# Appendix — Chandler v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1704%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 512 U.S. 1227 ## Text oe Al APPENDIX IABLE OF CONTENTS OPINION OF THE COURT OF APPEALS FOR THE ELEVENTH CIRCUIT DATED JULY \S MODIFIED SEPT. 30, 1992 ORDER OF ELEVENTH CIRCUIT DATED SEPT. 30, 1993 GRANTING THE MOTION Of} THE UNITED STATES FOR MODIFICATION O} PANEL'S OPINION ORDER OF ELEVENTH CIRCUIT DENYIN¢ MR. CHANDLER'S MOTION FOR REHEARIN( \ND SUGGESTION OF REHEARING EN BAN DATED SEPT. 30, 19 IUDGMENT Of} THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA AS TO COUNT 3 O] THE INDICTMENT DATED MAY 14, 199 JUDGMENT OF THE DISTRICT COURT AS TO COUNTS | > §, 9 DATED MAY 14 ss ORDER OF THE DISTRICT COURT DENYIN« MR. CHANDLER'S MOTION FOR NEW TRIAI ON GUILT AND PENALTY PHASES DATED MAY 30, 199] | ‘s { S K4* DAVID BRUCK, FEDERAL DEATH PENALTY PROSECUTIONS. 1988-93 (DE¢ WITH CON LD SESS K Gnited St I ate TH b r \A vi K al he ; S t i ( s Ju ppedi CNallel IN ] gC ELE\ ourt 1S! dS Ban | leal | | ( Of Appeals detendant R 1p nd ip hoth | Sentence n in inital nary d We} is Nil sentenc I ther related count We VACATE Chand convicuion and sentence for conspiracy. We AFFIRM a convictions and ntences, including Chandler l. BACKGROUND On May * M(), Charles Ray Jart Sr. and Marlin S! drove t sNnov i} in P Imont, Alabama. Attl i} and Shuler engaged in target practi with two pistols that Jas had brought along irl turned nil run at snu and killed hit Later that ir u ytal ft Alabama indicted Jart art son Billy J ind Chandler for the murder of S|] indictments were ultimately dismissed. but the stat handling t States Attorney and assisted in this prosecution The United States issued a superseding indictment January Y¥, 1991. Count One of the indictment charged Chand Jarrell and 14 other individuals with conspiracy to pi Intent to distribute and with distribution of over 1,000 kilogran of marijuana and 1,000 marijuana plants, in violation of 21 U.S. S$ 846 and 841(a)(1). Chandler was also indicted on counts: Count Two, engaging in a continuing criminal enterpri in violation Of 21 U.S.C. § 848(a); Count Three. murder whi engaged in and working in furtherance of a continuing crimit enterprise, in violation of 21 U.S.C. 848(e); Counts Four and Five, aiding and abetting the use or carrying of a firearn relation to a drug trafficking crime, in violation of 18 U.S. S 924(c); and Counts Six, Seven, Eight. and Nin laundering in violation of 18 U.S.C. § 1956 On January 17, 1991, Jarrell entered into a plea a with the government. Jarrell pleaded guilty to the conspira charge in Count One of the indictment and agreed to testify behalf of the government at Chandler's trial. In exchange, Jar received immunity from prosecution for Shuler’s murder fron State of Alabama and the United Sta - » a _ ¥ _ ¢ ’ _ ° = _ = oa — _ . - - - a ~ — - — — s “4 = - ‘ a >. - ~ a “~y = : o . . y + . - : _ — - sap = @& _— c + a , a — ~ — — i oie - - e joe _ i —— - f —_ ¢ J - = > Ff + = . -. e — e = . — — c a . — 5s Ss) 4 = - 7 — -- ~ c ~ = - = r a ) “2 - — . ’ - — » F : = _ - - ~~ —_ - 4 a 3 = “4 ~ 2 fr — g - a 4 = ' Z . Se . . baci : — A. ” ' y - ~ £ - eo — a the morning of May &, 1990, Chandler arrived at Jarre]! \ pr nt at the house was Shuler. Upon seeing Shuiet irned Jarrell He s going to cause me and you a { trouble,” and “You need to go on and take care of till got that SSOO.O RVII- | Jarrell understood ‘r to be reterring to a conversation Jarrell had with in January, 1990. In that conversation, which occurred the search of Donna Shuler’ s home, Chandler announced rell should eliminate Shuler due to all of the problems that had caused for Jarrell and his tamily, declaring that he Jarrell $500 if Jarrell accomplished the task. At that idler then left Jarrell’s house and Jarrell and Shuler spent rning drinking heavily. The two then drove to Snow s Lak ngaged in target practice with two guns Jarrell had S80 pistol owned by Jarrell and a nine millimeter iat Chandler had placed in Jarrell’s car the previous Jarrell then turned the nine millimeter pistol on Shulet ind killed him. Jarrell drove directly to Chandler id advised Chandler that he had killed Shuler. Jarrell then to Snow's Lake accompanied by Chandler, carried body to the other side of the mountain bordering Snow s ; nd buried the body near an abandoned moonshine still isked for the $500, but Chandler did not pay him \t approximately the same time that Shuler was murdered indier was also attempting to protect his operation trom duals who were stealing his marijuana crop. Chandler sal ‘d that two individuals, Patrick Burrows and Jeffrey [ were Stealing his marijuana. Chandler warned several lat he would kill McFry and Burrows if they continued narijuana. Chandler later announced to one of his dealer that Burrows was dead and that McFry would be next if McFry quit stealing Chandler's marijuana. Neither Burrows not A [ ‘en alte! September 1QQ() 74 avy ravaling nuler murd » { Shuler and (2) Chandler procured the murder by promising the ayment of money. The jury unanimously recommended that handler be sentenced to death. On May 14, 1991, the district ourt sentenced Chandler to life imprisonment on Counts One and two consecutive five year sentences on Counts Four and ind six years Of imprisonment on Counts Six, Seven, Eight 1 Nine. Based on the jury recommendation, the district court ntenced Chandler to death on Count Three as mandated by | | S ( > 848(G)(1) Chandler moved for a new trial as to both phases of his trial [hese mouions assigned numerous errors to both the guilt and ‘ntencing phases of the trial. Some arguments renewed previous ittacks and others were made for the first time. The district court lenied the motions, but stayed enforcement of the capital ntence pending appeal. Chandler filed two appeals to this court rhe first challenged the capital sentence under Count Three. The nd contested his conviction on Count Three and his vicuions and sentences on the non-capital counts. We idated the two appeals under 21 U.S.C. § 848(q)(1) ll. THE STATUTORY SCHEME A. Overview Of Section 848 Ihe Anti-Drug Abuse Act of 1988 establishes as a capital ffense the intentional killing of a person in connection with the mmission of a continuing criminal enterprise. The Act details wrocedures to be followed hdefore a defendant may be sentenced Initially, the government must serve notice “a reasonable ume before trial” of its intent to seek the death penalty ra Bie ft & S48(h)(1). If a defendant is found guilty of violating section 848(e)(1)(A), a separate sentencing hearing must be nducted, generally before the same jury that determined guilt | U.S.C. § 848(1)(1)(A). The purpose of the hearing is to permit nsideration of any aggravating and mitigating factors relevant whether the defendant should be sentenced to death. 21 U.S.C 44%(j). The information presented at sentencing need not niorm to the Federal Rules of Evidence, so long as the district AS court is convinced that its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury. /d rhe process by which a jury is to consider sentencing factors is specific. The government must prove beyond a reasonable doubt and to the unanimous satisfaction of the jury at least two of the aggravating factors expressly set forth in the statute »] U.S.C. § &848(j), (k). It must advise the defendant a reasonable time before trial of those aggravating factors it intends to prove 21 U.S.C. § 848(h)(1). One of these must be from among the four listed in Section $48(n)(1). The other must be from among those listed in Section 848(n)(2)-(12). Absent a finding of these aggravating factors, a jury cannot impose the death penalty 21 U.S.C. §§ 848(k) lt a jury makes the required findings of aggravating factors it then considers any mitigating factors established by the defendant. 21 U.S.C. § 848(k),(m). Mitigating factors need only be established by a preponderance of the evidence, and any juror persuaded of a mitigating factor may consider it in reaching a sentencing decision; unanimity as to what factors are mitigating is not required. 21 U.S.C. § 848(j),(k). A jury that finds the required aggravating factors must consider whether these factors so outweigh any mitigating factors as to justify a sentence of death. 21 U.S.C. § 848(k). Absent any mitigating factors, a jury must still unanimously find that the aggravating factors are themselves sufficient to justify a sentence of death. /d. Invidious factors, such as race or sex, cannot influence a jury's recommendation of the death penalty. Each juror must sign a certificate attesting that neither the defendant's nor the victim's “race, color, religious beliefs, national origin, or sex” played any part in the deliberations. 21 U.S.C. § 848(0)(1) Although a jury cannot vote for the death penalty absent the required findings just detailed, a jury is never required to impose a death sentence even if it finds sufficient grounds to do so under the applicable law. Indeed, a court must specifically so instruct the jury. 21 U.S.C. § 848(k). Although the statute denominates a jury's finding in favor of the death penalty a “recommendation, ” AY it 1s determinative, for upon such a “recommendation” the trial court “shall sentence the defendant to death.” 21 U.S.C. § 848(1) Appellate review of a death sentence is expressly provided by the statute. 21 U.S.C. § 848(q)(1). Such appeal may bi consolidated with a challenge to the judgment of conviction, and the case is to be given priority on the appellate docket. /d KB. Standard Of Review Section 848 contains two provisions that address our review Of death sentences imposed under Section 848 Section $48(q)(2) states: On review of the sentence, the court of appeals shall consider the record, the evidence submitted during trial. the information submitted during the sentencing hearing. the procedures employed in the sentencing hearing, and th special findings returned under this section Section 848(q)(3) provides: The court shall affirm the sentence if it determines th; (A) the sentence of death was not imposed em the influence of passion, prejudice, or any other arbitrary factor and (B) the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to find. any mitigating factors as set forth or allowed in this section There is nothing in these sections altering our ordinary standards of review. Instead, these sections serve to emphasize the serious nature of capital cases and the importance of careful review III. DISCUSSION A. Challenges To The Death Sentence |. Jury power to recommend a sentence other than death Section 848(k) provides that if the jury finds certain aggravating factors, the jury must then weigh the aggravating lactOrs against any mitigating factors to determine whether to recommend “that a sentence of death shall be imposed rather than Al a sentence of life imprisonment without possibility of release some other lesser sentence. At Chandler's sentencing, the district ourt instructed the jury that in the event that it did no recommend a sentence of death, it should not be concerned wit! the question of what sentence he might receive. The district court ilso stated that the judge alone would decide Chandler s senten if the jury did not recommend death Chandler contends that the district court violate withholding from the jury the authority to impose a sentet Other than death. However, at a pre-sentencing hearing Chandler's counsel asserted that “I don't think they [the jurors make a recommendation of a sentence if they don t recommend death.” XIV-40. The proposed jury instructions submitted b Chandler advised that if the jury did not recommend a deat! sentence, the responsibility for imposition of a non-death sentem rested with the district court. Beeause Chandler both argued ! and submitted jury instructions stating that the district court alone was responsible for sentencing Chandler if the jury did recommend death, Chandler invited the alleged error and cann now, on appeal, complain that the instruction was errone Leverett \ spear 877 F.2d 921, 924 (11th Cir. 1989) Had Chandler not invited the instruction, the district properly construed Section &48(k). When the language of a statut is clear, the language controls any interpretation of the statute absent a legislative intent to the contrary. United Stat Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Harper v. Better Business Servs., Inc., 961 F.2d 1561 1563 (ilth Cir. 1992). We must look to the language and design of the statute as a whole in interpreting the language at issu McCarthy v. Bronson, U.S 111 S.Ct. 1737, 174 114 L.Ed.2d 194 (1991) The language of Section 848(k) is not perfectly clear, and the legislative history of the Anti-Drug Abuse Act of 1988 consists of only a few debates on the Senate floor. Nevertheless Section 848(k) can be confidently interpreted when it is read in the context of the statute as a whole. Several provisions of All section 848 suggest that Chandler's interpretation 1s flawed Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death Otnerwise the court shall impose a sentence, other than death iuthorized by law [he second sentence of this section instruct that the district court ne sentence if the jury does not recommend death Similarly, Section S48(p) provides If a person is convicted for an offense under subsection | I this section and the court does not impose the penalty of cath, the court may impose a sentence of life Imprisonment without the possibility of parole lhus, the statute grants the district court the discretion to sentence defendant to life without parole if a death sentence is not ommended. These sections preclude an interpretation of 4 section 848(k) that gives the jury the authority to impose a non jleath sentence. Correspondingly, the responsibility for sentencing nas historically resided with the trial court. In the absence of clear language in a Statute to lodge the sentencing responsibility with ihe jury, we are reluctant to interpret the statute in a strained manner to reach that result. Hence, we find that Section 848 ‘rants the district court the power to sentence the defendant where the jury does not recommend death. Chandler next insists that our interpretation of Section 848(k) violates the Fifth and Eighth Amendments. Chandler relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 1980). In Beck, the Court held that a jury in a Capital case must be permitted to consider a verdict of guilty on a lesser included non-capital offense where the evidence would Support such a verdict. The jury will thus not be put in a position of choosing between guilt on a capital offense and acquittal. Chandler argues that the jury at his sentencing was put in a similar position However, Beck is not directly applicable in Capital sentencing hearings. California v. Ramos, 463 U.S. 992, 1007-09. 103 S.Ct 3446, 3457, 77 L.Ed.2d 1171 (1983). In Chandler’s case. prior mnnection with a continuing criminal enterprise. Therefore, the jury was not choosing between guilt of a capital crime and acquittal. It was choosing between a penalty of death and her sentence yet to be determined by the trial judg Chandler also invokes Hick Oklahoma, 447 U.S. 343 lOO S.Ct. 2227, 65 L.Ed.2d 175 (1980). In Hicks, the Court held that due process requires that a jury must be informed of al ‘ntences that the statute allows it to impose when exercising entencing power. /d. at 346, LOO S.Ct. at 2229. In Hicks, the jury was vested with the power to determine the defendant's senten capital or otherwise. In this case, Hicks provides no guidance. Th issue before us 1s whether Section 848 gives the jury the power to recommend a sentence other than death. Unless that questi is answered in the affirmative, Hicks provides no guidance The Court has ruled that there is no single correct way to Structure a death sentencing procedure. Morgan v. Illinot U.S , 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992): Spaziano v. Florida, 46% U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Indeed, there is also no constitutional requirement that juries be allowed to participate in capital sentencing. /d. at 459, 104 S.Ct. at 3161-62. Accordingly, there is nothing unconstitutional with the procedure Congres: established in Section 848. The jury has the sole power to recommend a sentence of death. If the jury does not recommend a death sentence, the trial judge has the responsibility to impx a sentence other than death. Hicks is inapplicable to Chandle case because the jury, in this case, was instructed on the ful range of its sentencing power; that is, the power to recomme: a death sentence 2. Jury should have been informed of other sentences Chandler contends that even if the jury did not have the p to recommend a sentence other than death, under Section &48(} and applicable precedent, the jury should have been informe the possible sentences Chandler would face if the jury did n recommend death. We review jury instructions de novo | determine whether they misstate the law or mislead the jury to u 1i“¢ RX V-X (hand met [ tfect, 1s that th Str u nstructior iS Inadequate | iu it did not inform t iry that tl nten han deat ncluded the possibilit f without par *," find tha i! Instruction idequa formed the jury under Section 848(k). The statutory schem reated by Section 848 provides that the jury alone has the pi I mmend a sentence of death. If the jury does not make su ndatior | listrict Court sentences the defenda Not In Section 848 requires the jury to be informed of wh he defendant mightr in the abser { death. | { ul Instrucuhions were propel jandler also suggests that applicable | let ind i defendant be allowed to introdu viden relatin nitigating factors quil that the jury be informed of t | sibility that Chandler would receive a lif entence with parole if death was not 1 mmended. The Suprem urt | lefined mitigating factors as “any aspect of a defendar naracter record and a! {th ircumstances of the offen Lock Ol 438 U.S. 586, 604, 98 S.Ct. 2954, 2965 L.Ed } 4 1/8 ee Skipper South Carolina. 476 U.S +, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986). The range possible sentences that Chandler might receive in the event tl iry did not recommend death does not fall within this definiti \ rdingly, the district court was not required to inform the jury { the possible sentences Chandler might fac 4. Return of mitigating findings (handler urges us to rule that the district court should | ing factor | t that the jury be instructed to return written findir -GQUCSI mitigating factors or object to the lack of such an instructi r Chandler did submit proposed jury charges that instructed the jury that they should find two mitigating factors: (1) that Chandler lacked a criminal record, and (2) that an equally culpable defendant would not receive the death penalty These requested instructions did not adequately bring to the district court's A ’ nt ittention the issue now presented on appeal. Thus, we review for lain error. Fed. R. Crim. P. $2(h) The finding of plain error is a three Step process: (1) there ist be an error, (2) the error must be plain, i.e. clear or obvious ihe error must affect substantial rights. United State lano U.S 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 5 (1993). In most cases, the third prong of this test Is met only lien the defendant demonstrates that the error affected the itcome of the proceedings before the district court. Jd. at 177% however, the error affects the basic protections of a criminal without which a criminal trial canpot reliably serve its function, an effect on the outcome will be presumed. /d.: see ona Vv. Fulimante U.S lll S.Ct. 1246, 1264 13 L.Ed.2d 302 (1991) (distinguishing between trial type and errors which undermine the entire trial). If the satisties all three prongs, then we have the Lrcuonary power to correct an error which seriously affects the integrity or public reputation of judicial proceedings Nano U.S. at 113 S.Ct. at 1778-79 We first determine whether an error occurred. We disagree Chandler's interpretation of Section 848 that the jury is juired to return written findings of mitigating factors that the iry Nas either found to exist or found not to exist. Instead we rpret Section 848 as providing the jury with the option of returning written findings of mitigating factors. Because the trict court Ss Instructions and verdict form foreclosed the jury ‘xercise Of this option, the district court committed error Secuion 848(k) is entitled “Return of Findings.” It provide it the jury “shall return special findings identifying any ravating factors set forth in subsection (n) of this section | Ing tO exist The Section also States \ finding with respect to a mitigating factor may be made by ne Or more of the members of the jury, and any member of the jury who finds the existence of a mitigating factor may sider such a factor established for purposes of this subsection, regardless of the number of jurors who concur that the factor has been established [The statute mentions special findings only in relation aggravating factors. Also, the permissive language concerning the return of written mitigating findings, “may be made,” contrast: with the mandatory language concerning the return of written aggravating findings, “shall.” The jury is required to return aggravating findings and is permitted to return mitigating findings. Therefore, we find that Section 848 requires that th jury be instructed that it has the option to return written finding Of mitigating factors if 1t so Chooses, but that it does not requil the return of such findings Section §48(q) does not require a different result. This sect states that on review of a death sentence, “the court of appeal shall consider the special findings returned under thi section.” 21 U.S.C. § 848(q)(2). The section also instructs pertinent part, that we shall affirm a death sentence 1 the information supports the special finding of the exister Ol every aggravating factor upon which the sentence w based, together with, or the failure to find, any mitigatin factors as set forth or allowed in this section 21 U.S.C. § 848(q)(3)(B). Neither of these subsections mandat the written findings of mitigating factors. They require only that we review any findings which are returned to ensure that the information presented during sentencing supports those findings We hold that Section 848(k) requires that the jury be given the option to return written findings of mitigating factors Section §48(q)(3) requires that if the jury exercises its option, we must review those findings This interpretation comports with the law as it stood time Congress drafted the Anti-Drug Abuse Act of 1988. The finding of mitigating circumstances is individualized; a juror is free to find a mitigating factor even if no other juror agrees with that finding. See Mills v. Maryland, 486 U.S. 367, 373-74, 108 S.Ct. 1860, 1865, 100 L.Ed.2d 384 (1988). Congress may well have determined that forcing jurors to write down mitigating factors would discourage a lone juror from finding mitigating circumstances that the rest of the jury had rejected or disparaged More significantly, by not requiring a juror to inform his or het A / 1 ’ : a ’ ; ‘? ’ 1 , ’ : i if) i ui [ [ I] i id 17e¢d | IT nati [ | mitigating fa ind ippropriatel | a deatl IS prot I} istrict rt in thi ise did not inform tl iry tl id ption return written findings of mitigating fact ind lorm did f ntain space for th puional find | rror. Mor r. tl rror was fia I} tatu ’ rr , , ’ ro ’ ; ) ¢} » } , is p7aa U i J I Nn mitigating findir \ rditr ve must determine wheth iff er Ss substantial rights. We n imiually that this error d indermine the ha pre CUuiONS OF a criminal trial wit nh a criminal tria innot reliaply sey Its Tuncuon 1d 1 (rial type error. Chandler must therefore demonstra it the error alfected the outcome of the proceedings before tl { court. Chandler argues that h was prejudiced b iu pellate court 1 review cannot determine whether th } tw mi la [ vhich Chandler ntends yv yond disput |!) that Chandler had no criminal 1 rd hat Jas il Wa i Jud! padi pet n wn \ ] tl deatl penait We a persuaded that the lack of written mitigating finds not alfect the outcome of Chandler's sentenc ing hearing. The iment and Chandler stipulated that Chandler had no pri le HVICctION on any felony or drug charge and that Jarrell would 1Ve the death pe lalty. These stipulations were presented ‘Mtencing to the jury, and the jury was informed that the were Supulations. Moreover, the jury was properly instructed o1 tO find mitigating factors and the role of mitigating factors (heir decision making process. The jury is presumed to foi instrucwtions they are given. See Richardson \ Marsh, 48 U.S. 200. 206. } S.Ct. 1702, 1707, 95 L.Ed.2d 176 (198 } . ¢ > = , > . ‘ > ‘? ¢ Thus, Chandler has not demonstrated that the lack of Wl ating findings affected the outcome of his cas In conclusion, the district « urt erred Dy not allowine ti } ption ft retur Written findings i mitigating factors 4. Jury unanimity at sentencing } } ; j ; 1 t ry LTT) py y 1 Li ‘ : , } ’ | ’ | ’ } ’ mii 4 | if ii ad U i ‘ ‘ i ; J J J i J i ‘ f y 1 bi tT) | | : TY i | i y , | J ry if r tr r 1 rot ildal In ¥ : , ’ ’ ’ ‘ , Ff J Atl J biicil ry | ij } { ¢} ' ry r) . i | HNimeCcnUuatl i} i . » } ' } y | nten n inan d determined by the court alon lend a , Al9 ntaining the jury's recommendation for or against a death ‘ntence, the form provided We the jury unanimously vote to recommend, and do unanimously recommend that . a sentence of death he IMPose d a sentence of death not be imposed pon defendant David Ronald Chandler Ril-221-3. Chandler argues that Section 848 along with the Mstituuonal requirement that the jury not be misinformed o1 rced during a capital sentencing require that the jury be instructed that the failure to reach unanimity would result in handler receiving some non-death sentence as determined by the several courts have held that a trial court must instruct the ury on the consequences of a lack of unanimity at the sentencing lage (a “hung” jury). The Delaware Supreme Court held that, because Delaware's capital statute provides that the failure to ach unanimity results in a life sentence. the jury must clearly and explicitly be instructed that the jury need not be unanimous lor a life sentence to be imposed. Whalen v. State, 492 A.2d 55? 562 (Del. 1985). The New Jersey Supreme Court, in construing a similar Capital statute, held that the statute and the unique nature Of a death case require that the trial court inform the jury of the consequences Of a non-unanimous decision. State v. Ramseur. 524 2d 188, 283-84 (N.J. 1987). Louisiana has reached the same conclusion. State v. Williams, 392 So.2d 619, 633-34 (La. 1980) Chandler points out that in other Section 848(e) prosecutions, the district courts have instructed the jury on the consequences of a hung jury and provided a verdict form that allowed the jury to State that they were unable to reach a unanimous verdict. Other courts, however, have held that a defendant is not entitled to an instruction informing the jury of the consequences of a lack of unanimity. The Fourth Circuit held that even though the Virginia capital statute requires that the defendant receive a life sentence if the jury is unable to reach unanimity, the defendant is not entitled to a hung jury instruction. Evans \ Thompson, 881 F.2d 117, 123-124 (4th Cir. 1989), cert. denied 4 at sentencin evidence of the ety Propri ~ A) 2 \t the guilt phase, the government introduced evidence that Chandler had made threats against McFry and Burrows because he thought they were stealiag his marijuana and that the two had not been seen since the threats were made. Prior to the sentencing hearing, Chandler submitted proposed jury instructions. Proposed Instruction 14 stated that 1t would be inappropriate for the jury to speculate on what may have happened to McFry and Burrows what connection Chandler may have had with them. Proposed Instruction 15 stated that the jury may consider evidence relating niy to Marlin Shuler and to Count Three of the indictment. Prior » the hearing, the district court, the prosecution, and Chandler! attorney discussed these proposed charges. The district court indicated that it thought that the charges unduly limited th ‘vidence that the jury could consider because most of th ‘vidence presented at the guilt phase was relevant to cithe Chandler s intent or to the planning or scheming of Shuler murder. Then, in response to a question trom the prosecution, the court opined that any evidence concerning the disappearance of ither McFry or Burrows was relevant to planning, if nothing else Later, the court advised that although he would not giv Chandler's proposed instructions, he thought they were fair arguments tor Chandler s counsel to make in closing At the hearing, the district court received, upon th ‘rmment s submission, all of the testimony, evidence, and *xhibits presented at the guilt phase that were relevant to the murder of Shuler or to the presence of aggravating or mitigating factors. Chandler's counsel, in his closing argument to the jury requested that it should not speculate about any connection between Chandler and the disappearances of McFry and Burrows lhe prosecution replied in rebuttal that the threats made against McFry and Burrows demonstrated planning in the protection of Chandler's marijuana operation. Following closing arguments, the court instructed the jury that it could consider any evidence relevant to the Shuler murder and to the existence of aggravating and mitigating factors. The court identified the specific factor: that the government was attempting to prove and admonished the jury to consider no other aggravating factor AD3 On appeal, Chandler argues that the introduction of all the evidence from the guilt stage of the proceedings « oupled with the argument made in closing by the government relating to McFry and Burrows constituted an attempt by the government to use the apparent murders of McFry and Burrows as aggravating factor Since these putative murders were not included in the list provided under Section 848(h)(1)(B), Chandler insists that th sentence of death should be vacated Ihe evidence relating to McFry and Burrows was 1 improperly admitted during sentencing because it related to the aggravating factors the prosecution was responsible for proving Sccuon 848(j) allows the presentation of any information relevant (0 aggravating circumstances provided the probative value is n substantially outweighed by the danger of unfair prejudi confusion of the issues or misleading the jury. Although t Federal Rules of Evidence do not govern the admissibility of ‘vidence during a Section &48(e) sentencing hearing it is h ‘Ipful lo refer to the definition of relevant evidence from the Federal Rules, to wit: evidence having any tendency to make the existen Ol a material fact more probable or less probable than it would he without the evidence. Fed. R. Evid. 40] "he evidence concerning McFry and Burrows has a tenden to prove Chandler's intent to kill Shuler and his substar.tiai planning in the murder. The fact that Chandler threatened t eliminate two individuals who he believed were stealing hi Marijuana tends to prove that Chandler was willing to harm someone who threatened his marijuana enterprise. Since Shuler threatened Chandler's operation by informing on Donna Shuler Chandler's prior threats and the disappearances have a tendency lo prove that Chandler would also respond to Shuler’s actions t protect his operation. This has a tendency to prove that Chandler intended to harm Shuler The evidence also demonstrates that Chandler planned the protection of his marijuana operation. Public statements indi ating that Burrows is dead and McFry will be next, reveal Chandler's CONSCIOUS achlons Over tme to protect his operation. That Chandler planned the protection of his Operation against those f Instruction on the weighing process 1a ia 7h i ; ; : J : , ’ : | A rit : ; ‘ if Ai | } ? t bil ‘ } ii ‘ y ' , bal ’ ’ ' > ' ‘ i Tt} j ' et | ‘7 ‘ i ' ; i ‘4 : x ‘ } A ia it] f } ’ ' : +} r ’ ‘ f '} ft } aly TT} " vif | i i ‘ : tif, , t} ' | : ii [ If I. ( pi ; | Ta. ’ MmnUuUines | | t . 1g Mug atin re } j i pa ai r rs7 7 i ALUCTI j , " ‘ ¢} " nter r i] t] tT ; CT f , j , " 64 * , : i | } ’ , ' ‘ +} j i} ' ‘ . ‘ } ‘ thea | uy Instiructl 7 ’ ’ ’ 7 | j HOT ry Wit! i ¢ i , ‘ ith iuTYy i t} re Mi ' pt ItITilt 1 th yh , Uti W ighin ‘ ‘ UT iy itweigl ’ ‘ : ¢} r J la | , ivatineg ry T) r) yap t ’ " ’; (>\ | s? Hd h if ‘ r ' i i i 1 that th IS CONSUTI ’ rv n of pi f )f } 1] ’ > 5 . | : ; 1/ | > } j ; iICTO! ’ enl ’ T} j ’ i ; ; e} il y sf tr Ail ‘ it " ty ’ iil iu Tr m. , , ; i Lt " L , , , 1 , A vi j iu | j ‘ } J J | ‘ nit i }7i Va ; na i ‘ . ; ; ’ | - j ‘4 " } r} ; j , sud y J : | i J i 7 e} } +} } :" o q j ' , x Prose utor S closing arvuments d. Argument against sympathy ‘ | ‘ ’ ! ‘ f ; I) | j | ’ ii j : " ' thie ry 7 it defendats Vv } | | t ulor properly argued that pecific criminal activity, the jury of whether to ntence Chand! might feel towards Chandlet improper IS NO federal Statute prescribin federal death sentences. Chandler ngressional legislation specifying hav ‘troactive effect in violation of S. | rt. | » ¥, cl. 3. In effect I le imprisonment LO! ne punishnm prohibi iny Statul which punish mmitted, which was innocent wher jensome the punishment for a crime ich deprives one charged with crim rding to law at the time when t! , roungblood, 497 U.S. 3 Ed.2d 30 (1990) (quoting Bea +6 S.Ct. 68, 68-69, 70 L.Ed. 21¢ not prohibit a law that change not alfect matter f substan 82 5,97 S.Ct. 2290, 2298 } Florida capital statute that cured ipital Statute by amending the death not tl quantum OF punishment nol ile @x post facto Clause) gd by Dobbert. The statute undet } to death clearly provided for such lear not (nat a violator of the law Future | lauion would not increa le for the method by which 10). The sentence ia } vet | | ~ ~ ~ | | r | , Ke! ; | ' | - | | ] We s [ 1) ; ‘ i [ Kk. Challenges To The Conviction On Count Three \ " Connection between the « ntinuinyg criminal entert St ind the murder A36 themselves fully, directly, and expressly, without any uncertainty ir ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’” Hamiling v. United States, 41% U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) The language of the indictment is sufficient. The indictment tracks the language of the statute as written by Congress Moreover, any reasonable reading of the indictment makes it clear that the government was charging Chandler with a murder in connection with, and not just contemporaneous to, the ongoing continuing criminal enterprise. The necessary connection between the murder and the enterprise was thus present in the indictment b. Jury charge Phe instruction gi iry stated So count 3 1s built upor int vhich it is Dulit upon count 1. Then goes on and charges on or about May &, 1990 In of about an area known as Snow's Lake near Piedmont, Alabama inthe Northern District of Alabama, the defendant while engaged in and working in furtherance of a Continuing Criminal Enterprise, intenuonally killed and counseled commanded, induced, procured and caused the intentional killing of Marlin Shuler RXIII-186. The district court further instructed that ‘Section 848(e)(1) make|s] 1t a separate Federal crime or offense for anyone, while engaging [in] a Continuing Criminal Enterprise such as the one charged in count 2, to kill an individual or to command or cause the intentional killing of an individual.” /d at 187. The court then enumerated the elements in a Section 848(e)(1) offense: First, that while engaging in or working in furtherance of the Continuing Criminal Enterprise charged in court [sic] 2, the defendant either killed Marlin Shuler or commanded, induced, procured or caused the intentional killing of Marlin Shuler, as charged in count 3 and (2), that the death of Marlin Shuler resulted from such activity of the defendant and, (3), that A37 such activity of the defendant was done knowi: willfully ld. Again, Chandler argues that these instructions allow lO return a guilty verdict even if they found n between the enterprise and Chandler's solicitation of S murder. Chandler failed to request a jury instruction con charge he now claims was erroneous nor did he ob charge that was given. Thus, we review the charge for plais Fed. R. Crim. P. 52(b). The instructions are reviewed 5 Standard discussed above. The instructions informed the jury that Count Three, th murder charge, was “built upon” Count Two, the continuine criminal enterprise charge. The district court also instructed the jury that there must be a connection between the murder and the continuing criminal enterprise. The connection was described once as “while engaged in and in furtherance of” the enterprise and later stated as “while engaged in or in furtherance of” the enterprise. RXIII-186, 187. There is nothing vague about this clear and direct expression. Additionally, the prosecution introduced evidence and argued repeatedly that Chandler had solicited the murder of Shuler because Shuler had informed on one of Chandler’s dealers. There is no reasonable likelihood that the jury believed that it could find Chandler guilty even if it found that he solicited Shuler’s murder for reasons not connected to the continuing criminal enterprise. The instructions clearly conveyed to the jury (hat it must find a connection between Shuler’s murder and the enterprise. The mere use of the word “or” by the district court once during the jury instructions is exactly the type of “artificial isolation” that the Supreme Court rejected in Cupp v. Naughten 414 U.S. at 147, 94 S.Ct. at 400. See supra part HIL.A.2 A 3 2. Violation of 18 U.S.C. § 3432 In any case in which a federal defendant is charged with a Capital offense, at least three days before the commencement of trial, the prosecution must furnish the defendant with a copy of the indictment, a list of the veniremen and a list of the witnesses to be produced at the trial. 18 U.S.C. § 3432. On March 5, 1991 the government provided Chandler with a witness list. The list was supplemented on March 15, 199] The list did not include the name of Tim Whatley, a witness called by the prosecution. Whatley, an Anniston, Alabama, police fficer, testified that in a search of Chandler's home he seized a piece of paper with the words “Bill Broome” and “copy of police report” on it Chandler contends that Whatley was improperly allowed to testify in violation of Section 3432. Chandler did not object when the government called Whatley as a witness, and objected to the admission of the piece of paper only on the grounds of “relevancy, materiality, and identification.” RXI-36. Therefore we review for plain error We first determine whether an error occurred and whether it was plain. The failure to include Whatley on the witness list was a technical violation of Section 3432, and it was an obvious error Because this is an error that does not undermine the basic reliability of the trial process, Chandler must demonstrate that the error affected the outcome of the case. Chandler cites United States v. Crowell, 442 F.2d 346, 34% (Sth Cir. 1971). In Crowell, the prosecution in a capital case did not provide the defendant with a list of the veniremen. The court held that “Section 3432 is mandatory, and a defendant indicted for a capital offense must be given the benefits of its provisions, and the failure to allow defendant its benefits would be plain error.” /d. at 348 (citation omitted).® The Crowell court relied on two cases: Amsler v. United States, 381 F.2d 37 (9th Cir. 1967), and Logan V. United States. A439 We find that Crowell is distinguishable and that Chandler has not demonstrated that the error affected the outcome of his case Chandler assigns as error the tesumony Of one police officer that the prosecution used to establish the chain of custody for the introduction of a piece of evidence. The officer's testimony was in no other respect important. Chandler makes no claim that his Gelense was in any way prejudiced by the failure to include Whatley’s name on the government's witness list or that he was unaware that the government would attempt to introduce the piece Ol paper as evidence. Indeed, the government made the piece of paper available to Chandler pursuant to Fed. R. Crim. P 16(a)(1)(C). Whatley had also written his name on the paper when it was seized. Thus, the purpose of Section 3432 as described in Logan was fulfilled because the defense was made aware that the the murder of government would attempt to link Chandler t Shuler in part through the piece of paper. Under the circumstances Of this case, we find that the calling of W hatley as a4 witness for the government did not affect the outcome of Chandler's case 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892). overruled by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Amsler, the prosecution in a Capital case failed to provide the defendant with a list of either the veniremen or the prosecution's witnesses. In Logan, the government failed to provide the defendant with a list of witnesses. The Supreme Court in Logan stated that the predecessor statute to Section 3432 was “mandatory” and that “its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense.” 144 U.S. at 304, 94 S.Ct. at 630. We further note that even had this error affected the outcome, the error does not seriously affect the fairness, integrity or public reputation of judicial proceedings, and we would not exercise Our discretionary power to correct it. See Olano. U.S. at , 113 S.Ct. at 1779 A40) 3. Lesser included offense Chandler challenges the absence of an instruction to the jury that it could find Chandler guilty of the lesser included offense of the use of interstate commerce facilities in the commission of a murder for hire, 18 U.S.C. § 1958, an offense that does not carry the possibility of a death sentence. Chandler did not request the lesser included offense instruction and did not object to the district court’s omission of such an instruction The government may not statutorily preclude a defendant from seeking a lesser included offense instruction, if the evidence could support a finding of guilt on the lesser offense. Bech v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) We have interpreted Beck as granting a defendant, who faces the possibility of a death sentence, the constitutional right to have a lesser included instruction read to the jury. Rembert v. Dugger, 842 F.2d 301, 303 (llth Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 500, 102 L.Ed.2d 536 (1988). In both Beck and Rembert, the defendant requested that the district court give a lesser included offense instruction. Here no such request was made The Court has also held that “{ajlthough the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, there may well be cases in which the defendant will be confident enough that the State has not proved capital murder that he will want to take his chances with the jury.” Spaziano, 468 U.S. at 456, 104 S.Ct. at 3160 Other circuits have held that when a defendant fails to request a lesser included offense instruction in a capital case, the district court does not err in failing to instruct on the lesser included offense. Kubat v. Thieret, 867 F.2d 351, 365-66 (7th Cir.), cert denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989) Look vy. Amaral, 725 F.2d 4, 8-9 (1st Cir. 1984). We agree with the holding in Kubat that requiring a district court to give a lesser included offense instruction might be at odds with the trial strategy of defense counsel. Trial judges should be sensitive to and respectful of such difficult decisions made by counsel. Accordingly, we find that because Chandler did not request an instruction or object to the omission of an A4] instruction for the lesser included offense of murder for hire. 1 istrict court did not err by failing to give such an instruction su ; 4. The offense in Count Three of the indictment Chandler argues that his conviction under Count Three « f tl ndictment 1s invalid because Section &4&(e) does not define ar llense. instead, Chandler submits that Section 848(e) is mere! A senmlencing provision that authorizes the death penalty wit! cribing conduct The Fifth Circuit has squarely rejected this argument. and th asoning of that court is persuasive. United State Villarrea 63 F.2d »S »7-2%8 Sth Cir rejectin claim tha section 848(e)(1)(B) does not define an offense). cert. denied U.S , 113 S.Ct. 353, 121 L.Ed.2d 267 (1997 secuion 848 (e) sets forth the elements of the crime (any person ‘Neaged in a conunuing criminal enterprise who procures the intenuonal killing of an individual), the mens rea (intent), and separate penalty (20 years imprisonment to life, or the deat! penalty). similarly, the conduct proscribed in Section &48(e) is referred to as an offense in subsections (g), (h), (i), (j), (n), and p). We tind Chandler's argument without merit 5. Appointment of additional counsel Chandler challenges the district court's failure to inform him of his right to have a second attorney appointed on his behalt pursuant to either 18 U.S.C. § 3005 or 21 U.S.C. & $48(q)(4). The lime sequence of events in this case foreclose Chandler's claims On December 13, 1990, the original indictment. which did not contain a capital charge against chandler, was returned. On December 20, 1990, the district court appointed counsel to represent Chandler. On January 7, 1991, L. Drew Redden entered his appearance as retained attorney of record for Chandler. The We do not reach the issue of whether a vi Nation of IS U.S.C. § 1958 is a lesser included offens: of t& U.S.( } B ’ (Char i j ; 7 C. Guilt Phase Challenges I Admission of evidence concerning threats towards, a disappearance of, Burrows and McFry j rot. tha ‘ , si s ? hi , P AA , i A} i p ) r ni | r rar j ,U JING}? lia ' yr r r | - +? , nnas ( hand i J ynaro ce ne ) ? , | 4 Fed. R. I 1. 404 Vlg. 4 a + , va , r t? tt? r ’ 1 Ji al sO rt } ttamn ‘ / alten] J i +} + ; ; i i \ J } j sa - _ - ae | — > = a — -_ x “ -+ ~+ eit >» + , Lif ' " . : { i } } ' R { ; } , aa [ ‘ r ’ ’ | ’ I } ; , \f 1 ’ . ’ . . a m ‘ , f f 11S 49 < . ‘ ; r «PF ’ ’ " : ’ ’ 7 i : ng Chandler i I } I ‘ . } ' Mckt ae , il Va I x Micckry and B 2. Batson challenge Ad] Inclined to disturD a trial judge's exercise of discretion ; ?’ad Slale if Git . 1S F.2d 505, 509 (11th Cir. 1983) hallenging a juror for cause must demonstrate that tion exhibited actual bias by showing either an Kpre igmission Of bias or facts demonstrating such a clos« nection to the present case that bias must be presumed. United Khour 901 F.2d 948, 955 modified, 910 F.2d 7] h Cir, 199 A juror who would automatically vote for the th penalty i T i must be removed for cause hecau fail ymsider the aggravating and mitigating ic} require her to do. Morgan a. Jurors Frye and Landers vu that jurors Fry ind Lander hould ha It use both indicated that they would impose th nenalty if Chand] Vas found guilty. Reading the entirety if responses at voir dire, it does not appear that the distri inused its discretion t Ot Striking these jurors for cau make it Clear that while Frye and Landers wer ne death penaity, they would not automaticall for tl leath penalt f th found Chandler guilty of j that Lander noulid Nia b nrem ] iuse | j Va rheard telling other jurors that “/t}he t off thi is to Say the defendant looks guilty RIV \ithougnh informed of Landers’s remark by the district lefen unsel did not explore the statement during vo re questioning of Landers. The district court held that thi ident did not make it “totally improper” for Landers to ser\ ihe jury and rejected Chandler’s motion to strike Landers for Most jurors are aware that they can avoid jury duty by 1 lacK OF impartiality. The statement does n | mcd ’ wa al ' id }against Chandler. Thus. tl A48 district court did not abuse its discretion in refusing to remove Landers tor cause. b. Juror Tuggle Chandler argues that juror Tuggle should have been excused because he was biased against drug activity. During vor dire, Tuggle stated that he had a son-in-law who was in jail because marijuana and possibly some other articles were found in his son- in-law’s car. The juror’s response to the district court’s questions do not demonstrate that the [sic] Tuggle would be biased against a defendant prosecuted fer marijuana distribution. Therefore, the district court did not abuse its discretion refusing to remove Tuggle for cause. c. Juror Grimes Chandler argues that juror Grimes should have been excused because she would not consider some of the statutory mitigating factors in reaching her conclusion on the appropriateness of sentencing Chandler to death. During voir dire, Grimes stated that she did not have strong feelings towards the death penalty one way or the other. However, she also stated that she did not believe that the defendant's age and past criminal history would affect her recommendation for or against a death sentence. Both of these factors are mitigating factors as defined in Section 848(m). In Morgan, the Supreme Court asserted that: ja]ny juror to whom mitigating factors are likewise irrelevant should be disqualified for cause, for that juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial. __ U.S. at___, 112 S.Ct. at 2235. Grimes’s answers do not raise the primary concern of Morgan; that a juror who would automatically recommend a penalty of death regardless of any mitigating evidence. The statement that she would not consider two of the statutory mitigating factors was made in response to defense counsel's questions and in ignorance of the mandates of Section 848. Jurors are not expected to know the law prior to A49 being properly instructed, More important, Grimes stated that she would follow the district court’s instructions in arriving at her decision. The district court thus did not abuse its discretion in finding that Grimes would be able to follow the court's instructions. In conclusion, we find that the district court did not abuse its discretion in refusing to excuse for cause these four jurors. 4. Recusal denied Chandler argues that the district court erred in denying chandler’s motion for recusal. In an order denying Chandler's pretrial motion to strike the death penalty from the indictment, the district court stated [bjased on the evidence the court has heard during the trial of [Chandler's] codefendants, this court is satisfied that the government has properly exercised prosecutorial discretion in not also seeking the death penalty for [Jarrell]. Jarrell was an alcohoiic lackey for Chandler who for $500, or maybe simply a fifth of liquor, likely would have done anything Chandler directed him to do. RI-201-3., Chandler suggests that this holding demonstrates that the district court’s lack of impartiality and the necessity of recusal. We review the district court’s denial of a motion to recuse for an abuse of discretion. McWhorter v. City of Birmingham, 906 F.2d 674, 678 (Ilth Cir. 1990) (per curiam). A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The test under Section 455(a) is whether an objective, disinterested, lay observer fully informed of the facts on which recusal was sought would entertain a significant doubt about the judge's impartiality. Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (llth Cir. 1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989). However, we have held that a “judge's bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by ASO participating in the case.” McWhorter, 906 F.2d at 678. Likewise, a judge's rulings in a related case may not ordinarily serve as the basis for recusal. /d. There is an exception to this general rule when the movant demonstrates pervasive bias and prejudice. /d. In his order denying Chandler's motion, the district judge articulated that his comment concerning the relative culpabilities of Jarrell and Chandler was based on the evidence the court had heard during the trials of Chandler's codefendants. This is the only comment cited by Chandler, and the comment was not extrajudicial. Moreover, although Chandler argues that the district judge’s pervasive bias is demonstrated by the admission of evidence of uncharged and unproven crimes, his repeated denials of the defense’s jury instructions, and his imposition of the maximum sentences possible for the non-capital convictions, these decisions are just a few of the many decisions that a district judge is called upon to make in the course of a trial and fail to demonstrate pervasive bias and prejudice. Thus, the district judge did not abuse his discretion in denying Chandler’s motion for recusal. 5. Change of venue and sequestration of the jury Chandler claims that the widespread publicity before the trial prejudiced the jurors in his case. There were 64 articles in five different newspapers during the five months prior to trial. Some of the coverage suggested that Chandler was responsible for the deaths of McFry and Burrows. During voir dire, seven venirepersons stated that they had some knowledge of the case. Of the seven, six said that they would still afford Chandler a fair trial and the seventh did not remember what he had heard about the case. None of the seven were empaneled. The district court’s denial of the motion for change of venue and for sequestration of the jury is reviewed for an abuse of discretion. United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (llth Cir.), cert. denied, ___— U.S. __, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992). Chandler alleges no facts, outside the press coverage mentioned above, showing that any of the jurors had been prejudiced by the pretrial publicity. Regarding the sequestration motion, the district court found that the publicity AS] at that point was limited, but reserved the right to reconsider the motion if publicity increased later in the trial. We find that Chandler has not demonstrated that the publicity surrounding the trial was such that the district court abused its discretion in denying Chandler's motions for change of venue and for sequestration of the jury. D. Challenges To Convictions And Sentences On Other Counts 1. Continuing criminal enterprise conviction, Count Two Count Two of the indictment charged Chandler with engaging in a continuing criminal enterprise in violation of Section 848(a) by committing a series of violations of 21 U.S.C. §§ 841, $43(b) and 846. Chandler argues that the district court's instruction erroneously suggested that district court had already determined Chandler's guilt on these charges. Upon review of the district court's charge, we disagree and find that the district court properly instructed the jury as to Count Two. 2. Conspiracy conviction, Count One Chandler argues, and the government concedes, that his conspiracy conviction should be vacated. When a defendant is convicted and sentenced on a Section 846 conspiracy count and a Section 848 continuing criminal enterprise count, the two offenses are merged by vacating the conviction and sentence of the lesser included Section 846 conspiracy. United States v. Nixon, 918 F.2d 895, 908 (11th Cir. 1990). We have sustained Chandler’s continuing criminal enterprise conviction and, therefore, vacate Chandler's conspiracy conviction and sentence. 3. Firearms conviction, Count Four Count Four charged Chandler with aiding and abetting the use or Carrying of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c). Chandler argues that there was insufficient evidence to support the jury’s guilty verdict. Sufficiency of the evidence is a question of law subject to de novo review. United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989) (per curiam). This court must view the evidence in the AS2 light most favorable to the government and determine whether a reasonable jury could have found defendant guilty beyond a reasonable doubt. United States v. Crawford, 906 F.2d 1531, 1535 (11th Cir. 1990). To prove a 18 U.S.C. § 924(c) violation, possession of the firearm must be an integral part of, and facilitate the commission of, the drug trafficking offense. Poole, 878 F.2d at 1393. At trial the government introduced evidence that Chandler recruited Raymond Pointer to transport marijuana from Piedmont, Alabama, to Anniston, Alabama, and provided Pointer with a car for that purpose. Pointer made three or four trips to Anniston. The prosecution then engaged in the following examination: Q. Okay. And did you after you picked up this Oldsmobile, did you make any runs from Piedmont to Anniston with this Oldsmobile? A. Yes, sir. Q. Okay. Now, did you have an occasion on these runs to receive anything else from Ronald Chandler to keep with you on these runs? A. Just that gun. Q. Did he give you a gun? A. Yes, Sir. Q. When did he give you a gun, as best you can recall? A. I think it was two, maybe three days after he give me the Car. RVII-71-72. Considering the testimony in its context, we find that there was sufficient evidence to support the Chandler's conviction on the firearm charge. The evidence, viewed in a light most favorable to the government, shows that Chandler gave Pointer a gun when Pointer was given the marijuana to transport to Anniston. A reasonable jury could have found beyond a reasonable doubt that the possession of the firearm was an integral part of, and facilitated, the drug trafficking, particularly AS3 in the context of other, substantial testimony at trial regarding the on-going criminal enterprise. 4. Money laundering, Count Seven Chandler challenges the district court's instruction to the jury on Count Seven and seeks the reversal of his conviction. Count Seven charged Chandler with money laundering through the purchase of real estate in Cleburne County, Alabama. Count Eighi charged Chandler with money laundering through the purchase of real estate in Calhoun County, Alabama. Chandler argues that the court charged the jury twice on Count Eight and did not charge the jury on Count Seven. During the jury instructions, the district court incorrectly Stated that the property charged in Count Seven was located in Calhoun County, Alabama. Shortly thereafter, the court correctly Stated that the property was located in Cleburne County. The district court also instructed the jury that Count Eight was “an identical-type offense as Count Seven” except that the date was different and the property in Count Eight was “in Calhoun County rather than Cleburne County.” Significantly, the district court gave the jury a copy of the indictment, which accurately identified the property locations. Chandler failed to object to the district court’s instruction. Hence, the district court’s error is reviewed for plain error. Given the district court’s subsequent correct statement of the property's location and the fact that the jury received a copy of the indictment, the district court's instruction was not erroneous. 5. Money laundering, Counts Eight and Nine Chandler contends that the evidence was insufficient to support the money laundering charges in Counts Eight and Nine. Counts Eight and Nine charged Chandler with money laundering through the purchases of two pieces of real estate. Both convictions are reviewed for sufficiency of the evidence under the Standard set forth above. The evidence at trial showed that Chandler’s parents held the titles to both parcels. With respect to Count Eight, the AS4 government introduced evidence that Chandler paid taxes on the property and discussed drainage problems with municipal officials concerning the land. With respect to Count Nine, the government introduced evidence that, although his father paid the money to the sellers and received title to the land, Chandler stated that he had purchased the 120 acres. The evidence also showed that Chandler exercised control over the two properties by growing and cultivating marijuana on the properties and by having others guard the tracts. Viewed in the light most favorable to the government, there was sufficient evidence to support the jury's finding, beyond a reasonable doubt, that Chandler laundered money through purchasing the two real estate parcels. 6. Sentencing on the non-capital counts Chandler first argues that we must remand the case to the district court for resentencing because the district court failed to afford him a sufficient opportunity to object to the sentence as required under United States v. Jones, 899 F.2d 1097, 1102-03 (lith Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990). However, after imposing the sentences, the district court specifically asked counsel if there were any Objections other than those that had been raised during the sentencing hearing. Chandler's claim is without merit. Chandler also argues that the district court improperly calculated his offense level on the conspiracy and continuing criminal enterprise counts. Since we have vacated Chandler's conviction on the conspiracy count, we address only the challenge to the criminal enterprise sentence. At sentencing, the district court adopted the presentence report’s recommendation for the offense level on the continuing criminal enterprise counts. The report noted that the offense level for these counts is 38. U.S.S.G. § 2D1.5. However, the report stated that the offense level should be adjusted to take into account relevant conduct with respect to the enterprise pursuant to Section 1B1.3. The relevant conduct was the murder of Shuler. Thus, as Section 2Al.1(a) assigns an offense level of 43 to first degree murder, Chandler’s offense level was fixed at 43, resulting in a life sentence. insects ASS Chandler contends that the district court's computation resulted in the double counting of Shuler’s murder, once in the continuing criminal enterprise count and again as the basis for the death sentence under the Section 848(e) count, Count Three. Under the circumstances of this case, we do not reach the merits of Chandler's claim. He faces a sentence of death on Count Three, and the life sentence on Count Two adds no further punishment. Finally, Chandler argues that the district court erred in holding that the drug activity encompassed in the conspiracy and continuing criminal enterprise counts included more than 3,000 but less than 10,000 marijuana plants. We review the district court's findings of fact under the clearly erroneous standard. United v. Howard, 923 F.2d 1500, 1503 (11th Cir. 1991). During the trial, witnesses testified that Chandler planted several thousand marijuana plants. A notebook seized from a co- conspirator and Chandler's own statement also supported the finding that Chandler planted more than 3,000 marijuana plants. Thus, the district court's finding that Chandler cultivated more than 3,000 marijuana plants was not clearly erroneous. IV. CONCLUSION We VACATE Chandler's conviction and sentence for conspiracy, Count One, because the count merges into the continuing criminal enterprise conviction, Count Two. We AFFIRM Chandter’s convictions and sentences on Counts Two through Nine, including his death sentence. EDMONDSON, Circuit Judge, concurs in the result. UNITED STATES of America, Plaintiff-A ppellee, David Ronald CHANDLER, a/k/a Ronnie Chandler, Defendant-Appellant. Nos. 91-7466, 91-7577. United States Court of Appeals, Eleventh Circuit. Sept. 30, 1993. Appeal from the United States District Court for the Northern District of Alabama; James Hughes Hancock, Judge. Betore FAY, EDMONDSON and BIRCH, Circuit Judges. BY THE COURT: Appellee’s, United States of America, motion for modification of the panel’s opinion is GRANTED. On page 2720 of the slip Opinion, the second sentence of the first full paragraph of the second column [996 F.2d 1073, on page 1095, the second sentence of the last paragraph of the second column]: “Thus, Congress must enact such a statute before Chandler may be executed” is hereby stricken. Adm. Office, U.S. Courts--West Publishing Company, Saint Paul, Minn AS7 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Nos. 91-7466 and 91-7577 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID RONALD CHANDLER, a/k/a Ronnie Chandler, Defendant-Appellant. On Appeal from the United States District Court for the Northern District of Alabama ON PETITION(S) FOR REHEARING AND SUGGESTION(S) OF REHEARING EN BANC Before: FAY, EDMONDSON and BIRCH, Circuit Judges. PER CURIAM: (%) The Petition(s) for Rehearing are DENIED and no member of this panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are DENIED. ( ) The Petition(s) for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are also DENIED. AS ( ) Amember of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor of it, Rehearing En Banc is DENIED. ENTERED FOR THE COURT: UNITED STATES CIRCUIT JUDGE ORD-42 (9/91) [Filed Sept. 30, 1993] AS9 UNITED STATES DISTRICT COURT Northern District of Alabama UNITED STATES OF AMERICA v. Case Number CR 90-H-266-E DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Defendant. JUDGMENT IN A CRIMINAL CASE (For Offenses Committed On or After November 1, 1987) The defendant, DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER, was represented by L. Drew Redden. The defendant was found guilty on count three after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count, involving the following offense: Date Offense Count Tile & Section Nature of Offense Concluded Number(s) 21 USC 848/e)(1)(A) Continuing criminal enterprise embracing procurement 10/1/90 3 of the killing of an individual As pronounced on May 14, 1991, the defendant is sentenced as provided in page 2 of the Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. The sentence is also imposed pursuant to 21 USC 84x. including particularly 848(1). It is ordered that the defendant shall pay to the United States a special assessment of $50.00 for count three, which shall be due immediately. Signed this the 14th day of May, 1991. United States District Judge Defendant's SSAN: 423-80-9130 Defendant's Date of Birth: 12/19/52 Defendant's address: Route 2, Box 473-E, Piedmont, AL 36272 A60) Judgment ~— Page 2 of 2 Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Case Number: CR 90-H-266-E SENTENCE Based upon the Special Findings and Recommendations of the jury on April 3, 1991, under Count 3, the court hereby imposes upon the defendant a sentence of death. The defendant will be remanded to the custody of the Bureau of Prisons with directions to cause such death sentence to be implemented. Implementation of such sentence 1s hereby STAYED unul such stay is lifted by an order of this court, or by the United States Court of Appeals for the Eleventh Circuit or by the United States Supreme Court. The filing of a nouce of appeal shall also terminate such stay, but the stay provided for in F.R.Cr.P. Rule 38(a) shall become effective. The court declines to impose a fine due to the defendant's inability to pay. RETURN I have executed this Judgment as follows: Defendant delivered on to al , with a certified copy of this Judgment. United States Marshal By Deputy Marshal A6ol UNITED STATES DISTRICT COURT Northern District of Alabama UNITED STATES OF AMERICA v. Case Number CR 90-H-266-E DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Defendant. JUDGMENT IN A CRIMINAL CASE (For Offenses Committed On or After November 1, 1987) The defendant, DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER, was represented by L. Drew Redden. The defendant was found guilty on count(s) 1, 2, 4, 5, 6, 7, 8 and 9 after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count(s), involving the following offense(s): Date Offense Count Title & Section Nature of Offense Concluded Number(s) 21 USC 846 Drug conspiracy or attempt to distribute controlled 10/90 1 substance 21 USC 841(a)(1) ~ Schedule | (manjuana). controlied substance - Schedule! (marjuana) 21 USC 848 Controlled sub. - Sch. | (manjuana), continuing cnminal 10/90 2 enterprise 18 USC 924(c)(1) Firearms - used to commit offense 5/90 4&5 18 USC 1956(a)(1)(A) Laundering of monetary instruments 3/90 6 18 USC 1956(a)(1)(B)(i) | Laundering of monetary instruments 10/89 7,889 As pronounced on May 14, 1991, the defendant is sentenced as provided in pages 2 through 4 of this Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. It is ordered that the defendant shall pay to the United States a special assessment of $50.00 for each of count(s) 1, 2, 4, 5, 6, 7,8 and 9, for a total of $400.00, which shall be due immediately. It is further ordered that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this Judgment are fully paid. Signed this the 14th day of May, 1991. United States District Judge Defendant’s SSAN: 423-80-9130 Defendant's Date of Birth: 12/19/52 Defendant's address: Route 2, Box 473-E, Piedmont, AL 36272 A62 Judgment — Page 2 of 4 Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Case Number: CR 90-H-266-E IMPRISONMENT The defendant is hereby committed to the custedy of the United States Bureau of Prisons to be imprisoned for “ne balance of the defendant's life, under Count 2; said sentence to run CONCURRENTLY with any custody served under, or in connection with the separate sentence imposed under Count 3. Under Count |, the defendant is to be imprisoned for the balance of the defendant's life; said sentence to run CONCURRENTLY with any custody served under, or in connection with the sentences imposed under Counts 2 and 3. Under Counts 6, 7, %, and 9, SIX (6) YEARS custody, to run CONCURRENTLY with any custody served under, or in connection with the sentences imposed under Counts |, 2 and 3. Under Count 4, FIVE (5) YEARS custody, to run CONSECUTIVELY to any custody served under, or in connection with the sentences imposed under Counts 1, 2, 3, 6, 7, 8 and 9. Under Count 5, FIVE (5) YEARS custody, to run CONSECUTIVELY to any custody served under, or in connection with the sentences imposed under Counts 1, 2, 3, 4, 6, 7, 8 and 9. RETURN I have executed this Judgment as follows: Detendant delivered on to al , with a certified copy of this Judgment. United States Marshal By Deputy Marshal A63 Judgment — Page 3 of 4 Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Case Number: CR 90-H-266-E SUPERVISED RELEASE Upon release from the custodial portion of the sentences imposed under Counts 1, 2, 4, 5, 6, 7, 8 and 9, the defendant shall be on supervised release for a term of FIVE (5) YEARS. While on supervised release, the defendant shall not commit another federal, state, or local crime; shall not illegally possess a controlled substance; shall comply with the standard conditions that have been adopted by this court (set forth below); and shall comply with the following additional conditions: |. If ordered to the custody of the Bureau of Prisons, the defendant shall report in person to the probation office in which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. 2. If this judgment imposes a fine, special assessment, costs, or restitution obligation, it shall be a condition of supervised release that the defendant pay any such fine, assessments, costs, and restitution that remain unpaid at the commencement of the term of supervised release. 3. The defendant shall not own or possess a tirearm or destructive device. - CONTINUED - A64 Judgment — Page 3 of 4 Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Case Number: CR 90-H-266-E 10. STANDARD CONDITIONS OF SUPERVISION While the defendant is on supervised release pursuant to this Judgment: The defendant shall not leave the judicial district without the permission of the court or probation officer. The defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month. The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer. The defendant shall support his or her dependents and meet other family responsibilities. The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons. The defendant shall notify the probation officer within seventy-two hours of any change in residence or employment. The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute or administer any narcotic or other controlled substance, or any paraphernalia related to such substances. The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered. The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer. The defendant shall permit a probation officer to visit him or her at any time at home or eisewhere and shall permit confiscation of any contraband observed in plain view by the probation officer. The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer. The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court, As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notufications and to confirm the defendant's compliance with such notification requirement. A65 Judgment — Page 4 of 4 Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER Case Number: CR 90-H-266-E STATEMENT OF REASONS The court adopts the factual findings and guideline application in the presentence report. Guideline Range Determined by the Court: To Offense Level: 43 Criminal History Category: Imprisonment Range: Life Supervised Release Range: 5 years Fine Range: $ 25,000.00 to $ 4,000,000,00 Restitution: $ 0 The court declines to impose a fine due to the defendant's inability to pay. The sentence imposed under Counts 1, 2, 4, and 5 is the guideline sentence. The sentence imposed under Counts 6, 7, 8 and 9 is within the guideline range. = A66 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION UNITED STATES OF AMERICA ) VS. CRYO-H-266-E DAVID RONALD CHANDLER, A/K/A_) RONNIE CHANDLER ORDER Pursuant to the April 19, 1991 order the April 8, 199] motions of David Ronald Chandler for a new trial and for a new trial on the penalty phase under Count Three are now under submission. The motion for new trial raises numerous grounds in twenty- six separately numbered paragraphs. Only the grounds embodied in paragraphs 10, 11, 12 and 26 need be discussed. The remaining grounds either raise matters which have earlier been argued to and rejected by the court or raise matters which have no merit and the reasons for rejecting them are self-evident.! Those four grounds are bottomed upon Batson v. Kentucky, 476 U.S. 74 (1986) and Powers v. Ohio, ___ U.S. ___ (No. 89-5011, April 1, 1991). Batson teaches that a defendant's right to equal protection proscribes purposeful racial discrimination in jury selection. And Powers teaches that this right belongs to a defendant even though the defendant and the excluded juror do not share the same race. A trial court is not required to demand ex mero motu from the government a nondiscriminatory explanation for the exercise of each peremptory challenge. Rather a defendant is required to raise the issue and establish a prima facie case of purposeful discrimination before the prosecution is required to provide a Paragraph 22 adopts all grounds embraced in the separate mouon for new trial on the penalty phase under Count Three. That motion will be treated separately in this order. A67 racially neutral explanation for the allegedly discriminatory challenge. In this case the defendant never raised a Batson issue at any time prior to the filing of his motion for new trial and certainly never established a prima facie case of purposeful discrimination during the jury selection process. The holding in Powers is not novel and is, at most, a logical extension of Batson and Swain v. Alabama, 380 U.S. 202 (1965). The concept has heen the subject of a number of decisions of federal appeals courts, and the January 22, 1990 opinion in Holland v. Illinois, 493 U.S. 474 (1990), certainly suggests that the question which Powers answered was a viable, unresolved question as viewed by some of the justices on January 22, 1990. See United States v. Rodriguez, 917 F.2d 1286, 1288 (f.n. 5) (Lith Cir. 1990). Any error associated with the exercise of peremptory challenges in this case does not rise to the level of “plain error” so as to be within the purview of F.R.Cr.P. Rule 52(b). See United States v. Young, 470 U.S. 1 (1985). Defendant has thus waived any objection to the government's exercise of peremptory challenges. United States v. Romero-Reyna, 867 F.2d 834, 836-37 (Sth Cir. 1989) (to he timely a Batson objection must be raised before venire is dismissed and before the trial begins); United States v. Erwin, 793 F.2d 656, 667 (Sth Cir. 1986), cert. denied, 479 U.S. 991 (1986). Also see United States v. Rodriguez, supra. While the striking of any black person for racial reasons violates the Equal Protection Clause even though other blacks are seated as jurors, where, as here, a defendant has waived any Batson challenge it is at least comforting to observe that the twelve seated jurors who decided this case included two black persons. Thus, 16.6% of the jury was black, which is slightly greater than the black-white ratio of this court's pool of qualified jurors from which subject jurors were called. That pool is 15.9% black, 83.0% white and 1.1% other.’ Further the government failed to utilize all its peremptory challenges. Certainly these facts negate any arguable inference that the prosecutor used peremptory challenges to exclude a venire member from the jury on account 2 See the certification of the jury clerk filed April 22, 1991. A68 of his or her race. Without such an inference from the totality of the circumstances surrounding the jury selection, there is no prima facie case of purposeful discrimination. While the court is not required at this time to consider the explanation of the prosecutor contained in his April 29, 1991 affidavit setting forth the reasons for each peremptory challenge of a black venire member,* each reason given certainly reflects a racially neutral explanation of each challenge. Where, as here, it is not shown and cannot fairly be said that racial considerations infected the jury, “it is incumbent upon (a reviewing court) to disregard errors which cannot ultimately affect the outcome of the case.” United States v. Bennett, 928 F.2d 1548, 1553 (f.n. 8) (11th Cir. 1991). In Bennett the court held as harmless error the seating of a juror where the trial court had incorrectly found legitimate the government's articulated reason for exercising a peremptory challenge of a black venire member. Having considered the April 8, 1991 motion for 2 ®e* trial, the motion is DENIED. In the April 8, 1991 separate motion for a new trial on the penalty phase under Count Three, defendant raises several additional grounds, most of which have heretofore been argued to the court either prior to trial (e.g., the March 4, 1991 order addressing the motions to strike and to dismiss) or during the trial and on the record (e.g. during charge conferences and while hearing objections to the court’s charges). Defendant does introduce a new, and rather novel ground. Defendant argues that the mode of implementing a death penalty is an integral component of the sentence itself, and since Congress authorized the imposition of a death penalty without providing the guo modo, there is a “statutory gap” in the legislation authorizing a sentence of death. The court disagrees. Quite clearly, unless and until Congress does provide the quo modo for implementation of the sentence of death, it cannot be implemented. But future legislation bridging the “statutory gap” cannot seriously be argued 3 Defendant is not questioning challenges of white members of the venire based upon their race. A69 as increasing the penalty and will not violate the constitutional prohibition against ex post facto laws. Having also considered the April 8, 1991 motion for a new trial on the penalty phase under Count Three, the motion is DENIED DONE this 30th day of May, 1991 UNITED STATES DISTRICT JUDGI A70 TEXT OF 21 U.S.C. § 848 § 848. Continuing criminal enterprise (a) Penalties; forfeitures Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in section 853 of this chapter; except that if any person engages in such activity after One or more prior convictions of him under this section have become final, he shall be sentenced to a term of imprisonment which may not be less than 30 years and which may be up to life imprisonment. to a fine not to exceed the greater of twice the amount authcrized in accordance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in section 853 of this chapter. (b) Conditions for life imprisonment for engaging in continuing criminal enterprise Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a) of this section if- (1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2)(A) the violation referred to in subsection (d)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or (B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million doliars in gross receipts during any twelve-month period of A7l its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B) of this title. (c) Continuing criminal enterprise defined For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if- (1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter- (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources. (d) Suspension of sentence and probation prohibited In the case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended, probation shall not be granted, and the Act of July 15, 1932 (D.C.Code, secs. 24-203 to 24-207), shall not apply. (e) Death penalty (1) In addition to the other penalties set forth in this section- (A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) or section 960(b)(1) who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and A72 (B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosection or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer's official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death. (2) As used in paragraph (1)(b), the term “law enforcement Officer” means a public servant authorized by law or by a Government agency or Congress to conduct or engage in the prevention, investigation, prosecution or adjudication of an offense and includes those engaged in corrections, probation, or parole functions. (g)' Hearing required with respect to the death penalty A person shall be subjected to the penalty of death for any offense under this section only if a hearing is held in accordance with this section. (h) Notice by the Government in death penalty cases (1) Whenever the Government intends to seek the death penalty for an offense under this section for which one of the sentences provided is death, the attorney for the Government, a reasonable time before trial or acceptance by the court of a plea of guilty, shall sign and file with the court, and serve upon the defendant, a notice- (A) that the Government in the event of conviction will seek the sentence of death; and (B) setting forth the aggravating factors enumerated in subsection (n) of this section and any other aggravating factors which the Government will seek to prove as the basis for the death penalty. A73 (2) The court may permit the attorney for the Government to amend this notice for good cause shown, (i) Hearing before court or jury (1) When the attorney for the Government has filed a notice as required under subsection (h) of this section and the defendant is found guilty of or pleads guilty to an offense under subsection (¢) of this section, the judge who presided at the trial or before whom the guilty plea was entered, or any other judge if the judge who presided at the trial or before whom the guilty plea was entered is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. The hearing shall be conducted- (A) before the jury which determined the defendant's guilt; (B) before a jury impaneled for the purpose of the hearing (i) the defendant was convicted upon a plea of guilty; (ii) the defendant was convicted after a trial before the court sitting without a jury; (iii) the jury which determined the defendant's guilt has been discharged for good cause; or (iv) after initial imposition of a sentence under this section, redetermination of the sentence under this section is Necessary; OF (C) before the court alone, upon the motion of the defendant and with the approval of the Government. (2) A jury impaneled under paragraph (1)(B) shall consist of 12 members, unless, at any time before the conclusion of the hearing, the parties stipulate with the approval of the court that it shall consist of any number less than 12. (j) Proof -f aggravating and mitigating factors Notwithstanding rule 32(c) of the Federal Rules of Criminal Procedure, when a defendant is found guilty of or pleads guilty A74 to an offense under subsection (c) of this section, no presentence report shall be prepared. In the sentencing hearing, information may be presented as to matters relating to any of the aggravating or mitigating factors set forth in subsections (m) and (n) of this section, or any other mitigating factor or any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of this section. Where information is presented relating to any of the aggravating factors set forth in subsection (n) of this section, information may be presented relating to any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of this section. Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge's discretion. Any other information relevant to such mitigating or aggravating factors may be presented by either the Government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Government and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the aggravating Or mitigating factors and as to appropriateness in that case of imposing a sentence of death. The Government shall open the argument. The Defendant shall be permitted to reply. The Government shall then be permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satistied unless established by a preponderance of the evidence. (k) Return of findings The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any aggravating factors set forth in subsection (n) of this section, found to exist. If one of the A75 aggravating factors set forth in subsection (n)(1) of this section and another of the aggravating factors set forth in paragraphs (2) through (12) of subsection (n) of this section is found to exist, a special finding identifying any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of this section, may be returned. A finding with respect to a mitigating factor may be made by one or more of the members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such a factor established for purposes of this subsection, regardless of the number of jurors who concur that the factor has been established. A finding with respect to any aggravating factor must be unanimous. If an gravating factor set forth in subsection (n)(1) of this section 1s found to exist or an aggravating factor set forth in subsection (n)(1) of this section is found to exist but no other aggravating factor set forth in subsection (n) of this section is found to exist, the court shall impose a sentence, other than death, authorized by law. If an aggravating factor set forth in subsection (n)(1) of this section and one or more of the other aggravating factors set forth in section (n) of this section are found to exist, the jury, or it there is no jury, the court, shall then consider whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court, shall recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence. The jury or the court, regardless of its findings with respect to aggravating and mitigating factors, is never required to impose a death sentence and the jury shall be so instructed. ag L no (1) Imposition of sentence Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law. A sentence of death shall not be carried out upon a person who is under 18 years of age at the time the crime A76 was committed. A sentence of death shall not be carried out upon a person who is mentally retarded. A sentence of death shall not be carried out upon a person who, as a result of mental disability- (1) cannot understand the nature of the pending proceedings, what such person was tried for, the reason for the punishment, or the nature of the punishment; or (2) lacks the capacity to recognize or understand facts which would make the punishment unjust or unlawful, or lacks the ability to convey such information to counsel or to the court. (m) Mitigating factors In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider mitigating factors, including the following: (1) The defendant’s capacity to appreciate the wrongfulness of the defendant's conduct or to conform conduct to the requirements of law was. significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge. (2) The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge. (3) The defendant is punishable as a principal (as defined in section 2 of Title 18) in the offense, which was committed by another, but the defendant's participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge. (4) The defendant could not reasonably have foreseen that the defendant's conduct in the course of the commission of murder, or other offense resulting in death for which the defendant was convicted, would cause, or would create a grave risk of causing, death to any person. (5) The defendant was youthful, although not under the age of 18. A77 (6) The defendant did not have a significant prior criminal record. (7) The defendant committed the offense under severe mental or emotional disturbance. (8) Another defendant or defendants, equally culpable in the crime, will not be punished by death. (9) The victim consented to the criminal conduct that resulted in the victim’s death. (10) That other factors in the defendant's background or character mitigate against imposition of the death sentence. (n) Aggravating factors for homicide If the defendant is found guilty of or pleads guilty to an offense under subsection (e) of this section, the following aggravating factors are the only aggravating factors that shall be considered, unless notice of additional aggravating factors is provided under subsection (h)(1)(B) of this section: (1) The defendant- (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury which resulted in the death of the victim, (C) intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim; (D) intentionally engaged in conduct which- (i) the defendant knew would create a grave risk of death to a person, other than one of the participants in the offense; and (ii) resulted in the death of the victim. (2) The defendant Tas been convicted of another Federal offense, or a State offense resulting in the death of a person, for A78 which a sentence of life imprisonment or a sentence of death was authorized by statute. (3) The defendant has previously been convicted of two or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury upon another person. (4) The defendant has previously been convicted of two or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance. (5) In the commission of the offense or in escaping apprehension for a violation of subsection (e) of this section, the defendant knowingly created a grave risk of death to one or more persons in addition to the victims of the offense. (6) The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. (7) The defendant committed the offense as consideration tor the receipt, or in the expectation of the receipt, of anything of pecuniary value. ($8) The defendant committed the offense after substantial planning and premeditation. (9) The victim was particularly vulnerable due to old age, youth, or infirmity. (10) The defendant had previously been convicted of violating this subchapter or subchapter II of this chapter for which a sentence of five or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise. (11) The violation of this title in relation to which the conduct described in subsection (e) of this section occurred was a violation of section 845 of this title. (12) The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim. A79 (o) Right of the defendant to justice without discrimination (1) In any hearing held before jury under this section, the court shall instruct the jury that in its consideration of whether the sentence of death is justified it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or the 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 the victim, may be. The jury shall return to the court a certificate signed by each juror that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or the victim was not involved in reaching his or her individual decision, and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious belicts, national origin, or sex of the defendant, or the victim, may be. (2) Not later than one year from November 18, 1988, the Comptroller General shall conduct a study of the various procedures used by the several States for determining whether or not to impose the death penalty in particular cases, and shall report to the Congress on whether or not any or all of the various procedures create a significant risk that the race of a defendant, or the race of a victim against whom a crime was committed, influence the likelihood that defendants in those States will be sentenced to death. In conducting the study required by this paragraph, the General Accounting Office shall- (A) use ordinary methods of statistical analysis, including methods comparable to those rule admissible by the courts in race discrimination cases under title VII of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e et seq. ]; (B) study only crimes occurring after January 1, 1976; and (C) determine what, if any, other factors, including any relation between any aggravating or mitigating factors and the race of the victim or the defendant, may account for any A&O evidence that the race of the defendant, or the race of the victim, influences the likelihood that defendants will be sentenced to death. In addition, the General Accounting Office shall examine separately and include in the report, death penalty cases involving crimes similar to those covered under this section. (p) Sentencing in capital cases in which death penalty is not sought or imposed If a person is convicted for an offense under subsection (c) of this section and the court does not impose the penalty of death, the court may impose a sentence of life imprisonment without the possibility of parole. (q) Appeal in capital cases; counsel for financially unable defendants (1) In any case in which the sentence of death is imposed under this section, the sentence of death shall be subject to review by the court of appeals upon appeal by the defendant. Notice of appeal must be filed within the time prescribed for appeal of judgment in section 2107 of Title 28. An appeal under this section may be consolidated with an appeal of the judgment of conviction. Such review shall have priority over all other cases. (2) On review of the sentence, the court of appeals shall consider the record, the evidence submitted during the trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under this section. (3) The court shall affirm the sentence if it determines that- (A) the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; and (B) the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to find, any mitigating factors as set forth or allowed in this section. AS] In all other cases the court shall remand the case for reconsideration under this section. The court of appeals shall state in writing the reasons for its disposition of the review of the sentence. (4)(A) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or become financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services al any time either- (i) before judgment, or (ii) after the entry of a judgment imposing a sentence ol death but before the execution of that judgment; shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9). (B) In any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9). (5) If the appointment is made before judgment, at least one attorney so appointed must have been admitted to practice in the court in which the prosecution is to be tried for not less than five years, and must have had not less than three years experience in the actual trial of felony prosecutions in that court. (6) If the appointment is made after judgment, at least one attorney so appointed must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases. (7) With respect to paragraphs (5) and (6), the court, for good cause, may appoint another attorney whose background, A&2 knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation. (8) Unless replaced by similarly qualified counsel upon the attorney's Own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications,” for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate mouons and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant. (9) Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore, under paragraph (10). Upon a finding that timely procurement of such services could not practicably await prior authorization, the court may authorize the provision of and payment for such services nunc pro tunc. (10) Notwithstanding the rates and maximum limits generally applicable to criminal cases and any other provision of law to the contrary, the court shall fix the compensation to be paid to attorneys appointed under this subsection and the fees and expenses to be paid for investigative, expert, and other reasonably necessary services authorized under paragraph (9), at such rates Or amounts as the court determines to be reasonably necessary to carry out the requirements of paragraphs (4) through (9). A83 (r) Refusal to participate by State and Federal correctional employees No employee of any State department of corrections or the Federal Bureau of Prisons and no employee providing services to that department or bureau under contract shall be required, as a condition of that employment, or contractual obligation to be in attendance at or to participate in any execution carried out under this section if such participation is contrary to the moral or religious convictions of the employee. For purposes of this subsection, the term “participation in executions” includes personal preparation of the condemned individual and the apparatus used for execution and supervision of the activities of other personnel in carrying out such activilies. (Pub. L. 91-513, Title Il, § 408, Oct. 27, 1970, 84 Stat. 1265; Pub. L. 98-473, Title II, §§ 224(b), 305, Oct. 12, 1984, 98 Stat. 2030, 2050; Pub. L. 98-473, § 224(b), formerly § 224(c), as amended Pub. L. 99-570, Title I, § 1005(b)(2), Oct. 27, 1987, 100 Stat. 3207-6; Pub. L. 99-570, Title I, §§ 1252, 1253, Oct. 27, 1986, 100 Stat. 3207-14, 3207-15; Pub. L. 100-690, Titles VI, VII, §§ 6481, 7001, Nov. 18, 1988, 102 Stat. 4382, 4387, 4388.) ' So in original. ., ~ . . . “ So in original. The comma probably should not appear here. A&4 FEDERAL DEATH PENALTY PROSECUTIONS, 1988-93 David Bruck Federal Death Penalty Resource Counsel Project (803) 765-1044 December 8, 1993 Following enactment of the first modern federal death penalty statute on November 18, 1988, 21 U.S.C. § 848(e)-(q) (the so- called “drug kingpin” murder provision), the Bush and Clinton Administrations have approved death penalty prosecutions under § 848 against 30 defendants. Of these, four defendants were white, four were Hispanic, and twenty-two were black. All nine of the prosecutions approved or announced as capital cases since Attorney General Reno took office involve African-American defendants. Federal capital cases tried to date Thus far, the Government has brought to trial a total of eight capital prosecutions, involving fourteen defendants, throughout the nation. Another seven cases (and a total of eleven defendants) are currently awaiting trial, and the death penalty has been dropped prior to trial against five defendants. The federal death penalty cases brought to trial during 1989-1993 by the Bush and Clinton Administrations are listed below: * A white Alabama marijuana grower named Ronald Chandler, was sentenced to death for the murder for hire of a subordinate in his drug ring. Chandler’s convictions and death sentence were affirmed by a panel of the Eleventh Circuit July 19, 1993: a petition for rehearing to the full court of appeals is pending. Claiming innocence, Chandler refused a pretrial plea bargain offer for life without possibility of parole. United States v. David Ronald Chandler, Nos. 91-7466 & 7577 (11th Cir. July 19, 1993). A85 Three of four young black inner-city gang members in Richmond, Virginia, were sentenced to death on February 16, 1993, for their roles in eleven crack-related murders. United States v. Tipton et al., 3-92-CR68 (E.D. Va.). The trial of a fourth defendant, Vernon Thomas, was severed. On April 23, 1993, moments before a scheduled hearing on Mr. Thomas’s motion to bar the death penalty due to his mental retardation, the government withdrew its request for the death penalty. Mr. Thomas was ultimately convicted and sentenced to life imprisonment. A Hispanic drug distributor was sentenced to death by a jury on August 2, 1993 in Brownsville, Texas, in connection with the murders of three other drug traffickers in the Brownsville area. United States v. Juan Raul Garza, No. CR 93-0009 (S.D. Tex.). Attorney General Barr authorized the prosecution to seek the death penalty in December, 1992. Two Hispanic defendants in Texas were sentenced to life imprisonment and forty years, respectively, for the marijuana-related murder of a state police officer after a joint trial. The sentencing jury found no facts legally warranting the death penalty. United States v. Reynaldo & Baldemar Villarreal No. 9:91CR4 (E.D. Tex. 1991), aff'd, 963 F. 2d 725 (Sth Cir.), cert. denied, 113 S. Ct. 353 (1992). Two black Chicago gang members received life sentences for cocaine-related murders after separate trials. The Government had offered one defendant, but not the other, a plea bargain prior to trial. United States v. Alexander Cooper & Anthony Davis, No. 89-CR-O580 (N.D. Il. 1991). A white Mafia contract killer received a life sentence from a Brooklyn, New York jury after being convicted of eight murders, three of which qualified as capital crimes under 21 U.S.C. § 848. United States v. Pitera, 795 F. Supp. 546 (E.D.N.Y. 1992). A&6 * A young black New Jersey gang member committed suicide during his federal capital trial. United States v. Bilal Pretlow, No. 90-CR-238 (D.N.J.). * Two white and one Hispanic defendants were tried jointly in connection with the drug-related kidnap/murder of a Muskogee, Oklahoma auto dealership employee. United States v. Hutching et al., No. CR-032-S (E.D. Okl.). The two capitally-charged “managers” of the drug enterprise received life sentences from the jury, while the lowest- level defendant, John McCullah (who, unlike the bosses, had been present at the killing) was sentenced to death on March 23, 1993, The 1992 upsurge in federal death cases Between the beginning of 1992 and January 20, 1993, seven new prosecutions involving fourteen capital defendants were authorized by Attorney General Barr. This amounts, in one (Presidential campaign) year, to a six-fold increase over the 1989-1991 rate of federal capital authorizations under § 848. Federal capital prosecutions still awaiting trial In addition to the tour-defendant Virginia case, the three- defendant Oklahoma case, and the single-defendant Texas case mentioned above, the capital prosecutions initiated since early 1992 involve indictments charging: * two black New Orleans inner-city gang members, in connection with an allegedly drug-related murder. United States v. Green & Brown, E.D. La. No. 92-46. On November 24, 1992, the Government dropped its request for the death penalty in this case. * one black Tampa, Florida drug distributor, for having allegedly ordered a murder in retaliation for the theft of drugs. United States v. Mathis, (M.D. Fla. No. 91-301- CR-T-17(A)). Trial is set in this case for February, 1994. * one black Atlanta drug distributor in connection with three murders. United States v. Williams, No. 1:92-CR- 142 (N.D. Ga.). No trial date is set as yet. A&7 * two black crack cocaine dealers in Macon Georgia, in connection with the murders of two other crack dealers. United States v. Tony Chatfield and Arleigh Carrington, (M.D. Ga. No. 92-82MAC-WDO). Attorney General Barr authorized this death prosecution in his last week in office. On December 6, 1993, the government dropped its request for the death penalty against these two defendants. The Federal Death Penalty Resource Counsel Project is aware of four cases, involving nine defendants, in which the death penalty is reported to have been authorized by Attorney General Reno, of announced since she took office. All nine defendants are African-American, and three of the four cases have been e ‘ ‘ . ; ’ . : ‘ . ~~ ath brought in jurisdictions (New York, Michigan, and the District a of Columbia) which do not have capital punishment statutes. The cS Cases are: © United States v. Darrvl Johnson, (W.D.N.Y. Cr. No. 92-159-C-S), involving two alleged cocaine-related killings by a Buffalo, New York group. ¢ United States v. Wayne Anthony Perry (D.C.D.C. No. 92-CR-474), an alleged hitman for a D.C. cocaine distribution ring; eight homicide counts. * United States v. Reginald Brown et al., (E.D. Mich. Cr. No. 92-81127). This case reportedly involves six death authorizations against members of a cocaine distribution organization alleged to be responsible for a total of twelve murders over a 4-year period. The initial authorization occurred during the Bush Administration, but the authorizations were not announced until June, 1993. Only three of the six defendants against whom the death penalty has been authorized are currently in custody. One defendant, Terrence Brown, has been found dead, apparently a homicide victim. ¢ United States v. Michael Murray, (M.D. Pa. Cr. No. 1:CR-92-200), involves the killing of a Harrisburg drug dealer by a gang headed by one Jonathan Bradley. ASS DOJ reportedly declined to approve the U.S. Attorney's request to authorize the death penalty against Bradley, who allegedly ordered the killing, and against another participant in the shooting, Emmanuel S. Harrison A&9 June 10, 1988 CONGRESSIONAL RECORD— S 2455 SENATE “Return of Findings “(k) The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any aggravating factors set forth in subsection (n), found to exist. If one of the aggravating factors set forth in subsection (n)(1) and another of the aggravating factors set forth in paragraphs (2) through (12) of subsection (n) is found to exist, a special finding identifying any other aggravating factor may be rurned [sic]. A fiing [sic] with respect to a mitigating factor may be made by one or more members of the jury, and any member of the jury who finds the existence of 4 mitigating factor may consider such a factor established for purposes of this subsection, regardless of the number Of jurors who concur that the factor has been established. A finding with respect to any aggravating factor must be unanimous. If an aggravating factor set forth in subsection (n)(1) is not found to exist or an aggravating factor set forth in subsection (n)(1) is found to exist but no other aggravating factor set forth in subsection (n) is found to exist, the court shall impose a sentence, other than death, authorized by law. If an aggravating factor set forth in subsection (n)(1) and one or more of the other aggravating factors set forth in subsection (n) are found to exist, the jury, or if there is no jury, the court, shall then consider whether the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court, shall return a finding as to whether a sentence of death is justified.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1704%3A2. Public record. Not legal advice.