Opinion · Court of Appeals for the Fourth Circuit
United States v. Alejandro Umana
750 F.3d 320
- Type
- Opinion
- Court
- Court of Appeals for the Fourth Circuit
- Jurisdiction
- Federal
- Date
- 2014-04-23
- Topic
- litigation
finding that the "motive element" of § 1959 could be satisfied "if the [gang] member returned to mafia headquarters to boast about his exploits with a mind toward advancement" | explaining that facts supporting the purpose element may include activity that occurs after commission of the crime, such as a defendant who “return[s] to . . . headquarters to boast about his exploits with a mind toward advancement” | confirming that police may "highlight the positive aspects of confession" | examining murder in aid of racketeering, which requires a finding that an enterprise “engaged in, or the activities of which affect, interstate or foreign commerce” (emphases added) (quoting 18 U.S.C. § 1959(b)(2)) | examining murder in aid of racketeering, which requires a finding that an enterprise "engaged in , or the activities of which affect , interstate or foreign commerce " (emphases added) (quoting 18 U.S.C. § 1959 (b)(2) ) | "A juror's generally favorable impression of law enforcement does not necessarily amount to bias any more than does a juror's personal association with law enforcement." | "Congress could rationally have concluded that proscribing reputation-enhancing violence committed by members of a criminal enterprise would disrupt the interstate commerce that the enterprise itself engages in." | “A juror’s generally favorable impression of law enforcement does not necessarily amount to bias any more than does a juror’s personal association 65 with law enforcement.” | "Venue for § 924(c) prosecutions is appropriate wherever the underlying crime of violence took place." | “A juror’s generally favorable impression of law enforcement does not necessarily amount to bias any more than does a juror’s personal association with law enforcement.” | no error in denial of challenge of juror who would lean heavily toward death penalty upon conviction where she later agreed to consider both sentencing options and was not irrevocably committed to death sentence | no error in denial of challenge of juror who would lean heavily toward death penalty upon conviction where she later agreed to consider both sentencing options and was not irrevocably committed to death sentence | “[T]he right to confrontation does not apply at sentencing.” | reviewing unpreserved voir dire issue for plain error | finding no confrontation right at the penalty phase | two counts of murder while using firearm | collecting references to past murders | collecting references to past murders
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO ENRIQUE RAMIREZ UMAÑA, a/k/a Wizard, a/k/a Lobo,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:08-cr-00134-RJC-2)
Argued: January 28, 2014 Decided: April 23, 2014
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Agee joined. Judge Gregory
wrote a dissenting opinion.
ARGUED: Vincent James Brunkow, FEDERAL DEFENDERS OF SAN DIEGO,
INC., San Diego, California, for Appellant. Adam Christopher
Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Zandra L. Lopez, Janet C.
Tung, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego,
California; Malcom Ray Hunter, Jr., Chapel Hill, North Carolina;
David Weiss, COPELEY JOHNSON & GRONINGER PLLC, Durham, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:
Alejandro Enrique Ramirez Umaña shot and killed two
brothers, Ruben and Manuel Salinas, at point-blank range in a
restaurant in Greensboro, North Carolina, because Umaña
perceived that the brothers had insulted Umaña’s gang, Mara
Salvatrucha, commonly known as MS-13. A jury convicted Umaña of
all counts for which he was charged, including two counts
charging him with murder in aid of racketeering, in violation of
18 U.S.C. § 1959
(a)(1), and two counts charging him with committing murder while using a firearm during and in relation to a crime of violence, in violation of18 U.S.C. § 924
(c) and
(j)(1). The convictions on those charges subjected Umaña to a
maximum sentence of death.
Following the verdict of conviction, the same jury returned
a verdict that Umaña was death eligible on the four capital
counts, as provided in 18 U.S.C. §§ 3591-3596
. The jury found
that two statutory aggravating factors applied: (1) that Umaña
had created a grave risk of death to one or more persons in
addition to each victim, and (2) that he had killed more than
one person in a single criminal episode.
Finally, in the sentence selection phase of trial, the jury
imposed the death penalty, finding that four additional
nonstatutory aggravating factors applied: (1) that Umaña had
killed the two brothers to protect and maintain the reputation
2
of MS-13 and to advance his position in that gang; (2) that
Umaña had caused injury and loss to the brothers’ family and
friends; (3) that Umaña had earlier intentionally committed
several murders in Los Angeles; and (4) that Umaña posed a
continuing and serious threat to the lives and safety of others,
as evidenced by his lack of remorse, his allegiance to MS-13,
his lack of rehabilitation, and his pattern of violence. The
jury also found several mitigating factors. After weighing the
aggravating and mitigating factors, the jury imposed the death
penalty.
On appeal, Umaña challenges every phase of the proceedings
below. After carefully considering each of Umaña’s arguments,
we reject them and affirm the convictions and sentence.
I
Umaña, who was born in El Salvador in the early 1980s,
illegally entered the United States in 2004 to live in Los
Angeles. At the time, he had been a member of the MS-13 gang
for several years, having joined in 2001, while he lived in El
Salvador.
MS-13 was formed in Los Angeles in the 1980s by immigrants
from Central America, predominantly El Salvador. To gain
membership into MS-13, an individual must submit to a 13-second
beating. The gang uses violence and extortion to gain and
3
control territory, and for a member to build his reputation in
MS-13, he has to be ready to attack rival gang members or anyone
else who disrespects the gang. MS-13 punishes betrayal by
putting the “green light” on the member, which constitutes an
order that he be targeted for death.
While Los Angeles continues to be the mecca of MS-13
activity, MS-13 has become a transnational organization, with
groups, or “cliques,” across the United States, in Canada, and
in Central America.
Umaña’s activities in Los Angeles
During the sentence selection phase of Umaña’s trial, the
government introduced evidence implicating Umaña in several Los
Angeles shootings: one on Fairfax Street on July 27, 2005,
where two persons were shot and killed, and one in Lemon Grove
Park on September 28, 2005, where a group of four persons were
shot at and one was killed and two were injured.
On the occasion of the Fairfax Street murders, Umaña was in
the passenger seat of a car with several other MS-13 members.
The car pulled up alongside two males walking down the street,
and the two groups began flashing gang signs at one another.
The two males on the street were graffiti artists, or “taggers,”
and they made hand gestures that were perceived as challenging
MS-13. Some or all of Umaña’s group exited the car to confront
4
the taggers. There were conflicting accounts about what
happened next. Umaña’s fellow MS-13 members claimed that Umaña
shot the two taggers, but two civilian eye witnesses claimed
that the driver of the car shot them.
On the occasion of the Lemon Grove Park murder, two men
approached a group of four who had just finished playing
basketball and were sitting on bleachers in the park. Without a
word, the two men took out guns and opened fire on the group.
One of the four basketball players was killed, while two others
were wounded. The fourth, Freddie Gonzalez, who was apparently
the target of the attack, escaped uninjured. Several pieces of
evidence linked Umaña to this murder. First, Gonzalez
identified Umaña in a photo lineup and confirmed the
identification in court, although he admitted to some
uncertainty. Also, Umaña admitted to driving the shooters to
the basketball court, although he denied being a shooter
himself. Finally, ballistics matched the gun used in the
Fairfax Street murders with the gun used in the Lemon Grove Park
murder, and there was no evidence that anyone but Umaña was
present at both crime scenes.
Umaña’s New York activities
Umaña left Los Angeles and, by the summer of 2007, was
residing in New York. By this time, he had built up a
5
substantial reputation within MS-13. One witness recalled that
Umaña, who had taken on the moniker of “Wizard,” was treated by
his fellow gang members like he was “big time.”
In the fall of 2007, an MS-13 leader in New York directed
Umaña to travel to Charlotte, North Carolina, as the Charlotte
MS-13 cliques had been experiencing significant infighting.
Because of his experience and exposure to gang life in Los
Angeles, Umaña was ordered to “set them straight” in North
Carolina. This was confirmed by a Charlotte-based MS-13 member
who stated that it was expected that Umaña would “take control”
because he knew “how to run a gang.”
Umaña’s North Carolina activities
When he arrived in North Carolina, Umaña convened a
meeting, during which he instructed the MS-13 members as to how
they should be extorting money, selling drugs, and stealing
cars. He inspected the gang members’ guns; he emphasized to
them the importance of respect; and he told them to merge the
Charlotte cliques together. Over the course of the following
months, Umaña conducted numerous meetings with MS-13 members in
Charlotte.
On December 8, 2007, Umaña was in Greensboro, North
Carolina, having dinner with several fellow MS-13 members at Las
Jarochitas, a Mexican food restaurant. Also at the restaurant
6
were Ruben and Manuel Salinas, regulars at Las Jarochitas, who
were eating and drinking with several other men. The Salinas
brothers were not affiliated with any gang.
Umaña and his associates were sitting near the jukebox, and
they began selecting songs. This upset Manuel Salinas, who
liked to listen to “corrida,” a type of Mexican country music,
whenever he visited Las Jarochitas. As one witness reported,
the two groups then began “arguing and kind of like pushing each
other.” Perhaps fearing that the situation was getting out of
hand, Manuel Salinas tried to calm things down by buying the
MS-13 members a bucket of beers. The MS-13 members, however,
rebuffed the peace offering, refusing to drink or even
acknowledge the beers.
A concerned waitress asked the MS-13 members to leave the
restaurant. As they were filing out, the groups were
“exchanging words,” and Ruben Salinas told the MS-13 members
that he “wasn’t scared of them.” The gang members responded
that Ruben Salinas should not “mess with them” because “they
were from . . . MS.” Ruben retorted that the gang was “fake to
him.”
All of the MS-13 members left the restaurant except for
Umaña, who stayed behind. Upon realizing that Umaña was still
in the restaurant, an MS-13 member named Spider came back
inside. When the waitress tried to pull Umaña to the door,
7
Spider grabbed her and told her not to touch him. It was at
this point that Umaña pulled out his gun and pointed it at Ruben
and Manuel, but he did not shoot right away. He held his gun
sideways, while Manuel and Ruben stood motionless. No one said
anything. After some time elapsed, perhaps as much as a minute,
Umaña fired five shots at the brothers. Ruben received a
gunshot wound to the chest, and Manuel was shot in the head.
Both were pronounced dead at the scene of the crime. A third
individual was shot in the shoulder and survived.
Witnesses identified Umaña as the shooter, and Umaña does
not contest that he pulled the trigger.
Immediately after the murders, Umaña’s group contacted a
fellow MS-13 member, who had been serving as a confidential
informant, to help them get back to Charlotte that night. The
informant met Umaña and the other gang members at an IHOP
restaurant between Charlotte and Greensboro. Umaña switched
cars and rode with the informant back to Charlotte. During the
ride, he was cocking and uncocking his gun and discussing its
bullets. Their first stop was a nightclub and nearby taco stand
outside of Charlotte, where Umaña told the confidential
informant to smell the gun, because it smelled like gunpowder
from being fired. Umaña also told the informant that he was
going to “pee on [his] hands” to get rid of the gunpowder.
Several other MS-13 members had congregated at the taco
8
restaurant. One MS-13 member later recounted Umaña’s
explanation for why he had committed the murders -- “[Umaña]
said they insulted the MS-13. And he was doing it not only
because of him, because he was doing it because of us, too.” Of
the third victim, Umaña lamented that he “didn’t kill that son
of a bitch.” When asked about the prospect of being pulled over
by the police with the murder weapon, he responded, as recorded
on tape, that the officer would be on the wrong end of his gun,
as “she is always close by.”
Charlotte police arrested Umaña at an MS-13 member’s house
on December 12, 2007. The police found the murder weapon in the
sofa where Umaña was sitting. Umaña later told other MS-13
members that the police were “lucky” because he had been “trying
to grab for his gun.”
Procedural history
While Umaña was being held in custody by North Carolina
authorities, several Los Angeles police detectives interrogated
him about the shootings that had occurred in Los Angeles. Umaña
denied committing those murders, although he did admit to being
present or nearby when they occurred.
Two months later, a federal grand jury in Charlotte, in the
Western District of North Carolina, indicted Umaña for the
murders committed in Greensboro, which is in the Middle District
9
of North Carolina. Umaña filed a motion to dismiss the
indictment for improper venue, which the district court denied.
He also requested a hearing pursuant to Atkins v. Virginia, 536 U.S. 304
(2002), which forbids execution for mentally retarded
defendants. The court granted the Atkins hearing and found that
Umaña had failed to prove his disability by a preponderance of
the evidence.
While in prison awaiting trial, Umaña maintained contact
with MS-13 members. He wrote lengthy letters expressing his
continuing loyalty to the gang and his hatred for his enemies.
His letters also gave orders to execute rivals and intimidate
potential witnesses against him. While the letters were
encoded, the FBI broke the code.
The case proceeded to trial. On the first day of jury
selection, U.S. Marshals frisked Umaña and discovered that he
had tied a four-inch metal blade (in a paper sheath) to his
penis. And when the confidential informant testified during
trial, Umaña flashed MS-13 gang signs with his hands and, as the
informant was leaving, said in Spanish, “[Y]our family’s going
to pay you mother--.” This threat took place in front of the
jury.
The jury convicted Umaña on all counts. It found him
guilty of conspiring to conduct, or to participate in the
conduct of, the affairs of an enterprise affecting interstate
10
commerce through a pattern of racketeering activity, in
violation of 18 U.S.C. § 1962
(d) (prohibiting RICO conspiracy). It found that this RICO conspiracy included the “willful, deliberate and premeditated murder” of the Salinas brothers, in violation ofN.C. Gen. Stat. § 14-17
. The jury also found Umaña guilty of murdering the Salinas brothers in aid of racketeering, in violation of18 U.S.C. § 1959
(a)(1). Finally, the jury found Umaña guilty of using a firearm in relation to a crime of violence, resulting in the death of the Salinas brothers, in violation of18 U.S.C. § 924
(c) and (j)(1). The jury also found
Umaña guilty of several lesser offenses not at issue here,
including being an alien in possession of a firearm, robbery
affecting interstate commerce, and witness tampering.
The government sought the death penalty for the § 1959 and
§ 924 counts. Accordingly, the district court divided the trial
into three phases -- the first to determine guilt or innocence;
the second to determine Umaña’s eligibility for the death
penalty; and the third, if Umaña were found death eligible, to
select between the death penalty and life imprisonment without
the possibility of release.
After finding Umaña guilty, the jury found him eligible for
the death penalty under the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3596
. In addition to finding that, during the
commission of the crimes, Umaña was of sufficient age and had a
11
sufficiently culpable state of mind, it found that two statutory
aggravating factors applied. First, it found that Umaña had
created a grave risk of death to one or more persons in addition
to each victim, and second, it found that he had killed more
than one person in a single criminal episode.
After the jury found Umaña eligible for the death penalty,
the court proceeded to the sentence selection phase, during
which the government put on evidence to prove four additional
nonstatutory aggravating factors: (1) that Umaña had killed the
Salinas brothers to protect and maintain the reputation of MS-13
and to advance his position therein; (2) that Umaña had caused
injury and loss to the Salinas brothers’ family and friends; (3)
that Umaña had intentionally committed several murders in Los
Angeles; and (4) that Umaña posed a continuing and serious
threat to the lives and safety of others, as evidenced by his
lack of remorse, his allegiance to MS-13, his lack of
rehabilitation, and his pattern of violence. The jury found the
existence of all four aggravating factors unanimously and beyond
a reasonable doubt. They also considered the evidence presented
by Umaña in mitigation, which consisted primarily of (1) the
effects that Umaña’s upbringing had on his culpability; (2)
videos of his family and friends; and (3) testimony about safety
precautions that would be in place should Umaña be sentenced to
life imprisonment. All or some of the jury members found that
12
Umaña had proved various mitigating factors by a preponderance
of the evidence. In particular, they found that the murder
occurred during an emotionally charged argument and that the
murder occurred as a result of Umaña’s indoctrination into the
ways and thinking of MS-13. After weighing the aggravating and
mitigating circumstances, the jury sentenced Umaña to death.
This appeal followed, raising numerous challenges, as
discussed herein.
II
Umaña challenges first the venue of his trial in the
Western District of North Carolina. He contends that “venue on
the capital counts [Counts 22-25] was proper only in the Middle
District of North Carolina [in Greensboro], where the killings
occurred because ‘murder’ was the only essential ‘conduct’
element of the charged offenses (violations of 18 U.S.C. § 1959
and §§ 924(c) & (j)(1)),” and that venue was not proper in the
Western District of North Carolina, where he was tried. He
argues that committing murder “for the purpose of . . .
maintaining or increasing position in an enterprise engaged in
racketeering activity,” as punished by § 1959, has only one
conduct element -- that of committing murder -- and that the
element of maintaining or increasing position in a racketeering
enterprise is a mens rea element. He points out that under
13
established venue jurisprudence, a mens rea element does not
contribute to determining the locus delicti of the crime, i.e.,
where it was committed for venue purposes. See United States v.
Jefferson, 674 F.3d 332
, 366-68 & n.46 (4th Cir. 2012); United States v. Oceanpro Indus., Ltd.,674 F.3d 323, 329
(4th Cir.
2012). He further argues that venue was improper for the trial
of the two § 924 counts because those counts depended on the two
§ 1959 counts.
The government contends that venue in the Western District
was proper because the murders were committed by Umaña in
“connection to the ‘racketeering enterprise’ and RICO
conspiracy,” which were “continuing offense[s] centered in
Charlotte,” in the Western District. It argues that just as
murder was an essential conduct element, so too was the
racketeering activity with which the murders were necessarily
connected, justifying venue in either the Western or Middle
Districts.
Both the Constitution and the statutes implementing it
require that criminal trials be conducted where the crime was
“committed.” See U.S. Const. art. III, § 2, cl. 3; U.S. Const.
amend. VI; 18 U.S.C. §§ 3235-3237
; Fed. R. Crim. P. 18. The
place where a crime is committed -- the locus delicti -- “must
be determined from the nature of the crime alleged and the
location of the act or acts constituting it.” United States v.
14
Rodriguez-Moreno, 526 U.S. 275, 279
(1999) (quoting United States v. Cabrales,524 U.S. 1, 6-7
(1998)). Thus, to determine venue, we must first “identify the conduct constituting the offense” and then “discern the location of the commission of the criminal acts.”Id.
The location of the criminal acts is determinative. See Jefferson,674 F.3d at 365
; Oceanpro,674 F.3d at 328
; United States v. Bowens,224 F.3d 302, 311
(4th Cir. 2000). Of course, if the criminal conduct spans multiple districts, the crime may be tried in any district in which at least one conduct element was committed. See18 U.S.C. § 3237
(a); Rodriguez-Moreno,526 U.S. at 281
.
Counts 22 and 24 of the indictment charged Umaña with the
murders of Ruben Salinas and his brother, Manuel Salinas, in aid
of racketeering activity, in violation of 18 U.S.C. § 1959
(a)(1), and venue for trial of those offenses lay where
the essential conduct elements of the § 1959 offense were
committed.
In order to establish murder in aid of racketeering
activity under § 1959, the government must show:
(1) that there was an enterprise engaged in
racketeering activity;
(2) that the enterprise’s activities affected
interstate commerce;
(3) that the defendant committed murder; and
(4) that the defendant, in committing murder, acted
in response to payment or a promise of payment by
15
the enterprise or “for the purpose of gaining
entrance to or maintaining or increasing position
in an enterprise.”
18 U.S.C. § 1959
(a)(1); see also United States v. Fiel,35 F.3d 997, 1003
(4th Cir. 1994).
Umaña argues that the only conduct element of the § 1959
offense was the murder itself. He characterizes the language
linking the murder to the racketeering enterprise -- i.e., “for
the purpose of . . . maintaining or increasing position in an
enterprise engaged in racketeering activity” -- as merely
descriptive of the crime’s requisite mens rea, which cannot
determine where the crime was committed for venue purposes. See
Oceanpro, 674 F.3d at 329
.
We decline to read that element so narrowly. We think that
“for the purpose of . . . maintaining or increasing position in
an enterprise” defines a motive element that includes a
requirement that the defendant have interacted with the
enterprise with respect to his purpose of bolstering his
position in that enterprise. Such activity could occur before
commission of a violent crime covered by the statute -- for
example, if a mafia boss instructed a member to commit murder or
else be cast out of the organization -- or after commission of a
violent crime -- for example, if the member returned to mafia
headquarters to boast about his exploits with a mind toward
advancement.
16
Two reasons underlie our interpretation. First, we think
this reading avoids the illogical -- and possibly
unconstitutional -- result that § 1959 would criminalize a
murder committed with a secret intent to join a gang where the
murderer has absolutely no prior connection with the gang
itself. Congress made clear, when enacting § 1959, that the
offense was aimed at eliminating violent crime “committed as an
integral part of an organized crime operation.” S. Rep. No.
98-225, at 305 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3485
(emphasis added). And a physical manifestation of purpose is
necessary to ensure that the act is actually carried out to
further the enterprise’s goals.
Second, the statutory context suggests that the “for the
purpose of” prong requires a manifest quid pro quo between the
member and the gang. The earlier, parallel portion of the
statute criminalizes violent crime conducted “as consideration
for the receipt of” or “as consideration for a promise or
agreement to pay . . . anything of pecuniary value.” 18 U.S.C. § 1959
(a). This portion of the statute clearly indicates that
there must be a reciprocal arrangement between the enterprise
and the individual, and we believe it sensible to read the “for
the purpose of” language similarly.
At bottom, we hold that § 1959(a)(1) includes as an element
an objective, physical act that links the defendant with the
17
enterprise with respect to the underlying violent crime and that
this element is a conduct element supporting venue.
In this case, Umaña’s actions in Charlotte were sufficient
to satisfy this conduct element. Umaña was sent to Charlotte
with orders to shape up the North Carolina cliques. Upon
arriving in Charlotte, he instructed the local MS-13 members at
length about weapons and ammunition. He passed around his own
gun. He discussed maintaining respect. One witness, who was at
the initial Charlotte meeting, testified that respect “was
everything” to Umaña. And after killing the Salinas brothers
for their failure to respect his gang, Umaña immediately
returned to Charlotte, where he boasted to his fellow MS-13
members about the murders. He told them that he had killed the
Salinas brothers because they had insulted MS-13 and that he had
killed them for his fellow gang members. These objective
manifestations of Umaña’s purpose to further his position in the
enterprise were sufficient to support venue in the Western
District of North Carolina for the § 1959 prosecution.
In Counts 23 and 25, Umaña was charged and tried for
violations of 18 U.S.C. § 924
(c) and (j)(1). The indictment in those counts alleged that Umaña used a firearm “during and in relation to a crime of violence, that is: conspiracy to participate in a racketeering enterprise [18 U.S.C. § 1962
] and murder in aid of racketeering [18 U.S.C. § 1959
],” resulting in
18
the unlawful killing of Ruben and Manuel Salinas. Venue for
§ 924(c) prosecutions is appropriate wherever the underlying
crime of violence took place. Rodriguez-Moreno, 526 U.S. at 281
.
Umaña does not dispute that venue was proper in the Western
District of North Carolina for the underlying § 1962 prosecution
and, as we are holding, venue was also appropriate there for the
§ 1959 prosecution. Thus, regardless of which predicate crime
of violence the jury relied on, venue for the § 924(c) counts
was appropriate in the Western District.
III
Umaña next contends that his convictions on Counts 22 and
24 for murder in aid of racketeering activity under 18 U.S.C. § 1959
(a)(1) punished conduct that “is a quintessential, noneconomic, local activity that lies beyond Congress’s authority to regulate under the Commerce Clause,” much like the activity regulated in the Violence Against Women Act, which the Supreme Court struck down in United States v. Morrison,529 U.S. 598
(2000). Moreover, he asserts, requiring that the murder be
committed to maintain or further one’s status in “a street gang
fails to change its noneconomic nature.” And because his
convictions on Counts 23 and 25 under § 924(c) were predicated
on his § 1959 convictions, Umaña reasons that they too exceeded
19
the government’s Commerce Clause authority. Accordingly, he
argues that his convictions on Counts 22 through 25 must be
reversed.
Because Umaña failed to present this argument to the
district court, we review it for plain error. See United States
v. Forrest, 429 F.3d 73, 77
(4th Cir. 2005) (conducting a plain
error review of a Commerce Clause challenge that was not raised
before the district court).
Article I, § 8, of the U.S. Constitution authorizes
Congress to make laws as necessary to regulate commerce among
the States so long as it has a “‘rational basis’ . . . for . . .
concluding” that the prohibited activities, “taken in the
aggregate, substantially affect interstate commerce.” Gonzalez
v. Raich, 545 U.S. 1, 22
(2005).
Section 1959(a) punishes violent crimes, including murder,
committed “for the purpose of . . . maintaining or increasing
position in an enterprise engaged in racketeering activity,”
with the term “enterprise” defined to include “any partnership,
corporation, association, or other legal entity . . . which is
engaged in, or the activities of which affect, interstate or
foreign commerce.” 18 U.S.C. § 1959
(a), (b)(2). The question
therefore is whether Congress could rationally have concluded
that intrastate acts of violence, such as murder, committed for
the purpose of maintaining or increasing one’s status in an
20
interstate racketeering enterprise, would substantially affect
the interstate activities of that enterprise. We conclude that
it could have.
We find it wholly reasonable to believe that members of a
criminal enterprise might engage in violence to solidify their
status in the organization or rise in the ranks of its
leadership, and that by doing so, they would enhance the power
and reach of the racketeering enterprise itself. Indeed, the
circumstances of the present case provide a convenient
illustration. Because of Umaña’s substantial reputation in MS-
13, which he seems to have built up partly through acts of
violence in Los Angeles, MS-13 leadership -- through
international telephone calls -- sent him from New York to North
Carolina to instruct the cliques there on how more effectively
to deal drugs, steal cars, and extort money. Congress could
rationally have concluded that proscribing reputation-enhancing
violence committed by members of a criminal enterprise would
disrupt the interstate commerce that the enterprise itself
engages in. Accord United States v. Crenshaw, 359 F.3d 977, 986
(8th Cir. 2004) (upholding the constitutionality of § 1959 under the Commerce Clause, noting that “[i]t seems . . . clear that criminal enterprises use violence or the threat of violence in connection with their commercial activities”); see also United States v. Nascimento,491 F.3d 25, 43
(1st Cir. 2007) (“Given
21
the obvious ties between organized violence and racketeering
activity -- the former is a frequent concomitant of the latter -
- we defer to Congress’s rational judgment, as part of its
effort to crack down on racketeering enterprises, to enact a
statute that targeted organized violence”). Indeed, Congress
reached just such a conclusion when it observed that murders,
assaults, and other crimes proscribed by § 1959 constituted an
“integral aspect of membership in an enterprise engaged in
racketeering activity.” S. Rep. No. 98-225, at 304, reprinted
in 1984 U.S.C.C.A.N. at 3483.
Moreover, § 1959 includes a jurisdictional element that
limits its reach to activities connected with enterprises
“engaged in” or whose activities “affect” interstate commerce,
thereby justifying its constitutionality under the Commerce
Clause. 18 U.S.C. § 1959
(a), (b)(2); see also United States v. Gibert,677 F.3d 613, 624
(4th Cir. 2012). This jurisdictional element distinguishes § 1959 from the Violence Against Women Act struck down in Morrison.529 U.S. at 613
. In Morrison, the Supreme Court explicitly noted the lack of a limiting jurisdictional element that would have confined the statute to those activities actually affecting interstate commerce.Id.
(noting that the Gun-Free School Zones Act, which was struck down in United States v. Lopez,514 U.S. 549
(1995), and the
Violence Against Women Act at issue in Morrison “contain[ed] no
22
jurisdictional element establishing that the federal cause of
action is in pursuance of Congress’ power to regulate interstate
commerce”). But § 1959 does have a limiting jurisdictional
element that confines its reach to crimes that affect interstate
commerce.
Umaña argues further that the application of § 1959 to his
particular circumstances is unconstitutional because “the murder
here had no effect on interstate commerce, was non-commercial in
nature, and was unrelated to organized interstate trafficking
efforts in drugs or other contraband.” But such an argument is
of no consequence to the Commerce Clause analysis, which does
not focus on whether particular conduct under the statute had an
impact on interstate commerce, but rather on whether “the class
of acts proscribed had such an impact.” Gibert, 677 F.3d at 627
; see also Raich,545 U.S. at 17
(“[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence” (quoting Lopez,514 U.S. at 558
) (internal quotation marks omitted)); United States v. Gould,568 F.3d 459, 475
(4th Cir. 2009); United States v. Williams,342 F.3d 350, 355
(4th Cir. 2003).
Accordingly, we find no error, let alone plain error, and
therefore we reject Umaña’s Commerce Clause challenge.
23
IV
Umaña contends that the district court abused its
discretion in refusing to excuse Jurors 286 and 119 on account
of their personal bias. He argues that Juror 286 was biased
based on a past life experience with respect to a crime
committed against her brother and that Juror 119 was biased as
indicated by the answers she gave about whether she could
meaningfully consider life imprisonment, in lieu of death, upon
a finding of guilt on the charges in this case.
We review the district court’s decisions to seat these
jurors for abuse of discretion, Poynter v. Ratcliff, 874 F.2d 219, 222
(4th Cir. 1989), and we will find abuse only “where a per se rule of disqualification applies” or “where the [trial] court ‘demonstrate[d] a clear disregard for the actual bias’ of the juror,” United States v. Fulks,454 F.3d 410, 432
(4th Cir. 2006) (quoting United States v. Turner,389 F.3d 111, 115
(4th
Cir. 2004)).
A
Juror 286 recounted during voir dire that more than 30
years earlier, her brother had been the victim of an attempted
murder; that the assailant received a short sentence; and that,
after release, the assailant committed murder and then suicide.
Based on this life experience and on Juror 286’s answers during
24
voir dire, Umaña argues that the district court should have
found that Juror 286 was actually biased or that, based solely
on her life experience, she was in any event impliedly biased.
During voir dire, the prosecutor asked Juror 286 several
questions about her ability to dispense penalties impartially:
Q: And are you able to keep an open mind until
you’ve heard the evidence to make [the decision
between life in prison and the death penalty]
together with the other jurors?
A: I would like to think so. I mean, I don’t know
anything about the case.
Q: And that’s the point. But you haven’t heard the
evidence, so are you able to keep an open mind
and consider both options at the conclusion of
the evidence?
A: I think so.
* * *
Q: And given the information that you shared about
the tragedy with your brother . . . , are you
able to come into this courtroom and consider
only the facts and evidence that are presented in
this case in making your decision?
A: I hope that I can. I mean, I can’t forget those
. . . experiences that I've had. . . . I would
hope, and I think that I would look at the facts
of this case.
* * *
Q: All right. And so as you sit here today . . .
until you’ve heard all the facts in evidence in
this case, you would be able to fairly consider
both potential punishments; life imprisonment
without parole and the death penalty?
A: Yes.
25
Umaña’s counsel followed up on Juror 286’s answers with the
following inquiry:
Q: Does [your frustration with how your brother’s
case was handled] come into play now, if you’re a
juror in a case like this, that involves two
charges of murder?
A: I don’t know if it would or not, to be honest. I
do have strong feelings about it. You know, the
sentence -- the sentence to me did not -- it was
not justified, based on the circumstances and
what happened. And that person, because he
didn’t have a sufficient sentence, I think,
initially, went on to do additional murder and
suicide. And yeah, I do have a problem getting
past that.
Then, after Umaña’s counsel explained to Juror 286 that, upon a
finding of guilt for murder, there would be only “two options on
the table” -- life without the possibility of release and
death -- he questioned her as follows:
Q: Knowing that, does your attitude about your
frustration with the judicial system and the
sentence that that assailant of your brother’s
got, how -- can you tell us whether that would be
an issue or affect you?
A: I think it’s a bit different than the situation
with my brother. Because in that instance I just
didn’t think that there was sufficient punishment
that fit the crime. In this case you’re looking
at the death penalty, or as you’re telling me,
someone who would be in prison the rest of their
life. It’s different, and I hope that I would
see that.
* * *
Q: Are you saying then, that . . . you would
consider equally, or give fair consideration to
26
both types of sentences? In other words, that
you would think that either death or life without
parole would be considered as sufficient
sentences for those crimes?
A: I think depending on the circumstances and the
evidence.
Q: . . . [W]ould you meaningfully consider both of
these sentencing options in the sentencing phase
of this trial?
A: Yes. Yes.
* * *
Q: [D]o you think that the experience with what
happened to your brother’s attacker and
everything, would have any impact on your ability
to be a fair judge on the facts, as far as . . .
guilty versus not guilty?
A: . . . I would hope it would not enter into my
decision, but I still have that experience.
Q: . . . [T]he defendant has the right, as does the
government, to have a jury of people who are fair
and impartial and open-minded. And I guess, do
you feel that you are one of those people right
for this case?
A: I don’t know if I can say 100 percent. I really
don’t.
At that point, the district judge intervened to describe to
Juror 286 the presumption of innocence and to explain that the
government bears the burden of proof. The judge then asked the
following questions:
Q: Now, is there anything about your life experience
that keeps you from understanding those
principles and agreeing to apply them in this
case?
27
A: I understand the principles entirely. And I hope
that I could, you know, . . . do the job that’s
requested. I just . . . have these things in my
experience that I don’t know whether they would
prevent me from doing the job correctly or not.
Q: Do you agree with those principles?
A: Yes, I do.
* * *
Q: And is there anything about your past experience
that would prevent you from meaningfully
participating in that process [of determining the
penalty options]?
A: No, I don’t think so.
The judge then declined to excuse Juror 286.
Based on Juror 286’s answers, Umaña argues that Juror 286
displayed actual bias because she “remained equivocal regarding
whether the circumstances surrounding the attempt on her
brother’s life would affect her ability to keep an open mind and
be a fair and impartial juror during the guilt/innocence phase.”
Thus, he contends that there remained uncertainty after voir
dire “about whether she could actually apply [the presumption of
innocence and proof beyond a reasonable doubt] in light of her
past experiences.” He suggests that United States v. Thompson,
744 F.2d 1065
(4th Cir. 1984), required a finding that Juror 286
was actually biased.
In Thompson, one of the jurors notified the judge during
trial that a piece of evidence had “moved [him] quite heavily.”
28
744 F.2d at 1067
. When the judge told the juror that he wanted to make sure that the juror still had an open mind, the juror responded, “I don’t think that I do. . . . I am not sure that I could be totally fair. I would try to be as much as I could, but I am just not sure I could be totally fair.”Id.
(emphasis added). After denying a motion for a mistrial, the judge asked the juror if he could keep an open mind and maintain the presumption of innocence, and the juror responded, “I will try. I am not sure, your Honor.”Id. at 1067-68
. We found that the trial court had abused its discretion by declining to excuse the juror, and we held that “after [the juror] gave an equivocal response to repeated questions about his ability to proceed with an open mind . . . the trial court should have asked for an affirmative response.”Id.
The circumstances in Thompson, however, were different in
kind and effect from those here. In Thompson, the juror had
suggested that he was unable to be fair. When asked whether he
had an open mind, the juror said, “I don’t think that I do.” By
contrast, Juror 286 left the court with the opposite message,
suggesting that she “would like to think” that she could keep an
open mind. Moreover, when the judge asked Juror 286 whether she
agreed with the basic constitutional principles relating to the
presumption of innocence and the government’s burden of proof,
she said that she did. She also told the judge that her past
29
experiences would not prevent her from “meaningfully
participating in [the sentencing] process.” To be sure, Juror
286 stated that she could not be 100% sure about how she would
conduct herself, but nonetheless she repeatedly stated that she
thought she could keep an open mind and “look at the facts of
this case.”
We similarly distinguished Thompson in United States v.
Hager, 721 F.3d 167
(4th Cir. 2013), where a juror expressed some equivocation about whether he could be impartial. In Hager, the judge interrogated the juror at length, asking, for example, whether the juror could “give effect to those two instructions [regarding the presumption of innocence and burden of proof],” and the juror answered, as did Juror 286 in this case, “Yes, I would try.”721 F.3d at 190-91
. The court followed up this inquiry by asking, “[I]s there any reason why you wouldn’t succeed?” to which the juror responded, “No, I wouldn’t think [so].”Id. at 191
. The Hager court found that
the judge had not abused his discretion by seating the juror,
distinguishing the circumstances from Thompson in this way:
Although Juror 144 and the juror in Thompson both
initially stated only that they would try to be fair,
the district court here followed up by asking if there
was any reason that the juror could not be fair. And
each time that question was posed, Juror 144 said that
there was not. The district court in Thompson,
however, failed to solicit such a response.
30
Id. at 192
; see also United States v. Capers,61 F.3d 1100, 1104-05
(4th Cir. 1995) (finding no abuse of discretion where a
trial judge refused to excuse a juror who stated that he “might
favor the government”).
We conclude that the district judge in the present case did
not abuse his discretion by declining to find that Juror 286 was
actually biased. A juror need not express unflinching certainty
for a trial judge to determine that she will be able to remain
impartial. See, e.g., Hager, 721 F.3d at 191-92
. Moreover, in
this case, the judge took care by repeatedly asking, in follow-
up questions, whether Juror 286 could be fair and impartial.
Juror 286 affirmed without qualification that she agreed with
the principles that defendants are presumed innocent and that
the government has the burden of proof, and she repeatedly
affirmed that she would be able to consider equally the two
penalty options of life in prison and the death sentence.
Umaña argues further that despite the answers given by
Juror 286, her life experiences alone should have prompted the
trial court to conclude that she was impliedly biased.
“[T]he doctrine of implied bias is limited in application
to those extreme situations where the relationship between a
prospective juror and some aspect of the litigation is such that
it is highly unlikely that the average person could remain
impartial in his deliberations under the circumstances.” Person
31
v. Miller, 854 F.2d 656, 664
(4th Cir. 1988). Implied bias might arise where there is “a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Smith v. Phillips,455 U.S. 209, 222
(1982) (O’Connor, J., concurring).
We conclude that Juror 286’s experience 30 years ago was
sufficiently remote and insufficiently prejudicial to impute
bias to her. We have held that “it is generally within a trial
court’s discretion to qualify a juror whose close relative was a
victim of a crime similar to that with which a defendant is
charged, [and so] such a circumstance is not, standing alone,
sufficiently ‘extreme’ to warrant a finding of implied bias.”
Fulks, 454 F.3d at 432-33
(citation omitted). Likewise here, we
conclude that it was within the district court’s discretion to
qualify Juror 286.
Umaña also argues that the views Juror 286 expressed about
law enforcement evidenced actual bias, as indicated by the
following exchange during voir dire:
Q: [A]re you going to treat civilians and law
enforcement, you’re going to be able to evaluate
their testimony and weigh it equally?
A: Um, I think so. But in all honesty, I do have to
say that I do have a positive feeling towards
them, police officers, detectives and so forth.
32
* * *
Q: [S]o you would be able to judge fairly the
testimony of a police officer, the same way you
would a civilian witness in this case?
A: I have to answer again in all honesty that I hope
that I would be able to. But also as I say, I do
support and see law enforcement in a favorable
light.
* * *
Q: [W]ould you follow that same instruction and use
the same standard in evaluating the credibility
of each type of witness?
A: I think so. I’ve never done it before, as I say.
I just have to say that I would hope and I would
think that I would.
Based on these answers, Umaña contends that “Juror 286 was
equivocal about whether her beliefs about law enforcement would
interfere with her duty to treat all witnesses equally.”
Because Umaña did not, during voir dire, object to Juror
286 on this ground, we review this issue under the plain error
standard. See Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 732-34
(1993).
Although “bias in favor of law enforcement officials [i]s
inappropriate,” United States v. Lancaster, 96 F.3d 734, 743
(4th Cir. 1996) (en banc), we conclude that the district court
did not err in failing to find actual bias based on Juror 286’s
statement that she had “positive feelings” about law
enforcement, especially where she went on to affirm (albeit in
33
her cautious fashion) that she would use the same standard in
evaluating every witness’s credibility. See Capers, 61 F.3d at 1105
(no abuse of discretion where juror said he “might” favor the government). A juror’s generally favorable impression of law enforcement does not necessarily amount to bias any more than does a juror’s personal association with law enforcement. See United States v. Larouche,896 F.2d 815, 830
(4th Cir.
1990). Based on our review of the record, we conclude that the
district court’s ruling was not in error.
B
Umaña contends that Juror 119 was also biased insofar as
she did not confirm during voir dire that she would
“meaningfully consider life imprisonment upon a finding of guilt
of the charged offenses.”
On Juror 119’s questionnaire, she gave seemingly
contradictory answers with respect to whether she would consider
life in prison for an individual convicted of racketeering
offenses. But she explained at voir dire that she had been
confused by the wording of the question. More importantly, she
expressed unhesitatingly that she would consider both life in
prison and the death sentence:
Q: [T]he question I have for you is whether you
would consider those both -- those two options?
A: Oh, yes.
34
Q: Or automatically choose one over the both?
A: No. No.
Q: You would consider both?
A: I would consider both.
Later in voir dire, Juror 119 did say that she would “lean
heavily towards the death penalty for . . . intentional
killing.” When the district judge followed up on this
statement, Juror 119 initially expressed some equivocation,
stating that she was “not sure” whether she could keep an open
mind about the sentencing options. The judge continued to probe
Juror 119:
Q: Let me ask you this question: I’m not asking you
to tell me what your decision will be. What I’m
asking you is, are you willing in good faith, to go
through the process of considering and weigh both
options?
A: Yes.
Q: As part of that, would you be willing to consider
and weigh the aggravating factors presented by the
government and the mitigating factors presented by the
defendant?
A: Yes.
Q: Would you be able to follow the Court’s
instructions on those points?
A: Yes. I would have to.
The judge concluded that Juror 119 “could in good faith weigh
both options.”
35
We conclude that the judge did not abuse his discretion.
In making his judgment, he followed the instructions from Hager
precisely, following up with a series of shorter, simpler
questions when the juror manifested some initial equivocation.
The juror answered these questions unambiguously, making clear
that she was not “irrevocably committed to imposing the death
penalty.” United States v. Caro, 597 F.3d 608, 615
(4th Cir.
2010).
As we have previously noted, a juror’s mind need not be a
blank slate. See United States v. Jones, 716 F.3d 851, 857
(4th Cir. 2013) (“Because jurors will have opinions from their life experiences, it would be impractical for the Sixth Amendment to require that each juror’s mind be a tabula rasa”). “[I]f a district court views juror assurances of continued impartiality to be credible, the court may rely upon such assurances in deciding whether a defendant has satisfied the burden of proving actual prejudice.”Id.
(quoting United States v. Corrado,304 F.3d 593, 603
(6th Cir. 2002)). The judge in the present case
acted within his discretion in crediting Juror 119’s assurances
that she could follow the law and consider all sentencing
options.
36
V
During the third phase of trial -- the sentence selection
phase, during which the jury decided whether to impose life
imprisonment without the possibility of release or the death
penalty -- the government sought to prove that Umaña had
committed several murders in Los Angeles in 2005. To that end,
it introduced into evidence the transcript of an interrogation
of Umaña, conducted by Los Angeles police detectives while he
was in state custody in North Carolina. During the
interrogation, Umaña placed himself at the two scenes of the Los
Angeles murders, although he denied actually committing the
murders. Even so, the evidence helped the government implicate
Umaña in the murders because no evidence indicated that anyone
but Umaña was present at the two locations, and the same gun was
used to commit all of the murders.
Challenging the introduction of the transcript, Umaña
contends that the statements he made during the interview were
obtained in violation of his Miranda rights and, in any event,
were given involuntarily, in violation of the Fifth Amendment.
He bases his argument on the fact that during the interview, the
Los Angeles detectives repeatedly told him that his statements
would not “affect” the North Carolina case and that his
statements would not “cost” him anything, when in fact they were
used against him in this case.
37
As to his Miranda claim, the record shows that after the
Los Angeles detectives read Umaña a Miranda warning in Spanish,
they followed up with questions to ensure that he understood,
again speaking to him in Spanish:
Detective: Do you understand what I’m saying?
Umaña: Yes.
Detective: Do you want to talk about, uh, what we
want to talk about here of things that
happened in Los Angeles . . . freely?
Umaña: I already told you, let’s see about it.
Detective: Okay.
Umaña: Yes.
Detective: Yes? Okay. . . .
Umaña: You will be explaining more things.
The detective who conducted this interview later testified that
he thought that Umaña understood his right to remain silent and
intended to waive that right. The district court found the
officer to be credible and that Umaña’s response of “Yes,” plus
his subsequent willingness to answer questions, indicated that
he did indeed intend to waive his Miranda rights and speak with
the detectives.
We agree. “To effectuate a waiver of one’s Miranda rights,
a suspect need not utter any particular words.” Burket v.
Angelone, 208 F.3d 172, 198
(4th Cir. 2000). A suspect
impliedly waives his Miranda rights when he acknowledges that he
38
understands the Miranda warning and then subsequently is willing
to answer questions. See United States v. Frankson, 83 F.3d 79, 82
(4th Cir. 1996). That is precisely what happened in this
case.
Umaña contends that, in any event, his statements were
extracted involuntarily, in violation of his Fifth Amendment
rights, because the Los Angeles detectives said that Umaña’s
statements would not “cost” him anything or “affect” him. He
identifies 10 such comments that occurred over the course of a
two-and-one-half hour interview. For example, when asking about
the Fairfax Street murders, one detective stated: “Why don’t we
go ahead and clear up everything in the past that you’ve done in
Los Angeles. It doesn’t cost you anything.” And, referring to
the North Carolina investigation, a detective stated: “We don’t
. . . want to affect the case here at all.”
To determine whether a statement or confession was obtained
involuntarily, in violation of the Fifth Amendment, “[t]he
proper inquiry ‘is whether the defendant’s will has been
overborne or his capacity for self-determination critically
impaired.’” United States v. Braxton, 112 F.3d 777, 780
(4th Cir. 1997) (en banc) (quoting United States v. Pelton,835 F.2d 1067, 1071
(4th Cir. 1987) (internal quotation marks omitted)).
To make this determination, we consider “the totality of the
circumstances, including the characteristics of the defendant,
39
the setting of the interview, and the details of the
interrogation.” Pelton, 835 F.2d at 1071
.
We have consistently declined to hold categorically that a
suspect’s statements are involuntary simply because police
deceptively highlight the positive aspects of confession. For
example, in United States v. Whitfield, 695 F.3d 288
(4th Cir. 2012), we refused to find a confession involuntary where the police officers told the suspect that by talking to them he “would do ‘nothing but help[] [himself].’”Id.
at 303 n.8 (alterations in original). Similarly, in Rose v. Lee,252 F.3d 676
(4th Cir. 2001), we held that “the cryptic promise that ‘things would go easier’ on [the suspect] if he confessed [did not] amount[] to unconstitutional coercion.”Id. at 686
; see also United States v. Rutledge,900 F.2d 1127, 1128, 1131
(7th Cir. 1990) (finding that the statement “all cooperation is helpful” was the sort of “minor fraud that the cases allow” and did not make subsequent statements involuntary). “The mere existence of threats, violence, implied promises, improper influence, or other coercive police activity . . . does not automatically render a confession involuntary.” Braxton,112 F.3d at 780
. Rather, we must look at the totality of the
circumstances to see if Umaña was not acting of his own
volition.
40
Considering the entirety of the interrogation, we conclude
that Umaña’s statements were made voluntarily. While the
detectives’ statements may have been misleading, they never
amounted to an outright promise that nothing Umaña said would
ever be used against him. Rather, they were akin to the cryptic
encouragement we allowed in Whitfield and Rose. See also
Illinois v. Perkins, 496 U.S. 292, 297
(1990) (“Ploys to mislead
a suspect or lull him into a false sense of security that do not
rise to the level of compulsion or coercion to speak are not
within Miranda’s concerns”).
Moreover, Umaña’s statements and behavior during the
interrogation belie any notion that he thought his statements
could not be used against him. When the detectives were pushing
him to confess to the Fairfax Street murders, he observed that
“later on you’re going to come to me with another case,”
obviously indicating that he knew his words could be used
against him. And despite the detectives’ suggestions that
confessing would not “cost” him anything, Umaña never did so.
His most significant “confessions” were to admit to being in the
car during the Fairfax Street murders and dropping off the
shooters in Lemon Grove Park. But he never admitted to
committing any of the murders. To the contrary, throughout the
interrogation, Umaña’s statements were evasive and misleading.
For example, when an officer asked, “[W]ho fired at the two dead
41
persons?,” Umaña first responded, “I don’t know that,” and then,
“Look . . . perhaps my hands, perhaps someone else’s hands,
perhaps Negro’s hands, perhaps Chipie’s hands.” At one point,
he began rapping an MS-13 song to deflect the focus of the
interview. Umaña had experience in prior police interrogations,
and in this case he was given a Miranda warning and acknowledged
that he understood it. We have little doubt that Umaña knew
what he was doing as he played a cat-and-mouse game with
detectives.
At bottom, we conclude that there simply was no evidence
that Umaña thought his statements would not be used against him,
and we decline to conclude that any violation of his Fifth
Amendment rights against self-incrimination occurred.
42
VI
During the sentence selection phase of trial -- again in
connection with the Los Angeles murders -- the district court
allowed the government to introduce hearsay statements of MS-13
members accusing Umaña of committing the murders. Specifically,
the court allowed detectives to testify at trial about their
interviews with Luis Ramos, Luis Rivera, and Rene Arevalo. The
court also allowed the government to introduce the transcripts
of the interviews with Rivera and Arevalo.
Umaña objected to the evidence on the grounds that it (1)
violated his right to confrontation under the Sixth Amendment
and (2) constituted unreliable hearsay. The district court
overruled the objections, holding that the Confrontation Clause
does not apply to the sentence selection phase of capital
sentencing and that the hearsay statements bore sufficient
indicia of reliability and trustworthiness to be admissible
during sentencing. Umaña now contends that the district court
erred on both counts. We address each, seriatim.
A
Umaña argues that “it is clear from the Sixth Amendment’s
text and history, the Eighth Amendment, and the statutory
requirements of the [Federal Death Penalty Act] that the right
to confrontation applies throughout the sentencing phase of a
43
federal death penalty case.” Recognizing that the Sixth
Amendment has traditionally not been applied during sentencing,
he argues that the death penalty is qualitatively different from
other punishments and that application of the Confrontation
Clause would enhance reliability in the determination that death
is the appropriate punishment.
Courts have long held that the right to confrontation does
not apply at sentencing, even in capital cases. In Williams v.
New York, 337 U.S. 241
(1949), a state judge imposed the death penalty on a defendant based on (1) the evidence presented to the jury at trial, (2) “additional information obtained through the court’s Probation Department,” and (3) information obtained “through other sources,” as authorized by state law.Id. at 242-43
(internal quotation marks omitted). The defendant challenged the constitutionality of the sentence because it was “based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross-examination or rebuttal.”Id.
at 243 (quoting People v. Williams,298 N.Y. 803, 804
(1949)). In
rejecting the challenge, the Supreme Court noted that in modern
sentencing, which seeks a punishment that fits the offender, not
just the crime, the sentencing judge should be able to consider
“the fullest information possible concerning the defendant’s
life and characteristics.” Id. at 247. If that information
44
were “restricted to that given in open court by witnesses
subject to cross-examination,” it would become “unavailable.”
Id. at 250. The Court explained that “the type and extent of
this information [necessary to the ‘practice of individualizing
punishments’] make totally impractical if not impossible open
court testimony with cross-examination.” Id. The Court also
explained that sentencing is a highly discretionary function,
which is distinct from finding guilt, where due process requires
that the factfinder be “hedged in by strict evidentiary
procedural limitations.” Id. at 246. The Williams Court
indicated that the standard is no different for capital cases,
stating, “We cannot accept the contention” that “we should draw
a constitutional distinction as to the procedure for obtaining
information where the death sentence is imposed.” Id. at 251.
We conclude that Williams squarely disposes of Umaña’s
argument that the Sixth Amendment should apply to capital
sentencing.
Umaña maintains nonetheless that intervening case law has
eroded Williams, which he characterizes as containing “analysis
of a bygone era of untrammeled judicial discretion.” But he
provides no authority suggesting that Williams has been
overruled. To the contrary, Williams remains good law. The
Supreme Court recently affirmed its viability in Alleyne v.
United States, 133 S. Ct. 2151
(2013), in which the Court
45
recited Williams’ holding that “the Sixth Amendment does not
govern” “factfinding used to guide judicial discretion in
selecting a punishment ‘within limits fixed by law.’” Id.
at 2161 n.2 (quoting Williams,337 U.S. at 246
). And we recently held in United States v. Powell,650 F.3d 388
(4th Cir. 2011), that “a sentencing court [may] consider ‘any relevant information before it, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support its accuracy.’”Id.
at 392 (quoting United States v. Wilkinson,590 F.3d 259, 269
(4th Cir. 2010)). Indeed, in Powell, we specifically rejected the claim Umaña now makes that intervening case law undermined Williams, holding that “[r]ecent Confrontation Clause decisions do not require us to reconsider this settled distinction between trial evidence and sentencing evidence in the hearsay context.”Id.
Moreover, Umaña’s suggestion that evidence at sentencing be
restricted by the Confrontation Clause would frustrate the
policy of presenting full information to sentencers. As the
Williams Court pointed out, “Modern concepts individualizing
punishment have made it all the more necessary that a sentencing
judge not be denied an opportunity to obtain pertinent
information by a requirement of rigid adherence to restrictive
rules of evidence properly applicable to the trial.” 337 U.S. at 247
. Indeed, this policy has repeatedly been recognized as
46
essential to sentencing “reliability.” See, e.g., Gregg v.
Georgia, 428 U.S. 153, 204
(1976) (noting in the Eighth Amendment context, “We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision”); see also Woodson v. North Carolina,428 U.S. 280, 303-05
(1976) (invalidating a North Carolina death penalty statute for failing to allow defendants to put on evidence of their particular character and the circumstances of their offense). In United States v. Fields,483 F.3d 313, 336
(5th Cir. 2007), the court explained:
Where the [Supreme] Court discusses the need for
reliability in the Eighth Amendment context, it is not
talking about the appropriate sources for information
introduced at sentencing or even, more generally,
about the reliability of evidence. It is instead
focusing on (1) the need to delineate, ex ante, the
particular offenses for which death is a proportionate
punishment and (2) the need for the jury to be able to
consider all factors (particularly mitigating, but
also aggravating) relevant to choosing an appropriate
punishment once the death penalty is in play.
We agree with Fields. A policy of full information during
sentencing, unrestricted by the strict rules of evidence,
enhances reliability by providing the sentencing jury with more
relevant evidence, whether presented by the government or the
defendant. To now impose the rigorous requirements of
confrontation would not only be a setback for reliable
sentencing, it could also “endlessly delay criminal
47
administration in a retrial of collateral issues.” Williams,
337 U.S. at 250
.
Finally, Umaña contends that the Confrontation Clause
should apply to every fact that the jury finds, even during the
sentence selection phase, because facts of guilt and punishment
are “constitutionally significant.” He argues that jury
factfinding of aggravating factors during the sentence selection
phase of trial “alters the legally prescribed range and does so
in a way that aggravates the penalty.” (Quoting Alleyne, 133 S. Ct. at 2161
n.2). We find this argument unpersuasive. During the sentence selection phase of a capital trial, the jury exercises discretion in selecting a life sentence or the death penalty, and any facts that the jury might find during that phase do not alter the range of sentences it can impose on the defendant. Under the Federal Death Penalty Act, the jury finds the facts necessary to support the imposition of the death penalty in the guilt and eligibility phases of trial. See18 U.S.C. §§ 3591-3596
. It is only during these phases that the
jury makes “constitutionally significant” factual findings.
Only after finding Umaña death penalty eligible did the
jury in this case consider hearsay evidence to assist it in
exercising its discretion to select the appropriate sentence.
During the selection phase, a jury is not legally required to
find any facts. And while it may do so, such facts are neither
48
necessary nor sufficient to impose the death penalty -- they
merely guide the jury’s discretion in choosing a penalty. As
the Supreme Court has recently explained:
Juries must find any facts that increase either the
statutory maximum or minimum because the Sixth
Amendment applies where a finding of fact both alters
the legally prescribed range and does so in a way that
aggravates the penalty. Importantly, this is distinct
from factfinding used to guide judicial discretion in
selecting a punishment “within limits fixed by law.”
Williams v. New York, 337 U.S. 241, 246
(1949). While
such findings of fact may lead judges to select
sentences that are more severe than the ones they
would have selected without those facts, the Sixth
Amendment does not govern that element of sentencing.
Alleyne, 133 S. Ct. at 2161
n.2 (emphasis added).
Accordingly, we conclude that the Confrontation Clause does
not preclude the introduction of hearsay statements during the
sentence selection phase of capital sentencing. Accord Muhammad
v. Sec’y, Fla. Dep’t of Corrections, 733 F.3d 1065, 1073-77
(11th Cir. 2013); Fields,483 F.3d at 337-38
. The district
court’s holding that the Confrontation Clause did not prevent
the government from introducing the hearsay statements of
Umaña’s coconspirators during the selection phase of sentencing
is therefore affirmed.
B
Regardless of whether the Confrontation Clause applies,
Umaña challenges the admission of the hearsay testimony in this
case on the ground that it did not bear “sufficient indicia of
49
reliability to support its probable accuracy.” Powell, 650 F.3d at 394
(quoting U.S.S.G. § 6A1.3(a)). We review the district court’s ruling in this regard for abuse of discretion. See United States v. Basham,561 F.3d 302, 330
(4th Cir. 2009).
With respect to the Fairfax Street murders, Umaña argues
that the hearsay statements of Ramos, Rivera, and Arevalo -- all
of whom accused him of being the shooter -- did not bear
sufficient indicia of reliability. He argues that their
statements were not corroborated by independent evidence; that
any similarities in their statements were on “undisputed
peripheral details”; that Rivera and Ramos spent a weekend in
jail together before telling the same stories; that the
statements were the product of police pressure; that they were
contradicted in some respects by neutral observers; and that
they were self-serving inasmuch as they exculpated the accusers,
see Lee v. Illinois, 476 U.S. 530, 541
(1986) (noting that
“accomplices’ confessions that incriminate defendants” are
“presumptively unreliable”).
While these are all legitimate arguments, we conclude that
the court had other evidence that rendered the hearsay testimony
sufficiently reliable to overcome any presumption and support
its discretion in admitting the evidence. First, there was
undisputed ballistics evidence indicating that the same gun was
used for both the Fairfax Street and Lemon Grove Park murders.
50
Umaña admitted to being at the scene of both crimes, and there
is no evidence that anyone else was present at both murder
sites. Moreover, there was strong evidence, as discussed below,
linking Umaña to the Lemon Grove Park murder. Umaña attempts to
explain away the significance of the ballistics match by
suggesting that MS-13 members sometimes share guns, but there
was no evidence that Umaña himself ever shared his gun. In
addition, there was not just one accusation against Umaña by the
declarants, but three. To be sure Ramos’s accusation arose only
after he spent the weekend in jail with Rivera, but there is no
evidence that either Rivera’s or Arevalo’s accusations were
tainted by collusion. Finally, as the district court noted, the
statements themselves contained many other consistent details,
such as the “make and model of car involved, the presence of
crutches, the names of the other participants, the number of
victims, and the specific gang signs displayed by the victims.”
In light of all of these circumstances, we conclude that the
district court did not abuse its discretion in finding the
hearsay accusations of Rivera, Ramos, and Arevalo regarding the
Fairfax Street murders sufficiently reliable to admit them into
evidence.
With respect to the Lemon Grove Park murder, the government
introduced Arevalo’s hearsay statement accusing Umaña of
committing the crime. As with the Fairfax Street murders, the
51
ballistics evidence provided support for the reliability of
Arevalo’s accusation. Moreover, Freddie Gonzalez -- the target
of the Lemon Grove Park attack who escaped -- identified Umaña
in open court as the assailant. This evidence, we conclude,
provided Arevalo’s accusation with sufficient indicia of
reliability to warrant its admission at sentencing. See
U.S.S.G. § 6A1.3(a).
At bottom, we conclude that the district court did not
abuse its discretion in admitting the hearsay evidence about the
Los Angeles murders during the sentence selection phase of
trial.
VII
Umaña next contends that the district court abused its
discretion in admitting the transcripts of the detectives’
interviews of Rivera, Arevalo, and Umaña himself on the ground
that the transcripts included the detectives’ statements
vouching for the credibility of several MS-13 members during the
interviews, which, he argues, amounted to improper government
vouching at trial. He points out that during the course of the
interviews, the detectives told Rivera, for example, “I’m kind
of buying your story here,” and Arevalo, “You don’t seem like
the guy that did that.” In the interview of Umaña himself, a
52
detective stated that Ramos, Arevalo, and Rivera were “in jail
right now for something that he did.”
Umaña did not make this objection at trial, and accordingly
we review it under the plain error standard. That standard
requires Umaña to demonstrate (1) that the admission of the
evidence was error; (2) that the error was plain; and (3) that
it affected his substantial rights. Even then, we may only
exercise our discretion as to whether to notice the error if it
seriously affected the fairness, integrity, or public reputation
of the proceedings. See Johnson v. United States, 520 U.S. 461, 466-67
(1997).
While government vouching for the credibility of its own
witness is inappropriate, it is generally improper only when it
comes to the jury at trial from the prosecutor’s indication of
his personal belief about the credibility of a witness, although
it could also be improper for the prosecutor to solicit similar
vouching from government witnesses. See United States v. Lewis,
10 F.3d 1086, 1089
(4th Cir. 1993).
In this case we find no error, much less plain error. A
reasonable jury would not take the detectives’ comments during
the interviews as vouching for the trustworthiness of the
witness being interviewed, but rather as interrogation devices
designed to encourage the witness to talk. Patronizing a
witness with positive comments in order to uncover evidence of
53
criminal conduct, when introduced by the prosecutor in a
transcript, can hardly be taken as a prosecutor’s opinion that
the witness was trustworthy. And admitting several such
isolated comments embedded in voluminous transcripts would not
in any event be plain error that affected Umaña’s substantial
rights.
In a similar vein, Umaña challenges as vouching a question
by the prosecutor during trial to a detective who interviewed
Ramos, Arevalo, and Rivera, in which he asked what was
“consistent among all of the individuals [he] interviewed.” We
find that this question was not vouching at all, but a factual
inquiry to uncover statements common among the witnesses.
For these reasons, we reject Umaña’s vouching claims.
VIII
Umaña contends that the district court abused its
discretion in refusing to permit him -- during the sentence
selection phase -- to introduce evidence of the murders
committed by his RICO coconspirators, who were also MS-13
members. He argues that the evidence was relevant to show that
his own violent proclivities were not unique but rather were a
“product of social conformity.”
The district court applied 18 U.S.C. § 3592
(a)(8), which
provides for the admission of evidence in the sentence selection
54
phase relating to the “defendant’s background, record, or
character or any other circumstance of the offense that
mitigate[s] against imposition of the death sentence,” and
concluded that evidence of other MS-13 murders was “irrelevant
to his character or the circumstances of his offenses.” In
addition, the court concluded that such evidence would “confuse
and mislead the jury.” See 18 U.S.C. § 3593
(c) (authorizing the
judge to exclude evidence if “its probative value is outweighed
by the danger of creating unfair prejudice, confusing the
issues, or misleading the jury”).
We conclude that the district court did not abuse its
discretion. It is difficult to imagine that giving the jury
evidence of unrelated murders by MS-13 members would contribute
to the individualized decision of whether to impose the death
penalty on Umaña. Indeed, it might even work against him,
linking him with a number of other unrelated murders. Moreover,
whatever benefit Umaña might have obtained from introducing such
evidence was already available to him from evidence in the
record. For example, an MS-13 member testified that he had once
acted as a lookout while another MS-13 member “robbed two drunk
Hispanic guys,” and one of the victims “was shot dead” during
the robbery. Another MS-13 member testified about the
activities his clique engaged in: “Sell drugs, rob people, try
to kill people.” A detective testified that MS-13’s motto was
55
“Mata, Violar, Controla,” which translates to “Kill, Rape,
Control.” Finally, the jury had a copy of the indictment, which
listed many of the murders about which Umaña wanted to submit
evidence.
The district court was appropriately concerned that if
Umaña tried to prove these murders during sentencing, the
process would amount to mini-trials that would take days and
distract the jury. In excluding this evidence, the court acted
well within its discretion.
IX
Umaña contends that during closing argument in the sentence
selection phase of trial, the prosecutor made a number of
improper statements to the jury that were sufficiently
prejudicial as to require reversal of the death penalty verdict.
See United States v. Scheetz, 293 F.3d 175, 185-86
(4th Cir. 2002). But Umaña objected to only one of the statements when made at trial, and therefore we will review the others for plain error. See United States v. Woods,710 F.3d 195, 202
(4th Cir. 2013); United States v. Adam,70 F.3d 776, 780
(4th Cir. 1995).
A
The statement that Umaña objected to was the prosecutor’s
comment to the jury about Umaña’s attempt to bring a concealed
shank (tied to his penis) into the courtroom. The prosecutor
56
argued that Umaña tried to bring in the shank “to fight off
rivals. . . . You know who the rivals were? They’re the
Marshals. Those are his rivals. The judge is his rival. I’m
his rival. Anybody in this courtroom is a rival. You’re his
rival. He brought it on the first day of jury selection.”
(Emphasis added). The court sustained Umaña’s objection, and
the prosecutor continued the closing argument thereafter making
a different point -- that Umaña’s rival was “justice.”
Umaña contends that the prosecutor’s statement that “you’re
his rival” was improper because it encouraged the jurors to
abandoned their role as “neutral adjudicators” and become
“interested parties.” See United States v. Manning, 23 F.3d 570, 574
(1st Cir. 1994); see also Caro,597 F.3d at 626
. We
agree. The prosecutor’s statement portraying the jurors as
Umaña’s rivals was improper. Indeed, the government concedes
that it was “ill-advised.”
Nonetheless, we conclude that it was not so prejudicial as
to deprive Umaña of a fair sentencing trial. The comment was
isolated and did not constitute a pervasive theme throughout the
closing argument. Moreover, its effect could only be minimal in
light of the fact that Umaña did indeed try to bring a shank to
the jury selection proceeding, which likely influenced the
jurors more than did the prosecutor’s statement. In addition,
we think that, in light of Umaña’s attempt to bring the shank to
57
the jury selection, the prosecutor’s comments were, to some
degree, invited.
In sum, while the remark was inappropriate, we do not
believe that it was so prejudicial as to call into question the
integrity of the jury’s death sentence. The jury found every
aggravating factor beyond a reasonable doubt, making it unlikely
that the isolated comment was material to its decision.
B
The other comments made during the government’s closing
argument that Umaña challenges were not objected to when made,
and therefore we review them under the plain error standard.
Umaña contends that the prosecutor misleadingly compared
him to other MS-13 members with the following comment:
Let’s bring something back to the front here and
that’s that this defendant is compared with other MS
13 members according to what they would have you
believe, because all those MS 13 members were framed
and formed and created out of El Salvador.
* * *
So let’s compare him to the people around him and quit
taking him out and separating him and looking at him
as if he is only this way because of factors. He’s
here because of who he is. And he’s a killer. He’s
shown it over and over and over again. And he’s a
killer among killers. They talk about killing, yeah.
But we haven’t had any evidence of it. And of all the
people that were around him, he was the killer. He
rose to the top as the killer.
* * *
He’s the only killer.
58
Umaña argues that it was improper for the prosecutor to refer to
him as the “only killer” in MS-13 when he was not permitted to
put on evidence to the contrary.
First, as we have already concluded, the district court
acted within its discretion in refusing to allow Umaña to submit
additional evidence regarding murders committed by other MS-13
members. Moreover, Umaña misreads the statement, “He’s the only
killer.” When taken in context, the government clearly could
not have meant that Umaña was the only member of MS-13 who had
committed murder. Indeed, shortly before making that statement,
the prosecutor stated that Umaña was a “killer among killers.”
(Emphasis added). Finally, there was ample evidence before the
jury that other MS-13 members committed murders, as we have
already summarized.
We conclude that the statement can reasonably be taken only
as commenting that among the MS-13 members in the RICO
conspiracy charged in the case, Umaña was the only one who
pulled the trigger in the Salinas brothers’ murders. If the
statement was error, it was not plain error, nor did it affect
Umaña’s substantial rights.
C
Umaña claims next that the prosecutor made the following
improper comment:
59
But you know what we heard today from one of their
witnesses? There are only 240 MS-13 members in
prison. And I can promise you that if one of them was
there for life and was behaving, we would have heard
all about it.
Umaña notes that the district court had earlier denied his
motion to obtain data from the Bureau of Prisons regarding the
behavior of incarcerated MS-13 members. Nonetheless, he
obtained the evidence he wanted when he called as a witness a
retired warden for the Bureau of Prisons who testified that MS-
13 is not considered an especially serious security risk in the
prison environment. Understood in that context, the
prosecutor’s statement was just a critique of this testimony,
and we find nothing improper about it.
D
Next, Umaña objects to the prosecutor’s comment made during
closing argument that “[y]ou want to bring El Salvador
here. . . . [Y]ou’d better be ready for some American
justice.” He argues that the statement “invoked an us-versus-
them theme” that did nothing more than encourage “[r]acial
prejudice.” The government argues that the comments were not
inappropriate in view of the fact that Umaña’s mitigation case
turned on his upbringing in El Salvador, and therefore it was
appropriate to “urg[e] the jury to hold him to American
standards of justice.”
60
We cannot agree that the comment that Umaña should be
“ready for some American justice” responds to Umaña’s mitigation
case that his impoverished El Salvadoran upbringing was
responsible for his criminality. But the statement was isolated
in only a small part of the prosecutor’s closing argument.
Moreover, any prejudice that the statement may have caused was
likely dwarfed by the racial prejudice Umaña himself incited in
letters he had written from prison evincing strong anti-American
rhetoric. For example, one letter in evidence claimed that
“2012 and 2013 . . . are when these little Americans are going
to be humiliated by all Hispanics from Central America, South
America, and Latin America, especially by prisoners, drug
dealers, mafias, and gangbangers.”
Finally, the district court instructed the jury that
national origin could not play a part in its verdict, and each
juror certified in writing that it had not.
As such, even if the error was plain, we conclude that it
did not affect Umaña’s substantial rights.
E
Next, Umaña challenges the following prosecutorial
statement made during closing argument:
[I]f you give him life, [he] is going to have his
inmate bill of rights. . . . He took lives. Are you
going to give him his bill of rights? Manuel and
Ruben didn’t have a bill of rights.
61
* * *
They cease to become living, breathing humans and
became a corpse. Well, they’re a corpse. And they’re
a corpse and you’re going to send him to the dining
hall. Is that justice?
Umaña argues that this statement improperly compared the plight
of the victims with life in prison, thus making light of a term
of life imprisonment without the possibility of release.
We do not believe that it was error, much less plain error,
for the prosecutor to have compared Umaña’s potential prison
sentence with the plight of the victims. In United States v.
Runyon, 707 F.3d 475, 513
(4th Cir. 2013), the prosecutor “made a number of comments contrasting the criminal justice system’s treatment of [the defendant] with [the defendant’s] treatment of [the victim].” We declined to find such comments to be improper, noting that “it is, of course, perfectly permissible for the prosecution to urge the jury not to show a capital defendant mercy.”Id.
In Runyon, we thought that “the whole matter represent[ed] the sort of thrust and parry in which attorneys typically engage in the course of their last chance to persuade a jury.”Id.
We reach the same conclusion here.
F
Finally, Umaña challenges the prosecutor’s use of religious
imagery during the course of closing argument. When discussing
62
Umaña’s letters, sent while he was in prison, the prosecutor
said:
This [letter] is called -- it’s got a title. One more
day with the beast. Do you remember who the beast is?
It’s tattooed on his body. It’s in his heart. It’s
the devil. It goes like this:
“One more day has now begun and I thank the
beast that we keep on standing here with a
joint of weed and a fully loaded gun, ready
and prepared to go out into the streets like
I have always planned. . . .”
Umaña argues that, in these comments, the prosecutor was
“compar[ing] [him] to ‘the devil.’”
To be sure, we have condemned “religiously charged
arguments as confusing, unnecessary, and inflammatory.” Bennett
v. Angelone, 92 F.3d 1336, 1346
(4th Cir. 1996). In this case,
however, prejudice could hardly have occurred, as Umaña’s
conduct amply invited reference to the devil. When he was in
the courtroom, he “threw” MS-13’s gang sign -- the horns of the
devil. Moreover, he had tattoos of devilish figures on his
body. And, of course, his prison letters -- including the one
that the prosecutor read immediately after she made the beast
comment -- contained vivid imagery evoking the devil. While it
might have been better not to make so explicit or direct an
allusion to the devil and its place in Umaña’s heart, we cannot
conclude that, in context, the comment so prejudiced Umaña as to
affect his substantial rights.
63
In sum, we conclude that the prosecutorial statements made
during closing argument either were not error or, if they were,
were not sufficiently prejudicial to require vacating the death
penalty verdict.
X
Umaña next challenges the district court’s decision to
allow the government to prove “future dangerousness” as a
nonstatutory aggravating factor during the sentence selection
phase of the trial. He argues that, in the prison context, the
jury can never make a prediction about future dangerousness on
any reliable basis. He points to several empirical studies by
Mark Cunningham, his defense expert, who reported a lack of
correlation between future dangerousness findings and actual
prison violence.
We have, however, previously rejected this precise
argument, holding that whether a defendant would pose a danger
to others while in prison is a proper question for the jury.
See Hager, 721 F.3d at 200
. As we said in Hager, “Perhaps we might someday be presented with a case in which we are persuaded that the evidence presented as to a defendant’s future dangerousness was merely speculative or that it was constitutionally infirm.”Id.
Like in Hager, we conclude that
this is not such a case. Indeed, there was ample evidence
presented in this case to allow the jury to find that Umaña was
64
likely to commit criminal acts of violence in the future, even
in prison, and that he would constitute a continuing and serious
threat to the lives and safety of others.
With respect to this aggravating factor, Umaña also
challenges the structure of the verdict form because it allowed
the jury only to indicate that it had found the particular
subfactors and did not give the jury an opportunity to indicate
whether or not they had found the “overarching aggravator” of
future dangerousness. Umaña argues that this created a
“presumption” of future dangerousness upon finding any one of
the subfactors. 1
1
The form that the district court submitted to the jury for
the purpose of finding the aggravating factor of future
dangerousness appears as follows:
Do you, the jury, unanimously find that the government
has proven beyond a reasonable doubt that the
defendant is likely to commit criminal acts of
violence in the future which would constitute a
continuing and serious threat to the lives and safety
of others, as evidenced by at least one or more of the
following:
a. The defendant has engaged in a continuing
pattern of violence, attempted violence, and
threatened violence, including but not limited to the
crimes alleged against the defendant in the
Indictment.
Yes: ______ No: ______
b. The defendant poses a future danger to the
lives and safety of other persons as demonstrated by
his lack of rehabilitation after incarceration, his
65
We disagree with Umaña’s reading of the form. To be sure,
we think that the form would have been clearer had the
introductory language ended after the first two lines and had
each lettered paragraph thereafter begun with future
dangerousness language. But the form as used did not create any
presumption, as Umaña argues. Rather, it presented the jury
with four specific factual circumstances of future dangerousness
on which the government presented evidence. The form was not
designed to permit the jury to find future dangerousness except
by finding one or more of the specific facts evidencing future
dangerousness. And, of course, the form permitted the jury to
find a fact evidencing future dangerousness only if they were
unanimous and the fact was proved beyond a reasonable doubt.
pattern of criminal conduct, and his allegiance to and
membership in MS-13?
Yes: ______ No: ______
c. The defendant has never expressed any remorse
for killing Ruben Garcia Salinas as indicated by
defendant’s statements to fellow gang-members during
the course of and following the offenses alleged in
the Indictment?
Yes: ______ No: ______
d. The defendant has demonstrated an allegiance
to and active membership in MS-13, a violent criminal
enterprise?
Yes: ______ No: ______
66
XI
Umaña argues that he should have been allowed to submit
evidence regarding the impact that his execution would have on
his wife and child. This argument, however, is squarely
foreclosed by our decision in Hager, 721 F.3d at 194
(“[A]llowing a capital defendant to argue execution impact as a
mitigator is improper”).
XII
Umaña next contends that his death sentence violated the
Eighth Amendment because he was only convicted of “second degree
murder.” He points out that the verdict form in this case
reflected a finding that he committed murder, but not an
additional finding that he did so with “premeditation and
deliberation.” He therefore argues that the jury’s finding of
guilt was sufficient to “establish only a conviction for second
degree murder.” Moreover, he maintains that there is a
“national consensus . . . against death as a punishment for
second degree murder.” He explains that because second degree
murder is “unpremeditated malice killing,” it is “not well
suited to capital punishment” because such murders cannot be
deterred by the death sentence. Finally, he asserts that only
nine States “authorize death for the second degree murders that
occurred here.”
67
The death-qualifying conduct that the jury found in this
case was (1) that Umaña murdered the Salinas brothers in aid of
racketeering for the purpose of maintaining or increasing his
position in a racketeering enterprise, in violation of §
1959(a)(1); (2) that he used a firearm in relation to a crime of
violence resulting in the deaths of the Salinas brothers and
that the killings were done “with malice aforethought,” in
violation of § 924(c) and (j)(1); and (3) that he killed the two
brothers and attempted to kill another person “in a single
criminal episode.” The jury also found that the other criteria
for imposing the death penalty, as contained in the Federal
Death Penalty Act of 1994, were satisfied in this case. The
question raised by Umaña’s challenge is whether the death
penalty, which is authorized by these statutes, is an excessive
or cruel and unusual punishment for the conduct found by the
jury, as prohibited by the Eighth Amendment.
“[T]he Eighth Amendment’s protection against excessive or
cruel and unusual punishments flows from the basic ‘precept of
justice that punishment for [a] crime should be graduated and
proportioned to [the] offense.’” Kennedy v. Louisiana, 554 U.S. 407, 419
(2008) (alterations in original) (quoting Weems v. United States,217 U.S. 349, 367
(1910)). To ensure
proportionality, “capital punishment must ‘be limited to those
offenders who commit a narrow category of the most serious
68
crimes and whose extreme culpability makes them the most
deserving of execution.’” Id.
at 420 (quoting Roper v. Simmons,543 U.S. 551, 568
(2005)) (internal quotation marks omitted). As such, States and the federal government must “limit the class of murderers to which the death penalty may be applied.” Brown v. Sanders,546 U.S. 212, 216
(2006). This limiting function is generally accomplished when “the trier of fact . . . convict[s] the defendant of murder and find[s] one ‘aggravating circumstance’ (or its equivalent) at either the guilt or penalty phase.” Tuilaepa v. California,512 U.S. 967, 972
(1994). The Supreme Court has also recognized several “categorical restrictions on the death penalty.” Graham v. Florida,560 U.S. 48, 59
(2010). In so doing, the Court uses the following
approach:
[It] first considers “objective indicia of society’s
standards, as expressed in legislative enactments and
state practice” to determine whether there is a
national consensus against the sentencing practice at
issue. Next, guided by “the standards elaborated by
controlling precedents and by the Court’s own
understanding and interpretation of the Eighth
Amendment’s text, history, meaning, and purpose,” the
Court must determine in the exercise of its own
independent judgment whether the punishment in
question violates the Constitution.
Id.
at 61 (quoting Roper,543 U.S. at 563
, and Kennedy,554 U.S. at 421
).
These Eighth Amendment principles do not suggest, as Umaña
urges, a categorical ban on capital punishment for “second
69
degree murders.” To the contrary, the Supreme Court has
explicitly approved a plethora of aggravating factors that
afford the jury “wide discretion” in crimes “where the victim
dies.” Kennedy, 554 U.S. at 440
. And there is no indication by the Court that the States or the federal government must include premeditation or deliberation as a required aggravating factor. Indeed, the Court has repeatedly upheld death penalty schemes that did not require a finding of premeditation and deliberation. For instance, in Arave v. Creech,507 U.S. 463
(1993), the statute under which the defendant was convicted defined “first degree murder” to include not only premeditated murders but also murders where, for example, (1) the victim was a fellow prison inmate or law enforcement officer, (2) the defendant was already serving a sentence for murder, (3) the murder occurred during a prison escape, or (4) the murder occurred during the commission of specified felonies.Id. at 475
. In the context of that statute, the Court found sufficiently narrowing as an aggravating factor the fact that the defendant was a “cold-blooded, pitiless slayer.”Id. at 472-76
. Similarly, in Jurek v. Texas,428 U.S. 262
(1976), the Court upheld the death penalty for murder that had to be deliberate but not premeditated and where the jury made a finding of future dangerousness.Id. at 269
(describing the regime). And in Tison v. Arizona,481 U.S. 137
(1987), the
70
Court upheld the death penalty for a participant in a felony
murder who had not actually committed the murder. The Court
held that the defendant’s “substantial participation in a
violent felony under circumstances likely to result in the loss
of innocent human life may justify the death penalty even absent
an ‘intent to kill.’” Id. at 154
. In short, there is no
suggestion that capital punishment is appropriate only for
murders involving premeditation and deliberation.
In the same vein, a survey of state statutes reveals a lack
of any national consensus that premeditation and deliberation
are necessary to qualify a defendant for the death penalty.
Most state statutes that divide murder into degrees include in
“first degree murder” more than just premeditated murders. The
overwhelming majority include felony murders and make them
punishable by death without any showing of premeditation. 2 And
2
On our review of the 22 States that divide murders into
degrees, 17 make felony murder without premeditation a capital
crime. See Ariz. Rev. Stat. Ann. § 13-1105
;Ark. Code Ann. §§ 5-10-101
to -102;Cal. Penal Code §§ 189
, 190;Colo. Rev. Stat. §§ 18-3-102
, -1.3-1201;Del. Code Ann. tit. 11, § 636
;Idaho Code Ann. §§ 18-4003
to -4004; La. Rev. Stat. Ann. § 14:30;Miss. Code Ann. § 97-3-19
;Neb. Rev. Stat. § 28-303
;Nev. Rev. Stat. § 200.030
; N.H. Rev. Stat. § 630:1;N.C. Gen. Stat. § 14-17
;Okla. Stat. tit. 21, §§ 701.7
, 701.9;S.D. Codified Laws §§ 22-16-4
, -6-1; Tenn. Code § 39-13-202;Wash. Rev. Code §§ 10.95.020
-.030;Wyo. Stat. Ann. § 6-2-101
.
And in the 10 States that do not include degrees, all 10
provide for capital punishment for felony murder absent any
premeditation. See Ala. Code § 13A-6-2; Ga. Code Ann. § 16-5-1
;
71
there are numerous examples of other types of murder, for which
the penalty may be death, that do not require premeditation or
deliberation. 3 The principle that may be derived from these
state statutes is that capital murders are not defined solely by
premeditation and deliberation, but rather by elements that make
those murders particularly heinous.
The federal statutes applicable in this case follow the
national consensus. Section 1959 authorizes the death penalty
for murder that aids racketeering enterprises, and § 924(c) and
(j)(1) authorize the death penalty for committing murder with
malice aforethought, as defined in 18 U.S.C. § 1111
(a), while using a firearm during and in relation to a crime of violence. The Federal Death Penalty Act further narrows the circumstances where the death penalty may be imposed by requiring that the jury find that the defendant had the requisite intentional mens rea,18 U.S.C. § 3591
(a)(2), and that at least one statutoryInd. Code §§ 35-42-1-1
, 35-50-2-3;Ky. Rev. Stat. Ann. § 507.020
;Mont. Code Ann. § 45-5-102
;Ohio Rev. Code Ann. § 2903.01
;Or. Rev. Stat. §§ 163.095
, .105, 115;S.C. Code Ann. §§ 16-3-10
to -20; Tex. Penal Code § 19.03;Utah Code Ann. § 76
-
5-202.
3
E.g., Ariz. Rev. Stat. Ann. § 13-1105
(A)(3) (classifying as first degree murder the unpremeditated, intentional killing of a police officer in the line of duty);Ark. Code Ann. § 5-10
- 101 (making it a capital crime to cause the death of a child less than 14 years of age while exercising extreme indifference to human life);Nev. Rev. Stat. § 200.030
(1)(c) (defining as
murder in the first degree murders committed to avoid arrest).
72
aggravating factor existed, id.
§ 3593(d). The jury found the
conditions satisfied in this case, including that Umaña had
engaged in multiple killings. See id. § 3592(c)(16).
In light of the flexibility the Supreme Court affords
lawmakers in determining the aggravating factors that define
capital murders, Kennedy, 554 U.S. at 440
, and because there is
no nationwide consensus requiring premeditation or deliberation
as required predicates for the imposition of the death penalty,
we conclude that §§ 1959(a)(1) and 924(c),(j)(1), in concert
with the Federal Death Penalty Act, impose sufficient narrowing
criteria to satisfy the Eighth Amendment.
Umaña contends alternatively that even if the death penalty
is not categorically barred as a punishment for the crimes of
which he was convicted, it was nonetheless excessive in the
particular circumstances of this case. This argument merits
minimal discussion. The jury found that Umaña killed two people
in furtherance of a racketeering enterprise, and that he had
killed before and posed a danger in the future. We conclude
that the death penalty was proportional to the crimes for which
Umaña was convicted.
XIII
Finally, Umaña contends -- with respect to the claim he
made to the district court that he is mentally retarded and
73
therefore should not receive the death penalty -- that the
government should have borne the burden of proof. He does not
challenge the merits of the district court’s findings with
respect to his claim of mental retardation. Rather, he argues
that since his interest in the issue is a “matter of life and
death,” see Atkins v. Virginia, 536 U.S. 304
(2002) (holding
that the death penalty is inappropriate for mentally retarded
defendants), the government should have borne the burden to
prove him competent and, because it did not carry the burden, he
should not have received the death penalty.
We conclude that Umaña cannot now make this argument. He
argued below that he had the burden of proof on the issue, and
any error that he now claims was invited by him. In his motion
for a pretrial hearing on mental retardation, he stated:
Because Defendant’s court-appointed neuropsychologist
has obtained a full-scale IQ result of 66, it appears
that there is a substantial possibility that Defendant
will ultimately be able to carry his burden of
establishing by a preponderance of the evidence that
he is mentally retarded and thus ineligible for the
death penalty.
(Emphasis added). This statement by Umaña that he bore the
burden of proving mental retardation was not an errant mistake.
In two other motions requesting a hearing on mental retardation,
he included citations to various district court cases describing
the procedure for such hearings, which included the following
parenthetical: “finding that question of mental retardation
74
should be resolved by the judge at a pretrial hearing, and
burden should be on defendant by preponderance of the evidence.”
Moreover, at the hearing itself, the district court stated at
the outset that the burden would be on Umaña to prove mental
retardation by a preponderance of the evidence, and Umaña did
not object. He cannot now complain that the district court
followed the very procedure that he requested. See United
States v. Lespier, 725 F.3d 437, 449-51
(4th Cir. 2013).
In any event, we conclude that Umaña correctly stated the
law in representing to the district court that he had to carry
the burden of proof on the issue. When a defendant seeks to
show that he is mentally retarded, he is putting on an
affirmative defense that would preclude execution, see Walker v.
True, 399 F.3d 315, 326
(4th Cir. 2005), and defendants may constitutionally be made to bear the burden of proof for affirmative defenses, see Leland v. Oregon,343 U.S. 790, 799
(1952) (holding, in the context of a capital case, that States may require defendants to bear the burden of proving insanity beyond a reasonable doubt); see also Patterson v. New York,432 U.S. 197, 210
(1977) (“Proof of the non-existence of all
affirmative defenses has never been constitutionally required”).
Umaña now argues that, as a matter of due process, the
government must bear the burden of proof on mental retardation,
citing United States v. Bush, 585 F.3d 806, 814
(4th Cir. 2009),
75
where we held that the involuntary administration of
antipsychotic drugs to restore a defendant’s competence for
trial required the government to prove the relevant factors by
clear and convincing evidence. See also Addington v. Texas, 441 U.S. 418, 431-33
(1979) (concluding that the government’s proof must meet a “clear and convincing evidence” standard for civil commitment). These cases, however, are inapt comparisons. When the government seeks to involuntarily commit or medicate a defendant, it is not presenting an affirmative defense but attempting to infringe on the individual’s constitutionally protected liberty interests. See Sell v. United States,539 U.S. 166, 177-79
(2003); Addington,441 U.S. at 425
.
Umaña also argues that a finding of mental retardation was
an Apprendi element of his capital offense, which would alter
the prescribed range of sentences to which he was exposed and,
therefore, be the government’s responsibility to prove. See
Alleyne, 133 S. Ct. at 2160
. But we rejected this precise
argument in Walker, where we stated:
[T]he finding of mental retardation does not increase
the penalty for the crime beyond the statutory maximum
-- death. Rather, a defendant facing the death
penalty may avoid that penalty if he successfully
raises and proves by a preponderance of the evidence
that he is mentally retarded. The state does not have
a corollary duty to prove that a defendant is “not
retarded” in order to be entitled to the death
penalty. Accordingly, “an increase” in a defendant’s
sentence is not predicated on the outcome of the
mental retardation determination; only a decrease.
76
399 F.3d at 326
(citations omitted). When a defendant raises mental retardation as an issue, its resolution can only decrease the sentence to which the defendant is exposed, and the Apprendi line of cases is therefore not applicable. See In re Johnson,334 F.3d 403, 405
(5th Cir. 2003) (“[N]either Ring and Apprendi
nor Atkins render the absence of mental retardation the
functional equivalent of an element of capital murder which the
state must prove beyond a reasonable doubt. As the state points
out, the absence of mental retardation is not an element of the
sentence any more than sanity is an element of an offense”
(citation omitted)).
We accordingly reject Umaña’s argument that the government
had the burden of proving the absence of mental retardation in
order for him to receive the death penalty.
XIV
Umaña has presented numerous issues in challenging his
conviction and sentence, each of which has been fully presented
in his fulsome brief and at oral arguments to the court. After
having carefully considered each of his arguments, as well as
the record in this case, we conclude that Umaña had a fair trial
and that the death penalty was justified by the jury’s factual
findings and by law and was not imposed under the improper
77
influence of passion, prejudice, or any other arbitrary factor.
Accordingly, we affirm his conviction and sentence.
AFFIRMED
78
GREGORY, Circuit Judge, dissenting:
The majority opinion denies Mr. Umaña the right to confront
his accusers in a jury proceeding to determine whether he lives
or dies. The right to confront one’s accusers is a right as old
as it is important. Cf. Acts 25:16 (“[I]t is not the Roman
custom to hand over anyone before they have faced their
accusers...”). The Sixth Amendment guarantees a defendant the
right “to be confronted with the witnesses against him” “in all
criminal prosecutions.” U.S. Const. amend. VI. It also
guarantees the right to an attorney, jury factfinding, notice of
the crimes of which a defendant is accused, and a trial in the
venue where the crime was committed. Id.
The last four of these Sixth Amendment rights -- counsel,
jury, venue, and notice -- are not at issue today, nor are they
controversial. During Federal Death Penalty Act (“FDPA”)
proceedings, a defendant cannot be sentenced to death without
these Sixth Amendment rights. However, under the majority’s
holding today, capital defendants are denied the right to
confront their accusers throughout certain stages of an FDPA
proceeding. In contravention of the history and text of the
Confrontation Clause, and in spite of modern Supreme Court
jurisprudence emphasizing the importance of the Confrontation
Clause, the majority strips Umaña of the Sixth Amendment right
79
most important for ensuring the accuracy of trial outcomes
during the most important proceeding of his life.
This is an important constitutional question that the
Supreme Court has not yet resolved, though three circuits have
wrestled with the issue. See Muhammad v. Sec’y, Fla. Dep’t of
Corr., 733 F.3d 1065
(11th Cir. 2013) (finding that Confrontation Clause does not apply to capital cases after guilty verdict); Szabo v. Walls,313 F.3d 392, 398
(7th Cir. 2002) (same); United States v. Fields,483 F.3d 313
, 324–338 (5th Cir. 2007) (same); Proffitt v. Wainwright,685 F.2d 1227
, 1252–53 (11th Cir. 1982) (finding a right to cross examine the author of a psychiatric report under the Sixth Amendment during sentencing) modified,706 F.2d 311
(expressly limiting case to
psychiatric reports). 1 This is an issue of first impression in
this circuit, though we have held that the Confrontation Clause
1
In addition, district courts have addressed this issue,
reaching conflicting results. Four district courts have found
that the Clause applies. See United States v. Stitt, 760 F. Supp. 2d 570, 581-82
(E.D. Va. 2010); United States v. Sablan,555 F. Supp. 2d 1205
(D. Colo. 2007); United States v. Mills,446 F.Supp. 2d 1115
, 1127–1129 (C.D. Cal. 2006); United States v. Green,372 F.Supp.2d 168, 175
(D. Mass. 2005). Another district court found that the right applies, but this decision was vacated. United States v. Jacques,768 F.2d 684
, 698–700 (D. Vt. 2011) vacated by United States v. Jacques,684 F.3d 324, 330
(2d Cir. 2012). Two district courts have found that the right applies only during the eligibility phase of sentencing, which is the second stage of FDPA trials. See United States v. Jordan,357 F. Supp. 2d 889, 903
(E.D. Va. 2005); United States v. Bodkins, CRIM.A. 4:04CR70083,2005 WL 1118158
(W.D. Va. May 11,
2005).
80
does not apply in non-capital sentencing. United States v.
Powell, 650 F.3d 388
, 392–93 (4th Cir. 2011).
“Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one of
only a year or two. Because of that qualitative difference,
there is a corresponding difference in the need for reliability
in the determination that death is the appropriate punishment.”
Woodson v. North Carolina, 428 U.S. 280, 305
(1976) (plurality opinion). I would refuse to strip a defendant of the Confrontation Clause right -- a right whose “very mission . . . is to advance the accuracy of the truth-determining process in criminal trials” -- at a proceeding in which a jury must decide whether a man lives or dies. United States v. Inadi,475 U.S. 387, 396
(1986) (internal quotation marks and citations
omitted). Accordingly, I dissent.
I.
I begin with some of the factual background that provides
the foundation for my reasoning. First, one must understand the
unique structure of FDPA trials, which illustrates that the
Confrontation Clause should not disappear simply because a
defendant is accused of a crime at a later stage of his judicial
proceedings. Second, one must understand the nature of the
accusations made in this particular case. Mr. Umaña was
81
sentenced to death largely based on unconfronted testimony that
was as damning as it was dubious.
The FDPA requires three jury findings before a criminal
defendant can be killed by the federal government. First, the
defendant must be found guilty of a death-eligible crime. 18 U.S.C. § 3591
. Second, a factfinder must decide whether one of several aggravating factors exists. The factors that make a defendant eligible for death are listed by statute.18 U.S.C. § 3593
(e). Third, if such an aggravating factor is found, the factfinder must finally decide whether all aggravating factors outweigh all mitigating factors.Id.
Unless the factfinder makes
the requisite findings in each of the three stages, death is not
within the permissible range of sentences.
In this case, the district judge trifurcated the
proceedings so that each of the above steps was conducted
separately. J.A. 3224. In the second phase, the government only
sought to prove that Mr. Umaña met two statutory aggravating
factors: an attempt to kill more than one person in a single
criminal episode, and the knowing creation of a grave risk of
death to more than one person. J.A. 2631; see 18 U.S.C. § 3592
(c)(5), (c)(16). In the third phase, the government sought
to prove four more aggravating factors. J.A. 3543–45. Most
relevant in this case, and what ultimately became the keystone
of the government’s argument, was whether Mr. Umaña had been
82
involved in other acts of violence not reflected in his criminal
record, specifically two separate incidents of murder in Los
Angeles. J.A. 3544. The primary evidence for these crimes was a
series of transcripts of police interrogations in which
accomplices of Umaña who were with him during the first of two
Los Angeles murder incidents claim that Umaña was the only
member in their group who fired a weapon that killed two
teenagers. Umaña had no opportunity to cross-examine these
witnesses.
The FDPA provides a set of safeguards that applies to
evidence at capital sentencing, though constitutional safeguards
also apply. See Estelle v. Smith, 451 U.S. 454
, 462–63 (1981). While evidence presented need not comport with the entirety of the Federal Rules of Evidence, information must nonetheless be excluded “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.”18 U.S.C. § 3593
; accord Fed. R. Evid. 403. In
addition, the FDPA explicitly provides for rights echoing those
of the Sixth Amendment. The FDPA requires that the government
attorney give notice of the specific aggravating factors that
will be used to justify a death sentence. Compare § 3593(a) with
U.S. Const. amend. VI (“[T]he accused shall enjoy the right . .
. to be informed of the nature and cause of the accusation.”).
The defendant is given the right to a jury. Compare § 3593(b)
83
with U.S. Const. amend. VI (“[T]he accused shall enjoy the right
to a speedy and public trial, by an impartial jury.”). However,
the statute is silent on other Confrontation Clause rights. See
generally 18 U.S.C. §§ 3591-99
. Importantly, the fact that the FDPA is silent on certain constitutional rights does not mean that those rights do not exist or that the Act is unconstitutional. See United States v. Fulks,454 F.3d 410
, 437– 38 (4th Cir. 2006); United States v. Sampson,486 F.3d 13
, 22–23
(1st Cir. 2007).
Finally, in addition to understanding the structure of FDPA
trials, it is important to emphasize that the unconfronted
testimony used against Umaña was as critical to the government’s
case as it was inherently suspect. In Bruton v. United States, a
co-defendant’s accusation against the defendant was introduced
as evidence by a separate witness. 391 U.S. 123, 124
(1968). In finding a violation of the Confrontation Clause, the Court noted that accusations from co-defendants facing punishment for the same crime are not only “devastating to the defendant but their credibility is inevitably suspect . . . given the recognized motivation to shift blame onto others.”Id. at 136
. A review of the record in this case demonstrates both how “devastating” and how “suspect” such accusations can be.Id.
First, the accusations were devastating: the government
made the evidence of multiple previous murders the centerpiece
84
of its case for the death sentence. Nearly every page of the
transcript of the government’s summation argument in the third
phase of the trial focuses on these unconfronted accusations of
murder. See, e.g., J.A. 3402 (“[Umaña] had killed before”); J.A.
3403 (“[Umaña] had earned those two letters on his forehead and
he earned them by killing”); J.A. 3404 (“[Umaña] . . . had
killed before. And he was going to kill again.”); J.A. 3405
(claiming to jury that Umaña thought “I’ve done this before. I
know what I have to do.”); J.A. 3406 (claiming to jury that
Umaña thought “I know they were dead because I know what dead
is. I’ve killed before.”); J.A. 3407 (“We know he’s killed
before.”); J.A. 3408 (“Does that [previous murder] story sound
familiar? . . . Sure it sounds familiar because that’s exactly
what happened later in Greensboro.”); J.A. 3409 (arguing that
Umaña thought to himself, “I’m Wizard from MS-13. We need to go
out and we need to take care . . . of the people in [Lemon Grove
Park]. And that’s exactly what he did.”); J.A. 3411 (pointing to
“the two that you heard a lot of evidence on, the two additional
– the three additional murders”).
The record also reveals that the accusations, though
“devastating,” were “suspect.” Bruton, 391 U.S. at 136
. For the
first Los Angeles murder incident, in which a group of MS-13
members exited a car to shoot two teenagers who had flashed
rival gang signs, there is conflicting eyewitness evidence on
85
Umaña’s role. Two eyewitnesses with no role in the altercation
stated to police that the shooter was the driver of the car.
However, three of Umaña’s fellow gang-members who were in the
car with him claimed that Umaña was the shooter, but also stated
that Umaña was not the driver. Thus, for this murder allegation,
the only evidence linking Umaña to the crime was given by three
potential co-defendants with a strong incentive to push the
blame onto Umaña. Neutral eyewitnesses, meanwhile, suggest that
Umaña was not the shooter.
The only other inculpatory evidence for these two murders
is from Umaña himself. Police officers from Los Angeles who were
investigating these murders interviewed Umaña in North Carolina
after Umaña had been arrested for the murder of the Salinas
brothers. These officers told Umaña that he might as well admit
to the Los Angeles murders because, given that he was facing a
mandatory life sentence for the North Carolina murders, it would
make no difference if he claimed responsibility for the prior
crimes. After denying that he was responsible for the prior
murders at length, Umaña eventually gave in to the
interrogation, albeit with an equivocal, unclear statement:
Officer: Did you shoot him? Tell me, tell me face to
face. Did you shoot him?
Umaña: Say that, that I did it. Right? I really didn’t
do it, right?
Officer: You did it?
86
Umaña: To say it like that.
Officer: No. Not just to say it, but to say the truth
. . .
Umaña: To say the truth?...[laughs]
Officer: You did it? Not out of meanness, but because
you thought they were, were gang members.
Umaña: Ah . . .
Officer: Is that right?
Umaña: Yes. . . . And that is[,] that is the point
that mattered to him? [Laughs]?
J.A. 4382–83.
Umaña was also linked to a third murder that occurred in
Lemon Grove Park. Two pieces of evidence link Umaña to this
crime. First, the same gun was used in this murder as was used
in the previous Los Angeles murders, at which Umaña was present.
This evidence is weak in light of expert testimony during trial
suggesting that MS-13 gang members share their firearms as a
matter of course. That said, Umaña admits to having been present
at both murders, which gives more weight to the fact that the
same murder weapon was used. However, while “there is no
evidence that anyone else was present at both murder sites,”
Maj. Op. at 51, there were apparently one or two dozen people at
the scene of the second murder, and the identities of these
people are unknown. Thus, Umaña was present at both murders, but
it is speculation to conclude that no one else was as well.
87
In addition to this circumstantial evidence, there is weak
eye-witness evidence that implicates Umaña in the Lemon Grove
Park murder. The witness, a member of a rival gang, twice picked
Umaña out of a photo lineup. In 2005, the witness chose Umaña’s
picture out of a six-person photo lineup, but only concluded
that “I remember seeing this guy but I’m not sure if he is the
one that came that day to the park.” J.A. 4060. Three years
later, the witness again picked Umaña’s picture out of a lineup,
but again expressed uncertainty, noting that “I’m not 100%
sure,” because “everything happened so fast.” J.A. 4057. The
witness clarified that “what I saw was the gun and after that I
began to run.” Id.
This witness testified during sentencing,
where he noted that the shooting occurred after 9 p.m. on a
basketball court where the overhead lights had been turned off.
Thus, while Umaña has been linked to another Los Angeles murder,
the best evidence of this link is from a witness who saw the
shooter from twenty feet away at night with at best partial
lighting. Further, this witness admitted that he only saw a gun
before taking off running in the opposite direction. This
witness has never been able to make an identification nearing
100% certainty.
Finally, and most problematic, the government introduced
evidence linking Umaña to murders in El Salvador, even though
this evidence had been ruled as inadmissible and even though
88
Umaña had no chance to confront his accusers. At sentencing, the
government sought to introduce evidence that Umaña had committed
violent crimes, including homicide, in El Salvador.
Specifically, the government wanted to call an El Salvadoran
prosecutor to testify. The district court denied the
government’s motion, concluding that the evidence “lacks
sufficient indicia of reliability” and that “its probative value
is outweighed by a danger of unfair prejudice.” J.A. 3232.
Incredibly, in spite of the district court’s clear ruling,
the government introduced a transcript as evidence in which a
United States law enforcement officer is quoted as saying “I
know he’s done stuff in El Salvador,” J.A. 4301, “[w]e know . .
. that they were looking for you for homicide also in El
Salvador,” J.A. 4316, and “[w]e know that he’s, he’s a violent,
violent guy. We know that he’s wanted in El Salvador . . . for
many violent crimes . . . I know he’s a shooter. I know he’s an
enforcer. I know he’s a gangster,” J.A. 4315. Through an
evidentiary back door left wide open, the government snuck in
testimony that “lacked consistency and credibility,” per the
district court, but had enough prejudicial value that the
government made its entire case at sentencing about Umaña’s past
uncharged homicidal conduct.
In sum, the evidence linking Umaña to previous murders was
as powerful as it was problematic. For both the Los Angeles and
89
El Salvador murders, there was not enough evidence for
prosecutors to bring a case or sustain a conviction in stage one
of an FDPA trial. Unfazed, the government simply bided its time
until the third stage of the trial, when, per the district
court’s ruling and the majority opinion today, important
constitutional safeguards disappear. Umaña filed a timely
objection at sentencing, arguing that his Sixth Amendment rights
were violated.
II.
Turning to the merits, an understanding of the history and
purpose of the Confrontation Clause, as well as an analysis of
the Supreme Court’s recent jurisprudence on the Confrontation
Clause and Sixth Amendment factfinding, shows that the
government violated Umaña’s constitutional rights when he was
sentenced to death without a chance to confront his accusers.
District courts cannot dodge the constitutional guarantee of
confrontation by splitting a capital trial into three segments
and waiting until the third segment to strip a defendant of his
Sixth Amendment rights. Further, because the Sixth Amendment
right at issue here – the right of cross-examination – is “the
constitutionally prescribed method of assessing reliability,”
Crawford v. Washington, 541 U.S. 36, 62
(2004), it is especially
offensive to the Constitution to deny a defendant this right
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during the very stage of the proceedings in which a jury must
decide whether he deserves to live or be killed.
I begin with the text of the Sixth Amendment, but conclude
that the words themselves do not settle the matter. “In all
criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” U.S. Const.
amend. VI. Because the FDPA did not exist at the time of the
founding, the Sixth Amendment is silent on the distinction
between different stages of FDPA trials. While the right applies
to all criminal prosecutions, the text does not give guidance on
when a criminal prosecution ends.
An analysis of the history leading to the Sixth Amendment
is more helpful. The historical developments that led to the
Confrontation Clause weigh in favor of its application at all
stages of FDPA trials. In the leading case on modern
Confrontation Clause doctrine, the Supreme Court explained that
the Confrontation Clause right “is most naturally read as a
reference to the right of confrontation at common law, admitting
only those exceptions established at the time of the founding.”
Crawford, 541 U.S. at 54
. The FDPA sentencing regime did not
exist at the time of the founding, nor was there an analogous
system. Rather, at the time when the Confrontation Clause was
crafted, a death sentence flowed automatically from convictions
for certain capital felonies. See United States v. Fields, 483
91
F.3d at 370 (Benavides, J., dissenting); see also 1 Stat. 112–19
(defining a series of federal crimes and mandating a death
sentence upon conviction for certain capital crimes); Rory K.
Little, The Federal Death Penalty: History and Some Thoughts
About the Department of Justice's Role, 26 Fordham Urb. L.J. 347
, 360-65 (1999). Thus, there was no separate hearing to determine whether death was appropriate. See Woodson,428 U.S. at 289
(1976). When capital trials are structured in this way, no defendant receives a death sentence after a trial in which he is denied the Confrontation Clause right, nor is any defendant sentenced to death on the basis of unconfronted accusations of prior crimes. “By the time the Bill of Rights was adopted,” “the jury determined which homicide defendants would be subject to capital punishment by making factual determinations.” Ring,536 U.S. 599
(quoting Walton v. Arizona,497 U.S. 639
, 710–11
(Stevens, J., dissenting)). These factual determinations could
only be made in proceedings in which the Confrontation Clause
applied in full force. Thus, at the time of the founding, there
was no exception to the Confrontation Clause right for capital
sentencing. 2
2
In non-capital sentencing, meanwhile, hearsay testimony
was often used and proceedings were more informal, suggesting a
distinction between capital and non-capital sentencing. John G.
Douglass, Confronting Death: Sixth Amendment Rights at Capital
Sentencing, 105 Colum. L. Rev. 1967
, 2016–17 (2005).
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Crawford lends further support to the idea that, based on
the purpose of the Confrontation Clause, the right to confront
adverse witnesses extends to every stage of an FDPA trial. In
discussing the history of the clause, the Supreme Court noted
that the common law right to confrontation developed in response
to abuses in certain infamous trials in England. In these
notorious cases, defendants were convicted, and sometimes
executed, without the right to examine their accusers. Crawford,
541 U.S. at 43–45. One of “[t]he most notorious instances” of
such abuses occurred in the treason trial for Sir Walter
Raleigh. Id. at 44
. In concluding that a judge’s reliability ruling cannot substitute for the right to confrontation, the Court noted that “[i]t is not plausible that the Framers’ only objection to the trial was that Raleigh’s judges did not properly weigh [reliability] factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront [the key government witness] in court.”Id.
(emphasis added). Thus, part of the reasoning motivating
Crawford was the desire to reject any interpretation of the
Confrontation Clause which would lead to the same abuses seen in
the Raleigh trial. Further, the Court emphasized that what made
that infamous case so odious was the lack of a confrontation
right before Raleigh was sentenced to death.
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Mr. Umaña now finds himself in the same position as
Raleigh, stripped of his right to confront face-to-face those
whose words would condemn him to die. Powerful accusations were
made against Umaña, and though these accusations were not the
basis for the initial guilty verdict, they ultimately helped
form the basis for his capital sentence. Further, like Raleigh,
Umaña lacked the opportunity to confront his accusers before the
death sentence was issued. The distinction between the cases is
that Sir Walter Raleigh was sentenced to death after a unitary
proceeding in which guilt and penalty were decided
simultaneously. In Umaña’s case, meanwhile, the judge
trifurcated the trial and ensured that any constitutional
protections had been severed by the time of stage three, in
which a jury weighs whether death is the appropriate sentence.
If the judicial proceeding that led to Sir Walter Raleigh’s
execution is unconstitutional, as it no doubt is, then it is
unclear why the same situation would lead to a different result
merely because the court artificially cabins the proceeding in
which the constitutional abuse occurs.
Recent Supreme Court case law on Sixth Amendment rights in
sentencing further buttresses this view. In Ring v. Arizona, the
Supreme Court considered whether the right to jury factfinding
applies for aggravating factors necessary to apply a death
sentence, which would be the equivalent of the second stage of
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an FDPA trial. 536 U.S. at 608–09. The Court held “that the
Sixth Amendment applies to” this stage of death sentencing:
defendants have the right to jury factfinding for such factors.
Id. at 609
. Granted, Ring does not control here, since this case concerns the introduction of unconfronted testimony in the third stage of FDPA trials. The majority finds this distinction key, arguing that once a defendant is found death-eligible in stage two of an FDPA trial, “the jury exercises discretion in selecting a life sentence or the death penalty, and any facts that the jury might find during that phase do not alter the range of sentences it can impose.” Maj. Op. at 48–49. This is incorrect. Under the FDPA, a jury cannot impose a death sentence until it finds that “all the . . . aggravating factors found to exist sufficiently outweigh all the mitigating factors.”18 U.S.C. § 3593
(e). Only when a jury finds that aggravating
factors sufficiently outweigh the mitigating factors may it
impose a death sentence under the FDPA. Thus, while stage three
of FDPA trials involves some jury discretion, juries must
nonetheless make certain factual findings in this final stage
before a death sentence can be imposed.
Put another way, the jury’s burden in stage three – a
finding that the aggravating factors sufficiently outweigh the
mitigating factors – “is not optional.” Green, 372 F. Supp. 2d at 177
. “Because we will never know exactly how each factor
95
influences the jurors’ ultimate punishment determination, logic
dictates that all aggravating factors – together – be considered
legally essential to the punishment.” Id.
As in Green, “the government’s argument that non-statutory factors are not essential is disingenuous; if the government does not require additional evidence to convince the jury to vote for death, why is it invoking non-statutory factors at all?”Id.
In this case, the proof is in the pudding: the government pointed to the past murders on nearly every page of the transcript of its closing argument at sentencing. Without these past murders, it is doubtful that the government could meet the burden necessary to apply the death penalty under the FDPA. As such, the permissible range of sentencing is increased in this stage, indicating that Sixth Amendment rights do apply. See also Sablan,555 F. Supp. 2d at 1221
(“[U]nder the structure of the FDPA, it is not the
finding of a statutory aggravating factor that actually
increases the punishment. The fact that actually increases the
punishment is the existence of all the aggravating factors found
by the jury (taken together).”).
The majority argues that Williams v. New York, 337 U.S. 241
(1949), a pre-Crawford, pre-Ring Supreme Court case, directly
disposes of the issue before us. That case is neither on point
nor persuasive, and in any event, its power is dubious in light
of more recent Supreme Court jurisprudence. In Williams, the
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Supreme Court upheld a death sentence that relied in part on a
probation report that implicated the defendant in prior crimes.
Id. at 243
. The Court continues to cite Williams for the proposition that sentencing decisions contain an element of discretion and can rely on evidence that would not be admissible at trial. See, e.g., Pepper v. United States,131 S. Ct. 1229, 1235
(2011). We have cited to Williams for the similar concept
that sentencing courts “must have recourse to a much broader
array of information than we allow the trier of fact to consider
in determining a defendant’s guilt.” Powell, 650 F.3d at 391–92.
Nonetheless, Williams is not controlling, because that case
is a pre-incorporation, pre-FDPA case concerning a state death
sentence. That is, Williams was not a Confrontation Clause case
at all, but rather a Due Process Clause case, and it considered
a state capital sentencing regime, not the federal one used for
Mr. Umaña. Williams, 337 U.S. at 252
. Nothing in the holding of
Williams dictates that the Confrontation Clause does not apply
to the third stage of FDPA trials. Rather, the holding in
Williams merely means that it does not offend due process for a
state judge to rely on unconfronted hearsay in death sentencing.
This is different from a ruling that a far more specific clause
of the constitution permits a jury to rely on such evidence in a
proceeding to decide whether the death sentence can be applied.
Further, the decisions cited above -- concerning the Sixth
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Amendment right to factfinding at sentencing, death penalty
procedure, and the Confrontation Clause -- all suggest that even
if Williams is not dead letter, it should not be extended to
apply to FDPA proceedings on Sixth Amendment grounds.
Even though Williams is not on point, the majority
nonetheless argues that its spirit is intact. That is, Williams
embodies the idea that the Confrontation Clause should not apply
because “modern concepts individualizing punishment have made it
all the more necessary that a sentencing judge not be denied an
opportunity to obtain pertinent information by a requirement of
rigid adherence to restrictive rules of evidence.” Id. at 247
.
This argument is internally consistent, but it elides a far
more important principle of capital sentencing, which is the
need for reliability. As the Supreme Court has noted, death is
such a weighty punishment and so different from a prison term
that “there is a corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment.” Woodson, 428 U.S. at 305
(plurality opinion). Thus,
greater access to information for the sentencing court is but
one principle of death sentence jurisprudence – a principle that
gives way to the more important principle that a death sentence
be based on accurate factfinding. Further, as discussed above,
the Supreme Court has explained that “the Confrontation Clause’s
very mission . . . is to advance the accuracy of the truth-
98
determining process in criminal trials.” United States v. Inadi,
475 U.S. 387, 396
(1986) (internal quotation marks and citations omitted). Taken together, the Supreme Court’s parallel jurisprudence on the Confrontation Clause and on the need for reliability in death sentences demonstrates why Umaña’s sentence must be reversed. Death sentences must stand on reliable ground, and the Confrontation Clause is “the constitutionally prescribed method of assessing reliability.” Crawford,541 U.S. at 62
.
Further, in striking the balance between the desire for
more evidence and the unquestionable need for reliability in
death sentences, it is important to note that the Confrontation
Clause right will not only enhance reliability – it will do so
at a small practical cost, contrary to the concerns voiced by
the majority. The majority frets that if we recognize Mr.
Umaña’s Sixth Amendment rights through each stage of an FDPA
trial, we would “‘endlessly delay criminal administration in a
retrial of collateral issues.’” Maj. Op. at 48 (quoting
Williams, 337 U.S. at 250
). To the contrary, the Confrontation Clause applies only to testimonial evidence, and would only be implicated in a narrow range of aggravating factors, suggesting that recognizing Mr. Umaña’s Sixth Amendment right will not “endlessly delay criminal administration of collateral issues.” Maj. Op. at 48 (quoting Williams,337 U.S. at 250
). As
recognized in Crawford, the Confrontation Clause only reaches
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“material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially.” Crawford, 541 U.S. at 51
. Even testimonial evidence continues to be admissible so long as the defendant has a prior chance to cross-examine the witness and the witness is unavailable.Id.
at 51–52. Thus, the vast
majority of the evidence in Mr. Umaña’s case, and in most FDPA
trials, would be unaffected by recognizing Mr. Umaña’s Sixth
Amendment right. Only for a narrow range of aggravating factors,
related to uncharged prior crimes, would the Confrontation
Clause be implicated, and even then only some of the time.
In any case, given that the prosecution made Mr. Umaña’s
uncharged prior crimes the centerpiece of its capital case in
the final stage of his FDPA trial, I cannot accept the
majority’s conclusion that the unconfronted evidence used
against Mr. Umaña was a mere “collateral issue[].” To the
contrary, the government’s entire case for the death penalty
relied on the accusation that Umaña “had killed before.” J.A.
3404. In sum, Mr. Umaña’s Sixth Amendment right to confrontation
provides enormous benefits in terms of reliability in capital
sentencing, and this benefit comes at a small cost – limiting
only very specific types of aggravating information.
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The majority supports its ruling by pointing to “the policy
of presenting full information to sentencers,” Maj. Op. at 47,
but this reasoning creates an evidentiary loophole that turns
FDPA trials upside-down. Unquestionably, a sentencing court must
have access to information not relevant to guilt in order to
ensure that punishments are individualized. While this general
proposition is valid, applying it blindly in this case is
problematic because it lumps together evidence like a
defendant’s 4th grade report card with evidence of murder. In a
typical criminal trial, the most serious crime gets proven at a
guilt trial, where the full panoply of constitutional and
evidentiary rights apply. In the later sentencing stages, softer
evidence, both negative and positive, is introduced, to allow
for individualization of punishment. This structure makes sense:
the more serious an allegation, the more serious the protections
given to a defendant.
Under the majority’s ruling, this structure is flipped. It
would have been outrageous for the government to convict Umaña
for the North Carolina murders without giving him his Sixth
Amendment rights. Yet, the centerpiece of the government’s case
for the death sentence was a series of uncharged murders that
were in many ways more serious than the North Carolina incident.
The third stage of an FDPA trial is typically reserved for
evidence about the victims’ families or about the defendant’s
101
elementary school performance or Boy Scout record. The jury must
weigh these soft, more subjective factors to fit the punishment
to the crime. The evidence we consider here is so much more
severe than a 4th grade report card that it is different in
kind, not degree. When a jury considers a Boy Scout record, the
truthfulness and reliability of the evidence is a secondary
matter at best. The more difficult task for this type of
information is fitting it into a cohesive, complete picture of
the defendant. The weight to be accorded to the evidence is the
predominant inquiry, and its reliability is a lesser concern. In
contrast, when a jury considers evidence of three additional
murders, the reliability of the evidence is the predominant
concern, whereas the weight to accord such evidence is much
easier to discern. That is, it is easy to know how much weight
to accord evidence of past murders because it completely
overwhelms evidence like an elementary school report card, as
the government’s closing argument demonstrates. Instead, for
this type of evidence the most important inquiry is as to its
truth and reliability. This distinction again shows why the
district court committed legal error. The government is
essentially exploiting the district court’s ruling to have a
second murder trial, only without the restrictions that the
Supreme Court mandated in Crawford and Ring. The majority’s
ruling today lets the tail wag the dog, and it will encourage
102
strategic posturing by prosecutors to punish defendants for
crimes that could never be found beyond a reasonable doubt by a
rational factfinder.
III.
The majority today strips a defendant of his Sixth
Amendment right to confront his accusers. Further, it denies
this right in a proceeding in which a jury must decide whether a
human being is fit to live. In this, the most momentous decision
a jury can make, the majority would do away with the
“constitutionally prescribed method of assessing reliability” of
evidence. Crawford, 541 U.S. at 62
.
Umaña is being sent to his death based on accusations by
self-interested accomplices – self-interested accomplices whose
testimony, at least in part, was contradicted by independent
witnesses. This illustrates the Supreme Court’s admonition that
accusations from co-defendants facing the same punishment are
“devastating to the defendant.” Bruton, 391 U.S. at 136
. “The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.”Id.
Because I conclude that the Confrontation Clause applies at
every stage of an FDPA trial, not just the first two stages, and
because I conclude that it is both wrong and unconstitutional
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for a death sentence to rest on unconfronted accusatory
evidence, I dissent.
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