# United States v. Daryl Lawrence

> Court of Appeals for the Sixth Circuit · October 22, 2013 · 735 F.3d 385

URL: https://www.frixlaw.com/law-library/cases/1086324

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Daryl LAWRENCE, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 22, 2013
- **Citations:** 735 F.3d 385; 2013 U.S. App. LEXIS 21355; 2013 WL 5716133
- **Precedential status:** Published
- **Opinion:** Opinion by McKEAGUE
- **Judges:** Boggs, Rogers, McKeague
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1086324

## How later opinions describe it (automated extraction)

- recognizing community protection concerns arise where a prosecutor’s comments “expressly link the jury’s verdict . . . to the need to address [a] particular social problem,” were “calculated to mislead or inflame the passions of the jurors[,]” or consisted of improper, intempe…
- explaining that capital punishment requires proof of "aggravating circumstance" that does "not apply to every defendant convicted of a murder" (internal quotation marks omitted)
- finding that a juror’s familial connection to the defendant “is facially reasonable and does not suggest discriminatory intent”

## Opinion text

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
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 06-4105
v.
,
>
-
Defendant-Appellant. -
DARYL LAWRENCE,
N
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.

_________________

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.
_________________

OPINION
_________________

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 afor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1086324. Public record. Not legal advice.