United States v. Daryl Lawrence

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0299p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 06-4105

v.

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Defendant-Appellant. -

DARYL LAWRENCE,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 05-00011—Gregory L. Frost, District Judge.

Argued: October 5, 2011

Decided and Filed: October 22, 2013

Before: BOGGS, ROGERS and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Kort W. Gatterdam, CARPENTER, LIPPS & LELAND LLP, Columbus,

Ohio, for Appellant. Robert A. Parker, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kort W. Gatterdam,

CARPENTER, LIPPS & LELAND LLP, Columbus, Ohio, Diane M. Menashe, DIANE

M. MENASHE CO., L.P.A., Columbus, Ohio, for Appellant. Robert A. Parker,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

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OPINION

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McKEAGUE, Circuit Judge. Daryl Lawrence appeals his convictions and

sentences for armed bank robbery, attempted armed bank robbery, murder, and firearms

offenses. Most of the twenty-four asserted claims of error relate to proceedings on the

two death-eligible offenses and the resultant sentence of death. Despite vigorous and

1

No. 06-4105 USA v. Lawrence Page 2

able advocacy by Lawrence’s counsel, we find no error in the proceedings below and,

for the reasons that follow, affirm the judgment of the district court.

I

The charges against Lawrence arose from four bank robberies committed in

central Ohio during January, August, and September 2004, and January 2005. During

the last of these robberies, an attempted robbery on January 6, 2005, Lawrence shot and

killed Columbus Police Officer Bryan Hurst. Officer Hurst had returned fire, however,

and Lawrence was injured. Lawrence aborted the robbery and fled. He was arrested

within days, whereupon he confessed to having committed all four robberies. An eight-

count indictment was returned and filed in the United States District Court for the

Southern District of Ohio on January 20, 2005.

The indictment charged Lawrence with three counts of armed robbery, in

violation of 18 U.S.C. § 2113(a) and (d); two counts of brandishing a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); one count

of brandishing and discharging a firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (iii); one count of attempted bank

robbery resulting in the killing of Officer Hurst, in violation of 18 U.S.C. § 2113(a),

(d) and (e); and one count of using a firearm during and in relation to a crime of violence

to commit murder with malice aforethought, in violation of 18 U.S.C. § 924(c) and (j).

The latter two counts, Counts Seven and Eight, charged death-eligible offenses,

violations of 18 U.S.C. § 2113(e) and 18 U.S.C. § 924(j)(1), respectively. The

indictment further alleged that Lawrence was eligible to be punished by death under the

Federal Death Penalty Act, 18 U.S.C. § 3591(a); and charged two statutory aggravating

factors in connection with the murder under 18 U.S.C. § 3592(c), i.e., that Lawrence

knowingly created a grave risk of death to one or more persons in addition to the victim,

and that Lawrence committed the murder in expectation of pecuniary gain.

Trial commenced with jury selection proceedings on February 13, 2006. Ten

trial days later, the jury began and completed its deliberations in the guilt phase, finding

No. 06-4105 USA v. Lawrence Page 3

Lawrence guilty of all eight charges on February 28, 2006. The sentencing phase

culminated with the jury’s verdict on March 10, 2006, recommending a sentence of life

imprisonment without parole on Count Seven and a sentence of death on Count Eight.

On August 10, 2006, the district court sentenced Lawrence to a total of 781 months’

imprisonment on Counts One through Six, to be served consecutively to the life term

imposed for Count Seven, and imposed the death penalty for Count Eight.

Lawrence moved for a new trial, claiming juror bias, double jeopardy, improper

jury instructions, and inconsistent sentencing verdicts on Counts Seven and Eight. The

district court vacated the jury’s death verdict on Count Eight and ordered a new

sentencing hearing. United States v. Lawrence, 477 F. Supp. 2d 864, 867 (S.D. Ohio

2006). The United States appealed the district court’s decision and we reversed. We

held that the sentencing verdicts were not inconsistent or irrational and reinstated the

sentence of death imposed by the district court on Count Eight. United States v.

Lawrence, 555 F.3d 254, 256 (6th Cir. 2009).

Now on direct appeal, Lawrence raises twenty-four claims of error, listed here

and addressed below in the order he presents them:

1. The jury’s sentencing verdicts on Counts Seven and Eight were defective for lack of

express certification that each juror would have made the same sentencing

recommendation regardless of the race of Lawrence or the murder victim.

2. The district court erred by failing to instruct the jury on Count Eight that they had the

option of recommending a sentence of imprisonment to a term of years less than life.

3. The district court erred by admitting improper and excessive victim-impact evidence

in the sentencing phase.

4. The district court abused its discretion by denying Lawrence his right to allocution

before the jury during the sentencing phase.

5. The district court erred by imposing a sentence of death under 18 U.S.C. § 924(c) and

(j) where a greater minimum sentence, life imprisonment, was prescribed by another

provision of law, 18 U.S.C. § 2113(e).

6. Where six jurors found that life imprisonment was appropriate and sufficient, the

death sentence was imposed arbitrarily.

No. 06-4105 USA v. Lawrence Page 4

7. The district court erred by refusing to strike the “pecuniary gain” statutory

aggravating factor.

8. The district court abused its discretion by allowing the government to introduce

“lifestyle evidence” to prove the “pecuniary gain” aggravating factor.

9. There was insufficient evidence to support a reasonable jury finding that Lawrence

killed for pecuniary gain.

10. The district court erred by refusing to strike the “grave risk of death” statutory

aggravating factor.

11. The district court erred by refusing to strike the non-statutory aggravating factors

as the product of an unconstitutional delegation of power.

12. The non-statutory aggravating factors should have been struck because the

government failed to charge them in the indictment.

13. The jury’s determination that the aggravating factors outweighed the mitigating

factors is not supported by sufficient evidence.

14. Prosecution and sentencing under Counts Seven and Eight based on the nonstatutory

aggravating factor “contemporaneous finding of guilt” violated the Double Jeopardy

Clause.

15. The district court erred by refusing to instruct the jurors that they had to

unanimously agree, beyond a reasonable doubt, that the aggravating factors sufficiently

outweighed the mitigating factors before selecting the death sentence.

16. The district court erred by failing to instruct the jury that “a solitary juror may

prevent a sentence of death.”

17. The district court erred by failing to give an adequate “malice aforethought”

instruction.

18. Prosecutorial misconduct during closing argument of the penalty phase denied

Lawrence a fair trial.

19. The district court erred by denying Lawrence’s motion to suppress statements.

20. Prosecution in federal court and imposition of the death sentence were tainted by

racial bias, in violation of Lawrence’s constitutional rights.

21. The district court erred by allowing multiple “victims” to be present during the

sentencing hearing.

22. The district court erred by failing to investigate evidence of juror misconduct.

23. The district court erred by allowing the government to peremptorily excuse

prospective jurors because of their race.

No. 06-4105 USA v. Lawrence Page 5

24. The district court erred by failing to remove for cause prospective jurors whose

impartiality was demonstrably compromised.

II

1. Omission of Required Jury-Nondiscrimination Certification

Lawrence contends his sentencing was marred by “structural error” because the

jurors failed to certify, in conjunction with their sentencing verdicts on Counts Seven

and Eight, as required by the Federal Death Penalty Act, that they would have made the

same sentencing recommendation irrespective of the race, color, religious beliefs,

national origin, or sex of Lawrence or the victim, Bryan Hurst. Lawrence is African

American; Hurst was white. All twelve jurors were white.

The Federal Death Penalty Act requires the district court to instruct the jury that,

in considering whether a sentence of death is justified, it shall not

consider the race, color, religious beliefs, national origin, or sex of the

defendant or of any victim and that the jury is not to recommend a

sentence of death unless it has concluded that it would recommend a

sentence of death for the crime in question no matter what the race, color,

religious beliefs, national origin, or sex of the defendant or of any victim

may be.

18 U.S.C. § 3593(f). There is no question that the district court complied with this

requirement and properly instructed the jury in this regard.

The Act, however, also requires the jury to certify that its decision to impose the

death sentence was not discriminatory:

The jury, upon return of a finding under subsection (e) [concerning a

sentence of death], shall also return to the court a certificate, signed by

each juror, that consideration of the race, color, religious beliefs, national

origin, or sex of the defendant or any victim was not involved in reaching

his or her individual decision and that the individual juror would have

made the same recommendation regarding a sentence for the crime in

question no matter what the race, color, religious beliefs, national origin,

or sex of the defendant or any victim may be.

No. 06-4105 USA v. Lawrence Page 6

Id. (emphasis added). This certification requirement has two components. The

certification used by the district court and signed by the jurors included the first

component. All of the jurors signed the certification they were provided, certifying that

consideration of race, color, religious beliefs, national origin, or sex played no role in

their verdicts. The certification form provided to the jurors, however, omitted the second

component certifying that the jurors would have made the same recommendation

irrespective of the race, color, religious beliefs, national origin, or sex of the defendant

or victim.

Lawrence contends this omission is a structural error that requires us to vacate

the Count Seven and Count Eight sentences because it “affected the framework within

which the trial proceeded” and was not simply an error in the trial process itself. See

Arizona v. Fulminante, 499 U.S. 279, 310 (1991). The government contends that the

trial court’s jury instructions included the pertinent language from § 3593(f), that the

jurors’ certification substantially included the required language, that Lawrence did not

object to the omission at trial, and that the omission was not a structural error.

Generally, where the defendant failed to object to an error at trial, including

instructional error, review on appeal is for plain error only. See Fed. R. Crim. P. 30(d),

52(b); Louis Jones v. United States, 527 U.S. 373, 389 (1999). We may address the

objection in the first instance and grant relief under plain-error review only if four

requirements are met: (1) there must be a legal error (objection to which was not

affirmatively waived); (2) the error must be clear; (3) the error must have affected the

appellant’s substantial rights in that it affected the outcome of the district court

proceedings; and (4) the error must have seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. Puckett v. United States, 556 U.S. 129,

135 (2009). “Meeting all four prongs is difficult, ‘as it should be.’” Id. (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).

However, an error that is “structural” may be cognizable despite the lack of a

third-prong showing that it actually prejudiced the appellant or affected the outcome of

the proceedings. United States v. Marcus, 130 S. Ct. 2159, 2164–65 (2010); United

No. 06-4105 USA v. Lawrence Page 7

States v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005). A structural defect is a “‘defect

affecting the framework within which the trial proceeds, rather than simply an error in

the trial process itself.’” Johnson v. United States, 520 U.S. 461, 468 (1997) (quoting

Fulminante, 499 U.S. at 310); see also Ruelas v. Wolfenbarger, 580 F.3d 403, 410 (6th

Cir. 2009). “[M]ost constitutional errors can be harmless.” Fulminante, 499 U.S. at 306.

In other words, even constitutional errors are disregarded if they are shown not to have

affected substantial rights. Id.; Fed. R. Crim. P. 52(a). This harmless-error doctrine

preserves the “‘principle that the central purpose of a criminal trial is to decide the

factual question of the defendant’s guilt or innocence, and promotes public respect for

the criminal process by focusing on the underlying fairness of the trial rather than on the

virtually inevitable presence of immaterial error.’” Fulminante, 499 U.S. at 308 (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). Structural defects, on the other

hand, are “defects in the constitution of the trial mechanism, which defy analysis by

‘harmless-error’ standards.” Id. at 309.

The Supreme Court has found structural errors only in “‘a very limited class of

cases,’ including: total deprivation of the right to counsel; judicial bias; the unlawful

exclusion of grand jurors of defendant’s race; denial of the right to self-representation

at trial; the denial of the right to a public trial; and erroneous reasonable-doubt

instruction to jury.” Rosencrantz v. Lafler, 568 F.3d 577, 589 (6th Cir. 2009) (quoting

Johnson, 520 U.S. at 468–69); see also Marcus, 130 S. Ct. at 2164–65 (same).

There is no dispute that the omission of the second component from the

certification form was in violation of 18 U.S.C. § 3593(f); it was a legal error that was

“clear.” The first two requirements for plain-error relief are met. As to the third

element, Lawrence has not identified how the error affected his substantial rights.

Arguing that the certification defect is structural error, he contends that he need not do

so.

Lawrence cites no authority specifically holding that lack of strict compliance

with the Act’s nondiscrimination certification requirement is structural error. Nor does

the omission of the second component of the certification requirement fall within any

No. 06-4105 USA v. Lawrence Page 8

recognized category of structural error. To the contrary, the certification requirement

is complementary and analogous to a jury instruction, and jury instruction errors have

generally been deemed non-structural and subject to harmless-error analysis. See

Marcus, 130 S. Ct. at 2165.

Moreover, the certification is a statutory, not a constitutional, requirement.

Unlike the rights to counsel, an impartial judge, equal protection, self-representation, a

public trial, and an accurate reasonable-doubt instruction, the certification requirement

is purely a creature of statute. Lawrence’s constitutional rights were not violated when

the district court erroneously omitted part of the statutory language from the certification

form. Third, the certification requirement comes into play only at the end of the

sentencing hearing when the jury is considering whether a sentence of death is justified.

A defect in the form of the certification cannot be deemed to have affected the

framework in which the trial proceeded; it affected only the jury’s memorialization of

its sentencing decision.

Lawrence contends the legislative history demonstrates that Congress

deliberately included both components in the certification requirement in order to

prevent the influence of racial prejudice in capital sentencing. He contends the omission

of the second component from the certification was no mere technical defect, but directly

contravened Congress’s purpose and impermissibly opened the door to the possibility

of racial bias. Citing Turner v. Murray, 476 U.S. 28 (1986), Lawrence contends the

omission of the second § 3593(f) component is analogous to a trial court’s refusal to

question prospective jurors on racial bias in an interracial murder case. In Turner, the

court granted relief, despite the absence of evidence of racial bias, because the refusal

to explore the racial-bias issue in voir dire was deemed to have created “an unacceptable

risk of racial prejudice infecting the capital sentencing proceeding.” Id. at 37 (plurality

opinion) (italics in original).

No. 06-4105 USA v. Lawrence Page 9

In Turner, however, the Court did not rule that the voir dire error was structural

1

error. Nor was the Turner Court constrained to apply plain-error review, as the

defendant’s objection had been preserved. Thus, although the refusal to ask the

requested questions regarding racial bias was held to be error per se, obviating the need

to show prejudice, the Court did not have occasion to determine whether the error

“seriously affected the fairness, integrity or public reputation of judicial proceedings”

as a prerequisite to granting relief. Most importantly, Turner is further distinguishable

in that the impetus for the finding of error per se, an unacceptable risk of racial prejudice

infecting the sentencing proceeding, is lacking in this case. Unlike the Turner trial

court’s refusal to inquire about racial bias in voir dire, the instant omission of the second

component from the jury’s § 3593(f) certification, substantially duplicative of the first

component, can hardly be deemed to have created such an unacceptable risk of racial

prejudice.

Although the Count Seven and Count Eight certifications were flawed, the

omission was substantively harmless. The jury was clearly instructed, in accordance

with § 3593(e), that they were prohibited from considering race in their sentencing

deliberations. The jury was also correctly instructed that each juror had to be convinced

that he or she would have reached the same sentencing decision regardless of race. We

ordinarily presume the jury followed its instructions, and Lawrence has offered nothing

to rebut this presumption. See United States v. Harvey, 653 F.3d 388, 396 (6th Cir.

2011) (holding that, absent rebuttal, “jurors are presumed to follow instructions”). The

record reveals no basis for any conclusion other than that the jurors followed the

undisputedly correct instructions they were given. There simply is no reason to conclude

that the omission of the second component from the certification forms created an

unacceptable risk that racial prejudice infected the verdicts.

1

In fact, the Turner Court, by limiting the relief awarded to striking down the death sentence and

expressly declining to disturb the jury’s verdict of guilt, necessarily implied that the voir dire error was not

the sort of “defect affecting the framework within which the trial proceeds” that would amount to a

structural error. See id. at 37.

No. 06-4105 USA v. Lawrence Page 10

We therefore reject Lawrence’s argument that Turner represents sound support

for the proposition that the certification defect warrants relief even in the absence of

evidence that it affected his substantial rights and seriously affected the integrity of the

sentencing proceeding. Lawrence has presented no grounds to hold that the certification

defect affected either his substantial rights or the integrity of the proceedings. He has

not satisfied the prerequisites for relief under plain-error review and his first claim of

error must be denied. See Marcus, 130 S. Ct. at 2166 (denying relief under plain-error

review—even if error were deemed structural—for lack of showing that error impugned

the fairness, integrity, or public reputation of the proceedings).

2. Failure to Instruct on Option of Lesser Sentence on Count Eight

Lawrence contends the district court gave an erroneous jury instruction

regarding sentencing options for Count Eight. Count Eight charged that Lawrence

committed murder, as defined in 18 U.S.C. § 1111, by unlawfully killing Hurst with

malice aforethought in the attempt to perpetrate a robbery, and with use of a firearm, in

violation of 18 U.S.C. § 924(c). The penalties for this offense are death, imprisonment

for any term of years, or life imprisonment. 18 U.S.C. § 924(j)(1). The penalties for

first-degree murder under § 1111 are death or life imprisonment. However, § 924(j)(1)

does not incorporate § 1111’s penalty provisions, but only incorporates § 1111’s

definition of murder. United States v. Ostrander, 411 F.3d 684, 686 (6th Cir. 2005). It

follows that the penalty options for the Count Eight murder are those prescribed in

§ 924(j)(1), not those prescribed in § 1111. In addition, the Federal Death Penalty Act

authorizes three possible punishments: death, life imprisonment without possibility of

release, or some lesser sentence. 18 U.S.C. § 3593(e).

The district court thus should have instructed the jury that it had three sentencing

options. Instead, the court instructed that a sentence of death or life imprisonment

without possibility of release were the only sentencing options. This was error.

However, Lawrence did not object to this error at trial. Indeed, his proposed instruction

included the same penalties for Count Eight as those incorporated into the court’s

instruction. We therefore review only for plain error. See Fed. R. Crim. P. 30, 52(b);

No. 06-4105 USA v. Lawrence Page 11

Louis Jones, 527 U.S. at 389. Again, Lawrence has the burden of showing that this clear

error adversely affected his substantial rights and, if so, that it seriously affected the

integrity or public reputation of the sentencing proceeding. Puckett, 556 U.S. at 135.

This he has not done.

The district court’s error in omitting the term-of-years sentencing option under

§ 924(j)(1) has not been shown to have affected Lawrence’s substantial rights. To carry

his burden in this regard, Lawrence must show there is “a reasonable probability” that,

but for the instructional error, the jury’s recommended sentence on Count Eight “would

have been different.” Dominguez Benitez, 542 U.S. at 81–82. Inasmuch as the jury

unanimously recommended the death penalty on Count Eight rather than life

imprisonment without release, there is no likelihood—much less “a reasonable

probability”—that it would have opted to sentence Lawrence to a term of years if given

the choice. Lawrence insists that such a conclusion is based on impermissible

speculation. However, the notion that the jury would have sentenced Lawrence to a term

of years on Count Eight if given the option is not reasonable; it defies all logic and

reason.

Accordingly, though the district court committed error when it instructed the jury

that death and life imprisonment were the only sentencing options on Count Eight,

Lawrence has not demonstrated that the error affected his substantial rights. He has

therefore not established entitlement to relief under plain-error review.

3. Admission of Improper Victim-Impact Evidence

Lawrence contends the district court erred by permitting improper and excessive

use of victim-impact evidence by the government during the sentencing phase.

Lawrence contends the evidence of the impact of Hurst’s death went beyond the scope

permitted by the Federal Death Penalty Act and the Eighth Amendment because it

included inadmissible evidence of the impact on Hurst’s community, co-workers, and

friends, as well as cumulative family-impact evidence.

No. 06-4105 USA v. Lawrence Page 12

Before trial, Lawrence attempted to limit victim-impact evidence. He moved to

strike victim impact as a non-statutory aggravating factor, asked the district court to

allow only one adult member of Hurst’s family to testify and to require use of a prepared

statement to do so, and objected to the government’s intention to introduce evidence of

the impact of Hurst’s death on his friends and the community. The district court denied

Lawrence’s motions and objections and directed that the government’s victim-impact

witnesses each prepare a written statement and submit them to the district court for

review of their admissibility under 18 U.S.C. § 3593(a) and (c). The district court had

the witnesses read their statements verbatim without deviation. At trial, Lawrence raised

a general objection to the testimony from Hurst’s family members.

Evidentiary rulings are generally reviewed for abuse of discretion. See, e.g.,

United States v. Boyd, 640 F.3d 657, 668 (6th Cir. 2011). “The district court abuses its

discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal

standard, or improperly applies the law.” United States v. White, 492 F.3d 380, 408

(6th Cir. 2007). Constitutional challenges and questions of statutory interpretation are

reviewed de novo. See United States v. Harold Jones, 641 F.3d 706, 713 (6th Cir. 2011)

(Fifth and Sixth Amendment challenge); United States v. Rodriguez, 581 F.3d 775, 796

(8th Cir. 2009) (FDPA). An error of law is an abuse of discretion. Koon v. United

States, 518 U.S. 81, 100 (1996). Under the FDPA, an error requires reversal only if the

government cannot establish beyond a reasonable doubt that the error was harmless.

18 U.S.C. § 3595(c)(2)(C); United States v. Lighty, 616 F.3d 321, 363 (4th Cir. 2010).

The FDPA describes victim-impact evidence as “factors concerning the effect

of the offense on the victim and the victim’s family.” 18 U.S.C. § 3593(a). The Act

permits evidence in the form of testimony, a victim-impact statement, “and any other

relevant information.” Id. The Supreme Court has sanctioned the use of victim-impact

evidence in the sentencing phase of a capital trial. “The Eighth Amendment . . . permits

capital sentencing juries to consider evidence relating to the victim’s personal

characteristics and the emotional impact of the murder on the victim’s family in deciding

whether an eligible defendant should receive a death sentence.” Louis Jones, 527 U.S.

No. 06-4105 USA v. Lawrence Page 13

at 395. “‘[T]he State has a legitimate interest in counteracting the mitigating evidence

. . . by reminding the sentencer that just as the murderer should be considered as an

individual, so too the victim is an individual whose death represents a unique loss to

society and in particular to his family.’” Payne v. Tennessee, 501 U.S. 808, 825 (1991)

(quoting Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J., dissenting)). In order

“to assess meaningfully the defendant’s moral culpability and blameworthiness,” the jury

should be permitted to consider the specific harm caused by the crime. Id. However,

victim-impact evidence can violate a defendant’s due process rights if it is “so unduly

prejudicial that it renders the trial fundamentally unfair.” Id. at 825.

Eight witnesses for the prosecution read statements about Hurst and the impact

of his death: his mother, his stepfather, his mother-in-law, his widow, his sister, his

brother, his cousin’s husband, and a police officer who served with him. Hurst’s family

members described his upbringing, his service in the Marines, his decision to join the

Columbus Police Department, and his role as a husband and father. The fellow officer

told of his friendship with Hurst and serving with him on the police force. Several of the

witnesses spoke of their emotional responses to Hurst’s death and called him a hero.

Lawrence challenges in particular the district court’s admission of testimony by

Hurst’s friend and partner on the police force, Sergeant Donald Oliverio. Testimony by

a friend and co-worker, Lawrence argues, is beyond the scope permitted under the FDPA

and Supreme Court precedent.

Courts have interpreted Payne and the FDPA to permit similarly situated

witnesses, i.e., family members, friends, and co-workers, to give victim-impact

testimony. See United States v. Whitten, 610 F.3d 168, 188–90 (2d Cir. 2010); United

States v. Bolden, 545 F.3d 609, 626 (8th Cir. 2008); United States v. Barrett, 496 F.3d

1079, 1098–99 (10th Cir. 2007); United States v. Nelson, 347 F.3d 701, 712–14 (8th Cir.

2003); United States v. Bernard, 299 F.3d 467, 478–80 (5th Cir. 2002). Consistent with

these authorities, we hold that the victim-impact evidence from Hurst’s family members

and fellow police officer was neither improper nor excessive. Accordingly, the district

court did not abuse its discretion by admitting it.

No. 06-4105 USA v. Lawrence Page 14

Lawrence insists that some of the victim-impact evidence clearly exceeded the

scope permitted by the FDPA, citing United States v. Fields, 516 F.3d 923, 946–47 (10th

Cir. 2008). In Fields, the defendant challenged evidence of the impact of the victim’s

death on co-workers and the community. The court was unwilling to approve such

evidence to the extent that it involved “impersonal utilitarian considerations,” but found

its admission harmless under the circumstances. The only co-worker who testified was

also a close friend of the victim, his testimony was about the victim and his friendship,

and the prosecution did not misuse the evidence in closing. Id. at 947. The court found

that nothing in the victim-impact testimony addressed community impact directly and

that the prosecution did not use it as such in its closing argument to the jury. Id. at 948.

In this case, as in Fields, the only co-worker who testified was also a close friend of

Hurst’s. Sergeant Oliverio testified both about his friendship with Hurst and his own

response to Hurst’s death. We find no abuse of discretion in the admission of this

evidence.

Lawrence maintains that the prosecutor compounded the error by emphasizing

the impact of Hurst’s death on his co-workers and the community in closing argument.

Some of government counsel’s closing argument remarks were questionable, suggesting

that others, who did not testify, were affected by Hurst’s death. Yet, the impact of

Hurst’s death on co-workers and the community stems largely from the nature of his job

as a police officer. It was while acting in this capacity that Hurst was killed. For the

most part, government counsel made appropriate use of the facts to illustrate and argue

that Hurst was “an individual whose death represents a unique loss to society and in

particular to his family.” Payne, 501 U.S. at 825. Viewed in context, any excess was

minimal, its impact insignificant. The evidence of the impact of Hurst’s death on people

other than his immediate family was therefore not unduly prejudicial. To the extent any

particular testimony by Oliverio or argument by government counsel ought to have been

disallowed, its admission was ultimately harmless.

No. 06-4105 USA v. Lawrence Page 15

4. Denial of Right to Allocution

Lawrence contends the district court wrongly denied him his right to allocution

in the sentencing phase of trial. Lawrence moved the district court for allocution, relying

on the Due Process Clause of the Fifth Amendment and Fed. R. Crim. P. 32(i)(4)(A)(ii).

The district court denied the motion, holding, consistent with rulings from the Fourth,

Fifth, and Eighth Circuits, that there is no constitutional or statutory right to allocution.

Lawrence was free to address the jury under oath and subject to cross-examination, but

was not permitted to make an unsworn statement. To complete the record, Lawrence

proffered an unsworn written statement that he would have read to the jury had he been

permitted to make allocution. The statement consists of three short paragraphs,

expressing Lawrence’s regret and sorrow for having killed Bryan Hurst and asking for

mercy so he might maintain a relationship with his children and positively affect others

while in prison.

We review the decision to exclude evidence from the penalty phase for abuse of

discretion. United States v. Lujan, 603 F.3d 850, 853 (10th Cir. 2010); United States v.

Fell, 531 F.3d 197, 209, 219–20 (2d Cir. 2008); United States v. Mitchell, 502 F.3d 931,

991 (9th Cir. 2007). The decision specifically to deny allocution is also reviewed for

abuse of discretion. See United States v. Caro, 597 F.3d 608, 635 n.24 (4th Cir. 2010);

United States v. Purkey, 428 F.3d 738, 756 (8th Cir. 2005). Whether the denial of

allocution violates a constitutional right is a question of law reviewed de novo. Purkey,

428 F.3d at 756–57.

The Supreme Court has not expressly recognized a constitutional right to

allocution. The circuits that have addressed the question have held there is no

constitutional right to allocution before a jury in a federal capital sentencing hearing.

United States v. Jackson, 549 F.3d 963, 980–81 (5th Cir. 2008), cert. denied, 558 U.S.

828 (2009); United States v. Honken, 541 F.3d 1146, 1172 (8th Cir. 2008), cert. denied,

558 U.S. 1091 (2009); United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000). See

also Goff v. Bagley, 601 F.3d 445, 464 (6th Cir. 2010) (observing that there is no general

right to allocution under the Constitution). In Boardman v. Estelle, 957 F.2d 1523, 1525

No. 06-4105 USA v. Lawrence Page 16

(9th Cir. 1992), the Ninth Circuit held in a non-capital case that a state court violated the

petitioner’s due process rights by denying his request to speak to the trial court before

sentencing. But Boardman does not help Lawrence because, in this capital case, his

right to allocution before the court prior to sentencing is assured by Fed. R. Crim. P. 32

and was not denied him by the district court. No circuit court of appeals has recognized

a constitutional right to allocution before the jury during the sentencing phase of a

federal capital trial, and Lawrence has cited no authority that persuades us to become the

first circuit to find such a right.

Under Fed. R. Crim. P. 32(i)(4)(A)(ii), dealing generally with sentencing in

federal court, “the court,” before imposing sentence, is required to “address the

defendant personally in order to permit the defendant to speak or present any information

to mitigate the sentence.” Rule 32 does not, however, expressly require the district court

to permit the defendant to address the jury before the jury decides upon a sentence.

Enforcing the plain language of Rule 32, most courts have deemed it satisfied in a

federal capital case—where the jury renders its verdict recommending a sentence of

death or life imprisonment, but the court is required by 18 U.S.C. § 3594 to actually

impose the sentence in accordance with the verdict—if the court allows the defendant

to speak to the court before the sentence is actually imposed. Honken, 541 F.3d at 1172;

Barnette, 211 F.3d at 820; United States v. Hall, 152 F.3d 381, 392–93 (5th Cir. 1998),

abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304 (2000).

Consistent with these authorities, we hold that Rule 32 does not confer a right to

allocution before the jury in a capital case in the form of an unsworn statement not

subject to cross-examination.

Under the FDPA’s sentencing scheme, however, “[t]he defendant may present

any information relevant to a mitigating factor.” 18 U.S.C. § 3593(c). The information

need not be admissible under the rules of evidence, but “may be excluded if its probative

value is outweighed by the danger of creating unfair prejudice, confusing the issues, or

misleading the jury.” Id. Irrespective of whether he had a constitutional or statutory

right to allocution, Lawrence contends the district court ought to have permitted his

No. 06-4105 USA v. Lawrence Page 17

proffered allocution as information relevant to mitigation. Several district courts have

taken this approach and exercised their discretion to permit allocution. See, e.g., United

States v. Wilson, 493 F. Supp. 2d 509, 510–11 (E.D. N.Y. 2007); United States v.

Henderson, 485 F. Supp. 2d 831, 846 (S.D. Ohio 2007). Indeed, allowing allocution “to

mitigate the sentence” only before the court, which has no discretion and is obliged to

impose sentence in accordance with the jury’s recommendation, would seem to be an

“empty formality.” Wilson, 493 F. Supp. 2d at 511; Henderson, 485 F. Supp. 2d at 846.

Further, although the FDPA does not mention allocution, the probative value of the

sound of the defendant’s own voice, explaining his conduct and subsequent remorse in

his own words, as information relevant to mitigation, can hardly be gainsaid. See Green

v. United States, 365 U.S. 301, 304 (1961) (“The most persuasive counsel may not be

able to speak for a defendant as the defendant might, with halting eloquence, speak for

himself.”)

Yet, § 3593(c) also recognizes the district court’s discretion to exclude

information if its probative value is outweighed by the danger of unfair prejudice. See

Caro, 597 F.3d at 635 n.24; Bolden, 545 F.3d at 628. In Wilson and Henderson, the

courts permitted allocution, but only subject to defined conditions and limitations.

Here, the district court did not allow allocution, but did not deny Lawrence the

right to make a statement before the jury under oath and subject to cross-examination.

Lawrence chose not to personally address the jury under these constraints, but he has

not identified any unfairness inherent in the district court’s requirement that any

statement be made under oath. Lawrence presented extensive mitigation evidence,

spanning four days. The mitigation witnesses who testified told of Lawrence’s remorse,

acceptance of responsibility, opportunities for rehabilitation, and family ties, and

Lawrence’s counsel introduced into evidence a journal in which Lawrence apologized

for killing Hurst, expressed love for his children, and said that he was willing to spend

his life in prison.

Considering the record as a whole, Lawrence has failed to show that the district

court abused its discretion by denying allocution. The district court applied the correct

No. 06-4105 USA v. Lawrence Page 18

legal standards in exercising its discretion. The court did not explicitly identify the

unfair prejudice that was deemed to outweigh the probative value of Lawrence’s

proffered unsworn statement. Yet, considering the extent of Lawrence’s mitigation case

and the contents of his short unsworn statement, the court could well have concluded

that the probative value of the statement was limited and cumulative. We are not left

with a definite and firm conviction that the trial court committed a clear error of

judgment in this regard and therefore find no abuse of discretion in the disallowance of

allocution. See United States v. Batti, 631 F.3d 371, 379 (6th Cir. 2011).2

5. Improper Imposition of Death Sentence

Lawrence was found guilty under Count Seven of violating 18 U.S.C. § 2113 by

attempting to commit bank robbery and killing a person in the process. The statute

prescribes life imprisonment or death as possible penalties. 18 U.S.C. § 2113(e).

Lawrence was found guilty under Count Eight of carrying a firearm during and in

relation to attempted armed bank robbery and committing murder. 18 U.S.C. § 924(c),

(j)(1). This offense is subject to punishment “by death or by imprisonment for any term

of years or for life, . . . [e]xcept to the extent that a greater minimum sentence is

otherwise provided by this subsection or by any other provision of law.” Id. In his fifth

claim of error, Lawrence contends that because § 924(c)(1)(A) calls for sentencing under

the provision with the greater minimum sentence, he should have been sentenced only

under the penalty provisions applicable to the Count Seven offense, under which he was

subject to a mandatory minimum sentence of life imprisonment and was sentenced to

life. For support, Lawrence relies on United States v. Almany, 598 F.3d 238 (6th Cir.),

vacated, 131 S. Ct. 637 (2010). In Almany, § 924(c)(1)(A) was interpreted literally to

exempt a criminal defendant from its mandatory minimum sentence if he was subject to

any other greater mandatory minimum sentence. Id. at 241–42.

2

Even if we might prefer that allocution had been allowed, and even if its disallowance were

deemed to lack substantial justification, we would nonetheless be satisfied that any error was harmless

under the circumstances. See 18 U.S.C. § 3595(c)(2)(C).

No. 06-4105 USA v. Lawrence Page 19

Almany’s reasoning was rejected in Abbott v. United States, 131 S. Ct. 18 (2010),

as the Supreme Court vacated our decision in Almany and remanded for further

consideration in light of Abbott. Pursuant to Abbott, the “except” clause of

§ 924(c)(1)(A) refers only to provisions mandating a greater minimum sentence for use

of a firearm in connection with a predicate crime. Abbott, 131 S. Ct. at 26. On remand

in Almany, we restored the sentence that had been originally imposed under § 924(c).

United States v. Almany, 626 F.3d 901 (6th Cir. 2010).

The original Almany decision is thus no longer good law, and Lawrence’s

argument fails. Because the penalty provision applicable to the Count Seven offense,

18 U.S.C. § 2113, does not prescribe a mandatory minimum sentence of life

imprisonment for use of a firearm, it does not come within the reach of the

§ 924(c)(1)(A) “except” clause and does not restrain operation of the § 924(j) penalty

provision applicable to the Count Eight offense under which he was sentenced to death.

We thus reject Lawrence’s fifth claim of error.

6. Arbitrary Imposition of Death Sentence

Lawrence contends that imposition of the death sentence on Count Eight was

arbitrary and therefore violated the Eighth Amendment and the FDPA. He bases this

claim on the fact that six jurors found, as one of fifty-one mitigating factors considered,

that a sentence of life without parole is an appropriate and sufficient punishment, but

nonetheless voted to sentence him to death. Lawrence contends this inconsistency can

only be explained as the product of arbitrariness or confusion.

Under the FDPA, we are required to remand the case for reconsideration or

imposition of a sentence other than death upon finding that the sentence of death was

imposed under the influence of passion, prejudice, or any other arbitrary factor.

18 U.S.C. § 3595(c)(2). Arbitrary imposition of the death penalty violates the Eighth

Amendment. See Gregg v. Georgia, 428 U.S. 153, 188 (1976); Smith v. Mitchell,

567 F.3d 246, 263 (6th Cir. 2009); Getsy v. Mitchell, 495 F.3d 295, 304 (6th Cir. 2007).

No. 06-4105 USA v. Lawrence Page 20

The FDPA requires a higher standard of proof for aggravating factors than

mitigating ones. The prosecution must establish the existence of an aggravating factor

beyond a reasonable doubt, and the jury must agree unanimously. 18 U.S.C. § 3593(c).

The defendant need only establish the existence of a mitigating factor by a

preponderance of the evidence. Id. If one juror finds that the defendant established the

existence of a mitigating factor, all jurors may consider that mitigating factor in the

weighing process. 18 U.S.C. § 3593(d); Louis Jones v. United States, 527 U.S. 373, 377

(1999). However, jurors are not required to find any particular factor mitigating nor to

give it any particular weight. United States v. Basham, 561 F.3d 302, 337 (4th Cir.

2009); United States v. Paul, 217 F.3d 989, 999 (8th Cir. 2000). Under the FDPA, the

jury exercises complete discretion in its determination of whether the aggravating factors

outweigh the mitigating factors. United States v. Sampson, 486 F.3d 13, 31 (1st Cir.

2007); United States v. Allen, 247 F.3d 741, 781 (8th Cir. 2001), vacated on other

grounds, 536 U.S. 953 (2002). “A capital sentencer need not be instructed how to weigh

any particular fact in the capital sentencing decision.” Tuilaepa v. California, 512 U.S.

967, 979 (1994). As the district court instructed the jury and as this court noted in the

prior appeal, “the weighing of mitigating and aggravating circumstances is not to be ‘a

mechanical process.’ Rather, the factors should be considered ‘qualitatively’ and the

decision ‘must be a reasoned response.’” Lawrence, 555 F.3d at 265 n.4. “‘The

weighing is not numeric; the perceived significance, not the number, of aggravating and

mitigating factors determines the decision.’” United States v. Davis, 609 F.3d 663, 673

(5th Cir. 2010) (quoting Louis Jones, 527 U.S. at 408 (Ginsburg, J., dissenting)).

Lawrence’s focus on individual jurors’ findings on a single mitigating factor

distorts the overall picture of the jury’s verdict on Count Eight. In the eligibility phase

of Lawrence’s trial, the jury unanimously found that the government proved, beyond a

reasonable doubt, two statutory aggravating factors: (1) Lawrence killed Hurst in the

commission of an attempted armed bank robbery or in escaping apprehension for such

offense and knowingly created a grave risk of death to one or more persons in addition

to Hurst; and (2) Lawrence killed Hurst in expectation of the receipt of anything of

pecuniary value. In the sentencing phase, the jury unanimously found that the

No. 06-4105 USA v. Lawrence Page 21

government proved, beyond a reasonable doubt, two non-statutory aggravating factors:

(1) Lawrence committed three other bank robberies armed with a firearm, wearing a

mask, and making threats to victims within a year of the commission of the capital

crimes; and (2) the capital crimes committed by Lawrence caused harm to Hurst’s family

members, friends, and community members.

As for the mitigating factors, on Count Eight, the jurors cumulatively made a

total of 304 mitigating factor findings, including two mitigating factors that were not on

Lawrence’s list of forty-nine. While six jurors found that Lawrence’s proposed

mitigating factor—“[l]ife in prison without the possibility of parole is an appropriate and

sufficient punishment”—had been established, six did not and were under no obligation

to consider it. Even the jurors who did find the mitigating factor established were not

obliged to conclude that all the aggravating circumstances failed to outweigh all the

mitigating factors. The jurors who found the mitigating factor established also found the

aggravating factors established, and by a higher standard of proof. It was not arbitrary

for the jury to decide that the aggravating factors outweighed the mitigating factors.

Lawrence contends that the six jurors’ findings that life imprisonment is “an

appropriate and sufficient punishment” was a “binding vote,” preclusive of each of those

six jurors’ prerogative to ultimately find the mitigating factors outweighed by the

aggravating factors. This construction is at odds with the jury instructions, which

defined “mitigating factor” as “simply additional information about Daryl Lawrence’s

life or character, or about the circumstances surrounding the offense, that would suggest,

in fairness and mercy, that a sentence of death is not the most appropriate punishment,

and that a sentence of life in prison without any possibility of release is the more

appropriate punishment.” R. 213, Sentencing Instructions at 29, Page ID # 1684

(emphasis added). Thus, as explained in our earlier ruling, a juror’s finding that a

mitigating factor was established simply represents his or her determination that

Lawrence demonstrated the existence of the factor by a preponderance of the evidence

and that the factor had mitigating weight to be balanced against aggravating factors.

Lawrence, 555 F.3d at 267. Far from being a binding vote, a juror’s finding of a

No. 06-4105 USA v. Lawrence Page 22

mitigating factor—even that life imprisonment is an appropriate punishment—simply

means the factor could be considered by the jury in deciding whether a sentence of death

was not the most appropriate punishment and whether life imprisonment was more

appropriate.

Lawrence has not identified an error in the district court’s instructions, and our

review of the record shows that the court properly set out the burdens of proof, told the

jurors what they could consider as they weighed the sentence, and advised them that the

weighing process was not a mechanical process. There is no indication that the jurors

failed to understand or follow the court’s instructions. Indeed, their detailed findings

with respect to the mitigating factors suggests that they took their duty seriously.

Lawrence’s argument that the Count Eight sentence is arbitrary is unfounded and his

speculation about jurors’ thought processes is unsubstantiated and unavailing. As we

observed in our earlier ruling, “[t]o the extent the differences in the jurors’ mitigation

findings remain unexplained and may give rise to speculation, the fact remains that there

is no evidence that any arbitrary factor ‘most likely’ influenced the bottom line verdicts.”

Id. at 268. We therefore reject Lawrence’s claim that the sentence of death was

arbitrarily imposed.

7. “Pecuniary Gain” Statutory Aggravating Factor

Lawrence contends the district court erred by improperly permitting the jury to

consider pecuniary gain as a statutory aggravating factor in relation to the Count Seven

and Count Eight offenses because pecuniary gain was not expected to follow as a direct

result of the murder. Lawrence challenged the pecuniary gain factor by moving to strike

it from the indictment prior to trial and by filing a motion for judgment of acquittal under

Fed. R. Crim. P. 29 at the close of the government’s case in chief. The district court

denied both motions. We now address the legal sufficiency of the indictment; to the

extent Lawrence challenges the evidentiary support for the charged aggravating factor,

his arguments are addressed below in connection with Claim 9.

No. 06-4105 USA v. Lawrence Page 23

We review the sufficiency of the indictment de novo. United States v. Damra,

621 F.3d 474, 506 (6th Cir. 2010). Statutory interpretation is a matter of law also

reviewed de novo on appeal. Batti, 631 F.3d at 375; see also Bolden, 545 F.3d at 616

(holding that a district court’s interpretation of a statutory aggravating factor is reviewed

de novo). A criminal indictment is facially valid if it: “(1) contains the elements of the

offense charged, (2) fairly informs a defendant of the charge against which he must

defend and (3) enables him to plead an acquittal or conviction in bar of future

prosecutions for the same offense.” United States v. Titterington, 374 F.3d 453, 456 (6th

Cir. 2004) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)) (interior

quotation marks omitted). An indictment need not anticipate affirmative defenses or

exceptions. Id.

Count Seven of the indictment charged that Lawrence attempted to rob a bank,

put employees’ lives in jeopardy with a handgun, and killed Hurst in

committing attempted robbery or attempting to avoid apprehension. Count Eight

charged that Lawrence used and discharged a firearm during the attempted armed

robbery and murdered Hurst in the attempt to perpetrate robbery. The indictment further

alleged, per the grand jury’s special findings, in relation to Counts Seven and Eight, that

Lawrence committed murder during the perpetration of attempted bank robbery in the

expectation of the receipt of anything of pecuniary value, a statutory aggravating factor

under 18 U.S.C. § 3592(c)(8).

On its face, the indictment contains the elements of the pecuniary gain

aggravating factor and informed Lawrence of the charges against which he had to

defend. Lawrence argues, however, that this aggravating factor is not applicable unless

the alleged murder itself was committed for pecuniary gain. It is not enough, he

contends, that the attempted bank robbery was in expectation of receiving pecuniary

gain. Lawrence is right. Although the § 3592(c)(8) pecuniary gain factor does not apply

only to murders-for-hire, it may apply to a killing in the course of a bank robbery only

where pecuniary gain was expected to follow as a direct result of the murder. See

Bolden, 545 F.3d at 615 (collecting cases).

No. 06-4105 USA v. Lawrence Page 24

Yet, the offense conduct alleged in the instant indictment is broad enough to

encompass conduct within the grand jury’s “pecuniary gain” special finding, as

interpreted in the case law. The indictment alleged that Lawrence murdered Hurst in the

attempt to perpetrate robbery. Thus, the indictment sufficiently charged that Lawrence

expected pecuniary gain as a direct result of murdering Hurst. We find no error in the

district court’s refusal to strike the pecuniary gain factor from the indictment.

8. Improper Admission of “Lifestyle Evidence”

Lawrence contends the district court erred by allowing the government to

introduce evidence about Lawrence’s lavish lifestyle as proof of motive because it was

irrelevant to proving the pecuniary gain factor and was overwhelmingly prejudicial. The

government responds that the evidence was relevant because it established a pattern in

the timing of the robberies, explained why the robberies became increasingly violent,

and rebutted Lawrence’s claim that he did not intend to kill Hurst and was not trying to

get to the bank vault when he fired at Hurst.

We review evidentiary rulings for abuse of discretion. Boyd, 640 F.3d at 668.

“The evidence must be viewed ‘in the light most favorable to its proponent, giving the

evidence its maximum reasonable probative force and its minimum reasonable

prejudicial value.’” United States v. Wheaton, 517 F.3d 350, 364 (6th Cir. 2008)

(quoting United States v. Cope, 312 F.3d 757, 775 (6th Cir. 2002)). Under 18 U.S.C.

§ 3593(c), the government may present any information relevant to an aggravating factor

unless “its probative value is outweighed by the danger of creating unfair prejudice,

confusing the issues, or misleading the jury.” The trial court’s “‘discretion in balancing

the probative value of evidence against its potential for unfair prejudice is very broad.’”

United States v. Deitz, 577 F.3d 672, 689 (6th Cir. 2009) (quoting United States v.

Bilderbeck, 163 F.3d 971, 978 (6th Cir. 1999)). Under the FDPA, reversal is required

only if the government cannot establish beyond a reasonable doubt that the error was

harmless. 18 U.S.C. § 3595(c)(2)(C); Lighty, 616 F.3d at 363.

The district court addressed this issue before trial and during the eligibility phase.

The government indicated that it intended to introduce evidence about Lawrence’s

No. 06-4105 USA v. Lawrence Page 25

spending habits and previous bank robberies to establish motive, intent, and the

pecuniary gain aggravating factor. The district court concluded that the evidence was

relevant to Lawrence’s motive and intent because he maintained that he did not shoot

Hurst intentionally, and that the probative value of the evidence was not sufficiently

outweighed by the danger of creating unfair prejudice, confusing the issues, or

misleading the jury. The district court also overruled Lawrence’s objections at trial.

During the guilt phase of trial, the government introduced evidence that

Lawrence robbed three banks between January and September 2004 and attempted to rob

a bank in January 2005. The jury convicted Lawrence of the robberies, the attempted

robbery, and related charges, as well as Counts Seven and Eight. During the eligibility

phase, the government sought to prove the pecuniary gain aggravating factor, one other

statutory aggravating factor, and at least one of the four statutory intent factors. 18

U.S.C. § 3591(a)(2). The government presented three witnesses. Two were friends of

Lawrence who testified about trips they took with him. The third was a police detective

who testified about his attempts to trace the proceeds of Lawrence’s bank robberies. The

evidence showed that Lawrence stole $200,000 in the first bank robbery. Shortly

thereafter, he took two trips to Los Angeles with friends and spent money on expensive

hotel rooms, luggage, tickets to professional basketball games, limousines, jewelry, and

night clubs. He also bought two vehicles at a total cost of about $37,000. A month

before the second bank robbery, Lawrence pawned jewelry and luggage. The second

robbery yielded $7,000 and the third, $80,000. After the third robbery, he reclaimed the

items he had pawned. Shortly before the fourth robbery, Lawrence pawned personal

possessions and his vehicles.

Evidence as to why Lawrence wanted money and how he spent it is not irrelevant

to the pecuniary gain aggravating factor under the circumstances of this case. The

pecuniary gain aggravating factor only applies where pecuniary gain is expected to

follow as a direct result of the murder. Bolden, 545 F.3d at 615. All robberies are for

pecuniary gain; many murders are not. In United States v. Jackson-Randolph, 282 F.3d

369, 378 (6th Cir. 2002), evidence of a defendant’s lavish lifestyle was deemed

No. 06-4105 USA v. Lawrence Page 26

admissible where there was other credible evidence of illegal activity, the money was

not available from a legitimate source, and the periods of wealth or spending correlated

with the periods of alleged illegal activity. Under these circumstances, the evidence was

deemed relevant to both demonstrate motive and support an inference that the defendant

committed the crime. Id.

Here, in evaluating whether the pecuniary gain factor was proven, the jury had

to determine whether Lawrence shot Hurst in order (a) to remove an obstacle to the

attempted bank robbery, or (b) to abort the bank robbery attempt and secure his escape.

If the jury were to find the former, then the pecuniary gain factor would have been

established; if the latter, then the pecuniary gain factor would not have been established.

The government’s purpose in introducing the lavish lifestyle evidence was to show that

Lawrence had become accustomed to certain pleasures that money could buy. Having

learned from earlier robberies that his chances of making a big haul from a robbery were

enhanced if he gained access to the bank vault, the government argued that Lawrence’s

now accustomed lifestyle drove him to threaten or use violence to reach the vault. The

lifestyle evidence was thus offered to help explain the avarice that motivated Lawrence

to commit the bank robberies. The government contended the jury could infer from the

lifestyle evidence that when Hurst became an obstacle, Lawrence, driven by the

compulsion of his spending habits, used deadly force to remove Hurst in expectation of

a greater take from the vault. The government contends this inference is supported by

other facts as well, arguing that Lawrence did not abort the robbery immediately after

firing at Hurst, but only after Hurst returned fire and wounded him.

Evidence is relevant if “it has any tendency to make a fact more or less probable

than it would be without the evidence.” Fed. R. Evid. 401(a). Evidence of the specific

reason for which Lawrence wanted money badly enough to commit several bank

robberies does have some tendency to explain the motivation for Lawrence’s conduct

and could be considered by a rational jury to make it more probable that Lawrence shot

Hurst in order to complete the robbery rather than solely to facilitate his escape. The

government proved that Lawrence entered a bank armed with a loaded weapon, pushed

No. 06-4105 USA v. Lawrence Page 27

his way past customers at the entrance, rushed the teller counter with handgun drawn and

aimed, and shot Hurst as he drew his weapon. Lawrence fled the bank only after Hurst

returned fire and wounded him. There was evidence that Lawrence obtained

substantially more money from the bank robberies in which he reached the vault, instead

of settling for what he could take from a bank teller. This evidence could have been

viewed as shedding light on Lawrence’s motivation for shooting Hurst. We thus find no

error in the district court’s determination that the lifestyle evidence had probative value.

Lawrence maintains that any probative value was outweighed by the danger of

unfair prejudice. He contends the lifestyle evidence was likely to appeal to the jurors’

economic prejudices, triggering resentment and envy. He argues the evidence would

tend to give rise to inferences that Lawrence was shallow, materialistic and of poor

moral character. We acknowledge that the probative value of the lifestyle evidence to

show Lawrence’s motive for shooting Hurst was marginal. We reject the notion,

however, that the lifestyle evidence was unfairly prejudicial. The jury had, in the guilt

phase, just unanimously found beyond a reasonable doubt that Lawrence was guilty of

committing three armed bank robberies and attempting a fourth, and of having killed

Hurst during the course of the attempted bank robbery. Any tendency of the evidence

of Lawrence’s profligate spending habits to impugn his moral character pales in

comparison with the depravity reflected in the conduct of which the jury had already

found him guilty. Lawrence has not shown that the evidence’s probative value was

substantially outweighed by the danger of unfair prejudice.

Accordingly, the district court did not abuse its discretion by admitting the

lifestyle evidence.

9. Sufficiency of Evidence of Pecuniary Gain Motivation

Lawrence contends the government did not present sufficient evidence to support

a finding, beyond a reasonable doubt, that he expected to gain something of pecuniary

value by killing Hurst. Lawrence maintains that he was surprised to see an officer in the

bank, that he fired shots to prevent Hurst from shooting him, that Hurst was not near the

bank vault, that he was in the bank for only around twenty seconds, and that after

No. 06-4105 USA v. Lawrence Page 28

reaching the teller counter, he left the bank without continuing to the vault or taking

anything from a teller drawer.

We review jury findings of aggravating factors under the standard set forth in

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most

favorable to the government, we must uphold the verdict if any rational trier of fact

could have found the existence of the aggravating factor beyond a reasonable doubt. See

Bolden, 545 F.3d at 615; United States v. Agofsky, 458 F.3d 369, 374 (5th Cir. 2006).

Viewing the evidence in the light most favorable to the prosecution, the evidence

was sufficient to support the jury’s finding of the pecuniary gain aggravating factor.

Testimony about the earlier bank robberies indicated that Lawrence brandished a gun at

each one. In the first robbery, he held employees at gunpoint, went behind the teller

counter, and forced employees to open the vault. Lawrence left with over $200,000. He

threatened to shoot people during the second and third robberies. In the second robbery,

Lawrence attempted to force employees to open the vault but did not succeed. He left

with around $7,000. During the third robbery, he held a gun to a bank employee’s head

to force him to open the vault, shoved him to the floor once the vault was open, and fired

a shot that grazed the employee’s foot. Lawrence took around $80,000 from that bank.

This history demonstrates Lawrence’s willingness to use threats of deadly force to get

what he wanted.

As for the attempted robbery, a bank employee testified that Lawrence entered

the bank with a cocked semi-automatic weapon and forced him and two other employees

back into the bank from the vestibule. One of these employees testified that she first

heard shots coming from behind her, where Lawrence was. Another one of the group

of three, an office manager, testified that Lawrence was close behind her when she heard

the first shot fired, on the right side of her ear. A teller behind the teller counter testified

that she saw an arm with a gun come over the top of the counter as Hurst, from behind

the counter, was trying to unholster his weapon. She testified that Lawrence shot Hurst

before Hurst pulled his gun from his holster. A witness testified that at least one of the

shots Lawrence fired at Hurst was from close range, two to three feet. From this

No. 06-4105 USA v. Lawrence Page 29

testimony, although the witnesses were not entirely consistent, a reasonable juror could

find that Lawrence entered the bank armed with a loaded weapon, ran toward the teller

counter, encountered Hurst, and shot him in order to take money from the bank—thus

killing Hurst in expectation of pecuniary gain.

From the bank security camera videotape evidence, which shows Lawrence but

not Hurst,we know that the actual exchange of gunfire was fast and furious, occupying

less than five seconds. The videotape does not definitively disclose who fired first. Nor

does it disclose whether Lawrence fired the fatal shot before he was struck by shots fired

by Hurst or whether Lawrence began his retreat immediately after firing at Hurst or only

after being wounded. It does not disclose Lawrence’s thoughts at the moment he fired

at Hurst. Lawrence clearly had no time to deliberate after first seeing Hurst and realizing

that he was armed. Lawrence reacted instantaneously. It is for this reason that the

history of Lawrence’s prior bank robberies and evidence of his lifestyle was probative

of Lawrence’s state of mind as he entered the bank. Although there is no evidence that

Lawrence attempted to complete the robbery after he was shot, a rational juror could

have reasonably concluded that he fled the bank because he was wounded, not because

his encounter with and shooting of Hurst alone had deterred him from completing the

robbery.

In other words, considering all the evidence in the light most favorable to the

government, we conclude that a rational juror reasonably could have found that

Lawrence, when he fired the fatal shot, still harbored hope and expectation of completing

the robbery. This is sufficient to sustain the finding of the pecuniary gain factor.

Decisions of other courts faced with analogous evidence support this conclusion.

In Bolden, the defendant encountered and struggled with the bank guard even before

entering the bank. The defendant fired two shots which claimed the guard’s life.

Immediately after firing the shots, the defendant fled the scene. The Eighth Circuit

rejected the defendant’s argument that there was insufficient evidence that he killed the

bank guard in expectation of pecuniary gain rather than to eliminate a witness and escape

from a botched robbery. The court found that because the defendant brought a loaded

No. 06-4105 USA v. Lawrence Page 30

gun to a bank and was disappointed that he did not complete the bank robbery, there was

sufficient evidence for a reasonable jury to find that he shot the victim to remove an

obstacle and complete the robbery. Bolden, 545 F.3d at 615–16.

In United States v. Brown, 441 F.3d 1330 (11th Cir. 2006), the defendant stabbed

a postal worker repeatedly and took money orders. It was unclear how many of the stab

wounds had been inflicted before the defendant gained control of the money orders. The

Eleventh Circuit found that there was sufficient evidence of pecuniary gain motivation,

reasoning that “the jury could reasonably have found that [the defendant] killed [the

victim] before he had control of the money orders, and that the killing was necessary so

that [the defendant] could complete the robbery (which, obviously, carried with it the

expectation of pecuniary gain).” Id. at 1371.

In United States v. Barnette, 390 F.3d 775, 807–08 (4th Cir. 2004), vacated on

other grounds, 546 U.S. 803 (2005), the defendant testified that, on the night of the

crime, he wanted a car to drive from North Carolina to Virginia and planned to carjack

somebody. He hid near an intersection waiting for a motorist to stop, confronted the

driver of a stopped vehicle, forced the driver from the car at gunpoint, walked him across

a highway, robbed him and then killed him before driving off in the car. Despite the

defendant’s testimony that he shot the victim “for no damn reason,”—“just being a

damn idiot,” the Fourth Circuit concluded that there was sufficient evidence for the jury

to conclude that the defendant killed the victim in expectation of receiving something

of pecuniary value, namely, the victim’s money and transportation to Virginia. Id. at

808.

Consistent with these authorities, and upon review of the evidence in the light

most favorable to the government, we reject Lawrence’s challenge to the sufficiency of

the evidence supporting the finding of pecuniary gain motivation.

10. “Grave Risk of Death” Statutory Aggravating Factor

Lawrence contends the “grave risk of death” aggravating factor set forth in

18 U.S.C. § 3592(c)(5) should not have been applied in this case because it did not serve

No. 06-4105 USA v. Lawrence Page 31

to narrow the class of death-eligible defendants and unfairly skewed the weighing of

aggravating and mitigating factors. Lawrence moved the district court to strike the

grave-risk-of-death aggravating factor both prior to trial and at the close of the

government’s proofs in the eligibility phase. He maintained that the factor duplicated

the “put in jeopardy the life of employees” element of Count Seven and, by

incorporation, Count Eight, and therefore failed to narrow the class of individuals

eligible for the death penalty, in violation of the Fifth and Eighth Amendments. The

district court denied both motions.

Lawrence’s constitutional challenge to the statutory aggravating factor is

reviewed de novo. See Caro, 597 F.3d at 622; Purkey, 428 F.3d at 761. There are two

stages in the capital sentencing decision making process: the eligibility decision and the

selection decision. Tuilaepa, 512 U.S. at 971. A defendant is rendered eligible for the

death penalty in a homicide case upon a finding by the jury or judge that the defendant

is guilty of murder and the finding of one aggravating circumstance at either the guilt or

penalty phase. Id. at 971–72; Lowenfield v. Phelps, 484 U.S. 231, 244–246 (1988).

“The aggravating circumstance may be contained in the definition of the crime or in a

separate sentencing factor (or in both).” Tuilaepa, 512 U.S. at 972 (citing Lowenfield,

484 U.S. at 244–46). The aggravating circumstance is subject to two limitations. First,

it “may not apply to every defendant convicted of a murder; it must apply only to a

subclass of defendants convicted of murder.” Id. (citing Arave v. Creech, 507 U.S. 463,

474 (1993)). Second, the aggravating circumstance may not be unconstitutionally vague.

Id. Thus, as long as the “narrowing function” of the aggravating circumstance is not

impermissibly vague and is incorporated into the capital sentencing scheme, whether in

the guilt phase or the eligibility phase, the process is not constitutionally infirm.

Lowenfield, 484 U.S. at 246.

In Lowenfield, the jury found the defendant guilty of three counts of murder,

finding him eligible for the death penalty because he had the specific intent to kill or

inflict great bodily harm upon more than one person. The sole aggravating circumstance

found and considered by the jury in returning the sentence of death was that “the

No. 06-4105 USA v. Lawrence Page 32

offender knowingly created a risk of death or great bodily harm to more than one

person.” Yet, though “the aggravating circumstance duplicated one of the elements of

the crime,” the Court held the sentence was not constitutionally infirm, because the

required narrowing function of the aggravating circumstance was performed, albeit

twice. Id.; see also Buell v. Mitchell, 274 F.3d 337, 369 (6th Cir. 2001).

In this case, Count Seven alleged that Lawrence put in jeopardy the lives of bank

employees by means and use of a dangerous weapon (18 U.S.C. § 2113(d)), and killed

Hurst in attempting to commit a bank robbery or avoid apprehension (§ 2113(e)).

Section 2113(d) authorizes twenty-five years’ imprisonment and § 2113(e) authorizes

a sentence of death. Count Eight alleged that Lawrence murdered Hurst with malice

aforethought in the attempt to perpetrate a robbery (18 U.S.C. § 924(j)(1)). Count Eight

expressly incorporated Count Seven. Section 924(j)(1) provides that the penalty for

violating § 924(c) and committing murder is death or imprisonment for life or a term of

years.

The statutory aggravating factor at issue provides that, in determining whether

a death sentence is justified, the jury shall consider whether the defendant knowingly

created a grave risk of death to one or more persons in addition to the victim while

committing or escaping apprehension for the death-eligible offense. 18 U.S.C.

§ 3592(c)(5). In the guilt phase, the jury found Lawrence guilty of all counts in the

indictment and, specifically in relation to Count Seven, found that Lawrence “put in

jeopardy the life of some person by the use of a dangerous weapon while engaged in

attempting to take money.” In the eligibility phase, in relation to Count Seven, the jury

found that Lawrence “knowingly created a grave risk of death to one or more persons

in addition to Bryan Hurst.”

Lawrence does not challenge the aggravating factor on vagueness grounds. He

contends the grave-risk-of-death statutory aggravating factor failed to perform a

narrowing function because it did not narrow the class of offenders eligible for the death

penalty, but merely duplicated the “put in jeopardy” element of Count Seven. First, the

claim is mistaken as a factual matter. The only offenses in the indictment punishable by

No. 06-4105 USA v. Lawrence Page 33

death were violations of 18 U.S.C. § 2113(e) and § 924(j)(1). The jury’s finding that

Lawrence put someone’s life in jeopardy in violation of § 2113(d) did not make him

eligible for the death penalty, so the fact that the § 3592(c)(5) grave-risk-of-death

aggravating factor may have overlapped with § 2113(d) under the facts of this case is of

no consequence.

Second, Lawrence’s claim fails as a matter of law. The FDPA narrows the class

of defendants eligible for the death penalty by requiring the jury to find that the

defendant had the requisite intent under 18 U.S.C. § 3591 and at least one statutory

aggravating factor under 18 U.S.C. § 3592(c). Lighty, 616 F.3d at 368 n.44; Allen,

247 F.3d at 761. Lawrence was eligible for the death sentence by virtue of the jury’s

findings that he committed offenses under 18 U.S.C. §§ 924(j)(1) and 2113(e), that he

had the requisite intent under 18 U.S.C. § 3591(2), and that the government proved two

statutory aggravating factors, grave risk of death and pecuniary gain. 18 U.S.C.

§ 3592(c)(5), (8). The FDPA in general and Lawrence’s prosecution in particular satisfy

the requirement that the aggravating circumstance cannot apply to every defendant

eligible for the death penalty. See Arave, 507 U.S. at 474. The use of the grave-risk-of-

death aggravating factor along with the “put in jeopardy” element of 18 U.S.C. § 2113(d)

did not violate Lawrence’s constitutional rights. Our sister circuits have rejected similar

challenges to aggravating factors under the FDPA. See Lighty, 616 F.3d at 368 n.44;

United States v. Higgs, 353 F.3d 281, 315–16 (4th Cir. 2003); United States v.

McCullah, 76 F.3d 1087, 1109–10 (10th Cir. 1996).

Lawrence cites United States v. McVeigh, 944 F. Supp. 1478, 1489–90 (D. Colo.

1996), for the proposition that allowing the jury “to weigh as an aggravating factor a

crime already proved in a guilty verdict would unfairly skew the weighing process in

favor of death.” The McVeigh ruling is summary in nature and unpersuasive. It has

been soundly rejected by other courts. See United States v. Mayhew, 380 F. Supp. 2d

936, 947 (S.D. Ohio 2005) (collecting cases and objecting to notion of asking jury to

sentence defendant without considering the crime itself ); United States v. Lentz, 225 F.

Supp. 2d 666, 669–70 (E.D. Va. 2002) (noting there is nothing wrong with permitting

No. 06-4105 USA v. Lawrence Page 34

jury to consider crimes for which defendant was found guilty beyond a reasonable doubt

in determining appropriate sentence); United States v. Llera Plaza, 179 F. Supp. 2d 464,

484 (E.D. Pa. 2001) (noting that McVeigh seems to contravene the holding of

Lowenfield).

Accordingly, we reject Lawrence’s challenge to the grave-risk-of-harm

aggravating factor.

11. Prosecutorial Discretion to Charge Non-Statutory Aggravating Factors

Lawrence contends that the FDPA, 18 U.S.C. § 3592(c), by giving counsel for

the government unbridled discretion to propose and argue for jury consideration of

non-statutory aggravating factors, makes an unconstitutional delegation of legislative

authority. The district court denied Lawrence’s motion to strike the noticed non-

statutory aggravating factors—i.e., contemporaneous findings of guilt and victim impact

evidence. Lawrence’s constitutional challenge is reviewed de novo. See Harold Jones,

641 F.3d at 713.

Under the non-delegation doctrine, Congress cannot delegate its legislative

power to another branch of government. Mistretta v. United States, 488 U.S. 361, 371

(1989). However, Congress can seek assistance from coordinate branches. Id. at 372.

In doing so, it must provide “an intelligible principle to which the person or body

authorized to [exercise the delegated authority] is directed to conform.’” Id. (quoting

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)) (alteration in

original). Lawrence contends it is the role of Congress to define crimes and punishments

and that permitting the government to select non-statutory aggravating factors without

limit or guidance violates the non-delegation principle. He contends the FDPA lacks any

intelligible principle and gives prosecutors extensive and unconstrained power to

determine what factors will be used in a particular capital case.

Like all other courts that have considered this argument, we reject Lawrence’s

challenge. First, the express recognition in § 3592(c) of the sentencer’s freedom to

consider non-statutory aggravating factors is hardly a delegation of legislative power.

No. 06-4105 USA v. Lawrence Page 35

See Higgs, 353 F.3d at 321–22; United States v. Louis Jones, 132 F.3d 232, 239–40

(5th Cir. 1998). Second, the FDPA sentencing scheme includes various limits on non-

statutory aggravating factors, such as requiring that prior notice be given to the

defendant, 18 U.S.C. § 3593(a); giving the district court “gatekeeper” responsibility for

limiting admission of unfairly prejudicial information, 18 U.S.C. § 3593(c); and

requiring that the jury find at least one intent element and one statutory aggravating

factor before considering any non-statutory factor, 18 U.S.C. § 3593(d). These

safeguards have been deemed sufficient to limit the prosecutor’s power and render the

delegation of discretion to charge non-statutory aggravating factors constitutional. See

e.g., United States v. Mitchell, 502 F.3d 931, 979 (9th Cir. 2007); Higgs, 353 F.3d at

321–22 ; United States v. Paul, 217 F.3d 989, 1003 (8th Cir. 2000); Louis Jones,

132 F.3d at 239–40. Lawrence cites no persuasive authority to the contrary.

Accordingly, we find no error in the district court’s denial of the motion to strike the

non-statutory factors on this ground.

12. Failure to Charge Non-Statutory Aggravating Factors in Indictment

Lawrence argues that the Fifth Amendment’s Indictment Clause requires the

government to present non-statutory aggravating factors to the grand jury. He reasons

that because a jury in an FDPA case can choose the death sentence only if it finds that

both statutory and non-statutory aggravating factors outweigh the mitigating factors,

both statutory and non-statutory aggravating factors must be found by the grand jury.

The district court denied Lawrence’s motion to strike the notice of intent to seek the

death penalty. We review de novo.

The Indictment Clause of the Fifth Amendment requires that a defendant be

charged with only those charges brought before the grand jury. In Ring v. Arizona,

536 U.S. 584, 609 (2002), the Court held that an aggravating factor necessary for

imposition of the death penalty must be found by the jury, not by the sentencing judge.

After Ring, several courts have held that an indictment charging a death-eligible offense

under the FDPA must charge the statutory aggravating factors. See Brown, 441 F.3d

at 1367; United States v. Bourgeois, 423 F.3d 501, 507 (5th Cir. 2005); United States v.

No. 06-4105 USA v. Lawrence Page 36

Allen, 406 F.3d 940, 942–43 (8th Cir. 2005); Higgs, 353 F.3d at 297–98; United States

v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir. 2002). However, all five circuits that have

considered whether non-statutory aggravators under the FDPA must be submitted to a

grand jury and charged in the indictment have concluded that they do not. See United

States v. Fell, 531 F.3d 197, 236–38 (2d Cir. 2008); United States v. LeCroy, 441 F.3d

914, 922 (11th Cir. 2006); Purkey, 428 F.3d at 749–50; Bourgeois, 423 F.3d at 507–08;

Higgs, 353 F.3d at 298. These courts have reasoned that only those factors necessary

to make a defendant eligible for the death penalty—intent and a statutory aggravating

factor—must be included in the indictment. Non-statutory aggravating factors are

relevant considerations in the sentence selection decision, but do not, in themselves,

determine whether a defendant is “eligible” to be considered for the death sentence. See

Tuilaepa, 512 U.S. at 971–73 (explaining differences between eligibility decision and

selection decision in the capital decision making process). Lawrence has not identified

any contrary authority, and we find the reasoning of our sister circuits sensible and

persuasive. We therefore join them in holding that non-statutory aggravating factors

need not be charged in the indictment to satisfy the Fifth Amendment’s Indictment

Clause.

13. Sufficiency of Evidence to Justify Death Penalty

Lawrence contends the evidence presented at sentencing was insufficient to

support the jury’s finding that the aggravating factors sufficiently outweighed the

mitigating factors to justify death in relation to Count Eight. Under 18 U.S.C.

§ 3595(c)(1), we must address all substantive and procedural issues raised on appeal of

a death sentence and consider “whether it was imposed under the influence of passion,

prejudice, or any other arbitrary factor” and whether the evidence supports the special

finding of the existence of any required statutory aggravating factor. We review the

record to determine not only whether the jury’s decision is supported by the evidence,

but also whether there is evidence of improper influence. “While death penalty

proceedings must be free from passion, prejudice, and other arbitrary factors, a death

penalty case will not be emotionless.” Lighty, 616 F.3d at 369 (quoting Higgs, 353 F.3d

No. 06-4105 USA v. Lawrence Page 37

at 333 (internal alterations omitted)). A sentence of death can be vacated only upon a

“finding” that passion, prejudice, or an arbitrary factor most likely influenced the

sentence. Id.; Agofsky, 458 F.3d at 373. Speculation is insufficient to show arbitrary

influence; there must be some basis for concluding that emotion rather than reason

swayed the jury. Id. at 373–74; Higgs, 353 F.3d at 333.

Among the factors we consider are the following: whether the jury was properly

instructed to base its sentencing decision on the evidence and avoid the influence of

passion, prejudice and arbitrary factors; whether sufficient evidence supported the

aggravating factors; whether the jury’s verdict indicates that it considered the evidence

dispassionately; and whether the trial was conducted fairly. See Basham, 561 F.3d at

338. A determination that the jurors employed the process they were instructed to apply

in selecting the sentence will defeat a claim of arbitrariness. See Paul, 217 F.3d at

1004–05.

Under the FDPA, when determining whether to impose the death sentence, the

jury shall consider the “defendant’s background, record, or character or any other

circumstance of the offense that mitigate against imposition of the death sentence.”

18 U.S.C. § 3592(a)(8). The statute also lists specific mitigating factors not applicable

to Lawrence. 18 U.S.C. § 3592(a)(1)–(7). The FDPA permits introduction of

information “as to any matter relevant to the sentence.” 18 U.S.C. § 3593(c). In

determining a sentence, the jury is permitted to consider the evidence presented during

the guilt phase. See United States v. Catalan-Roman, 585 F.3d 453, 468 (1st Cir. 2009);

United States v. Causey, 185 F.3d 407, 411–12 (5th Cir. 1999). In this case, the jury

convicted Lawrence of two death-eligible offenses: attempted armed bank robbery, with

the additional findings that he put a person’s life in jeopardy by use of a dangerous

weapon and killed Hurst; and using or carrying a firearm during and in relation to an

attempted armed bank robbery, with the additional findings that he brandished a firearm,

discharged a firearm, and murdered Hurst. At the eligibility stage, the jury found

unanimously that Lawrence met the age factor (eighteen or older), the four intent factors,

two statutory aggravating factors, and two non-statutory aggravating factors.

No. 06-4105 USA v. Lawrence Page 38

In the penalty selection phase, which took five full days, more than twenty

witnesses testified on Lawrence’s behalf, including numerous friends and relatives. In

addition, testimony was given by a librarian, a GED instructor at a county jail, a hospital

chaplain, a deputy marshal, a deputy sheriff, a high school football coach, a surgeon who

treated Lawrence after he was wounded in the bank robbery, and psychologist Mark

Cunningham.

The proofs showed that Lawrence was born in 1975 in Marysville, Ohio to a

heroin-addicted mother who was serving time in prison. Lawrence’s mother’s sister took

care of him for the first few months of his life. Twenty-two years old, she was also

raising two of Lawrence’s siblings and other children and was pregnant with yet another

child. Lawrence’s aunt testified that he cried incessantly and had trouble eating.

Lawrence’s great aunt and uncle, Eileen and Manuel “Peewee” Lopez, took Lawrence

in because they believed his aunt was unfit to care for him. Eileen said that Lawrence

was malnourished. She attributed his crying to withdrawal from heroin. The Lopezes

were in their fifties and had several children of their own. Although Ed Lawrence was

listed as Lawrence’s father, his relatives believed that a man named Jerry Hall was

actually his father. Hall died when Lawrence was six years old. Neither Lawrence’s

mother nor his father had more than minimal contact with him.

Manuel and Eileen Lopez had a stormy relationship that had been marked by

physical abuse. Manuel was an alcoholic and sometimes took Lawrence with him to

bars as he drank and picked up women. Manuel, the only father figure in Lawrence’s

early life, died in 1981. The Lopez family had attempted to prevent Lawrence from

having contact with his mother’s side of the family. However, cousins on his mother’s

side lived nearby in the same poor neighborhood, and he associated with them as he

grew older. Lawrence’s brother and several of his aunts, uncles, and cousins spent time

in prison for drug trafficking and weapons offenses. Two relatives enlisted in military

service and secured jobs. Lawrence also spent some time with his aunt and uncle

Yolanda and Greg Tolliver. Greg Tolliver was a pastor and was portrayed as a positive

influence in Lawrence’s life. He died in 2003.

No. 06-4105 USA v. Lawrence Page 39

With financial support from the Lopez family, Lawrence attended private

schools. Family members said he started dealing drugs at age eleven and recalled that

older cousins forced him and other boys to fight each other. He played football in high

school, but changed schools each year. Lawrence did not graduate. He had a few jobs,

but did not work long at any of them. One of his cousins noticed that Lawrence began

driving expensive cars and wearing jewelry, but did not ask where Lawrence got his

money.

Friends and relatives testified that they cared for Lawrence, that he was a good

person, and that they would be deeply affected if he were sentenced to death. They also

stated that if Lawrence were sentenced to life imprisonment, he could help others,

including his children, by encouraging them to avoid a life of crime. Several mentioned

his attachment to his daughter Kennedy, one of five or six children Lawrence fathered.

Lawrence’s friends and relatives also said they would continue to support him while in

prison. They believed he had accepted responsibility for what he had done and had

turned to God. On cross-examination, they admitted that Lawrence was $15,000 behind

in child support, did not pay rent or bills when he lived with a girlfriend for six months,

crashed the girlfriend’s car while driving it without a license and without her permission,

and never repaid money he borrowed from Eileen Lopez.

Law enforcement officials testified that Lawrence was well-behaved and

respectful, although he did file some complaints while in a county jail. A librarian

testified that Lawrence took GED courses. The doctor who treated Lawrence’s gunshot

wounds after the January 2005 attempted bank robbery described his injuries and the

long-term effects. Lawrence lost a finger on his left hand and suffered partial paralysis

in the left arm.

Clinical psychologist Dr. Mark Cunningham testified at length about factors that

contribute to criminal behavior and about their presence in Lawrence’s background. He

had reviewed Lawrence’s school, medical, criminal, and employment records, and had

interviewed Lawrence, his fiancée, his relatives, and jail employees. Dr. Cunningham

also referred to studies by the Department of Justice.

No. 06-4105 USA v. Lawrence Page 40

Dr. Cunningham identified several damaging developmental factors in

Lawrence’s life. He noted that reports that Lawrence was exposed to alcohol and drugs

in the womb were consistent with accounts that he was colicky and experienced

digestive problems and sleep disturbances as an infant. Children exposed to alcohol in

the womb, he testified, tend to be hyperactive and have executive function problems,

such as deficits in impulse control, judgment, responsibility and empathy, as well as

difficulties with delayed gratification. According to the family members Dr.

Cunningham interviewed, Lawrence had sustained a number of head injuries. Some of

these had rendered him unconscious for short periods of time. Dr. Cunningham stated

that Lawrence probably had attention deficit/hyperactivity disorder as a child, although

there was no record that he had been so diagnosed. Lawrence began to abuse alcohol

and drugs as a teen, had failing grades, and was suspended and expelled from school.

Dr. Cunningham noted that there are genetic predispositions for alcohol and drug

dependence and for psychological and personality disorders. He testified that several

of Lawrence’s relatives had histories indicating that Lawrence may have inherited

certain predispositions.

In the Lopez home, Lawrence’s care rotated among Manuel and Eileen and their

adult children. He had no single, stable caretaker. Manuel and Eileen also worked as

house parents for a group of mentally handicapped people. Thus, when he stayed with

them, Lawrence was exposed to a chaotic environment. Dr. Cunningham said that

Lawrence felt abandoned and that children in his situation tend to blame themselves. Dr.

Cunningham explained that a lack of parental structure and discipline in childhood is

commonly associated with aggressive and violent behavior later in life. Neglect is more

damaging than abuse, and abused and neglected children are much more likely to be

arrested as juveniles and adults.

Lawrence was also exposed to sex at an early age. His uncle Donald watched the

Playboy Channel in Lawrence’s presence. Donald and Manuel engaged in adulterous

affairs. Lawrence knew only one faithful man, Greg Tolliver. Lawrence began having

sex when he was eleven or twelve years old and at age thirteen or fourteen regularly had

No. 06-4105 USA v. Lawrence Page 41

sex with a nineteen-year-old woman. Dr. Cunningham testified that early engagement

in sexual activity is injurious in many different ways.

Dr. Cunningham also pointed to community factors. He described the residential

community where Lawrence grew up, a low-income area of Columbus with a high

number of single-parent households, as “toxic.” He said that Lawrence knew no intact

families and knew only five adult men with jobs. There was criminal activity and

violence in the housing projects where Lawrence lived. Twenty-five of his peers had

been in prison, for crimes including drug offenses, murder, extortion, and weapons

violations. Violence and victimization were rampant in the community. Dr.

Cunningham testified that living in such an environment hinders healthy moral

development, especially for a person such as Lawrence, who had been exposed to

alcohol and drugs in the womb, may have been handicapped by certain genetic

predispositions, experienced parental abandonment, and grew up in a chaotic household.

Dr. Cunningham also addressed Lawrence’s potential adjustment to prison. He

testified that Lawrence could make a positive adjustment to prison life, considering his

age (thirty-one), his past behavior in jail (one non-violent infraction), and his

relationship with his family. Dr. Cunningham said that older prisoners and those with

long prison terms tend to adjust better than younger ones with short terms. He noted that

Lawrence was close to completing a GED, and that higher levels of education are

correlated with less violent behavior. Dr. Cunningham referred to evidence tending to

show that prisoners serving life without parole are less likely to commit assaults and that

those convicted of murder are less likely than other prisoners to be violent in prison. Dr.

Cunningham also described the type of prison where Lawrence would likely be

incarcerated if sentenced to life imprisonment and explained the security levels,

privileges, and security measures used.

On cross-examination, Dr. Cunningham said that he had testified in more than

a hundred capital cases, always for the defendant. He acknowledged that there were

hospital records for only one of the head injuries Lawrence had sustained. Dr.

Cunningham said that Lawrence was never charged with drug dealing as a juvenile and

No. 06-4105 USA v. Lawrence Page 42

did not have a criminal record until age twenty-five. There were no reports of child

abuse or neglect investigations by child protective services agencies. Dr. Cunningham

did not conduct any assessment of Lawrence’s psychological functioning or arrive at any

diagnosis, and he was not aware of any other such assessment having been done. He

acknowledged there was no evidence that Lawrence was mentally retarded. The

prosecutor asked Dr. Cunningham about a letter Lawrence wrote to a judge after he was

convicted of receiving stolen property. In the letter, Lawrence said he had become a

Christian, apologized, and mentioned his fiancée and baby. Dr. Cunningham

acknowledged that the letter was self-serving. He stated that he did not diagnose any of

Lawrence’s family members and had based his descriptions of them on the interviews

he conducted. Finally, he said he was unaware of any other family member having

committed armed robbery or homicide.

The prosecution presented eight witnesses: Hurst’s mother, stepfather, sister,

brother, wife, cousin’s husband, and mother-in-law, and a police officer who worked

with Hurst. Hurst’s relatives displayed family photos and read statements about Hurst

and the effect of his death. They recounted his childhood, his career in the military, his

decision to join the Columbus Police Department, and his role as a husband and father.

Hurst married in 2003 and his wife gave birth to a daughter in 2004. Several of the

witnesses called him a hero. Several also described the pain, grief, and fear they

experienced as a result of Hurst’s death. Hurst’s wife spoke of the difficulty of being

a young widow raising a baby on her own.

Upon review of the entire record, we find no evidence that the jury’s decision to

sentence Lawrence to death on Count Eight was the result of passion, prejudice, or any

other arbitrary factor. Before the sentencing hearing, the district court instructed the

jurors that, in determining whether the aggravating factors sufficiently outweighed the

mitigating factors, they could consider any evidence that was presented during the guilt,

eligibility, and sentencing phases of trial. The jury unanimously found beyond a

reasonable doubt that Lawrence possessed the requisite mental states, including that he

killed Hurst intentionally and that he murdered Hurst. To conclude that Lawrence

No. 06-4105 USA v. Lawrence Page 43

murdered Hurst, the jury had to find that Lawrence had malice aforethought, meaning

that he acted deliberately and intentionally or with callous and wanton disregard for

human life.

The jury found two statutory aggravating factors established: that Lawrence

knowingly created a grave risk of death to one or more persons in addition to Hurst; and

that Lawrence killed Hurst in expectation of pecuniary gain. The jury found two non-

statutory aggravating factors established: that Lawrence committed three other bank

robberies armed with a firearm, wearing a mask, and making threats to victims within

a year of the commission of the capital crimes; and that Lawrence caused harm to

Hurst’s family members, friends, and community members by committing his capital

crimes. As indicated above, there was sufficient evidence to warrant the jury’s finding

that Lawrence killed Hurst for pecuniary gain. See 18 U.S.C. § 3592(c)(8). The

evidence was also sufficient to support the finding that Lawrence created a grave risk of

death to people other than Hurst. See 18 U.S.C. § 3592(c)(5). The evidence showed that

Lawrence fired seven shots at Hurst, initiating an exchange of gunfire in a bank lobby

occupied by several employees and customers. See Allen, 247 F.3d at 787 (finding

sufficient evidence to support grave-risk-of-death aggravating factor, where there was

testimony that defendant discharged a rifle five times inside a bank during a robbery

with numerous bank employees and customers present). The victim-impact evidence

was powerful, especially that of Hurst’s wife as she described her life without her

husband and the difficulties of raising their infant daughter alone.

On the other side of the equation, one or more jurors found forty-seven out of

forty-nine proposed mitigating factors established in relation to Count Eight, and jurors

added two of their own: “The death of Greg Tolliver in December of 2003” and “Daryl

Lawrence was forced to participate in family fights by his older cousins.” The

mitigating factors found to be established by at least six jurors included: Lawrence’s

upbringing, that he grew up in extreme poverty, that he was exposed to drugs and

violence as a child, that he was abandoned by both biological parents and never knew

his father, that his biological mother died in 2003, that his father was known as a robber

No. 06-4105 USA v. Lawrence Page 44

and thief, that his mother was a convicted felon, that Lawrence was a product of family

dysfunction and criminality, that he grew up without strong parental guidance, that

Lawrence’s criminality was caused in part by his upbringing, that he was exposed to

alcohol and drugs as a fetus, that Lawrence had remorse for killing Hurst, that he

accepted responsibility for his actions, the contents of Lawrence’s handwritten journal,

that Lawrence had the ability to conform to incarceration and would likely make a

positive adjustment to prison, his potential for rehabilitation, his capacity to be loving

and kind, that Lawrence is a father, his age and education, that he would be able to

maintain positive relationships with family members if sentenced to life, that Lawrence

does not want to die, that his family members want him to live, that his execution would

cause his family great emotional pain and distress, the role of mercy, that Lawrence’s

children would grow up without a father if he were executed, that life imprisonment is

an appropriate and sufficient punishment, that he would never be released from prison,

that the death sentence is a penalty of last resort, that Greg Tolliver died in 2003, and

that Lawrence was forced to participate in family fights. In short, many jurors agreed

with many of the mitigation themes presented and argued by Lawrence’s counsel. The

jury did not overlook or ignore the mitigation evidence. The jurors clearly gave serious

consideration to both the evidence and their responsibility to weigh it. Ultimately, they

unanimously found that the mitigation evidence was outweighed by the aggravating

factors.

It is significant that the FDPA requires a higher standard of proof for aggravating

factors than for mitigating ones. Although all jurors were permitted to consider a

mitigating factor found by any one of them, the jurors were not required to find any

particular evidence mitigating or to give it any particular weight. Basham, 561 F.3d at

337; Higgs, 353 F.3d at 327; Paul, 217 F.3d at 999. Moreover, the jury has complete

discretion in its determination of whether the aggravating factors outweigh the

mitigating factors. Sampson, 486 F.3d at 31; Allen, 247 F.3d at 781. The weighing

process is not numeric. It is the significance, not the number, of aggravating and

mitigating factors that determines the sentence selection decision. See Davis, 609 F.3d

at 673. There was ample evidence of the crimes Lawrence committed and the

No. 06-4105 USA v. Lawrence Page 45

aggravating factors found by the jury. The jury also recognized that Lawrence’s

background was troubled. There is no indication, however, that the jury arbitrarily

overstated the significance of the aggravating factors or understated the importance of

the mitigating factors. In light of the substantial evidence supporting the aggravating

factors found by the jury, we cannot say that the sentence of death was imposed under

the influence of passion, prejudice, or any other arbitrary factor. See Agofsky, 458 F.3d

at 373–74 (holding that speculation is insufficient to show arbitrary influence).

Comparison of the weighing processes and verdicts evaluated and upheld in other federal

death penalty cases confirms our conclusion that the jury’s Count Eight verdict in this

case was supported by sufficient evidence. See Lighty, 616 F.3d at 343–47; Paul, 217

F.3d at 995, 1004–05.

Further, for the reasons stated in our earlier opinion, Lawrence, 555 F.3d at

263–68, we continue to reject Lawrence’s argument that the jury’s verdict of life

imprisonment on Count Seven—although for a similar offense and based on

consideration of similar aggravating and mitigating factors—indicates that its decision

for the death penalty on Count Eight was arbitrary and irrational. The two verdicts are

different, but this difference does not evidence irrationality “where the ‘bottom line’ jury

verdicts are unanimous and not inconsistent.” Id. at 268. As we explained:

They are different, but quite reasonably so, considering that jurors’

mitigation findings differed and the degree of criminal culpability

involved in the two offenses differed. In other words, the difference

between the jury’s bottom line verdicts does not bespeak logical

inconsistency or irrationality, but rather, quite the opposite. To the

extent the differences in the jurors’ mitigation findings remain

unexplained and and may give rise to speculation, the fact remains that

there is no evidence that any arbitrary factor “most likely” influenced the

bottom line verdicts. See Agofsky, 458 F.3d at 373 (holding that death

sentence is not to be vacated absent showing that arbitrary factor “most

likely” influenced the sentence).

Id. Lawrence has failed to identify grounds for belief that any arbitrary factor most

likely influenced the jury’s Count Eight sentencing verdict. We therefore reject

Lawrence’s sufficiency-of-the-evidence challenge.

No. 06-4105 USA v. Lawrence Page 46

14. Double Jeopardy Violation

Lawrence argues that he was prosecuted and sentenced twice for the same

offenses because the bank robberies that formed the bases for his convictions under

Counts One through Six were also used as a non-statutory aggravating factor when he

was sentenced under Counts Seven and Eight. Because Lawrence did not raise this issue

in the district court, we review only for plain error.

The Double Jeopardy Clause of the Fifth Amendment protects against a second

prosecution for the same offense after acquittal or conviction and against multiple

punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994). The

sentencing phase of a capital case is not a successive prosecution for double jeopardy

purposes. Id. at 230; Williams v. Oklahoma, 358 U.S. 576, 586 (1959) (holding that

considering murder as an aggravating circumstance justifying the death sentence for a

kidnaping conviction is not double jeopardy). “Aggravating circumstances are not

separate penalties or offenses, but are ‘standards to guide the making of [the] choice’

between the alternative verdicts of death and life imprisonment.” Poland v. Arizona,

476 U.S. 147, 156 (1986) (quoting Bullington v. Missouri, 451 U.S. 430, 438 (1981)).

A capital sentencer’s finding, or failing to find, an aggravating circumstance does not

“convict” or “acquit” a defendant. Id. See Romano v. Gibson, 239 F.3d 1156, 1178

(10th Cir. 2001). Further, use of prior convictions to enhance a sentence for a

subsequent offense does not constitute double jeopardy. Schiro, 510 U.S. at 230; see

also Witte v. United States, 515 U.S. 389, 399 (1995) (holding that use of evidence of

related criminal conduct to enhance a defendant’s sentence for a separate crime does not

constitute punishment for that conduct within the meaning of the Double Jeopardy

Clause).

Lawrence was not punished twice for any of the bank robberies; rather, the fact

that he had committed prior bank robberies was used as an aggravating factor to be

considered by the jury in selecting the appropriate sentences for homicide under Counts

Seven and Eight. The jury convicted Lawrence of bank robbery and firearms offenses

under Counts One through Six stemming from bank robberies committed during January,

No. 06-4105 USA v. Lawrence Page 47

August, and September 2004. The jury was asked to consider whether “the fact that

Daryl Lawrence, within a year of the commission of the capital crimes, committed three

other bank robberies armed with a firearm, wearing a mask, and making threats to

victims” was an aggravating factor beyond a reasonable doubt. The use of these

convictions as an aggravating circumstance for Counts Seven and Eight was not a

successive prosecution, and the jury did not “convict” Lawrence of anything when it

found that the prior bank robberies were an aggravating factor. Accordingly, Lawrence

was neither prosecuted nor punished twice for the same offenses. The jury’s use of the

prior bank robbery convictions as an aggravating factor did not violate Lawrence’s rights

under the Double Jeopardy Clause.

15. Reasonable-Doubt Instruction Regarding Weighing Process

Lawrence contends the district court erred when it refused to instruct the jurors

that, in order to impose a sentence of death, they had to unanimously agree that the

government had proven beyond a reasonable doubt that the aggravating factors

sufficiently outweighed the mitigating factors. He contends that such a reasonable-doubt

instruction is required under the Fifth and Sixth Amendments and Apprendi v. New

Jersey, 530 U.S. 466 (2000), because a determination that the aggravating factors

outweigh the mitigating factors is a finding of fact that increases the maximum possible

sentence that may be imposed.

We review de novo a claim that a jury instruction improperly or inaccurately

stated the law. United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011). However, the

district court’s refusal to give a requested instruction is reviewed for abuse of discretion.

Id.

Under the FDPA, to justify a sentence of death, the jury must by unanimous vote

determine that the aggravating factors “sufficiently outweigh” the mitigating factors or,

absent mitigating factors, that the aggravating factors alone justify the sentence.

18 U.S.C. § 3593(e). Beyond this, the FDPA does not specify the standard of proof.

The relevant jury instructions given by the district court were entirely consistent with the

No. 06-4105 USA v. Lawrence Page 48

language of § 3593(e). R. 291, Trial Tr. vol. 17 at 97–99, Page ID # 6233–35. In

addition, the court added:

Whether the evidence favoring the death sentence is sufficient to warrant

actually sentencing Daryl Lawrence to death is a question that the law

leaves up to you.

[W]hat is called for in weighing the various factors is not arithmetic, but

your careful, your considered, and your mature judgment.

You must be guided by justice. When I speak of justice, I speak of the

highest ideal of the law and the standard by which societies are

measured. Justice contemplates the careful application of human reason

and experience to a set of circumstances. It contemplates an even-

handed weighing of those circumstances in an effort to reach a fair result.

Id. at 98–99, Page ID # 6234–35. The court, however, refused to instruct the jury that

any determination that the aggravating factors sufficiently outweighed the mitigating

factors to justify the death sentence had to be made beyond a reasonable doubt.

The district court’s refusal was neither legal error nor an abuse of discretion. In

United States v. Gabrion, 719 F.3d 511, 532–33 (6th Cir. 2013) (en banc), we recently

rejected the very argument Lawrence makes here. We concluded that the weighing

process prescribed by the FDPA, 18 U.S.C. § 3593(e), requires “not a finding of fact, but

a moral judgment.” Id. at 533. The weighing process, we held, called on the jury to

decide whether a sentence of death was “just,” a moral judgment on which “the jury did

not need to be instructed as if it were making a finding of fact.” Id. In holding that the

very argument Lawrence now makes is meritless, we joined the six other circuits that

have addressed the question. See United States v. Runyon, 707 F.3d 475, 516 (4th Cir.

2013); United States v. Fields, 516 F.3d 923, 950 (10th Cir. 2008); United States v.

Mitchell, 502 F.3d 931, 993–94 (9th Cir. 2007), cert. denied, 553 U.S. 1094 (2008);

United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007); United States v. Fields,

483 F.3d 313, 345–46 (5th Cir. 2007), cert. denied, 552 U.S. 1144 (2008); United States

v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005).

No. 06-4105 USA v. Lawrence Page 49

The Gabrion ruling is dispositive and controlling. Lawrence’s claim of error

challenging the district court’s refusal to give a reasonable-doubt instruction in

connection with the weighing process is denied.

16. Failure to Give “Solitary Juror” Instruction

Lawrence contends the district court erred by denying his request to instruct the

jury that a solitary juror may prevent the death sentence, thereby violating his Fifth and

Eighth Amendment rights. Again we review de novo a claim that a jury instruction

improperly or inaccurately stated the law. Roth, 628 F.3d at 833. However, the district

court’s refusal to give a requested instruction is reviewed for abuse of discretion. Id.

We will reverse a judgment on the basis of an erroneous instruction only if the

instruction, viewed as a whole, was confusing, misleading, or prejudicial. United States

v. Garcia-Meza, 403 F.3d 364, 372 (6th Cir. 2005).

Lawrence cites Mills v. Maryland, 486 U.S. 367 (1988), and Kubat v. Thieret,

867 F.2d 351 (7th Cir. 1989), arguing that jury instructions in a capital case are

unconstitutional if they prevent jurors from giving due consideration to factors that may

call for a less severe penalty or lead a juror to believe that his or her vote could not affect

the ultimate result. He contends this teaching was applied in State v. Brooks, 661 N.E.2d

1030 (Ohio 1996), to require a “solitary juror” instruction under Ohio’s death penalty

statute. Lawrence argues that the district court’s refusal to give such an instruction in

this case may have led jurors to believe that a life sentence could be imposed only if all

jurors rejected the death penalty.

On review of the instructions, we find no grounds for the notion that a juror could

have reasonably understood them to convey the meaning suggested by Lawrence. In

Mills, the Supreme Court held jury instructions constitutionally infirm because there

was a substantial probability that the jurors may have erroneously thought they were

precluded from considering any mitigating evidence unless all twelve jurors agreed on

its existence. Mills, 486 U.S. at 384. In Kubat, the Seventh Circuit, following Mills,

found instructional error where it was conceded that the instructions misstated Illinois

law by improperly suggesting that a sentence of imprisonment could be imposed only

No. 06-4105 USA v. Lawrence Page 50

if all jurors agreed that the defendant should not be sentenced to death. Kubat, 867 F.2d

at 372–73. The Kubat court implied that the instructions would have passed

constitutional muster if they had clearly stated that the death sentence would not be

imposed if even one juror believed it inappropriate. In Brooks, the Ohio Supreme Court

applied Mills and Kubat, vacating the sentence where the jury was instructed, contrary

to Ohio law: “You are now required to determine unanimously that the death penalty

is inappropriate before you can consider a life sentence.” Brooks, 661 N.E.2d at 1040.

Finding it clear under Ohio law that a solitary juror may prevent a death penalty

recommendation, the Brooks court held that “[j]urors from this point forward should be

so instructed.” Id. at 1042.

None of the instructional errors presented in these cases is evident in the present

case. Here, the district court clearly and repeatedly instructed the jury, consistent with

18 U.S.C. § 3593(e), that, in order for them to decide which was the appropriate

sentence, their verdict, whether for death or life, had to be unanimous. R. 291, Trial tr.

vol. 17 at 84, 97, 99, Page ID # 6220, 6233, 6235. The district court also instructed the

jurors that “[e]ach juror must decide individually whether Daryl Lawrence should be

sentenced to death or to life in prison without any possibility of release.” Id. at 99, Page

ID # 6235. The sentencing verdict forms for Counts Seven and Eight recited “All must

agree” and provided twelve signature lines for the jurors.

The district court declined to give the requested instruction as to the effect of a

single juror’s disagreement, but no conclusion could reasonably be drawn from the

instructions other than that the jury could not return a decision for death, or for life

imprisonment without possibility of release, absent unanimity. By necessary

implication, a single juror’s disagreement would defeat a unanimous decision for either

death or life imprisonment. The court declined to expressly advise the jury that, absent

a unanimous jury decision for one sentence or the other, the court would have the

authority to impose a sentence of imprisonment for life. See 18 U.S.C. § 3594.

However, in language substantially equivalent, the court advised the jury “that if you do

No. 06-4105 USA v. Lawrence Page 51

not sentence Daryl Lawrence to death, he will spend the rest of his life in prison without

any possibility of release.” Id. at 100, Page ID # 6236.

Lawrence argues that his requested instruction was a correct statement of the law.

But not every instruction that could be given must be given. Considering the

instructions as a whole, we find that the concept Lawrence wanted conveyed was

adequately communicated in other instructions. There is no substantial probability that

a reasonable juror could have been led to believe that a sentence of death could be

imposed absent his or her agreement. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th

Cir. 2010) (rejecting a habeas petitioner’s claim that counsel was ineffective for having

failed to request a “solitary juror” instruction because the unanimity instructions

“unmistakably informed the jury that the death penalty must be endorsed by every juror,

and thus that one juror could prevent it.”).

Further, though the requested instruction is a correct statement of the law, its true

effect is to advise the jury of the consequences of its failure to reach unanimity, a type

of instruction the Constitution does not require. See Louis Jones v. United States,

527 U.S. 373, 381–84 (1999). In Jones, the Court took notice of the “strong

governmental interest” in obtaining a unanimous sentencing decision. The Court

recognized that initially instructing the jurors on the consequences of their potential

failure to agree, i.e., that the court would impose a life sentence, would tend to

undermine that interest by inviting the jurors to avoid their responsibility by disagreeing.

Id. See also Williams v. Anderson, 460 F.3d 789, 809–10 (6th Cir. 2006); Coe v. Bell,

161 F.3d 320, 339–40 (6th Cir. 1998).

Lawrence insists that the instructions actually given might have led jurors to

believe that a life sentence was possible only if all jurors rejected the death sentence.

We flatly reject this argument. The instructions simply cannot reasonably be so

construed. But even if a juror could conceivably have misunderstood the instructions

in this way, such a possible misunderstanding would not render proper instructions

unconstitutional. So-called “acquittal first” instructions have not been held

No. 06-4105 USA v. Lawrence Page 52

unconstitutional or otherwise contrary to federal law. See Bobby v. Mitts, 131 S. Ct.

1762, 1765 (2011); Smith v. Spisak, 558 U.S. 139, 148 (2010).

Accordingly, the district court did not err when it refused to give the requested

“solitary juror” instruction.

17. Adequacy of “Malice Aforethought” Instruction

In relation to the Count Eight murder charge, Lawrence argues that the district

court erred in its definition of “malice aforethought” in the guilt phase instructions.

Lawrence did not object to the jury instructions at trial and in fact proposed the very

same language the district court used. It follows that Lawrence has essentially waived

his right to appellate review under the “invited error” doctrine. See Fulcher v. Motley,

444 F.3d 791, 798–99 (6th Cir. 2006) (recognizing that an appellant may not later claim

error in instructions he had submitted); United States v. Barrow, 118 F.3d 482, 490 (6th

Cir. 1997) (same). Lawrence’s waiver does not absolutely foreclose review if the

interests of justice demand relief, but he must meet the requirements of plain-error

review. United States v. Savoires, 430 F.3d 376, 381 (6th Cir. 2005). Lawrence must

show that any flaw in the instruction was plain error that so seriously affected his

substantial rights as to impugn the integrity and outcome of the proceedings. Puckett,

556 U.S. at 135.

Section 924(j), under which Lawrence was convicted in Count Eight,

incorporates the definition of murder contained in 18 U.S.C. § 1111. Ostrander,

411 F.3d at 688. Section 1111 defines murder as “the unlawful killing of a human being

with malice aforethought.” The district court instructed the jury that malice aforethought

means “either to kill another person deliberately and intentionally or to act with callous

and wanton disregard for human life.” Citing United States v. Branch, 91 F.3d 699, 734

(5th Cir. 1996), Lawrence now asserts on appeal that the jury should have been

instructed that “if intent to kill is not established, the government must prove ‘an intent

willfully to act in callous and wanton disregard of the consequences to human life.’” He

argues that, by omitting the words “an intent willfully” from the latter half of the

No. 06-4105 USA v. Lawrence Page 53

definition, the district court’s instruction diminished the mens rea element that the

government was required to prove.

A challenge to the mens rea element of a similar malice-aforethought definition

was addressed in United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995). We held

that an instruction defining malice aforethought as including either intentional

wrongdoing or recklessness with extreme disregard for human life adequately spelled

out the requisite mens rea element. Id. In Garcia-Meza, 403 F.3d at 371–72, moreover,

we upheld a definition of malice aforethought that was materially identical to the present

definition. The instruction given in this case is entirely consistent with governing Sixth

Circuit authorities. That other courts have used a slightly different formulation does not

mean the definition used in this case was deficient. Lawrence falls far short of

persuading us that the definition of malice aforethought given to the jury was confusing,

misleading or prejudicial. He has failed to show error, much less plain error.

18. Prosecutorial Misconduct during Closing Argument

Lawrence argues that the government committed misconduct during closing

argument at sentencing in four distinct ways: (a) by asking the jury to impose the death

sentence to protect community values and deter criminal conduct by others, rather than

by individualized balancing of Lawrence’s aggravating and mitigating factors; (b) by

arguing that Lawrence’s exercise of his right to trial demonstrated that he did not accept

responsibility for his actions; (c) by asking the jury to comparatively weigh the value of

Hurst’s life and Lawrence’s life; and (d) by unfairly denigrating Lawrence’s expert

mitigation witness, Dr. Cunningham.

Generally, the prosecuting attorney is given “wide latitude” during closing

argument and any challenged remarks are evaluated in the context of the trial as a whole.

United States v. Boyd, 640 F.3d 657, 669 (6th Cir. 2011). “The prosecution is not

required to present closing arguments that are ‘devoid of all passion.’” Id. at 670

(quoting Byrd v. Collins, 209 F.3d 486, 532 (6th Cir. 2000)). We employ a two-step

process in reviewing claims of prosecutorial misconduct. First, we determine whether

the prosecutor’s comments were improper. Second, if the comments were improper, we

No. 06-4105 USA v. Lawrence Page 54

consider whether they were so flagrant as to warrant reversal. United States v. Carson,

560 F.3d 566, 574 (6th Cir. 2009). To warrant reversal, prosecutorial misconduct must

have rendered the trial fundamentally unfair. United States v. Warshak, 631 F.3d 266,

305 (6th Cir. 2010). Four factors guide our determination of flagrancy: “‘(1) whether

the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the

defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether

the remarks were deliberately or accidentally made; and (4) whether the evidence against

the defendant was strong.’” Carson, 560 F.3d at 574 (quoting United States v. Carter,

236 F.3d 777, 783 (6th Cir. 2001)). See also United States v. Ham, 628 F.3d 801, 810

(6th Cir. 2011). Ordinarily, a claim of prosecutorial misconduct is reviewed de novo,

but where the defendant failed to object during trial, the claim is reviewed for plain

error. Carson, 560 F.3d at 574.

(a) “Send a Message” Remarks

Lawrence’s argument that the prosecutor improperly asked the jury to send a

message to the community is based primarily on the following remark:

[I]f you make it loud and clear that the community will not tolerate this

conduct, the community will not tolerate a man dying because of money,

will not tolerate people entering banks with firearms and killing people

trying to protect us, if you make that crystal clear, it may save the next

Bryan Hurst.

R. 291, Trial tr. vol. 17 at 69, Page ID # 6205. Lawrence objected, arguing that the

“send a message to the community” argument was improper. The district court

overruled the objection. On appeal, Lawrence not only challenges this remark, but also

contends that the prosecution overstepped its bounds: (1) by arguing that Hurst’s murder

affected the police family “beyond the borders of the State;” (2) by asking the jury to tell

Hurst’s wife, through their verdict, that “they did do the right things in life;” and (3) by

asking the jury to tell police officers and the community “what weight you give to their

loss, to their plight, to their ability to fight fear and to do their job.” Id. at 33, 67, 69,

Page ID # 6169, 6203, 6205. Lawrence objected to the first of these remarks but not the

second or third.

No. 06-4105 USA v. Lawrence Page 55

In United States v. Solivan, 937 F.2d 1146, 1150 (6th Cir. 1991), the court

recognized that because a jury will normally place great confidence in the faithful

execution of the obligations of the prosecuting attorney, the prosecutor must observe a

high standard of conduct to ensure that the defendant’s right to a fair trial is not

prejudiced. The prosecutor must avoid “undignified and intemperate” arguments and

arguments that may contain “improper insinuations and assertions calculated to mislead

the jury” by inciting passion and prejudice. Id. However, “[u]nless calculated to incite

the passions and prejudices of the jurors, appeals to the jury to act as the community

conscience are not per se impermissible.” Id. at 1151. Nor is it improper for the

prosecutor to make an “allusion to the general need to convict guilty people.” Id. at

1154.

In Solivan, the prosecutor was deemed to have gone too far by appealing to the

jury’s “fear surrounding the War on Drugs” in a calculated attempt to “arouse passion

and prejudice and to inflame jurors’ emotions regarding the War on Drugs by urging

them to send a message and strike a blow to the drug problem.” Id. at 1153. Explaining

why such arguments prejudiced the defendant’s right to a fair trial, the court observed:

A prosecutor may not urge jurors to convict a criminal defendant in order

to protect community values, preserve civil order, or deter future law

breaking. The evil lurking in such prosecutorial appeals is that the

defendant will be convicted for reasons wholly irrelevant to his own guilt

or innocence. Jurors may be persuaded by such appeals to believe that,

by convicting a defendant, they will assist in the solution of some

pressing social problem. The amelioration of society’s woes is far too

heavy a burden for the individual criminal defendant to bear.

Id. (quoting United States v. Monaghan, 741 F.2d 1434, 1141 (D.C. Cir. 1984)). In

contrast, Solivan was distinguished in Hicks v. Collins, 384 F.3d 204 (6th Cir. 2004),

where remarks such as “it is time you sent a message to the community” and “the people

in the community have the right to expect that you will do your duty,” were deemed

permissible. Id. at 219. Such statements were deemed legitimate references to “the

general community need to convict guilty people” that did not mislead or inflame the

jury by appealing to a need to solve a wider social problem. Id.

No. 06-4105 USA v. Lawrence Page 56

In light of these standards, some of the prosecutor’s comments may have skirted

the line of impropriety. Solivan may be distinguished where a prosecutor is seeking a

particular punishment rather than seeking a conviction. But by invoking the need to

protect community values and deter criminal conduct by others and by asking the jury

to communicate messages to Hurst’s family, the police community and the community

in general, the prosecutor invited the jurors to consider arguably irrelevant factors. Still,

the prosecutor did not expressly link the jury’s verdict in Lawrence’s case to other bank

robbers and murderers or to the need to address any particular social problem. The

prosecutor’s references to community values were brief and general and represent a

permissible request for the jury to act as the community conscience. The remarks do not

appear to have been calculated to mislead or inflame the passions of the jurors. They

were devoid of improper insinuations and were not intemperate or undignified. Further,

insofar as impact-on-the-community evidence was properly admitted to establish a non-

statutory aggravating factor, on which the court instructed the jury, the prosecutor was

entitled to comment on the evidence in closing argument.

Moreover, the complained of comments were not flagrant or extensive and did

not result in prejudice to Lawrence’s rights. The district court instructed the jury that

arguments by counsel were not evidence, and explained that the jurors were to weigh the

aggravating factors proven by the prosecution against any mitigating factors established

by the defense to determine the appropriate sentence. Although Lawrence presented

extensive mitigation evidence and the jurors found that he had established several

mitigating factors, the evidence of aggravating factors was strong. On balance, the

prosecutor’s remarks did not amount to flagrant misconduct and did not render

Lawrence’s sentencing fundamentally unfair.

(b) Exercise of Right to Trial

Lawrence next contends the prosecutor engaged in misconduct by challenging

Lawrence’s assertion, as a mitigating factor, that he had accepted responsibility for his

actions. The prosecuting attorney pointed out that Lawrence had contested the charges

at trial and had “denied all the elements of the offenses.”

No. 06-4105 USA v. Lawrence Page 57

The prosecution’s use of a defendant’s exercise of his constitutional rights

against him may amount to prosecutorial misconduct. See, e.g., Griffin v. California,

380 U.S. 609, 615 (1965) (holding that neither the prosecutor nor the trial court can

comment on or instruct the jury that defendant’s invocation of his Fifth Amendment

right to remain silent at trial is evidence of guilt). On the other hand, a prosecutor can

make a fair response to a claim made by the defendant or his counsel. See United States

v. Robinson, 485 U.S. 25, 32 (1988) (holding that where trial counsel alleged the

government had denied the defendant the opportunity to explain his actions and the

defendant did not testify, it was permissible for the prosecutor to comment that

defendant could have taken the stand).

Here, the claim is not that the prosecutor commented on Lawrence’s failure to

take the stand but on his decision to go to trial. The specific remarks challenged are as

follows:

[Lawrence] claims that he has accepted responsibility for his actions.

Yet, I thought we had a trial. He denied all of the elements of the

offenses – [objection, overruled]. It was even claimed – even claimed

during the course of the trial that Officer Hurst shot first and the

defendant returned fire. And he has accepted responsibility?

R. 291 Trial tr. vol. 17 at 23, Page ID # 6159. Although Lawrence did not testify,

several witnesses said that he had accepted responsibility. Similar sentiments were also

expressed in a journal entry written by Lawrence that was entered into evidence. The

prosecutor’s remarks thus represented a comment on the evidence, tending to question

or impeach the evidence by referring to Lawrence’s actions in response to prosecution.

Contrary to Lawrence’s argument, the prosecutor did not tell or ask the jury to ignore or

disregard the evidence. See Bolden, 545 F.3d at 630 (observing that the prosecutor may

argue that asserted mitigating factors are entitled to little or no weight, as long as jurors

are not told to ignore or disregard mitigators). The fact that Lawrence had gone to trial

on the charges against him was a fact the jurors were invited to consider in weighing the

evidence that he had accepted responsibility.

No. 06-4105 USA v. Lawrence Page 58

A defendant’s denial of guilt and putting the government to the burden of proving

guilt is ordinarily relevant in evaluating the defendant’s entitlement to mitigating credit

for acceptance of responsibility. Its probative value is clearly diminished, however,

where, as here, the defendant sought but was denied a plea agreement that would have

precluded the death penalty. R. 279, Trial tr. vol. 5 at 195–96, Page ID # 4089–90. The

suggestion that Lawrence’s exercise of his right to trial, in order to avoid death, refutes

evidence that he accepted responsibility for his actions carries little weight. In this

respect, the remark may be viewed as having a slight tendency to mislead the jurors. But

even if the prosecutor’s comments were deemed improper, they were not flagrant. See

Ham, 628 F.3d at 810. Lawrence’s exercise of his right to trial, a fact well known to the

jury, was mentioned only once by the prosecutor, an isolated remark. The point was not

unduly emphasized. The district court instructed the jury that it was to make its decision

based only on the evidence presented in court and that the attorneys’ arguments were not

evidence. Viewing the remark in the context of the trial as a whole, the likelihood that

the jurors were prejudicially misled is minimal. This is corroborated by the fact that

eight jurors found that Lawrence had proved acceptance of responsibility as a mitigating

factor for Count Eight.

In sum, the prosecutor’s comments on Lawrence’s exercise of his right to trial

did not amount to flagrant misconduct and did not render Lawrence’s sentencing

fundamentally unfair.

(c) “Comparative Worth” Remark

At the end of his initial closing argument, after reviewing and discounting

Lawrence’s mitigating evidence and after summarizing the aggravating factors, the

prosecutor invited the jury to consider the victim-impact evidence and weigh it against

the “wasted life of Daryl Lawrence.” The “wasted life” comment was the prosecutor’s

characterization of the product of Lawrence’s poor choices. Lawrence contends this

contrasting of Hurst’s promising, vibrant, and valuable life with Lawrence’s “wasted

life” was improper, citing Payne v. Tennessee, 501 U.S. 808 (1991).

No. 06-4105 USA v. Lawrence Page 59

In Payne, the Court observed that victim-impact evidence may be offered to

show each victim’s “uniqueness as an individual human being”; it is not offered to

encourage comparative judgments of victims as though to suggest that the killer of a

hardworking, devoted parent should be punished more severely than the killer of a

reprobate. Payne, 501 U.S. at 823. The Payne Court recognized that “for the jury to

assess meaningfully the defendant’s moral culpability and blameworthiness, it should

have before it at the sentencing phase evidence of the specific harm caused by the

defendant.” Id. at 825. The Court recognized the government’s legitimate interest in

“counteracting” the defendant’s mitigating evidence by reminding the sentencer that the

victim, like the murderer, is an individual whose death represents a unique loss to family

and society. Id.

The argument said to be improper is thus entirely consonant with the teaching

of Payne. The prosecutor’s urging the jury to “weigh” the victim-impact evidence

against Lawrence’s mitigating evidence is entirely consistent with Payne’s recognition

that victim-impact evidence is properly considered to “counteract” the mitigating

evidence in helping the jury evaluate moral culpability. See United States v. Fields, 483

F.3d 313, 340–41 (5th Cir. 2007) (“[T]o the extent that the Court [in Payne] expressed

disapproval of comparative worth arguments, it did so only with regard to victim-to-

victim comparisons, not victim-to-defendant comparisons.”); Humphries v. Ozmint, 397

F.3d 206, 224 n.8 (4th Cir. 2005) (same). The prosecutor’s argument is also consistent,

of course, with the instruction requiring the jury to weigh the aggravating and mitigating

factors.

Granted, the prosecutor’s characterization of Lawrence’s life as “wasted” was

indelicate, but it was not so inappropriate as to render the remark improper or flagrant.

There is no likelihood the remark misled the jury or so prejudiced Lawrence as to render

the sentencing fundamentally unfair.

No. 06-4105 USA v. Lawrence Page 60

(d) Denigrating of Expert Testimony

Finally, Lawrence contends the prosecutor committed misconduct during closing

argument by unfairly denigrating Lawrence’s expert witness, Dr. Mark Cunningham.

Lawrence complains that the prosecutor distorted Dr. Cunningham’s testimony by

characterizing it as suggesting that Lawrence was not morally responsible for his crimes.

He also contends the prosecutor unduly emphasized Dr. Cunningham’s fee of $20,000

and his history of having testified in 110 capital cases, always for the defense.

Lawrence’s trial counsel did not object.

The prosecutor should not express his opinion as to a witness’s credibility, but

he may highlight inconsistencies or inadequacies in the defense, and may forcefully

assert reasonable inferences from the evidence. Bates v. Bell, 402 F.3d 635, 646 (6th

Cir. 2005). Here, the prosecutor’s comments about Dr. Cunningham were not improper

or flagrant, and thus could not be plain error. The prosecutor did not ridicule or express

his personal opinion about Dr. Cunningham’s testimony. The prosecutor’s remark that

Dr. Cunningham claimed Lawrence was not morally responsible for his crimes, while

inaccurate, was in response to an argument by defense counsel drawing a distinction

between legal and moral culpability. Moreover, Lawrence’s counsel responded to the

prosecutor’s mischaracterization in her closing argument, insisting that Lawrence was

not trying to minimize or excuse his actions. The prosecutor’s reference to Dr.

Cunningham as a “professional witness” was fair comment on the evidence before the

jury.

Under the FDPA, the government and the defendant are permitted to rebut

information received at the sentencing hearing and present arguments as to any

aggravating or mitigating factor. 18 U.S.C. § 3593(c); United States v. Montgomery,

635 F.3d 1074, 1097 (8th Cir. 2011). The prosecutor’s comments on Dr. Cunningham’s

testimony were fair comment and did not deprive Lawrence of a fair sentencing hearing.

Cf. Slagle v. Bagley, 457 F.3d 501, 523 (6th Cir. 2006) (holding that prosecutor’s

characterization of petitioner’s expert witness testimony as “liberal quack theories” was

improper, but not so flagrant as to deprive petitioner of fair sentencing hearing).

No. 06-4105 USA v. Lawrence Page 61

In sum, taken individually or cumulatively, the comments complained of did not

deprive Lawrence of a fair sentencing hearing.

19. Denial of Suppression Motion

Lawrence contends the district court erred when it denied his motion to suppress

statements he made to the police during interrogation after he was arrested. Lawrence

contends that he was in pain, having sustained a gunshot wound to the left arm and hand

three days earlier during the attempted bank robbery, and that the police denied him

medical treatment until the interrogation was completed. Though he was advised of his

Miranda rights, Lawrence contends the government failed to prove that he voluntarily

and knowingly waived those rights. The district court held an evidentiary hearing on

Lawrence’s motion to suppress and viewed a videotape of the interrogation and

Lawrence’s statement. The district court issued a fourteen-page opinion denying the

motion in material part. Without specifically identifying error in the district court’s

opinion, Lawrence maintains that he did not effectively waive his Miranda rights.

When reviewing the denial of a motion to suppress a statement allegedly taken

in violation of a defendant’s Miranda rights, we review the district court’s factual

findings for clear error and its legal conclusions de novo. United States v. Al-Cholan,

610 F.3d 945, 953 (6th Cir. 2010). A factual finding is clearly erroneous only when the

reviewing court “is left with the definite and firm conviction that a mistake has been

committed.” United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999). We

defer to the district court’s assessment of credibility, United States v. Hill, 195 F.3d 258,

264–65 (6th Cir. 1999), review the evidence in the light most likely to support the

district court’s decision, Al-Cholan, 610 F.3d at 954, and consider the evidence in the

light most favorable to the government, United States v. Pacheco-Lopez, 531 F.3d 420,

423 (6th Cir. 2008).

“Statements made in response to custodial police interrogation must be

suppressed unless the suspect first waived his Miranda rights ‘voluntarily, knowingly

and intelligently.’” Al-Cholan, 610 F.3d at 954 (quoting Colorado v. Spring, 479 U.S.

564, 572 (1987)). In determining whether a waiver is valid, we examine the totality of

No. 06-4105 USA v. Lawrence Page 62

the circumstances. Fare v. Michael C., 442 U.S. 707, 724 (1979). A voluntary waiver

is “the product of a free and deliberate choice rather than intimidation, coercion, or

deception” and is “made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.” Moran v. Burbine,

475 U.S. 412, 421 (1986). The question is not whether Lawrence knew and understood

every possible consequence of a waiver, but rather whether he knew that he could

“‘choose not to talk to law enforcement officers, to talk only with counsel present, or to

discontinue talking at any time.’” Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009)

(quoting Colorado v. Spring, 479 U.S. at 574). “[A] waiver of Miranda rights may be

implied through ‘the defendant’s silence, coupled with an understanding of his rights and

a course of conduct indicating waiver.’” Berghuis v. Thompkins, 130 S. Ct. 2250, 2261

(2010) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). “As a general

proposition, the law can presume that an individual who, with a full understanding of his

or her rights, acts in a manner inconsistent with their exercise has made a deliberate

choice to relinquish the protection those rights afford.” Id. at 2262.

According to testimony at the evidentiary hearing, police officers arrested

Lawrence at around 9:30 a.m. on January 9, 2005, in Columbus, Ohio, three days after

the attempted bank robbery and killing. The officers did not read him his Miranda

rights. Lawrence was handcuffed behind his back and transported to the Columbus

Police Department. An officer who observed him said Lawrence appeared to be

uncomfortable and in pain, as his left arm was wrapped in a thick white bandage and a

soft cast. Lawrence said he was missing some fingers and had a bullet lodged in his

forearm. Lawrence did not complain of pain and did not ask for medical attention. The

officer did not read Lawrence his Miranda rights or question him.

At the Columbus Police Department, Lawrence was interrogated by Detective

James McCoskey and FBI Special Agent Harry Trombitas. The interview began at

10:42 a.m. The videotape showed that McCoskey told Lawrence he knew he was in

pain. R. 120, Opinion at 10, Page ID # 844. McCoskey informed Lawrence that he was

being charged with bank robbery. McCoskey asked Lawrence if he would talk.

No. 06-4105 USA v. Lawrence Page 63

Lawrence responded that he was sorry and wanted to cooperate, saying, “Let’s get this

over with.” Id. McCoskey questioned Lawrence about his education, literacy, hearing,

and vision and about whether he had consumed any alcohol or narcotics within the

previous twenty-four hours. Lawrence said that he was in the habit of smoking

marijuana, but was “perfectly fine.” Id.

McCoskey had Lawrence read a Miranda rights form out loud, explained the

rights, and asked Lawrence if he understood. Lawrence responded by asking what time

it was. McCoskey told him the time and then read a waiver form to Lawrence.

Lawrence indicated that he understood. When McCoskey asked Lawrence to sign the

waiver form, Lawrence refused, saying: “I don’t want to sign anything. I’ll talk to you

guys.” Id. at 11, Page ID # 845. Lawrence confessed to shooting Hurst and robbing

other banks. The interrogation lasted about one hour.

McCoskey testified that it was apparent that Lawrence was in some pain and that

he saw Lawrence wince. After being offered a break in the questioning, Lawrence

indicated he needed to get to the hospital. McCoskey denied telling Lawrence that he

would take him to the hospital as soon as he finished answering questions, but said he

told Lawrence that they were going to get him to the hospital. R. 176, Suppression Hrg.

tr. at 61–62, Page ID # 6335–36. Lawrence did not otherwise indicate that he was in

pain or request medical attention, and he did not ask for an attorney. R. 120, Opinion

at 11, Page ID # 845.

Lawrence introduced a hospital-admission assessment form through a nurse. The

form indicated that Lawrence was assessed at 9:20 p.m. on the day of the interrogation.

He told the nurse that his pain was at nine on a scale of zero to ten, and he complained

of constant and burning pain. The form also recorded that he had problems with

cognition/perception.

The district court was “convinced” that Lawrence knowingly, willingly, and

voluntarily waived his Miranda rights when he gave his statement to the police.

According to the court, Lawrence appeared alert, his voice was strong, and he did not

slur his words. The district court found that the videotape refuted Lawrence’s claim that

No. 06-4105 USA v. Lawrence Page 64

pain prevented his statement from being voluntary. The court noted that Lawrence

declined breaks and did not ask for medical attention. The court concluded that

Lawrence had an overall desire not only to waive his rights, but also to “admit to the

crimes he had committed.” R. 120, Opinion at 11–12, Page ID # 846–47.

Deferring to the district court’s assessment of credibility and viewing the

evidence in the light most favorable to the government and most likely to support the

district court’s decision, we find no basis for holding that the district court clearly erred

in its factual findings or misapplied the law. The facts found by the district court show

that Lawrence understood his rights and chose to waive them by speaking to the officers.

Although Lawrence did not sign the waiver form, he showed no reluctance to talk and

did not invoke his rights to remain silent or to request an attorney.

Moreover, there is no evidence to support Lawrence’s argument that the police

prohibited him from receiving medical attention. McCoskey acknowledged that

Lawrence appeared to be in pain, but Lawrence did not ask for immediate medical

attention or indicate that he was in such pain that it affected the voluntariness of his

statement. Lawrence was shot on January 6, treated at a hospital on January 7, and

questioned on January 9. The fact that he told a nurse several hours later that he was in

considerable pain does not establish how much pain he was in while being questioned

ten or eleven hours earlier. Considering the totality of the circumstances, the district

court’s determination that Lawrence voluntarily, knowingly, and intelligently waived his

Miranda rights is not clearly erroneous.

20. Racial Bias in Prosecution

Lawrence argues that the process of charging and trying him in federal court

rather than state court was racially biased and irrationally based on geography so as to

dilute the presence of African Americans in the jury pool, thereby violating his Sixth

Amendment right to a fair and impartial jury, his Fifth Amendment rights to equal

protection and due process of law, and the Eighth Amendment prohibition against

arbitrary use of the death penalty. Lawrence raised this issue in the district court by

filing a motion to dismiss the government’s notice of intent to seek the death penalty and

No. 06-4105 USA v. Lawrence Page 65

to permit discovery regarding the government’s charging practices in capital cases. The

district court denied the motion, holding that Lawrence’s statistical evidence failed to

show the government’s charging practices had discriminatory effect; that he failed to

present any evidence of discriminatory intent; and that he failed to make the requisite

“colorable” showing of selective prosecution to justify discovery.

We review Lawrence’s constitutional challenge de novo. To the extent the

district court’s ruling is premised on findings of fact, we review for clear error. See

United States v. Grenier, 513 F.3d 632, 635–36 (6th Cir. 2008). A defendant seeking

to prove selective prosecution must show that prosecutorial policy had a discriminatory

effect and purpose. United States v. Armstrong, 517 U.S. 456, 465 (1996); McCleskey

v. Kemp, 481 U.S. 279, 292 (1987). “To establish a discriminatory effect in a race case,

the claimant must show that similarly situated individuals of a different race were not

prosecuted.” Armstrong, 517 U.S. at 465. Such a defendant “must prove that the

decisionmakers in his case acted with discriminatory purpose.” McCleskey, 481 U.S. at

292; see also United States v. Bass, 536 U.S. 862, 864 (2002) (holding that “raw

statistics regarding overall charges say nothing about charges brought against similarly

situated defendants.” (italics in original)); Keene v. Mitchell, 525 F.3d 461, 464 (6th Cir.

2008) (holding that statistics indicating a disparity between the percentage of African

Americans in the general population and the percentage charged with capital murder,

standing alone, failed to demonstrate that race played a part in the defendant’s

prosecution and sentencing as required by McCleskey).

Lawrence’s arguments in the district court and his challenge on appeal are based

exclusively on statistical evidence that he says tends to show the government has sought

the death penalty disproportionately in prosecuting minority-group defendants. The

district court correctly determined that the evidence is inconclusive. Yet, even if the

statistics were viewed as evidencing a racially discriminatory effect in the government’s

charging practices nationwide, Lawrence has undisputedly not shown that the

government prosecuted him with discriminatory purpose. Lawrence has adduced no

evidence that decisionmakers in his case acted with discriminatory purpose or that

No. 06-4105 USA v. Lawrence Page 66

similarly situated individuals of a different race were not prosecuted in federal court.

It follows that the district court properly denied relief. See Bass, 536 U.S. at 864;

Armstrong, 517 U.S. at 465; McClesky, 481 U.S. at 292.3

21. Presence of Multiple Victims at Trial and Sentencing

Lawrence argues that the district court improperly granted the government’s

motion to permit Hurst’s family to observe the guilt phase of trial and yet to testify at the

sentencing hearing. He contends this decision was contrary to statute and violated his

due process rights.

Before trial, the government moved the district court to allow Hurst’s family

members to both attend the guilt phase of the trial and testify at sentencing. The district

court held that Hurst’s family members qualified as “victims” under the Crime Victims’

Rights Act, 18 U.S.C. § 3771, who had the right not to be excluded from court

proceedings under § 3771(a)(3).4 Lawrence contends the question is actually controlled

by the statute more specifically applicable to capital cases, 18 U.S.C. § 3510, which

defines the right not to be excluded from trial by referring to “victim” in the singular.

By allowing more than one victim to attend the trial, the district court is said to have

exceeded its statutory authority.

We review a question of statutory interpretation de novo. United State v. Coss,

677 F.3d 278, 283 (6th Cir. 2012). Ordinarily, the decision whether to exclude

witnesses from the courtroom is reviewed for abuse of discretion. United States v.

Solorio, 337 F.3d 580, 592 (6th Cir. 2003).

We find no error. Section 3510(b), like § 3771, prohibits district courts from

excluding “any victim” from attending a trial merely because the victim may give

victim-impact testimony at the sentencing hearing. Section 3771(e) defines “crime

3

Lawrence has not challenged the denial of his request for discovery. For lack of evidence that

similarly situated persons were treated differently, the request was properly denied. See Bass, 536 U.S.

at 864.

4

The government’s motion identified the family members as Hurst’s wife and infant daughter,

his mother and stepfather, a brother, a sister, aunts, uncles, and cousins.

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