Petition for Writ of Certiorari — Brandon Michael Council, Petitioner v. United States
Supreme Court briefFeb 23, 2024
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APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A: Fourth Circuit Opinion
(Aug. 9, 2023).............................................
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APPENDIX B: Fourth Circuit Order
Denying Rehearing (Sept. 26, 2023)......
48a
APPENDIX C: District Court of South
Carolina Motion for Competency
i Evaluation and Motion for Continuance
of Trial Proceedings (Sept. 19, 2019).....
50a
APPENDIX D: Psychiatrists’ TwoParagraph Statement (Sept. 23, 2019)..
58a
APPENDIX E: Statutory Provisions
involved............. .........................................
60a
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APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL COUNCIL,
Defendant - Appellant.
MENTAL HEALTH PROFESSIONALS,
Amicus Supporting Appellant,
GOVERNOR HENRY MCMASTER,
Amicus Supporting Appellee.
No. 21-8
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL COUNCIL,
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Defendant - Appellant.
MENTAL HEALTH PROFESSIONALS,
Amicus Supporting Appellant,
GOVERNOR HENRY MCMASTER,
Amicus Supporting Appellee.
Appeal from the United States District Court for the
District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge.
(4:17-cr-00866-RBH-l)
Argued: May 3, 2023
Decided: August 9, 2023
Before WILKINSON, AGEE, and HEYTENS, Circuit
Judges.
Affirmed by published opinion. Judge Heytens wrote
the opinion, in which Judge Wilkinson and Judge
Agee joined.
ARGUED: Barry Joseph Fisher, OFFICE OF THE
FEDkRAL PUBLIC DEFENDER, Albany, New York,
for appellant. Ann Adams, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appe llee. ON BRIEF: Jaclyn L. Tarlton, Raleigh,
North Carolina; Jerome C. Del Pino, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Albany, New York,
for Appellant. Kenneth A. Polite, Jr., Assistant
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Attorney General, Lisa H. Miller, Deputy Assistant
Attorney General, Joshua K. Handell, Appellate
Section, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.;
Adair Ford Boroughs, United States Attorney,
Kathleen Stoughton, Appellate Chief, Columbia,
South Carolina, Everett E. McMillian, Assistant
United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Florence, South Carolina, for
Appellee. Maya M. Eckstein, Trevor S. Cox, William
P. jSowers, HUNTON ANDREWS KURTH LLP,
Richmond, Virginia, for Amicus Mental Health
Professionals. Thomas A. Limehouse, Jr., Chief Legal
Counsel, Wm. Grayson Lambert, Senior Legal
Counsel, Erica W. Shedd, Deputy Legal Counsel,
OFFICE OF THE GOVERNOR OF SOUTH
CAROLINA, Columbia, South Carolina, for Amicus
Governor Henry McMaster.
TOBY HEYTENS, Circuit Judge:
The Federal Death Penalty Act requires us to
“address all substantive and procedural issues raised
on ;he appeal of a sentence of death” and “state in
wiring the reasons for [our] disposition.” 18 U.S.C.
§ 3595(c)(1) & (3). Fulfilling that responsibility, we
exp ain why we affirm Brandon Council’s convictions
and sentences.
I.
On August 21, 2017, Council robbed the CresCom
Bark in Conway, South Carolina. During the robbery,
Council fatally shot bank teller Donna Major and
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bank manager Kathryn Skeen. Council was arrested
three days later.
The next month, a federal grand jury returned a
three-count indictment. One count— which accused
Council of possessing a firearm after being convicted
of k felony—was dismissed on the government’s
motion. The other counts, of which Council was
ultimately convicted, charged: (1) bank robbery
res lilting in death, in violation of 18 U.S.C. § 2113(a)
& (e) (Count One); and (2) using and carrying a
fire arm during and in relation to a crime of violence
in a. manner causing death, in violation of 18 U.S.C.
§ 924(c)(l)(A)(iii) & (j)(l) (Count Two). Both counts
carried a possible death sentence. See §§ 2113(e)
(Count One), 924(j)(l) (Count Two). Council pleaded
not guilty.
In March 2018, the government filed a notice of
intejnt to seek the death penalty. See 18 U.S.C.
§ 3o93(a) (requiring the government to file such notice
witliin “a reasonable time before the trial or before
acceptance by the court of a plea of guilty”). As
required by federal law, the notice identified various
“aggravating . . . factors that the government . . .
propose[d] to prove as justifying a sentence of death.”
§ 3593(a)(2).
TI e guilt-phase portion of Council’s trial was held
over four days in September 2019. Council presented
no evidence or witnesses during that phase. The jury
four d Council guilty on both charges. After a six-day
penalty-phase
trial,
the jury
unanimously
recommended a sentence of death on each count, and
the district court entered judgment consistent with
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the jury’s verdict. We have jurisdiction under 28
U.S C. § 1291 and 18 U.S.C. § 3595.
II.
Council raises four challenges to the district court’s
handling of the guilt phase. We conclude none
warrants upsetting the court’s judgment.
A.
“A criminal prosecution may not proceed unless the
defendant is competent.” United States v. Tucker, 60
F.4t'i 879, 883 (4th Cir. 2023). Indeed, “[i]t would be a
viola tion of due process to convict a defendant when
he is legally incompetent.” United States v. Banks, 482
F.3d 733, 742 (4th Cir. 2007). “For constitutional
purposes, the test [for competency] is whether the
defendant has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding and has a rational as well as factual
understanding of the proceedings against him.”
Tucker, 60 F.4th at 883 (quotation marks omitted).
Council disputes the adequacy of the procedures the
district court used in assessing his competency.
Specifically, Council asserts the court improperly
delegated its duty to determine his competency by
allowing defense-selected experts to examine him,
declining to secure a report assessing Council’s
competency, and failing to conduct an appropriate
competency hearing. We review such a “procedural
competency claim” for abuse of discretion, Banks, 482
F.3d at 742 (quotation marks omitted), while
reviewing any embedded questions of statutory
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interpretation de novo, see United States u. Jones, 60
F.4lh 230, 232 (4th Cir. 2023).1
The Insanity Defense Reform Act establishes a
process for determining whether a federal criminal
defendant is competent to stand trial. The Act says a
distinct court “shall order” a competency hearing
whenever “there is reasonable cause to believe that [a]
defendant may presently be suffering from a mental
disejase or defect rendering him mentally incompetent
to the extent that he is unable to understand the
nature and consequences of the proceedings against
him or to assist properly in his defense.” 18 U.S.C.
§ 4241(a). The Act also says that “[p]rior to the date of
the rearing, the court may order that a psychiatric or
psychological examination of the defendant be
conducted, and that a psychiatric or psychological
report be filed with the court, pursuant to the
provisions of section 4247(b) and (c).” § 4241(b).
Finally, the Act instructs that a competency “hearing
shall be conducted pursuant to the provisions of
section 4247(d),” § 4241(c), which, in turn, establishes
various procedural protections.2
1 Council makes no substantive argument against the district
court’s bottom-line finding that he was “competent to proceed.”
JA 4782. As a result, any such claim is forfeited. See, e.g.,
Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir.
2017)
2 Council notes the Due Process Clause independently
“require [s] procedural protections to ensure that questions of a
defendant’s competency are adequately investigated and reliably
adjudicated by the district court.” Council Br. 44. Because
Council “develops no separate argument on that point,” Tucker,
60 F.ah at 889 n.2, however, we do not consider whether the
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The district court fulfilled its obligations under
Sections 4241 and 4247. The court raised the issue of
competency on its own initiative several times,
including before and during a pretrial conference held
roughly a year and a half before trial. At that time,
defense counsel vigorously opposed any court-ordered
examination of Council’s competency as “unwarranted
and potentially prejudicial” because it could place
information in the government’s hands that could
increase the risk of a death sentence. JA 196. Seeking
to avoid such an examination, one of Council’s
attorneys declared under penalty of perjury that
Council “ha[d] been appropriately cooperative with
counsel” and “has present ability to consult with
counsel to a reasonable degree of rational
understanding, and has a rational and factual
understanding of the proceedings against him.” JA
215. “To make doubly sure” Council was “competent,”
the declaration further advised that defense counsel
“had a board certified forensic psychologist... conduct
a competency evaluation.” Id. Crediting that
declaration, and given the government’s lack of any
contrary argument, the district court found it did “not
have reasonable cause under 18 U.S.C. § 4241(a) to
doubt [Council]’s mental competency.” JA 219.
Fast forward a year and some months. After the
government rested its guilt-phase case and the
district court advised Council of his right to testify,
Council’s attorneys requested a recess because
Council had unexpectedly told them he wanted to take
the stand. The court adjourned proceedings for the
Constitution sometimes requires more than the statute. See
Grayson 0, 856 F.3d at 316.
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day, and, that evening, defense counsel moved for a
competency evaluation and a continuance. The motion
asserted Council was “presently suffering from a
mental disease or defect rendering him unable to
assist properly and rationally in his defense,” JA
2176, and noted that under Section 4241(a), a
competency “hearing is mandatory” whenever there is
reasonable cause to doubt a defendant’s competency.
JA 2177. The motion did not ask the district court to
exercise its power under Section 4241(b) to order a
psychiatric or psychological evaluation, much less
argue the court had to do so. Instead, the motion
stated Council’s attorneys had already “contacted an
expert” who had agreed “to conduct” a competency
examination the next day and asked for a continuance
“so that the expert would be able to conduct the
evaluation and provide vital information regarding
Mr. Council’s ability to proceed.” JA 2181-82.
The next day was a Friday, and the jury did not hear
any testimony that day. Instead, the district court
held three relevant hearings: one with all parties
present; a second ex parte hearing attended only by
Council and his attorneys; and a third again attended
by all parties. During the initial hearing, defense
counsel reiterated their request for time to have
Council evaluated by the doctor referenced in their
motion and suggested that, apart from that
evaluation, no “further testing [was] needed” at that
point. JA 4748.
After government counsel was excused, Council’s
attorneys recounted statements and interactions with
their client they believed suggested a “possible] . . .
break with reality.” JA 4771. Defense counsel also
reiterated their request for time to permit Council to
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be evaluated by their chosen expert, once again
making no suggestion the district court should or
must exercise its power to order its own evaluation.
The district court sought to directly engage Council,
who was seated, unresponsive to the court’s questions,
and crying.
After permitting the government’s attorneys to
return, the district court made a “finding] that there’s
reasonable cause to order an examination” of
Council’s competency. JA 4754. The parties and the
court discussed various medical professionals who
might conduct the competency evaluation, without
clear resolution. Without objection from either party,
the court dismissed the jury until the following
Monday afternoon and instructed both sides to “let me
know when you talk to whoever you talk to” about
performing an evaluation. JA 4765.
That same day, Council’s attorneys sent two emails
to the court and government counsel. The first
identified two medical professionals who would be
seeing Council, one that same day (Friday) and the
other on Sunday. The second email objected to having
Council examined by a doctor suggested by the
government and the court during that day’s hearing.
As required by 18 U.S.C. § 4241(a), the district court
“convene [d] a competency hearing” the following
Monday. JA 4781. During the hearing, defense
counsel advised that Council had been “seen by a
forensic psychologist and forensic psychiatrist,” both
of whom “opined to a reasonable degree of medical
certainty that Mr. Council is competent to proceed.”
JA 4781. Defense counsel also provided “statements
by those two individuals along with their CVs,” and
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said: “We now no longer believe that Mr. Council is
incompetent, to the contrary, we believe that he is
competent to proceed in this case.” Id. The district
court asked to hear from the government, which
advised it did not have any additional information to
offer. “Based on what’s been presented,” the district
court found Council “competent to proceed.” JA 4782.
Nothing about the district court’s handling of this
delicate matter reflects a legal error or an abuse of
discretion. At times, Council's argument appears to be
that once a district court finds reasonable cause to
doubt a defendant’s competency, the court must
always order an examination by a court-appointed
expert and insist the expert file a report satisfying the
standards of 18 U.S.C. § 4247(c). That argument
cannot be squared with the text of Section 4241(b),
which—in distinct contrast to other provisions of the
Insanity Defense Reform Act—conspicuously uses
“may” rather than “shall.” Compare 18 U.S.C.
§ 4241(b) with § 4241(a), (c), (d), (e), (f), and § 4247(b),
(c), (d), (e). Because “the word ‘may’ clearly connotes
discretion,” Biden v. Texas, 142 S. Ct. 2528, 2541
(2022) (quotation marks omitted), we see no warrant
for imposing any sort of categorical requirement.3
To be sure, Section 4241(b) would have authorized
the district court to designate other experts to
examine Council or order the filing of a formal report
had it decided to do so. But the court was tasked with
the difficult job of balancing multiple aspects of the
Constitution’s fair trial guarantee, which includes not
3 When asked at oral argument, Council was also unable to cite
a decision imposing such a requirement. See Oral Arg. 5:17-6:34.
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only the right to be tried only if competent but also the
rights to have the effective assistance of counsel and
to refuse to provide information that could
compromise one’s own defense. See, e.g., Strickland v.
Washington, 466 U.S. 668, 684-85 (1984) (“The
Constitution guarantees a fair trial through the Due
Process Clauses, but it defines the basic elements of a
fair trial largely through the several provisions of the
Sixth Amendment, including the Counsel Clause.”).
Even if we accept Council’s current premise—that
obtaining an independent examination that results in
the filing of a detailed report is generally preferable to
relying on a private evaluation by defense-chosen
experts—we cannot say the district court exceeded its
discretion in proceeding as it did here. See Banks, 482
F.3d at 742-43 (emphasizing district courts are “in a
superior position” to evaluate “procedural competency
claim[s]” (quotation marks omitted)).
We likewise hold the district court did not exceed its
discretion while conducting the competency hearing.
At that hearing, Council was “represented by
counsel,” as required by 18 U.S.C. § 4247(d). Council
was also afforded the other procedural rights
guaranteed by Section 4247(d), including “an
opportunity to testify, to present evidence, to
subpoena witnesses on his behalf, and to confront and
cross-examine witnesses who appear at the hearing.”
Id. Indeed, Council does not contest that fact.
Instead, Council insists the district court erred in
not requiring additional information so it could make
its own “independent [and] informed determination”
of Council’s competency. Council Br. 85-86. But
Council identifies no statutory text supporting that
argument, and the primary authority Council cites—
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Pate v. Robinson, 383 U.S. 375 (1966)—imposes no
such requirement. The Supreme Court’s holding in
Pate was about whether a defendant is entitled to a
competency hearing, not the nature and
characteristics of such a hearing. See id. at 377 (“We
have concluded that Robinson was constitutionally
entitled to a hearing on the issue of his competence to
stand trial.”). In addition, the circumstances of Pate
differ from those here in several respects. In Pate,
defense counsel insisted “throughout the proceedings”
that the defendant’s “present sanity was very much in
issue” and offered four witnesses who “expressed the
opinion that [the defendant] was insane.” Id. at 383384. That is a far cry from the situation the district
court confronted here—one where there was a
competency hearing at which defense counsel insisted
their client was “competent to proceed.” JA 4781.
B.
Council’s second argument is the district court
should have granted his July 2019 motion for a 90-day
continuance so his defense team could further
investigate mitigation evidence. To prevail on that
challenge, Council must “show, first, that the district
court abused its discretion in denying the continuance
motion, and second, that the ruling specifically
prejudiced” his defense. United States v. Hedgepeth,
418 F.3d 411, 423 (4th Cir. 2005) (quotation marks
omitted). Here, we need not reach the prejudice issue
because we hold the district court did not abuse its
“broad discretion.” Morris v. Slappy, 461 U.S. 1, 11
(1983).
In reviewing the record, we remain mindful of the
mammoth task facing capital defense attorneys.
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Because “execution is the most irremediable and
unfathomable of penalties,” the Supreme Court “has
demanded that factfinding procedures aspire to a
heightened standard of reliability” in capital cases.
Ford v. Wainwright, 477 U.S. 399, 411 (1986). In
particular, the Court has stressed that penalty-phase
investigations “should comprise efforts to discover all
reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may
be introduced by the prosecutor.” Wiggins v. Smith,
539 U.S. 510, 524 (2003) (quotation marks omitted).
As relevant here, these investigative efforts extend to
evidence about a defendant’s time at a juvenile
detention facility. See Andrus v. Texas, 140 S. Ct.
1875, 1877-78 (2020) (per curiam).
But the question before us is not what we might
have done had we been sitting as the court of first
instance. As the Supreme Court has long recognized,
“[t]rial judges necessarily require a great deal of
latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers,
and jurors at the same place at the same time, and
this burden counsels against continuances except for
compelling reasons.” Morris, 461 U.S. at 11. For that
reason, “[t]he denial of a continuance” violates a
defendant’s rights “only when there has been an
unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for
delay.” Hedgepeth, 418 F.3d at 423 (quotation marks
omitted). Applying that deferential standard here, we
cannot say the district court abused its discretion in
denying Council’s July 2019 motion.
Before the challenged denial, Council sought, and
received, four continuances of the trial date. The first
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three requests came via joint motions while the
government decided whether to pursue the death
penalty. Council made his fourth request for a
continuance in October 2018—more than six months
after the government noticed its intent to seek the
death penalty and just over three months before the
then-scheduled trial date. In that motion, Council
sought a nine-month delay, while the government
opposed any delay longer than three months. The
district court granted an eight-month continuance
“out of an abundance of caution,” JA 1051, and
continued the trial until September 2019.
On July 11, 2019— about two months before trial
was scheduled to start—Council sought another
three-month continuance, which is the request at
issue here. In that motion, Council acknowledged
“that 2000 summonses” had already “been sent to
potential jurors, most of whom ha[d] completed and
returned standard juror questionnaires.” JA 1432.
The motion argued, however, that defense counsel had
“encountered unusual obstacles in completing” their
mitigation investigation, including an inability to
locate and question several potential penalty-phase
witnesses despite having issued more than 100
subpoenas. JA 1431.
After a hearing, the district court denied the motion
for a fifth continuance. The court began by stating
Council had “not shown that a further delay is
necessary for a just determination of the case” and
that “the defense has had . . . sufficient time to . . .
prepare a defense and still has time over a couple of
months certainly.” JA 1913. The court noted it had
granted “what I believe to be a generous continuance
previously,” emphasizing “the jury summons have
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already gone out” and “[s]everal hundred people will
be coming in in a little over a month to complete the
supplemental case questionnaires.” JA 1914. The
court also observed that “[m]any people, witnesses,
jurors, . . . victims’ families, [and] this Court ha[ve]
made plans regarding the schedule of this case” and it
“note[d] the government’s arguments that the victims
have rights as well.” Id. Finally, the court emphasized
it was “very satisfied that these defense lawyers have
been fulfilling their duties of preparation and
investigation” and that it had “appointed Mr. Council
four lawyers, not two” and ensured “they have
adequate resources, substantial resources available to
them.” JA 1914-15; see 18 U.S.C. § 3005 (requiring a
district court to appoint two lawyers to represent a
capital defendant).
Council's lead argument on this point is that the
district court inappropriately “prioritiz[ed]” the
victims’ families’ “desire for the swiftest trial” over his
own “right to prepare a defense.” Council Br. 90. We
respectfully disagree. Although the district court
referenced the victims and their families at two points
during its explanation, the court began its remarks by
emphasizing its conclusion that Council had failed to
show “that a further delay is necessary for a just
determination of the case.” JA 1913; see JA 1914-15.
Viewing the district court’s remarks as a whole, we
see no indication it shortchanged Council’s legitimate
interests or placed undue emphasis on any one factor.
Nor do any of Council’s other arguments establish
the district court abused its discretion. That this case
went to trial faster than most other federal death
penalty cases does not show the district court
exceeded its “broad discretion” in denying this
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particular motion. Morris, 461 U.S. at 11. And
Council’s arguments about his need for more time,
and the preferability of alternatives to denying his
motion outright, ask us to second-guess the district
court’s case-specific judgments in “areas where the
district court’s comparative expertise is at its zenith
and ours its nadir.” Tucker, 60 F.4th at 888. We thus
hold the district court made no reversible error in
denying Council’s fifth continuance motion.
C.
Council's third guilt-phase challenge involves the
district court’s procedures for questioning potential
jurors about racial bias. Council asserts the court
should have asked— or allowed him to ask—more
precise questions about prospective jurors’ racial
attitudes instead of “generic” questions about whether
they could “self-identify as racially unfair.” Council
Br. 118 (quotation marks omitted). Here too, we
perceive no reversible error.
The Sixth Amendment guarantees the right to trial
“by an impartial jury.” U.S. Const, amend. VI.
“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.” Turner v. Murray, 476 U.S. 28, 35 (1986)
(plurality opinion). For that reason, “a capital
defendant accused of an interracial crime is entitled
to have prospective jurors informed of the race of the
victim and questioned on the issue of racial bias.” Id.
at 36-37.
At the same time, “the trial judge retains discretion
as to the form and number of questions on the subject”
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of racial bias. Turner, 476 U.S at 37. In addition, “the
adequacy of voir dire is not easily subject to appellate
review” because we cannot “easily second- guess the
conclusions of the decision-maker who heard and
observed the witnesses.” Rosales-Lopez v. United
States, 451 U.S. 182, 188 (1981) (plurality opinion).
For that reason—as Council acknowledges—we
review the district court’s handling of this issue for
abuse of discretion. See United States v. Tsarnaev, 142
S. Ct. 1024, 1034 (2022) (“A court of appeals reviews
the district court’s questioning of prospective jurors
only for abuse of discretion.”).
The district court followed a three-part process for
gathering information about prospective jurors. All
prospective jurors filled out the court’s standard
questionnaire, which was mailed with the summons.
Prospective jurors then completed “a supplemental in
court questionnaire specific to this case.” Council Br.
116. Finally, the court conducted multiple days of
individualized voir dire, during which both the court
and the parties asked questions.
Although the district court’s standard questionnaire
did not ask about racial attitudes, the issue was
addressed in the supplemental questionnaire and
with some individual jurors during voir dire. The
supplemental questionnaire contained six questions
under the heading “Racial Attitudes.” JA 2100
(formatting omitted). The questions were:
•
Have you, or any member of your immediate
family ever been a member of a private club,
professional, fraternal or social organization
that limits or restricts membership on the basis
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of race, ethnic origin or religion? If you
answered “Yes,” please explain.
•
Do you ever socialize with people of different
races, or belong or participate in any clubs,
groups or organizations with members from
diverse racial backgrounds? If you answered
‘Yes,” please explain.
•
Is there any racial group you feel
uncomfortable being around? If you answered
‘Yes,” please explain.
•
Have you, or a member of your family or
household, or close friend ever had a conflict,
physical confrontation or any type of very bad
experience involving a person of a different
race? If you answered ‘Yes,” please explain.
•
Can you be fair and impartial in a case
involving an African-American defendant and a
Caucasian victim(s)? If you answered “No,”
please explain.
•
The Defendant, Brandon Council, is AfricanAmerican. The victims, Donna Major and
Kathryn “Katie” Skeen, are white/Caucasian.
Will these facts prejudice you against the
Defendant, Brandon Council, or affect your
ability to render a fair and impartial verdict?
JA 2100-01. Each of these questions was the same as,
or similar to, one proposed by Council or the
government. The supplemental questionnaire
concluded by asking whether “there [are] any
particular questions contained in this questionnaire,
or any other issues that you want to bring to the
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attention and discuss privately with the Court or
attorneys!.]” JA 2111.
Council’s primary argument is that the district court
should also have asked some variation of six other
questions he proposed including in the supplemental
questionnaire.
As Council puts it, those questions “would have
inquired, in complementary ways, whether jurors
believed that Black people . . . are more prone to
violence” than non-Black people. Council Reply Br. 39;
see id. at 39 n.27. The rejected questions on which
Council now focuses are:
•
Do you believe certain racial groups are more
predisposed to commit crimes of violence than
others? Please explain your answer.
•
Do you believe Blacks are more predisposed to
commit violence than Whites are? If you
answered “Yes,” please explain.
•
Do you think that people who record, produce,
write or are otherwise involved in “rap” or “hip
hop” music are prone to violence or criminal
activities?
•
Do you believe that regularly listening to “rap”
and “hip hop” music or watching videos and
movies about the music industry or the drug
culture can lead people to commit crimes of
violence?
•
Do you believe certain types of male dress and
hair style, such as wearing low hung pants or
“dreadlocks,” are indicators of a criminal
lifestyle?
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•
In this case, the defendant is an African
American man and the victims were both White
women. Do you feel that this fact would in any
way, even slightly, affect how you would view
this case or the actions of the defendant?
Council Br. 116-17 (citing JA 1352, 1360-61, 1371).
There is force to Council's argument that—in a case
involving “a dark-skinned dreadlocked Black man
with an affinity for flashy cars and movies about rapmusic gangsters, who had killed two church-going
White women”—it would have been wise to ask
prospective jurors if they believe Black people are
prone to violence. Council Reply Br. 45. After all, “a
juror who believes” Black people “are violence prone
. .. might well be influenced by that belief in deciding
whether [the defendant’s] crime involved the
aggravating factors specified” by the government.
Turner, 476 U.S. at 35 (plurality opinion).
But the question before us is not whether we would
have asked one or more of Council’s proposed
questions had we been sitting as the trial judge.
Rather, it is whether the district court abused its
discretion in concluding the steps it took were
appropriate to guard Council’s Sixth Amendment
right to an impartial jury.
We hold the district court did not abuse its
discretion. The court’s supplemental questionnaire
posed six questions that were directly about race, and
the Supreme Court has emphasized that even when a
defendant is constitutionally entitled to have
prospective jurors “questioned on the issue of racial
bias,” “the trial judge retains discretion as to the form
21a
and number of questions on the subject.” Turner, 476
U.S. at 37. Indeed, as Council acknowledges, one of
the questions the district court asked here is almost
identical to the one the defendant requested in
Turner. Compare Turner, 476 U.S. at 30-31, with JA
2101.
True, some of Council’s proposed questions were
more tailored to this case than the ones posed by the
district court. Although these questions might have
better homed in on a potential juror’s biases, it is also
possible these “more pointed questions could well
[have] exacerbate[d] whatever prejudice might exist
without substantially aiding in exposing it.” PenaRodriguez v. Colorado, 580 U.S. 206, 224-25 (2017).
Given that balancing these concerns is a
fundamentally fact and context-specific task, trial
courts possess “broad discretion” and “great latitude
in deciding what questions should be asked on voir
dire.” Tsarnaev, 142 S. Ct. at 1034 (first quote);
Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) (second
quote).
We also must consider the district court’s jury
selection process in its entirety rather than artificially
limiting ourselves to the supplemental questionnaire.
See Tsarnaev, 142 S. Ct. at 1035. Although it did not
have to do so, see Fed. R. Crim. P. 24(a), the district
court allowed defense counsel to question prospective
jurors, thus giving Council a chance to explore
matters he believed were not adequately captured by
the supplemental questionnaire or the court’s
questions. See Tsarnaev, 142 S. Ct. at 1035 (“[B]oth
parties had the opportunity to ask additional
questions and probe for bias.”). Despite this
opportunity, Council’s attorneys asked only one
22a
prospective juror about racial attitudes during their
allotted time. By contrast, after reviewing the
answers on their supplemental questionnaires, the
court subjected nine prospective jurors to follow-up
questions about their attitudes towards persons of
other races.
Council offers several explanations for his attorneys’
failure to ask potential jurors more questions about
race, but none carries the day. For example, Council
asserts the district court “announced] that voir dire
would be confined to death-penalty inquiries and
follow-ups to questionnaire answers” rather than
matters the court had refused to include in the
supplemental questionnaire. Council Br. 120 (citing
JA 2680-81). The cited transcript pages do not support
that assertion. Instead, the court said its own oral
questioning would be confined to such matters, while
clarifying that “[t]he lawyers certainly are free to
spend their limited time asking some of their
[proposed] questions if they’re appropriate.” JA 2681.
Council insists the district court would not have
permitted him to ask the questions he now asserts
should have been included in the supplemental
questionnaire, noting the court previewed that “some
of’ the parties’ proposed questions had been “not
appropriate.” JA 2681; see Council Reply Br. 50. But
Council had proposed 25 questions about racial
attitudes for inclusion in the supplemental
questionnaire and a set of 27 questions (some
involving race, some not) for the district court to ask
during the court-conducted voir dire. We thus have no
way of knowing which questions the district court
would have considered inappropriate for Council’s
attorneys to ask during voir dire. And we will not
23a
reverse a district court’s judgment based on
assumptions about how the court would have ruled
had a party attempted to ask a question it never tried
to ask.
Finally, Council asserts that asking more probing
questions about racial attitudes during his own voir
dire time “would not have been a realistic alternative”
both because of the time limits and because “[t]he
sensitive nature of the questions about racial
attitudes required that they be posed by the court, not
by the defense.” Council Reply Br. 50. That does not
adequately explain, however, why Council’s attorneys
used almost none of their own time to pose questions
about race.
The process of selecting an impartial jury is delicate
and involves complex tradeoffs. Council forcefully
argues the district court should have proceeded
differently here. But the record shows the district
court was not blind to the risk of the “familiar and
recurring evil” of racial bias, Peha-Rodriguez, 580
U.S. at 224, and we cannot say the means it chose to
address that risk exceeded the bounds of its
discretion.
D.
Council’s final guilt-phase argument is that the
government violated the rule of Batson v. Kentucky,
476 U.S. 79 (1986), by using peremptory strikes to
remove Black potential jurors. We cannot assess
whether Council could have mounted a winning
Batson challenge—a finding that would have brought
an “automatic reversal” of his convictions and
sentences, 'Weaver v. Massachusetts, 582 U.S. 286, 301
24a
(2017)—because we conclude his trial counsel
affirmatively waived any such claim.
After completing the voir dire process, the district
court held a hearing during which each side was
allotted 22 peremptory strikes (20 for the main jury
and two for the alternates). When each side finished
using its strikes, the court asked: “Any objection
regarding the method of the selection of the jury?” JA
4076-77. Both sides said no. The court called forward
16 people, told them they had “been selected as
jurors,” gave a set of preliminary instructions, and
said a member of the court’s staff would assist the
jurors “with regard to hotel accommodations and
arrangements like that.” JA 4077, 4079.
The court then asked if there was “[ajnything from
the lawyers before I allow them to be taken back in
there.” JA 4079. At that point, defense counsel asked
for “a couple of minutes,” which the court granted. Id.
After a pause, defense counsel said, “I need to
approach, Your Honor,” and the court responded:
“Okay. Any objection to me taking these people in
there?” Id. Both sides said no, and the jurors who had
just been selected left the room, leaving the potential
jurors who had not been selected in the courtroom.
The court directed the lawyers to approach the
bench. Because the following exchange is critical to
our holding, we quote it in full:
THE COURT: What’s the problem?
[DEFENSE] ATTORNEY NETTLES: I would ask
the rest of the panel not be—
THE COURT: I’m just going to let them go.
25a
ATTORNEY NETTLES: Well, we would like to
analyze the strikes for any issues in regard to the
exercise of peremptory strikes if the Court would give
us a little bit of time to do that, I would ask that you
not release the jury at this time.
THE COURT: Well, I asked if there were any
objections.
ATTORNEY NETTLES: I was talking about the
procedure—I thought you were talking about the
method, 1 through 20 and the alternate. I didn’t think
you were talking about Batson issues or anything like
that.
THE COURT: Yes, yes. Well, I need to bring them
back out then, you’re telling me—
ATTORNEY NETTLES: I’m just telling you we need
to go look at it. I thought you were going to bring them
out and do that, but not swear them. I didn’t know it
had anything to do—I just thought it had to do with
the exercise of peremptories in that fashion, that was
all I thought it was.
THE COURT: Okay. Well, that’s not the way I’ve
always done it.
ATTORNEY NETTLES: I haven’t even had a chance
to look at it yet.
THE COURT: Okay. Well, we need to bring them
back out then. Bring them back out.
(Brief pause.)
THE COURT: Let me ask you something. Lawyers,
come here just a second. So what you’re telling me is
26a
that you want time to review any potential Batson
issues.
ATTORNEY NETTLES: That’s all. That’s all we’re
doing.
THE COURT: I understand that, but you should
have told me before I— because this is the procedure
I’ve always followed. And when I ask the question, you
know, any objection regarding the method of selection
of a jury, that’s when the lawyers alert me to any
Batson issues they want to raise.
ATTORNEY NETTLES: I’m sorry, I did not—
THE COURT: That’s the way I’ve always done it.
Now, you all want me to ask these people to take a
seat back out there.
ATTORNEY NETTLES: I don’t think you need to do
that.
[DEFENSE] ATTORNEY BRYANT: I don’t think
you need to do that, Judge. All we need is just a couple
of minutes just to review and then we can report right
back to you, Your Honor.
THE COURT: Okay. All right.
ATTORNEY BRYANT: That’s all we’re asking for.
THE COURT: Okay.
ATTORNEY NETTLES: Thank you.
(Sidebar discussion ended.)
(Brief pause.)
27a
ATTORNEY BRYANT: May we approach, Your
Honor?
THE COURT: Yes.
(Sidebar as follows:)
ATTORNEY NETTLES: We are fine. We have no
objection to the selection process.
THE COURT: Okay. Very good. Thank you. Yes, sir.
ATTORNEY BRYANT: Thank you.
(Sidebar discussion ended.)
THE COURT: All right. Let me ask the lawyers to
come here just a second.
(Sidebar as follows:)
THE COURT: Any objection to me going ahead and
thanking these people for being a part of the process
and letting them go?
[GOVERNMENT] ATTORNEY SHOEMAKE: None
from the government.
ATTORNEY NETTLES: No, sir.
JA 4080-83. The court then dismissed the potential
jurors who had not been selected, and counsel and the
court began discussing various matters of trial
logistics.
As this exchange shows, Council’s trial attorneys did
not merely forfeit a Batson claim—they waived it. See
United States v. Olano, 507 U.S. 725, 733 (1993)
(explaining the difference between forfeiture and
waiver). “A party who identifies an issue, and then
28a
explicitly withdraws it, has waived the issue.” United
States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(quotation marks omitted). That is exactly what
happened here. Defense counsel specifically identified
“potential Batson issues,” JA 4081, before
withdrawing the issue by telling the court: “We are
fine. We have no objection to the selection process.” JA
4081-82. Having scrutinized the transcript, we can
“say with confidence” that defense counsel “meant to
relinquish” any Batson challenge. United States v.
Boyd, 5 F.4th 550, 555 (4th Cir. 2021).4
Council argues we should overlook the waiver and
“treat [the issue] as preserved” because the district
court “deprived [him] of a fair and meaningful
opportunity to harness and present the evidence
needed to litigate the Batson claim.” Council Br. 149.
In particular, Council asserts the district court
“indicated the defense would have [had] to litigate any
Batson claim on the spot, and in front of the entire
venire.” Id. at 134.
To be sure, the record shows the district court was
caught off" guard when defense counsel raised
“potential Batson issues,” JA 4081, after previously
advising they had no “objection[s] regarding the
method of the selection of the jury,” JA 4076-77. But
4 The waiver here was made by Council’s attorneys rather than
Council himself. But Council does not argue Batson issues fall
within the rare category of rights that only defendants
themselves can waive, and this Court has enforced other waivers
of trial rights made by defense attorneys. See, e.g., United States
v. Ivey, 60 F.4th 99, 115-16 (4th Cir. 2023). We thus do not
consider the merits of Council’s Batson claim at this point. See
note 5, infra.
29a
even at that point, defense counsel requested “just a
couple of minutes just to review” the matter and never
requested a formal recess. JA 4082. After the district
court granted that request— which, defense counsel
advised, was “all we’re asking for”—it was defense
counsel who cut short the break after what the trial
transcript describes as a “[b]rief pause.” Id. Far from
lacking “an opportunity to object,” Fed. R. Crim. P.
51(b), the record shows Council’s trial attorneys made
a decision—albeit a quick one—to forgo a Batson
challenge.
The consequences of this waiver are serious.
“[W]hen a claim is waived, it is not reviewable on
appeal, even for plain error.” Robinson, 744 F.3d at
298; accord Allen v. Lee, 366 F.3d 319, 328 (4th Cir.
2004) (en banc) (stating a defendant who “expressly
relinquished his right to a remedy at trial by, in effect,
consenting to be tried by the jury as constituted”
cannot later “rescind that consent”). For that reason,
we cannot consider—and express no opinion about—
Council’s current arguments that “the government
used its peremptory strikes quite disproportionately
against Black veniremembers” or that “[t]he record
reveals no plausible race-neutral reason for most of
those strikes that did not apply equally to White
venirepersons the government left on the jury.”
Council Br. 133-34; see id. at 140-48. Nor has Council
identified any authority for remanding to the district
court for additional proceedings while the case is still
on direct appeal. We have no warrant to disturb a
30a
district court’s judgment based on a claim abandoned
at trial.5
III.
Council also makes various challenges related to the
penalty phase of his trial. He argues the death penalty
is unconstitutional. But the Supreme Court has said
“[t]he Constitution allows capital punishment,”
Bucklew v. Precythe, 139 S. Ct. 1112,1122 (2019), and
we have no authority to say otherwise. Nor does
Council identify any other basis for disturbing his
sentence.
A.
The Federal Death Penalty Act prescribes a threestep process for deciding whether to recommend a
sentence of death. First, a capital jury must find one
of what the special verdict form here described as
“threshold intent factors” listed in 18 U.S.C.
§ 3591(a)(2). JA 2306. Second, the jury must find at
least one of what the special verdict form called
“statutory” or “non-statutory” aggravating factors. JA
2307-08; see 18 U.S.C. § 3593(e)(2). Third and finally,
the jury must “consider whether all the [statutory or
non-statutory] aggravating factor or factors found to
exist sufficiently outweigh all the mitigating factor or
5 Council does not ask us to reverse the district court’s
judgment on a theory that his trial attorneys’ waiver of a Batson
claim was ineffective assistance of counsel. At any rate, “a
defendant may raise an ineffective assistance claim for the first
time on direct appeal (Continued) only where the ineffectiveness
conclusively appears from the record,” United States v.
Ojedokun, 16 F.4th 1091, 1115 (4th Cir. 2021) (quotation marks
omitted), and Council does not contend that standard is satisfied
here.
31a
factors found to exist to justify a sentence of death.”
§ 3593(e).
Council makes no arguments challenging the
process at step one. At step two, the jury unanimously
found six aggravating factors: two statutory and four
non-statutory. Council offers two sets of arguments
for why these findings were erroneous. For one thing,
Council contends two of the factors were inherently
contradictory, and unsupported by the evidence. For
another, Council asserts the jury was allowed “to
triple-count the supposedly ‘unnecessary’ nature of
the murders” and that this multiple counting violated
his rights under the Fifth and Eighth Amendments.
Council Br. 161. These errors, Council concludes,
erroneously inflated the number of aggravating
factors at issue, and thus prejudiced him at step three.
We review challenges to the validity of an
aggravating factor de novo. United States v. Higgs,
353 F.3d 281, 315, 320 (4th Cir. 2003). As always, we
review a jury verdict for sufficiency of the evidence by
asking “if there is substantial evidence, taking the
view most favorable to the Government, to support it.”
Glasser v. United States, 315 U.S. 60, 80 (1942); see
18 U.S.C. § 3595(c)(2)(B) (instructing us to decide
whether “the admissible evidence and information
adduced” “support [s] the special finding of the
existence of [an] . . . aggravating factor”).6
6 The government contends some of Council’s arguments are
properly reviewed only for plain error because they were never
presented to the district court. See U.S. Br. 104-05. Because we
conclude these arguments fail either way, we do not resolve the
preservation issue.
32a
1.
Council’s “inherent conflict” and insufficiency of the
evidence arguments focus on one statutory factor and
one non-statutory factor. The statutory factor—
captioned “Pecuniary Gain” on the special verdict
form, JA 2307, 2321—asked whether:
The defendant committed the offense as
consideration for the receipt, or in the
expectation of the receipt, of anything of
pecuniary value.
18 U.S.C. § 3592(c)(8). The non-statutory aggravating
factor was captioned “Targeting Innocent Victims.” JA
2308, 2322. It asked whether:
[T]he defendant displayed particular cruelty
and callous disregard for human life by
shooting both victims, who were unknown to
him, multiple times at close range without
warning and without provocation or resistance
from the victims, in spite of the fact that such
violence was not necessary to successfully
complete the robbery of the CresCom bank[.]
JA 2308, 2322. (Because the latter factor focuses on
Council’s conduct rather than the character of his
victims, it seems “gratuitous killing” may have been a
more accurate shorthand. Council and the
government both use “innocent victims,” however, so
we do the same.)
We conclude there is no inherent conflict between
these factors and the evidence was sufficient to
support the jury’s finding on each of them. For the
sake of argument, we assume Council is right that the
33a
jury could only find the pecuniary gain factor satisfied
“if Council’s ‘motivation for the murders’—not just for
the robbery—was to enable him to steal money from
the bank.” Council Br. 162; accord United States v.
Barnette, 390 F.3d 775, 805-07 (4th Cir. 2004) (doing
the same), cert, granted and judgment vacated on
other grounds, 546 U.S. 803 (2005). But there is no
inconsistency between saying Council killed his
victims “in the expectation” it would help him
complete the robbery, 18 U.S.C. § 3592(c)(8)
(emphasis added), while also saying “such violence”
was “not necessary” to complete the robbery and that
it “displayed particular cruelty and callous disregard
for human life.” JA 2308, 2322 (emphasis added).
The evidence here adequately supported both
findings. During a recorded interview with FBI
agents, Council said he killed his victims to prevent
them from “pushing that button or whatever they do
to alert the authorities” “[b]ecause that’s the only way
I knew that I could get away” from the bank without
being apprehended or killed. JA 374, 377. A jury could
reasonably conclude that, in so stating, Council
admitted killing his victims to facilitate a robbery
committed for pecuniary gain. See JA 6004
(government lawyer noting Council “said that he was
worried they might hit the alarm so he killed them”).
At the same time, the jury could also have reasonably
found that—under all the circumstances—it was
unnecessary for Council to kill his victims to facilitate
an escape and that the way he did so showed a callous
disregard for human life.
The decisions Council relies on do not compel a
different result. In United States v. Barnette, 390 F.3d
775 (4th Cir. 2004), this Court rejected a sufficiency
34a
challenge to the pecuniary gain factor in a carjacking
prosecution where the defendant stated that—even
though he had other options for escape—he killed the
victim because “I just thought he [was] going to stop
me.” Id. at 808. That statement is not meaningfully
different from what Council said here.
The Fifth Circuit’s decision in United States v.
Bernard, 299 F.3d 467 (5th Cir. 2002), provides some
support for Council’s position, but we conclude it is
ultimately distinguishable. To begin, despite
determining it had been error to submit the pecuniary
gain factor to the jury, the Bernard court ultimately
affirmed the defendant’s death sentence after
concluding the error was harmless. See id. at 483-84.
But see Council Br. 171 (asserting that “inflating] the
number of aggravating factors weighting] in favor of
death” is necessarily prejudicial). True, the Bernard
court stated “[t]he motivation for the murders” in that
case “was unrelated to pecuniary gain” because the
defendant “sought to prevent the [victims] from
reporting their crimes to the police” rather than
expecting a “pecuniary gain ... to flow directly from
the homicide.” 299 F.3d at 483-84. But the Fifth
Circuit also emphasized its insufficiency holding was
based on “the facts presented by th[at] case,” id. at
484, which included neither the sort of admission in
the defendant’s “own words” present here, nor the
tight temporal proximity between the taking of
property and the victim’s murder. Finally, to the
extent there is any tension between the Fifth Circuit’s
broad language in Bernard and this Court’s holding in
Barnette, we are required to follow the latter.
35a
2.
We also are unpersuaded by Council’s “triple
counting” claim. Council’s argument on this point
focuses on three factors. The first is the innocent
victims factor discussed earlier. The second is a
statutory aggravating factor the parties and special
verdict form call “multiple killings.” It asked whether
“the defendant intentionally killed . . . more than one
person in a single criminal episode.” 18 U.S.C.
§ 3592(c)(16). The third is a non-statutory
aggravating factor the parties describe as “escalating
violence.” As put to the jury, that factor asked whether
Council “engaged in a continuing and escalating
pattern of criminal activity . . . culminating with the
armed robbery of the CresCom bank.” JA 2308, 2322.
Council asserts these three factors “invited jurors to
redundantly count [his] purported awareness that the
murders were ‘unnecessary,’” which violated his
rights under the Fifth and Eighth Amendments.
Council Br. 161.
That argument has several problems. For one thing,
neither the Supreme Court nor this one has ever “held
that aggravating factors could be duplicative so as to
render them constitutionally invalid” or “passed on
the ‘double counting’ theory” Council advances. Jones
v. United States, 527 U.S. 373, 398 (1999). And we
need not address the theory’s validity today because
we conclude the aggravating factors Council identifies
focused on discrete aspects of his wrongful conduct.
The innocent victims factor addressed how Council
killed his victims, and that it was unnecessary to do
so to complete the robbery. The multiple killings
factor recognized two people lost their lives. And the
escalating violence factor involved Council’s conduct
36a
over a longer time, requiring jurors to consider events
leading up to the CresCom robbery (including
previous robberies he committed in which no one had
been killed). We thus conclude there was no triple
counting—impermissible or otherwise.
B.
Council’s next challenge to his sentence involves
victim impact testimony. Council asserts it was error
for the district court to allow the presentation of
evidence to become “lifetime retrospective [s] about
each victim,” which included “detailing their value to
their professional, church, and local communities.”
Council Br. 173. Here too, we see no reversible error.
Before trial, Council filed a motion asserting the
government’s
non-statutory
victim
impact
aggravating factor was “unconstitutionally vague and
overbroad.” JA 494.7 “Alternatively,” Council asked
the district court to require “the government [to]
provide a more definite statement as to the specific
victim impact evidence the government intends to
offer in the event a penalty phase is necessary.” JA
497. The court denied Council’s motion to strike the
victim impact aggravating factor, noting “the
Supreme Court has rejected similar vagueness and
overbreadth challenges.” JA 1061. The court also
denied Council’s request for a more definite
statement, citing this Court’s observation that the
Federal Death Penalty Act and the Constitution
“require that the defendant receive adequate notice of
the aggravating factor, . . . not notice of the specific
7 Council does not renew that claim on appeal.
37a
evidence that will be used to support it.” JA 1062
(quoting Higgs, 353 F.3d at 325).
A month before trial, Council renewed his request
for “an informative outline of testimony and exhibits
in support of the ‘victim impact’ non-statutory
aggravating factor.” JA 1835. At a hearing held a
week later, the government provided “a bit of an
overview of what [it thought] our victim impact case
looks like as it stands,” including the number of
witnesses and the nature of their relationship with
the victims and the number and types of exhibits. JA
2048. When defense counsel requested additional
information, the court responded the government had
“done a very good job giving you an outline, probably
much more than what you’re entitled to.” JA 2054. In
its written order, the district court said it found the
government’s “proposed presentation reasonable” and
granted “the Government’s request to the extent that
the Government abides by the description given at
the” hearing. JA 1982. The court also stated that “the
Government’s proposed witnesses (family members
and friends/coworkers) are proper” sources for victim
impact testimony and emphasized that the
government had acknowledged “the limitations on
victim impact testimony.” JA 1982 n.9.
Although Council continued to raise concerns about
the nature and scope of the anticipated victim impact
testimony before the sentencing phase began, the
defense raised only one objection during the first day
of penalty-phase testimony. That objection was
prompted by government counsel’s statement “I know
this is very difficult for you” at the end of the first
witness’s testimony. JA 4924. After the witness was
excused, defense counsel asked to approach and
38a
raised concerns about the statement. JA 4925.
Government counsel responded, “That’s fine,” and the
district court stated its view that the remark had been
an “honest” mistake. Id. Defense counsel concurred
with the court’s observation, and the court directed
counsel on each side to be mindful going forward. See
id. The government called its second and final witness
of the day, during which the defense raised no
objections.
That same day, Council filed a motion asking the
district court to take three actions. The first was
“order the government to submit an informative
outline of victim impact evidence.” JA 2214. The
second was “order that the government may not
introduce evidence about the impact of the victims’
deaths on the workplace or the community.” Id. And
the third asked the court to “conduct a review of victim
impact evidence proposed in the government’s
informative outline and appropriately limit the
evidence.” Id.
The district court addressed the matter before
resuming testimony the next day. After defense
counsel expressed concern about “jumping up in front
of the jury sounding insensitive and wanting to make
objections,” the court remarked, “you all have had no
hesitation signaling that you all need to come up here
at sidebar and speak to me.” JA 4941. The court
reminded defense counsel that the government had
previously revealed “the witnesses [they were] going
to call,” and stated that “[b]efore we get any further
victim impact testimony I’ll ask [the government] to
meet with the defense! and] say these are the
exhibits.” JA 4942.
39a
Defense counsel also took issue with “the testimony’
and “the things that [the witnesses are] saying,”
prompting the court to say it would give a limiting
instruction. JA 4943. And when defense counsel
lamented the risk of “appear[ing] insensitive” by
objecting to, and thereby interrupting, forthcoming
witnesses’ testimony, the district court responded that
“there was no contemporaneous objection” during the
earlier testimony and “you all can signal and come
here to sidebar at any time.” JA 4944. Once the jurors
reentered the courtroom, the court cautioned:
To the extent there was any testimony
yesterday regarding the effect on the
community as a whole or the banking
community as a whole or CresCom Bank as a
whole as a result of these victims’ deaths, you
should disregard it. You can only consider the
impacts of the victims’ deaths on family, friends
and coworkers.
JA 4949. After that instruction, defense counsel made
no further objections to the victim impact testimony.
There is a significant mismatch between the
arguments Council made before the district court and
the ones he advances now. As laid out above, Council’s
overriding argument before the district court was that
the government should have been required to provide
a more detailed outline of the victim impact testimony
before the testimony was offered. But Council all but
abandons that argument before this Court—perhaps
recognizing it is not supported by either the text of the
Federal Death Penalty Act or this Court’s precedent.
See Higgs, 353 F.3d at 325. Instead, Council focuses
on the substance of the victim impact evidence,
40a
asserting it “transgressed almost every boundary . . .
set by the Supreme Court.” Council Br. 178.
Because Council did not lodge a contemporaneous
objection to most of the testimony with which he now
takes issue, there is an argument this claim should be
reviewed only for plain error. See Fed. R. Crim. P.
52(b). The government does not ask us to apply that
standard, however, so we will assume for the sake of
argument Council’s claim is preserved. At the same
time, we reject Council’s position that de novo review
is appropriate simply because some of the
government’s evidence—or the presentation as a
whole—“implicates constitutional rights.” Council Br.
174. Instead, as this Court has held, a district court’s
decision “to admit certain evidence” involving victim
impact is reviewed only “for abuse of discretion.”
United States v. Runyon, 707 F.3d 475, 499 (4th Cir.
2013).
We hold the district court committed no abuse of
discretion. “The Eighth Amendment . . . permits
capital sentencing juries to consider evidence relating
to [a] victim’s personal characteristics and the
emotional impact of the murder on the victim’s family
in deciding whether an eligible defendant should
receive a death sentence.” Jones, 527 U.S. at 395. The
government may admit “victim impact evidence and
prosecutorial argument on that subject” because it
“may legitimately conclude that evidence ... is
relevant to the jury’s decision as to whether or not the
death penalty should be imposed.” Payne v. Tennessee,
501 U.S. 808, 827 (1991).
Council highlights witness testimony made after the
curative instruction that one of the victims “did a lot
41a
of charities to raise moneys for people in the
community.” JA 4961. Because “juries are presumed
to follow their instructions,” Richardson v. Marsh, 481
U.S. 200, 211 (1987), however, we must assume the
jury understood it could “only consider the impacts of
the victims’ deaths on family, friends and coworkers”
rather than the broader community. JA 4949.
Council also cites the number of victim impact
witnesses and the percentage of the government’s
sentencing case taken up by such witnesses; Council
contrasts these figures to those of other capital cases
to conclude the government’s presentation was
excessive. But Council cites no authority suggesting
the number or percentages here present an
independent constitutional problem. Indeed, this
Court recently affirmed a death sentence in a case
involving “victim-impact testimony from twenty-three
witnesses”—far more than the number presented
here. United States v. Roof, 10 F.4th 314, 366 (4th Cir.
2021).
Council asserts some of the “emotional stories and
exhibits of distant memories did not reflect the
specific, current loss” the Supreme Court
“contemplated” when it held the Constitution
permitted victim impact testimony in Payne v.
Tennessee, 501 U.S. 808 (1991). Council Br. 182. But
Payne did not freeze this area of law in amber, and
this Court has since issued multiple decisions about
the permissible scope of victim impact testimony,
including United States v. Barnette, 390 F.3d 775, 797801 (4th Cir. 2004); United States v. Fulks, 454 F.3d
410, 436 (4th Cir. 2006); United States v. Runyon, 707
F.3d 475, 499-502 (4th Cir. 2013) and United States v.
Roof, 10 F.4th 314, 376-78 (4th Cir. 2021). Having
42a
examined the testimony here against the standards
applied in those decisions, we see no abuse of
discretion in the district court’s handling of this
sensitive issue, particularly given the lack of
objections by the defense.
C.
Council next argues the district court failed to
instruct the jury as required by 18 U.S.C. § 3593(f). As
relevant here, that provision states:
[T]he court, prior to the return of a finding
under subsection (e), shall instruct the jury
that, in considering whether a sentence of
death is justified, it shall not consider the race,
color, religious beliefs, national origin, or sex of
the defendant or of any victim and that the jury
is not to recommend a sentence of death unless
it has concluded that it would recommend a
sentence of death for the crime in question no
matter what the race, color, religious beliefs,
national origin, or sex of the defendant or of any
victim may be.
Id.
We review a “challenged instruction holistically to
determine whether it adequately informed the jury of
the law, without misleading or confusing the jury.”
United States v. Simmons, 11 F.4th 239, 264 (4th Cir.
2021) (quotation marks omitted). “[W]e do not view a
single instruction in isolation; rather we consider
whether taken as a whole and in the context of the
entire charge, the instructions accurately and fairly
state the controlling law.” United States v. Passaro,
43a
577 F.3d 207, 221 (4th Cir. 2009) (quotation marks
omitted).
The district court instructed the jury as required by
Section 3593(f).8 The court mentioned the jury’s
obligations under that provision in: (1) its oral
instructions on the opening day of the penalty phase;
(2) its final oral instructions, when discussing the
process of weighing any aggravating and mitigating
factors; (3) its final oral instructions, when discussing
a certification the jury would have to make on the
special verdict form; (4) its final written instructions,
when discussing the certification; and (5) on the
special verdict form itself.
Council asserts Section 3593(f) imposes two
requirements: telling the jury it may “not consider”
race or any other prohibited characteristic and saying
it may not recommend a death sentence unless the
jurors conclude they would do so “no matter what” the
specific characteristics “of the defendant or any victim
may be.” 18 U.S.C. § 3593(f). Even assuming these
requirements are as distinct as Council contends—but
see United States v. Lawrence, 735 F.3d 385, 403 (6th
Cir. 2013)—the district court touched on both in its
initial oral instructions, its final written instructions,
and on the special verdict form itself. For that reason,
the district court committed no abuse of discretion in
concluding its instructions “taken as a whole and in
the context of the entire charge . . . accurately and
8 The government asserts Council did not preserve an objection
to the district court’s instructions (rather than an argument the
court erred by not also giving his proposed instruction). Because
we conclude the district court committed no reversible error in
any event, we need not resolve that question.
44a
fairly state[d] the controlling law.” Passaro, 577 F.3d
at 221.
Still, Council argues the district court erred in
failing to give one of his proposed instructions. That
lengthy instruction would have quoted the statutory
language, characterized Congress’s reasons for
enacting Section 3593(f), and described and quoted
the certification the jurors would have to make on the
special verdict form. It also would have instructed the
jurors to engage in a “race-switching” exercise,
Council Br. 206, directing the jurors—when
considering “the evidence and testimony of various
witnesses and parties”—to “imaginfe] . . . that
everyone’s backgrounds were reversed from what they
actually are.” JA 1672.
“We review the district court’s decision to .. . refuse
to give a jury instruction for abuse of discretion.”
Passaro, 577 F.3d at 221. Such a refusal is “reversible
error . . . only” if the proffered instruction: “(1) was
correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some
point in the trial so important, that failure to give the
requested instruction seriously impaired the
defendant’s ability to conduct his defense.” Id.
We see no abuse of discretion here. Whether or not
portions of Council’s proposed instruction would be
wise as a matter of policy, they are not rooted in the
text of the statute. As written, Section 3593(f) does not
require the jury to mentally reverse the racial or other
characteristics of anyone, much less witnesses who
are neither the victim nor the defendant. Instead, the
statute requires jurors to conclude (and certify) that
they would have recommended a death sentence “no
45a
matter what” the characteristics of the victim or the
defendant were. 18 U.S.C. § 3593(f). As we have
already explained, that principle was “substantially
covered by the court’s charge to the jury.” Passaro, 577
F.3d at 221.
D.
We also conclude the district court did not abuse its
discretion in rejecting Council’s efforts to challenge
the validity of his death sentence via a second—and
untimely—motion under Federal Rule of Criminal
Procedure 33.
Council filed his first Rule 33 motion shortly after he
was sentenced. The district court denied that motion,
and Council appealed to this Court.
More than a year and a half later—and while his
appeal was still pending—Council filed a second Rule
33 motion. The district court denied that motion on
three grounds, including that it was untimely.
Reviewing that decision for abuse of discretion, see
United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006), we affirm.
Rule 33(b)(2) provides any motion “grounded on any
reason other than newly discovered evidence must be
filed within 14 days after the verdict or finding of
guilty.” Council did not file his motion “within 14
days” after the jury recommended a death sentence or
the court imposed it. Nor was Council’s motion based
on “newly discovered evidence.” To the contrary, as the
46a
motion explained, it was based on “a new statute”
enacted by the South Carolina legislature. JA 6170.9
Seeking to avoid this problem, Council asserts the
district court abused its discretion in rejecting his
claim that he could show “excusable neglect” for the
late filing. See Fed. R. Crim. P. 45(b)(1)(B) (providing
that, subject to one exception, a district court may
extend an already expired deadline at the request of a
party who shows “good cause” and that “the party
failed to act because of excusable neglect”). But at
least one of Council’s current arguments—that the
Federal Death Penalty Act makes an unconstitutional
delegation of legislative authority by incorporating
state law execution practices—was plainly available
when Council filed his first Rule 33 motion. Nor did
the district court abuse its discretion in concluding
Council had not established excusable neglect for
failing to bring his remaining claims sooner.
Our holding does not leave Council without a
mechanism for raising constitutional challenges to his
method of execution, should it proceed. As the
government notes, this Court has stated that
“challenges to the execution of a federal sentence”—
including those “based on a perceived constitutional
violation”—“are properly brought under 28 U.S.C.A.
9 Even if Council’s motion had been based on “newly discovered
evidence” under Rule 33, the district court would have lacked the
authority to grant the motion. True, the outer time limit for filing
that sort of motion is “3 years after the verdict or finding of
guilty” and Council satisfied that requirement. Fed. R. Crim. P.
33(b)(1). The problem is that same provision declares that “[i]f an
appeal is pending”—which one was by the time Council filed the
relevant Rule 33 motion—a district court “may not grant” such a
motion “until the appellate court remands the case.” Id.
47a
§ 2241.” United States v. Little, 392 F.3d 671, 679 (4th
Cir. 2004); accord In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997) (en banc) (“[A]ttacks on the execution
of a sentence are properly raised in a § 2241
petition.”).10
*
*
*
Having scrutinized the record and considered
Council’s challenges under the applicable standards of
review, we conclude the district court committed no
reversible error. The judgment of the district court is
AFFIRMED.
10 Council also contends he will be placed in solitary
confinement for an indefinite period while awaiting execution
and that this violates the Eighth Amendment’s prohibition on
“cruel and unusual punishments.” But nothing in the district
court’s judgment establishes the conditions of Council’s
confinement, and a challenge to the conditions of a prisoner’s
confinement “does not go to the validity of a conviction or
sentence.” Nance v. Ward, 142 S. Ct. 2214, 2222 (2022).
48a
APPENDIX B
FILED: September 26, 2023
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1 (L)
(4:17-cr-00866-RBH-l)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL COUNCIL,
Defendant - Appellant.
MENTAL HEALTH PROFESSIONALS,
Amicus Supporting Appellant,
GOVERNOR HENRY MCMASTER,
Amicus Supporting Appellee.
No. 21-8
(4:17-cr-00866-RBH-l)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL COUNCIL,
49a
Defendant - Appellant.
MENTAL HEALTH PROFESSIONALS,
Amicus Supporting Appellant,
GOVERNOR HENRY MCMASTER,
Amicus Supporting Appellee.
ORDER
The court denies the petition for rehearing and
rehearing en banc. No judge requested a poll under
Fed. R. App. P. 35 on the petition for rehearing en
banc.
Entered at the direction of the panel: Judge
Wilkinson, Judge Agee, and Judge Heytens.
For the Court
/s/ Nwamaka Anowi. Clerk
50a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
UNITED STATES OF AMERICA,
v.
BRANDON MICHAEL COUNCIL,
CR. No.: 4:17CR00866-RBH
MOTION FOR COMPETENCY EVALUATION
AND MOTION FOR CONTINUANCE OF TRIAL
PROCEEDINGS
Counsel for Brandon Council requests a brief
continuance until Monday morning, September 23,
2019, in order to conduct a competency evaluation
pursuant to 18 U.S.C. §4241 and Federal Rules of
Criminal Procedure 12.2(c)(1)(A). Counsel submit
that Brandon Council is presently suffering from a
mental disease or defect rendering him unable to
assist properly and rationally in his defense.
LEGAL STANDARDS
Due process requires that a defendant be competent
during a criminal proceeding. Medina v. California,
505 U.S. 437,448 (1992). The standard for competence
to stand trial is whether the defendant has “‘sufficient
present ability to consult with his lawyer with a
51a
reasonable degree of rational understanding Band
whether he has a rational as well as factual
understanding of the proceedings against him.”’ Drope
v. Missouri, 420 U.S. 162, 171 (1975). An inquiry into
defendant’s competency to stand trial must be made
whenever there is reasonable cause to believe that
defendant is incompetent, and the first step in such
inquiry is an examination of defendant by a
psychiatrist. United States v. Marshall, 458 F.2d 446
(2d Cir. 1972).
Under 18 U.S.C. §4241, counsel may file a motion for
a hearing to determine the mental competency of the
defendant. This section sets forth a “reasonable cause”
standard such that, if met, the Court must grant the
motion or order a competency hearing in accordance
with 18 U.S.C. § 4247(d). In making its decision, the
Court must determine “if there is reasonable cause to
believe that the defendant may presently be suffering
from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable
to understand the nature and consequences of the
proceedings against him or to assist properly in his
defense.” 18 U.S.C. §4241(a).
18 U.S.C. §4241(a) makes clear that the hearing is
mandatory. See United States v. Mason, 52 F.3d 1286,
1289 (4th Cir. 1995) (“The district court must sua
sponte order a competency hearing if reasonable cause
is demonstrated.”); United States v. White, 887 F.2d
705, 710 (6th Cir. 1989) (“[T]he provision for a hearing
is mandatory upon a determination of reasonable
cause to believe that the defendant is incompetent to
stand trial.”). “Indeed, under the federal statute, the
district court has not only the prerogative, but the
duty, to inquire into a defendant’s competency
52a
whenever there is ‘reasonable cause to believe’ that
the defendant is incompetent to stand trial. Likewise,
failure to order a hearing when the evidence raises a
sufficient doubt as to a defendant’s competence to
stand trial deprives a defendant of due process of law.”
White, 887 F.2d at 709 (citing Pate v. Robinson, 383
U.S. 375, 385 (1966)).
This Court has demonstrated its knowledge and
sensitivity to this issue, and had previously raised
issues sua sponte regarding Mr. Council’s competency.
See, e.g., ECF No. 83 (scheduling a status conference
and ordering that “The lawyers should also be
prepared to discuss the Court’s consideration of a
Section 4241 competency evaluation.”); ECF No. 93
(ordering “Counsel to submit memos to the Court on
April 9, 2018 regarding § 4241 issue”).
Defense counsel are under a similar obligation to
raise competency issues whenever it arises:
[W]here there are substantial indications that
the defendant is not competent to stand trial,
counsel is not faced with a strategy choice but
has a settled obligation . . . under federal law
... to raise the issue with the trial judge and
ordinarily to seek a competency examination.
United States v. Sampson, 820 F. Supp. 2d 202, 245
(D. Mass. 2011).
“ [I] t is not enough for the district judge to find that
the defendant (is) oriented to time and place and (has)
some recollection of events, but [] the test must be
whether he has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as
53a
well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402
(1960) (internal quotation omitted).
Reaffirming Dusky, the Supreme Court in Godinez
v. Moran, 509 U.S. 389, 402 (1993), reasoned that
“[Requiring Q a criminal defendant be competent has
a modest aim: It seeks to ensure that he has the
capacity to understand the proceedings and to assist
counsel.” This fundamental goal means that, “[f]or the
defendant, the consequences of an erroneous
determination of competence are dire. Because he
lacks the ability to communicate effectively with
counsel, he may be unable to exercise other ‘rights
deemed essential to a fair trial.’” Cooper v. Oklahoma,
517 U.S. 348, 364 (1996) (quoting Riggins v. Nevada,
504 U.S. 127, 139 (1992) (Kennedy, J., concurring in
judgment)).
So cardinal is this “modest aim” to a defendant’s
constitutional rights that the Supreme Court has held
that requiring a defendant to show he was
incompetent by clear and convincing evidence was
unconstitutional because that standard failed to
“‘jealously guard□’ ... an incompetent criminal
defendant’s fundamental right not to stand trial.”
Cooper, 517 U.S. at 363 (quoting Jacob v. New York
City, 315 U.S. 752, 752-53 (1942)). In so holding, the
Court reasoned that this fundamental right
outweighs the government’s interest “in the prompt
disposition of criminal charges” and its interest “in the
efficient operation of its criminal justice system.”
Cooper, 517 U.S. at 367. Consequently, it held that
requiring a defendant to meet the burden of proving
his incompetency to a “preponderance of the evidence”
was constitutionally appropriate. Id. at 355, 362
54a
(noting that “Congress has directed that the accused
in a federal prosecution must prove incompetence by
a preponderance of the evidence.).
18 U.S.C. §4241 and relevant case law require that
the defendant be competent at all stages of the
proceedings. It is immaterial whether the issue of
competency is raised before, during, or after trial. See
Mason, 52 F.3d at 1290 (noting that “the standard in
§ 4241 governs whether the competency issue is raised
before or after trial”); White, 887 F.2d at 709 (noting
that § 4241 “contemplates inquiry over a wide period
of time—’[a]t any time after the commencement of a
prosecution for an offense and prior to the sentencing
of defendant.”’). See also United States v. Kerr, 752
F.3d 206,216 (2d Cir. 2014) (internal quotation marks
and citation omitted) (“The right not to be prosecuted
while incompetent spans the duration of a criminal
proceeding.”); United States u. Andrews, 469 F.3d
1113, 1120 (7th Cir. 2006) (“[D]istrict courts must, at
all times during the trial process, guard against trying
an incompetent defendant regardless of when the
incompetency materializes or what caused it to
occur.”); Chavez v. United States, 656 F.2d 512, 515
(9th Cir. 1981) (“Due process requires a trial court to
hold a hearing, sua sponte, on a defendant’s
competence to plead guilty whenever the trial judge
entertains or reasonably should entertain a good faith
doubt as to the defendant’s ability to understand the
nature and consequences of the plea, or to participate
intelligently in the proceedings and to make a
reasoned choice among the alternatives presented.”);
Noble v. Black, 539 F.2d 586, 592 (6th Cir. 1976) (due
process required that the opinion of a doctor that the
defendant should see a psychiatrist, as well as other
55a
evidence suggestive of incompetency, “should have
been inquired into, ... at whatever stage of the
proceedings such evidence was sought to be
introduced and became available, even after verdict
and judgment, as bearing upon appellant’s
competency ....”).
With the Supreme Court’s “modest aim” in mind,
and in light of the evidence of Mr. Council’s
incompetency discussed below, the Court should allow
the defense time to conduct a competency evaluation
and a hearing to determine Mr. Council’s mental
competency to proceed. The Fourth Circuit has held
denial of such motion to seek an examination is
subject to review for abuse of discretion. See United
States v. Burgin, 440 F.2d 1092 (4th Cir. 1971) (Court
required to grant motion unless not made in good faith
or the grounds appear frivolous). The remedy for
denial is reversal of the conviction and remand for a
competency hearing. Burgin, 440 at 1095 (citing
Dusky, 362 U.S. 402 (I960)).
APPLICATION
Following today’s trial proceedings, Counsel for
Brandon Council are of the firm view that a
competency evaluation is necessary. At the present
time, Brandon Council is unable to understand the
nature and consequences of the proceedings against
him and is not assisting properly in his defense. See
Medina v. California, 505 U.S. 437, 450 (1992)
(“[D]efense counsel will often have the best-informed
view of the defendant’s ability to participate in his
defense”); Drope, 420 U.S. at 177 n.13 (recognizing the
importance of considering counsel’s judgment about
the defendant’s state of mind). As such, Counsel
56a
immediately contacted an expert after today’s
proceedings to conduct such an examination and
expressed the urgency of the moment. The expert
agreed to conduct the hearing at the earliest possible
time, the next day - Friday, September 20, 2019.
Given the stage of the proceedings, a continuance in
the proceedings until Monday, September 23, 2019,
would be prudent so that the expert would be able to
conduct the evaluation and provide vital information
regarding Mr. Council’s ability to proceed. Counsel
believe that their client is presently mentally ill and
unable to proceed. Further details can be provided to
the Court in an ex parte discussion as to why counsel
hold this belief.
CONCLUSION
Because Counsel for Brandon Council believe Mr.
Council is unable to understand the nature and
consequences of the proceedings against him and is
not capable of assisting properly or rationally in his
defense, due to mental disease or defect, the Court
should suspend court proceedings until Monday,
September 23, 2019, so that a competency evaluation
can be completed and so that counsel may report their
client’s status back to the Court.
Respectfully submitted,
/s/ DUANE K. BRYANT
1207 Brentwood Street
High Point, NC 27260
Phone: (336) 887-4804
/s/ AKIN ADEPOJU
Assistant Federal Public Defender
800 King Street, Suite 200
57a
Wilmington, DE 19801
Phone: (302) 573-6010
/s/ MICHAEL A. MEETZE
Assistant Federal Public Defender
c/o McMillan Federal Building
401W. Evans Street, Suite # 105
Florence, South Carolina 29501
Phone: (843) 662-1510
/s/ WILLIAM F. NETTLES. IV
Assistant Federal Public Defender
c/o McMillan Federal Building
401 W. Evans Street, Suite # 105
Florence, South Carolina 29501
Phone: (843) 662-1510
Attorney ID#: 5935
September 19, 2019
Florence, South Carolina
58a
APPENDIX D
Case No. 4:17-cr-0086-RBH
Date Filed 09/23/19
From Expert Report, Entry Number 811
Psychiatrists’ Two-Paragraph Statement
Based on a three-hour interview with Brandon
Michael Council on Sunday, September 22, 2019, we
believe, to a reasonable degree of medical certainty,
that Brandon Michael Council is competent to stand
trial as defined in 18 U.S.C. Section 4241(a), to wit:
Brandon Michael Council is able to understand the
nature and consequences of the proceedings against
him and to assist properly in his defense, if he
chooses to do so.
As the Court is well aware, competency is a fluid
issue. As of this date, the undersigned find that he
is competent to proceed. Mr. Council is experiencing
extreme anxiety and some sleep deprivation. As of
this date, the undersigned find he is competent to
proceed.
Nevertheless,
the
possibility
of
decompensation as the trial proceeds cannot be
ruled out. We recommend that counsel monitor his
status and advise the court should there be a
change. If Mr. Council exhibits signs of stress, a
short break in the proceedings could be beneficial.
59a
This the 22nd day of September, 2019.
/s/ Donna Maddox. M.D.
Donna Maddox, M.D.
/s/ James Hilkev. Ph.D.
James Hilkey, Ph.D.
60a
APPENDIX E
STATUTORY PROVISIONS INVOLVED
1.
18 U.S.C. § 4241
(a) Motion to determine competency of
defendant.-At any time after the commencement of
a prosecution for an offense and prior to the
sentencing of the defendant, or at any time after the
commencement of probation or supervised release and
prior to the completion of the sentence, the defendant
or the attorney for the Government may file a motion
for a hearing to determine the mental competency of
the defendant. The court shall grant the motion, or
shall order such a hearing on its own motion, if there
is reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent
that he is unable to understand the nature and
consequences of the proceedings against him or to
assist properly in his defense.
(b) Psychiatric or psychological examination
and report.—Prior to the date of the hearing, the
court may order that a psychiatric or psychological
examination of the defendant be conducted, and that
a psychiatric or psychological report be filed with the
court, pursuant to the provisions of section 4247(b)
and (c).
(c) Hearing.-The hearing shall be conducted
pursuant to the provisions of section 4247(d).
(d) Determination and disposition.-If, after the
hearing, the court finds by a preponderance of the
61a
evidence that the defendant is presently suffering
from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable
to understand the nature and consequences of the
proceedings against him or to assist properly in his
defense, the court shall commit the defendant to the
custody of the Attorney General. The Attorney
General shall hospitalize the defendant for treatment
in a suitable facility—
(1) for such a reasonable period of time, not to
exceed four months, as is necessary to determine
whether there is a substantial probability that in
the foreseeable future he will attain the capacity to
permit the proceedings to go forward; and
(2) for an additional reasonable period of time
until-(A) his mental condition is so improved that
trial may proceed, if the court finds that there
is a substantial probability that within such
additional period of time he will attain the
capacity to permit the proceedings to go
forward; or
(B) the pending charges against him are
disposed of according to law;
whichever is earlier.
If, at the end of the time period specified, it is
determined that the defendant's mental condition has
not so improved as to permit the proceedings to go
forward, the defendant is subject to the provisions of
sections 4246 and 4248.
62a
(e) Discharge.—When the director of the facility in
which a defendant is hospitalized pursuant to
subsection (d) determines that the defendant has
recovered to such an extent that he is able to
understand the nature and consequences of the
proceedings against him and to assist properly in his
defense, he shall promptly file a certificate to that
effect with the clerk of the court that ordered the
commitment. The clerk shall send a copy of the
certificate to the defendant's counsel and to the
attorney for the Government. The court shall hold a
hearing, conducted pursuant to the provisions of
section 4247(d), to determine the competency of the
defendant. If, after the hearing, the court finds by a
preponderance of the evidence that the defendant has
recovered to such an extent that he is able to
understand the nature and consequences of the
proceedings against him and to assist properly in his
defense, the court shall order his immediate discharge
from the facility in which he is hospitalized and shall
set the date for trial or other proceedings. Upon
discharge, the defendant is subject to the provisions of
chapters 207 and 227.
(f) Admissibility of finding of competency.-A
finding by the court that the defendant is mentally
competent to stand trial shall not prejudice the
defendant in raising the issue of his insanity as a
defense to the offense charged, and shall not be
admissible as evidence in a trial for the offense
charged.
2.
18 U.S.C. § 4247 provides in pertinent part:
(b) Psychiatric or psychological examination.-A psychiatric or psychological examination ordered
63a
pursuant to this chapter shall be conducted by a
licensed or certified psychiatrist or psychologist, or, if
the court finds it appropriate, by more than one such
examiner. Each examiner shall be designated by the
court, except that if the examination is ordered under
section 4245, 4246, or 4248, upon the request of the
defendant an additional examiner may be selected by
the defendant. For the purposes of an examination
pursuant to an order under section 4241, 4244, or
4245, the court may commit the person to be examined
for a reasonable period, but not to exceed thirty days,
and under section 4242, 4243, 4246, or 4248, for a
reasonable period, but not to exceed forty-five days, to
the custody of the Attorney General for placement in
a suitable facility. Unless impracticable, the
psychiatric or psychological examination shall be
conducted in the suitable facility closest to the court.
The director of the facility may apply for a reasonable
extension, but not to exceed fifteen days under section
4241, 4244, or 4245, and not to exceed thirty days
under section 4242, 4243, 4246, or 4248, upon a
showing of good cause that the additional time is
necessary to observe and evaluate the defendant.
(c) Psychiatric or psychological reports.—A
psychiatric or psychological report ordered pursuant
to this chapter shall be prepared by the examiner
designated to conduct the psychiatric or psychological
examination, shall be filed with the court with copies
provided to the counsel for the person examined and
to the attorney for the Government, and shall include(1) the person’s history and present symptoms;
64a
(2) a description of the psychiatric, psychological,
and medical tests that were employed and their
results;
(3) the examiner's findings; and
(4) the examiner's opinions as to diagnosis,
prognosis, and-(A) if the examination is ordered under section
4241, whether the person is suffering from a
mental disease or defect rendering him
mentally incompetent to the extent that he is
unable to understand the nature and
consequences of the proceedings against him or
to assist properly in his defense;
(B) if the examination is ordered under section
4242, whether the person was insane at the
time of the offense charged;
(C) if the examination is ordered under section
4243 or 4246, whether the person is suffering
from a mental disease or defect as a result of
which his release would create a substantial
risk of bodily injury to another person or
serious damage to property of another;
(D) if the examination is ordered under section
4248, whether the person is a sexually
dangerous person;
(E) if the examination is ordered under section
4244 or 4245, whether the person is suffering
from a mental disease or defect as a result of
which he is in need of custody for care or
treatment in a suitable facility; or
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(F) if the examination is ordered as a part of a
investigation,
any
presentence
recommendation the examiner may have as to
how the mental condition of the defendant
should affect the sentence.
(d) Hearing.—At a hearing ordered pursuant to this
chapter the person whose mental condition is the
subject of the hearing shall be represented by counsel
and, if he is financially unable to obtain adequate
representation, counsel shall be appointed for him
pursuant to section 3006A. The person shall be
afforded an opportunity to testify, to present evidence,
to subpoena witnesses on his behalf, and to confront
and cross-examine witnesses who appear at the
hearing.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.