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Summary: Revised December 28, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-11224 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BRUCE CARNEIL WEBSTER, a/k/a B-Love, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Texas _ December 3, 1998 Before SMITH, DUHÉ, and WIENER, Circuit Judges. JERRY E. SMITH, Circuit Judge: Bruce Webster challenges his conviction of, and sentence for, kidnaping resulting in death, conspiring to
Summary: Revised December 28, 1998 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-11224 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BRUCE CARNEIL WEBSTER, a/k/a B-Love, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Texas _ December 3, 1998 Before SMITH, DUHÉ, and WIENER, Circuit Judges. JERRY E. SMITH, Circuit Judge: Bruce Webster challenges his conviction of, and sentence for, kidnaping resulting in death, conspiring to k..
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Revised December 28, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-11224
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRUCE CARNEIL WEBSTER,
a/k/a B-Love,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
December 3, 1998
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bruce Webster challenges his conviction of, and sentence for,
kidnaping resulting in death, conspiring to kidnap, and using and
carrying a firearm during a crime of violence. We affirm.
I.
The facts are the same as in the case of Webster’s
co-conspirator, Orlando Hall. See United States v. Hall, 152 F.3d
381 (5th Cir. 1998). Webster, Hall, and Marvin Holloway ran a
marihuana trafficking enterprise in Pine Bluff, Arkansas. They
purchased marihuana in varying amounts in the Dallas/Fort Worth
area with the assistance of Steven Beckley, who lived in Irving,
Texas. The marihuana was transported, typically by Beckley, to
Arkansas and stored in Holloway's house.
On September 21, 1994, Holloway drove Hall from Pine Bluff to
the airport in Little Rock, and Hall took a flight to Dallas to
engage in a drug transaction. Beckley and Hall's brother,
Demetrius Hall (D. Hall), picked up Hall at the airport. Later
that day, Hall and Beckley met two local drug dealers, Stanfield
Vitalis and Neil Rene (N. Rene), at a car wash and gave them $4700
for the purchase of marihuana. Later that day, Beckley and D. Hall
returned to the car wash to pick up the marihuana, but Vitalis and
N. Rene never appeared.
When Hall got in touch with Vitalis and N. Rene by telephone,
they claimed they had been robbed of the $4700. Using the
telephone number that Beckley had dialed to contact Vitalis and
N. Rene, Hall procured an address at the Polo Run Apartments in
Arlington, Texas, from a friend who worked for the telephone
company. Hall, D. Hall, and Beckley began conducting surveillance
at the address and saw Vitalis and N. Rene exit an apartment and
approach the same car they had driven to the car wash, which they
claimed was stolen from them along with the $4700. Hall therefore
deduced that Vitalis and N. Rene had lied to him about having been
robbed.
2
On September 24, Hall contacted Holloway and had him drive
Webster to the Little Rock airport. From there, Webster flew to
Dallas. That evening, Hall, D. Hall, Beckley, and Webster returned
to the Polo Run Apartments in a Cadillac owned by Cassandra Ross,
Hall's sister. Hall and Webster were armed with handguns, D. Hall
carried a small souvenir baseball bat, and Beckley had duct tape
and a jug of gasoline. They approached the apartment from which
they had previously seen Vitalis and N. Rene leave.
Webster and D. Hall went to the front door and knocked. The
occupant, Lisa Rene, N. Rene’s sixteen-year-old sister, refused to
let them in and called her sister and the police emergency phone
number. After Webster unsuccessfully attempted to kick in the
door, he and D. Hall looked through a sliding glass door on the
patio and saw that Lisa Rene was on the telephone. D. Hall
shattered the door with the bat; Webster entered the apartment,
tackled Lisa Rene, and dragged her to the car.
Hall and Beckley had returned to the car when they heard the
sound of breaking glass. Webster forced Lisa Rene onto the
floorboard of the car, and the group drove to Ross’s apartment in
Irving. Once there, they exited the Cadillac and forced Lisa Rene
into the back seat of Beckley’s car; Hall climbed into the back
seat as well. With Beckley at the wheel and Webster in the front
passenger seat, they drove around looking for a secluded spot.
During the drive, Hall raped Lisa Rene and forced her to perform
fellatio on him.
3
Unable to find a spot to their liking, they eventually
returned to Ross’s apartment. From there, Beckley, D. Hall, and
Webster drove Lisa Rene to Pine Bluff. Hall remained in Irving and
flew back to Arkansas the next day. En route to Pine Bluff,
Webster and D. Hall took turns raping Lisa Rene. Once Beckley,
D. Hall and Webster reached Pine Bluff, they obtained money from
Holloway to get a motel room. In the room, they tied Lisa Rene to
a chair and raped her repeatedly.
Hall and Holloway arrived at the motel room on the morning of
September 25. They went into the bathroom with Lisa Rene for
approximately fifteen to twenty minutes. When Hall and Holloway
came out of the bathroom, Hall told Beckley, "She know too much."
Hall, Holloway, and Webster then left the motel.
Later that afternoon, Webster and Hall went to Byrd Lake Park
and dug a grave. That same evening, Webster, Hall, and Beckley
took Lisa Rene to the park but could not find the grave site in the
dark, so they returned to the motel room. In the early morning of
September 26, Beckley and D. Hall moved Lisa Rene to another motel
because they believed the security guard at the first motel was
growing suspicious.
The same morning, Webster, Hall, and Beckley again drove Lisa
Rene to Byrd Lake Park. They covered her eyes with a mask. Hall
and Webster led the way to the grave site, with Beckley guiding
Lisa Rene by the shoulders. At the grave site, Hall turned Lisa
Rene’s back toward the grave, placed a sheet over her head, and hit
4
her in the head with a shovel. Lisa Rene screamed and started
running. Beckley grabbed her, and they both fell down. Beckley
hit her in the head twice with the shovel and handed it to Hall.
Webster and Hall began taking turns hitting her with the shovel.
Webster then gagged her and dragged her into the grave. He
stripped her, covered her with gasoline, and shoveled dirt back
into the grave. When buried, Lisa Rene, although unconscious,
likely was still breathing. Hall, Beckley, and Webster then
returned to the motel and picked up D. Hall.
Based on information from the victim’s brothers, D. Hall was
arrested; Hall and Beckley subsequently surrendered to the police.
On September 29, just after turning himself in, Beckley gave a
confession to a police detective and an FBI agent in which he
admitted to the kidnaping of Lisa Rene and implicated himself,
Hall, and an individual known as “B-Love.” Beckley stated that he
had last seen Lisa Rene at the Pine Bluff Motel with B-Love. A
security guard at the motel informed the agents and officers that
Webster went by the name B-Love, and provided a description of
Webster and his vehicle. When Webster pulled into the motel
parking lot during the early morning of September 30, he was
detained and subsequently arrested.
II.
In November 1994, a six-count superseding indictment charged
Webster, Hall, D. Hall, Beckley, and Holloway with various offenses
5
related to the kidnaping and murder of Lisa Rene. Specifically,
the indictment charged Webster with kidnaping in which a death
occurred in violation of 18 U.S.C. § 1201(a)(1) (count 1),
conspiracy to commit kidnaping in violation of 18 U.S.C. § 1201(c)
(count 2), traveling in interstate commerce with intent to promote
extortion in violation of 18 U.S.C. § 1952 (count 5), and using and
carrying a firearm during a crime of violence in violation of
18 U.S.C. § 924(c) (count 6). In February 1995, the government
filed its notice of intent to seek the death penalty against
Webster pursuant to § 3593(a) of the Federal Death Penalty Act of
1994 (“FDPA”), 18 U.S.C. §§ 3591-3598.
Webster’s trial was severed from that of his co-defendants.
The jury returned a verdict of guilty on counts 1, 2 and 6, and
count five was dismissed on the government’s motion. The court
conducted a separate sentencing hearing before the same jury. See
§ 3593. After the penalty phase, the jury returned special
findings that Webster satisfied the requisite elements of intent,
see § 3591(a), and that three statutory and two non-statutory
aggravating factors existed.1 See § 3592. Varying numbers of
1
The jury unanimously found all but the first of the following statutory
aggravating factors:
II(A). The defendant, Bruce Carneil Webster, caused the death
of Lisa Rene, or injury resulting in death of Lisa Rene, which
occurred during the commission of the offense of kidnapping.
II(B). The defendant . . . committed the offense in an
especially heinous, cruel, or depraved manner in that it involved
torture or serious physical abuse of Lisa Rene.
(continued...)
6
jurors found nine mitigating factors.2 See § 3592. The court
1
(...continued)
II(C). The defendant . . ., after substantial planning and
premeditation, committed the offense of kidnapping in which the
death of Lisa Rene resulted.
II(D). The victim, Lisa Rene, was particularly vulnerable due
to her age.
In addition, the jury unanimously found both of the proposed non-statutory
aggravating factors:
III(A). The defendant . . . constitutes a future danger to the
lives and safety of other persons.
III(B). The effect of the instant offense on Lisa Rene’s family.
2
Webster proposed the following statutory mitigating factors (with the
number of jurors finding each mitigating factor shown in brackets):
1. The defendant’s capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of the
law was significantly impaired. [0]
2. The defendant was under unusual and substantial duress. [0]
3. Another defendant or defendants, equally culpable in the
crime, will not be punished by death. [4]
4. The defendant does not have a significant prior history of
other criminal conduct. [0]
5. The defendant committed the offense under severe mental or
emotional disturbance. [0]
Webster proposed the following non-statutory mitigating factors (with the
number of jurors finding each mitigating factor shown in brackets):
1. The defendant is or may be mentally retarded. [4]
2. The defendant has low intellectual functioning. [4]
3. The defendant suffered from physical abuse, from emotional
abuse, and/or from parental neglect during his upbringing.
[12]
4. The defendant, as a result of a personality disorder, a mental
illness, and/or low intellectual functioning, has a lesser
capability to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of the law than that
of a normal person. [0]
5. The defendant was youthful at the time of the commission of
(continued...)
7
sentenced Webster to death on count one of the superseding
indictment; life imprisonment on count two; and sixty months'
imprisonment on count six to run consecutively to the sentence in
count 2.
III.
Webster raises several grounds for reversing his conviction
2
(...continued)
the crime, although not under the age of eighteen. [0]
6. The defendant has talents, capabilities, or qualities which
are of some value to society (such as musical talent,
religious devotion, etc.). [0]
7. The defendant is unduly susceptible to influence by others. [0]
8. The defendant’s level of participation in the commission of
this offense was attributable, at least in part, to the
influence of one or more of the other participants involved in
the commission of this crime. [4]
9. The defendant grew up in an atmosphere of violence and fear,
which has misshaped his perception as to the acceptability or
necessity of violent conduct. [6]
10. The defendant can be controlled in a prison setting. [2]
11. The defendant can be of some productive value in a prison
setting. [0]
12. The defendant has the love and support of other members of his
family. [11]
13. The defendant does not have a significant prior history of
violent crime. [0]
14. The defendant is the product of an impoverished background
which virtually precluded his integration into the social and
economic mainstream of the community. [0]
15. The defendant has responded well to structured environments
and would likely adapt to prison life if he were sentenced to
life imprisonment. [2]
16. Any other factor or factors in the defendant’s background,
record, or character or any other circumstance of the offense
that mitigates against imposition of the death sentence. [0]
8
and/or sentence that we already have ruled on in Hall:
1. The district court violated Webster’s Fifth and
Eighth Amendment rights by conditioning the admission of
psychiatric testimony in mitigation of punishment upon
Webster’s submission to a government psychiatric
examination.3
2. The district court abused its discretion by admitting
certain unfairly prejudicial materials into evidence,
namely photographs and a videotape.4
3. The admission of evidence regarding unadjudicated
offenses5 during the penalty phase and a lack of a jury
3
Webster raises an additional Fifth Amendment argument relating to his
compelled examination, not addressed in Hall, with which we deal infra.
4
Webster attempts to parlay his evidentiary objection into a
constitutional claim; having upheld the evidence’s admissibility as an
evidentiary matter, we cannot conclude that its admission nonetheless violated
his constitutional rights.
5
Webster specifically complains about the following evidence:
• the oral statement “If I was out now, I’d kill the bitch” that
gave him a venereal disease.
• the oral statement that killing Lisa Rene wasn’t personal, “it
was strictly business.”
• an escape attempt where he entered an unauthorized area (the
women’s shower) of the Mansfield jail.
• the sexual rendezvous with female inmates planned with fellow
inmate John Clay.
• the alleged shooting at a store owner after an attempted
theft.
• the assault of Sheila Henry, a girlfriend.
• a shoving match over a piece of candy.
Webster also argues these should have been excluded because of the need for
sufficient reliability of evidence in capital proceedings. See Caldwell v.
Mississippi, 472 U.S. 320, 340 (1985).
We find ample support in the record of the evidence’s reliability, which
justifies putting it before the jury. First, it was testimony based on first-
hand observations; Webster had the opportunity to confront and challenge each of
(continued...)
9
instruction requiring the jury to apply some burden of
proof to this evidence rendered the death sentence
unreliable.
4. The admission of nontestimonial victim impact
statements violated due process and the Eighth Amendment,
Webster’s Sixth Amendment right of confrontation, and the
FDPA’s evidentiary standards.
We addressed and rejected each of these arguments in Hall, which
6
controls the outcome here.
IV.
Webster appeals his judgment of conviction and death sentence
on the following grounds that we must address, as we did not
consider them in Hall:
1. The court erroneously instructed and materially
misdirected the jury in numerous ways at the penalty
phase.
2. The court failed to instruct the jury accurately
regarding on which non-monetary benefit(s) of the
kidnapping the government relied and regarding the need
for the jury to agree on such a benefit unanimously in
order to convict in the guilt-innocence phase.
3. The court admitted the fruits of a search pursuant
to, and statements given after, an arrest contravening
5
(...continued)
the witnesses. Second, because Webster was given advance notice that the
government would be introducing evidence of unadjudicated offenses, he had the
opportunity independently to investigate and respond to the evidence. Third, the
government introduced corroborating evidence for several of the incidents.
Fourth, the statements of which Webster complains were not related to
unadjudicated offenses; rather, they were statements made to law enforcement
officers after his arrest. Finally, Webster provides no reason why we should be
reticent to believe any of the testimony or that the incidents occurred.
6
See Hall, 152 F.3d at 398 (compelled psychiatric exam),
id. at 400-03
(evidentiary rulings on photographs and videotape),
id. at 403-04 (unadjudicated
offenses),
id. at 404-06 (nontestimonial victim impact statements).
10
the Fourth Amendment.
4. The court erred by refusing to dismiss the
government’s notice to seek the death penalty based on
allegations of racial discrimination in death penalty
charging decisions and by refusing Webster’s request for
discovery on that claim.
5. The court abused its discretion by refusing Webster’s
motion for post-trial discovery on a claim that the
government had provided sexual favors to a prisoner-
witness.
6. The court lacked authority to order Webster to
undergo a government psychiatric exam as a condition to
admitting psychiatric testimony in mitigation of
punishment.
7. The court abused its discretion in granting the
government’s Witt challenge to a venireman.
8. The court’s rejection of defense challenges for cause
to impaired and biased veniremen denied Webster an
impartial jury and his statutory right to free exercise
of peremptory challenges.
9. The court erred in excusing a venireman whose juror
questionnaire contained false information.
10. The court clearly erred in denying Webster’s Batson
claims.
11. The court erred by impaneling an alternate juror
during the penalty phase who did not deliberate during
the guilt-innocence phase.
12. The court violated Webster’s constitutional rights
and abused its discretion by limiting surrebuttal.
13. The court plainly erred and violated Webster’s
constitutional rights by entering a factual finding that
he is not mentally retarded.
14. There is insufficient evidence to support the
sentence of death.
15. Certain provisions of the FDPA are unconstitutional.
11
16. The court sua sponte should have suppressed the
testimony of Webster’s co-conspirators, who testified in
exchange for leniency.
We address each of these issues in turn.
A.
Webster contends that the district court erroneously in-
structed and materially misdirected the jury at the penalty phase.
District courts enjoy substantial latitude in formulating a jury
charge, and hence we review all challenges to, and refusals to
give, jury instructions for abuse of discretion.7
A conviction will not be reversed for an alleged error in the
instructions unless, when viewed in their entirety, they fail
correctly to state the law. Jones, 132 F.3d at 243; United States
v. Flores,
63 F.3d 1342, 1374 (5th Cir. 1995). Technical errors
will be overlooked, and the court’s instructions will be affirmed,
if the charge in its entirety presents the jury with a reasonably
accurate picture of the law.
Jones, 132 F.3d at 243. A refusal to
give a requested instruction constitutes reversible error only if
the proposed instruction (1) is substantially correct, (2) is not
substantively covered in the jury charge, and (3) pertains to an
important issue in the trial, such that failure to give it
7
United States v. Jones, 132 F.3d 232, 242-43 (5th Cir. 1998), cert. granted,
119 S. Ct. 39 (1998); United States v. Manges,
110 F.3d 1162, 1176 (5th Cir. 1997),
cert. denied,
118 S. Ct. 1675 (1998).
12
seriously impairs the presentation of an effective defense. United
States v. Garcia Abrego, 141 F.3d 142, 153 (5th Cir.), cert.
denied,
119 S. Ct. 182 (1998);
Jones, 132 F.3d at 242.
1.
Webster argues that the court erred in refusing to instruct
the jury that, in assessing the aggravating factors, it could
consider only his intent and conduct and not the words or acts of
any other codefendant or participant in the crime. The argument is
without merit.
a.
Webster’s reasoning hinges on Enmund v. Florida, 458 U.S. 782
(1982), and Tison v. Arizona,
481 U.S. 137 (1987). He contends
that these cases require a two-pronged focus in the decision-making
process to impose a death sentence: the defendant’s participation
(conduct) and his intent (state of mind). It follows, Webster
believes, that the court should have instructed the jury to
consider only his conduct in assessing the aggravating factors.
b.
Webster misreads Enmund and Tison. In those cases, the Court
addressed the degree of culpability required of a defendant to
impose a death sentence under the felony-murder doctrine. The
13
Court did require a certain level of culpable conduct and state of
mind. See Enmund, 458 U.S. at 801;
Tison, 481 U.S. at 158. But
Webster takes the requirement too far.
The point of Tison and Enmund is that a death sentence may not
be imposed unless the sentencer has examined the defendant’s “own
personal involvement in the crimes.” Tison, 481 U.S. at 158.
Enmund escaped capital punishment because he “did not kill or
attempt to kill,” nor did he have “any intention of participating
in or facilitating a murder.”
Enmund, 458 U.S. at 798. The
Tisons, on the other hand, failed to obtain a reversal, because
they were sufficiently involved in the crimes. See
Tison, 481 U.S.
at 158.
The gist of these cases is that before a death sentence may be
recommended, the Eighth Amendment requires that the defendant, for
example, killed, inflicted serious bodily injury resulting in
death, or participated in a felony with reckless disregard for
human life resulting in death. The FDPA meets this requirement in
§ 3591, by limiting even the possibility of a death sentence to
those defendants with sufficient culpability. The jury found
Webster guilty of “engaging in conduct intending death to result or
that lethal force would be used” and of “engaging in conduct
knowing that it created grave risk of death.”
Once the constitutionally-required minimum level of culpabil-
ity is found, however, there is no reason why the jury cannot take
14
a broader look at the crime in assessing the aggravating factors;
it need not limit itself exclusively to the defendant’s conduct or
intent. Indeed, an aggravating factor properly may focus on the
defendant, on the circumstances of the crime itself, or on
characteristics of the victim.8
c.
Furthermore, one of the FDPA’s aggravating factors requires a
jury to examine a factor that has nothing to do with the defen-
dant’s conduct or intentSSthe victim’s vulnerability. See
§ 3592(c)(11); cf. Tuilaepa, 512 U.S. at 977. The government
alleged that Lisa Rene’s young age rendered her particularly
vulnerable, hence constituting an aggravating factor. Because the
factor has nothing to do with Webster’s conduct or intent, his
proffered general instruction would have incorrectly stated the
law.
In addition, the charge as a whole substantially covered the
proffered instruction and sufficiently pointed the jury to
Webster’s conduct and intent. The court instructed that “[i]n
considering the question of intent, as it related to aggravating
8
See Tuilaepa v. California, 512 U.S. 967, 976 (1994) (holding that “[t]he
circumstances of the crime are a traditional subject for consideration by the
sentencer,” and may include factors such as the defendant's age); Roberts v.
Louisiana,
431 U.S. 633, 636 (1997) (holding that a murder victim’s status as peace
officer performing regular duties constitutes permissible aggravating factor).
15
factors, you may consider only the intent of the defendant, Bruce
Carneil Webster.” The aggravating factors, other than the victim
vulnerability factor, all pointed to Webster’s conduct. The
instructions explaining the factors repeatedly referred to
Webster's conduct and intent.9 The non-statutory factor Webster
specifically attacks, “the effect of the offense on Lisa Rene and
her family,” focuses on the harm caused by Webster’s “commission of
the offense.” The court did not abuse its discretion in refusing
this instruction; including it would have misstated the law.
2.
Webster objects to the instruction on the “elements of
intent.” He argues that the court failed to require the jury to
select a single element of intent, and to do so unanimously. This
failure allegedly allowed the jury impermissibly to “double-weigh”
a single factorSSintentSSin imposing the death penalty, skewing the
process toward capital punishment.
Although Webster rightly points out the risk of unconstitu-
tionally arbitrary application of the death penalty if the jury is
permitted to double-count aggravating factors, see Jones, 132 F.3d
at 250-51, the court did not err in this regard. The instructions
9
The court's examples included the following: “'Cruel' means that the
defendant intended to inflict a high degree of pain . . .,” “'[d]epraved' means
that the defendant relished the killing or showed indifference . . .,” and “[t]he
government must prove beyond a reasonable doubt that the defendant committed the
offense after substantial planning and premeditation.”
16
on the elements of intent properly followed the language of
§ 3591(a)(2). They stated that the jury’s findings as to the
“elements of intent” had to be unanimous.10 If any doubt remained,
the special findings form that the jury filled out prominently
displayed the word “unanimously” before the “yes” and “no” lines to
be checked for each of the four elements.
In addition, the instructions accurately charged that the jury
was not to weigh the elements of intent in deciding whether to
impose the death penalty. At least one of the elements of intent
needs to be found only as a threshold, or gateway, matter; and only
once at least one is found does the weighing of aggravating factors
and mitigating factors take placeSSwith no further consideration of
the “elements of intent.”
The instructions walked the jury through this sequential
process. The court instructed the jury first to determine whether
one of the requisite elements of intent existed. Then the
instructions set forth the aggravating and mitigating factors.
The instructions nowhere indicated that the jury was to
consider the elements of intent once it began to weigh the
aggravating and mitigating factors. In fact, the jury specifically
was instructed to weigh aggravating and mitigating factors with no
10
The court instructed that “you must as a preliminary matter unanimously
agree that the government has proven beyond a reasonable doubt that the defendant
. . . either . . .,” followed by a list of the four possible intents, and “if you
unanimously find . . .” one or more of the elements of intent, the jury was to
consider aggravating factors.
17
mention of the elements of intent. The special jury form also
segregated the elements of intent from the lists of aggravating and
mitigating factors, and made clear the sequential nature of the
process.
Finally, the court specifically instructed the jury to
consider and weigh only the aggravating and mitigating factors
outlined in the instructions, which did not include the elements of
intent. Assuming, as we must, that the jury followed its instruc-
tions, it did not weigh the elements of intent even once. The
court did not abuse its discretion in denying the proffered
instruction.
3.
a.
In a similar vein, Webster argues that two of the aggravating
factors overlapped, allowing the jury to weigh the same factor
twice. Specifically, one statutory factor read: “the defendant
committed the offense in an especially heinous, cruel and depraved
manner in that it involved torture and serious physical abuse to
the victim, Lisa Rene.” One non-statutory factor addressed “the
effect of the offense on Lisa Rene and her family, namely, that the
commission of the offense caused emotional injury and anguish to
Lisa Rene, and emotional injury, anguish, sorrow, and loss to her
family.” Webster contends that these aggravating factors are
duplicative because “there is no effective distinction between
18
infliction of 'severe mental and physical pain or suffering upon
the victim' (authorized by the court’s instructions for a finding
on the statutory aggravating factor) and the 'emotional injury and
anguish to Lisa Rene' focused upon in the 'non-statutory' aggravat-
ing factor.”
Webster points out that the charge allowed the jury to find
that the statutory factor existed based on a finding of “torture,”
defined to include “mental as well as physical abuse” and the
intent to “inflict severe mental or physical pain or suffering upon
the victim,” of which the victim must be conscious. Webster
alleges that there is no distinction between the statutory factor’s
“severe mental or physical pain or suffering” and the non-statutory
factor’s “emotional injury and anguish.”
b.
Webster failed to object to these instructions, so we review
for plain error. See Jones, 132 F.3d at 243. The court did not
err in instructing on both factors because, although they may rely
on similar underlying facts, they focus on different aspects of the
crime and its results.
The statutory factor directs the jury to consider whether
Webster committed the offense in an especially heinous, cruel, and
depraved manner, hence focusing attention on his actions and
intent. The non-statutory victim impact factor, on the other hand,
19
directs the jury’s attention to the harm caused by Webster to the
victim and her family. This factor looks not to his actions but to
their result. Because one factor addresses directly Webster's
conduct and intent (the “manner” of commission), and the other the
impact of that conduct and intent, the two factors are not
duplicative.
Webster’s reliance on Jones proves unavailing. In Jones, we
found two non-statutory aggravating factors duplicative. One
addressed the victim’s “young age, her slight stature, her
background, and her unfamiliarity with [the locale where the crime
took place],” and another dealt with the victim’s “personal
characteristics” and the impact of the crime. We held the factors
duplicative because “'personal characteristics' . . . necessarily
includes 'young age, slight stature, background, and unfamiliar-
ity.'” Id. at 250.
But the difference between the challenged factors in the case
sub judice proves to be more than semantic. The “heinous, cruel
and depraved” manner in which a crime is carried out, even though
the instructions require that the victim is conscious of the
emotional abuse, does not necessarily include, nor even overlap
with, consideration of the effects of the crime on the victim and
her family. The court did not plainly err in providing both
instructions.
20
4.
a.
Webster argues, and the government concedes, that, by allowing
the jury to consider premeditation with respect to the kidnaping
and not just the murder, the court improperly charged the jury on
the statutory aggravating factor of whether Webster engaged in
“substantial planning and premeditation” of the offense.11 The
special findings form also contained language relating the
premeditation to the kidnaping rather than to causing death. The
statute requires a finding that “the defendant committed the
offense after substantial planning and premeditation to cause the
death of a person,” § 3592(c)(9), obviously directing the premedi-
tation to causing death and not to mere commission of the offense
when the two diverge. The parties disagree, however, as to whether
this constitutes reversible error. We find it does not.
b.
The government argues that Webster invited the erroneous
instruction and now should not be heard to complain. See United
States v. Baytank (Houston), Inc., 934 F.2d 599, 606 (5th Cir.
1991). Although Webster’s requested jury instruction properly
11
The court charged that “[t]o establish the existence of the aggravating
factor of substantial planning and premeditation, the government must prove
beyond reasonable doubt that the defendant committed the offense after
substantial planning and premeditation . . . . The amount of time needed for
premeditation of a kidnapping in which a death occurs depends on the person and
the circumstance.” (Emphasis added.)
21
focused on substantial planning and premeditation for the murder,
the government points to his proposed changes to the special
findings form in which Webster proposed the following language:
“Beyond a reasonable doubt and looking only to the conduct and
intentions of the defendant, Bruce Carneil Webster, he, Bruce
Carneil Webster, committed the killing of Lisa Rene after substan-
tial planning and premeditation to commit the kidnaping of Lisa
Rene.” The government surmises that the court adopted this
language in formulating the instructions and special issue.
Although it is possible that Webster’s misstatement influenced
the instructions, Webster also proffered instructions correctly
applying the substantial planning and premeditation to the killing
rather than to the kidnaping. Given the inconstant way in which
Webster addressed the issue, we cannot conclude he invited the
error.
c.
The error notwithstanding, we affirm the sentence. The FDPA
provides that a “court of appeals shall not reverse or vacate a
sentence of death on account of any error which can be harmless,
including any erroneous special finding of an aggravating factor,
where the Government establishes beyond a reasonable doubt that the
error was harmless.” § 3595(c)(2)(C).
Our duty when the jury finds an invalid aggravating factor is
to strike the factor and either reweigh the remaining factors
22
against the mitigating evidence or apply harmless error review.
See Jones, 132 F.3d at 251; see also Clemons v. Mississippi,
494 U.S. 738, 741 (1990). If we choose to reweigh the evidence, we
must determine what the jury would have done absent the invalid
aggravator. See
Jones, 132 F.3d at 251.
In conducting a harmless error review, on the other hand, we
may inquire into whether, beyond a reasonable doubt, either (1) the
death sentence would have been imposed had the invalid aggravating
factor been properly defined in the jury instructions or (2) the
death sentence would have been imposed absent the invalid aggravat-
ing factor. See id. at 252. If the government establishes that
the error is harmless beyond a reasonable doubt, we may not reverse
or vacate the death sentence unless such error denies constitu-
tional rights. See § 3595. We may decide which of the three
methods to apply, although “[i]t matters not which standard of
review an appellate court chooses to apply because all three
standards lead to the same conclusion.”
Jones, 132 F.3d at 252.
The parties expend a great deal of effort arguing whether the
jury would have found the factor had it been accurately stated.
The effort is wasted, however, because the sentence may be affirmed
without that aggravating factor. We opt to apply the second method
of harmless error review, and inquire into whether the sentence
23
would have been imposed absent the invalid aggravator.12
After removing the offensive statutory aggravating factor, we
are left with two statutory factors (that Webster committed the
offense in an especially heinous, cruel, or depraved manner, and
that Lisa Rene was vulnerable), two non-statutory aggravating
factors (Webster’s future danger to others, and the effect of the
crime on Lisa Rene’s family), and nine mitigating factors found to
exist by varying numbers of jurors. The government contends, and
we agree, that the facts supporting the “especially heinous, cruel
or depraved” factor alone, when weighed against the extant
mitigating factors, justify a finding that the jury still would
have imposed a death sentence. The addition of the other three
factors merely buttresses the conclusion.13
Furthermore, we fail to see why the jury would have placed
much emphasis on the invalid factor as it was improperly defined
and charged. The import of substantial planning and premeditation
to commit the offense of kidnaping pales in comparison to the
brutal nature of Webster’s actions and the suffering Lisa Rene must
have felt as a result, so we do not think the jury would have
placed significant weight on the invalid factor relative to the
12
We also find that the government has established beyond a reasonable
doubt that the jury would have found the aggravating factor if the instructions
properly had charged the jury on it; thus we can affirm under the first harmless
error review, as well.
13
Webster asserts that we should give the aggravating factor dealing with
victim vulnerability little weight because the Hall jury did not find it. But
Webster’s jury did, and we refuse to question that determination.
24
others.
Finally, the paltry mitigating factors that the jury found
fail to indicate that it placed much weight on countervailing
factors. No juror found that Webster had talents, capabilities, or
qualities of some value to society or that he could be of some
productive value in a prison setting. Only two jurors believed
that he even could be controlled in a prison setting, and only two
found he likely would adapt to prison. The jury found only one
factor unanimously: Webster suffered from physical or emotional
abuse or parental neglect during his upbringing; and yet no juror
believed that this abuse caused significant impairment of Webster’s
ability to appreciate the wrongfulness of his conduct or to conform
his conduct to the requirements of the law. The government has
proven beyond a reasonable doubt that the jury would have imposed
the death sentence absent the invalid aggravating factor, so its
inclusion was harmless error.14
5.
Webster contends that the court erred when it refused to
submit several nonstatutory mitigating factors.15 Just this past
14
We see no reason why the inclusion of the invalid factor rises to the
level of a denial of constitutional rights that would require vacating the
sentence.
15
The rejected factors are:
8. The defendant . . . suffers from a mental disease, illness,
(continued...)
25
Term, however, in Buchanan v. Angelone, 118 S. Ct. 757, 761 (1998),
the Court squarely held that, although “the sentencer may not be
precluded from considering, and may not refuse to consider, any
constitutionally relevant mitigating evidence,” a death penalty
scheme “may shape and structure the jury’s consideration of
mitigation so long as it does not preclude the jury from giving
effect to any relevant mitigating evidence.” The Court further
explained that its “decisions suggest complete jury discretion is
constitutionally permissible.”
Id.
The standard for reviewing jury instructions on mitigation is
“whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration
of constitutionally relevant evidence.”
Id. (quotation and
citation omitted). Indeed, in Buchanan, refusing to submit four
statutory mitigating factors during the penalty phase of the
capital trial fell short of constitutional error.
Many of the mitigating factors presented to the jury touched
on the ones Webster complains were omitted. To ensure that the
15
(...continued)
defect, or personality disorder; . . .
13. The defendant . . . has personal qualities which are worth
saving; . . .
14. The defendant . . ., due to circumstances of intellectual
impairment, and dysfunctional family background, and upbringing,
should be extended mercy; . . .
21. The defendant . . ., if not sentenced to death, will be
sentenced to life in prison without any possibility of parole or
release[.]
26
jury considered all potentially mitigating evidence, the special
findings form included a catch-all mitigation factor. The charge
specifically instructed the jury that it “must consider” any other
mitigating factors it found, “whether or not specifically argued by
defense counsel.”
The instructions left no room for the jury to ignore constitu-
tionally relevant evidence. The court neither committed constitu-
tional error nor abused its discretion in rejecting the mitigating
factors.
6.
Webster avers that the instructions misstated the law by not
requiring, once one or more jurors had found a mitigating factor to
exist by a preponderance of the evidence, that all jurors consider
a mitigating factor in weighing aggravating and mitigating
factors.16 Webster misreads the statute; although any one juror may
find and weigh a mitigating factor, the others may make their own
determinations with respect to each mitigator.
16
The court charged that
[a] finding with respect to a mitigating factor may be made by any
one or more of the members of the jury, and any member who finds the
existence of a mitigating factor may consider such factor
established regardless of whether any other jurors agree that such
mitigating factor has been established. . . . In determining
whether a sentence of death is appropriate, each of you must weigh
in your own mind, any aggravating factor or factors that the jury
unanimously finds to exist beyond a reasonable doubt—whether
statutory or non-statutory—against any mitigating factor or factors
that you individually find to exist by a preponderance of the
evidence.
27
Webster relies on § 3593(e), which reads, in part, “the jury
. . . shall consider whether all the aggravating factor or factors
found to exist sufficiently outweigh all the mitigating factor or
factors found to exist to justify a sentence of death.” Webster
reads this provision to say that once any juror finds a mitigating
factor, all jurors must weigh the factor. But the quoted language
does not require Webster’s reading; the provision lacks any
modifier indicating who must find or weigh the mitigating fac-
tor(s).
Reading the section as a whole, we conclude that Congress did
not intend Webster’s reading. The prior subpart states that “[a]
finding with respect to a mitigating factor may be made by 1 or
more members of the jury, and any member of the jury who finds the
existence of a mitigating factor may consider such factor estab-
lished for the purposes of this section regardless of the number of
jurors who concur that the factor has been established.”
§ 3593(d). Reading the two sections in pari materia, we reason
that the language does not contemplate forcing all jurors to
consider a mitigator when any one or more finds it to exist.
Rather, each juror may consider a factor regardless of whether
others concur. In addition, it would be nonsensical for Congress
to require a juror to weigh a factor that he or she does not
believe the evidence warrants.
Webster, in an apparent attempt to avoid this last problem,
28
argues that “[o]nce a mitigating factor has been established, then
the sentencer must consider it, even though it may be assigned
whatever weight it is deemed to deserve.” But, naturally, those
jurors who did not find the mitigating factor to exist would assign
it no weight, which does not differ from the result Webster hopes
to avoid, i.e., not requiring them to consider it at all. Because
the plain language of the statute does not compel every juror to
weigh each mitigating factor found by at least one juror, the
court did not abuse its discretion in denying the instruction that
would have required it.
B.
1.
The indictment alleged, inter alia, that Webster and others
violated 18 U.S.C. § 1201(a), proscribing kidnaping. Pursuant to
that indictment, the court charged the jury that to convict, it had
to find beyond a reasonable doubt the element “[t]hat the defendant
held such person for ransom, reward, or some other benefit that the
defendant intended to derive from the kidnapping.” The court
further charged that “a benefit is any legal or illegal object of
the kidnaping which a perpetrator might consider sufficient motive
to induce him to undertake the kidnaping. The government has the
burden of proving whatever benefit alleged by proof beyond a
reasonable doubt.”
29
Webster objects to this instruction on the ground that,
because the indictment failed to allege any specific benefit other
than ransom or reward, the jury should not be able to consider any
other benefit, and because the instruction fails to require
unanimity on the benefit found. The government responds that the
benefit is not a specific element of the crime, so it need not
allege one in the indictment, nor does one need to be specified in
the jury instructions; furthermore, unanimity is not required.
2.
We review alleged errors in jury instructions for abuse of
discretion; a conviction will not be reversed for an alleged error
in the instructions unless, when viewed in their entirety, they
failed to state the law correctly. Jones, 132 F.3d at 243. These
instructions did not fail to state the law correctly.
a.
The parties agree that the kidnaping statute protects those
who have been kidnaped and held for any reason. Before 1934, the
Federal Kidnaping Act applied only if the captive was held for
ransom or reward. See United States v. Healy, 376 U.S. 75, 81
(1964). Congress amended the Act in 1934 to encompass persons held
“for ransom or reward or otherwise.”
Id. In Gooch v. United
States,
297 U.S. 124, 128 (1936), the Court interpreted the “or
30
otherwise” amendment to encompass any benefit a captor might
attempt to receive. Subsequently, in Healy, the Court held the Act
is not limited to kidnapings for an ultimately illegal purpose.17
Consistent with the Court’s pronouncements, this court held in
Clinton v. United States, 260 F.2d 824, 825 (5th Cir. 1958), that
an indictment need not include the words “for ransom, reward or
otherwise.” The panel reasoned that the phrase would add nothing
“because obviously 'otherwise' comprehends any purpose at all.”
Id.
Webster asserts that we overruled Clinton in United States v.
Osborne,
68 F.3d 94 (5th Cir. 1995). In Osborne, we held that the
government must prove four elements of the kidnaping offense:
“1) the transportation in interstate commerce; 2) of an uncon-
senting person who is 3) held for ransom, reward, or otherwise; and
4) the acts were done knowingly and willingly.”
Id. at 100.
According to Webster, the third element requires the government to
plead in the indictment and prove up at trial, and the court to
instruct the jury on, some specific purpose(s) for the kidnaping.
Osborne does not compel this conclusion. We certainly did not
purport to overrule Clinton’s holding that the indictment need not
include a benefit; the issue was not before us in Osborne. And
nothing in Osborne contravenes Clinton. More accurately, the
17
See Healy, 376 U.S. at 82 (stating that “we find no compelling correlation
between the propriety of the ultimate purpose sought to be furthered by a kidnaping
and the undesirability of the act of kidnaping itself”).
31
gravamen of the third element is the act of holding, not the
benefit. If “otherwise” can include any purpose, adding it to the
indictmentSSirrespective of whether it specifies the “otherwise”
benefitSSadds nothing. This view consists with that of our sister
circuits.18
18
See United States v. Adams, 83 F.3d 1371, 1372-74 (11th Cir. 1996)
(indictment sufficient that alleged only that the victim was “held”); United
States v. Martell,
335 F.2d 764, 766 (4th Cir. 1964 (same); Hayes v. United
States,
296 F.2d 657, 665-67 (8th Cir. 1961) (same); United States v. Atchison,
524 F.2d 367, 369-71 (7th Cir. 1975) (indictment sufficient that merely alleged
victim was held for “ransom, reward, or otherwise”); United States v. Bentley,
310 F.2d 685, 685 (6th Cir. 1962) (same); Hall v. United States,
410 F.2d 653,
659-60 (4th Cir. 1969) (same); Loux v. United States,
389 F.2d 911, 914-16 (9th
Cir. 1968) (same).
32
b.
Webster points out that in many of the above-mentioned cases,
including Clinton, one reason the court gave for finding the lack
of specificity unproblematic is that the defendant can request a
bill of particulars to clarify on what benefit the government will
rely. Webster made such a request, which the court denied; he
complains that this prevented him from presenting an effective
defense. We fail to see how.
Although the government must plead and prove that the
defendant held the victim for some purpose, the exact nature of
that purpose is inconsequential. Indeed, as noted, any purpose
will do. In arguments to the jury, the government mentioned
several possible benefits, including retribution and revenge,
sexual gratification, greed, and that Lisa Rene knew too much; all
are valid benefits. In light of this breadth, Webster’s claim that
the failure to specify a benefit in the indictment or jury
instructions denied him a defense is vapid.
If any benefit will do, the only possible defense is that the
defendant obtained absolutely no benefit at allSSand no pleading or
jury instruction is needed to prepare the defendant for this
defense. Accordingly, we decline to require specificity in the
factual basis of the benefit.19
19
Cf. United States v. Barnhart, 889 F.2d 1374, 1378 (5th Cir. 1989) (holding
factual basis for falsity in perjury indictment not required).
33
c.
The only circumstance under which a jury might need to be
instructed on specific potential benefits is if the jurors must
agree unanimously on what benefit the defendant derived; if that is
the case, failure to instruct on particular benefits (as well as
the failure to instruct on the required unanimity, of course) might
constitute reversible error. On the other hand, if unanimity is
not required, an instruction on specific benefits proves pointless,
because each juror can pick a benefit from among the facts
presented at trial.
The question, then, should be framed as follows: If some
jurors believed that Webster held Lisa Rene for one purpose, e.g.,
sexual gratification, and others believe for another benefit, e.g.,
revenge for a drug deal gone bad, does that disagreement, that lack
of unanimity, evidence a reasonable doubt that Webster held Lisa
Rene for some benefit? The inquiry is governed by United States v.
Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993).
In Correa-Ventura, we analyzed whether a jury needed to reach
unanimous consensus on which of several weapons seized from the
defendant’s apartment had been used in the commission of a drug
trafficking offense. In the process of holding factual unanimity
was not required, we explicated the case-by-case analysis we must
follow here. See id. at 1081.
As we explained, the unanimity rule ensures that the jury has
34
found guilt beyond reasonable doubt, and disagreement as to
critical facts may reflect such doubt. Id. at 1078. But not all
facts require unanimity. To determine which ones do, we examine
“[s]tatutory language and construction, legislative intent,
historical treatment of the crime by the courts, duplicity concerns
with respect to defining the offense, and the likelihood of jury
confusion in light of the specific facts presented.”
Id. at 1082.
After considering these factors, we conclude that the jury need not
concur on the benefit the defendant derived from holding the
kidnaping victim.
Looking at the language of the element, we see that the actus
reus proscribed is the “holding” of a victim. The benefit, “for
ransom, reward, or otherwise,” merely adds purpose to the act of
holding. Looking to the offense as a whole, we see that the
essential elements, stripped to the bones, are transporting and
holding against consent with a mens rea. The “interstate commerce”
serves as a mere jurisdictional hook, and the benefit language
simply provides guidance to a jury in understanding the crimeSSwhy
the defendant may have committed the offense. The essence of
kidnaping is a non-consensual transporting and holding, done
wilfully or knowingly; the language in no way implies that the
benefit serves an important function in singling out the guilty
from the innocent or in deterring future conduct.
The history of the offense also points to the insubstantial
35
role of the benefit. The Supreme Court has admonished that
Congress added the “or otherwise” language because “ransom or
reward” proved too narrow; Congress desired to expand the statute
by eliminating the limiting effect that the phrase had. See Gooch,
297 U.S. at 128;
Healy, 376 U.S. at 81-82. We should not circum-
scribe the statute’s reach, once again giving the phrase a
narrowing function, by requiring factual concurrence among the
jurors.
Interpretive caselaw and the issue of duplicative convictions
also support rejecting a unanimity requirement. As cited above, we
and our sister circuits always have emphasized the breadth of the
benefit phrase. We are aware of no case in which a court has
limited the kidnaping offense through the benefit requirement.
In addition, concerns regarding duplicative convictions have
not arisen. Webster does not argue that a lack of concurrence on
the factual predicate of a benefit risks duplicative convictions
for a single act of holding and transporting. We know of no case
in which a defendant was convicted of or even charged with multiple
kidnaping offenses of the same victim because it was done for more
than one benefit.
Finally, the circumstances of the instant case do not justify
vacating the sentence and requiring unanimity on the benefit.
Several benefits were argued to the jury. There was sufficient
evidence from which a juror could find that Webster was motivated
36
by the lure of those benefits. Indeed, if unanimity had been
required, it is likely that the jury unanimously would have found
several benefits garnered by Webster, including revenge and sexual
gratification. The court provided a general unanimity instruction,
focusing the jury’s attention on the need to agree on the essential
elements of the crime. Unanimity on the factual basis of the
benefit is not required, and the court did not abuse its discretion
in refusing Webster’s instruction.20
C.
Webster contends that his arrest was unconstitutional and that
the fruits obtained from it should have been suppressed. More
specifically, he argues that the court erred by failing to suppress
the fruits of the search of Webster and his automobile following
his arrest, that any purported consent given by him was nullified
by the illegality of the arrest, and that the court erred by
failing to suppress his statements following his arrest. It
readily becomes apparent that Webster’s arguments hinge on his view
that the arrest was unconstitutional. Because we find both this
arrest and subsequent police conduct fully constitutional, the
court properly admitted the fruits of the search and the subsequent
20
Cf. Correa-Ventura, 6 F.3d at 1076-86 (no unanimity requirement as to
particular firearm used in 18 U.S.C. § 924(c) prosecution); United States v. Linn,
889 F.2d 1369, 1374 (5th Cir. 1989) (holding that jury need not be unanimous as to
identity of five individuals in prosecution for continuing criminal enterprise);
United States v. Sutherland,
656 F.2d 1181, 1202 (5th Cir. Unit A Sept. 1981) (no
unanimity requirement as to overt acts in multiple-object conspiracy).
37
statements.
1.
The issues of probable cause and reasonable suspicion, which,
in this case, control the constitutionality of Webster’s arrest,
are mixed questions of law and fact. See United States v.
Tompkins, 130 F.3d 117, 120 (5th Cir. 1997), cert. denied,
118 S. Ct. 1335 (1998). So, we review the historical facts for
clear error and ultimate legal determinations de novo.
Id.
Because Webster does not challenge the findings of fact, our review
is limited to a de novo review of the legal conclusions.
2.
The Fourth Amendment requires that all arrests be based on
probable cause. See U.S. CONST. amend. IV; Gerstein v. Pugh,
420 U.S. 103, 111 (1975). Probable cause is “defined in terms of
facts and circumstances 'sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an
offense.'”
Gerstein, 420 U.S. at 111 (quoting Beck v. Ohio,
379 U.S. 89, 91 (1964)) (alteration in original). Based on this
standard, the police had probable cause to arrest Webster.
The day before the arrest, police took a written statement
from Beckley, Webster’s partner-in-crime. This inculpatory
statement suggested Webster’s criminal involvement in the kidnaping
38
(and ultimate murder) of Lisa Rene. Such statements taken from an
accomplice give rise to probable cause to arrest those so impli-
cated. United States v. Barfield, 507 F.2d 53, 58 (5th Cir. 1975).
Matters admittedly are complicated by the fact that, although
the police had probable cause to arrest Webster following Beckley’s
statements, they did not know exactly who Webster was. That is,
the issue of identification comes into play, as the police must
have had probable cause to believe that the man whom they arrested
was indeed Webster. Based on the totality of the circumstances, we
find that such probable cause existed.
Beckley identified Webster as “B-Love” and described him as “a
black dude about 20 years old, about 5'9", 150-160 pounds, black
low cut hair, brown skinned.” Beckley explained how he and B-Love
were involved in the sale of marihuana and how the kidnaping of
Lisa Rene arose from Beckley and Webster’s drug transactions.
Beckley told the police that he and B-Love took Lisa Rene to
a cheap motel, tying her to a chair in a room that ended in the
digits “13.” Beckley led Detective Ford and FBI Special Agent
Floyd to this motel, called the Pine Bluff Motel. He took them to
room 513, which he identified as the room in which he and B-Love
had taken Rene. Floyd interviewed the hotel manager, obtaining a
receipt for room 513 in the name of Bruce Webster.
FBI Special Agent Mason and Agent McCall were assigned to
assist Ford and Floyd by going to the motel to help gather
39
evidence. They were told to be on the lookout for “B-Love,” who
had kidnaped Lisa Rene and kept her in room 513. Mason and McCall
questioned a security guard about the guests of room 513 and were
told that a local man named Bruce Webster had stayed in that room,
along with three other black men, on the dates in question. The
guard added that Webster went by the nickname of “B-Love” and
described him as “a black male, approximately 5'8" tall and 150
pounds,” seen wearing a black leather cap and driving an older
American, dark blue, square-looking sedan. The guard also told the
agents that Webster was a drug dealer.
Later that day, the agents observed a black man driving an
older American, dark blue, square-looking car and wearing a black
leather cap; a woman was in the passenger seat. The agents
signaled the suspect to stop; in response, the suspect sped up,
apparently attempting to flee. The agents pursued, and when one of
them shouted “B-Love, this is the F.B.I. Stop where you are and
put your hands up,” the driver stopped. The driver was, of course,
Webster, also known as B-Love. At that point, the police placed
Webster on the ground and handcuffed him.
The agents had probable cause to arrest Webster for kidnaping.
Although they did not have personal knowledge of his specific
wrongdoings, they are permitted to act on the probable cause
determination of others in their department. See Charles v. Smith,
894 F.2d 718, 724 (5th Cir. 1990).
40
The security guard’s description of B-Love was sufficiently
detailed and accurate to provide the police with probable cause to
believe that the man they were arresting was B-Love.21 The
reliability (in terms of veracity) of the guard, as a disinterested
witness, is presumed. See United States v. Hernandez, 825 F.2d
846, 849 (5th Cir. 1987).
Moreover, “the sufficiency of a particular description is
largely a factual matter,” so we give greater deference to the
district court’s finding of probable cause under these circum-
stances. See Pollack, 739 F.2d at 190. And in doing so, we must
recall that “sufficient probability, not certainty, is the
touchstone of reasonableness under the Fourth Amendment.”22
3.
Even if the police initially lacked probable cause to arrest
Webster, they most certainly had reasonable suspicion to stop him.
See Terry v. Ohio, 392 U.S. 1, 22-24 (1968); United States v.
Watson,
953 F.2d 895, 897 (5th Cir. 1992). Their actions following
21
See, e.g., United States v. Pollack, 739 F.2d 187, 190 (5th Cir. 1984)
(holding that probable cause existed to arrest individual described as “a white
male, approximately 50 years old, 5'8 or 5'9, with a short, stocky, medium build,
glasses, and a receding hairline, wearing a dark blue or black coat, a light colored
shirt and blue jeans”); United State v. Maryland,
479 F.2d 566, 569 (5th Cir. 1973)
(declaring that probable cause existed to arrest individuals described as “four
Negroes, two men and two women . . . traveling in a 'black and white vinyl over
green Cadillac'”).
22
Hill v. California, 401 U.S. 797, 804 (1971) (holding that probable cause
existed even though the police arrested the wrong person because of an imperfect
description).
41
this legitimate stop were likewise constitutional, so all the
evidence and statements gathered from Webster are admissible.
Reasonable suspicion is a standard lower than probable cause.
Terry, 392 U.S. at 16-22;
Watson, 953 F.2d at 897 n.1. Reasonable
suspicion sufficient to justify a Terry stop exists when law
enforcement officials are able to point to “specific and articul-
able facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.”
Terry, 392 U.S.
at 21. The matching description of Webster, taken together with
the guard’s identification of him as a drug dealer and his presence
at the motel, satisfy this test of reasonable suspicion.
After stopping Webster, the police were within their constitu-
tional authority to pat him down for their personal safety. Terry,
392 U.S. at 27-28; United States v. Michelletti,
13 F.3d 838,
840-41 (5th Cir. 1994) (en banc). They also were within their
authority to handcuff Webster, even if probable cause to arrest him
was lacking. See United States v. Sanders,
994 F.2d 200, 205-07
(5th Cir. 1993).
In addition, the police acted constitutionally when they asked
Webster whether he had any needles in his pockets that could injure
them during their pat down; such questioning, needed to protect the
officers, does not constitute interrogation under Miranda v.
Arizona, 384 U.S. 436 (1966). See New York v. Quarles,
467 U.S.
649, 655 (1984). Accordingly, Webster’s response, indicating that
42
he had marihuana in his pocket, was not obtained in violation of
Miranda and was fully admissible.
Webster’s admission that he possessed marihuana gave the
police probable cause to arrest him, at the very least for
narcotics possession. This renders unproblematic the lengthy
(1½-hour) detention of which Webster complains.
Lengthy detentions following Terry stops are often problem-
atic, because they serve to escalate an investigatory stop, which
can be initiated with only reasonable suspicion, into an arrest,
which requires probable cause.23 In this case, however, the
officers’ reasonable suspicion developed into probable cause when
Webster indicated that he possessed drugs, and when the police
uncovered the key to room 513 on his person. Consequently, the
conversion of Webster’s investigatory stop into an arrest is both
proper and to be expected. Adams, 407 U.S. at 148-49. The search
of Webster’s person was in order as a valid search incident to a
valid arrest. United States v. Edwards,
415 U.S. 800, 802 (1974).
Next, the police searched Webster’s car, revealing two guns
and other incriminating items. There are two valid, independent
justifications for this police action, although only one is needed
to affirm.
First, as the search of Webster’s person revealed a key to
23
See Adams v. Williams, 407 U.S. 143, 146 (1972); see also California v.
Beheler,
463 U.S. 1121, 1123-25 (1983) (holding that whether an individual has been
arrested, in the constitutional sense, is an objective, legal determination based
on the circumstances of his restraint).
43
room 513, police now had undisputable probable cause to arrest for
the kidnaping. Therefore, it was reasonable for the police
thoroughly to search Webster’s car for evidence of the kidnaping.
See California v. Acevedo, 500 U.S. 565, 579-80 (1991).
Second, Webster orally consented to this search. See
Schneckloth v. Bustamonte, 412 U.S. 218, 235 (1973). Such consent
operates as a waiver of Fourth Amendment rights if, by a preponder-
ance of the evidence, it is found to have been given voluntarily
under the totality of the circumstances. See
id. at 235-40; United
States v. Cooper,
43 F.3d 140, 144 (5th Cir. 1995). Factors to
consider in making this determination are the coerciveness of
police procedures, the extent of the defendant’s cooperation, his
awareness of his right to refuse consent, his education and
intelligence, and his belief as to whether incriminating evidence
will be found.
Cooper, 43 F.3d at 144.
Webster’s experience in police procedure, resulting from his
lengthy criminal record, belies the assertion that he was unaware
of his rights or uneducated as to the situation he faced. And the
fact that the police asked him not once but twice for permission to
search his automobile (the second time being when they came to the
trunk of the car) undercuts the argument that the police were
coercive in their request. Under these facts, Webster’s consent
was freely given.
44
D.
Webster argues that the court erred by denying his motion to
dismiss the government’s notice to seek the death penalty based on
racial discrimination in the charging decision and by denying his
discovery request on this issue. To support the motion to dismiss,
Webster offered an affidavit showing that 66% of federal death
penalty cases involved black defendants. The court denied both the
motion to dismiss and the motion for discovery and an evidentiary
hearing, noting that Webster had failed to make out the requisite
prima facie case that he had been singled out for prosecution but
others similarly situated were not prosecuted.
1.
We review constitutional claims de novo. See Estrada-Trochez,
66 F.3d 733, 735 (5th Cir. 1995). A district court’s decisions in
overseeing criminal discovery, however, receive great deference on
appeal. Alleged errors are subject to review for abuse of
discretion, and we reverse only if a defendant establishes
prejudice to substantial rights. United States v. Mora,
994 F.2d
1129, 1138 (5th Cir. 1993).
2.
a.
The decision to prosecute one person and not another is a
45
proper exercise of executive discretion with which we are reticent
to interfere. United States v. Hoover, 727 F.2d 387, 389 (5th Cir.
1984). To establish that the government has engaged in unconstitu-
tionally discriminatory selective prosecution, a defendant must
make a two-pronged showing.
First, he needs to make out a prima facie showing that he has
been singled out for prosecution but others similarly situated of
a different race were not prosecuted. See United States v.
Armstrong, 517 U.S. 456, 465 (1996); United States v. Sparks,
2 F.3d 574, 580 (5th Cir. 1993);
Hoover, 727 F.2d at 389. In
Armstrong, the Court stated, “The vast majority of Courts of
Appeals require the defendant to produce some evidence that
similarly situated defendants of other races could have been
prosecuted, but were not, and this requirement is consistent with
our equal protection case law.”
Armstrong, 517 U.S. at 469.
Second, he must demonstrate that the discriminatory selection of
him for prosecution is invidious or in bad faith, in that it rests
on such impermissible considerations as race, religion, or the
desire to prevent his exercise of his constitutional rights. See
Sparks, 2 F.3d at 580;
Hoover, 727 F.2d at 389.
In making these requisite showings, the defendant must rebut
the presumption that the government made its decision to prosecute
in good faith and in a nondiscriminatory manner. Hoover, 727 F.2d
at 389. To dispel the presumption of prosecutorial good faith, “a
46
criminal defendant must present 'clear evidence to the contrary.'”
Id. at 465 (quoting United States v. Chemical Found., Inc.,
272 U.S. 1, 14-15 (1926)).
A defendant is not automatically entitled to an evidentiary
hearing to make the required showing. He must first present facts
“sufficient to create a reasonable doubt about the constitutional-
ity of [his] prosecution” resulting from selective prosecution.24
Mere statistical evidence of racial disparity usually will be
per se insufficient to support an inference of any “unacceptable
risk” of racial discrimination in the administration of capital
punishment. McCleskey v. Kemp, 481 U.S. 279, 294-97 (1987).
b.
Webster has failed to make a sufficient showing that he was
singled out for selective prosecution. He has not even attempted
to show that other similarly situated individuals committing
similar acts were not prosecuted. Such a showing would be
challenging under the FDPA, as no one yet had been prosecuted under
that Act when Webster was indicted. But Webster also did not
attempt to make the showing under other federal death penalty acts.
Webster relies primarily on his statistical evidence, which
24
United States v. Jennings, 724 F.2d 436, 445-46 (5th Cir. 1984) (finding
bare generic allegations concerning the selective prosecution of racial groups
insufficient to justify an evidentiary hearing); United States v. Ramirez,
765 F.2d
438, 440 (5th Cir. 1985) (holding “conclusional allegations of impermissible motive
are not sufficient” to demonstrate the government acted in bad faith).
47
under McCleskey fails to rebut the good faith presumption. Webster
cites McCleskey, 481 U.S. at 293 n.12, which may allow finding a
constitutional violation (or prima facie finding thereof) in very
limited circumstances if the data presents a “stark” enough
picture. But the 66% figure Webster provides is no more stark than
were the statistics in the Baldus Study at issue in McCleskey.25
Webster also argues that counsel would have shown that they
had requested that the Department of Justice consider this racial
disproportionality as a factor mitigating against authorization of
the death penalty in this case, and the government refused because
of “the purported 'race neutrality' required by DOJ policies in
capital charging decisions.” Likewise, Webster contends that
“failure of the Government to 'affirmatively act' to overcome such
racially discriminatory application” of the death penalty “amounted
to purposeful discrimination.” This, however, fails to establish
the discriminatory purpose required under the second prong of the
selective prosecution test.
Discriminatory purpose “implies that the decisionmaker . . .
selected or reaffirmed a particular course of action at least in
part 'because of,' not merely 'in spite of,' its adverse effects
upon an identifiable group.” Id. at 291 (quotation omitted). The
25
Baldus reported that Georgia prosecutors sought the death penalty in 70%
of the cases involving black defendants and white victims, 32% of the cases
involving white defendants and white victims, 15% of the cases involving black
defendants and black victims, and 19% of the cases involving white defendants and
black victims. See McCleskey, 481 U.S. at 287.
48
above evidence, at best, shows action in spite of a putatively
adverse discriminatory effect and not purposeful discrimination.
Furthermore, a non-discriminatory explanation for seeking the
death penalty against Webster is evident on the facts: It is
justified by the objective circumstances of the crime and the
sufficiency and availability of evidence to prove the required
elements under the law. These are the precise considerations the
Supreme Court identified as proper and legitimate grounds for such
a decision. See id. at 307 n.28. The verdict attests to the
objective considerations, and Webster has made no effort to rebut
them.
3.
Webster’s attempt to obtain discovery on the issue stands on
equally faulty ground. In Armstrong, the Court addressed the issue
of the showing necessary to obtain discovery on a claim of
selective prosecution based on racial discrimination. The Court
first quickly disposed of any claim for discovery under FED. R.
CRIM. P. 16, stating, “We hold that Rule 16(a)(1)(C) authorizes the
defendants to examine Government documents material to the
preparation of their defense against the Government’s case-in-
chief, but not to the preparation of selective-prosecution claims.”
Armstrong, 517 U.S. at 463.
Webster contends that a defendant “necessarily has a lesser
49
burden when seeking discovery to aid in proving the elements of a
prima facie case of selective prosecution.” The Court, however,
held squarely against Webster’s assertion, stating, “The justifica-
tion for a rigorous standard for the elements of a selective
prosecution claim thus require a correspondingly rigorous standard
for discovery in aid of such a claim.” Id. at 468.
Finally, Webster argues that he requested the discovery also
to establish mitigating evidence that a death sentence would
propagate a racially discriminatory application of the federal
death penalty. Webster makes no argument other than that a
defendant is entitled to present any mitigating evidence, which he
was denied by denial of the discovery request.
The government aptly responds that the Armstrong discovery
rule for selective prosecution applies, requiring a prima facie
showing. Any other rule would allow circumvention of Armstrong’s
requirements.
Furthermore, the Court in Armstrong justified its high
standard for discovery in selective prosecution claims, explaining:
Judicial deference to the decisions of [prosecutors]
rests in part on an assessment of the relative competence
of prosecutors and the courts. Such factors as the
strength of the case, the prosecution’s general deter-
rence value, the Government’s enforcement priorities, and
the case’s relationship to the Government’s overall
enforcement plan are not readily susceptible to the kind
of analysis courts are competent to undertake. It also
stems from a concern not to unnecessarily impair the
performance of a core executive constitutional function.
Examining the basis of a prosecution delays the criminal
proceeding, threatens to chill law enforcement by
50
subjecting the prosecutor’s motives and decisionmaking to
outside inquiry, and may undermine prosecutorial effec-
tiveness by revealing the Governments enforcement policy.
517 U.S. at 465 (citations and quotations omitted). The competency
concerns apply a fortiori when lay jurors are asked to analyze
prosecutorial decisions.
In addition, Webster had the statistical evidence regarding
the allegedly discriminatory manner in which the modern federal
death penalty has been applied and yet chose not to attempt to
introduce it during the sentencing hearings; this may indicate his
lack of confidence in this evidence’s mitigating value.
E.
Webster contends that the district court erred in denying his
motion for post-trial discovery on the issue of whether one of the
case’s lead law enforcement investigators, Special Agent Floyd, had
“purchased” the testimony of a prosecution witness, John Clay, by
allowing a conjugal visit at a private residence in violation of
agency guidelines. Webster argues that if discovery had verified
this claim, it would have impeached the testimony of Clay and
Floyd, thus constituting grounds for a new trial.
1.
We review discovery rulings for abuse of discretion. United
States v. Dukes, 139 F.3d 469, 476 (5th Cir.), cert. denied, 119 S.
51
Ct. 215 (1998); United States v. Johnson, 127 F.3d 380, 391 (5th
Cir. 1997), cert. denied,
118 S. Ct. 1174 (1998). We will order a
new trial based on discovery violations only where the party
demonstrates prejudice to his substantial rights.
Dukes, 139 F.3d
at 476. To prevail, then, Webster must establish that “there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different
. . . . [A] reasonable probability is shown where the non-
disclosure 'could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the jury verdict.'”
United States v. Visher,
106 F.3d 622, 634 (5th Cir. 1997) (quoting
Westley v. Johnson,
83 F.3d 714, 725 (5th Cir. 1996), cert. denied,
117 S. Ct. 773 (1997)).
2.
The government introduced testimony from Clay during the
rebuttal portion of the penalty phase. Clay, who had charges
pending against him for drug dealing that included the possibility
of a life sentence, was taken to the holdover cell on the second
floor of the federal courthouse. When he arrived from the
Mansfield Correctional Enforcement Center, Webster was present in
the holdover cell. Webster then left and came back and began
jumping around, saying that “there has got to be a God” because his
trial had been set to a later day. Clay testified that Webster
52
also preached a thirty-minute sermon, “quot[ing] scriptures out of
the Bible that has to be photographic in his mind because it was so
accurate.” Clay and Webster conversed in “pig latin” after Webster
started using it. Clay demonstrated pig latin for the jury.
Webster then told Clay about a “master mind plan” to arrange
for each of them to have sexual contact with a female inmate by
manipulating the visiting process. Before the two men were taken
back to Mansfield, Webster told Clay that he would write a letter
to him in pig latin to explain the plan. Webster in fact sent such
a letter to ClaySSthe letter was introduced into evidence, with the
defense stipulation that Webster had authored it. With the
prosecutor reading the letter, Clay interpreted some of the slang
used.
Clay also testified that he was cooperating with the govern-
ment in hopes of a sentence reduction. Counsel for Webster
questioned Clay about his criminal background and his current
charges, and attempted to impeach Clay by implying that he was
angry with Webster because Webster allegedly had written a letter
to Clay’s girlfriend, who also was a prisoner at the Mansfield
Correctional Center.
Floyd testified during the penalty phase regarding oral
statements Webster made while in custody. The statements included
that killing Lisa Rene was “just business.”26
26
Floyd also provided some of the testimony relevant to the admission of
(continued...)
53
Approximately two months after trial and two days after filing
a motion for new trial, Webster filed an addendum to his motion for
new trial, setting forth an allegation from a local newscast that
Floyd had permitted Clay to engage in a conjugal visit with Clay’s
girlfriend after Floyd had taken Clay from the detention center for
an unrelated investigation. Webster alleged that this “reward” to
Clay should have been reported to the defense pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). Webster asked the court to order the
government to disclose any information that reasonably could be
obtained regarding inducements given by Floyd to Clay and,
specifically, that the government be ordered to disclose the
results of any investigation relating to the matter. The govern-
ment already had volunteered to provide the requested information
to Webster, subject to confidentiality limitations.
In its response to the motion for new trial, the government
reaffirmed its continuing obligation and intention to disclose any
mitigating or impeaching evidence. The government further noted
that it would work with Webster’s counsel to help them secure
affidavits that had been filed in other cases in connection with
the allegations. Webster then filed a motion in which he requested
the court to
order the attorneys for the government to produce and
26
(...continued)
Webster’s confession. As discussed above, the district court properly denied the
motion to suppress the confession; the questions Webster raises regarding Floyd’s
credibility do not alter that determination.
54
hand over to the defense counsel all information associ-
ated with the activities of Special Agent Garrett Floyd
of the Federal Bureau of Investigation that are related
to the granting of inducements, favors, privileges,
rewards, concessions or anything of value to any witness
directly or indirectly associated with this instant case.
This order should extend as well to any other case which
is, or may be, a part of a systematic action on the part
of Agent Floyd or other government actors to grant favors
to witnesses in return for their testimony.
Counsel for Webster acknowledged that he had received copies of the
affidavits used in other cases involving the same allegation and
that defense investigators were looking into other possible sources
of information.
In response to the motion for post-trial discovery, the
government noted that the district court having jurisdiction over
the cases in which this allegation had been made had determined
that Floyd was unaware that Clay had had sexual contact while in
Floyd’s custody and that a new trial was not warranted. The
government asked the court to deny Webster’s post-trial motion
because the motion was too broad, and again reiterated its
continuing discovery obligation.
The court denied Webster’s motion, stating that even
assuming that all of the facts asserted in [Webster’s]
motion and the addendum are trueSSthat the Federal Bureau
of Investigation Special Agent assigned with primary
responsibility for investigating this case took federal
prisoner John Clay from his detention facility, trans-
ported him to the home of a female friend, and knowingly
allowed Clay and the female to engage in sexual activi-
ties, all in exchange for Clay’s testimony in this cause,
and the prosecutor knowingly withheld this information
from Defendant,
the evidence was not material. Citing United States v. Bagley,
55
473 U.S. 667, 682 (1985), the court found that even if this
information had been disclosed before trial, the result would have
been the same.
3.
The court did not abuse its discretion in denying the motion
for post-trial discovery. Even assuming the allegations are true,
they fail to undermine confidence in the verdict. Clay was only
one of many government witnesses who testified to rebut Webster’s
claim of mental retardation, including school teachers, counselors,
principals, employers, and detention center personnel. Much of
Clay’s testimony focused on the letter written by Webster’s own
hand that set forth the “plan” for a sexual rendezvous with female
inmates. It is evident from the record that Webster concocted the
elaborate scheme to manipulate the detention center’s visitation
system and sought Clay’s assistance. Clay’s other testimony could
be redacted, and there would still be ample evidence to support the
jury’s findings regarding Webster’s mental abilities.
Furthermore, Clay admitted that he had testified in hopes of
a reduced sentence, and the defense impeached his testimony with
the allegation that Clay held a grudge against Webster. Further
impeachment via the possible quid pro quo of sex for testimony
likely would not have affected more than marginally the weight the
jury gave to Clay’s testimony.
56
With respect to Floyd’s testimony, he too was only one of many
witnesses who testified regarding Webster’s future dangerousness.
Other witnesses included Special Agent William Eppright, who
testified that, on an occasion separate from the one testified to
by Floyd, Webster said killing Lisa Rene was “strictly business.”
Mohamed Ghene testified regarding Webster’s attempted robbery of
his clothing store and the shots Webster fired at him from across
the street. Tlisha Booth presented testimony pertaining to a
shoving match over a piece of candy. Sylvia Henry, corroborated by
a security guard and Booth, testified that Webster had assaulted
her at a nightclub. Pine Bluff Police Department Officer Lance
Lawhorn testified that, while he was transporting Webster, Webster
stated that if he was not in custody he would “kill the bitch” who
gave him a venereal disease. Even if Floyd’s testimony regarding
Webster’s oral statements were redacted, the record provides ample
evidence of future dangerousness.
Moreover, any damage to Floyd’s credibility caused by these
allegations would be mitigated by the finding of the district court
with jurisdiction over the cases where the allegations were
initially made that Floyd was unaware that Clay had any sexual
contact while in his custody and that a new trial was not war-
ranted. There is no reasonable probability that the verdict would
have been different had the jury known of the alleged Floyd-Clay
incident, so the court did not abuse its discretion in denying
discovery.
57
F.
Webster argues the district court lacked a statutory or
constitutional (Fifth Amendment) basis to compel him to submit to
a mental health exam by a government expert as a prerequisite to
introducing his own expert psychiatric testimony. We find no
error.
1.
Although compelling Webster to a government psychiatric exam,
the court also granted, in part, Webster’s motion to limit the
scope of the exam. Specifically, the court barred examination of
Webster’s future dangerousness. The government’s witness, Dr.
George Parker, however, testified that he found that Webster’s
incarceration would lead to “a potentially very dangerous situa-
tion.” Webster argues this aspect of the testimony constitutes a
Fifth Amendment violation.
Webster’s argument falls well short of reversible error.
First, he mischaracterizes the record. There is no evidence that
any government expert was asked to27 or did conduct an examination
of Webster with regard to his future dangerousness. The reports of
Dr. Coons and Dr. Parker state that they had sufficient data to
assess Webster’s future dangerousness without examination designed
27
When first contacted and hired, before the court’s limiting order,
Dr. Coons was informed that part of the exam would be for future dangerousness.
But nothing in the record indicates that either Coons or Dr. Parker actually
conducted an exam for future dangerousness.
58
to uncover that. Our reading of the record leads us to conclude
that, contrary to Webster’s assertion, Coon’s testimony regarding
Webster’s future dangerousness did not turn on an examination in
violation of the court ordered limits.
Second, Webster never objected on these grounds, so he failed
to preserve the issue for appeal. Finally, even if such testimony
were given and properly objected to, the error of allowing the
testimony proves harmless, because there is ample independent
evidence to support a finding of future dangerousness.28
2.
The Hall panel avoided the question of statutory authority
because it had not been properly briefed. See Hall, 152 F.3d
at 398. We now face the issue and conclude that the district court
had the authority to order the exam.
a.
A district court’s decisions in overseeing criminal discovery
are entitled to great deference. Alleged error is subject to
review for abuse of discretion, and we will reverse only if a
defendant establishes prejudice to substantial rights. Dukes,
139 F.3d at 476;
Johnson, 127 F.3d at 391. Because the court-
28
See Satterwhite v. Texas, 486 U.S. 249, 257-58 (1988) (citing numerous
cases for proposition that constitutional errors in criminal trial are usually
subject to harmless error review).
59
ordered exam did not violate Webster’s constitutional rights, and
he makes no other claim of prejudice, any finding of authority to
order the exam negates prejudice to substantial rights.
b.
Although Webster correctly asserts that the court lacked
statutory authority to order the psychiatric exam, a district court
possesses inherent powers “reasonably useful to achieve justice,”
In re Stone, 986 F.2d 898, 902 (5th Cir. 1993) (recognizing several
categories of inherent court powers), including certain powers over
the administration of civil and criminal discovery, Natural Gas
Pipeline Co. v. Energy Gathering, Inc.,
2 F.3d 1397, 1406 (5th Cir.
1993). In fact, FED. R. CRIM. P. 57(b) provides that where no law
or rule is directly applicable, "[a] judge may regulate practice in
any manner consistent with federal law, these rules, and local
rules of the district." The existence of the federal rules does
not preempt this power, if the rules do not exclude the exercise of
the specific putative inherent power.
Id. at 1407.29 Before the
enactment in 1974 of FED. R. CRIM. P. 12.2, which establishes the
procedures governing psychiatric exams at trial, numerous courts
had recognized the existence of inherent judicial authority to
order a defendant to give the government notice of a psychiatric
29
See also United States v. Nobles, 422 U.S. 225, 236 (1975) (finding that
FED. R. CRIM. P. 16 did not preempt an inherent power of the judiciary in criminal
trial).
60
defense and to submit to examination by a government expert.30 This
court, too, in other circumstances, has found inherent power to
compel a psychological examination of a criminal defendant.31
Acknowledging that a district court has such inherent
authority furthers the goals of the FDPA. If the federal courts
have supervisory authority to “formulate procedural rules not
specifically required by the Constitution or the Congress” to
“preserve the integrity of the judiciary by ensuring that a
conviction rests on appropriate considerations validly before the
jury,” United States v. Hastings, 461 U.S. 499, 505 (1983), that
authority must extend to the sentencing phase of a trial as well.
The FDPA provides, “[t]he government and the defendant shall
be permitted to rebut any information received at the [sentencing]
hearing, and shall be given fair opportunity to present argument as
to the adequacy of the information to establish the existence of
30
See, e.g., United States v. Albright, 388 F.2d 719, 722 (4th Cir. 1968);
Pope v. United States,
372 F.2d 710 (8th Cir. 1967) (en banc), rev’d on other
grounds,
392 U.S. 651 (1968); Alexander v. United States,
380 F.2d 33 (8th Cir.
1967); Winn v. United States,
270 F.2d 326 (D.C. Cir. 1959).
31
See United States v. Cohen, 530 F.2d 43, 47 (5th Cir. 1976) (holding that
court possesses inherent authority to order exam and admit psychiatric testimony
regarding sanity at time of offense in conjunction with exam for competency to stand
trial performed pursuant to 18 U.S.C. § 4244); United States v. Moudy,
462 F.2d 694,
697 (5th Cir. 1972) (same); accord United States v. Malcom,
475 F.2d 420, 424-25
(9th Cir. 1973) (same); Gibson v. Zahradnick,
581 F.2d 75, 78 (4th Cir. 1978)
(same); United States v. Green,
544 F.2d 138, 145 (3d Cir. 1976) (holding that court
possesses inherent power to compel exam by own psychiatrist under 18 U.S.C. § 4244);
United States v. Phelps,
955 F.2d 1258, 1263 (9th Cir. 1992) (inherent authority to
compel psychiatric exam to determine whether release appropriate after verdict of
not guilty by reason of insanity); United States v. Lewis,
53 F.3d 29, 35-36 n.9
(4th Cir. 1995) (holding that court did not err in ordering psychiatric examination
in light of defendant's stated intent to rely on claim of sub-normal intelligence
in support of entrapment defense despite the technical inapplicability of rule
12.2(b)).
61
any aggravating or mitigating factor, and as to the appropriateness
in the case of imposing a sentence of death.” § 3593(c). Webster
indicated his intention to present expert psychiatric testimony at
the sentencing hearing. The government would not have a “fair
opportunity” to rebut that testimony if it could not conduct an
examination of its own; and to ensure that the sentence rests on
appropriate considerations, the government must have the opportu-
nity to rebut the defense’s claims.32
Allowing the court to require disclosure of the defendant’s
experts’ reports and to compel the defendant to submit to a
government psychiatric exam on the government’s motion constitutes
a fair procedure for achieving these goals in a timely manner. Cf.
FED. R. CRIM. P. 12 (establishing similar procedure for guilt-
innocence phase). The court had the inherent authority to order
the exam, and, therefore, did not abuse its discretion.
G.
Webster’s first challenge relating to veniremen alleges that
the court abused its discretion in granting the government’s Witt
challenge of Linda Vicar. A review of the record reveals that the
court had sufficient grounds to grant the challenge.
32
See Estelle v. Smith, 451 U.S. 454, 465 (1981) (noting that forbidding a
government examination “may deprive the State of the only effective means it has of
controverting [the defendant’s] proof on an issue that he has injected into the
case”).
62
1.
A court may excuse a prospective juror for cause because of
his views on capital punishment if those views would prevent or
substantially impair the performance of his duties as a juror in
accordance with the instructions and oath. Wainwright v. Witt,
469 U.S. 412, 424 (1985); Williams v. Collins,
16 F.3d 626, 633
(5th Cir. 1994). Determination that a juror would automatically
vote against the death penalty in every case is not the only
situation in which that standard would require dismissal.
Flores,
63 F.3d at 1355. The court has the discretion to excuse a juror
when it “is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law.”
Id. (quoting Witt, 469 U.S. at 426). We give considerable
deference to the decision to excuse a juror on this basis, because
such decisions are based on face-to-face credibility assessments.33
33
See Flores, 63 F.3d at 1355; see also
Witt, 469 U.S. at 426-29 (although
in habeas context, discussing universal reasons for deference); United States v.
Bryant,
991 F.2d 171, 174 (5th Cir. 1993) (decision to excuse juror for actual bias
reviewed for manifest abuse of discretion).
63
2.
Webster’s argument focuses on Vicar’s statements that she
believed capital punishment was a deterrent to crime and that “the
possibility is there” that situations existed in which she could
impose a death sentence. Based on this, Webster believes her
ability to perform her duties as a juror was not impaired.
Other excerpts, however, support the government’s concern and
the court’s decision. Vicar stated, “I mean from one day to the
next, I don’t have the same opinion of what I could do. I think
there could be, depending on what the situations were, that I could
say, yes, that’s what it should be, that’s what the penalty should
be. I don’t consistently, from day to day, think I could actually
do that if there really is a life sentence.”
Indeed, in answering several questions, Vicar wavered on
whether she could sentence a defendant to death if a life sentence
without parole option were a viable alternative.34 The government,
34
During questioning by the government, Vicar gave the following answers:
A. I guess it’s not something that I have ever wanted to do.
I guess I have debated since we filled out that questionnaire
whether I could really do it or not, but that doesn’t say
I don’t think it’s necessary. I guess I asked the question
this morning about whether we really had a life sentence that
were truly without parole or any chance of getting out.
I don’t know if I could tell you at this time whether I could
make a decision for the death penalty orSSI mean, I don’t know
if I could sit here and tell you today whether I could really
do that or not. That’s why I had the questions I had this
morning about whether if you’re telling me there really is a
life sentence without parole, if that is really true, if you
tell me in the courtroom that there is that option.
Q . . . knowing that a person you might convict of an offense
(continued...)
64
in objecting to Vicar, pointed to her demeanor, her long pauses
before answering questions, and her admission of equivocation.
Although she stated she could envision circumstances in which she
might be able to impose a death sentence, the presence of the
alternative of a life sentence without parole raised serious
questions about her ability to follow the law. In addition, the
whole of her testimony could have left the court with the impres-
sion that she favored the death penalty as a theoretical necessity,
but would not be able to recommend it. The court did not abuse its
discretion in granting the challenge for cause for Vicar's
inability to apply the death sentence.
34
(...continued)
like this is never going to be released, ever, period, and
he’s going to be in prison for the rest of his life, that
realistically you could never vote for the death penalty, then
you really need to let us know that now, okay?
A. I guess I feel likeSSsince there is that other option, I’m not
sure. I thought before that I could vote for the death
penalty, but I don’t really know, if it came right down to it,
if I could do it or not. I’m not saying that I could not.
I guess a lot of it would just have to do with the facts of
the case. I don’t know if I could do it or not. I couldn’t
tell you that I know I could or that I know I couldn’t.
.
Q. . . . Why do you feel that would be such a problem?
Realistically, why do you feel that’s a problem?
A. I guess I’m just torn between the fact of whether I thought
there were cases that I have heard of that I thought that’s
exactly what they deserved, but whether I couldSSwhether that
decisionSSI guess whether it conflicts with my religious
beliefs, whether that decision should really be up to me or
not. I don’t know if I could make that decision or if I could
be guaranteed that person would be in prison for life.
I guess it’s probably primarily justSSjust something within
myself that I don’t know if I could do it or not, because
I might think that person deserved exactly that, but whether
I should be the one here on earth to make that decision.
65
H.
Webster avers that the court abused its discretion in denying
several of his challenges for cause. He challenged veniremen
Deanna Hailey and Carolyn Coffelt on the ground that they stated
that if they found Webster guilty of the primary offense of
kidnaping resulting in death, they would have to answer “yes” to
the statutory aggravating factor that the defendant caused the
death of the victim during a kidnaping. Webster challenged Jimmy
Chambless, Kristi Magouirk, and David Hoffman because all allegedly
were biased in favor of finding him guilty during the guilt-
innocence phase. The court denied these challenges, forcing
Webster to use peremptory challenges in all five cases. He now
says the denial of his for-cause challenges was an abuse of
discretion. We disagree.
1.
The Sixth Amendment right to a fair trial includes the right
to an impartial jury. Morgan v. Illinois, 504 U.S. 719, 727
(1992). In a capital sentencing context, there is the right to
challenge for a cause a juror whose views on capital punishment
would “prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.”
Witt, 469 U.S. at 424 (quoting Adams v. Texas,
448 U.S. 38,
45 (1980)). The government has the right to challenge for cause
66
those veniremen whose views in opposition to the death penalty will
substantially impair their duty. Id. As a corollary, the capital
murder defendant has a right to challenge for cause any juror who
will automatically vote for the death penalty in every case,
because that juror “will fail in good faith to consider the
evidence of aggravating and mitigating circumstances as the
instructions require him to do.”
Hall, 152 F.3d at 407 (quoting
Morgan, 504 U.S. at 729).
Although Webster complains that the failure to grant his
challenges for cause forced him to exhaust his peremptory chal-
lenges and, after running out, to take objectionable jurors, he
does not allege that any of the jurors who served was not impar-
tial.35 We do not face, therefore, a pure constitutional challenge.
Cf. id. at 407-08.36 Rather, we address Webster’s statutory right
to the free exercise of his peremptory challenges as a means of
implementing the constitutional guarantees.
“While peremptory challenges, or the number provided by FED.
R. CRIM. P. 24(b) may not be constitutionally required, it does not
follow that a trial court’s wrongful reduction of the number so
35
Webster asserts, without substantiation or explanation, only that he was
forced to take several “questionable” jurors.
36
The failure properly to grant a challenge for cause rises to the level
of a constitutional violation and warrants reversal only “if the defendant
exhausts all peremptory challenges and an incompetent juror is forced upon him.”
Ross v. Oklahoma, 487 U.S. 81, 89 (1988). Absent such a showing, the defendant
has not been denied his Sixth Amendment right to an impartial jury. Webster has
made no claim of incompetent jurors.
67
provided is not reversible error on direct appeal.” United States
v. Munoz, 15 F.3d 393, 395 n.1 (5th Cir. 1994).37 “'The denial or
impairment of the right to exercise peremptory challenges is
reversible error without a showing of prejudice.'”
Hall, 152 F.3d
at 408 (quoting United States v. Broussard,
987 F.2d 215, 221 (5th
Cir. 1993)). Because the district court’s predominant function is
determining the credibility of the veniremen, however, “deference
must be paid to the trial judge who sees and hears the prospective
juror.”
Id. at 407 (quoting
Witt, 469 U.S. at 426). “We will only
second-guess the court’s decision that a juror is unbiased if there
is an abuse of discretion.”
Id. (quoting Flores, 63 F.3d at 1357).
2.
a.
Webster contends that the court should have granted his
challenge to Deanna Hailey because she automatically would answer
“yes” to one of the statutory aggravating factors if she had found
him guilty. Specifically, Hailey said that if she had found a
defendant guilty of an intentional kidnaping that results in death,
she always would find the statutory aggravating factor of
§ 3592(c)(1) to be true—that the defendant had caused the death
37
See also United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) (“[A]s
a general rule it is error for a court to force a party to exhaust his peremptory
challenges on persons who should be excused for cause, for this has the effect of
abridging the right to exercise peremptory challenges.”).
68
during the commission of the offense.38
This, Webster argues, runs afoul of Morgan, because Hailey
would fail to consider additional evidence before finding the
statutory factor. In addition, Webster claims, Congress, when it
provided the aggravating factor, must have contemplated a juror's
consideration of something more than or different from the evidence
at trial; otherwise, the aggravating factor would be superfluous.
We disagree; the court did not abuse its discretion in finding
Hailey unbiased and capable of serving.
First, Morgan does not apply here; it holds that a juror
should be excused if a finding of guilt automatically would lead
him to recommend a sentence of death. See Morgan, 504 U.S. at 729.
The instant alleged error is a far cry from that in Morgan. The
problem of which Webster complains is that a finding of guilt
automatically would lead to the finding of an aggravating fac-
tor—not to a recommendation of death. An automatic finding of an
aggravating factor in no way runs afoul of Morgan’s requirement
that a juror appears able to “consider the evidence of aggravating
and mitigating circumstances as the instructions require him to
do,”
id., because the automatic finding of an aggravating factor is
not the same as an inability to consider aggravating and mitigating
circumstances. A juror could find the aggravator of kidnaping
resulting in death and yet determine that the mitigating factors
38
Hailey actually answered the question, “Yes, I guess so.”
69
outweigh that and other aggravating factors, sparing the defen-
dant’s life.39
Second, as we held in Jones and Hall, allowing a juror, having
already found the existence of a certain set of facts beyond a
reasonable doubt during the guilt-innocence phase, to answer “yes”
to an aggravating factor based on the same facts does not raise
constitutional problems. See Hall, 152 F.3d at 416-17;
Jones,
132 F.3d at 248-49. Indeed, it merely allows the jury to consider
the facts or elements of the offense as an aggravating factor that,
having already been found beyond a reasonable doubt, it then
weighsSSjust onceSSin determining whether to return a death
sentence. Allowing the factor to be weighed does not violate the
narrow strictures of Morgan, even if a juror believes the finding
of guilt automatically leads to a finding of the factor.
Finally, Hailey answered Webster’s hypothetical questions in
ignorance of the law the court would instruct her to apply.
Contrary to Webster’s assertion, she did not implicitly say she
would not follow instructions; to the contrary, she stated that she
would be able to follow the instructions and procedures. The
court did not abuse its discretion in finding that she would obey
those instructions when informed how to determine the existence of
39
Cf. United States v. McVeigh, 153 F.3d 1166, 1206-08 (10th Cir. 1998)
(giving Morgan a narrow reach by holding that court need not allow the defense to
ask veniremen Morgan-type questions that include consideration of facts and
circumstances beyond a mere finding of guilt automatically leading to a
recommendation of death under the FDPA).
70
aggravating factors.40
b.
Webster finds error in the denial of his challenge for cause
to venireman Carolyn “Kay” Coffelt. Webster believes Coffelt
should have been excused for the same reason as for Hailey,
although Coffelt more ambiguously answered that she would
automatically find the first aggravating factor after finding
guilt.41 Coffelt also explicitly stated she would be able to follow
the instructions and knew there was nothing automatic in assessing
the death penalty. For the reasons given above, the district court
did not abuse its discretion.
c.
Webster claims the court should have granted his challenge for
cause of venireman Jimmy Chambless because he was predisposed to
find Webster guilty. Chambless, on his own initiative, informed
the court that he had been exposed to pre-trial publicity, “and
what little I know about this, . . . I’m already leaning towards
the prosecution . . . . That’s not saying I couldn’t be swayed
with the evidence and everything that could come up, but I have got
40
See Hall, 152 F.3d at 410-11 (statements in ignorance of law combined with
affirmation that venireman will follow instructions allows district court to find
venireman competent).
41
Coffelt answered, “Possibly.”
71
to be honest at this point, the defense is not starting even with
the prosecution.”
He also stated he leaned toward the prosecution because
Webster had been arrested, and “if someone was arrested for this,
I feel like there was a reason for it . . . . I feel like there
was probably a good reason they were arrested. I’m not saying that
I couldn’t, again, be swayed . . . .” Based on these statements,
Webster believes Chambless should have been excused for cause
because he was predisposed to find an arrested defendant guilty and
would shift the burden of proof onto the defense. We disagree;
other statements Chambless made demonstrate the court did not abuse
its discretion in denying the for-cause challenge.
When questioned by the court, Chambless agreed the verdict
must be based on the evidence presented in the courtroom, and
believed he could limit himself to such evidence. He affirmed that
the prosecution carries the burden of proving guilt beyond a
reasonable doubt, and would require as much with respect to every
element. He also believed he could give a fair trial to both the
defense and the prosecution, putting his predisposition aside. The
court found him credible in making these statements and denied the
challenge for cause.
“A person is not automatically rendered unqualified to serve
as a juror merely because he has been exposed to media coverage of
the charged crime. The issue becomes whether exposure to the media
publicity will preclude the individual from returning a verdict
72
based solely on the person’s application of the law as stated to
the evidence presented.” Hall, 152 F.3d at 411 (quoting Bell v.
Lynaugh,
828 F.2d 1085, 1093 (5th Cir. 1987)). We “decline to
second-guess the district court’s determination, made after face-
to-face credibility assessment and thorough questioning, that
[Chambless] could faithfully follow the court’s instructions and
reach a verdict based solely upon the evidence presented at trial.”
Id.42
42
See also Bell, 828 F.2d at 1093 (holding that court properly declined to
strike venireman for cause in similar circumstances, where pre-trial publicity
predisposed venireman to find guilt).
73
d.
Webster contends the court should have granted his challenge
for cause of venireman Kristi Magouirk for a demonstrated bias
against him, an inability to provide a presumption of innocence or
to follow the instructions not to listen to news reports. During
voir dire, Magouirk admitted, “I guess I’m more prone to look for
evidence to convict rather than evidence not to convict, reasonable
doubt.” She later claimed not to be prone to convict, but “I feel
like the government must a have good evidence to have this person
on trial.” She expressed her view that black men “have a grudge
against me and my race” but asserted that that feeling would not
affect her decision. She also stated, “I am all for the death
penalty. I would just as soon see them die for their crime than to
live out their life on my taxes”; but she explained that she could
recommend a life sentence without parole.
Furthermore, she later reiterated her preconceptions of
evidence of guilt because “if the person is charged, they must have
good evidence.” She said, “I would like to give him a clean slate.
It’s just that, to be honest, yes, it’s hard because he’s here
. . . . So there has got to be something against him.” She also
recounted news stories on the crime from as recently as the
previous day. It “would be pretty hard” for her not to discuss the
case with her husband and not to keep up with the press accounts.
Despite Webster’s claims that Magouirk showed bias and an inability
to follow the instructions, the court deemed her capable of
74
serving. We decline to second-guess that determination.
The decision is supported by ample evidence that, combined
with the court’s assessment of Magouirk's credibility, justifies
its refusal to dismiss her for cause. As explained, knowledge of
the case from news accounts does not preclude service, and Magouirk
agreed she would follow the instructions to avoid the news, assume
anything she heard outside the courtroom was false, and base her
decision solely on the evidence. She recognized that the govern-
ment carried the burden of proving guilt beyond a reasonable doubt.
She stated, “I guess, since I haven’t heard any evidence, I don’t
have anything against him. So to me he is innocent. Until I hear
the facts, then he is innocent, yes.” She affirmed that she would
follow her oath as a juror and the court’s instructions, including
not discussing the case with her husband. The court acted within
its discretion.
e.
Webster claims error in the refusal to grant his challenge for
cause to venireman David Hoffman. Webster believes Hoffman
demonstrated bias resulting from Webster's being charged with the
offense and an inability to separate the victim from thoughts of
Hoffman's own daughter. Hoffman testified that, based on news
accounts, he believed a girl named Lisa Rene was kidnaped, taken to
Arkansas, and murdered, even though those were the elements the
government would have to prove. Recognizing the government had
75
brought charges, he admitted, “I guess for that reason alone I
would have to say that there’s a certain bias there, or else he
wouldn’t be here.” Hoffman also stated that he might find it
difficult to “wall off” thoughts of his daughter during sentencing,
and they might affect his vote “to a certain extent.”
Hoffman said, however, “I believe that I would be able to
force [thoughts of my kids from my mind] and weigh purely on the
evidence there.”43 He stated his view that much information coming
from the media proved false. He believed he could keep an open
mind, follow his oath as a juror, and base his verdict and sentence
recommendation on the evidence and law.
A juror need not, and indeed cannot, leave his experiences and
circumstances outside the jury room. What he must do is base a
decision solely on the evidence presented, as seen in a fair and
unbiased manner through the lens of his experiences. The district
court found Hoffman excruciatingly honest, but dedicated to and
capable of overcoming any difficulties he might have as a juror.
On this cold appellate record, we cannot find that determination an
abuse of discretion.
43
Hoffman demonstrated both the difficulty and, ultimately, his ability
to make a decision based on the evidence and not on his feelings for his
children:
Where I feel that I would have a harder time at that—walling that
off—is if a guilty verdict is determined and sentencing begins.
I would still, again, look at the individual evidence itself and
weigh all the circumstances, but just being a human being, I have
experiences and feelings, and that’s what makes us all individuals,
of course, and those feelings for my children would probably end up
coming out in some form in the sentencing.
76
I.
Before the jury retired for deliberations at the penalty
phase, the court excused one of the jurors and elevated an
alternate to replace him. Webster alleges the court erred, but we
disagree.
1.
Webster styles the claim of error as an abuse of discretion in
not granting a mistrial. We review a refusal to grant a mistrial
for abuse of discretion. United States v. Willis, 6 F.3d 257, 263
(5th Cir. 1993). But Webster moved for a mistrial because the
court had substituted an alternate juror allegedly after the jury
had retired to consider its verdict. Under FED. R. CRIM. P. 23(b)
and 24(c), we review a decision to substitute jurors at that late
stage for prejudice. United Stated v. Huntress,
956 F.2d 1309,
1316 (5th Cir. 1992); United States v. Helms,
897 F.2d 1293
(5th Cir. 1990).
2.
During the punishment phase, but before the jury had begun
deliberations, the court excused juror Charles Fox after he came to
court in severe pain from an automobile accident. After extensive
discussion with counsel for the defense and prosecution, the court
decided to substitute Fox with an alternate juror, Christopher
77
Rawlinson. Rawlinson had sat through the guilt-innocence phase
but had neither participated in nor observed those jury delibera-
tions; he also sat through the penalty phase testimony. Webster
moved for a mistrial and objected to using an alternate juror; the
court ruled against him. In the sentencing phase charge, the court
instructed the jurors, “As you will recall, a member of the jury
which returned the verdict in the guilt phase of the trial was
excused for health reasons. An alternate juror was substituted in
his place. You are instructed that this substituted juror shall
not be treated any differently than any other juror during your
deliberations.”
3.
Webster admits the propriety of dismissing Fox. In fact, that
decision falls soundly within the court’s discretion: “The
district court has the discretion to remove a juror 'whenever the
judge becomes convinced that the juror’s abilities to perform his
duties becomes impaired.'” United States v. Leahy, 82 F.3d 624,
629 (5th Cir. 1996) (quoting
Huntress, 956 F.2d at 1312). Webster
complains only of the lack of authority to replace Fox with an
alternate.
The court presented the parties with three alternatives:
continue with eleven jurors, impanel an alternate, or declare a
mistrial and impanel a new jury. The court observed that “the law
78
isn’t real clear” on how to proceed. The prospect of repeating the
entire penalty phase hearing made the last alternative highly
unattractive, although that is the alternative Webster urged; he
would not stipulate to an eleven-member jury.
If this had taken place before the jury retired at the guilt-
innocence phase of the trial, the answer to the question would be
simple, for rule 24(c) provides that “alternate jurors in the order
in which they are called shall replace jurors who, prior to the
time the jury retires to consider its verdict, become or are found
to be unable or disqualified to perform their duties.” Rule 24(c)
also states, however, that all alternate jurors who have not
replaced a regular juror “shall be discharged after the jury
retires to consider its verdict.” Id.
When a juror is disqualified after the jury retires, on the
other hand, the court has the authority to require the jury to
proceed to verdict with only eleven members, with or without
stipulation by the parties, and this should be done particularly in
lengthy and complicated trials.44 We have explained our justifica-
tion for proceeding with eleven jurors instead of substituting an
alternate:
An alternate juror replacing a regular juror after the
jury has commenced its deliberations may be unable to
participate equally with the other jurors, because he
44
See FED. R. CRIM. P. 23(b); Huntress, 956 F.2d at 1317 (“We wish to
emphasize that district judges in this circuit should follow Rule 23(b) rather
than substitute alternate jurors when a juror is excused after deliberations
begin.”).
79
will lack the benefit of prior deliberations. There is
a danger that the other jurors will have already formu-
lated positions or viewpoints or opinions in the absence
of the alternate juror and then pressure the newcomer
into possibly ratifying this predetermined verdict, thus
denying the defendant the right to consideration of the
case by twelve jurors.
United States v. Quiroz-Cortez, 960 F.2d 418, 420 (5th Cir. 1992).
The complication in the instant case, of course, is the
bifurcated trial. The FDPA provides that if the defendant is found
guilty, the court
shall conduct a separate sentencing hearing to determine
the punishment to be imposed. The hearing shall be
conductedSS
(1) before the jury that determined the defendant’s guilt;
(2) before a jury impaneled for the purpose of the hearing
ifSS
...
(C) the jury that determined the defendants guilt
was discharged for good cause
. . . .
A jury impaneled pursuant to paragraph (2) shall consist
of 12 members, unless, at any time before the conclusion
of the hearing, the parties stipulate, with approval of
the court, that it shall consist of a lesser number.
§ 3593(b).45 How should a court apply rules 23 and 24, if at all,
45
This language allowing for the parties to stipulate to a jury of less
than 12 members is similar to former rule 23(b), which did not allow the court
to order the case to proceed even absent stipulations. Before changes to
rule 23(b) in 1983, caselaw allowed a court to substitute an alternate juror even
when deliberations had begun, if the parties refused to stipulate to a jury of
fewer than 12 members. See United States v. Phillips, 664 F.2d 971, 996 (Former
5th Cir. Dec. 1981); FED. R. CRIM. P. 23(b), advisory committee note. In such a
case, the defendant had to show he was prejudiced by the use of the alternate
juror. See
Huntress, 956 F.2d at 1316.
80
when the jury has returned from deciding one verdict but has yet to
retire to consider the second? This presents an issue of first
impression.
The Federal Rules of Criminal Procedure apply to sentencing
hearings; FED. R. CRIM. P. 1 provides, “These rules govern the
procedure in all criminal proceedings in the courts of the United
States . . . .” Rule 54, FED. R. CRIM. P., excludes certain
proceedings, but not sentencing hearings. Section 3593(c) waives
rule 32(c)’s presentence report requirement, which suggests the
negative implication that the Rules of Criminal Procedure usually
do apply to sentencing hearings under the FDPA. The district court
correctly looked at rules 23 and 24, therefore, in deciding what to
do after excusing Fox. But how should a court apply these rules in
light of the fact that they fail to contemplate a bifurcated
proceeding?
If, hypothetically, the entire jury had been discharged for
good cause after returning its guilty verdict, the court would have
impaneled an entirely new one pursuant to § 3593(b)(2). Presum-
ably, that jury would have included alternates. If the court then
had discharged a juror for cause before the jury had retired to
consider the sentence, would the court have been entitled to
elevate an alternate? Rule 24(c) answers in the affirmative
(alternate “shall replace” juror excused before jury retires).
The superficial conclusion, then, is that the court has the
same authority to impanel an alternate when the same jury sits for
81
both phases of the trial. And this conclusion answers Webster’s
primary contention: Because an alternate was available and the
jury had not retired to deliberate on its sentence recommendation,
the court had the authority, under rule 24(c), to elevate the
alternate.
The answer, unfortunately, is not so facile, for rule 24(c)
also provides, “An alternate juror who does not replace a regular
juror shall be discharged after the jury retires to consider its
verdict.” This mandatory language appears to compel the court to
dismiss the alternate jurors once the jury retires at the end of
the first phaseSSwhen the jury first retires to consider its
verdict. If the court were to follow this mandatory language, no
alternates would remain to be substituted for jurors whom the court
might have to discharge before the end of the second phase.46 In
fact, the court dismissed three of the five alternate jurors; the
remaining two were retained for the penalty phase of the hearings.
The court erred in not dismissing the juror at the end of the
first phase. The mandatory language of rule 24(c) requires the
court to dismiss the alternates when the jury retires to deliber-
ate. This conclusion adheres faithfully to the language of the
rules.
Nevertheless, we affirm the sentence. Webster did not object
46
Webster points out that when the jury was first impaneled, the court
instructed that “once the deliberations begin, we will dismiss any alternate who
has not been seated as a primary juror.”
82
to the failure to dismiss the alternates at the time; he complained
only of elevating an alternate to the jury and not granting a
mistrial.47 Because the jury had not retired when the court
dismissed Fox and substituted Rawlinson, any available alternate
could be elevated consistent with the rule. Webster, therefore,
waived the objection he should have madeSSthe failure to dismiss
the alternates. When the defendant has waived an objection for
failure to follow the substitution rules, an error alone does not
warrant reversal; we also review for prejudice from the resulting
elevation of the substitute.48
Webster did not suffer prejudice. The court provided the jury
with an instruction to include the new juror equally in all
deliberations. Furthermore, the jury had not started deliberating
at the penalty phase. Those issues were distinct from those
decided at the guilt-innocence phase; any overlap is irrelevant,
because the jury specifically was instructed to consider everything
as if for the first time. Interestingly, on the sole penalty phase
issue as to which prejudice seems possible, which is in the first
aggravating factor that overlapped with the offense decided in the
first phaseSSkidnaping in which death resultsSSthe jury failed to
47
On appeal, Webster focuses on the same complaint. In some places,
however, he mentions the failure to dismiss the alternates when deliberations
began at the guilt-innocence phase.
48
See Huntress, 956 F.2d at 1316-17 (holding that failure to make the proper
objection to violation of juror rules leads to review for prejudice in the
substitution).
83
find the aggravating factor. Webster’s generic claims of prejudice
fail, as there is nothing inherently prejudicial in a rule 24(c)
violation. See Huntress, 956 F.2d at 1316 n.7.
J.
Webster contends that the court erred in excusing juror Urbano
Gomez on learning that, in response to the juror questionnaire, he
had not disclosed past encounters with the judicial system. At the
very least, Webster claims, the court erred by not recalling Gomez
to ask him further questions. We conclude the court acted within
its discretion by dismissing Gomez, even absent further questioning
to determine whether he had lied.
84
1.
After the court qualified Gomez as a juror, the prosecutor
notified the court that it had uncovered a criminal record for him.
The government challenged Gomez for cause because he had not
answered his questionnaire truthfully. The government presented
evidence that Gomez had been charged with shoplifting and spent
three days in county jail, had been convicted of aggravated assault
on a police officer and received one month of confinement,49 and had
been convicted of aggravated assault with a deadly weapon for which
he received five years' probation. None of these was mentioned in
Gomez's answer to the questionnaire.50 Over defense objections, the
court dismissed Gomez for providing false information, without
recalling him for questioning.
2.
The court has discretion to excuse an untruthful juror.51 The
49
The parties agree this must have been pled down to some lesser offense,
given the punishment.
50
The most evident problem is with the response to Question 73, “Have you or
a relative been convicted of any offense other than a traffic ticket?” Gomez
checked “Yes,” and under “details” noted “brother-in-law, child abuse.” Five other
questions were answered inaccurately, given Gomez's record of arrests, convictions,
and probation.
51
United States v. Fryar, 867 F.2d 850, 853 (5th Cir. 1989); United States
v. Coleman,
997 F.2d 1101, 1105 (5th Cir. 1993) (“A trial judge may 'remove a juror
whenever the judge becomes convinced that the juror’s abilities to perform his
duties have become impaired.'”) (quoting United States v. Dominguez,
615 F.2d 1093,
1095 (5th Cir. 1980)). Webster argues that mere abuse of discretion review provides
insufficient protection to a capital defendant and that the heightened need for
reliability in capital cases should compel us to examine errors with greater
scrutiny. He provides no authority for this claim, and we see no reason to depart
(continued...)
85
scope of the examination, if any, into juror misconduct rests
within the court’s sound discretion. Fryar, 867 F.2d at 854.52 We
will not disturb the court’s findings on this issue except for want
of factual support.
Coleman, 997 F.2d at 1105. No evidentiary
hearing is necessary.
Id. (holding that court properly excused
juror after government informed court that juror had failed to
disclose he had been subjected to two ATF investigations). In
light of the deferential standard, the court acted within its
discretion in granting the challenge for cause.
K.
Webster argues the court erred in denying his Batson motion,
objecting to the government’s use of peremptory challenges on black
veniremen. We find no clear error in the court's acceptance of the
government's non-racial justifications for the strikes.
1.
After voir dire, the court presented the parties with a list
of sixty potential jurors, of whom five were black and one was
Asian.53 Each side exercised its twenty challenges. Webster
51
(...continued)
from the ordinary standard of review.
52
See also Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981) (district
court has broad discretion in determining how best to conduct voir dire).
53
There also were several hispanics whom the government did not strike.
86
objected to the government’s strikes eliminating the Asian and the
five blacks. To establish his prima facie case of racial discrimi-
nation, Webster relied solely on the fact that the government had
stricken all black jurors. The court questioned whether this made
out a prima facie case, but nonetheless called on the government to
provide rationales for its strikes.
The government provided race-neutral rationales. Webster
filed a motion disputing those reasons for each of the black
jurors.54 Webster argued the reasons were a pretext and that the
prosecution did not strike other similarly-situated jurors who were
not black. The government filed a response explaining why it found
the jurors Webster claimed to be similarly situated were in fact
different.
The court entered an order denying Webster’s Batson motion,
finding that (1) the motion was untimely; (2) Webster had failed to
make out a prima facie case; (3) the government’s race-neutral
reasons were believable; and (4) Webster had failed to prove
purposeful discrimination. We affirm on the latter two grounds.
2.
“The use of peremptory challenges to exclude veniremen 'solely
on account' of race violates the equal protection component of the
54
Webster conceded a legitimate reason existed for the Asian jurorSS
difficulty with the English language.
87
due process clause of the fifth amendment.” United States v.
Terrazas Carrosco, 861 F.2d 93, 94 (5th Cir. 1988). Courts address
Batson claims under the familiar burden-shifting scheme. See
Batson v. Kentucky,
476 U.S. 79, 96-97 (1985); United States v.
Fields,
72 F.3d 1200, 1206 (5th Cir. 1996). “The Supreme Court has
outlined a three-step process for determining whether peremptory
strikes have been applied in a discriminatory manner. First, the
claimant must make a prima facie showing that the peremptory
challenges have been exercised on the basis of race. Second, if
this requisite showing has been made, the burden shifts to the
party accused of discrimination to articulate race-neutral
explanations for the peremptory challenges. Finally, the trial
court must determine whether the claimant has carried his burden of
proving purposeful discrimination.” United States v. Bentley-
Smith,
2 F.3d 1368, 1373 (5th Cir. 1993); see also United States v.
Huey,
76 F.3d 638, 640-41 (5th Cir. 1996). The party making the
claim of purposeful discrimination bears the ultimate burden of
persuasion.
Bentley-Smith, 2 F.3d at 1373.
We assume, arguendo, that Webster timely made his Batson
motion and that he made a prima facie case. The court called on
the government to provide race-neutral justifications for the use
of its peremptory strikes. Once a court has taken that step, we no
88
longer examine whether a prima facie case exits.55 Our decision,
then, must rest on (1) whether the government articulated race-
neutral explanations for the exercise of its challenges and
(2) whether Webster has demonstrated that those justifications are
pre-textual and that the government engaged in purposeful discrimi-
nation.
a.
Unless a discriminatory intent is inherent in the explanation,
the reason offered should be deemed race-neutral. Hernandez,
500 U.S. at 360 (plurality). “[T]he ultimate inquiry for the judge
is not whether counsel’s reason is suspect, or weak, or irrational,
but whether counsel is telling the truth in his or her assertion
that the challenge is not race-biased.”
Bentley-Smith, 2 F.2d
at 1375. The “race-neutral explanation tendered by the proponent
need not be persuasive, or even plausible.”
Huey, 76 F.3d at 641;
see also Purkett v. Elem,
514 U.S. 765, 767-68 (1995). It simply
must be race-neutral and honest. Determining whether counsel
speaks the truth in offering its reasons turns on in-person
55
See United States v. Boussard, 987 F.2d 215, 221 (5th Cir. 1993)
("appellate review should not become bogged down on the question of whether the
defendant made a prima facie showing in cases where the district court has required
an explanation")(citing United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.
1987)); see also Hernandez v. New York,
500 U.S. 352, 359 (1991) (plurality) (“Once
a prosecutor has offered a race-neutral explanation for the peremptory challenges
and the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had made a prima
facie showing becomes moot.”).
89
credibility assessments, so we review for clear error. Huey,
76 F.3d at 640-41;
Fields, 72 F.3d at 1206.
The government offered reasons for excusing each of the five
jurors, with concerns ranging from a juror's establishing a rapport
with defense counsel to a fear that none of the five would be able
to recommend a death sentence when the time came, and from
relatives with criminal records to relatives living in the city
where the murder took place. The court accepted and believed these
explanations. Having reviewed the record, we cannot say the court
clearly erred.
b.
At the third stage of the inquiry, Webster bears the burden of
establishing that the government engaged in “purposeful discrimina-
tion” based on race. Purkett, 514 U.S. at 767;
Bentley-Smith,
2 F.3d at 1373 (“The ultimate burden of persuasion always lies with
the party making the claim of purposeful discrimination.”). The
“[p]roof of racially discriminatory intent or purpose . . .
'implies more than intent as volition or intent as awareness of
consequences. It implies that the decision maker selected a
particular course of action at least in part because of, not in
spite of, its adverse effects upon an identifiable group.'” United
States v. Garcia,
1 F.3d 330, 335 (5th Cir. 1993) (quoting
Hernandez, 500 U.S. at 360). Webster fails to meet this burden.
90
Webster offers no direct evidence of purposeful discrimina-
tion, but rather argues that the government’s proffered reasons are
pretextual, and the government did not dismiss similar white
jurors.56 Because the determination turns on credibility assess-
ments, we review for clear error at this stage as well. Bentley-
Smith, 2 F.3d at 1373; United States v. Seals,
987 F.2d 1102, 1109
(5th Cir. 1993).
The government offered distinguishing characteristics for each
of the jurors Webster claims were similarly situated. They had
different combinations of qualities, and some had more government-
desired qualities than did the jurors the government preempted.
See United States v. Jimenez, 77 F.3d 95, 100-01 (5th Cir. 1996)
(other redeeming qualities relevant). Although Webster asserts the
proffered reasons for striking the black jurors are mere proxies
for race, he provides no basis as to why; and the reasons resemble
ones we have accepted in the past.57 The court did not find the
proffered reasons pretextual and found no other evidence of
purposeful discrimination; we cannot say it clearly erred.
56
See Bentley-Smith, 2 F.3d at 1374 (noting difficulty of bringing forward
such evidence, and frequent necessity of relying on rebuttal of proffered reasons
and comparison to jurors not stricken).
57
See, e.g., United States v. Fields, 72 F.3d 1200, 1206 (5th Cir. 1996)
(juror trying to develop rapport with defense attorney); United States v.
Stedman,
69 F.3d 73, 739 (5th Cir. 1995) (potential juror’s brother convicted of
a criminal offense, another potential juror appeared disinterested; another juror
had lived in area of concern in the case; another juror’s sister had been
arrested for a narcotics charge); United States v. Jackson,
50 F.3d 1335, 1341
(5th Cir. 1995) (prosecutor believed that potential juror gave hostile look to
prosecutor); United States v. Nixon,
977 F.2d 921, 923 (5th Cir. 1992) (potential
juror appeared to prosecutor to express animosity toward prosecution).
91
L.
The court forced Webster to choose one of two expert psychiat-
ric witnesses to testify during surrebuttal. Webster claims this
limitation violated his due process rights. We find no error.
Webster styles his claim of error as a due process violation.
Due process requires a fair opportunity to defend against the
charges, including calling and cross-examining witnesses; keeping
information, including witnesses, from the jury may violate due
process. See, e.g., Montana v. Egelhoff, 518 U.S. 37 (1996);
Chambers v. Mississippi,
410 U.S. 284, 294 (1973); Washington v.
Texas,
388 U.S. 14, 23 (1967). “Just as an accused has the right
to confront the prosecution’s witnesses for the purpose of
challenging their testimony, he has the right to present his own
witnesses to establish a defense. This right is a fundamental
element of due process of law.” United States v. Thompson,
130 F.3d 676, 686 (5th Cir. 1997), cert. denied,
118 S. Ct. 2307
(1998).
We never have intimated, however, that this due process right
extends to presenting witnesses at surrebuttal. Indeed, we know of
only two published opinions that have addressed limitations on
surrebuttal in a due process context.58 Even assuming surrebuttal
58
See United States v. Clark, 617 F.2d 180, 183, 187 (9th Cir. 1980)
(recognizing as due process claim, but treating under abuse of discretion standard);
United States v. One Single Family Residence Located at 15526 69th Drive N., 778 F.
Supp. 1215, 1219 (S.D. Fla. 1991) (finding due process violation for a complete
denial of surrebuttal).
92
implicates due process concerns, we cannot say that the court’s
limitation of Webster’s surrebuttal to one of two expert witnesses
whom the court considered cumulative was so arbitrary and fundamen-
tally unfair as to deprive him of due process.59
M.
After entering a sentence of death on the verdict, the court
filed a finding entitled Factual Finding Regarding Mental Retarda-
tion in which the court stated, “Webster is not mentally retarded
and . . . he possesses the requisite mental capacity to understand
the death penalty and why it will be imposed on him. As a result,
the defendant Webster is not exempt under 18 U.S.C. § 3596(c) from
implementation of the death penalty.”60 Webster objects to this
finding on several grounds: (1) It was made in contravention of
59
Typically, we review the decision to permit or deny surrebuttal under
the abuse of discretion standard. See, e.g., United States v. Alford, 999 F.2d
818, 821 (5th Cir. 1993); United States v. Moody,
903 F.2d 321, 330 (5th Cir.
1990). The Ninth Circuit has examined a due process claim under the same
standard. See
Clark, 617 F.2d at 187. Under this standard, too, limiting
surrebuttal that the district court considers cumulative rests soundly within its
discretion. See, e.g., United States v. O’Brien,
119 F.3d 523, 531 (7th Cir.
1997) (no abuse of discretion where surrebuttal would be cumulative); United
States v. Blackstone,
56 F.3d 1143, 1146 (9th Cir. 1995) (same); United States
v. Wilford,
710 F.2d 439, 452 (8th Cir. 1982) (same); United States v. Burgess,
691 F.2d 523, 531 n.19 (4th Cir. 1982) (same); United States v. Stirling,
571 F.2d 708, 736 (2d Cir. 1978) (same).
60
Section 3596(c) provides,
A sentence of death shall not be carried out upon a person who is
mentally retarded. A sentence of death shall not be carried out
upon a person who, as a result of mental disability, lacks the
mental capacity to understand the death penalty and why it was
imposed on that person.
93
the FDPA; (2) it was made in derogation of Webster’s rights to due
process and effective assistance of counsel; (3) it was contrary to
the greater weight of the credible evidence; and (4) it was
inconsistent with the verdict on this issue.61 We conclude that the
court took proper action, and the finding was supported by the
evidence.
Webster failed to object to the factual finding. Our review,
therefore, is limited to plain error. United States v. Calverley,
37 F.3d 160, 162 (5th Cir. 1994) (en banc). To find plain error,
we must perceive (1) an error by district court, in that it
deviated from a legal rule, (2) that was clear and, at a minimum,
obvious under current law at the time of the trial, and (3) the
error must affect substantial rights.
Id. at 162-63.
1.
Webster alleges the factual finding was in contravention of
the FDPA’s statutory scheme, but the statute fails to address how
to ensure that the mandate of § 3596(c) is carried out. Because
the statute fails to provide guidance, and no case has addressed
this issue, the law is not pellucid; the court did not plainly err
in its sua sponte finding that Webster is not mentally retarded.
61
Webster intimates that imposing the death sentence on him, if he is
mentally retarded, would violate the Eighth Amendment. The Supreme Court has
rejected this argument. See Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (“[W]e
cannot hold today that the Eighth Amendment precludes the execution of any
mentally retarded person . . . simply by virtue of his or her mental retardation
alone.”).
94
Webster argues that the statute provides sufficient guidance.
We disagree. Webster points to § 3593(b)(3), which provides that
the court will act as a fact-finder “upon the motion of the
defendant and with the approval of the attorney for the govern-
ment.” Webster interprets this to preclude any fact-finding by the
court absent the defendant’s motion. The conclusion, however, does
not flow from the statute.
Section 3593(b) provides that “the judge who presided at the
trial . . . shall conduct a separate sentencing hearing to
determine the punishment imposed. The hearing shall be
conducted . . . (3) before the court alone, upon the motion of the
defendant and with the approval of the attorney for the govern-
ment.” This provision refers only to the determination of the
sentence; it is located in the section captioned “Special hearing
to determine whether a sentence of death is justified.” It in no
way implies that all court fact-finding must be on the defendant’s
motion.
Webster also asserts that, in the absence of a specific
statutory scheme, the only logical conclusion is that the jury must
be the fact-finder on the issue of mental retardation. This
“logical” claim suffers from gaps in reasoning.
First, only §§ 3592 and 3593 address issues that a jury may be
called on to consider. Section 3592 lays out all of the factors
for the finder of fact to considerSSthe mitigating and aggravating
factors. Section 3593 explains the procedure for the sentencing
95
hearing, including laying out the options for who the fact-finder
may beSSjury, newly impaneled jury, or judge.
Section 3596 addresses “Implementation of a sentence of
death.” It is here that Congress chose to indicate its restriction
on who could be executed. Placement of the consideration here,
rather than in the earlier sections addressing the issues for the
jury to consider in imposing the sentence, belies Webster’s
assertion that the issue obviously belongs to the jury.
In addition, although Webster did request and receive
submission of the mitigating factor that he “is or may be mentally
retarded,” he did not request a jury instruction that placed in the
jury's hands the job of factually finding whether Webster is
mentally retarded. That the jury could consider whether Webster
“is or may be retarded” falls woefully short of the factual finding
required in § 3596 of mental retardation to prevent the implementa-
tion of the death sentence. The lack of a jury instruction
request, along with failing to object to the factual finding,
suggests that Webster’s “logical assumption” placing this issue in
the jury’s hands was no more obvious to him at trial than it was to
the district court.
The statutory scheme simply does not answer who decides this
issue, so we cannot say the court’s decision clearly contravened
the FDPA. Given the lack of clarity, the court did not commit
plain error in deciding the issue itself.
96
2.
Webster asserts that the procedure the court chose violated
due process and deprived him of effective assistance of counsel.
Neither is true. Webster rests these claims on the fact that the
court acted without statutory authority and without notice to him.
Bare assertions aside, Webster provides no analysis as to why the
court’s determination violates the Constitution.
The alleged denial of effective assistance of counsel
presumably rests on Webster’s lack of opportunity to present his
case. Even assuming this rises to the level of constitutional
error, it is harmless. Webster had just finished presenting
voluminous evidence to the jury, in support of his claim of mental
retardation.62 The court had ample information before it to make
its decision; indeed, just before the jury retired, Webster had
asked the court to find him mentally retarded as a matter of law,
taking the mitigating factor out of the jury’s hands. Webster
makes no showing of prejudice to his substantial rights by arguing
there is something additional he would have presented to the court.
The court did not plainly err in failing to provide Webster with
notice, and did not deprive him of a fundamentally fair trial.
3.
62
Cf. United States v. Bachynsky, 949 F.2d 722, 732-33 (5th Cir. 1991)
(holding that sentencing court cannot base decision on matters outside of
presentence report without notice to defendant to provide “ample opportunity to
raise his factual contention.”).
97
Webster contends that the finding that he is not mentally
retarded is against the greater weight and credibility of the
evidence. The standard of review for a finding that a defendant is
not mentally retarded under § 3596 presents an issue of first
impression. Because it is a factual finding, we adopt the clearly
erroneous standard.63
The government presented substantial evidence to support the
finding. Furthermore, only four of the twelve jurors found that
Webster is or may be mentally retard and that he suffers from low
intellectual functioning. We cannot say the court clearly erred in
deciding that Webster is not mentally retarded.
4.
Webster contends that the court’s determination conflicts with
the verdict on this issue. Webster fails to indicate the import of
this argument, aside from supporting his claim of a constitutional
violation and his assertion that the finding contradicts the
greater weight of the evidence.
Only four of twelve jurors concluded Webster “is or may be
mentally retarded.” Webster’s failure to convince a majority of
the jurors alone suggests the court’s finding is not inconsistent
with the verdict. Furthermore, those four jurors found only that
he is or may be mentally retarded. Obviously, this mitigating
63
Cf. United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995) (noting
that we review factual findings in examining a sentence imposed for clear error).
98
factor requires less certainty than does the determination that he
is not mentally retarded.
As a result of this lesser standard, we can conclude that
eight jurors were not convinced that he even “may be” mentally
retarded; they believed he was not. We cannot conclude that the
court’s agreement with a majority of the jurors constitutes a
clear, obvious error.
N.
Webster argues that the evidence does not support the special
findings of the existence of the aggravating factors and that the
sentence of death was imposed under the influence of passion,
prejudice, or some other arbitrary factor. This contention stems
directly from the FDPA’s requirement that a court of appeals “shall
consider whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor and
whether the evidence supports the special finding of the existence
of an aggravating factor required to be considered under section
3592.” § 3595(c)(1).
Webster fails to distinguish between these two requirements as
distinct responsibilities of an appellate court. Rather, he
suggests that the only way we can fulfill our responsibility under
the provision as a whole is to conduct “a de novo review and a
balancing of the evidence.” Any other method, Webster claims, will
99
fail to ferret out which verdicts were imposed under the impermis-
sible factors.64 An appellate court, however, is a court of review.
We do not sit as a second jury. Instead, we will address the two
aspects of our review in turn. See Hall, 152 F.3d 426 (addressing
each in turn, rather than engaging in one unified, de novo review).
1.
First, we must determine whether the evidence supports the
jury’s special findings of the aggravating factors. The statute
does not clarify what standard of review we should use. Nothing in
the FDPA, however, indicates that it alters our ordinary standards
of review.65 To protect the jury’s domain, we apply the usual
standard of sufficiency of the evidence.66
“Review for sufficiency of the evidence is decidedly narrowSSa
[finding of an aggravating factor] must be affirmed if a rational
trier of fact could have found that the evidence established the
essential elements of [its existence] beyond a reasonable doubt.”67
64
Webster also suggests this requires a proportionality review; we see no
basis in the statute for such an assertion.
65
See United States v. Chandler, 996 F.2d 1073, 1083 (11th Cir. 1993)
(holding similar provision of 21 U.S.C. § 848(q)(3) does not alter ordinary
standards of review).
66
See Hall, 152 F.3d at 426 (finding “the record contains ample evidence from
which the jury could conclude beyond a reasonable doubt” that the aggravating
factors existed).
67
United States v. Ramirez, 145 F.3d 345, 350 (5th Cir. 1998), petition for
cert. filed (Sept. 28, 1998) (No. 98-6687); United States v. Cluck,
143 F.3d 174,
180 (5th Cir. 1998) (noting that “we review the evidence in the light most favorable
(continued...)
100
In view of this record, a rational jury could find beyond a
reasonable doubt that all four remaining aggravating factors exist.
2.
Our next responsibility is to ensure that the sentence was not
handed down under the influence of passion, prejudice, or some
other arbitrary factor. Again, Webster asserts this requires a
de novo re-weighing of the evidence, for any other assessment will
fail to negate the possibility that arbitrary factors were at work.
We question whether this is an accurate statement of our
responsibility under the FDPA.68 We need not decide this issue
today, however, for we have already conducted a thorough re-
examination of the aggravating and mitigating factors in part
IV.A.1.c, supra, as part of our harmless error review. We also see
nothing in the record indicating that the sentence was imposed
under the influence of passion, prejudice, or any other arbitrary
factor. The death sentence is warranted by the jury’s specific
findings.
O.
Webster launches a variety of attacks on the constitutionality
67
(...continued)
to the jury verdict”), petition for cert. filed (Sept. 26, 1998).
68
See Hall, 152 F.3d at 426 (stating that “[w]e have found nothing in the
record indicating that the jury’s recommendation of a death sentence was motivated
in any degree by passion, prejudice, or any other arbitrary factor”).
101
of the FDPA. We entertained and rejected most of these arguments
in the past, see Hall, 152 F.3d at 413-19;
Jones, 132 F.3d at 239-
42, foreclosing our reconsideration of them today.69 Those
arguments that we have not heard in the past we consider de novo.
See United States v. Bailey,
115 F.3d 1222, 1225 (5th Cir. 1997),
cert. denied,
118 S. Ct. 866 (1998).
1.
Webster’s constitutional challenges that we have addressed in
the past we deal with expeditiously. Contrary to Webster’s
arguments, (1) the FDPA provides sufficient safeguards to prevent
the arbitrary imposition of the death penalty, Jones, 132 F.3d at
241; (2) the FDPA sufficiently circumscribes its delegated
authority with 'intelligible principles' to avoid violating the
nondelegation doctrine,
id. at 239; (3) the Constitution does not
mandate “proportionality review,” that is, a comparison of the
penalties imposed in similar cases,
id. at 240; (4) the FDPA’s
relaxed evidentiary standard at the sentencing hearing is not
unconstitutional,
id. at 241-42; (5) the “especially heinous, cruel
or depraved manner” aggravating factor is not impermissibly vague,
at least where the vagueness is cured by the statutory limitation
that the offense involve torture or serious physical abuse and by
69
See Garcia Abrego, 141 F.3d at 151 n.1 (“It has long been the rule of this
court that no panel of this circuit can overrule a decision previously made by
another.” (internal quotation marks omitted)).
102
further limitation in the jury instructions, id. at 249; Hall,
152 F.3d at 414-15;70 and (6) the FDPA’s inclusion of the “mere
fact” that Webster was convicted of kidnaping and murdering Lisa
Rene as an aggravating factor does not constitute constitutionally
impermissible “stacking,” or double-counting,
Jones, 132 F.3d at
249;
Hall, 152 F.3d at 416-17.71
2.
Webster raises three constitutional arguments that we address
as matters of first impression. We reject them seriatim.
a.
Webster argues that the FDPA is unconstitutional for failing
significantly to narrow the class of offenses to which the death
penalty applies. Under Maynard v. Cartwright, 486 U.S. 356, 363-64
(1988), the government may not make every unjustified intentional
killing qualify for the death penalty. The FDPA does precisely
that, Webster argues, by making the four mental states of murder
aggravating factors that qualify the defendant for capital
punishment under § 3591(a). Webster’s argument stems from a
70
Webster also asserts, without analysis, that the “substantial planning
and premeditation” aggravator is impermissibly vague. His argument is foreclosed
by our analysis of the same language in the analogous 21 U.S.C. § 848(e) death
penalty scheme. See Flores, 63 F.3d at 1373-74.
71
Further, because the jury did not find the aggravator of which Webster
complains, he cannot claim his sentence is impaired.
103
misreading of the statute.
As the government points out, § 3591(a) does not set forth a
list of aggravating factors, but, on the contrary, serves a
gatekeeping function. Section 3591(a) codifies the command in
Enmund, 458 U.S. at 797, and
Tison, 481 U.S. at 157, to limit the
imposition of the death penalty to those murderers who both
undertake felony participation and demonstrate at least reckless
indifference to human life. Satisfaction of these elements only
begins the death penalty inquiry; it does not and cannot establish
death penalty eligibility by itself. The limiting factors, which
Webster claims are lacking, are, of course, the aggravating
circumstances set forth in § 3592(b) and (c), which guide the jury
in its capital decision after it finds at least one element of
intent under § 3591(a) as a threshold matter.
b.
Webster contends that the FDPA is unconstitutional because it
permits the multiple weighing of aggravating factors (specifically,
the § 3591(a)(2) mens rea factors). This argument stems from the
same fundamental misunderstanding of § 3591(a) discussed above. See
part IV.N.2.a, supra; see also part
IV.A.2, supra (discussing
“double weighing”). As we have explained, § 3591(a) does not set
forth aggravating factors, but rather serves as a preliminary
qualification threshold. The fact that a defendant could satisfy
104
more than one of these via the same course of action does not,
therefore, constitute impermissible double counting. Thus,
although Webster is correct in noting that many courts have held
that “double counting” of aggravating factors is to be avoided, the
FDPA does not present such a problem.72
c.
Webster asserts that by precluding consideration of “race,
color, religious beliefs, national origin, or sex of the defendant
or of any victim” as a mitigating factor, the FDPA is unconstitu-
tional. See § 3593(f). Webster correctly interprets the FDPA, but
incorrectly interprets the Constitution; the FDPA can be constitu-
tional only by precluding such factors.
The Equal Protection Clause protects from purposeful state
discrimination on the basis of race. Shaw v. Reno, 509 U.S. 630,
642 (1993). The Due Process Clause of the Fifth Amendment provides
this same “equal protection” against the federal government.
Bolling v. Sharpe,
347 U.S. 497, 498-500 (1954). Court proceed-
ings, especially criminal trials, implicate state action, therefore
bringing them under equal protection scrutiny. Georgia v.
McCollum,
505 U.S. 42, 49-55 (1992); Edmonson v. Leesville Concrete
Co.,
500 U.S. 614, 621-29 (1991).
72
As we have said in part IV.A.2, supra, the instructions sufficiently
informed the jury not to weigh the elements of intent.
105
More specifically, the Equal Protection Clause prohibits the
state from using race in its decision-making, unless it can meet
the “most exacting scrutiny . . . justified by a compelling
government interest.”73 In the realm of capital sentencing, this
standard never can be met, because race is a “totally irrelevant
factor.” Zant v. Stephens, 462 U.S. 862, 885 (1983). Therefore,
the FDPA can pass constitutional muster only if it is interpreted
absolutely to prohibit racial considerations in sentencing.
Because we are obligated to interpret a statute in such a way as to
preserve, if possible, its constitutionality, Rust v. Sullivan,
500 U.S. 173, 190 (1991); United States v. Bird,
124 F.3d 667,
678-79 (5th Cir. 1997), cert. denied,
118 S. Ct. 1189 (1998), we
reason that race cannot be considered as either a mitigating or
aggravating factor under the FDPA.
Although the use of race in government decision-making is, as
a general matter, “odious to a free people whose institutions are
founded upon the doctrine of equality,” Hirabayashi, 320 U.S. at
100, the use of race in sentencing determinations is particularly
invidious. “Discrimination on the basis of race, odious in all
aspects, is especially pernicious in the administration of
justice." Rose v. Mitchell,
443 U.S. 545, 555 (1979). And, in
capital sentencing, the use of race becomes more offensive still:
73
Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984); Hirabayashi v. United
States,
320 U.S. 81, 100 (1943); Hopwood v. Texas,
78 F.3d 932, 939-40 (5th Cir.),
cert. denied,
518 U.S. 1033 (1996).
106
Considering the race of a defendant or victim in deciding
if the death penalty should be imposed is completely at
odds with th[e] concern that an individual be evaluated
as a unique human being. Decisions influenced by race
rest in part on a categorical assessment of the worth of
human beings according to color, insensitive to whatever
qualities the individuals in question may possess.
McCleskey, 481 U.S. at 336 (Brennan, J., dissenting).
Although divided in its decision, the Court in McCleskey was
unanimous in its acknowledgment of “the illegitimacy of race as a
consideration in capital sentencing.” Id. at 341 (Brennan, J.,
dissenting);
id. at 292-93 (majority opinion). Webster would have
us go against this precedent, and rule that a defendant can be
spared the death penalty because of his race. Such practices are
precisely those forbidden by the Equal Protection Clause.
Id. at
341 (noting that “enhanced willingness to impose the death
sentence” or “diminished willingness to render such a sentence” are
impermissible when based on race).
In sum, a long line of Supreme Court precedent admonishes that
the guillotine must be as color-blind as is the Constitution. See
McCleskey, 481 U.S. at 292-93;
Zant, 462 U.S. at 885;
Rose,
443 U.S. at 555. Today’s decision recognizes this precedent in
interpreting the FDPA in the only way constitutionally permissible:
as prohibiting the consideration of race in sentencing.
Webster has constructed an artificial conflict, however,
between the FDPA and Supreme Court precedent regarding mitigating
evidence. He reads Penry v. Lynaugh, 492 U.S. 302, and Lockett v.
107
Ohio, 438 U.S. 586 (1978), as mandating the use of race in
sentencing. Such a reading of Penry and Lockett is erroneous for
at least two reasons: It ignores the concept of relevancy, and it
would cause those cases to conflict with the Fourteenth Amendment
for the reasons discussed above.
Penry and Lockett hold that in capital sentencing, a defendant
must be permitted to introduce all “evidence relevant to the
defendant’s background or character . . . that mitigate against
imposing the death penalty.” Penry, 492 U.S. at 318 (emphasis
added).74 As a matter of law, race is “totally irrelevant to the
sentencing process.”
Zant, 462 U.S. at 885;
McCleskey, 481 U.S.
at 316 (discussing the unconstitutionality of using the “irrelevant
factor of race” in sentencing). Therefore, when the FDPA and the
Supreme Court speak of “background or character” evidence, they
obviously mean to permit, and can mean to permit only, the specific
beliefs and life experiences of the defendant in question.
Thus, although race per se is an irrelevant and inadmissible
factor, the effects and experiences of race may be admissible. If
a defendant can show that his life has been marked by discrimina-
tion or some other set of experiences, irrespective of whether the
74
See also McCoy v. North Carolina, 494 U.S. 433, 440 (1990) (explaining that
the “meaning of relevance is no different in the context of mitigating evidence
introduced in a capital sentencing proceeding” from its meaning during the case in
chief; evidence is relevant if “it tends logically to prove or disprove some fact
or circumstance which a fact-finder could reasonably deem to have mitigating value”)
(quoting McCoy v. North Carolina,
372 S.E.2d 12, 45 (N.C. 1988) (Exum, C.J.,
dissenting)).
108
result, in part, of his race, then that properly might be
admissable as relevant mitigating background or character evidence.
But this is a far cry from using race in and of itself as a proxy
for such a set of beliefs and experiences. Pigmentation does not
define a person’s character or background; the life that a person
has led and the things that he has experienced do.
P.
We permitted Webster to file a supplemental brief raising an
additional issue on appeal, arguing that his conviction and
sentence were based on testimony that was illegally induced from
his co-defendants. Citing United States v. Singleton, 144 F.3d
1343 (10th Cir.), vacated for reh’g en banc,
144 F.3d 1361 (10th
Cir. 1998), Webster contends that the testimony of his co-defen-
dants against him was induced by the government in violation of
18 U.S.C. § 201(c)(2).75 Because we find no plain error in the
failure sua sponte to suppress the co-defendants’ testimony, we
75
Section 201(c)(2) reads,
WhoeverSS
directly or indirectly, gives, offers or promises anything of value
to any person, for or because of the testimony under oath or
affirmation given or to be given by such person as a witness upon a
trial, hearing, or other proceeding, before any court, any committee
of either House or both Houses of Congress, or any agency,
commission, or officer authorized by the laws of the United States
to hear evidence or take testimony, or for or because of such
person’s absence therefrom;
shall be fined under this title or imprisoned for not more
than two years, or both.
109
deny Webster’s attempt to raise this issue for the first time on
appeal.
1.
In Singleton, a panel held that the plain language of
§ 201(c)(2) prohibits prosecutors from making promises “of value”
to witnesses in exchange for testimony. According to the panel,
such prohibited promises include promises not to prosecute for
certain offenses, promises to inform authorities of cooperation,
and promises to inform the court of cooperation. See Singleton,
141 F.3d at 1348. Webster claims that the government’s promises to
his co-defendantsSSnot seeking the death penalty, agreeing to
guilty pleas for lesser crimes, not prosecuting other acts stemming
from the same incident, dismissing remaining indictment counts,
notifying the court of cooperation, and filing a motion for
downward departure in sentencingSSviolate the plain language of
§ 201(c)(2) in the same manner as did the promises in Singleton.
2.
a.
Because Webster did not move to suppress the testimony of his
co-defendants, the issue of their testimony’s legality presents an
entirely new issue. We may consider this question on appeal,
110
therefore, only if it constitutes plain error.76
We find plain error “only when the appellant shows that
(1) there is an error, (2) the error is plain, and (3) the error
affects her substantial rights.” Ravitch, 128 F.3d at 869 (citing
Olano, 507 U.S. at 732). Even if we find such an error, however,
we will not “exercise [our] discretion to correct such errors
unless the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”
Id.
“Error is defined as a deviation from a legal rule in the
absence of a valid waiver.”
Calverley, 37 F.3d at 162. “Plain is
synonymous with 'clear' or 'obvious' and 'at a minimum' contem-
plates an error which was 'clear under current law' at the time of
the trial.”
Id. Finally, “affecting substantial rights” is
understood to mean that the error “must affect the outcome of the
proceeding.”
Id. at 164.
b.
Webster argues that the court erred by failing sua sponte to
apply § 201(c)(2) and suppress the testimony of his co-defendants.
Moreover, he argues that without the testimony of his co-defen-
76
See United States v. Olano, 507 U.S. 725, 731 (1993) (“No procedural
principle is more familiar to this Court than that a [right] may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.”) (quoting Yakus v. United
States,
321 U.S. 414, 444 (1944) (internal citations omitted)); see also United
States v. Ravitch,
128 F.3d 865, 869 (5th Cir. 1997);
Calverley, 37 F.3d at 162;
Helms v. United States,
340 F.2d 14, 19 (5th Cir. 1964).
111
dants, there is great doubt that he would have been convicted.
Although Webster's argument that the suppression of co-
defendant testimony substantially would have affected his convic-
tion is persuasive, Webster faces an insurmountable burden in
showing that the court plainly erred. At the time of trial,
Singleton had not yet been handed down. Thus, the court did not
commit plain error when it did not follow a decision that had not
yet been decided. Moreover, even if Singleton had been decided
before trial, decisions of other circuits are not binding on the
courts of this circuit, so according to the “current law” of this
circuit, the testimony of co-defendants still would have been
admissible.77
The best Webster can argue is that, at the time of his trial,
the applicability of § 201(c)(2) to government plea bargains in
this circuit was uncertain.78 “The uncertainty manifest in [an]
area of the law illustrates that any error on the part of the trial
court could not have been plain.” Calverley, 37 F.3d at 165.
77
We recently agreed to review a claim that was not raised until appeal
when we found there had been an intervening change in the law. See DSC
Communications Corp. v. Next Level Communications, 107 F.3d 322, 326 n.2
(5th Cir. 1997). Unlike Webster, however, the appealing party in DSC
Communications relied on an intervening change in the law of this circuit,
whereas Webster relies on a vacated opinion of another circuit.
78
The uncertainty of this circuit’s law on this point is already
anticipated in two recent district court decisions. In United States v. Duncan,
1998 U.S. Dist. LEXIS 11123 (E.D. La. July 15, 1998), the court refused to order
a new trial based on § 201(c)(2). But in United States v. Fraguela, 1998 U.S.
Dist. LEXIS 14347 (E.D. La. Aug. 27, 1998), the court granted a new trial and
adopted the Singleton panel’s reading of § 201(c)(2).
112
Webster challenges a district court decision on the basis of
a new interpretation of an existing law even though no Fifth
Circuit precedent directly supports his reading of § 201(c)(2).79
At most, he can support the uncertainty of § 201(c)(2)’s applica-
bility to government plea bargains. A court's failure to apply an
uncertain interpretation of a statute is far from plain error.
Rather than finding plain error by adopting a new interpretation of
an existing statute based on the vacated decision of another
circuit, we deny Webster’s challenge to the court’s failure to
suppress the testimony of his co-defendants.
AFFIRMED.
79
Because we find no plain error in the failure to suppress the co-
defendants' testimony, we do not reach the question of the proper reading of
§ 201(c)(2). A review of this circuit’s precedents shows, however, that we
consistently have upheld government efforts to provide benefits to witnesses in
exchange for testimony when challenged on other grounds. The district court did
not err by conforming to this precedent.
In United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987)
(en banc), we explained our views on the propriety of giving benefits in exchange
for witness testimony when we held that contingent compensation for witnesses may
occur as long as the nature of such compensation is fully disclosed to the jury.
We noted that “[n]o practice is more ingrained in our criminal justice system
than the practice of the government calling a witness who is an accessory to the
crime for which the defendant is charged and having that witness testify under
a plea bargain that promises him a reduced sentence.”
Id. We went on to point
out that “courts uniformly hold that such a witness may testify so long as the
government’s bargain with him is fully ventilated so that the jury can evaluate
his credibility.”
Id. Thus, our general rule has been to allow the government
to confer benefits upon witnesses in exchange for testimony (even contingent
monetary compensation).
Along with our sister circuits, we also explicitly have upheld admitting
the testimony of witnesses who were promised reduced sentences. See United
States v. Kimble, 719 F.2d 1253 (5th Cir. 1983); see also United States v. Evans,
697 F.2d 240 (8th Cir. 1985); United States v. Miceli,
446 F.2d 1253 (1st Cir.
1971); United States v. Vida,
370 F.2d 759 (6th Cir. 1966); Lyda v. United
States,
321 F.2d 788 (9th Cir. 1963) (discussed in United States v. Dailey,
759 F.2d 192, 198-200 (1st Cir. 1985)).
113
