United States v. Fell
Appeal Court of Appeals for the Second Circuit, Case No. 06-2882

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United States v. Fell
D. Vt.
Sessions, J.
[End Page 01-cr-12]

4 5 August Term, 2006 6 7 (Argued: June 27, 2007 Decided: June 27, 2008) 8 9 Docket No. 06-2882-cr 10 11
12 13 UNITED STATES OF AMERICA , 14 Appellee, 15 16 "" v ."" 17 18 DONALD FELL 19 Defendant-Appellant. 20 21
22 23 Before: WALKER, CABRANES, and B.D. PARKER, Circuit Judges. 24 25
26 27 Donald Fell appeals from a judgment of the United States District Court for the District 28 of Vermont (Sessions, C.J.). He was convicted of carjacking and kidnapping with death 29 resulting and was sentenced to death. AFFIRMED. 30
31 32 JOHN BLUME, Cornell Law School, (Christopher Seeds, 33 Sheri Lynn Johnson, on the brief), Ithaca, NY; 34 Alexander Bunin, Federal Public Defender, Albany, 35 NY, for Defendant-Appellant. 36 [End Page 1] 1 WILLIAM B. DARROW , Assistant United States Attorney 2 (Thomas D. Anderson, United States Attorney for 3 the District of Vermont; Paul J. Van de Graaf, 4 Gregory L. Waples, Assistant United States 5 Attorneys, on the brief), Burlington, VT; Thomas 6 Booth, United States Department of Justice, 7 Washington, D.C., for Appellee. 8 9
10 11 BARRINGTON D. PARKER, Circuit Judge: 12 Donald Fell was convicted of murdering Teresca King in the course of a carjacking and 13 kidnapping. Following a hearing on possible penalties and a verdict rendered by the jury, he was 14 sentenced to death by the United States District Court for the District of Vermont (Sessions, J.). 15 In this appeal, Fell challenges his sentence on a number of grounds falling roughly into four 16 categories: errors in jury selection, errors in the admission of certain evidence, prejudicial 17 comments by the prosecutors, and the violation of certain provisions of the Federal Death Penalty 18 Act (FDPA), 18 U.S.C. § 3591 et seq. We affirm. 19 BACKGROUND 20 This case stems from the brutal murders by Fell and his accomplice Robert Lee in 21 November 2000 of Fell's mother Debra, her companion Charles Conway, and King. The facts 22 are largely undisputed. Fell, who was 20 years old at the time of the murders, does not contest 23 his guilt and the government does not contest much of the evidence of the troubled childhood and 24 adolescence that Fell adduced in an effort to avoid the death penalty. 25 Fell spent his early years in Pennsylvania with parents who were chronic alcoholics. Both 26 Fell and his sister were raped by babysitters when they were young children, abandoned by their [End Page 2] 1 parents, and raised by relatives. Fell had frequent brushes with the law of increasing seriousness 2 and, for a period of time, was committed to a home for delinquent youth. After his release, his 3 involvement with the law continued to escalate and was punctuated by serious drug and alcohol 4 abuse. 5 Fell's mother moved to Rutland, Vermont in September 2000 and Fell joined her shortly 6 thereafter. Their stormy relationship continued. Fell and his mother (and their friends) drank 7 heavily, argued frequently, and abused drugs. For example, in November 2000, in an incident 8 that was the subject of disputed trial testimony, Fell assaulted his mother in a bar. After taking 9 his mother's drink and attempting to rob her, Fell punched her in the head, knocked her to the 10 ground and was arrested. 11 On the evening of November 26, 2002, Fell, Lee, Debra Fell, and Charles Conway were 12 playing cards at her residence. All were drinking heavily and some were using drugs. For 13 reasons not reflected in the record, a violent altercation ensued. Fell produced a kitchen knife 14 and stabbed Conway approximately 50 times causing his death,. Lee began stabbing Debra Fell 15 and killed her with multiple wounds to the head and neck. Fell and Lee then showered, stole a 16 shotgun from the house, and left on foot at approximately 3:30 am for a local mall in search of 17 shells for the gun. 18 Fell and Lee first went to Wal-Mart, but were turned away by a cleaning crew that 19 informed them that the store was closed. Fell and Lee then approached a Price Chopper 20 convenience store, where they found King, a 53 year old grandmother, just arriving for work in 21 her car. Fell and Lee stole her car and forced her into the backseat at gunpoint. King attempted [End Page 3] 1 to escape while on the highway but Fell restrained her. After driving for several hours and 2 entering New York state, Fell told King that she would be released. As they stopped the car to 3 do so, Lee apparently had second thoughts and convinced Fell that they should kill her to prevent 4 her from identifying them. The two forced King out of her car into the adjoining woods where 5 they repeatedly kicked her and Lee struck her around the head and face with a rock. After killing 6 her, Fell wiped his boots on her clothing. The two proceeded to Pennsylvania where they stole 7 license plates, placed them on King's car, and drove to Arkansas where they were arrested on 8 November 30th. Following questioning by the Arkansas police and the FBI, Fell, verbally and in 9 a written statement, confessed to the murder of Conway, described Debra Fell's murder, and 10 confessed to the murder of King. On December 2, he made a tape-recorded confession for 11 Vermont police, who had flown to Arkansas. 12 Subsequently, Fell and Lee were indicted. The four counts of the indictment charged 13 them with (1) carjacking Teresca King with death resulting; (2) kidnapping and transporting 14 Teresca King in interstate commerce with death resulting; (3) possession of a firearm in 15 furtherance of a crime of violence; and (4) transporting a firearm in interstate commerce by 16 fugitives. See 18 U.S.C. §§ 2119(2) & (3); 1201(a)(1) & (2); 924(c)(1)(A)(ii) & (2); 922(g)(2). 17 Counts 1 and 2 were capital offenses. Before he could be tried, Lee died in prison in the fall of 18 2001 by his own hand in an accidental hanging. 19 In October 2001, after extensive negotiations with the United States Attorney's Office of 20 Vermont, Fell signed a draft plea agreement that would have resolved the capital charges with a 21 sentence of life without parole. The draft agreement stated that the government agreed to forego [End Page 4] 1 the capital charges "due to substantial mitigating evidence that has been uncovered related to the 2 defendant's mental health and impaired capacity at the time of the events; his mental health 3 history and background; his assistance to authorities in locating Teresca King's body; the fact 4 that he was 20 years old when he murdered Teresca King and the fact that he does not have a 5 substantial prior criminal history." 6 The draft agreement also provided that "this agreement will not become effective until 7 approved by the Attorney General of the United States or his delegate, and until thereafter signed 8 by the United States Attorney for the District of Vermont." The draft was signed by Fell and his 9 counsel, but was rejected by the Attorney General upon the advice of the standing committee of 10 the Department of Justice that reviews death-eligible prosecutions. Cf. United States v. Sampson, 11 486 F.3d 13, 24 & n.3 (1st Cir. 2007) (describing these procedures); United States v. Wilk, 452 12 F.3d 1208, 1211 n.2 (11th Cir. 2006). The United States Attorney then agreed that, with the 13 consent of the District Court, Fell would plead guilty in exchange for a bench trial on sentencing. 14 The Attorney General rejected this agreement as well. 15 In January 2002, the government filed a Notice of Intent to Seek the Death Penalty. See 16 18 U.S.C. § 3593(a). The notice stated that the government intended to prove four threshold 17 culpability factors,1 id. § 3591(a), three statutory aggravating factors, id. § 3592(c),2 and four [End Page 1]
The threshold culpability factors were that Fell: (1) intentionally killed Teresca

King; (2) intentionally inflicted serious bodily injury that resulted in the death of Teresca King;

(3) intentionally participated in one or more acts, contemplating that the life of a person would be

taken or intending that lethal force would be used in connection with a person, other than a

participant in the offense, and Teresca King died as a direct result of such act or acts; and (4)

intentionally and specifically engaged in one or more acts of violence, knowing that the act or

acts created a grave risk of death to a person, other than one of the participants in the offense,

such that participation in such act or acts constituted a reckless disregard for human life, and [End Page 5] 1 non-statutory aggravating factors, id. § 3593(a).3 After the Supreme Court's decision in Ring v. 2 Arizona, 536 U.S. 584 (2002), called into question the validity of indictments in which the 3 government did not charge statutory aggravating factors, the government obtained a superseding 4 indictment which included the threshold culpability factors and the statutory aggravating factors. 5 Fell, represented by the Federal Defender Service, moved to dismiss the indictment on a 6 number of grounds. He contended that the FDPA was unconstitutional because it permitted 7 imposition of the death penalty on the basis of evidence that had not been tested according to the 8 Sixth Amendment's guarantee of confrontation or the Fifth Amendment's guarantee of due 9 process, or that would have been deemed inadmissible under the Federal Rules of Evidence. Id. 10 at 489. The district court granted the motion. See United States v. Fell, 217 F. Supp. 2d 469, 11 491 (D. Vt. 2002).4

Teresca King died as a direct result of such act or acts. See 18 U.S.C. § 3591(a)(2)(A)-(D).[End Page 2]
The statutory aggravating factors were: (1) "The death of Teresca King occurred

during the commission of a kidnapping"; (2) "Donald Fell committed the offense in an especially

heinous, cruel, or depraved manner in that it involved serious physical abuse to Teresca King";

and (3) "Donald Fell intentionally killed or attempted to kill more than one person in a single

criminal episode." See 18 U.S.C. §§ 3592(c)(1), (6) & (16).[End Page 3]
The non-statutory aggravating factors were: (1) "Donald Fell participated in the

abduction of Teresca King to facilitate his escape from the area in which he and an accomplice

had committed a double murder"; (2) "Donald Fell participated in the murder of King to prevent

her from reporting the kidnapping and carjacking"; (3) "Donald Fell participated in the murder of

King after substantial premeditation to commit the crime of carjacking"; and (4) "As reflected by

the victim's personal characteristics as an individual human being and the impact of the offense

on the victim and the victim's family, the Defendant caused loss, injury and harm to the victim

and the victim's family, including but not limited to the following: a) Infliction of distress on the

victim. . . . . b) Impact of the offense on the family of the victim . . . ." See 18 U.S.C. § 3593(a).[End Page 4]
The painstaking work of Chief Judge Sessions generated a number of published

opinions. United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), rev'd United States v. Fell, [End Page 6] 1 The government appealed and we reversed. See United States v. Fell, 360 F.3d 135 (2d 2 Cir. 2004) ("Fell I"), cert. denied, 543 U.S. 946 (2004). We held that the Constitution did not 3 require adherence to the Federal Rules of Evidence. We also found the FDPA's evidentiary 4 provisions constitutional because they were consistent with the heightened reliability standards 5 required in capital trials. Fell, 360 F.3d at 143-44. On remand, the district court rejected Fell's 6 remaining constitutional challenges. See Fell, 372 F. Supp. 2d at 755 (D. Vt. 2005). 7 Jury selection began on May 4, 2005 and was completed on June 6. The guilt phase 8 began on June 20 and ended on June 24. The government presented eighteen witnesses; the 9 defense presented no evidence. The jury was charged on June 24 and, later that day, found Fell 10 guilty on all counts. 11 The penalty phase commenced on June 28. The government offered evidence from seven 12 witnesses, including five victim impact witnesses, who attested to the devastating effects of 13 King's murder on her family and friends. The defense introduced testimony from fourteen 14 witnesses, including Fell's family members, teachers, social service providers, and correctional 15 institution officials. These witnesses testified regarding Fell's troubled childhood, his personal 16 characteristics, the familial violence he witnessed and experienced, his early drug and alcohol 17 abuse, and his adaptation to prison. The government then presented five rebuttal witnesses "" "" 18 three prison officials, one of Fell's former teachers, and a former friend "" "" to dispute this 19 picture.

360 F.3d 135 (2d Cir. 2004); United States v. Fell, 372 F. Supp. 2d 753 (D. Vt. 2005); 372 F.

Supp. 2d 773 (D. Vt. 2005); and United States v. Fell, 372 F. Supp. 2d 766 (D. Vt. 2005); United

States v. Fell, 372 F. Supp. 2d 786 (D. Vt. 2005). [End Page 7] 1 The jury was charged on July 13. It was instructed to consider whether the prosecution 2 had met its burden of proof as to each of the capital counts and whether Fell had established his 3 mitigating factors by a preponderance of the evidence. To impose the death penalty, the jury was 4 required to find one or more of the threshold eligibility factors, at least one of the statutory 5 aggravating factors, and the existence of any non-statutory aggravating factors. In weighing the 6 relevant aggravating and mitigating factors to determine the appropriate punishment, the jury was 7 instructed to assess both the direct and the circumstantial evidence presented at the guilt and 8 sentencing phases of the trial. 9 The next day, the jury unanimously found the existence of each of the four threshold 10 factors, the three statutory aggravating factors, and the five non-statutory aggravating factors. 11 The verdict form indicated that seventeen mitigating factors had been found by at least one juror, 12 of which eight were found unanimously. Ten jurors added to the verdict form a mitigating factor 13 that had not been presented to them: "[t]otal life experience, failure of the state of Pennsylvania 14 social and mental health services to effectively intervene in [Fell's] childhood abuse and to treat 15 or address his early antisocial behavior." After considering the court's instructions to weigh the 16 aggravating and mitigating factors, the jury decided unanimously that a death sentence should be 17 imposed. 18 Fell filed a motion for a judgment of acquittal and a new trial, contending that 19 prosecutorial misconduct at the penalty phase required that his death sentence be changed to one 20 of life imprisonment, or alternatively that he be afforded a new penalty trial. The district court 21 denied these motions on April 24, 2006. United States v. Fell, 2006 U.S. Dist. LEXIS 24707 (D. [End Page 8] 1 Vt. Apr. 24, 2006). Following a sentencing hearing in which the district court heard statements 2 from the victim and from Fell, it imposed the death penalty consistent with the jury's 3 recommendation.5 See 18 U.S.C. §§ 3593(e)-3594. This appeal followed. 4 DISCUSSION 5 Fell raises a number of issues each of which we must consider separately. 18 U.S.C. 6 § 3595.6 Most of our discussion considers the district court's exclusion of three jurors, its 7 exclusion of the draft plea agreement, the admission of evidence of a religious nature, the 8 government's compliance with the court's instruction regarding mental health experts, and

[End Page 5]
On June 16, 2006, the district court sentenced Fell to death on counts one and two

relating to carjacking and kidnapping. On the gun charges, the court sentenced Fell to 120

months' imprisonment on count four, and 84 months' imprisonment on count three, consecutive

to count four.[End Page 6]
Specifically, Fell argues that: (1) the district court erred in dismissing three

prospective jurors and (2) by excluding a draft plea agreement; (3) the government impermissibly

argued that Fell's exercise of his right to a jury trial was inconsistent with acceptance of

responsibility; (4) the government impermissibly told the jury that it could ignore certain

mitigating evidence; (5) the district court's orders and the government's conduct regarding

mental health experts in the penalty phase violated the Fifth and Eighth Amendments; (6) the

government violated the First, Fifth, and Eighth Amendments through its reliance on Fell's

interest in satanism and other religions; (7) the district court erred in admitting a hearsay

statement made by Debra Fell; (8) the district court erred in admitting testimony by a former

friend of Fell's as proof of premeditation; (9) the cumulative impact of the government's

misconduct and the district court's errors violated the constitution and the Federal Death Penalty

Act (FDPA); (10) duplicative aggravating factors unconstitutionally skewed the jury's weighing

process towards the death penalty ; (11) the government was required to allege the non-statutory

aggravating factors in the indictment; and (12) the bifurcated capital trial mandated by the FDPA

violates the Fifth and Sixth Amendments. This opinion resolves each of these issues. [End Page 9] 1 several allegedly improper arguments made by the prosecution, as well as Fell's challenges to the 2 superseding indictment.7 3 Different standards of review apply to these issues. We review challenges to a juror's 4 excusal for abuse of discretion, inquiring whether the trial court's findings are "fairly supported 5 by the record." Wainwright v. Witt, 469 U.S. 412, 434 (1985); see also United States v. Stewart, 6 433 F.3d 273, 304 (2d Cir. 2006). We review a district court's evidentiary rulings for abuse of 7 discretion. United States v. Yousef, 327 F.3d 56, 156 (2d Cir. 2003). Conclusions of law, 8 including those involving constitutional questions, are reviewed de novo. Ramos v. Town of 9 Vernon, 353 F.3d 171, 174 (2d Cir. 2003). A defendant's conviction may be vacated if 10 prosecutorial misconduct caused substantial prejudice implicating the right to due process. 11 United States v. Elias, 285 F.3d 183, 190-92 (2d Cir. 2002). However, "remarks of the 12 prosecutor in summation do not amount to a denial of due process unless they constitute 13 egregious misconduct." Id. at 190 (internal citations omitted). 14 Nearly all the evidentiary issues Fell raises were not preserved at trial and were presented 15 for the first time either in his motion for a new trial or on appeal. These issues are generally [End Page 7]

death sentence was "imposed under the influence of passion, prejudice, or any other arbitrary

factor[.]" The record reveals no evidence that any of those factors led to Fell's sentence. Indeed,

there is every indication that the jury carefully considered the district court's instructions.

Significantly, it sua sponte found mitigating factors in addition to those proposed by defense

counsel. "Viewed collectively, these findings suggest that the jury considered the evidence in a

thorough, even-handed, and dispassionate manner." United States v. Sampson, 486 F.3d 13, 52

(1st Cir. 2007). Additionally, we must independently determine that the evidence supported the

finding of at least one of the charged statutory aggravating factors under 18 U.S.C. § 3592. 18

U.S.C. § 3595(c)(1). Given that Fell confessed to the crime, we have little trouble concluding

that the evidence was sufficient to support the jury's verdict as to the aggravating factors. [End Page 10] 1 subject to plain error review.8 Relief is unavailable unless (1) there was error; (2) it was plain; 2 and (3) it prejudicially affected substantial rights. See Jones v. United States, 527 U.S. 373, 389- 3 90 (1999). "Upon concluding that an error occurred which is plain and affects substantial rights 4 . . . an appellate court [must] exercise its discretion to correct such error only "˜if the error 5 seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" United 6 States v. Gonzalez, 110 F.3d 936, 945-46 (2d Cir. 1997) (quoting United States v. Olano, 507 7 U.S. 725, 732-34 (1993)). 8 I. JURY SELECTION 9 The district court conducted a two-part voir dire of potential jurors. Each potential juror 10 was initially required to complete an extensive questionnaire, which included questions about 11 personal history, knowledge of the case, and opinions regarding the death penalty. The 12 veniremen were also asked to locate their opinion on the death penalty on a scale of one to ten, 13 with one being strongly opposed to, and ten being strongly in favor of, the death penalty. At the 14 start of the voir dire, the court announced that it would permit counsel to ask prospective jurors 15 questions about their ability to impose the death penalty as suggested by the facts of the case, as 16 long as the primary purpose of the questions was to ensure impartiality. The court prohibited 17 counsel from posing "stake-out" questions that might require a juror to speculate or precommit as 18 to how, given certain facts, that juror would react. See Fell, 372 F. Supp. 2d at 770. Each [End Page 8]
We note that because our review here is for plain error, 18 U.S.C. § 3595(c)(2)

does not control our analysis. Cf. Jones, 527 U.S. at 388-89 (finding that § 3595(c)(2) does not

create an exception to plain error review under the FDPA); 18 U.S.C. § 3595(c)(2) (providing

that the government may show that reversal is not required by proving that "legal error . . . that

was properly preserved" was harmless beyond a reasonable doubt (emphasis added)). [End Page 11] 1 potential juror was then questioned individually, rather than in an array, first by the court, which 2 generally inquired into exposure to pre-trial publicity and views on the death penalty, and then by 3 the parties. 4 Fell contends that the district court improperly excused three qualified prospective jurors, 5 numbers 64, 141 and 195, in violation of Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) and 6 Wainwright v. Witt, 469 U.S. 412, 420-21 (1985). Prospective Juror 64, Fell argues, was excused 7 based on her general disfavor of capital punishment. Prospective Jurors 141 and 195 were, Fell 8 contends, excused for expressing reservations about applying the death penalty under specific 9 factual circumstances not presented by this case, even though they affirmed that they could 10 consider and impose a death sentence if warranted by the evidence. 11 Under Witherspoon and its progeny, "not all [prospective jurors] who oppose the death 12 penalty are subject to removal for cause in capital cases." Lockhart v. McCree, 476 U.S. 162, 13 176 (1986). Instead, "those who firmly believe that the death penalty is unjust may nevertheless 14 serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set 15 aside their own beliefs in deference to the rule of law." Id. In Witt, the Supreme Court explained 16 that "the proper standard for determining when a prospective juror may be excluded for cause 17 because of his or her views on capital punishment . . . is whether the juror's views would prevent 18 or substantially impair the performance of his duties as a juror in accordance with his instructions 19 and his oath." 469 U.S. at 424 (internal quotation marks omitted); see also Uttecht v. Brown, 20 127 S. Ct. 2218, 2224 (2007). That impairment occurs when those views "create an obstacle" to 21 a prospective juror's impartial consideration of the law and the facts. Witt, 469 U.S. at 434. [End Page 12] 1 Erroneously excluding a prospective juror based on her view on the death penalty is 2 reversible error, see Gray v. Mississippi, 481 U.S. 648, 668 (1987), and we review challenges to 3 a district court's exclusion of a juror on that basis for abuse of discretion. United States v. 4 Quinones, 511 F.3d 289, 304 (2d Cir. 2007). To survive our review, "voir dire need not establish 5 juror partiality with "˜unmistakable clarity.' Rather, it must be sufficient to permit a trial judge to 6 form "˜a definite impression that a prospective juror would be unable to faithfully and impartially 7 apply the law.'" Quinones, 511 F.3d at 301 (quoting Witt, 469 U.S. at 424, 426). As the 8 Supreme Court explained in Witt: 9 Many veniremen simply cannot be asked enough questions to reach the point 10 where their bias has been made "unmistakably clear"; these veniremen may not 11 know how they will react when faced with imposing the death sentence, or may be 12 unable to articulate, or may wish to hide their true feelings. Despite this lack of 13 clarity in the printed record, however, there will be situations where the trial judge 14 is left with the definite impression that a prospective juror would be unable to 15 faithfully and impartially apply the law. . . . [T]his is why deference must be paid 16 to the trial judge who sees and hears the juror. 17 469 U.S. at 424-26 (footnote omitted). Accordingly, our review affords substantial deference to 18 the judgment of the district court, as "the question [before us] is not whether a reviewing court 19 might disagree with the trial court's findings, but whether those findings are fairly supported by 20 the record." Id. at 434. 21 This deference is particularly warranted in light of a district court's dependence on its 22 direct observations of demeanor and subjective assessments of credibility when conducting jury 23 selection. Demeanor and credibility assessments are "peculiarly within a trial judge's province" 24 and are therefore "entitled to deference . . . on direct review." Id. at 428. As the Supreme Court 25 has explained, "[d]eference to the trial court is appropriate because it is in a position to assess the [End Page 13] 1 demeanor of the venire, and of the individuals who compose it, a factor of critical importance in 2 assessing the attitude and qualifications of potential jurors." Uttecht, 127 S. Ct. at 2224; see also 3 Quinones, 511 F.3d at 303. Such deference is due here where the district court noted that it 4 "looked past prospective jurors' literal answers and . . . based rulings on the demeanor of the 5 jurors." Fell, 372 F. Supp. 2d at 767. 6 1. Prospective Juror 64 7 Fell contends that Prospective Juror 64 "" "" who expressed strong opposition to the death 8 penalty, and indicated that she would have difficulty voting for it regardless of the law "" "" was 9 improperly excused because she also stated that she could follow the court's instructions and 10 apply the law despite her strong reservations. While the exclusion of this prospective juror 11 presents a closer call than that of the other contested prospective jurors, we conclude that the trial 12 court did not abuse its discretion in excusing her. 13 On her juror questionnaire, Juror 64 indicated that on a scale of one to ten, with one being 14 strongly opposed to the death penalty and ten being strongly in favor, she was a one. She noted 15 that she was "strongly opposed to the death penalty"and would "lean more generally to having 16 someone be sentenced to life imprisonment without parole than to be sentenced to death." She 17 stated that she would not "say that someone deserved death just because it was premeditated," 18 but could consider a death sentence to be appropriate for individuals who commit "unforgivable 19 type[s] of war crimes" like genocide or mass murder.

[End Page 14] 1 During voir dire, Juror 64 affirmed that while it would be "difficult" for her to vote for a 2 death sentence, she could consider and apply the death penalty "as part of [her] job of being on 3 the jury" if the circumstances warranted. She elaborated: 4 Well, I feel like, you know, the courts at this time . . . or at least the way that the 5 law is written, that it does allow for one of the outcomes to be a death sentence. 6 And I guess as part of the process of that being allowed, that I could . . . I could 7 follow that process. 8 The court then probed into Juror 64's reservations about imposing the death penalty 9 asking whether, despite those views, she could "be fair to the government as well as the 10 defendant . . . [and] impartially consider both options, [the] death penalty and life 11 imprisonment." Juror 64 responded in the affirmative, but qualified her response, somewhat 12 ambiguously, by stating that "[she] never considered being in a position of making that kind of 13 decision" and that she could not "say to [the court] that [she] absolutely and unequivocally do[es] 14 not believe in the death sentence." When pressed further by the court on whether she could 15 impose the death penalty under circumstances where that penalty would be appropriate under the 16 law, she responded equivocally that she "probably could, yes." The government then asked a 17 series of questions, culminating in whether Juror 64 could impose a death sentence if the 18 government carried its burden. She responded: "In theory, I'm very opposed to the death penalty, 19 but it's part of the process of this government, and so I guess if I was sitting as a juror, that "" "" 20 and that was part of the process, and I had made that decision to do that, then, yes, I could make 21 that decision" but then further explained: 22 Well, I am just playing the question over that you asked me in terms of if I could do that, 23 and, you know, again, I would much more lean towards someone being [sentenced to] life [End Page 15] 1 without parole, but I think that if . . . I had to make that decision, that I could be able to 2 make that decision, yes. 3 4 Defense counsel asked Juror 64 whether she could honestly consider imposing the death penalty, 5 and she responded, "Yes." 6 Before excusing Juror 64 from the courtroom, the court made a final inquiry: 7 [D]o you think that, based on your views, you might lean unfairly . . . toward one side or 8 the other? Or do you feel that you could put aside any views . . . [and] be very impartial 9 in your decision about whether the death penalty is appropriate or whether life 10 imprisonment is appropriate?" 11 In response, she stated, "I guess I would have to say that I would definitely lean more towards life 12 imprisonment than I would towards the death sentence, yes." 13 After counsel for both sides declined the court's invitation to ask follow-up questions, 14 Juror 64 was excused from the courtroom, and the government then moved to exclude her for 15 cause. The court granted the government's motion, explaining that it could not rely on Juror 64's 16 pledge to follow the court's instructions: 17 99 percent of the juror[s] would say that they can follow [the instructions of the court]. 18 The question is whether somebody, in light of their own particular views, can be impartial 19 and fair. And, I really wanted an honest response and I think I got an honest response at 20 the very end. . . . I asked whether she could be fair, and her response was, "I would lean 21 toward life imprisonment." . . . I appreciate that she said she could follow instructions 22 but . . . I think my responsibility . . . is to make an analysis of whether somebody really 23 could be fair and impartial. . . . I think that in context, she could not be fair and impartial, 24 and so that's the Court's ruling, and she is excused. 25 Defense counsel objected to the exclusion. 26 A prospective juror is not required to affirm that she would favor, or lean toward, the 27 death penalty under any particular circumstances in order to serve. Even "those who firmly 28 believe that the death penalty is unjust may nevertheless serve as jurors in capital cases," as long [End Page 16] 1 as they are able to subjugate their own beliefs to the need to follow the court's instructions. 2 Lockhart v. McCree, 476 U.S. 162, 176 (1986). Juror 64 averred that she could do just that. Her 3 acknowledgment that imposing a sentence of death would be difficult "did not demonstrate that 4 [she was] unwilling or unable to follow the law or obey [her] oaths," but rather that she may be 5 "more emotionally involved or view [her] task with greater seriousness and gravity." Adams v. 6 Texas, 448 U.S. 38, 49 (1980); see also Witt, 469 U.S. at 420. 7 However, the district court's concern that, despite Juror 64's averments to the contrary, 8 she could not be fair and impartial in considering the death penalty is well-grounded in the 9 record. As previously noted, on her questionnaire, she indicated the strongest available 10 opposition to the death penalty. Throughout the district court's painstaking and thoughtful voir 11 dire, Juror 64 walked a fine line between her opposition to the death penalty and her willingness 12 to follow the district court's instructions. The record clearly demonstrates that the court 13 endeavored mightily to explore Juror 64's ability to impartially apply the law and afforded both 14 parties ample opportunity to assist in this effort. Nevertheless, at the conclusion of voir dire, the 15 court, having the benefit of personally questioning and observing Juror 64, was left to ponder her 16 suitability. While Juror 64 strongly opposed the death penalty and was unprepared to conclude 17 that a defendant deserved death simply because a murder was premeditated, she simultaneously 18 claimed that she could impose the death penalty as part of her responsibilities as a juror in spite 19 of her expressed reluctance to do so. 20 Under these circumstances, the district court concluded that Juror 64's views might 21 substantially impair her duties as a juror and excused her. This conclusion fell well within the [End Page 17] 1 court's broad discretion. Uttecht, 127 S. Ct. at 2230; Witt, 469 U.S. at 434; see also Sampson, 2 486 F.3d at 41 (A trial court's decision to excuse a prospective juror for cause may be upheld 3 even when the juror "indicated some degree of willingness to put aside personal biases"). As we 4 have recently observed, a "blunt acknowledgment of bias may support removal without further 5 inquiry, [but] the more ambiguous a prospective juror's responses, the more useful demeanor, 6 and thus oral inquiry, become in allowing a trial judge to identify partiality warranting removal 7 for cause." Quinones, 511 F.3d at 301-02. Here Juror 64 made no "blunt acknowledgment" of 8 bias but, instead, repeatedly responded to the district court's questioning with ambiguous and 9 qualified answers, thus making her demeanor and oral responses central to the court's 10 qualification inquiry. Based on our review of the voir dire transcript, we, like the district court, 11 are left with the ""˜definite impression'" that Juror 64 ""˜would be unable to faithfully and 12 impartially apply the law.'" Id. at 301 (quoting Witt, 469 U.S. at 424, 426). 13 2. Prospective Juror 141 14 Fell argues that Prospective Juror 141 was improperly excused "because the trial court 15 applied too technical a view of case-specific voir dire, ultimately disregarding how Juror 141's 16 views on the death penalty would apply to this case." In his questionnaire, Juror 141 described 17 himself as a four out of ten "" "" i.e., not strongly opposed or in favor of capital punishment. He 18 indicated that a defendant's state of mind was important in his determination as to whether he 19 would consider the death penalty. In conformity with the court's prior ruling on case-specific 20 questioning, see Fell, 372 F. Supp. 2d at 770, the government asked Juror 141 whether he could 21 consider the death penalty in a case that "didn't involve murder, but simply involved someone [End Page 18] 1 engaging in violence, knowing that the act created a grave risk of death "" "" not premeditated 2 murder." Juror 141 responded "no" without qualification or elaboration. The government then 3 asked whether he would consider the death penalty in a case where the defendant committed an 4 act that "constituted a reckless disregard for human life [but] not first degree or premeditated 5 murder." Juror 141 again replied, unequivocally, "No." 6 Defense counsel objected to the government's line of questioning. In response, the 7 government argued that because reckless disregard for human life under 18 U.S.C. 8 § 3591(a)(2)(D) was alleged in the indictment as a gatekeeping factor, the government had the 9 right to pursue questions related to whether the juror could impose the death penalty absent 10 evidence of intent. Defense counsel then complained that this approach constituted a "stake-out" 11 to determine whether Juror 141 would impose the death penalty if Fell were found guilty of 12 reckless disregard for human life rather than whether he could impose death in that situation. 13 The district court disagreed, stating that, in conformity with its prior ruling on case-specific 14 questioning, see Fell, 372 F. Supp. 2d at 770, the government could ask questions relating to its 15 theory that Fell could be sentenced to the death penalty for conduct demonstrating recklessness. 16 The court noted that defense counsel would have the opportunity to rehabilitate the juror and 17 allowed the government to proceed. 18 In the course of the government's continued questioning, Juror 141 reiterated that "I just 19 . . . I really feel that the person, in order to be convicted of a death penalty, needs to have known 20 what they were doing, to realize the consequences of what they were doing." Defense counsel 21 then inquired into whether Juror 141 could infer intent from a description of the violence [End Page 19] 1 inflicted and "the resulting damage or injury." Juror 141 indicted that he could. Juror 141 also 2 expressed a willingness to weigh aggravating and mitigating factors, pursuant to the instructions 3 of the court, when considering whether death should be imposed. After this exchange, the 4 district court returned to the issue of whether Juror 141 would consider imposing the death 5 penalty for a killing that was reckless but not intentional, describing the reckless acts as "kicking 6 or stomping." Juror 141 reversed course and claimed that he could consider imposing the death 7 penalty on the basis of such violence, acknowledging that he was "somewhat contradicting 8 [himself]."9 [End Page 9]
Specifically, the following colloquy took place:

THE COURT: If the evidence showed that the defendant did not intentionally kill . . . in

other words, did not think about killing . . . but intentionally engaged in an act of

violence, knowing that the act created a grave risk of death, and that is, I think the facts,

at least the defense is suggesting here, involved kicking or stomping, and that is that there

wasn't necessarily an intent to kill, but that it was an intent . . . intentionally acted with a

grave risk of death to a person.

JUROR 141: Right.

THE COURT: In that given situation, could you impose the death penalty or not?

JUROR 141: Yes.

THE COURT: Okay. Why? I mean, is that . . . is that a . . . I guess, is my question

different than what the government said?

JUROR 141: I . . .no. I realize I am somewhat contradicting myself, but I guess from

what . . . what you are saying is that they almost knew what they were doing. They were


THE COURT: Here's the distinction . . . .


Rather than someone intentionally thinking to themselves, I'm going to kill another

human being, someone is intentionally deciding to engage in a violent act, recklessly [End Page 20] 1 Following a bench conference, the court found, over Fell's objection, that the question of 2 Juror 141's qualification was "so close" that it would not be "fair to proceed with him" and 3 excluded him for cause. The court provided no further reasoning and was not required to do so 4 in light of its discretion in such matters.10 See United States v. Mitchell, 502 F.3d 931, 956 (9th 5 Cir. 2007); Sampson, 486 F.3d at 41. 6 We see no error in the district court's decision to exclude this prospective juror. Juror 7 141's responses were not consistent or clear on whether he understood that the death penalty 8 could be imposed for murder resulting from reckless disregard for human life and whether he 9 would be able to apply it under such circumstances. A juror's voir dire responses that are

disregarding the fact that the act caused a grave risk of death to another person. In other

words, if you asked that person, did they intend to kill, they would say no, but they are

intentionally entering into that violent act.


That particular situation, could you impose the death penalty or not?

JUROR 141: Yes. [End Page 10]
In response to the government's contention that Juror 141 would not be able to

apply the death penalty if it believed that Fell had not intended to kill anyone even if government

proved that Fell acted with reckless disregard, defense counsel stated: "Judge, he answered your

questions, affirmatively, honestly, [and] thoughtfully, that he could consider a mental state which

fit the criteria of a conscious disregard, and he answered you indicating that he could consider

that." The court responded that "[it] is true that he did respond that particular way, but it is

unclear as to whether he responded in light of my comments about stomping, as opposed to the

general theory which now the government is proposing. If the government wants to rely upon

that particular theory, and if this juror says that he could not follow that theory and impose a . . . a

death sentence, then he is not eligible to serve." Given this colloquy, although the judge did not

provide an explanation of his decision to excuse Juror 141 for cause, the record is clear that he

believed that the juror would not be willing to follow court's instructions regarding the

government's theory that Fell could be eligible for the death penalty if he acted with conscious

disregard of the fact that his criminal conduct exposed King to the risk of death. [End Page 21] 1 ambiguous or reveal considerable confusion may demonstrate substantial impairment. Uttecht, 2 127 S. Ct. at 2229 ("[A juror's] assurances that he would consider imposing the death penalty 3 and would follow the law do not overcome the reasonable inference from his other statements 4 that in fact he would be substantially impaired in this case. . . . "). The district court properly 5 considered all of Juror 141's responses in the context in which they were given and did not err in 6 concluding that his views would significantly interfere with his duties as juror. See Witt, 469 7 U.S. at 434; Darden, 477 U.S. at 178. We find no abuse of discretion. 8 3. Prospective Juror 195 9 Prospective Juror 195 rated herself as an eight on the ten-point scale of support for the 10 death penalty contained in the juror questionnaire. Despite her support for the death penalty "[a]t 11 a philosophical level," she noted that she was unsure whether she "could vote in favor of it when 12 the decision is in [her] hands." In response to the court's questions about whether she could 13 impose the death penalty if the circumstances warranted, she repeatedly answered "I don't know" 14 or "more yes than no" and gauged her ability to do so as "60/40." 15 The district court's decision to excuse Juror 195 turned on her inconsistent and generally 16 negative responses when asked whether she would consider imposing the death penalty for a 17 single murder. Juror 195 felt that the death penalty was "not appropriate for every murder" but 18 would be justified "if it was a serial killer or mass murder, say on a mass shooting spree." She 19 also stated that she did not think she would vote in favor of the death penalty "for one killing." 20 The government moved to exclude her for cause following this exchange: 21 THE COURT: The question is whether you could follow the instruction and 22 consider the possible death penalty for one . . . if there's only one death. [End Page 22] 1 JUROR 195: Probably not. I would probably not be in favor of the death penalty 2 in that scenario. 3 Under the FDPA, a defendant is eligible for the death penalty if the jury finds the charged 4 homicide, a statutory intent element or threshold mental culpability factor under § 3591(a)(2), 5 and at least one of the statutory aggravating factors in § 3592(c). Although Fell was charged 6 with three statutory aggravating factors "" "" including committing multiple killings in a single 7 criminal episode under § 3592(c) "" "" two of the factors related to the death of King. In the event 8 that the jury found that the killings were not part of a single criminal episode, Fell would still be 9 eligible for the death penalty if the jury found at least one of the threshold mental culpability 10 factors and that he had caused King's death during the commission of a kidnapping or that he had 11 committed the offense in an especially cruel or depraved manner. Therefore, the government 12 argued that if Juror 195 could not consider imposing the death penalty without finding that Fell 13 engaged in multiple killings, she would be substantially impaired in her ability to follow the law. 14 Before ruling, the district court gave defense counsel the opportunity to question Juror 15 195. In response to defense questioning, she stated that she could consider the death penalty in 16 "any case" and would listen to the facts presented to make that determination. Moments later, 17 when questioned again by the government, Juror 195 retreated to her earlier position that, for the 18 murder "of a single person, [she] would probably say no, I would not be able to choose the death 19 penalty." The court excused Juror 195 based on its assessment that "she would have difficulty 20 following the instructions with regard to the single killing," that she was ambiguous as to 21 whether she could actually vote for the death penalty, and because the court "[could not] feel 22 assured that she would be fair to the government's side." [End Page 23] 1 Despite numerous attempts by the court and government to point out that her position 2 disqualified her from jury service, Juror 195 maintained that she would not consider the death 3 penalty for a single killing while still claiming that she could fulfill her duties as a juror and 4 follow the court's instructions. Given Juror 195's inconsistent positions, it is unlikely that she 5 would have followed the court's instructions if empaneled in this case. Accordingly, we 6 conclude that the district court's decision to excuse Juror 195 was proper. 7 II. EXCLUSION OF THE DRAFT PLEA AGREEMENT 8 Fell assails the district court's exclusion of a draft plea agreement on the ground that it 9 was mitigation evidence that rebutted the government's position that Fell had not accepted 10 responsibility. See Green v. Georgia, 442 U.S. 95, 97 (1979). Fell's argument is driven by two 11 contentions. First, he argues that the trial court misapplied the FDPA's evidentiary standards 12 governing the admission of evidence. Second, he claims that the exclusion of the agreement 13 denied him an opportunity to rebut the government's misrepresentations about his willingness to 14 plead guilty and accept responsibility. We disagree. 15 In 2001, the parties considered a plea agreement under which Fell would plead guilty to 16 Count 2 of the original Indictment "" "" kidnapping Teresca King with death resulting "" "" in 17 exchange for a sentence of life imprisonment. The proposed plea agreement detailed "substantial 18 mitigating evidence" related to Fell's "mental health and impaired capacity at the time of the 19 events[;] . . . his mental health history; his youth; his remorse; his assistance to authorities; and 20 his lack of any substantial prior criminal history." Id. at 782. Fell and his attorneys signed the 21 agreement, but the prosecutors did not. Under Department of Justice guidelines, the proposed [End Page 24] 1 agreement was expressly conditioned on approval by the Attorney General, after which the U.S. 2 Attorney for the District of Vermont could sign the agreement.11 The Attorney General rejected 3 Fell's agreement and the government filed notice that it would seek the death penalty. 4 In a pre-trial submission, the government moved to bar admission of the draft agreement 5 as well as information surrounding plea negotiations at the guilt and penalty phases of the trial. 6 Fell, 372 F. Supp. 2d at 781. The government characterized the plea agreement, a conditional 7 offer that was subject to acceptance by the Attorney General, as containing the unendorsed 8 opinion of the prosecution and embodying inchoate compromise negotiations barred by Federal 9 Rules of Evidence 408 and 410. Fell agreed that the evidence was irrelevant at the guilt phase, 10 but opposed the motion, claiming that the proposed agreement contained binding judicial 11 admissions that substantial mitigating factors existed. He also contended that the Fifth and 12 Eighth Amendments as well as § 3593(c) of the FDPA compelled admission of the draft. 13 On May 26, 2005, the district court excluded the draft plea agreement "" "" and statements 14 made during plea negotiations "" "" as irrelevant because "a prosecutor's statements of personal 15 belief regarding [aggravating and mitigation] factors should have no bearing on the jury's [End Page 11]
Those guidelines provide that where a charged offense is subject to the death

penalty, the United States Attorney is required to prepare a prosecution memorandum, including

a comprehensive discussion of, among other information relevant to the charging decision,

evidence relating to any aggravating or mitigating factors and the defendant's background and

criminal history. U.S. Attorneys Manual § 9-10.01-05. The material is reviewed by a Committee

appointed by the Attorney General, which makes a recommendation to the Attorney General,

who then decides whether the Government will seek the death penalty. After considering the

committee's recommendation, the views of the relevant U.S. Attorney, and the advice of the

Deputy Attorney General, the Attorney General will make the final decision on whether the

government should file a notice of intention to seek the death penalty in a particular case. Id. at

§ 9-10.120. [End Page 25] 1 independent evaluation of the evidence." United States v. Fell, 372 F. Supp. 2d 773, 783 (D. Vt. 2 2005). The court also emphasized that the statements in the proposed plea agreement were never 3 adopted by the government. See id. It concluded that while the draft's probative value was 4 negligible because "the opinions of the prosecutors [did not] make the existence or non-existence 5 of any mitigating factor more probable or less probable," id., it could prejudicially distract the 6 jury from making its own independent evaluation of the mitigating and aggravating factors. 7 Finally, the court determined that public policy disfavored evidence that would deter plea 8 bargaining. 9 However, the district court permitted Fell to introduce during the penalty phase a 10 stipulation that he had offered to plead guilty to Count 2 in exchange for a sentence of life 11 imprisonment without parole. In the court's view, Fell's "offer [was] relevant to the mitigating 12 factor of acceptance of responsibility." Id. The stipulation informed the jury that "on May 18th, 13 2001, Donald Fell, through his attorneys and in writing, offered to plead guilty to Count II of the 14 indictment, kidnapping, death resulting, in exchange for a life sentence without the possibility of 15 release. The government refused that offer." In summation, defense counsel contended that 16 Fell's attempt to plead guilty demonstrated that he had accepted responsibility, assisted law 17 enforcement, and felt remorse. In response, the government argued in closing: 18 Ladies and gentlemen, the judge instructed you. You know the law. Life 19 imprisonment without the possibility of release is the minimum sentence that 20 Donald Fell faces for kidnapping with death resulting. It's the minimum sentence. 21 When he offered to make that plea, he knew the evidence against him was 22 overwhelming. He knew there was no doubt he was going to be convicted, so he 23 asked for the minimum sentence. We rejected that, ladies and gentlemen. We 24 wanted a jury to decide the appropriate sentence in this case. And, ladies and [End Page 26] 1 gentlemen, let's take a look at the last part of this: He's maintained that offer to 2 this day. 3 4 Ladies and gentlemen, we had to try and convict him. If he wanted to plead 5 guilty, he could have pled guilty. We had a guilt phase in this case, ladies and 6 gentlemen. We put on our case. We met our burden. We proved it. And now we 7 are here to decide what is the just sentence. The minimum sentence? Or death 8 sentence. 9 Fell did not object or request a curative measure at the time. When he moved for a new 10 trial, he argued that the government committed misconduct by taking inconsistent positions with 11 respect to the facts underlying the stipulation. By minimizing Fell's cooperation and acceptance 12 of responsibility, he contended, the government took a position inconsistent with that which it 13 had set forth in the draft plea agreement. This alleged misconduct, Fell urged, entitled him to be 14 re-sentenced to life imprisonment or to receive a new sentencing hearing. The district court 15 denied the motion. 16 On appeal, Fell renews his objection to the court's exclusion of the draft agreement and 17 mounts an expanded challenge to the government's allegedly improper rebuttal comments. As to 18 the agreement, he argues that the court violated the FDPA because the draft agreement was 19 relevant to the mitigation factors. He also makes a two-fold claim regarding the government's 20 misconduct. First, Fell believes that once the prosecution commented in its closing argument on 21 his refusal to plead guilty, he should have been permitted to introduce the draft agreement as 22 rebuttal evidence. Second, he avers that the government's intimations about his refusal to plead 23 guilty impermissibly burdened his right to plead not guilty. Since Fell failed to object to the 24 prosecution's comments, we review for plain error. While we see none with respect to the

[End Page 27] 1 court's exclusion of the draft agreement, the prosecutor's remarks present a more complicated 2 question. 3 In cases governed by the FDPA, the Federal Rules of Evidence do not apply at the penalty 4 phase. See 18 U.S.C. § 3593(c); Fell I, 360 F.3d at 143. The FDPA provides that information 5 relevant to the sentence, including any mitigating or aggravating factor: 6 is admissible regardless of its admissibility under the rules governing admission 7 of evidence at criminal trials except that information may be excluded if its 8 probative value is outweighed by the danger of creating unfair prejudice, 9 confusing the issues, or misleading the jury. . . . The government and the 10 defendant shall be permitted to rebut any information received at the hearing, and 11 shall be given fair opportunity to present argument as to the adequacy of the 12 information to establish the existence of any aggravating or mitigating factor, and 13 as to the appropriateness in the case of imposing a sentence of death. 14 15 18 U.S.C. § 3593(c). See Fell I, 360 F.3d at 146 (upholding the constitutionality of this 16 provision of FDPA and collecting cases so holding). 17 Accordingly, a capital defendant has a right to introduce "as a mitigating factor, any 18 aspect of a defendant's character or record and any of the circumstances of the offense that the 19 defendant proffers as a basis for a sentence less than death."12 Lockett v. Ohio, 438 U.S. 586, 604 [End Page 12]
In Fell I, we concluded that "to achieve such "˜heightened reliability' [as required

in considering a sentence of death], more evidence, not less, should be admitted on the presence

or absence of aggravating and mitigating factors." Fell I, 360 F.3d at 143 (emphasis in original);

see also Gregg v. Georgia, 428 U.S. 153, 203-04 (1976) ("So long as the evidence introduced . . .

at the presentence hearing do[es] not prejudice a defendant, it is preferable not to impose

restrictions. . . . [and] desirable for the jury to have as much information before it as possible

when it makes the sentencing decision."). However, even though the FDPA purportedly allows

more evidence to be considered in the penalty phase of a capital case, "the presumption of

admissibility of relevant evidence is actually narrower under the FDPA than under the FRE."

Fell I, 360 F.3d at 145. "[T]he balancing test set forth in the FDPA is, in fact, more stringent

than its counterpart in the FRE, which allows the exclusion of relevant evidence "˜if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.'" Id. (citing Fed. R. Evid. 403) (emphasis added). The FDPA requires only [End Page 28] 1 (1978) (emphasis in original). The Supreme Court recognized, however, that its holding did not 2 "limit[] the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the 3 defendant's character, prior record, or the circumstances of his offense." Id. at 604 n.12. 4 Likewise, the FDPA's evidentiary standards do "not mean that the defense has carte blanche to 5 introduce any and all evidence that it wishes." United States v. Purkey, 428 F.3d 738, 756 (8th 6 Cir. 2005). Nor does the FDPA "eliminate th[e] function of the judge as gatekeeper of 7 constitutionally permissible evidence." Fell I, 360 F.3d at 145. 8 The court's exclusion of the draft agreement was within its "traditional authority" to 9 exclude evidence of questionable relevance. The district court appropriately concluded that, 10 pursuant to 18 U.S.C. § 3593(c), the draft agreement's inclusion of the unadopted statements of 11 the prosecutors lacked evidentiary value and that it would distract the jury from an independent 12 assessment of the mitigating factors. In addition, admission of the draft would authorize a 13 confusing and unproductive inquiry into incomplete plea negotiations. See Berger v. United 14 States, 295 U.S. at 88 (stating that the opinions of prosecutors should properly carry no weight 15 with the jury); accord United States v. Melendez, 57 F.3d 238, 240-41 (2d Cir. 1995). For these 16 reasons, we see no error "" "" much less abuse of discretion "" "" in the district court's decision to 17 exclude the opinions of the prosecutors set forth in the draft plea agreement. 18 Fell next argues that the prosecutor misrepresented his willingness to plead guilty by 19 stating, in closing argument, that "if [Fell] wanted to plead guilty he could have." Fell contends 20 that, in order to correct this purported misrepresentation, he should have been allowed to

that the probative value be "outweighed" by such dangers. See 18 U.S.C. § 3593(c). [End Page 29] 1 introduce the draft agreement in rebuttal. Further, Fell maintains that the prosecution's remark 2 implicated his right to plead not guilty and avail himself of a jury trial. 3 Because Fell did not preserve his challenge at trial, we review for plain error and 4 conclude that the prosecution's statement falls well short of meeting this test. First, the draft 5 agreement did not need to be admitted in rebuttal to the prosecution's statements. To the extent 6 Fell sought to introduce the draft agreement to bolster his mitigation defense that he accepted 7 responsibility and to counter the prosecution's comments that he did not, the agreement was 8 cumulative of the stipulation informing the jury that the government refused his offer to plead 9 guilty. In any event, the record is virtually conclusive that the jury was clearly aware of Fell's 10 willingness to plead guilty. On the verdict form, all twelve jurors found that "Donald Fell 11 offered to plead guilty to kidnapping and murdering Teresca King, knowing that the law requires 12 a sentence of life in prison without the possibility of release, and he has maintained that offer to 13 this day." In addition, six jurors found the mitigating factors addressed in the agreement "" "" 14 concluding that Fell had "admitted responsibility for the death of Teresca King" and had 15 "assisted law enforcement." Regardless, all twelve jurors unanimously found that the 16 government had established each of the alleged aggravating factors. In view of the jurors' 17 responses, even if the agreement had been admitted and an additional six jurors had found that 18 Fell had admitted responsibility, the result of the penalty phase would not have been different. 19 Fell's constitutional objection to the government's comments that as a consequence of his 20 plea of not guilty, the government "had to try to convict him" and "if [Fell] wanted to plead

[End Page 30] 1 guilty, he could have pled guilty" requires a different analysis.13 Fell contends that this argument 2 constituted an improper attempt, in violation of the Fifth and Sixth Amendments, to defeat a 3 mitigating factor and impermissibly penalize him for pleading not guilty. Fell first challenged 4 these comments in his motion for a new trial only on the due process ground of the inconsistency 5 between the prosecution's original view that the existence of mitigating evidence warranted plea 6 negotiations and its position during the penalty phase that any mitigating factors were far 7 outweighed by the aggravating circumstances of the case. Fell, 2006 U.S. Dist. LEXIS 24707, at 8 *33. Since no mention was made of the Sixth Amendment below, we review his claim for plain 9 error. 10 We have held that, when addressing the jury, a prosecutor "must avoid commenting in a 11 way that trenches on the defendant's constitutional rights and privileges. For example, []he may 12 not permissibly comment on the failure of the defendant to testify, or invite the jury to "˜presume' 13 in the absence of countervailing evidence that the government's view of the case is correct, or [End Page 13]
The prosecutor had previously stated that:
[D]efense counsel . . . told you in his opening statement that Donald Fell accepted
responsibility for what he did. But that's not entirely true because as the judge
told you on the first day of trial Donald Fell has pleaded not guilty. And because
he pleaded not guilty a jury must find whether or not the Government can
introduce evidence beyond a reasonable doubt to overcome the presumption of
innocence that the law provides to Donald Fell.
[D]efense counsel also said that Fell accepts responsibility for what he did. But
he pleaded not guilty. And that's why we're here. And that's why you are here.
And let's think a little bit about that. Think about the very nature of the crimes
that he's charged with. They are all about evasion, about escape, about trying to
avoid responsibility for what he did.
[End Page 31] 1 suggest that the defendant has any burden of proof or any obligation to adduce any evidence 2 whatever." United States v. Parker, 903 F.2d 91, 98 (2d Cir. 1990). In order to prevail on a 3 claim of prosecutorial misconduct, a defendant must demonstrate "that the prosecutor's remarks 4 were improper and . . . that the remarks, taken in the context of the entire trial resulted in 5 substantial prejudice." United States v. Bautista, 23 F.3d 726, 732 (2d Cir. 1994). 6 The challenged comments occurred in response to Fell's endeavor to use the stipulation of 7 his offer to plead guilty to prove acceptance of responsibility as a mitigating factor. In 8 summation, the prosecution sought to place the stipulation in context by noting that, when faced 9 with overwhelming evidence of his guilt, Fell offered to plead guilty in exchange for the 10 minimum penalty authorized for his conduct. When this offer was not accepted, the government 11 proceeded to a trial that Fell could have avoided by pleading unconditionally. At that trial, the 12 government was put to a burden which it met. We believe these arguments "" "" which the jury was 13 repeatedly told were not evidence "" "" were reasonable responses to Fell's use of the stipulation. 14 No error occurred. See Darden, 477 US at 183. 15 III. PROSECUTOR'S STATEMENTS REGARDING CONSIDERATION OF MITIGATING FACTORS 16 Fell next contends that he was denied a fair sentencing hearing because the prosecutor 17 erroneously argued that the jury could not consider mitigating evidence that was unrelated to the 18 crimes for which he had been found guilty. During summation, the prosecutor made the following 19 arguments: 20 [Y]ou should consider, one, [w]hat do these factors have to do with the crimes in 21 this case? And do these factors actually lessen the defendant's responsibility and 22 culpability for these crimes? . . . [E]ven if you find evidence of some of those 23 mitigating factors, we submit to you that the weight of these factors is not that [End Page 32] 1 heavy, and you need not give them much, if any, weight based upon those two 2 questions . . . 3 4 . . . you have heard so much about the defendant's childhood, so much about his 5 background, and again, let me just remind you, the question is, we submit to you, 6 what's the connection between his background and childhood and these crimes? 7 What about his background and childhood makes him less responsible, less 8 culpable? What about them means that he should receive a less "" a lesser 9 sentence? 10 11 The question is, what does that sexual assault when he was four or five have to do 12 with the crimes in this case? Sixteen years later, there's nothing sexual about these 13 crimes. There's nothing about that background and that history that shows you that 14 he is less responsible for the decisions that he made, decisions like killing a 15 witness. How does that have to do with what happened to him, which was 16 terrible? 17 18 What's the evidence of the mitigating factors? To the extent you find some, there 19 are not that many, respectfully, and they really don't relate to the crimes. 20 21 Fell maintains that these closing comments, by suggesting that the relevance of his 22 mitigating evidence depended on its connection with his crimes of conviction, violated the 23 constitutional and statutory rule that before imposing the death penalty, a jury must "be able to 24 consider and give effect to a defendant's mitigating evidence . . . ." Penry v. Johnson, 532 U.S. 25 782, 797 (2001) (requiring that a jury "be able to consider and give effect to a defendant's 26 mitigating evidence in imposing [its] sentence . . . ."); accord Lockett, 438 U.S. at 604. A capital 27 defendant's mitigating evidence need not have a nexus to the murder for which he has been 28 convicted, but need only allow "the sentencer to reasonably find that it warrants a sentence less 29 than death." Tennard v. Dretke, 542 U.S. 274, 285 (2004); FDPA § 3592(a)(8) (defining 30 mitigating evidence as "factors in the defendant's background, record, or character or any other 31 circumstance of the offense that mitigate against imposition of the death sentence"); FDPA [End Page 33] 1 § 3593(c) (providing that "[a]t the sentencing hearing, information may be presented as to any 2 matter relevant to the sentence, including any mitigating or aggravating factor permitted or 3 required to be considered under section 3592"). 4 Following the jury's recommendation of a death sentence, Fell moved for a new trial based 5 on his claim of improper statements by the government. The district court denied the motion, 6 holding that "" "" in the context of the entire proceeding and specifically, in light of its instructions 7 to the jury "" "" Fell had not been denied due process.14 Reviewing for plain error, we agree that [End Page 14]
Although the district court denied the motion, it acknowledged that the

government had impermissibly "argued that there must be a connection between Fell's

background and childhood and the crimes." It further noted that "[t]he government tied

acceptable argument with its unacceptable comments [by] stating that the jury need not give

much if any weight to Fell's background and childhood evidence based upon its irrelevance to

the crimes he committed." Fell, 2006 U.S. Dist. LEXIS 24707, at *39.
Judge Walker and Judge Cabranes regard the prosecutor's comments as acceptable

arguments about the weight of the evidence. They note that the cases on which the district court

relied deal with the scope of a court's authority to exclude evidence that "[r]easonable jurists

could conclude . . . was relevant mitigating evidence." Tennard, 542 U.S. at 288; McKoy, 494

U.S. at 442 ("Under our decisions, it is not relevant whether the barrier to the sentencer's

consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an

evidentiary ruling."(quoting Mills, 486 U.S. at 375 (citations omitted))). They further note that

the Supreme Court has never held that, when arguing the weight of the evidence, a prosecutor

may not question the connection between mitigating evidence and the defendant's crime of

conviction. Finally, they conclude that the prosecutorial comments at issue in the instant case do

not differ in substance from the comments that the Supreme Court found acceptable in Boyde.

See, e.g., 494 U.S. at 385 (noting that the prosecutor had "argued to the jury that the mitigating

evidence did not "˜suggest that [Boyde's] crime is less serious or that the gravity of the crime is

any less' and that "˜[n]othing I have heard lessens the seriousness of this crime'") (quoting Boyde

trial record). In sum, they do not see the prosecutor's observations about the lack of nexus

between Fell's mitigating evidence and Fell's crime of conviction as "separate" from the

prosecutor's arguments about the weight that the jury should accord to that mitigating evidence.

It is not improper for a prosecutor to argue that, because such a nexus is absent, the mitigating

evidence should be given little or no weight.
Judge Parker, on the other hand, agrees with the district court that the prosecutor

permissibly argued that the weight of the mitigating evidence did not lessen Fell's culpability, see

Boyde, 494 U.S. at 385, but impermissibly suggested that the juror should disregard the [End Page 34] 1 there was no reasonable likelihood that the jurors believed themselves to be precluded from 2 considering Fell's mitigating evidence unless it related to his charged crimes. See Ayers v. 3 Belmontes, 127 S. Ct. 469, 480 (2006); McKoy v. North Carolina, 494 U.S. 433, 442 (1990). 4 In its charge to the jury, the district court defined mitigating factors as those relating to 5 Fell's childhood and background and instructed the jury to consider all aggravating and mitigating 6 factors in rendering its decision. Specifically, the court instructed that: 7 [a] mitigating factor is not offered to justify or excuse a defendant's conduct. A 8 mitigating factor is simply an extenuating fact about a defendant's life or character, 9 or about the circumstances surrounding the murder, or anything else relevant that 10 would suggest that a sentence of life in prison without the possibility of release is 11 more appropriate punishment than a sentence of death. 12 The court listed the mitigating factors that Fell had presented and told the jury that they could 13 consider any additional mitigating factors that had not been specifically raised by Fell's counsel. 14 The court also instructed the jurors that the arguments of counsel were not evidence and 15 that if any conflicted with the court's instructions, the latter controlled. Specifically, the jurors 16 were told that mitigating and aggravating factors "have to do with the circumstances of the crime, 17 or the personal traits, character, or background of the defendant, or anything else relevant to the

mitigating evidence because it did not "connect" to the charged crimes. He focuses on the

prosecution's language: "˜What's the evidence of mitigating factors? To the extent that you find

some, there are not that many, respectfully, and they don't really relate to the crimes" as

demonstrating that the prosecution improperly contended that mitigation evidence could be

ignored because it bore no nexus to the crime. See Tennard, 542 U.S. at 285 (concluding that

"the Eighth Amendment requires that the jury be able to consider and give effect to a capital

defendant's mitigating evidence") (internal citations omitted). He further believes that Boyde has

no applicability where a prosecutor makes, in addition to an argument challenging the weight of

the mitigating evidence, a separate argument questioning the relevance of that evidence.
Regardless, we need not resolve these differences as we find that Judge Sessions correctly

held that the government's comments were not prejudicial. [End Page 35] 1 sentencing decision." Moreover, the court's instructions, as a whole, "made it clear that the jury 2 was to take a broad view of mitigating evidence." Ayers, 127 S. Ct at 478. 3 In light of these thorough instructions, as well as the amount of time and attention devoted 4 to Fell's early life experiences by both parties and the fact that the prosecutor's comments formed 5 a very brief part of his summation and were not repeated during his rebuttal, it is extremely 6 unlikely that the jury felt constrained in its consideration of Fell's mitigating evidence. See Boyde 7 v. California, 494 U.S. 370, 384 (1990) ("[A]rguments of counsel generally carry less weight with 8 a jury than do instructions from the court. The former are usually billed in advance to the jury as 9 matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, 10 we have often recognized, are viewed as definitive and binding statements of the law." (internal 11 citation omitted)); cf. Brown v. Payton, 544 U.S. 133, 146 (2005) ("The judge is, after all, the one 12 responsible for instructing the jury on the law, a responsibility that may not be abdicated to 13 counsel."). 14 Indeed, the verdict form bears out this conclusion. The jury unanimously found eight 15 background mitigating factors, including that Fell was sexually and physically abused as a child, 16 that he was treated and institutionalized on several occasions due to mental health problems and 17 that his parents were violent alcoholics who abandoned him. Significantly, ten individual jurors 18 found additional mitigating factors not expressly provided by the defense: "total life experience, 19 failure of the state["˜s] . . . social and mental health services to effectively intervene in his 20 childhood abuse and to treat or address his early antisocial behavior." No juror could have

[End Page 36] 1 reached such conclusions while believing that to qualify as a mitigating factor, that factor need 2 have a nexus to the crime. 3 IV. MENTAL HEALTH EVIDENCE 4 Fell next argues that the government committed misconduct by violating a district court 5 order concerning mental health evaluations. During the course of plea negotiations in 2001, the 6 defense provided a variety of mitigation information to the government, including the disclosure 7 that it had hired experts to conduct mental health evaluations of Fell. After rejecting the proposed 8 plea agreement and filing its notice of intent to seek the death penalty, the government moved for 9 discovery of all mental health evidence and for Fell to submit to an examination by a government 10 expert. Although the court never ruled on this motion,15 the defense voluntarily produced the 11 reports and agreed to limited evaluations by two government experts, doctors Richard Wetzel and 12 John Rabun. Fell, 372 F. Supp. 2d at 758. The district court later observed that the limitations 13 were appropriate because "in absence of Fed. R. Crim. P. 12.2(c), Fell's statements could be used

[End Page 15]
In late 2002, Federal Rule of Criminal Procedure 12.2 was amended to codify a

common-law sanctioned practice of the court ordering discovery and mental health examinations

by the government's experts upon notice by the defendant of intent to produce mental health

evidence. FED . R. CRIM . P. 12.2 advisory committee's note (2002) [End Page 37] 1 as evidence against him at trial."16 Fell, 372 F. Supp. 2d at 758. Drs. Wetzel and Rabun both 2 produced reports based on their examinations of Fell. 3 After we decided Fell I, in December 2004, the defense gave formal notice that it planned 4 to introduce expert evidence on Fell's mental condition. See FED . R. CRIM . P. 12.2(b).17 5 Subsequent to that announcement, the government moved for a court-ordered examination of 6 Fell's mental health pursuant to Federal Rule of Criminal Procedure 12.2(c)(1)(B). The [End Page 16]
The 2002 amendments to Rule 12.2 also allowed the government to admit

statements made by a defendant during a medical examination by a government expert if the

defendant had introduced his own expert mental health evidence. FED R. CRIM . P. 12.2 advisory

committee's note (2002). The rule now provides that:
No statement made by a defendant in the course of any examination conducted
under this rule (whether conducted with or without the defendant's consent), no
testimony by the expert based on the statement, and no other fruits of the
statement may be admitted into evidence against the defendant in any criminal
proceeding except on an issue regarding mental condition on which the defendant:
(A) has introduced evidence of incompetency or evidence requiring notice under
Rule 12.2(a) or (b)(1), or
(B) has introduced expert evidence in a capital sentencing proceeding requiring
notice under Rule 12.2(b)(2).
FED . R. CRIM . P. 12.2(c)(4) (emphasis added).
[End Page 17]
Rule 12.2(b) requires that:
If a defendant intends to introduce expert evidence relating to a mental disease or
defect or any other mental condition of the defendant bearing on either (1) the
issue of guilt or (2) the issue of punishment in a capital case, the defendant must --
within the time provided for filing a pretrial motion or at any later time the court
sets "" notify an attorney for the government in writing of this intention and file a
copy of the notice with the clerk. The court may, for good cause, allow the
defendant to file the notice late, grant the parties additional trial-preparation time,
or make other appropriate orders.
FED . R. CRIM . P. 12.2(b).
[End Page 38] 1 government then requested an unrestricted examination of Fell by a third expert, Dr. Michael 2 Welner, it had retained in early 2004. Specifically, the government sought to have Welner 3 question Fell regarding his state of mind at the time of the murders. Fell, 372 F. Supp. 2d at 759. 4 The series of events that followed is somewhat complicated. 5 The defense objected to the need for a new examination and to the government's use of a 6 third expert for this purpose. On April 7, 2005, the district court ruled that the government 7 should be allowed a further examination to assess Fell's mental condition at the time of the 8 offense. Id. at 779. However, because Rabun and Wetzel had already conducted extensive 9 interviews exploring both mitigating and aggravating circumstances "at a time closer to the 10 relevant events," id. at 761, the court ruled that their opinions would satisfy Rule 12.2 "while at 11 the same time not subjecting Fell to an extensive forensic interview by a new expert at this late 12 stage in the proceeding," id. at 762. The order accompanying the district court's opinion 13 provided that the examination "may be conducted by Dr. Rabun or Dr. Wetzel, or both," and that 14 the examiner would be permitted to conduct a complete psychiatric examination. The same order 15 required that prior to any examination by an expert for the government, the government would 16 provide defense counsel with a list of the tests to be performed, and that the government and 17 defense should attempt to resolve any disagreement as to "the designation of specific testing 18 measures to be administered by the defense and prosecution witnesses." Finally, the order stated 19 that the government "shall not identify more than one test for the purpose of measuring the same 20 mental function," and that "[n]o mental health test may be performed by either party until there is 21 a final decision as to what tests are to be conducted by the government's experts." [End Page 39] 1 The government, on April 14, 2005, renewed its request to have Fell examined by 2 Welner, claiming that Rabun and Wetzel had not been retained to assist in the penalty phase, but 3 rather, merely with regard to plea negotiations. Fell, 372 F. Supp. 2d at 778. At the same time, 4 Fell moved to exclude Welner's testimony on the grounds that it would be either cumulative or 5 contradictory of the testimony provided by Rabun and Wetzel at the guilt phase and that 6 Welner's testimony might relate to future dangerousness "" "" an aggravating factor not alleged by 7 the government. The court denied both requests on May 26, 2005. Fell, 372 F. Supp. 2d at 781. 8 It rejected the government's contention that Rabun and Wetzel were hired only to advise the 9 government concerning plea negotiations, and indicated that the government violated "the spirit, 10 if not the language," of its original agreement with the defense by deciding after two years that it 11 wanted a new expert. Id. The court also denied as premature Fell's motion to exclude Welner's 12 testimony, holding that the nature and scope of Welner's anticipated rebuttal testimony was 13 unclear but that, even without interviewing Fell, his testimony might "shed light on Fell's 14 upbringing and other relevant factors concerning sentencing." Id. Accordingly, the court 15 declined to rule on admissibility prior to the government's disclosure of the scope of Welner's 16 projected testimony. 17 Pursuant to the court's April 7, 2005 order, Wetzel interviewed Fell and prepared a report 18 explaining his findings. Fell, 2006 U.S. Dist. LEXIS 24707, at *8. A video recording of the 19 Wetzel interview was subsequently provided to Welner who compiled a report based on that 20 interview. At the sentencing phase of the trial, Fell moved to exclude parts of Wetzel's report 21 and also sought a copy of Welner's report. On July 5, 2005, after the government had rested, it [End Page 40] 1 disclosed Welner's report as ordered by the district court. The report revealed that Welner had 2 supplied questions for Wetzel to ask Fell and had administered psychological tests that had not 3 been previously disclosed to the defense "" "" the Psychopathy Checklist-Revised ("PCL-R"), the 4 Violent Risk Appraisal Guide ("VRAG"), and the Historical/Clincal/Risk Management (HCR- 5 20) "" "" to assess Fell's capacity for future violence. Id. at *13. Welner admitted that in scoring 6 the PCL-R, he relied on Wetzel's videotaped interview. Welner's assessment based on these 7 tests was that Fell was a psychopath and that sexual and physical abuse had played little role in 8 his development. 9 The following day, Fell moved to exclude Welner's report and testimony, arguing that by 10 supplying questions for Wetzel to ask him, Welner had used Wetzel as a proxy for interviewing 11 Fell in violation of the court's April 7 order and that the government administered new testing 12 without providing notice. The court scheduled a hearing on July 11 to address this issue and 13 others regarding Welner's proposed testimony. Before the hearing took place, however, Fell 14 changed course and elected not to call a mental health expert.18 Id. at *15. The next day, the 15 defense and the government entered into a stipulation to the effect that Fell suffered from no 16 mental disease or defect and knew the difference between right and wrong at the time of the

[End Page 18]
Prior to this, Fell had already decided not to call another mental health expert, Dr.

Mills, as part of its mitigation case. Mills was scheduled to testify on the first day of the

defense's case, but the defense decided that it would save Mills's testimony for surrebuttal. [End Page 41] 1 murders.19 As a result, the government presented no mental health evidence during the penalty 2 phase. Id. at *15-16. 3 In his motion for a new trial, Fell argued that the government's conduct in connection 4 with Welner's examination "precluded the jury's consideration of mitigation evidence by causing 5 Fell to withdraw all expert mental health evidence." The district court concluded that although 6 the government had violated its April 7 order, "[w]hen Fell decided to drop any presentation of 7 expert evidence on his mental condition while a challenge to the admissibility of the 8 government's expert rebuttal evidence was pending, he also dropped his claim of misconduct by 9 the government in obtaining its rebuttal evidence." Id. at *31-32. We agree. Cf. United States v. 10 Wellington, 417 F.3d 284, 289-90 (2d Cir. 2005) (ruling that where defendant chose to stipulate 11 to the elements of the offense, he waived his right to challenge the absence of opening 12 statements, witnesses, evidence and closing statements at his trial). 13 Given the compelling case for waiver, on appeal Fell takes a somewhat different approach 14 by arguing that it was improper for the district court to delay ruling on his motion to exclude 15 Welner's testimony until after the government had disclosed the scope of that testimony. He [End Page 19]
The full stipulation provided:
[A]fter his arrest in late 2000, Donald Fell was subjected to full psychological and
psychiatric examinations. Those examinations determined that, one, he had no
cognitive or neurological deficits; two, his intellect and cognitive functions were
intact; three, he did not suffer from any mental disease or defect. The
examination also found that fell was competent to stand trial, and knew the
difference between right and wrong at the time of offenses on November 27,
[End Page 2000.]
Tr. 7/12/05, pg. 93-94
[End Page 42] 1 claims that "defense counsel was entitled to a ruling on the admissibility of Welner's testimony 2 before presenting its mitigation case" and that the trial court's failure to do so before he was 3 forced to decide whether or not to present his own expert testimony prevented him from making 4 a knowing and informed decision. Since Fell never objected to the scheduled date of the hearing 5 on the admissibility of Welner's testimony, we review this claim for plain error. 6 As an initial matter, Fell has failed to establish that it was error for the court to schedule a 7 hearing on Welner's testimony at the end of the defense's mitigation case. "Scheduling is a 8 matter that is of necessity committed to the sound discretion of the trial court." Drake v. 9 Portuondo, 321 F.3d 338, 344 (2d Cir. 2003); see also Grotto v. Herbert, 316 F.3d 198, 206 (2d 10 Cir. 2002). The district court postponed its consideration of the scope of Welner's rebuttal 11 testimony to permit it to first assess the nature and scope of the defense expert's testimony. This 12 approach was a sensible one that we are not inclined to second guess. Fell's contention that the 13 court could have made a determination on admissibility without reference to the evidence that the 14 defense intended to submit misses the point. We find no error in the district court's handling of 15 this matter, and therefore no plain error. 16 V. SATANISM AND OTHER RELIGIOUS EVIDENCE 17 18 Fell next contends that testimony elicited by the prosecution concerning a past interest in 19 satanism and his interest, while incarcerated and awaiting trial, in Native American and Muslim 20 religions denied him due process and violated the First Amendment. See Dawson v. Delaware, 21 503 U.S. 159, 163-69 (1992). Fell's claims relate to the testimony of three witnesses called by

[End Page 43] 1 the defense: Teri Fell, the defendant's sister; James Rushlow, a case worker at Northwest 2 Correctional Facility; and James Aiken, an expert witness in penology. 3 Teri Fell testified on direct examination about the abusive and violent home life she and 4 her brother experienced. On cross-examination, when the government inquired as to his 5 religious interests when they were growing up, she testified that Fell initially did not believe in 6 God and on several occasions jokingly characterized Satan as "the kindest beast." She also 7 testified that Fell had a tattoo of an upside-down cross with "666," which she believed he had 8 gotten when he was 15 or 16 years old. However, Teri Fell explained that she did not believe 9 that Fell worshiped Satan. 10 James Rushlow testified on direct examination as to Fell's adjustment in prison and his 11 participation in certain religious and educational opportunities afforded by the institution. On 12 cross-examination, the prosecution confirmed that Fell had signed up for Christian Bible Studies, 13 and asked Rushlow: "During your time working with Mr. Fell, has he also claimed to practice 14 Native American rituals?" In response, Rushlow testified that Fell had filed a grievance and a 15 lawsuit seeking the right to perform Native American rituals. With no objection from the 16 defense, the government introduced into evidence a certified copy of the record in that 17 litigation.20 Rushlow further stated that Fell had wanted to participate in Ramadan, as a Muslim, 18 and that he had filed numerous other grievances for himself and on behalf of others. In addition,

[End Page 20]
Defense counsel stated that he had no objection to the certified record being

entered into evidence but he "may well" have an objection to Rushlow being asked to comment

on it. [End Page 44] 1 Rushlow testified, without objection, that Fell had both a "666" tattoo and one of an anarchy 2 symbol. 3 The defense called James Aiken to testify further about Fell's positive adjustment in 4 prison. The government cross-examined Aiken regarding the possibility of Fell committing 5 future assaults, and asked him to describe the significance of Fell's "666" tattoo. He responded: 6 7 Well, the 666 denotes possible involvement in some type of relationship with an 8 organization. I will leave it at that because I have not dwelled into that from the 9 intelligence reports. Number two is that I am more concerned about who he's 10 controlling at the prison. And he's not controlling anybody. 11 The prosecutor's summation made no reference to Fell's tattoos or Fell's purported 12 satanic interest and made no attempt to explain the relevance of this evidence to the murders. 13 The prosecutor did, however, argue that Fell had not made positive contributions while 14 incarcerated because he generated numerous grievances and filed a lawsuit which was predicated 15 on a feigned interest in multiple religions.21 16 The First Amendment forbids the uncabined reliance on a defendant's "abstract beliefs" 17 at sentencing. Dawson, 503 U.S. at 166-67; see also Wisconsin v. Mitchell, 508 U.S. 476, 485- [End Page 21]
Specifically, the government argued that:
They want to claim that he is [sic] a positive contribution in resolving grievances?
You heard from Jason Rushlow. The man generated grievances. Are you kidding
me? You saw the lawsuit. You can read it for yourself when you go back there.
This man signs up for bible study, and then files a lawsuit claiming to be
American . . . a Native American. He files a lawsuit so that he can practice his
Native American religion on the yard. It's bogus, ladies and gentlemen. You
know it's even more bogus, because, believe it or not, he observes Ramadan as a
[End Page 45] 1 86 (1993) ("[A] defendant's abstract beliefs, however obnoxious to most people, may not be 2 taken into consideration by a sentencing judge"). However, the government may introduce 3 evidence of beliefs or associational activities, so long as they are relevant to prove, for example, 4 motive or aggravating circumstances, to illustrate future dangerousness, or to rebut mitigating 5 evidence. See United States v. Kane, 452 F.3d 140, 143 (2d Cir. 2006) (per curiam); see also 6 Dawson, 503 U.S. at 167; Barclay v. Florida, 463 U.S. 939, 948-49 (1983) (plurality opinion) 7 (upholding the consideration of defendant's racial intolerance in evaluating motive and as an 8 aggravating factor). 9 Because Fell did not raise a contemporaneous objection to the government's inquiry into 10 his beliefs, his claim is subject to plain error review.22 The crucial question is whether the 11 evidence at issue was used for permissible purposes or merely to show that Fell was "morally

[End Page 22]
Fell did not object during trial but asserts that the argument in his trial

memorandum preserved the constitutional claim. The memorandum refers only to the possibility

of the government arguing that the murders of Debra Fell and Charles Conway were the result of

"a long established plan with possible satanic origins." As no mention is made of the

government introducing Fell's interest in Native American and Muslim religions into evidence,

there can be no colorable claim that any objection as to this issue was raised below. The

objection in the trial memorandum as to the satanic evidence was specifically that the

introduction of such evidence "would create a new aggravating circumstances [sic] which the

government ha[d] not previously alleged," and would therefore violate the FDPA's requirement

of formal notice. See 18 U.S.C. § 3593(a). This is not sufficient to preserve a First Amendment

or due process challenge to the testimony at issue. See United States v. Indiviglio, 352 F.2d 276,

279-80 (2d Cir. 1965) (en banc) (requiring that "an objection state accurately the ground on

which inadmissibility is claimed and state this with a reasonably degree of certainty. . . . to give

the judge an opportunity to correct the error"); accord United States v. Brown, 352 F.3d 654, 662

(2d Cir. 2003) (ruling that a religion-based Batson claim was forfeited, where defendant only

raised a race-based Batson challenge in trial court). [End Page 46] 1 reprehensible" due to his "abstract beliefs." Kane, 452 F.3d at 143; see Dawson, 503 U.S. at 2 166-67.23 3 1. Native American and Muslim Religious Interests 4 We conclude that the testimony regarding Fell's interest in Native American and Muslim 5 religions was relevant in the context in which the testimony was elicited. Fell undertook to prove 6 the following mitigating factor: "Donald Fell has made positive contributions to the Northwest 7 Correctional Facility by working, gaining an education, and helping to resolve inmate 8 grievances." In support of this factor, Rushlow testified that Fell was picked by management to 9 act as a unit representative for other inmates, took part in Bible study and other educational 10 opportunities, and had a disciplinary record reasonably free of infractions. However, on cross- 11 examination, Rushlow retreated from several of his prior assertions. He conceded that Fell did 12 not "resolve inmate grievances" but instead "manufactured" grievances based on his purported 13 religious beliefs. The government also showed that while Fell participated in Bible studies, he [End Page 23]
See also Miller-El v. Johnson, 261 F.3d 445, 455 (5th Cir. 2001) (upholding

introduction of evidence at sentencing of defendant's religious association because references to

his membership "related to his involvement with other group members who were heavily armed"

and was probative of future dangerousness) rev'd on other grounds, Miller-El v. Cockrell, 537 U.S. 322 (2003), Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir. 1997) (distinguishing Dawson

based on the fact that the government presented evidence that defendant was a member of a gang

that had committed violent and unlawful acts); Wainwright v. Lockhart, 80 F.3d 1226, 1234 (8th

Cir. 1996) (ruling that questioning of defendant on involvement in street gang "did not serve any

proper rebuttal purpose" where "[t]here was no credible, admissible evidence that [the

defendant's] crime was gang-related, that [the defendant] belonged to a gang or that gang

membership would impeach [the defendant's testimony] about his religious beliefs"); United

States v. Robinson, 978 F.2d 1554, 1565 (10th Cir. 1992) (rejecting a First Amendment challenge

because "the government presented adequate expert testimony as to the meaning of the gang

affiliation evidence"). [End Page 47] 1 simultaneously filed grievances and a lawsuit demanding that "sweat lodges" and "talking 2 circles" be made available in the prison so that he could engage in Native American religious 3 practices. During that same period, Fell also participated in Ramadan. The government elicited 4 testimony that Fell was appointed unit manager in part because his familiarity with the 5 administrative procedures, due to his constant filing of complaints, made it easier to have the 6 other inmates funnel their grievances through him. 7 The jury was free to find that Fell had successfully adjusted to prison, was genuinely 8 interested in several religions, and filed grievances for entirely legitimate purposes. By the same 9 token, the jury was also free to find that Fell's interest in multiple religions was cynical or 10 feigned and that his multiple grievances reflected a failure to adjust to incarceration. Contrary to 11 Fell's contention that the evidence was intended to incite religious prejudice, the testimony was 12 reasonably elicited to present a more complete picture of Fell that belied the one of a well- 13 adjusted inmate offered by the defense. In any event, the evidence played a very minor role in 14 the trial and added little to the quantum of evidence before the jury. We see no error and 15 certainly no plain error in its admission. 16 2. Satanic Beliefs and "666" Tattoo 17 We are more troubled by the testimony that the government elicited regarding Fell's 18 satanic beliefs and tattoos "" "" evidence that Fell argues was irrelevant to sentencing and intended 19 to demonize him and frighten the jury. The government justified the cross-examination 20 questioning as relevant to establishing motive, to explain the multiple killings, and to prove the 21 "heinous, cruel and depraved manner" statutory aggravating factors. According to the [End Page 48] 1 government, a satanist believes he "can murder rape and rob at will without regard for the moral 2 or legal consequences", an inference buttressed by the fact that Fell committed the murders while 3 wearing a "Slayer" t-shirt.24 4 Fell did not object to this evidence and therefore we review its admission for plain error. 5 See Jones, 527 U.S. at 389-90. While evidence of the defendant's abstract moral beliefs may in 6 some cases be constitutionally admissible to show motive, see Kane, 452 F.2d at 143, there must 7 be stronger evidence of the connection than occurred here and it was a mistake for the prosecutor 8 to offer the evidence. Although the government posits on appeal a relationship between the t- 9 shirt Fell wore during the murders and Fell's satanic interests and his motive for killing Teresca 10 King, we are not persuaded by the relevance of this evidence, which in any event was not argued 11 to the jury. Nevertheless, to the extent that any unjustified reference to Fell's satanic beliefs 12 occurring in the testimony constituted constitutional error, it was not challenged at trial and did 13 not constitute plain error. It neither prejudiced Fell nor did it "seriously affect the fairness, 14 integrity, or public reputation of judicial proceedings." See Gonzalez, 110 F.3d at 945-46. 15 The strength of the government's case convinces us that Fell cannot show that any error 16 prejudicially affected substantial rights. See Jones, 527 U.S. at 389. At trial, the government 17 presented essentially uncontested evidence that there were multiple murders and that Fell killed 18 King in "an especially heinous, cruel or depraved manner." The evidence of Fell's interest in 19 satanism, an issue that occupied a very small amount of trial time, added little to this showing [End Page 24]
Slayer is a "heavy metal" band whose albums and lyrics cover topics such as

serial killers, satanism, religion and warfare. [End Page 49] 1 and subtracted even less from the extensive mitigation evidence presented by Fell. As the verdict 2 suggests, the jury was highly attentive to the aggravating and mitigating evidence that mattered. 3 Moreover, the district court controlled any risk of prejudice through its instruction to the jury that 4 it could not consider Fell's religious beliefs in rendering its decision because those 5 considerations are "completely irrelevant." In the special verdict form, each juror certified that 6 he or she followed that instruction. For these reasons, we conclude that there was no plain error. 7 VI. ADMISSION OF CONTESTED TESTIMONY 8 Fell next renews his challenge to the district court's admission, through the testimony of 9 Marsha Thompson, of Debra Fell's non-testimonial hearsay statement that she was afraid of her 10 son. He argues that this statement was repetitive of other similar statements that the district court 11 struck as hearsay. In support of the mitigating factor that he had truthfully admitted his 12 responsibility for King's murder, Fell contends that he previously gave several truthful 13 confessions to law enforcement officers "" "" one of which included an accurate account of his 14 relationship with his mother. In this confession, he recalled an incident at a local bar involving a 15 physical altercation in which his mother was the aggressor. 16 The government called Thompson, the bartender at the local bar, to show that Fell had 17 not given a truthful account of the altercation to the authorities investigating King's murder. 18 Thompson testified that Fell aggressively struck his mother inside the bar and then assaulted her 19 once they were outside of the bar. Thompson stated that she then called 911. After the police 20 arrived and arrested Fell, his mother, highly distraught, returned to the bar and told Thompson 21 that: [End Page 50] 1 She couldn't take it. She didn't want to go back home. She was afraid to go 2 home. And I said to her, why don't you have him leave your home if you are 3 afraid of him. She said I can't he's my son and I love him. 4 Prior to Thompson's testimony, the district court ruled that Fell's mother's statement that 5 "she was afraid of [Fell]" qualified as an excited utterance under Federal Rule of Evidence 6 803(2), a "firmly rooted" hearsay exception under Ohio v. Roberts, 448 U.S. 56, 63-66 (1980) 7 (holding that the Confrontation Clause requires that a hearsay exception be firmly rooted and 8 reliable). The court concluded that Thompson's testimony was relevant to impeach aspects of 9 Fell's confession "" "" particularly "to rebut the defense's claim that Donald Fell gave a truthful 10 confession" "" "" was reliable for Confrontation Clause purposes and was not unduly prejudicial 11 under 18 U.S.C. § 3593(c). Because Fell preserved his objection to this testimony at trial, we 12 review this evidentiary ruling for abuse of discretion. Yousef, 327 F.3d at 156. 13 No abuse of discretion occurred here. First, although Fell claims that his mother's 14 statement was too attenuated to qualify as an excited utterance, "an excited utterance need not be 15 contemporaneous with the startling event to be admissible." United States v. Jones, 299 F.3d 16 103, 112 (2d Cir. 2002). Rather, the key question governing admission is "whether the declarant 17 was, within the meaning of Rule 803(2), "˜under the stress of excitement caused by the event or 18 condition.'" Id. (quoting United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990)). We find 19 that the stressful events surrounding the statement support applying the excited utterance rule. 20 See id. at 113. In any event, the FDPA permits the admission of evidence at the penalty phase 21 regardless of its admissibility under the Federal Rules of Evidence. See Fell I, 360 F.3d at 144. 22 The district court correctly admitted this statement because it was relevant to rebut the mitigating [End Page 51] 1 factor that Fell had truthfully admitted responsibility for Teresca King's murder. The statement 2 was not unduly prejudicial and would not have misled the jury. See 18 U.S.C. § 3593(c). It was 3 clear from a plethora of evidence that Fell and his mother had an estranged and pathological 4 relationship and Thompson's testimony did little other than confirm what the jury already knew. 5 Fell also challenges the admission, through the testimony of Matt Cunningham "" "" a 6 teenage friend of Fell's "" "" of prior statements conveying Fell's willingness to commit multiple 7 murders and his desire to kill his mother. The evidence was offered in response to Fell's 8 showing concerning the abuse and neglect he suffered at the hands of his parents. Fell argued 9 that because the prejudicial value of the evidence exceeded its probative value, its admission 10 violated the FDPA as well as the Fifth and Eighth Amendments. The government averred that 11 the testimony was relevant to accurately complete the picture of Fell's formative years because, 12 as we stated in an earlier opinion, "it is appropriate for the sentencing authority . . . to consider a 13 defendant's whole life and personal make-up." Fell, 360 F.3d at 143. The district court 14 permitted Cunningham to testify on the contested topics for the purpose of "describ[ing] the 15 general background and character of Fell during his late teenage years." 16 Cunningham testified that during Fell's late adolescent years, he and Fell associated with 17 a group of friends who drank, smoked marijuana, carried knives, and committed petty crimes. 18 He further stated that although Fell rarely talked about his mother, when he did, he indicated that 19 "he hated her," and would "say things like, "˜I could kill her.'" Cunningham also recalled a 20 conversation about murder in which Fell stated "something along the lines of, well, if you killed 21 one person, why stop there? Because you are going to get the same punishment anyway . . . ." [End Page 52] 1 The government commented, without objection by defense counsel, on Cunningham's 2 statements in its closing: 3 You know as a matter of common sense that people have free will, and 4 particularly when they grow up, they have free will to do the right thing and to 5 decide what's right and what's wrong. And you know that for years, Donald Fell 6 thought about killing. He thought about killing John Kozierski, his teacher, back 7 when he was starting out in high school. A couple more years went by, and in 8 conversations with Matthew Cunningham, a guy he hung out with back then, he 9 thought about killing then. Talked about maybe killing his mother. And he 10 thought, if you're going to kill someone, why stop at one. 11 12 And more years went by, and he became an adult, and he came to Vermont, and 13 after years of thinking about killing, he decided to kill, and kill again, and he had 14 four hours to think about what to do with Terry King, and he decided to kill her 15 too. 16 17 People are responsible for what they do, particularly when they do severe, heinous 18 crimes like this. 19 We review admission of this evidence for abuse of discretion. United States v. Pepin, 20 514 F.3d 193, 202 (2d Cir. 2008). At the sentencing phase, the defense adduced extensive 21 mitigating evidence showing that because Fell was the victim of tragic early life experiences, he 22 deserved a fate other than execution. Cunningham's testimony was offered, in the government's 23 words, "to correct the portrayal of Fell as simply a tormented youth consumed with his mother's 24 wrongs. That image is only possible if the critical few years between the ages of 17 and 20 "" "" 25 when Fell matured into an adult "" "" are ignored." The district court appropriately found that this 26 evidence was relevant to Fell's background and general character. 27 In addition to its probative value, this testimony was not unduly prejudicial. Despite 28 Fell's claim that a juror might have inferred that he planned his mother's murder, the government 29 never alleged premeditated murder as an aggravating factor and did not argue in closing that Fell [End Page 53] 1 ever intended to kill his mother. Assuming arguendo, as Fell contends, that the Cunningham 2 testimony presented a risk of unfair prejudice from a "bleed-over" effect potentially allowing the 3 jury to find the unalleged aggravating factor "" "" that the murders were premeditated "" "" we are 4 confident that the court's instruction that the jury only consider the charged aggravating factors 5 adequately dealt with this remark.25 Finally, it is unquestioned that the jury knew from other 6 testimony that Fell was "extraordinarily angry" with his mother and that he watched Lee stab her 7 multiple times without intervention. 8 VII. CUMULATIVE EFFECT 9 Fell contends that even if none of the alleged errors warrants reversal, the cumulative 10 effect of the government's misconduct and the district court's erroneous admission of evidence 11 rendered the proceedings fundamentally unfair. It is well-settled in this circuit that the effect of 12 multiple errors in a single trial may cast such doubt on the fairness of the proceedings that a new 13 trial is warranted, even if no single error requires reversal. United States v. Rahman, 189 F.3d 14 88, 145 (2d Cir. 1999); see also United States v. Salameh, 152 F.3d 88, 157 (2d Cir. 1998). 15 Nonetheless, not every error "" "" whether alone or in combination with others "" "" warrants 16 a new trial. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) ("[T]he Constitution entitles 17 a criminal defendant to a fair trial, not a perfect one."). As we have discussed, the trial conduct 18 challenged by Fell either was not improper, was not prejudicial, or fails plain error review. The [End Page 25]
Although Fell summarily alleges Fifth and Eighth Amendment violations related

to the admission of Cunningham's testimony, he offers no supporting arguments. "Issues not

sufficiently argued in the briefs are considered waived and normally will not be addressed on

appeal." Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998); see United States v. Crispo,

306 F.3d 71, 86 (2d Cir. 2002) (applying this rule to a criminal appeal); Fed. R. App. P. 28(b). [End Page 54] 1 district court's evidentiary rulings were thoughtful and meticulous; none approached an abuse of 2 its broad discretion. Because considered singly, none of the errors claimed by Fell undermine 3 our confidence in the fairness of the proceeding, we similarly conclude that, given the care and 4 soundness with which this trial was conducted, "the cumulative error doctrine finds no foothold 5 in this appeal," Sampson, 486 F.3d at 51. We now turn to Fell's remaining challenges. 6 VIII. OVERLAP OF AGGRAVATING FACTORS 7 During the penalty phase, the district court instructed the jury to consider three statutory 8 aggravating factors and four non-statutory aggravating factors, as well as nineteen mitigating 9 factors. Fell argues that three of the non-statutory aggravating factors substantially overlapped 10 because they rest on the same factual predicate "" "" that Fell intentionally participated in the death 11 of King. He maintains that by finding this fact, the jury could more easily find aggravating 12 factors and then more easily find that those factors outweighed the mitigating factors presented 13 by Fell. Accordingly, Fell contends, the overlap of aggravating factors necessarily skewed the 14 jury's decision-making in favor of the death penalty. We disagree. 15 The factors in question are: 16 (1) Donald Fell participated in the abduction of Teresca King to facilitate his 17 escape from the area in which he and an accomplice had committed a double 18 murder. 19 20 (2) Donald Fell participated in the murder of King to prevent her from reporting 21 the kidnapping and carjacking. 22 23 (3) Donald Fell participated in the murder of King after substantial premeditation 24 to commit the crime of carjacking. 25

[End Page 55] 1 Fell also contends that during its closing argument, the government compounded this 2 duplication. It emphasized the relationship of Fell's intentional participation in King's murder to 3 the three non-statutory aggravating factors by stating: (1) "there is no doubt that [Fell] 4 participated in the abduction of Terry King in order to get out of Rutland to avoid those double 5 murders"; (2) "[Fell] made the decision she needed to die. This factor clearly proven again"; and 6 (3) "[a]gain, there's no doubt that they chose Terry King. This was no random event." 7 Before deliberation, the district court instructed the jury: 8 The process of weighing aggravating and mitigating factors against each other, or 9 weighing aggravating factors alone if you find no mitigating factors, is by no 10 means a mechanical process. In other words, you should not simply count the 11 total number of aggravating and mitigating factors and reach a decision based on 12 which number is greater; rather you should consider the weight and value of each 13 factor. . . . 14 15 The law contemplates that different factors may be given different weight or 16 values by different jurors. Thus, you may find that one mitigating factor 17 outweighs all aggravating factors combined, or that the aggravating factors 18 proven, do not, standing alone, justify the imposition of death beyond a reasonable 19 doubt. 20 21 After deliberating, the jury found unanimously that all of the aggravating factors, both statutory 22 and non-statutory, existed beyond a reasonable doubt. In addition, seventeen mitigating factors 23 were found by at least one juror, and eleven of those mitigating factors were found by at least ten 24 of the twelve jurors. 25 Because this Circuit has not addressed the constitutionality of allegedly duplicative 26 aggravating factors, Fell relies on the Tenth Circuit's decision in United States v. McCullah, 76 27 F.3d 1087 (10th Cir. 1996). McCullah held that under the Continuing Criminal Enterprise 28 provision of the Anti-Drug Abuse Act, 21 U.S.C. § 848, aggravating sentencing factors that [End Page 56] 1 impermissibly duplicate each other raise constitutional questions. Id. at 1111. The Tenth Circuit 2 found that "[s]uch double counting of aggravating factors, especially under a weighing scheme, 3 has a tendency to skew the weighing process and creates the risk that the death sentence will be 4 imposed arbitrarily and thus, unconstitutionally." Id. Although the statute at issue in McCullah, 5 like the FDPA, allows the jury to accord as much or as little weight to any particular factor as it 6 views appropriate, the Tenth Circuit stated that when a sentencing body is asked, in essence, to 7 weigh a factor twice, "a reviewing court cannot "˜assume it would have made no difference if the 8 thumb had been removed from death's side of the scale.'" Id. at 1112 (citing Stinger v. Black, 9 503 U.S. 222, 232 (1992)). McCullah thus stands for the proposition that when duplicative 10 aggravating factors are used in the penalty phase, a reviewing court must re-weigh the factors and 11 perform a harmless error analysis. Id. Applying this analysis, the McCullah court found that two 12 sets of aggravating factors were duplicative because in each of them, "while the factors are not 13 identical per se, [one] factor necessarily subsumes the [other] factor." Id. at 1111. 14 Three years after the Tenth Circuit's decision in McCullah, the issue of duplicative 15 aggravating factors was considered by the Supreme Court in Jones v. United States, 527 U.S. 373 16 (1999), a case that reviewed a Fifth Circuit decision applying McCullah. The Fifth Circuit had 17 found that two of the aggravating factors charged by the government were unconstitutionally 18 duplicative. The Supreme Court declined to decide whether the Tenth Circuit's double-counting 19 theory was either valid or appropriately applied by the Fifth Circuit. Id. at 398-99. Instead, the 20 Court stated that "[w]e have never before held that aggravating factors could be duplicative so as 21 to render them constitutionally invalid . . . . What we have said is that the weighing process may [End Page 57] 1 be impermissibly skewed if the sentencing jury considers an invalid factor." Id. at 398 (citing 2 Stringer, 503 U.S. at 232). Assuming for the sake of argument that the Tenth Circuit's theory in 3 McCullah applied in Jones, the Court found that the two non-statutory aggravating factors at 4 issue "" "" (I) the victim's "young age, her slight stature, her background, and her unfamiliarity 5 with San Angelo, Texas" and (ii) the victim's "personal characteristics and the effect of the 6 instant offense on [her] family" "" "" were not duplicative. Jones, 527 U.S. at 378 n.3. Instead, 7 "at best, certain evidence was relevant to two different aggravating factors." Id. at 399-400. The 8 Court also noted that "any risk that the weighing process would be skewed was eliminated by the 9 District Court's instruction" to the jury that it should weigh the value of each factor rather than 10 counting the number of factors on each side. Id.26 11 The government urges us to follow the lead of the Eighth Circuit in Purkey, 428 F.3d at 12 762, and the Fifth Circuit in United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir. 2004), 13 and find that a capital jury may permissibly be presented with duplicative aggravating factors. 14 However, we are not required to decide this question because the statutory aggravating factors in [End Page 26]
Currently, the circuit courts are split as to whether duplicative aggravating factors

are unconstitutional and as to the meaning of the Supreme Court's decision in Jones. The Fourth

and Ninth Circuits have aligned with the Tenth Circuit and adopted their own variations of the

rule in McCullah. See Allen v. Woodford, 395 F.3d 979, 1012-13 (9th Cir. 2005) (finding that it

was unconstitutional for the court and the prosecutor to present the defendant's prior crimes as

the heart of three different aggravating factors); United States v. Tipton, 90 F.3d 861, 900 (4th

Cir. 1996) ("We agree with the McCullah court that . . . a submission . . . that permits and results

in cumulative findings of more than one of the [statutory aggravating factors] is constitutional

error."). In contrast, the Eighth Circuit has rejected the duplicative aggravating factor theory

when applied to the FDPA, see Purkey, 428 F.3d at 762, and the Fifth Circuit has withdrawn its

support of the double-counting theory in light of Jones, see United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir. 2004) ("Although our case law once [supported the theory], the Supreme

Court recently admonished that it does not support that theory of review.") [End Page 58] 1 question do not impermissibly duplicate each other. Under McCullah and its Tenth Circuit 2 progeny, aggravating factors are duplicative when one "necessarily subsumes" the other, see 3 Cooks v. Ward,165 F.3d 1283, 1289 (10th Cir. 1998), or, in other words, when a jury would 4 "necessarily have to find one in order to find the other," Johnson v. Gibson, 169 F.3d 1239, 1252 5 (10th Cir. 1999). Two factors are not duplicative merely because they are supported by the same 6 evidence. See Jones, 527 U.S. at 399. 7 While the three non-statutory aggravating factors in the present case arguably overlap to a 8 certain degree, no one factor necessarily subsumes another. Factors one and two both address the 9 motive for Fell's acts of violence against King "" "" that he had committed a double murder and 10 wanted to avoid capture. But these two factors differ because the first refers to the abduction of 11 King, and the second specifically to her murder. These acts were separated by several hours in 12 time. Accordingly, separate consideration of different facts was required for the jury to find each 13 factor. 14 Nor does factor two subsume factor three, which provides that Fell "participated in the 15 murder of King after substantial premeditation to commit the crime of carjacking." While 16 addressing the same carjacking conduct as the other two factors, factor three focuses on 17 premeditation rather than motive. These are similar but nonetheless distinct concepts, justifying 18 separate consideration and separate findings. As in Jones, "at best, certain evidence was relevant 19 to [the] different aggravating factors," 527 U.S. at 399, and the district court did not err in 20 submitting these factors to the jury. Additionally, we conclude that the prosecutor's statements 21 did not encourage the jury to confuse the factors. The government never suggested that the jury [End Page 59] 1 apply the factors as if one incorporated another. It did not imply that factors one and two 2 involved the same conduct, or that a finding of motive in factor two was equivalent to a finding 3 of premeditation in factor three. 4 Moreover, although we find no constitutional error in the submission of the aggravating 5 factors, assuming we were to conclude otherwise, any such error would not have affected the 6 fairness of the proceedings in light of the district court's instructions to the jury. See Jones, 527 7 U.S. at 399-400. The court instructed the jurors not to simply count the number of aggravating 8 factors in reference to the mitigators, but to "consider the weight and value of each." Thus, the 9 jury would have known going into deliberations that, in reaching the verdict, it should make a 10 qualitative assessment of the aggravating and mitigating evidence as a whole, rather than 11 focusing on the number of factors on each side of the scale. Furthermore, the jury could not have 12 possibly reached its verdict by simply comparing the total numbers of aggravating and mitigating 13 factors given that it imposed death despite finding the existence of more mitigating than 14 aggravating factors. Accordingly, we find unpersuasive Fell's challenge to the non-statutory 15 aggravating factors presented by the government. 16 IX. SUFFICIENCY OF THE INDICTMENT 17 Fell next complains that the government was required to charge the non-statutory 18 aggravating factors in the indictment and that its failure to do so violates the Fifth Amendment's 19 Indictment Clause.27 Four courts of appeals have considered the issue of whether non-statutory [End Page 27]
Fell contends that he raised this issue pretrial and it was denied, citing the district

court's September 2002 order, 217 F. Supp. 2d at 483-84. It appears, however, that the precise

issue the district court addressed in that order was whether the FDPA precluded the government

from including aggravating factors in a grand jury indictment and was thus facially [End Page 60] 1 aggravators must be submitted to a grand jury and included in an indictment, and all four have 2 held that the FDPA does not expressly include this requirement. See United States v. LeCroy, 3 441 F.3d 914, 922 (11th Cir. 2006), cert. denied, 127 S. Ct. 2096 (2007); Purkey, 428 F.3d at 4 749-50, cert. denied, 127 S. Ct. 433 (2006); United States v. Bourgeois, 423 F.3d 501, 507-08 5 (5th Cir. 2005), cert. denied, 126 S. Ct. 2020 (2006); United States v. Higgs, 353 F.3d 281, 298 6 (4th Cir. 2003), cert. denied, 543 U.S. 999 (2004). 7 Fell, relying on Cunningham v. California, 127 S. Ct. 856 (2007), Ring v. Arizona, and 8 related Supreme Court precedents, urges us to reach a different conclusion. In Apprendi v. New 9 Jersey, 530 U.S. 466 (2000), the Supreme Court emphasized that "[i]f a State makes an increase 10 in a defendant's authorized punishment contingent on the finding of a fact, that fact "" "" no matter 11 how the State labels it "" "" must be found by a jury beyond a reasonable doubt." Ring, 536 U.S. 12 at 602 (citing Apprendi, 530 U.S. at 482-83). Two years later, in Ring, the Supreme Court held 13 that an aggravating factor rendering a defendant death-eligible "operate[s] as the functional 14 equivalent of an element of a greater offense" and, therefore, must be found by a jury. Id. at 609 15 (internal quotation marks and citation omitted). 16 Although Ring said nothing regarding the Indictment Clause of the Fifth Amendment, 17 some courts of appeals have interpreted the decision as applying with equal force at the 18 indictment stage as at the penalty stage of a trial. Accordingly, several circuits, including our 19 own, require the government to charge statutory aggravating factors under the FDPA in the

unconstitutional. See id. The district court held that the statute suffered from no such

constitutional infirmity. See id; Fell, 360 F.3d at 138. All courts of appeals to have considered

that argument have likewise rejected it. See Sampson, 486 F.3d at 21. [End Page 61] 1 indictment. See, e.g., Quinones, 313 F.3d at 53 n.1 (noting that, pursuant to Ring v. Arizona, 2 "statutory aggravating factors . . . must now be alleged in the indictment and found by a jury in 3 capital cases"); see also Bourgeois, 423 F.3d at 507; Brown, 441 F.3d at 1367 (collecting cases). 4 Here, the district court noted that the government "implicitly conceded" that the Fifth 5 Amendment requires that statutory aggravating factors be charged in the indictment when, 6 following Ring, it obtained a superseding indictment containing those factors. Fell, 217 F. Supp. 7 2d at 483-84. Although the court did not directly address whether the Fifth Amendment also 8 requires that non-statutory aggravating factors be included in the indictment, it determined that 9 the superceding indictment met the requirements of the Indictment Clause. Id. at 484. We agree. 10 Under FDPA § 3591(a)(2), "a defendant is not death eligible unless the sentencing jury 11 . . . finds that the Government has proved beyond a reasonable doubt at least one of the statutory 12 aggravating factors set forth at § 3592." Jones, 527 U.S. at 376-77. Once a defendant becomes 13 "death eligible," the jury proceeds to make a "selection decision," in which it weighs all 14 aggravating and mitigating factors to determine whether the defendant should be sentenced to 15 death or life imprisonment. Id. at 377. The Supreme Court's distinction between eligibility and 16 selection has led lower courts to conclude that only those factors which comprise death eligibility 17 "" "" intent and statutory aggravation "" "" must be included in the indictment because those factors 18 must be found before imposition of the maximum authorized penalty. See, e.g., Bourgeois, 423 19 F.3d at 507; cf. Ring, 536 U.S. at 602. While we have never explicitly addressed the issue, we 20 will adopt this conclusion for the purpose of our analysis here.

[End Page 62] 1 Fell avers, relying on Cunningham, that "a defendant is not exposed to the maximum 2 penalty of death under the statute unless and until the jury has made findings for all non-statutory 3 aggravators alleged." Specifically, he contends that findings of a culpable mental state and at 4 least one statutory aggravating factor do not automatically expose the defendant to the death 5 penalty because the jury still must consider whether the aggravating factor or factors "alone are 6 sufficient to justify a sentence of death." 18 U.S.C. § 3593(e) (emphasis added). The 7 Cunningham Court reiterated the bright-line rule stated in Apprendi that "[e]xcept for a prior 8 conviction, any fact that increases the penalty for a crime beyond the prescribed statutory 9 maximum must be submitted to a jury, and proved beyond a reasonable doubt." 127 S. Ct. at 868 10 (internal quotation marks omitted). Applying that rule, the Court concluded that California's 11 Determinate Sentencing Law ("DSL") violated the Sixth Amendment insofar as it made a 12 defendant's exposure to a sentence beyond the maximum contingent on the judge's finding, by a 13 preponderance of the evidence, that an aggravating factor existed. Id. In Cunningham's case, the 14 judge was required under the DSL to select a sentence of 12 years, "nothing less and nothing 15 more, unless he found facts allowing the imposition of a sentence of 6 to 16 years." Id. 16 (emphasis added). Accordingly, the relevant statutory maximum for Cunningham's offense was 17 12 years. The Court concluded that because the DSL authorized the judge to find facts that 18 would expose the defendant to a sentence beyond that maximum, it violated the Sixth 19 Amendment. See id. at 871. Notably, the Cunningham Court distinguished the DSL from the 20 post-Booker advisory federal Sentencing Guidelines, under which judges remain free to "exercise

[End Page 63] 1 their discretion to select a specific sentence within a defined range." Id. at 870 (internal 2 quotation marks omitted). 3 Cunningham does not compel the conclusion that Fell urges. Here, unlike in 4 Cunningham, the jury, not a judge, found both the statutory and the non-statutory aggravating 5 factors beyond a reasonable doubt. Regardless, the FDPA requires only that the jury sentencing 6 Fell find mental culpability and at least one statutory aggravator, both charged in the superseding 7 indictment, before finding him "eligible" for the death penalty. See 18 U.S.C. § 3593(e). 8 Whether or not Fell should be sentenced to death was a calculation made by the jury based on a 9 variety of statutory and non-statutory considerations. Accordingly, the factors that Fell's jury 10 assessed when determining the permissibility of the death penalty in his case did not change the 11 maximum sentence authorized under the statute. We find that the government's failure to 12 include the non-statutory aggravating factors in the indictment did not violate the Fifth 13 Amendment. 14 X. CONSTITUTIONALITY OF THE FDPA 15 On appeal, Fell renews his claim that the FDPA violates the Fifth and Sixth Amendments 16 by requiring in a single penalty phase, not governed by the Federal Rules of Evidence, the 17 presentation of prejudicial evidence relevant to determining whether a defendant should be 18 sentenced to death at the same time that the jury makes findings regarding the "gateway" factors 19 allowing his statutory eligibility for the death penalty. This argument is necessarily predicated on 20 the facial unconstitutionality of the FDPA, a premise that we rejected in an earlier opinion. Fell,

[End Page 64] 1 360 F.3d at 144. In any event, the presentation of victim impact and character evidence to the 2 jury during Fell's sentencing hearing caused no prejudice. 3 After Fell I, the district court rejected numerous other constitutional challenges to the 4 FDPA. See Fell, 372 F. Supp. 2d at 753. Fell now renews his contention that the FDPA's 5 bifurcated trial procedure violates the Fifth and Sixth Amendments. He claims that the 6 procedure allows for the introduction of potentially prejudicial sentencing evidence relating to 7 character, prior uncharged conduct, and victim impact at the same time that the government is 8 attempting to prove death-eligibility factors "" "" the elements of capital murder "" "" beyond a 9 reasonable doubt. 10 When a jury reaches the penalty phase, it often decides death eligibility after it hears 11 "selection" evidence relating to whether the death penalty is appropriate. This approach may 12 prejudice juror deliberations. Ring and its progeny suggest that the FDPA's aggravating factors 13 should be proven to a jury in the same manner as the other elements of the crime. Writing for the 14 majority in Sattazahn v. Pennsylvania, Justice Scalia explained that before Ring, "capital- 15 sentencing proceedings were understood to be just that: sentencing proceedings." 537 U.S. 101, 16 110 (2003) (internal citation omitted). In contrast, after Ring, factors that make a defendant 17 eligible for a death sentence are treated as "elements" of a crime. Id. at 111. 18 Fell contends that because these eligibility factors are considered elements of the crime, 19 they should be subject to the same constitutional protections at trial, including the Sixth 20 Amendment guarantee that the evidence against a defendant be proven beyond a reasonable 21 doubt and be probative of an element of the crime. See Ring, 536 U.S. at 609. In contrast, the [End Page 65] 1 victim impact evidence and character evidence constitutionally required for sentencing purposes 2 can sometimes be unduly prejudicial, inflammatory, or irrelevant to guilt. Accordingly, "[m]uch 3 of the information that is relevant to the [capital] sentencing decision may have no relevance to 4 the question of guilt, or may even be extremely prejudicial to a fair determination of that 5 question." Gregg v. Georgia, 428 U.S. 153, 195 (1976). 6 District courts have dealt with the potential problems presented by the FDPA in a variety 7 of ways. For instance, a number of district courts have "trifurcated" capital proceedings by 8 splitting the sentencing phase into two separate hearings: one for the eligibility phase and one for 9 the selection phase. See, e.g., United States v. Natson, 444 F. Supp. 2d 1296, 1309 (M.D. Ga. 10 2006); United States v. Johnson, 362 F. Supp. 2d 1043, 1110-11 (N.D. Iowa 2005); United States 11 v. Mayhew, 380 F. Supp. 2d 936, 955-57 (S.D. Ohio 2005); cf. United States v. Jordan, 357 F. 12 Supp. 2d 889, 903-04 (E.D. Va. 2005). A trifurcated proceeding allows a district court not only 13 to avoid the admission of prejudicial evidence before the eligibility decision, see Johnson, 362 F. 14 Supp. 2d at 1110 (describing trifurcation as a "cure" for the "potential unfair prejudice, 15 confusion, and misdirection"), but also to delineate clearly between the applications of the 16 Confrontation Clause in the eligibility and selection phases. Another response has been to 17 preclude proof of non-statutory aggravating factors (i.e. evidence relevant only to "death 18 selection") during the eligibility phase when that evidence threatened to undermine the 19 presumption of innocence. See, e.g., United States v. Gonzalez, 2004 U.S. Dist. LEXIS 16907, at 20 *5-9 (D. Conn. Aug. 17, 2004). The availability of such solutions under the FDPA allows

[End Page 66] 1 district courts to avoid unfair prejudice potentially resulting from the consideration of "death- 2 selection" evidence before "death eligibility" has been determined.28 3 However, in the proceedings below, Fell did not request trifurcation or any other 4 modification of the penalty procedure. Instead, he now claims that the FDPA is unconstitutional 5 because it does not allow for trifurcation. We find no support for his novel theory. While the 6 FDPA speaks of "a separate sentencing hearing" after which the jury makes both the eligibility 7 decision and the selection decision, see 18 U.S.C. § 3593(b)-(e), the central point of that phrase 8 is that the sentencing decision should be separated from the guilt phase "" "" not that the 9 sentencing phase must necessarily take place during one uninterrupted hearing. See generally 10 Blake v. Carbone, 489 F.3d 88, 100 (2d Cir. 2007). We find no error in the district court's 11 implementation of the FDPA's sentencing procedures. 12 Regardless, Fell suffered no prejudice as a consequence of the manner in which the 13 sentencing hearing was conducted. At sentencing, the government submitted three statutory 14 aggravating factors, only one of which had to be found beyond a reasonable doubt to render Fell 15 eligible for the death penalty: (1) "The death of Teresca King occurred during the commission of 16 a kidnapping;" (2) "Donald Fell committed the offense in an especially heinous, cruel, or [End Page 28]
While the FDPA speaks of "a separate sentencing hearing" after which the jury

makes both the eligibility decision and the selection decision, see 18 U.S.C. § 3593(b)-(e), the

central point of that phrase is that the sentencing decision should be separated from the guilt

phase "" "" not that the sentencing phase must necessarily take place during one uninterrupted

hearing. See generally Blake v. Carbone, 489 F.3d 88, 100 (2d Cir. 2007) (noting our duty to

"interpret statutes to avoid constitutional infirmities"). Although we would not go so far as to

require trifurcation, we encourage district courts ruling on motions to trifurcate to consider

carefully the ramifications of presenting victim impact evidence, or any evidence that would

otherwise be inadmissible in the guilt phase of a criminal trial, to a jury that has not yet made

findings concerning death eligibility. [End Page 67] 1 depraved manner in that it involved serious physical abuse to Teresca King;" and (3) "Donald 2 Fell intentionally killed or attempted to kill more than one person in a single criminal episode." 3 Fell did not contest factors one or three during the sentencing phase; given his confessed 4 participation in the kidnapping and murder of Ms. King, it would have been hard to do so. 5 Presented with two uncontested factors, and needing to find only one to deem Fell "death 6 eligible," the jury, in our view, was unlikely to have been swayed by the additional "death- 7 selection" evidence "" "" mainly victim impact and character evidence "" "" when deliberating on 8 whether Fell was "death eligible." Accordingly, we conclude that Fell suffered no unfair 9 prejudice resulting from the district court's implementation of the FDPA's sentencing 10 procedures. 11 CONCLUSION 12 Chief Judge Sessions presided over this complicated and difficult trial with care, fairness, 13 and an exemplary concern for the protection of Fell's rights. The judgment of the District Court 14 is affirmed.

[End Page 68] [End Page 18 U.S.C. § 3595(c)(1) also requires that a reviewing court consider whether a]

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