United States v. Robinson

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED MAY, 17, 2004 April 14, 2004

In the Charles R. Fulbruge III Clerk United States Court of Appeals for the Fifth Circuit _______________

m 02-10717 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JULIUS OMAR ROBINSON, ALSO KNOWN AS FACE, ALSO KNOWN AS SCAR, ALSO KNOWN AS SCARFACE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and WIENER, most salient of which is that he was deprived Circuit Judges. of the Fifth Amendment right to stand trial only on crimes set forth in an indictment issued JERRY E. SMITH, Circuit Judge: by a grand jury. The government concedes that the indictment is constitutionally deficient Julius Robinson challenges his conviction inasmuch as it fails specifically to charge the and death sentence on several grounds, the aggravating factors that render Robinson eligible for the death penalty. The government son challenges neither the sufficiency nor the contends, however, that the error is harmless. admissibility of the evidence.

B. Robinson also avers that the Federal Death The murder of Johnny Lee Shelton is a case Penalty Act (“FDPA”), 18 U.S.C. § 3591 et of mistaken identity. Shelton was similar in seq., is facially unconstitutional in three re- appearance to a man named “Big Friday,” spects, that the district court abused its discre- whom Robinson blamed for a hijacking in a tion in admitting evidence under the co-con- McDonald’s restaurant parking lot several spirator exception to the hearsay rule, and that months before. On the night he was murdered, his death sentence is predicated on improper Shelton and a friend, Jerell Gardner, spent the aggravating factors. Agreeing with the gov- evening at a Dallas night club, where they ernment that the error in the indictment is sus- were spotted by two of Robinson’s associates ceptible to harmless error review, that on the who mistook Shelton for Big Friday and called facts of this case the error is harmless, and that Robinson to tell him what they had seen. none of Robinson’s other claims has merit, we affirm. Robinson quickly arrived at the club, whereupon he and two other men sat in a near- I. by parking lot, waiting for the man they A. thought was Big Friday to leave. They spotted Proving true to his Hollywood namesake, Shelton and Gardner leaving the club in a car Robinson, also known by names such as “Scar- similar to the one Big Friday drove, and fol- face,” entangled himself in a sadistic world of lowed t hem onto a local highway. As they narcotics and violence in which he personally caught up to the car, Robinson yelled “that’s committed at least two senseless murders. In him,” leaned out the window, and opened fire December 1998, RobinsonSSa wholesale drug with an AK-47 assault rifle. One of Robin- dealer then operating in five statesSSkilled a son’s companions, L.J. Britt, also known as man he mistakenly believed responsible for an “Capone,” did the same. Although most of the armed hijacking that cost him $30,000. In bullets missed their mark, Shelton was struck May 1999, angered by a fraudulent drug in the stomach and later died.1 transaction in which he paid $17,000 for a block of wood covered in sheetrock, Robinson C. retaliated by killing a man whose only connec- Juan Reyes was shot to death at close range tion to the fraud was that he was the brother- on the driveway in front of his home. He and in-law of the fraudulent seller. two companions, Isaac Rodriguez and Nicho- las Marques, arrived there on the day of the For these murders and his complicity in an ongoing criminal enterprise resulting in the murder of a third man, Robinson was convict- 1 Those facts form part of the basis for Robin- ed and sentenced to death on three separate son’s conviction and death sentence on counts 3 counts, to life imprisonment on two others, and 7, which charged violations of 21 U.S.C. § 848 and to a consecutive 300-month sentence on and 18 U.S.C. § 924(j), respectively. The jury another. With one limited exception, Robin- unanimously recommended a death sentence on both counts.

2 murder, not suspecting that in a car parked convicted of possessing three firearms in fur- across the street were three menSSincluding therance of a drug trafficking crime: a 9mm Robinson and Angelo HarrisSSwho were upset UZI pistol, a .357 caliber Smith & Wesson pis- that they had been sold a $17,000 block of tol, and an SKS 7.62x39 semi-automatic wood instead of narcotics. Robinson and assault rifle.4 Finally, he was convicted on Harris approached Reyes carrying automatic several other drug and weapons charges that weapons, said something to himSSthe record the district court treated as lesser included of- is unclear whether it was a demand for mon- fenses and for which no independent sentence eySSthen shot him in the foot. Rodriguez, was imposed. who had been standing nearby, turned to flee and was shot three times, in the back and leg. E. The jury’s sentencing recommendation was Reyes fell to the ground and lay there as based in part on (in addition to the aforemen- Robinson and Harris shot him at least nine tioned convictions) Robinson’s criminal his- times. An autopsy revealed fragments of con- tory. The jury learned of an incident in 1995 crete in several of Reyes wounds, suggesting in which Robinson fired several shots from a he was shot from a distance of less than five handgun at a woman who had failed to pay feet, causing the bullets to pass through his him $120 for crack cocaine. This was used to body, ricochet off the pavement, and re-enter show that Robinson had a violent record be- his back. Before leaving, Robinson and Harris fore the events charged in the indictment. The also fired several shots at Marques, who was jury also was told of an incident, described in still seated behind the wheel in the car in which more detail in part IV, in which Robinson, act- he, Reyes and Rodriguez had just arrived. ing from his jail cell after his arrest in this case, Marques managed to drive around the corner arranged to have a government informant to safety, but his car was riddled with bullets.2 murdered. This was used to show that Robin- son had a propensity to commit future acts of D. violence. Robinson also was convicted for involve- ment in a broad conspiracy that led to the mur- der of Rudolfo Resendez at the hands of Britt and Hendrick Tunstall. While engaged in this 3 (...continued) conspiracy, Robinson and other conspirators inson’s conviction on count 3 and his conviction possessed more than five kilograms of cocaine and life sentences on counts 12 and 15, which and various firearms.3 Robinson was further charged violations of 21 U.S.C. §§ 848 and 841(a)(1) and 18 U.S.C. § 924(j), respectively. The jurySShaving separately recommended a death 2 Those facts form part of the basis for Rob- sentence for the portions of count 3 relating to the inson’s conviction and death sentence on counts 3 Shelton and Reyes murdersSSunanimously and 11, which charged violations of 21 U.S.C. recommended a life sentence on the portion of § 848 and 18 U.S.C. § 924(j), respectively. The count 3 related to Resendez and two other life jury unanimously recommended a death sentence sentences on counts 12 and 15. on both counts. 4 Those facts form the basis of Robinson’s con- 3 Those facts form part of the basis for Rob- viction and 300-month sentence on count 17, which (continued...) charges a violation of 18 U.S.C. § 924(c)(1)(A).

3 II. fendant eligible for death, it is “the functional As we have noted, the government con- equivalent of an element of a greater offense” cedes the indictment is constitutionally defi- and therefore must be proven to a jury beyond cient because it fails to allege the statutory ag- a reasonable doubt. Ring, 536 U.S. at 609 gravating factors that make Robinson eligible (quoting Apprendi v. New Jersey, 530 U.S. for the death penalty. The government argues, 466, 494 n.19 (2000)). As a new rule of con- however, that the error is harmless. Robinson stitutional criminal procedure, that holding ap- responds by pointing to a line of cases that plies to all cases pending on direct review, in- stand for the proposition that a conviction un- cluding Robinson’s. Griffith v. Kentucky, 479 der an indictment constructively amended at U.S. 314, 322 (1987). trial is per se reversible error. Ring’s Sixth Amendment holding applies A. with equal force in the context of a Fifth The conceded error arose only after the Su- Amendment Indictment Clause challenge, even preme Court announced Ring v. Arizona, 536 though the Supreme Court has yet to hold as U.S. 584 (2002). Before Ring, our analysis of much in a capital case.5 As a result, the gov- the use of sentencing factors in a capital case ernment is required to charge, by indictment, was controlled by Walton v. Arizona, 497 U.S. the statutory aggravating factors it intends to 639, 648 (1990), wherein the Court deter- prove to render a defendant eligible for the mined that aggravating factors are not inde- deat h penalty, and its failure to do so in this pendent offenses, but only standards used to case is constitutional error.6 help a jury decide between death and life imprisonment. 5 See, e.g., Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (holding that “any fact . . . The FDPA, 18 U.S.C. § 3593(d), imposes that increases the maximum penalty for a crime its own obligation on prosecutors to submit must be charged in an indictment”); Apprendi, 530 aggravating factors to the unanimous review U.S. at 476 (same); United States v. Cotton, 535 of a petit jury but, consistent with Walton, it U.S. 625, 627 (2002) (same). See also Sattazahn does not impose a concomitant obligation to v. Pennsylvania, 537 U.S. 101, 111 (2003) have a grand jury first charge those factors in (opinion of Scalia, J.) (“We can think of no prin- an indictment. Rather, the statute requires on- cipled reason to distinguish, in this context, be- ly that the government file a notice stating its tween what constitutes an offense for purposes of intention to seek the death penalty and setting the Sixth Amendment’s jury-trial guarantee and . . . forth the aggravating factors on which it pro- the Fifth Amendment’s Double Jeopardy Clause.”). poses to justify the death sentence. 18 U.S.C. 6 § 3593(a). Here, the government filed such a This holding is in accord with that of the other notice setting forth several aggravating factors two circuits to have considered the issue. See United States v. Allen, 357 F.3d 745, 748 (8th Cir. it had not presented to a grand jury. 2004) (holding, in an FDPA case, that “ag- gravating factors essential to qualify a particular Nineteen days after Robinson was sen- defendant as death eligible . . . must be alleged in tenced using those factors, Ring was issued, the indictment”); United States v. Higgs, 353 F.3d expressly overruling Walton. The Court held 281, 298 (4th Cir. 2003) (same). At oral argu- that where an aggravating factor renders a de- ment, the government represented that it became (continued...)

4 B. have interpreted Cotton also to require the We must consider whether Apprendi er- application of harmless error review where an rorSShere the failure of an indictment specifi- indictment is defective and the defendant pre- cally to charge aggravating factors regarded as serves the error by proper objection. United elements because they increase the maximum States v. Baptiste, 309 F.3d 274, 277 (5th available punishmentSSis susceptible to harm- Cir.) (per curiam) (on petition for rehearing), less error review. Cf. Apprendi, 530 U.S. at cert. denied, 538 U.S. 947 (2003); United 490. The Supreme Court has not yet decided States v. Matthews, 312 F.3d 652, 665 (5th that question. Robinson points to a pre-Ap- Cir.), cert. denied, 538 U.S. 938 (2003). prendi case, Stirone v. United States, 361 U.S. Several other circuits likewise have concluded 212 (1967), to argue that the error is per se re- that where a defendant preserves an Apprendi versible. indictment error, the claim is reviewed for harmless error.7 Although Stirone deals with the marginally different problem of constructive amendments The conclusion that this type of error is sus- to an indictment, it contains strong language ceptible to harmless error review follows from that informs our understanding of the gravity two considerations. First is Neder v. United of the error in this case. In particular, Stirone States, 527 U.S. 1, 8 (1999), in which the specifies the “rule that a court cannot permit a Court noted that harmless error review applies defendant to be tried on charges that are not in all but a limited class of cases involving made in the indictment against him” and adds “structural errors.” Such cases “contain a that “[d]eprivation of such a basic right is far ‘defect affecting the framework within which too serious to be treated as nothing more than the trial proceeds, rather than simply an error a variance and then dismissed as harmless in the trial process itself.’” Id. (citation omit- error.” Id. at 217. ted). The Court illustrated the point by pro- viding a list of cases in which a structural error Stirone notwithstanding, the error here is was found; notably, the Court failed either to susceptible to harmless error review. In Cot- cite Stirone or to mention a defective indict- ton, 535 U.S. at 631, the Court resolved an ment as being a structural error. Id. analytically similar issue when it held that a de- fective indictment does not deprive the court Second, although Cotton dealt only with of jurisdiction and that plain error review applies if the defendant fails to object. We

6 7 (...continued) Two circuits have reached this conclusion in the policy of the Department of Justice, post-Ring, FDPA cases. See Allen, 357 F.3d at 752; Higgs, to seek, in all pending FDPA cases, superseding 353 F.3d at 306. Three others have done so in indictments setting forth the aggravating factors non-capital cases. See United States v. Moji- that render the defendant eligible for the death ca-Baez, 229 F.3d 292, 311 (1st Cir. 2001); Unit- penalty. One of Robinson’s co-defendants, Britt, ed States v. Prentiss, 256 F.3d 971, 984 (10th Cir. was tried on the basis of one such superseding 2001) (en banc) (per curiam); United States v. indictment, but the option was unavailable for Rob- Anderson, 289 F.3d 1321, 1327 (11th Cir.), cert. inson, who was convicted and sentenced pre-Ring. denied, 537 U.S. 1195 (2003).

5 plain error8 and expressly reserved the ques- of citizens that acts as a check on prosecutorial tion whether a defect in an indictment is struc- power,” it also recognizes “that is surely no tural error,9 the Court’s analysis suggests less true of the Sixth Amendment right to a strongly that such a defect is not the sort of petit jury, which, unlike the grand jury, must structural error that necessarily escapes harm- find guilt beyond a reasonable doubt.” Cotton, less error review. 535 U.S. at 634.

In applying the plain error test of United We need not diminish the importance of the States v. Olano, 507 U.S. 725 (1993), the Fifth Amendment right to a grand jury indict- Court in Cotton, 535 U.S. at 631-32, was ment to conclude that the error at issue in called on to consider whether the error affect- NederSSthe failure to include an element of the ed substantial rights and whether it seriously crime in petit jury instructionsSSis difficult to affected the fairness, integrity, or public repu- distinguish from the present one, and we find tation of the judicial proceedings. Rather than no compelling reason to carve out an excep- determine whether the defendant’s substantial tion to Neder’s harmless error rule for such an rights were affectedSSan inquiry consisting of analytically similar claim.10 As a result, the determining whether the error affected the out- absence of an indictment on the aggravating come of the proceedingsSSi.e., whether the factors used to justify a death sentence is not error harmed the defendantSSthe Court held structural error and is susceptible to harmless that “even assuming respondents’ substantial error review.11 See Baptiste, 309 F.3d at 277. rights were affected, the error did not seriously affect the fairness, integrity, or public reputa- 10 tion of judicial proceedings.” Id. at 632-33. See also Prentiss, 256 F.3d at 984 (“[A] defendant’s right to have a petit jury find each ele- ment of the charged offense beyond a reasonable Given that conclusion, it is difficult to ac- doubt is no less important than a defendant’s right cept that the same error simultaneously could to have each element of the same offense presented be the sort of “structural error” discussed in to the grand jury. If denial of the former right is Neder, one that necessarily “deprive[s] defen- subject to harmless error analysis, we believe dants of basic protections without which . . . denial of the latter right must be as well.”). no criminal punishment may be regarded as fundamentally fair.” Neder, 527 U.S. at 8-9. 11 Robinson also argues for per se reversal by In addition, although Cotton acknowledges pointing to United States v. Fletcher, 121 F.3d 187 that “the Fifth Amendment grand jury right (5th Cir. 1997). Reliance on Fletcher is mis- serves a vital function in providing for a body placed. As we explained in United States v. Lon- goria, 298 F.3d 367, 373-74 & n.9 (5th Cir.) (en banc) (per curiam), cert. denied, 537 U.S. 1038 (2002), Fletcher applied an analytical framework 8 And indeed, the Court specifically distin- that the court “must change” post-Cotton. Rather guished Stirone on the ground that defendant had than regarding the defendant as having been im- preserved error by objecting. Cotton, 535 U.S. properly sentenced under a valid conviction, as the at 632. court did in Fletcher, the correct approach in such cases is to treat the defendant as having been 9 Id. (acknowledging defendant’s argument that properly sentenced pursuant to an invalid convic- indictment errors are “structural errors,” but decid- tion, and to determine only whether the use of an ing it need not resolve that claim). (continued...)

6 C. and (2) setting forth the aggravating factor To decide whether the error is harmless on or factors that the government, if the defen- the facts of this case, we use the test an- dant is convicted, proposes to prove as nounced in Chapman v. California, 386 U.S. justifying a sentence of death. 18 (1967), because it is constitutional error. See Neder, 527 U.S. at 15. The question is 18 U.S.C. § 3593(a). The government com- whether the error affects substantial rights. plied by filing notice four months before trial, FED. R. CRIM. P. 52(a). That is to say, we in- and Robinson does not contend that the con- quire whether it appears “beyond a reasonable tent or timing of the notice left him unable to doubt that the error complained of did not prepare a defense. contribute to the verdict obtained.” Chapman, 386 U.S. at 23. “An otherwise valid convic- More difficult is the question whether Rob- tion will not be set aside if the reviewing court inson was harmed by losing the right to have may confidently say, on the whole record, that the public determine whether there existed the constitutional error was harmless beyond a probable cause to charge the aggravating fac- reasonable doubt.” Delaware v. Van Arsdall, tors used to sentence him to death. The courts 475 U.S. 673, 681 (1986). have long recognized the significant value the public adds to our system of justice through its Relevant to the inquiry in the present case, involvement in grand jury proceedings.12 Once the two primary functions of an indictment are a trial takes place, however, there is little a that it (1) provides notice of the crime for court of appeals can do to restore to a defen- which the defendant has been charged, allow- dant that which was lost: the right not to face ing him the opportunity to prepare a defense, a prosecution initiated solely at the govern- see Russell v. United States, 369 U.S. 749, ment’s behest. United States v. Mechanik, 763-64 (1967); and (2) interposes the public 475 U.S. 66, 71 (1986).13 into the charging decision, such that a defen- dant is not subject to jeopardy for a crime alleged only by the prosecution, see Stirone, 12 See, e.g.,Wood v. Georgia, 370 U.S. 375, 361 U.S. at 218. Robinson received adequate 390 (1962) (“Historically, this body has been independent notice of the intention to pursue regarded as a primary security to the innocent a death sentence using the aggravating factors against hasty, malicious and oppressive that were ultimately presented to the jury. The persecution; it serves the invaluable function in our FDPA requires the government society of standing between the accuser and the accused, whether the latter be an individual, a reaso nable time before the trial . . . [to] minority group, or other, to determine whether a sign and file with the court, and serve on charge is founded upon reason or was dictated by the defendant, a noticeSS (1) stating that an intimidating power or by malice and personal ill the government believes that the circum- will.”) stances of the offense are such that . . . the 13 “[T]here is no simple way after the verdict to government will seek the sentence of death; restore the defendant to the position in which he would have been had the indictment been dismissed before trial. He will already have suffered 11 (...continued) whatever inconvenience, expense, and opprobrium incomplete indictment requires reversal. Id. (continued...)

7 As a result, meaningful enforcement of this fense in question. Matthews, 312 F.3d at 665. right always will depend, in the main, on the vigilance of the trial court and on its willing- The government asks us to embrace a cate- ness to require that a defective indictment be gorical rule premised on Mechanik, to the ef- amended before trial.14 The error in this case fect that the petit jury’s unanimous finding that lasted as long as it has only because the district the aggravating factors applied to Robinson court properly relied on the then-binding beyond a reasonable doubt conclusively estab- Walton decision. On appeal, our inquiry fo- lishes that the grand jurySSwhich operates ex cuses solely on the question whether, on the parte, by majority vote, and without eviden- basis of the evidence that would have been tiary restrictionsSSwould have found probable available to the grand jury, any rational grand cause to charge the aggravating factors as jury presented with a proper indictment would well. have charged that Robinson committed the of- In Mechanik, 475 U.S. at 70, the Court provided substantial support for the govern- 13 (...continued) ment’s rule, inasmuch as it stated that although that a proper indictment may have spared him.” a procedural error before the grand jury Id. had the theoretical potential to affect the 14 In this respect, our view apparently differs grand jury’s determination whether to in- from that of the Eighth Circuit in Allen. Though it dict these particular defendants for the of- ostensibly agreed that the harmless error rule fenses with which they were charged . . .[,] applies, that court also expressed its concern that [t]he petit jury’s subsequent guilty verdict application of the harmless error doctrine would means not only that there was probable invite intentional government action to evade the Fifth Amendment’s Indictment Clause, because it cause to believe that the defendants were would render “indictment by information in all guilty as charged, but also that they are in cases . . . constitutionally harmless error.” Allen, fact guilty as charged beyond a reasonable 357 F.3d at 755. doubt. Measured by the petit jury’s ver- dict, then, any error in the grand jury pro- To the contrary, an equally competent district ceeding connected with the charging deci- court would catch such a glaringly obvious error as sion was harmless beyond a reasonable the failure to indict any defendant at all, so we do doubt. not subscribe to this doomsday prophesy. The Eighth Circuit’s rebuttal to our positionSSthat At oral argument, Robinson responded by ar- “there will be instances where errors occur or ob- guing that the logic of MechanikSSwhich es- jections are not timely made,” id. at 756SSis un- sentially posits that the citizens on the grand persuasive. The same can be said of any instance jury are interchangeable with those on the petit in which harmless or plain error review applies, and it hardly describes a world in which the Fifth jurySShas less force in a capital case, where Amendment has no meaning. Harmless error is the petit jury is subject to death qualification.15 used only where objections are made but “errors occur,” see FED. R. CRIM. P. 52(a); the failure to object timely causes the plain error doctrine to be 15 Robinson has not substantiated this claim invoked, see FED R. CRIM. P. 52(b); Cotton, 535 with anything more than the conventional wisdom U.S. at 631. (continued...)

8 No categorical rule is needed to convince else in range.17 The record also shows that in us that any rational grand jury would find the course of killing Reyes, Robinson and his probable cause to charge Robinson with at co-assailant managed to shoot Rodriguez three least one of the statutory aggravating factors times and to fire enough times at Marques’s omitted from his indictment.16 In addition to car fleeing the scene to leave it riddled with the petit jury’s unanimous findingsSSwhich we bullets. All this took place in a residential consider to be, at a minimum, persuasive neighborhood in close proximity to at least evidence of how a grand jury would findSSthe two adolescent eyewitnesses playing on a evidence overwhelmingly shows that there ex- nearby porch, and across the street from a isted probable cause to charge Robinson with barbecue attended by at least ten people. the aggravating factors used in his sentencing. No rational grand jury would fail to find All three death sentences involved the ag- that this evidence constituted anything less gravating factor that in the killings of Shelton than probable cause to believe that, in the and Reyes, Robinson “knowingly created a course of committing each murder, Robinson grave risk of death to one or more persons in created a grave risk of death to someone other addition to . . . the victim.” Cf. 18 U.S.C. than the victim. As a result, and beyond a rea- § 3592(c)(5). Robinson killed Shelton by fir- sonable doubt, the failure to charge those fac- ing an AK-47 assault rifle from the window of tors in an indictment did not contribute to a moving vehicle on a public highway, directly Robinson’s conviction or death sentence.18 Cf. endangering Shelton’s passenger and anyone 17 That evidence came in the form of testimony 15 (...continued) by Jason Gehring, the man driving the assailants’ that a death-qualified jury is more apt to convict truck as they pursued Shelton. Gehring stated that than is a random jury, a finding the Supreme Court Shelton’s car accelerated rapidly moments before has repeatedly disavowed in cases involving far the shooting star ted and that Gehring could see a greater evidence than we have before us. See large number of bullets ricocheting off the road and Lockhart v. McCree, 476 U.S. 162, 168-73 (1986) adjoining concrete wall. This created an obvious (criticizing studies that purported to show a con- risk of death to other motorists who could have nection between death qualification and guilty ver- been hit by a stray bullet or involved in an accident dicts, before concluding that even a “somewhat with Shelton’s fast-moving vehicle. more ‘conviction-prone’” jury would not violate the 18 Sixth Amendment); Witherspoon v. Illinois, 391 Although it suffices that the grand jury would U.S. 510, 517-18 (1968) (finding the evidence of have charged one statutory aggravating factor, the effect of death qualification to be “too tentative there also is overwhelming evidence to support the and fragmentary” to support the view that such remaining factors. For example, the Reyes and jurors are more apt to convict). Shelton murders were committed after substantial planning and premeditation, a factor also used to 16 We agree with the Fourth and Eighth Circuits impose the death penalty on counts 3, 7, and 11. that it is only the statutory aggravating factors that Cf. 18 U.S.C. § 3592(c)(9). Witnesses testified trigger the Fifth Amendment’s Indictment Clause, that Robinson had repeated discussions over because they are the only factors that render the several weeks about getting even with Big Friday, defendant eligible for death. See Higgs, 353 F.3d the man he thought responsible for the hijacking. at 298; Allen, 357 F.3d at 749; 18 U.S.C. This was further evidenced by the fact that § 3593(e)(2). (continued...)

9 Chapman, 386 U.S. at 23. possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts III. upon that score.” Rust v. Sullivan, 500 U.S. Robinson challenges the constitutionality of 173, 191 (1991) (internal quotations omitted). the FDPA on three grounds. First, he argues “This canon is followed out of respect for that the statute is facially unconstitutional Congress, which we assume legislates in the under the Fifth Amendment’s Indictment light of constitutional limitations.” Id.; see Clause because it does not require prosecutors also United States v. Bird, 124 F.3d 667, to charge aggravating factors in an indictment; 678-79 (5th Cir. 1997). second, he reasons that the FDPA violates the Fifth Amendment’s guarantee of due process A. of law; and he contends that the FDPA vio- “A facial challenge to a legislative Act is, of lates the Eighth Amendment’s ban on cruel course, the most difficult challenge to mount and unusual punishment. None of these claims successfully, since the challenger must estab- has merit. lish that no set of circumstances exists under which the Act would be valid.” United States The constitutionality of a federal statute is v. Salerno, 481 U.S. 739, 745 (1987). “The a question of law reviewed de novo. United fact that [a statute] might operate unconstitu- States v. Ho, 311 F.3d 589, 601 (5th Cir. tionally under some conceivable set of cir- 2002). “A statute must be construed, if fairly cumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited con- 18 text of the First Amendment.” Id. (...continued) Robinson’s associates knew to call him as soon as they thought they saw Big Friday, and by The FDPA is not facially unconstitutional Robinson’s immediate response to that phone call. under the Indictment Clause. Although Robin- The Reyes murder occurred only after Robinson’s son is correct to point out that nothing in the co-assailant drove from Oklahoma to Dallas to FDPA requires prosecutors to charge aggra- participate in the shooting, and witnesses testified vating factors in an indictment, he fails to note that the pair waited outside Reyes’s house for up to that there is nothing in that law inhibiting such twenty minutes before the victim arrived. a charge. The government can easily comply with both its constitutional obligations (by first In addition, the evidence that Robinson riddled going to the grand jury) and its statutory Reyes’s body with bullets after he was on the obligations (by later filing a § 3593(a) notice ground provides probable cause to believe that the of intention to seek the death penalty). As a murder was committed in an especially heinous, result, the statute is not facially unconstitu- cruel, or depraved manner, as used to support the tional. death sentence for count 11. Cf. 18 U.S.C. § 3592(c)(6). Finally, the evidence that Robinson and his co-assailant fired on two other people at B. Reyes’s home points overwhelmingly in favor of a Robinson’s due process claim fails, as well. finding that Robinson attempted to kill more than He argues, citing United States v. Quinones, one person in a single criminal episode, as used to 205 F. Supp. 2d 256 (S.D.N.Y.), reversed, support the death sentence for count 11. Cf. 18 313 F.3d 49 (2d Cir. 2002), cert. denied, 124 U.S.C. § 3592(c)(16).

10 S. Ct. 807 (2003), that the FDPA violates the opportunity to pursue relief in the form of a substantive and procedural components of the petition for a writ of certiorari and petition for Due Process Clause. The substantive due pro- a writ of habeas corpus. cess claim is premised on the idea that all cap- ital defendants share a liberty interest in not C. being executed for crimes they did not commit. Robinson asks us to invalidate the FDPA This shared liberty interest, it is argued, enti- on the ground that the death penalty is cruel tles a guilty defendant facially to invalidate a and unusual punishment, in violation of the law that could be used in some other case to Eighth Amendment. He recognizes that this execute an innocent man. claim is foreclosed by Gregg v. Georgia, 428 U.S. 153 (1976), but he argues that societal This argument has no merit. Whatever the standards of decency have evolved to the point risk that another person will be wrongfully at which imposing the death penalty against an convicted, Robinson has not even attempted to adult murderer has become an intolerably cruel show, on appeal, that his conviction is errone- act. Cf. Trop v. Dulles, 356 U.S. 86, 101 ous, and he has presented no evidence to sug- (1958). We note, however, that it is uncertain gest that the FDPA is unconstitutional as ap- whether this court is even empowered to rec- plied to his case. So, he cannot invalidate the ognize such an evolution in the law, or must statute on the ground that it might conceivably instead reserve that question for the Supreme be applied to reach an unconstitutional result Court.19 Even assuming we had such a power, in some other defendant’s case. Salerno, 481 Robinson presents no evidence of an evolution U.S. at 745. in societal standards of decency, and we see no reason to believe that there has emerged a Robinson does not elaborate on the specific national consensus against capital punishment manner in which he believes the FDPA de- for defendants who commit crimes that are as prives him of procedural due process. We pre- depraved as Robinson’s. The FDPA is not fa- sume, however, from his frequent citations to cially unconstitutional under any of these the district court opinion in Quinones, that he theories. agrees with that court that the problem is that execution “arbitrarily eliminate[s] any pos- IV. sibility of exoneration after a certain point in Robinson challenges, as hearsay, the admis- time.” Quinones, 205 F. Supp. 2d at 265. sion of certain testimony at his sentencing hearing. The government counters that the On that theory, all executions would violate the Due Process Clause, because they render the defendant unable further to challenge his 19 Recently, the Supreme Court granted certi- conviction. That argument is belied by the orari in Roper v. Simmons, No. 03-633, in which plain text of the Fifth Amendment, which un- the first question it certified for review is as fol- ambiguously provides that some measure of lows: “Once this court holds that a particular pun- process is sufficient to permit imposition of the ishment is not ‘cruel and unusual,’ and thus barred death penalty, and there is nothing arbitrary in by the Eighth and Fourteenth Amendments, can a choosing, for the execution, a point in time lower court reach a contrary decision based on its after a full and fair trial, direct appeal, and the own analysis of evolving standards?” Roper, 124 S. Ct. 1171 (2004).

11 district court properly admitted the evidence as objection was made to a portion of the testi- the testimony of a co-conspirator under rule mony of Michael Williams, also known as 801(d)(2)(E) of the Federal Rules of Evidence, “One Love,” a government informant whose and on the ground that the FDPA explicitly testimony was used to prove the non-statutory provides that the rules of evidence do not ap- aggravating factor that Robinson posed a fu- ply at sentencing hearings. See 18 U.S.C. ture danger to the lives and safety of other per- § 3593(c); see generally 5 STEPHEN A. SALTZ- sons, as evidenced by a lack of remorse during BURG, MICHAEL M. MARTIN & DANIEL J. or soon after the murder of Reyes. CAPRA, FEDERAL RULES OF EVIDENCE MAN- UAL § 1101.02[2], at 1101-5; 1101.03)[6][d] At the sentencing hearing, Williams testified (LexisNexis 2003). to the effect that, after aiding the investigation of Robinson, he was approached by three men, We “review the admission of hearsay evi- one of whom was armed with a .38 caliber dence under the non-hearsay definition of Rule firearm, who then kidnaped, assaulted, and 801(d)(2)(E) for abuse of discretion.” United threatened him with death. Over Robinson’s States v. Solis, 299 F.3d 420, 443 (5th Cir.) objection, Williams testified that one of these (internal quotations omitted), cert. denied, 537 men, Kendall Pitts, also known as “Cracker,” U.S. 1060, and cert. denied, 537 U.S. 1094 told him the men were going to kill him be- (2002). “Under our precedent, the proponent cause he had “snitched” on a gang leader.21 of admittance under Rule 801(d)(2)(E) must This testimony easily fits the first three prongs prove by a preponderance of the evidence (1) of the rule 801(d)(2)(E) exception, because the existence of a conspiracy, (2) the statement the government made a competent showing was made by a co-conspirator of the party, (3) that Robinson initiated a conspiracy to have the statement was made during the course of Williams murdered, that the declarant Pitts the conspiracy, and (4) the statement was was involved in this conspiracy, and that the made in furtherance of the conspiracy.” Id. statement was made while Pitts carried out the conspiracy. Cf. Solis, 299 F.3d at 443. The evidence was admissible as a co-con- spirator’s statement, so we need not consider As to the fourth requirement, “[t]his Court whether the FDPA’s blanket exception to the has consistently held that the in furtherance hearsay rule is constitutional under Ring. 20 requirement is not to be construed too strictly See generally 5 SALTZBURG ET AL., supra, lest the purpose of the exception be defeated.” § 801.03[10]; cf. U.S. CONST. amend. VI. The United States v. Phillips, 219 F.3d 404, 418-19 (5th Cir. 2000). It is sufficient, in this respect, that Pitts’s declarationSSwhich was 20 The constitutionality of rule 801(d)(2)(E) is well established. See United States v. Inadi, 475 21 U.S. 387, 395 (1986); Bourjaily v. United States, The government separately linked this tes- 483 U.S. 171, 182 (1987). As applied to the pre- timony to Robinson by introducing an audiotape of sent case, this conclusion is not called into doubt a phone conversation in which Robinson was by Crawford v. Washington, 124 S. Ct. 1354, heard, from jail, instructing a relative to “go hard” 1374 (2004), because the statement challenged as on Williams, and through testimony showing that hearsay was made during the course of the conspir- outside sources wasted little time in informing acy and is non-testimonial in nature. Robinson of the attempt on Williams’s life.

12 not only a threat but an explanation of why the petrator intentionally killed or attempted to kill threat was legitimateSSput Williams under his more than one person in a single episode. We immediate control as the three men forced him see no reason to second-guess Congress’s to go along to the location where they intend- judgment that murders bearing those attributes ed to kill him. The district court did not abuse are deserving of enhanced punishment, and its discretion in admitting this testimony. under Jones their use is none the worse in tandem. V. Robinson makes two challenges to the ag- gravating factors used against him. First, he B. argues that two of the statutory aggravating Robinson argues that the jury arrived at its factors used to support his death sentence un- recommendation of death by impermissibly der count 11SSfor the murder of Juan Rey- weighing aggravating factors that were not esSSare unconstitutionally duplicative. Sec- specified by the statute. These “non-statutory ond, he posits that the FDPA does not au- aggravating factors” are considerations that thorize the use of non-statutory aggravating the prosecution specified in its § 3593(a) no- factors. Both points are meritless. tice of intent to seek the death penalty as ad- ditional reasons that Robinson should be put to A. death.22 The statute provides that the jury may There is no legal basis for Robinson’s claim consider such determinations in reaching its that two of the aggravating factors specified decision to recommend death, just as it permits by Congress were used in such a way as to be the jury to consider any mitigating factors not unconstitutionally duplicative. Although our specified in the statute.23 caselaw once framed the issue in those terms, the Supreme Court recently admonished that it Robinson’s tortured reading of the statute does not support that theory of review. See would have us declare that § 3591(a) contra- Jones v. United States, 527 U.S. 373, 398 dicts, and implicitly invalidates, the provision (1999). Rejecting the idea that a similarity between two factors could make their com- bined use invalid, the Court explained that it 22 The government’s notice indicated that it had only held that “the weighing process may sought to prove that Robinson had committed a be impermissibly skewed if the sentencing jury previous violent act and had exhibited a lack of re- considers an invalid factor.” Id. (citing morse that was suggestive of propensity to commit Stringer v. Black, 503 U.S. 222, 232 (1992)). a future violent act. The jury unanimously found beyond a reasonable doubt that those factors applied to Robinson, and presumably weighed them Both factors challenged by Robinson are in reaching the recommendation that he be sentenced to death. legitimate. Congress determined, in § 3592- (c)(5), that a murderer is deserving of greater 23 Compare 18 U.S.C. § 3592(a) (stating that condemnation if he knowingly created a grave “the finder of fact shall consider any mitigating risk of death to one or more persons in addi- factor, including the following” eight specified tion to the victim; and, in § 3592(c)(16), that factors); with § 3592(c) (stating that “the jury . . . greater condemnation is warranted if the per- may consider whether any other aggravating factor for which notice has been given exists”).

13 authorizing the use of non-statutory aggravat- ing factors merely because § 3591(a) refers to consideration of the factors “set forth” in § 3592(c). “It is ‘a cardinal principle of statu- tory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’” TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) (internal quotations omitted). When the statute is read as a coherent whole, the two provisions are not in tension, because § 3592 adequately “sets forth” the non-statu- tory aggravating factors by providing that the jury may consider them.

For the foregoing reasons, the conviction and sentence are AFFIRMED. The govern- ment’s motion to supplement the record on appeal is DENIED.