United States v. Rejon Taylor

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 16a0036p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│

v. │

> No. 09-5517

│

REJON TAYLOR, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 1:04-cr-160—Curtis L. Collier, Chief District Judge.

Argued: October 1, 2014

Decided and Filed: February 11, 2016

Before: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Barry J. Fisher, FEDERAL PUBLIC DEFENDER, New Albany, New York, for

Appellant. Christopher D. Poole, UNITED STATES ATTORNEY’S OFFICE, Chattanooga,

Tennessee, for Appellee. ON BRIEF: Barry J. Fisher, FEDERAL PUBLIC DEFENDER, New

Albany, New York, Leslie A. Cory, Chattanooga, Tennessee, S. Adele Shank, LAW OFFICE OF

ADELE SHANK, Columbus, Ohio, for Appellant. Christopher D. Poole, UNITED STATES

ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee. G. Ben Cohen, THE

PROMISE OF JUSTICE INITIATIVE, New Orleans, Louisiana, for Amicus Curiae.

ROGERS, J., delivered the opinion of the court in which McKEAGUE, J., joined, and

WHITE, J., joined in part. WHITE, J. (pp. 50–75), delivered a separate opinion concurring in

part and dissenting in part.

1

No. 09-5517 United States v. Taylor Page 2

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OPINION

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ROGERS, Circuit Judge. Rejon Taylor appeals his convictions and death sentence for

carjacking resulting in death, kidnapping resulting in death, and using a firearm to commit

murder while committing carjacking and kidnapping. His appeal raises fifteen issues, none of

which warrants reversal or remand.

The district court described the crimes underlying this case as follows:

[Taylor] had been responsible for various thefts and burglaries from [Guy]

Luck’s house and other nearby residences in Atlanta between 2001 and 2003. On

August 6, 2003, [Taylor], along with codefendants Sir Jack Matthews and Joey

Marshall, went to Luck’s house with the intention of robbing him. After

confronting Luck at gunpoint, Marshall guarded Luck while [Taylor] began

looking through Luck’s house. Inside the house, [Taylor] took around $600 or

$800. Marshall testified [Taylor] later told him there was a warrant or other

document connected with [Taylor’s] arrest on theft charges in another case, which

suggested Luck could be a witness against [Taylor].

At gunpoint, Luck was forced outside his house and into his van. [Taylor]

got in the driver’s seat, while Matthews guarded Luck in the back. [Taylor] and

Matthews each had a gun. [Taylor] drove the van onto Interstate 75 and traveled

north from Atlanta. They made a brief stop at a gas station in north Georgia

before eventually crossing into southeast Tennessee, where [Taylor] exited the

expressway and drove into the Chattanooga suburb of Collegedale. During the

trip, Marshall followed behind in a car registered to [Taylor’s] mother.

As [Taylor] drove the van around relatively isolated roads in Collegedale,

there was a confrontation in the back of the van, in which Matthews fired a shot,

which hit Luck in the arm. [Taylor] turned around from the driver’s seat and fired

three shots at Luck. The third bullet hit Luck in the mouth and caused his death

later that day at Erlanger Hospital. [Taylor] and Matthews left their guns in the

van and walked briskly from the van to the car driven by Marshall. They then

drove back to Atlanta.

[Taylor] was subsequently arrested and incarcerated pre-trial at the

Hamilton County Jail in Chattanooga. While incarcerated there, [he] was part of

a group of inmates that attempted to escape.

United States v. Taylor, 583 F. Supp. 2d 923, 926–27 (E.D. Tenn. 2008).

No. 09-5517 United States v. Taylor Page 3

A jury convicted Taylor of carjacking resulting in death, kidnapping resulting in death,

and using a firearm to commit murder while committing carjacking and kidnapping. The jury

recommended a death sentence, which the district court imposed. The question in this case is

whether particular acts or omissions in the course of Taylor’s trial require remand. Taylor has

identified fifteen potential grounds for reversal or remand.

Ground I: Juror Bias

Taylor first argues that the district court should have more strenuously questioned Juror 1

(later determined to be the foreperson) to determine whether exposure to an out-of-court remark

affected her ability to be impartial. Taylor claims that the district court’s failure to do so—or to

replace Juror 1 with an alternate juror—requires remand for resentencing. While it might well

have been advisable for the district court to ask more questions of Juror 1, the district court did

not abuse its discretion in declining to press on with the questioning once the district court

satisfied itself that Juror 1 had not been prejudiced by the out-of-court remark.

The jury found Taylor guilty on September 8, 2008. Just over a week later, on the eve of

the sentencing hearing, the Government announced its intention to use at the hearing recordings

of phone calls Taylor made from jail after the verdict. In one of those calls, the Government

indicated, Taylor allegedly referred to the jurors as “racist rednecks.”1 Local media reported the

alleged remark. On September 19, 2008, Taylor’s counsel moved for a mistrial and asked that

the district court question the jurors outside the presence of counsel about their exposure to

media reports of Taylor’s reported remark. Taylor’s counsel expressly declined the opportunity

to participate in or be present at the questioning, theorizing that the jurors might be less

forthcoming in his presence. The Government agreed that questioning by the court was

appropriate and so, on September 23, 2008, the district court questioned each of the jurors and

alternates privately, without the parties or their lawyers being present. The district court told the

jurors that, because of the break between the guilt phase and the sentencing phase, the attorneys

had asked the court to make sure that none of the jurors had been exposed to publicity about the

trial. Eleven of the eighteen jurors and alternates reported that they had been exposed to

1

In fact, Taylor had not used both terms together; the prosecution conflated two separate remarks from the

same conversation.

No. 09-5517 United States v. Taylor Page 4

publicity about the trial. The district court asked all but one of the jurors who had heard about a

“racist” or “redneck” remark whether the remark would affect their decision and whether they

could put the remark out of their minds. All of the jurors who were asked assured the district

court that the remark would not affect their ability to be impartial.

The district court questioned Juror 1 as follows:

THE COURT: The lawyers, just as a matter of precaution more than

anything else, asked if I would meet with each one of the jurors this morning to

make sure that no one was exposed to any publicity during the break. The break

was pretty long. And I did not see any harm in acquiescing in their request, so I

agreed to do so. During the break were you exposed to any publicity at all about

the trial?

JUROR 1: Well, I’ll have to say that the only thing that really – and I did

not read or anything – just that I’ve had a couple people say, “I didn’t know you

were a redneck.” So, you know, obviously there are some comments that have

been made along those lines. But, no, sir, I have not read anything or seen

anything. And the only reason I knew we were going to talk today is because I

turned the TV on, after turning off Dancing with the Stars last night, it was on

Channel 3, and it said, “Judge Collier is going to talk –” I couldn’t get it off fast

enough. So . . .

THE COURT: You did not follow up on the conversations, then, when

people said they did not know you were a redneck?

JUROR 1: No. I obviously have speculated. In your head . . .

THE COURT: Did they tell you where that comment came from?

JUROR 1: Not necessarily, no, sir. I assumed it was from either the

defendant or some of his friends. My colleague said to me last Tuesday—we

were there Wednesday—“We knew you’d be here today.”

I said, “You did?”

So they knew about it, but . . .

I said, “I can’t talk about it.”

THE COURT: Well, we are working when you guys are not here. We’re

still doing things.

JUROR 1: I understand that. But evidently they knew we weren’t.

No. 09-5517 United States v. Taylor Page 5

THE COURT: Okay. Well, thank you.

JUROR 1: Oh, a couple of things I’d like to ask if I may.

THE COURT: Uh-huh. (Moving head up and down.)

JUROR 1: Is it the usual procedure that the defendant knows the jurors’

names? I’ve had some concern, you know. It is a murder trial, after all. And

there might be some repercussions down the pike, of being found and something

happening, with friends. Is that normal for jurors’ names to be called? I know

polling the jury, but is there a reason it couldn’t be Juror 1, Juror 2, that kind of

thing?

THE COURT: We collect the information once the jury is impaneled. We

give a long list, including information, and we have a standing—is it a rule, or just

an order?—a practice that we collect the information. We don’t –

THE CLERK: I’m not sure if it’s an order. I know Mari puts a cover sheet

on the jury list that it’s to be returned.

THE COURT: To be returned as soon as the jury is selected. The lawyers

might have some of their own notes with names on it, but defendants would not

have that.

JUROR 1: Okay.

THE COURT: They would have to have an extremely good memory to

recall all of that. And we don’t put addresses on anything. So even if someone

remembered a name, it would take quite an effort to go further than that.

JUROR 1: Well, with the Internet nowadays, it’s not so tough. So, you

know, there was some concern. My husband and I, that’s the only thing we’ve

talked about. So, thinking about getting a weapon.

I didn’t bring my purse. Okay.

After reviewing the jurors’ and alternates’ responses, Taylor moved for a mistrial due to

incurable juror prejudice. In the alternative, Taylor requested a hearing during which counsel

could question the jurors and alternates and after which the district court could decide whether to

dismiss the entire jury or remove the most “taint[ed]” jurors. The district court heard argument

on Taylor’s requests and ultimately denied them both. Noting “the obvious risk” of reinforcing

the allegedly prejudicial publicity by further questioning jurors and alternates about it, the district

court observed that a simple stipulation—that Taylor “never said [racist rednecks]”—could

No. 09-5517 United States v. Taylor Page 6

resolve the issue without running the risk of further juror prejudice. In a memorandum and order

elaborating on its ruling, the district court stated:

In this case, the Court had the benefit of personally interviewing the jurors. From

these interviews, it was evident that those who were aware of the comment were

not nearly as impacted by the comment as one might imagine. Most of the jurors

who were aware of the comments heard them from co-workers who joked that

they were rednecks. Most of those jurors did not know what the jokes referred to

and many did not attribute the comments to [Taylor] at all. From their responses

to the questioning, it was evident that they had brushed off the comments and

diligently followed the Court’s admonishments to avoid outside publicity and not

consider anything they heard outside the courtroom. To the extent there might be

some prejudice, the Court is convinced it can be cured by an instruction.

“Based upon its interviews with jurors,” the district court concluded, it was “confident that the

verdict . . . will not be based on emotion.” The district court further stated that Taylor’s request

for a hearing to investigate potential juror prejudice had been satisfied by the district court’s

juror interviews, “especially given that defense counsel proposed the arrangement.” The court

also reasoned that further questioning of the jurors “would obviously be detrimental to [Taylor]”

because it “could bring the comments to the forefront of jurors’ minds and cause jurors to

connect the statements to [Taylor].” Taylor appeals the district court’s decision, but only with

respect to Juror 1.

The district court did not abuse its discretion by declining to ask Juror 1 explicitly about

bias resulting from her exposure to Taylor’s “redneck” remark, although an explicit question

certainly would have been preferable. When a juror is exposed to unauthorized communications

involving a case, the district court must “determine the circumstances [of the communications],

the impact [of the communications] upon the juror, and whether or not [the communications

were] prejudicial.” Remmer v. United States, 347 U.S. 227, 229–30 (1954). The district court

retains considerable discretion in deciding how to conduct such an inquiry, which our decisions

have labeled a “Remmer hearing.” See Mays v. Chandler, 342 F. App’x 159, 166–67 (6th Cir.

2009). This discretion serves at least two important functions. First, it recognizes that district

courts are uniquely qualified to ascertain the communication’s effect on the jurors and to

determine the procedures that should be employed to deal with it. See, e.g., Evans v. Young,

854 F.2d 1081, 1084 (7th Cir. 1988); United States v. Almonte, 594 F.2d 261, 266 (1st Cir.

No. 09-5517 United States v. Taylor Page 7

1979). Second, some degree of discretion is the only alternative to the sort of bright-line rule—

for example, one requiring district courts to explicitly inquire whether a juror was prejudiced by

a particular communication whenever that juror is found to have been exposed to the

communication—that might actually exacerbate juror bias by “unnecessarily highlight[ing] the

[communication] in the eyes of the jurors.” United States v. Mack, 729 F.3d 594, 606 (6th Cir.

2013).

Upon learning that Taylor’s remark had been publicized, the district court asked every

juror and every alternate about his or her exposure to Taylor’s remarks. The district court asked

each juror and alternate who reported a direct familiarity with the remark whether he or she

could remain impartial as a juror. Juror 1 had not heard about the remark directly; she knew

about it only because some friends of hers had joked that they had not known she was a redneck.

She drew certain inferences from those statements and speculated about their source, but did not

actually know who made the remark. Juror 1’s uncertainty about the nature of the remark and its

origin left the district court with a difficult choice: leave the matter alone or press for more

information and risk drawing further attention to the remark in Juror 1’s mind. Particularly given

that Juror 1 was uncertain about who had made the remark and what exactly had been said, the

risk of exacerbating the comment’s potentially prejudicial effects may have outweighed the

benefits of further questioning.

The district court was also best positioned to assess Juror 1’s demeanor and behavior

during the one-on-one interview, just as it was best positioned to assess the other jurors’

demeanor and behavior. When both parties subsequently asked the district court to inquire

further of the jury, the court explicitly relied on its observations of the jurors’ demeanor and

behavior to explain why further questioning was not only unnecessary but unwise. This does not

appear to be a case in which the district court simply forgot to ask an important question.

Indeed, the district court made a point of asking several other jurors whether they could be fair

and impartial. The district court does not appear to have made a careless or thoughtless decision.

To the contrary, despite multiple invitations to revisit the issue, the district court repeatedly

reaffirmed its earlier conclusion that the remark had no meaningful effect on the jurors, including

Juror 1, explaining that the jurors “who heard the remarks did not seem biased by them,” and that

No. 09-5517 United States v. Taylor Page 8

an alternate’s testimony suggested Taylor’s “comment sparked jokes and laughter among jurors;

there was no indication jurors took the comment personally.” Finally, none of Juror 1’s

comments at the hearing inherently suggested any sort of bias arising from the allegedly

prejudicial remark. Rather, she appeared to have brushed the remark off and to have been more

concerned about other aspects of the case. That view is certainly consistent with the alternate

juror’s observation that the remark had no meaningful effect on the jury’s members. Nothing in

the record, in short, establishes the sort of obvious prejudice that would have required the district

court to question Juror 1 further. Accordingly, Taylor has not carried his burden of establishing

that the district court abused its discretion.

The cases that Taylor cites—particularly United States v. Davis, 177 F.3d 552 (6th Cir.

1999) and United States v. Herndon, 156 F.3d 629 (6th Cir. 1998)—are different. In Davis, for

example, the court learned that one juror had found out from an outside source that the people in

his part of town were aware of the juror’s jury service and were discussing the juror’s role in the

proceedings. 177 F.3d at 556. The court also learned that the juror had shared the information—

and his concerns for his safety—with other members of the jury. Id. Rather than investigating

the extent to which the out-of-court communication and the juror’s unauthorized

communications about the case had affected the remaining jurors, however, the district court

simply discharged the troubled juror and went ahead with the case. Id. We vacated the Davis

defendants’ convictions and remanded for a post-trial hearing at which the defendants would

bear the burden of demonstrating the existence of jury taint, without which a retrial would not be

necessary. Id. at 557. Our holding was based on the fact that the district court had made no

inquiry into potential juror prejudice from the improper communications. Id. We relied on the

fact that the juror in question “was clearly motivated by fear of retaliation from the defendants,”

and the “fact that a number of jury members openly agreed that a person in [the juror’s]

predicament should seek to be removed” from the jury. Id. We also relied on the total absence

of a court effort to delve into the extent to which the juror’s comments affected the other jurors’

deliberations. Id. Neither of those factors is present in Taylor’s case. In particular, the district

court, at the parties’ behest, conducted individualized conferences with the jurors to determine

whether they had been prejudiced by the reported remark.

No. 09-5517 United States v. Taylor Page 9

Herndon is likewise distinguishable. There, a juror recalled during the trial that he may

have had prior business dealings with the defendant, but the district court declined to

investigate—or to allow counsel to investigate—the potential for prejudice arising from those

dealings. Herndon, 156 F.3d at 632–33. Concluding that the prior business dealings constituted

an extraneous influence upon the juror, we vacated the defendant’s sentence and remanded for a

Remmer hearing, on the ground that the district court had not provided any opportunity for the

defendant to prove actual bias. The district court in Herndon rejected the request of Herndon’s

counsel to question the juror, and conducted no questioning of its own. Id. at 632. The only

hearing was at the sentencing hearing, more than three months after conviction, at which the

juror was of course not present, and the nature of which this court described as clearly “not an

investigation” but permitting the defendant to “make a record” for the purposes of appeal. Id. at

632–33, 637. In Taylor’s case, by contrast, the district court asked all of the jurors about the

extent to which they were aware of the reported remark. The court’s course of interviewing

without the presence of counsel was with the consent of counsel. The record of the interviews

gave Taylor the required opportunity to establish juror bias. Herndon, therefore, does not require

vacatur or remand.

Taylor’s argument focuses not on the total lack of an opportunity to establish bias, but on

the district court’s not having questioned the jurors as extensively as Taylor would have liked.

He points to United States v. Corrado, 227 F.3d 528 (6th Cir. 2000), and Goins v. McKeen,

605 F.2d 947 (6th Cir. 1979), to support his point, but those cases are distinguishable because the

district courts’ investigations of potential prejudice plainly fell short of what the law requires. In

Corrado, for instance, we remanded for a hearing where, in response to an outsider’s attempt to

bribe an unidentified juror, the district court merely “directed three broadly-worded questions to

the jury as a group and instructed any jurors who [felt they could not remain impartial] to bring

themselves to the court’s attention by writing a note.” 227 F.3d at 536. The district court’s

“‘minimalist’ approach,” we held, “was an inadequate response to the serious and credible

allegations of extraneous influences on the jury in th[at] case.” Id. at 535. The jury in Goins was

similarly exposed to a prejudicial out-of-court communication—this time a newspaper article

containing details of the defendant’s plea process, which suggested that the defendant had

negotiated to plead guilty to a lesser charge. 605 F.2d at 954. This evidence was “strongly

No. 09-5517 United States v. Taylor Page 10

probative of guilt.” Id. at 953. Because the communication contained the type of “extremely

prejudicial information” that “rendered the circumstances [surrounding a potential verdict]

inherently prejudicial,” we held that the district court had to do more than merely inquire of the

jury—en masse and in open court—whether any of the jurors had been exposed to the prejudicial

communication and whether those who had could still be fair and impartial fact-finders. Id. at

954. Here, by contrast, the district court made a deliberate and concerted effort to investigate

potential juror prejudice. Not only did the district court question the jurors in camera, one at a

time, but it repeatedly asked follow-up questions when the need arose. The district court’s

efforts here, then, were not at all like the cursory inquiries that were not adequate in Corrado and

Goins.

Finally, United States v. Walker, 1 F.3d 423 (6th Cir. 1993), is distinguishable because of

the highly prejudicial communication at issue in that case. In Walker, jurors were mistakenly

shown portions of a transcript that had not been entered into evidence. Id. at 427. The

defendants explicitly requested that the district court allow them to question the jurors about the

effect of the transcript on their ability to be impartial, which request the district court denied

altogether. Id. at 430. We remanded, holding that “denying the reasonable request to inquire

into the jurors’ states of mind” deprived the defendants “of the opportunity to meet their burden

of proving actual juror bias,” and that the defendants were thereby denied a fair trial. Id. at 431.

Walker involved double exposure to selected testimony—a problem whose power to improperly

influence “has long been recognized.” Id. at 430. The “unauthorized and uncontrolled ‘read

back’” in Walker “created a substantial potential for undue emphasis and a special hazard that

limited testimony may be taken out of context.” Id. In contrast, the information in Taylor’s case

did not involve information that was even indirectly related to guilt or innocence. Moreover, as

the district court observed, when questioned individually, none of the jurors seemed bothered by

the remark. Indeed, many of them (including Juror 1) had not even read the coverage of the

remark. By the time sentencing actually began, almost three weeks had passed since the media

reported the remark, so that there was “every reason to believe any remarks jurors heard w[ould]

be out of their minds.” These circumstances are materially different from those in Walker.

No. 09-5517 United States v. Taylor Page 11

There is a world of difference between failing to conduct a Remmer hearing and failing to

ask a particular question at that Remmer hearing. The former is flatly unconstitutional. But we

have never held that a defendant is entitled to resentencing simply because the district court did

not incant magic words during a Remmer hearing. All that Remmer requires is that the defendant

be given an opportunity to prove juror bias, see Walker, 1 F.3d at 431, not that he be given the

opportunity to prove juror bias based on answers to pre-determined questions. Neither Taylor

nor the dissent points us to any case holding that a Remmer hearing ceases to function as such if

the district court fails to ask any of the jurors a particular question, such as whether a

communication affected their ability to be fair and impartial in discharging their duties.

There are good reasons that the law does not flatly require district courts to ask any juror

exposed to an out-of-court communication whether the communication biased her. A district

court’s role in conducting a Remmer hearing is to “determine the circumstances [of the allegedly

prejudicial communication], the impact thereof upon the juror and whether or not [the

communication] was prejudicial.” Remmer, 347 U.S. at 229–30. Making those determinations

necessarily entails consideration of more than just the substance of a juror’s answer; it requires a

court to evaluate the juror’s mannerisms, deportment, tone, delivery, and other elements. The

law does not require district courts to disregard those elements in many cases—even when they

clearly indicate to the district court that the juror was not biased by the out-of-court

communication—and, instead, press forward with questioning in a way that might actually

magnify the significance of the prejudicial communication in the juror’s mind.

While it probably would have been preferable for the district court to have asked Juror 1

if her knowledge of Taylor’s remark affected her ability to be impartial, an arguably questionable

decision is not the same thing as an abuse of discretion. The record in this case does not

establish that the district court’s decision not to inquire further of the foreperson was an abuse of

discretion, and Taylor’s first claim is accordingly without merit.

Ground II: Exclusion of Testimony

Taylor argues that the district court erred in excluding some of the testimony by James

Aiken and Dr. Mark Cunningham, ostensibly regarding Taylor’s “future dangerousness.” His

No. 09-5517 United States v. Taylor Page 12

argument fails for two reasons. First, the testimony at issue was not responsive to the

Government’s arguments about Taylor’s future dangerousness, so that the district court did not

abuse its discretion in refusing to admit the testimony as rebuttal evidence. Second, because the

excluded testimony did not pertain to Taylor’s character, behavior, or the circumstances of his

crime, it did not constitute relevant mitigating evidence.

The context for the excluded proffered testimony is as follows. The Government relied

on evidence from both the guilt and sentencing phases of trial to support the non-statutory

aggravating factor of future dangerousness. In the guilt phase, the Government presented

testimony about Taylor’s attempt to escape from jail. Taylor, Marshall, and Matthews were

being held in the Hamilton County, Tennessee jail on their federal charges. Taylor and Marshall

became involved in an escape plan with three older inmates: Steven Szabo, J.R. Uhuru, and

Thaddeus Reed. According to Marshall, Szabo, Uhuru, and Reed told Taylor about their plan to

escape, and Taylor told Marshall. The plan was for Uhuru to hit one guard, for Reed and Szabo

to restrain two guards, and for Taylor and Marshall to take the guards’ radios and keys. Uhuru

acquired a length of pipe and flattened it to use to cut through the wire mesh in the cell window.

The group also saved sheets and tied them together to use to climb down from their third-floor

cells. Taylor arranged for his mother to have a vehicle waiting outside. In his guilty plea

agreement, Szabo stated that Taylor was the leader of the conspiracy to escape. In his testimony,

Szabo indicated that Uhuru gathered the items needed and punched the guard. During the escape

attempt, Taylor helped one of the older inmates hold an officer down. Guards broke up the fight

and ordered the inmates back to their cells.

In the sentencing phase, the prosecution introduced a letter that Taylor wrote to Heather

Hamilton on September 12, 2008. In the letter, Taylor predicted his conviction would be

overturned and wrote: “So many people want to do something to [Marshall]. Next time I go to

trial, I bet he won’t testify against me. Trust me on that.” The letter also described Taylor’s

methods of identity theft. After Taylor learned that the jail was monitoring his calls and letters,

he used another inmate’s name to send a letter to Hamilton. Finally, according to FBI Special

Agent Melia, Marshall’s grandmother or godmother told him that someone tried to break into her

house, and that a relative in Taylor’s neighborhood had every window broken out of her home.

No. 09-5517 United States v. Taylor Page 13

Taylor’s counsel presented James Aiken to testify in mitigation. He stated that he had

worked in prisons since 1971. He was warden of a South Carolina prison, worked with the

United States Bureau of Prisons (“BOP”) and prisons in Indiana, the Virgin Islands, and the

supermax prison in Florence, Colorado, and has consulted across the United States. Aiken

explained that prisons use internal classification systems to separate the most aggressive

members of the prison population from the least aggressive. He told the jury that, in the federal

system, officials consider the inmate’s age, build, criminal background, medical condition, gang

membership, institutional behavior, sentence, and type of crime. Of these factors, the sentence

and type of crime are the most important. Aiken predicted that Taylor would go to a high

security setting. There would be a gun between Taylor and the public as long as he lives, and he

would be accounted for continuously.

Aiken was asked about Taylor’s escape attempt. Aiken said that the county jail’s security

did not compare to that of a high security federal facility. Aiken testified that BOP protocols,

experience, and design would make the chance of an escape from a federal facility extremely

remote. The district court cut off defense counsel’s question about how the BOP separates

inmates who have conflicts, such as gang members, and inmates who have testified against other

inmates or committed crimes together, and counsel agreed to move on to another subject. Aiken

stated that Taylor was five feet, eight inches tall, weighed one hundred and forty to one hundred

and fifty pounds, and looked extremely youthful. The district court sustained the prosecution’s

objections to questions about what daily life in prison would be like for Taylor as far as security

is concerned at BOP institutions. In doing so, the court stated that defense counsel had

gone much further than the parameters of this witness’s testimony. He was called

to the stand to testify that the witness would be transferred from Hamilton County

Jail to a federal prison facility someplace---no one knows what facility he will be

going to . . . and that whatever facility he goes to will have better security than the

Hamilton County Jail.

The district court subsequently elaborated:

The witness can testify that, based upon his experience, that the defendant will be

transferred from the Hamilton County Jail to a Bureau of Prisons institution---no

one knows what institution that will be at this point; that is unknowable---and that

No. 09-5517 United States v. Taylor Page 14

whatever institution he goes to will have better security than exists at the

Hamilton County Jail.

Defense counsel objected.

On cross-examination, Aiken testified that Taylor’s behavior while in the county jail

would not cause him to be placed in the highest level of security in the BOP. He also testified

that even high security federal facilities have escape attempts. On re-direct, Aiken said that the

BOP had the most secure facility in the world, which kept total control of every aspect of the

inmates’ lives, but that Taylor would not be sent to it. If Taylor were sentenced to death, he

would be sent to death row at a high security prison. Also, if Taylor were sentenced to life, he

would be sent to a high security prison. Aiken explained that escape-prevention security

measures at a high security BOP facility include monitoring devices, barriers, and firepower.

Inmates are subject to strip searches and their communications are monitored. BOP officers take

note of inmates’ demeanor, cell contents, telephone calls, and television habits. There are special

housing units for those who violate the rules.

Clinical and forensic psychologist Dr. Mark Cunningham also testified on Taylor’s

behalf. Dr. Cunningham has practiced, researched, and taught psychology since 1983 and

written about death row inmates, violence in prisons, and capital sentencing. He has also

testified over 200 times in state and federal court. Dr. Cunningham interviewed eleven members

of Taylor’s family to prepare for his mitigation testimony. He acknowledged that Taylor had a

choice regarding his crime, but said that people do not all get the same choices. Factors that

stand between a person and bad outcomes include an intact family, acceptance, affirmation,

stability, structure, and modeling of positive values. A family history of addiction, psychological

disorder, child abuse, abandonment, or instability can lead to bad outcomes.

Dr. Cunningham referred to a 1995 Department of Justice (DOJ) study that sought to

identify risk factors for criminal activity. Dr. Cunningham gave over sixty transcript pages of

testimony applying these factors to Taylor, testimony that was not interrupted by objection or

court limitation. Dr. Cunningham said that from birth to age 6, Taylor was exposed to criminal

behavior, substance abuse, family management problems, family conflict, and inappropriate

parental attitudes to crime and substance abuse. From age 6 to adolescence, Taylor was exposed

No. 09-5517 United States v. Taylor Page 15

to violence and crime, changed households, firearms, media portrayals of violence, poor family

management and conflict, poor parental attitudes and involvement in crime and substance abuse,

lack of commitment to school, and delinquent and violent peers. Taylor’s family tree includes

several members with criminal records, including an aunt, uncle, cousin, and older brother.

Family members also abused alcohol and drugs, and had children out of wedlock. Dr.

Cunningham was especially concerned by the fact that Taylor’s mother had a history of anti-

social or criminal behavior because that trait is more strongly inherited from the mother than the

father. Taylor’s mother accepted Taylor’s father’s criminal activity and did not guide or

discipline her children. She worked up to twenty hours a day. Taylor’s father committed

burglaries at age 12, shot someone when he was 13 or 14, committed murder at age 17,

committed armed robbery at 19, and was in prison for theft and robbery from age 21 to 29.

Taylor’s mother helped his father escape from prison, and helped Taylor in his attempted escape

from jail.

As a child, Taylor had prison visitations with his father up until he was 3. He had no

contact with his father again until age 8. In Taylor’s middle childhood, his father was open

about his criminality and involved his family. Taylor’s father’s criminal activity included

robbery, identification theft, and fraud. He had stacks of cash in his home and handguns in his

house and car. Taylor and his brother moved in with their father. Taylor’s brother began dealing

drugs as a teenager. He accumulated thousands of dollars and gave drug money to Taylor. Dr.

Cunningham concluded that Taylor had numerous risk factors that correlate with increased

violence and crime.

Dr. Cunningham next discussed Taylor’s “wiring.” He noted that Taylor was 18 or 19 at

the time of the offense, and that the brain continues to develop until the age of 25. Adolescents

are prone to both reactive impulsivity and judgment impulsivity. Dr. Cunningham testified that

there is a high mortality rate in adolescents because they put themselves in dangerous situations.

Young adults’ reward centers go “on line” before their braking systems. Dr. Cunningham

reviewed the findings of studies on adolescent and young men, which showed them to be much

more likely to be violent than older males. The district court sustained the Government’s

objection when Dr. Cunningham was asked about security levels in the BOP.

No. 09-5517 United States v. Taylor Page 16

The district court permitted Taylor’s counsel to proffer testimony by both Aiken and Dr.

Cunningham that was not presented to the jury. Aiken said that prisons use classification

systems to manage inmate populations by separating violent, predatory inmates from the normal,

passive prison population. He testified that he reviewed Taylor’s jail records as of January 2008.

He said that Taylor would be looked at as prey in prison and would have to be protected until he

became seasoned. Aiken stated that, based on Taylor’s crime and sentence, incapacitation would

be the driving force of his security classification. Aiken said that Taylor would start at a

penitentiary and could be placed in protective custody to guard against sexual assault, extortion,

gang activity, and contraband. Because Taylor would not be returning to the community, the

goal would be to stabilize him. He would be constantly watched, evaluated, and subject to

searches for contraband. The prison would control every aspect of his daily life. Aiken asserted

that the BOP can safely control, manage, and contain Taylor for the remainder of his life without

undue risk to staff, inmates, and the general community. Aiken was asked about Taylor’s

attempt to escape from the Hamilton County Jail. Aiken said that the BOP has higher security

standards that would make an escape attempt less likely. Aiken gave the probability of a

successful escape from a BOP facility as nil. He testified that United States Penitentiaries are

high security and have no public access. There is always a gun between the prisoner and the

community. Within a penitentiary, an inmate can be locked up in a secure housing unit (SHU)

for disciplinary reasons.

In Dr. Cunningham’s proffered testimony, he said that a capital inmate sentenced to life

in federal prison would be sent to a “United States Penitentiary or higher” security level facility.

Federal prisons are termed minimum, low, medium, and high security, and there are SHUs

within prisons. The most secure facility is a supermax in Colorado. A high security institution

has double fencing, gun towers, patrols, perimeter detection devices, and multiple barriers. Dr.

Cunningham reviewed the BOP’s procedures for dealing with dangerous prisoners. He opined

that the BOP can securely house and control inmates. When asked about future dangerousness

and rates of violence, Dr. Cunningham testified that the BOP groups inmates by their

convictions, personality characteristics, and other means. He cited statistics indicating that, from

2004 to 2005, 94% of prisoners did not assault anyone. There were three homicides in a

population of 20,000 inmates. Dr. Cunningham explained that a jury would not know how often

No. 09-5517 United States v. Taylor Page 17

violence occurs in the BOP and how effective that system may be in containing violence. He

indicated that much of the differences in violence levels system-wide is accounted for by

differences in institutions rather than differences in the prisoners. Also, homicide rates are

significantly higher outside of prison than inside. Dr. Cunningham also testified that murderers

are disciplined less than other inmates and are less likely to be violent in prison. For federal

capital offenders sentenced to life, their rates of violence are similar to those of other inmates.

State prisoners sentenced to life without parole are half as likely to commit assault. Dr.

Cunningham drew three conclusions from DOJ publications: violence in the community is not

strongly or consistently associated with violence in prison; a prisoner’s current offense, prior

convictions, and escape history are weakly associated with misconduct; and the severity of the

offense does not predict a prisoner’s adjustment to prison.

The district court found that Dr. Cunningham’s proffered testimony was far afield from

his area of expertise, not relevant, and based on hearsay. The court concluded that the evidence

had nothing to do with Taylor and was misleading, confusing, and unreliable. In arguing in

favor of admitting the evidence, Taylor’s counsel argued among other things that “[m]ost jurors

think we’re talking about Club Fed. And the only way they can learn the difference is for a man

like Mr. Aiken and Dr. Cunningham to tell them the difference.”

Rather than relying on oral rulings from the bench, the district court explained the basis

for its exclusion of parts of the testimony of Mr. Aiken and Dr. Cunningham in a written

memorandum. The explanation is thoughtful, respectful of relevant precedent, and compelling.

It is best appreciated by extended excerpt:

General prison security is not a proper mitigating factor because it is

unrelated to the defendant’s background, record, or character, or any other

circumstance of the offense, 18 U.S.C. § 3592(a)(8), or any other mitigating

factor required by the Constitution and the FDPA. In United States v. Johnson,

the Seventh Circuit concluded a defendant “should not have been permitted to

present to the jury, as he was, evidence of the existence of maximum-security

federal prisons decked out with control units, in order to establish a mitigating

factor.” 223 F.3d 665, 674–75 (7th Cir. 2000). “The argument that life in prison

without parole, especially if it is spent in the prison’s control unit and thus in an

approximation to solitary confinement, sufficiently achieves the objectives aimed

at by the death penalty to make the latter otiose is an argument addressed to

No. 09-5517 United States v. Taylor Page 18

legislatures, not to a jury.” Id. at 675. In addition, the government cites Johnson

for the argument that Defendant’s argument is inherently illogical, “as it amounts

to saying that because this defendant is so dangerous, he does not deserve to be

sentenced to death, since his dangerousness will assure his secure confinement.

And its illogic shows that it is really an argument against the death penalty,

period, since if this defendant should be spared because he is unusually

dangerous, surely less dangerous murderers should not be executed either, even

though, because they are less dangerous, they are less likely to be confined

securely.” Id. While Johnson disapproved of this evidence as a mitigating factor,

it approved of it in a proper case as rebuttal evidence to counter future

dangerousness, which the government has alleged as a non-statutory aggravating

factor in this case, although not of the nature involved in Johnson. Id. at 674–75.

...

Defendant quotes from the Supreme Court’s decision in Skipper v. South

Carolina, which held “evidence that the defendant would not pose a danger if

spared (but incarcerated) must be considered potentially mitigating.” 476 U.S. 1,

5 (1986). But the evidence in Skipper concerned the defendant’s good behavior in

prison, not security information about the prison. The Supreme Court has not

addressed the right of a capital defendant to present evidence of prison security

considerations. Schmitt v. Kelly, 189 F. App’x 257, 265 (4th Cir. 2006)

(concluding state court’s refusal to allow such evidence was not an unreasonable

application of federal law). However, a federal district court has joined the

Seventh Circuit in holding such testimony is admissible in rebuttal:

Because it will be obvious to the jury that the Government’s proof

of this factor is intended to show that Wilson, rather than criminals

in general, is a future danger, it will be equally obvious to the jury

that [the expert’s] testimony, though based on statistical evidence,

is intended to shed light on Wilson’s future dangerousness, not on

that of anyone else. And because the Government will argue for

the death penalty based in part on Wilson’s alleged future

dangerousness, this court must give Wilson “fair opportunity to

present argument as to the adequacy of the information to establish

the existence” of that aggravating factor. 18 U.S.C. § 3593(c).

United States v. Wilson, 493 F. Supp. 2d 491, 508 (E.D.N.Y. 2007). The Wilson

court, however, prohibited testimony about any specific institutions as unduly

speculative. Id. The evidence would be especially important in rebuttal because

the FDPA and Constitution both require Defendant have a fair opportunity to

rebut the government’s evidence. 18 U.S.C. § 3593(c); Gardner v. Florida,

430 U.S. 349, 362 (1977); Davis v. Coyle, 475 F.3d 761, 771 (6th Cir. 2007)

(holding state court improperly refused to admit evidence of defendant’s

No. 09-5517 United States v. Taylor Page 19

adaptation to prison because it was clearly relevant to future dangerousness); see

also Johnson, supra, 223 F.3d at 674–75.

In this case, however, the proffered testimony clearly was not rebuttal

evidence. The FDPA allows Defendant to “rebut any information received at the

hearing.” 18 U.S.C. § 3593(c). Although “the hearing” appears to refer to the

sentencing phase, it can only logically be read as referring to the entire trial since

the government’s evidence at the guilt/innocence phase is part of the basis for the

jury’s sentencing decision. Thus, Defendant has the right to rebut information

and evidence received through the entire trial. This right to rebut relates to

information or evidence, not allegations. If the government alleges something but

has no evidence to support it, the jury will ignore it and there is nothing to rebut.

Accordingly, it is important to examine exactly what evidence or

information the government presented and not be confused by its allegations or

claims. At trial, the government’s evidence regarding future dangerousness, in

the light most favorable to the government, showed that Defendant was involved

in an attempt to escape from custody; wrote a letter which contained a statement

that could constitute a threat against codefendant and witness Joey Marshall;

could have been involved in vandalism and damage to Marshall’s grandmother’s

home; and was able to send letters to third parties from the Hamilton County Jail

in someone else’s name. The government rested in the sentencing phase of the

case so there is no possibility of other evidence in its case in chief. The above

was the extent of the government’s evidence of future dangerousness, which

Defendant is entitled to rebut. This evidence, if believed by a rational juror, could

support a conclusion that Defendant might be involved in or might influence

others to commit harm to others, including prison staff and other inmates. Based

on the evidence, no rational fact finder could conclude Defendant is likely to

personally injure someone while in custody, whether a fellow inmate or a prison

staff member. This is especially true given the jurors’ observation of Defendant’s

slight build and physique.

Prison security conditions do not have any relevance to the government’s

evidence. The defense has set up a chimera, which they seek to destroy by

introducing rebuttal testimony. Had this been a case where there was evidence

the defendant was, to use Mr. Aiken’s terminology, a “predator” with a propensity

to personally harm others, then the defense would have a better argument. With a

proper witness, such evidence might be admissible. However, this is not that

case.

Appropriate rebuttal to the government’s evidence in this case would be

information that it would be impossible for Defendant to ever communicate with

anyone outside of prison for the rest of his life or that he would not be able to

influence any other inmates while in prison. And, of course, with the proper

witness, such as a psychologist, testimony would be proper either as mitigating

No. 09-5517 United States v. Taylor Page 20

evidence or rebuttal that Defendant did not possess the personal qualities to harm

others either directly or indirectly and would be unlikely to ever develop those

personal qualities.

At the conclusion of the live proffer of Aiken’s testimony, considering the

proper scope of rebuttal evidence, the Court indicated Aiken could testify that

after the trial Defendant will be transferred from the county jail where he is

currently detained, and from which he allegedly tried to escape, to a Bureau of

Prisons facility, where security would be different and greater. But the Court

prohibited Aiken from testifying about any specific institution Defendant may be

sent to or about general conditions of federal prisons. Until the Bureau of Prisons

selects a facility for Defendant, it would be speculative to testify about where

Defendant may be sent and what security measures may be in place at such

facilities during the future times in which Defendant will be incarcerated.

Although there are commonalities among the security conditions at all federal

prisons, these are unrelated to any mitigating factor. Because the conditions in

federal prisons are unrelated to the circumstances of this offense or to Defendant,

and because they do not rebut evidence or information introduced at trial, the

Court prohibited most testimony about them.

Even though the Court had limited Mr. Aiken’s testimony as described,

after the government had completed its cross-examination, the defense on redirect

examination of Mr. Aiken brought out a great deal of information regarding

Bureau of Prisons policies, procedures, general prison conditions and typical life

in prison. The government did not object to this testimony even though it

exceeded the permissible scope of the witness’s testimony, so it was presented to

the jury.

After the testimony of Mr. Aiken, the defense called Dr. Mark

Cunningham as a witness. Dr. Cunningham is a clinical and forensic psychologist

and was tendered to the Court as an expert. He gave lengthy and extensive

testimony regarding Defendant’s family, family history, development, and other

matters regarding Defendant. This testimony included his expert opinion

regarding the effect of various influences in Defendant’s life on Defendant’s

development and life choices.

Subsequently, however, Dr. Cunningham began testifying as a fact witness

regarding the federal Bureau of Prisons, particular federal prison facilities, and

Bureau of Prisons policies, regulations and procedures, prison classification,

prison security, and crime conditions in prisons. Upon objection by the

Government the Court sustained the objection. Thereafter, the Court sent the jury

out of the courtroom and provided the defense the opportunity to have Dr.

Cunningham present his entire testimony to the Court. During this session out of

the presence of the jury, Dr. Cunningham testified at considerable length and

utilized a slide show pertaining to the rate of violence among various segments of

No. 09-5517 United States v. Taylor Page 21

the prison population, risk analysis among federal prisoners in capital cases, rates

and correlations of prison violence, and the capability of the federal Bureau of

Prisons to prevent inmate violence. With the benefit of Dr. Cunningham’s entire

testimony, the Court reiterated its decision to sustain the objection. The Court

explained that the objection was sustained for two reasons: in large measure the

testimony was not relevant to any issues involved in this case and Dr.

Cunningham was not qualified to give some of the testimony. For these reasons

Dr. Cunningham’s testimony was unreliable, would mislead the jury about the

true issues of future dangerousness involved in this case, and would

impermissibly confuse the jury.

The major problem with Dr. Cunningham’s disallowed testimony is its

irrelevance to the issues in this case. The essence of his testimony is that

individuals imprisoned in federal prisons are not likely to commit crimes. This is

indisputably true but it has nothing to do with this case. As explained above, the

government has introduced no evidence that Defendant is likely to pose a danger

of personally injuring another inmate in prison or personally attacking a prison

staff member. So even if Dr. Cunningham had offered his opinion, which he did

not, that Defendant was not likely to personally injure another inmate or a staff

member, such opinion testimony would not rebut anything involved in this case.

Permitting his generalized testimony about prison crime would simply confuse

and mislead the jury and invite a decision on an impermissible basis. For the

same reason the Court disallowed testimony from Mr. Aiken regarding prison

security, Dr. Cunningham’s testimony about the capability of the Bureau of

Prisons to secure inmates is not relevant to any issues in this case.

...

The second problem with Dr. Cunningham’s disallowed testimony was

that much of it is not expert testimony but rather is fact testimony, so he is

testifying not as an expert but as just another fact witness. As a fact witness he

must have direct or first hand knowledge of the facts about which he testifies. It

is permissible for a witness to testify both as a fact witness and as an expert. But

the case law indicates the Court must make it clear to the jury the distinction

between the two roles. Even though the rules of evidence are relaxed in the

sentencing phase of the trial, the Court is still obligated to ensure that the

information being presented is minimally reliable, can be tested, and is not

confusing or misleading. From Dr. Cunningham’s testimony, the facts he related

often came from second, third, or fourth hand sources. Those sources are not

available for questioning in this trial.

The third problem with Dr. Cunningham’s disallowed testimony was that

some of it amounted to instructing the jury on the law. His mention of Bureau of

Prisons policies, regulations, and procedures were matters of law that are properly

within the province of the Court and that witnesses are not allowed to discuss in

No. 09-5517 United States v. Taylor Page 22

trials. To the extent such information would be relevant in a case, it should be

provided to the jury by the Court and not by witnesses.

Moreover, Dr. Cunningham’s testimony had nothing to do with the

personal characteristics or record of Defendant but rather was about an extraneous

body, i.e., the federal Bureau of Prisons. The capability or lack of capability of

the Bureau of Prisons says nothing about the individual background, record, or

character of Defendant or the circumstances of this case. Dr. Cunningham’s

testimony may concern the background, record, and character of the Bureau of

Prisons and the employees of that institution, but not Defendant. And of course it

can be expected that the capability of the Bureau of Prisons will vary over time

and will even vary within particular constituent parts of the organization. This

focus on the Bureau of Prisons ignores that we are concerned with a living,

breathing human being with thoughts, passions, instincts, goals, ambitions,

motivations, and all the other intangibles that make us human beings. Regardless

of how capable the Bureau of Prisons is, a highly motivated individual who

desires to harm others poses a threat. Perhaps it is a preventable threat but it is

still a threat.

Lastly, because Dr. Cunningham’s disallowed testimony could be given

verbatim in any capital case in the country without changing a single word, it runs

afoul of what the Supreme Court said should be the foundation of capital

sentencing: an individualized inquiry. Jones v. United States, 527 U.S. 373, 381

(1999). Testimony regarding hundreds or thousands of prisoners in groups, in

many unidentified prisons, in circumstances that the jury could never know

precisely, would run the risk of the jury losing sight of its obligation to focus on

the individual before it, the defendant, his character or record, and the

circumstances of the offenses. Individualized sentencing of a capital defendant is

one of the most important decisions the jurors will ever make in their own lives

and testimony regarding generalities of prison invites the jury to make decisions

based upon group characteristics and assumptions. This presentation, as the

Seventh Circuit said in Johnson, could be directed to Congress to convince it

there is no need for the death penalty, rather than to a jury.

Taylor, 583 F. Supp. 2d at 936–43.

There is not any abuse of discretion in this analysis.

The excluded portion of Aiken’s testimony was not relevant rebuttal evidence on future

dangerousness, because none of it rebutted any of the Government’s future dangerousness

arguments. At no point in the proceedings did the Government seriously contend—or even

intimate—that Taylor was personally dangerous. Indeed, any such argument would have been

patently absurd given Taylor’s slight stature—something the jurors could not only see for

No. 09-5517 United States v. Taylor Page 23

themselves, but on which Aiken remarked at one point during his testimony. The Government

made the point even more explicitly during its closing argument:

Now, why is Rejon Taylor dangerous, ladies and gentlemen? He’s not

dangerous because he’s a big, powerful physical presence. He’s not intimidating.

He looks like the librarian aides that my mother used to employ at the high school

library. He’s not scary-looking. It’s just the opposite. He’s more dangerous

because he’s not scary-looking, ladies and gentlemen. He’s more dangerous

because you don’t see him coming. He’s dangerous because he’s smart. He’s

dangerous because he’s controlling. He’s dangerous because he never stops

manipulating. He’s dangerous because he never stops conspiring. He’s

dangerous because he’s a chameleon. He’s dangerous because he has no remorse.

He’s dangerous because he has no concern for others. He’s dangerous because

prison walls cannot contain or deter his influence, ladies and gentlemen. He can

recruit. He can influence. He can trick anyone.

That the Government neither suggested nor implied that Taylor would be directly dangerous to

others while in prison—indeed, the Government did the very opposite—distinguishes this case

from Supreme Court cases holding that, when a capital defendant’s danger to the community has

been raised, but the only sentencing alternative to death available to the jury is life imprisonment

without the possibility of parole, the jury must be informed of the parole ineligibility. Simmons

v. South Carolina, 512 U.S. 154 (1994), was a split decision in which the operative opinion was

the concurrence of Justice O’Connor. That opinion stressed that “the State [had] sought to show

that petitioner [was] a vicious predator who would pose a continuing threat to the community.”

Id. at 175–76 (O’Connor, J., concurring) (emphasis added). Reversal was required because

“[a]lthough the only alternative sentence to death under state law was life imprisonment without

possibility of parole, petitioner was not allowed to argue to the jury that he would never be

released from prison, and the trial judge’s instruction did not communicate this information to

the jury.” Id. at 178. Whereas in Simmons, “[t]he State raised the specter of [the defendant’s]

future dangerousness generally” and “advance[ed] generalized arguments regarding” that

specter, id. at 165, 171, here the Government made specific arguments about the way in which

Taylor might be dangerous in the future, arguments that went exclusively to the notion that

Taylor could be vicariously dangerous if given a life sentence. In short, precluding evidence of

ineligibility for parole in Simmons gutted the defendant’s ability to respond to the very

arguments made by the prosecutors. Cf. Kelly v. South Carolina, 534 U.S. 246, 248, 252–56

No. 09-5517 United States v. Taylor Page 24

(2002). Of course the present case does not involve ineligibility for parole. More generally, the

inability to respond to arguments made by prosecutors regarding future danger is not present in

anything like the way that it was in Simmons and Kelly.

Aiken’s testimony was similarly irrelevant for purposes of mitigation, since mitigating

evidence must bear on the defendant’s particular character or circumstances. See, e.g., Zant v.

Stephens, 462 U.S. 862, 879 (1983); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982); Jurek v.

Texas, 428 U.S. 262, 276 (1976); Gregg v. Georgia, 428 U.S. 153, 189 n.38 (1976). We have

noted that mitigating evidence “includes any aspect of a defendant’s character or record and any

of the circumstances of the offense that the defendant proffers as a basis for a sentence less than

death.” Carter v. Bell, 218 F.3d 581, 594 (6th Cir. 2000). This statement in Carter relied on

language from the Supreme Court’s decision in Lockett v. Ohio, 438 U.S. 586, 604 (1978), which

in turn recognized “the traditional authority of a court to exclude, as irrelevant, evidence not

bearing on the defendant’s character, prior record, or the circumstances of his offense.” Id. at

n.12. As the court below explained, testimony about general prison conditions and the

anticipated effectiveness of security protocols is insufficiently individualized to meet that

standard.

Taylor cites the Eleventh Circuit’s decision in United States v. Troya, 733 F.3d 1125

(11th Cir. 2013), to support his contention that the district court should have admitted Aiken’s

testimony as mitigating evidence. Taylor’s reliance on Troya, however, is misplaced. In Troya,

the Eleventh Circuit held that the trial court erroneously excluded mitigation evidence that

“(1) Troya had received his GED, which statistically lowered the rate of risk of violence in

prison; (2) Troya’s age of 25 lessened his risk of violence in prison; (3) Troya was likely to make

a positive adjustment to prison based on his frequent familial visits; and (4) Troya had been

safely managed, notwithstanding his escape attempt, during previous stints in incarceration.” Id.

at 1137. All of that evidence was particular to Troya, inasmuch as it spoke to his “character or

record and any of the circumstances of the offense that [Troya] proffer[ed] as a basis for a

sentence less than death.” Carter, 218 F.3d at 594 (quoting Lockett, 438 U.S. at 604). Taylor,

by contrast, has not identified any information about his character, record, or the circumstances

of his offense that the district court barred Aiken from presenting to the jury. Consequently,

No. 09-5517 United States v. Taylor Page 25

Troya does not undermine the conclusion that the district court did not abuse its discretion in

refusing to admit parts of Aiken’s testimony as mitigating evidence. The Eleventh Circuit’s

analysis in Troya was moreover not necessary to its judgment, because the court held that

omitting the evidence was in any event harmless error. 733 F.3d at 1138.

Dr. Cunningham’s testimony about inmate classification procedures and prison security

was also not proper mitigating evidence, because it consisted almost entirely of the sort of

generalized facts that could be said to apply to every death-eligible offender. For instance, Dr.

Cunningham was to testify that inmates on death row have a low recidivism rate and are

statistically no more likely than other inmates to be dangerous in prison. That testimony is not

specific to Taylor’s crime or character; the same could be said of any defendant on death row.

Indeed, Dr. Cunningham had offered virtually the same testimony in other cases, without regard

to the personal characteristics or conduct of the defendant. See, e.g., id. The generalized nature

of his testimony makes it an argument against the death penalty itself, not an argument for

sparing a particular defendant from the death penalty. Johnson, 223 F.3d at 674. Mitigating

evidence must be sufficiently particularized to the defendant on whose behalf it is offered—to

his character, his behavior, or the nature of his offense—so as to cause the defendant or his crime

to seem less severe or harsh to the jury. Lockett, 438 U.S. at 604 n.12; Carter, 218 F.3d at 594.

Mitigating evidence must, as the name suggests, mitigate the heinousness of the crime or the

harshness of the criminal. Evidence about inmate classification procedures and prison security

conditions does not fulfill that purpose. For that reason, the district court did not abuse its

discretion in disallowing Dr. Cunningham’s testimony on those subjects.

Taylor argues that Jurek, 482 U.S. at 276, required the district court to admit Dr.

Cunningham’s testimony so that the jury would “have before it all possible relevant information”

on mitigation. But the Supreme Court in Jurek included important limiting language. Jurek

does not command district courts to admit as mitigating evidence any information that might

conceivably help a defendant’s case. Rather, Jurek holds that “[w]hat is essential is that the jury

have before it all possible relevant information about the individual defendant whose fate it must

determine.” Id. (emphasis added). Dr. Cunningham’s testimony had nothing to do with Taylor;

it was information about the prison population in general. It follows that nothing in Jurek

No. 09-5517 United States v. Taylor Page 26

required the district court to admit the excluded testimony. Indeed, Supreme Court precedents

consistently emphasized the importance of evidence regarding the defendant in particular, as

opposed to whole populations. See, e.g., Zant, 462 U.S. at 879; Eddings, 455 U.S. at 112. Dr.

Cunningham’s testimony does not fit that bill. This is not to say that statistical evidence like Dr.

Cunningham’s can never be admissible. Quite the contrary, it can be relevant and admissible in

many scenarios. For example, a district court might reasonably consider Dr. Cunningham’s

summary of BOP studies as relevant evidence to rebut allegations that an individual might be

directly dangerous in the future. That, however, was not an option in this case, because nothing

in the record suggested that Taylor had any propensity to direct dangerousness. Thus, Dr.

Cunningham’s testimony was irrelevant as rebuttal evidence and too generalized to be used as

mitigating evidence. Accordingly, the district court did not abuse its discretion in preventing the

jury from considering the evidence.

We do not say that the district court was required to exclude the evidence, or even that it

was preferable to exclude it. It may be that in the exercise of abundance of caution, a court will

permit testimony on behalf of the defendant that the court could properly exclude. The

admission of such testimony may be well within the discretion of the district court. But the

district court is not an automaton that can only come to one right answer on any evidentiary issue

just because the case is a capital case. While reasonable judges may have exercised their

discretion differently with respect to the admission of the Aiken or Cunningham testimony, the

district court here did not abuse its discretion.

Ground III: Hearsay at Sentencing

At sentencing, the Government called FBI Agent James Melia to testify about an

interview he had conducted with Joey Marshall. According to Agent Melia, Marshall had

reported that “about a week or so after the murder,” Taylor had said “that his heart couldn’t take

it anymore, that he had to get out of town, and that he had been robbing drug dealers to try to

raise money to get, and stay, out of town.” Later on in Agent Melia’s testimony, the

Government asked him whether he had “any information about whether or not anything’s

happened to Mr. Marshall’s family since he testified in this trial?” Agent Melia thereupon told

the jury that Marshall’s grandmother had called Agent Melia to tell him that “it appeared that

No. 09-5517 United States v. Taylor Page 27

somebody had tried to break into her residence,” and that all of the windows in another of

Marshall’s relative’s houses “had been broken out of the house.” Taylor contends that Agent

Melia’s testimony on those points consisted of “vague, unconfirmed, multiple hearsay

allegations,” and that the district court erred by admitting it.

The district court did not abuse its discretion in admitting Agent Melia’s testimony about

his interviews with Marshall and Marshall’s grandmother. The Federal Rules of Evidence do not

apply at the sentencing phase of the trial, and accordingly the district court could properly admit

hearsay evidence. See 18 U.S.C. § 3593(c); Sears v. Upton, 561 U.S. 945, 950 (2010). The only

remaining question, then, is whether the district court could have reasonably found that Agent

Melia’s testimony was relevant and reliable. See Sears, 561 U.S. at 950 n.6; Green v. Georgia,

442 U.S. 95, 97 (1979). Agent Melia’s testimony about Taylor’s “my heart can’t take it”

comment was relevant because it rebutted defense counsel’s suggestion, made during the trial’s

guilt phase, that Taylor’s comment evidenced remorse. Agent Melia’s testimony was reliable

enough because it was based on an official 302 Form that he had completed immediately after

interviewing Marshall. That Marshall may have lied in some of his responses to Agent Melia’s

questioning does not make Agent Melia’s testimony about his interview with Marshall or the

contents of the Form unreliable. Whether Marshall’s statements to Agent Melia were truthful is

a question that the jury could properly weigh for itself.

Agent Melia’s testimony about his conversations with Marshall’s grandmother was

similarly admissible at sentencing. In the first place, Agent Melia’s testimony was seemingly

corroborated by other evidence before the jury, including Taylor’s letter to his girlfriend. In that

letter, Taylor not-so-subtly observed that “[s]o many people wants to do something to

[Marshall]. Next time I go to trial, I bet he won’t testify against me. Trust me on that!”

Taylor’s letter could fairly be read to hint at his familiarity with—and possible role in—reprisals

against Marshall for testifying. Not only could the jury use that evidence to put Agent Melia’s

testimony in context, but the jury could also use the evidence to assess the testimony’s reliability.

Agent Melia’s testimony was relevant, moreover, to Taylor’s degree of remorse and to the

degree to which Taylor was dangerous.

No. 09-5517 United States v. Taylor Page 28

Finally, the district court could have reasonably concluded that the probative value of

Agent Melia’s testimony was not outweighed by the risk that it would unfairly prejudice,

confuse, or mislead the jury. When Agent Melia testified at sentencing, the jury had already sat

through weeks of trial testimony and had convicted Taylor of kidnapping and murder. It had

plenty of context, in other words, with which to evaluate Agent Melia’s testimony. Nothing

Agent Melia said during his time on the witness stand—particularly given that his testimony

pertained largely to minor offenses—was likely to confuse, mislead, or unfairly prejudice the

jury. Accordingly, the district court did not err in admitting the challenged testimony.

Ground IV: Propriety of the Jury Instructions

There was also no reversible error in the jury instructions. Taylor argues that the district

court “unfairly skewed its instructions towards the government, invaded the jury’s function, and

undermined the jury’s consideration of mitigating factors.” In its instructions to the jury, the

district court briefly summarized the evidence that the Government had introduced to support

each proposed non-statutory aggravating factor. The district court refused, however, to

enumerate in its instructions each of the thirty-three mitigating factors Taylor had proposed, let

alone to summarize the evidence that Taylor had introduced in support of each factor. Taylor

contends that, by summarizing the evidence supporting the Government’s position on

aggravating factors and refusing even to list the factors that Taylor proffered in support of

mitigation, the district court’s instructions prejudiced the jury toward a sentence of death.

Although the difference in the district court’s presentation of aggravating and mitigating

factors was questionable, there was nothing confusing or misleading in the terms of the

instructions. In the end, Taylor’s argument ultimately fails because he has not shown that the

district court’s instructions actually prejudiced the jury. A jury instruction supports overturning

a sentence only if the jury instructions, as a whole, were confusing, misleading, or—most

pertinent to this case—prejudicial. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 617 (6th

Cir. 2007). Nothing in the record indicates that the jury was actually prejudiced by the district

court’s instructions in this case. To the contrary, the record indicates that the jury gave balanced,

individualized consideration to each factor—aggravating and mitigating alike. With respect to

the Government’s three proposed non-statutory aggravating factors, for example, the jury found

No. 09-5517 United States v. Taylor Page 29

that the Government had carried its burden with respect to one, but not with respect to two

others, notwithstanding that the district court had, in instructing the jury, summarized the

evidence supporting each factor. Obviously, then, the jury did not simply accept that every piece

of evidence alluded to in the instructions was valid or sufficient to establish a given aggravating

factor. Rather, the jury appears to have undertaken an independent analysis of the evidence,

reaching its own varied conclusions. Under those circumstances, Taylor has not shown prejudice

from the district court’s marshalling of evidence of non-statutory aggravating factors.

Likewise, Taylor has not shown that the jury was prejudiced by the district court’s refusal

to list each of the thirty-three mitigating factors that Taylor proposed. In the first place, the

district court’s instructions expressly referred the jury to the verdict form, which included a list

of all of Taylor’s proposed mitigating factors. Jurors, we presume, follow the instructions that

they are given, Penry v. Johnson, 532 U.S. 782, 799 (2001), including, in this case, the

instruction to consider carefully the evidence supporting each of the mitigating factors before

voting on them. The jury’s actual votes on the individual mitigating factors further suggest that

the jury gave thoughtful, particularized consideration to each of the factors that Taylor proposed.

For example, all twelve jurors found in favor of sixteen of Taylor’s proposed mitigating factors,

and all twelve jurors rejected twelve of Taylor’s other proposed mitigating factors. Differing

numbers of jurors—nine, one, two, five, and three—found in favor of the remaining five

proposed mitigating factors. The record therefore undermines Taylor’s suggestion that the

district court’s failure to list the mitigating factors caused the jury to devalue those factors.

To be sure, a district court treads on thin ice when it summarizes evidence in instructing a

jury, especially when the court does not treat the evidence similarly on both sides of a case. See

United States v. Mundy, 539 F.3d 154, 158–59 (2d Cir. 2008). That the practice is inadvisable,

however, does not mean that it is invariably an abuse of discretion. Because Taylor has not

carried his burden of showing prejudice from the district court’s descriptions of aggravating and

mitigating factors, the district court’s instructions do not support overturning his sentence.

No. 09-5517 United States v. Taylor Page 30

Ground V: Prosecutorial Misconduct During Closing Argument

Next, Taylor argues that his sentence must be reversed because, at summation, the

prosecutor described Taylor in derogatory terms and showed the jury a gut-wrenching photo of

Luck’s corpse at autopsy. None of the prosecutor’s conduct, however, warrants reversal.

During his summation, the prosecutor repeatedly compared Taylor to predatory figures.

At one point, for example, the prosecutor said that Taylor “had been stalking this man and

victimizing this man for over a year.” Later, the prosecutor described Taylor as “a remorseless

and relentless hunter,” and told the jury that Taylor was “dangerous because he’s a chameleon.”

The prosecutor then alluded to Robert Louis Stevenson’s classic short story, telling the jury that

Taylor “is dangerous because he always looks like Dr. Jekyll but his mind, his mind, ladies and

gentlemen, is always working like Mr. Hyde.” The prosecutor followed that comparison by

advising the jury that it had “the obligation to be the sheep dog that protects the sheep, and even

sometimes the wolves, from the wolf,” i.e., from Taylor.

The line between zealous prosecution and prosecutorial misconduct is sometimes a fine

one, but on balance the prosecutor did not overstep it here. A prosecutor may not make

statements for the sole purpose of inflaming the jury’s passions against the defendant.

Wogenstahl v. Mitchell, 668 F.3d 307, 333 (6th Cir. 2012). Prosecutors are not categorically

barred, however, from using rhetorical devices reasonably calculated to make relevant points,

which is what the prosecutor did here. For instance, in emphasizing that Taylor had stalked and

hunted Luck for an extended period of time, the prosecutor was not embellishing the record; he

was merely stating a fact borne out by the Government’s evidence: that, in preparing for their

crime, Taylor and his co-conspirators had taken the time to learn Luck’s schedule and

whereabouts. That many people find the notion of hunting and stalking a human being

uncomfortable does not make the prosecutor’s statements inaccurate. “Murder trials tend to

involve grisly facts, and although prosecutors may not exploit the disquieting nature of those

facts for verboten ends, prosecutors have no affirmative obligation to conceal or shy away from

those facts.” Clarke v. Warren, 556 F. App’x 396, 407–08 (6th Cir. 2014).

No. 09-5517 United States v. Taylor Page 31

The prosecutor also did not engage in misconduct by comparing Taylor to Mr. Hyde.

Nothing in our precedents prohibits the use of literary allusions, particularly not when context

makes clear that those allusions serve as near-universally-recognized shorthand for otherwise

permissible commentary. There would be no issue, for example, had the prosecutor told the jury

that Taylor was “superficially innocent-looking, but constantly scheming and manipulating.”

Indeed, that very point—that Taylor, a seemingly harmless person, was actually a dangerous

man—was related to the Government’s argument on future dangerousness and was thus relevant.

The prosecutor could make that relevant point by referring to a well-known short story without

committing prosecutorial misconduct.

Though close to the edge, it was also not misconduct for the prosecutor to analogize

Taylor to a wolf or a chameleon. Prosecutors may use the vernacular to express relevant

thoughts. There is no reason, for example, that a prosecutor cannot use “chameleon” as

shorthand to describe “a person given to often expedient or facile change in ideas or character.”

See Merriam Webster’s Collegiate Dictionary 190 (10th ed. 1997). Moreover, as Taylor

concedes, plain error must be shown with respect to the use of these analogies, as defense

counsel did not object. The Supreme Court and this court have several times found no reversible

misconduct where prosecutors compared defendants to animals or predators of some other kind.

For instance, in Darden v. Wainwright, 477 U.S. 168, 181–83 (1986), prosecutor statements

referring to the defendant as an “animal” who “shouldn’t be out of his cell unless he has a leash

on him” did not deprive the defendant of a fair trial. In United States v. Wettstain, 618 F.3d 577,

588–90 (6th Cir. 2010), the prosecutor’s description of defendants as “monsters” at the center of

a community-wide methamphetamine “epidemic” was improper but not flagrant. In Bedford v.

Collins, 567 F.3d 225, 234 (6th Cir. 2009), the prosecutor’s description of the defendant as a

“demon” was unprofessional but did not deprive the defendant of a fair trial. See also United

States v. Davis, 514 F.3d 596, 616 (6th Cir. 2008) (prosecutor called defendant a “predator”);

United States v. Ebron, 683 F.3d 105, 142–43 (5th Cir. 2012) (prosecutor called defendant a

“predator” and compared him to lions and tigers in the jungle stalking animals to kill); Darden

Shepard v. Lane, 818 F.2d 615, 621 (7th Cir. 1987) (prosecutor called petitioner “a liar,” “a

dog,” and “an animal”).

No. 09-5517 United States v. Taylor Page 32

It was also not misconduct for the prosecutor to show the jury a grisly photograph of

Luck’s corpse. Taylor does not contend that the photograph was doctored, inaccurate, or

irrelevant; his prosecutorial misconduct argument with respect to the photograph is, in essence,

that the prosecutor could have shown the jury a less gory photograph of Luck’s corpse. But

gore, grisliness, and gruesomeness are inherent in most murder cases—including this one—and

prosecutors are not required to hide that fact from the jury. Clarke, 556 F. App’x at 407–08.

There is no requirement that prosecutors use the least distressing exhibits in a murder case.

The photograph at issue was relevant in that it directly rebutted one of defense counsel’s

closing arguments, namely the argument that Taylor was a better person than the nature of his

crime suggested. Defense counsel having made that argument, the prosecutor was within bounds

to direct the jury’s attention back to the nature of Taylor’s crime. The prosecutor did not present

the photograph simply for its shock value or for the sake of inciting the jury to reach an

emotional verdict. Even if improper, the photograph presentation, as in Wogenstahl, 668 F.3d at

333, was not flagrant. The prosecutor used the photograph to rebut one of Taylor’s arguments at

sentencing. That was not prosecutorial misconduct sufficient to overturn the jury’s verdict in

this case.

Ground VI: Consideration of Future Dangerousness as an Aggravating Factor

The district court also did not err, as Taylor contends, by refusing to strike the

aggravating factor of future dangerousness in prison. The Supreme Court has held that the

defendant’s future dangerousness is a consideration on which the State may rely in seeking the

death penalty, see Simmons, 512 U.S. at 175 (O’Connor, J., concurring) (citing California v.

Ramos, 463 U.S. 992, 1002–03 (1983)), including death penalty cases where there is no

possibility of parole. See id. at 163 (plurality opinion); see also Davis v. Croyle, 475 F.3d 761,

771 (6th Cir. 2007). That is what happened in this case.

Notwithstanding the likelihood that Taylor, if not executed, will spend his whole life in

prison, the consideration of future dangerousness has clear relevance in this case. As explained

above, the Government’s future dangerousness argument had nothing to do with Taylor’s

propensity for physical violence. Rather, the Government argued that Taylor was dangerous

No. 09-5517 United States v. Taylor Page 33

because of his ability to get others—inside and outside of prison—to act violently. The district

court’s refusal to strike future dangerousness in prison as an aggravating factor thus does not

warrant setting aside Taylor’s death sentence.

Ground VII: Sufficiency of the Evidence of Future Dangerousness

Moreover, contrary to Taylor’s next argument, the record contains sufficient evidence

from which the jury could rationally have concluded that Taylor would pose a danger if

incarcerated. At trial, for example, the jury learned that Taylor had participated in an attempted

jailbreak—involving shanks and sections of piping—in which two guards were assaulted. The

Government also introduced evidence from which jurors might reasonably have inferred that,

while in jail, Taylor orchestrated multiple acts of vandalism against the family of a witness who

had testified against Taylor. Finally, the jury repeatedly saw evidence and heard testimony—

including Taylor’s own words—showing a lack of remorse on Taylor’s part. This included

letters stating that Taylor did not mind being in prison, and the recording of a phone call during

which Taylor laughed about Luck and Luck’s fiancée.

In weighing the sufficiency of the evidence of future dangerousness, we draw all

reasonable inferences in favor of the jury’s finding, United States v. Newsom, 452 F.3d 593, 608

(6th Cir. 2006), such that we will overturn the jury’s finding of future dangerousness only where

no rational trier of fact could have arrived at the conclusion reached by the jury. See Lewis v.

Jeffers, 497 U.S. 764, 781 (1990). That is, as we have repeatedly noted, a “heavy burden,”

United States v. Jefferson, 149 F.3d 444, 445 (6th Cir. 1998), and one that Taylor has not carried

here, given the evidentiary sources supporting the jury’s finding.

Ground VIII: Sufficiency of the Evidence of Planning and Premeditation

Similarly, there was sufficient evidence to support the jury’s finding that Taylor engaged

in substantial planning and premeditation before murdering Luck—one of the Government’s

aggravating factors. Taylor’s argument on this point is that the evidence shows only that he

planned to rob or, at most, kidnap Luck, not that he planned to murder Luck. But the

Government introduced several pieces of evidence that support a finding that Taylor planned to

kill Luck, not just kidnap him. The jury learned, for instance, that Taylor arrived at Luck’s

No. 09-5517 United States v. Taylor Page 34

house the morning of the crime not just with loaded guns, but also without any sort of mask or

other clothing that might conceal his identity—unlike previous burglaries. The jury could

reasonably have interpreted the lack of masks as evidence that this was not just another robbery

attempt, and that Taylor had no intent of letting Luck out of the van alive, since Luck could

otherwise have easily identified Taylor to the police. While inside Luck’s house the morning of

the crime, Taylor allegedly observed documentation indicating that Luck was helping to procure

a warrant for Taylor’s arrest. Most significantly, Taylor drove Luck for two hours to a rural area

of a different state, all the while not bothering to conceal his identity. The jury could have

reasonably concluded that Taylor’s conduct suggested that he intended to kill Luck rather than

leave him alive to testify against Taylor in the future.

In rejecting Taylor’s argument on premeditation, the district court thoughtfully reasoned

as follows:

The evidence showed Defendant had been watching Luck and knew when Luck

took money from his restaurant to the bank. Defendant picked that time to

confront Luck. Luck was then forced into his van, and driven by Defendant from

Atlanta, Georgia, to Collegedale, Tennessee, where Defendant fatally shot

Luck. . . . The jury could conclude Defendant killed Luck after substantial

planning and premeditation based on the fact that he learned Luck’s routine and

killed Luck after taking him on a two-hour drive, during which time Defendant

would have had substantial time to plan and think about the murder. Viewing the

evidence in the light most favorable to the government, a rational jury could

conclude Defendant had decided to kill Luck sometime before the murder and that

the events of the day of the murder were just the culmination of a well thought-

out plan.

That analysis is sound.

Taylor’s actions after the murder supplied further bases for concluding that he had

intended the murder. In particular, the jury heard testimony that Taylor was calm and

methodical after killing Luck, rather than panicked or surprised. The jury learned, for example,

that, after the murder, Taylor promptly flipped the license plate on his vehicle, took precautions

to minimize suspicion while returning to Atlanta, and then went out to eat. The jury could

reasonably have interpreted Taylor’s conduct as evidence that he expected the murder and was

not rattled or surprised by it.

No. 09-5517 United States v. Taylor Page 35

Precedent does not require that the Government prove that Taylor planned to kill Luck in

precisely the manner that he did. Thus, the fact that Luck’s struggle may have prompted Taylor

to shoot Luck sooner than he might have intended does not mean that Taylor did not engage in

substantial planning and premeditation regarding Luck’s ultimate demise. The Government

provided sufficient evidence of planning and premeditation in this case, and so Taylor’s

sufficiency argument fails with respect to that aggravator.

Ground IX: Refusal to Admit Execution Impact Testimony

The district court also did not abuse its discretion in refusing to admit what defense

counsel refers to as “execution impact” evidence—evidence about the impact Taylor’s execution

might have on his family and friends. The district court, in a written memo, gave several cogent

reasons for not permitting such evidence. First, the district court rejected an asserted equivalence

between admissible victim impact testimony and so-called “execution impact” testimony:

[W]hile the FDPA specifically provides for victim impact evidence, 18 U.S.C.

§ 3593, there is no parallel provision allowing for execution impact evidence.

Asking the jury to sentence a defendant to life is not mitigating evidence. United

States v. Mitchell, 502 F.3d 931, 991 (9th Cir. 2007) (approving of district court

not allowing witnesses to offer opinions on what jury’s verdict should be); United

States v. Caro, 461 F. Supp. 2d. 459, 465 (W.D. Va. 2006) (“[A]n express plea for

mercy to the jury from a defendant’s witness is not mitigating evidence that could

aid the jury in their decision making.”); see also Stenson v. Lambert, 504 F.3d

873, 892 (9th Cir. 2007) (noting there are no federal cases requiring the admission

of execution impact testimony); Jackson v. Dretke, 450 F.3d 614, 617–18 (5th

Cir. 2006); but see Jackson, 450 F.3d at 620 (Dennis, J., dissenting).

The district court also noted other problems with such testimony.

First, the testimony would be speculative. While testimony about the victim’s

death is based on past events that witnesses can clearly and accurately testify

about, the execution of a person in the future is a speculative event. Testimony

about a future event would require a witness to imagine the effects of a

prospective occurrence, not relate facts that have occurred. Given the vagaries of

human life and the plethora of internal and external events that impact our lives,

both positively and negatively, to ask a person to testify with any degree of

certainty about the impact on one’s life of an event that may happen many years

in the future is simply to ask for conjecture.

No. 09-5517 United States v. Taylor Page 36

Second, there is a matter of fairness. Victim impact witnesses are

prohibited from opining on the proper sentence. Booth v. Maryland, 482 U.S.

496, 509 (1987), overruled on other grounds, Payne v. Tennessee, 501 U.S. 808,

827 (1991); Fautenberry v. Mitchell, 515 F.3d 614, 638 (6th Cir. 2008). The

reason for prohibiting such opinion testimony is that “any decision to impose the

death sentence must be, and appear to be, based on reason rather than caprice or

emotion. The admission of these emotionally charged opinions as to what

conclusions the jury should draw from the evidence clearly is inconsistent with

the reasoned decisionmaking we require in capital cases.” Booth, 482 U.S. at 509.

Emotionally charged opinions should not form the basis for a verdict in a capital

case regardless of whether the opinions favor death or life.

In Payne, where the Supreme Court held that victim impact evidence was

not constitutionally prohibited, the Court emphasized the fairness in considering

both the life of the defendant and the life of the victim. 501 U.S. at 827 (“Justice,

though due to the accused, is due to the accuser also. The concept of fairness

must not be strained till it is narrowed to a filament. We are to keep the balance

true.”). The parallel between the defendant and victim supports prohibiting

witnesses from opining on their desired sentence, regardless of their preference.

In a very general sense, since the victim of a murder in a capital case is not

alive to testify at the trial, victim impact testimony serves the purpose of allowing

the jury to get a feel and sense of the victim’s life. The defendant in a capital case

will always be available to offer the jury relevant information regarding the

defendant’s life and the impact of any sentence through mitigation evidence,

relevant testimony from witnesses, or the defendant’s own testimony or statement.

Permitting testimony as to the impact on third parties at Defendant’s execution

would have upset this symmetry.

Taylor now argues that he had a right to introduce evidence about the “nature and

strength of [his] loving relationships with his relatives,” on the ground that such evidence

constituted “relevant mitigating evidence” under Skipper v. South Carolina, 476 U.S. 1, 4

(1986). See also 18 U.S.C. §§ 3592(a)(8), 3593(c). He contends that testimony from his family

would have constituted “relevant circumstantial evidence of his character, background, and value

as a human being.” The district court, however, never prevented Taylor’s family members from

testifying about Taylor’s “character, background, and value as a human being.” To the contrary,

Taylor’s family and friends were allowed to testify at length about those subjects. The district

court merely prevented Taylor’s family and friends from testifying about the impact that his

execution would have on them. In so doing, the district court was on firm legal footing. As the

Ninth Circuit has observed, there are no cases requiring the admission of “execution impact”

No. 09-5517 United States v. Taylor Page 37

testimony, even though some courts have allowed it. Stenson v. Lambert, 504 F.3d 873, 891 (9th

Cir. 2007). The fact that some courts have allowed execution impact testimony does not mean

that the district court abused its discretion by finding such testimony irrelevant in this case. For

one thing, there are good reasons to believe that such testimony would not properly constitute

mitigating evidence. As the Fifth Circuit has noted, “[b]ecause such evidence does not reflect on

[the defendant’s] background or character or the circumstances of his crime, the Supreme Court

has never included friend/family impact testimony among other categories of mitigating

evidence that must be admitted during a capital trial.” United States v. Snarr, 704 F.3d 368, 401

(5th Cir. 2013). Similarly, in United States v. Hager, the Fourth Circuit observed that:

[A]llowing a capital defendant to argue execution impact as a mitigator is

improper. . . . The capital defendant is available to offer the jury all the relevant

information as to his life, background, character, and the impact any sentence will

have on him. To allow testimony of the impact on third parties, however, does

nothing to inform the jury on any of these matters and upsets the balance set forth

in [Payne v. Tennessee, 501 U.S. 808 (1991)].

721 F.3d 167, 194–95 (4th Cir. 2013).

Taylor argues that execution impact evidence should be allowed to the same extent as

victim impact evidence, but these arguments are without merit for the reasons explained by the

district court. See also Snarr, 764 F.3d at 402. The district court accordingly did not abuse its

discretion by prohibiting execution impact testimony.

Ground X: Responses to Jury Questions

Taylor next argues that the district court’s instructions to the jury in response to its

questions during deliberations were incomplete, misleading, and coercive. The district court

gave the jury its sentencing instructions on October 14, 2008. Taylor requested that the district

court instruct the jury that, if the jurors could not agree unanimously on a sentence, the district

court would sentence Taylor to life in prison. The district court, however, declined to give that

instruction. That determination was fully supported by the case law. See United States v. Jones,

527 U.S. 373, 380–81 (1999). The instructions that the court gave said that the jury would

decide Taylor’s sentence, that Taylor would be sentenced to death if the jury unanimously voted

for that sentence, and that Taylor would be sentenced to life in prison without the possibility of

No. 09-5517 United States v. Taylor Page 38

release if the jury unanimously voted for that sentence. The district court also instructed the

jurors that they should try to work out their differences and should not hesitate to change their

minds if they became convinced that other jurors were right, but that they should not change

their minds just because other jurors saw things differently or just to get the case over with.

The jury began deliberations on October 15, 2008, then took several days off.

Deliberations resumed on October 21. At 11:15 a.m. that day, the jury sent a note to the district

court asking: “If the jury cannot reach a unanimous decision, what then?” The court convened

the parties and proposed the following instruction:

You have asked what happens if the jury cannot reach a unanimous verdict. This

is a question that is often asked in trials taking a considerable amount of time or

involving difficult issues. It is not uncommon for there to be disagreement or for

jurors to find it difficult to reach a unanimous decision. However, we can only

ask that the jury try its best to work out its differences.

Taylor objected and requested that the district court advise the jury that if its decision was not

unanimous the district court would sentence Taylor to life in prison. The district court overruled

Taylor’s objection and sent its instruction to the jury. In doing so, the district court reasoned as

follows:

[T]he questions [from the jury] are susceptible to multiple interpretations.

One interpretation could be that they are deadlocked and they’re asking what to

do. Another interpretation could be they’re just asking out of curiosity. Another

interpretation is that they’re having some difficulty but they have not reached

deadlock now.

One of the advantages to the instructions the Court gives is, it allows them

to tell us specifically what the issue is. If they’re deadlocked—this is a very

intelligent jury—they’ll tell us that. If they need something else, they will tell us

that, also. What the instruct- -- what the communication does, in essence, is to

repeat what the Court told the jury at the end of the instructions—do their best,

work hard, and try to work out their differences.

The district court thus did not read the jury’s question as an expression of deadlock.

At 2:40 p.m., the jury sent out a second note asking whether the case would result in a

mistrial and whether the guilty verdict would be “null and void” if the jury could not reach a

No. 09-5517 United States v. Taylor Page 39

unanimous decision. After once again convening and consulting with the parties, the district

court responded with the following instruction:

If the jury is unable to reach a unanimous decision, then that result would be

reported to the court, and the jury would be discharged. Whether or not the jury

would be able to reach a unanimous decision in the sentencing phase of the case

would have no effect on the jury verdict regarding Defendant’s guilt.

Taylor once more requested—and the district court once more rejected his request—that the

district court instruct the jury that Taylor would be sentenced to life in prison if the jury failed to

reach a unanimous decision. The jury returned its verdict about an hour after it sent its second

note.

The instructions that the district court gave were accurate. Federal law allows for just

two sentences for defendants convicted of kidnapping resulting in death: life in prison or the

death penalty. 18 U.S.C. § 1201(a). If the jury unanimously votes for either sentence, the

district court is to impose that sentence. Id. § 3594. If the jury is unable to reach a unanimous

verdict, the district court is to impose the least severe sentence authorized by law—in this case,

life in prison. Id. The district court’s initial instruction to the jury—read to the jury before

deliberations commenced, and given to the jury, in paper form, at the outset of deliberations—

accurately summarized the consequences of a unanimous verdict in either direction. The district

court’s response to the jury’s second question, moreover, properly informed the jury of the

consequence relevant to the jury of the jury’s failure to reach a unanimous verdict: discharge of

the jury without effect on the jury’s guilty verdict.

The district court acted within its discretion when it did not tell the jury about the

sentence that Taylor would receive in the event that the jury deadlocked. Jones holds squarely

that the Constitution does not require the jury to be instructed on the consequences of failure to

reach unanimity in a capital case. Jones, 527 U.S. at 383. The cases that Taylor cites do not

require a different result merely because the jury has asked. In Hodges v. Epps, 648 F.3d 283

(5th Cir. 2011), and Morris v. Woodford, 273 F.3d 826 (9th Cir. 2001), federal courts of appeals

vacated death sentences imposed after lower courts erroneously instructed the juries that the

defendants might receive a sentence of life in prison with the possibility of parole, when, in fact,

No. 09-5517 United States v. Taylor Page 40

the minimum sentence for which the defendants were eligible was life in prison without the

possibility of parole. Hodges, 648 F.3d at 289; Morris, 273 F.3d at 837. Hodges and Morris

thus involved affirmatively inaccurate statements of the law. Taylor, however, does not argue

that the district court misstated the law in his case, only that the district court might have offered

a fuller explanation. We are aware of no case that requires that a question from the jury be

answered with information properly omitted from jury instructions.

It is, of course, possible for a district court to abuse its discretion in delivering jury

instructions, even if those instructions are accurate, if the instructions are unduly coercive. There

was nothing coercive in the answers provided by the district court, however. This was not a case

where the jury stated that it was deadlocked, such that mere refusal to call a mistrial could be

deemed coercive. It was accordingly within the district court’s discretion not to give a full Allen

charge, but rather to respond only to the questions asked. The district court reasonably

determined that if the jury were deadlocked, it would say so.

Even if the district court’s answers were considered analogous to an Allen charge, which

is questionable in the context of this case, the operative question would be whether, “in its

context and under all the circumstances,” the district court’s jury charge was “coercive.” Jenkins

v. United States, 380 U.S. 445, 446 (1965) (per curiam). In this case, the instructions that the

district court actually gave were not, under the totality of the circumstances, coercive. In the first

place, Taylor points to nothing in the instructions given that either singled out the minority of

jurors or encouraged anyone in the jury to abandon sincerely held views of the case. That is one

basis for distinguishing this case from United States v. Scott, 547 F.2d 334 (6th Cir. 1977), where

the district court took the unusual step of telling the jury that failure to reach a verdict would

only exacerbate a backlog in cases on the court’s docket.

Furthermore, nothing in the jury’s instructions even suggested that the jury was required

to reach an agreement. To the contrary, the district court’s second follow-up instruction clearly

explored the possibility of the jury’s not reaching a consensus. The jurors’ right to continue

disagreeing “may be implicit in the charge,” see Williams v. Parke, 741 F.2d 847, 850 (6th Cir.

1984), and that is the case here.

No. 09-5517 United States v. Taylor Page 41

Accordingly, the district court’s responses to the jury questions did not amount to

reversible error.

Ground XI: Sufficiency of the Evidence of Carjacking

Taylor next claims that the Government did not produce sufficient evidence to convict

him of carjacking. To convict a defendant of carjacking in violation of 18 U.S.C. § 2119(3), the

Government must show “that the defendant, (1) with intent to cause death or serious bodily

harm, (2) took a motor vehicle, (3) that had been transported, shipped, or received in interstate or

foreign commerce, (4) from the person or presence of another (5) by force and violence or

intimidation.” United States v. Fekete, 535 F.3d 471, 476 (6th Cir. 2008). Taking the

evidence—particularly Matthews’s statements and Marshall’s testimony—in the light most

favorable to the Government, the jury could reasonably have concluded that the Government had

established each element beyond a reasonable doubt.

On appeal, Taylor does not contest that he took Luck’s vehicle, that Luck’s vehicle had

been transported in interstate commerce, that he took Luck’s vehicle from Luck, or that he took

Luck’s vehicle using intimidation. Thus, there is no question as to four of the five elements of

carjacking under § 2119. Taylor’s only argument with respect to the jury’s carjacking verdict is

that the Government did not prove that he took Luck’s car “with intent to cause death or serious

bodily harm.” Matthews and Marshall, however, supplied ample evidence from which the jury

could reasonably conclude otherwise. For example, Matthews stated that he, Marshall, and

Taylor confronted Luck with weapons and deliberately forced Luck into his van; that Matthews

trained his loaded gun on Luck as Taylor got into the van and drove it into Tennessee; and that

Matthews and Taylor subsequently shot Luck. Marshall’s testimony, moreover, supplied a

reason for Taylor to have acted with intent to cause death or serious bodily harm, namely that

Taylor had seen papers in Luck’s house suggesting that Luck had helped obtain an arrest warrant

for Taylor. Based on Matthews’s and Marshall’s statements, the jury could have reasonably

concluded that Taylor, brandishing the gun that he later used to kill Luck, intended to seriously

harm or kill Luck when he and his co-conspirators forcibly took Luck’s van.

No. 09-5517 United States v. Taylor Page 42

Taylor argues that carjacking requires the perpetrator to use or threaten force because the

perpetrator wants to take possession of the vehicle, and that the Government never established

that Taylor and his co-conspirators threatened Luck in order to take Luck’s van. Section 2119

contains no such requirement, however. To the contrary, § 2119 requires only that a defendant

have acted “with intent to cause death or serious bodily harm.” We have never imported a

“purpose” component into § 2119’s specific intent element. Instead, our precedents hold that

§ 2119’s specific intent element is satisfied “if a defendant brandishes a firearm and

(1) physically touches the carjacking victim, or (2) there is direct proof that the firearm was

loaded.” United States v. Washington, 714 F.3d 962, 968 (6th Cir. 2013). Matthews had given a

statement that he, Taylor, and Marshall “confronted Luck with firearms,” including a loaded

9mm semi-automatic pistol, to force Luck into the back of the van. Nothing more is required to

find the requisite specific intent under § 2119.

Taylor points to a handful of cases ostensibly supporting his position that there was

insufficient evidence to support the jury’s carjacking verdict, but those cases are distinguishable.

In United States v. Applewhaite, 195 F.3d 679 (3d Cir. 1999), the defendants assaulted the

victim, threw his body into his van, and drove away in the van. There was no proof, however,

that the defendants threatened or used force to take the victim’s van. Id. at 686. The victim was

dead when the van was taken. Similarly, in United States v. Harris, 420 F.3d 467 (5th Cir.

2005), it was uncontested that the defendant killed the victim and took the victim’s vehicle, but

there was insufficient evidence to show that the defendant had the intent to kill or harm the

victim at the moment that he took the vehicle. Id. at 473–75. Neither case, then, establishes any

principle requiring overturning Taylor’s carjacking conviction.

Ground XII: Asserted Need for Nationwide Proportionality Review

Taylor next argues that, because juries have declined to impose capital punishment in

cases comparable to Taylor’s, his sentence is constitutionally disproportionate, particularly

where there is no statutory provision for a nationwide-proportionality review of federal capital

sentences. No case is cited that supports such a holding. Indeed, the most relevant cases go the

other way. The Supreme Court in Pulley v. Harris, 465 U.S. 37 (1984), held that California’s

capital punishment scheme was not required to have statewide proportionality review; the

No. 09-5517 United States v. Taylor Page 43

possibility of state supreme court review was sufficient. The Court relied on its similar ruling in

Jurek, 428 U.S. 262. In an extensive analysis, moreover, our court has held en banc that the

defendant murderer-for-hire could be executed even if the mastermind of the murder was

sentenced to life imprisonment by a different jury. Getsy v. Mitchell, 495 F.3d 295, 304–09 (6th

Cir. 2007). Taylor’s argument in this regard does not require reversal.

Ground XIII: Standard of Proof for Weighing Determination

Taylor argues that the reasonable doubt standard of proof should apply to the jury’s

weighing determination. As Taylor acknowledges, however, that argument is foreclosed by our

decision in United States v. Gabrion, 719 F.3d 511 (6th Cir. 2013) (en banc), in which we held

that the Federal Death Penalty Act does not require the jury to apply the reasonable doubt

standard in weighing aggravating and mitigating factors. Id. at 531–33.

Ground XIV: Propriety of Venue Selection

Taylor also argues that the Government’s decision to prosecute him in the Eastern

District of Tennessee was prompted by impermissible racial considerations. He suggests that the

Government chose that venue because the jury pool in the Eastern District of Tennessee includes

a higher percentage of Caucasian jurors than do the jury pools in the other venues where Taylor

might have been tried. Taylor’s crime involved quintessential interstate activity, and the actual

murder occurred in east Tennessee.

Taylor has submitted a prosecutor’s acknowledgment in a related case that the

Government knew that it was not likely to secure a death sentence for Taylor in the state court

system. Ordinarily, of course, there is nothing wrong with the Government’s selecting the venue

in which the Government is most likely to secure what it believes is a just sentence. Taylor’s

argument, however, is that juries in the Eastern District of Tennessee were more likely to

sentence him to death because the jury pool in that district is made up largely of white would-be

jurors. In other words, Taylor theorizes that a jury pool’s propensity to sentence black

defendants to death is inextricably bound up with the racial composition of the jury pool, so that

the Government’s selecting the most death-penalty-inclined venue in this case is an inherently

No. 09-5517 United States v. Taylor Page 44

race-conscious decision. That, Taylor contends, amounts to a Fifth Amendment equal protection

violation.

To show that the Government’s venue decision violated his Fifth Amendment rights,

Taylor must prove that the Government acted with discriminatory purpose and did so in a way

that had a discriminatory effect. Wayte v. United States, 470 U.S. 598, 608 (1985). He has

supported neither element with anything other than speculation.

Taylor has produced no evidence that the Government made its charging decision based

on the racial composition of the jury pool in any of the venues in which Taylor might have been

tried. Prosecutorial decisions are presumptively legitimate, meaning that Taylor bears the burden

of proving that the Government purposely discriminated here. At most, the evidence on which

Taylor relies indicates that the Government knew that juries in the Southern Division of the

Eastern District of Tennessee were more likely to return a death sentence than were jurors in

some other jury pools. By itself, however, that fact does not establish that the Government

brought the federal charge in east Tennessee because of the racial composition of the jury pool.

Taylor’s contention in this regard does not warrant reversal.

Ground XV: Vagueness Challenge to 18 U.S.C. § 924(c)(3)(B)

Taylor’s final argument is that the Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015), compels the conclusion that 18 U.S.C. § 924(c)(3)(B), the statute

supporting two of Taylor’s convictions, is unconstitutionally vague. Because § 924(c)(3)(B) is

considerably narrower than the statute invalidated by the Court in Johnson, and because much of

Johnson’s analysis does not apply to § 924(c)(3)(B), Taylor’s argument in this regard is without

merit.

Two of Taylor’s four convictions arose under § 924(j), which authorizes the death

penalty where a person violates § 924(c) and causes the death of another person. Section 924(c)

imposes mandatory minimum sentences for anyone who uses or carries a firearm during or in

relation to a “crime of violence.” The statute defines crime of violence as:

No. 09-5517 United States v. Taylor Page 45

[A]n offense that is a felony and—

(A) has an element the use, attempted use, or threatened use of physical force

against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the

offense.

18 U.S.C. § 924(c)(3) (emphasis added). The jury found that Taylor murdered Luck in the

course of committing two crimes of violence: kidnapping, in violation of 18 U.S.C. § 1201(a),

and carjacking, in violation of 18 U.S.C. § 2119(3). At the time of trial, each crime qualified as

a crime of violence as a matter of law under § 924(c)(3)(B), the italicized clause above.

Taylor argues that § 924(c)(3)(B) is not materially distinguishable from the residual

clause of the Armed Career Criminal Act (ACCA), which the Supreme Court invalidated in

Johnson as unconstitutionally vague. Johnson, 135 S. Ct. at 2563. The ACCA residual clause is

part of the statute’s definition of “violent felony,” which includes:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that—

(i) has as an element the use, attempted use, or threatened use of physical force

against the person of another [the “use of physical force clause”]; or

(ii) is burglary, arson, extortion, involves use of explosives [the “enumerated

offense clause”], or otherwise involves conduct that presents a serious potential

risk of physical injury to another [the “residual clause”].

18 U.S.C. § 924(e)(2)(B) (emphasis added).

Johnson does not require reversal of Taylor’s conviction, because several factors

distinguish the ACCA residual clause from § 924(c)(3)(B). First, the statutory language of

§ 924(c)(3)(B) is distinctly narrower, especially in that it deals with physical force rather than

physical injury. Second, the ACCA residual clause is linked to a confusing set of examples that

plagued the Supreme Court in coming up with a coherent way to apply the clause, whereas there

is no such weakness in § 924(c)(3)(B). Third, the Supreme Court reached its void-for-vagueness

conclusion only after struggling mightily for nine years to come up with a coherent interpretation

of the clause, whereas no such history has occurred with respect to § 924(c)(3)(B). Finally, the

No. 09-5517 United States v. Taylor Page 46

Supreme Court was clear in limiting its holding to the particular set of circumstances applying to

the ACCA residual clause, and only some of those circumstances apply to § 924(c)(3)(B).

There are significant differences making the definition of “crime of violence” in

§ 924(c)(3)(B) narrower than the definition of “violent felony” in the ACCA residual clause.

Whereas the ACCA residual clause merely requires conduct “that presents a serious potential

risk of physical injury to another,” § 924(c)(3)(B) requires the risk “that physical force against

the person or property of another may be used in the course of committing the offense.” Id.

(emphasis added). Risk of physical force against a victim is much more definite than risk of

physical injury to a victim. Further, by requiring that the risk of physical force arise “in the

course of” committing the offense, the language of § 924(c)(3)(B) effectively requires that the

person who may potentially use physical force be the offender. Moreover, § 924(c)(3)(B)

requires that the felony be one which “by its nature” involves the risk that the offender will use

physical force. None of these narrowing aspects is present in the ACCA residual clause.

These are distinctions that made a difference in Johnson. The Johnson Court in part

relied upon the wide judicial latitude permitted by the ACCA’s coverage of crimes that

“involve[] conduct” presenting a serious risk of injury, language that did not limit a court’s

inquiry to the elements of the crime. 135 S. Ct. at 2557. Section 924(c)(3)(B), by contrast, does

not allow a court to consider risk-related conduct beyond that which is an element of the

predicate crime since the provision covers offenses that “by [their] nature” involve a substantial

risk that force may be used. The phrase “by its nature” indicates that a court’s analysis of

whether there is a risk of force is confined to the offense itself. The Supreme Court has

interpreted identical language in another statute, 18 U.S.C. § 16(b), in this way. See Leocal v.

Ashcroft, 543 U.S. 1, 10 (2004).

Similarly, § 924(c)(3)(B) does not allow courts to consider conduct occurring after the

crime has been committed. In Johnson, the Court explained that “the inclusion of burglary and

extortion among the enumerated offenses preceding the residual clause confirms that” a court

could evaluate the risk of injury arising after the crime has been completed, since “[t]he act of

making an extortionate demand or breaking and entering into someone’s home does not, in and

of itself, normally cause physical injury.” 135 S. Ct. at 2557. Section 924(c)(3)(B)’s

No. 09-5517 United States v. Taylor Page 47

requirement that physical force “be used in the course of committing the offense” permits no

similar inquiry into conduct following the completion of the offense: under that statute, the force

must be used and the risk must arise in order to effectuate the crime. Thus, unlike the ACCA

residual clause, § 924(c)(3)(B) does not allow courts to consider “physical injury [that] is remote

from the criminal act,” a consideration that supported the Court’s vagueness analysis in Johnson.

Johnson, 135 S. Ct. at 2559.

Another independently compelling difference between the language in § 924(c)(3)(B) and

the ACCA residual clause is the textual link in the latter clause by the word “otherwise” to four

enumerated but diverse crimes. Johnson, 135 S. Ct. at 2558. The Johnson Court explained that

by using the word “otherwise,” “the residual clause forces courts to interpret ‘serious potential

risk’ in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the

use of explosives.” Id. The Court further explained that gauging the level of risk required was

difficult because the four listed crimes “are ‘far from clear in respect to the degree of risk each

poses.’” Id. (quoting Begay v. United States, 553 U.S. 137, 143 (2008)). Unlike the ACCA,

§ 924(c)(3)(B) does not complicate the level-of-risk inquiry by linking the “substantial risk”

standard, through the word otherwise, “to a confusing list of examples.” Johnson, 135 S. Ct. at

2561. As a result, § 924(c)(3)(B) does not require analogizing the level of risk involved in a

defendant’s conduct to burglary, arson, extortion, or the use of explosives.

A third consideration further militates against applying Johnson to this case. In Johnson,

the Court recognized its “repeated attempts and repeated failures to craft a principled and

objective standard out of the residual clause.” 135 S. Ct. at 2558. In the nine years preceding

Johnson, the Court had applied four different analyses to the residual clause. See id. at 2558–59.

These inconsistent decisions led to “pervasive disagreement [among lower federal courts] about

the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to

consider.” Id. at 2560. By contrast, the Supreme Court has not unsuccessfully attempted on

multiple occasions to articulate the standard applicable to the § 924(c)(3)(B) analysis. Nor is it

correct, as Taylor argues, that the confusion about the ACCA in pre-Johnson Supreme Court

decisions may be transferred to § 924(c)(3)(B), because much of the confusion in the ACCA

No. 09-5517 United States v. Taylor Page 48

cases concerned the four enumerated crimes that were linked to the residual clause. See

Johnson, 135 S. Ct. at 2558–59.

Finally, the Johnson opinion itself stressed that its reasoning did not control other statutes

that refer to predicate crimes. The Johnson majority addressed at some length the argument that

the holding in that case would place in doubt “dozens of federal and state criminal laws[, like

§ 924(c)(3)(B), that] use terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk.’” Id.

at 2561. The Court gave two reasons why that was not the case, and one of them directly

distinguishes § 924(c)(3)(B):

Almost none of the cited laws links a phrase such as “substantial risk” to a

confusing list of examples. “The phrase ‘shades of red,’ standing alone, does not

generate confusion or unpredictability; but the phrase ‘fire-engine red, light pink,

maroon, navy blue, or colors that otherwise involve shades of red’ assuredly does

so.” James v. United States, 550 U.S. 192, 230, n.7 (2007) (Scalia, J., dissenting).

Johnson, 135 S. Ct. at 2561. Unlike the ACCA residual clause, however, § 924(c)(3)(B) does

not include “a confusing list of examples.”

It is true that Johnson also relied in part on the fact that the ACCA residual clause, like

§ 924(c)(3)(B), requires the application of a categorical approach, which requires courts to look

at the ordinary case of the predicate crime. Johnson, 135 S. Ct. at 2557–58. Taylor places

primary emphasis on this similarity. But the Court explicitly refrained from flatly invalidating

this type of analysis. Id. at 2561–62. In stating that the ordinary case analysis and the level-of-

risk requirement “conspire[d] to make [the statute] unconstitutionally vague,” the Court ruled

that the problem with the ACCA residual clause was that it combined an overbroad version of the

categorical approach with other vague elements. Id. at 2557. The same is not true of

§ 924(c)(3)(B). In short, Johnson did not invalidate the ACCA residual clause because the

clause employed an ordinary case analysis, but rather because of a greater sum of several

uncertainties. Indeed, as the Court explained, although “the uncertainties in the [ACCA] residual

clause may be tolerable in isolation, . . . ‘their sum makes a task for us which at best could be

only guesswork.’” Johnson, 135 S. Ct. at 2560 (quoting United States v. Evans, 333 U.S. 483,

495 (1948)).

No. 09-5517 United States v. Taylor Page 49

Recent decisions, in addition, support distinguishing § 924(c)(3)(B) from the ACCA

residual clause. In United States v. Amos, 501 F.3d 524, 527 (6th Cir. 2007), we noted with

respect to language in 18 U.S.C. § 16(b) identical to that in § 924(c)(3)(B) that “[t]he clause

‘used in the course of committing the offense,’ which does not appear in the ACCA, narrows the

section 16(b) definition and distinguishes it from that in the ACCA.” See also United States v.

Stout, 706 F.3d 704, 706 (6th Cir. 2013). The Supreme Court and other circuits have also held

that language identical to that used in § 924(c)(3)(B) is narrower than language identical to that

used in the ACCA residual clause. See, e.g., Leocal, 543 U.S. at 10 n.7 (comparing 18 U.S.C.

§ 16(b) with U.S.S.G. § 4B1.2(a)(2), which contains the same language as the ACCA residual

clause); United States v. Serafin, 562 F.3d 1105, 1109, 1114 (10th Cir. 2009) (comparing

§ 924(c)(3)(B) with U.S.S.G. § 4B1.2(a)(2) and with the ACCA residual clause).

We recognize that the Seventh and Ninth Circuits recently invalidated 18 U.S.C. § 16(b)

under Johnson’s reasoning. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015);

Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). Although § 16(b) appears identical to

§ 924(c)(3)(B) in all material respects, neither decision changes our conclusion, for the reasons

given above. Taylor’s argument that Johnson effectively invalidated § 924(c)(3)(B) is

accordingly without merit.

The judgment of the district court is affirmed.

No. 09-5517 United States v. Taylor Page 50

_________________

DISSENT

_________________

HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. A death

sentence is “unique [among criminal sentences] in its . . . irrevocability,” Gregg v. Georgia,

428 U.S. 153, 187 (1976) (plurality opinion), which makes it, of course, the “most severe

punishment,” Roper v. Simmons, 543 U.S. 551, 568 (2005). For this reason, the Eighth

Amendment’s prohibition on “cruel and unusual punishments” and its protection of human

dignity create a “heightened need for reliability in the determination that death is the appropriate

punishment in a specific case.” Caldwell v. Mississippi, 472 U.S. 320, 323 (1985) (internal

quotation marks omitted).

Capital punishment “must be limited to those offenders who commit ‘a narrow category

of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of

execution,’” Roper, 543 U.S. at 568 (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)); see

also Kennedy v. Louisiana, 554 U.S. 407, 435, 439 (2008) (holding that human dignity presumes

both respect for the individual and a necessity to constrain capital punishment’s use). Thus, a

death sentence is invalid and unconstitutional if a defendant’s crimes “cannot be said to have

reflected a consciousness materially more depraved than that of any person guilty of murder.”

Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (internal quotation marks omitted)); see also

Atkins, 536 U.S. at 319 (holding that “the culpability of the average murderer is insufficient to

justify the most extreme sanction available”).

The “underlying principle that the death penalty is reserved for a narrow category of

crimes and offenders” is implemented throughout the capital sentencing process. Roper,

543 U.S. at 568–69. Sentencing rules thus limit the death penalty to murderers most deserving

of execution (in cases of crimes against individual persons), and protect a criminal defendant’s

rights, including his right to a fair trial. See Eddings v. Oklahoma, 455 U.S. 104, 110–12 (1982).

The Federal Death Penalty Act (FDPA) accordingly requires this court to “review the entire

record in the case,” and directs us to examine the issues raised by the capital defendant, as well

No. 09-5517 United States v. Taylor Page 51

as consider “whether the sentence of death 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 an aggravating factor required to be considered.” 18 U.S.C. § 3595(c). A

careful review of the record, measured against the Constitution’s guarantees and the FDPA’s

directives, mandates that Taylor’s death sentence be vacated. Further, the Supreme Court’s

decision in Johnson v. United States, 135 S. Ct. 2551 (2015), compels the conclusion that

18 U.S.C. § 924(c)(3)(B)—which provides the definition of “crime of violence” underlying

Taylor’s two § 924(j) convictions—is unconstitutionally vague, and that those convictions must

be vacated. For these reasons, I respectfully dissent from Parts I, II, III, VIII, and XV of the

majority opinion, join in Parts IV, V, IX, X, XI, XIII, and XIV, and concur separately in Part V.1

Ground I

The Sixth Amendment guarantees to criminal defendants the right to a fair trial by an

impartial jury. U.S. Const. amend. VI; Irvin v. Dowd, 366 U.S. 717, 722 (1961). Under Remmer

v. United States, 347 U.S. 227 (1954), if a district court learns that a juror has been exposed to an

unauthorized communication that may affect the juror’s partiality and thereby prejudice the

defendant, the court must “determine the circumstances [of the unauthorized communication],

the impact [of the communication] on the juror, and whether or not [the communication] was

prejudicial, in a hearing with all interested parties permitted to participate.” Id. at 229–30

(emphasis added); cf. Maj. Op. 6 (omitting italicized language). Remmer thus imposes on a

district court two distinct obligations: a duty to investigate allegations of a juror’s exposure to an

unauthorized communication and a duty to determine whether the exposure violated the

defendant’s constitutional rights. See United States v. Corrado, 227 F.3d 528, 535–36 (6th Cir.

2000) (stating that “‘when there is a credible allegation of extraneous influences, the court must

investigate sufficiently to assure itself that constitutional rights of the criminal defendant have

not been violated’” (quoting United States v. Rigsby, 45 F.3d 120, 124–25 (6th Cir. 1995)));

United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985) (holding that where “possible

juror misconduct is brought to the trial judge’s attention he [or she] has a duty to investigate and

1

Because I conclude the district court committed reversible error regarding grounds II, III, and VIII, which

requires resentencing, I do not address Taylor’s arguments in Parts VI, VII, and XII.

No. 09-5517 United States v. Taylor Page 52

to determine whether there may have been a violation of the [S]ixth [A]mendment”); see also

Williams v. Bagley, 380 F.3d 932, 945 (6th Cir. 2004) (observing that “[c]learly established

Supreme Court precedent dictates that when a trial court is presented with evidence that an

extrinsic influence has reached the jury which has a reasonable potential for tainting that jury,

due process requires that the trial court take steps to determine what the effect of such extraneous

information actually was on that jury” (internal quotation marks omitted)). “Where a colorable

claim of extraneous influence has been raised, . . . a Remmer hearing is necessary to provide the

defendant with the opportunity to prove actual bias.” United States v. Herndon, 156 F.3d 629,

635 (6th Cir. 1998) (emphasis added) (internal quotation marks omitted); id. at 637 (reiterating

that “the district court has a duty to investigate [a claim of alleged juror influence], and if the

allegation is of an extraneous influence, then the district court should have conducted a Remmer

hearing”); United States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999); see also Smith v. Phillips,

455 U.S. 209, 215 (1982) (observing that “the remedy for allegations of juror partiality is a

hearing in which the defendant has the opportunity to prove actual bias” and discussing

Remmer); United States v. Zelinka, 862 F.2d 92, 95–96 (6th Cir. 1998) (holding that “when a

defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be

held”); Rigsby, 45 F.3d at 123 (stating that “we require a Remmer hearing in all cases involving

an unauthorized communication with a juror or the jury from an outside source that presents a

likelihood of affecting the verdict”); United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984)

(observing that “Remmer . . . controls the question of how the district court should proceed

where . . . allegations [of potential jury partiality] are made, i.e., a hearing must be held during

which the defendant is entitled to be heard”).

Here, after individually interviewing each juror and alternate juror, the district court

learned that most had indeed heard the reported “racist redneck” comment. The court thus

should have provided Taylor a meaningful opportunity to prove actual bias. Because the court

denied Taylor’s request for a Remmer hearing, it abused its discretion.2 See Herndon, 156 F.3d

at 637 (holding that although “this court affords broad discretion to the district court in

determining the type of investigation necessary to determine juror bias, the district court must

2

Taylor only objects to the failure to provide a Remmer hearing as to Juror One.

No. 09-5517 United States v. Taylor Page 53

provide the defendant a meaningful opportunity to prove the same”); see also Turner v. Murray,

476 U.S. 28, 36–37 (1986) (plurality opinion) (“By refusing to question prospective jurors on

racial prejudice, the trial judge failed to adequately protect petitioner’s constitutional right to an

impartial jury.”).

The majority cites United States v. Mack, 729 F.3d 594, 606 (6th Cir. 2013), to support

its position that district courts are given discretion—as an alternative to a bright-line rule—

because “requiring district courts to explicitly inquire whether a juror was prejudiced . . . might

actually exacerbate juror bias by ‘unnecessarily highlight[ing] the [communication] in the eyes

of the jurors.’” Maj. Op. 7 (quoting Mack, 729 F.3d at 606). Contrary to the majority’s

understanding of Mack, we did not there expressly reject a bright-line rule or even approve the

district court’s decision not “to make an issue of it” so as not to “unnecessarily highlight the

matter in the eyes of the jurors.” Mack, 729, F.3d at 606. Rather, the court noted the defendant

never requested a Remmer hearing and concluded there was no plain error, explaining:

A defendant is entitled to a Remmer hearing to establish actual bias of a

juror “only when the alleged contact presents a likelihood of affecting the

verdict.” United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). “[N]o

presumption of prejudice arises merely from the fact that improper contact

occurred.” United States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999). Here, the

district court discharged its duty to investigate and decide whether there may have

been a violation of the Sixth Amendment right to a fair and impartial jury. See id.

“[A] defendant who waits until appeal to request a hearing bears a heavy burden,

since the defendant has thereby effectively deprived this court of any basis for

concluding that a hearing would be necessary, and asks us to presume that the

district court would not have acceded to such a request, and would have done so

for erroneous reasons.” United States v. Walker, 160 F.3d 1078, 1083 (6th Cir.

1998). Under the circumstances, no plain error exists that would justify reversal

on this ground.

Id.

Unlike Mack, Taylor expressly requested a Remmer hearing, and the district court itself

understood that the redneck remark was potentially prejudicial. Because the potentially

prejudicial extrinsic communication presented a likelihood of affecting the verdict, this court’s

precedents required the district court to afford Taylor a meaningful opportunity to prove actual

bias. Moreover, the majority’s concern that further questioning could have exacerbated the

No. 09-5517 United States v. Taylor Page 54

comment’s potentially prejudicial effect3 fails to consider that two weeks after the juror

interviews the district court itself reminded the jurors of the comment.4 Further, if a trial court

can simply refuse to hold a Remmer hearing to avoid highlighting a prejudicial extraneous

influence, the right to such a hearing is virtually nonexistent.

The majority also distinguishes United States v. Davis, 177 F.3d 552 (6th Cir. 1999), and

United States v. Herndon, 156 F.3d 629 (6th Cir. 1998). Noticeably absent from the majority’s

discussion of Davis is the Davis court’s reliance on a third factor: “the fact that the information

that prompted the fear was provided by an extraneous source.” 177 F.3d at 557. This fact is

critical because, as Davis recognized, although “a new trial will not be necessary every time a

question of juror partiality is raised[, w]here a colorable claim of extraneous influence has been

raised, however, a ‘Remmer hearing’ must be held to afford the defendant an

opportunity to establish actual bias.” 177 F.3d at 557 (internal quotation marks omitted). Such a

claim is present here. Nevertheless, the majority concludes that the absence of the two other

factors—that the juror was “clearly motivated by fear of retaliation from the defendants” and that

“a number of jury members openly agreed that a person in [the juror’s] predicament should seek

to be removed from the panel,” id.—adequately distinguishes Davis. But these were simply the

circumstances of Davis; each case will necessarily involve different facts. It does not follow that

the general rule that a Remmer hearing is required where a colorable claim of extraneous

influence has been raised is not applicable. Moreover, it is not true that Davis relied on “the total

absence” of an investigation as a basis for the court’s holding that the district court erred in not

questioning the remaining jurors. Rather, the total lack of an investigation was the basis of the

court’s holding that neither the trial court nor this court could determine whether the extraneous

communications were harmless. 177 F.3d at 557. Finally, the majority’s statement that the

district court here “conducted individualized conferences with the jurors specifically to

determine whether they had been prejudiced by the reported remark” misapprehends the court’s

3

This seems to be an acknowledgment of the likelihood of prejudice.

4

At the beginning of the first day of sentencing, the court reminded the jury en masse that the “[w]eek

before last I asked each of you individually some questions.” The court asked: “Will you be able to put out of your

minds anything that you may have heard from the media, coworkers, neighbors, or any other source outside of the

trial, in making a decision in this phase of the case? . . . This would include any of the things we discussed in the

individual discussions we had two weeks ago. Do you all understand that?” (PID 7235–36.)

No. 09-5517 United States v. Taylor Page 55

and Taylor’s role. The court has a duty to investigate the allegation and Taylor has the burden to

prove actual bias. By refusing to further question Juror One and denying Taylor an opportunity

to do so, the court deprived Taylor a meaningful opportunity to prove bias.5

The majority distinguishes Herndon on the basis that here “the district court asked all of

the jurors about the extent to which they were aware of the reported remark.” Maj. Op. 9. This

characterization of the facts omits the critical fact that the court did not question Juror One (and

only Juror One) whether she could continue to serve as an impartial juror. And Herndon

suggests it is error to fail to obtain a juror’s personal assurance of impartiality when the juror is

exposed to an unauthorized outside communication. 156 F.3d at 637 (observing that the trial

“judge not only failed to adequately investigate the allegation of juror partiality, but the juror

never personally assured the court of his impartiality”).

The majority concludes the transcripts of the court’s in camera interviews with the jurors

“gave Taylor the required opportunity to establish juror bias.” Maj. Op. 9. Had the court

questioned Juror One regarding her ability to remain impartial, I might agree. In any event, our

precedents require a meaningful opportunity to prove actual bias in an evidentiary hearing. See

Corrado, 227 F.3d at 536 (holding that “district court abused its discretion by failing to conduct

an adequate evidentiary hearing into the allegations of extraneous influences on the jury pursuant

to the holding in Remmer” and remanding for a hearing at which the defendant “should be

accorded the opportunity to question the jurors individually and under oath”); Herndon, 156 F.3d

at 637 (holding that “the district court must provide the defendant a meaningful opportunity to

prove [juror bias]”); United States v. Walker, 1 F.3d 423, 431 (6th Cir. 1993) (“By denying the

reasonable request to inquire into the jurors’ states of mind, the defendants were deprived of the

opportunity to meet their burden of proving actual juror bias . . . .”); see also Remmer, 347 U.S.

at 230 (holding that the district court “should determine the circumstances, the impact thereof

upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties

permitted to participate”).

5

The majority seems more focused on the experience and good-faith of the trial judge than the dictates of

Remmer. There is no question that the district judge is among the most careful and able judges, but even the best

judges make mistakes, sometimes for the best of reasons.

No. 09-5517 United States v. Taylor Page 56

The majority correctly observes that Taylor focuses his appellate argument on the district

court’s failure to further question Juror One. In other words, Taylor contends the district court

failed to discharge its duty to investigate the impact of the outside communication on the juror’s

ability to continue to serve as a fair and impartial juror. The import of asking the juror whether

she could put the comment aside and decide the case based solely on the evidence and law given

by the court is not inconsequential. A district court “may rely [on a juror’s assurance of

continued impartiality] in deciding whether a defendant has satisfied the burden of proving

actual prejudice,” if the court finds the juror’s assurance credible. United States v. Pennell,

737 F.3d 521, 533 (6th Cir. 1984) (discussing Smith v. Phillips, 455 U.S. 209 (1982)). But

absent such assurance, the court cannot fully assess whether a juror who is exposed to an outside

communication can remain impartial. See Corrado, 227 F.3d at 537; United States v. Davis,

177 F.3d 552, 557 (6th Cir. 1999) (holding that because “the [trial] judge did not inquire of the

remaining jurors whether they were influenced in any manner, . . . further inquiry seems not only

appropriate, but necessary to ensure the impartiality of the jury”).6 For example, in Pennell, this

court held the district court did not abuse its discretion in denying the defendant’s motion for a

mistrial based on several jurors’ testimony that they had received late-night telephone calls

threatening that they “had better find [the defendant] guilty,” because, unlike here, “the court

immediately conducted a Remmer hearing . . . and thoroughly questioned the contacted jurors on

an individual basis and concluded that their assertions of unimpaired impartiality were worthy of

belief.” Id. at 529, 534 (emphasis added).

6

Although the district court questioned the jury en masse whether they could remain impartial, this court

has held that a group inquiry does not satisfy Remmer’s requirements; rather, at the Remmer hearing, “the

defendant[] should be accorded the opportunity to question the jurors individually and under oath.” Corrado,

227 F.3d at 536–37; see also Goins v. McKeen, 605 F.2d 947, 949, 953 (6th Cir. 1979) (concluding the court failed

to assure the integrity of the trial because it questioned the jury en masse rather than individually and in chambers,

and although the jurors who had read a prejudicial news article assured the court that they could decide the case

based on the evidence).

The majority distinguishes Corrado and Goins because the district court here “made a deliberate and

concerted effort to investigate potential juror prejudice. Not only did the district court question the jurors in camera,

one at a time, but it repeatedly asked follow-up questions when the need arose. The district court’s efforts here,

then, were not at all like the cursory inquiries that were not adequate in Corrado and Goins.” Maj. Op. 10–11.

Although the district court’s investigation was not cursory, it was also not complete. The court’s refusal to ask Juror

One whether she could remain impartial, along with its denial of Taylor’s request for a Remmer hearing, deprived

him of a meaningful opportunity to prove the juror’s impartiality.

No. 09-5517 United States v. Taylor Page 57

In United States v. Walker, 1 F.3d 423 (6th Cir. 1993), the district court inadvertently

allowed inadmissible portions of deposition transcripts to enter the jury room. Id. at 427. After

learning of the mistake, the district court interviewed the jurors individually in chambers and

with counsel present to determine how the jury used the transcripts. Id. at 430. The court

learned that the jurors did not read the inadmissible portions, but did read portions of testimony

the court allowed the Government to show by video (but did not admit as an exhibit) and thus the

jury was doubly exposed to the testimony. Id. at 426, 430. The court did not, however, ask the

jurors whether the transcripts had influenced their ability to be fair. Id. at 430. Defendants

suggested the court inquire of the jurors whether their double exposure would make them believe

they could no longer be fair and impartial. Id. The court disregarded the suggestion and

provided a precautionary instruction to the jury, directing the jury not to consider the transcripts.

Id. at 431. This court held that “[b]y denying the reasonable request to inquire into the jurors’

states of mind, the defendants were deprived of the opportunity to meet their burden of proving

actual juror bias, and were thereby denied a fair trial.” Id. at 431.

The majority distinguishes Walker because, in its view, that case involved a “highly

prejudicial communication.” Maj. Op. 10. In effect, the majority determines the unauthorized

communication here was not prejudicial to Taylor, notwithstanding that the district court denied

Taylor a hearing to prove actual prejudice. Our cases involving the wrongful denial of a Remmer

hearing have uniformly remanded where the extraneous statement had a potential for prejudice,

because the lack of a hearing precludes a finding that the exposure was harmless. See, e.g.,

Davis, 177 F.3d at 557. We simply are not in a position to decide whether Juror One’s exposure

to extraneous information was harmless. Our task is to determine whether a Remmer hearing is

required, which depends on whether the “alleged contact presents a likelihood of affecting the

verdict.” Mack, 729 F.3d at 606. The district court assumed the statement was prejudicial, and

reasonably so. (PID 2053 n.5.) This court has recognized that the term “redneck” is at least

“mildly offensive.” Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 327 n.2 (6th Cir. 2012). An

accusation of racism may be prejudicial, too. See Armstrong v. Shirvell, 596 F. App’x 433, 442

(6th Cir. 2015) (noting that the term “racist” has a clear, well understood meaning, which is

capable of being defamatory). Because the comment had a likelihood of affecting the sentence,

No. 09-5517 United States v. Taylor Page 58

the court should have granted Taylor’s request for a Remmer hearing.7 I would, therefore,

remand for a hearing at which Taylor must be afforded a meaningful opportunity to prove bias.8

Ground II

Taylor argues that Aiken’s and Dr. Cunningham’s testimony was admissible to rebut the

Government’s evidence of Taylor’s future dangerousness. The Constitution and FDPA give a

defendant the right to rebut the government’s allegation of future dangerousness with relevant

evidence. See Davis v. Coyle, 475 F.3d 761, 771 (6th Cir. 2007) (discussing due process

requirements outlined in Skipper v. South Carolina, 476 U.S. 1, 5 (1986)); 18 U.S.C. § 3593(c)

(“At the sentencing hearing, information may be presented as to any matter relevant to the

sentence, including any mitigating or aggravating factor permitted or required to be

considered . . . . The government and the defendant shall be permitted to rebut any information

received at the hearing . . . .”). Taylor also contends the expert testimony was independently

admissible as mitigation. (Taylor Br. 110.)

The majority characterizes the Government’s allegation of future dangerousness narrowly

and concludes that the excluded expert testimony “was not relevant rebuttal evidence on future

dangerousness, because none of it rebutted any of the Government’s future dangerousness

arguments,” because, in its view, “[a]t no point in the proceedings did the Government seriously

contend—or even intimate—that Taylor was personally dangerous.” Rather, “any such

argument would have been patently absurd given Taylor’s slight stature . . . .” Maj. Op. 22; see

7

Moreover, the charge of racism cannot be ignored in this cross-racial capital case. As the Supreme Court

stated in Turner, a case involving a capital crime of interracial violence:

Because of the range of discretion entrusted to a jury in a capital sentencing hearing,

there is a unique opportunity for racial prejudice to operate but remain undetected. . . . More

subtle, less consciously held racial attitudes could also influence a juror’s decision in this case.

Fear

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