United States Court of Appeals Fifth Circuit F I L E D REVISED OCTOBER 13, 2005 August 25, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 04-40410
UNITED STATES OF AMERICA,
Plaintiff - Appellee versus
ALFRED BOURGEOIS,
Defendant - Appellant
Appeal from the United States District Court for the Southern District of Texas
Before JOLLY, WIENER & DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Alfred Bourgeois was convicted of
murdering his two-year-old daughter (“JG”) and sentenced to death
under the Federal Death Penalty Act (“FDPA”). Bourgeois challenges
his conviction and sentence on grounds that (1) the government
failed to charge any aggravating factors in the indictment, (2) the
FDPA statutory-intent factor that renders a defendant with a
reckless state of mind eligible for the death penalty violates the
Eighth Amendment, (3) the district court erred when it delegated to
the Director of the Federal Bureau of Prisons supervision over
Bourgeois’s execution, and (4) the aggravating factors used in his
1 sentencing were vague and ambiguous.
I. FACTS AND PROCEEDINGS
A. JG’s Life Before Bourgeois
JG was born to Katrina Harrison in October, 1999. For the
first two and one-half years of her life, JG lived with her mother
and grandmother in Livingston, Texas. In April of 2002, Harrison
petitioned a local court to have JG’s paternity determined. The
paternity test showed that Bourgeois, of LaPlace, Louisiana, was
JG’s biological father. At the time, he was married to Robin
Bourgeois, with whom he had two children (“AB1994” and “AB2001”).
Bourgeois also had a child from a previous marriage to whose mother
he was paying child support.
In May of 2002, Bourgeois appeared in Texas for a child-
support hearing regarding JG. He brought his niece to Texas with
him with the intention of telling the judge that she was his
daughter and had kidney problems in the event that the court
ordered high child support payments. Bourgeois, however, was not
allowed to take his niece (or any other family member) into the
hearing with him. At the conclusion of the hearing, the court
ordered Bourgeois to pay Katrina Harrison $160 per month in child
support for JG. The court also granted Bourgeois’s request for
visitation rights with JG for the ensuing seven weeks, and he took
custody of JG that afternoon. When JG left her mother and
grandmother, she was in good health and free of injuries.
2 B. The Final Weeks of JG’s Life
Initially, JG lived with the Bourgeois family at their home in
LaPlace, where they remained until May 28, 2002. After that, JG
accompanied the family on Bourgeois’s long-haul trucking route,
residing with the other four in his 18-wheel tractor/trailor until
her death, approximately one month later. From the outset,
Bourgeois systematically abused and tortured his two-year-old
daughter in several ways. For example, Bourgeois became fixated on
JG’s toilet training. Her training potty became JG’s primary seat
during the day, and Bourgeois even forced her to sleep on it when
they were traveling at night. When she had “accidents,” Bourgeois
would strike JG and then tell his older daughter, AB1994, that it
was her fault.
In addition, Bourgeois constantly beat and otherwise assaulted
JG. He punched her in the face with enough force give her black
eyes. He whipped her with an electrical cord, and he beat her with
a belt so hard that it broke. Bourgeois hit JG in the head with a
plastic baseball bat so many times that her head “was swollen like
a football.” Later, when he was in jail, Bourgeois laughed to a
fellow inmate that “[t]hat f---ing baby’s head got as big as a
watermelon.” There was also evidence that, before the Bourgeois
family left LaPlace, Bourgeois had thrown JG against the wall of
the master bedroom. He scratched and pulled her ears, bit her
hands, feet, and forehead, and burned the bottom of her foot with
3 a cigarette lighter. Bourgeois’s wife, Robin, and others noticed
that bruises and other injuries appeared on JG’s body shortly after
she came to stay with the Bourgeois family, and that, between the
middle and end of May, JG’s hands and feet had become extremely
calloused and swollen. When others tried to clean the sores on
JG’s feet, Bourgeois would stop them and jam his dirty thumb into
the wounds, then force JG to walk on her injured feet.
In addition to physically torturing JG, Bourgeois traumatized
her emotionally. For example, on one occasion, Bourgeois decided
that it was time for JG to learn how to swim, despite her tender
years and fear of the water. Bourgeois picked up the two-year-old
and tossed her several feet in the air and into a swimming pool.
He allowed her to sink for several seconds before pulling her out,
then repeated the “lesson” for thirty minutes while JG choked and
gasped for air. Similarly, when the family visited a California
beach on Bourgeois’s long-haul trucking route, he forced JG into
the ocean even though she was terrified of the water, holding her
under the water and letting the waves roll over her. By the time
they left the beach, JG had swallowed so much salt water that she
had difficulty walking and was ill with a swollen stomach.
There was also evidence of sexual abuse. When the family was
staying in LaPlace in May, Bourgeois slept in the master bedroom
with JG and AB1994 behind a locked door, while Robin slept in a
different bedroom. Late that month, a family friend noticed blood
in JG’s diaper and convinced Bourgeois and Robin to take JG to
4 Louisiana Child Protective Services (“CPS”) for an evaluation.
There, the examining physician concluded that the source of the
blood was external irritation to JG’s genitalia. Although the
doctor determined that the cause of the injury was inconclusive, he
noted that it could have been the result of vaginal trauma. The
same doctor examined JG after her death and found a similar but
more severe irritation to JG’s genitalia, this time concluding that
the irritation was likely caused by vaginal trauma. Furthermore,
after JG’s death, rectal swabs revealed the presence of semen.
C. Concealed Abuse; Planning for JG’s Death
Bourgeois actively tried to conceal the evidence of his
continuous abuse. For example, he covered JG’s injured feet with
socks, made her wear sunglasses to hide her battered face, and
told people that she had been in a terrible car accident to explain
her swollen head.
Around the time that the blood appeared in JG’s diaper,
Bourgeois reported to Texas CPS that JG had been abused while
living with Katrina, that Katrina was living with a convicted sex
offender, and that the house was unsuitable for a child. CPS
investigated Bourgeois’s complaint and concluded that it was not
only untrue, but also was made “in bad faith.” Similarly,
Bourgeois told friends along his trucking route that JG’s mother
had neglected and abused JG and that she had been sexually molested
with a finger.
5 Furthermore, Bourgeois fostered the misleading appearance that
everything was fine by sending postcards to Katrina, stating that
JG was well and having fun on the trucking route/family vacation,
and that they had visited, inter alia, Disneyland and the Elvis
Presley Museum. Bourgeois signed the postcards “JG.” None of the
information on the postcards, however, was true.
In stark contrast to these postcards’ Rockwellian portrayals,
Bourgeois told little JG that she made him want to kill her. When
Robin asked him what he would do if he killed JG, Bourgeois replied
unhesitatingly that he would throw her out of the truck, and they
would concoct a story for the police. Specifically, he said that
they would stop at a rest stop, where Robin would take the children
into the bathroom and then come out and claim that someone had
kidnapped JG. Bourgeois added that Robin would then call 911 to
report the “kidnapping,” and the police would blame the phantom
kidnapper for JG’s death. Similarly, AB1994 recalled that her
father had said that if JG died, he would take her into the swamp
and leave her there. On June 23, 2002 —— four days before JG’s
death —— Bourgeois called his sister and said, “You get your black
dress out. I’m going through a lot. I don’t know what I’m going
to do.”
D. The Murder
On July 26, 2002, the Bourgeois family stopped by their home
in LaPlace get their mail and check on their house. Bourgeois
6 found a court order directing him to remit $519.99 in child support
to his ex-wife. During the brief visit, Bourgeois made JG wait for
them in the hot cab of the truck.
Later that afternoon, the family continued on Bourgeois’s
trucking route, arriving the next morning at the Corpus Christi
Naval Air Station to deliver a shipment. While Bourgeois was
backing his truck up to the loading dock, JG was sitting on her
training potty. When she wiggled and the potty tipped over,
Bourgeois became angry and started yelling at JG and spanking her
bare bottom. He then grabbed her by her shoulders and slammed the
back of her head into the front and side window area around the
dashboard four times. Meanwhile, warehouse personnel who were
standing in the trailer felt shaking coming from within the cab of
Bourgeois’s truck.
Robin awakened shortly after this beating and immediately
noticed that JG’s body was limp, her eyes were closed, and her
heart was racing. Robin attempted unsuccessfully to revive JG by
administering CPR, then told Bourgeois that the child needed
emergency medical attention. Bourgeois replied that he would take
JG to the emergency room after he finished unloading his truck.
Robin insisted that JG needed help immediately, handing JG to
Bourgeois and telling him to get her help. Bourgeois responded
that they would just say that JG slipped while following AB1994 out
of the truck. Bourgeois then left the cab with JG. After Robin
got dressed, she opened the passenger-side door to exit the cab and
7 there, on the ground, lay JG. Robin again tried CPR while a
passer-by called 911. After that, Bourgeois came running from
behind the truck, asking what happened.
When the ambulance arrived, Bourgeois and Robin told the
driver, then told both CPS workers and the FBI agent, that JG had
fallen out of the truck. At the hospital, Dr. Noorullah Akhtar
examined JG and concluded that her brain had hemorrhaged and was
swollen. The doctor ventured that JG’s injuries were equivalent to
those of a person who had fallen out a car traveling on the
Interstate. All of this occurred on June 27, 2002. The doctors
sustained JG on life support until her mother could get to the
hospital, where the baby died in her mother’s arms the next day.
E. The Post-Mortem Investigation
After JG’s death, Dr. Elizabeth Rouse, the medical examiner,
conducted an autopsy which she described as one of the most
involved of her career. This, she explained, was because of the
sheer number and extent of the injuries to JG’s body. Dr. Rouse
observed, inter alia, that JG had (1) a bruised shoulder, (2) human
bite marks on her back and arm, (3) scratch marks and injuries to
her ears, (4) loop marks on her body consistent with an electrical
cord, and (5) a circular hole a quarter of an inch deep on the
bottom of one foot. When she opened JG’s torso for examination,
Dr. Rouse observed deep tissue bruising in every area of JG’s body.
8 All in all, JG exhibited 25 or 26 whip marks, 78 healed scars, 73
to 105 nonspecific contusions, 8 pattern contusions, 9 or 10
abrasions or excoriations, 7 to 9 healing ulcerations, and 3
lacerations. On the basis of JG’s injuries, Dr. Rouse concluded
that JG was a chronically abused or battered child. She determined
that the ultimate cause of death was an impact to the head
resulting in a devastating brain injury. The location of the fatal
injury was consistent with Bourgeois’s holding JG by the shoulders
and slamming the right side and back of her head against the window
and dashboard of the truck cab.
Just under one year after JG’s death, the government filed a
second, superseding indictment against Bourgeois. It charged him
with unlawfully killing JG with premeditation and malice
aforethought by physically assaulting her on June 27, 2002 and
causing the injuries from which she died on June 28, 2002. The
Grand Jury’s indictment specially charged, inter alia, the
following FDPA statutory intent factors: (1) Bourgeois
intentionally killed JG, (2) Bourgeois intentionally inflicted
serious bodily injury that resulted in JG’s death, and (3)
Bourgeois intentionally engaged in an act of violence, knowing that
the act created a grave risk of death to JG and constituted
reckless disregard for human life, and JG died as a result of the
violent act. The indictment also charged the following FDPA
statutory aggravating factors: (1) Bourgeois committed the offense
in an especially heinous, cruel and depraved manner in that it
9 involved torture or serious physical abuse to JG, (2) Bourgeois
committed the offense after substantial planning and premeditation,
and (3) JG was especially vulnerable because of her youth or
infirmity. In its notice of intent to seek the death penalty, the
government listed all the FDPA intent and aggravating factors from
the second, superseding indictment, plus two non-statutory
aggravating factors: (1) On the basis of his record of violence,
Bourgeois is likely to commit future acts of violence and pose a
threat to the lives and safety of others, and (2) JG’s murder
caused her family severe emotional suffering and irreparable harm.
After a two-week trial, the jury found Bourgeois guilty of
murder. The district court then conducted the sentencing hearing,
at which Bourgeois presented nine mitigating factors for the jury’s
consideration. Six jurors found by a preponderance of the evidence
that Bourgeois was under stress from family and economic factors,
and all 12 jurors found by a preponderance of the evidence that
Bourgeois was driving across the country with three children and
one other adult in the cab of an 18-wheel tractor-trailer. No
juror found that Bourgeois established any of the other mitigating
factors by a preponderance of the evidence. The jury unanimously
found the above-listed FDPA intent factors and aggravating factors
beyond a reasonable doubt. The jury also unanimously found the
non-statutory aggravating factors beyond a reasonable doubt.
Finally, the jury unanimously found that the aggravating factors
outweighed the mitigating factors, and unanimously recommended that
10 the district court sentence Bourgeois to death, which it did.
We have jurisdiction over Bourgeois’s appeal of his judgment
of conviction and sentence under 18 U.S.C. §§ 3595, 3742(a), and 28
U.S.C. § 1291.
II. ANALYSIS
A. Standard of Review
Bourgeois raised none of the constitutional challenges in the
district court that he now raises on appeal. Accordingly, we
review them for plain error.1 Thus, we shall determine (1) whether
there is an error, (2) if so, whether the error is plain, (3) if it
is, whether it affects the defendant’s substantial rights, and (4)
if so, whether it seriously affects the fairness and integrity of
the district court proceedings.2
B. Sufficiency of the Indictment
To render a criminal defendant eligible for the death penalty
under the FDPA, the government must prove, beyond a reasonable
doubt, any one of the statutory intent factors provided in section
3591(a)(2) and any one of the statutory aggravating factors
provided in section 3592(c). Once the defendant is proved to be
1 U.S. v. Miranda, 248 F.3d 434, 443 (2001). Bourgeois argues that he is entitled to a more stringent standard of review of the constitutional sufficiency of the indictment, citing Sitrone v. U.S., 361 U.S. 212 (1960). We expressly rejected the same argument in U.S. v. Robinson, 367 F.3d 278, 286 (5th Cir. 2004).
2 Miranda, 248 F.3d at 443.
11 eligible for the death penalty, the government may present non-
statutory aggravating factors, such as victim impact, to argue for
the death penalty.3 The FDPA requires the government to file a
notice of intent to seek the death penalty, informing the defendant
of the factors on which the government intends to rely in seeking
that penalty.4
The FDPA does not expressly require the government to charge
any of the statutory factors in the indictment. In Ring v.
Arizona,5 however, the Supreme Court held that when the finding of
an aggravating factor renders a defendant eligible for the death
penalty, it is “the functional equivalent of an element of a
greater offense.”6 Consequently, the government is required by the
Sixth Amendment to prove the aggravating factor to the jury beyond
a reasonable doubt.7 Although the Supreme Court has yet to hold
that, under the Indictment Clause of the Fifth Amendment, the
government must charge the aggravating factors in the indictment,
we have interpreted Ring to apply with equal force at the
indictment stage of the proceedings.8 Accordingly, we require the
3 18 U.S.C. § 3593(a). 4 Id. 5 536 U.S. 584 (2002). 6 Ring, 536 U.S. at 609. 7 See id. 8 Robinson, 367 F.3d at 284.
12 government to charge the statutory factors of the FDPA in the
indictment, and we consider the failure to do so to be
constitutional error.9
Bourgeois contends that the government erred in this case
because it failed to charge the statutory and the non-statutory
aggravating factors in the indictment. As for the statutory
aggravators, he is simply wrong: They are expressly charged in the
second, superseding indictment. As for the non-statutory
aggravators, he is correct in stating that they were not contained
in the indictment, but neither we nor any other circuit court of
appeals has ever held that non-statutory aggravating factors must
be set forth in the indictment. As the Supreme Court’s decision in
Ring and our decision in Robinson highlight, the critical issue is
whether a factor will expose a criminal defendant to the death
penalty. Only a factor that renders the defendant eligible for the
death penalty must be charged in the indictment.
Significantly, non-statutory aggravating factors do not render
a criminal defendant eligible for the death penalty. As the
Supreme Court explained in Jones v. U.S., the findings of the
statutory factors of intent and aggravation specified in the FDPA
comprise the eligibility phase of death sentencing.10 As such, only
9 Id. 10 527 U.S. 373, 377 (1999) (explaining that the jury’s finding of the statutory intent and statutory aggravating factors under the FDPA comprises the eligibility phase of sentencing).
13 the FDPA’s statutory factors expose a criminal defendant to the
death penalty. Alone, non-statutory aggravating factors cannot
make a defendant eligible for a death sentence. This is because the
jury proceeds to consider non-statutory aggravating factors only
after the defendant is determined to be death-eligible.11
Accordingly, it was neither constitutional nor statutory error for
the non-statutory aggravating factors to be omitted from the
indictment.12
C. Constitutionality of FDPA Section 3591(a)(2)(D) under the Eighth Amendment
Bourgeois asserts that FDPA section 3591(a)(2)(D) violates the
Eighth Amendment by permitting the imposition of the death penalty
on a murderer who acts with only a reckless state of mind. The
Eighth Amendment prohibits “all punishments which by their
excessive length or severity are greatly disproportioned to the
offenses charged.”13 Therefore, the punishment imposed must be
11 See id. (explaining that once the defendant is death eligible, the jury may consider non-statutory factors in making the “selection decision,” i.e., the decision whether to recommend a punishment of life imprisonment or death). See also U.S. v. Jones, 132 F.3d 232, 240 (5th Cir. 1998) (noting that the jury may consider non-statutory aggravating factors only after finding the existence of statutory aggravating factors). 12 See also U.S. v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003), cert. denied, 125 S.Ct. 627 (2004) (holding that the Fifth Amendment does not require the government to charge non-statutory aggravating factors in the indictment because “[t]he finding of a non-statutory aggravator alone will not support imposition of the death penalty.”). 13 Enmund v. Florida, 458 U.S. 782, 788 (1982) (internal quotations omitted).
14 proportionate to a defendant’s culpability. Significantly, in
Tison v. Arizona, the Supreme Court held that “reckless disregard
for human life implicit in knowingly engaging in criminal
activities known to carry a grave risk of death presents a highly
culpable mental state... that may be taken into account in making
a capital sentencing judgment when that conduct causes its natural,
though also not inevitable, lethal result.”14 In other words, the
Eighth Amendment is not a per se bar to imposition of the death
penalty when the murderer possessed only a reckless state of mind.15
When a criminal defendant’s state of mind was reckless, the
Eighth Amendment inquiry hinges on the degree of his participation
in the acts that ultimately led to the victim’s death. As we
explained in U.S. v. Webster, the sentencer must examine “the
defendant’s ‘own personal involvement in the crimes.’”16 A reckless
defendant who is heavily involved in acts that led to the victim’s
death is sufficiently culpable to be sentenced to death without
violating the Eighth Amendment.17 In contrast, under the Eighth
Amendment, a reckless defendant who is only tangentially involved
14 481 U.S. 137, 157-58 (1986). 15 See U.S. v. Webster, 162 F.3d 308, 322 (5th Cir. 1998) (observing that the FDPA imposes the death penalty only on defendants with sufficient culpability, including those who act in “reckless disregard for human life”). 16 Id. 17 See id. See also Tison, 481 U.S. at 153 (noting that “the greater the defendant’s participation in the felony murder, the more likely he acted with reckless indifference to human life.”).
15 in the acts that led to the victim’s death is not sufficiently
culpable to be sentenced to death.18
In this case, Bourgeois has demonstrated sufficient
culpability to permit the imposition of the death penalty under the
Eighth Amendment, even if his mens rea were only reckless disregard
and not specific intent. Bourgeois was, after all, the sole
participant in the acts that directly caused JG’s death, making
tangential participation a logical and legal impossibility.
Bourgeois’s “reckless” state of mind is thus sufficient to render
him eligible for the death penalty without implicating the
strictures of the Eighth Amendment. As the Supreme Court noted in
Tison, “some nonintentional murderers may be among the most
dangerous and inhumane of all —— the person who tortures another
not caring whether the victim lives or dies” is among them.19
D. The Place, Manner, and Means of Execution
Bourgeois contends that the district court erred when it
delegated to the Director of the Federal Bureau of Prisons the
power to determine the place, manner, and means to be used in
carrying out his execution, because Congress did not delegate any
of its power to the judicial branch to make those determinations.
Bourgeois is correct that no provision of the FDPA delegates any
such power to the Third Branch. This is of no consequence,
18 Tison, 481 U.S. at 148. 19 Id. at 157.
16 however. In §§ 3596(a) and 3597(a) of the FDPA, Congress expressly
delegated such power to the Executive Branch, specifically the
Department of Justice in the person of the Attorney General.
Section 3596(a) provides that when the death sentence is to be
imposed under the FDPA, “the Attorney General shall release the
person sentenced to death to the custody of a United States
marshal, who shall supervise implementation of the sentence in the
manner prescribed by the law of the State in which the sentence is
imposed.” Section 3597(a) authorizes the United States marshal to
employ the use of state and local officials and facilities to carry
out the execution. Accordingly, Bourgeois’s argument that Congress
did not delegate any power to the district court to determine the
mode of carrying out a death sentence misses the mark: All that
the district court did was to acknowledge that Congress had validly
delegated the requisite authority to the Department of Justice, of
which the Federal Bureau of Prisons is an agency.
Furthermore, to the extent that Bourgeois challenges the
district court’s acknowledgment of the authority of the Director of
the Federal Bureau of Prisons to determine the particulars of
Bourgeois’s execution, his argument is without merit. Section
3596(a) specifies that Bourgeois’s execution is to take place “in
the manner prescribed by the law of the State in which the sentence
is imposed.”20 Texas effects the death penalty “by intravenous
20 18 U.S.C. § 3596(a).
17 injection of a substance or substances in a lethal quantity
sufficient to cause death until such convict is dead, such
execution procedure to be determined and supervised by the Director
of the institutional division of the Texas Department of Criminal
Justice.”21 Here, the district court ordered that the execution be
carried out by lethal injection and acknowledged the authority of
the Attorney General, through the auspices of the Director of the
Federal Bureau of Prisons, to designate the place of execution and
the substances to comprise Bourgeois’s lethal injection.
Bourgeois fails to demonstrate that the district court’s order
is inconsistent with Texas law. The only difference between the
Texas law and the district court’s acknowledgment is that the
district court recognized Congress’s delegation to the Department
of Justice when the court turned over Bourgeois to the Director of
the Federal Bureau of Prisons and not to the Director of the
Institutional Division of the Texas Department of Criminal Justice.
There is nothing before us, however, to suggest that the Director
of the Federal Bureau of Prisons is not the equivalent of (1) the
Attorney General, (2) the Department of Justice, or (3) the
Director of the Institutional Division of the Texas Department of
Criminal Justice. Therefore, even if the district court’s
purported “delegation” of power to the Director of the Federal
Bureau of Prisons were error (which it was not), such error would
21 TEX. CRIM. PROC. CODE § 43.14 (Vernon 2005).
18 not have been plain. Furthermore, there is nothing before us to
indicate that the difference affects Bourgeois’s substantial
rights.
E. The Statutory and Non-Statutory Aggravating Factors
Bourgeois asserts that all five of the aggravating factors
used in his sentencing are vague and overbroad. As the Eighth
Amendment prohibits the arbitrary imposition of the death penalty,22
an aggravating factor must meet two distinct thresholds to pass
constitutional muster.23 First, the factor must not be so broad
that it could apply to every murderer potentially eligible for the
death penalty.24 This is because an overbroad aggravator could
invite arbitrariness into the capital sentencing decision, in
violation of the Eighth Amendment.25 Consequently, the factor “must
perform a narrowing function with respect to the class of persons
eligible for the death penalty and must also ensure that capital
sentencing decisions rest upon an individualized inquiry.”26
22 Jones, 527 U.S. at 381. 23 Tuilaepa v. California, 512 U.S. 967, 972 (1994). 24 Id. See also Jones, 527 U.S. at 402 (noting that an aggravating factor is unconstitutionally overbroad if a jury could consider it to apply to every defendant who is eligible for the death penalty). 25 See Tuilaepa, 512 U.S. at 973 (noting that the underlying principle in making the capital sentencing decision is that “[t]he State must ensure that the process is neutral and principled so as to guard against bias or caprice in the sentencing decision.”). 26 Jones, 527 U.S. at 381.
19 Second, an aggravating factor must have “some ‘common-sense
core of meaning...that criminal juries should be capable of
understanding.’”27 Simply put, an aggravating factor cannot be
unconstitutionally vague. “[V]agueness review is quite deferential
...and [the Supreme Court has] found only a few factors vague.”28
As we explain below, none of the aggravators targeted by Bourgeois
in this appeal is either vague or overbroad. Thus, the aggravators
are valid under the Eighth Amendment.
i. Victim Impact and Victim Vulnerability
Bourgeois insists that the victim impact and victim
vulnerability aggravators are unconstitutionally overbroad because
they could apply to any murderer.29 The Supreme Court has, however,
held otherwise. Specifically, the Court has explained that “though
the concepts of victim impact and victim vulnerability may well be
relevant in every case, evidence of victim vulnerability and victim
impact in a particular case is inherently individualized.”30
Accordingly, these aggravating factors are not overbroad.
27 Tuilaepa, 512 U.S. at 973 (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976)). 28 Id. at 973-74. 29 The victim impact aggravator states that JG’s murder caused her family “extreme emotional suffering, and [her] family has suffered severe and irreparable harm.” The victim vulnerability aggravator states that JG “was particularly vulnerable due to her youth.” The vulnerability aggravator is based on the FDPA section 3592(c)(11). 30 Jones, 527 U.S. at 401 (emphasis in original).
20 Bourgeois also asserts that the victim impact and victim
vulnerability aggravators are unconstitutionally vague. Again,
Bourgeois’s argument fails. The jury could have had no difficulty
understanding that it was directed by the victim impact aggravator
to consider the particular effect of JG’s murder on her family.31
Neither could the jury have had difficulty understanding that the
victim vulnerability aggravator directed it to consider whether JG
was especially vulnerable to Bourgeois’s attack because she was
only two years old and under his care, custody, and control by
virtue of a court order.32 The victim impact and victim
vulnerability aggravators are not unconstitutionally overbroad or
vague.
ii. Heinous, Cruel, or Depraved Manner of Committing Offense
Bourgeois likewise contends that the aggravating factor that
he “committed the offense in an especially heinous, cruel, or
depraved manner in that it involved torture and serious physical
abuse to JG” is overbroad and vague. This factor is based on the
language of § 3592(c)(6) of the FDPA, which we have consistently
31 See id. (holding that a victim impact aggravator was not unconstitutionally vague because it directed the jury to consider, inter alia, “the effect of the crime on [the victim’s] family”). 32 See id. at 400 (holding that a victim vulnerability aggravator that provided that the adult victim was especially vulnerable to attack because of, inter alia, her slight stature and her youth was not unconstitutionally vague because “the jury should have had no difficulty understanding that [the factor] was designed to ask it to consider whether the victim was especially vulnerable to petitioner’s attack”).
21 upheld against such attacks.33 We have so held because the factor
indisputably narrows the class of murderers who are eligible for
the death penalty and is sufficiently specific to pass
constitutional muster.
iii. Substantial Planning and Premeditation
Bourgeois also asserts that the substantial planning and
premeditation aggravators are unconstitutionally overbroad and
vague. These factors are based on FDPA section 3592(c)(9), and
they obviously narrow the class of murderers who could be eligible
for the death penalty because not every murder involves substantial
planning or premeditation. Furthermore, we have explicitly held
that these aggravators are not unconstitutionally vague.34
iv. Future Threat
Finally, Bourgeois urges that the future-threat aggravator ——
that, based on his personal history of violence, he “is likely to
commit criminal acts of violence in the future which would be a
continuing and serious threat to the lives and safety of others” ——
is unconstitutionally overbroad and vague. It is neither. It is
axiomatic that not every murderer will pose a serious continuing
threat to society. Furthermore, like the victim-vulnerability and
33 U.S. v. Hall, 152 F.3d 381, 414 (5th Cir. 1998) (upholding the factor against a challenge that it was both unconstitutionally overbroad and vague), abrogated on other grounds by U.S. v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (peremptory challenges); Jones, 132 F.3d 232 (upholding the factor against a challenge that it was unconstitutionally vague). 34 Webster, 162 F.3d at 354 n.70.
22 victim-impact aggravators, the future-threat aggravator used here
channeled the jury’s attention to the specific facts of the case,
i.e., Bourgeois’s individual history of systematic violence.35 This
factor is inherently individualized and thus is not
unconstitutionally overbroad.36
Neither is the future-threat aggravator unconstitutionally
vague. A jury would easily understand that it is directed by this
aggravator to consider whether Bourgeois will pose a danger to
society in the future. In Jurek v. Texas, the Supreme Court
reviewed, inter alia, “whether there is a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society.”37 In his concurring
opinion, Justice White concluded that the factor has “a common-
sense core of meaning and that criminal juries should be capable of
understanding [it].”38 The future-threat aggravator here is
substantially similar to the one construed in Jurek, and our
35 Cf. Jones, 527 U.S.at 401 (holding that the victim impact and victim vulnerability aggravators were not overbroad and explaining that “though the concepts of victim impact and victim vulnerability may well be relevant in every case, evidence of victim vulnerability and victim impact in a particular case is inherently individualized.”). 36 See Nguyen v. Reynolds, 131 F.3d 1340, 1354 (10th Cir. 1998) (holding with little discussion that the Oklahoma future dangerousness aggravator was not applicable to every murderer and therefore was not unconstitutionally overbroad). 37 428 U.S. 262, 277 (1976) (White, J., concurring). 38 Id. at 279.
23 conclusion is no different than Justice White’s: The factor is
constitutionally sound.
III. CONCLUSION
This is not a close case. Bourgeois fails to prove that there
was any error, much less plain error, in any aspect of his trial.
Bourgeois’s conviction and sentence are, in all respects,
AFFIRMED.