepresented on an ongoing basis prevents him from
establishing systematic exclusion. While he points to other
evidence he submitted to the District Court, none of that
material is availing.43 Nor can we consider evidence Savage
42
We read Howell’s reference to “discrimination” in context to
include unfair and unreasonable representation resulting from
a facially neutral system.
43
In the District Court, Savage identified two pieces of point-
in-time evidence to suggest that exclusion was systematic:
69
failed to present to the District Court. See Howell, 939 F.3d at
269 n.9. Even if we were to consider such new evidence, as
we occasionally have, S.H. ex rel. Durrell v. Lower Merion
Sch. Dist.,
729 F.3d 248, 267 n.27 (3d Cir. 2013), the evidence
Pennsylvania state legislation and a Pennsylvania state
commission report. See A2:529–30.
In 2007, state legislation expanded the sources of potential
jurors available to state courts, Act of July 17, 2007, P.L. 123,
No. 37, § 3 (codified as amended at 42 Pa. Cons. Stat.
§ 4521.1), and soon made information available to federal
district courts in Pennsylvania as well “[u]pon request,”
§ 4521.1(d)(2) (2008 amendment). See also A2:529–30.
Also in 2007, a state commission asserted that using voter
and vehicle registration lists alone frequently distorts the
representation of certain groups on venires, which as a result
“may not be reflective of the community-at-large, particularly
the minority community.” A2:530; Def. Br. 145–46 (quoting
Pa. Interbranch Comm’n for Gender, Racial, & Ethnic
Fairness, Suggested Standardized Procedures for Jury
Selection in Pennsylvania (Sept. 12, 2007)) (internal quotation
marks omitted).
This “snapshot” evidence fails to demonstrate systematic
exclusion in 2007, much less in 2012 when Savage moved to
strike the venires. Neither the state legislation nor the state
report specifically addresses underrepresentation of Blacks on
jury wheels or venires in federal court in the Eastern District of
Pennsylvania.
70
in his opening and reply briefs is likewise unpersuasive.44, 45
44
In his opening brief, Savage argues that the federal district
courts in Pennsylvania have failed to implement a jury-
selection lesson learned by their sister courts within the Third
Circuit. Federal district courts in New Jersey, Delaware and
the Virgin Islands supplement voter lists with at least one other
source. See Dist. Ct. of Virgin Islands, Juror Selection Plan
§ E (rev. Feb. 20, 2019) (voter registration and licensed driver
lists); Plan of Implementation of U.S. Dist. Ct. for Dist. of New
Jersey Pursuant to Jury Selection & Service Act of 1968
§ C(1)(a) (rev. Mar. 20, 2009) (voter registration lists, and if
available, lists of licensed drivers, state income tax filers, and
Homestead rebate application filers); Revised Plan of U.S.
Dist. Ct. for Dist. of Delaware for Random Selection of Grand
& Petit Jurors, as Amended § 4 (Dec. 22, 2008) (voter
registration, licensed driver, and state ID card lists). Yet this
contrast suffers a flaw similar to Savage’s evidence in the
District Court: the use of supplementary sources in other
jurisdictions does not by itself demonstrate systematic
exclusion of Blacks in the Eastern District of Pennsylvania.
Savage’s opening brief also insists that “black people in
Pennsylvania have faced significant challenges in participating
in the voting process.” Def. Br. 147 n.67. This “one-sentence
footnote”—devoid of authority or record citation—“falls far
short of meeting the requirement that an appellant raise an issue
in his opening brief or else waive the issue on appeal.” United
States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008).
45
Savage’s reply brief relies on two additional sources in an
attempt to demonstrate systematic exclusion: a law review
71
We need not reach Howell’s third factor, jury selection
reform initiatives, to conclude that Savage has failed to
demonstrate systematic exclusion. His fair-cross-section
challenge fails on these grounds as well.46
article by the Chief Judge of the Eastern District, and another
article reporting results of a voter study in Pennsylvania.
Similar to the state commission discussed above, Chief
Judge Juan R. Sanchez explains that a discrepancy in voter
registration rates would generate underrepresentation of some
groups among potential jurors. Hon. Juan R. Sanchez, A Plan
of Our Own: The Eastern District of Pennsylvania’s Initiative
to Increase Jury Diversity, 91 Temp. L. Rev. Online 1, 13
(2019). According to the other article, a Pennsylvania state law
enacted in 2012 reportedly disenfranchised voters in mostly
black districts at a much higher rate. Edward A. Purcell, Jr.,
Reflections on the Fiftieth Anniversary of the March and the
Speech: History, Memory, Values, 59 N.Y. L. Sch. L. Rev. 17,
54 (2014–2015) (citing study).
Even assuming arguendo that this evidence is timely
presented in reply, it hardly furthers Savage’s argument. These
observations are unspecific to the Eastern District, and they fail
to demonstrate underrepresentation over time.
46
It is presumably the Eastern District’s institutional role—not
the role of Savage or the District Judge in this case—to conduct
a study and make findings before deciding that voter
registration lists must be supplemented with other sources.
After all, the responsibility to create a jury-selection plan
consistent with § 1861, and to modify it as needed, resides
firmly with the respective district court under the supervision
72
* * *
The District Court correctly determined that Savage was
unable to establish a prima facie violation of his Sixth
Amendment right to a jury drawn from a fair cross-section of
the community. Even if Savage had not forfeited the
corresponding statutory claim, he would still be unable to
establish a prima facie violation of the JSSA.
VIII. THE DISTRICT COURT DID NOT ERR IN DENYING THE
BATSON OBJECTION.
Savage raised a Batson47 challenge to the Government’s
peremptory strike of Prospective Juror 185, a black female.
The District Court determined that the Government’s reasons
for striking Number 185 were race-neutral and that the
of a reviewing panel comprised of the circuit’s judicial council
and the district’s chief judge or designee. 28 U.S.C. § 1863(a).
47
Batson v. Kentucky, 476 U.S. 79 (1986), held that a
prosecutor’s purposeful racial discrimination in the selection
of the jury violated the state prisoner’s equal protection rights
under the Fourteenth Amendment. Savage asserts an
analogous claim under “the implicit equal protection
component of the Fifth Amendment.” United States v.
Clemmons,
892 F.2d 1153, 1155 n.1 (3d Cir. 1989) (citing
United States v. Frame,
885 F.2d 1119, 1137 (3d Cir. 1989)).
For ease of reference, we will refer to Savage’s claim as a
Batson claim. The critical inquiry for a trial court is “whether
the defendant has shown purposeful discrimination.” Foster v.
Chatman,
136 S. Ct. 1737, 1747 (2016) (quoting Snyder v.
Louisiana,
552 U.S. 472, 476–77 (2008)).
73
prosecution did not strike her because of race. We conclude
that the District Court did not clearly err.
A. Background
Savage raised his first Batson challenge when the
Government exercised a peremptory challenge to Number
185,48 the eighth black prospective juror to be considered. The
prior seven had been addressed as follows:
Number 2 was seated;
Number 11 was excused for cause;
48
Prior to jury selection, the Government filed a motion
seeking an anonymous jury panel and heightened jury security.
The Government asked to shield from the parties, their
attorneys and the public the prospective jurors’ names,
addresses and employers. The request was based on the
“history of violence and intimidation” and a view that such
safeguards were “necessary to protect jurors from the threat of
danger posed by Defendants.” A1:18. The District Court
granted the motion, ordered an anonymous jury, and required
the shielding of each prospective juror’s name, address and
place of employment. The District Court noted these same
measures had been taken in Savage’s 2005 federal jury trial
and that, while detained in the Federal Detention Center in
Philadelphia, Savage had “plotted to obtain the addresses and
telephone numbers of the jurors” serving in that trial. A1:20.
In addition, the U.S. Marshals Service was ordered to transport
the jurors each day from an undisclosed location to court and
back to that location at the end of the day.
74
Number 20 was stricken by the Government’s
peremptory challenge;
Number 79 was excused for hardship;
Number 108 was excused for cause;
Number 110 was excused for “anonymity reasons,”
A34:18041, which are not contained in the record; and
Number 118 was excused for hardship.49
Number 185, who was age thirty-one, lived in North
Philadelphia with her seventy-eight-year-old grandmother, her
eleven-year-old daughter and her brother. According to her
jury questionnaire, she was an unemployed home health aide
who planned to return to college in the fall semester to pursue
a nursing degree. During voir dire, she stated that she was
actively seeking part-time, evening work that would run from
7:00 to 11:00 p.m. She did not believe that such part-time work
would interfere with her performance as a juror. When asked
her general view of the death penalty, she replied that it
“depend[ed] on the circumstances” and that it isn’t “fair to
judge someone for the death penalty without knowing the
circumstances.” A34:18019. The prosecutor described her
answers to questions on the subject as “straight down the
middle.” A34:18019.
But Number 185 resided in North Philadelphia, and the
Savage prosecution involved drug transactions, violent crimes
49
The circumstances supporting the excusal of these six black
prospective jurors, including the peremptory strike of Number
20, have been gleaned from the arguments made at the time of
the Batson challenge at issue here.
75
and murders that occurred in that part of the city. The evidence
to be presented at trial could be expected to involve frequent
references to locations within North Philadelphia. Yet when
asked by the prosecutor if she had any concerns about being on
the jury, she replied: “No.”
Neither side moved to strike Number 185 for cause.
The prosecution did, however, exercise a peremptory strike. In
response, defendant Merritt raised a Batson challenge, which
was joined by Savage, Northington and Kidada. The
prosecutor responded to the challenge this way:
[F]irst of all, there’s been no prima facie case
made in this case. The government has, of
course, seated one African-American juror.
There’s no pattern of racial discrimination.
Secondly, as to this juror, in an abundance of
caution I would like to proffer our reasons for
striking this juror; the primary reason being that
she is unemployed and as a result she will be in
court four days a week, all day long, would be
unable to seek work during that time.
She would also not be able to get work during
that time and even if she were to obtain night
shift work as she said she was seeking, that
would take her working all day long in court, and
then until 11 o’clock on the night shift. That’s
simply not conducive to being able to serve and
to pay attention despite her statements that she
would try to do that.
76
So that is the first reason.
The second reason is that in this case, especially
with all of the events and all of the threats and
the way this is from North Philadelphia, the fact
that she lives in North Philadelphia is
troublesome. There are a lot of events that
occurred, and even though these specific areas
did not give this juror cause for concern, it still
concerns the government.
There are potentially 200, 250 witnesses in this
case, many of them are going to be from North
Philadelphia, who would testify to events that
happened there.
This is a case that involves violence, witness
intimidation. There’s even a statement in the
Court, intercepted communications from Mr.
Savage indicating that he wanted to go after a
juror. It’s a big concern to the government that
we would have a juror specifically from North
Philadelphia.
A34:18030–31.
Northington responded that the Government had not
taken issue with seating Number 149—a white male—the day
before, even though he would have been working seventy to
eighty hours a week while serving as a juror and working in the
77
business that he partially owned.50 Northington also pushed
back on the Government’s second reason for striking Number
185, pointing out that the crimes in this case had actually been
committed in various parts of the city. Counsel added that the
Government had “already exercised strikes on minorities.”
A34:18033. The District Court interjected that some of the
strikes of minorities had been made by the defense. Merritt’s
50
Number 149 testified that he was part-owner of a business
and the “sole person in the organization that deals with
contracts for new work.” A34:17975. He expressed his belief
it would be a hardship to serve, but thought it was “doable.”
Id. When questioned further by Savage’s counsel, the
prospective juror mentioned his two-hour commute into the
city and stated that jury service would be “extremely difficult.”
A34:17982. Yet Number 149 acknowledged he was used to
working long hours and believed he could be a fair and
impartial juror. The Government saw no need to strike for
cause. But Savage moved to strike for cause based on hardship
and because he believed Number 149 was “substantially
impaired from considering in a meaningful way mitigation
circumstances based on this strong sense of accountability.”
A34:18005. In short, Savage considered Number 149 as
moving “the needle towards the death penalty.” A34:18006.
The District Court rejected the request to excuse for hardship,
highlighting the prospective juror’s “willingness to be fair and
impartial.”
Id. When Savage’s counsel argued that this
prospective juror would be unable to give full attention to the
case, the District Court disagreed. After his unsuccessful bid
to excuse Number 149 for cause, Merritt exercised a
peremptory strike.
78
counsel then noted that residents of North Philadelphia are
primarily black, with Savage’s counsel then speculating that
the Government was “disappointed they didn’t get [Number
185] to say something” that would have been a basis to excuse
her for cause. A34:18036.
The District Court took the Batson challenge under
advisement and commenced the voir dire of the last
prospective juror of the day. That person was excused, and the
parties returned to the subject of the Batson challenge.
Kidada’s counsel recounted that there had been eight black
prospective jurors called and summarized the status of each.51
She acknowledged that
we don’t have a long laundry list of individuals
to show that there is a pattern, I think the case
law talks about a pattern within the confines of
the number of minorities that you actually bring
into the courtroom and actually interview as we
have done here. Strictly with regard to race, our
position is that the government has peremptory
challenges of two of these African-Americans,
and that if you expand on that, there was one
51
As noted previously, Number 2 had been seated, Number 11
was stricken for cause, Number 20 was removed by the
Government’s peremptory strike, Number 79 was excused for
hardship, Number 108 was removed for cause, Number 110
was excused due to anonymity concerns, and Number 118 was
excused for hardship. Number 185 was the eighth black
prospective juror interviewed.
79
Hispanic that the government exercised a
peremptory challenge today.52
A34:18042.
Savage argued that excluding prospective jurors simply
because they reside in North Philadelphia—especially when
they have not expressed concern about serving on the jury—
was improper. He asserted that the prosecution should have
moved to exclude generally on that basis prior to voir dire if
they were seeking such a limit on who from Philadelphia
County could serve on the jury. North Philadelphia, the
defendants argued, comprises a vast area and that striking
prospective jurors because they come from that part of the city
is tantamount to “striking people on the basis of their race.”
A34:18049.
The prosecution repeated that its primary concern was
Number 185’s unemployment and that it did not “want
unemployed people on the jury as a rule. It doesn’t make any
difference whether they are white, black or otherwise.”53
A34:18049. The Government noted that it was not challenging
the prospective juror for cause, but using a peremptory strike.
As to Number 185’s residing in North Philadelphia, the
prosecutor stated that this was, for him, reason for having a
“residual concern” about her. Id. at 18051. Finally, the
52
The record does not indicate which prospective jurors were
Hispanic and the extent to which they were challenged for
cause or the subject of a peremptory strike.
53
The prosecution also offered that it struck an unemployed
white female, which Savage does not dispute.
80
Government emphasized that this prosecution was not only
about drug dealing but also included episodes of violence and
witness intimidation, pointing to Savage’s cellblock comments
about “going after jurors.” Id. at 18052.
The District Court ruled that the prosecution provided
“race neutral reasons.” A34:18055. The judge declared:
In looking at the situation, counsel has given me
information with regard to what has transpired
during the course of the jury selection that’s
helpful information. We do have one African-
American juror who was already selected to sit
in this case. There was one other African-
American juror that was excused as a result of a
peremptory challenge by the government. We
now have this juror who is African-American,
and the government has exercised a peremptory
challenge. It does not appear to me that the
government is exercising its challenges, at least
at this juncture, based upon race. As I said a
minute ago, the reasons given by the government
are race neutral. It’s not unusual for an attorney,
whether it be the defense or a prosecutor, to be
concerned about a juror who may live in an area
where the crime scene is by and large located.
With regard to the juror’s hardship, there is no
question but that having her here and looking for
a job, and if she finds a job, working almost
around the clock would be a difficult situation.
81
Under the circumstances, I’m going to deny the
Batson challenge. I think that the government
has not exercised its challenge for racial reasons.
A34:18055–56. In response to a question from Northington’s
counsel, the District Court acknowledged the broad expanse of
North Philadelphia and gave leave to the defense to ask
additional questions during voir dire of other prospective jurors
from North Philadelphia “without getting into exactly where
the juror lives.”54 Id. at 18057.
54
Subsequently, Savage raised a Batson challenge to the
exclusion of Number 364, a forty-six-year-old black woman.
The District Court recounted the following:
The Government offered the following reasons
for the strike. First of all, that the juror has
indicated that she does not support the death
penalty. On the jury questionnaire she indicated
that she was opposed to the death penalty and
that it should be used only in extreme cases. The
Government also indicated that they were
concerned that the juror’s son had been involved
in a shooting incident. He was shot while sitting
in a car and that this was similar to a matter that
is before this court, the Tybius Flowers shooting.
The Government points out that the juror became
very emotional during the questioning with
regard to that incident, actually started crying.
82
The voir dire process resulted in seventy-eight qualified
prospective jurors who were neither removed for cause nor for
hardship. Of these seventy-eight, eleven were black. After the
parties exercised their peremptory strikes, the jury was
comprised of ten white venirepersons, two black
venirepersons, five white alternates, and one black alternate.
The jury went on to find Savage guilty as charged.
Post-trial, Northington filed a timely motion for a new
trial, which Savage joined. The motion asserted, inter alia, that
the District Court erred by rejecting the Batson challenges
raised by the defense. Judge Surrick noted that the
Government’s reasons for striking Number 185 were: (1) that
“she was unemployed, was actively seeking a job, and was
looking for a position where she could work night shifts”; and
(2) that “the Government had concerns about the juror’s
The juror also indicated that the crime had not
been solved and that she thought the police were
indifferent in dealing with it. The Government
also indicated that the juror’s boyfriend was
arrested on an assault charge and the juror visited
that boyfriend in prison.
The Government was concerned about all of
these things and these are the reasons why they
exercised the peremptory challenge. These
reasons are all race neutral and they are credible.
A34:18073–74. Savage does not challenge the District Court’s
ruling as to this prospective juror on appeal.
83
residency—North Philadelphia—in light of the circumstances
of this case.” A1:158. The judge upheld his earlier conclusion
that the strike had been for legitimate race-neutral reasons. He
explained that “[b]ased upon all of the circumstances,
including the fact that, prior to this strike, an African-American
juror had already been empaneled, and taking into account the
prosecutor’s demeanor and credibility, we are satisfied that the
Government’s reason for striking the juror was not pretextual
and not in any way motivated by a discriminatory intent.”
A1:159.
B. Applicable Law
In Batson v. Kentucky, the Supreme Court explained
that “[p]urposeful 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.” 476 U.S. at 86. When determining whether there has
been purposeful discrimination in the striking of a prospective
juror, the district court engages in a three-step process:
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; and third, in light of the parties’
submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.
84
Snyder, 552 U.S. at 476–77 (citations and internal quotation
marks omitted). The Snyder Court emphasized that this
analysis requires consideration of “all of the circumstances that
bear upon the issue of racial animosity.”
Id. at 478.
In Hernandez v. New York, the Supreme Court
instructed that when the prosecution offers to explain its
reasons for exercising its peremptory strike “without any
prompting or inquiry from the trial court,” “the preliminary
issue [at step one] of whether the defendant had made a prima
facie showing becomes moot.” 500 U.S. 352, 359 (1991).
“The second step of this process does not demand an
explanation that is persuasive, or even plausible.” Purkett v.
Elem,
514 U.S. 765, 767–68 (1995) (per curiam). Rather, it
requires
[a] neutral explanation . . . mean[ing] an
explanation based on something other than the
race of the juror. At this step of the inquiry, the
issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.
Hernandez, 500 U.S. at 360.
The third step requires the trial court “to determine if
the defendant has established purposeful discrimination.”
Batson, 476 U.S. at 98. “It is not until the third step that the
persuasiveness of the justification becomes relevant.”
Purkett,
514 U.S. at 768. “Step three of the Batson inquiry involves an
evaluation of the prosecutor’s credibility, . . . and the best
85
evidence of discriminatory intent often will be the demeanor of
the attorney who exercises the challenge.” Snyder, 552 U.S. at
477 (internal quotation marks, bracket and citations omitted).
This step requires the trial judge to decide “whether the
prosecutor’s proffered reasons are the actual reasons, or
whether the proffered reasons are pretextual and the prosecutor
instead exercised peremptory strikes on the basis of race. The
ultimate inquiry is whether the [government] was ‘motivated
in substantial part by discriminatory intent.’” Flowers, 139 S.
Ct. at 2244 (quoting
Foster, 136 S. Ct. at 1754).
The “question of discriminatory intent [at step three]
represents a finding of fact of the sort accorded great deference
on appeal.” Hernandez, 500 U.S. at 364. Because this finding
will “largely turn on . . . credibility,”
id., it is reviewed for clear
error
, id. at 369. See also
Snyder, 552 U.S. at 477 (“On appeal,
a trial court’s ruling on the issue of discriminatory intent must
be sustained unless it is clearly erroneous.”). As the Supreme
Court has instructed, “where there are two permissible views
of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.”
Hernandez, 500 U.S. at 369 (quoting
Anderson v. Bessemer City,
470 U.S. 564, 574 (1985)).
In ruling upon a Batson objection, the circumstances
warranting consideration may include statistical evidence
relating to the government’s use of peremptory strikes. Miller-
El v. Dretke, 545 U.S. 231, 240–41 (2005). But side-by-side
comparisons can be more powerful than statistics.
Id. at 241.
“If a prosecutor’s proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.”
Id.
86
C. Savage’s Claims of Error
Against this legal backdrop, we turn to the substance of
Savage’s Batson challenge. Savage agrees there’s no need to
address the first step in the analysis as the prosecution offered
its reasons for exercising the peremptory strike. See
Hernandez, 500 U.S. at 359. Nor does Savage contend that the
Government failed to offer race-neutral reasons for striking
Number 185: the prospective juror’s unemployment and the
safety concerns associated with her residence are both facially
neutral.55 Savage tacitly acknowledges as much in that he
targets the District Court’s engagement with the third step of
the Batson analysis: its determination that there was no
purposeful discrimination. See Def. Br. 155–56. Savage
contends that the nondiscrimination finding was clearly
55
Of course, the defense did assert during voir dire that striking
Number 185 because she lived in North Philadelphia—an area
that was in their view “predominantly” black—was simply a
proxy for “striking people on the basis of their race.”
A34:18034; 18049. But the record here is devoid of evidence
concerning the racial composition of North Philadelphia.
Moreover, the Government did not simply identify where
Number 185 resided as the reason for striking her. It noted its
concern about safety and security given the circumstances of
the case that warranted the empanelment of anonymous juries
in 2005 and again in this prosecution. Considering the totality
of the Government’s second reason for exercising a
peremptory strike, we see nothing inherently suggestive of
racial discrimination.
87
erroneous because the District Court procedurally and
substantively erred.
1. Procedural Error in the District Court’s
Analysis
The Supreme Court has reiterated that trial courts must
consider “all of the circumstances that bear upon the issue of
racial animosity” in ruling on a Batson objection. Foster, 136
S. Ct. at 1748 (quoting
Snyder, 552 U.S. at 478); see also
Miller-El, 545 U.S. at 239. Savage contends that the District
Court failed to heed this instruction and engage with the
evidence before it.
We cannot conclude that the District Court failed to
consider all of the circumstances. We have “note[d] that ‘a
judge considering a Batson challenge is not required to
comment explicitly on every piece of evidence in the record.’”
Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004) (quoting
Riley v. Taylor,
277 F.3d 261, 290 (3d Cir. 2001)). Here, the
District Court heard argument from counsel for all the parties,
took the objection under advisement, entertained further
argument from the parties, was very familiar with the security
issues surrounding this prosecution, and had the opportunity to
observe the demeanor of counsel and all prospective jurors
before ruling on any challenges.
2. Substantive Challenges to the District
Court’s Ruling
Savage first faults the District Court for considering the
fact that a black juror had already been seated. Savage relies
88
on Sanchez v. Roden, 753 F.3d 279, 299 (1st Cir. 2014), in
arguing that this observation by the judge constituted error. In
Sanchez, the First Circuit reviewed a ruling in a § 2254 petition
and concluded that the Massachusetts Appeals Court had
unreasonably applied Batson at step one by acknowledging the
“presence of other black people on the jury.”
Id. The First
Circuit explained that “by focusing exclusively” on the fact
that some black jurors had already been seated, the court “sent
the unmistakable message that a prosecutor can get away with
discriminating against some African Americans . . . so long as
a prosecutor does not discriminate against all such
individuals.”
Id. (emphasis omitted). Because the prosecution
had not been required to articulate a race-neutral explanation
for its challenge, the First Circuit vacated the judgment and
remanded for further proceedings.
Savage’s reliance on Sanchez is misplaced. It is one
thing for a court to “focus[] exclusively” at step one on the fact
that some black individuals have been seated on a jury, Id.
Such a narrow focus would be error. But a court may—indeed
should—consider all the circumstances at step three, including
the status of black prospective jurors who were not excused for
cause or hardship. Here, it was Kidada who, in responding to
the Government’s reasons for exercising its strike, initially
reviewed the status of the seven black prospective jurors called
prior to Number 185. And contrary to Savage’s assertion, the
District Court recited more than the mere fact that one black
juror had been seated. In ruling, the judge recounted the status
of the three black individuals who had not been excused
(Numbers 2, 20 and 185), and then considered the reasons
proffered by the Government for striking Number 185. The
89
District Court’s mentioning that Number 2, a black person, had
been seated on the jury was insufficient, by itself, to constitute
error in the ruling as to Number 185.
a. Number 149 and Number 185 are
not similarly situated.
Savage asserts that the District Court “failed to consider
or address the contrast between the Government’s treatment of
Jurors 149 and 185.”56 Def. Br. 160. In Savage’s view,
56
In a footnote, Savage submits that the Government’s
acceptance of other white prospective jurors with more
pressing hardships further demonstrates that its reasons for
striking Number 185 were pretextual. Def. Br. 161 n.71. He
specifically refers to Numbers 315, 551 and 734. But these
prospective jurors were not comparable. Savage cites the
“extreme inconvenience” of Number 315’s unavailability to
her children. Id. (citing A33:17562). Number 315, however,
was a working mother with two children, and the concern she
expressed was based in part on the possibility that the jury
would be sequestered. Number 551, Savage contends, had a
more pressing hardship than Number 185 as his “employer
could not find a replacement.” Def. Br. 161 n.71. But the
concern expressed about a replacement was assuaged when
Number 551 realized that finding a replacement was his
employer’s concern and not his. He therefore conceded he did
not have a personal hardship that would affect juror service.
As to Number 734, Savage cites her husband’s upcoming
surgery and her caregiver responsibility for her eighty-eight-
year-old mother as hardships that were greater than Number
185’s extended day. The transcript of voir dire reveals,
90
Number 149, a white male, and Number 185, a black female,
were similarly situated. If both served, he claimed, each would
be subject to extremely long days that might interfere with his
or her service on the jury. While the Government did not
object to Number 149, it did move to strike Number 185.
Miller-El teaches that “side-by-side comparisons” can
be “powerful” evidence “tending to prove purposeful
discrimination.” 545 U.S. at 241. Yet Savage correctly notes
that the District Court did not discuss Number 149. We do not
consider this an oversight. Number 149 had been voir dired
and challenged by the defense just the day before, so the
District Court no doubt recalled what that voir dire had
revealed. While there is some congruence between Numbers
149 and 185 in that each would have been required to serve a
long day (yet only if Number 185 was able to obtain
employment) there were also significant differences. Notably,
Number 149 was not unemployed. In fact, he was a business
owner whose track record included regularly “work[ing] long
hours.” A34:18003. Number 185 had no such track record, so
her capacity and stamina for serving both on the jury and in a
part-time job were unknown. Further, the Government had no
however, that Number 734’s caregiver responsibility was not
for her mother, but her mother-in-law. Moreover, that
caregiver responsibility was simply companionship; her
mother-in-law would not be in physical danger if she were to
serve on the jury. And although her husband’s surgery would
require him to temporarily be in a sling, Number 734 stated
that he could “take care of himself,” A34:18129, and that after
the first four weeks of his recovery, her husband could then
assist with his mother’s care.
91
reason to be concerned for Number 149’s safety based on his
area of residence. Given the differences between Number 149
and Number 185, the side-by-side comparison does not support
Savage’s claim.
b. The Government’s concern about
Number 185’s safety was not
baseless.
Savage also contends that the Government’s express
concern for Number 185’s safety because she resided in North
Philadelphia was baseless. We acknowledge, as we must, that
Number 185 denied knowing any of the prospective witnesses
named on eleven pages of the jury questionnaire, and that she
did not express concern about serving on the jury. Yet her
responses do not themselves render the Government’s stated
safety concerns without merit. The indictment charged Savage
and others with participating in a RICO conspiracy that
involved murders, drug trafficking and arson, not to mention
tampering with and retaliating against a witness. The District
Court had already demonstrated its safety concerns by
directing that the jury would serve anonymously and that
special security measures were to be taken in transporting
jurors to and from court. And the District Court noted that an
anonymous jury had been seated in Savage’s 2005 trial. There
was also the prosecution’s stark reminder that Savage had
threatened to “go[] after jurors.” A34:18052.
Nor can we ignore that Number 185’s stated
unfamiliarity with those named in the jury questionnaire did
not rule out that she may have been unwittingly acquainted
with any one of them based on physical appearance from
92
having previously seen the person somewhere or even knowing
of a person by nickname. Based on the foregoing, we reject
Savage’s contention that the Government’s express concern
regarding Number 185’s North Philadelphia residence lacked
factual support.
c. Statistical evidence does not compel
a conclusion that the Government’s
peremptory strike was racially
motivated.
Savage’s final argument in support of his Batson claim
marshals statistical evidence that he claims demonstrates that
the Government’s strike was motivated by race.57 Savage
notes that of the seventy-eight prospective jurors in the venire,
the Government exercised twenty-two peremptory strikes, and
that six of them were against black prospective jurors. This
57
He asserts that statistical evidence was presented to, but
ignored by, the District Court when the defense raised its final
Batson challenge to Number 364. At that time, Savage
asserted that there was an “even greater pattern” of
discrimination, A34:18065, as the Government had exercised
twelve peremptory strikes and “50 percent of them have been
against minorities, four African-Americans and two
Hispanics.” A34:18061. Given the substance of Number
364’s voir dire examination and her emotional response to the
questioning about her son, the District Court was not obliged
to comment on all of the evidence before ruling from the bench.
There were several patently race-neutral grounds cited by the
prosecution for striking Number 364, all of which the District
Court found credible.
93
yields a 27.3% strike rate against Blacks that “far exceeded
[their] representation . . . in the venire as a whole (9.67%) as
well as in the master jury wheel for the Eastern District of
Pennsylvania (8.37%).” Def. Br. 165.
Savage also points out that the Government struck six
of the eleven black prospective jurors, which equates to a strike
rate of 54.5%. In contrast, the Government struck only sixteen
of the sixty-seven non-black prospective jurors, yielding a
23.9% strike rate.
Unsurprisingly, the Government contends that these
statistics are not a basis for overturning the District Court’s
Batson findings. Rather than address the total number of
Blacks in the venire, the Government focuses on the number of
Blacks at the time of the second Batson challenge to Number
364, when there were forty-three individuals in the venire, six
of whom were black. The Government highlights that it had
accepted three Blacks: Number 2, who was the first black juror
seated on the jury, and two others who, ironically, the defense
had struck.
We acknowledge that there is more than one way to
analyze the racial statistics presented in this case. Most
instructive for us are the numbers considered by the Supreme
Court in its more recent Batson cases, Miller-El, Foster and
Flowers—the total number of Blacks in the venire and the
number of strikes of those black venire members.
In Miller-El, there were eleven Blacks in the venire.
545 U.S. at 240, 265. The government struck ten of the eleven
94
black prospective jurors, which constitutes a “strike rate”58 of
91%. Id. at 240–41. These strikes were made “in a selection
process replete with evidence that the prosecutors were
selecting and rejecting potential jurors because of race” by
“shuffl[ing]” the jury59 and using “disparate lines of
questioning . . . meant to induce qualms about applying the
death penalty (and thus explain a strike),”
id. at 265, as well as
phrasing questions in a way “meant to induce a disqualifying
answer,”
id. at 266. Given these circumstances, the Court
rejected the state’s argument that it had not stricken two of the
prospective jurors because they were black.
Id.
In Foster, stark numbers also contributed to the Court’s
conclusion that the prosecution had violated Batson. The
venire’s composition in that case included four Blacks. 136 S.
Ct. at 1743. The government struck each of them, yielding a
100% strike rate for the black prospective jurors.
Id. at 1742–
43. Those numbers were accompanied by shifting
explanations for why the strikes were made,
misrepresentations about the record, and a copy of the
prosecutor’s annotated file identifying not only which
venirepersons were black but also focusing on race in several
other respects with an eye to seating an all-white jury.
Id. at
1744–45, 1754. The Supreme Court commented that the
58
Miller-El does not utilize the term “strike rate.” But it did
compute the percentage of Blacks in the venire that were
stricken by the government. For that reason, we use the term
“strike rate.”
59
Miller-El explained that jury shuffling is a Texas procedure
that allows either party to rearrange the order in which the
venire is seated and
questioned. 545 U.S. at 253.
95
“sheer number of references to race in that file is arresting.”
Id. at 1755.
Most recently, the Supreme Court vacated the judgment
of the Mississippi Supreme Court in Flowers after concluding
that the evidence demonstrated the state court had committed
clear error in rejecting the defendant’s Batson challenge. 139
S. Ct. at 2251. The venire in Flowers’s sixth trial included six
Blacks. The state moved to strike five of the six Blacks in the
venire, yielding a strike rate of 83%.
Id. at 2237. The Supreme
Court also considered the state’s repeated use of peremptory
strikes in all of Flowers’s six trials, cumulatively removing
forty-one of forty-two Blacks, an overall strike rate of 97.6%.60
Id. at 2235–36. This usage of strikes against black
venirepersons was consistent with other evidence of
discriminatory strikes. Together, all the evidence convinced
the Court that striking one of the black prospective jurors had
been “motivated in substantial part by discriminatory intent.”
Id. at 2248. The Court “reiterate[d]” that it did not “decide that
any one . . . fact[] alone would require reversal.”
Id. at 2251.
Rather, it emphasized that “all of the relevant facts and
circumstances taken together establish that the trial court at
Flowers’s sixth trial committed clear error” in denying the
defendant’s Batson objection.
Id.
Here, contrary to Savage’s characterization, the
numbers are not comparable. There were eleven Blacks among
the prospective jurors. The Government’s challenging of six
of the eleven established a 54.5% strike rate. That percentage
60
At times, the state used all, or almost all, of its peremptory
strikes against
Blacks. 139 S. Ct. at 2236–37.
96
is well below the strike rates of 91% in Miller-El, 100% in
Foster, and 83% in Flowers.
Moreover, the 54.5% rate in this case is not nearly as
powerful as Savage contends because we may take into
account the seating of the black alternate. See Bond v. Beard,
539 F.3d 256, 269–70 (3d Cir. 2008) (considering black
alternates in determining whether the government’s strikes
raised an inference of discrimination). Accordingly, there
were twelve Blacks in the venire thereby yielding a strike rate
of 50%. That strike rate, by itself, hardly supports Savage’s
Batson claim.
* * *
In sum, we conclude that Savage has failed to establish
that the District Court clearly erred when it found that the
Government’s strike of Number 185 was not motivated by
race. At the time of this Batson challenge, the District Court
made a finding that the “government ha[d] not exercised its
challenge for racial reasons.” A34:18056. Later, in ruling on
post-trial motions, the District Court expressly took “into
account the prosecutor’s demeanor and credibility” and found
that the Government was not “motivated by a discriminatory
intent.” A1:159. These factual findings are entitled to “great
deference.” Hernandez, 500 U.S. at 364. We will not disturb
them.
97
IX. THE DISTRICT COURT DID NOT PLAINLY ERR IN
INSTRUCTING THE JURY ON THE DOCTRINE OF
TRANSFERRED INTENT.
This claim concerns the 2004 firebombing of the
Coleman house. Recall that Coleman’s mother, Marcella, was
in the home with his infant son (Damir Jenkins), his twelve-
year-old nephew (Tajh Porchea), his fifteen-year-old nephew
(Sean Rodriguez), his cousin (Tameka Nash) and her ten-year-
old daughter (Khadijah Nash). All six individuals—two adults
and four children—perished in the fire. Savage was charged
with the six murders as violent crimes in aid of racketeering
(“VICAR”) under 18 U.S.C. § 1959.
In his jury charge, Judge Surrick explained the doctrine
of transferred intent. That instruction was given to assist the
jury in deciding whether, if it found that Savage had a specific
intent to kill Marcella Coleman, such intent could be
“transferred” to the five other victims to meet the intent
element of the six VICAR murder charges. Specifically, the
District Court instructed:
Now, in determining whether a defendant, in this
instance Kaboni Savage, Robert Merritt, Kidada
Savage, committed the murders of the Nash
family as noted in Counts 10 through 15, you
may find that any such crime was committed in
aid of racketeering by applying the following
principle of transferred intent. The doctrine of
transferred intent and its additional application
says that if a defendant shoots one person with
the intent to kill and inadvertently kills another,
98
you are permitted to attribute or transfer the
defendant’s intent to kill to the second person.
Now, as applied in this case, ladies and
gentlemen, that principle says that if a defendant
planned to commit a murder to maintain or
increase his or her position in an enterprise and
in attempting to carry out that plan committed a
murder of another person, the intent of the
planned murder may be transferred to the other
murders. What this means for your purposes,
ladies and gentlemen, is that the government
may prove the fourth and fifth elements of the
offense charged in Counts 11 through 15 by
proving that on October 9, 2004, Defendants
Kaboni Savage, Robert Merritt and Kidada
Savage specifically intended to cause the death
of Marcella Coleman for the purpose of
maintaining or increasing their position in the
enterprise, and then willfully set the fire that
killed Tameka Nash, Sean Anthony Rodriguez,
Tajh Porchea, Khadijah Nash and Damir
Jenkins, as well as Marcella Coleman. So the
intent to kill Marcella Coleman is transferred to
the other victims.
A29:15197–99 (emphasis added).
Savage claims this instruction incorrectly defined the
doctrine of transferred intent and thereby impermissibly “gave
jurors permission to ‘transfer’—or more accurately, to
multiply—Savage’s alleged intent that Lamont would kill
Marcella Coleman . . . to the other arson victims, including the
99
children.”61 Def. Br. 167. In addition, because a similar
instruction was given at sentencing, Savage claims the
instruction “infected Savage’s capital-sentencing hearing,
producing an unreliable death verdict.” Id. We are not
persuaded.
A. Standard of Review
A defendant claiming error in jury instructions must
inform the District Court of any specific objection and specify
the grounds for it. See Gov’t of Virgin Islands v. Cruz, 478
F.2d 712, 718 (3d Cir. 1973); Fed. R. Crim. P. 30(d), 52(b).
Savage did not object on the trial record to the transferred
intent instruction, despite the District Court’s reminders to
counsel that they should do so. See A29:15225 (“All right,
counsel, any additions or corrections to the Court’s charge?”);
A29:15227 (In response to a reference to a discussion during
the charge conference, the District Court stated: “You better be
more specific because we were in chambers, and it’s not on the
record.”).
Because the claimed error is unpreserved, we review for
plain error. Jones v. United States, 527 U.S. 373, 388 (1999)
61
Although Savage seems to imply that there was insufficient
evidence to support the murder convictions as to the arson
victims other than Marcella Coleman, his claim challenges
only the District Court’s jury instruction on transferred intent.
Savage has therefore forfeited a sufficiency of the evidence
claim. See United States v. Baxter,
951 F.3d 128, 136 (3d Cir.
2020) (declining to consider forfeited claim), petition for cert.
filed, No. 20-5133 (July 14, 2020).
100
(if a capital defendant fails to preserve an objection to a jury
instruction, plain error review applies). To prevail on plain
error review, Savage must establish: (1) there was an error; (2)
it was plain; (3) it affected his substantial rights (i.e., it affected
the outcome of the proceeding); and (4) it affected the fairness,
integrity or public reputation of the proceeding. United States
v. Olano, 507 U.S. 725, 733–36 (1993). An error is plain if it
is “obvious” or “clear under current law.” United States v.
Vazquez,
271 F.3d 93, 100 (3d Cir. 2001) (en banc) (quoting
Olano, 507 U.S. at 734).
B. The “generic” doctrine of transferred intent in
the context of VICAR murder
The VICAR statute, 18 U.S.C. § 1959, “was enacted by
Congress in 1984 as a violent crime corollary to the RICO
statute.” United States v. Jones, 566 F.3d 353, 361 (3d Cir.
2009). It proscribes certain violent crimes—including
murder—when committed, inter alia, to maintain or increase
one’s position in a racketeering enterprise.62 Although VICAR
62
Section 1959(a)(1) provides:
Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay,
anything of pecuniary value from an enterprise
engaged in racketeering activity, or for the
purpose of gaining entrance to or maintaining or
increasing position in an enterprise engaged in
racketeering activity, murders, kidnaps, maims,
assaults with a dangerous weapon, commits
assault resulting in serious bodily injury upon, or
101
expressly applies to murder, it does not define it. See 18 U.S.C.
§ 1959. Savage argues that the absence of a definition indicates
Congress’s desire to employ a “generic” definition of
murder—and more specifically, transferred intent—for
VICAR purposes. He suggests that the source for a generic
definition should be “indications of national legal consensus”
such as “the Model Penal Code, learned treatises, and other
sources that show how the majority of jurisdictions defined the
crime.” Def. Br. 180.
Our Court has not had occasion to decide whether
VICAR requires an instruction specific to state law, or if a
“generic” definition is preferable. Some jurisdictions view
generic definitions as appropriate in RICO cases. See United
States v. Kehoe, 310 F.3d 579, 588 (8th Cir. 2002) (“RICO’s
reference to state crimes identifies the type of generic conduct
which will serve as a RICO predicate and satisfy RICO’s
pattern requirement.” (internal quotation marks omitted));
United States v. Tolliver,
61 F.3d 1189, 1208–09 (5th Cir.
1995) (“[F]ederal courts typically require only a ‘generic’
definition of the underlying state crime in a RICO charge.”),
vacated on other grounds by Moore v. United States,
519 U.S.
802 (1996).
threatens to commit a crime of violence against
any individual in violation of the laws of any State
or the United States, or attempts or conspires so
to do, shall be punished—for murder, by death or
life imprisonment, or a fine under this title, or
both.
102
But the VICAR statute requires a predicate act that is
chargeable under state or federal law. See 18 U.S.C. § 1959
(prohibiting certain predicate acts in “violation of the laws of
any State or the United States”). So as the Second Circuit has
observed, trial courts frequently instruct juries on the elements
of the specific state or federal offense that is charged as the
predicate act rather than outlining a “generic” version of the
crime. United States v. Carrillo, 229 F.3d 177, 184–85 (2d Cir.
2000) (suggesting that the “best practice” is to instruct juries
on the elements of the state offenses that are charged as
predicate acts because, even if theoretically permissible,
instruction on a “generic” offense risks prejudice to the
defendant and possible reversal on appeal); see also United
States v. Adkins,
883 F.3d 1207, 1211 (9th Cir. 2018)
(“[C]ourts, in certain circumstances, should instruct on the
state definition or otherwise risk prejudice to the defendant.”).
Notably, in Savage’s case, the District Court’s instruction on
the elements of “murder” tracked Pennsylvania law because
murder under Pennsylvania law was the predicate act charged,
and Savage does not claim that the District Court erred by
defining the predicate offense of murder under Pennsylvania
law rather than “generically.” See A29:15194 (“[I]n order for
the state offense of murder to be considered as a racketeering
act, the government must prove beyond a reasonable doubt that
a member of the enterprise committed murder as defined by the
Commonwealth of Pennsylvania.”); see also A29:15172–73
(defining murder under Pennsylvania law for RICO purposes).
For purposes of Savage’s transferred intent claim, we
need not choose between Pennsylvania’s state law definition
and a “generic” definition. That is because the doctrine is
103
essentially the same regardless of whether it is Pennsylvania’s
definition or a generic version. As the Supreme Court
instructed in Taylor v. United States, a “generic” definition
usually refers to the common law meaning of a term, unless
contemporary usage and relevant statutes indicate a divergence
from that definition. 495 U.S. 575, 592–93 (1990).
Pennsylvania’s doctrine of transferred intent is rooted in the
common law and is consistent with the formulation adopted in
the Model Penal Code. See 18 Pa. Cons. Stat. Ann. § 303(b);63
63
Section 303(b) codifies the doctrine of transferred intent. It
provides:
When intentionally or knowingly causing a
particular result is an element of an offense, the
element is not established if the actual result is
not within the intent or the contemplation of the
actor unless:
(1) the actual result differs from that designed or
contemplated as the case may be, only in the
respect that a different person or different
property is injured or affected or that the injury
or harm designed or contemplated would have
been more serious or more extensive than that
caused; or
(2) the actual result involves the same kind of
injury or harm as that designed or contemplated
and is not too remote or accidental in its
occurrence to have a bearing on the actor’s
liability or on the gravity of his offense.
104
Commonwealth v. Gaynor, 648 A.2d 295, 298 (Pa. 1994)
(Pennsylvania adopted the Model Penal Code’s version of
transferred intent); Commonwealth v. Gibbs,
626 A.2d 133,
138 (Pa. 1993) (“The ‘transferred intent’ theory provides that
if the intent to commit a crime exists, this intent can be
transferred for the purpose of finding the intent element for
another crime.”); see also, e.g., Commonwealth ex rel. McCant
v. Rundle,
211 A.2d 460, 461 (Pa. 1965); Commonwealth v.
Johnson,
68 A. 53, 53 (Pa. 1907); Commonwealth v.
Eisenhower,
37 A. 521, 521 (Pa. 1897). We can discern no
difference between a generic version and Pennsylvania’s
articulation of the doctrine.
The parties discuss the propriety of the District Court’s
transferred intent instruction by considering cases from
numerous jurisdictions, many of which rely on the common
law doctrine, to establish that there is a consensus as to how
the majority of jurisdictions define the doctrine. Indeed, as
Maryland’s Supreme Court has observed, “there is a singular
unanimity among the decisions in the overwhelming majority
of the states” concerning application of transferred intent.
Gladden v. State, 330 A.2d 176, 181 (Md. 1974). We therefore
follow the parties’ approach and consider a broad survey of
cases from jurisdictions throughout the United States before
reaching our conclusions as to the “generic” meaning and
application of the transferred intent doctrine.
With section 303(b), Pennsylvania has adopted the Model
Penal Code’s approach to transferred intent. See Model Penal
Code § 2.03(2).
105
C. Savage fails to establish that the District Court’s
transferred intent instruction clearly diverges
from the “classic doctrine.”
Both Savage and the Government agree that an
instruction on transferred intent can be permissible during a
jury charge on the meaning of intent in the context of VICAR
murder, Def. Br. 181; Gov’t Br. 145, and we concur. As the
Court of Appeals for the Second Circuit concluded in United
States v. Concepcion, transferred intent applies to VICAR
crimes. 983 F.2d 369, 381–82 (2d Cir. 1992); see also United
States v. Rahman,
189 F.3d 88, 141 (2d Cir. 1999).
Savage raises a more narrow issue in challenging the
District Court’s transferred intent instruction: he draws a
distinction between “classic” or “generic” transferred intent—
the long-accepted common law legal principle that he concedes
could apply in a VICAR murder case—and “expanded” or
“multiplied intent,” which he argues is a novel legal theory.
See Def. Br. 176, 188.
According to Savage, transferred intent specifically and
exclusively means that “a defendant, who intends to kill one
person but instead kills a bystander, is deemed the author of
whatever kind of homicide would have been committed had he
killed the intended victim.” Def. Br. 181 (emphasis added)
(internal quotation marks omitted) (quoting 2 Wharton,
Criminal Law § 144 at 197 (14th ed. 1979)). Thus, transferred
intent in Savage’s view: (1) is limited exclusively to situations
in which the intended victim survives; and (2) applies only
when there is one intended victim and one actual, unintended
victim. Having circumscribed the doctrine in this fashion,
106
Savage is able to argue that because Marcella was murdered,
the specific intent to murder her cannot “multiply” to the
additional victims.
We do not share this narrow view of the doctrine.
Caselaw from numerous jurisdictions over many decades
indicates that transferred intent, as it is generically and
historically understood in the common law, applies to the
circumstances of Savage’s case.
We begin with United States v. Sampol, 636 F.2d 621
(D.C. Cir. 1980), a case that recognized the deep historical
roots of the common law doctrine of transferred intent and
applied it in a manner contrary to Savage’s narrow approach.
In Sampol, three defendants were accused of detonating a car
bomb that killed the Chilean Ambassador to the United States
along with another passenger. The defendants were charged,
inter alia, with first-degree murder as to both victims, and the
jury found them guilty. On appeal, the Sampol defendants
argued that there was insufficient evidence of intent to kill the
other passenger who was an unintended victim. The Sampol
court was unpersuaded:
We reject this argument because of the doctrine
of transferred intent. Under this doctrine one
who intends to kill one person and kills a
bystander instead is deemed to have committed
whatever form of homicide would have been
committed had he killed the intended victim.
There are even stronger grounds for applying
the principle where the intended victim is killed
by the same act that kills the unintended victim.
107
Id. at 674 (citation omitted) (emphasis added).
In reaching its determination, the Sampol court
described the common law roots of the transferred intent
doctrine, going back to the English courts of the 1500s and
continuing through modern American statutory and common
law. Id. at 674–75. Examination of the doctrine led the Sampol
court to conclude that the defendants were accountable for both
murders—despite the fact that the defendants had intended a
single death (the ambassador’s) and had achieved that goal.
Id.
at 675 (“[T]he mens rea of a defendant as to his intended victim
will carry over and affix his culpability when such criminal
conduct causes the death of an unintended victim.” (quoting
Gladden, 330 A.2d at 189)). Thus, in Sampol, common law
transferred intent was not limited to what Savage would have
us conclude is the “classic” scenario in which one unintended
victim is killed rather than the intended target.
Similarly, in United States v. Weddell, the Eighth
Circuit applied the doctrine of transferred intent to
circumstances akin to Sampol. 567 F.2d 767, 768 (8th Cir.
1977). There, the defendant was convicted of two murders: a
bullet passed through the intended victim and also killed an
unintended victim.
Id. The trial court instructed, among other
things, that, once intent as to the intended victim was
determined, the jury “could possibly find a lesser degree or no
degree” as to the unintended victim, but not a greater degree.
Id. at 769. On appeal, the Eighth Circuit affirmed the
108
convictions and concluded that the instruction “adequately
cover[ed] the applicable law.”64 Id. at 770.
Pennsylvania similarly interprets transferred intent
more broadly than Savage suggests. In Commonwealth v.
Jones, the Pennsylvania Supreme Court considered the claims
of a defendant who was convicted of capital murder for
participating, with two co-defendants, in “firing a barrage of
twenty bullets at [a group of] people in the courtyard” resulting
64
Savage contends that Weddell supports his claim that
transferred intent does not apply to his circumstances, arguing
that “the court of appeals approved the jury instructions
because they did not direct the jury, if it found an intent to kill
the first victim, to transfer that to the second one as a matter of
law.” Def. Br. 184. We fail to see how the permissive nature
of the jury instruction in Weddell supports Savage’s argument.
The Weddell Court did not discuss, much less conclude,
whether transferred intent is limited to a situation in which the
intended victim survives or where there is only a single victim.
To the contrary, the Weddell Court upheld the transferred
intent instruction although the defendant murdered both an
unintended and an intended victim. See Weddell, 567 F.2d at
768. Moreover, the instruction in Weddell is consistent with
the instruction in Savage’s case, inasmuch as they both contain
permissive, not mandatory, language. See A29:15198 (“The
doctrine of transferred intent . . . says that if a defendant shoots
one person with the intent to kill and inadvertently kills
another, you are permitted to attribute or transfer the
defendant’s intent to kill to the second person.”).
109
in two deaths. 610 A.2d 931, 935, 938 (Pa. 1992).65 The
bullets were apparently intended for a specific victim, but that
person was not hit.
Id. at 935. The Jones Court rejected the
defendant’s claim that he lacked specific intent to murder the
two unintended victims: “[U]nder the doctrine of transferred
intent, criminal responsibility is not affected by the fact that the
bullets struck persons other than the one for whom they were
apparently intended.”
Id. at 938. Thus, Pennsylvania holds
that the intent to kill one individual can “multiply”—to use
Savage’s word—to apply to several unintended victims.
Indeed, in another case decided the same year as Jones,
Pennsylvania’s Supreme Court echoed this conclusion, and
further observed that it would be “ludicrous” to hold otherwise.
It stated:
Appellant argues that the death sentence is
excessive in this case because he . . . was
65
Savage would have us limit our consideration to sources that
existed in 1984—the year of the enactment of the VICAR
statute. He has not cited any authority to support that
limitation. In any event, the doctrine of transferred intent does
not appear to have changed since 1984, so we need not take a
position on the issue. Absent some indication that a post-1984
case has diverged from the common law “generic” doctrine,
more recent caselaw buttresses our understanding just as pre-
1984 caselaw does. In other words, although the transferred
intent doctrine is of “ancient vintage,” “[i]t has lost none of its
patina by its application over the centuries down unto modern
times; its viability is recognized by its current acceptance and
application.” Gladden, 330 A.2d at 181.
110
convicted of murder of the first degree based
upon “transferred intent.” This position is
ludicrous. The jury found that appellant did
intend to kill and did kill, and he has no basis to
compare himself with those who did not. One
who intentionally kills, but whose fatal blow
falls on a mistaken victim, is if anything more
culpable than murderers who do not carelessly
kill innocent bystanders. This type of murder . .
. is the product of a heart turned not only
against the intended victim but also against all
those anonymous but within range of the murder
weapon.
Commonwealth v. Williams, 615 A.2d 716, 727 (Pa. 1992)
(first and third emphases added).
New Jersey takes the same approach as Pennsylvania.
In State v. Worlock, the Supreme Court of New Jersey rejected
the claim that the successful murder of an intended victim
meant that the specific intent could not transfer to the
unintended victim. 569 A.2d 1314, 1324–25 (N.J. 1990).
Although New Jersey codified the transferred intent doctrine
in its penal code, the Worlock court recognized that the
transferred intent doctrine is a long-standing principle that pre-
dates the adoption of the penal code. The doctrine provides
that “[w]hen a defendant intentionally shoots at one victim but
kills another, his punishment should be consistent with his
intent and not his bad aim.”
Id. at 1325. The Worlock court
also observed that federal courts apply transferred intent in the
same manner. Id. (citing Sampol,
636 F.2d 621, and Weddell,
567 F.2d 767). Thus, the Worlock court rejected the
111
defendant’s claim that he lacked specific intent to kill the
unintended victim solely because he also killed the intended
victim.66 Id.
The Supreme Court of Connecticut has considered—
and rejected—the same arguments that Savage makes here. In
State v. Hinton, the defendant killed three individuals with a
single shot of “triple ought” buckshot and was charged with
three murders.
630 A.2d 593, 596 (Conn. 1993). The
defendant disputed the transferred intent jury charge,
contending that the instruction was erroneous because (1) the
intended victim was killed; and (2) there was more than one
66
There are numerous jurisdictions that similarly interpret
transferred intent. For instance, the District of Columbia Court
of Appeals has concluded that “application of the transferred
intent doctrine is not limited to situations in which the intended
victim survives the deadly assault.” Lloyd v. United States,
806
A.2d 1243, 1251 (D.C. 2002); see also Hunt v. United States,
729 A.2d 322, 326 (D.C. 1999). And the Indiana Supreme
Court concluded that a defendant’s intent to kill his wife
transferred to the accidental death of their child, whom the wife
was holding during the attack. Noelke v. State,
15 N.E.2d 950,
952 (Ind. 1938). The Appellate Court of Illinois rejected a
claim that transferred intent cannot apply when both an
intended and unintended victim are killed. People v. Young,
635 N.E.2d 473, 481 (Ill. App. Ct.), appeal denied,
642 N.E.2d
1300 (Ill. 1994). And in Smith v. Commonwealth, the Supreme
Court of Kentucky upheld a death sentence where the
defendant, in the course of ultimately killing the single
intended victim, also killed three unintended victims.
734
S.W.2d 437, 447 (Ky. 1987).
112
victim. Id. at 597. “The defendant claims that because the
court’s transferred intent instruction improperly allowed the
jury to find him guilty of all three murders even if there had
been only one intended victim, all three intentional murder
convictions must be reversed.”
Id.
The Hinton court rejected this argument. It concluded
that Connecticut’s statute codifying transferred intent “leads to
the result that, when a person engages in conduct with the
intent to kill someone, there can be a separate count of murder
for every person actually killed by the conduct.”
Id. at 598
.
The Hinton court considered the typical usage of singular
phrasing in the century-old description of the transferred intent
doctrine—the same formulation that Savage relies upon—but
it observed that the use of the singular was never intended to
limit the doctrine’s application exclusively to single-victim
scenarios. “[A]lthough the traditional formulation of the
doctrine of transferred intent is usually stated in singular terms,
that does not mean that such intent, once employed, is thereby
totally expended.”
Id. at 598 (citation omitted). Concluding
that such use of the singular should not rule out application of
the doctrine to conduct that kills more than one unintended
victim, and consistent with Sampol, Jones, Worlock and other
cases, the Hinton court observed that “the purpose of
deterrence is better served by holding defendant responsible
for the knowing or purposeful murder of the unintended as well
as the intended victim.”
Id. at 599.
In yet another case, Commonwealth v. Melton, the
Supreme Judicial Court of Massachusetts observed that “[w]e
have never required that a defendant’s intent be directed at the
precise victim of the crime.” 763 N.E.2d 1092, 1097 (Mass.
113
2002). Instead, “the requisite mens rea must be shown, but it
does not need to be shown separately or independently for each
victim. Rather, once established as to any victim, it satisfies
that element with respect to all other victims, even if those
victims are unintended or even unknown to the defendant.”
Id.
at 1098
(emphasis added).
Although Melton concerned assault rather than murder,
the opinion discussed the longstanding principle of transferred
intent, citing numerous examples of decisions from many
jurisdictions going back decades, including Sampol, Worlock
and Hinton, in which the “principle of transferred intent applies
to satisfy the element of intent when a defendant harms both
the intended victim and one or more additional but unintended
victims.” Id. at 1097 (emphasis added). The Melton court
recognized that a minority of jurisdictions take the view that
transferred intent does not apply in cases in which a defendant
succeeds in perpetrating the intended crime against the
intended victim.
Id. at 1098
n.7 (citing People v. Birreuta,
208
Cal. Rptr. 635 (Cal. 1984) and Ford v. State,
625 A.2d 984
(Md. 1993)).67 The Melton court expressly rejected that
67
Notably, the portions of both cases cited as supporting the
minority view have since been set aside in favor of the majority
approach. In 2002, the Supreme Court of California concluded
that Birreuta’s transferred intent analysis was incorrect and
that “[i]ntent to kill transfers to an unintended homicide victim
even if the intended target is killed.” People v. Bland,
48 P.3d
1107, 1115 (Cal. 2002). Similarly, in 2011, the Court of
Appeals of Maryland rejected the dictum in Ford and
concluded that “transferred intent is fully applicable where
both the intended victim and an unintended victim are killed.”
114
minority view: “[t]o hold that a defendant who succeeds in
perpetrating a crime on his intended victim cannot commit any
form of intentional crime against anyone who is not his actual
intended victim fails to recognize the harm perpetrated on
others who are unfortunate enough to be injured or killed by
the defendant’s criminal conduct.” Id.
Savage cites a handful of cases lending support to his
narrow interpretation of transferred intent. For instance, he
points to Roberts v. State, in which the Court of Criminal
Appeals of Texas observed that, where the intended victim was
pregnant—a fact of which the defendant was not aware—“we
cannot use transferred intent to charge capital murder based on
the death of the unintended [unborn] victim, as that would
require using a single intent to support the requirement of two
intentional and knowing deaths.”
273 S.W.3d 322, 330 (Tex.
Ct. Crim. App. 2008).68 But the mere existence of a minority
view of a legal doctrine hardly suggests that a jury instruction
Henry v. State,
19 A.3d 944, 951 (Md. 2011). Bland and Henry
rely on many of the same cases we have cited in our discussion
concerning the “classic” meaning of transferred intent,
including Sampol, Worlock and Hinton.
68
The Roberts court based its conclusion on the language of
the Texas capital murder statute, which requires a discrete
“specific intent to kill” as to each death.
Id. The Court of
Criminal Appeals of Texas has since limited Roberts,
observing that its dictum requiring “proof of intent to kill the
same number of persons who actually died” was improvident.
Ex parte Norris,
390 S.W.3d 338, 341 (Tex. Ct. Crim. App.
2012). But Texas requires separate conduct to establish
“separate intents” for each death.
Id.
115
that was consistent with the majority view amounts to plain
error.
Numerous state and federal cases, decided both before
and after VICAR’s 1984 enactment, reveal that the principle of
transferred intent is not limited to scenarios in which the
intended victim survives and there is only one unintended
victim. While we concede that the examples we have
considered do not constitute an exhaustive study, they are more
than sufficient to allow us to conclude—with confidence—that
if there is any error in the District Court’s transferred intent
instruction, such error is neither “clear” nor obvious.” The
District Court’s transferred intent instruction was not plainly
erroneous.69
D. The District Court did not plainly err by
instructing the jury on transferred intent during
the sentencing phase.
During the sentencing phase of Savage’s trial, the
District Court again instructed the jury on the doctrine of
transferred intent. See A32:16804–05. Savage did not object.
See A32:16841–47. Savage now contends this instruction was
improper, claiming that “[n]either the language nor the history
of the [Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591,]
69
Savage also contends that the prosecution made erroneous
arguments by relying on a transferred intent theory. For the
same reasons we are unpersuaded that the transferred intent
jury instruction was plainly erroneous, we are similarly
unpersuaded that counsel’s arguments consistent with the jury
instruction constitute plain error.
116
suggests that Congress meant to incorporate . . . the transferred-
intent doctrine into the determination of aggravating factors at
a capital-sentencing hearing.” Def. Br. 187. In addition,
Savage challenges the transferred intent instruction as
unconstitutional. Relying upon Enmund v. Florida, 458 U.S.
782, 794, 800 (1982), he argues that the Eighth Amendment
prohibits the use of transferred intent in a capital sentencing to
substitute for proof of the actual mental state. We do not agree.
Savage has not identified any case holding that
transferred intent cannot apply in a federal capital sentencing.70
Indeed, there appears to be little federal authority on the
subject, although several state courts have upheld the
application of the doctrine in capital sentencing. See People v.
Shabazz, 130 P.3d 519, 524–25 (Cal. 2006); State v. Higgins,
826 A.2d 1126, 1137–38 (Conn. 2003); Diaz v. State,
860
So. 2d 960, 969 (Fla. 2003);
Williams, 615 A.2d at 727–28;
Smith v. Commonwealth,
734 S.W.2d 437, 447 (Ky. 1987).
70
Although Savage’s brief makes a passing reference to the
effect that language and history of the FDPA prohibit the use
of transferred intent in a federal capital sentencing proceeding,
he provides no substantive argument concerning the language
and history of the FDPA to support this position. Such a
passing reference is insufficient to raise the issue for our
review. See United States v. Hoffecker,
530 F.3d 137, 162–63
(3d Cir. 2008). The issue is therefore forfeited. See United
States v. Pelullo,
399 F.3d 197, 222 (3d Cir. 2005) (“It is well
settled that an appellant’s failure to . . . argue an issue in his
opening brief constitutes waiver of that issue on appeal.”).
Accordingly, we will focus, as Savage did, on whether caselaw
supports his claim.
117
And the Supreme Court has upheld on habeas review the
application of transferred intent in a state capital proceeding.
Bradshaw v. Richey, 546 U.S. 74, 75–76 (2005).
Savage’s sole support for his position that transferred
intent cannot apply in a federal capital sentencing proceeding
appears in a footnote in his brief wherein he argues that “the
few state courts to consider the issue [of transferred intent as
an aggravated factor at a capital sentencing] have expressly
refused to read the doctrine into their death-penalty statutes.”
Def. Br. 187 n.75. He cites two “murder for hire” cases:
Grandison v. State, 670 A.2d 398 (Md. 1995) and
Commonwealth v. Gibbs,
626 A.2d 133 (Pa. 1993). Neither
case stands for the proposition he advances.
In Grandison, the defendant was sentenced to death for
hiring an assassin to commit a double murder on his behalf.
670 A.2d 398, 406–07. The assassin killed one intended victim
and, due to mistaken identity, killed a second, unintended
victim. In considering Grandison’s challenge to his sentence,
Maryland’s highest court rejected his claim that the sentencing
court erred by not instructing the jury on the doctrine of
transferred intent.
Id. at 424. According to Grandison, the
aggravating circumstances of his “murder for hire” conviction
necessarily relied on a transferred intent theory.
Id. The
Maryland Court of Appeals disagreed because, for purposes of
capital sentencing, it did not matter if the victim was intended
or unintended. Rather, the specific aggravating factor under
Maryland law concerned only whether or not Grandison hired
someone to commit a murder; it did not matter who the
118
intended or unintended murder victim was.71 Id. Accordingly,
while transferred intent might have played a role in
Grandison’s conviction, it simply was irrelevant to the “murder
for hire” aggravating factor at sentencing.
Id. at 425.
Gibbs concerned the sentencing of an assassin who
committed a murder for hire, rather than the individual who did
the hiring. 626 A.2d 133, 135 (Pa. 1993). Gibbs was hired to
kill a woman’s husband but ultimately killed a security guard
instead; he received a death sentence for that murder.72
Id. The
Pennsylvania Supreme Court considered whether “the trial
court erred in determining that the common law principle of
transferred intent is applicable with respect to finding a
‘contract killing’ an aggravating circumstance when the victim
is not the person the killer was hired to kill.”
Id. at 136.
The Pennsylvania Supreme Court considered Gibbs’s
petition seeking review of the refusal to issue an order
71
Under then-applicable Maryland law, an aggravating factor
for the death penalty included whether “the defendant
employed or engaged another to commit the murder and the
murder was committed under an agreement or contract for
remuneration or promise of remuneration.” Md. Code Ann.,
Crim. Law § 2-303(g)(1)(vii). Section 2-303 was repealed in
2013.
72
Although there was some question as to whether Gibbs was
hired to kill the security guard as well, see Gibbs, 626 A.2d at
135, the possibility that the security guard was an intended
victim was not relevant to consideration of the transferred
intent issue because there was no challenge to the sufficiency
of the evidence, see
id. at 137.
119
precluding consideration of the death penalty. The Superior
Court ruled that the trial court erred in applying transferred
intent to a “contract killing” as an aggravating circumstance
because Gibbs killed an unintended victim rather than the
individual he was hired to murder. The Pennsylvania Supreme
Court affirmed. It concluded that the “plain language” of its
aggravating factor statute, 42 Pa. Cons. Stat. § 9711(d)(2),
required the killing of the intended victim, not an unintended
one.73 “The plain language of the statute does not include an
unintended victim. Rather the clear language requires that the
defendant was to be paid to kill the victim.”
Id. at 138
(emphasis added).
Gibbs and Grandison simply do not demonstrate that
the District Court in Savage’s case plainly erred in instructing
on transferred intent at sentencing. Both Gibbs and Grandison
concerned specific statutory language in “murder for hire”
aggravating factor statutes. Neither case speaks to the
applicability vel non of transferred intent at a capital sentencing
absent the murder for hire context. Rather, each relied on
specific statutory language to determine whether transferred
intent could apply under the particular circumstances.
“Murder for hire” was not one of the aggravating factors
in Savage’s sentencing. More importantly, Savage does not
argue that the aggravating factors that were at issue in his
73
The statute provides, “[t]he defendant paid or was paid by
another person or had contracted to pay or be paid by another
person or had conspired to pay or be paid by another person for
the killing of the victim.” 42 Pa. Cons. Stat. § 9711(d)(2)
(emphasis added).
120
sentencing included analogous language making the particular
identity of the victim—and more specifically, whether the
victim was intended or unintended—relevant, as it was in
Gibbs and Grandison.
Savage’s aggravating factors do not rely on whether the
actual victim was the intended victim. See 18 U.S.C.
§ 3592(c)(6) (“The defendant committed the offense in an
especially heinous, cruel, or depraved manner in that it
involved torture or serious physical abuse to the victim.”),
(c)(9) (“The defendant committed the offense after substantial
planning and premeditation to cause the death of a person or
commit an act of terrorism.”), (c)(11) (“The victim was
particularly vulnerable due to old age, youth, or infirmity.”),
(c)(16) (“The defendant intentionally killed or attempted to kill
more than one person in a single criminal episode.”). For
instance, one aggravating factor refers to “substantial planning
and premeditation to cause the death of a person.”
§ 3592(c)(9) (emphasis added). The statutory language does
not imply that the “person” must be an intended victim, and
Savage offers nothing to persuade us otherwise.
In support of his Eighth Amendment claim, Savage
relies on Enmund, 458 U.S. at 794, 800, to argue that the Eighth
Amendment “forbids application of felony-murder doctrine at
capital sentencing to substitute for proof of [an] accomplice’s
actual mental state.” Def. Br. 188. Enmund’s felony-murder
analysis does not assist Savage.
Enmund concerned a defendant who remained in the
getaway car during a robbery that resulted in two unplanned
murders.
Id. at 788.
Under Florida law, Enmund was
121
convicted of first-degree murder under the felony-murder rule
and was sentenced to death. Id. at 786. The Supreme Court
held that imposition of the death penalty in such a circumstance
violates the Eighth Amendment.
Id. at 788.
Specifically, the Supreme Court concluded that it is
cruel and unusual punishment to sentence a defendant to death
if the defendant “aids and abets a felony in the course of which
a murder is committed by others but who does not himself kill,
attempt to kill, or intend that a killing take place or that lethal
force will be employed.” Id. at 797 (emphasis added). For
death penalty purposes, consideration should have been limited
to the crime in which Enmund actually participated—
robbery—rather than murder.
Id. at 801 (“For purposes of
imposing the death penalty, Enmund’s criminal culpability
must be limited to his participation in the robbery, and his
punishment must be tailored to his personal responsibility and
moral guilt.”).
Savage’s circumstances differ profoundly from
Enmund’s, rendering Enmund unhelpful to our plain error
review. It was a decision specific to felony murder, and it was
of central importance to the Supreme Court’s analysis that
Enmund did not intend to kill anyone. Id. at 798 (“Enmund
himself did not kill or attempt to kill; and . . . the record before
us does not warrant a finding that Enmund had any intention
of participating in or facilitating a murder.” (emphasis
added)). In contrast, the jury determined that Savage
specifically intended the death of at least one individual,
Marcella Coleman. Because Savage acted with lethal intent,
we are not convinced that Enmund clearly supports an Eighth
Amendment violation in Savage’s case.
122
* * *
Savage has failed to show that the District Court’s
transferred intent instructions, both during the trial and during
the sentencing proceeding, were plainly erroneous.
X. THE DISTRICT COURT DID NOT PLAINLY ERR IN ITS
JURY INSTRUCTION ON LAY OPINION EVIDENCE.
At trial, Agent Kevin Lewis provided lay opinion
testimony intended to assist the jury in understanding the
meaning of certain coded words and phrases used during
recorded conversations between Savage and his confederates.
Savage claims that the District Court’s jury instruction
concerning Lewis’s opinion testimony violated Rule 701 of the
Federal Rules of Evidence by suggesting that he was an expert.
We conclude that the District Court’s lay opinion jury
instruction is not plainly erroneous for two reasons. First, the
instruction is consistent with our Court’s caselaw. Second,
when viewed in context, the instruction did not mislead the jury
or suggest that it should afford undue weight to Agent Lewis’s
opinions.
A. Standard of Review
Savage argues that our review is de novo because he has
raised a legal question as to whether the District Court
presented the correct legal standard in its jury instructions. See
United States v. Urban, 404 F.3d 754, 779 (3d Cir. 2005)
(“Where the challenge to a jury instruction is a challenge to the
instruction’s statement of the legal standard, we exercise
123
plenary review.” (internal quotation marks omitted)). But
Savage did not object on the record to the instruction on Agent
Lewis’s testimony,74 and we have already rejected the claim
that we should simply assume that Savage objected off the
record during the District Court’s charging conference. See
generally supra Part III. Accordingly, under Rules 30 and 52
of the Federal Rules of Criminal Procedure, we review the
instruction for plain error. See Fed. R. Crim. P. 30(d), 52(b);
United States v. Salahuddin, 765 F.3d 329, 337 (3d Cir. 2014);
United States v. Brennan,
326 F.3d 176, 192 (3d Cir. 2003).
We therefore “inquire whether there is (1) an error; (2) that is
plain; and (3) that affected substantial rights.”
Salahuddin, 765
F.3d at 337 (internal quotation marks omitted). If all three of
those inquiries are answered in the affirmative, we have
discretion to grant relief “if the error seriously affects the
fairness, integrity, or public reputation” of the proceeding.
Id.
(citation omitted). An error is “plain” if it is “obvious” or
“clear under current law.”
Vazquez, 271 F.3d at 100 (quoting
Olano, 507 U.S. at 734) (internal quotation marks omitted).
B. The District Court’s instruction is consistent with
our caselaw concerning lay opinion testimony.
Federal Rule of Evidence 701 permits the introduction
of lay opinion testimony that is “rationally based on the
witness’s perception” and “helpful to clearly understanding the
witness’s testimony or to determining a fact in issue.” Fed. R.
Evid. 701(a), (b). Rule 702, in contrast, provides for the
admission of testimony by a qualified expert, which must be
74
Savage raised other objections to the jury instructions, but
not an objection to the lay opinion instruction.
124
based on, inter alia, “the expert’s scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 702(a).
In 2000, Rule 701 was amended to add subsection (c),
which bars lay testimony “based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701(c). Subsection (c) clarifies the distinction
between lay opinion and expert opinion “to eliminate the risk
that the reliability requirements set forth in Rule 702 will be
evaded through the simple expedient of proffering an expert in
lay witness clothing.” Fed. R. Evid. 701 advisory committee’s
note to 2000 amendments. Subsection (c) “prohibits a party
from ‘us[ing] Rule 701 as an end-run around the reliability
requirements of Rule 702 and the disclosure requirements of
[Federal Rule of Criminal Procedure 16].’” United States v.
Shaw, 891 F.3d 441, 453 (3d Cir. 2018) (alterations in original)
(quoting Hirst v. Inverness Hotel Corp.,
544 F.3d 221, 227 (3d
Cir. 2008)).
Here, Savage claims that the District Court’s instruction
on Agent Lewis’s lay opinion testimony ran afoul of Rule
701(c).75 The District Court instructed:
75
Prior to trial, the Government moved in limine to admit
Agent Lewis’s lay opinion testimony pursuant to Rule 701.
Robert Merritt and Kidada Savage opposed the motion; Kaboni
Savage did not, although he earlier filed a preemptive motion
requesting that the District Court grant him any pretrial relief
sought by his co-defendants. Kidada argued, inter alia, that
Lewis’s testimony would violate Rule 701(c). The District
Court granted the Government’s motion. The District Court
125
Ladies and gentlemen, witnesses are generally
not permitted to state their own personal
opinions about questions during the trial.
However, a witness may be allowed to testify to
his or her opinion if it is rationally based on the
witness’ perception and is helpful to a clear
understanding of the witness’ testimony or to the
determination of the facts at issue.
I’m speaking now about the testimony you will
remember of Special Agent Kevin Lewis. In this
case, Agent Lewis was permitted to offer his
opinions as to the meaning of certain words or
conversations. He gave you these opinions
based upon his perceptions.
The opinions of this witness should be received
and given whatever weight you think is
appropriate, given all of the other evidence in
this case and the other factors discussed in these
instructions.
acknowledged some risks in having Agent Lewis provide lay
opinion testimony, but concluded that “such risks are mitigated
by vigorous policing of the Government’s questioning to
ensure Special Agent Lewis does not testify about clear
statements or provide speculative opinions outside the realm of
his rational perception.” A1:96 (citation omitted). Despite his
co-defendants’ pretrial objection to the admission of Lewis’s
opinion testimony, Savage does not challenge on appeal the
District Court’s decision to admit the testimony.
126
Now, ladies and gentlemen, in weighing Special
Agent Kevin Lewis’ opinion testimony, you must
consider his qualifications, the reasons for his
opinions, the reliability of the information
supporting those opinions, as well as the other
factors discussed in these instructions for
weighing the testimony of witnesses.
You may disregard the opinion entirely, if you
decide that the witness’ opinion was not based
on sufficient knowledge or skill or experience or
training or education. You may also disregard
the opinion if you conclude that the reasons
given in support of the opinion are not sound, or
if you conclude that the opinions are not
supported by the facts shown by the evidence or
if you think that the opinions are outweighed by
other evidence.
So, ladies and gentlemen, you have opinions that
were offered to you by experts who have special
training, skill, knowledge and experience. You
have opinions that were offered to you by Agent
Lewis, a lay witness, based upon his perceptions
and his experience as it relates to this matter. It
is for you to weigh those opinions and give them
whatever weight you believe they deserve.
127
A29:15119–21 (emphasis added).76
76
The District Court’s instruction varied from our Circuit’s
model jury instruction on lay opinion testimony, which
provides:
Witnesses are not generally permitted to state
their personal opinions about important
questions in a trial. However, a witness may be
allowed to testify to his or her opinion if it is
rationally based on the witness’ perception and
is helpful to a clear understanding of the witness’
testimony or to the determination of a fact in
issue.
In this case, I permitted (name) to offer (his)(her)
opinion based on (his)(her) perceptions. The
opinion of this witness should receive whatever
weight you think appropriate, given all the other
evidence in the case and the other factors
discussed in these instructions for weighing and
considering whether to believe the testimony of
witnesses.
3d Cir. Model Criminal Jury Instructions § 4.09. Our Model
Jury Instructions are not binding on District Courts, however,
and a variance from the model instruction does not necessarily
constitute error. United States v. Shannon, 766 F.3d 346, 352
n.9 (3d Cir. 2014); United States v. Maury,
695 F.3d 227, 259
(3d Cir. 2012) (“[T]he Model Instructions are not-binding on
128
Savage focuses on the District Court’s mention of
Agent Lewis’s qualifications, reasons for his opinions, and
reliability of those opinions, as well as the District Court’s
statement that the opinions may be disregarded if based upon
insufficient knowledge, skill, experience, education or
training. He contends that this language pertains to expert
witness testimony under Rule 702 and therefore improperly
invited the jury to consider Lewis as an expert and “to trust
Lewis unduly, despite his lay status.” Def. Br. 193. Savage
argues that the purportedly erroneous instruction could
reasonably have affected the outcome of the trial and
sentencing.
The District Court’s instruction is not clearly erroneous
because it is consistent with our Circuit’s caselaw addressing
lay opinion testimony. We require lay testimony to be
grounded either in experience or specialized knowledge. In
Asplundh Manufacturing Division v. Benton Harbor
Engineering, we held that “in order to be ‘helpful,’ an opinion
must be reasonably reliable,” and Rule 701 therefore “requires
that a lay opinion witness have a reasonable basis grounded
either in experience or specialized knowledge for arriving at
the opinion that he or she expresses.” 57 F.3d 1190, 1201 (3d
Cir. 1995).
In the time since Congress amended Rule 701, we have
repeatedly affirmed our holding in Asplundh that the reliability
of lay opinion testimony should be assessed in light of the
this, or any, court. They thus cannot invalidate the decisions
of this Circuit or others.”).
129
witness’s relevant specialized knowledge and experience. See,
e.g., Eichorn v. AT&T Corp., 484 F.3d 644, 649–50 (3d Cir.
2007) (“In order to satisfy these . . . Rule 701 requirements, the
trial judge should rigorously examine the reliability of the lay
opinion by ensuring that the witness possesses sufficient
special knowledge or experience which is germane to the lay
opinion offered.” (quoting
Asplundh, 57 F.3d at 1201)); Donlin
v. Philips Lighting N. Am. Corp.,
581 F.3d 73, 83 (3d Cir.
2009) (“A trial judge must rigorously examine the reliability of
a layperson’s opinion by ensuring that the witness possesses
sufficient specialized knowledge or experience which is
germane to the opinion offered.” (citing
Asplundh, 57 F.3d at
1200–01)). We have clarified that “[w]hen a lay witness has
particularized knowledge by virtue of her experience, she may
testify—even if the subject matter is specialized or technical—
because the testimony is based upon the layperson’s personal
knowledge rather than on specialized knowledge within the
scope of Rule 702.” United States v. Fulton,
837 F.3d 281, 301
(3d Cir. 2016) (quoting
Donlin, 581 F.3d at 81).
Thus, “as long as the technical components of the
testimony are based on the lay witness’s personal knowledge,
such testimony is usually permissible” under Rule 701.77 Id.;
77
The permissibility of lay opinion testimony based upon
specialized knowledge aligns with the advisory committee’s
note to Rule 701, which explains that the amendment is not
designed to prevent lay witnesses from testifying based on
“particularized knowledge that the witness has by virtue of his
or her position.” Fed. R. Evid. 701 advisory committee note to
2000 amendments; see also, e.g., Tampa Bay Shipbuilding &
Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1222 (11th
130
see also, e.g., United States v. El-Mezain, 664 F.3d 467, 514
(5th Cir. 2011) (“Testimony need not be excluded as improper
lay opinion, even if some specialized knowledge on the part of
the agents was required, if it was based on first-hand
observations in a specific investigation.”); United States v.
Rollins,
544 F.3d 820, 831–32 (7th Cir. 2008) (agent’s
testimony as to the meaning of coded terms is based on
experience in the particular case and is therefore permissible
under Rule 701). Indeed, as one of our sister circuits has
observed, it is appropriate to inform a jury of a lay witness’s
qualifications and experience so that the jurors may assess the
value of the opinion testimony:
Had the agent been testifying exclusively as a lay
witness about the code words he had learned the
meaning of in the course of his investigation of
the defendants’ conspiracy, it would not have
been improper to introduce him to the jury as an
experienced investigator, rather than a novice
listening to taped conversations of drug
conspirators for the first time, any more than it is
improper to ask an eyewitness whether he has
good vision.
Cir. 2003) (concluding, based on the advisory committee’s
note citing Asplundh, that “opinion testimony by business
owners and officers is one of the prototypical areas intended to
remain undisturbed” by Rule 701(c)).
131
United States v. Moreland, 703 F.3d 976, 983 (7th Cir. 2012),
holding modified on other grounds by United States v. Jett,
908
F.3d 252 (7th Cir. 2018).
In light of our precedent, the error Savage says is in the
jury instructions is certainly not “clear under current law.”
Vazquez, 271 F.3d at 100.
C. When viewed in context, the District Court’s
instruction did not mislead the jury.
We abide by the longstanding principle that jury
instructions are not to “be evaluated in artificial isolation,” but
“must be evaluated in the context of the overall charge.”
United States v. Berrios, 676 F.3d 118, 137 (3d Cir. 2012)
(citations omitted). When the District Court’s lay opinion
instruction is considered in context, the instruction does not
suggest that Agent Lewis’s opinion testimony should be
treated as that of an expert to whom the jury should defer. See
id. (“[A]n instruction that appears erroneous on its own may be
remedied by the balance of the court’s instructions.”).
Immediately prior to giving the instructions regarding
Agent Lewis’s lay opinion, the District Court provided
instructions regarding expert witnesses. It used the term
“expert” throughout those instructions, specifying that
“because of their knowledge, their skill, their experience, their
training and their education in a particular science or
profession, these witnesses were permitted to give you their
opinions in those areas of their expertise.” A29:15118
(emphasis added). The District Court did not mention Agent
Lewis during its instruction on expert opinion.
132
When it reached its instructions regarding Agent Lewis,
the District Court preceded those instructions with the
transition that “a witness may be allowed to testify to his or her
opinion if it is rationally based on the witness’ perception . . . .
I’m speaking now about the testimony you will remember of
Special Agent Kevin Lewis.” A29:15119–20 (emphasis
added). Shortly thereafter, it stated that Agent Lewis’s
opinions were based on his perceptions, rather than on
expertise. See A29:15120 (reiterating that “[Agent Lewis]
gave you these opinions based upon his perceptions”)
(emphasis added). And the District Court concluded by
explaining a third time the difference between expert opinion
testimony and Agent Lewis’s lay opinion testimony: “So,
ladies and gentlemen, you have opinions that were offered to
you by experts who have special training, skill, knowledge and
experience. You have opinions that were offered to you by
Agent Lewis, a lay witness, based upon his perceptions and his
experience as it relates to this matter.”78 A29:15121 (emphasis
added). Thus, the District Court took appropriate care to
explain to the jury that Agent Lewis’s lay opinion testimony
78
Relatedly, the District Court instructed that a witness’s status
as a law enforcement officer does not mean that the
individual’s testimony is entitled to any special weight: “The
fact that a witness is employed as a law enforcement officer
does not mean that his or her testimony necessarily deserves
more or less consideration or greater or lesser weight than that
of any other witness.” A29:15108–09.
133
was based upon his personal perceptions and was different
from the testimony of the expert witnesses.
The District Court also instructed the jury in multiple
instances that it was not required to accept the testimony of any
witness, including Agent Lewis. See A29:15098 (“Ladies and
gentlemen, you have to give the evidence whatever weight you
believe it deserves.”); A29:15104 (“[Y]ou must decide what
testimony you believe and what testimony you did not
believe.”); A29:15107 (“[A]fter you make your own judgment
about the believability of a witness, you can then attach to that
witness’ testimony the importance or the weight that you think
that witness’ testimony deserves.”); A29:15121 (“It is for you
to weigh those opinions and give them whatever weight you
believe they deserve.”). And of course, as a general matter, we
presume that juries follow the instructions given to them.
United States v. Bryant, 655 F.3d 232, 252 (3d Cir. 2011).
Considered in context, then, the District Court’s
instructions do not suggest the jury should give undue weight
to Agent Lewis’s opinion testimony. Savage has failed to
establish that the District Court’s jury instruction on lay
opinion amounts to plain error.
XI. NO ERROR OCCURRED DURING THE PENALTY-PHASE
PROCEEDINGS.
Finally, Savage raises six issues relating to his “penalty-
phase” proceedings. None constitute reversible error.
134
A. Background
We start by reviewing the capital-sentencing process
generally, and the Federal Death Penalty Act specifically.
Every criminal prosecution involves two basic segments: First,
is the defendant guilty? And second, if he is guilty, what
should the punishment be? In most trials, the trier-of-fact—
paradigmatically, a jury—answers the first question; the judge
decides the second, considering the government’s
recommendation before choosing from the statutory menu of
potential punishments.
But when the government seeks the death penalty,
recognizing the special need “to maintain a link between
contemporary community values and the penal system,” the
law requires that a jury answer the second question. Gregg v.
Georgia, 428 U.S. 153, 190 (1976) (plurality opinion) (quoting
Witherspoon v. Illinois,
391 U.S. 510, 519 n.15 (1968)); see
also Ring v. Arizona,
536 U.S. 584, 615–16 (2002) (Breyer, J.,
concurring in the judgment). And to pass constitutional
muster, a sentencing statute authorizing the death penalty must
guide the jury’s discretion with “general rules that ensure
consistency in determining who receives a death sentence.”
Kennedy v. Louisiana,
554 U.S. 407, 436 (2008). It must also
empower the jury to consider “the ‘character and record of the
individual offender and the circumstances of the particular
offense.’”
Id. (quoting Woodson v. North Carolina,
428 U.S.
280, 304 (1976) (plurality opinion)).
In federal courts, the Federal Death Penalty Act, 18
U.S.C. §§ 3591–3599, authorizes the death penalty for
defendants guilty of certain homicides, as long as an
135
aggravating circumstance makes a death sentence neither
“excessive” nor “grossly disproportionate.” Coker v. Georgia,
433 U.S. 584, 592 (1977) (plurality opinion). And even then,
all the aggravating circumstances must outweigh any
mitigating circumstances “that might induce a sentencer to
give a lesser punishment.”
Ring, 536 U.S. at 611 (Scalia, J.,
concurring); see § 3593(e).
If the government intends to seek the death penalty, it
must file a pretrial notice “stating that . . . the circumstances of
the offense” justify a capital sentence and specifying which
“aggravating factor or factors” it “proposes to prove.”
§ 3593(a). The FDPA identifies sixteen statutory aggravating
factors for homicide, and the government can propose
additional nonstatutory aggravators tailored to the particular
offense. See § 3592(c).79 The FDPA also identifies seven
79
The sixteen statutory aggravating factors are:
1. if the homicide occurred during commission of another
crime;
2. if the defendant previously committed a violent felony
involving a firearm;
3. if the defendant previously committed an offense
punishable by death or life imprisonment;
4. if the defendant previously committed other serious
offenses;
5. if the homicide created a grave risk of death to other
persons;
6. if the homicide was especially heinous, cruel or
depraved;
7. if the defendant procured the homicide by payment;
136
mitigating factors, plus a catchall provision for any “factor[] in
the defendant’s background, record, or character or any other
circumstance of the offense that mitigate[s] against imposition
of the death sentence.” § 3592(a).80
8. if the defendant committed the homicide for pecuniary
gain;
9. if the homicide involved substantial planning and
premeditation;
10. if the defendant previously committed two felony drug
offenses;
11. if the victim was particularly vulnerable;
12. if the defendant previously committed a serious federal
drug offense;
13. if the homicide occurred during a continuing criminal
enterprise involving drug sales to minors;
14. if the victim was a high public official;
15. if the defendant previously committed sexual assault or
child molestation; or
16. if the homicide involved multiple killings or attempted
killings.
See § 3592(c)(1)–(16).
80
The seven mitigators include:
1. if “[t]he defendant’s capacity to appreciate the
wrongfulness of the defendant’s conduct or to conform
conduct to the requirements of law was significantly
impaired”;
2. if “[t]he defendant was under unusual and substantial
duress”;
3. if “the defendant’s participation was relatively minor”;
137
The government’s notice triggers “a bifurcated
procedure . . . in which the question of sentence is not
considered until the determination of guilt has been made.”
Gregg, 428 U.S. at 190–91 (plurality opinion). If the jury
returns a guilty verdict, a second proceeding is conducted to
determine the sentence. Each side may offer opening
arguments; the government presents testimony and exhibits
supporting the noticed aggravators; the defense may present
testimony and exhibits supporting any mitigators; each side
may put on rebuttal testimony and exhibits; each side may offer
closing statements; the District Court instructs the jury; the jury
then deliberates. See § 3593(c). Notably, the Federal Rules of
Evidence do not apply—the District Court may exclude
relevant information only “if its probative value is outweighed
by the danger of creating unfair prejudice, confusing the issues,
or misleading the jury.”
Id.
To impose the death penalty, the jury must unanimously
find that
at least one statutory aggravating factor exists beyond a
reasonable doubt; and
4. if another “equally culpable” defendant “will not be
punished by death”;
5. if “[t]he defendant did not have a significant prior
history of other criminal conduct”;
6. if “[t]he defendant committed the offense under severe
mental or emotional disturbance”; or
7. if “[t]he victim consented to the criminal conduct that
resulted in the victim’s death.”
See § 3592(a)(1)–(7).
138
all the aggravating factors found unanimously beyond a
reasonable doubt outweigh “the perceived significance”
of all the mitigating factors that any juror found by a
preponderance of the evidence.
United States v. Ebron, 683 F.3d 105, 150 (5th Cir. 2012)
(quoting Jones v. United States,
527 U.S. 373, 408 (1999)
(Ginsburg, J., dissenting)); see § 3593(c)–(d).
Here, the Government sought the death penalty on all
thirteen homicide counts. The jury found multiple aggravators
for each, including the statutory aggravator that the arson
murders were especially heinous, cruel or depraved, and the
nonstatutory aggravators that Savage posed a risk of future
dangerousness, and that he caused the victims’ families injury
and loss.81 The jury found several mitigators as well, including
81
The jury found others too. The longest list applied to Counts
12 through 15, which relate to the arson murders. The jury
found eleven aggravators, seven statutory and four
nonstatutory:
Savage knowingly created a grave risk of death to other
persons;
Savage committed the offense in an especially heinous,
cruel or depraved manner;
Savage committed the offense as consideration for
pecuniary gain;
the offense entailed substantial planning and
premeditation;
Savage had a previous serious federal narcotics
conviction;
139
the statutory mitigator that Lamont Lewis, although an equally
culpable defendant, would not receive the death penalty. And
they found nonstatutory mitigators that “Savage has been a
positive influence in the lives of his children, niece, and
nephew,” and that he “can continue to be an important
influence in the lives of his children.” A2:790. Yet after
weighing the aggravators against the mitigators, the jury
unanimously agreed Savage should be sentenced to death on
each count.
Savage now contends that the Government offered
erroneous argument supporting the “future dangerousness”
aggravator, that the Government impermissibly offered victim-
impact statements supporting the “harm to victims’ families”
aggravator, and that the District Court improperly admitted the
arson victims’ autopsy photographs to support the “especially
heinous, cruel, or depraved” aggravator. He also argues that
the Government’s penalty-phase summation relied on
unconstitutional inferences to undercut the “equally culpable”
mitigator, that the Government improperly rebutted the
mitigators concerning Savage’s relationship with his family,
and that the verdict form layout impermissibly emphasized the
Savage intended to kill more than one person in a single
criminal episode;
the victims were particularly vulnerable;
Savage posed a risk of future dangerousness;
Savage caused injury and loss to the victims;
Savage had committed additional murders; and
Savage obstructed justice.
140
aggravators while giving short shrift to the mitigators. We
reject each claim for the reasons that follow.
B. The Government permissibly argued that
Savage posed a risk of future dangerousness.
As noted, the Government proposed—and the jury
unanimously found beyond a reasonable doubt—the
nonstatutory aggravator “that Kaboni Savage would be a
danger in the future to the lives and safety of other persons, and
is likely to commit or procure the commission of, retaliatory
and other criminal acts of violence in the future.” A2:737–87.
Savage now claims that three arguments the Government made
to support this aggravator lacked factual support: First, that the
“Special Administrative Measures” (SAMs) imposed by the
Bureau of Prisons (BOP) to constrict Savage’s ability to
contact the outside world might not remain in effect
indefinitely. Second, that Savage might collude with his
attorneys to circumvent the SAMs. And third, that managing
the security risks necessary to safely house Savage indefinitely
would saddle the BOP with an enormous burden.
We review a district court’s ruling as to whether a
prosecutor’s argument is appropriate for abuse of discretion.
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001). If the
argument was improper, we determine whether it justifies
relief by “examin[ing] the prosecutor’s offensive actions in
context and in light of the entire trial, assessing the severity of
the conduct, the effect of the curative instructions, and the
quantum of evidence against the defendant.”
Id.
141
Applying that standard, we first conclude that there was
no error: the prosecutor’s comments accurately summarized
information before the jury. And we also conclude that even if
error occurred, it was harmless given the mounds of evidence
against Savage and the other aggravating factors the jury
found.
1
Before turning to the specific comments Savage
challenges, we need to review what the jury knew about
Savage’s SAMs and why they were considered necessary.
a
Recall that Savage planned, coordinated, and directed
the killing of seven people while being held in a federal prison.
Savage had Tybius Flowers killed to prevent him from
testifying about Lassiter’s murder. Then Savage orchestrated
the Coleman house firebombing as retaliation for Eugene
Coleman’s cooperation with prosecutors. Two women, three
children and one infant died as a result.
The horrid nature of these murders is underscored by a
disturbing series of comments Savage made from prison
reflecting both his desire and ability to kill or intimidate
witnesses:
“No witness, no crime. No witness, no case.”
A29:15551.
“The rats will pay.” A29:15564.
142
“Death before dishonor to the family.” A29:15565.
“That’s why that N[*****]’s got to pay. Those
f[***]ing rats. Those kids got to pay for making my
kids cry. I want to smack one of their four-year-old sons
in the head with a bat straight up. I have dreams about
killing their kids, killing their kids, cutting their kids’
heads off.” A29:15566.
“These rats are going to pay. Their momma is going to
pay. I’m sick of them. I’m killing them what they love
while they’re in there.” A29:15568.
“These rats deserve to die. Wars with the rats. I’m
going to hunt every last one b[****] that I can. I’m
going to kill ’em.” A29:15570.
“By the time of trial everybody be dead. . . . [W]e’re just
getting started. The night’s still young.” A29:15571.
“The fight don’t stop until the casket drop.”
A29:15572.
“I can still get messages out over the bowl”—a
reference to his ability to sneak communications
through his cell toilet’s plumbing system. A29:15572.
“You can’t stop the inevitable.” A29:15572.
143
“Tears of rage, I’m flooded internally from ’em. Tears
of rage because these sons of b[*****]s are going to
pay, man. They gonna pay or my name ain’t what it is,
my pop name wasn’t what it was, they gonna pay. They
kids gonna pay, they mommas gonna pay. That’s the
kind of conviction that I got for this s[***], man. I’m
dedicated to their death, man. . . . They better hope and
pray I go to jail for a long time. It don’t matter because
while I’m still living, I’m a get them.” A29:15572–73.
In at least six cases, Savage was caught on tape actually
threatening to kill a cooperator or his family:
Tybius Flowers, see A29:15552 (“Don’t worry about it.
He’s not going to take the stand. He’ll never make it to
trial.”);
Paul Daniels, see A29:15565 (“Think about what you’re
doing man, because your son, he’s history. I got to tell
you how I feel. Everything must go.”); see also
A29:15566 (“I’d rather just kill his mother f[***]ing
mom. I want this N[*****]. You see what I’m
saying?”); A29:15567 (“I got to get [Daniels’s
girlfriend]’s a[**], [her] and that little b[****]y baby he
got.”);
Keith Daniels, see A29:15568 (“The rats, they got to
pay. I have dreams about hitting [his] daughter in the
head, man, opening her head wide open with 40s, dum-
dums, man. That’s all I dream about getting that
N[*****] killed. I want to erase his whole family tree,
144
man. You hurt my kids sending me to jail. Your kids,
your mom. Nobody is getting a pass, man. Before I get
a dollar, they are going to pay. That’s all I dream
about.”);
Juan Rosado, see A29:15565 (“You know what it’s
going to cost you, your life and your mom’s life. I’m
going to kill your mother F[***]ing a[**]. Tell the
prosecutor I threatened you, too, b[****].”);
Stanley Smith, see A29:15565–66 (“I’m going to kill
everything that you love.”); see also A29:15566
(“Yeah, he got a daughter down my way. I’m going to
blow her little head off. She like five.”); and
Craig Oliver, see A29:15569 (“His family goes first.
His mom, his pop, all of them.”).
These comments led the BOP to separate Savage from
potential government witnesses in BOP custody, and even
required several witnesses to enter the Witness Protection
Program.
Savage made similar comments about a prison guard.
See A29:15567–68 (“I want to F[***] the captain up. I want to
blow his head off. I want everybody to know it, too. . . . That
captain is a mother F[***]er, man. He’s going to die a
miserable death, and I hope I’m there. I hope I’m the cause of
that mother f[***]er. I’m going to torture his a[**]. I’m going
to set him on fire alive. That’s what I want to do with the
N[*****]. I want to set that N[*****] on fire alive. Watch
145
him jump around like James f[***]ing Brown. Get a metal
chair and cuffs, douse him with that gasoline, set his a[**] on
fire and say welcome to hell, b[****]. I’m going to get
somebody. That fire’s a motherf[***]er.”).
And these comments take on added meaning when we
consider Savage’s conduct while incarcerated. In 2011, prison
guards searching Savage’s cell discovered Savage had
somehow obtained confidential prison records revealing
information about potential government witnesses in BOP
custody, including some of the ones who entered Witness
Protection. The BOP also terminated his ability to make
monitored social calls after those calls “started to get kind of
coded.” A29:15713. And as recently as fall 2012—during jury
selection for this trial, and even under SAMs severely
curtailing his ability to communicate with the outside world—
Savage exploited opportunities to make unmonitored legal
calls by telephoning his attorney’s office and having them
patch him through to unapproved individuals. He instructed
those individuals to send him packages disguised as legal mail,
detailing what his attorneys’ address labels looked like so the
packages would not attract attention. Savage managed to
illicitly receive at least one package this way. Then once the
Government discovered his abuse of legal calls, he bragged to
a prison guard that he had “got a lot of information out on those
calls and got a lot done during those calls.” A29:15683.
All told, the jury learned of Savage’s persistent efforts
to thwart restrictions on his ability to communicate with the
outside world, and the extraordinary danger he posed if he
succeeded in doing so.
146
b
The jury also heard information about Savage’s present
and potential future confinement conditions. Because of the
security risks described above, the BOP transferred Savage to
USP Florence ADMAX—the highest security prison in the
federal system. Inmates at ADMAX fall into four categories
depending on their security risk. The BOP holds the lowest-
risk inmates—those demonstrating improvement during their
time at ADMAX—in a step-down unit preparing them for
transfer back to another penitentiary. The BOP holds the
“average” ADMAX inmate—still someone the BOP
determines it cannot control in any other facility—in a general
population unit, where they spend twenty-two hours per day in
single cells and recreate in enclosures. The “Control Unit” is
even more restrictive, reserved for inmates “who have
committed homicides” inside BOP facilities, “are serious
escape risks[,] or [are] a severe threat to the orderly running of
an institution.” A30:16067. Finally, there is the “H Unit”—
the most restrictive unit and the one for defendants like Savage
who are subject to SAMs.
The H Unit is comprised of thirty-six single-inmate
cells. When an inmate arrives at the H Unit, he typically
spends at least the first year subject to the most stringent
restrictions. During that initial phase, the BOP permits inmates
three showers per week and ninety minutes of daily recreation
alone in an individual enclosure. With the warden’s approval,
an inmate can move to a more relaxed phase. In that phase, a
daily shower is available and although prisoners still recreate
in an individual enclosure, they do so in the presence of other
147
inmates. After another year, an inmate may recreate with up
to four inmates in the enclosure.
The BOP allows an H Unit inmate one social call and
five non-contact visits per month. Visitors and callers must be
pre-approved, and each call or visit must be arranged in
advance and monitored by the FBI. To initiate a call, a guard
physically dials the number and ensures that the person who
answers has been pre-approved. The guard then passes the
receiver to the inmate through a slot in the cell door while
holding the phone. H Unit inmates are permitted to make an
unlimited number of legal calls, conducted in much the same
way, though such calls are unmonitored. (The guard “stand[s]
back at a respectable distance” so he can see the phone but not
hear what is said. A30:16029–30.)
The FBI x-rays and reviews all non-legal mail, and that
mail can only come from pre-approved senders. Similarly,
legal mail must come from the inmate’s counsel of record;
guards open it in the inmate’s presence and cursorily review it
to ensure it contains no contraband.
On top of these general H Unit restrictions, each inmate
receives specific SAMs tailored to their individual security
risks. Savage faces even more limitations on who he can
contact, who can visit him, and what publications he can
receive—though he remains able to have unlimited and
unmonitored legal calls. A SAM expires if not renewed
annually by the Attorney General.
The BOP’s goal is to move inmates from the H Unit to
the general population units once they show sufficient
148
rehabilitation to warrant lifting their SAMs. And after entering
the general population units, compliant inmates begin a three-
year process that gradually moves them through the step-down
unit to a more typical penitentiary. The point, as both a
government and defense expert observed, is that ADMAX is
not meant to be “a permanent assignment.” A31:16566–67
(“We don’t want people in there permanently.”).
Once transferred to another penitentiary, inmates have
much more freedom to move and interact. Typical federal
penitentiaries house roughly 1500 inmates in double cells,
locked from 10:00 p.m. to 6:00 a.m. Outside those hours,
inmates are generally expected to be at a job or educational
site. In other words, “[t]here is nobody escorting them. There
is nobody standing over there, telling them what to do. From
the time the cells are opened . . . they are responsible to go
where they are supposed to be.” A31:16562. “They have
access to all of the 1500 other inmates and all the staff that are
in the institution,” including recreating and eating together
without physical restraint. A31:16562. The BOP records
social calls but monitors only about 10% of them, and even
then only partially.
Some former H Unit inmates have been transferred to
other federal institutions through this process. See, e.g., Rezaq
v. Nalley, 677 F.3d 1001, 1004–06 (10th Cir. 2012) (four
inmates, one involved in a 1985 airline hijacking that killed
fifty-seven airline passengers, plus three planners of the 1993
World Trade Center bombing). Still other inmates remain on
the H Unit but under relaxed conditions allowing greater
contact with other inmates. See, e.g., Mohammed v. Holder,
47 F. Supp. 3d 1236, 1243 (D. Colo. 2014) (terrorist who
149
bombed the U.S. Embassy in Tanzania moved to a less-
restrictive phase of H Unit incarceration); Yousef v. United
States, No. 12-2585, 2014 WL 1908711, at *2–4 (D. Colo.
May 13, 2014) (1993 World Trade Center bombing leader
remains on H Unit but under relaxed confinement conditions
allowing him to communicate with other inmates during
recreation, showers, at the law library, and while working as
an orderly). By the time of the sentencing proceedings in this
case, Savage had already been recommended for a move to a
more-relaxed phase of H Unit confinement, though the
approving official denied the request. Officials have also
allowed Savage to work as an orderly, which affords him time
outside his cell without physical restraints.
2
Against this backdrop, we conclude that the
Government’s arguments supporting Savage’s future
dangerousness accurately summarized and fairly characterized
information before the jury. See Darden v. Wainwright, 477
U.S. 168, 180–82 (1986) (holding comments casting the death
penalty as the only guarantee against future similar acts do not
deprive the defendant of a fair trial as long as they “d[o] not
manipulate or misstate the evidence”). Here are the specific
statements Savage alleges constituted prosecutorial
misconduct:
From the Government’s penalty-phase opening
statement:
o “They put tighter restrictions on Kaboni Savage.
They put tighter restrictions on his ability to have
150
visits. They put tighter restrictions on his ability
to make phone calls and his ability to interact
with other inmates. Problem solved? Not
exactly, because you’re going to hear that, first
of all SAMs restrictions have to be updated every
year. They are not automatic. There’s no
guarantee. They don’t follow him necessarily
for life. There’s no guarantee they will
continue.” A29:15574.
From the Government’s penalty-phase summation:
o “You’ve heard the testimony of why he will be a
future danger. Why should everyone in BOP be
on constant vigil for the next 40 years of his life?
That is the question that you need to answer. In
order to protect the prisoners, staff, cooperators
in jail, cooperators’ families out of jail, he will
have to remain at AD[MA]X on SAMs forever.
Even then you’re not sure that [] will be enough.
Putting aside for a moment that no one will likely
be on SAMs for life, and he will likely enter the
step-down process at some point in time,
remember what he did while on SAMs, while
under the restrictions imposed by the Attorney
General of the United States, the most severe
sanctions and restrictions there can be. [BOP]
will have to monitor him until when? For what
purpose? He’s vowed to fight to the death. At
what risk do we not take him at his word? As he
said, ‘you can’t stop the inevitable.’ He still gets
151
visits. He still has the bowl. You know he will
find a way to get the word out. You know that
after the evidence presented to you in this penalty
phase. He manipulates and he abuses the
systems in place to defeat their purposes. SAMs
restrictions, this highest level of restriction that
you can have, no problem.” A31:16705–06.
o “You’ve heard the phrase, the reference, ‘The
past is prologue.’ . . . It’s truly applicable in this
case. Kaboni Savage’s past has foretold you
what the future will hold. There truly is no other
option in this case. He will not be on SAMs
forever. He will not be at AD[MA]X forever. He
will manipulate the guards. He will compromise
the guards, and he will compromise the system
at every chance. He will continue to do what he
has done since the day he was incarcerated in
2004. He will seek revenge on every cooperating
witness and everything that they [h]old dear,
their family, and he will do that from behind
prison walls. Kaboni Savage refuses to stop.
There’s no way to be truly safe from his
conniving ways as he vows, ‘The fight don’t stop
till the casket drops.’” A31:16713–14.
From the Government’s penalty-phase rebuttal:
o “[Defense counsel] says no one has been harmed
[by Savage] in the nine years since 2004. He’s
correct, at this point in time no one has been
152
harmed. It’s not because of Kaboni Savage. It’s
in spite of Kaboni Savage. . . . It’s because of
AD[MA]X. It’s because of a lot of things. It’s
because of the [Witness Protection] program.
You heard a number of the witnesses in this case
had to give up their lives. They gave up their
names and were moved to locations where they
have to start all over again all because of Kaboni
Savage. So the [Witness Protection] program
worked for them. Lamont Lewis is in [Witness
Protection] in jail. It’s worked for him. How
long does this program have to go on to keep
Kaboni Savage from acting out? At what cost
and for what reason? . . . Now, if he is sentenced
to life imprisonment, he goes to AD[MA]X for
some period of time. None of us know how long.
It’s not going to be forever. . . . Now you have to
put your trust and faith in people you don’t know
hoping, praying that they will do their jobs and
be as vigilant, and 24 hours a day they will stay
on top of Kaboni Savage . . . . Do you really want
to run that risk? For what reason? . . . He starts
at the H Unit. Where he goes from there is up to
Kaboni Savage essentially. The SAMs are in
place right now. How long will they be in place?
None of us know. It’s a yearly renewal. The
Attorney General has to agree every single year
to do this. If the decision is made to take down
the SAMs, Kaboni Savage can be sent to a
general population at a U.S. penitentiary
anywhere. In general population, he will be free
153
16 hours a day. We’re not talking about a couple
of years, ladies and gentlemen. We’re talking
about a lifetime. In five, six, eight, ten years
Kaboni Savage could easily be at a USP in
general population, if that’s what he decided to
do. At that time, he has the freedom to do
everything that he did at FDC and more.”
A31:16769–71.
o “I just want to make one point very clear. . . .
There was a discussion [during cross-
examination of a government expert witness] of
three-way phone calls and the ability to monitor
three-way phone calls. Let me be clear, that does
not exist at the Bureau of Prisons. You heard that
testimony. That does not exist. If Mr. Savage
compromises those phone calls, he will be able
to make three-way calls without anyone
monitoring them.” A31:16771–72.
o “Why is a sentence of death appropriate? He
killed 12 people, killed innocent mothers, killed
helpless children. He killed an innocent man
over a car bump. He used fire to torture a family.
He killed a witness to obstruct justice. He killed
a family to obstruct justice. He coordinated
killings from inside prison. He vowed to kill
cooperators and their families until he dies. He
manipulates the system to his advantage. He
compromises BOP employees. You know the
SAMs are not built to last forever. He won’t be
154
housed at AD[MA]X forever. There is no way to
guarantee the safety of the community even
while he’s incarcerated.” A31:16774.
o “While [Savage’s] children are certainly
innocent victims in all of this, his very limited
relationship with them does not outweigh the
horrific violence that he has caused, and there’s
no reason to exhaust BOP resources to keep him
from himself. . . . I’ll rephrase the word, just to
be clear . . . resources will be expended for him.
Why do we need to expend resources for him?”
A31:16775–76.
o “[W]hy must you make a choice to spare him the
punishment he earned when it comes with so
much peril and constant monitoring and is so
likely subjected to compromise with a
potentially deadly result?” A31:16777.
Savage correctly points out that the government may
not urge jurors to speculate that a defendant will pose a future
danger because prison officials might act incompetently. See
Darden, 477 U.S. at 180 (condemning a prosecutor’s argument
that executing a defendant for a murder committed while
furloughed was the “only guarantee” to prevent future violence
because corrections officials might release him again); Tucker
v. Kemp,
762 F.2d 1496, 1508 (11th Cir. 1985) (en banc)
(deeming a prosecutor’s comments about future parole
improper because they “extended beyond a mere argument
about future dangerousness into a claim that the jury had to
155
account for errors to be committed by other actors in the
criminal justice system”). But that is not what the prosecutor
argued here. Rather than implying the Attorney General or
BOP officials might erroneously or lawlessly remove Savage’s
SAMs, prosecutors merely emphasized what both side’s
experts had testified to—no one can really say how long
Savage will remain on SAMs, but everyone knows SAMs are
not intended as a permanent solution. Additionally, as both
experts conceded, although the H Unit/SAMs combination
may effectively control Savage’s behavior, no precaution can
eliminate all security risks. See also Tucker, 762 F.2d at 1507
(concluding prosecutorial comments about the possibility of a
defendant killing a prison guard or inmate if given a life
sentence were “proper because they concerned the valid
sentencing factor of [the defendant]’s future dangerousness”);
cf. United States v. Caro,
597 F.3d 608, 625–26 (4th Cir. 2010)
(finding parts of the government’s future-dangerousness
argument “troubling” but refusing relief since they were
isolated, responsive to the defendant’s suggestion that the BOP
could adequately secure the inmate, and supported by the
record).
Savage again overreaches in claiming the prosecutor
suggested that his lawyers “would criminally conspire to help
him violate the SAMs at AD[MA]X by arranging to ‘patch him
through’ for unmonitored communications with unauthorized
persons.” Def. Br. 230. In examining the comments in
question, we believe the Government merely highlighted the
vulnerability of the legal-call system and Savage’s prior
manipulation of it. What’s more, while presenting testimony
on Savage’s prior abuse of legal calls, prosecutors clarified that
156
Savage’s trial counsel played no role. See A29:15642–43 (“Q:
I want to be absolutely clear here. Different attorneys in 2004
and 2005 than the attorneys who represent Mr. Savage here,
correct? A: Yes. Q: If you can tell us, you are fully competent,
his current attorneys and their offices in no way participated in
this type of scheme? A: Correct.”). So prosecutors neither
impugned Savage’s trial team nor strayed from information
that had been presented to the jury.
Finally, despite what Savage says now, the Government
never directly argued that keeping Savage alive would be too
costly. It is indeed improper for prosecutors to “argue that
death should be imposed because it [is] cheaper than life
imprisonment.” Blair v. Armontrout, 916 F.2d 1310, 1322–25
(8th Cir. 1990) (quoting Brooks v. Kemp,
762 F.2d 1383, 1412
(11th Cir. 1985)) (holding the district court erred—though
harmlessly—by permitting the prosecutor to argue “Why
should we as taxpayers have to house this man for fifty years?
Why should we have to feed him three meals a day for fifty
years, clothe him for fifty years, furnish him recreation,
medical care?”). But only economic efficiency arguments that
specifically reference the pecuniary cost of prosecuting a
defendant or of keeping a defendant alive have been held to
violate that rule. See, e.g., Baer v. Neal,
879 F.3d 769, 787 (7th
Cir. 2018) (“We are not anxious to file the death penalty . . .
the cost is unbelievable. Who knows what it’s going to cost
our community. Probably a half a million dollars. We’ve got
people laid off. It’s not something you do haphazardly. It’s
something you do to seek justice in a community” (alteration
in original)); see also Edwards v. Scroggy,
849 F.2d 204, 210
n.5 (5th Cir. 1988) (finding error but declining to award habeas
157
relief after a prosecutor argued for a death sentence because the
defendant could “watch television and live off the taxpayers’
money for ten years . . . [a]nd get fed and housed and given all
the conveniences of life”). In short, general references to the
financial and administrative burden of ensuring a safe prison
environment do not cross the line.
And that’s what these comments did: they focused on
the burdens the BOP faced to protect guards, other inmates and
the public from Savage. The only time the prosecutor used the
word “cost” was in relation to the need to keep witnesses in the
Witness Protection Program. Even then, the reference was
plausibly to emotional and psychological costs to witnesses
rather than economic costs to taxpayers and the BOP. Those
references were not improper prosecutorial comment.82
82
Even if it could be said that any of the comments complained
of were improper, such error would have been harmless
beyond a reasonable doubt. The quantum of evidence
mustered against Savage was weighty, and future
dangerousness was just one of numerous aggravating factors
the jury found unanimously beyond a reasonable doubt. See
supra note 81. With that constellation of aggravating factors
in mind, we are “confident that the jury would have imposed
the same sentences even if the [future-dangerousness] factor
had not been submitted for their consideration.” United States
v. Bernard, 299 F.3d 467, 485 (5th Cir. 2002).
158
C. The District Court did not plainly err by
admitting victim-impact statements.
Savage next challenges the admission of victim-impact
statements supporting the “harm to victims’ families”
aggravator. Although he concedes some statements
permissibly “relat[ed] to the personal characteristics of the
victim and the emotional impact of the crimes on the victim’s
family,” Payne v. Tennessee, 501 U.S. 808, 817 (1991), he still
argues that others crossed the line and impermissibly involved
“characterizations and opinions . . . about the crime, the
defendant, and the appropriate sentence.” Bosse v. Oklahoma,
137 S. Ct. 1, 2 (2016) (per curiam).
1
We must first determine the applicable standard of
review. Since Savage challenges the statements on Eighth
Amendment grounds, plenary review will apply if he preserved
the issue in the District Court. See United States v. Torres, 383
F.3d 92, 95 (3d Cir. 2004) (applying plenary review to
preserved challenges presenting legal questions). If not
preserved, we review the issue for plain error—an actual,
obvious error that prejudiced Savage and that substantially
affected his trial’s fairness, integrity and public reputation. See
United States v. Plotts,
359 F.3d 247, 248–49 (3d Cir. 2004).
Savage contends plenary review applies. He makes that
argument because his counsel asserted during a pre-
sentencing-phase hearing that “there are issues with . . . about
90 percent of the victim impact letters,” including “some things
which just blatantly shouldn’t be in the[m]” such as the
159
authors’ “thoughts [about] the punishment.” A29:15431,
15437. But Savage’s counsel retreated from that position once
the Government agreed to redact statements “mak[ing]
reference to what the appropriate punishment should be.”
A29:15437. The District Court then recessed the hearing to
“give [the parties] a chance to look at” the letters, adding: “If
there’s any disputes, I’ll hear them before the day is out.”
A29:15438–39. Significantly, Savage’s counsel never
returned to the issue. And when it came time to admit the
victim-impact statements, Savage’s counsel remained silent.
See A30:15776–15825. We therefore conclude that Savage did
not “contemporaneous[ly] object[] to the victim-impact
testimony.” United States v. Davis, 609 F.3d 663, 683 (5th Cir.
2010). So we review his claims for plain error.
Id.
2
We begin our review by surveying the law governing
use of victim-impact statements in capital sentencing cases,
including some state court decisions in cases raising Eighth
Amendment challenges. The government may generally
introduce victim-impact evidence “relating to the personal
characteristics of the victim and the emotional impact of the
crimes on the victim’s family.” Payne, 501 U.S. at 817.
Presenting that information “is simply another form or method
of informing the sentencing authority about the specific harm
caused by the crime in question.”
Id. at 825. And the
government can always “remind[] the sentencer that just as the
murderer should be considered as an individual, so too the
victim is an individual whose death represents a unique loss to
society and in particular to his family.”
Id. (quoting Booth v.
Maryland,
482 U.S. 496, 517 (1987) (White, J., dissenting)).
160
Yet we are mindful that “admission of a victim’s family
members’ characterizations and opinions about the crime, the
defendant, and the appropriate sentence” violate the Eighth
Amendment if they “distract the sentencing jury from . . . the
background and record of the accused and the particular
circumstances of the crime” and thereby “create[] an
impermissible risk that the capital sentencing decision will be
made in an arbitrary manner.” Bosse, 137 S. Ct. at 2;
Booth,
482 U.S. at 505–07, overruled on other grounds by Payne,
501
U.S. 808. In Booth v. Maryland, the Supreme Court considered
victim-impact statements saying that the victims were
“butchered like animals,” that the defendant could “[n]ever be
rehabilitated” and should not be “able to . . . get away with it”
or “to do this again,” and that even “animals wouldn’t do” what
the defendant
did. 482 U.S. at 505–08. The Court held that
those statements violated the Eighth Amendment because they
directly characterized both the crime and the defendant in a
way that “serve[d] no other purpose than to inflame the jury
and divert it from deciding the case on the relevant evidence.”
Id. at 508.
Mindful of the Supreme Court’s admonition about
jurors characterizing the appropriate sentence, courts have held
victim-impact statements directly asking the jury for a death
sentence violate the Eighth Amendment, too. See, e.g., Dodd
v. Trammell, 753 F.3d 971, 995–96 (10th Cir. 2013); Ex parte
Washington,
106 So. 3d 441, 445–46 (Ala. 2011) (same);
Miller v. State,
362 S.W.3d 264, 283–84 (Ark. 2010) (same).
That said, abstract pleas for justice, accountability or
closure do not by themselves violate the Eighth Amendment.
See State v. Worthington, 8 S.W.3d 83, 89–90 (Mo. 1999). Nor
161
does “emotionally charged testimony” inviting the jury to
“infer” a desire for “execution,” as long as “no evidence as to
the witnesses’ preferred sentence [i]s actually admitted.”
United States v. Whitten, 610 F.3d 168, 190–92 (2d Cir. 2010)
(noting “[i]t cannot be expected that victim impact testimony
will be cool and dispassionate” and concluding “anguished
testimony . . . describ[ing] how [the victim’s] children visit the
cemetery on Father’s Day and other occasions, write letters to
their father, and embrace his headstone . . . . does not appear to
exceed (or approach) the margins of what has been allowed”);
see also Williams v. State,
251 S.W.3d 290, 293–95 (Ark.
2007) (upholding admission of a victim’s testimony, “The
meeting of my brother and sisters when we get together it’ll
never be the same. We ask ourselves what can we do in
situations like this. Well, we can’t do anything as a family but
hold together and pray together. But you can do something.
You are in a position to do that. What would you do if it was
your brother or your sister or your baby that someone stole
away from you. I can’t do anything, but you can. No words
can express how we feel. Silence, the silence of never hearing
[my brother]’s voice again haunts me and it will continue to
haunt me. We miss him. We want him back but we can’t.”);
State v. Chinn,
709 N.E.2d 1166, 1188 (Ohio 1999) (upholding
admission of a victim’s testimony that “now we feel that the
time has come for [the defendant] to be punished according to
the law of Ohio.”).
And statements expressing an ongoing fear of reprisals
fall well within bounds since they “properly show[] how the
victim’s death affected his surviving relatives.” People v.
Wilson, 114 P.3d 758, 792 (Cal. 2005); see also United States
162
v. Battle, 173 F.3d 1343, 1348 (11th Cir. 1999); People v.
Tully,
282 P.3d 173, 245–46 (Cal. 2012); Baker v. State,
71
So. 3d 802, 817–18 (Fla. 2011).
To be sure, applying these rules requires a judge,
inevitably, to engage in line-drawing. At one end of the
spectrum, the Fifth Circuit held that a district court plainly
erred by admitting a father’s victim-impact statement saying,
“our children were tragically and recklessly stolen from us. . . .
[I]t was just a useless act of violence and a total disregard of
life,” apparently concluding the statement would distract the
jury and cause them to make an arbitrary sentencing decision.
United States v. Bernard, 299 F.3d 467, 480 (5th Cir. 2002).
At the other end, the California Supreme Court
permitted a sister to testify “that she could not understand why
someone whom [her late brother] befriended and trusted would
kill him,” holding the statement did not improperly
characterize the defendant but rather merely addressed how the
murder affected her. Wilson, 114 P.3d at 790–92 (Cal. 2005).
The Arkansas Supreme Court reached a similar conclusion
about a victim-impact statement expressing “disbelief,”
“anger,” and the feeling of being “torn apart.” Kemp v. State,
919 S.W.2d 943, 957 (Ark. 1996). The Fourth Circuit likewise
upheld the admission of a mother’s victim-impact statement
expressing her suffering through rhetorical questions posed to
the defendant. See United States v. Barnette,
390 F.3d 775,
797–800 & n.7 (4th Cir. 2004) (“I didn’t get to tell her good-
bye. She was the joy of my life. Marc [the defendant] knew
she was the joy of my life. The only little girl I had. You knew
that, Marc. You took her life. Took away her future. You
know how much she meant to me. . . . How can you kill my
163
baby? Why you kill [sic] my baby, Marc? She loved you, you
know that. She never mistreated you, Marc.”), vacated on
other grounds, 546 U.S. 803 (2005); cf. United States v.
McVeigh,
153 F.3d 1166, 1218–22 (10th Cir. 1998) (allowing
emotionally “devastating” victim-impact statements about
“witnesses’ last contacts with deceased family members”
killed in the 1995 Oklahoma City bombing and their
“agonizing efforts to find out what happened to their loved
ones,” “the professional and personal histories of victims,” a
mother’s “recovery and return of her deceased daughter’s hand
six months after the explosion,” and a graphic depiction of the
near-suicide of a victim’s husband).
3
Against this background, we turn to the specific victim-
impact statements Savage challenges:
“What gives anybody the right to blatantly take
a life with no thought of remorse and audacity to
play God?” A30:15779–80.
“I disconnected myself from most of my family,
not wanting to be in the presence of constant
reminders of better times. Also a lot of them
didn’t want me around fearing that I would put
them and their families in danger. . . . I
questioned my faith because—let’s see. The
only positive I see in my future is justice. . . . I
know it will not bring my family back, but this
will not allow anyone to hurt anyone else. This
should end right here.” A30:15796–98. Because
164
this victim worked as a prison guard, she also
explained her “genuine concern of [being] where
[Savage was] in any way affiliated with anyone,
whether they know him. When in the presence
of inmates, it took me [to] a whole different
level. I began to have anxiety attacks when in
the presence of a lot of them in the rec room[,]
leading to my transfer and [a] no inmate contact
agreement.” A30:15797–98.
“[P]lease, we ask of you, the Court, let justice be
done for all that have been killed by these people.
Please let justice be done.” A30:15805–06.
“How can anyone take the lives of women and
kids[?]” A30:15809.
“It is not fair or right for . . . the person directly
or indirectly responsible for the death of those
souls to walk around the earth free, not being
held accountable for the part of the crime. We
deserve closure in this matter and for [the] full
extent of the law to be done in this matter. . . . All
I ask is for the members of our family’s lives not
to be in vain.” A30:15811–12.
“It hurts my heart when I look in their eyes, see
the pain we all share. Just waiting for justice. . . .
My sister’s and nephew’s heart have been broken
into many pieces. What kind of man would kill
women and children?” A30:15812–13.
165
“I can’t understand how or why a person would
do such a heinous act. Then to say such hurtful
words after you have did this to our family. . . . I
feel that everyone involved should get the same
sentence as if they all threw the gasoline and
match. How do they sleep at night? My family
didn’t deserve this at all. We don’t trust no one
with or around our children, and don’t feel
protected because if calls were [monitored by the
Government], why did we have to lose our
family members? . . . I’m afraid of courtrooms
due to you don’t know who is who and not living
in a safe environment because of pollution of
murderers who saw fit to kill children . . . . My
prayer is full justice for all.” A30:15813–15.
“[M]y son and his paternal family were brutally
murdered for no reason . . . . This was the worst
crime in the history of Philadelphia in 2004. . . .
How do you live with yourself and the decisions
you’ve made[?] . . . How do we go on in our
daily lives knowing you could care less that you
inflicted so much pain and grief to so many
people?” A30:15816–17.
“My daughter said to me, Mommy, I still can’t
believe my brother is gone. I have no closure.
How do I comfort my child? Honestly, I can’t
because we have no closure.” A30:15817.
166
“I will never understand how someone could kill
anyone, anyone kill innocent people who are full
of life.” A30:15819.
“Every year on October 9th I’m reminded how
the evil actions of one man cost my family a
tremendous loss.” A30:15820.
“I will forever have the image of their bodies
being carried out in those blue bags. For a long
time after the fire I couldn’t go past 6th Street
because that’s all I saw. He, Kaboni Savage,
turned my last memory of a place that I and many
of my other family members shared so many fun
times, into the most terrible thing I ever saw, into
a lasting image and heart-tearing image.”
A30:15821.
“Sean Anthony Rodriguez’s life ended on
October 9, 2004 at the age of 15. His murder
caused his family pain unlike no other. He spent
the night at a friend’s house and never came
home, the life of an innocent child, and a part of
his family died never knowing that you will get
what is coming to you, and hopefully the next.”
A30:15823.
“I’m still confused about how anyone could do
something like this to anyone. I personally
continue to feel the pain of having to live with
the fact that the people who are responsible for
167
this crime have not been held accountable for
their actions. But with this having been said, I
hope that this will bring some cleansing for
myself and my family.” A30:15824.
None of these statements form a basis for plain error.
The Government acknowledges some “came close to” the
constitutional line, Gov’t Br. 203, and we don’t disagree. But
none are blatant violations of the Eighth Amendment’s
prohibition against direct and inflammatory characterizations.
Nor do any explicitly request the death penalty.83 At most, the
statements express a generalized desire for justice and closure.
Some seem to gesture vaguely toward capital punishment.
Others emphasize a victim’s individuality and the unique loss
a victim’s death posed, or highlight a witness’s profound loss
and vulnerability. And most significantly for plain-error
purposes, all resemble statements that other courts of appeals
and state supreme courts have declared constitutional.
In any event, even if a statement crossed the line (which
we do not see here), we conclude Savage was not prejudiced
“[i]n light of all of the other evidence, including the properly
admitted victim impact testimony and the grisly nature of [the]
crime.” Storey v. Roper, 603 F.3d 507, 521 (8th Cir. 2010)
83
Indeed, underscoring that none of the victim-impact
statements directly opined on what Savage’s sentence should
be, the District Court instructed the jury that “because the law
does not permit any witness to state whether he or she
personally favors or opposes the death penalty, you should
draw no inference either way from the fact that no witness has
testified as to their views on this subject.” A32:16795.
168
(refusing relief for improper victim-impact testimony because
it did not affect the defendant’s substantial rights); see also
Hain v. Gibson, 287 F.3d 1224, 1239–40 (10th Cir. 2002)
(holding “the jury would have imposed a sentence of death
even absent the improper victim impact testimony” because
“the horrific nature of the murders”—the defendants forced the
victims into a car trunk before setting the car on fire—“was
uncontroverted” and “the evidence of [the defendant’s] guilt
[and future dangerousness] was substantial”). Either way, no
victim-impact statement considered by the jury, nor any
portion thereof, constituted plain error.84
D. The District Court’s admission of autopsy
photographs offered to support the
“especially heinous, cruel, or depraved”
aggravator was not improper.
Savage challenges the District Court’s decision to admit
the firebombing victims’ autopsy photographs. Although the
Federal Rules of Evidence do not apply during a capital
84
Savage also claims the Government compounded a
constitutional violation by highlighting these victim-impact
statements during its penalty-phase summation. We reject this
argument for many of the same reasons we reject his challenge
to the statements themselves. What’s more, we conclude that
even if these prosecutorial comments were improper, they
would not warrant plain error relief since they are “not, in and
of themselves, nearly as inflammatory as the graphic evidence
of the murders, or as powerful as the extensive victim impact
testimony” itself. Mikhel, 889 F.3d at 1056 (quoting United
States v. Mitchell,
502 F.3d 931, 995–96 (9th Cir. 2007)).
169
sentencing phase, the FDPA supplies a limitation paralleling
Rules 402 and 403: “information may be presented as to any
matter relevant to the sentence, including any mitigating or
aggravating factor,” but “may be excluded if its probative
value is outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury.” § 3593(c).85
Here, Savage brings something akin to a Rule 402
relevancy challenge. The Government offered the autopsy
pictures to show the arson murders were “especially heinous,
cruel, or depraved”—a noticed statutory aggravator.
§ 3592(c)(6). That aggravator requires proof of “torture” or
“serious physical abuse.” Id. As relevant here, prosecutors can
prove “serious physical abuse” by showing a defendant
“inflicted ‘suffering or mutilation above and beyond that
necessary to cause death.’” United States v. Montgomery,
635
F.3d 1074, 1095–96 (8th Cir. 2011) (quoting United States v.
Agofsky,
458 F.3d 369, 374 (5th Cir. 2006)). Savage argues
the pictures are not relevant to that point since they don’t reveal
anything about the cause of death, but “merely document the
. . . . ‘gruesome spectacle’ of the murders’ aftermath.” Def. Br.
263 (quoting Godfrey v. Georgia,
446 U.S. 420, 433 n.16
(1980)).
85
In fact, § 3593(c) is slightly more sensitive than 403, because
Rule 403 only excludes evidence “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, [or] misleading the jury.” (emphasis
added). That said, Rule 403 also allows for exclusion based on
undue delay, waste of time or cumulativeness, none of which
justify exclusion under § 3593(c).
170
He also brings what is effectively a Rule 403 challenge,
arguing “any conceivable probative value of the autopsy
photographs was negligible and far outweighed by their unfair
prejudicial impact.” Def. Br. 274.
The District Court disagreed on both fronts. The Judge
ruled that the gruesome postmortem injuries remained relevant
to the “serious physical abuse” question. And though
acknowledging the photographs were “not pleasant,” he
allowed the jury to view them under conditions designed to
minimize unfair prejudice. A32:16861. We discern no error.
1
Here too the parties dispute the applicable standard of
review. Citing United States v. Trala, Savage argues for de
novo review because he says the District Court’s decision to
admit the autopsy photographs rested on an erroneous
understanding of a legal standard. See 386 F.3d 536, 545 (3d
Cir. 2004). For its part, the Government says any “decision
regarding the admissibility of evidence is reviewed for abuse
of discretion.” Gov’t Br. 220. We need not decide the issue
because the District Court’s rulings on relevancy and prejudice
withstand even plenary review.
2
Here, the District Court got the relevancy question right.
The autopsy pictures tended to show that the fire mutilated the
victims above and beyond their cause of death. And that fact
supports the “especially heinous, cruel, or depraved”
171
aggravator. Savage’s contrary argument fails, both on
precedent and even on its own terms.
Savage’s quasi–Rule 403 challenge fails as well. The
autopsy photographs may be horrific, but they have
considerable probative value, and the District Court took
adequate steps to ameliorate any risk of unfair prejudice.
a
Savage raises a narrow legal challenge to the
photographs’ relevancy. He claims that for a murder to involve
serious physical abuse, the abuse cannot arise directly from the
same force that caused death. This position allows Savage to
argue that the autopsy pictures lack relevancy because “[t]he
exact same force that was used to kill the victims—the ignition
of the arson—also produced the . . . post-mortem thermal
injuries captured in the photographs.” Reply Br. 90. But that
can’t be right.
If Savage is correct, the “especially heinous, cruel, or
depraved” aggravator would almost never apply to an arson
murder. Yet that’s not how some courts have seen it. Several
state courts have recognized that arson murders are often—if
not always—especially heinous, cruel or depraved. See, e.g.,
Scott v. State, 163 So. 3d 389, 470 (Ala. Crim. App. 2012);
Dunaway v. State,
746 So. 2d 1021, 1039–41 (Ala. Crim. App.
1998); State v. Knapp,
562 P.2d 704, 716 (Ariz. 1977) (en
banc) (“We can hardly think of a more ghastly death than this
for anyone.”); Hain v. State,
919 P.2d 1130, 1146–47 (Okla.
Crim. App. 1996); Smith v. State,
659 P.2d 330, 337 (Okla.
Crim. App.) (“The victim was beaten into helplessness and left
172
in the bed of his pickup truck, and the truck was then set on
fire. He died from the inhalation of flames and smoke. It is
clear that the defendant either intended to inflict a high degree
of pain or else he was utterly indifferent to his victim’s
suffering.”), vacated on other grounds, 464 U.S. 924 (1983).
Although those state court decisions do not directly
interpret the federal statute at issue here, they clearly
demonstrate that burning someone to death is a heinous crime
within the ordinary meaning of that word. And being burned
to death certainly involves ‘torture or serious physical abuse’
as required by the FDPA. § 3592(c)(7). That is a more than
sufficient basis to invoke the “especially heinous, cruel, or
depraved” aggravator. The autopsy photos were directly
relevant to proving that the victims died as a result of the arson.
They were thus directly relevant to the applicability of the
aggravator.
b
The District Court also correctly held that the risk of
unfair prejudice did not outweigh the probative value of the
photographs. Savage protests, arguing that the photographs are
extremely graphic. They are. They depict the horrific results
of a horrific crime. Yet it should hardly be surprising that
evidence probative of the “especially heinous, cruel, or
depraved” aggravator will often be horrific in nature. That fact
alone cannot be a reason for excluding it.
And it is worth emphasizing that these autopsy
photographs came into evidence during the penalty phase of
the proceedings and not the guilt phase. The jury had already
173
concluded Savage was guilty of the murders. So the classic
Rule 403 concern—that a photograph’s gruesome nature will
“lure the factfinder into declaring guilt” based on emotion or
passion, Old Chief v. United States, 519 U.S. 172, 180
(1997)—is inapposite here. Put simply, the jury had already
decided Savage was guilty of the six arson murders. Deciding
just how brutal or cruel those murders were is inherent in
penalty-phase determinations.
On this point, the autopsy pictures—gruesome as they
are—offer singular probative value. Photographs convey a
pictorial accuracy and detail that words cannot duplicate nor
that advocates can spin. Twelve jurors listening to a
description of an abused corpse might walk away with twelve
different understandings of the abuse’s severity. Color
photography, especially these photographs, leave little room
for disparate impressions. It is hard to imagine more accurate
evidence of a murder’s cruelty, heinousness or depravity. We
therefore conclude that any danger of unfair prejudice did not
outweigh the photographs’ probative value.86
86
In so holding, we join several other courts of appeals in
allowing autopsy photographs to support the “especially
heinous, cruel, or depraved” aggravator. See, e.g., United
States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2002) (holding
color photographs of stab wounds, both fatal and nonfatal,
were admissible to prove the “especially heinous, cruel, or
depraved” aggravator); United States v. Sampson,
486 F.3d 13,
43 (1st Cir. 2007) (holding the district court did not abuse its
discretion in admitting autopsy photographs during the penalty
phase because they “shed light on the manner in which each
174
Although we reach that conclusion based on our
examination of the photographs themselves, we also consider
the District Court’s prudent steps intended to mitigate the risk
of unfair prejudice. Even after admitting the photographs into
evidence, the District Court did not immediately publish them
to the jury. Instead, the photographs were placed in an
envelope, leaving it to the jury to decide whether they wished
to view them. When the jurors, during their deliberations,
asked to see the photographs, the District Court returned them
to the courtroom, warned that the photographs were “not
pleasant,” reminded the jurors “that your decisions in this
matter must be based upon the evidence and testimony and not
based upon any bias or prejudice or emotion,” told them to
“heed those instructions when you are looking at these
photographs,” and directed them to return the photographs
after they finished viewing them. A32:16861. The jury
returned the photographs less than ten minutes later.87 To the
victim was killed (an important integer in the jury’s
determination of whether the murders were committed in an
especially heinous, cruel, or depraved manner)”); United States
v. Ortiz, 315 F.3d 873, 897 (8th Cir. 2002) (finding no abuse
of discretion after a district court admitted “graphic”
photographs of a murder “victim’s bloody corpse” to “support
the government’s contention that the crime was particularly
heinous and depraved”).
87
The pictures’ quantity and composition further diminish the
risk of unfair prejudice. The District Court admitted only one
photograph for each victim, and the bodies are depicted lying
on a medical examination table, not amid the arson ashes and
rubble. So although “gruesome crimes result in gruesome
175
extent the photographs posed a risk of unfair prejudice—and
we acknowledge that such risk is always present when
photographic evidence of this nature is before a jury—the
District Court took sensible and effective measures to mitigate
it.
* * *
All told, the District Court correctly admitted the
autopsy photographs as proof of the “especially heinous, cruel,
or depraved” aggravator.
E. The Government’s argument against the
“equally culpable” mitigator did not violate
the Fifth or Sixth Amendments.
Savage’s penalty-phase strategy sought to cast Lamont
Lewis as an equally culpable defendant who was nevertheless
not facing the death penalty—a statutory mitigator jurors were
to consider. See § 3592(a)(4). Indeed, it was Lewis who
firebombed the Coleman home and later admitted to five other
murders—yet ultimately pled guilty in exchange for forty years
of imprisonment.
In response, the Government sought to distinguish
Lewis’s past conduct as less blameworthy than Savage’s.
Savage now contends that making the distinction
photos,” Hain, 919 P.2d at 1143, these photographs portray the
victims in a manner not designed to accentuate the victims’
horrific injuries.
176
impermissibly turned his Fifth and Sixth Amendment rights
against him.
1
We start with this passage from the Government’s
penalty-phase closing argument (but ignore the underlining for
now):
I want to talk about . . . equally culpable
defendants not getting death. That is one of the
mitigators. You know in this case Lamont Lewis
is not getting the death penalty. You know that.
He will be sentenced to 40 years to life. . . .
When weighing that mitigator, consider Lamont
Lewis’ acceptance of responsibility. His
acknowledgment of his wrongs, his willingness
to cooperate, the fact that he does not have a
vendetta against the rats or the rats’ families. He
doesn’t have a pact to kill loved ones. He did not
call out hits from inside the jail. He’s not bent
on destroying the justice system by killing
witnesses. He is not and has not abused the right
to communicate while he has been in prison.
While these two men, Kaboni Savage and
Lamont Lewis, were engaged in the same
criminal actions at times and Lamont Lewis is
certainly responsible for his violent killing spree,
these two men are not equally culpable. They are
not equally culpable for the rampage that Mr.
Savage is responsible for. The only person
responsible for all of that is Kaboni Savage.
177
That’s why justice warrants the ultimate
punishment.
A31:16708–09 (emphasis added).
Then came the defense summation. Savage’s attorney
tried to reinforce the “equally culpable” mitigator by
contrasting Lewis’s extensive criminal history with his lesser
punishment. Defense counsel also tried to use Lewis’s
criminal history—including his admission during the guilt-
phase trial that he sold drugs in jail—to suggest Lewis himself
posed a future danger. “You should be [concerned] about
future dangerousness,” he concluded. Id. at 16742. “You are
looking at it right there, Lamont Lewis.”
Id.
The Government pushed back during its rebuttal,
acknowledging that recommending Lewis’s non-capital
sentence required a “tough call,” but urging jurors to
“remember [Lewis’s] testimony” when “comparing” him to
Savage:
He sat in this courtroom and he took
responsibility for everything that he has ever
done wrong. He admitted he was wrong. He
didn’t say, “The rats had it coming.” He didn’t
say his problems were caused by rats. He
admitted he was the one who was at fault. He
isn’t a danger going forward. He told you that he
had time to reflect when he got to [jail] and
realized the magnitude of all of the harm that he
had caused. He does not have the vendetta going
forward that Kaboni Savage has. He is not trying
178
to blame people on the outside for his situation.
He is trying to take steps to try to get some
amends for what he has done. . . . Never going to
happen, but at least he’s trying. Also, remember
that . . . Lamont Lewis did the . . . murders under
the direction and when ordered by Kaboni
Savage. Kaboni Savage is the one who wanted
those people dead. . . . Lamont Lewis is not
seeking revenge. He’s not looking to kill
witnesses. . . . Lamont Lewis is like a trigger on
a gun. Kaboni Savage is the trigger man.
Id. at 16764–66 (emphasis added).
As for Lewis’s criminal history, the prosecutor noted
Lewis “admitted it was wrong” after
ha[ving] time to reflect and think about what he
had done and to understand and appreciate the
magnitude of what he had caused. He told you
that’s one of the reasons he pled guilty. That’s
one of the reasons when you’re considering
comparing Lamont Lewis to Kaboni Savage, that
the two are not equally culpable. Remember that
Lamont Lewis has been in federal custody since
2007. Did you hear one peep during his
testimony about him illegally using the legal
mail or the legal phone calls to talk to, to
coordinate, to make—touch base with people on
the outside illegally? Not once. He did not order
any murders from prison. Kaboni Savage
ordered two that ultimately resulted in seven
179
deaths. I say this not because Lamont Lewis is
an angel. He is not. He is a convicted killer of
multiple people. But when you’re comparing the
two, he is not the danger that Kaboni Savage is.
Kaboni Savage is a danger going forward.
Id. at 16766–67 (emphasis added).
2
Savage contends that the prosecutorial comments that
we have underlined violated the Fifth and Sixth Amendments
by faulting Savage for not pleading guilty and for failing to
testify. But in context, the statements he challenges weren’t
about him at all; the Government was merely rebutting defense
counsel’s suggestions of equal culpability and of future
dangerousness by pointing to the fact of Lewis’s cooperation.
a
The parties again disagree about the standard of review.
The Government argues for abuse-of-discretion review, the
usual standard when a defendant challenges a district court’s
decision to allow or excuse certain prosecutorial comment. See
Moore, 255 F.3d at 107. But Savage argues for the more
exacting de novo standard since these statements related to his
Fifth and Sixth Amendment rights. See Def. Br. 279 (citing
United States v. Hardy,
37 F.3d 753, 756 (1st Cir. 1994);
United States v. Mayans,
17 F.3d 1174, 1185 (9th Cir. 1994)).
We need not resolve the issue since the prosecutor’s comments
clear either hurdle.
180
b
The Government’s penalty-phase closing and rebuttal
did not impermissibly trench on Savage’s Fifth and Sixth
Amendment rights. True, the Fifth Amendment does forbid
prosecutors from commenting on a defendant’s decision not to
testify, just as the Sixth Amendment forbids prosecutors from
commenting on a defendant’s decision to plead not guilty. See
United States v. Jackson, 390 U.S. 570, 581–83 (1968). But
prosecutors cross these lines only when they use language
“manifestly intended” or “of such character that the jury would
naturally and necessarily take it to be a comment on the failure
of the accused to testify” or plead guilty. United States v.
Chaney,
446 F.2d 571, 576 (3d Cir. 1971) (internal quotation
marks omitted) (quoting Hayes v. United States,
368 F.2d 814,
816 (9th Cir. 1966)).
So we consider the specific statements that Savage
challenges. Here’s how he describes them in his brief: “the
prosecutor’s adverse references to Savage’s failure to
‘cooperate,’ ‘ple[a]d guilty,’ ‘t[ake] responsibility,’ and thus
‘get some amends for what he has done.’” Def. Br. 292
(underlining added) (alterations in original).
None of these statements, nor all of them taken together,
come close to violating Savage’s constitutional rights. First of
all, the underlined language does not describe Savage’s failure
to do anything. Rather, Savage plucks individual words and
phrases from portions of the Government’s closing argument
that highlighted the cooperation of Lewis. Hearken back to the
underlined language in the quotations. Fairly viewed and read
in context, rather than in sliced-and-diced form, these
181
statements focus on Lewis, explaining why he wasn’t equally
culpable and why he wouldn’t pose a future danger. Savage’s
invocation of the equally culpable mitigator necessarily invites
just such testimony and argument.
And Savage offers no authority to support his
constitutional injury-by-implication argument. Instead, courts
find a constitutional injury only when a prosecutor explicitly
faults a defendant’s exercise of his own constitutional rights.
Lesko v. Lehman is just such a case. There, a prosecutor
impermissibly highlighted the defendant’s lack of remorse,
“ask[ing] the jury to consider [the defendant’s] ‘arrogance’ in
taking the ‘witness stand’ to present mitigating evidence about
his background, without even having the ‘common decency to
say I’m sorry for what I did.’” 925 F.2d 1527, 1544–45 (3d
Cir. 1991) (quoting trial transcript) (describing “[t]he
prosecutor . . . parod[ying] the gist of [the defendant]’s
testimony: ‘I don’t want you to put me to death, but I’m not
even going to say that I’m sorry.’” (quoting trial transcript)).
So too in United States v. Whitten, where a prosecutor tried
using a capital defendant’s own failure to take the stand to
discredit the defendant’s penalty-phase allocution.
610 F.3d
168, 198–200 (2d Cir. 2010) (restating “the uncontroversial
rule that prosecutors can emphasize that an allocation is
unsworn and uncrossed” but holding the prosecutor’s remark
that “[t]he path to that witness stand has never been blocked
for [the defendant]” could be understood as an impermissible
comment on the defendant’s failure to testify during the guilt-
phase trial).
If anything, the Government’s comments in this case
land closer to what was said in United States v. Mikhel, where
182
a prosecutor rebutted the “equally culpable” mitigator by
asking the jury to “compare [the cooperator’s] conduct with
that of [the defendants]” and noting the cooperator “led the FBI
to bodies they never would have found in this case.” 889 F.3d
1003, 1060 (9th Cir. 2018) (quoting trial transcript) (emphasis
omitted). Judge Bybee explained these comments did not
violate the Fifth Amendment since they “would[n’t] naturally
and necessarily be understood as commenting on defendants’
failure to testify.”
Id. (internal quotation marks omitted). So
too here. Viewed in their proper context, the challenged
statements merely rebut both Savage’s “equally culpable”
mitigator stance and his argument concerning Lewis’s future
dangerousness. A jury would not naturally—and certainly not
necessarily—take them as a comment on Savage’s choice to
exercise his constitutional rights.
And once again, any error in this regard would have
been harmless since the jury unanimously agreed that the
“equally culpable” mitigator did apply despite the prosecutor’s
arguments to the contrary. In that way, this case mimics United
States v. Runyon, where a prosecutor undercut the “equally
culpable” mitigator by pointing out that another defendant pled
guilty rather than forcing “a jury[ to] weigh in on all the
evidence and determine whether [he] was guilty.” 707 F.3d
475, 508 (4th Cir. 2013) (second alteration in original).
Without deciding whether this comment impermissibly shaded
the defendant’s Fifth and Sixth Amendment rights, the Fourth
Circuit concluded that any error would have been harmless
beyond a reasonable doubt since the jury unanimously found
the “equally culpable” mitigator anyway.
Id. at 510 (citing
Chapman v. California,
386 U.S. 18, 24 (1967)) (noting “[t]he
183
list of aggravators and mitigators weighed by the jury would
thus have been identical with or without the statements of
which [the defendant] complains”).
* * *
In sum, the prosecutor rebutted the “equally culpable”
mitigator without impermissibly faulting Savage for invoking
his constitutional rights. And even had he crossed the line, any
error would have been harmless because the jury still found for
Savage on the “equally culpable” mitigator.
F. The Government properly rebutted the
mitigators relating to Savage’s relationship
with his family.
We turn to two nonstatutory mitigating factors
concerning Savage’s relationship with his family: that “Savage
has been a positive influence in the lives of his children, niece,
and nephew” and that “Savage can continue to be an important
influence in the lives of his children.” A2:790. Although the
Government sought to rebut these mitigators with testimony
and argument tending to show Savage had maintained little
contact with his family, eight jurors still found the first
mitigator and four jurors found the second. Despite those
findings, Savage now rehashes the prosecution’s rebuttal,
arguing the Government violated his constitutional rights by
limiting his contact with family while he was imprisoned, and
then disparaging the limited nature of the familial
relationships.
184
For analytical purposes, we separate his argument into
two claims: First, that the Government unconstitutionally
interfered with his ability to develop mitigation evidence about
family relationships; second, that the Government’s rebuttal of
the “familial relationship” mitigators unfairly characterized
those relationships as limited.
Distilled to its essence, the first claim challenges
Savage’s confinement conditions. To be sure—and for reasons
previously explained—the Government broadly circumscribed
Savage’s ability to communicate generally with the outside
world. Those restrictions reasonably related to legitimate
penological interests and, at all events, the record shows
Savage still had an adequate opportunity to develop and
present mitigation evidence about his familial relationships.
The second claim boils down to allegations of improper
cross-examination and prosecutorial argument. Here too, we
discern no error. The challenged cross-examinations reiterated
facts the defense itself had already elicited, and the challenged
argument appropriately rebutted the defense’s mitigation
evidence.
1
The first claim—that the Government
unconstitutionally interfered with Savage’s ability to develop
mitigation evidence about his familial relationships—simply
retreads disagreements over the time, place and manner of
Savage’s family visits. These disagreements began during voir
dire, and prompted a memorandum opinion from the District
Court recognizing that Savage needed “the opportunity to
185
develop . . . evidence” to “present at the sentencing phase of
his trial.” The District Court also agreed with the defense that
“the ability to visit with his children could impact the
preparation of [Savage]’s mitigation case.” A1:46–48. The
Judge ultimately refereed ongoing disputes over the time, place
and manner of the visitation throughout the trial. Savage,
however, was never satisfied.
One such example stems from the BOP’s confinement
of Savage on FDC-Philadelphia’s maximum-security floor
during the trial. Although the maximum-security floor had a
visitation room, the BOP did not allow the presence of minors
on that floor. That led defense counsel to demand either that
the BOP make an exception and allow Savage’s children onto
the maximum-security floor, or that the BOP transfer Savage
to another facility that could accommodate minors’ visits under
maximum-security conditions (like, apparently, the
Metropolitan Correctional Center in New York, where the
BOP sometimes held Savage during breaks in his trial). For its
part, the BOP offered to shut down the entire lower-security
floor’s visitation area and to conduct the visit there. But
because of the lower-security environment, the BOP said
Savage would have to be immobilized by keeping him in a
seated position. Defense counsel bristled, protesting that
“[t]hat is inappropriate to meet with his children,” thereby
precipitating an impasse that went unresolved. A34:18080.
Yet we fail to see how this impasse amounts to a
constitutional deprivation. The defense team still managed to
arrange two occasions for the defense’s expert social worker to
observe Savage interacting with his children. The social
worker testified that she had considered “a lot of evidence” and
186
formed an educated opinion—an opinion that was very
favorable to Savage, and that went largely unchallenged by the
Government. A30:16264–68. She never suggested that more
observation would have changed her opinion, and Savage
never specified what additional witnesses or information he
was prevented from offering. Although more familial contact
may have strengthened his ability to build mitigation evidence
generally, the same could be said for every capital defendant.
The Constitution simply does not guarantee capital defendants
unfettered access to their families.
At all events, to the extent Savage challenges the BOP’s
refusal to allow him to be unrestrained on a lower-security
floor, he is essentially challenging the reasonableness of a
prison regulation. But “restrictive prison regulations are
permissible if they are ‘reasonably related to legitimate
penological interests[]’ and are not an ‘exaggerated response’
to such objectives.” Beard v. Banks, 548 U.S. 521, 528 (2006)
(citation omitted) (quoting Turner v. Safley,
482 U.S. 78, 87
(1987)). Savage never explains why the BOP’s conditions
violated this standard; indeed, Savage doesn’t even cite the
standard. That failure is fatal to his argument since “the
prisoner ‘bears the burden of persuasion’ when he is
challenging a regulation.” Sharp v. Johnson,
669 F.3d 144,
157 (3d Cir. 2012) (quoting
Banks, 548 U.S. at 529).
We regard the BOP’s insistence on immobilizing
Savage in a seated position as well within bounds. “[P]rison
administrators are not required to use the least restrictive
means possible to further legitimate penological interests,”
Monroe v. Beard, 536 F.3d 198, 207 (3d Cir. 2008), and we
“presum[e] that the prison officials acted within their ‘broad
187
discretion,’” Shaw v. Murphy, 532 U.S. 223, 232 (2001)
(quoting Thornburgh v. Abbott,
490 U.S. 401, 413 (1989)).
“We must accord substantial deference to the professional
judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections
system and for determining the most appropriate means to
accomplish them.” Overton v. Bazzetta,
539 U.S. 126, 132
(2003). Given Savage’s extraordinary history of initiating
violent crime through his contact with the outside world, we
are especially unwilling to second-guess the BOP’s assessment
of the risks Savage posed outside his specially modified,
maximum-security cell.
Savage’s proposed alternatives—allowing minor
children onto a maximum-security floor or transferring him to
another facility—would “burden . . . prison resources.” Jones
v. Brown, 461 F.3d 353, 360 (3d Cir. 2006). That factor, plus
that Savage “retain[ed an] alternative means of” visiting his
children and that no “alternative” would “fully accommodate”
Savage’s request “at de minimis cost to valid penological
interests,” underscore the reasonableness of the BOP’s
position.
Id.
2
Next, Savage identifies four prosecutorial comments—
two made during cross-examination and two in closing
arguments—which he contends improperly exploited his
restricted familial relationship.
188
a
Before we discuss the comments themselves, we
summarize the relevant portions of Savage’s mitigation case.
The mother of one of Savage’s children described Savage as “a
good father, a loving person, very family-oriented,” and
someone who “always wanted all the kids . . . . to come over
and spend time with him.” A30:16224, 16228. She also
testified that their daughter Siani
loves her father very much. She wants to talk to
him. She wants to come visit him, but we
haven’t been able to do that on a regular
basis. . . . Kaboni has always been a positive
factor in his daughter’s life. These negative
things that people are bringing about is nothing
that we have witnessed, his daughter has not
witnessed. He’s been a positive influence on her.
...
They have a bond with each other that just was
unbreakable. . . . [S]he loves him regardless of
anything that is happening in this case. This has
been her father since birth. She’s grown up and
basically looked up to him. He has been her
hero. She was daddy’s little girl from the
beginning, so it’s really difficult and hard for her
to not have him around. She still loves him and
wants him in her life, and I want him to be part
of her life as well. He needs to be around. She
needs to have him in her life. She has to have
189
him in her life. She doesn’t want to function
without him in her life. She still goes to school
and does well anyway and gets good grades and
wants to make him proud, and that’s what she
focuses her goals on.
A30:16228–29, 16241–42.
Savage’s own mother similarly noted that Savage still
communicated with his children through letters, and that “they
love him so hard.” A31:16400.
Savage’s son Kaiion testified that before his father’s
arrest, they “went out every weekend to the movies” and that
Savage “stayed on us all the time about school” and “made sure
he raised us like men.” A31:16527. Kaiion also expressed a
belief that despite Savage’s incarceration, his father “c[ould]
continue to have influence in [his] life.” A31:16543.
Similarly, Savage’s nephew Yusef described a “school
project” from “2004” when he
had to choose the person of the year, the person
who impacted [his] life the most, and [he]
nominated [Savage] because of the role that
[Savage] played on [him] and pushing [him] in
[his] education and stuff [Savage] taught [him]
about being a man and taking care of [his]
family.
A30:15991–93.
190
The defense also introduced letters Savage wrote to his
children, niece and nephew over the years. That said, Kaiion
conceded during his testimony that he “ha[dn’]t gotten a letter
in a long time.” A31:16533.
To buttress the significance of Savage’s familial
relationships, defense witnesses reiterated the barriers Savage
had to overcome to maintain contact with family. Both Kaiion
and Savage’s sister Conchetta testified that Savage’s niece and
nephew were not permitted to visit Savage since they were not
his children. Conchetta noted that it became much harder to
communicate with Savage once the Government moved him to
ADMAX, and that Savage’s niece and nephew communicated
with him through phone calls and letters “up until the point
where we could.” A30:15974.
The Government did little to refute this evidence.
Prosecutors briefly cross-examined Kaiion:
Q: Good afternoon, Mr. Savage.
A: How you doing.
Q: You are 17 years old?
A: Yes.
Q: And your whole life, have you lived with
your mother?
A: Yes.
191
Q: Your mother has been your primary
caregiver?
A: Yes.
Q: It’s safe to say that for most of your life your
father has been incarcerated, is that right?
A: Yes.
Q: On that letter that [defense counsel] just
showed you[,] there was no date on that
letter?
A: No.
Q: But that letter was sometime within the last
year that that was written to you by your
father?
A: No.
Q: Last—approximately when was it written, do
you know?
A: 2011, 2010, something like that.
Q: So sometime within the last couple of years,
is that correct?
A: Yes.
Q: Last two or three years?
192
A: Yes.
Q: Since he has been charged in this case?
A: Yes.
Q: And you are, as Mr. Savage’s son, you are
allowed visits occasionally, right?
A: Yes.
Q: You are allowed to have phone calls with
your father, right?
A: Yes.
Q: But despite that, you said you have not gotten
a letter from him in a long time?
A: No.
Q: How long has it been since you last got a
letter from your father?
A: Around like two, three years ago.
[Prosecutor]: Nothing further.
A31:16544–45. And when cross-examining Yusef, the
Government reiterated that his “Man of the Year” project took
place in 2004—a fact defense counsel had already elicited.
Compare A30:15991 (defense’s direct) (“Q: In 2004, did you
in a school project put him in for some sort of award? A:
Yes.”), with A30:15998 (Government’s cross) (“Q: [Defense
193
counsel] showed us this certificate that you did for your uncle
when you were a young man, correct? A: Yes. Q: What’s the
date on that? A: December 8, 2004.”).
During its sentencing summation, the Government
admonished the jury to “not allow [Savage] to use his children
as a mercy shield from imposing the ultimate sentence.”
A31:16683. And after the defense summation had emphasized
mitigating evidence involving Savage’s family, the
prosecution used its rebuttal to remind the jury about the dearth
of recent correspondence, and to argue that “[w]hile his
children are certainly innocent victims in all of this, his very
limited relationship with them does not outweigh the horrific
violence that he has caused.” A31:16775.
b
Savage claims the following comments improperly
leveraged his restricted familial relationship against him:
the Government’s cross-examination of Yusef, which
reiterated the “Man of the Year” school project was in
2004;
the Government’s cross-examination of Kaiion, which
established Savage had not written him in several years;
the Government’s summation comment that Savage
shouldn’t be able to use his children as a “mercy shield”;
and
the Government’s rebuttal assertion that Savage had a
“very limited relationship” with his children.
194
Savage concedes his trial counsel failed to object to
these comments, so we review them for plain error. See Fed.
R. Crim. P. 52(b). None clear that high bar.
First, the one-off question asked during Yusef’s cross-
examination and which reminded the jury that Yusef’s school
project nominating Savage as “Man of the Year” took place
back in 2004. But defense counsel had already elicited this fact
on direct examination, so the Government’s query was not an
error let alone a plain one. See Glass v. Phila. Elec. Co., 34
F.3d 188, 194 (3d Cir. 1994) (citing Fed. R. Evid. 611(b)).
Second, a fleeting comment during Kaiion’s cross-
examination similarly rehashed a point already made on direct
examination. The jury knew from defense questioning that
Kaiion had admitted his father hadn’t written him a letter “in a
long time.” A31:16533. Again, this cannot constitute error.
Third, there is also the “mercy shield” comment. To be
sure, the locution was derisive. But stripped of its rhetorical
gloss, the term merely underscored the Government’s position
that Savage’s relationship with his children did not outweigh
the aggravating factors. The “mercy shield” reference may
have been a hard blow, but it is not one we can rule as a foul.
Finally, characterizing Savage’s parental relationship as
“very limited” is innocuous. Savage’s limited familial contact
was hardly news to the jurors: the defense itself had cataloged
the severe restrictions Savage faced and the strain those
restrictions placed on his familial relationships. In fact, much
of Savage’s mitigation case was an attempt to prove that
familial bonds remained despite the limited contact. How,
195
then, could it be plain error for the Government to suggest that
the same limited contact might cut against mitigation? The
prosecution was merely arguing a competing inference. See
also 18 U.S.C. § 3593(c) (“The government . . . shall be
permitted to rebut any information . . . and shall be given fair
opportunity to present argument as to the adequacy of the
information to establish the existence of any aggravating or
mitigating factor . . . .”); United States v. Montgomery, 635
F.3d 1074, 1097–98 (8th Cir. 2011) (permitting the
government to rebut a “familial relationship” mitigator by
disparaging the defendant’s parenting, including asking the
defendant’s young daughter whether the defendant had “ever
apologize[d] for what she put you and your siblings through”).
* * *
In sum, because the Government did not act to obstruct
Savage’s opportunities to develop his mitigation case, and
because the Government properly rebutted his argument
supporting the “familial relationship” mitigators, there was no
error.
G. The verdict sheet’s format did not violate the
Eighth Amendment.
Finally, we take up Savage’s argument that the District
Court constitutionally erred by producing a verdict form
“dramatically overemphasiz[ing]” the aggravating factors
“while relegating” the mitigating factors “to an afterthought.”
Def. Br. 325. As the District Court correctly concluded, this
argument lacks both factual and legal merit.
196
Savage specifically faults the verdict form for marching
count-by-count through the various aggravating factors the
Government offered while merely enumerating the defense’s
blanket list of mitigating factors once at the end of the form.
Alternatively, he suggests the form could have listed the
mitigating factors once if it had listed the aggravating factors
only once. The error, he contends, was “unfairly elevat[ing]
the significance of the aggravating factors by repeating them
over and over while relegating the mitigating ones to a single,
short list at the back of the form.” Def. Br. 332.
Once again, the parties do not agree on our standard of
review. Though this claim deals solely with the District
Court’s verdict form, not its instructions, Savage analogizes to
United States v. Sussman’s de novo review of “a district court’s
refusal to give a jury instruction on a defendant’s ‘theory of
defense.’” 709 F.3d 155, 175 (3d Cir. 2013). But Savage isn’t
arguing that the District Court refused to include the mitigators
on the form; he merely protests how the mitigators appeared on
the form. So the closer analogy would be to a “refusal to give
a particular instruction or the wording of instructions,” which
Sussman reviewed for “abuse of discretion.”
Id. (quoting
United States v. Jimenez,
513 F.3d 62, 74 (3d Cir. 2008)). The
Government offers United States v. Hedgepeth as more support
for abuse-of-discretion review. That case involved a “District
Court’s decision to submit a special verdict form to the jury.”
434 F.3d 609, 612 (3d Cir. 2006). And of course, applying the
abuse-of-discretion standard here tracks how we review trial
management rulings generally. See, e.g., Duquesne Light Co.
v. Westinghouse Elec. Corp.,
66 F.3d 604, 609 (3d Cir. 1995).
197
Accordingly, we review Savage’s challenge to the verdict
form’s layout for an abuse of discretion.
Yet the verdict form would pass muster under any
standard. Repeating the aggravating factors for each count but
listing the mitigating factors once at the end makes sense both
legally and factually.
Legally, a capital defendant’s default sentence is life
imprisonment. A death sentence can be reached only after all
twelve jurors find a statutory aggravator beyond a reasonable
doubt. Sequentially, then, finding and weighing mitigating
factors becomes important only after a jury has already
found—unanimously—at least one aggravating factor. This
means that if jurors go through all capital counts without
finding a single aggravating factor, there is no need for them to
consider any mitigators. Their work is over, and the defendant
must receive a sentence of life imprisonment. Listing the
mitigators after the aggravators tracks this order of jury
deliberations, and should be of assistance to the jurors in their
work. This format makes good sense.
And viewed factually, it makes sense for two reasons.
First, each of the thirteen capital counts had a unique set of
applicable aggravators; the Government tailored thirteen
separate lists, weaving different statutory aggravators with
different non-statutory aggravators. But the defense sought to
globally apply the same general list of twenty mitigators to all
counts. So although the verdict form needed to specify which
aggravators applied to which counts, nothing demanded
repeating the twenty mitigators, count-by-count.
198
Second, and relatedly, the FDPA obliges jurors to
consider “any mitigating factor,” while limiting jurors to the
aggravating factors “for which notice has been given.”
§ 3592(a), (c) (emphasis added). That means the verdict form
had to include several blank lines for the jury to add any
additional mitigators. So when the District Court produced the
verdict form, although a certain subset of aggravators applied
to each count, it was not clear in advance how many mitigators
might apply, and what mitigators might apply to what counts.
Moreover, the District Court prevented any risk of
confusion by emphasizing the need to apply the mitigating
factors to each capital count. On the verdict form itself,
prominent oversized text preceded the list of mitigators and
notified jurors that
IN CONSIDERING THE MITIGATING
FACTORS, YOU MUST KEEP IN MIND
THAT EACH MITIGATING FACTOR IS
ALLEGED WITH RESPECT TO EACH OF
THE CAPITAL COUNTS. IF YOU
DETERMINE BY A PREPONDERANCE
OF THE EVIDENCE THAT A
MITIGATING FACTOR IS PRESENT,
THEN IT MUST BE CONSIDERED IN THE
WEIGHING PROCESS FOR EACH AND
EVERY CAPITAL COUNT.
A2:788. Elsewhere, the verdict form tasked jurors with
specifying “the number of jurors who have found the existence
of that mitigating factor to be proven by a preponderance of the
evidence with regard to each of the capital counts.” Id.
199
(emphasis added). And when instructing the jury during the
sentencing phase, the District Court repeatedly highlighted the
need for a count-by-count analysis.
In sum, the District Court reasonably formatted the
verdict form to reflect this case’s unique factual and legal
circumstances. And it took several additional steps to ensure
that jurors correctly understood and followed the form. We
commend the District Judge for crafting and approving a
verdict form that so intelligibly presented to the jurors the
many difficult questions they were being asked to resolve.
Nothing in the verdict form gave rise to legal error.
XII. CONCLUSION
As Savage reminds us in his opening brief, “it has been
nearly a century since this Court last adjudicated a direct appeal
in a capital case.” Def. Br. 1. That passage of time has given
rise to considerable debate over the death penalty: Is it just? Is
it moral? Is it applied and administered in a manner that does
not discriminate on the basis of race? These and other serious
questions resound within the public square.
Yet none of those questions are what this Court is called
upon to resolve.
We have meticulously combed the very substantial
record provided us. We have given scrupulous attention to,
and taken great care in resolving, each of the issues brought
before us. And we have done so with what the late Justice
Thurgood Marshall called “especial concern”—because, as he
solemnly noted more than three decades ago, “execution is the
200
most irremediable and unfathomable of penalties.” Ford v.
Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion).
Exercising the heightened responsibility required of us,
we discern no grounds entitling Savage to relief on any of the
issues he raises. The judgment of the District Court therefore
will be affirmed.
201
