United States v. Wilson

• Court: Court of Appeals for the Second Circuit
• Decided: June 30, 2010
• Docket: 07-1320
• Status: Published

Opinion

07-1320-cr United States v. Wilson

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2009 6 7 8 (Argued: November 5, 2009 Decided: June 30, 2010) 9 10 Docket No. 07-1320-cr 11 12 - - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 - v.- 19 20 MICHAEL WHITTEN, PARIS BULLOCK, ANGEL 21 RODRIGUEZ, also known as Ice, JAMAL BROWN, 07-1320-cr 22 also known as Mal, 23 24 Defendants, 25 26 RONELL WILSON, also known as Rated R, 27 28 Defendant-Appellant. 29 30 - - - - - - - - - - - - - - - - - - - -x 31

32 Before: JACOBS, Chief Judge, MINER, and 33 LIVINGSTON, Circuit Judges. 34 35 Ronell Wilson murdered two undercover police detectives

36 who were posing as gun buyers. Wilson appeals from a

37 judgment of conviction and a sentence of death entered on

38 March 29, 2007, in the United States District Court for the 1 Eastern District of New York (Garaufis, J.). Wilson appeals

2 on twelve grounds (some with subparts), among them that: the

3 evidence was insufficient to support a finding under the

4 Violent Crimes in Aid of Racketeering statute, 18 U.S.C. §

5 1959, that Wilson acted to maintain or increase his position

6 in a racketeering enterprise; and the district court abused

7 its discretion in cutting off recross-examination that had

8 bearing on whether Wilson shot in perceived self-defense

9 because he thought his victims were about to rob him. We

10 affirm as to those claims and therefore affirm the

11 convictions.

12 We likewise affirm the district court’s rejection of

13 Wilson’s arguments that: voir dire was unfairly biased and

14 constitutionally inadequate; testimony in the penalty phase

15 exceeded what is permissible under the Constitution and the

16 Federal Death Penalty Act, and required an additional

17 corrective charge; and a fellow inmate was acting as a

18 government agent in eliciting admissions from Wilson.

19 However, we vacate the death sentences, and remand,

20 because two arguments made to the jury by the prosecution--

21 both bearing on the critical issues of remorse, acceptance

22 of responsibility, and future dangerousness--impaired

2 1 Wilson’s constitutional rights. The government argued: [i]

2 that Wilson put the government to its proof of guilt rather

3 than plead guilty; and [ii] that Wilson’s allocution of

4 remorse should be discredited because he failed to testify

5 notwithstanding the fact that “ [t]he path for that witness

6 stand has never been blocked for Mr. Wilson.” As to the

7 first argument, although a guilty plea may properly be

8 considered to support a sentence mitigation for acceptance

9 of responsibility, the Sixth Amendment is violated when

10 failure to plead guilty is treated as an aggravating

11 circumstance. As to the second, it is a fair argument for

12 the prosecution to say that an allocution of remorse is

13 unsworn and uncrossed, but the Fifth Amendment is violated

14 when the defendant is denied a charge that limits the Fifth

15 Amendment waiver to that which is said in the allocution and

16 the jury is invited to consider more generally that the

17 defendant declined to testify. These constitutional

18 violations were not harmless beyond a reasonable doubt.

19 Accordingly, we vacate the death sentences and remand

20 for further proceedings.

21 Judge Livingston dissents in part in a separate

22 opinion.

3 1 BEVERLY VAN NESS, New York, New 2 York; BARRY J. FISHER, Saratoga 3 Springs, New York, for 4 Defendant-Appellant. 5 6 Benton J. Campbell, United 7 States Attorney, Eastern 8 District of New York, Brooklyn, 9 New York; MORRIS J. FODEMAN, 10 DAVID BITKOWER (Peter A. 11 Norling, Jason A. Jones, Zainab 12 Ahmad, on the brief), Assistant 13 United States Attorneys, Eastern 14 District of New York, Brooklyn, 15 New York; Jeffrey B. Kahan (on 16 the brief), United States 17 Department of Justice Capital 18 Case Unit, Washington, D.C., for 19 Appellee. 20 21 DENNIS JACOBS, Chief Judge: 22 23 Ronell Wilson murdered two undercover police detectives

24 who were posing as gun buyers. Wilson appeals from a

25 judgment of conviction and a sentence of death entered on

26 March 29, 2007, in the United States District Court for the

27 Eastern District of New York (Garaufis, J.). Wilson appeals

28 on twelve grounds (some with subparts), among them that: the

29 evidence was insufficient to support a finding under the

30 Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18

31 U.S.C. § 1959, that Wilson acted to maintain or increase his

32 position in a racketeering enterprise; and the district

33 court abused its discretion in cutting off recross-

4 1 examination that had bearing on whether Wilson shot in

2 perceived self-defense because he thought his victims were

3 about to rob him. We affirm as to those claims and

4 therefore affirm the convictions.

5 We likewise affirm the district court’s rejection of

6 Wilson’s arguments that: voir dire was unfairly biased and

7 constitutionally inadequate; testimony in the penalty phase

8 exceeded what is permissible under the Constitution and the

9 Federal Death Penalty Act, and required an additional

10 corrective charge; and a fellow inmate was acting as a

11 government agent in eliciting admissions from Wilson.

12 However, we vacate the death sentences, and remand,

13 because two arguments made to the jury by the prosecution--

14 both bearing on the critical issues of remorse, acceptance

15 of responsibility, and future dangerousness--impaired

16 Wilson’s constitutional rights. The government argued: [i]

17 that Wilson put the government to its proof of guilt rather

18 than plead guilty; and [ii] that Wilson’s allocution of

19 remorse should be discredited because he failed to testify

20 notwithstanding the fact that “ [t]he path for that witness

21 stand has never been blocked for Mr. Wilson.” As to the

22 first argument, although a guilty plea may properly be

5 1 considered to support a sentence mitigation for acceptance

2 of responsibility, the Sixth Amendment is violated when

3 failure to plead guilty is treated as an aggravating

4 circumstance. As to the second, it is a fair argument for

5 the prosecution to say that an allocution of remorse is

6 unsworn and uncrossed, but the Fifth Amendment is violated

7 when the defendant is denied a charge that limits the Fifth

8 Amendment waiver to that which is said in the allocution and

9 the jury is invited to consider more generally that the

10 defendant declined to testify. These constitutional

11 violations were not harmless beyond a reasonable doubt.

12 Accordingly, we vacate the death sentences and remand

13 for further proceedings. 1

15 BACKGROUND

16 Wilson was convicted on five capital counts: two counts

17 of murder in aid of racketeering under VICAR (18 U.S.C. §

18 1959(a)(1)), two counts of causing a death through the use

19 of a firearm (18 U.S.C. § 924(j)), and one count of

1 There is no merit to Wilson’s argument that the case need be remanded to a different district court judge. See United States v. Demott, 513 F.3d 55, 59 (2d Cir. 2008) (per curiam). 6 1 carjacking with death resulting (18 U.S.C. § 2119(3)). He

2 was also convicted on five non-capital counts. At a

3 separate penalty phase, the same jury unanimously voted to

4 sentence Wilson to death on all five capital counts.

5 Eight of the convictions (including all five capital

6 counts) stem from a March 10, 2003 robbery and murder of New

7 York Police Department detectives James Nemorin and Rodney

8 Andrews. The other two counts (a robbery conspiracy and the

9 use of a firearm) stem from a May 2, 2002 aborted robbery.

10 Wilson was arrested on March 12, 2003, two days after the

11 murders.

12 At trial, the defense contended that the triggerman was

13 Jesse Jacobus, a fellow gang member who was with Wilson

14 during the murders and who testified against him at trial;

15 but Wilson does not appeal the jury’s finding that he,

16 Wilson (and not Jacobus), fired the shots.

17 The district court had jurisdiction to hear the case

18 under 18 U.S.C. § 3231. This Court has jurisdiction over an

19 appeal from a final order of the district court under 28

20 U.S.C. § 1291.

22 A

7 1 The Stapleton Crew was a violent gang that operated in

2 Staten Island from approximately 1999 until it was disbanded

3 by the arrest of the principals following the murders

4 committed by Wilson. The gang was involved in robberies and

5 the sale of drugs. The core members of this gang were

6 Michael Whitten, Paris Bullock, Omar Green, Hason Taylor,

7 and Rashun Cann; associated gang members included Mitchell

8 Diaz, Jacobus, and the appellant, Wilson. 2

9 The Stapleton Crew collectively owned several guns that

10 were available for the members’ use. One week before the

11 murders, on March 3, 2003, Whitten and Green sold one of

12 these guns, a .357 caliber revolver, for $780. The buyer in

13 that transaction was actually Detective Nemorin working

14 undercover. He made no arrest at that time because he

15 wanted to further infiltrate the gun-sale operation and make

16 additional arrests later. Accordingly, he arranged to

17 purchase another of the Stapleton Crew’s guns the following

18 week.

2 The government called Diaz and Jacobus as cooperating witnesses in the guilt phase of this case to testify about the criminal activities of the gang and the murders of the police officers. Both these men had pleaded guilty to felony murder in state court and would be sentenced to 15-25 years to life in prison. 8 1

2 B

3 Detective Andrews volunteered to accompany Detective

4 Nemorin as backup at the second transaction. They were

5 accompanied at a distance by officers on foot and in nearby

6 cars; one of the putative gun buyers wore a fake beeper that

7 would broadcast audio to officers conducting surveillance.

8 In advance of the March 10 meeting, members of the

9 Stapleton Crew decided to rob the buyer of the $1,200 price

10 rather than deliver the gun. The discussion among Wilson,

11 Diaz, Bullock, Whitten, and Green in Green’s apartment was

12 as follows: Jacobus would assist Wilson; Wilson would be

13 armed with one of the communal guns, which (Wilson was told)

14 he might have to use; Green or Whitten raised the

15 possibility that Detective Nemorin might be a police officer

16 or a thief attempting to rob the Stapleton Crew; Wilson

17 committed to go through with the robbery anyway if Green and

18 Whitten wanted him to do so; Green and Whitten then approved

19 of the planned robbery.

20 On the night of March 10, 2003, Wilson and Jacobus got

21 into the back seat of the undercovers’ car (Wilson sat

22 behind the driver, Detective Nemorin). Wilson directed the

9 1 driver to another neighborhood in Staten Island, where

2 Wilson got out, met Diaz, and picked up the .44 caliber

3 pistol ultimately used in the murders. Wilson and Diaz

4 discussed what both recognized to be an undercover police

5 presence in the area, although Diaz stated that he told

6 Wilson he did not believe the police were deployed on their

7 account. Wilson, now armed, rejoined the others in the car,

8 and directed the driver to another neighborhood (where the

9 planned robbery would take place).

10 When they arrived, Wilson briefly stepped out of the

11 car. When he got back in, Wilson shot Detective Andrews in

12 the head. Wilson then pointed the gun at Detective Nemorin

13 and said, “Where’s the shit at? Where’s the shit at?

14 Where’s the money? Where’s the shit at?” Jacobus testified

15 that Detective Nemorin “was pleading for his life” before

16 Wilson shot him in the head.

17 Wilson and Jacobus left the car with the victims’

18 bodies inside, walked quickly to the nearby apartment of

19 Wilson’s stepfather, entered with Wilson’s key, and stashed

20 the murder weapon in a closet. Wilson and Jacobus then

21 returned to the car and pulled the bodies out to search them

22 for money. Leaving the bodies in the street, they drove off

10 1 in the bloodstained car. As they drove away from the crime

2 scene, Jacobus asked Wilson why he shot the men; Wilson

3 responded, “I don’t give a fuck about nobody.”

4 Wilson and Jacobus parked the car near the Stapleton

5 Projects and began to search it for money. Wilson found a

6 gun under the front passenger seat and said, “[t]hey was

7 going to get us before we got them.” Jacobus testified that

8 Wilson had not previously suggested that the killings were

9 preemptive. Wilson kept the gun he took from the car.

10 As Wilson and Jacobus walked back to the projects,

11 Wilson yelled something to a passing police car. The police

12 car stopped and the officers got out; Wilson and Jacobus

13 ran, and the officers pursued; Jacobus was arrested a short

14 distance away.

15 Wilson escaped into the Stapleton Projects, and went to

16 Green’s apartment, where Green was with Diaz. Diaz

17 testified that Wilson was asked what happened, and Wilson

18 responded that he, Wilson, had “popped” the buyers. Diaz

19 recalled that Wilson said other things as well, but in a

20 ruling contested on this appeal, questioning of Diaz on that

21 issue was terminated. Wilson left the apartment with Green

22 and Diaz.

11 1 Wilson was arrested two days later in Brooklyn. In his

2 pocket the arresting officers found (among other things) rap

3 lyrics he had written that arguably describe the murders.

5 C

6 In March 2003, Wilson was indicted in state court for

7 first-degree murder, and the district attorney filed notice

8 of intent to seek the death penalty. In June 2004, the New

9 York Court of Appeals ruled that the state’s death penalty

10 statute violated the New York Constitution.

11 The federal government then took up the prosecution.

12 On November 17, 2004, a federal grand jury indicted Wilson,

13 Bullock, Whitten, and two other members of the Stapleton

14 Crew. Wilson’s four co-defendants each pled guilty to

15 racketeering and narcotics charges, and have been imprisoned

16 for a term of years.

17 A notice of intent to seek the death penalty was filed

18 in federal court on August 2, 2005. In September 2006, the

19 grand jury approved a superseding indictment that served as

20 the trial indictment, charging Wilson on five capital counts

21 (two charges of murder in aid of racketeering, two charges

22 of firearm murders during a robbery, and one charge of

12 1 carjacking murder) as well as five non-capital counts (three

2 of which stem from the March 10, 2003 robbery and two from a

3 previous aborted robbery).

4 The government gave notice that it was seeking the

5 death penalty on the basis of six aggravating factors. The

6 two statutory aggravating factors were [i] that he committed

7 the murders in the expectation of the receipt of something

8 of pecuniary value and [ii] that he intentionally killed

9 more than one person in a single criminal episode. See 18

10 U.S.C. § 3592(c)(8), (c)(16). The non-statutory aggravating

11 factors were [iii] that the victims were law enforcement

12 officers murdered during their official duties, [iv] that

13 Wilson faced contemporaneous convictions for serious acts of

14 violence, [v] that Wilson was a continuing danger to others,

15 and [vi] that the victims’ deaths impacted survivors. See

16 18 U.S.C. § 3593(a)(2). On appeal, Wilson argues that the

17 victim impact evidence should have been limited to family,

18 and that in any event he was prejudiced by the emotional

19 content of the victim impact testimony.

20 Approximately 600 potential jurors were assembled in

21 September 2006 and filled out a questionnaire. Individual

22 voir dire of approximately 260 potential jurors began in

13 1 October 2006 and ended on November 16, 2006, during which

2 time the parties submitted and objected to proposed written

3 questions for the court to pose. After voir dire, the

4 defense moved to discharge all twelve seated jurors; the

5 motion was denied. On appeal, Wilson argues that the voir

6 dire was biased to favor the prosecution and

7 unconstitutionally omitted a critical inquiry--the

8 willingness of the jury to consider childhood deprivation as

9 a mitigator.

10 At the guilt phase of trial, the government largely

11 proved the case set out above in connection with the March

12 10, 2003 double homicide. Wilson argues on appeal that the

13 trial evidence did not sufficiently prove that he killed for

14 pecuniary gain or for position in the gang, an element of

15 murder in aid of a racketeering activity. On December 20,

16 2006, the jury returned guilty verdicts on all ten counts

17 against Wilson.

19 D

20 At the penalty phase of the trial the government relied

21 on six aggravating factors to justify a sentence of death.

22 The two factors expressly listed in the statute had been the

14 1 subject of evidence in the guilt phase: killing for

2 pecuniary gain and killing multiple people in a single

3 incident. See 18 U.S.C. § 3592(c)(8), (c)(16). Of the four

4 non-statutory factors, two had been the subject of evidence

5 in the guilt phase: killing law enforcement officers in the

6 course of duty and contemporaneous convictions for serious

7 acts of violence (the earlier aborted robbery). The

8 government’s case at sentencing was therefore focused on two

9 (non-statutory) aggravating factors: victim impact and

10 future dangerousness.

11 The government’s victim impact evidence consisted of:

12 five witnesses who testified primarily about Detective

13 Andrews (his widow, sister-in-law, son, cousin, and a friend

14 in the police department); five witnesses who testified

15 primarily about Detective Nemorin (his widow, mother-in-law,

16 sister, former supervisor, and a friend in the police

17 department); 41 photos of the detectives as they were in

18 life; and an excerpt from a documentary film (sponsored by

19 one of the police witnesses) in which Detective Nemorin

20 discussed his job as an undercover police officer. Wilson

21 objected to much of this evidence on a number of grounds.

22 To show future dangerousness, the government adduced

15 1 Wilson’s record of increasingly serious offenses, starting

2 at age 11. The offenses included robberies and assaults.

3 The victim of an assault committed when Wilson was 19 years

4 old required 300 stitches. Between ages 15 and 17, Wilson

5 was confined to a maximum security juvenile facility for

6 robbery; at 17, he entered Rikers Island for one year.

7 Wilson murdered Detective Andrews and Detective Nemorin when

8 he was 20 years old. The prosecution also cited a long

9 disciplinary record of prison offenses. Moreover, the

10 prosecution established that Wilson was a member of the

11 Bloods gang, stayed a member while in prison, and had (on at

12 least two occasions) told fellow gang members to “pop off”

13 (i.e., attack the guards).

14 To testify about the Bloods’ structure and

15 organization, and how acts of violence move a member up

16 within the gang hierarchy, the government put on a

17 cooperating witness, Shabucalik Geralds, a former Bloods

18 member who was still to some extent affiliated with the gang

19 at the time he testified. Geralds, who encountered Wilson

20 in prison while Wilson was detained following the murders,

21 also testified to statements made by Wilson. The defense

22 argues on appeal that Geralds’s testimony about the Bloods

16 1 was unreliable opinion testimony lacking a foundation of

2 personal knowledge and that Geralds was a government agent

3 when he elicited information from Wilson.

4 Wilson put on an expert witness to refute the idea that

5 he would be a danger in prison. Donald Romine, a former

6 Bureau of Prisons supervisor, testified that prisons have

7 many effective controls in place to prevent violence, that

8 Wilson’s prison disciplinary record was unremarkable, and

9 that the Bloods gang does not present a particularly high

10 risk within the federal prison population. On cross-

11 examination, the prosecution elicited testimony from Romine

12 about the internal workings of the Bloods, including that

13 acts of violence could lead to promotion within their ranks.

14 Wilson’s affirmative case in the sentencing phase

15 focused on mitigating factors relating to his Dickensian

16 upbringing. His father was largely absent; his mother was a

17 drug addict; and he lived in poverty either with them or

18 with other relatives. State child services intervened on

19 several occasions. Wilson lived for a time with his

20 grandmother in a three-bedroom apartment in the Stapleton

21 Projects, along with twelve other people. When Wilson was

22 six years old, he was hospitalized three times for

17 1 psychiatric difficulties, including suicidal tendencies.

2 Prior to his hospitalizations, child services had taken him

3 away from his mother, and given him over to his aunt.

4 Wilson exhibited both sadness and aggression at school. His

5 IQ has been tested in the high 70s. The defense also called

6 members of Wilson’s family to testify about his loving

7 relationship with them, and how they would suffer if he is

8 executed.

9 The defense received permission for Wilson to read

10 aloud an allocution of remorse, both to support the

11 mitigating factors of remorse and acceptance of

12 responsibility and to counter the prosecution’s aggravating

13 factor of future dangerousness. The defense argues on

14 appeal that the district court improperly limited the scope

15 of Wilson’s allocution of remorse and that the court’s

16 rulings and the prosecution’s improper arguments on

17 summation ultimately caused the jury to hold against him his

18 allocution of remorse, his exercise of the right to trial,

19 and the fact that he did not testify.

20 The jury unanimously voted to sentence Wilson to death

21 on each of the five capital counts. The special verdict

22 form reports unanimous findings beyond a reasonable doubt

18 1 that the prosecution established the two statutory

2 aggravating factors and each of the four non-statutory

3 aggravating factors. Further, the jury unanimously found

4 that 14 mitigation factors were proven by a preponderance of

5 the evidence. No juror found that Wilson was remorseful or

6 that he took responsibility for his actions.

7 The district court entered judgment on March 29, 2007.

8 Wilson appeals from that judgment.

10 DISCUSSION

11 Two grounds of appeal would impact Wilson’s

12 convictions: whether the evidence was sufficient to support

13 a finding under the VICAR statute that Wilson committed the

14 murders to maintain or increase his position in the gang

15 (see Point I); and whether the district court abused its

16 discretion in curtailing recross-examination that had

17 bearing on whether Wilson shot the detectives out of

18 perceived self-preservation (see Point II). We affirm as to

19 these claims and, therefore, affirm the convictions.

20 The remaining grounds of appeal challenge the sentence

21 of death. These include whether the judge’s voir dire

22 inquiries were improperly biased (see Point III); whether

19 1 testimony in the penalty phase exceeded what is permissible

2 under the Constitution and the Federal Death Penalty Act,

3 and required a corrective charge (see Point IV); and whether

4 a fellow inmate was acting as a government agent in

5 eliciting admissions from Wilson (see Point V). We reject

6 those challenges.

7 However, we vacate the death sentences, and remand, on

8 the grounds that two arguments made by the prosecution, both

9 bearing on the critical issue of Wilson’s claimed remorse

10 and acceptance of responsibility, violated Wilson’s

11 constitutional rights (see Points VI and VII). These

12 constitutional violations were not harmless beyond a

13 reasonable doubt (see Point VIII), and so we vacate and

14 remand.

15 Wilson further appeals his sentence of death on

16 additional grounds that we can reject without making new law

17 (see Point IX).

19 I

20 Wilson contends that the evidence was insufficient to

21 support a jury finding that he had acted with any of the

22 motives required for conviction under the VICAR statute, and

20 1 that his convictions on Counts One and Two of the indictment

2 must therefore be vacated.

3 The VICAR statute provides, in pertinent part:

4 Whoever, as consideration for the receipt of, or 5 as consideration for a promise or agreement to 6 pay, anything of pecuniary value from an 7 enterprise engaged in racketeering activity, or 8 for the purpose of gaining entrance to or 9 maintaining or increasing position in an 10 enterprise engaged in racketeering activity, 11 murders . . . any individual in violation of the 12 laws of any State or the United States . . . shall 13 be punished-- (1) . . . by death or life 14 imprisonment, or a fine under this title, or both.

15 18 U.S.C. § 1959(a). The government undertook to show that

16 Wilson acted for pecuniary gain and “for the purpose of

17 . . . maintaining or increasing position” within the

18 Stapleton Crew. Id. Because we conclude that there was

19 sufficient evidence to support the finding that Wilson acted

20 for status and position we need not consider pecuniary gain.

21 To show that Wilson acted “for the purpose of . . .

22 maintaining or increasing position,” the prosecution must

23 show [i] “that [Wilson] had a position in the enterprise,”

24 and [ii] “that his general purpose” in murdering Detectives

25 Nemorin and Andrews “was to maintain or increase his

26 position in the enterprise.” United States v. Concepcion,

27 983 F.2d 369, 381 (2d Cir. 1992). “[M]aintaining or

21 1 increasing position in the [racketeering] enterprise [need

2 not have been] defendant’s sole or principal motive.” Id.

3 “[T]he motive [element is] satisfied if the jury could

4 properly infer that the defendant committed his violent

5 crime because he knew it was expected of him by reason of

6 his membership in the enterprise or that he committed it in

7 furtherance of that membership.” Id.; see also United

8 States v. Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001)

9 (“[S]ection 1959 encompasses violent crimes intended to

10 preserve the defendant’s position in the enterprise or to

11 enhance his reputation and wealth within that enterprise.”

12 (emphasis omitted)).

13 There is evidence that Wilson murdered the two

14 detectives in order to improve his position within the

15 Stapleton Crew. Jacobus made the connection between

16 violence by Crew members and status within the Crew. He

17 testified that he himself committed crimes “to raise [his]

18 status” within the group, that Wilson enjoyed “a certain

19 status” due to his reputation for violence, and that violent

20 acts, especially the murder of police officers, would

21 enhance one’s “status” within the Stapleton Crew. That such

22 conduct would enhance Wilson’s status is confirmed by

22 1 evidence of the Crew’s violent character. The gang’s

2 members regularly committed violent acts on behalf of the

3 Crew with fellow members. Members were expected to adopt

4 each other’s grievances, and to react with violence toward

5 offending outsiders, including any member of the rival 456

6 gang. The Crew possessed firearms for use by its members.

7 Photographs show members of the Stapleton Crew brandishing

8 firearms and displaying gang signs. Rap lyrics written by a

9 member celebrate the Crew’s rivalry with the 456. Finally,

10 as Diaz testified, Wilson went from the murders to the

11 apartment of one of the Crew’s leaders, reported to those

12 present that he had “popped” (i.e., shot) his victims, and

13 produced Detective Nemorin’s pistol.

14 In reviewing a conviction for sufficiency of

15 evidentiary support, “the trial evidence is viewed most

16 favorably for the Government” and “all reasonable inferences

17 a jury may have drawn favoring the Government must be

18 credited.” United States v. Wexler, 522 F.3d 194, 206-07

19 (2d Cir. 2008). We affirm “‘if any rational trier of fact

20 could have found the essential elements of [the] crime

21 beyond a reasonable doubt.’” Id. at 207 (emphasis omitted)

22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

23 1 We conclude without difficulty that there is sufficient

2 evidence of Wilson’s “position in the enterprise.”

3 Concepcion, 983 F.2d at 381. It is a closer question

4 whether Wilson’s “general purpose” in murdering Detectives

5 Nemorin and Andrews was “to maintain or increase his

6 position in the enterprise,” id., but we find sufficiency.

7 First, Jacobus testified that violent acts by members

8 of the Stapleton Crew enhance status within the group. 3

9 This testimony was reinforced by evidence that the Crew

10 encouraged and even glorified violence: Members regularly

3 Wilson contends that Jacobus lacked first-hand knowledge of facts sufficient to provide a rational basis for his testimony on the status effects of violent acts by members of the Stapleton Crew, and that this testimony was therefore admitted in violation of Federal Rule of Evidence 701. See United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (“The rational-basis requirement [of F.R.E. 701] ‘is the familiar requirement of first-hand knowledge or observation.’” (quoting Fed. R. Evid. 701 Advisory Comm. Note on 1972 Proposed Rules)). We disagree. Jacobus testified generally to what an act of violence would do for a member’s status, not directly to what Wilson knew or believed. Cf. United States v. Kaplan, 490 F.3d 110 , 117-19 (2d Cir. 2007); United States v. Garcia, 291 F.3d 127, 140- 41 (2d Cir. 2002) . There is ample evidence of Jacobus’s many connections to the Stapleton Crew and relationships with its members. This foundational evidence supported a conclusion that Jacobus had sufficient knowledge about the Crew’s culture, hierarchy, and organization to testify to the status effects of violence. Admission of his testimony was not an abuse of discretion. Cf. Kaplan, 490 F.3d at 117-19.

24 1 organized and committed violent crimes and retaliatory acts

2 of violence; the Crew made available firearms for such

3 purposes; photographs and rap lyrics reflect group pride in

4 its violent character.

5 Second, there is evidence that the murders were

6 contemplated and implicitly authorized by the group’s

7 leaders. Green directed Wilson to commit the robbery, and

8 it was decided that Wilson would carry the firearm, which

9 was provided by the Crew. At the planning meeting in

10 Green’s apartment, which included the group’s leaders, it

11 was acknowledged that Wilson “might have to use” the gun

12 with which they were going to commit the robbery--i.e., that

13 Wilson might have to “shoot” one or more of the victims, and

14 that one or another of the victims “might be a cop or he may

15 be trying to rob” Wilson or Jacobus. When Wilson was then

16 “asked whether he wanted to go ahead with” the robbery, he

17 deferred to Green and Whitten--two of the group’s leaders--

18 and it was decided that the robbery would proceed

19 notwithstanding the risks.

20 Third, Wilson’s actions after the murders suggest that

21 he was proud of the crimes and wanted others to be made

22 aware of them. When asked immediately after the murders why

25 1 he had killed the officers, Wilson responded with bravado,

2 “I don’t give a fuck about nobody”; and when Wilson was

3 returning to his apartment after the murders, he called out

4 to a police car, “[W]hat, are you looking for more

5 trouble?” 4 Furthermore, Wilson reported back to one of the

6 Crew’s leaders--Green--following the murders. Finally,

7 given the modest expected yield from the robbery (the gun

8 transaction totaled $1,200 5 ), the jury may rationally have

9 concluded that Wilson had an additional, non-pecuniary

10 motive for committing such a crime.

11 Wilson argues that, in any event, maintenance or

12 increment in gang “status” is not a purpose that falls

13 within the category of qualifying statutory motives. The

14 argument is premised on a distinction between “status,”

15 which Jacobus testified would be increased by violence, and

16 “position,” the word used in the VICAR statute. That

17 distinction is not so clear as Wilson makes it out to be; in

4 Though testimony differed as to what was said, the jury was free to credit this version, which was reported by one of the police officers present, and we are bound to respect that conclusion. See Wexler, 522 F.3d at 206-07. 5 Some testimony suggests that the amount was $1,300, but the jury was free to credit testimony as to the lower amount, and we are bound to construe all evidence in favor of the Government. See Wexler, 522 F.3d at 206-07. 26 1 ordinary usage the words are synonyms, and in the dictionary

2 they reference each other. One definition of “status” is

3 “position or rank in relation to others.” Webster’s Third

4 New International Dictionary Unabridged 2230 (Philip B. Gove

5 ed., Merriam-Webster 3d ed. 1986) (1961). And “position” in

6 turn, means “social or official rank or status.” Id. at

7 1769. “Position” should not be construed so narrowly as to

8 distinguish it from “status.” It does not matter, for

9 example, that the Stapleton Crew did not promote by grade in

10 a ramified hierarchy.

11 Wilson contends that, on this record, status was at

12 most a secondary or incidental motive for his crimes, and

13 that the evidence therefore does not sustain a conviction

14 under the VICAR statute. See, e.g., United States v. Thai,

15 29 F.3d 785, 817-19 (2d Cir. 1994) (insufficient evidence to

16 sustain VICAR conviction because the only evidence of motive

17 suggested defendant had acted for pecuniary gain); United

18 States v. Jones, 291 F. Supp. 2d 78, 87-89 (D. Conn. 2003)

19 (insufficient evidence to sustain conviction where there was

20 little evidence that act was motivated by anything other

21 than personal animus). Wilson argues that in fact the

22 primary motive was self-defense. However, the only evidence

27 1 bearing upon a self-defense theory is testimony by Jacobus

2 that, when he and Wilson returned to the detectives’ car

3 following the murders, Wilson found a gun under the driver’s

4 seat, and said “[t]hey was going to get us before we got

5 them.” This statement says nothing about Wilson’s belief or

6 motivation at any point prior to the moment he found the

7 gun, after the deed was already done. In any event, the

8 evidence discussed supports a jury finding that incremental

9 status was one of Wilson’s primary motives; that is enough.

10 See United States v. Farmer, 583 F.3d 131, 143-44 (2d Cir.

11 2009) (“The government was not required to prove that

12 [defendant’s] sole or principal motive was maintaining or

13 increasing his position, so long as it proved that

14 enhancement of status was among his purposes.” (internal

15 quotation marks and citation omitted)).

16 Finally, Wilson argues that there is no evidence the

17 murders increased Wilson’s status in fact. This argument is

18 foreclosed by Farmer, 583 F.3d at 142 (“[T]he question is

19 not whether [defendant’s] position . . . was advanced in

20 fact by the murder he committed, but whether his purpose in

21 committing the murder was to benefit his position.”).

22 Accordingly, we hold that sufficient evidence supported

28 1 Wilson’s convictions for murder in aid of racketeering in

2 violation of 18 U.S.C. § 1959, Counts One and Two of the

3 indictment.

5 II

6 Soon after the murders, Wilson returned to the

7 Stapleton apartment of Green. According to the testimony of

8 Diaz --who was in the apartment with Green--Wilson announced

9 that he had “popped” the two victims. Green did not

10 testify; but he was the subject of a Brady letter, according

11 to which Green “informed the government that Wilson actually

12 said that he killed the victims because ‘they were going to

13 rob us.’” See generally Brady v. Maryland, 373 U.S. 83, 87-

14 88 (1963). Green’s § 3500 material indicated that Wilson

15 also said the victims were pulling out their weapons. See

16 United States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009)

17 (noting that 18 U.S.C. § 3500 “codif[ies] the government’s

18 disclosure obligations during criminal proceedings”).

19 For the first time, on recross-examination, the defense

20 asked Diaz if he had heard Wilson make the statements

21 attributed to him in the Brady letter and other related

22 statements. The court sustained the prosecution’s repeated

29 1 objections that the questions were outside the scope of

2 redirect. The relevant passage in the government’s direct-

3 examination of Diaz is as follows:

4 PROSECUTION: What did [Wilson] say?

5 DIAZ: I don’t remember his exact words, but he 6 said something to the [e]ffect that he 7 popped him. 8 9 PROSECUTION: The word “pop” you used, is that a word 10 that the defendant used? 11 12 DIAZ: Yes. 13 14 Wilson concedes that “[d]efense counsel did not cross-

15 examine Diaz about what Wilson said on his return to Green’s

16 apartment.” On this topic, cross-examination touched only

17 on whether Diaz had a clear memory of Wilson’s declaration

18 that he had “popped” the victims. On redirect, the

19 government therefore rehabilitated Diaz’s memory of Wilson’s

20 admission:

21 PROSECUTION: When the defendant said “I popped them,” 22 what did you understand him to mean? 23 24 DIAZ: That he shot them. 25 26 PROSECUTION: Shot who?

27 DIAZ: The victims.

28 PROSECUTION: Human beings? People?

29 DIAZ: Yes.

30 1 The government concluded Diaz’s redirect with the following

2 line of questioning:

3 PROSECUTION: Do you have any doubt, any doubt at all, 4 that when you got back to Omar Green’s 5 house, that [Wilson] came into the house 6 and said I popped them? Do you have any 7 doubt about that? 8 9 DEFENSE: Objection to the leading form of the 10 question, Your Honor. 11 12 COURT: You may answer. 13 14 PROSECUTION: Do you have any doubt about that, sir?

15 DIAZ: No.

16 On recross, defense counsel turned to Wilson’s admission

17 that he had “popped” the victims:

18 DEFENSE: [Wilson] said more than popped him, isn’t 19 that correct? 20 21 DIAZ: Yes. 22 23 DEFENSE: He said something like they pulled out, 24 did you hear that? 25 26 PROSECUTION: Outside the scope, Your Honor. 27 Objection. 28 29 COURT: Sustained. 30 31 DEFENSE: He said something like, they were trying 32 to rob us? 33 34 PROSECUTION: Objection. 35 36 COURT: Sustained. 37

31 1 DEFENSE: Do you remember hearing anything like 2 that? 3 4 PROSECUTION: Objection, Judge. Outside the scope. 5 6 COURT: Sustained. 7 8 DEFENSE: There were more words than popped him, 9 isn’t that correct, sir? 10 11 PROSECUTION: Objection. The same objection. 12 13 COURT: You may answer. 14 15 DIAZ: Yes. 16 17 DEFENSE: You don’t remember those other words, 18 isn’t that correct, sir? 19 20 PROSECUTION: Objection. That’s not what he said. 21 22 COURT: Sustained. 23 24 DEFENSE: While all this was going on, you were a 25 nervous wreck, isn’t that correct, sir? 26 27 DIAZ: Yes. 28 29 DEFENSE: Thank you. 30 31 32 Wilson contends that this curtailment of Diaz’s recross

33 was error, that Diaz’s answers might have indicated that

34 Wilson acted out of a perceived need for self-preservation,

35 and that reasonable doubt thereby would have been raised

36 regarding Wilson’s “pecuniary” and “position” motives for

37 the murders.

32 1 “Cross-examination should be limited to the subject

2 matter of the direct examination and matters affecting the

3 credibility of the witness. The court may, in the exercise

4 of discretion, permit inquiry into additional matters as if

5 on direct examination.” Fed. R. Evid. 611(b). “The scope

6 and extent of cross-examination are generally within the

7 sound discretion of the trial court, and the decision to

8 restrict cross-examination will not be reversed absent an

9 abuse of discretion.” United States v. Rosa, 11 F.3d 315,

10 335 (2d Cir. 1993). In the exercise of discretion, a

11 district court should consider the need to “ascertain[ the]

12 truth,” “avoid needless consumption of time,” and “protect

13 witnesses from harassment or undue embarrassment.” Fed. R.

14 Evid. 611(a); see also Delaware v. Van Arsdall, 475 U.S.

15 673, 679 (1986) (explaining that the district court has

16 “wide latitude . . . to impose reasonable limits on . . .

17 cross-examination based on concerns about, among other

18 things, . . . interrogation that is repetitive or only

19 marginally relevant”). A good faith basis for proposed

20 questions is relevant to these considerations. On the facts

21 of this case, we detect no abuse of discretion in the

22 district court’s control of Diaz’s recross-examination.

33 1 The precluded questions were outside the scope of

2 Diaz’s redirect-examination. As the transcript excerpts

3 show, the defense effort on recross was to place Wilson’s

4 admission in the context of other and additional statements,

5 whereas the government had returned to the subject on

6 redirect for the sole purpose of countering the defense’s

7 attack on the clarity of Diaz’s memory concerning that one

8 admission. Even though the precluded questions were outside

9 the scope of redirect, the district court retained

10 discretion to permit them. But Wilson failed to adduce his

11 good faith basis for the precluded questions or explain the

12 significance of Diaz’s potential answers, and did not

13 request a sidebar conference to argue any basis upon which

14 the district court should have permitted this line of

15 questioning. See Jones v. Berry, 880 F.2d 670, 673 (2d Cir.

16 1989) (“[A] party whose prospective questioning is

17 threatened with curtailment should make all reasonable

18 efforts to alert the court to the relevance and importance

19 of the proposed questions.”).

20 No doubt, there was a good faith basis for Wilson’s

21 precluded questions; but the trial court was not made aware

22 of it. The Brady disclosure (which, along with Green’s §

34 1 3500 material, furnished the good faith basis) was copied to

2 and discussed with the district court on August 21, 2006.

3 However, more than three months intervened before Diaz’s

4 December 4, 2006 recross-examination. Green himself did not

5 testify, and the district court had no occasion to review

6 the Brady disclosure (or Green’s § 3500 material) in

7 preparation for testimony by Diaz. There is no reason to

8 believe that the good faith basis for the precluded

9 questions would have been fresh in the district court’s

10 mind, and there is no indication of any defense effort to

11 refresh.

12 Moreover, there is no reason to believe that the

13 district court would have understood the significance of

14 Diaz’s potential answers. Defense counsel could have asked

15 the precluded questions on Diaz’s cross-examination, and the

16 judge could assume that the questions would have been asked

17 then if they were of great import. Furthermore, the

18 precluded questions represented a wholly new departure.

19 Throughout the guilt phase, Wilson’s theory of the case was

20 that Jacobus pulled the trigger, not Wilson, whereas the

21 precluded questions were based on the idea that Wilson

22 pulled the trigger, albeit out of a perceived need for self-

35 1 preservation.

2 Accordingly, we detect no abuse of discretion in the

3 district court’s control of Diaz’s recross-examination, and

4 we therefore find no error.

5 As we find no error in the guilt phase, we affirm

6 Wilson’s convictions.

8 III

9 The district court declined to include in its written

10 jury questionnaire the following question, proposed by

11 Wilson:

12 If Ronell Wilson is found guilty of murder for the 13 intentional killings of Detectives Nemorin and 14 Andrews, without any legal excuse or 15 justification, the defense might present evidence 16 at a sentencing phase of the trial about Ronell 17 Wilson’s childhood and background in support of a 18 sentence other than the death penalty. How 19 relevant is information like that to you when 20 making a decision about punishment for murder?

21 Wilson requested similar questions during oral voir dire,

22 but the district court declined to pursue the subject

23 uniformly, or at the level of particularity Wilson sought.

24 (A counterpart to this issue is Wilson’s Eighth Amendment

36 1 argument--rejected in the margin 6 --that the prosecution’s

2 penalty phase summations improperly urged the jury to give

6 The Eighth Amendment forbids a capital sentencing regime in which the jury is “precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 247-48 (2007) (internal quotation marks omitted). According to Wilson, the prosecution’s summations advised the jury that only defenses to the crime and the aggravating factors could be considered mitigating evidence, that a death sentence should be imposed irrespective of the mitigation because a sentence of life without parole was appropriate for certain less serious crimes, and that Wilson’s merciless conduct rendered him categorically ineligible for mercy. On review, we ask whether there is a “reasonable likelihood that the jurors believed themselves to be precluded from considering [the] mitigating evidence.” United States v. Fell, 531 F.3d 197, 223 (2d Cir. 2008) (citing Ayers v. Belmontes, 549 U.S. 7, 24 (2006)).

We see no such likelihood. First, the government’s summations deprecated the weight of the mitigating evidence, explained why a life sentence is insufficient, and argued that the victim impact evidence militated against mercy; but the government’s summations did not urge the jury to ignore mitigation and repeatedly instructed the jury to consider every mitigating factor. Second, the final jury charge in the penalty phase instructed the jurors to consider the mitigating evidence broadly. Third, the jury heard several days of testimony concerning mitigation, and the prosecution extensively argued the weight of that evidence: “It is improbable the jurors believed that the parties were engaging in an exercise in futility” all that time. Ayers, 549 U.S. at 16-17; see also Brown v. Payton, 544 U.S. 133, 144 (2005); Boyde v. California, 494 U.S. 370, 383-84 (1990); Fell, 531 F.3d at 222-23. Fourth, the verdict form evidences the jury’s active consideration of the mitigating evidence. 37 1 little or no weight to Wilson’s mitigation evidence.)

2 Wilson assigns constitutional error to these refusals,

3 argues in addition that the propounding of specific

4 questions requested by the prosecution conferred unfair

5 advantage in identifying prospective jurors, and requests

6 that we vacate his death sentence and remand for re-

7 sentencing. 7

8 When a district court chooses to examine veniremen

9 itself, it “may ask” questions submitted by counsel “if [the

10 court] considers [the questions] proper.” Fed. R. Crim. P.

11 24(a)(2)(B). Refusal is reviewed for abuse of discretion.

12 United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002).

13 That discretion, however, is subject to constitutional

14 limits. United States v. Kyles, 40 F.3d 519, 524 (2d Cir.

15 1994). The trial court must ask a proposed voir dire

16 question if refusal would “render the defendant’s trial

17 fundamentally unfair.” Mu’Min v. Virginia, 500 U.S. 415,

18 425-26 (1991); see also Morgan v. Illinois, 504 U.S. 719,

7 Even though the same jury sat throughout, the constitutional error Wilson alleges had bearing only on the sentencing phase, so the proper remedy would be vacatur of the death sentence. Morgan v. Illinois, 504 U.S. 719, 739 (1992). 38 1 730 & n.5 (1992). 8 Fundamental unfairness arises if voir

2 dire is not “adequate . . . to identify unqualified jurors.”

3 Morgan, 504 U.S. at 729. In capital cases, a juror is

4 constitutionally unqualified if he has “views on capital

5 punishment” that would “prevent or substantially impair the

6 performance of his duties as a juror in accordance with his

7 instructions and his oath.” Id. at 728 (internal quotation

8 marks omitted). That category includes “those prospective

9 jurors who would always impose death following conviction.”

10 Id. at 733-34. Thus, in Morgan, sole reliance on general

11 inquiries--as to willingness to “follow [the court’s]

12 instructions on the law even though you may not agree” and

13 ability to “be fair and impartial”--did not afford defense

14 counsel an opportunity to identify and challenge for cause

15 those jurors who would automatically impose the death

16 penalty. 9 Id. at 723-25 (internal quotation marks omitted).

8 Though these cases interpret the Fourteenth Amendment, the Supreme Court has indicated that the relevant protections in state and federal court are coextensive. See Morgan, 504 U.S. at 726-27; see also United States v. Tipton, 90 F.3d 861, 878-79 (4th Cir. 1996) (applying Morgan to a federal capital trial); United States v. McCullah, 76 F.3d 1087, 1113-14 (10th Cir. 1996) (same). 9 Defendant-appellant in Morgan had requested in the trial court the following voir dire question: “If you found [defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts are?” 504 U.S. 39 1 Voir dire in this case proceeded in two stages. First,

2 veniremen completed a 54-page questionnaire that included,

3 inter alia, questions about background, relevant media

4 exposure, opinions and biases, and ability to follow the law

5 and discharge a juror’s duty. One question (proposed by the

6 government) asked whether “the fact that the victims were

7 killed while working undercover and posing as individuals

8 engaging in illegal conduct [would] affect your ability to

9 fairly and impartially evaluate the evidence in this case.”

10 Another asked whether

11 you hold any beliefs or opinions that would affect 12 your ability to evaluate . . . testimony [given 13 pursuant to a cooperation agreement with the 14 government] from . . . witnesses [who have lengthy 15 histories of narcotics trafficking and violent 16 criminal conduct and have pled guilty to some of 17 the most serious crimes in the indictment].

18 With respect to capital punishment, the questionnaire

19 advised:

20 Should a “penalty phase” be necessary, the 21 question for the jury to decide is whether the 22 defendant should be sentenced to death or to life 23 imprisonment without the possibility of release. 24 The jury makes this decision by weighing a variety 25 of factors.

26 The court proceeded to ask the following questions:

at 723 (internal quotation marks omitted). 40 1 Do you have any personal beliefs about what the 2 law is or should be regarding the death penalty 3 that would affect your ability to follow the 4 Court’s legal instructions?

5 Would knowing that the defendant faced the death 6 penalty as a possible punishment make you 7 reluctant to impose a sentence of life without the 8 possibility of release even if you thought the 9 circumstances of the case warranted a non-death 10 sentence?

11 Second, the district court orally examined prospective

12 jurors in person. At the outset of oral voir dire, the

13 district court read a statement to the venire:

14 The indictment charges, among other things, that 15 in March of 2003, the defendant murdered two 16 undercover police officers, Detectives James 17 Nemorin and Rodney Andrews, who were attempting to 18 purchase firearms from Wilson and other members of 19 the Stapleton Crew.

20 The court emphasized, as it had in the jury questionnaire:

21 Should a penalty phase be necessary, the question 22 for the jury to decide is whether the defendant 23 should be sentenced to death or to life 24 imprisonment without the possibility of release. 25 The jury makes this decision by weighing a variety 26 of factors.

27 Thereafter, the district court started questioning the

28 individual veniremen, outside the presence of the other

29 prospective jurors. Counsel was not permitted to ask

30 questions, though both proffered inquiries for the court to

31 make.

41 1 With two exceptions, each member of the petit jury

2 whose voir dire Wilson challenges 10 was asked some variation

3 of the following question concerning evidence of character

4 and background: “[W]ould you be willing to consider

5 evidence about the convicted individual’s character and

6 background of this case and listen to argument from the

7 defense that the death penalty should not be imposed in this

8 case?” And each challenged member of the petit jury (with

9 one exception) was asked some variation of the following

10 life-qualifying question: “Would you be able to meaningfully

11 consider life in prison instead of the death penalty as the

12 correct punishment for someone who commits a murder?” 11

13 What was done was constitutionally sufficient, and the

14 district court’s refusal of Wilson’s proffered questions was

15 not error. Each juror was informed that (in the event of

16 conviction) the jury would determine the sentence based on

17 various factors, and most of them were informed that those

18 factors would include Wilson’s character and background.

19 And each juror confirmed, by questionnaire and in person,

10 Wilson concedes that the voir dire of three jurors was sufficient. 11 Juror 156 answered this question in substance in response to a different inquiry. 42 1 that he could meaningfully consider life in prison as a

2 possible sentence. Morgan requires nothing more. See 504

3 U.S. at 729-39; see also United States v. Tipton, 90 F.3d

4 861, 878-79 (4th Cir. 1996) (finding Morgan satisfied where

5 district court asked questions sufficient to determine

6 whether any venireman would automatically vote for death).

7 “The district court was not required . . . to allow inquiry

8 into each juror’s views as to specific mitigating factors as

9 long as the voir dire was adequate to detect those in the

10 venire who would automatically vote for the death penalty.”

11 United States v. McCullah, 76 F.3d 1087, 1114 (10th Cir.

12 1996); see also id. at 1113-14.

13 Wilson argues that there is a great disparity between

14 the case-specific questioning allowed the prosecution and

15 what Wilson was allowed. However, Morgan demands adequacy,

16 not parity. It requires only that defendants be afforded an

17 opportunity to identify constitutionally biased jurors.

18 In any event, the record does not reflect the disparity

19 Wilson alleges. He cites four alleged points of error: [i]

20 the district court asked whether juror impartiality would be

21 affected by the fact that the victims were undercover police

22 officers posing as individuals engaged in illegal conduct;

43 1 [ii] the court asked whether jurors held any beliefs or

2 opinions affecting their ability to evaluate testimony from

3 cooperating witnesses; [iii] the court informed the venire

4 that the murders were multiple; and [iv] the court informed

5 the venire that the victims were police officers.

6 Wilson argues that the two questions afforded the

7 prosecution more case-specific information than the defense

8 was allowed, and that the reference to two victims, both

9 police detectives, highlighted two of the expected

10 aggravating factors, making each subsequent death-penalty

11 question more particularized and thus more helpful to the

12 government. Viewed in the context of a lengthy

13 questionnaire and extensive oral examination, the two cited

14 questions are hardly sufficient to render the voir dire

15 meaningfully imbalanced, especially since the answers would

16 have been helpful to the defense as well as the prosecution.

17 As to disclosing that there were two victims, both of them

18 police officers, those facts were also built into questions

19 that the defense affirmatively sought, and cannot be deemed

20 prejudicial.

21 The district court did not abuse its discretion in

22 rejecting Wilson’s proposed written and oral voir dire

44 1 questions.

3 IV

4 During the penalty phase, one of the four aggravating

5 factors that the prosecution undertook to prove was victim

6 impact. The jury unanimously found that the government

7 proved beyond a reasonable doubt that “[d]efendant Ronell

8 Wilson caused loss, injury, and harm to the victims and the

9 victims’ families.”

10 To prove this aggravating factor, the prosecution

11 called ten witnesses: seven family members of the murdered

12 detectives (including in-laws); and three police officers

13 who testified that the murders caused them anguish and had a

14 profound influence on other officers who worked with

15 Detectives Andrews and Nemorin, and who admired them

16 personally and professionally.

17 Wilson challenges the victim impact evidence on three

18 grounds: [i] the testimony of non-family members (i.e., the

19 three police officers) was outside the constitutional and

20 statutory scope of admissible victim impact evidence in a

45 1 capital case; 12 [ii] the testimony in the aggregate was

2 prejudicially emotional and the court failed to give proper

3 jury instructions to counteract this; and [iii] the jury

4 improperly inferred and took into account the witnesses’

5 views on sentencing. We hold that all of the testimony was

6 correctly admitted and that the jury instructions were

7 proper.

9 A

10 The Constitution. The Eighth Amendment does not erect

11 a per se bar to the admission of victim impact evidence in a

12 death penalty case. Payne v. Tennessee, 501 U.S. 808, 827

13 (1991). Evidence concerning the personal characteristics of

14 a victim and the effect of a murder on survivors “[i]s

15 simply another form or method of informing the sentencing

16 authority about the specific harm caused” by the defendant’s

17 crime in a capital case. Id. at 825 (evidence of harm is

18 “evidence of a general type long considered by sentencing

19 authorities”).

12 Wilson’s objections on this point are preserved. After losing his in limine motion that sought to prohibit all non-family testimony, Wilson’s attempts to limit that testimony in specific ways did not amount to concession or waiver. 46 1 At issue in Payne was testimony from a family member of

2 the victims; but while the holding of Payne is therefore

3 expressed in those terms, id. at 827, nothing in the Court’s

4 reasoning suggests that the principle is so limited.

5 Elsewhere in the opinion, the Court states that a fact-

6 finder should be allowed to measure the “specific harm” the

7 defendant caused by committing the murder, id. at 825, a

8 phrase broad enough to embrace the loss felt by friends or

9 co-workers who were close to the victim. The opinion refers

10 repeatedly to the specific harm caused as encompassing loss

11 felt by “community” or “society.” Id. at 822-23, 825; see

12 also id. at 830 (O’Connor, J., concurring).

13 We therefore hold that the Constitution allows evidence

14 from non-family members about their own grief and about the

15 loss felt by other non-family members. Other circuits are

16 in accord. See, e.g., United States v. Bolden, 545 F.3d

17 609, 626 (8th Cir. 2008); United States v. Fields, 516 F.3d

18 923, 946 (10th Cir. 2008); United States v. Barrett, 496

19 F.3d 1079, 1098-99 (10th Cir. 2007); United States v.

20 Nelson, 347 F.3d 701, 712-14 (8th Cir. 2003); United States

21 v. Bernard, 299 F.3d 467, 478 (5th Cir. 2002).

47 1 The FDPA. Wilson also argues that the Federal Death

2 Penalty Act (“FDPA”), 18 U.S.C. § 3591 et seq., limits

3 victim impact evidence to impact on family members. The

4 FDPA governs whether and under what circumstances a sentence

5 of death may be imposed on a defendant, and includes the

6 requirement that the government prove one or more specified

7 aggravating factors beyond a reasonable doubt in order to

8 establish that a defendant is eligible for the death

9 penalty. 18 U.S.C. § 3592(c). The government may also

10 present additional, non-statutory aggravating factors in

11 order to convince the jury that the defendant deserves a

12 death sentence, so long as the government gives notice of

13 which non-statutory factors are to be presented. Id.

14 As the FDPA was enacted after Payne, Congress

15 specifically indicated that victim impact evidence could be

16 included as a non-statutory aggravating factor:

17 The factors for which notice is provided under 18 this subsection may include factors concerning the 19 effect of the offense on the victim and the 20 victim’s family, and may include oral testimony, a 21 victim impact statement that identifies the victim 22 of the offense and the extent and scope of the 23 injury and loss suffered by the victim and the 24 victim’s family, and any other relevant 25 information. 26 27 18 U.S.C. § 3593(a). Wilson argues that this provision

48 1 should be read to limit victim impact evidence to impact on

2 the family alone. We read this passage as language of

3 inclusion, not exclusion. It speaks to what “may [be]

4 include[d].” Id.; see also 18 U.S.C. § 3592(c) (“The jury,

5 or if there is no jury, the court, may consider whether any

6 other aggravating factor for which notice has been given

7 exists.”). The final phrase (“and any other relevant

8 information”), though ambiguous, is read most naturally as a

9 catch-all for what may be deemed “relevant” by the court.

10 Wilson’s reading assumes that unless the victim has family,

11 no one suffered loss other than the victim--so that a

12 distant cousin may testify, but not a fiancé or a partner or

13 a friend or a colleague.

14 Other circuits allow testimony from friends (including

15 friends who are co-workers) regarding the impact of a

16 victim’s death, rejecting challenges similar to Wilson’s.

17 Barrett, 496 F.3d at 1098 (allowing testimony from police

18 colleagues of victim, and rejecting argument that Congress

19 limited victim impact evidence in federal death penalty

20 cases to evidence “concerning the effect of the offense on

21 the victim and the victim’s family” (internal quotation

22 marks and citation omitted)); see also Fields, 516 F.3d at

49 1 946 (allowing victim impact testimony from non-family

2 members); Nelson, 347 F.3d at 712-13 (same); Bernard, 299

3 F.3d at 478 (same).

5 Utilitarian Loss and Societal Harm. Wilson argues in

6 the alternative that, even if non-family impacts are not

7 excluded categorically, the Constitution and FDPA prohibit

8 evidence of utilitarian losses to a workplace or evidence of

9 the victims’ professional accomplishments. The police

10 officers here testified for the most part that: [i] the

11 victims had close relationships with their families; [ii]

12 the victims continue to be mourned by members of the New

13 York Police Department who worked with them, including the

14 witnesses themselves; and [iii] the victims were exemplary,

15 heroic policemen. Wilson argues only the first type of this

16 testimony is admissible. We disagree.

17 Wilson relies on the Tenth Circuit’s decision in

18 Fields, which distinguished between co-workers who were also

19 friends with the victim (who could testify) and “co-workers

20 per se” (who could not). 516 F.3d at 946-47. The court

21 disapproved of co-worker testimony focused on “impersonal

22 utilitarian considerations” such as “the loss of [the

50 1 victim’s] contribution to an office, unit, or team; the kind

2 of loss that businesses insure with ‘key man’ policies.”

3 Id. (holding nonetheless that the testimony at issue in the

4 case came from a co-worker who was a friend and therefore

5 was acceptable). Whether or not we are persuaded by Fields,

6 the victims’ colleagues in this case testified to personal

7 loss, even though it concerned in part loss experienced in a

8 workplace that fosters intense loyalty and camaraderie.

9 They did not adduce the “impersonal utilitarian

10 considerations” that concerned the court in Fields and

11 therefore the colleagues’ testimony was properly admitted.

12 Wilson characterizes as utilitarian in character the

13 testimony describing Detectives Andrews and Nemorin as

14 heroic individuals who loved their work and inspired other

15 policemen. Such testimony is permissible to show a

16 “victim’s uniqueness as an individual human being.” See

17 Payne, 501 U.S. at 823 (internal quotation marks omitted).

18 As the Payne concurrence explains, the prosecution may,

19 consistent with the Constitution, show “all that is special

20 and unique about” the victim, including their “hopes,

21 dreams, and fears.” Id. at 832 (O’Connor, J., concurring).

22 To demonstrate that victims in capital cases were

51 1 special and unique human beings, courts have allowed

2 testimony concerning a victim’s professional life. See,

3 e.g., Barrett, 496 F.3d at 1099 (allowing testimony about

4 “the personal and professional characteristics of [the

5 victim]”); Bernard, 299 F.3d at 479 (allowing testimony that

6 the victims were religious youth ministers in part

7 “[b]ecause religion played a vital role in [their] lives,

8 [and so] it would be impossible to describe their uniqueness

9 as individual human beings without reference to their faith”

10 (internal quotation marks omitted)); United States v.

11 McVeigh, 153 F.3d 1166, 1219 (10th Cir. 1998) (“Numerous

12 witnesses . . . testified about the professional and

13 personal histories of victims who perished in the bombing,

14 including reflections on the admirable qualities of the

15 deceased.”).

16 The police officers’ testimony that dealt with the

17 victims’ outstanding careers, including the excerpted

18 documentary videotape that showed Detective Nemorin

19 discussing his job, was therefore properly admitted.

20 Finally, Wilson contends that the testimony by the

21 police officers went beyond evidence of the “specific harm”

22 caused by the defendant, as allowed in Payne, and invoked a

52 1 generalized community harm. See Fields, 516 F.3d at 947

2 (noting its concern with “replacing a close-in focus on

3 persons closely or immediately connected to the victim with

4 a wide view encompassing generalized notions of social value

5 and loss”). However, no prohibition on such evidence is

6 generally recognized. See, e.g., United States v. Battle,

7 173 F.3d 1343, 1348 (11th Cir. 1999) (allowing testimony

8 about how much more difficult a prison was to administer

9 after the murder of a guard); Bernard, 299 F.3d at 479

10 (allowing testimony related to the victim’s proselytizing

11 due to its relevance to a “‘community’s loss at [the

12 victims’] demise’” (quoting South Carolina v. Gathers, 490

13 U.S. 805, 821 (1989) (O’Connor, J., dissenting), overruled

14 by Payne, 501 U.S. 808)).

15 In any event, once the testimony of the detectives’

16 heroism and professional accomplishments is properly

17 characterized as evidence of their uniqueness as human

18 beings, and therefore admissible, Wilson’s argument on

19 generalized societal harm comes down to a single sentence:

20 One police colleague testified that the murder of Detective

21 Andrews “robbed the City of New York of another layer of

22 security, and, more importantly, took away a father from his

53 1 children.” In that sentence, harm to the City is expressly

2 subordinated to the harm suffered by the victim’s children.

3 Moreover, the reference to societal harm does not appear to

4 go beyond the scope of what is deemed permissible; Payne

5 references harm to society or community, but teaches that

6 the Constitution allows only evidence that describes the

7 “specific harm” caused by the crime. See Payne, 501 U.S. at

8 822, 823, 825; see also id. at 830 (O’Connor, J.,

9 concurring).

10 The victim impact testimony given by the victims’

11 police colleagues was admitted without error.

13 B

14 Due process is violated when victim impact evidence is

15 introduced that “is so unduly prejudicial that it renders

16 the trial fundamentally unfair.” Payne, 501 U.S. at 825.

17 Similarly, the FDPA requires remand if “the sentence of

18 death was imposed under the influence of passion, prejudice,

19 or any other arbitrary factor.” 18 U.S.C. § 3595(c)(2)(A).

20 Wilson argues that his sentence was an arbitrary outcome

21 resulting from unduly prejudicial victim impact testimony.

22 Wilson concedes that he lodged no contemporaneous

54 1 objection to the testimony. We thus review for plain error.

2 See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

3 We conclude there was no error in the admission of the

4 testimony, or in the district court’s refusal to grant a

5 mistrial.

6 The family members of Detectives Andrews and Nemorin

7 delivered emotionally charged testimony. The anguished

8 testimony of Detective Nemorin’s widow described how her

9 children visit the cemetery on Father’s Day and other

10 occasions, write letters to their father, and embrace his

11 headstone. Even such testimony does not appear to exceed

12 (or approach) the margins of what has been allowed. 13 It

13 The victim impact testimony deemed admissible in Payne was delivered by a witness who was mother to one victim and grandmother to a second. She testified that her grandson, a small child at the time of trial, “cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie.” Payne, 501 U.S. at 814-15 (internal quotation marks omitted); see Nelson, 347 F.3d at 713 (no undue prejudice where “[a] fair summation of [the witnesses’] collective testimony is that the witnesses provided emotional and, on occasion, tearful testimony about [the victim] and the impact of her murder on their lives”; this included testimony from the victim’s sister who began testifying but broke down and was unable to continue); United States v. Chanthadara, 230 F.3d 1237, 1274 (10th Cir. 2000) (allowing young children to testify in tears about their murdered mother); McVeigh, 153 F.3d at 1219-22 55 1 cannot be expected that victim impact testimony will be cool

2 and dispassionate. Some deaths cause more suffering than

3 others. The only way to ensure against victim impacts

4 caused by one’s murder of a well-loved human being is to

5 take care to murder no one at all.

6 Courts are reluctant to conclude that the jury was

7 unduly prejudiced by emotional testimony if the defendant

8 presented mitigating factors that the jury found proven and

9 if the trial court instructed the jury about not giving a

10 verdict based on emotion. See McVeigh, 153 F.3d at 1222;

11 see also Nelson, 347 F.3d at 713 (discussing how the

12 presentation of mitigators reduces risk of jury prejudice

13 from victim impact evidence). We presume that juries follow

14 instructions; and a jury diligent and dispassionate enough

15 to find mitigating factors is unlikely to have been

16 overmastered by emotion. See Richardson v. Marsh, 481 U.S.

17 200, 206 (1987) (juries are presumed to follow

18 instructions). Wilson’s jury found 14 mitigating factors,

19 one of them (peer pressure) a factor not even argued by the

20 defense. We therefore go on to consider the instructions to

(allowing intensely emotional testimony from numerous witnesses).

56 1 the jury.

2 Consistent with the statutory prohibition, the jury was

3 charged not to rule on the basis of passion, prejudice, or

4 arbitrary factors. See 18 U.S.C. § 3595(c)(2). Before the

5 final five victim impact witnesses testified, Wilson

6 requested that the court instruct the jury not to be

7 overpowered by emotion. The judge complied and told the

8 jury that:

9 You are about to hear more testimony about the 10 impact of the murders on the victims’ family 11 members and colleagues. The law permits you to 12 hear this evidence. However, by its nature, it is 13 highly emotional. I instruct you not to let this 14 evidence overwhelm your ability to follow the law 15 as I will instruct you before deliberations. You 16 must decide the proper punishment without undue 17 passion or prejudice. 18 19 Before final deliberations, the court charged:

20 In engaging in the weighing process, you must 21 avoid any influence of passion, prejudice, or 22 undue sympathy. Your deliberations should be 23 based upon the evidence you have seen and heard 24 and the law on which I have instructed you. 25 Passion, prejudice, and arbitrary considerations 26 have no role to play in your efforts to reach a 27 just result in this case. 28 29 See 18 U.S.C. § 3595(c)(2). These instructions were

30 sound. 14

14 Wilson challenges the sufficiency of these jury instructions on the ground that the first instruction should have been repeated immediately before deliberations. Since 57 1 We conclude that the testimony was not overly

2 prejudicial and was admitted without error.

4 C

5 “[T]he admission of a victim’s family members’

6 characterizations and opinions about the crime, the

7 defendant, and the appropriate sentence violates the Eighth

8 Amendment.” Payne, 501 U.S. at 830 n.2. Wilson argues that

9 the jurors were improperly influenced because they could

10 infer that the victim impact witnesses wanted execution.

11 However, no evidence as to the witnesses’ preferred sentence

12 was actually admitted. Because there was no evidence to

13 exclude, this claim necessarily fails. 15

the charge given at the end effectively expressed what the defendant wanted conveyed, the district court did not err in refusing the repetition. See generally United States v. Desinor, 525 F.3d 193, 201 (2d Cir. 2008); cf. McVeigh, 153 F.3d at 1222 & n.50 (allowing much more victim impact testimony while only giving a single instruction, similar to the second of the two instructions given here). 15 Wilson’s subsidiary argument--that the court erred by refusing an instruction that the jury ignore the victim impact witnesses’ opinion as to sentencing--fails for the same reason; as the witnesses presented no such views, there was nothing for the jury to disregard. In any event, the court captured the essence of this instruction when it charged the jury that the question whether to sentence the defendant to death or not “is a decision that the law leaves entirely to you.” 58 1 The victim impact evidence presented in this case was

2 properly admitted, was not overly prejudicial, and was

3 considered in the light of jury instructions that were

4 properly framed.

6 V

7 Shabucalik Geralds, a gang associate of Wilson and a

8 former member of the Bloods, testified for the prosecution

9 about the Bloods (one of Wilson’s affiliations) and about an

10 admission made by Wilson when both men were confined in the

11 same prison unit. Wilson argues that Geralds was a

12 government agent at the time Wilson confided to him that

13 his, Wilson’s, efforts on behalf of the Bloods entitled him

14 to senior status in the gang, and hence that the testimony

15 was inadmissible under the Supreme Court’s decision in

16 Massiah v. United States, 377 U.S. 201 (1964). (Wilson’s

17 contention that Geralds and another witness gave testimony

18 about the Bloods that was inadmissible is rejected in the

19 margin. 16 )

16 Wilson also challenges Geralds’s competence to testify about the Bloods. Geralds had been a member of the Bloods for a short time, long in the past; however, much of his testimony was explicitly based on personal observation, and the rest could be readily inferred to have been learned 59 1 Wilson had met Geralds through fellow Bloods members

2 Green and Whitten. When Wilson encountered Geralds during

3 Wilson’s pre-trial detention, Geralds was subject to a

4 cooperation agreement in another case. In their first

5 conversation in prison, Geralds testified, Geralds mentioned

6 that a high-ranking Blood known as the “Original Gangster

7 Staten Island” (or “OG SI”) was in the same prison. Wilson

8 expressed the view that this OG SI was a government

9 informant, and added with a smile that Wilson himself should

through personal observation during his long auxiliary affiliation with the Bloods after his membership lapsed. See United States v. Tocco, 135 F.3d 116, 128 (2d Cir. 1998) (evidence should not be excluded due to a witness’s lack of personal knowledge unless a court finds that no “reasonable trier of fact could believe the witness had personal knowledge” (internal quotation marks omitted)).

Wilson also objected to some of the Bloods-related testimony elicited on cross-examination of defense expert Donald Romine, a former prison administrator. Romine testified on direct-examination that the prison system was capable of preventing Wilson from harming others. Romine was cross-examined as to whether members of the Bloods would be motivated to commit acts of violence in prison in order to raise their status. Romine was competent to testify about the nature of that threat, based on his long administrative experience at several prisons and in the Bureau of Prisons--experience that included examining prisoners’ records to determine their threat level.

The district court did not abuse its discretion in allowing Geralds’s and Romine’s testimony regarding the Bloods. See United States v. Kaplan, 490 F.3d 110, 117 (2d Cir. 2007). 60 1 be the OG SI because he had put in sufficient “work.”

2 Geralds clarified for the jury that “work” meant violence,

3 and that killing police officers would constitute this kind

4 of work. Geralds also testified that in later

5 conversations, Wilson enlisted Geralds’s help in finding a

6 woman who would bear his child, and in checking out the gang

7 status of a fellow inmate.

8 Wilson objected on the ground that Geralds was acting

9 as a government agent when he elicited these admissions, and

10 that admission of Geralds’s testimony regarding his prison

11 conversations with Wilson therefore would violate Wilson’s

12 Sixth Amendment right to counsel. Massiah, 377 U.S. at 205-

13 06 (holding that surreptitious interrogations after

14 defendant’s indictment conducted outside the presence of

15 counsel violated defendant’s right to counsel). A jailhouse

16 informant is deemed to have conducted an interrogation in

17 violation of a defendant’s Sixth Amendment Massiah rights if

18 the informant was acting as a “government agent” who

19 “deliberately elicit[ed]” the incriminating information;

20 information is only excluded if it is obtained as a result

21 of the government’s intentional efforts. United States v.

22 Stevens, 83 F.3d 60, 64 (2d Cir. 1996) (internal quotation

61 1 marks omitted).

2 The district court denied Wilson’s objection after a

3 hearing: “Based on Geralds’ testimony at this hearing, I

4 find that he did not act as a ‘government agent’ when he

5 spoke with Wilson, that he did not ‘deliberately elicit’ any

6 statements from Wilson, and that the Government made no

7 ‘intentional effort’” to obtain statements from Wilson

8 through Geralds. United States v. Wilson, 493 F. Supp. 2d

9 514, 515 (E.D.N.Y. 2007) (quoting Stevens, 83 F.3d at 64).

10 “The standard of review for evaluating the district

11 court’s ruling on a suppression motion is clear error as to

12 the district court’s factual findings, viewing the evidence

13 in the light most favorable to the government, and de novo

14 as to questions of law.” United States v. Rodriguez, 356

15 F.3d 254, 257 (2d Cir. 2004). The sequence of events is as

16 follows, viewing the evidence in the light most favorable to

17 the government: Geralds became a cooperator; in the course

18 of cooperation, before Geralds or the prosecutors knew that

19 Wilson and Geralds were in the same prison unit, Geralds

20 identified Wilson as a gang member known to him, and was

21 questioned by prosecutors about Wilson; Wilson learned that

22 Geralds was housed nearby and initiated contact with him;

62 1 Geralds and Wilson had their conversation about Wilson’s

2 pretension to be the OG SI; Geralds reported this

3 conversation to prosecutors, who instructed Geralds to “not

4 get any information from Mr. Wilson”; in further

5 conversations, Geralds and Wilson discussed topics “from

6 girls to music [to] cars,” and Wilson asked for help in

7 finding a woman and in checking on the gang status of

8 another inmate.

9 Even assuming that Geralds deliberately elicited

10 information from Wilson in the first conversation (about OG

11 SI), Geralds was not a government agent at that time. More

12 than a cooperation agreement is required to make an

13 informant a government agent with regard to a particular

14 defendant. United States v. Birbal, 113 F.3d 342, 346 (2d

15 Cir. 1997). An informant becomes a government agent vis-a-

16 vis a defendant when the informant is “instructed by the

17 police to get information about the particular defendant.”

18 Id. This first prison conversation was initiated by Wilson,

19 and Geralds was under no government influence. True, the

20 prosecutors had showed interest in Wilson in a meeting with

21 Geralds before this conversation--and before Wilson or the

22 prosecutors knew that Geralds would meet Wilson in prison--

63 1 but evincing interest did not amount to an instruction

2 sufficient to make Geralds a government agent. Cf. United

3 States v. Henry, 447 U.S. 264, 270-71 & n.8 (1980) (holding

4 that an informant was a government agent where the

5 investigators were aware that the informant “had access” to

6 the defendant and they “singled out” the defendant).

7 Further assuming arguendo that Geralds became a

8 government agent after he reported the OG SI conversation--

9 when the prosecutors knew that Geralds had access to Wilson

10 and had delivered information about him--Geralds’s testimony

11 still did not violate Wilson’s Sixth Amendment rights.

12 There is no evidence that Geralds did anything in the later

13 conversations with Wilson but follow the government’s

14 instructions to “merely listen[].” See Kuhlmann v. Wilson,

15 477 U.S. 436, 459 (1986).

16 In any event, the only damaging admission to which

17 Geralds testified was Wilson’s claim to OG SI status in the

18 first conversation, at which point Geralds was not a

19 government agent. Geralds’s testimony did not infringe

20 Wilson’s Sixth Amendment right to counsel.

22 VI

64 1 During summation, the prosecution made the following

2 argument to the jury, of which the emphasized passage is

3 challenged:

4 Ronell Wilson up until the very moment that he 5 addressed you last week has done everything he 6 could to escape responsibility for his crimes. He 7 has an absolute right to go to trial, put the 8 government to its burden of proof, to prove he 9 committed these crimes, but he can’t have it both 10 ways. He can’t do that, then say I accept 11 responsibility. [Defense objection overruled.] 12 And [say “]I’m sorry, only after you prove I did 13 it.[”] That’s not acceptance of responsibility. 14 That is a manipulative criminal saying what he has 15 to, saying what he knows you want to hear when 16 it’s in his interest to say it.” 17 18 Def. App. at 868 (emphasis added). Wilson argues that this

19 comment unconstitutionally burdened his Sixth Amendment

20 right to a jury trial. We agree.17

21 Under the “unconstitutional conditions doctrine,” “the

22 government may not do indirectly what it cannot do

23 directly.” United States v. Oliveras, 905 F.2d 623, 627-28

24 & n.7 (2d Cir. 1990) (per curiam). The doctrine keeps the

25 prosecution from “trench[ing] on [a] defendant’s

26 constitutional rights and privileges.” United States v.

17 Wilson also argues that he did in fact offer to plead guilty and that the prosecutors therefore impermissibly misled the jurors into thinking otherwise. Our constitutional holding obviates that dispute. 65 1 Parker, 903 F.2d 91, 98 (2d Cir. 1990). “The prosecution

2 cannot use the defendant’s exercise of specific fundamental

3 constitutional guarantees against him at trial.” Burns v.

4 Gammon, 260 F.3d 892, 896 (8th Cir. 2001). For that reason,

5 a statute cannot disallow the death penalty for those who

6 plead guilty but allow it for those who exercise their right

7 to a trial. United States v. Jackson, 390 U.S. 570, 581

8 (1968). By the same token, a capital-sentencing scheme

9 cannot allow the jury to draw an adverse inference from

10 constitutionally protected conduct such as a request for

11 trial by jury; if the government invites the jury to find

12 the existence of an aggravating factor based on “inferences

13 from conduct that is constitutionally protected . . . for

14 example . . . the request for trial by jury, . . . due

15 process of law would require that the jury’s decision to

16 impose death be set aside.” Zant v. Stephens, 462 U.S. 862,

17 885 (1983).

18 We maintain “a distinction between increasing the

19 severity of a sentence for a defendant’s failure to

20 cooperate and refusing to grant leniency.” United States v.

21 Stratton, 820 F.2d 562, 564 (2d Cir. 1987) (emphasis added).

22 Stratton itself illustrates the one-way ratchet: It is

66 1 permissible for a sentencing court to consider that, “if

2 [the defendant] were willing to assist us to bring the other

3 person to justice, I would find it very easy to be

4 reasonable and lenient,” id. (quoting Mallette v. Scully,

5 752 F.2d 26, 31 (2d Cir. 1984)), but it is unconstitutional

6 to impose consecutive rather than concurrent sentences

7 solely on account of the defendant’s failure to cooperate ,

8 id. Similarly, the federal Sentencing Guidelines treat

9 acceptance of responsibility (usually via a plea) as a basis

10 for leniency, see U.S. Sentencing Guidelines Manual § 3E1.1

11 (2007), but do not provide a harsher sentence for failure to

12 plead .

13 This distinction is the “only rule that recognizes the

14 reality of the criminal justice system while protecting the

15 integrity of that system.” Mallette, 752 F.2d at 30.

16 Sometimes the rule may be “difficult to apply,” or even

17 “somewhat illusory,” Stratton, 820 F.2d at 564 (internal

18 quotation marks omitted); but not in this case. In purpose

19 and effect, the government used Wilson’s demand for trial to

20 evidence lack of remorse and refusal to accept

21 responsibility, characteristics offered to undermine

22 Wilson’s defenses to a sentence of death. The government

67 1 also emphasized Wilson’s lack of remorse as support for the

2 aggravating factor of future dangerousness. See Def. App.

3 at 604 (“What else tells you about the incredible danger

4 that this man poses? . . . The fact that the defendant has

5 absolutely, absolutely no remorse whatsoever for his

6 actions.”). In so doing, the prosecution contravened Zant,

7 462 U.S. at 885, and Jackson, 390 U.S. at 581, and crossed

8 the line drawn in Stratton, 820 F.2d at 564.18

9 “Whether [a sentencing] differential is a reward for

10 cooperation or a penalty for invoking a constitutional right

11 depends on the benchmark–-the ‘normal’ sentence that would

12 be meted out if constitutional rights were not salient.”

13 United States v. Klotz, 943 F.2d 707, 710 (7th Cir. 1991).

14 There is no doubt that the baseline sentence in this case is

15 life without parole, and that a verdict of death is an

18 As to Wilson’s Sixth Amendment right, the dissent argues that Stratton is not germane because the prosecution’s remark (about Wilson exercising his trial right) is located in the discussion of Wilson’s mitigating evidence, and thus did not argue for aggravation on this ground. We disagree. The nature of the penalty phase, structurally, is to determine whether the sentence of life should be raised to a sentence of death. Furthermore, Wilson’s decision to go to trial was used not only to undermine his proposed mitigator (acceptance of responsibility); it also was used to show depravity, which supported an inference of future dangerousness, a proposed aggravator. 68 1 increase in severity. To achieve a death penalty, the

2 government was required to prove the aggravating factors

3 justifying death beyond a reasonable doubt to a unanimous

4 jury. See 18 U.S.C. §§ 3593(c), (e). Wilson’s

5 constitutionally protected decision to go to trial was cited

6 as a reason to sentence him to death, and thus to “enhance”

7 what would otherwise be a life sentence.

8 The government relies heavily on United States v.

9 Mikos, 539 F.3d 706, 718 (7th Cir. 2008), which observes:

10 “If it is proper to take confessions, guilty pleas, and vows

11 to improve one’s life into account when deciding whether a

12 murderer should be put to death--and it is unquestionably

13 proper for the judge or jury to do so--then it must also be

14 proper for the prosecutor to remind the jury when none of

15 these events has occurred.” (internal citation omitted).

16 Mikos then suggests that § 3E1.1 of the Sentencing

17 Guidelines “institutionalize[s]” this practice, and that “in

18 a capital case . . . what happens automatically as a result

19 of § 3E1.1 must be argued for. The two are equally

20 appropriate.” Id. We are unpersuaded. The quoted language

21 is arguably dicta, id. at 719 (“If error occurred in this

22 penalty proceeding, it was harmless.”); it conflicts with

69 1 earlier Seventh Circuit precedent, see United States v.

2 Saunders, 973 F.2d 1354, 1362 (7th Cir. 1992) (“[U]nder the

3 so-called unconstitutional conditions doctrine . . . a

4 defendant may not be subjected to more severe punishment for

5 exercising his or her constitutional right to stand

6 trial.”); and it misconstrues Section 3E1.1 of the

7 Sentencing Guidelines, which does not contemplate increased

8 punishment for a failure to cooperate.19

9 For these reasons, we conclude that the government

10 unconstitutionally burdened Wilson’s Sixth Amendment right

11 to trial.20 Because Wilson’s Fifth Amendment rights were

19 See Mikos, 539 F.3d at 722 (Posner, J., concurring in part and dissenting in part) (“[T]here is a difference between a defendant’s arguing for leniency on the basis of his admitting to having committed the crime with which he is charged and the government’s asking the jury to draw an inference of heinousness from his failure to admit that.”). This distinction reflects the concerns that underlie this Court’s decision in Stratton. 20 The dissent accurately observes that United States v. Fell, 531 F.3d 197 (2d Cir. 2008) “goes largely unaddressed by the majority” in the discussion of Sixth Amendment error. Dissent at 9. The ground of distinction that renders Fell unhelpful here is that Fell’s willingness to plead was put in issue by him, so that the government’s argument was responsive. United States v. Fell, 531 F.3d 197, 221 (2d Cir. 2008) (“We believe the[ government’s] arguments . . . were reasonable responses to Fell’s use of [his offer to plead guilty].”). Here, Wilson did not put in issue his decision to go to trial--he offered no proof (beyond his allocution) of his argument that he accepted 70 1 also unconstitutionally burdened (see Point VII) we consider

2 harmlessness cumulatively (see Point VIII).

4 VII

5 At the start of the sentencing phase, defense counsel

6 advised the court that Wilson wanted to read to the jury a

7 statement of remorse in his own words, without taking the

8 witness stand. On advice of counsel, the statement would

9 omit any “evidentiary” discussion of the crime itself. The

10 government objected on the grounds that the statement was to

11 be unsworn and not subject to cross-examination.

12 Following a series of disputes concerning the

13 permissible scope of Wilson’s allocution,21 Wilson read this

responsibility--and thus the government’s response unconstitutionally burdened that protected decision. 21 Wilson raises two arguments regarding the scope of his allocution. First, he contends that the district court abused its discretion by redacting the following: “It just hurted me to hear that young kid [Detective Andrews’s son, Christian] & his brother Justin will never have they father there to be the father most men refused to be like my own. I would never wish this for nobody because I know how painful it is.” Second, he argues that the prosecution unfairly exploited that ruling by citing to the jury Wilson’s failure to specify the conduct for which he was claiming remorse (i.e., murdering the two detectives).

As to the first argument: Under the FDPA, the district court has the discretion to exclude evidence if the 71 1 statement of remorse to the jury:

2 Good afternoon. I, Ronell Wilson, wrote a 3 statement that I want to read to you, the jury. I 4 want you to understand my deepest sorrow towards 5 the victim[s’] family and friends. I have seen 6 the pain that I have caused the family and friends 7 of the victims and to my own family and friends. 8 I know that the wives and children and loved ones 9 are also victims. 10 11 I would never wish this for anyone because I know 12 how painful it is. So I cannot be remorse[less]22 13 and show no sympathy to these men’s families and 14 friends.

“probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury,” 18 U.S.C. § 3593(c), or if it is so unreliable that it “might render a trial fundamentally unfair,” United States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004) (internal quotation marks omitted). The district court therefore excluded from the allocution, inter alia, “any arguments raised by the [prosecution] (other than their argument that Wilson lacks remorse for murdering Detectives Andrews and Nemorin)” or any reference to “the testimony of any witness, including members of the victims’ families (who were sworn in and subject to cross-examination) . . . .” We review the district court’s decision limiting the scope of Wilson’s allocution for abuse of discretion. Fell, 531 F.3d at 219- 20. Applying that standard, we find no error.

The second argument overlooks the district court’s ruling explicitly allowing Wilson to allocute to his remorse for the specific crime of having murdered Detectives Andrews and Nemorin. Def. App. at 1315 (precluding Wilson from allocuting to “any arguments raised by the [prosecution] (other than their argument that Wilson lacks remorse for murdering Detectives Andrews and Nemorin.”) (emphasis added). Therefore, we find no error here, either. 22 The transcript shows the word as “remorseful,” but this appears to have been a typographical error. 72 1 2 I am not good with words. I wish I could explain 3 myself more better, but I am not truly--but I am 4 truly sorry for the pain I have caused them all. 5 I know that I have caused a great deal of pain to 6 them all and I say it again and again, I am so 7 sorry. 8 9 I am sorry that I caused so much pain throughout 10 my life to others, especially my family and the 11 families of the victims. 12 13 I know that the victims’ families may not accept 14 my apology but I pray that God will give them all 15 the comfort and strength that they need to move on 16 from this tragedy. I have the same prayer for my 17 family also. 18 19 Thank you.

20 Before summations, Wilson consented to an instruction

21 allowing the jury to consider that his statement of remorse

22 was neither sworn nor subject to cross-examination, and that

23 charge was ultimately given to the jury. Wilson’s request

24 for the following no-adverse-inference instruction was

25 denied:

26 [Y]ou may draw no inference whatsoever from the 27 fact that the defendant has chosen not to testify 28 at the sentencing phase of this trial. He is 29 entitled to make that choice and there may be many 30 reasons for him having done so. The fact that he 31 did not testify is, quite simply, to play no part 32 whatsoever in your decision-making at this stage. 33 34 In its summation, the prosecution properly pointed out

35 that Wilson’s allocution was unsworn and uncrossed, but then

73 1 went on to emphasize Wilson’s decision not to testify (the

2 problem wording is emphasized):

3 I want to talk to you a minute about the statement 4 itself. You may have noticed that when he made 5 that statement, Ronell Wilson wasn’t sitting up 6 there on the witness stand under oath, subject to 7 cross-examination. He chose to do it from there 8 (indicating). The path for that witness stand has 9 never been blocked for Mr. Wilson, had that 10 opportunity too. He chose, like many other things 11 in this case, to do it that way. 12 13 You may ask yourselves well, what more would we 14 have if he took that stand, what would be the 15 difference? Well, we might have been able to ask 16 him when did you come up with this? How did you 17 come up with it? Why did you come up with it? 18 Why now? Why now of all times are you sorry? We 19 might be able to test the credibility of the 20 statement, the veracity of it. You might have 21 information that could help you decide if you need 22 to believe it. Ronell Wilson didn’t want that. 23 He wanted to say it from there, [“]take my word 24 for it now after all this, I’m sorry[”]. 25 26 Def. App. at 868 (emphasis added). 27 28 After summation, defense counsel argued that the

29 prosecution had “suggest[ed that] he should have taken the

30 stand and been under oath. . . . My concern is that the

31 jury shouldn’t come away with the misimpression that somehow

32 the defendant has the burden of taking the stand in a

33 capital case and be subjected to cross-examination. That’s

34 just not the defendant’s burden.” The defense requested a

35 curative instruction--to be inserted in the charge that

74 1 explained how to evaluate the statement of remorse--that

2 “it’s not the burden of the defendant to take the stand or

3 to be subjected to cross-examination.” The government

4 maintained that its argument was proper. The court

5 instructed the jurors that, “[w]hen considering the

6 defendant’s statement of January 24, 2007, you may take into

7 account that the defendant made the statement without being

8 sworn in and without subjecting himself to cross-

9 examination.” But the court gave neither of the requested

10 no-adverse-inference instructions.

11 Wilson concedes on appeal that it was within bounds for

12 the prosecution to comment in summation that the allocution

13 was not made under oath and was not subject to cross-

14 examination. Wilson argues, however, that the allocution

15 did not effect a waiver of his Fifth Amendment right and

16 that the prosecution therefore violated that right by

17 telling the jury that “[t]he path to that witness stand has

18 never been blocked for Mr. Wilson.” That approach accords

19 with the view of some courts, which have distinguished

20 between comments that focus on the fact that an allocution

21 was unsworn and uncrossed (deemed permissible) and comments

22 that emphasize the defendant’s failure to testify (deemed

75 1 impermissible). See, e.g., Depew v. Anderson, 311 F.3d 742,

2 750 (6th Cir. 2002); United States v. Martin Aguilar, No.

3 01-1367-cr (E.D.N.Y. Jan. 11, 2007); State v. Skatzes, No.

4 15848, 2003 WL 24196406, at *33 (Oh. App. Jan. 31, 2003).

5 We consider, however, that this permeable line is

6 ineffective for preserving the right; it is altogether too

7 likely that a jury will naturally (and sensibly) equate

8 testimony under oath subject to cross-examination with

9 testimony from the witness stand. We adopt a different

10 approach, premised on waiver, a principle that inheres in

11 the uncontroversial rule that prosecutors can emphasize that

12 an allocution is unsworn and uncrossed. We start with first

13 principles.

14 It is settled that prosecutors may not comment

15 adversely on a defendant’s invocation of his Fifth Amendment

16 privilege not to testify. Griffin v. California, 380 U.S.

17 609, 615 (1965) (“[T]he Fifth Amendment . . . forbids either

18 comment by the prosecution on the accused’s silence or

19 instructions by the court that such silence is evidence of

20 guilt.”). This protection extends to capital sentencing

21 proceedings. See Estelle v. Smith, 451 U.S. 454, 462-63

22 (1981) (“We can discern no basis to distinguish between the

76 1 guilt and penalty phases of respondent’s capital murder

2 trial so far as the protection of the Fifth Amendment

3 privilege is concerned.”). To secure these protections,

4 “the Fifth Amendment requires that a criminal trial judge

5 must give a ‘no-adverse-inference’ jury instruction when

6 requested by a defendant to do so.” Carter v. Kentucky, 450

7 U.S. 288, 300 (1981).

8 “The test governing whether a prosecutor’s statements

9 amount to an improper comment on the accused’s silence in

10 violation of the Fifth Amendment looks at the statements in

11 context and examines whether they naturally and necessarily

12 would be interpreted by the jury as a comment on the

13 defendant’s failure to testify.” United States v. Knoll, 16

14 F.3d 1313, 1323 (2d Cir. 1994) (internal quotation marks

15 omitted). However, a defendant’s conduct can result in a

16 limited waiver of his Fifth Amendment rights against self-

17 incrimination and against the drawing of an adverse

18 inference from his invocation of that right. For example, a

19 defendant who testifies on direct cannot claim Fifth

20 Amendment immunity from cross-examination on matters that

77 1 his own direct testimony put into dispute.23 Brown v.

2 United States, 356 U.S. 148, 155-56 (1958); see also

3 Harrison v. United States, 392 U.S. 219, 222 (1968) (“A

4 defendant who chooses to testify waives his privilege

5 against compulsory self-incrimination with respect to the

6 testimony he gives. . . .”); Lesko v. Lehman, 925 F.2d 1527,

7 1542 (3d Cir. 1991) (explaining that an adverse inference

8 may be drawn “when the defendant has testified as to some

9 facts concerning the crime charged, but has refused to

10 testify as to other facts within his knowledge”). Limited

11 waiver accommodates the need of both sides for “the

12 opportunity to meet fairly the evidence and arguments of one

13 another.” United States v. Robinson, 485 U.S. 25, 28, 33

14 (1988); see also id. at 28, 34 (holding that government’s

23 Wilson analogizes an unsworn, uncrossed allocution to a defendant’s use of his prior out-of-court statement and cites cases that refuse to find waiver in such circumstances. See, e.g., Horne v. Trickey, 895 F.2d 497, 500-01 (8th Cir. 1990); Porter v. Estelle, 709 F.2d 944, 958-59 (5th Cir. 1983). The analogy is inapt, because the type of allocution at issue here, read aloud to the jury by the defendant, is a close analog to testimony and does not sound like silence. Accord Booth v. State, 507 A.2d 1098, 1114 (Md. 1986) (“[A]llocution is more like testimony than silence and for Fifth Amendment purposes is testimonial . . . .”), rev’d on other grounds, Booth v. Maryland, 482 U.S. 496 (1987), overruled by, Payne v. Tennessee, 501 U.S. 808 (1991). 78 1 argument that defendant “could have taken the stand and

2 explained it to you, anything he wanted to,” was permissible

3 because it “fairly respond[ed] to an argument of the

4 defendant”).

5 Applying the principles of limited waiver articulated

6 in these cases, we hold that an unsworn, uncrossed

7 allocution constitutes a limited Fifth Amendment waiver that

8 allows the prosecution to argue for an adverse inference

9 from a defendant’s failure to testify as to that to which he

10 has allocuted. Accord Booth v. State, 507 A.2d 1098, 1114

11 (Md. 1986) (explaining that the defendant’s allocution

12 constitutes, “at a minimum, a waiver of any privilege to

13 avoid comment by the prosecutor on the allocution”), rev’d

14 on other grounds, Booth v. Maryland, 482 U.S. 496 (1987),

15 overruled by, Payne v. Tennessee, 501 U.S. 808 (1991).

16 Thus, Wilson’s allocution constituted a limited waiver of

17 his right under Griffin to be free from adverse comment on

18 his failure to testify and of his right under Carter to a

19 blanket jury instruction prohibiting the jurors from

20 considering his silence.

21 Although Wilson’s allocution effected a limited waiver

22 of the Fifth Amendment rights he enjoyed under Griffin and

79 1 Carter--the waiver was limited. The prosecution attempted

2 conscientiously to focus solely on the subject matter of the

3 allocution and to maintain that context. Even so, there is

4 something expansive about saying “[t]he path to that witness

5 stand has never been blocked for Mr. Wilson,” and a juror

6 could think that “never” is a period that extends back to

7 the guilt phase of the trial and extends as well to the full

8 penalty phase rather than just to the reading of the

9 allocution. In any event, and despite his limited waiver,

10 Wilson remained entitled to a Carter no-adverse-inference

11 instruction upon request.

12 Neither request made by Wilson was wholly free from

13 defect. The charge that Wilson requested pre-summation was

14 a fair statement of law at the time. True, it did not take

15 into account the adverse inference that may be drawn from

16 the expression of remorse by allocution rather than by

17 testimony; but that is doctrine clarified in this opinion.

18 The instruction that Wilson sought post-summation would have

19 barred a permissible adverse inference from Wilson’s failure

20 to express remorse from the witness stand.

21 Nevertheless, the denial of any Carter instruction

22 risked transforming Wilson’s limited waiver into a complete

80 1 one, particularly in view of some wording in the

2 government’s summation. The district court should have

3 issued a variant of the Carter instruction that allowed the

4 jurors to consider Wilson’s failure to testify as to the

5 subject of his allocution, but that forbid them from

6 considering his failure to testify for any other purpose or

7 as to any other part of the defense’s case. 24

8 We next consider whether this error combined with the

9 Sixth Amendment error (see Point VI) requires us to vacate

10 the death sentences.

12 VIII

24 As to the Fifth Amendment error, the dissent contends that our whole argument of harm rests on a mere three words reflecting an unfortunate choice of tense. Dissent at 12-13. A jurisprudence based on word-count would transform this area of law for the worse. In any event, the three words (“has never been”) are embedded in a pair of crucial, emphatic sentences, and drive the predicate: “The path for that witness stand has never been blocked for Mr. Wilson, had that opportunity too. He chose, like many other things in this case, to do it that way.” The dissent questions whether a jury would think (as we think) that “never” is a period that extends back “to the guilt phase . . . and extends as well to the full penalty phase.” Majority at 80. How far back, one wonders, does the dissent consider that “never” extends back? The word never is a humble Anglo-Saxon word, but it is emphatic. See Oxford English Dictionary (Draft rev. ed. June 2010) (“At no time or moment; on no occasion; not ever.”). 81 1 Wilson has adequately preserved both his Sixth and

2 Fifth Amendment claims; harmless error review therefore

3 applies. See Satterwhite v. Texas, 486 U.S. 249, 256

4 (1988). Accordingly, we will vacate the sentences unless

5 the “prosecution can prove beyond a reasonable doubt that a

6 constitutional error did not contribute to the verdict.”

7 Id. Because there are two errors, we consider whether

8 vacatur is required by these errors in the aggregate. See

9 United States v. Rahman, 189 F.3d 88, 145 (2d Cir. 1999)

10 (per curiam) (“[T]he effect of multiple errors in a single

11 trial may cast such doubt on the fairness of the proceedings

12 that a new trial is warranted, even if no single error

13 requires reversal.”).

14 The prosecution cited two constitutional elections made

15 by Wilson--to go to trial and not to testify--as reasons to

16 reject two of Wilson’s offered mitigators: acceptance of

17 responsibility and remorse. And the government then cited

18 the lack of remorse as evidence of an aggravating factor:

19 Wilson’s future dangerousness. See Def. App. at 604 (“What

20 else tells you about the incredible danger that this man

21 poses? . . . The fact that the defendant has absolutely,

22 absolutely no remorse whatsoever for his actions.”); Def.

82 1 App. at 885 (“Now, during jury selection, many of you talked

2 about wanting to believe that someone who committed murder

3 would wake up every day and feel sorry about it, feel some

4 remorse about what he had done. Well, Ronell Wilson is not

5 that person.”).

6 Moreover, the focus on Wilson’s decision to elect a

7 trial had an uncontrollable resonance for the jury. After

8 acknowledging Wilson’s “absolute right to go to trial,” the

9 government suggested that if Wilson had accepted

10 responsibility, he would not have “put the government to its

11 burden of proof, to prove he committed these crimes.” Not

12 incidentally, however, the burden thus placed on the

13 prosecution to mount its case placed a counterpart burden on

14 the jurors to sit through it.

15 These arguments were potent--no juror found that Wilson

16 accepted responsibility or showed remorse, and every juror

17 found that Wilson presented a risk of future dangerousness.

18 On these facts, it is hard to see how the government

19 can prove that these errors were harmless. Indeed, the

20 government’s emphasis on these arguments during summation

21 suggests they were not harmless beyond a reasonable doubt.

22 See Clemons v. Mississippi, 494 U.S. 738, 753 (1990) (the

83 1 prosecution’s reliance on a particular issue bears on

2 whether error regarding that issue is harmless). And the

3 district court acknowledged that lack of remorse and future

4 dangerousness (as evidenced, in part if not in whole, by a

5 lack of acceptance of responsibility) were among the most

6 influential factors that moved the jury to return a verdict

7 of death. That insight accords with experience, intuition,

8 and research.25 The prosecution recognized as much in this

9 case. See Def. App. at 885 (“[D]uring jury selection . . .

10 [m]ost of you talked about acceptance of responsibility and

25 See, e.g., Riggins v. Nevada, 504 U.S. 127, 143 (1992) (Kennedy, J., concurring) (“In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative. . . .”); United States v. Mikos, 539 F.3d 706, 724 (7th Cir. 2008) (Posner, J., concurring in part and dissenting in part) (citing studies and articles supporting this proposition); Michael A. Simons, Born Again on Death Row: Retribution, Remorse, and Religion, 43 Cath. Law 311, 322 (2004) (“The importance of a defendant’s remorse in capital sentencing is well documented. Empirical studies of capital juries have demonstrated that a defendant’s remorse (or lack of remorse) is one of the single most important factors in the jury’s sentencing decision.” (footnote omitted)); Theodore Eisenberg, Stephen P. Garvey, & Martin T. Wells, But was he sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599, 1633 (1998) (“In short, if [South Carolina] jurors believed that the defendant was sorry for what he had done, they tended to sentence him to life imprisonment, not death.”); William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1, 51-53 (1987-88). 84 1 remorse and how important those things would be to you when

2 you decide what punishment would be appropriate.”).

3 The harm might have been mitigated if the jury could

4 have relied on a Carter instruction given in the guilt

5 phase. However, the district court’s instructions in the

6 sentencing phase implied that the no-adverse-inference

7 principle articulated during the guilt phase affirmatively

8 did not apply to the sentencing phase:

9 [I]t is my responsibility to instruct you as to 10 the law that governs this phase. . . . [I]t would 11 be a violation of your oaths as jurors to base 12 your sentencing decisions upon any view of the law 13 other than that given to you in these 14 instructions. 15 16 Some of the legal principles that you must apply 17 in this phase duplicate those you followed in 18 reaching your verdict as to the guilt of this 19 Defendant. Others are different. The 20 instructions I am giving you now are a complete 21 set of instructions about the law applicable to 22 the penalty phase. 23 24 That “complete set of instructions about the law applicable

25 to the penalty phase” omitted any no-adverse-inference

26 principle.

27 In light of these considerations, we cannot say beyond

28 a reasonable doubt that the effects of the two

85 1 constitutional errors were harmless.26 Accordingly, we

2 vacate the death sentences (only) and remand to the district

3 court for a new sentencing phase.

5 IX

6 Applying well-established rules of law, we find that

7 Wilson’s arguments addressed in this Point are meritless.

8 However, in a death penalty case we are statutorily obliged

9 to address all arguments in writing, and we do so here. 18

10 U.S.C. § 3595(c).

12 A

13 Wilson asserts that in the penalty phase summations,

14 the prosecution castigated defense counsel for [i]

15 presenting the mitigating evidence, and [ii] shifting the

16 blame for the murders to the victims and others. We will

17 reverse on the ground of prosecutorial misconduct only if

26 The dissent finds no Sixth Amendment violation, and punts as to whether there was a violation of the Fifth Amendment. We, therefore, do not join issue with the dissent on whether a Fifth Amendment error alone would be harmless. Our analysis concludes only that the two errors-- each reinforcing and amplifying the other on the critical issues of remorse, acceptance of responsibility, and future dangerousness--cannot be found harmless beyond a reasonable doubt. 86 1 that misconduct caused “substantial prejudice by so

2 infecting the trial with unfairness as to make the resulting

3 conviction a denial of due process.” United States v.

4 Elias, 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation

5 marks omitted). “In assessing whether prosecutorial

6 misconduct caused ‘substantial prejudice,’ this Court has

7 adopted a three-part test: the severity of the misconduct,

8 the measures adopted to cure the misconduct, and the

9 certainty of conviction absent the misconduct.” Id. Here,

10 misconduct (if any) could not be deemed severe. See United

11 States v. Newton, 369 F.3d 659, 681 (2d Cir. 2004)

12 (cautioning against “disproportionate emphasis [on] isolated

13 incidents of alleged error”); Elias, 285 F.3d at 191 (“[T]he

14 severity of the misconduct is mitigated if the misconduct is

15 an aberration in an otherwise fair proceeding.”). Moreover,

16 Wilson cannot show substantial prejudice: The jury charge

17 directed broad consideration of mitigation factors, and the

18 challenged comments did not bolster the government’s

19 aggravating factors or undermine Wilson’s mitigating

20 factors.

22 B

87 1 The district court instructed the jury that in order to

2 decide that Wilson constituted a future danger (a non-

3 statutory aggravating factor), it needed to find that “the

4 defendant is likely to commit criminal acts of violence in

5 the future that would constitute a continuing and serious

6 threat to the lives and safety of others.” (emphasis added).

7 Wilson argues that the district court erred in rejecting his

8 proposed jury instruction, which used both “likely” and

9 “probable” to describe future dangerousness.

10 Since the two words are synonymous, the court’s

11 instruction viewed as a whole, see United States v.

12 Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004), did not mislead

13 the jury as to the correct standard, see People v. Randall,

14 711 P.2d 689, 692 (Colo. 1985) (defining “likely” as

15 synonymous with “probable”); see also Fadiga v. Attorney

16 Gen. of the U.S., 488 F.3d 142, 154 (3d Cir. 2007) (“[T]he

17 proper inquiry is whether there is a ‘reasonable likelihood’

18 (or, synonymously, a ‘reasonable probability’). . . .”).

19 Wilson’s own proposed instruction used “likely” and

20 “probable” interchangeably. Wilson’s related argument that

21 the prosecutor’s summation filled a supposed “void” as to

22 the probability standard also fails, because any possible

88 1 prejudice from the prosecutor’s summation was cured by the

2 district court’s proper instruction. See United States v.

3 Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam).

6 Wilson contends that the jury was left to think that

7 failure to deliver a unanimous verdict would allow the court

8 to impose some other, lesser sentence. In support, Wilson

9 cites the district court’s refusal to charge that if the

10 jury deadlocked, Wilson would be sentenced to life without

11 the possibility of parole, coupled with two features of the

12 special voting form, which [i] solicited a unanimous vote as

13 to either death or life without the possibility of parole

14 and [ii] for three of the capital counts, directed a jury

15 that had not reached a unanimous vote on either sentencing

16 option to vote on whether “some other sentence authorized by

17 law shall be imposed.” Wilson posits that a juror who would

18 vote against the death penalty if a life sentence without

19 the possibility of parole was the certain alternative might

20 vote for death to avoid creating a deadlock that would allow

21 Wilson’s future release.

22 A capital defendant is not entitled to a jury

89 1 instruction on the effect of deadlock. Jones v. United

2 States, 527 U.S. 373, 382 (1999) (“[T]he proposed

3 instruction has no bearing on the jury’s role in the

4 sentencing process. Rather, it speaks to what happens in

5 the event that the jury is unable to fulfill its role--when

6 deliberations break down and the jury is unable to produce a

7 unanimous sentence recommendation. . . . We have never

8 suggested, for example, that the Eighth Amendment requires a

9 jury be instructed as to the consequences of a breakdown in

10 the deliberative process.”).

11 To show that “the instructions and decision forms”

12 confused the jury, a defendant must demonstrate that “there

13 is a reasonable likelihood that the jury has applied the

14 challenged instruction in a way that violates the

15 Constitution.” Id. at 389-90 (internal quotation marks

16 omitted). The adverse effect that Wilson posits was

17 foreclosed by repeated instructions that Wilson would be

18 sentenced either to death or to life in prison without the

19 possibility of parole. There is no “reasonable likelihood”

20 that the jury misunderstood the charge: The jury

21 unanimously found proven the mitigating factor that Wilson

22 would stay in prison for the rest of his life if he were not

90 1 sentenced to death. See Boyde v. California, 494 U.S. 370,

2 380 (1990).

4 D

5 In a capital case, a defendant may present to the jury

6 as a mitigating factor the fact that “[a]nother defendant or

7 defendants, equally culpable in the crime, will not be

8 punished by death.” 18 U.S.C. § 3592(a)(4). The district

9 court allowed Wilson to stipulate that other members of the

10 Stapleton Crew who participated in the crime (Whitten,

11 Green, and Bullock) had not been sentenced to death. Wilson

12 wanted the jury to learn that they had been sentenced to a

13 term of years, not life in prison. When that request was

14 denied, Wilson withdrew this mitigating factor.

15 In the sentencing phase of a capital trial, this Court

16 gives deference to the district court’s decision on the

17 admissibility of evidence and will not overrule it so long

18 as it does not abuse its discretion by acting arbitrarily or

19 irrationally. United States v. Pepin, 514 F.3d 193, 202 (2d

20 Cir. 2008).

21 The district court ruled that the stipulation provided

22 all the relevant information required by the statute, and

91 1 that further evidence as to specific prison sentences would

2 have low probative value, would confuse the jury, and would

3 provoke or require trials within the trial concerning the

4 other defendants, their cooperation, and their roles in the

5 murders. That decision was no abuse of discretion; the

6 reasons adduced by the court are either explicitly permitted

7 by the statute or have been accepted by this Court. See 18

8 U.S.C. § 3953(c) (“[I]nformation may be excluded if its

9 probative value is outweighed by the danger of creating

10 unfair prejudice, confusing the issues, or misleading the

11 jury.”); Pepin, 514 F.3d at 206 (ruling that the district

12 court’s decision to exclude evidence of the defendant’s

13 prior crimes for fear that they would confuse the issues at

14 hand by requiring a “diversionary trial within a trial” was

15 not an abuse of discretion).

16 Even assuming that the jury would find the other

17 defendants “equally culpable in the crime”--though it was

18 Wilson who pulled the trigger--the probative value of

19 additional specific sentences was small. The jury had

20 already learned, when two of Wilson’s fellow gang members

21 testified, that both Jacobus (who was with Wilson during the

22 murders) and Diaz (who provided the murder weapon) were

92 1 sentenced to a minimum of 15-25 years imprisonment. The

2 defense attorney in summation pointed out that Jacobus could

3 therefore be out of prison in twelve years.

5 E

6 Wilson argues that United States v. Whitley, 529 F.3d

7 150 (2d Cir. 2008), requires vacatur of his life sentence

8 for Count Six (use of a firearm during a crime of violence,

9 18 U.S.C. § 924(c)(1)(A)(iii)), as well as his life

10 sentences for Counts Seven and Eight (causing death through

11 the use of a firearm, 18 U.S.C. § 924(j)). We hold that any

12 error here is harmless and so we affirm as to this issue.

13 Section 924(c)(1)(A) provides, in relevant part:

14 Except to the extent that a greater minimum 15 sentence is otherwise provided by this subsection 16 or by any other provision of law, any person who, 17 during and in relation to any crime of violence or 18 drug trafficking crime . . . for which the person 19 may be prosecuted . . . uses or carries a firearm, 20 or who, in furtherance of any such crime, possesses 21 a firearm, shall, in addition to the punishment 22 provided for such crime of violence or drug 23 trafficking crime-- 24 25 (iii) if the firearm is discharged, be sentenced to 26 a term of imprisonment of not less than 10 years. 27 28 18 U.S.C. § 924(c)(1)(A)(iii) (emphasis added). The

29 underlying predicate offense need not be a firearms offense:

93 1 “[t]he ‘except’ clause includes minimum sentences for

2 predicate statutory offenses arising from the same criminal

3 transaction or operative set of facts.” United States v.

4 Williams, 558 F.3d 166, 171 (2d Cir. 2009). Section 924(j)

5 provides in turn that “[a] person who, in the course of a

6 violation of subsection (c), causes the death of a person

7 through the use of a firearm, shall . . . if the killing is

8 a murder . . . be punished by death or by imprisonment for

9 any term of years or for life.” 18 U.S.C. § 924(j)

10 (emphasis added).

11 Capital sentences imposed under § 924(j) (Counts Seven

12 and Eight) withstand Whitley. Section 924(j) is triggered

13 by a “violation” of § 924(c). See 18 U.S.C. § 924(j). But

14 § 924(c) has both a substantive component (describing

15 criminal conduct) and a punishment component (setting out

16 the range of permissible sentences for criminals who engage

17 in that criminal conduct). A plain reading of § 924(j),

18 therefore, indicates that a § 924(j) sentence is proper if

19 the defendant violates the substantive component of §

20 924(c); whether that defendant can be properly sentenced

21 under § 924(c) is of no moment. Since Wilson’s § 924(c)

22 conviction stands, so do his sentences under § 924(j). Any

94 1 error specific to Count Six would be harmless, due to the

2 mandatory minimum sentences of life without the possibility

3 of parole already in place. See United States v. Rivera,

4 282 F.3d 74, 78 (2d Cir. 2002). Therefore, we affirm as to

5 this issue.

7 CONCLUSION

8 For the foregoing reasons, we affirm the convictions,

9 vacate the death sentences (only), and remand for a new

10 sentencing phase consistent with this opinion.

95 1 DEBRA ANN LIVINGSTON, Circuit Judge, concurring in part and dissenting in part:

2 The majority concludes that the jury’s five capital sentencing determinations must be set

3 aside on two separate grounds, each involving the government’s response to Ronell Wilson’s claims,

4 in mitigation, that he felt remorse for the murders of Detectives Andrews and Nemorin and that he

5 accepted responsibility for his actions. First, the majority determines that about fifty allegedly errant

6 words in the government’s summation during the penalty phase unconstitutionally burdened

7 Wilson’s Sixth Amendment right to a jury trial. Second, it concludes that Wilson’s Fifth

8 Amendment rights were violated by three additional words in the summation, coupled with the trial

9 court’s failure to give a “no adverse inference” instruction pursuant to Carter v. Kentucky, 450 U.S.

10 288 (1981), albeit one modified for the special circumstances of this case. Because I conclude that

11 there was no Sixth Amendment violation, and that any Fifth Amendment error that took place was

12 indisputably harmless, I respectfully dissent from Parts VI, VII, and VIII of the majority’s opinion,

13 and from the judgment vacating the death sentences. I join in the remainder of the majority’s

14 opinion.

15 I. The Penalty Phase of Wilson’s Trial

16 Proper assessment of the purported errors on which the majority relies requires a fuller

17 presentation of the background facts regarding Wilson’s sentencing hearing. The penalty phase of

18 Ronell Wilson’s trial, conducted before the same jury that convicted him of five capital crimes,

19 lasted for nine days, involved some forty witnesses, and encompassed nearly 1800 pages of trial

20 transcript. The Federal Death Penalty Act required the government to prove at least one threshold

21 culpability factor and one statutory aggravating factor beyond a reasonable doubt before Wilson was

22 eligible for the death penalty. 18 U.S.C. § 3593(c), (e). The government relied on trial evidence

1 1 alone to prove four threshold culpability factors,1 two statutory aggravating factors, and two

2 additional non-statutory aggravating factors.2 The government’s penalty phase evidence thus focused

3 on its remaining non-statutory aggravating factors: that Wilson had caused loss, injury, and harm to

4 the victims and their families; and that he represented a continuing danger to the lives and safety of

5 other persons.

6 The government called ten victim impact witnesses, among them Maryanne Andrews,

7 Detective Andrews’s ex-wife; sixteen year old Christian Andrews, one of Detective Andrews’s two

8 sons; Rose Nemorin, Detective Nemorin’s widow and the mother of his three children; and Detective

9 Nemorin’s sister, Marie-Jean Nemorin. The government introduced an additional seventeen

10 witnesses and many exhibits attesting to Wilson’s violent past, which began early in childhood, as

11 well as his ongoing membership and leadership role in the Bloods and his continuing violent

12 behavior in custody after being arrested for the murders of Detectives Andrews and Nemorin.

13 The Federal Death Penalty Act provides that the defense may, if it wishes, ask the jury during

1 These four factors were: (1) that Wilson “intentionally killed [his] victim[s]”; (2) that he “intentionally inflicted serious bodily injury that resulted in the death of [his] victim[s]”; (3) that he “intentionally participated in an act, 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 one of the participants in the offense, and the victim[s] died as a direct result of the act”; and (4) that he “intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person . . . such that participation in the act constituted a reckless disregard for human life and the victim[s] died as a direct result of the act.” 18 U.S.C. §§ 3951(a)(2)(A)-(D). 2 The two statutory aggravating factors relied on by the government were that Wilson committed the offenses for “pecuniary gain,” 18 U.S.C. § 3592(c)(8), and that he “intentionally killed . . . more than one person in a single criminal episode”, id. § 3592(c)(16). The two non-statutory aggravating factors for which the government relied on trial evidence were: (1) that Wilson murdered two law enforcement officers during the course of their official duties, and that this factor tended to support imposition of the death penalty; and (2) that he faced contemporaneous convictions for other serious acts of violence charged in the counts in the indictment on which he had been convicted.

2 1 the penalty phase to find specific mitigating factors, which must be shown by a preponderance of the

2 evidence. Id. § 3593(c). Wilson identified eighteen such factors for the jury to consider. Wilson

3 presented thirteen witnesses during his defense case, including his mother, Cheryl Wilson; his father,

4 Robert Earl Barnes; and his sister, Depetra Wilson. The defense also introduced numerous exhibits,

5 including dozens of photographs of Wilson as a child and many documents depicting aspects of his

6 troubled upbringing, which was the principal focus of the defense’s mitigation case. Other defense

7 evidence purported to show that Wilson had adjusted to federal prison and would not be a danger

8 in the future if spared the death penalty. Without taking the stand, Wilson himself read a prepared,

9 unsworn statement to the jury that expressed remorse for his crimes.3

10 At the close of the evidence, the jurors were instructed that they were called upon “to make

11 a unique, individualized judgment about the appropriateness of imposing the death penalty.” Tr.

3 The full text of the statement reads as follows:

Good afternoon. I, Ronell Wilson, wrote a statement that I want to read to you, the jury. I want you to understand my deepest sorrow towards the victim’s family and friends. I have seen the pain that I have caused the family and friends of the victims and to my own family and friends. I know that the wives and children and loved ones are also victims. I would never wish this for anyone because I know how painful it is. So I cannot be remorseful and show no sympathy to these men’s family and friends. I am not good with words. I wish I could explain myself more better [sic], but I am not truly – but I am truly sorry for the pain I have caused them all. I know that I have caused a great deal of pain to them all and I say it again and again, I am so sorry. I am sorry that I caused so much pain throughout my life to others, especially my family and the families of the victims. I know that the victims’ families may not accept my apology but I pray that God will give them all the comfort and strength that they need to move on from this tragedy. I have the same prayer for my family also. Thank you.

Tr. 1501.

3 1 1743. Each juror was instructed to weigh the aggravating factors that all jurors had agreed on

2 unanimously against any mitigating factors that the individual juror believed to be present. The

3 jurors were then instructed to determine whether they unanimously concluded that the aggravating

4 factors sufficiently outweighed any mitigating factors or, in the absence of mitigating circumstances,

5 whether the aggravating factors by themselves justified a sentence of death. Id. at 1741. Wilson’s

6 jury was specifically instructed that “no jury is ever required to impose the death penalty” and that

7 the jury may decline to do so “without giving a reason for that decision.” Id. Urged by the court to

8 give “careful and thorough consideration to all the evidence,” id. at 1724, the jurors deliberated for

9 over a day and half.

10 The jury agreed unanimously that the government had established each of its four threshold

11 culpability factors and the six aggravating factors upon which it relied beyond a reasonable doubt.

12 The jurors also agreed unanimously that Wilson had established thirteen mitigating factors by a

13 preponderance of the evidence, and that one additional factor was present which the jury itself

14 identified.4 No juror concluded that Wilson had established, as he attempted, that he felt remorse

4 The jury unanimously found in mitigation that (1) Wilson was twenty years old on the date of the crimes, (2) if not sentenced to death, Wilson would be incarcerated “for the rest of his life in prison without possibility of release or parole,” (3) Wilson’s parents were substance abusers “which resulted in poor parenting, an unstable and chaotic living environment, and separation of his family,” (4) at age twenty-one months, Wilson was hospitalized for over two weeks after contracting bacterial meningitis, (5) Wilson was exposed to drugs and violence as a child and adolescent, (6) Wilson grew up in “poverty and deprivation,” (7) during his childhood, Wilson “was admitted to hospitals on at least four occasions for psychiatric care,” (8) throughout his childhood, Wilson was “prescribed medication by mental health professionals,” (9) Wilson had a history of depression, (10) Wilson performed “well below grade level in school,” (11) Wilson was placed in Special Education classes, (12) Wilson’s poor performance in school was “affected by negative influences in his home life,” and (13) Wilson had a “loving relationship with his family members, who [would] suffer grief and loss if he [were] executed.” Verdict Form at 13- 14, App’x at 1392-93. The jury also unanimously identified as an additional mitigating factor that Wilson “was possibly subject to peer pressure.” Id. at 15. An additional eleven jurors

4 1 for his crimes, that he had accepted responsibility for them, or that he had adjusted well to federal

2 prison. The jury unanimously voted to sentence Wilson to death on each of the five capital counts.

3 II. Wilson’s Sixth Amendment Claim

4 Wilson presented as mitigating factors during the penalty phase that he “had take[n]

5 responsibility for his actions” and that he “ha[d] remorse for the murder[s] of Detectives Andrews

6 and Nemorin.” Verdict Form at 15, App’x at 1394. The principal evidence – indeed, the only

7 evidence – that Wilson offered in support of these mitigating factors was the prepared, unsworn

8 statement that he read to the jury without taking the stand. In it, Wilson claimed to be “truly sorry”

9 for the pain he had caused, and he expressed his “deepest sorrow towards the victim’s [sic] family

10 and friends.” Tr. 1501. The majority concludes that the government unconstitutionally burdened

11 Wilson’s Sixth Amendment right to a jury trial in challenging the credibility of this allocution during

12 its summation. Respectfully, I disagree.

13 The government’s allegedly improper words came not in the principal part of its summation,

14 which addressed the evidence supporting each of the aggravating factors on which the government

15 relied, but in that portion of the summation discussing the mitigating factors that Wilson urged to

16 be present. The majority focuses solely on the language in italics, which reads in its broader context

17 as follows:

18 Ronell Wilson takes responsibility for his actions. Ronell Wilson has 19 remorse for the murders of Detective Andrews and Nemorin. Did Ronnell Wilson 20 show remorse after he killed Detective Andrews and when he turned the gun on 21 Detective Nemorin, killed him as he begged for his life? . . . From the moment of

concluded that “[d]uring his early childhood, Ronell Wilson was exposed to an unsafe and unsanitary home environment,” and three jurors found that Wilson’s “scores on standardized intelligence tests are below average.” Id. at 13-14.

5 1 those murders up to the start of this trial, did you hear any evidence, is there any 2 evidence in the record of remorse or acceptance of responsibility? There’s none. 3 Ronell Wilson up until the very moment that he addressed you last week has 4 done everything he could to escape responsibility for his crimes. 5 He has an absolute right to go to trial, put the government to its burden of 6 proof, to prove he committed these crimes, but he can’t have it both ways. He can’t 7 do that, then say I accept responsibility. . . . And [say “]I’m sorry, only after you 8 prove I did it.[”] That’s not acceptance of responsibility. That is a manipulative 9 criminal saying what he has to, saying what he knows you want to hear when it’s in 10 his interest to say it. 11 The timing of his statement alone should tell you it’s nothing more than a 12 self-interested selfish man trying to save his own skin. 13 14 Tr. 1637-38.

15 The majority contends that this language – which explicitly states that Wilson had an

16 “absolute right to go to trial” – nevertheless unlawfully burdened his Sixth Amendment right to jury

17 trial by using “Wilson’s constitutionally protected decision to go to trial . . . as a reason to sentence

18 him to death.” (Maj. Op. at 69.) This contention, however, simply mischaracterizes the

19 government’s summation. The government did not, as the majority contends, “cite[] as a reason to

20 sentence him to death” that Wilson had elected to go to trial. (Id.) Instead, the government

21 appropriately responded to Wilson’s mitigation evidence.

22 The challenged comments occurred in response to Wilson’s endeavor to persuade the jury

23 that he had accepted responsibility for his actions, and that in light of this mitigating factor – a factor

24 he placed before the jury – a sentence of death was not justified. The government did not, as the

25 majority contends, seek to “characterize . . . the request for trial by jury as an aggravating

26 circumstance,” Zant v. Stephens, 462 U.S. 862, 885 (1983) (citation omitted) – a reason “to sentence

27 [Wilson] to death.” (Maj. Op. at 69.) Instead, it sought only to draw into question the credibility

28 of Wilson’s late-in-coming expression of remorse, which Wilson proffered as a basis for concluding

6 1 that the government’s evidence in aggravation did not justify the multiple death sentences for which

2 he was eligible.5

3 United States v. Stratton, 820 F.2d 562 (2d Cir. 1987), on which the majority relies, is

4 therefore inapplicable. Stratton recognized a distinction between “increasing the severity of a

5 sentence for a defendant’s failure to cooperate,” which is prohibited, and “refusing to grant

6 leniency,” which is not. Stratton, 820 F.2d at 564. But Stratton would only be relevant here, to the

7 extent relevant at all, if the government had urged the jury to consider Wilson’s exercise of his jury

8 trial right as a reason to sentence him to death. Again, this is not what the government did. The

9 prosecutor’s remarks came not in his discussion of aggravating factors, but in his examination of the

10 mitigating evidence put forward by Wilson, and in the context of explaining why this evidence

11 should not be credited. 5 The majority also appears to contend that the jury’s consideration of the future dangerousness aggravator was somehow tainted because Wilson’s lack of remorse was cited to show his future dangerousness. (Maj. Op. at 68 & n.18, 82.) This argument is made despite the fact that Wilson’s decision to go to trial was never cited as a reason to find this aggravating factor. The jury instructions permitted the jury to consider lack of remorse as evidence of future dangerousness; the defense did not object to this language below, the majority does not state that allowing this consideration was error in and of itself, and it would be perfectly logical for the jury to conclude that one who lacks remorse for multiple murders could be more likely to be a danger in the future. Moreover, even accepting (as I do not) the majority’s argument regarding “taint,” the majority concludes that this supposed Sixth Amendment error was not harmless only in light of the Fifth Amendment error it also cites: “Our analysis concludes only that the two errors – each reinforcing and amplifying the other on the critical issues of remorse, acceptance of responsibility, and future dangerousness – cannot be found harmless beyond a reasonable doubt.” (Maj. Op. at 87 n.26.) The prosecutor, however, cited neither Wilson’s decision to go to trial nor his decision not to testify as evidence of dangerousness. Furthermore, as explained infra, in light of Wilson’s waiver of his Fifth Amendment right as to the subject of his remorse (a waiver that the majority agrees took place) the jury was entitled to draw an adverse inference as to this subject from Wilson’s decision not to take the stand. Thus, even apart from the overwhelming evidence of future dangerousness that would render any supposed “taint” as to dangerousness indisputably harmless, the Fifth Amendment error on which the majority relies to conclude that its supposed Sixth Amendment error was not harmless in no way “reinforc[ed]” or “amplif[ied]” this supposed error.

7 1 The prosecutor’s comment, to the effect that the allocution lacked credibility as a statement

2 of remorse because it came only when Wilson faced punishment for his crimes, was entirely proper.

3 It is both natural and irresistible for a jury, in evaluating the sincerity of a statement of contrition,

4 to note when it comes only at the point a defendant is seeking to avoid the maximum penalty and

5 when it is utterly devoid of corroboration. In an analogous situation, the Supreme Court has

6 indicated that prosecutorial comment pointing these facts out to the jury impairs no constitutional

7 rights. See Portuondo v. Agard, 529 U.S. 61, 67-68 (2000). In Portuondo, the Supreme Court

8 determined that it did not unlawfully burden a defendant’s Sixth Amendment rights to be present and

9 to confront the witnesses against him for a prosecutor to comment, in summation, on the opportunity

10 that the exercise of these rights provided the defendant to tailor his testimony in light of the

11 government’s case. The Court noted that “it is natural and irresistible for a jury, in evaluating the

12 relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact

13 that he heard the testimony of all those who preceded him.” Id. Prohibiting the prosecutor from

14 making this point, as the majority would do in this case, is unjustifiable: to do so “either prohibits

15 inviting the jury to do what the jury is perfectly entitled to do; or it requires the jury to do what is

16 practically impossible.” Id. at 68.

17 This case is thus substantially less difficult than United States v. Mikos, 539 F.3d 706 (7th

18 Cir. 2008), in which the Seventh Circuit determined that the government was entitled to rely on the

19 defendant’s supposedly remorse-free demeanor in court – in essence, on his decision to go to trial

20 and remain silent there – to prove an aggravating factor: that the defendant had no remorse for his

21 crimes. The majority criticizes Mikos, but the Seventh Circuit’s analysis is wholly apt to explain

22 why the remarks at issue here were proper:

8 1 [The defendant] fought every charge every step of the way. That was his right, but 2 in the process he showed no remorse, compared with a person who conceded some 3 culpability . . . If it is proper to take confessions, guilty pleas, and vows to improve 4 one’s life into account when deciding whether a murderer should be put to death – 5 and it is unquestionably proper for a judge or jury to do so, see Williams v. Taylor, 6 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) – then it must also be proper 7 for the prosecutor to remind the jury when none of these events has occurred. 8 9 Mikos, 539 F.3d at 718.

10 In truth, this case is quite akin to United States v. Fell, 531 F.3d 197 (2d Cir. 2008), which

11 goes largely unaddressed by the majority. The defendant in Fell introduced evidence during the

12 penalty phase of his capital trial that he had offered to plead guilty in exchange for a sentence of life

13 imprisonment without parole – evidence he said was relevant to establishing that he had accepted

14 responsibility for his actions. Sentenced to death, Fell challenged the government’s summation

15 comments to the effect that “if [Fell] wanted to plead guilty, he could have pled guilty”:

16 Let’s move on to the next [mitigating] factor: Donald Fell offered to plead 17 guilty to kidnapping and murder[] . . . knowing that the law requires a sentence of life 18 imprisonment without the possibility of release and he has maintained that offer to 19 this day. 20 Ladies and gentlemen, the judge instructed you. You know the law. Life 21 imprisonment without the possibility of release is the minimum sentence that Donald 22 Fell faces for kidnapping with death resulting. It’s the minimum sentence. When he 23 offered to make that plea, he knew the evidence against him was overwhelming. . . . . 24 .... 25 Ladies and gentlemen, we had to try to convict him. If he wanted to plead 26 guilty, he could have pled guilty. We had a guilt phase in this case, ladies and 27 gentlemen. We put on our case. We met our burden. We proved it. And now we 28 are here to decide what is the just sentence. The minimum sentence? Or the death 29 Sentence? 30

9 1 Trial Tr. at 50, United States v. Fell, No. 01-12 (D. Vt. July 13, 2005). This Court determined that

2 the government’s remarks constituted a reasonable response to Fell’s evidence in mitigation and that

3 “[n]o error occurred.” Id. at 221.6

4 Both Fell and Wilson exercised their constitutional right to go to trial. Both thereafter sought

5 to persuade the jury that they had accepted responsibility, and that this was a factor in mitigation that

6 the jury should take into account. Fell attempted to do so by showing that he was willing to accept

7 punishment short of death, Wilson with his statement of contrition. The jury in each case could have

8 considered this evidence and found it persuasive. At the same time, however, the government was

9 entitled to point to reasons that jurors should not take this course. Cf. Portuondo, 529 U.S. at 68;

10 United States v. Robinson, 485 U.S. 25, 32 (1988) (noting that “where . . . [a] prosecutor’s reference

11 to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his

12 counsel,” the Fifth Amendment is not violated). It is thus wholly irrelevant that Fell is distinct from

13 this case, as Wilson and the majority contend, because Wilson, unlike Fell, introduced no evidence

14 that he had offered to plead. (Maj. Op. at 70 n.20.)

6 The prosecutor had also argued at the guilt phase in Fell 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. . . .

Fell, 531 F.3d at 220 n.13.

10 1 In Fell’s case, the prosecutor legitimately argued that an offer to plead guilty in exchange for

2 the minimum penalty authorized for one’s conduct does not demonstrate acceptance of

3 responsibility. Fell, 531 F.3d at 221; see also Br. of Appellant at 79, Fell, 531 F.3d 197 (noting that

4 the plea offer was introduced in an attempt to demonstrate acceptance of responsibility as a

5 mitigating factor). It was in that context that the prosecutor stated, “we had to try to convict him.

6 If he wanted to plead guilty, he could have pled guilty. We had a guilt phase in this case, ladies and

7 gentlemen. We put on our case. We met our burden.” In Wilson’s case, the government argued that

8 a statement of contrition that came at the last minute and was uncorroborated by any other evidence

9 was not worthy of belief. It was in that context that the prosecutor said, “[Wilson] has an absolute

10 right to go to trial, put the government to its burden of proof, to prove he committed these crimes,

11 but he can’t have it both ways.” In neither case did the prosecution urge the jury to sentence the

12 defendant to death because he went to trial and in neither case were the defendant’s Sixth

13 Amendment rights violated. There was no error here, much less error requiring vacatur.

14 III. Wilson’s Fifth Amendment Claim

15 Although Wilson’s Fifth Amendment argument is marginally more substantial, it is doubtful

16 any error occurred and certain that if there was error, it was harmless. The issue here concerns the

17 Fifth Amendment consequences of Wilson’s election to offer his statement of remorse but not to

18 open himself up for cross examination with regard to it. The majority first concludes that the

19 introduction of such a statement effects at least “a limited Fifth Amendment waiver that allows the

20 prosecution to argue for an adverse inference from a defendant’s failure to testify as to that to which

21 he has allocuted.” (Maj. Op. at 79 (emphasis omitted).) The majority next determines that Carter

22 v. Kentucky, 450 U.S. 288 (1981), nevertheless entitles the defendant in such a situation to a

11 1 modified adverse inference instruction directed at matters other than those to which the defendant

2 allocuted, and that the failure to give such an instruction, coupled in this case with the prosecutor’s

3 use of three errant words (essentially a wrong choice of verb tense) in referring to the defendant’s

4 decision not to take the stand, requires vacatur. With regard to the second determination, I

5 respectfully disagree.

6 I, like the majority, “start with first principles.” (Maj. Op. at 76.) Wilson was entitled to the

7 protections of the Fifth Amendment during the penalty phase of his trial, meaning that he had a right

8 not to testify and that the government could not use his silence against him, at least “with regard to

9 factual determinations respecting the circumstances and details of the crime.” Mitchell v. United

10 States, 526 U.S. 330, 328 (1999). The Supreme Court has not yet determined whether silence in this

11 setting properly “bears upon the determination of a lack of remorse.” Id. at 330. Because Wilson

12 did not remain silent at his sentencing proceeding, this open question need not be answered here.

13 I agree with the majority that Wilson’s decision to speak to the jury constituted a waiver of

14 his Fifth Amendment rights with regard to the subject matter of his allocution, and thus that the

15 prosecution was permitted, as the majority states, “to argue for an adverse inference from [the]

16 defendant’s failure to testify as to that to which he . . . allocuted.” (Maj. Op. at 79.) Given this

17 determination, the majority rightly finds wholly legitimate the government’s argument in summation

18 that if Wilson had taken the stand, the sincerity of his allocution could have been better assessed.

19 Indeed, because it accepts that Wilson waived his Fifth Amendment rights with regard to the

20 allocution, the majority finds Fifth Amendment fault today with but three words in the government’s

21 summation:

12 1 I want to talk to you a minute about the statement itself. You may have 2 noticed that when he made that statement, Ronell Wilson wasn’t sitting up there on 3 the witness stand under oath, subject to cross-examination. He chose to do it from 4 there (indicating). The path for that witness stand has never been blocked for Mr. 5 Wilson, had that opportunity, too. He chose, like many other things in this case, to 6 do it that way. 7 You may ask yourselves well, what more would we have if he took that stand, 8 what would be the difference? Well, we might have been able to ask him when did 9 you come up with this? How did you come up with it? Why did you come up with 10 it? Why now? Why now of all times are you sorry? We might be able to test the 11 credibility of the statement, the veracity of it. You might have information that could 12 help you decide if you need to believe it. Ronell Wilson didn’t want that. He wanted 13 to say it from there, take my word for it now after all this, now I’m sorry. 14 15 Tr. 1638.

16 The subtlety of this error cannot go unremarked. For it is indeed the difference between “was

17 not” and “has never been” on which the majority relies. By the majority’s own holding today, the

18 government was fully entitled to argue that “[t]he path [to] that witness stand was not blocked,” and

19 that Wilson’s decision not to take the stand to testify to his remorse was a reason to doubt its

20 credibility. The majority contends, somewhat tepidly, that tense makes a difference, and that a juror

21 hearing “has never been” might think “that ‘never’ is a period that extends back to the guilt phase

22 . . . and extends as well to the full penalty phase.” (Maj. Op. at 80.) But the government made no

23 argument that the defendant’s decision not to take the stand was relevant to anything other than the

24 credibility of his allocution. So the only possible error must boil down to three errant words.

25 This is a slim reed indeed on which to hang a constitutional infirmity meriting the vacatur

26 of five capital sentences rendered by jurors who, between the trial and the penalty phase, devoted

27 over three weeks to hearing testimony in this case. The majority knows as much. Indeed, it

28 concedes that the prosecution “attempted conscientiously to focus solely on the subject matter of the

29 allocution.” (Maj. Op. at 80.) It states only – and again tepidly – that “[e]ven so, there is something

13 1 expansive” about saying “has never been.” (Id.) It then hurriedly drops the subject, moving on to

2 discuss the district court’s failure to give a modified Carter instruction – the real heart of the

3 problem.

4 Carter v. Kentucky held that a trial court has a constitutional obligation, upon request, to

5 instruct a trial jury that no adverse inferences are to be drawn from a defendant’s election not to take

6 the stand – in essence, that it may not treat the defendant’s silence as substantive evidence of his

7 guilt. Carter, 450 U.S. at 305; see also Robinson, 485 U.S. at 32 (noting that the Fifth Amendment

8 prohibits the judge and prosecutor from suggesting to the jury that silence may be treated as evidence

9 of guilt). The Supreme Court has never expressly held that this obligation extends to the sentencing

10 phase of a criminal proceeding, much less that it applies in a situation in which the defendant has

11 waived his Fifth Amendment rights, at least with regard to the subject matter of an allocution he has

12 introduced. I will assume for now, with the majority, that Wilson was entitled to an instruction that

13 the jury should not draw any adverse inference from his decision to remain silent with regard to

14 matters other than his alleged feelings of remorse. And I will pass over, as the majority also does,

15 that Wilson never asked for such a “modified adverse inference” instruction – the only instruction

16 that could have been appropriate in the context of this case – and that it is not our normal practice

17 in such circumstances to afford relief. See United States v. Desinor, 525 F.3d 193, 198 (2d Cir.

18 2007) (noting that judgment will not be reversed based upon the denial of a requested instruction

19 where the instruction requested was not legally correct or was not supported by an adequate basis

20 in the record).

21 The majority concludes and I agree that harmless error analysis is appropriate in the context

22 of Carter error. See, e.g., United States v. Soto, 519 F.3d 927, 930-31 (9th Cir. 2008) (holding that

14 1 failure to give Carter instruction is subject to harmless error analysis); United States v. Brand, 80

2 F.3d 560, 568 (1st Cir. 1996) (same); Hunter v. Clark, 934 F.2d 856, 860 (7th Cir. 1991) (en banc)

3 (same); United States v. Ramirez, 810 F.2d 1338, 1344 (5th Cir. 1987) (same). It is here, however,

4 that we again part ways. Any error that resulted from the government’s errant three words (“has

5 never been”) and the district court’s failure to give a modified Carter instruction (one that was never

6 requested) was harmless beyond a reasonable doubt. See United States v. Hasting, 461 U.S. 499,

7 508-09 (1983) (”[I]t is the duty of a reviewing court to consider the trial record as a whole and to

8 ignore errors that are harmless”); see also Satterwhite v. Texas, 486 U.S. 249, 256 (1988). This case

9 thus falls well short of presenting any circumstances that warrant vacatur of the jury’s work, even

10 assuming that error occurred.

11 First, as already noted, the government never argued that Wilson’s decision not to take the

12 stand should be used by the jury to make factual determinations favorable to the government with

13 regard to anything except for Wilson’s allocution – the matter that the majority concludes was

14 properly the subject of an adverse inference. This is significant because Carter itself recognized that

15 the instruction it requires is prophylactic. Carter, 450 U.S. at 305. In fact, it is a prophylactic

16 instruction “to protect the prophylactic rule that the prosecutor cannot ask a jury to draw an adverse

17 inference from the defendant’s failure to testify which in turn protects the defendant’s actual

18 constitutional right to refuse to testify.” Hunter, 934 F.2d at 864. It is thus “at least two steps

19 removed from the constitutional privilege,” and “[n]either giving nor withholding the instruction has

20 a certain, powerful, effect on the jury’s work.” Id. at 865-66 (Easterbrook, J., concurring).7 The

7 Indeed, as Judge Easterbrook noted, “[i]nforming the jurors about [the defendant’s decision to remain silent] may remind them of an inference they otherwise would not have drawn, so a defendant might oppose the giving of such an instruction.” Hunter, 934 F.2d at 865.

15 1 Supreme Court in Carter determined that requiring such an instruction, upon request, guards against

2 the danger that an unguided jury might use a defendant’s silence as evidence of his guilt. Carter,

3 450 U.S. at 301. The failure to give such an instruction, however, does not mean that this injury has

4 occurred. Even assuming, then, that a modified Carter instruction was appropriate here, the absence

5 of any direct argument from the government that Wilson’s silence be used in an unlawful manner

6 weighs strongly against the conclusion that the failure to give such an instruction was harmful.

7 The jury’s own determinations, moreover, strongly suggest that it did not draw any inference

8 adverse to Wilson with regard to matters other than his statement of remorse. As previously noted,

9 the jury unanimously found that Wilson had established thirteen of the eighteen mitigating factors

10 he put forward and, indeed, it identified an additional mitigating factor not even cited by the defense.

11 The jury thus broadly accepted Wilson’s evidence of a troubled childhood and difficult time in

12 school – that he had grown up in poverty and deprivation, for instance, that his parents were

13 substance abusers, that he was exposed to drugs and violence as a child, that he performed well

14 below grade level in school and had a history of depression. Eleven jurors found, in addition, that

15 Wilson had been exposed to an unsafe and unsanitary home environment, and three found that his

16 scores on standardized tests were below average. Indeed, the jury unanimously rejected only his

17 claims that he accepted responsibility and felt remorse (the two mitigators about which he allocuted

18 and that were properly the subject of an adverse inference) and that he had adjusted well to federal

19 prison – a final claim in mitigation that was simply not credible, in light of the government’s

20 evidence of future dangerousness.

21 The evidence establishing the government’s aggravating factors, moreover, was

22 overwhelming. The district court itself said, in sentencing Wilson, that “Ronell Wilson’s guilt has

16 1 been proved not merely beyond a reasonable doubt, but beyond all doubt.” Transcript of Sentencing

2 Imposition, Mar. 29, 2007 (“Mar. 29 2007 Tr.”), at 29. Indeed, the evidence presented at trial proved

3 four of the six aggravating factors before the penalty phase even began.8 The picture this evidence

4 painted, moreover, was itself devastating to Wilson’s position that a death sentence could not be

5 justified.

6 Thus, the trial evidence showed that before these murders took place, Wilson discussed the

7 possibility with his confederates that the man he intended to rob, Detective Nemorin, might be a

8 police officer, and that Wilson might have to shoot him. On the day of the crimes, as he set his plan

9 in motion, Wilson expressed concern that he was being followed, and that there were undercover

10 police vehicles in the vicinity. Minutes later, Wilson climbed into the back seat of the undercover

11 officers’ car, pulled out the .44 caliber revolver he was carrying, and shot without warning Detective

12 Andrews, who had accompanied Nemorin to meet with Wilson that day, in the back of the head.

13 Wilson then shot Nemorin, again in the head, as the detective pleaded for his life. At Wilson’s

14 direction, Wilson and his confederate, Jessie Jacobus, searched the bodies, looking for money, before

15 dumping them in the street and driving off in the undercover officers’ car. When Jacobus asked

16 Wilson why he had killed the men, Wilson said simply, “I don’t give a fuck about nobody.” Tr. 378.

17 The jury finally heard evidence that at the time of his arrest, two days after the executions of

18 Detectives Andrews and Nemorin, Wilson, whose nickname is “Rated R,” was carrying rap lyrics

19 he had written that celebrated violence and that could have been interpreted to refer to the crimes:

20 Come teast Rated U better have dat vest and Dat Golock/leave a 45 slogs in da back 8 The government relied on its evidence at trial to demonstrate that Wilson committed the murders for pecuniary gain, that he murdered more than one person in a single criminal episode, that he faced contemporaneous convictions for other serious acts of violence, and that he murdered law enforcement officers during the course of their official duties.

17 1 of ya head cause u cause I’m getin dat Bread I ain’t goin stop to Im dead/When I 2 getin dat money/ and when y say Rated don’t forget da “R.” 3 4 Gov’t Ex. 15.01.

5 The district court stated in pronouncing sentence that “Wilson’s allocution was not

6 convincing.” Mar. 29, 2007 Tr. at 33. It must have seemed weak, in light of the cold-blooded

7 character of Wilson’s crimes, his behavior thereafter, as well as his many additional acts of violence,

8 both before and after the murders of the detectives. During the penalty phase, the jury learned from

9 three of his victims that Wilson, as a young teenager, had repeatedly assaulted other children – in one

10 case, attacking a 13-year old on a city bus and breaking his jaw in the course of robbing him. There

11 was evidence of a fight in Times Square with a man Wilson had attempted to extort when both were

12 prison inmates – a fight in which Wilson slashed the man in the face in front of a crowd, leaving a

13 wound that required 300 stitches to close. Additional evidence went to violence in custody – to

14 assaults on corrections officers, to fist fights with other inmates. There was evidence that Wilson

15 believed he deserved “OG status” within the Bloods – the highest status, reserved for those who have

16 committed the most acts of violence on behalf of the gang. There was evidence that Wilson used

17 his position in the Bloods to incite other inmates to commit violence. The jury found beyond a

18 reasonable doubt that Wilson represented a continuing danger to others, and that he was likely to

19 commit acts of violence again. The court at sentencing stated its conclusion that Wilson “is capable

20 of committing extreme acts of violence without warning or provocation,” Mar. 29, 2007 Tr. at 35,

21 and it characterized the proof in support of the jury’s future dangerousness finding as

22 “overwhelming,” id. at 34.

23 So, too, was the evidence that Wilson’s crimes resulted in loss to the victims, their families,

18 1 and to others. The district court observed in pronouncing sentence:

2 Those of us when we heard the Detectives’ family members testify will never forget 3 Christian Andrews, Detective Andrews’ older son, recounting his daily chess games 4 with his father, or their annual family trips to Universal Studios in Florida. Nor will 5 we ever forget Marie-Jean Nemorin, Detective Nemorin’s sister, explaining how she 6 gave her baby brother the nickname Tichou, which means little sweetheart[,] or Rose 7 Nemorin, Detective Nemorin’s widow, describing how their three children now 8 celebrate Father’s Day in a cemetery where they hug a cold wall instead of their 9 father. 10 11 May 29, 2007 Tr. at 31-32. The judge further observed that “[w]hen Wilson murdered Detectives

12 Andrews and Nemorin, he took two police officers from this city, two fathers from their children,

13 two husbands from their wives, two brothers from their siblings, and two sons from their parents.”

14 Id. at 32. The jury found beyond a reasonable doubt that Wilson’s crimes had caused loss, injury,

15 and harm.

16 I have my doubts whether Carter v. Kentucky’s prophylactic rule properly applies in a

17 sentencing proceeding in which the defendant has chosen not to remain silent, but instead to speak.

18 Because the obligation to give a Carter instruction arises only “upon request,” I have further doubts

19 that it ever arose in this case, given that the instruction actually requested by the defendant would

20 have covered matters about which the defendant had waived his Fifth Amendment rights. That said,

21 I have no doubt about the harmlessness of the alleged Fifth Amendment error on which the majority

22 relies. I conclude without hesitation that neither the prosecutor’s three errant words (“has never

23 been”) nor the district court’s failure to give the modified Carter instruction that was never

24 requested, influenced this jury’s decision to any degree.

25 The Supreme Court has said that the severity of a death sentence “mandates careful scrutiny

26 in the review of any colorable claim of error.” Zant v. Stephens, 462 U.S. at 885. Chapman,

19 1 however, requires at least a “reasonable possibility that the [error] complained of might have

2 contributed to the [result]” before an error warrants reversal. Chapman v. California, 386 U.S. 18,

3 23 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963) (internal quotation marks

4 omitted). “[N]ot every imperfection in the deliberative process is sufficient, even in a capital case,”

5 to set a judgment aside. Zant, 462 U.S. at 885. Indeed, if this were not the case, Congress’s decision

6 in the Federal Death Penalty Act to give to juries the delicate and difficult decision as to when a

7 capital sentence is justified would be wholly undone.

8 The jury here heard evidence over the course of eighteen days. This evidence cast a strong

9 light on the defendant: on his crimes, his character, the harms he has caused, and his case in

10 mitigation. The district court noted, in sentencing Wilson, that the jury here “[was] among the most

11 attentive and serious [it] had ever seen,” and that the jurors “listened carefully to every argument and

12 the witness testimony, and examined every piece of evidence introduced in this case.” Mar. 29, 2007

13 Tr. at 44.

14 I conclude that if there was Fifth Amendment error here – and I find it doubtful – such error

15 had no impact on the jury that sentenced Wilson. With regard to the Sixth Amendment, there is

16 simply no error to review. Having reached these conclusions, I believe the death sentences should

17 be affirmed. I respectfully dissent from Parts VI, VII, and VIII of the majority’s opinion and from

18 the judgment vacating the death sentences, while joining in the rest of the majority’s opinion.