PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 14-9003 

_____________ 

 

UNITED STATES OF AMERICA 

 v. 

 KABONI SAVAGE, 

 a/k/a Joseph Amill, 

 a/k/a Bonnie, 

 a/k/a Yusef Billa, 

 agent of Dirt, 

 agent of Bighead, 

Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

District Court No. 2-07-cr-00550-003 

District Judge: The Honorable R. Barclay Surrick 

Argued January 7, 2020 

Before: SMITH, Chief Judge, JORDAN, and FUENTES, 

Circuit Judges
2 

(Filed: August 11, 2020) 

David E. Troyer 

Robert A. Zauzmer [ARGUED] 

Office of United States Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

 Counsel for Appellee

Madeline S. Cohen 

1942 Broadway 

Suite 314 

Boulder, CO 80302 

Barry J. Fisher 

Office of Federal Public Defender 

39 North Pearl Street 

5th Floor 

Albany, NY 12207 

Lawrence S. Lustberg [ARGUED] 

Gibbons 

One Gateway Center 

Newark, NJ 07102 

Counsel for Appellant 

Geoffrey M. Wyatt 

Skadden Arps Slate Meagher & Flom 

1440 New York Avenue, N.W. 
3 

Washington, DC 20005 

 Counsel for Amicus Appellant

________________ 

OPINION OF THE COURT 

________________ 

SMITH, Chief Judge. 

TABLE OF CONTENTS

I. Introduction ...................................................................... 4 

II. Factual Background .......................................................... 5 

III. Procedural History .......................................................... 12 

IV. Gaps in the Record ......................................................... 15 

V. Substitution of Counsel .................................................. 27 

VI. Vicinage Challenge......................................................... 47 

VII. Fair-Cross-Section Challenge ........................................ 51 

VIII. Batson Objection .......................................................... 73 

IX. Transferred Intent Instruction ......................................... 98 

X. Lay Opinion Instruction ............................................... 123 

XI. Penalty-Phase Proceedings ........................................... 134 

A. Background ................................................................. 135 

B. The Government permissibly argued that Savage posed 

a risk of future dangerousness. ........................................ 141 

C. The District Court did not plainly err by admitting 

victim-impact statements. ................................................ 159 
4 

D. The District Court’s admission of autopsy photographs 

offered to support the “especially heinous, cruel, or 

depraved” aggravator was not improper. ......................... 169 

E. The Government’s argument against the “equally 

culpable” mitigator did not violate the Fifth or Sixth 

Amendments. ................................................................... 176 

F. The Government properly rebutted the mitigators 

relating to Savage’s relationship with his family. ........... 184 

G. The verdict sheet’s format did not violate the Eighth 

Amendment. ..................................................................... 196 

XII. Conclusion ................................................................... 200 

I. INTRODUCTION

Kaboni Savage led a regional drug trafficking operation 

in North Philadelphia referred to at trial as the Kaboni Savage 

Organization (KSO). The KSO distributed large quantities of 

controlled substances and, not surprisingly, fiercely protected 

its network and territory through the use of guns and violence. 

Threats to the organization, whether perceived or real, were 

quickly tamped down or extinguished. Early in the KSO’s 

operation, Savage took care of such threats himself, but as his 

power grew, his enforcers did his bidding without question. 

 Even while detained on criminal charges, Savage 

continued to manage the affairs of the KSO from his prison 

cell. He led by retaliating against those who dared to cooperate 

with government agents and prosecutors. What makes this 

case stand out is that Savage not only arranged for the murder 
5 

of the prosecution’s main witness in a murder case; in a later 

case, he orchestrated the firebombing of the family home of 

another cooperating witness in a fashion that ensured no one 

would survive. Eventually, Savage was charged with, inter 

alia, a dozen counts of murder in aid of racketeering, among 

other serious offenses. The Government sought the death 

penalty. 

 This appeal follows the jury’s guilty verdict on all 

charges and the imposition of a sentence of death. For the 

reasons that follow, we will affirm. 

II. FACTUAL BACKGROUND

 Savage began his career in illegal drug trafficking by 

selling for others. By the early 1990s, he was peddling 

phencyclidine (PCP) on his own, operating predominantly out 

of his mother’s house on Darien Street in North Philadelphia. 

Before long, he was a distributor selling PCP in various forms, 

as well as marijuana. He utilized numerous dealers who 

controlled drug corners in the vicinity of Erie Avenue in North 

Philadelphia. For a time, he was in a partnership distributing 

crack cocaine. But by the late 1990s, Savage had come into 

his own. He was “running everything,” A17:8749,1

 dealing in 

“more than five, six, seven kilos” of cocaine at a time. 

A17:8759. 

 As his cocaine sales increased, Savage began to dilute 

the drug and then recompress it to increase the quantity. His 

1

 The citation to A17:8749 indicates that the quotation is from 

the Appendix, Volume 17, Page 8749. 
6 

profit margin rose accordingly. In the early 2000s, Savage’s 

“right-hand man” was Eugene Coleman. A21:10960–61. 

Coleman helped distribute cocaine to various individuals in the 

“family”—Savage’s distribution network—and also handled 

proceeds from the drug sales. A17:8728, 8764. Savage’s inner 

circle included “enforcers” who carried out Savage’s 

commands without hesitation. Among the enforcers were 

Kareem Bluntly and Lamont Lewis. Although loyal to Savage 

for a time, Coleman and Lewis eventually cooperated with the 

Government prior to their respective guilty pleas in February 

2004 and April 2011. Both testified at Savage’s trial about the 

operations of the KSO and its use of violence. 

And that violence was often deadly. For example, in 

March 1998, when Savage was in the vicinity of competitor 

Tybius Flowers’s drug corner, a driver by the name of Kenneth 

Lassiter accidentally bumped into Savage’s car. A 

confrontation ensued and Savage demanded that Lassiter pay 

for the damage. Despite Lassiter’s apology, Savage “pulled a 

gun out . . . and shot him once.” A13:6461. Lassiter died from 

the gunshot wound. Flowers witnessed the murder. 

More violence followed. Mansur Abdullah belonged to 

the Savage “family,” and he and Savage would supply each 

other with cocaine. It was Savage who first taught Abdullah 

how to dilute and recompress cocaine, which eventually raised 

the suspicion in Savage’s mind that Abdullah was 

overcharging him. In September 2000, Abdullah visited 

Savage to collect a debt. Savage paid him with cash placed in 

a red sneaker box. He then directed Kareem Bluntly to 

accompany Abdullah back to his home, ostensibly to provide 

protection because of robberies that had recently taken place. 
7 

Bluntly was armed. Coleman was directed to pick up Bluntly 

soon afterward. When Coleman and Bluntly returned a halfhour later, Bluntly handed Savage the red sneaker box with the 

cash still inside. Although Bluntly had carried out the 

instruction to shoot Abdullah, he was unsure if Abdullah was 

actually dead. Savage instructed Coleman to find out. 

Coleman followed orders and later confirmed that he saw 

Abdullah “keeled over” in his car. A17:8823. Philadelphia’s 

assistant medical examiner determined that the cause of death 

was multiple gunshot wounds to the head, chest and abdomen. 

Carlton Brown was another victim of multiple gunshot 

wounds to the head and chest. Although Brown was a member 

of the Savage family, Savage suspected Brown of killing 

Savage’s good friend Ronald Walston. Savage instructed 

Lewis that “he ha[d] to do it,” which Lewis understood to mean 

he had to kill Brown. A21:10923. Lewis obeyed, and Brown 

died. 

Lewis also killed Barry Parker at Savage’s direction. It 

appeared Parker was attempting to take over Steven 

Northington’s drug corner, so Northington complained to 

Savage, his supplier. Savage replied to Northington that 

“[n]obody come and take nothing. You have to handle your 

business. This is what we do.” A17:8850. On February 26, 

2003, at Savage’s command, Lewis left Savage’s house with 

Northington, who identified Parker at the drug corner. Lewis 

then eliminated Northington’s competition by shooting Parker 

several times in the chest. Clearly Savage did not hesitate to 

protect his organization by killing those who threatened to 

interfere with his distribution network. 
8 

He also had no qualms about murdering those he 

believed were cooperating with law enforcement. In March of 

2003, Savage suspected that Tyrone Toliver, Coleman’s friend, 

was a “snitch.” A17:8873. When Toliver had difficulty filling 

a cocaine order, he looked to Savage to supply him. Although 

Savage did not have cocaine available, he agreed to help and 

directed Coleman to take Toliver to Coleman’s apartment 

where the organization regularly recompressed cocaine. 

Bluntly arrived at the apartment shortly thereafter. To 

Coleman’s surprise, Bluntly shot Toliver in the head. At 

Savage’s direction, Bluntly and Coleman disposed of the body. 

In addition to the benefit of eliminating someone 

Savage thought was a snitch, the Toliver murder allowed 

Savage “to put some dirt on” Coleman. A21:10959. Coleman 

knew a lot about the KSO’s operations, and “everybody 

thought [Coleman] was weak and if he got into some trouble, 

he would tell.” A21:10960. 

Around this same time, in a further effort to assure the 

loyalty of those closest to him and to thwart any thoughts his 

allies might have of cooperating with law enforcement, 

Savage, along with Lewis and two other high-ranking members 

of the KSO, made a pact. In short, the men agreed that if any 

one of them cooperated with law enforcement, “our mothers’ 

lives would be in danger.” A21:10960. Although Coleman 

was not present when the deadly pact was made, Savage made 

sure that Coleman learned of it. 

In 2004, Savage was prosecuted for Lassiter’s murder. 

While jailed awaiting trial, Savage continued to intimidate and 

threaten others with retaliation if he suspected they were 
9 

working with the Government. First, Savage set his sights on 

eyewitness Tybius Flowers, the prosecution’s main witness. 

Savage told Lewis, who was also in jail, that he was not 

worried because Flowers “would never make it to court.” 

A21:10915. Savage made similar remarks to another prisoner. 

Savage’s prophecy came true when Flowers was killed in a 

shower of bullets as he sat in his car outside of his aunt’s house 

the night before trial. While there were no eyewitnesses, 

Northington later told a fellow prisoner of his disdain for 

snitches and disclosed that “he [had] slumped [Flowers] and 

sent him to rat heaven.” A23:11738–40. Savage, too, revealed 

he had played a part in Flowers’s murder, advising the same 

fellow prisoner that he had “spanked the case” and would be 

released soon. A23:11831. 

Savage’s brutal efforts paid off. Lacking Flowers’s 

testimony, the prosecution foundered and Savage was 

acquitted of Lassiter’s murder. He was released from 

Philadelphia County prison on April 8, 2004. But within a 

week, federal authorities arrested him on drug trafficking and 

other charges.2

 Even while detained, Savage continued to 

direct the KSO’s operations from his jail cell. He was enraged 

that Coleman, who was also in jail, was assisting the 

2

 A jury ultimately convicted Savage in December 2005 of 14 

federal counts related to charges stemming from his role in the 

KSO, including conspiracy to distribute cocaine, money 

laundering, firearm offenses, and threatening to retaliate 

against witnesses. On April 27, 2006, he was sentenced to 

thirty years’ imprisonment. We affirmed the conviction and 

sentence. See United States v. Walker, 392 F. App’x 919, 921 

(3d Cir. 2010). 
10 

prosecution. Coleman received threats from other inmates who 

had connections to the KSO. While in the visiting room of the 

prison, Coleman saw Savage’s sister, Kidada Savage. She 

encouraged him not to “let these crackers break you.” 

A18:8938. Kidada later wrote to Coleman, encouraging him 

not to reveal anything to federal agents, closing her letter with 

the statement: “Death before Dishonor (to your family).” 

A18:8946. Coleman understood that parenthetical to threaten 

his personal family, not members of the KSO. Later, when 

Coleman was in a holding cell in the federal courthouse, 

Savage and one of his associates were placed in an adjacent 

cell. Immediately, Savage spoke of killing the “rats” and told 

Coleman that his family should die as well. A18:8953–54. 

By this time, Savage had instructed Kidada to have 

Lewis firebomb Coleman’s family home in retaliation for 

Coleman’s cooperation with the Government. In a telephone 

call from prison on the evening of October 8, 2004, Savage 

spoke with both Kidada and Lewis. Lewis agreed to do 

anything Savage ordered, even if it meant “kill[ing] somebody 

for him.” A21:10981. After the call concluded, Kidada 

relayed to Lewis the directive from Savage to firebomb the 

Coleman house. She instructed Lewis to torch the home late 

that night when “everybody”—Coleman’s mother and 

brother—would be there. A21:10986. Kidada drove Lewis to 

the block where Coleman lived and “pointed out the house.” 

A21:10988. She also informed him that guns and a pit bull 

may be inside. Lewis told Kidada that his cousin, Robert “BJ” 

Merritt, would help him. Kidada promised Lewis $5000 for 

doing the job.
11 

Around 4:00 a.m. the following morning, Lewis and 

Merritt took two cans filled with gasoline to Coleman’s house. 

Lewis kicked in the door and fired his gun twice. Merritt lit 

and threw both cans into the house, causing an explosion. Fire 

then ravaged the structure, resulting in the deaths of all six 

occupants: Coleman’s mother, Marcella Coleman; his infant 

son, Damir Jenkins; his twin-brother’s fifteen-year-old son, 

Sean Rodriguez; his sister Regina Nash’s twelve-year-old son, 

Tajh Porchea; his cousin, Tameka Nash (whom Coleman 

regarded as a sister); and Tameka’s ten-year-old daughter, 

Khadijah Nash.

Acting on Kidada’s instruction, Lewis called her and 

left a message that Savage’s order had been carried out. It was 

not until later that Lewis learned that four children had died in 

the fire. When Lewis confronted Kidada about the children in 

the house, Kidada responded to Lewis, “F*** ’em.” 

A21:11006. Kidada paid Lewis only part of the $5000 he had 

been promised. Merritt received a used car and $500. 

Subsequent recordings of prison conversations between 

Savage and others demonstrated his complicity in the Coleman 

firebombing. They also revealed Savage’s great satisfaction 

that the killings had taken place, and the intercepted 

conversations revealed plans to kill yet other witnesses and 

their families. Savage’s continued threats were troubling 

enough that in February 2007, the United States Attorney 

General authorized the Bureau of Prisons to impose Special 

Administrative Measures (SAMs) restricting Savage’s 

communications with others, including his family. See 28 

C.F.R. § 501.3. In April 2009, an indictment in this case was 

returned naming Savage, Lamont Lewis, Robert Merritt and 
12 

Steven Northington as defendants. United States v. Savage, 

No. 2:07-cr-550, ECF 51 (E.D. Pa. Apr. 8, 2009). 

III. PROCEDURAL HISTORY

 The Fourth Superseding Indictment was later filed in 

May 2012 against Savage, Merritt, Northington and Savage’s 

sister, Kidada Savage. By the time of trial,3

 the charges against 

Savage were as follows: 

 one count of conspiracy to participate in a 

racketeering (RICO4

) enterprise, 18 U.S.C. § 

1962(d);

 twelve counts of violent crime in aid of racketeering 

(VICAR) murder, § 1959(a)(1), for the Lassiter, 

Abdullah, Brown, Parker, Toliver, Flowers, and six 

arson murders;

 one count of VICAR conspiracy to commit murder, 

§ 1959(a)(5), for the conspiracy to commit the arson 

murders; 

 one count of retaliating against a witness, § 1513, for 

the arson murders in retaliation for Eugene 

Coleman’s testimony and other cooperation; and

3

 Before trial, the District Court dismissed a witness tampering 

count under 18 U.S.C. § 1512(a)(1)(A). 

4

 Racketeer Influenced and Corrupt Organizations Act, 18 

U.S.C. §§ 1961–68.
13 

 one count of using fire to commit a felony, § 

844(h)(1), for the fire used to commit VICAR 

murder at the Coleman house.

Shortly after Savage was indicted in 2009, the District 

Court appointed Christopher Warren as counsel of record. 

Because the charges carried a maximum penalty of death, the 

District Court also appointed Timothy Sullivan as learned 

capital-qualified counsel pursuant to 18 U.S.C. § 3005.5

 

Savage sought a replacement for Warren, so in 2010 the 

District Court appointed Christian Hoey and allowed Warren 

to withdraw. Sullivan’s conditional appointment as a federal 

magistrate judge spurred further substitution. In November 

2012, the District Court granted Savage’s motion to appoint 

additional learned counsel, appointing William Purpura. The 

District Court then allowed Sullivan and his associate to 

withdraw in December 2012. At trial, Hoey and Purpura acted 

as counsel of record. 

The Government provided pretrial notice of its intent to 

seek the death penalty for the VICAR murder and witness 

retaliation counts,6 as required by 18 U.S.C. § 3593(a). The 

District Court rebuffed Savage’s attempts to strike the notice. 

5

 The District Court later allowed Sullivan’s associate, Brett 

Cook, to join the defense team. 

6

 When retaliation against a witness consists of killing a person, 

as in this case, the punishment is that associated with murder 

and manslaughter. 18 U.S.C. § 1513(a)(1), (2)(A); see also 

§ 1513(c) (addressing maximum term of imprisonment for 
14 

The extensive pretrial proceedings also addressed the 

composition of the jury. The District Court rejected defense 

efforts to limit potential jurors to residents of Philadelphia 

County and to expand the source of potential jurors beyond 

voter registration lists. 

 Hundreds responded to the summons to jury service and 

filled out questionnaires at the District Court’s instruction. The 

District Court and counsel questioned potential jurors during 

voir dire proceedings that began on November 5, 2012. After 

thirty days of voir dire, jury selection concluded. The panel 

was composed of ten white jurors, two black jurors and six 

alternates—five white and one black. Although Savage 

interposed Batson challenges to the exclusion of certain black 

jurors, the District Court determined that the Government 

exercised its peremptory strikes on a race-neutral basis. 

Trial began on February 4, 2013. The Government’s 

case featured more than seventy witnesses, over a thousand 

exhibits and many recordings of intercepted conversations. On 

the fifty-fifth day of trial, the jury returned a verdict finding 

Savage guilty of all counts. At the conclusion of the guilt 

phase, the District Court placed the jurors in recess for seven 

days (extended an eighth day), after which the penalty phase 

commenced.

The capital sentencing hearing, conducted pursuant to 

18 U.S.C. § 3593(b) before the same jury, took seven days. 

The jury was presented with evidence of both aggravating and 

retaliation based on attendance at or testimony in criminal 

case). 
15 

mitigating factors under § 3592, and on May 31, 2013, it 

unanimously voted that Savage be sentenced to death on each 

of the thirteen eligible counts, pursuant to §§ 3591(a)(2) and 

3593(e). 

On June 3, 2013, the District Judge formally 

pronounced a sentence of death on each eligible count: twelve 

VICAR murders plus witness retaliation. Savage was also 

sentenced to life imprisonment for the racketeering conspiracy, 

as well as two ten-year terms of imprisonment for the VICAR 

conspiracy and the use of fire to commit a felony. The District 

Court waived a $1600 special assessment as to all counts. 

 After sentencing, Savage moved for a judgment of 

acquittal under Federal Rule of Criminal Procedure 29, a new 

trial under Rule 33 and arrest of judgment under Rule 34. The 

District Court denied those requests in September 2014. 

Savage timely appealed from final judgment and the 

denial of his new-trial motion.7

 Although he raises a host of 

issues on appeal, he does not challenge the sufficiency of the 

evidence for any of the crimes of conviction. 

IV. IF ANY GAPS EXIST IN THE RECORD, THEY DO NOT 

ENTITLE SAVAGE TO RELIEF. 

We first address Savage’s most foundational claim of 

error, an error which he contends prevented him from proving 

7

 The District Court had jurisdiction over the federal charges 

against Savage pursuant to 18 U.S.C. § 3231. We have 

jurisdiction under 28 U.S.C. § 1291. 
16 

that he preserved certain issues while also eclipsing his ability 

to spot and raise other issues. Despite the vast appellate record 

before us—over eighteen thousand pages spanning more than 

thirty-four volumes—Savage contends he lacks access to “at 

least 50 letters, e-mails, and other undocketed written 

communications that the district court exchanged with the 

parties.” Def. Br. 339. He also claims the record omits “at 

least 50 unrecorded” oral communications involving the 

District Court, including sidebars, in-chambers charge 

conferences to hammer out jury instructions, and conversations 

between the District Court and jurors where counsel was not 

present. Id. Savage argues these alleged omissions violate the 

Constitution, the Federal Death Penalty Act and the Court 

Reporter Act. But “the real centerpiece of [his] argument” is 

Federal Rule of Appellate Procedure 10. Oral Argument Tr. 

126:20–24. 

Rule 10 provides appellants a way to reconstruct 

missing portions of an appellate record. And though we have 

previously granted a new trial when an incomplete record 

prejudiced an appellant, see Simmons v. Beyer, 44 F.3d 1160, 

1168-69 (3d Cir. 1995), we have always required appellants to 

attempt Rule 10 reconstruction before seeking relief. See, e.g., 

Roberts v. Ferman, 826 F.3d 117, 125 (3d Cir. 2016). 

Yet Savage attempts to skirt that prerequisite. He 

argues that before forcing him to undertake Rule 10 

reconstruction, we should permit him to take wide-ranging 

discovery from the District Court—including searching the 

District Judge’s files for any undocketed written 

communications and scouring his personal notes for insight 

into any untranscribed oral communications. Alternatively, 
17 

Savage contends the District Court’s refusal to submit to that 

examination entitles him (at least) to a presumption that the 

defense properly preserved all issues or (at most) to a new trial. 

Quite simply, Savage overreaches. The record in its 

existing form enables us to decide his appeal consistent with 

precepts of fundamental fairness and with our obligation under 

the Federal Death Penalty Act to “review the entire record.” 18 

U.S.C. § 3595(b). If indeed gaps exist—and the Government 

argues there are none—Savage’s failure to pursue Rule 10 

reconstruction forecloses relief. 

* * * 

We can easily dispatch Savage’s constitutional claim. 

Although due process demands a record “sufficiently 

complete” to facilitate “an adequate review of [the 

defendant’s] conviction . . . . neither the Supreme Court, nor 

our Court, has held that due process requires a verbatim 

transcript of the entire proceedings or that an incomplete record 

confers automatic entitlement to relief.” Fahy v. Horn, 516 

F.3d 169, 190 (3d Cir. 2008). That’s hardly surprising, since 

at the time of the Founding and for generations thereafter, 

contemporaneous (let alone verbatim) accounts of trial 

proceedings in federal court were the exception and not the 

norm. See Oswald M. T. Ratteray, Verbatim Reporting Comes 

of Age, 56 Judicature 368, 368–69, 373 (1973); see also Miller 

v. United States, 317 U.S. 192, 198–99 (1942).8

 We decline to 

8

 Indeed, incomplete transcription remained common in some 

state courts until relatively recently. See Oliver v. Zimmerman, 

720 F.2d 766, 768 (3d Cir. 1983) (“The general trial practice 
18 

graft what is a relatively modern development onto the Due 

Process Clause or any other constitutional guarantee. The 

Constitution does not require an all-encompassing trial record 

to identify issues for appeal. 

The same goes for Savage’s Federal Death Penalty Act 

claim. As he points out, § 3595(b) obliges us to “review the 

entire record” in capital cases. But that subsection also 

specifies a minimum set of contents the “record” must include: 

1. “the evidence submitted during the trial”; 

2. “the information submitted during the sentencing 

hearing”; 

3. “the procedures employed in the sentencing 

hearing”; and 

4. “the special findings returned” as to aggravating and 

mitigating factors. 

Id.; cf. Gardner v. Florida, 430 U.S. 349, 361 (1977) (“[I]t is 

important that the record on appeal disclose to the reviewing 

court the considerations which motivated the death sentence in 

every case in which it is imposed.”). Savage does not dispute 

either that the current record clears these statutory minima or 

that it adequately discloses why he received the death penalty. 

in Pennsylvania is that only testimony of witnesses and 

statements of the court are transcribed as of course. Opening 

and closing speeches are not transcribed unless requested by 

counsel, but any objection lodged during the course of such 

speeches is transcribed together with the judge’s ruling 

thereon.”). 
19 

Nor does Savage explain why, even if our § 3595(b) 

obligation extends beyond the four discrete categories we have 

enumerated, it stretches so far as to cover the items he claims 

are missing. At most, we think our obligation to “review the 

entire record” is cabined by Rule 10(a), which defines “the 

record on appeal” as “the original papers and exhibits filed in 

the district court; the transcript of proceedings, if any; and a 

certified copy of the docket entries prepared by the district 

clerk.” In other words, § 3595(b) does not reach the 

untranscribed conversations and many9

 of the unfiled writings 

9

 Insofar as any of the writings Savage identifies could be 

considered “original papers and exhibits filed in the district 

court,” he has failed to adequately demonstrate any nonspeculative prejudice from the absence of those writings on 

appeal. Relatedly, Savage has not articulated how the 

purportedly missing items could or would give rise to “any 

difference[s] . . . about whether the record truly discloses what 

occurred in the district court,” and, indeed, failed to have any 

such differences settled by the District Court, as is his 

obligation. Fed. R. App. P. 10(e)(1). Neither Rule 10(a) nor 

§ 3595(b), to the extent that statute incorporates Rule 10(a), 

provides an appellant relief in such circumstances. See United 

States v. Smart, 448 F.2d 931, 936 (2d Cir. 1971) (“The 

missing documents would appear to have no significance to the 

issues which could be advanced on appeal. Those records 

necessary for prosecution of the appeal—the minutes of the 

trial and the minutes of the suppression hearing—are intact and 

were available to [the appellant] and his appellate counsel. 

[The appellant] has failed to show any prejudice to his right to 

appeal resulting from the missing documents.”). 
20 

Savage claims are missing here. Indeed, for those 

communications (or their reconstructions) to have become part 

of the “record on appeal,” Savage needed to move to 

supplement the record. Cf. United States v. Moreno, 857 F.3d 

723, 727 (5th Cir. 2017). He did not, so there is no Federal 

Death Penalty Act violation. 

That leaves his Court Reporter Act claim, which—as 

Savage acknowledged at oral argument—applies only to any 

untranscribed oral communications. The Court Reporter Act 

requires “[e]ach session of the court” to be “recorded 

verbatim,” including “all proceedings in criminal cases had in 

open court.” 28 U.S.C. § 753(b). Though the Act does not 

prescribe a remedy for violations, courts have awarded relief 

up to a new trial. E.g., Simmons, 44 F.3d at 1168–69; see 

United States v. Sussman, 709 F.3d 155, 170–72 (3d Cir. 

2013); see also United States v. Kelly, 167 F.3d 436, 438 (8th 

Cir. 1999) (collecting cases). 

Litigants typically seek relief under the Court Reporter 

Act when an unanticipated technical malfunction, human error 

or natural disaster renders transcripts of proceedings 

unavailable. See, e.g., Kelly, 167 F.3d at 437 (recording and 

notes destroyed in a fire before they could be transcribed); 

United States v. Brand, 80 F.3d 560, 562 (1st Cir. 1996) 

(transcripts “permanently lost”); United States v. Sierra, 981 

F.2d 123, 125 (3d Cir. 1992) (court-reporting system 

malfunctioned); United States v. Antoine, 906 F.2d 1379, 1380 

(9th Cir. 1990) (court reporter “unable to locate her trial notes 

and tapes”); United States v. Preciado-Cordobas, 981 F.2d 

1206, 1209 (11th Cir. 1993) (transcription unavailable because 

of a “defective ribbon in the stenotype machine used . . . to take 
21 

down the proceedings” and since the “backup” “tape 

recording” “either could not be found or was unintelligible”); 

United States v. Selva, 559 F.2d 1303, 1304–05 (5th Cir. 1977) 

(court reporter’s tape recorder malfunctioned). But a few 

courts have concluded that “[t]he duty to comply with” the 

Court Reporter Act “lies with the court, not the parties,” and 

they have granted relief when a district court held off-therecord sidebars—something Savage claims occurred in this 

case. United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 

1990); see also, e.g., United States v. Haber, 251 F.3d 881, 

889–90 (10th Cir. 2001); United States v. Gallo, 763 F.2d 

1504, 1529–30 (6th Cir. 1985); United States v. Garner, 581 

F.2d 481, 488–89 (5th Cir. 1978); see also Sierra, 981 F.2d at 

127 (“The Court Reporter Act applies to all proceedings in 

open court, which includes sidebar conferences.”). 

At the outset, we question whether Savage 

appropriately invokes the Court Reporter Act for the first time 

on appeal. To be sure, remanding a case for record 

reconstruction or a new trial over a Court Reporter Act 

violation makes some sense when a conversation everyone 

thought was being recorded evades transcription because of an 

unforeseeable circumstance. In such a case, no one could have 

known to raise the Court Reporter Act in the District Court. 

Yet granting Savage’s request for relief under the Court 

Reporter Act—raised now for the first time—makes far less 

sense. His trial counsel apparently knew the untranscribed 

conversations were not being recorded and thus arguably 

“waive[d] an objection to the court’s failure to comply with 

§ 753(b) . . . by acquiescing in the court’s procedure.” Nolan, 

910 F.2d at 1560; see also Gallo, 763 F.2d at 1531; cf. Garner, 
22 

581 F.2d at 488 & n.4. But even were we to excuse Savage’s 

failure to object at trial, his Court Reporter Act claim still fails 

on its merits. We cannot excuse Savage’s failure to pursue 

Rule 10 reconstruction. 

Only when a defendant shows a “colorable need” for the 

missing transcripts will we grant Court Reporter Act relief. 

Fahy, 516 F.3d at 190 (quoting Karabin v. Petsock, 758 F.2d 

966, 969 (3d Cir. 1985)). To show a colorable need, a 

defendant must do two things. First, a defendant must make “a 

specific showing of prejudice.” Sierra, 981 F.2d at 125. In 

other words, a defendant must particularly assert what the 

missing record would show and why it would justify relief. See

id. at 127. Second, a defendant must explain why Rule 10(c)’s 

record-reconstruction procedure cannot cure the prejudice. See

Roberts, 826 F.3d at 124–25 (collecting cases).10

10 Every circuit to consider this issue has agreed that an 

appellant must specifically show prejudice and explain why 

Rule 10 reconstruction won’t work before obtaining Court 

Reporter Act relief. See Kelly, 167 F.3d at 438 (collecting 

cases). That said, the Fifth Circuit has relaxed those 

requirements when an appellant has new counsel on appeal and 

the alleged omission is “substantial and significant.” Selva, 

559 F.2d at 1306. (The Eleventh Circuit follows that rule as 

binding precedent, since it predates 1981 legislation splitting 

the original Fifth Circuit into the present-day Fifth and 

Eleventh Circuits. See Preciado-Cordobas, 981 F.2d at 1212.) 

Savage tries to engraft that partial exception onto our caselaw, 

but we have already refused. See Sierra, 981 F.2d at 126 

(noting “[t]he Selva approach has not been widely followed” 
23 

Savage comes closest to alleging prejudice by 

speculating that a more complete record might show that he 

preserved objections to various legal issues we must otherwise 

review under the heightened plain-error standard applicable to 

unpreserved error. We address standard-of-review issues as 

we encounter them in the following Parts. To resolve his Court 

Reporter Act claim, we need only note that Savage has never 

and explaining how it perversely incentivizes “defendant[s] to 

dismiss trial counsel and seek appointment of new counsel on 

appeal”); see also Haber, 251 F.3d at 889–90. 

 What’s more, even under the Fifth and Eleventh Circuits’ 

standard, Savage still would not obtain relief: the omissions he 

alleges don’t qualify as “substantial and significant.” Whether 

a gap counts as substantial and significant in those courts 

“depends upon the likelihood that error which could be pursued 

on appeal occurred during those parts of the trial for which we 

do not have a verbatim transcript, and which the reconstruction 

does not allow us to review.” Preciado-Cordobas, 981 F.2d at 

1214. In practical terms, gaps relating to “indispensable part[s] 

of the proceedings, both in terms of time spent and potential 

influence on the outcome,” might justify reversal. Id. But 

“[m]ere speculation, entirely unsupported or contradicted by 

the record, that error may have been committed during an 

unrecorded part of the trial simply is not enough to support a 

finding that omissions are substantial and significant.” Id. The 

latter aptly describes Savage’s approach here. Savage does not 

dispute that we know what happened during the most critical 

trial stages. Rather, he seeks a new trial because we don’t 

know what happened in some sidebar and in-chambers 

conferences. 
24 

formally sought to reconstruct any untranscribed 

conversation—even though Rule 10 “provides a specific 

mechanism by which the parties can have [a] dispute over the 

contents of the trial court record resolved, and clearly places 

the responsibility for initially creating the record on the 

appellant.” Roberts, 826 F.3d at 123. 

Savage argues it would be futile to pursue Rule 10 

reconstruction since his attorneys on appeal did not participate 

in his trial and therefore cannot be expected to know what went 

on in the untranscribed conferences. But Rule 10 provides for 

that eventuality: a defendant may submit a declaration saying 

he does not remember what happened, passing the ball to the 

government to document its recollection and giving the 

defendant a chance to object before allowing the District Judge 

to resolve any remaining discrepancies in accordance with the 

provided documentation and with any notes he has retained and 

his own recollections. At least one court of appeals has 

approved that very procedure under similar circumstances. See

United States v. Wilson, 16 F.3d 1027, 1029 (9th Cir. 1994). 

That reasoning also thwarts Savage’s stunning request 

for discovery of the District Court’s files, the District Judge’s 

personal notes, and the work-product of every lawyer involved 

in the case. Of course, the District Judge may rely on his notes 

and recollection in certifying a reconstruction’s accuracy—just 

as prosecutors may rely on their notes and recollections to rebut 

an appellant’s initial reconstruction. But it does not follow that 

Savage can discover everyone else’s notes or recollections. 

Savage cites no rule entitling him to such discovery, and we 

will not create one. Nor will we wade into the thorny privilege 
25 

questions and perverse incentives that such a rule would surely 

precipitate. 

In short, Rule 10’s text puts the ball in Savage’s court. 

The Rule and our caselaw require a collaborative 

reconstruction effort that includes opposing counsel and the 

District Judge. But it starts with the appellant. Otherwise, an 

appellant could “manufacture his own disputes, attribute legal 

significance to them, and then claim that they only can be 

resolved by an examination of testimony that is unavailable.” 

Sussman, 709 F.3d at 172. That appears to be what Savage 

attempts here, and it is an approach we will not countenance. 

* * * 

We close this Part with three observations from our 

supervisory perch as a Court of Appeals, and from our shared 

perspective as three former trial judges. First, the record 

omissions Savage most often rehashes include the two 

untranscribed charge conferences (one during the guilt phase 

and one during the penalty phase), plus “extensive[]” 

undocketed emails swapping proposed jury instructions (which 

we view as a “virtual” charge conference). Def. Br. 344. To 

the extent Savage claims that this constitutes legal error, 

neither Federal Rule of Criminal Procedure 30 nor the Court 

Reporter Act require on-the-record charge conferences. Still, 

and even though off-the-record charge conferences routinely 

occur in the Eastern District of Pennsylvania (and elsewhere), 

we observe that the practice does have the potential to allow a 

legal error to go unnoticed and uncorrected. Relative to the 

costs of an entire criminal prosecution—especially a four-year, 

multidefendant capital case like this one—there seems little 
26 

expense saved or convenience gained by a charge conference 

conducted without a court reporter present. 

Second, when it comes to making motions and 

preserving objections, the obligation rests with trial counsel to 

ensure the record reflects all motions or objections. Deciding 

to raise or to forgo a potentially meritorious objection often 

entails balancing fraught—and sometimes countervailing—

considerations, both tactical and strategic. We will not bless a 

result where any potential record gap empowers creative 

counsel to resuscitate a waived objection on appeal. 

Third, Savage credibly alleges that the District Court 

twice talked to the jury without counsel or a court reporter 

present. We know about the first conversation because the 

transcript from the last day of the Government’s guilt-phase 

case reveals that the District Judge advised counsel, after the 

Government rested: “I’m going to go back and talk to the jury 

and tell them what we’re doing, the fact that we’re not going 

to be back until next Monday.” A25:13393–94; see also id. at 

13406 (“Ladies and gentlemen, at this point we’re going to 

recess, and let you go back to get some lunch. It’s 12 o’clock. 

I understand lunch is on its way up. I will come back and talk 

to you briefly to advise you of the schedule that we are going 

to be operating from here on. Okay?”). But the actual 

discussion was not transcribed, and we are unaware of its being 

restated on the record later. 

We know about the second conversation because, in a 

break during the various closing arguments, an attorney 

brought up a “housekeeping matter”: “I believe the Court 

yesterday was going to talk to the jury about whether or not 
27 

they are available tomorrow or not.” The District Judge 

responded, “They will be here tomorrow if—I told them also 

tomorrow if I can charge—if I can begin charging the Jury in 

the morning, first thing, then we will do that and let them 

deliberate. However, if closings—if closing statements are still 

going on tomorrow morning, we are going to recess until 

Monday and let them come back on Monday for the charge.” 

A28:14848. Here too, this after-the-fact summary is the only 

information we have about the judge–jury exchange. 

Though we cannot know exactly what was said, what 

we do know assures us that the conversations were entirely 

scheduling-related. That said, we further stress the advisability 

of having counsel present for all interactions between the court 

and jurors, and our preference that such interactions be 

transcribed. See also Gallo, 763 F.2d at 1529 n.37. 

V. THE DISTRICT COURT DID NOT ERR BY SUBSTITUTING 

COUNSEL. 

Savage claims that he was denied his Sixth Amendment 

right to counsel because the District Court waited until four 

days before voir dire began to substitute new lead counsel. We 

conclude that the District Court’s substitution constituted 

neither structural nor trial error.11

11 We leave for a future date the question of whether a 

structural error claim is subject to waiver or forfeiture. That 

said, we are not persuaded by the Government’s argument that 

Savage waived, forfeited or invited any alleged trial error. 
28 

A. Background

On June 23, 2009, the District Court appointed Timothy 

Sullivan to represent Savage as learned capital-qualified 

counsel. Christian Hoey was appointed to represent Savage 

alongside Sullivan on February 19, 2010. In January 2011, 

Sullivan was appointed as a U.S. Magistrate Judge, but because 

this appointment was contingent on the current incumbent of 

that magistrate judgeship being confirmed as a district court 

judge, there remained uncertainty as to if and when Sullivan 

would assume his new office. While the record does not make 

clear when Sullivan first brought this issue to the District 

Court’s attention, it does contain representations that Sullivan 

advised the District Court of his pending appointment as early 

as January 2011. 

The District Court addressed the issue of Sullivan’s 

pending appointment during a June 2012 hearing. Soon 

afterward, on June 19, 2012, Sullivan submitted a letter to the 

District Court proposing the appointment of William Purpura 

as additional learned capital-qualified counsel.12 The letter 

explained that 

[i]f circumstances warrant, and Mr. Sullivan 

seeks leave to withdraw from this case in the 

near-future, Mr. Purpura has indicated that he 

wishes the Court to be on notice that he might 

request a short continuance until October 2012. 

This request will only be made if Mr. Purpura 

12 Around this time, Sullivan’s associate, Brett Cook, also 

joined the defense team. 
29 

requires additional time to prepare for trial and 

for any penalty hearing case. Mr. Purpura is 

prepared to meet with the Court to discuss these 

matters. 

A33:17393. Accompanying the letter was an account of Mr. 

Purpura’s considerable capital case experience. Sullivan 

followed up with the District Court’s courtroom deputy via 

email on June 25, 2012, writing, “Mr. Purpura is anxious to 

receive word from the Court on his appointment since each day 

counts now.” A4:1864. The record does not reveal a response 

to Sullivan’s letter and follow-up email. 

On either June 24 or July 24, 2012,13 Savage submitted 

a pro se, ex parte “emergency motion” for appointment of new 

counsel or to proceed pro se. A4:1858–63. Savage asserted 

that the District Court was “well aware” of Sullivan’s pending 

appointment, that Sullivan was “preoccupied” with his 

appointment, and that Sullivan was “underperforming” in 

preparing Savage’s case. Id. at 1858. Savage also claimed that 

Sullivan “knows nothing about the basic facts,” did not visit 

him unless there was to be a hearing, was “wholly ineffective,” 

“cares nothing about my case,” and like Hoey, was a 

“compulsive liar[].” Id. at 1858–59, 1862. Moreover, Savage 

alleged that there were disputes between Sullivan and Hoey 

resulting from ineffective communication. 

13 While the motion was dated June 24th, Savage states in the 

body of the motion that he is writing on the 24th of July. That 

said, the District Court did not receive the motion until August 

9, 2012. 
30 

He then requested “concerned dedicated counsel” to 

protect his Sixth Amendment rights. Id. at 1858. Savage 

closed stating: “If a man/attorney does not want to be apart 

[sic] of a defense team, why would I want him to defend me or 

why would the court keep him on my case[?]” Id. at 1862. 

On August 10, 2012, the District Court’s courtroom 

deputy forwarded Savage’s letter to Sullivan, observing that 

the letter was received in chambers and adding simply, “Please 

advise.” Id. at 1857. The District Court took no further action 

with respect to Savage’s self-styled motion. 

Savage, through counsel, moved ex parte for 

appointment of Purpura as additional learned counsel on 

October 16, 2012. This motion explained that Sullivan could 

be sworn in before the end of the year (at which time he would 

immediately assume his duties as a magistrate judge) and that 

“Mr. Purpura will be prepared to move forward with the 

representation of Mr. Savage under existing [sic] Court’s 

schedule.” A33:17390. It also expressed that “[t]he 

appointment of Mr. Purpura must occur as soon as possible in 

order to permit him sufficient time to familiarize himself with 

the discovery, work with Mr. Sullivan and become familiar 

with the mitigation evidence, the aggravating evidence and for 

any penalty hearing.” Id. Counsel further represented that 

“Mr. Savage has no objection to Mr. Purpura replacing Mr. 

Sullivan, if necessary.” A33:17391. 

On November 1, 2012, the District Court held a hearing 

to address the motion for appointment of counsel. Sullivan 

advised the District Court that he had discussed the matter with 

Savage, declaring: “I believe Mr. Savage is amenable and 
31 

consents to the relief that we seek.” A7:3312. The District 

Court then confirmed this, asking Savage: “You are satisfied if 

this Court were to go ahead and make that appointment; is that 

correct?” Id. Savage responded, “Yes.” Id. The District Court 

then turned to Purpura and asked if he was “ready to take over 

representation of Mr. Savage,” to which Purpura replied: 

Your Honor, I cannot represent that I’m ready to 

take over the representation of Mr. Savage. I 

don’t think the Court would expect me to make 

that representation. I have met with Mr. Savage. 

We met back in June. At that time I know Mr. 

Sullivan filed the first motion on this particular 

issue. 

Obviously jury selection starts on Monday. I’ve 

talked to Christian Hoey, who seems to know the 

case almost as well as Mr. Savage himself, as far 

as going through the discovery. So we have gone 

through everything there. 

Mr. Cook, as well, and Mr. Sullivan, has had this 

case in litigation as well as the defense. I believe 

that I can add right now a lot to this team to keep 

this train on the track and to go forward at this 

point. But if the Court is asking me specifically, 

if at this very moment could I step into the shoes 

of Mr. Sullivan who has been here for three and 

a half years, I would have to honestly tell the 

Court that that is not possible. 
32 

A7:3312–13. Seeking clarification, the District Court inquired 

further: “[A]re you satisfied that you can get yourself up to 

speed so that this matter is not going to be delayed?” A7:3313–

14. Purpura responded, 

Judge, I can tell the Court honestly that I am 

experienced in Federal as well as State capital 

cases. I would do nothing except this particular 

case, whatever amount of time it took me per 

day. 

Teresa Whalen[14] is a close associate and friend 

of mine. I’ve tried capital cases in the District of 

Maryland with her, and I know that she will help 

bring me up to speed as well as everybody else. 

It’s a big team effort. 

So the answer is yes, I’ll do everything in my 

power to be brought up to speed, and I have the 

experience to do it. I hope to make Mr. Savage 

satisfied of that as well. 

A7:3314. The Government did not object to the motion, and 

after conferring with the local office of the Federal Public 

Defender, the District Court recorded the appointment of 

Purpura.15

14 Teresa Whalen was an attorney representing co-defendant 

Kidada Savage. 

15 The District Court entered an order formally appointing 

Purpura as additional learned counsel on November 16, 2012. 
33 

The initial hardship stage of jury selection had already 

taken place on September 26 and 27, 2012, but voir dire began 

on November 5, 2012, less than a week after Purpura’s oral 

appointment. Savage then moved, on December 13, 2012, for 

the appointment of additional associate counsel Marta Kahn 

and Brady Locher. No order reflecting their appointment 

appears in the record, however, and neither Kahn nor Locher 

appear as counsel of record on the District Court docket. 

Nevertheless, the Government avers—and the record 

reflects—that Kahn did participate as additional counsel. 

Sullivan and Cook moved to withdraw on December 19, 2012, 

which the District Court granted. 

At no time did either side seek a continuance. 

Voir dire concluded on Tuesday, January 29, 2013. The 

following Monday, February 4, 2013, the guilt phase of trial 

got underway. Although substantial discovery was conducted 

pretrial, Purpura never told the Court that he was inadequately 

prepared or that he needed more time. The trial concluded 

more than three months later, with the jury returning a guilty 

verdict on all charges on May 13, 2013. The proceedings next 

advanced to the penalty phase, which began on May 21, 2013. 

The jury returned a death penalty verdict on May 31, 2013.

B. Savage did not suffer a constructive denial of 

counsel: there was no structural error. 

The Sixth Amendment guarantees a criminal defendant 

the right “to have the Assistance of Counsel for his defense.” 

U.S. Const. amend. VI. In practice, this means that 
34 

constructive denial of the assistance of counsel requires per se 

reversal.16 See Perry v. Leeke, 488 U.S. 272, 280 (1989). 

The Supreme Court has held that “it is a denial of the 

accused’s constitutional right to a fair trial to force him to trial 

with such expedition as to deprive him of the effective aid and 

assistance of counsel.” White v. Ragen, 324 U.S. 760, 764 

(1945); see also United States ex rel. Tillery v. Cavell, 294 F.2d 

12, 20 (3d Cir. 1961) (“Effective aid and assistance of counsel 

is of necessity impossible where counsel is not given 

reasonable time to consult with the accused and prepare the 

case.”). Yet the Court has declined to “fashion a per se rule 

requiring reversal of every conviction following tardy 

appointment of counsel.” Chambers v. Maroney, 399 U.S. 42, 

54 (1970); see also United States v. Cronic, 466 U.S. 648, 661 

16 “In Arizona v. Fulminante, 499 U.S. 279 (1991), the 

Supreme Court recognized a distinction between structural 

defects, which require reversal, per se, and trial errors, which 

require a reviewing court to engage in harmless error analysis. 

Structural defects are defects in the constitution of the trial 

mechanism, which defy analysis by harmless-error standards. 

A structural defect affect[s] the framework within which the 

trial proceeds, rather than simply an error in the trial process 

itself. Without these basic protections, a criminal trial cannot 

reliably serve its function as a vehicle for determination of guilt 

or innocence, and no criminal punishment may be regarded as 

fundamentally fair.” Lewis v. Pinchak, 348 F.3d 355, 357 (3d 

Cir. 2003) (internal quotation marks and citations omitted). 
35 

(1984) (“[E]very refusal to postpone a criminal trial will not 

give rise to [a presumption of prejudice].”). 

Instead, courts must look to whether “the surrounding 

circumstances make it unlikely that the defendant could have 

received the effective assistance of counsel.” Cronic, 466 U.S. 

at 666; see also id. at 659–60 (circumstances necessitating a 

per se reversal may exist “when although counsel is available 

to assist the accused during trial, the likelihood that any lawyer, 

even a fully competent one, could provide effective assistance 

is so small that a presumption of prejudice is appropriate 

without inquiry into the actual conduct of the trial”). This 

question 

necessarily involves a comparison of the time of 

the appointment with all the attendant 

circumstances, such as the gravity of the charge, 

the experience of appointed counsel, the extent 

of his knowledge and participation in similar 

cases, his opportunity for preparation and even 

what he may have been told by the defendant 

which may reduce the area of necessary 

preparation. 

Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970). 

Precedent provides some insight into the circumstances 

that constitute a constructive denial of counsel requiring per se 

reversal. In Avery v. Alabama, the Supreme Court held that 

there was no denial of counsel where counsel was appointed 

three days before a capital trial began. 308 U.S. 444, 453 

(1940). The Court concluded that the defendant was “afforded 
36 

the assistance of zealous and earnest counsel” who “contested 

every step of the way leading to final disposition of the case.” 

Id. at 450. “That the examination and preparation of the case, 

in the time permitted by the trial judge, had been adequate for 

counsel to exhaust its every angle is illuminated by the absence 

of any indication, on the motion and hearing for new trial, that 

they could have done more had additional time been granted.” 

Id. at 452. 

We similarly held, in Tillery, that per se reversal was 

not warranted where an attorney was appointed to represent a 

defendant on the day of trial.17 294 F.2d at 22. There, the 

attorney had practiced law for fifteen years, had met with the 

defendant twice prior to trial, and had heard his account of the 

crime. Id. The defendant had also failed to disclose any 

witness or alibi requiring investigation. Id. at 20–22. 

Likewise, in United States ex rel. Mathis v. Rundle, we held 

that the late appointment of counsel did not require per se 

reversal where counsel had “a good reputation and solid 

credentials” and was able to review a colleague’s notes from 

an interview with the defendant, but did not have time to 

interview the defendant himself, did not ask for a continuance 

when witnesses did not appear because he “had no reasonable 

expectation” that the witnesses would help, and “was unable to 

say that he had been insufficiently prepared to go to trial.” 394 

F.2d 748, 752–54 (3d Cir. 1968), overruled on other grounds 

by Moore, 432 F.2d 730. 

17 As federal capital cases rarely involve a constructive denial 

of counsel, we turn to non-capital caselaw for guidance. 
37 

In contrast, the Supreme Court has clearly stated that 

trial counsel who merely goes through the motions is really no 

counsel at all. The Court concluded in Powell v. Alabama that 

per se reversal was required since the defendants “were not 

accorded the right of counsel in any substantial sense”: the 

representation provided was “pro forma rather than zealous 

and active”; “[n]o attempt was made to investigate” and “[n]o 

opportunity to do so was given”; and the defendants were 

instead “hurried to trial.” 287 U.S. 45, 58 (1932). 

We similarly held, in United States ex rel. Washington 

v. Maroney, that the defendant was constructively denied 

assistance of counsel where counsel was appointed the day of 

trial, made no pretrial preparations, consulted with the 

defendant only briefly in the back of the courtroom, did not 

object to the admission of a possibly coerced confession, and 

failed to impeach the key government witness or call any 

character witnesses on the defendant’s behalf. 428 F.2d 10, 

14–15 (3d Cir. 1970); see also Vance v. Lehman, 64 F.3d 119, 

122 (3d Cir. 1995) (explaining that the per se rule may apply 

where counsel fails to subject the prosecution’s case to 

adversarial testing, has little or no legal training, or is prevented 

from assisting the defendant). 

Savage argues that Purpura’s late substitution 

constituted a constructive denial of counsel that requires per se 

reversal. Several facts weigh in favor of Savage’s claim: 

 The District Court appointed Purpura only four days 

before voir dire began. See Moore, 432 F.2d at 735 (“A 

belated appointment of counsel [is] strong evidence in a 

defendant’s behalf.”). 
38 

 The guilt-phase trial lasted slightly longer than the time 

Purpura had between appointment and trial to prepare. 

See Washington, 428 F.2d at 14 (“[C]ounsel for an 

indigent defendant, held in custody, must be appointed 

by the court sufficiently far in advance of trial to enable 

counsel adequately to prepare the defense.” (internal 

quotation marks omitted)). 

 This was a complex death penalty prosecution involving 

conduct that extended over more than a decade and 

involved twelve murders. Discovery was substantial, 

including numerous recordings that would have 

required significant time to review. See, e.g., 

A34:18093 (MR. PURPURA: “We understand the 

Government has given us volumes of evidence, actually 

probably too much evidence for me to review. We are 

trying to review it and trying to catch up. . . . At this 

point I’m having difficulty between the forest and the 

trees.”); A34:18100 (MR. PURPURA: “The amount of 

discovery here is so gargantuan that we have no 

notice.”); cf. United States v. Accetturo, 842 F.2d 1408, 

1413–14 (3d Cir. 1988) (concluding that the district 

court’s determination that twenty-four days was 

sufficient for counsel to prepare was not an abuse of 

discretion where the district court stated the amount of 

evidence was rather discrete, intermittent and of small 

quantity). 

 The District Court may have been aware of Sullivan’s 

potential exit from the case as early as January 2011, but 

it failed to act until November 2012. Cf. Chambers, 399 
39 

U.S. at 54 (“Unquestionably, the courts should make 

every effort to effect early appointments of counsel in 

all cases.”). Because courts have an independent 

obligation to ensure that the rights of criminal 

defendants are protected, this delay does give us 

pause.18 See, e.g., Gregg v. Georgia, 428 U.S. 153, 187 

(1976) (“When a defendant’s life is at stake, the Court 

has been particularly sensitive to insure that every 

safeguard is observed.”); Glasser v. United States, 315 

U.S. 60, 71 (1942), superseded on other grounds by 

Fed. R. Evid. 104(a) (“Upon the trial judge rests the duty 

of seeing that the trial is conducted with solicitude for 

the essential rights of the accused.”). 

Nonetheless, Savage fails to take into account numerous 

facts that undermine his constructive denial of counsel claim: 

 In addition to representing to the District Court that he 

had the experience to familiarize himself with the case 

in a timely manner and that he was prepared to 

undertake the efforts necessary to do so, Purpura 

affirmatively stated to the District Court that he could 

be ready for trial. See Morris v. Slappy, 461 U.S. 1, 12 

(1983) (“In the face of the unequivocal and 

uncontradicted statement by a responsible officer of the 

court that he was fully prepared and ‘ready’ for trial, it 

18 We also recognize that this substitution involved lead 

counsel, the only capital-qualified counsel then on the record. 

See 18 U.S.C. § 3005; see also § 3599; Martel v. Clair, 565 

U.S. 648, 659 (2012). 
40 

was far from an abuse of discretion to deny a 

continuance. On this record, it would have been 

remarkable had the trial court not accepted counsel’s 

assurances.”). 

 The District Court’s statements on the record indicate 

that it thought Purpura would be able to adequately 

prepare in the amount of time available. See, e.g., 

A34:18070 (THE COURT: “I would anticipate that Mr. 

Purpura could get up to speed by that time.”). 

 Purpura was an experienced death penalty counsel. 

 Savage did not lodge any pro se objection to the 

substitution or lack of a continuance. 

 Neither Purpura nor Savage pro se moved for a 

continuance. 

 Sullivan consistently indicated a desire to remain on the 

case while his appointment to a judgeship was pending 

and was uncertain about if or when he would need to 

withdraw. He even contributed to and participated in 

over six weeks of voir dire. 

 Hoey’s contribution to Savage’s defense was 

substantial. He was on the case almost from the 

beginning, remained after Sullivan withdrew, and 

according to Purpura, seemed to know the case almost 

as well as Savage did—at least as to discovery 

materials. 
41 

 The District Court had to weigh significant issues of 

judicial administration, including the involvement of 

multiple defendants and the availability of numerous 

attorneys.19

Considering all the attending circumstances, we 

conclude that Savage did not suffer a constructive denial of 

counsel. First, Purpura was an experienced capital-qualified 

counsel. Second, Purpura relied on his experience in 

representing to the District Court that he could get “up to 

speed” in time for trial. Third, neither Purpura nor Savage 

himself moved for a continuance or indicated that Purpura was 

unprepared to proceed to trial. Given that capital defense 

counsel are not, as a rule, timid creatures, we have every reason 

to believe that if Purpura thought he needed additional time to 

prepare, he would have moved for a continuance. Fourth, 

although Purpura was lead counsel and the only capitalqualified counsel, Hoey had been a member of Savage’s 

defense team for several years, and he remained on the team to 

assist Purpura in both preparing and trying the case. See United 

States v. Merlino, 349 F.3d 144, 149–50 (3d Cir. 2003) 

19 See Morris, 461 U.S. at 11–12 (“Trial judges necessarily 

require a great deal of latitude in scheduling trials. Not the least 

of their problems is that of assembling the witnesses, lawyers, 

and jurors at the same place at the same time, and this burden 

counsels against continuances except for compelling reasons. 

Consequently, broad discretion must be granted trial courts on 

matters of continuances; only an unreasoning and arbitrary 

insistence upon expeditiousness in the face of a justifiable 

request for delay violates the right to the assistance of counsel.” 

(internal quotation marks and citations omitted)). 
42 

(defendant was not “left bereft of counsel”). Fifth, it is 

reasonable for us to infer that Purpura inherited some work 

product from Sullivan and Hoey. Sixth, and most importantly, 

our careful examination of the record confirms that Purpura 

provided Savage with zealous representation throughout trial. 

See United States ex rel. Chambers v. Maroney, 408 F.2d 1186, 

1195–96 (3d Cir. 1969) (“This is not a case where belated 

appointment of counsel may have resulted in the failure to call 

witnesses . . . or in the failure to raise defenses of which counsel 

was unaware or which he was unprepared to pursue, or in an 

improvident plea of guilty.” (internal footnotes omitted)), aff’d 

sub nom. Chambers, 399 U.S. 42. In fact, it is unclear to us 

what more Purpura could have done had he requested and 

received additional time to prepare.20

 The situation that the District Court confronted was not 

one where, “although counsel is available to assist the accused 

during trial, the likelihood that any lawyer, even a fully 

competent one, could provide effective assistance is so small 

that” per se reversal is required. Cronic, 466 U.S. at 659–60. 

Thus, there was no structural error. 

20 Savage has alleged that the late appointment of Purpura 

violated both his Sixth Amendment right to counsel and his 

enhanced right to capital counsel under 18 U.S.C. §§ 3305 & 

3599, but Savage was never without capital counsel. We 

conclude that his statutory right to capital counsel was not 

violated for the same reasons that his Sixth Amendment right 

was not. 
43 

C. The District Court committed no trial errors in 

the substitution of counsel. 

 In addition to his structural error claim, Savage alleges 

that the District Court erred in delaying the substitution of 

counsel by (1) overlooking Sullivan’s June 2012 letter; (2) 

failing to adequately address Savage’s pro se, ex parte 

emergency motion; and (3) granting substitution in November 

2012 without a continuance. 

 1. Standard of Review 

We review a district court’s decision regarding 

substitution for an abuse of discretion. See Martel, 565 U.S. at 

663–64. While “[t]here are no mechanical tests for 

determining an abuse of discretion,” United States v. Restaino, 

405 F.2d 628, 631 (3d Cir. 1968), the Supreme Court has held 

that a motion for substitution should be granted when it is in 

the “interests of justice,” Christeson v. Roper, 574 U.S. 373, 

377 (2015). See also Martel, 565 U.S. at 652 (holding that 

district courts “should employ the same ‘interests of justice’ 

standard that [is applied] in non-capital cases” in evaluating 

motions to replace capital counsel). “[F]actors a court of 

appeals should consider in determining whether a district court 

abused its discretion . . . ‘include: the timeliness of the motion; 

the adequacy of the district court’s inquiry into the defendant’s 

complaint; and the asserted cause for that complaint, including 

the extent of the conflict or breakdown in communication 

between lawyer and client (and the client’s responsibility, if 

any, for that conflict).’” Christeson, 574 U.S. at 377 (quoting

Martel, 565 U.S. at 663); see also United States v. Goldberg, 

67 F.3d 1092, 1098 (3d Cir. 1995) (additional considerations 
44 

include “the efficient administration of criminal justice; the 

accused’s rights, including the opportunity to prepare a 

defense; and the rights of other defendants awaiting trial who 

may be prejudiced by a continuance”). 

An abuse of discretion may also occur where a court 

makes no inquiry into a defendant’s request to substitute 

counsel. See Goldberg, 67 F.3d at 1098; United States v. 

Welty, 674 F.2d 185, 187 (3d Cir. 1982); see also McMahon v. 

Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987) (“Even when the 

trial judge suspects that the defendant’s contentions are 

disingenuous, and motives impure, a thorough and searching 

inquiry is required.”).21 

2. The District Court did not abuse its 

discretion in its handling of counsel’s June 

2012 letter. 

 Savage treats Sullivan’s June 2012 communication as 

akin to a motion. Yet it was no more than a letter and did not 

purport to be anything other than that. As such, the District 

Court was not called upon to grant or deny relief. 

Even if we were to conclude that the District Court 

should have acted based on the letter, the District Court did so 

21 Welty and its progeny are the basis for much of our Court’s 

substitution of counsel caselaw. Yet for our purposes, they are 

hardly a perfect fit. The court in Welty, for instance, denied 

substitution. 674 F.2d at 187. Here, the District Court 

eventually granted relief by appointing Purpura. Furthermore, 

Savage consented to the substitution. 
45 

approximately four months later with the appointment of 

Purpura. Savage’s only objection is that the District Court 

should have acted sooner. Given the deference afforded to 

district courts in matters of case administration, see Morris, 

461 U.S. at 11–12; Fuller v. Diesslin, 868 F.2d 604, 611–12 

(3d Cir. 1989), we see no abuse of discretion in the District 

Court’s failing to substitute counsel promptly upon receipt of 

Sullivan’s letter. 

3. The District Court did not abuse its 

discretion in forwarding Savage’s pro se, 

ex parte emergency motion to counsel.

In his June/July 2012 pro se, ex parte emergency motion 

seeking substitution of counsel or to proceed pro se, Savage 

made several allegations that may have constituted good cause: 

Sullivan was not working on the case diligently; 

communication between Savage and Sullivan had broken 

down; and Savage felt that Sullivan was untrustworthy. The 

District Court did not directly address these claims. Rather, the 

courtroom deputy transmitted Savage’s letter to Sullivan, 

asking counsel to advise the District Court. 

Considering the procedural history of this case, the 

District Court’s actions were appropriate. Savage had 

previously submitted numerous pro se filings seeking 

substitution of counsel or permission to proceed pro se. The 

District Court held hearings to address each of those motions 

in turn, and Savage always retracted his grievances. While 

courts must proactively address motions, given Savage’s past 

actions and the deference afforded to district courts in matters 

of case administration, see Fuller, 868 F.2d at 612, there was 
46 

no abuse of discretion in the District Court’s handling of 

Savage’s pro se, ex parte emergency motion. 

4. The District Court did not abuse its 

discretion by substituting counsel without 

a continuance in November 2012.

 For the reasons stated below, we conclude that the 

District Court did not abuse its discretion in substituting 

Purpura for Sullivan. 

 First, Purpura was a highly experienced death penalty 

counsel. His background could reasonably be expected to save 

him valuable preparation time, not to mention court time. 

Moreover, Purpura’s background and experience make it 

extremely likely that he would have sought a continuance if he 

believed he needed it. See Moore, 432 F.2d at 735. No 

continuance was sought. 

Second, Purpura affirmatively represented to the 

District Court that he would be ready for trial. See Morris, 461 

U.S. at 12 (noting that it “would have been remarkable had the 

trial court not accepted counsel’s assurances”). 

Third, Purpura was hardly alone in representing Savage. 

He joined a team of committed lawyers, see Merlino, 349 F.3d 

at 149–50, that included Hoey—who had been on the case for 

nearly three years. Hoey helped Purpura prepare and was 

involved extensively in voir dire, trial and sentencing. 

Finally, Sullivan consistently indicated a desire to 

remain on the case while his appointment was pending, 
47 

uncertain as he was about if or when he would need to 

withdraw.

* * * 

We are well satisfied that Savage did not suffer a 

constructive denial of counsel and that the District Court did 

not commit trial error in the handling of substitution of counsel. 

VI. SAVAGE’S VICINAGE ARGUMENT LACKS MERIT. 

 Section 3235 of Title 18 provides that a trial in a capital 

case “shall be had in the county where the offense was 

committed.” 18 U.S.C. § 3235. Savage contends that the 

“language and history” of this statutory section “show that it 

encompasses the right to a jury drawn from the county of the 

offense.” Def. Br. 115. The District Court disagreed, and so 

do we.22 

 Section 3235 has its roots in the 1789 Judiciary Act. 

The relevant section provided 

[t]hat in cases punishable with death, the trial 

shall be had in the county where the offence was 

committed, or where that cannot be done without 

great inconvenience, twelve petit jurors at least 

shall be summoned from thence. 

22 Because statutory interpretation presents a question of law, 

we exercise plenary review. United States v. Randolph, 364 

F.3d 118, 121 (3d Cir. 2004). 
48 

Act of Sept. 24, 1789, ch. 20, § 29, 1 Stat. 88. This statute 

remained unchanged until 1862. At that time, Congress 

enacted a new law that specified “[t]hat so much of section 

twenty-nine of [the Judiciary Act] . . . as requires in cases 

punishable with death, twelve petit jurors to be summoned 

from the county where the offence was committed, be, and the 

same is hereby, repealed.” Act of July 16, 1862, ch. 189, § 2, 

12 Stat. 589. Thus, Congress explicitly eliminated in 1862 the 

requirement in the Judiciary Act for a local jury in a capital 

case. Thereafter, in 1948, § 3235—Venue in Capital Cases—

was codified in its current form: 

The trial of offenses punishable with death shall 

be had in the county where the offense was 

committed, where that can be done without great 

inconvenience. 

18 U.S.C. § 3235. Consistent with the 1862 repeal, the title 

and text of § 3235 omit any reference to vicinage or a 

requirement for a jury to be summoned from the county where 

the offense occurred. 

 In light of this statutory history and consistent with the 

plain text of the statute, we conclude that the District Court did 

not err in rejecting Savage’s “attempt to import a ‘vicinage 

requirement’ into the statute.” A1:29–30. We agree with the 

District Court that “[t]here is nothing in § 3235 that requires 

the jury to be selected from the county of the offense.” A1:29; 

see United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241 

(1989) (instructing that “where . . . the statute’s language is 

plain, ‘the sole function of the courts is to enforce it according 

to its terms’”) (quoting Caminetti v. United States, 242 U.S. 
49 

470, 485 (1917)). Inasmuch as our task in interpreting a statute 

is “to give effect to the intent of Congress,” we refuse to add a 

vicinage requirement that Congress eliminated more than a 

century ago. United States v. Am. Trucking Ass’ns, 310 U.S. 

534, 542 (1940). 

 Indeed, our caselaw already acknowledges the repeal of 

the Judiciary Act’s vicinage requirement in capital cases. In 

Zicarelli v. Gray, we addressed whether a state prisoner’s 

Sixth Amendment right to trial by a fair cross-section of the 

community was “violated when he [was] indicted for crimes 

arising out of acts occurring in one county of the state and 

[was] subsequently tried before a jury drawn exclusively from 

a second county in the state.” 543 F.2d 466, 468 (3d Cir. 1976) 

(en banc). Our late colleague Judge Adams examined the 

vicinage requirement under English common law, the 

Constitution’s guarantee of a trial in the State where the crime 

occurred,23 and the 1789 Judiciary Act together with its 

requirements of vicinage in capital and noncapital cases. Id. at 

475–76. He distilled three themes from his historical review: 

First, the proposition that a trial must take place 

before a jury drawn from within the state and 

federal judicial district in which the crime was 

committed was considered salient enough to be 

23 Article III, § 2, clause 3 of the U.S. Constitution provides in 

relevant part: “The Trial of all Crimes . . . shall be by Jury; and 

such Trial shall be held in the State where the said Crimes shall 

have been committed.” The Sixth Amendment also guarantees 

that the trial shall be held in the district where the crime 

occurred. U.S. Const. amend. VI. 
50 

guaranteed by the Constitution. Second, the 

concept that a criminal trial must be before a jury 

composed of residents of the county where the 

crime occurred was not deemed to be of 

sufficient consequence to be guaranteed by the 

Constitution. Rather, if such a rule was to be 

adopted, it would have to be done by Congress. 

Id. at 477–78 (footnote omitted). The third theme concerned 

the vicinage of jurors in both capital and noncapital trials, 

prompting the observation that “[t]he mandate that 12 jurors be 

summoned from the county of the crime in capital cases was 

repealed in 1862.” Id. at 478 n.60. 

 In short, no vicinage requirement has existed in capital 

cases since 1862. If there is to be such a rule, Congress will 

need to enact it once again.

24 

 Finally, we reject Savage’s assertion that the District 

Court’s denial of the motion to empanel a jury drawn solely 

from Philadelphia County amounted to structural error. “The 

purpose of the structural error doctrine is to ensure insistence 

on certain basic, constitutional guarantees that should define 

the framework of any criminal trial.” Weaver v. 

Massachusetts, 137 S. Ct. 1899, 1907 (2017) (emphasis 

24 Even if Savage’s argument had some traction, it would 

derive from the right to have the trial conducted in the county 

of the offense. That right is not “absolute . . . , but only a 

qualified right in cases where such a trial could be had ‘without 

great inconvenience.’” Brown v. United States, 257 F. 46, 48 

(5th Cir. 1919), rev’d on other grounds, 256 U.S. 335 (1921). 
51 

added). Yet we observed in Zicarelli that the vicinage 

requirement of drawing a jury in a capital trial from “the county 

where the crime occurred was not deemed to be of sufficient 

consequence to be guaranteed by the Constitution.” 543 F.2d 

at 477–78. Accordingly, there is no constitutional guarantee to 

support Savage’s contention that a structural error occurred 

when the District Court refused to seat a jury comprised solely 

of Philadelphia residents. 

 In sum, the District Court did not err in denying the 

motion to secure the jury from the county of offense pursuant 

to 18 U.S.C. § 3235. 

VII. SAVAGE HAS NOT ESTABLISHED A VIOLATION OF HIS 

CONSTITUTIONAL AND STATUTORY RIGHTS TO A JURY 

DRAWN FROM A FAIR CROSS-SECTION OF THE 

COMMUNITY. 

Under the Sixth Amendment, a criminal defendant is 

entitled to a trial by an “impartial” jury.25 One important step 

in furthering impartiality is to draw jurors from diverse 

segments of the population. See Holland v. Illinois, 493 U.S. 

474, 480 (1990). The Supreme Court has declared this method 

a constitutional guarantee by concluding that “the selection of 

a petit jury from a representative cross section of the 

community is an essential component of the Sixth Amendment 

25 “In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury of the 

State and district wherein the crime shall have been 

committed . . . .” U.S. Const. amend. VI. 
52 

right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528 

(1975). 

A corresponding statutory framework facilitates the 

selection of a representative jury. The Jury Selection and 

Service Act of 1968 (JSSA) provides that federal juries are to 

be “selected at random from a fair cross section of the 

community.” 28 U.S.C. § 1861. Federal district courts are 

tasked with creating jury-selection plans consistent with this 

fair-cross-section principle. § 1863(a). These plans generally 

must draw potential jurors from “voter registration lists” or 

“lists of actual voters,” but they also must identify other 

sources “where necessary to foster the policy and protect the 

rights secured by” the JSSA’s fair-cross-section principle. 

§ 1863(b)(2). 

The U.S. District Court for the Eastern District of 

Pennsylvania has long drawn its potential jurors exclusively 

from voter registration lists. See, e.g., Savage v. United States, 

547 F.2d 212, 214–16 (3d Cir. 1976) (unrelated case describing 

1968 version of jury-selection plan); A1:66 n.7 (describing 

2009 version applicable here). That approach reflects the 

Eastern District’s assessment that “[v]oter registration lists 

represent a fair cross section of the community in the Eastern 

District of Pennsylvania.” U.S. Dist. Ct. for Eastern Dist. of 

Pennsylvania, Plan for the Random Selection of Grand and 

Petit Jurors § 3 (adopted 2017). 
53 

The Eastern District forms its jury pool through 

essentially three steps.26 Every two years, registered voters in 

the jurisdiction are randomly selected to populate a master jury 

wheel. Then the master wheel is culled by randomly choosing 

individuals, mailing each of them a juror qualification form, 

and evaluating their responses to identify who is disqualified, 

exempt or excused from service. The result is a qualified jury 

wheel. Finally, individuals randomly selected from the 

qualified wheel are summoned to serve on venires (i.e., panels) 

of potential jurors in Eastern District trials. 

In preparing to challenge the Eastern District’s juryselection system, Savage sought discovery of extensive 

information that went into creating the master wheel, the 

qualified wheel and the venire.27 See 28 U.S.C. § 1867(f) 

(providing for discovery). The District Court granted Savage’s 

discovery motion in part, providing him access to the Eastern 

District’s jury plan (2009 version) and spreadsheets containing 

statistical information about the race and ethnicity of: 

26 For purposes of this overview, the applicable 2009 version 

of the Eastern District’s plan—as described by the District 

Court in this case—does not differ from the presently operative 

2017 version. See A1:66 n.7; 2017 Jury Plan §§ 3–7. 

27 Savage’s co-defendant Steven Northington filed this 

discovery motion and the follow-up motion to strike the 

venires. We refer to both motions as filed by Savage since the 

District Court determined that Savage had standing to join 

them. 
54 

 the potential jurors on the master and qualified 

jury wheels assembled in 2007, 2009 and 2011;

 the grand jurors who returned the First 

Superseding Indictment;

 the potential petit jurors who were summoned; 

and 

 the subset of potential petit jurors who 

“responded to the summons and showed up to fill 

out a jury questionnaire on September 26 and 27, 

2012.”28 

A1:39. 

Asserting a violation of his Sixth Amendment right to a 

jury selected from a fair cross-section of the community, 

Savage moved to strike the two panels of prospective jurors.29 

He urged the District Court to draw jurors instead from lists 

maintained by the Administrative Office of Pennsylvania 

28 This was a case-specific jury questionnaire that the District 

Court administered to the panels of potential jurors. 

29 We assume the Eastern District summoned two panels 

because of the impending trial in this case. See 2017 Jury Plan 

§ 7(b) (providing option of two panels in anticipation of “a 

highly publicized or extremely lengthy case or cases” calling 

for “an extraordinary [sic] large panel of jurors”). In any event, 

two more panels were added later because of “the Court 

needing two additional panels to fill out questionnaires.” 

A1:65 n.5; see also A1:70 n.9. 
55 

Courts, which supplemented voter registration rolls with 

various other sources. The District Court denied the motion 

because Savage had not made a threshold showing of a faircross-section violation under Duren v. Missouri, 439 U.S. 357 

(1979), and United States v. Weaver, 267 F.3d 231 (3d Cir. 

2001). Savage now argues the District Court erred in 

determining that he failed to satisfy two prongs of the Duren 

standard. 

After briefing in this case concluded, a different panel 

of this Court decided a case presenting a fair-cross-section 

claim, Howell v. Superintendent Rockview SCI, 939 F.3d 260 

(3d Cir. 2019), reh’g denied, No. 17-1758 (3d Cir. Nov. 26, 

2019), petition for cert. filed, Howell v. Garman, No. 19-8378 

(Apr. 24, 2020). The Government raised Howell in a Rule 28(j) 

letter, to which Savage responded. The parties had a further 

opportunity to address Howell’s import at oral argument. 

A. Standard for a Fair-Cross-Section Challenge30

Savage has the burden to establish a violation of his faircross-section rights by identifying (1) “a ‘distinctive’ group in 

the community” (2) that was “not fair[ly] and reasonab[ly]” 

represented among potential jurors compared with its 

representation in the community (3) because of “systematic 

30 “Whether a defendant has been denied his or her right to a 

jury selected from a fair cross section of the community is a 

mixed question of law and fact, and is reviewed de novo.” 

Weaver, 267 F.3d at 235. 
56 

exclusion of the group in the jury-selection process.”31, 32 

Duren, 439 U.S. at 364. 

In Duren, women comprised 54% of the relevant 

population, but only approximately 15% of the weekly venires 

in state court. Id. at 362–63, 365. Recognizing that women 

were a distinctive group, the Supreme Court determined that 

their underrepresentation was not only unfair, but attributable 

to systematic exclusion because the underrepresentation 

“occurred not just occasionally but in every weekly venire for 

a period of nearly a year.” Id. at 364–66. The Court could 

easily pinpoint the exclusionary processes: the jury-selection 

system included several exemptions expressly for women, 

including an automatic exemption upon failure to respond to 

the summons and appear for service. Id. at 361–62, 366–67. 

31 If Savage can make this prima facie showing, then the 

Government would “bear[] the burden of justifying this 

infringement by showing attainment of a fair cross section to 

be incompatible with a significant state interest.” Weaver, 267 

F.3d at 237 (quoting Duren, 439 U.S. at 368) (internal 

quotation marks omitted). In this case, we need not reach the 

Government’s rebuttal burden. 

32 Savage forfeited the opportunity to pursue a JSSA claim here 

by failing to raise it in the District Court. See United States v. 

Baxter, 951 F.3d 128, 136 (3d Cir. 2020), petition for cert. 

filed, No. 20-5133 (July 14, 2020). But because the fair-crosssection standard is equivalent for claims under the Sixth 

Amendment and the JSSA, Weaver, 267 F.3d at 236–37, 

excluding the JSSA claim makes little difference to our 

analysis. 
57 

Here, Savage established the first Duren prong by 

identifying a similarly distinctive group: black individuals. 

But the District Court correctly determined that he failed at the 

second prong because he had not demonstrated unfair and 

unreasonable representation of that group. We also agree with 

the District Court’s third-prong determination that Savage did 

not show that any underrepresentation stemmed from 

systematic exclusion.

B. Savage has not made a prima facie showing of a 

 fair-cross-section violation. 

1. Blacks are a distinctive group. 

To satisfy the first prong, Savage points to the alleged 

underrepresentation of Blacks among prospective jurors. We 

ask whether that group is “sufficiently numerous and distinct 

from others in the population that if members of the group are 

systematically eliminated, the defendant’s right to a jury 

composed of a fair cross section of the community would be 

violated.” Weaver, 267 F.3d at 239–40. We routinely 

recognize that Blacks qualify as a distinctive group. See, e.g., 

id. at 240; Howell, 939 F.3d at 266. No further discussion is 

necessary on this point. 

2. Blacks were not unfairly or unreasonably 

represented on the qualified jury wheel. 

Savage argues that representation of Blacks among 

potential jurors was not “fair and reasonable” when compared 

to the proportion of that group within the Eastern District 

population. In evaluating Savage’s argument as to the second 
58 

prong, we look to statistics to assess the degree, if any, to which 

Blacks were underrepresented. Weaver, 267 F.3d at 240 

(noting the inquiry is “at least in part, a mathematical exercise, 

and must be supported by statistical evidence”). 

Our analysis involves (1) identifying that share of the 

Eastern District population who are Blacks; (2) determining 

the share of the Eastern District’s jury wheel or the venires in 

this case that consisted of Blacks; and (3) deploying statistical 

methods to evaluate any disparity between the two shares. See 

id. at 240–44 (analyzing portion of master wheel); Duren, 439 

U.S. at 364–66 (using venires). 

Population Percentage. Savage relied on census data 

compiled by a consulting firm to calculate that Blacks 

comprised 16.82% of the Eastern District population as of his 

2012 motion. The District Court accepted this undisputed 

statistic. But the District Court should have distilled the juryservice-eligible population of Blacks in the Eastern District. 

See Berghuis v. Smith, 559 U.S. 314, 319, 323 (2010); Howell, 

939 F.3d at 263, 266; Ramseur v. Beyer, 983 F.2d 1215, 1231 

(3d Cir. 1992) (en banc). That jury-service-eligible statistic 

does not appear in the record, so despite the District Court’s 

error, we will consider the statistic representing the full 

population of Blacks in the Eastern District. 

Jury Wheel Percentage. The District Court decided it 

was more appropriate to assess Blacks’ representation on the 

qualified wheel than either the master wheel or two venires 

assembled for Savage’s trial. In the District Court’s view, the 

wheels would better capture any systematic exclusion. And as 

between the two wheels, the master wheel contained limited 
59 

racial data, so the District Court determined the qualified wheel 

reflecting juror questionnaire responses was preferable for faircross-section purposes. The District Court also noted the 

venire-based statistic was incomplete, for it did not account for 

two more venires empaneled while the fair-cross-section 

motion was pending. 

On appeal, Savage does not challenge the District 

Court’s reliance on the Eastern District’s qualified wheel33—

consisting of 8.37% black individuals,34 A1:71—so we will 

rely on it as well. Precedent reinforces that the qualified wheel 

is a valid option for assessing a fair-cross-section claim. See 

Duren, 439 U.S. at 363–64 (stating fair-cross-section principle 

with respect to “jury wheels, pools of names, panels, or venires 

from which juries are drawn” (quoting Taylor, 419 U.S. at 538) 

(internal quotation marks omitted)); Savage, 547 F.2d at 214 

(construing cross-section challenge as targeting qualified 

wheel). 

Statistical Methods. We work with two statistical 

inputs: Blacks represented 16.82% of the Eastern District 

population, but only 8.37% of the qualified wheel. We 

evaluate the significance of this shortfall by calculating two 

33 Specifically, the District Court considered “the 2011 

Qualified Jury Wheel as of August 29, 2012.” A71. 

34 Savage misattributes the 8.37% statistic to the master wheel 

but does not object to our use of that statistic. 
60 

metrics: absolute and comparative disparities.35 Howell, 939 

F.3d at 268. 

Absolute disparity is simply the difference between our 

two statistical inputs, or 8.45%. See Weaver, 267 F.3d at 238. 

That means if we drew a venire of one hundred people from 

the qualified wheel, we would expect to find about eight fewer 

Blacks among them than if we drew one hundred people from 

the Eastern District at large. See Howell, 939 F.3d at 268 n.7. 

Comparative disparity is the quotient of the absolute 

disparity and the population percentage. Weaver, 267 F.3d at 

238. We divide 8.45% by 16.82% for a comparative disparity 

of 50.24%. Thus, Blacks were about half as likely to appear in 

the qualified wheel as we would expect based on their share of 

the Eastern District’s population. See Howell, 939 F.3d at 268 

n.8; Weaver, 267 F.3d at 238 n.5. 

The two methods have countervailing weaknesses when 

it comes to evaluating the underrepresentation of a relatively 

small minority: Absolute disparity tends to understate any 

discrepancy, while comparative disparity tends to overstate it. 

Weaver, 267 F.3d at 242–43 (collecting cases). So relying on 

these methods “can be misleading” when a group’s population 

percentage is small. Berghuis, 559 U.S. at 329; see, e.g., 

United States v. Ashley, 54 F.3d 311, 313–14 (7th Cir. 1995) 

(denying fair-cross-section claim when group comprised 3% of 

35 We have also used a third metric, standard deviation, to 

assess the reliability of sample data. See Howell, 939 F.3d at 

266–68. But no sampling occurred here. Instead we rely on a 

statistic representing the entire qualified wheel. 
61 

relevant population but 0% of venire, due to absolute disparity 

of merely 3%). 

Still, the Supreme Court has expressly left open the 

question of which method(s) courts should use to assess a faircross-section challenge. Berghuis, 559 U.S. at 329–30 

(mentioning absolute disparity, comparative disparity and 

standard deviation). In Duren, the Court did not discuss any 

methods, but simply determined the second-prong showing 

was satisfied based on a side-by-side comparison of the 

percentages of women in the population (54%) and in the 

weekly venires (15%). See 439 U.S. at 362–66. That seemed 

to endorse the absolute disparity method. See Weaver, 267 

F.3d at 242. But more recently, in Berghuis v. Smith, the Court 

observed that “neither Duren nor any other decision of this 

Court specifies the method or test courts must use to measure 

the representation of distinctive groups in jury pools.” 559 

U.S. at 329 (emphasis added). 

This Court continues to use both absolute and 

comparative disparity methods, see Howell, 939 F.3d at 268–

69, because, when applied together, one method can be 

reasonably expected to offset the shortcomings of the other, see 

Weaver, 267 F.3d at 241–43. Nevertheless, taking our cues 

from Duren and persuasive authority, we have shown some 

solicitude for absolute disparity. See id. at 242 (observing it 

“seems to be the preferred method of analysis in most cases”).

 We considered the interplay of absolute disparity and 

comparative disparity most recently in Howell, where Blacks 

comprised 10.7% of the relevant population. 939 F.3d at 266, 

268. The absolute disparity of 5.83% was “lower than or 
62 

similar to absolute disparities in other cases where courts have 

found no constitutional violation, and in fact, numerous courts 

have noted that an absolute disparity below 10% generally will 

not reflect unfair and unreasonable representation.” Id. at 268 

(collecting cases). We were also persuaded by authority 

determining that “comparative disparities similar to the 

comparative disparity in [Howell], 54.49%, were insufficient 

to demonstrate unfair and unreasonable representation.” Id.

(collecting cases). Evaluating the two statistical methods 

together in light of “factually similar cases,” we concluded that 

Howell had not met his burden under Duren’s second prong. 

Id. at 269. 

Savage argues that the District Court inappropriately 

took “bright-line” approaches dismissive of an absolute 

disparity under 10% and a comparative disparity for a small 

population. These characterizations fail to appreciate the 

District Court’s nuanced treatment of the absolute and 

comparative disparities together. With the benefit of Howell, 

we reach the same conclusion as the District Court—that the 

two disparities are insufficient to show unfair and unreasonable 

representation under Duren.

36

36 We easily dispose of Savage’s argument that the District 

Court failed to account for the “practical realit[ies]” of these 

absolute and comparative disparities. Def. Br. 141–42. He 

tries to explain, in layman’s terms, what the results of these 

methods say about underrepresentation of Blacks from the 

Eastern District. The only authority he cites is inapposite. See 

id. at 141 (citing Garcia-Dorantes v. Warren, 801 F.3d 584, 

588 (6th Cir. 2015)). So we maintain our established approach.
63 

Here, the absolute disparity of 8.45% is only slightly 

higher than the absolute disparities that fell short in Howell and 

other cases where a minority group’s population percentage 

was comparable to that of Blacks within the Eastern District. 

See 939 F.3d at 268 (absolute disparity of 5.83%; population 

percentage of 10.7%); United States v. Davis, 854 F.3d 1276, 

1295 (11th Cir. 2017) (absolute disparity of 6.7%; population 

percentage of 12.1%); United States v. Grisham, 63 F.3d 1074, 

1078–79, 1081 (11th Cir. 1995) (absolute disparity in one 

instance of 4.72%; relevant population percentage of 18.31%); 

United States v. Clifford, 640 F.2d 150, 154–55 (8th Cir. 1981) 

(absolute disparity of 7.2%; population percentage of 15.6%);

cf. Ramseur, 983 F.2d at 1230–32 (absolute disparity of 14.1% 

was “of borderline significance” in equal-protection analysis 

overlapping with fair-cross-section analysis; population 

percentage of 35.9%). 

Although Howell looked favorably on jurisdictions that 

have adopted 10% thresholds, see 939 F.3d at 268; see also

Davis, 854 F.3d at 1295; Ashley, 54 F.3d at 314; Clifford, 640 

F.2d at 155; United States v. Maskeny, 609 F.2d 183, 190 (5th 

Cir. 1980),37 we are wary of ossifying that consideration 

through a rule when our own precedent requires us to consider 

comparative disparity as well.38 

37 In Berghuis, the Supreme Court was asked to impose a 10% 

threshold, but the Court declined to reach the issue. 559 U.S. 

at 330 n.4. 

38 Just as the Supreme Court has “not augur[ed] or authorize[d] 

the fashioning of detailed jury selection codes by federal 

courts,” we faithfully maintain that “[t]he fair-cross-section 
64 

Turning to comparative disparity, the 50.24% figure 

here is similar to those deemed insufficient in other cases, 

especially Howell. See 939 F.3d at 268 (comparative disparity 

of 54.49%; population percentage of 10.7%); United States v. 

Orange, 447 F.3d 792, 796, 798–99 (10th Cir. 2006) 

(comparative disparities “rang[ing] from 38.17% to 51.22%”; 

population percentages ranging from 1.64% to 8.63%); United 

States v. Chanthadara, 230 F.3d 1237, 1256–57 (10th Cir. 

2000) (comparative disparities of 40.89% and 58.39%; 

population percentages of 7.9% and 2.74%, respectively); cf. 

Weaver, 267 F.3d at 240, 243 (considering comparative 

disparities of 40.01% and even 72.98% to be “of questionable 

probative value” due to particularly small population 

percentages of 3.07% and 0.97%, respectively). 

Savage points out that the comparative disparity here 

exceeds the “about 40%” disparity we called “borderline” in 

Ramseur. 983 F.2d at 1230, 1232 (population percentage of 

35.9%). But even if Ramseur lent some support when Savage 

filed his briefs, it is less helpful in the wake of Howell. There 

we determined that a comparative disparity of 54.49%—higher 

than both Ramseur’s 40% and Savage’s 50.24%—was not 

enough to tip the scales. The comparison with Howell is not 

quite open-and-shut, for the somewhat higher population 

percentage here (16.82% vs. Howell’s 10.7%) makes the 

comparative disparity a slightly more accurate indicator of 

underrepresentation. But we are unpersuaded that the statistics 

in Savage’s case differ meaningfully. 

principle must have much leeway in application.” Taylor, 419 

U.S. at 537–38. 
65 

Savage attempts to bolster his comparative disparity 

argument by briefly invoking out-of-circuit authority that sets 

a more modest standard for establishing unfair and 

unreasonable representation. In Garcia-Dorantes v. Warren, 

the Sixth Circuit decided that a habeas petitioner made the 

requisite showing based on a population percentage of 8.24%, 

an absolute disparity of 3.45%, and a comparative disparity of 

42%, caused by a glitch in the electronic jury selection system. 

801 F.3d 584, 590–93, 600, 603 (6th Cir. 2015). Because the 

disparities in Savage’s case are somewhat larger, and the 

population percentage is somewhat higher, his case may clear 

the Sixth Circuit’s second-prong hurdle. No matter, we must 

adhere to our own standard. Moreover, Garcia-Dorantes is 

distinguishable on its merits for at least two reasons. 

First, the Sixth Circuit expressly prefers comparative 

disparity where small populations are involved because 

absolute disparity tends to understate discrepancies in those 

instances. Id. at 601–02. We agree with that premise, but we 

also recognize the tendency of comparative disparity to 

exaggerate discrepancies for small populations. Weaver, 267 

F.3d at 242. For that reason, we do not give comparative 

disparity pride of place. See id. at 241–43. Second, the 

Garcia-Dorantes court relied on non-Third Circuit precedent 

indicating that even more modest disparities met the secondprong standard. See 801 F.3d at 601–02 (citing Smith v. 

Berghuis, 543 F.3d 326, 336–39 (6th Cir. 2008), rev’d on other 

grounds, 559 U.S. 314 (2010); United States v. Rogers, 73 F.3d 

774, 776–77 (8th Cir. 1996)). We must look to Third Circuit 

caselaw, where Savage runs up against Howell and our other 

precedent. Garcia-Dorantes may inform our understanding of 
66 

absolute and comparative disparities, but we are certainly not 

bound by it. 

Here, we have considered the absolute and comparative 

disparities together in light of the relevant authorities, Howell 

most particularly. We conclude that Savage fails to meet his 

burden of proving that Blacks were unfairly and unreasonably 

represented on the Eastern District’s qualified jury wheel. 

Because Savage has not satisfied Duren’s second prong, he 

cannot establish a violation of his fair-cross-section rights.39 

3. Alternatively, Blacks were not 

systematically excluded from the qualified 

jury wheel. 

Even if Savage were able to meet Duren’s second 

prong, he would still need to show that Blacks were 

underrepresented on the Eastern District’s qualified jury wheel 

due to systematic exclusion from the jury-selection process. 

The District Court observed no such third-prong showing. 

Looking again to Howell, we agree. 

39 Although “petit juries must be drawn from a source fairly 

representative of the community,” the Supreme Court has 

never required “that petit juries actually chosen must mirror the 

community and reflect the various distinctive groups in the 

population.” Taylor, 419 U.S. at 538. Still, we note Savage’s 

concession elsewhere that two of twelve empaneled jury 

members (16.67%) were black, approximating their 16.82% 

share of the Eastern District population. 
67 

This is not a case where an exclusionary process is 

“readily apparent” as it was with the several exemptions for 

women in Duren. Howell, 939 F.3d at 269. Even so, a 

defendant may establish an exclusionary process by identifying 

“a large discrepancy over time such that the system must be 

said to bring about the underrepresentation.” Id. (quoting 

Weaver, 267 F.3d at 244) (internal quotation marks omitted). 

We evaluate evidence of “the nature of the system, length of 

time studied, and ‘efforts at reform to increase the 

representativeness of jury lists.’” Id. (quoting Ramseur, 983 

F.2d at 1234–35). From the record in this case, we are not 

convinced that these factors demonstrate systematic exclusion 

of Blacks. 

Nature of the System. It goes without saying that 

overtly barring a racial group from jury service constitutes 

systematic exclusion from participation in the process.40 Such 

practices are offensive not only to the Constitution but to our 

values as a free society. Similarly, if a jury-selection plan 

simply gave a racial group additional opportunities to opt out 

that were not provided to others, and members of that group 

often availed themselves of those opportunities, then the plan 

would be systematically excluding that group too.41 See 

Duren, 439 U.S. at 366–67 (evaluating results of exemptions 

for women). Otherwise, “[a] selection process that is facially 

40 Such a plan would also violate the JSSA’s ban on excluding 

potential jurors based on protected characteristics such as race. 

28 U.S.C. § 1862. 

41 The absence of intentional discrimination is not dispositive 

of a fair-cross-section claim, Weaver, 267 F.3d at 244, unlike 

an equal-protection claim, Duren, 439 U.S. at 368 n.26. 
68 

neutral is unlikely to demonstrate systematic exclusion.” 

Howell, 939 F.3d at 269. 

Savage has not identified anything on the face of the 

Eastern District’s jury selection process that draws racial 

distinctions. The process relies exclusively on voter 

registration lists, consistent with other facially neutral 

processes this Circuit has upheld. See id. (voter registration 

lists and driving records); Weaver, 267 F.3d at 237, 244–45 

(voter registration lists); Ramseur, 983 F.2d at 1229, 1235 

(voter registration and licensed driver lists); Savage, 547 F.2d 

at 215 (voter registration list). 

We have, nevertheless, left open the possibility that 

drawing on voter registration lists alone might be actionable 

“under some circumstances” when use of those lists “over time 

did have the effect of sizeably underrepresenting a particular 

class or group on the jury venire.” Weaver, 267 F.3d at 244–

45. Accordingly, facial neutrality alone of a selection system 

is not dispositive. 

Length of Time Studied. Even if a process is facially 

neutral, it might consistently produce disproportionately low 

representation of a particular group. The Duren Court saw a 

large shortfall in women’s representation in “every weekly 

venire for a period of nearly a year,” reinforcing that 

exemptions for women generated their systematic exclusion 

from venires. 439 U.S. at 366–67. Extrapolating from Duren, 

we have suggested that the use of a voter registration list alone 

might still run afoul of the third prong if it produced 

underrepresentation “over time”—enough time to deem the 

underrepresentation “persistent.” Weaver, 267 F.3d at 244–45. 
69 

But we have yet to determine the duration that would have to 

be shown to constitute “persistence.” A two-year showing is 

not necessarily enough, see Ramseur, 983 F.2d at 1230, 1235, 

but something even shorter might suffice if the cause of the 

underrepresentation were as “readily identifiable” and the 

evidence as “similarly specific” as it was in Duren. Howell, 

939 F.3d at 269–70 (eight months sufficient in Duren, but not 

six months in Howell). 

At oral argument, Savage conceded that he had not 

provided the District Court with any record of 

underrepresentation over time. Oral Argument Tr. 185:15–

186:3; see also id. 186:19–20 (as noted by panel). But Savage 

rejected the suggestion that this concession doomed his prima 

facie case; instead, he insisted that a showing of duration is not 

an “absolute requirement” to meet Duren’s third prong. Id.

186:19–187:12. Howell forecloses that argument by stating 

flatly that a study of underrepresentation “must have 

demonstrated ongoing discrimination over a sufficient period 

of time.”42 939 F.3d at 269 (emphasis added). 

Savage’s failure to show the District Court that Blacks 

were underrepresented on an ongoing basis prevents him from 

establishing systematic exclusion. While he points to other 

evidence he submitted to the District Court, none of that 

material is availing.43 Nor can we consider evidence Savage 

42 We read Howell’s reference to “discrimination” in context to 

include unfair and unreasonable representation resulting from 

a facially neutral system. 

43 In the District Court, Savage identified two pieces of pointin-time evidence to suggest that exclusion was systematic: 
70 

failed to present to the District Court. See Howell, 939 F.3d at 

269 n.9. Even if we were to consider such new evidence, as 

we occasionally have, S.H. ex rel. Durrell v. Lower Merion 

Sch. Dist., 729 F.3d 248, 267 n.27 (3d Cir. 2013), the evidence 

Pennsylvania state legislation and a Pennsylvania state 

commission report. See A2:529–30. 

In 2007, state legislation expanded the sources of potential 

jurors available to state courts, Act of July 17, 2007, P.L. 123, 

No. 37, § 3 (codified as amended at 42 Pa. Cons. Stat. 

§ 4521.1), and soon made information available to federal 

district courts in Pennsylvania as well “[u]pon request,” 

§ 4521.1(d)(2) (2008 amendment). See also A2:529–30. 

Also in 2007, a state commission asserted that using voter 

and vehicle registration lists alone frequently distorts the 

representation of certain groups on venires, which as a result 

“may not be reflective of the community-at-large, particularly 

the minority community.” A2:530; Def. Br. 145–46 (quoting 

Pa. Interbranch Comm’n for Gender, Racial, & Ethnic 

Fairness, Suggested Standardized Procedures for Jury 

Selection in Pennsylvania (Sept. 12, 2007)) (internal quotation 

marks omitted). 

This “snapshot” evidence fails to demonstrate systematic 

exclusion in 2007, much less in 2012 when Savage moved to 

strike the venires. Neither the state legislation nor the state 

report specifically addresses underrepresentation of Blacks on 

jury wheels or venires in federal court in the Eastern District of 

Pennsylvania. 
71 

in his opening and reply briefs is likewise unpersuasive.44, 45 

44 In his opening brief, Savage argues that the federal district 

courts in Pennsylvania have failed to implement a juryselection lesson learned by their sister courts within the Third 

Circuit. Federal district courts in New Jersey, Delaware and 

the Virgin Islands supplement voter lists with at least one other 

source. See Dist. Ct. of Virgin Islands, Juror Selection Plan 

§ E (rev. Feb. 20, 2019) (voter registration and licensed driver 

lists); Plan of Implementation of U.S. Dist. Ct. for Dist. of New 

Jersey Pursuant to Jury Selection & Service Act of 1968 

§ C(1)(a) (rev. Mar. 20, 2009) (voter registration lists, and if 

available, lists of licensed drivers, state income tax filers, and 

Homestead rebate application filers); Revised Plan of U.S. 

Dist. Ct. for Dist. of Delaware for Random Selection of Grand 

& Petit Jurors, as Amended § 4 (Dec. 22, 2008) (voter 

registration, licensed driver, and state ID card lists). Yet this 

contrast suffers a flaw similar to Savage’s evidence in the 

District Court: the use of supplementary sources in other 

jurisdictions does not by itself demonstrate systematic 

exclusion of Blacks in the Eastern District of Pennsylvania. 

Savage’s opening brief also insists that “black people in 

Pennsylvania have faced significant challenges in participating 

in the voting process.” Def. Br. 147 n.67. This “one-sentence 

footnote”—devoid of authority or record citation—“falls far 

short of meeting the requirement that an appellant raise an issue 

in his opening brief or else waive the issue on appeal.” United 

States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008). 

45 Savage’s reply brief relies on two additional sources in an 

attempt to demonstrate systematic exclusion: a law review 
72 

We need not reach Howell’s third factor, jury selection 

reform initiatives, to conclude that Savage has failed to 

demonstrate systematic exclusion. His fair-cross-section 

challenge fails on these grounds as well.46 

article by the Chief Judge of the Eastern District, and another 

article reporting results of a voter study in Pennsylvania.

Similar to the state commission discussed above, Chief 

Judge Juan R. Sanchez explains that a discrepancy in voter 

registration rates would generate underrepresentation of some 

groups among potential jurors. Hon. Juan R. Sanchez, A Plan 

of Our Own: The Eastern District of Pennsylvania’s Initiative 

to Increase Jury Diversity, 91 Temp. L. Rev. Online 1, 13 

(2019). According to the other article, a Pennsylvania state law 

enacted in 2012 reportedly disenfranchised voters in mostly 

black districts at a much higher rate. Edward A. Purcell, Jr., 

Reflections on the Fiftieth Anniversary of the March and the 

Speech: History, Memory, Values, 59 N.Y. L. Sch. L. Rev. 17, 

54 (2014–2015) (citing study). 

Even assuming arguendo that this evidence is timely 

presented in reply, it hardly furthers Savage’s argument. These 

observations are unspecific to the Eastern District, and they fail 

to demonstrate underrepresentation over time. 

46 It is presumably the Eastern District’s institutional role—not 

the role of Savage or the District Judge in this case—to conduct 

a study and make findings before deciding that voter 

registration lists must be supplemented with other sources. 

After all, the responsibility to create a jury-selection plan 

consistent with § 1861, and to modify it as needed, resides 

firmly with the respective district court under the supervision 
73 

* * * 

The District Court correctly determined that Savage was 

unable to establish a prima facie violation of his Sixth 

Amendment right to a jury drawn from a fair cross-section of 

the community. Even if Savage had not forfeited the 

corresponding statutory claim, he would still be unable to 

establish a prima facie violation of the JSSA. 

VIII. THE DISTRICT COURT DID NOT ERR IN DENYING THE 

BATSON OBJECTION. 

 Savage raised a Batson47 challenge to the Government’s 

peremptory strike of Prospective Juror 185, a black female. 

The District Court determined that the Government’s reasons 

for striking Number 185 were race-neutral and that the 

of a reviewing panel comprised of the circuit’s judicial council 

and the district’s chief judge or designee. 28 U.S.C. § 1863(a). 

47 Batson v. Kentucky, 476 U.S. 79 (1986), held that a 

prosecutor’s purposeful racial discrimination in the selection 

of the jury violated the state prisoner’s equal protection rights 

under the Fourteenth Amendment. Savage asserts an 

analogous claim under “the implicit equal protection 

component of the Fifth Amendment.” United States v. 

Clemmons, 892 F.2d 1153, 1155 n.1 (3d Cir. 1989) (citing 

United States v. Frame, 885 F.2d 1119, 1137 (3d Cir. 1989)). 

For ease of reference, we will refer to Savage’s claim as a 

Batson claim. The critical inquiry for a trial court is “whether 

the defendant has shown purposeful discrimination.” Foster v. 

Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. 

Louisiana, 552 U.S. 472, 476–77 (2008)). 
74 

prosecution did not strike her because of race. We conclude 

that the District Court did not clearly err. 

A. Background 

 Savage raised his first Batson challenge when the 

Government exercised a peremptory challenge to Number 

185,48 the eighth black prospective juror to be considered. The 

prior seven had been addressed as follows: 

 Number 2 was seated; 

 Number 11 was excused for cause; 

48 Prior to jury selection, the Government filed a motion 

seeking an anonymous jury panel and heightened jury security. 

The Government asked to shield from the parties, their 

attorneys and the public the prospective jurors’ names, 

addresses and employers. The request was based on the 

“history of violence and intimidation” and a view that such 

safeguards were “necessary to protect jurors from the threat of 

danger posed by Defendants.” A1:18. The District Court 

granted the motion, ordered an anonymous jury, and required 

the shielding of each prospective juror’s name, address and 

place of employment. The District Court noted these same 

measures had been taken in Savage’s 2005 federal jury trial 

and that, while detained in the Federal Detention Center in 

Philadelphia, Savage had “plotted to obtain the addresses and 

telephone numbers of the jurors” serving in that trial. A1:20. 

In addition, the U.S. Marshals Service was ordered to transport 

the jurors each day from an undisclosed location to court and 

back to that location at the end of the day. 
75 

 Number 20 was stricken by the Government’s 

peremptory challenge; 

 Number 79 was excused for hardship; 

 Number 108 was excused for cause; 

 Number 110 was excused for “anonymity reasons,” 

A34:18041, which are not contained in the record; and 

 Number 118 was excused for hardship.49

 Number 185, who was age thirty-one, lived in North 

Philadelphia with her seventy-eight-year-old grandmother, her 

eleven-year-old daughter and her brother. According to her 

jury questionnaire, she was an unemployed home health aide 

who planned to return to college in the fall semester to pursue 

a nursing degree. During voir dire, she stated that she was 

actively seeking part-time, evening work that would run from 

7:00 to 11:00 p.m. She did not believe that such part-time work 

would interfere with her performance as a juror. When asked 

her general view of the death penalty, she replied that it 

“depend[ed] on the circumstances” and that it isn’t “fair to 

judge someone for the death penalty without knowing the 

circumstances.” A34:18019. The prosecutor described her 

answers to questions on the subject as “straight down the 

middle.” A34:18019. 

 But Number 185 resided in North Philadelphia, and the 

Savage prosecution involved drug transactions, violent crimes 

49 The circumstances supporting the excusal of these six black 

prospective jurors, including the peremptory strike of Number 

20, have been gleaned from the arguments made at the time of 

the Batson challenge at issue here. 
76 

and murders that occurred in that part of the city. The evidence 

to be presented at trial could be expected to involve frequent 

references to locations within North Philadelphia. Yet when 

asked by the prosecutor if she had any concerns about being on 

the jury, she replied: “No.” 

 Neither side moved to strike Number 185 for cause. 

The prosecution did, however, exercise a peremptory strike. In 

response, defendant Merritt raised a Batson challenge, which 

was joined by Savage, Northington and Kidada. The 

prosecutor responded to the challenge this way: 

[F]irst of all, there’s been no prima facie case 

made in this case. The government has, of 

course, seated one African-American juror. 

There’s no pattern of racial discrimination. 

Secondly, as to this juror, in an abundance of 

caution I would like to proffer our reasons for 

striking this juror; the primary reason being that 

she is unemployed and as a result she will be in 

court four days a week, all day long, would be 

unable to seek work during that time. 

She would also not be able to get work during 

that time and even if she were to obtain night 

shift work as she said she was seeking, that 

would take her working all day long in court, and 

then until 11 o’clock on the night shift. That’s 

simply not conducive to being able to serve and 

to pay attention despite her statements that she 

would try to do that. 
77 

So that is the first reason. 

The second reason is that in this case, especially 

with all of the events and all of the threats and 

the way this is from North Philadelphia, the fact 

that she lives in North Philadelphia is 

troublesome. There are a lot of events that 

occurred, and even though these specific areas 

did not give this juror cause for concern, it still 

concerns the government. 

There are potentially 200, 250 witnesses in this 

case, many of them are going to be from North 

Philadelphia, who would testify to events that 

happened there. 

This is a case that involves violence, witness 

intimidation. There’s even a statement in the 

Court, intercepted communications from Mr. 

Savage indicating that he wanted to go after a 

juror. It’s a big concern to the government that 

we would have a juror specifically from North 

Philadelphia. 

A34:18030–31. 

 Northington responded that the Government had not 

taken issue with seating Number 149—a white male—the day 

before, even though he would have been working seventy to 

eighty hours a week while serving as a juror and working in the 
78 

business that he partially owned.50 Northington also pushed 

back on the Government’s second reason for striking Number 

185, pointing out that the crimes in this case had actually been 

committed in various parts of the city. Counsel added that the 

Government had “already exercised strikes on minorities.” 

A34:18033. The District Court interjected that some of the 

strikes of minorities had been made by the defense. Merritt’s 

50 Number 149 testified that he was part-owner of a business 

and the “sole person in the organization that deals with 

contracts for new work.” A34:17975. He expressed his belief 

it would be a hardship to serve, but thought it was “doable.” 

Id. When questioned further by Savage’s counsel, the 

prospective juror mentioned his two-hour commute into the 

city and stated that jury service would be “extremely difficult.” 

A34:17982. Yet Number 149 acknowledged he was used to 

working long hours and believed he could be a fair and 

impartial juror. The Government saw no need to strike for 

cause. But Savage moved to strike for cause based on hardship 

and because he believed Number 149 was “substantially 

impaired from considering in a meaningful way mitigation 

circumstances based on this strong sense of accountability.” 

A34:18005. In short, Savage considered Number 149 as 

moving “the needle towards the death penalty.” A34:18006. 

The District Court rejected the request to excuse for hardship, 

highlighting the prospective juror’s “willingness to be fair and 

impartial.” Id. When Savage’s counsel argued that this 

prospective juror would be unable to give full attention to the 

case, the District Court disagreed. After his unsuccessful bid 

to excuse Number 149 for cause, Merritt exercised a 

peremptory strike. 
79 

counsel then noted that residents of North Philadelphia are 

primarily black, with Savage’s counsel then speculating that 

the Government was “disappointed they didn’t get [Number 

185] to say something” that would have been a basis to excuse 

her for cause. A34:18036. 

 The District Court took the Batson challenge under 

advisement and commenced the voir dire of the last 

prospective juror of the day. That person was excused, and the 

parties returned to the subject of the Batson challenge. 

Kidada’s counsel recounted that there had been eight black 

prospective jurors called and summarized the status of each.51 

She acknowledged that 

we don’t have a long laundry list of individuals 

to show that there is a pattern, I think the case 

law talks about a pattern within the confines of 

the number of minorities that you actually bring 

into the courtroom and actually interview as we 

have done here. Strictly with regard to race, our 

position is that the government has peremptory 

challenges of two of these African-Americans, 

and that if you expand on that, there was one 

51 As noted previously, Number 2 had been seated, Number 11 

was stricken for cause, Number 20 was removed by the 

Government’s peremptory strike, Number 79 was excused for 

hardship, Number 108 was removed for cause, Number 110 

was excused due to anonymity concerns, and Number 118 was 

excused for hardship. Number 185 was the eighth black 

prospective juror interviewed. 
80 

Hispanic that the government exercised a 

peremptory challenge today.52 

A34:18042. 

 Savage argued that excluding prospective jurors simply 

because they reside in North Philadelphia—especially when 

they have not expressed concern about serving on the jury—

was improper. He asserted that the prosecution should have 

moved to exclude generally on that basis prior to voir dire if 

they were seeking such a limit on who from Philadelphia 

County could serve on the jury. North Philadelphia, the 

defendants argued, comprises a vast area and that striking 

prospective jurors because they come from that part of the city 

is tantamount to “striking people on the basis of their race.” 

A34:18049. 

 The prosecution repeated that its primary concern was 

Number 185’s unemployment and that it did not “want 

unemployed people on the jury as a rule. It doesn’t make any 

difference whether they are white, black or otherwise.”53 

A34:18049. The Government noted that it was not challenging 

the prospective juror for cause, but using a peremptory strike. 

As to Number 185’s residing in North Philadelphia, the 

prosecutor stated that this was, for him, reason for having a 

“residual concern” about her. Id. at 18051. Finally, the 

52 The record does not indicate which prospective jurors were 

Hispanic and the extent to which they were challenged for 

cause or the subject of a peremptory strike. 

53 The prosecution also offered that it struck an unemployed 

white female, which Savage does not dispute. 
81 

Government emphasized that this prosecution was not only 

about drug dealing but also included episodes of violence and 

witness intimidation, pointing to Savage’s cellblock comments 

about “going after jurors.” Id. at 18052. 

 The District Court ruled that the prosecution provided 

“race neutral reasons.” A34:18055. The judge declared: 

In looking at the situation, counsel has given me 

information with regard to what has transpired 

during the course of the jury selection that’s 

helpful information. We do have one AfricanAmerican juror who was already selected to sit 

in this case. There was one other AfricanAmerican juror that was excused as a result of a 

peremptory challenge by the government. We 

now have this juror who is African-American, 

and the government has exercised a peremptory 

challenge. It does not appear to me that the 

government is exercising its challenges, at least 

at this juncture, based upon race. As I said a 

minute ago, the reasons given by the government 

are race neutral. It’s not unusual for an attorney, 

whether it be the defense or a prosecutor, to be 

concerned about a juror who may live in an area 

where the crime scene is by and large located. 

With regard to the juror’s hardship, there is no 

question but that having her here and looking for 

a job, and if she finds a job, working almost 

around the clock would be a difficult situation. 
82 

Under the circumstances, I’m going to deny the 

Batson challenge. I think that the government 

has not exercised its challenge for racial reasons. 

A34:18055–56. In response to a question from Northington’s 

counsel, the District Court acknowledged the broad expanse of 

North Philadelphia and gave leave to the defense to ask 

additional questions during voir dire of other prospective jurors 

from North Philadelphia “without getting into exactly where 

the juror lives.”54 Id. at 18057. 

54 Subsequently, Savage raised a Batson challenge to the 

exclusion of Number 364, a forty-six-year-old black woman. 

The District Court recounted the following: 

The Government offered the following reasons 

for the strike. First of all, that the juror has 

indicated that she does not support the death 

penalty. On the jury questionnaire she indicated 

that she was opposed to the death penalty and 

that it should be used only in extreme cases. The 

Government also indicated that they were 

concerned that the juror’s son had been involved 

in a shooting incident. He was shot while sitting 

in a car and that this was similar to a matter that 

is before this court, the Tybius Flowers shooting. 

The Government points out that the juror became 

very emotional during the questioning with 

regard to that incident, actually started crying. 
83 

 The voir dire process resulted in seventy-eight qualified 

prospective jurors who were neither removed for cause nor for 

hardship. Of these seventy-eight, eleven were black. After the 

parties exercised their peremptory strikes, the jury was 

comprised of ten white venirepersons, two black 

venirepersons, five white alternates, and one black alternate. 

The jury went on to find Savage guilty as charged. 

 Post-trial, Northington filed a timely motion for a new 

trial, which Savage joined. The motion asserted, inter alia, that 

the District Court erred by rejecting the Batson challenges 

raised by the defense. Judge Surrick noted that the 

Government’s reasons for striking Number 185 were: (1) that 

“she was unemployed, was actively seeking a job, and was 

looking for a position where she could work night shifts”; and 

(2) that “the Government had concerns about the juror’s 

The juror also indicated that the crime had not 

been solved and that she thought the police were 

indifferent in dealing with it. The Government 

also indicated that the juror’s boyfriend was 

arrested on an assault charge and the juror visited 

that boyfriend in prison. 

The Government was concerned about all of 

these things and these are the reasons why they 

exercised the peremptory challenge. These 

reasons are all race neutral and they are credible. 

A34:18073–74. Savage does not challenge the District Court’s 

ruling as to this prospective juror on appeal. 
84 

residency—North Philadelphia—in light of the circumstances 

of this case.” A1:158. The judge upheld his earlier conclusion 

that the strike had been for legitimate race-neutral reasons. He 

explained that “[b]ased upon all of the circumstances, 

including the fact that, prior to this strike, an African-American 

juror had already been empaneled, and taking into account the 

prosecutor’s demeanor and credibility, we are satisfied that the 

Government’s reason for striking the juror was not pretextual 

and not in any way motivated by a discriminatory intent.” 

A1:159. 

B. Applicable Law 

 In Batson v. Kentucky, the Supreme Court explained 

that “[p]urposeful racial discrimination in selection of the 

venire violates a defendant’s right to equal protection because 

it denies him the protection that a trial by jury is intended to 

secure.” 476 U.S. at 86. When determining whether there has 

been purposeful discrimination in the striking of a prospective 

juror, the district court engages in a three-step process: 

First, a defendant must make a prima facie 

showing that a peremptory challenge has been 

exercised on the basis of race; second, if that 

showing has been made, the prosecution must 

offer a race-neutral basis for striking the juror in 

question; and third, in light of the parties’ 

submissions, the trial court must determine 

whether the defendant has shown purposeful 

discrimination. 
85 

Snyder, 552 U.S. at 476–77 (citations and internal quotation 

marks omitted). The Snyder Court emphasized that this 

analysis requires consideration of “all of the circumstances that 

bear upon the issue of racial animosity.” Id. at 478. 

 In Hernandez v. New York, the Supreme Court 

instructed that when the prosecution offers to explain its 

reasons for exercising its peremptory strike “without any 

prompting or inquiry from the trial court,” “the preliminary 

issue [at step one] of whether the defendant had made a prima 

facie showing becomes moot.” 500 U.S. 352, 359 (1991). 

“The second step of this process does not demand an 

explanation that is persuasive, or even plausible.” Purkett v. 

Elem, 514 U.S. 765, 767–68 (1995) (per curiam). Rather, it 

requires 

[a] neutral explanation . . . mean[ing] an 

explanation based on something other than the 

race of the juror. At this step of the inquiry, the 

issue is the facial validity of the prosecutor’s 

explanation. Unless a discriminatory intent is 

inherent in the prosecutor’s explanation, the 

reason offered will be deemed race neutral. 

Hernandez, 500 U.S. at 360. 

 The third step requires the trial court “to determine if 

the defendant has established purposeful discrimination.” 

Batson, 476 U.S. at 98. “It is not until the third step that the 

persuasiveness of the justification becomes relevant.” Purkett,

514 U.S. at 768. “Step three of the Batson inquiry involves an 

evaluation of the prosecutor’s credibility, . . . and the best 
86 

evidence of discriminatory intent often will be the demeanor of 

the attorney who exercises the challenge.” Snyder, 552 U.S. at 

477 (internal quotation marks, bracket and citations omitted). 

This step requires the trial judge to decide “whether the 

prosecutor’s proffered reasons are the actual reasons, or 

whether the proffered reasons are pretextual and the prosecutor 

instead exercised peremptory strikes on the basis of race. The 

ultimate inquiry is whether the [government] was ‘motivated 

in substantial part by discriminatory intent.’” Flowers, 139 S. 

Ct. at 2244 (quoting Foster, 136 S. Ct. at 1754). 

 The “question of discriminatory intent [at step three] 

represents a finding of fact of the sort accorded great deference 

on appeal.” Hernandez, 500 U.S. at 364. Because this finding 

will “largely turn on . . . credibility,” id., it is reviewed for clear 

error, id. at 369. See also Snyder, 552 U.S. at 477 (“On appeal, 

a trial court’s ruling on the issue of discriminatory intent must 

be sustained unless it is clearly erroneous.”). As the Supreme 

Court has instructed, “where there are two permissible views 

of the evidence, the factfinder’s choice between them cannot 

be clearly erroneous.” Hernandez, 500 U.S. at 369 (quoting 

Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)). 

 In ruling upon a Batson objection, the circumstances 

warranting consideration may include statistical evidence 

relating to the government’s use of peremptory strikes. MillerEl v. Dretke, 545 U.S. 231, 240–41 (2005). But side-by-side 

comparisons can be more powerful than statistics. Id. at 241. 

“If a prosecutor’s proffered reason for striking a black panelist 

applies just as well to an otherwise-similar nonblack who is 

permitted to serve, that is evidence tending to prove purposeful 

discrimination to be considered at Batson’s third step.” Id.
87 

C. Savage’s Claims of Error 

 Against this legal backdrop, we turn to the substance of 

Savage’s Batson challenge. Savage agrees there’s no need to 

address the first step in the analysis as the prosecution offered 

its reasons for exercising the peremptory strike. See 

Hernandez, 500 U.S. at 359. Nor does Savage contend that the 

Government failed to offer race-neutral reasons for striking 

Number 185: the prospective juror’s unemployment and the 

safety concerns associated with her residence are both facially 

neutral.55 Savage tacitly acknowledges as much in that he 

targets the District Court’s engagement with the third step of 

the Batson analysis: its determination that there was no 

purposeful discrimination. See Def. Br. 155–56. Savage 

contends that the nondiscrimination finding was clearly 

55 Of course, the defense did assert during voir dire that striking 

Number 185 because she lived in North Philadelphia—an area 

that was in their view “predominantly” black—was simply a 

proxy for “striking people on the basis of their race.” 

A34:18034; 18049. But the record here is devoid of evidence 

concerning the racial composition of North Philadelphia. 

Moreover, the Government did not simply identify where 

Number 185 resided as the reason for striking her. It noted its 

concern about safety and security given the circumstances of 

the case that warranted the empanelment of anonymous juries 

in 2005 and again in this prosecution. Considering the totality 

of the Government’s second reason for exercising a 

peremptory strike, we see nothing inherently suggestive of 

racial discrimination.
88 

erroneous because the District Court procedurally and 

substantively erred. 

1. Procedural Error in the District Court’s 

Analysis 

 The Supreme Court has reiterated that trial courts must 

consider “all of the circumstances that bear upon the issue of 

racial animosity” in ruling on a Batson objection. Foster, 136 

S. Ct. at 1748 (quoting Snyder, 552 U.S. at 478); see also 

Miller-El, 545 U.S. at 239. Savage contends that the District 

Court failed to heed this instruction and engage with the 

evidence before it. 

 We cannot conclude that the District Court failed to 

consider all of the circumstances. We have “note[d] that ‘a 

judge considering a Batson challenge is not required to 

comment explicitly on every piece of evidence in the record.’” 

Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004) (quoting 

Riley v. Taylor, 277 F.3d 261, 290 (3d Cir. 2001)). Here, the 

District Court heard argument from counsel for all the parties, 

took the objection under advisement, entertained further 

argument from the parties, was very familiar with the security 

issues surrounding this prosecution, and had the opportunity to 

observe the demeanor of counsel and all prospective jurors 

before ruling on any challenges. 

2. Substantive Challenges to the District 

Court’s Ruling 

 Savage first faults the District Court for considering the 

fact that a black juror had already been seated. Savage relies 
89 

on Sanchez v. Roden, 753 F.3d 279, 299 (1st Cir. 2014), in 

arguing that this observation by the judge constituted error. In 

Sanchez, the First Circuit reviewed a ruling in a § 2254 petition 

and concluded that the Massachusetts Appeals Court had 

unreasonably applied Batson at step one by acknowledging the 

“presence of other black people on the jury.” Id. The First 

Circuit explained that “by focusing exclusively” on the fact 

that some black jurors had already been seated, the court “sent 

the unmistakable message that a prosecutor can get away with 

discriminating against some African Americans . . . so long as 

a prosecutor does not discriminate against all such 

individuals.” Id. (emphasis omitted). Because the prosecution 

had not been required to articulate a race-neutral explanation 

for its challenge, the First Circuit vacated the judgment and 

remanded for further proceedings. 

 Savage’s reliance on Sanchez is misplaced. It is one 

thing for a court to “focus[] exclusively” at step one on the fact 

that some black individuals have been seated on a jury, Id. 

Such a narrow focus would be error. But a court may—indeed 

should—consider all the circumstances at step three, including 

the status of black prospective jurors who were not excused for 

cause or hardship. Here, it was Kidada who, in responding to 

the Government’s reasons for exercising its strike, initially 

reviewed the status of the seven black prospective jurors called 

prior to Number 185. And contrary to Savage’s assertion, the 

District Court recited more than the mere fact that one black 

juror had been seated. In ruling, the judge recounted the status 

of the three black individuals who had not been excused 

(Numbers 2, 20 and 185), and then considered the reasons 

proffered by the Government for striking Number 185. The 
90 

District Court’s mentioning that Number 2, a black person, had 

been seated on the jury was insufficient, by itself, to constitute 

error in the ruling as to Number 185. 

a. Number 149 and Number 185 are 

not similarly situated. 

 Savage asserts that the District Court “failed to consider 

or address the contrast between the Government’s treatment of 

Jurors 149 and 185.”56 Def. Br. 160. In Savage’s view, 

56 In a footnote, Savage submits that the Government’s 

acceptance of other white prospective jurors with more 

pressing hardships further demonstrates that its reasons for 

striking Number 185 were pretextual. Def. Br. 161 n.71. He 

specifically refers to Numbers 315, 551 and 734. But these 

prospective jurors were not comparable. Savage cites the 

“extreme inconvenience” of Number 315’s unavailability to 

her children. Id. (citing A33:17562). Number 315, however, 

was a working mother with two children, and the concern she 

expressed was based in part on the possibility that the jury 

would be sequestered. Number 551, Savage contends, had a 

more pressing hardship than Number 185 as his “employer 

could not find a replacement.” Def. Br. 161 n.71. But the 

concern expressed about a replacement was assuaged when 

Number 551 realized that finding a replacement was his 

employer’s concern and not his. He therefore conceded he did 

not have a personal hardship that would affect juror service. 

As to Number 734, Savage cites her husband’s upcoming 

surgery and her caregiver responsibility for her eighty-eightyear-old mother as hardships that were greater than Number 

185’s extended day. The transcript of voir dire reveals, 
91 

Number 149, a white male, and Number 185, a black female, 

were similarly situated. If both served, he claimed, each would 

be subject to extremely long days that might interfere with his 

or her service on the jury. While the Government did not 

object to Number 149, it did move to strike Number 185. 

Miller-El teaches that “side-by-side comparisons” can 

be “powerful” evidence “tending to prove purposeful 

discrimination.” 545 U.S. at 241. Yet Savage correctly notes 

that the District Court did not discuss Number 149. We do not 

consider this an oversight. Number 149 had been voir dired 

and challenged by the defense just the day before, so the 

District Court no doubt recalled what that voir dire had 

revealed. While there is some congruence between Numbers 

149 and 185 in that each would have been required to serve a 

long day (yet only if Number 185 was able to obtain 

employment) there were also significant differences. Notably, 

Number 149 was not unemployed. In fact, he was a business 

owner whose track record included regularly “work[ing] long 

hours.” A34:18003. Number 185 had no such track record, so 

her capacity and stamina for serving both on the jury and in a 

part-time job were unknown. Further, the Government had no 

however, that Number 734’s caregiver responsibility was not 

for her mother, but her mother-in-law. Moreover, that 

caregiver responsibility was simply companionship; her 

mother-in-law would not be in physical danger if she were to 

serve on the jury. And although her husband’s surgery would 

require him to temporarily be in a sling, Number 734 stated 

that he could “take care of himself,” A34:18129, and that after 

the first four weeks of his recovery, her husband could then 

assist with his mother’s care. 
92 

reason to be concerned for Number 149’s safety based on his 

area of residence. Given the differences between Number 149 

and Number 185, the side-by-side comparison does not support 

Savage’s claim. 

b. The Government’s concern about 

Number 185’s safety was not 

baseless. 

 Savage also contends that the Government’s express 

concern for Number 185’s safety because she resided in North 

Philadelphia was baseless. We acknowledge, as we must, that 

Number 185 denied knowing any of the prospective witnesses 

named on eleven pages of the jury questionnaire, and that she 

did not express concern about serving on the jury. Yet her 

responses do not themselves render the Government’s stated 

safety concerns without merit. The indictment charged Savage 

and others with participating in a RICO conspiracy that 

involved murders, drug trafficking and arson, not to mention 

tampering with and retaliating against a witness. The District 

Court had already demonstrated its safety concerns by 

directing that the jury would serve anonymously and that 

special security measures were to be taken in transporting 

jurors to and from court. And the District Court noted that an 

anonymous jury had been seated in Savage’s 2005 trial. There 

was also the prosecution’s stark reminder that Savage had 

threatened to “go[] after jurors.” A34:18052. 

Nor can we ignore that Number 185’s stated 

unfamiliarity with those named in the jury questionnaire did 

not rule out that she may have been unwittingly acquainted 

with any one of them based on physical appearance from 
93 

having previously seen the person somewhere or even knowing 

of a person by nickname. Based on the foregoing, we reject 

Savage’s contention that the Government’s express concern 

regarding Number 185’s North Philadelphia residence lacked 

factual support. 

c. Statistical evidence does not compel 

a conclusion that the Government’s 

peremptory strike was racially 

motivated. 

 Savage’s final argument in support of his Batson claim 

marshals statistical evidence that he claims demonstrates that 

the Government’s strike was motivated by race.57 Savage 

notes that of the seventy-eight prospective jurors in the venire, 

the Government exercised twenty-two peremptory strikes, and 

that six of them were against black prospective jurors. This 

57 He asserts that statistical evidence was presented to, but 

ignored by, the District Court when the defense raised its final 

Batson challenge to Number 364. At that time, Savage 

asserted that there was an “even greater pattern” of 

discrimination, A34:18065, as the Government had exercised 

twelve peremptory strikes and “50 percent of them have been 

against minorities, four African-Americans and two 

Hispanics.” A34:18061. Given the substance of Number 

364’s voir dire examination and her emotional response to the 

questioning about her son, the District Court was not obliged 

to comment on all of the evidence before ruling from the bench. 

There were several patently race-neutral grounds cited by the 

prosecution for striking Number 364, all of which the District 

Court found credible.
94 

yields a 27.3% strike rate against Blacks that “far exceeded 

[their] representation . . . in the venire as a whole (9.67%) as 

well as in the master jury wheel for the Eastern District of 

Pennsylvania (8.37%).” Def. Br. 165. 

 Savage also points out that the Government struck six 

of the eleven black prospective jurors, which equates to a strike 

rate of 54.5%. In contrast, the Government struck only sixteen 

of the sixty-seven non-black prospective jurors, yielding a 

23.9% strike rate. 

 Unsurprisingly, the Government contends that these 

statistics are not a basis for overturning the District Court’s 

Batson findings. Rather than address the total number of 

Blacks in the venire, the Government focuses on the number of 

Blacks at the time of the second Batson challenge to Number 

364, when there were forty-three individuals in the venire, six 

of whom were black. The Government highlights that it had 

accepted three Blacks: Number 2, who was the first black juror 

seated on the jury, and two others who, ironically, the defense 

had struck. 

 We acknowledge that there is more than one way to 

analyze the racial statistics presented in this case. Most 

instructive for us are the numbers considered by the Supreme 

Court in its more recent Batson cases, Miller-El, Foster and 

Flowers—the total number of Blacks in the venire and the 

number of strikes of those black venire members. 

 In Miller-El, there were eleven Blacks in the venire. 

545 U.S. at 240, 265. The government struck ten of the eleven 
95 

black prospective jurors, which constitutes a “strike rate”58 of 

91%. Id. at 240–41. These strikes were made “in a selection 

process replete with evidence that the prosecutors were 

selecting and rejecting potential jurors because of race” by 

“shuffl[ing]” the jury59 and using “disparate lines of 

questioning . . . meant to induce qualms about applying the 

death penalty (and thus explain a strike),” id. at 265, as well as 

phrasing questions in a way “meant to induce a disqualifying 

answer,” id. at 266. Given these circumstances, the Court 

rejected the state’s argument that it had not stricken two of the 

prospective jurors because they were black. Id.

 In Foster, stark numbers also contributed to the Court’s 

conclusion that the prosecution had violated Batson. The 

venire’s composition in that case included four Blacks. 136 S. 

Ct. at 1743. The government struck each of them, yielding a 

100% strike rate for the black prospective jurors. Id. at 1742–

43. Those numbers were accompanied by shifting 

explanations for why the strikes were made, 

misrepresentations about the record, and a copy of the 

prosecutor’s annotated file identifying not only which 

venirepersons were black but also focusing on race in several 

other respects with an eye to seating an all-white jury. Id. at 

1744–45, 1754. The Supreme Court commented that the 

58 Miller-El does not utilize the term “strike rate.” But it did 

compute the percentage of Blacks in the venire that were 

stricken by the government. For that reason, we use the term 

“strike rate.” 

59 Miller-El explained that jury shuffling is a Texas procedure 

that allows either party to rearrange the order in which the 

venire is seated and questioned. 545 U.S. at 253. 
96 

“sheer number of references to race in that file is arresting.” 

Id. at 1755. 

 Most recently, the Supreme Court vacated the judgment 

of the Mississippi Supreme Court in Flowers after concluding 

that the evidence demonstrated the state court had committed 

clear error in rejecting the defendant’s Batson challenge. 139 

S. Ct. at 2251. The venire in Flowers’s sixth trial included six 

Blacks. The state moved to strike five of the six Blacks in the 

venire, yielding a strike rate of 83%. Id. at 2237. The Supreme 

Court also considered the state’s repeated use of peremptory 

strikes in all of Flowers’s six trials, cumulatively removing 

forty-one of forty-two Blacks, an overall strike rate of 97.6%.60 

Id. at 2235–36. This usage of strikes against black 

venirepersons was consistent with other evidence of 

discriminatory strikes. Together, all the evidence convinced 

the Court that striking one of the black prospective jurors had 

been “motivated in substantial part by discriminatory intent.” 

Id. at 2248. The Court “reiterate[d]” that it did not “decide that 

any one . . . fact[] alone would require reversal.” Id. at 2251. 

Rather, it emphasized that “all of the relevant facts and 

circumstances taken together establish that the trial court at 

Flowers’s sixth trial committed clear error” in denying the 

defendant’s Batson objection. Id. 

 Here, contrary to Savage’s characterization, the 

numbers are not comparable. There were eleven Blacks among 

the prospective jurors. The Government’s challenging of six 

of the eleven established a 54.5% strike rate. That percentage 

60 At times, the state used all, or almost all, of its peremptory 

strikes against Blacks. 139 S. Ct. at 2236–37. 
97 

is well below the strike rates of 91% in Miller-El, 100% in 

Foster, and 83% in Flowers. 

 Moreover, the 54.5% rate in this case is not nearly as 

powerful as Savage contends because we may take into 

account the seating of the black alternate. See Bond v. Beard, 

539 F.3d 256, 269–70 (3d Cir. 2008) (considering black 

alternates in determining whether the government’s strikes 

raised an inference of discrimination). Accordingly, there 

were twelve Blacks in the venire thereby yielding a strike rate 

of 50%. That strike rate, by itself, hardly supports Savage’s 

Batson claim. 

* * * 

 In sum, we conclude that Savage has failed to establish 

that the District Court clearly erred when it found that the 

Government’s strike of Number 185 was not motivated by 

race. At the time of this Batson challenge, the District Court 

made a finding that the “government ha[d] not exercised its 

challenge for racial reasons.” A34:18056. Later, in ruling on 

post-trial motions, the District Court expressly took “into 

account the prosecutor’s demeanor and credibility” and found 

that the Government was not “motivated by a discriminatory 

intent.” A1:159. These factual findings are entitled to “great 

deference.” Hernandez, 500 U.S. at 364. We will not disturb 

them. 
98 

IX. THE DISTRICT COURT DID NOT PLAINLY ERR IN 

INSTRUCTING THE JURY ON THE DOCTRINE OF 

TRANSFERRED INTENT. 

This claim concerns the 2004 firebombing of the 

Coleman house. Recall that Coleman’s mother, Marcella, was 

in the home with his infant son (Damir Jenkins), his twelveyear-old nephew (Tajh Porchea), his fifteen-year-old nephew 

(Sean Rodriguez), his cousin (Tameka Nash) and her ten-yearold daughter (Khadijah Nash). All six individuals—two adults 

and four children—perished in the fire. Savage was charged 

with the six murders as violent crimes in aid of racketeering 

(“VICAR”) under 18 U.S.C. § 1959. 

In his jury charge, Judge Surrick explained the doctrine 

of transferred intent. That instruction was given to assist the 

jury in deciding whether, if it found that Savage had a specific 

intent to kill Marcella Coleman, such intent could be 

“transferred” to the five other victims to meet the intent 

element of the six VICAR murder charges. Specifically, the 

District Court instructed: 

Now, in determining whether a defendant, in this 

instance Kaboni Savage, Robert Merritt, Kidada 

Savage, committed the murders of the Nash 

family as noted in Counts 10 through 15, you 

may find that any such crime was committed in 

aid of racketeering by applying the following 

principle of transferred intent. The doctrine of 

transferred intent and its additional application 

says that if a defendant shoots one person with 

the intent to kill and inadvertently kills another, 
99 

you are permitted to attribute or transfer the 

defendant’s intent to kill to the second person. 

Now, as applied in this case, ladies and 

gentlemen, that principle says that if a defendant 

planned to commit a murder to maintain or 

increase his or her position in an enterprise and 

in attempting to carry out that plan committed a 

murder of another person, the intent of the 

planned murder may be transferred to the other 

murders. What this means for your purposes, 

ladies and gentlemen, is that the government 

may prove the fourth and fifth elements of the 

offense charged in Counts 11 through 15 by 

proving that on October 9, 2004, Defendants 

Kaboni Savage, Robert Merritt and Kidada 

Savage specifically intended to cause the death 

of Marcella Coleman for the purpose of 

maintaining or increasing their position in the 

enterprise, and then willfully set the fire that 

killed Tameka Nash, Sean Anthony Rodriguez, 

Tajh Porchea, Khadijah Nash and Damir 

Jenkins, as well as Marcella Coleman. So the 

intent to kill Marcella Coleman is transferred to 

the other victims. 

A29:15197–99 (emphasis added). 

Savage claims this instruction incorrectly defined the 

doctrine of transferred intent and thereby impermissibly “gave 

jurors permission to ‘transfer’—or more accurately, to 

multiply—Savage’s alleged intent that Lamont would kill 

Marcella Coleman . . . to the other arson victims, including the 
100 

children.”61 Def. Br. 167. In addition, because a similar 

instruction was given at sentencing, Savage claims the 

instruction “infected Savage’s capital-sentencing hearing, 

producing an unreliable death verdict.” Id. We are not 

persuaded. 

A. Standard of Review 

A defendant claiming error in jury instructions must 

inform the District Court of any specific objection and specify 

the grounds for it. See Gov’t of Virgin Islands v. Cruz, 478 

F.2d 712, 718 (3d Cir. 1973); Fed. R. Crim. P. 30(d), 52(b). 

Savage did not object on the trial record to the transferred 

intent instruction, despite the District Court’s reminders to 

counsel that they should do so. See A29:15225 (“All right, 

counsel, any additions or corrections to the Court’s charge?”); 

A29:15227 (In response to a reference to a discussion during 

the charge conference, the District Court stated: “You better be 

more specific because we were in chambers, and it’s not on the 

record.”). 

Because the claimed error is unpreserved, we review for 

plain error. Jones v. United States, 527 U.S. 373, 388 (1999) 

61 Although Savage seems to imply that there was insufficient 

evidence to support the murder convictions as to the arson 

victims other than Marcella Coleman, his claim challenges 

only the District Court’s jury instruction on transferred intent. 

Savage has therefore forfeited a sufficiency of the evidence 

claim. See United States v. Baxter, 951 F.3d 128, 136 (3d Cir. 

2020) (declining to consider forfeited claim), petition for cert. 

filed, No. 20-5133 (July 14, 2020). 
101 

(if a capital defendant fails to preserve an objection to a jury 

instruction, plain error review applies). To prevail on plain 

error review, Savage must establish: (1) there was an error; (2) 

it was plain; (3) it affected his substantial rights (i.e., it affected 

the outcome of the proceeding); and (4) it affected the fairness, 

integrity or public reputation of the proceeding. United States 

v. Olano, 507 U.S. 725, 733–36 (1993). An error is plain if it 

is “obvious” or “clear under current law.” United States v. 

Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en banc) (quoting 

Olano, 507 U.S. at 734). 

B. The “generic” doctrine of transferred intent in 

the context of VICAR murder 

The VICAR statute, 18 U.S.C. § 1959, “was enacted by 

Congress in 1984 as a violent crime corollary to the RICO 

statute.” United States v. Jones, 566 F.3d 353, 361 (3d Cir. 

2009). It proscribes certain violent crimes—including 

murder—when committed, inter alia, to maintain or increase 

one’s position in a racketeering enterprise.62 Although VICAR 

62 Section 1959(a)(1) provides: 

Whoever, as consideration for the receipt of, or as 

consideration for a promise or agreement to pay, 

anything of pecuniary value from an enterprise 

engaged in racketeering activity, or for the 

purpose of gaining entrance to or maintaining or 

increasing position in an enterprise engaged in 

racketeering activity, murders, kidnaps, maims, 

assaults with a dangerous weapon, commits 

assault resulting in serious bodily injury upon, or 
102 

expressly applies to murder, it does not define it. See 18 U.S.C. 

§ 1959. Savage argues that the absence of a definition indicates 

Congress’s desire to employ a “generic” definition of 

murder—and more specifically, transferred intent—for 

VICAR purposes. He suggests that the source for a generic 

definition should be “indications of national legal consensus” 

such as “the Model Penal Code, learned treatises, and other 

sources that show how the majority of jurisdictions defined the 

crime.” Def. Br. 180. 

Our Court has not had occasion to decide whether 

VICAR requires an instruction specific to state law, or if a 

“generic” definition is preferable. Some jurisdictions view 

generic definitions as appropriate in RICO cases. See United 

States v. Kehoe, 310 F.3d 579, 588 (8th Cir. 2002) (“RICO’s 

reference to state crimes identifies the type of generic conduct 

which will serve as a RICO predicate and satisfy RICO’s 

pattern requirement.” (internal quotation marks omitted)); 

United States v. Tolliver, 61 F.3d 1189, 1208–09 (5th Cir. 

1995) (“[F]ederal courts typically require only a ‘generic’ 

definition of the underlying state crime in a RICO charge.”), 

vacated on other grounds by Moore v. United States, 519 U.S. 

802 (1996). 

threatens to commit a crime of violence against 

any individual in violation of the laws of any State 

or the United States, or attempts or conspires so 

to do, shall be punished—for murder, by death or 

life imprisonment, or a fine under this title, or 

both. 
103 

But the VICAR statute requires a predicate act that is 

chargeable under state or federal law. See 18 U.S.C. § 1959 

(prohibiting certain predicate acts in “violation of the laws of 

any State or the United States”). So as the Second Circuit has 

observed, trial courts frequently instruct juries on the elements 

of the specific state or federal offense that is charged as the 

predicate act rather than outlining a “generic” version of the 

crime. United States v. Carrillo, 229 F.3d 177, 184–85 (2d Cir. 

2000) (suggesting that the “best practice” is to instruct juries 

on the elements of the state offenses that are charged as 

predicate acts because, even if theoretically permissible, 

instruction on a “generic” offense risks prejudice to the 

defendant and possible reversal on appeal); see also United 

States v. Adkins, 883 F.3d 1207, 1211 (9th Cir. 2018) 

(“[C]ourts, in certain circumstances, should instruct on the 

state definition or otherwise risk prejudice to the defendant.”). 

Notably, in Savage’s case, the District Court’s instruction on 

the elements of “murder” tracked Pennsylvania law because 

murder under Pennsylvania law was the predicate act charged, 

and Savage does not claim that the District Court erred by 

defining the predicate offense of murder under Pennsylvania 

law rather than “generically.” See A29:15194 (“[I]n order for 

the state offense of murder to be considered as a racketeering 

act, the government must prove beyond a reasonable doubt that 

a member of the enterprise committed murder as defined by the 

Commonwealth of Pennsylvania.”); see also A29:15172–73 

(defining murder under Pennsylvania law for RICO purposes). 

For purposes of Savage’s transferred intent claim, we 

need not choose between Pennsylvania’s state law definition 

and a “generic” definition. That is because the doctrine is 
104 

essentially the same regardless of whether it is Pennsylvania’s 

definition or a generic version. As the Supreme Court 

instructed in Taylor v. United States, a “generic” definition 

usually refers to the common law meaning of a term, unless 

contemporary usage and relevant statutes indicate a divergence 

from that definition. 495 U.S. 575, 592–93 (1990). 

Pennsylvania’s doctrine of transferred intent is rooted in the 

common law and is consistent with the formulation adopted in 

the Model Penal Code. See 18 Pa. Cons. Stat. Ann. § 303(b);63

63 Section 303(b) codifies the doctrine of transferred intent. It 

provides: 

When intentionally or knowingly causing a 

particular result is an element of an offense, the 

element is not established if the actual result is 

not within the intent or the contemplation of the 

actor unless: 

(1) the actual result differs from that designed or 

contemplated as the case may be, only in the 

respect that a different person or different 

property is injured or affected or that the injury 

or harm designed or contemplated would have 

been more serious or more extensive than that 

caused; or 

(2) the actual result involves the same kind of 

injury or harm as that designed or contemplated 

and is not too remote or accidental in its 

occurrence to have a bearing on the actor’s 

liability or on the gravity of his offense. 
105 

Commonwealth v. Gaynor, 648 A.2d 295, 298 (Pa. 1994) 

(Pennsylvania adopted the Model Penal Code’s version of 

transferred intent); Commonwealth v. Gibbs, 626 A.2d 133, 

138 (Pa. 1993) (“The ‘transferred intent’ theory provides that 

if the intent to commit a crime exists, this intent can be 

transferred for the purpose of finding the intent element for 

another crime.”); see also, e.g., Commonwealth ex rel. McCant 

v. Rundle, 211 A.2d 460, 461 (Pa. 1965); Commonwealth v. 

Johnson, 68 A. 53, 53 (Pa. 1907); Commonwealth v. 

Eisenhower, 37 A. 521, 521 (Pa. 1897). We can discern no 

difference between a generic version and Pennsylvania’s 

articulation of the doctrine. 

The parties discuss the propriety of the District Court’s 

transferred intent instruction by considering cases from 

numerous jurisdictions, many of which rely on the common 

law doctrine, to establish that there is a consensus as to how 

the majority of jurisdictions define the doctrine. Indeed, as 

Maryland’s Supreme Court has observed, “there is a singular 

unanimity among the decisions in the overwhelming majority 

of the states” concerning application of transferred intent. 

Gladden v. State, 330 A.2d 176, 181 (Md. 1974). We therefore 

follow the parties’ approach and consider a broad survey of 

cases from jurisdictions throughout the United States before 

reaching our conclusions as to the “generic” meaning and 

application of the transferred intent doctrine. 

With section 303(b), Pennsylvania has adopted the Model 

Penal Code’s approach to transferred intent. See Model Penal 

Code § 2.03(2). 
106 

C. Savage fails to establish that the District Court’s 

transferred intent instruction clearly diverges 

from the “classic doctrine.” 

Both Savage and the Government agree that an 

instruction on transferred intent can be permissible during a 

jury charge on the meaning of intent in the context of VICAR 

murder, Def. Br. 181; Gov’t Br. 145, and we concur. As the 

Court of Appeals for the Second Circuit concluded in United 

States v. Concepcion, transferred intent applies to VICAR 

crimes. 983 F.2d 369, 381–82 (2d Cir. 1992); see also United 

States v. Rahman, 189 F.3d 88, 141 (2d Cir. 1999). 

Savage raises a more narrow issue in challenging the 

District Court’s transferred intent instruction: he draws a 

distinction between “classic” or “generic” transferred intent—

the long-accepted common law legal principle that he concedes 

could apply in a VICAR murder case—and “expanded” or 

“multiplied intent,” which he argues is a novel legal theory. 

See Def. Br. 176, 188. 

According to Savage, transferred intent specifically and 

exclusively means that “a defendant, who intends to kill one 

person but instead kills a bystander, is deemed the author of 

whatever kind of homicide would have been committed had he 

killed the intended victim.” Def. Br. 181 (emphasis added) 

(internal quotation marks omitted) (quoting 2 Wharton, 

Criminal Law § 144 at 197 (14th ed. 1979)). Thus, transferred 

intent in Savage’s view: (1) is limited exclusively to situations 

in which the intended victim survives; and (2) applies only

when there is one intended victim and one actual, unintended 

victim. Having circumscribed the doctrine in this fashion, 
107 

Savage is able to argue that because Marcella was murdered, 

the specific intent to murder her cannot “multiply” to the 

additional victims. 

We do not share this narrow view of the doctrine. 

Caselaw from numerous jurisdictions over many decades 

indicates that transferred intent, as it is generically and 

historically understood in the common law, applies to the 

circumstances of Savage’s case. 

We begin with United States v. Sampol, 636 F.2d 621 

(D.C. Cir. 1980), a case that recognized the deep historical 

roots of the common law doctrine of transferred intent and 

applied it in a manner contrary to Savage’s narrow approach. 

In Sampol, three defendants were accused of detonating a car 

bomb that killed the Chilean Ambassador to the United States 

along with another passenger. The defendants were charged, 

inter alia, with first-degree murder as to both victims, and the 

jury found them guilty. On appeal, the Sampol defendants 

argued that there was insufficient evidence of intent to kill the 

other passenger who was an unintended victim. The Sampol

court was unpersuaded: 

We reject this argument because of the doctrine 

of transferred intent. Under this doctrine one 

who intends to kill one person and kills a 

bystander instead is deemed to have committed 

whatever form of homicide would have been 

committed had he killed the intended victim. 

There are even stronger grounds for applying 

the principle where the intended victim is killed 

by the same act that kills the unintended victim. 
108 

Id. at 674 (citation omitted) (emphasis added). 

In reaching its determination, the Sampol court 

described the common law roots of the transferred intent 

doctrine, going back to the English courts of the 1500s and 

continuing through modern American statutory and common 

law. Id. at 674–75. Examination of the doctrine led the Sampol

court to conclude that the defendants were accountable for both

murders—despite the fact that the defendants had intended a 

single death (the ambassador’s) and had achieved that goal. Id. 

at 675 (“[T]he mens rea of a defendant as to his intended victim 

will carry over and affix his culpability when such criminal 

conduct causes the death of an unintended victim.” (quoting 

Gladden, 330 A.2d at 189)). Thus, in Sampol, common law 

transferred intent was not limited to what Savage would have 

us conclude is the “classic” scenario in which one unintended 

victim is killed rather than the intended target. 

 Similarly, in United States v. Weddell, the Eighth 

Circuit applied the doctrine of transferred intent to 

circumstances akin to Sampol. 567 F.2d 767, 768 (8th Cir. 

1977). There, the defendant was convicted of two murders: a 

bullet passed through the intended victim and also killed an 

unintended victim. Id. The trial court instructed, among other 

things, that, once intent as to the intended victim was 

determined, the jury “could possibly find a lesser degree or no 

degree” as to the unintended victim, but not a greater degree. 

Id. at 769. On appeal, the Eighth Circuit affirmed the 
109 

convictions and concluded that the instruction “adequately 

cover[ed] the applicable law.”64 Id. at 770. 

 Pennsylvania similarly interprets transferred intent 

more broadly than Savage suggests. In Commonwealth v. 

Jones, the Pennsylvania Supreme Court considered the claims 

of a defendant who was convicted of capital murder for 

participating, with two co-defendants, in “firing a barrage of 

twenty bullets at [a group of] people in the courtyard” resulting 

64 Savage contends that Weddell supports his claim that 

transferred intent does not apply to his circumstances, arguing 

that “the court of appeals approved the jury instructions 

because they did not direct the jury, if it found an intent to kill 

the first victim, to transfer that to the second one as a matter of 

law.” Def. Br. 184. We fail to see how the permissive nature 

of the jury instruction in Weddell supports Savage’s argument. 

The Weddell Court did not discuss, much less conclude, 

whether transferred intent is limited to a situation in which the 

intended victim survives or where there is only a single victim. 

To the contrary, the Weddell Court upheld the transferred 

intent instruction although the defendant murdered both an 

unintended and an intended victim. See Weddell, 567 F.2d at 

768. Moreover, the instruction in Weddell is consistent with 

the instruction in Savage’s case, inasmuch as they both contain 

permissive, not mandatory, language. See A29:15198 (“The 

doctrine of transferred intent . . . says that if a defendant shoots 

one person with the intent to kill and inadvertently kills 

another, you are permitted to attribute or transfer the 

defendant’s intent to kill to the second person.”). 
110 

in two deaths. 610 A.2d 931, 935, 938 (Pa. 1992).65 The 

bullets were apparently intended for a specific victim, but that 

person was not hit. Id. at 935. The Jones Court rejected the 

defendant’s claim that he lacked specific intent to murder the 

two unintended victims: “[U]nder the doctrine of transferred 

intent, criminal responsibility is not affected by the fact that the 

bullets struck persons other than the one for whom they were 

apparently intended.” Id. at 938. Thus, Pennsylvania holds 

that the intent to kill one individual can “multiply”—to use 

Savage’s word—to apply to several unintended victims. 

Indeed, in another case decided the same year as Jones, 

Pennsylvania’s Supreme Court echoed this conclusion, and 

further observed that it would be “ludicrous” to hold otherwise. 

It stated: 

Appellant argues that the death sentence is 

excessive in this case because he . . . was 

65 Savage would have us limit our consideration to sources that 

existed in 1984—the year of the enactment of the VICAR 

statute. He has not cited any authority to support that 

limitation. In any event, the doctrine of transferred intent does 

not appear to have changed since 1984, so we need not take a 

position on the issue. Absent some indication that a post-1984 

case has diverged from the common law “generic” doctrine, 

more recent caselaw buttresses our understanding just as pre1984 caselaw does. In other words, although the transferred 

intent doctrine is of “ancient vintage,” “[i]t has lost none of its 

patina by its application over the centuries down unto modern 

times; its viability is recognized by its current acceptance and 

application.” Gladden, 330 A.2d at 181. 
111 

convicted of murder of the first degree based 

upon “transferred intent.” This position is 

ludicrous. The jury found that appellant did 

intend to kill and did kill, and he has no basis to 

compare himself with those who did not. One 

who intentionally kills, but whose fatal blow 

falls on a mistaken victim, is if anything more

culpable than murderers who do not carelessly 

kill innocent bystanders. This type of murder . . 

. is the product of a heart turned not only 

against the intended victim but also against all 

those anonymous but within range of the murder 

weapon.

Commonwealth v. Williams, 615 A.2d 716, 727 (Pa. 1992) 

(first and third emphases added). 

New Jersey takes the same approach as Pennsylvania. 

In State v. Worlock, the Supreme Court of New Jersey rejected 

the claim that the successful murder of an intended victim 

meant that the specific intent could not transfer to the 

unintended victim. 569 A.2d 1314, 1324–25 (N.J. 1990). 

Although New Jersey codified the transferred intent doctrine 

in its penal code, the Worlock court recognized that the 

transferred intent doctrine is a long-standing principle that predates the adoption of the penal code. The doctrine provides 

that “[w]hen a defendant intentionally shoots at one victim but 

kills another, his punishment should be consistent with his 

intent and not his bad aim.” Id. at 1325. The Worlock court 

also observed that federal courts apply transferred intent in the 

same manner. Id. (citing Sampol, 636 F.2d 621, and Weddell, 

567 F.2d 767). Thus, the Worlock court rejected the 
112 

defendant’s claim that he lacked specific intent to kill the 

unintended victim solely because he also killed the intended 

victim.66 Id. 

The Supreme Court of Connecticut has considered—

and rejected—the same arguments that Savage makes here. In 

State v. Hinton, the defendant killed three individuals with a 

single shot of “triple ought” buckshot and was charged with 

three murders. 630 A.2d 593, 596 (Conn. 1993). The 

defendant disputed the transferred intent jury charge, 

contending that the instruction was erroneous because (1) the 

intended victim was killed; and (2) there was more than one 

66 There are numerous jurisdictions that similarly interpret 

transferred intent. For instance, the District of Columbia Court 

of Appeals has concluded that “application of the transferred 

intent doctrine is not limited to situations in which the intended 

victim survives the deadly assault.” Lloyd v. United States, 806 

A.2d 1243, 1251 (D.C. 2002); see also Hunt v. United States, 

729 A.2d 322, 326 (D.C. 1999). And the Indiana Supreme 

Court concluded that a defendant’s intent to kill his wife 

transferred to the accidental death of their child, whom the wife 

was holding during the attack. Noelke v. State, 15 N.E.2d 950, 

952 (Ind. 1938). The Appellate Court of Illinois rejected a 

claim that transferred intent cannot apply when both an 

intended and unintended victim are killed. People v. Young, 

635 N.E.2d 473, 481 (Ill. App. Ct.), appeal denied, 642 N.E.2d 

1300 (Ill. 1994). And in Smith v. Commonwealth, the Supreme 

Court of Kentucky upheld a death sentence where the 

defendant, in the course of ultimately killing the single 

intended victim, also killed three unintended victims. 734 

S.W.2d 437, 447 (Ky. 1987). 
113 

victim. Id. at 597. “The defendant claims that because the 

court’s transferred intent instruction improperly allowed the 

jury to find him guilty of all three murders even if there had 

been only one intended victim, all three intentional murder 

convictions must be reversed.” Id. 

The Hinton court rejected this argument. It concluded 

that Connecticut’s statute codifying transferred intent “leads to 

the result that, when a person engages in conduct with the 

intent to kill someone, there can be a separate count of murder 

for every person actually killed by the conduct.” Id. at 598. 

The Hinton court considered the typical usage of singular 

phrasing in the century-old description of the transferred intent 

doctrine—the same formulation that Savage relies upon—but 

it observed that the use of the singular was never intended to 

limit the doctrine’s application exclusively to single-victim 

scenarios. “[A]lthough the traditional formulation of the 

doctrine of transferred intent is usually stated in singular terms, 

that does not mean that such intent, once employed, is thereby 

totally expended.” Id. at 598 (citation omitted). Concluding 

that such use of the singular should not rule out application of 

the doctrine to conduct that kills more than one unintended 

victim, and consistent with Sampol, Jones, Worlock and other 

cases, the Hinton court observed that “the purpose of 

deterrence is better served by holding defendant responsible 

for the knowing or purposeful murder of the unintended as well 

as the intended victim.” Id. at 599. 

In yet another case, Commonwealth v. Melton, the 

Supreme Judicial Court of Massachusetts observed that “[w]e 

have never required that a defendant’s intent be directed at the 

precise victim of the crime.” 763 N.E.2d 1092, 1097 (Mass. 
114 

2002). Instead, “the requisite mens rea must be shown, but it 

does not need to be shown separately or independently for each 

victim. Rather, once established as to any victim, it satisfies 

that element with respect to all other victims, even if those 

victims are unintended or even unknown to the defendant.” Id. 

at 1098 (emphasis added). 

Although Melton concerned assault rather than murder, 

the opinion discussed the longstanding principle of transferred 

intent, citing numerous examples of decisions from many 

jurisdictions going back decades, including Sampol, Worlock

and Hinton, in which the “principle of transferred intent applies 

to satisfy the element of intent when a defendant harms both

the intended victim and one or more additional but unintended 

victims.” Id. at 1097 (emphasis added). The Melton court 

recognized that a minority of jurisdictions take the view that 

transferred intent does not apply in cases in which a defendant 

succeeds in perpetrating the intended crime against the 

intended victim. Id. at 1098 n.7 (citing People v. Birreuta, 208 

Cal. Rptr. 635 (Cal. 1984) and Ford v. State, 625 A.2d 984 

(Md. 1993)).67 The Melton court expressly rejected that 

67 Notably, the portions of both cases cited as supporting the 

minority view have since been set aside in favor of the majority 

approach. In 2002, the Supreme Court of California concluded 

that Birreuta’s transferred intent analysis was incorrect and 

that “[i]ntent to kill transfers to an unintended homicide victim 

even if the intended target is killed.” People v. Bland, 48 P.3d 

1107, 1115 (Cal. 2002). Similarly, in 2011, the Court of 

Appeals of Maryland rejected the dictum in Ford and 

concluded that “transferred intent is fully applicable where 

both the intended victim and an unintended victim are killed.” 
115 

minority view: “[t]o hold that a defendant who succeeds in 

perpetrating a crime on his intended victim cannot commit any 

form of intentional crime against anyone who is not his actual 

intended victim fails to recognize the harm perpetrated on 

others who are unfortunate enough to be injured or killed by 

the defendant’s criminal conduct.” Id. 

Savage cites a handful of cases lending support to his 

narrow interpretation of transferred intent. For instance, he 

points to Roberts v. State, in which the Court of Criminal 

Appeals of Texas observed that, where the intended victim was 

pregnant—a fact of which the defendant was not aware—“we 

cannot use transferred intent to charge capital murder based on 

the death of the unintended [unborn] victim, as that would 

require using a single intent to support the requirement of two 

intentional and knowing deaths.” 273 S.W.3d 322, 330 (Tex. 

Ct. Crim. App. 2008).68 But the mere existence of a minority 

view of a legal doctrine hardly suggests that a jury instruction 

Henry v. State, 19 A.3d 944, 951 (Md. 2011). Bland and Henry 

rely on many of the same cases we have cited in our discussion 

concerning the “classic” meaning of transferred intent, 

including Sampol, Worlock and Hinton. 68 The Roberts court based its conclusion on the language of 

the Texas capital murder statute, which requires a discrete 

“specific intent to kill” as to each death. Id. The Court of 

Criminal Appeals of Texas has since limited Roberts, 

observing that its dictum requiring “proof of intent to kill the 

same number of persons who actually died” was improvident. 

Ex parte Norris, 390 S.W.3d 338, 341 (Tex. Ct. Crim. App. 

2012). But Texas requires separate conduct to establish 

“separate intents” for each death. Id.
116 

that was consistent with the majority view amounts to plain 

error. 

Numerous state and federal cases, decided both before 

and after VICAR’s 1984 enactment, reveal that the principle of 

transferred intent is not limited to scenarios in which the 

intended victim survives and there is only one unintended 

victim. While we concede that the examples we have 

considered do not constitute an exhaustive study, they are more 

than sufficient to allow us to conclude—with confidence—that 

if there is any error in the District Court’s transferred intent 

instruction, such error is neither “clear” nor obvious.” The 

District Court’s transferred intent instruction was not plainly 

erroneous.69

D. The District Court did not plainly err by 

instructing the jury on transferred intent during 

the sentencing phase. 

During the sentencing phase of Savage’s trial, the 

District Court again instructed the jury on the doctrine of 

transferred intent. See A32:16804–05. Savage did not object. 

See A32:16841–47. Savage now contends this instruction was 

improper, claiming that “[n]either the language nor the history 

of the [Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591,] 

69 Savage also contends that the prosecution made erroneous 

arguments by relying on a transferred intent theory. For the 

same reasons we are unpersuaded that the transferred intent 

jury instruction was plainly erroneous, we are similarly 

unpersuaded that counsel’s arguments consistent with the jury 

instruction constitute plain error. 
117 

suggests that Congress meant to incorporate . . . the transferredintent doctrine into the determination of aggravating factors at 

a capital-sentencing hearing.” Def. Br. 187. In addition, 

Savage challenges the transferred intent instruction as 

unconstitutional. Relying upon Enmund v. Florida, 458 U.S. 

782, 794, 800 (1982), he argues that the Eighth Amendment 

prohibits the use of transferred intent in a capital sentencing to 

substitute for proof of the actual mental state. We do not agree. 

Savage has not identified any case holding that 

transferred intent cannot apply in a federal capital sentencing.70 

Indeed, there appears to be little federal authority on the 

subject, although several state courts have upheld the 

application of the doctrine in capital sentencing. See People v. 

Shabazz, 130 P.3d 519, 524–25 (Cal. 2006); State v. Higgins, 

826 A.2d 1126, 1137–38 (Conn. 2003); Diaz v. State, 860 

So.2d 960, 969 (Fla. 2003); Williams, 615 A.2d at 727–28; 

Smith v. Commonwealth, 734 S.W.2d 437, 447 (Ky. 1987). 

70 Although Savage’s brief makes a passing reference to the 

effect that language and history of the FDPA prohibit the use 

of transferred intent in a federal capital sentencing proceeding, 

he provides no substantive argument concerning the language 

and history of the FDPA to support this position. Such a 

passing reference is insufficient to raise the issue for our 

review. See United States v. Hoffecker, 530 F.3d 137, 162–63 

(3d Cir. 2008). The issue is therefore forfeited. See United 

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well 

settled that an appellant’s failure to . . . argue an issue in his 

opening brief constitutes waiver of that issue on appeal.”). 

Accordingly, we will focus, as Savage did, on whether caselaw 

supports his claim. 
118 

And the Supreme Court has upheld on habeas review the 

application of transferred intent in a state capital proceeding. 

Bradshaw v. Richey, 546 U.S. 74, 75–76 (2005). 

Savage’s sole support for his position that transferred 

intent cannot apply in a federal capital sentencing proceeding 

appears in a footnote in his brief wherein he argues that “the 

few state courts to consider the issue [of transferred intent as 

an aggravated factor at a capital sentencing] have expressly 

refused to read the doctrine into their death-penalty statutes.” 

Def. Br. 187 n.75. He cites two “murder for hire” cases: 

Grandison v. State, 670 A.2d 398 (Md. 1995) and 

Commonwealth v. Gibbs, 626 A.2d 133 (Pa. 1993). Neither 

case stands for the proposition he advances. 

In Grandison, the defendant was sentenced to death for 

hiring an assassin to commit a double murder on his behalf. 

670 A.2d 398, 406–07. The assassin killed one intended victim 

and, due to mistaken identity, killed a second, unintended 

victim. In considering Grandison’s challenge to his sentence, 

Maryland’s highest court rejected his claim that the sentencing 

court erred by not instructing the jury on the doctrine of 

transferred intent. Id. at 424. According to Grandison, the 

aggravating circumstances of his “murder for hire” conviction 

necessarily relied on a transferred intent theory. Id. The 

Maryland Court of Appeals disagreed because, for purposes of 

capital sentencing, it did not matter if the victim was intended 

or unintended. Rather, the specific aggravating factor under 

Maryland law concerned only whether or not Grandison hired 

someone to commit a murder; it did not matter who the 
119 

intended or unintended murder victim was.71 Id. Accordingly, 

while transferred intent might have played a role in 

Grandison’s conviction, it simply was irrelevant to the “murder 

for hire” aggravating factor at sentencing. Id. at 425. 

Gibbs concerned the sentencing of an assassin who 

committed a murder for hire, rather than the individual who did 

the hiring. 626 A.2d 133, 135 (Pa. 1993). Gibbs was hired to 

kill a woman’s husband but ultimately killed a security guard 

instead; he received a death sentence for that murder.72 Id. The 

Pennsylvania Supreme Court considered whether “the trial 

court erred in determining that the common law principle of 

transferred intent is applicable with respect to finding a 

‘contract killing’ an aggravating circumstance when the victim 

is not the person the killer was hired to kill.” Id. at 136. 

The Pennsylvania Supreme Court considered Gibbs’s 

petition seeking review of the refusal to issue an order 

71 Under then-applicable Maryland law, an aggravating factor 

for the death penalty included whether “the defendant 

employed or engaged another to commit the murder and the 

murder was committed under an agreement or contract for 

remuneration or promise of remuneration.” Md. Code Ann., 

Crim. Law § 2-303(g)(1)(vii). Section 2-303 was repealed in 

2013. 

72 Although there was some question as to whether Gibbs was 

hired to kill the security guard as well, see Gibbs, 626 A.2d at 

135, the possibility that the security guard was an intended 

victim was not relevant to consideration of the transferred 

intent issue because there was no challenge to the sufficiency 

of the evidence, see id. at 137. 
120 

precluding consideration of the death penalty. The Superior 

Court ruled that the trial court erred in applying transferred 

intent to a “contract killing” as an aggravating circumstance 

because Gibbs killed an unintended victim rather than the 

individual he was hired to murder. The Pennsylvania Supreme 

Court affirmed. It concluded that the “plain language” of its 

aggravating factor statute, 42 Pa. Cons. Stat. § 9711(d)(2), 

required the killing of the intended victim, not an unintended 

one.73 “The plain language of the statute does not include an 

unintended victim. Rather the clear language requires that the 

defendant was to be paid to kill the victim.” Id. at 138 

(emphasis added). 

Gibbs and Grandison simply do not demonstrate that 

the District Court in Savage’s case plainly erred in instructing 

on transferred intent at sentencing. Both Gibbs and Grandison 

concerned specific statutory language in “murder for hire” 

aggravating factor statutes. Neither case speaks to the 

applicability vel non of transferred intent at a capital sentencing 

absent the murder for hire context. Rather, each relied on 

specific statutory language to determine whether transferred 

intent could apply under the particular circumstances. 

“Murder for hire” was not one of the aggravating factors 

in Savage’s sentencing. More importantly, Savage does not 

argue that the aggravating factors that were at issue in his 

73 The statute provides, “[t]he defendant paid or was paid by 

another person or had contracted to pay or be paid by another 

person or had conspired to pay or be paid by another person for 

the killing of the victim.” 42 Pa. Cons. Stat. § 9711(d)(2) 

(emphasis added). 
121 

sentencing included analogous language making the particular 

identity of the victim—and more specifically, whether the 

victim was intended or unintended—relevant, as it was in 

Gibbs and Grandison. 

Savage’s aggravating factors do not rely on whether the 

actual victim was the intended victim. See 18 U.S.C. 

§ 3592(c)(6) (“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.”), 

(c)(9) (“The defendant committed the offense after substantial 

planning and premeditation to cause the death of a person or 

commit an act of terrorism.”), (c)(11) (“The victim was 

particularly vulnerable due to old age, youth, or infirmity.”), 

(c)(16) (“The defendant intentionally killed or attempted to kill 

more than one person in a single criminal episode.”). For 

instance, one aggravating factor refers to “substantial planning 

and premeditation to cause the death of a person.” 

§ 3592(c)(9) (emphasis added). The statutory language does 

not imply that the “person” must be an intended victim, and 

Savage offers nothing to persuade us otherwise. 

In support of his Eighth Amendment claim, Savage 

relies on Enmund, 458 U.S. at 794, 800, to argue that the Eighth 

Amendment “forbids application of felony-murder doctrine at 

capital sentencing to substitute for proof of [an] accomplice’s 

actual mental state.” Def. Br. 188. Enmund’s felony-murder 

analysis does not assist Savage. 

Enmund concerned a defendant who remained in the 

getaway car during a robbery that resulted in two unplanned 

murders. Id. at 788. Under Florida law, Enmund was 
122 

convicted of first-degree murder under the felony-murder rule 

and was sentenced to death. Id. at 786. The Supreme Court 

held that imposition of the death penalty in such a circumstance 

violates the Eighth Amendment. Id. at 788. 

Specifically, the Supreme Court concluded that it is 

cruel and unusual punishment to sentence a defendant to death 

if the defendant “aids and abets a felony in the course of which 

a murder is committed by others but who does not himself kill, 

attempt to kill, or intend that a killing take place or that lethal 

force will be employed.” Id. at 797 (emphasis added). For 

death penalty purposes, consideration should have been limited 

to the crime in which Enmund actually participated—

robbery—rather than murder. Id. at 801 (“For purposes of 

imposing the death penalty, Enmund’s criminal culpability 

must be limited to his participation in the robbery, and his 

punishment must be tailored to his personal responsibility and 

moral guilt.”). 

Savage’s circumstances differ profoundly from 

Enmund’s, rendering Enmund unhelpful to our plain error 

review. It was a decision specific to felony murder, and it was 

of central importance to the Supreme Court’s analysis that 

Enmund did not intend to kill anyone. Id. at 798 (“Enmund 

himself did not kill or attempt to kill; and . . . the record before 

us does not warrant a finding that Enmund had any intention 

of participating in or facilitating a murder.” (emphasis 

added)). In contrast, the jury determined that Savage 

specifically intended the death of at least one individual, 

Marcella Coleman. Because Savage acted with lethal intent, 

we are not convinced that Enmund clearly supports an Eighth 

Amendment violation in Savage’s case. 
123 

* * * 

Savage has failed to show that the District Court’s 

transferred intent instructions, both during the trial and during 

the sentencing proceeding, were plainly erroneous. 

X. THE DISTRICT COURT DID NOT PLAINLY ERR IN ITS 

JURY INSTRUCTION ON LAY OPINION EVIDENCE. 

At trial, Agent Kevin Lewis provided lay opinion 

testimony intended to assist the jury in understanding the 

meaning of certain coded words and phrases used during 

recorded conversations between Savage and his confederates. 

Savage claims that the District Court’s jury instruction 

concerning Lewis’s opinion testimony violated Rule 701 of the 

Federal Rules of Evidence by suggesting that he was an expert. 

We conclude that the District Court’s lay opinion jury 

instruction is not plainly erroneous for two reasons. First, the 

instruction is consistent with our Court’s caselaw. Second, 

when viewed in context, the instruction did not mislead the jury 

or suggest that it should afford undue weight to Agent Lewis’s 

opinions. 

A. Standard of Review 

Savage argues that our review is de novo because he has 

raised a legal question as to whether the District Court 

presented the correct legal standard in its jury instructions. See 

United States v. Urban, 404 F.3d 754, 779 (3d Cir. 2005) 

(“Where the challenge to a jury instruction is a challenge to the 

instruction’s statement of the legal standard, we exercise 
124 

plenary review.” (internal quotation marks omitted)). But 

Savage did not object on the record to the instruction on Agent 

Lewis’s testimony,74 and we have already rejected the claim 

that we should simply assume that Savage objected off the 

record during the District Court’s charging conference. See 

generally supra Part III. Accordingly, under Rules 30 and 52 

of the Federal Rules of Criminal Procedure, we review the 

instruction for plain error. See Fed. R. Crim. P. 30(d), 52(b); 

United States v. Salahuddin, 765 F.3d 329, 337 (3d Cir. 2014); 

United States v. Brennan, 326 F.3d 176, 192 (3d Cir. 2003). 

We therefore “inquire whether there is (1) an error; (2) that is 

plain; and (3) that affected substantial rights.” Salahuddin, 765 

F.3d at 337 (internal quotation marks omitted). If all three of 

those inquiries are answered in the affirmative, we have 

discretion to grant relief “if the error seriously affects the 

fairness, integrity, or public reputation” of the proceeding. Id. 

(citation omitted). An error is “plain” if it is “obvious” or 

“clear under current law.” Vazquez, 271 F.3d at 100 (quoting 

Olano, 507 U.S. at 734) (internal quotation marks omitted). 

B. The District Court’s instruction is consistent with 

our caselaw concerning lay opinion testimony. 

Federal Rule of Evidence 701 permits the introduction 

of lay opinion testimony that is “rationally based on the 

witness’s perception” and “helpful to clearly understanding the 

witness’s testimony or to determining a fact in issue.” Fed. R. 

Evid. 701(a), (b). Rule 702, in contrast, provides for the 

admission of testimony by a qualified expert, which must be 

74 Savage raised other objections to the jury instructions, but 

not an objection to the lay opinion instruction. 
125 

based on, inter alia, “the expert’s scientific, technical, or other 

specialized knowledge.” Fed. R. Evid. 702(a). 

In 2000, Rule 701 was amended to add subsection (c), 

which bars lay testimony “based on scientific, technical, or 

other specialized knowledge within the scope of Rule 702.” 

Fed. R. Evid. 701(c). Subsection (c) clarifies the distinction 

between lay opinion and expert opinion “to eliminate the risk 

that the reliability requirements set forth in Rule 702 will be 

evaded through the simple expedient of proffering an expert in 

lay witness clothing.” Fed. R. Evid. 701 advisory committee’s 

note to 2000 amendments. Subsection (c) “prohibits a party 

from ‘us[ing] Rule 701 as an end-run around the reliability 

requirements of Rule 702 and the disclosure requirements of 

[Federal Rule of Criminal Procedure 16].’” United States v. 

Shaw, 891 F.3d 441, 453 (3d Cir. 2018) (alterations in original) 

(quoting Hirst v. Inverness Hotel Corp., 544 F.3d 221, 227 (3d 

Cir. 2008)). 

Here, Savage claims that the District Court’s instruction 

on Agent Lewis’s lay opinion testimony ran afoul of Rule 

701(c).75 The District Court instructed: 

75 Prior to trial, the Government moved in limine to admit 

Agent Lewis’s lay opinion testimony pursuant to Rule 701. 

Robert Merritt and Kidada Savage opposed the motion; Kaboni 

Savage did not, although he earlier filed a preemptive motion 

requesting that the District Court grant him any pretrial relief 

sought by his co-defendants. Kidada argued, inter alia, that 

Lewis’s testimony would violate Rule 701(c). The District 

Court granted the Government’s motion. The District Court 
126 

Ladies and gentlemen, witnesses are generally 

not permitted to state their own personal 

opinions about questions during the trial. 

However, a witness may be allowed to testify to 

his or her opinion if it is rationally based on the 

witness’ perception and is helpful to a clear 

understanding of the witness’ testimony or to the 

determination of the facts at issue. 

I’m speaking now about the testimony you will 

remember of Special Agent Kevin Lewis. In this 

case, Agent Lewis was permitted to offer his 

opinions as to the meaning of certain words or 

conversations. He gave you these opinions 

based upon his perceptions. 

The opinions of this witness should be received 

and given whatever weight you think is 

appropriate, given all of the other evidence in 

this case and the other factors discussed in these 

instructions. 

acknowledged some risks in having Agent Lewis provide lay 

opinion testimony, but concluded that “such risks are mitigated 

by vigorous policing of the Government’s questioning to 

ensure Special Agent Lewis does not testify about clear 

statements or provide speculative opinions outside the realm of 

his rational perception.” A1:96 (citation omitted). Despite his 

co-defendants’ pretrial objection to the admission of Lewis’s 

opinion testimony, Savage does not challenge on appeal the 

District Court’s decision to admit the testimony. 
127 

Now, ladies and gentlemen, in weighing Special 

Agent Kevin Lewis’ opinion testimony, you must 

consider his qualifications, the reasons for his 

opinions, the reliability of the information 

supporting those opinions, as well as the other 

factors discussed in these instructions for 

weighing the testimony of witnesses.

You may disregard the opinion entirely, if you 

decide that the witness’ opinion was not based 

on sufficient knowledge or skill or experience or 

training or education. You may also disregard 

the opinion if you conclude that the reasons 

given in support of the opinion are not sound, or 

if you conclude that the opinions are not 

supported by the facts shown by the evidence or 

if you think that the opinions are outweighed by 

other evidence. 

So, ladies and gentlemen, you have opinions that 

were offered to you by experts who have special 

training, skill, knowledge and experience. You 

have opinions that were offered to you by Agent 

Lewis, a lay witness, based upon his perceptions 

and his experience as it relates to this matter. It 

is for you to weigh those opinions and give them 

whatever weight you believe they deserve. 
128 

A29:15119–21 (emphasis added).76 

76 The District Court’s instruction varied from our Circuit’s 

model jury instruction on lay opinion testimony, which 

provides: 

Witnesses are not generally permitted to state 

their personal opinions about important 

questions in a trial. However, a witness may be 

allowed to testify to his or her opinion if it is 

rationally based on the witness’ perception and 

is helpful to a clear understanding of the witness’ 

testimony or to the determination of a fact in 

issue. 

In this case, I permitted (name) to offer (his)(her)

opinion based on (his)(her) perceptions. The 

opinion of this witness should receive whatever 

weight you think appropriate, given all the other 

evidence in the case and the other factors 

discussed in these instructions for weighing and 

considering whether to believe the testimony of 

witnesses. 

3d Cir. Model Criminal Jury Instructions § 4.09. Our Model 

Jury Instructions are not binding on District Courts, however, 

and a variance from the model instruction does not necessarily 

constitute error. United States v. Shannon, 766 F.3d 346, 352 

n.9 (3d Cir. 2014); United States v. Maury, 695 F.3d 227, 259 

(3d Cir. 2012) (“[T]he Model Instructions are not-binding on 
129 

Savage focuses on the District Court’s mention of 

Agent Lewis’s qualifications, reasons for his opinions, and 

reliability of those opinions, as well as the District Court’s 

statement that the opinions may be disregarded if based upon 

insufficient knowledge, skill, experience, education or 

training. He contends that this language pertains to expert 

witness testimony under Rule 702 and therefore improperly 

invited the jury to consider Lewis as an expert and “to trust 

Lewis unduly, despite his lay status.” Def. Br. 193. Savage 

argues that the purportedly erroneous instruction could 

reasonably have affected the outcome of the trial and 

sentencing. 

 The District Court’s instruction is not clearly erroneous 

because it is consistent with our Circuit’s caselaw addressing 

lay opinion testimony. We require lay testimony to be 

grounded either in experience or specialized knowledge. In 

Asplundh Manufacturing Division v. Benton Harbor 

Engineering, we held that “in order to be ‘helpful,’ an opinion 

must be reasonably reliable,” and Rule 701 therefore “requires 

that a lay opinion witness have a reasonable basis grounded 

either in experience or specialized knowledge for arriving at 

the opinion that he or she expresses.” 57 F.3d 1190, 1201 (3d 

Cir. 1995). 

In the time since Congress amended Rule 701, we have 

repeatedly affirmed our holding in Asplundh that the reliability 

of lay opinion testimony should be assessed in light of the 

this, or any, court. They thus cannot invalidate the decisions 

of this Circuit or others.”). 
130 

witness’s relevant specialized knowledge and experience. See, 

e.g., Eichorn v. AT&T Corp., 484 F.3d 644, 649–50 (3d Cir. 

2007) (“In order to satisfy these . . . Rule 701 requirements, the 

trial judge should rigorously examine the reliability of the lay 

opinion by ensuring that the witness possesses sufficient 

special knowledge or experience which is germane to the lay 

opinion offered.” (quoting Asplundh, 57 F.3d at 1201)); Donlin 

v. Philips Lighting N. Am. Corp., 581 F.3d 73, 83 (3d Cir. 

2009) (“A trial judge must rigorously examine the reliability of 

a layperson’s opinion by ensuring that the witness possesses 

sufficient specialized knowledge or experience which is 

germane to the opinion offered.” (citing Asplundh, 57 F.3d at 

1200–01)). We have clarified that “[w]hen a lay witness has 

particularized knowledge by virtue of her experience, she may 

testify—even if the subject matter is specialized or technical—

because the testimony is based upon the layperson’s personal 

knowledge rather than on specialized knowledge within the 

scope of Rule 702.” United States v. Fulton, 837 F.3d 281, 301 

(3d Cir. 2016) (quoting Donlin, 581 F.3d at 81). 

Thus, “as long as the technical components of the 

testimony are based on the lay witness’s personal knowledge, 

such testimony is usually permissible” under Rule 701.77 Id.; 

77 The permissibility of lay opinion testimony based upon 

specialized knowledge aligns with the advisory committee’s 

note to Rule 701, which explains that the amendment is not 

designed to prevent lay witnesses from testifying based on 

“particularized knowledge that the witness has by virtue of his 

or her position.” Fed. R. Evid. 701 advisory committee note to 

2000 amendments; see also, e.g., Tampa Bay Shipbuilding & 

Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1222 (11th 
131 

see also, e.g., United States v. El-Mezain, 664 F.3d 467, 514 

(5th Cir. 2011) (“Testimony need not be excluded as improper 

lay opinion, even if some specialized knowledge on the part of 

the agents was required, if it was based on first-hand 

observations in a specific investigation.”); United States v. 

Rollins, 544 F.3d 820, 831–32 (7th Cir. 2008) (agent’s 

testimony as to the meaning of coded terms is based on 

experience in the particular case and is therefore permissible 

under Rule 701). Indeed, as one of our sister circuits has 

observed, it is appropriate to inform a jury of a lay witness’s 

qualifications and experience so that the jurors may assess the 

value of the opinion testimony: 

Had the agent been testifying exclusively as a lay 

witness about the code words he had learned the 

meaning of in the course of his investigation of 

the defendants’ conspiracy, it would not have 

been improper to introduce him to the jury as an 

experienced investigator, rather than a novice 

listening to taped conversations of drug 

conspirators for the first time, any more than it is 

improper to ask an eyewitness whether he has 

good vision. 

Cir. 2003) (concluding, based on the advisory committee’s 

note citing Asplundh, that “opinion testimony by business 

owners and officers is one of the prototypical areas intended to 

remain undisturbed” by Rule 701(c)). 
132 

United States v. Moreland, 703 F.3d 976, 983 (7th Cir. 2012), 

holding modified on other grounds by United States v. Jett, 908 

F.3d 252 (7th Cir. 2018). 

 In light of our precedent, the error Savage says is in the 

jury instructions is certainly not “clear under current law.” 

Vazquez, 271 F.3d at 100. 

C. When viewed in context, the District Court’s 

instruction did not mislead the jury. 

We abide by the longstanding principle that jury 

instructions are not to “be evaluated in artificial isolation,” but 

“must be evaluated in the context of the overall charge.” 

United States v. Berrios, 676 F.3d 118, 137 (3d Cir. 2012) 

(citations omitted). When the District Court’s lay opinion 

instruction is considered in context, the instruction does not 

suggest that Agent Lewis’s opinion testimony should be 

treated as that of an expert to whom the jury should defer. See 

id. (“[A]n instruction that appears erroneous on its own may be 

remedied by the balance of the court’s instructions.”). 

Immediately prior to giving the instructions regarding 

Agent Lewis’s lay opinion, the District Court provided 

instructions regarding expert witnesses. It used the term 

“expert” throughout those instructions, specifying that 

“because of their knowledge, their skill, their experience, their 

training and their education in a particular science or 

profession, these witnesses were permitted to give you their 

opinions in those areas of their expertise.” A29:15118 

(emphasis added). The District Court did not mention Agent 

Lewis during its instruction on expert opinion. 
133 

When it reached its instructions regarding Agent Lewis, 

the District Court preceded those instructions with the 

transition that “a witness may be allowed to testify to his or her 

opinion if it is rationally based on the witness’ perception . . . . 

I’m speaking now about the testimony you will remember of 

Special Agent Kevin Lewis.” A29:15119–20 (emphasis 

added). Shortly thereafter, it stated that Agent Lewis’s 

opinions were based on his perceptions, rather than on 

expertise. See A29:15120 (reiterating that “[Agent Lewis] 

gave you these opinions based upon his perceptions”) 

(emphasis added). And the District Court concluded by 

explaining a third time the difference between expert opinion 

testimony and Agent Lewis’s lay opinion testimony: “So, 

ladies and gentlemen, you have opinions that were offered to 

you by experts who have special training, skill, knowledge and 

experience. You have opinions that were offered to you by 

Agent Lewis, a lay witness, based upon his perceptions and his 

experience as it relates to this matter.”78 A29:15121 (emphasis 

added). Thus, the District Court took appropriate care to 

explain to the jury that Agent Lewis’s lay opinion testimony 

78 Relatedly, the District Court instructed that a witness’s status 

as a law enforcement officer does not mean that the 

individual’s testimony is entitled to any special weight: “The 

fact that a witness is employed as a law enforcement officer 

does not mean that his or her testimony necessarily deserves 

more or less consideration or greater or lesser weight than that 

of any other witness.” A29:15108–09. 
134 

was based upon his personal perceptions and was different 

from the testimony of the expert witnesses. 

 The District Court also instructed the jury in multiple 

instances that it was not required to accept the testimony of any 

witness, including Agent Lewis. See A29:15098 (“Ladies and 

gentlemen, you have to give the evidence whatever weight you 

believe it deserves.”); A29:15104 (“[Y]ou must decide what 

testimony you believe and what testimony you did not 

believe.”); A29:15107 (“[A]fter you make your own judgment 

about the believability of a witness, you can then attach to that 

witness’ testimony the importance or the weight that you think 

that witness’ testimony deserves.”); A29:15121 (“It is for you 

to weigh those opinions and give them whatever weight you 

believe they deserve.”). And of course, as a general matter, we 

presume that juries follow the instructions given to them. 

United States v. Bryant, 655 F.3d 232, 252 (3d Cir. 2011). 

Considered in context, then, the District Court’s 

instructions do not suggest the jury should give undue weight 

to Agent Lewis’s opinion testimony. Savage has failed to 

establish that the District Court’s jury instruction on lay 

opinion amounts to plain error. 

XI. NO ERROR OCCURRED DURING THE PENALTY-PHASE 

PROCEEDINGS. 

Finally, Savage raises six issues relating to his “penaltyphase” proceedings. None constitute reversible error. 
135 

A. Background 

We start by reviewing the capital-sentencing process 

generally, and the Federal Death Penalty Act specifically. 

Every criminal prosecution involves two basic segments: First, 

is the defendant guilty? And second, if he is guilty, what 

should the punishment be? In most trials, the trier-of-fact—

paradigmatically, a jury—answers the first question; the judge 

decides the second, considering the government’s 

recommendation before choosing from the statutory menu of 

potential punishments. 

But when the government seeks the death penalty, 

recognizing the special need “to maintain a link between 

contemporary community values and the penal system,” the 

law requires that a jury answer the second question. Gregg v. 

Georgia, 428 U.S. 153, 190 (1976) (plurality opinion) (quoting 

Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968)); see 

also Ring v. Arizona, 536 U.S. 584, 615–16 (2002) (Breyer, J., 

concurring in the judgment). And to pass constitutional 

muster, a sentencing statute authorizing the death penalty must 

guide the jury’s discretion with “general rules that ensure 

consistency in determining who receives a death sentence.” 

Kennedy v. Louisiana, 554 U.S. 407, 436 (2008). It must also 

empower the jury to consider “the ‘character and record of the 

individual offender and the circumstances of the particular 

offense.’” Id. (quoting Woodson v. North Carolina, 428 U.S. 

280, 304 (1976) (plurality opinion)). 

In federal courts, the Federal Death Penalty Act, 18 

U.S.C. §§ 3591–3599, authorizes the death penalty for 

defendants guilty of certain homicides, as long as an 
136 

aggravating circumstance makes a death sentence neither 

“excessive” nor “grossly disproportionate.” Coker v. Georgia, 

433 U.S. 584, 592 (1977) (plurality opinion). And even then, 

all the aggravating circumstances must outweigh any 

mitigating circumstances “that might induce a sentencer to 

give a lesser punishment.” Ring, 536 U.S. at 611 (Scalia, J., 

concurring); see § 3593(e). 

If the government intends to seek the death penalty, it 

must file a pretrial notice “stating that . . . the circumstances of 

the offense” justify a capital sentence and specifying which 

“aggravating factor or factors” it “proposes to prove.” 

§ 3593(a). The FDPA identifies sixteen statutory aggravating 

factors for homicide, and the government can propose 

additional nonstatutory aggravators tailored to the particular 

offense. See § 3592(c).79 The FDPA also identifies seven 

79 The sixteen statutory aggravating factors are: 

1. if the homicide occurred during commission of another 

crime; 

2. if the defendant previously committed a violent felony 

involving a firearm; 

3. if the defendant previously committed an offense 

punishable by death or life imprisonment; 

4. if the defendant previously committed other serious 

offenses; 

5. if the homicide created a grave risk of death to other 

persons; 

6. if the homicide was especially heinous, cruel or 

depraved; 

7. if the defendant procured the homicide by payment; 
137 

mitigating factors, plus a catchall provision for any “factor[] in 

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

circumstance of the offense that mitigate[s] against imposition 

of the death sentence.” § 3592(a).80

8. if the defendant committed the homicide for pecuniary 

gain; 

9. if the homicide involved substantial planning and 

premeditation; 

10.if the defendant previously committed two felony drug 

offenses; 

11.if the victim was particularly vulnerable; 

12.if the defendant previously committed a serious federal 

drug offense; 

13.if the homicide occurred during a continuing criminal 

enterprise involving drug sales to minors; 

14.if the victim was a high public official; 

15.if the defendant previously committed sexual assault or 

child molestation; or 

16.if the homicide involved multiple killings or attempted 

killings. 

See § 3592(c)(1)–(16). 

80 The seven mitigators include: 

1. if “[t]he defendant’s capacity to appreciate the 

wrongfulness of the defendant’s conduct or to conform 

conduct to the requirements of law was significantly 

impaired”; 

2. if “[t]he defendant was under unusual and substantial 

duress”; 

3. if “the defendant’s participation was relatively minor”; 
138 

The government’s notice triggers “a bifurcated 

procedure . . . in which the question of sentence is not 

considered until the determination of guilt has been made.” 

Gregg, 428 U.S. at 190–91 (plurality opinion). If the jury 

returns a guilty verdict, a second proceeding is conducted to 

determine the sentence. Each side may offer opening 

arguments; the government presents testimony and exhibits 

supporting the noticed aggravators; the defense may present 

testimony and exhibits supporting any mitigators; each side 

may put on rebuttal testimony and exhibits; each side may offer 

closing statements; the District Court instructs the jury; the jury 

then deliberates. See § 3593(c). Notably, the Federal Rules of 

Evidence do not apply—the District Court may exclude 

relevant information only “if its probative value is outweighed 

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

or misleading the jury.” Id. 

To impose the death penalty, the jury must unanimously 

find that 

 at least one statutory aggravating factor exists beyond a 

reasonable doubt; and 

4. if another “equally culpable” defendant “will not be 

punished by death”; 

5. if “[t]he defendant did not have a significant prior 

history of other criminal conduct”; 

6. if “[t]he defendant committed the offense under severe 

mental or emotional disturbance”; or 

7. if “[t]he victim consented to the criminal conduct that 

resulted in the victim’s death.” 

See § 3592(a)(1)–(7). 
139 

 all the aggravating factors found unanimously beyond a 

reasonable doubt outweigh “the perceived significance” 

of all the mitigating factors that any juror found by a 

preponderance of the evidence. 

United States v. Ebron, 683 F.3d 105, 150 (5th Cir. 2012) 

(quoting Jones v. United States, 527 U.S. 373, 408 (1999) 

(Ginsburg, J., dissenting)); see § 3593(c)–(d). 

Here, the Government sought the death penalty on all 

thirteen homicide counts. The jury found multiple aggravators 

for each, including the statutory aggravator that the arson 

murders were especially heinous, cruel or depraved, and the 

nonstatutory aggravators that Savage posed a risk of future 

dangerousness, and that he caused the victims’ families injury 

and loss.81 The jury found several mitigators as well, including 

81 The jury found others too. The longest list applied to Counts 

12 through 15, which relate to the arson murders. The jury 

found eleven aggravators, seven statutory and four 

nonstatutory: 

 Savage knowingly created a grave risk of death to other 

persons; 

 Savage committed the offense in an especially heinous, 

cruel or depraved manner; 

 Savage committed the offense as consideration for 

pecuniary gain; 

 the offense entailed substantial planning and 

premeditation; 

 Savage had a previous serious federal narcotics 

conviction; 
140 

the statutory mitigator that Lamont Lewis, although an equally 

culpable defendant, would not receive the death penalty. And 

they found nonstatutory mitigators that “Savage has been a 

positive influence in the lives of his children, niece, and 

nephew,” and that he “can continue to be an important 

influence in the lives of his children.” A2:790. Yet after 

weighing the aggravators against the mitigators, the jury 

unanimously agreed Savage should be sentenced to death on 

each count. 

Savage now contends that the Government offered 

erroneous argument supporting the “future dangerousness” 

aggravator, that the Government impermissibly offered victimimpact statements supporting the “harm to victims’ families” 

aggravator, and that the District Court improperly admitted the 

arson victims’ autopsy photographs to support the “especially 

heinous, cruel, or depraved” aggravator. He also argues that 

the Government’s penalty-phase summation relied on 

unconstitutional inferences to undercut the “equally culpable” 

mitigator, that the Government improperly rebutted the 

mitigators concerning Savage’s relationship with his family, 

and that the verdict form layout impermissibly emphasized the 

 Savage intended to kill more than one person in a single 

criminal episode; 

 the victims were particularly vulnerable; 

 Savage posed a risk of future dangerousness; 

 Savage caused injury and loss to the victims; 

 Savage had committed additional murders; and 

 Savage obstructed justice. 
141 

aggravators while giving short shrift to the mitigators. We 

reject each claim for the reasons that follow. 

B. The Government permissibly argued that 

Savage posed a risk of future dangerousness. 

As noted, the Government proposed—and the jury 

unanimously found beyond a reasonable doubt—the 

nonstatutory aggravator “that Kaboni Savage would be a 

danger in the future to the lives and safety of other persons, and 

is likely to commit or procure the commission of, retaliatory 

and other criminal acts of violence in the future.” A2:737–87. 

Savage now claims that three arguments the Government made 

to support this aggravator lacked factual support: First, that the 

“Special Administrative Measures” (SAMs) imposed by the 

Bureau of Prisons (BOP) to constrict Savage’s ability to 

contact the outside world might not remain in effect 

indefinitely. Second, that Savage might collude with his 

attorneys to circumvent the SAMs. And third, that managing 

the security risks necessary to safely house Savage indefinitely 

would saddle the BOP with an enormous burden. 

We review a district court’s ruling as to whether a 

prosecutor’s argument is appropriate for abuse of discretion. 

Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001). If the 

argument was improper, we determine whether it justifies 

relief by “examin[ing] the prosecutor’s offensive actions in 

context and in light of the entire trial, assessing the severity of 

the conduct, the effect of the curative instructions, and the 

quantum of evidence against the defendant.” Id.
142 

Applying that standard, we first conclude that there was 

no error: the prosecutor’s comments accurately summarized 

information before the jury. And we also conclude that even if 

error occurred, it was harmless given the mounds of evidence 

against Savage and the other aggravating factors the jury 

found. 

1 

Before turning to the specific comments Savage 

challenges, we need to review what the jury knew about 

Savage’s SAMs and why they were considered necessary. 

a 

Recall that Savage planned, coordinated, and directed 

the killing of seven people while being held in a federal prison. 

Savage had Tybius Flowers killed to prevent him from 

testifying about Lassiter’s murder. Then Savage orchestrated 

the Coleman house firebombing as retaliation for Eugene 

Coleman’s cooperation with prosecutors. Two women, three 

children and one infant died as a result. 

The horrid nature of these murders is underscored by a 

disturbing series of comments Savage made from prison 

reflecting both his desire and ability to kill or intimidate 

witnesses: 

 “No witness, no crime. No witness, no case.” 

A29:15551. 

 “The rats will pay.” A29:15564. 
143 

 “Death before dishonor to the family.” A29:15565. 

 “That’s why that N[*****]’s got to pay. Those 

f[***]ing rats. Those kids got to pay for making my 

kids cry. I want to smack one of their four-year-old sons 

in the head with a bat straight up. I have dreams about 

killing their kids, killing their kids, cutting their kids’ 

heads off.” A29:15566. 

 “These rats are going to pay. Their momma is going to 

pay. I’m sick of them. I’m killing them what they love 

while they’re in there.” A29:15568. 

 “These rats deserve to die. Wars with the rats. I’m 

going to hunt every last one b[ ] that I can. I’m 

going to kill ’em.” A29:15570. 

 “By the time of trial everybody be dead. . . . [W]e’re just 

getting started. The night’s still young.” A29:15571. 

 “The fight don’t stop until the casket drop.” 

A29:15572. 

 “I can still get messages out over the bowl”—a 

reference to his ability to sneak communications 

through his cell toilet’s plumbing system. A29:15572. 

 “You can’t stop the inevitable.” A29:15572. 
144 

 “Tears of rage, I’m flooded internally from ’em. Tears 

of rage because these sons of b[** ***]s are going to 

pay, man. They gonna pay or my name ain’t what it is, 

my pop name wasn’t what it was, they gonna pay. They 

kids gonna pay, they mommas gonna pay. That’s the 

kind of conviction that I got for this s[***], man. I’m 

dedicated to their death, man. . . . They better hope and 

pray I go to jail for a long time. It don’t matter because 

while I’m still living, I’m a get them.” A29:15572–73. 

In at least six cases, Savage was caught on tape actually 

threatening to kill a cooperator or his family: 

 Tybius Flowers, see A29:15552 (“Don’t worry about it. 

He’s not going to take the stand. He’ll never make it to 

trial.”); 

 Paul Daniels, see A29:15565 (“Think about what you’re 

doing man, because your son, he’s history. I got to tell 

you how I feel. Everything must go.”); see also

A29:15566 (“I’d rather just kill his mother f[***]ing 

mom. I want this N[*****]. You see what I’m 

saying?”); A29:15567 (“I got to get [Daniels’s 

girlfriend]’s a[**], [her] and that little b[ ]y baby he 

got.”); 

 Keith Daniels, see A29:15568 (“The rats, they got to 

pay. I have dreams about hitting [his] daughter in the 

head, man, opening her head wide open with 40s, dumdums, man. That’s all I dream about getting that 

N[** ***] killed. I want to erase his whole family tree, 
145 

man. You hurt my kids sending me to jail. Your kids, 

your mom. Nobody is getting a pass, man. Before I get 

a dollar, they are going to pay. That’s all I dream 

about.”); 

 Juan Rosado, see A29:15565 (“You know what it’s 

going to cost you, your life and your mom’s life. I’m 

going to kill your mother F[***]ing a[**]. Tell the 

prosecutor I threatened you, too, b[ ].”); 

 Stanley Smith, see A29:15565–66 (“I’m going to kill 

everything that you love.”); see also A29:15566 

(“Yeah, he got a daughter down my way. I’m going to 

blow her little head off. She like five.”); and 

 Craig Oliver, see A29:15569 (“His family goes first. 

His mom, his pop, all of them.”). 

These comments led the BOP to separate Savage from 

potential government witnesses in BOP custody, and even 

required several witnesses to enter the Witness Protection 

Program. 

Savage made similar comments about a prison guard. 

See A29:15567–68 (“I want to F[** *] the captain up. I want to 

blow his head off. I want everybody to know it, too. . . . That 

captain is a mother F[***]er, man. He’s going to die a 

miserable death, and I hope I’m there. I hope I’m the cause of 

that mother f[***]er. I’m going to torture his a[**]. I’m going 

to set him on fire alive. That’s what I want to do with the 

N[*****]. I want to set that N[*****] on fire alive. Watch 
146 

him jump around like James f[***]ing Brown. Get a metal 

chair and cuffs, douse him with that gasoline, set his a[**] on 

fire and say welcome to hell, b[ ]. I’m going to get 

somebody. That fire’s a motherf[** *]er.”). 

And these comments take on added meaning when we 

consider Savage’s conduct while incarcerated. In 2011, prison 

guards searching Savage’s cell discovered Savage had 

somehow obtained confidential prison records revealing 

information about potential government witnesses in BOP 

custody, including some of the ones who entered Witness 

Protection. The BOP also terminated his ability to make 

monitored social calls after those calls “started to get kind of 

coded.” A29:15713. And as recently as fall 2012—during jury 

selection for this trial, and even under SAMs severely 

curtailing his ability to communicate with the outside world—

Savage exploited opportunities to make unmonitored legal 

calls by telephoning his attorney’s office and having them 

patch him through to unapproved individuals. He instructed 

those individuals to send him packages disguised as legal mail, 

detailing what his attorneys’ address labels looked like so the 

packages would not attract attention. Savage managed to 

illicitly receive at least one package this way. Then once the 

Government discovered his abuse of legal calls, he bragged to 

a prison guard that he had “got a lot of information out on those 

calls and got a lot done during those calls.” A29:15683. 

All told, the jury learned of Savage’s persistent efforts 

to thwart restrictions on his ability to communicate with the 

outside world, and the extraordinary danger he posed if he 

succeeded in doing so. 
147 

b 

The jury also heard information about Savage’s present 

and potential future confinement conditions. Because of the 

security risks described above, the BOP transferred Savage to 

USP Florence ADMAX—the highest security prison in the 

federal system. Inmates at ADMAX fall into four categories 

depending on their security risk. The BOP holds the lowestrisk inmates—those demonstrating improvement during their 

time at ADMAX—in a step-down unit preparing them for 

transfer back to another penitentiary. The BOP holds the 

“average” ADMAX inmate—still someone the BOP 

determines it cannot control in any other facility—in a general 

population unit, where they spend twenty-two hours per day in 

single cells and recreate in enclosures. The “Control Unit” is 

even more restrictive, reserved for inmates “who have 

committed homicides” inside BOP facilities, “are serious 

escape risks[,] or [are] a severe threat to the orderly running of 

an institution.” A30:16067. Finally, there is the “H Unit”—

the most restrictive unit and the one for defendants like Savage 

who are subject to SAMs. 

The H Unit is comprised of thirty-six single-inmate 

cells. When an inmate arrives at the H Unit, he typically 

spends at least the first year subject to the most stringent 

restrictions. During that initial phase, the BOP permits inmates 

three showers per week and ninety minutes of daily recreation 

alone in an individual enclosure. With the warden’s approval, 

an inmate can move to a more relaxed phase. In that phase, a 

daily shower is available and although prisoners still recreate 

in an individual enclosure, they do so in the presence of other 
148 

inmates. After another year, an inmate may recreate with up 

to four inmates in the enclosure. 

The BOP allows an H Unit inmate one social call and 

five non-contact visits per month. Visitors and callers must be 

pre-approved, and each call or visit must be arranged in 

advance and monitored by the FBI. To initiate a call, a guard 

physically dials the number and ensures that the person who 

answers has been pre-approved. The guard then passes the 

receiver to the inmate through a slot in the cell door while 

holding the phone. H Unit inmates are permitted to make an 

unlimited number of legal calls, conducted in much the same 

way, though such calls are unmonitored. (The guard “stand[s] 

back at a respectable distance” so he can see the phone but not 

hear what is said. A30:16029–30.) 

The FBI x-rays and reviews all non-legal mail, and that 

mail can only come from pre-approved senders. Similarly, 

legal mail must come from the inmate’s counsel of record; 

guards open it in the inmate’s presence and cursorily review it 

to ensure it contains no contraband. 

On top of these general H Unit restrictions, each inmate 

receives specific SAMs tailored to their individual security 

risks. Savage faces even more limitations on who he can 

contact, who can visit him, and what publications he can 

receive—though he remains able to have unlimited and 

unmonitored legal calls. A SAM expires if not renewed 

annually by the Attorney General. 

The BOP’s goal is to move inmates from the H Unit to 

the general population units once they show sufficient 
149 

rehabilitation to warrant lifting their SAMs. And after entering 

the general population units, compliant inmates begin a threeyear process that gradually moves them through the step-down 

unit to a more typical penitentiary. The point, as both a 

government and defense expert observed, is that ADMAX is 

not meant to be “a permanent assignment.” A31:16566–67 

(“We don’t want people in there permanently.”). 

Once transferred to another penitentiary, inmates have 

much more freedom to move and interact. Typical federal 

penitentiaries house roughly 1500 inmates in double cells, 

locked from 10:00 p.m. to 6:00 a.m. Outside those hours, 

inmates are generally expected to be at a job or educational 

site. In other words, “[t]here is nobody escorting them. There 

is nobody standing over there, telling them what to do. From 

the time the cells are opened . . . they are responsible to go 

where they are supposed to be.” A31:16562. “They have 

access to all of the 1500 other inmates and all the staff that are 

in the institution,” including recreating and eating together 

without physical restraint. A31:16562. The BOP records 

social calls but monitors only about 10% of them, and even 

then only partially. 

Some former H Unit inmates have been transferred to 

other federal institutions through this process. See, e.g., Rezaq 

v. Nalley, 677 F.3d 1001, 1004–06 (10th Cir. 2012) (four 

inmates, one involved in a 1985 airline hijacking that killed 

fifty-seven airline passengers, plus three planners of the 1993 

World Trade Center bombing). Still other inmates remain on 

the H Unit but under relaxed conditions allowing greater 

contact with other inmates. See, e.g., Mohammed v. Holder, 

47 F. Supp. 3d 1236, 1243 (D. Colo. 2014) (terrorist who 
150 

bombed the U.S. Embassy in Tanzania moved to a lessrestrictive phase of H Unit incarceration); Yousef v. United 

States, No. 12-2585, 2014 WL 1908711, at *2–4 (D. Colo. 

May 13, 2014) (1993 World Trade Center bombing leader 

remains on H Unit but under relaxed confinement conditions 

allowing him to communicate with other inmates during 

recreation, showers, at the law library, and while working as 

an orderly). By the time of the sentencing proceedings in this 

case, Savage had already been recommended for a move to a 

more-relaxed phase of H Unit confinement, though the 

approving official denied the request. Officials have also 

allowed Savage to work as an orderly, which affords him time 

outside his cell without physical restraints. 

2 

Against this backdrop, we conclude that the 

Government’s arguments supporting Savage’s future 

dangerousness accurately summarized and fairly characterized 

information before the jury. See Darden v. Wainwright, 477 

U.S. 168, 180–82 (1986) (holding comments casting the death 

penalty as the only guarantee against future similar acts do not 

deprive the defendant of a fair trial as long as they “d[o] not 

manipulate or misstate the evidence”). Here are the specific 

statements Savage alleges constituted prosecutorial 

misconduct: 

 From the Government’s penalty-phase opening 

statement: 

o “They put tighter restrictions on Kaboni Savage. 

They put tighter restrictions on his ability to have 
151 

visits. They put tighter restrictions on his ability 

to make phone calls and his ability to interact 

with other inmates. Problem solved? Not 

exactly, because you’re going to hear that, first 

of all SAMs restrictions have to be updated every 

year. They are not automatic. There’s no 

guarantee. They don’t follow him necessarily 

for life. There’s no guarantee they will 

continue.” A29:15574. 

 From the Government’s penalty-phase summation: 

o “You’ve heard the testimony of why he will be a 

future danger. Why should everyone in BOP be 

on constant vigil for the next 40 years of his life? 

That is the question that you need to answer. In 

order to protect the prisoners, staff, cooperators 

in jail, cooperators’ families out of jail, he will 

have to remain at AD[MA]X on SAMs forever. 

Even then you’re not sure that [] will be enough. 

Putting aside for a moment that no one will likely 

be on SAMs for life, and he will likely enter the 

step-down process at some point in time, 

remember what he did while on SAMs, while 

under the restrictions imposed by the Attorney 

General of the United States, the most severe 

sanctions and restrictions there can be. [BOP] 

will have to monitor him until when? For what 

purpose? He’s vowed to fight to the death. At 

what risk do we not take him at his word? As he 

said, ‘you can’t stop the inevitable.’ He still gets 
152 

visits. He still has the bowl. You know he will 

find a way to get the word out. You know that 

after the evidence presented to you in this penalty 

phase. He manipulates and he abuses the 

systems in place to defeat their purposes. SAMs 

restrictions, this highest level of restriction that 

you can have, no problem.” A31:16705–06. 

o “You’ve heard the phrase, the reference, ‘The 

past is prologue.’ . . . It’s truly applicable in this 

case. Kaboni Savage’s past has foretold you 

what the future will hold. There truly is no other 

option in this case. He will not be on SAMs 

forever. He will not be at AD[MA]X forever. He 

will manipulate the guards. He will compromise 

the guards, and he will compromise the system 

at every chance. He will continue to do what he 

has done since the day he was incarcerated in 

2004. He will seek revenge on every cooperating 

witness and everything that they [h]old dear, 

their family, and he will do that from behind 

prison walls. Kaboni Savage refuses to stop. 

There’s no way to be truly safe from his 

conniving ways as he vows, ‘The fight don’t stop 

till the casket drops.’” A31:16713–14. 

 From the Government’s penalty-phase rebuttal: 

o “[Defense counsel] says no one has been harmed 

[by Savage] in the nine years since 2004. He’s 

correct, at this point in time no one has been 
153 

harmed. It’s not because of Kaboni Savage. It’s 

in spite of Kaboni Savage. . . . It’s because of 

AD[MA]X. It’s because of a lot of things. It’s 

because of the [Witness Protection] program. 

You heard a number of the witnesses in this case 

had to give up their lives. They gave up their 

names and were moved to locations where they 

have to start all over again all because of Kaboni 

Savage. So the [Witness Protection] program 

worked for them. Lamont Lewis is in [Witness 

Protection] in jail. It’s worked for him. How 

long does this program have to go on to keep 

Kaboni Savage from acting out? At what cost 

and for what reason? . . . Now, if he is sentenced 

to life imprisonment, he goes to AD[MA]X for 

some period of time. None of us know how long. 

It’s not going to be forever. . . . Now you have to 

put your trust and faith in people you don’t know 

hoping, praying that they will do their jobs and 

be as vigilant, and 24 hours a day they will stay 

on top of Kaboni Savage . . . . Do you really want 

to run that risk? For what reason? . . . He starts 

at the H Unit. Where he goes from there is up to 

Kaboni Savage essentially. The SAMs are in 

place right now. How long will they be in place? 

None of us know. It’s a yearly renewal. The 

Attorney General has to agree every single year 

to do this. If the decision is made to take down 

the SAMs, Kaboni Savage can be sent to a 

general population at a U.S. penitentiary 

anywhere. In general population, he will be free 
154 

16 hours a day. We’re not talking about a couple 

of years, ladies and gentlemen. We’re talking 

about a lifetime. In five, six, eight, ten years 

Kaboni Savage could easily be at a USP in 

general population, if that’s what he decided to 

do. At that time, he has the freedom to do 

everything that he did at FDC and more.” 

A31:16769–71. 

o “I just want to make one point very clear. . . . 

There was a discussion [during crossexamination of a government expert witness] of 

three-way phone calls and the ability to monitor 

three-way phone calls. Let me be clear, that does 

not exist at the Bureau of Prisons. You heard that 

testimony. That does not exist. If Mr. Savage 

compromises those phone calls, he will be able 

to make three-way calls without anyone 

monitoring them.” A31:16771–72. 

o “Why is a sentence of death appropriate? He 

killed 12 people, killed innocent mothers, killed 

helpless children. He killed an innocent man 

over a car bump. He used fire to torture a family. 

He killed a witness to obstruct justice. He killed 

a family to obstruct justice. He coordinated 

killings from inside prison. He vowed to kill 

cooperators and their families until he dies. He 

manipulates the system to his advantage. He 

compromises BOP employees. You know the 

SAMs are not built to last forever. He won’t be 
155 

housed at AD[MA]X forever. There is no way to 

guarantee the safety of the community even 

while he’s incarcerated.” A31:16774. 

o “While [Savage’s] children are certainly 

innocent victims in all of this, his very limited 

relationship with them does not outweigh the 

horrific violence that he has caused, and there’s 

no reason to exhaust BOP resources to keep him 

from himself. . . . I’ll rephrase the word, just to 

be clear . . . resources will be expended for him. 

Why do we need to expend resources for him?” 

A31:16775–76. 

o “[W]hy must you make a choice to spare him the 

punishment he earned when it comes with so 

much peril and constant monitoring and is so 

likely subjected to compromise with a 

potentially deadly result?” A31:16777. 

Savage correctly points out that the government may 

not urge jurors to speculate that a defendant will pose a future 

danger because prison officials might act incompetently. See

Darden, 477 U.S. at 180 (condemning a prosecutor’s argument 

that executing a defendant for a murder committed while 

furloughed was the “only guarantee” to prevent future violence 

because corrections officials might release him again); Tucker 

v. Kemp, 762 F.2d 1496, 1508 (11th Cir. 1985) (en banc) 

(deeming a prosecutor’s comments about future parole 

improper because they “extended beyond a mere argument 

about future dangerousness into a claim that the jury had to 
156 

account for errors to be committed by other actors in the 

criminal justice system”). But that is not what the prosecutor 

argued here. Rather than implying the Attorney General or 

BOP officials might erroneously or lawlessly remove Savage’s 

SAMs, prosecutors merely emphasized what both side’s 

experts had testified to—no one can really say how long 

Savage will remain on SAMs, but everyone knows SAMs are 

not intended as a permanent solution. Additionally, as both 

experts conceded, although the H Unit/SAMs combination 

may effectively control Savage’s behavior, no precaution can 

eliminate all security risks. See also Tucker, 762 F.2d at 1507 

(concluding prosecutorial comments about the possibility of a 

defendant killing a prison guard or inmate if given a life 

sentence were “proper because they concerned the valid 

sentencing factor of [the defendant]’s future dangerousness”); 

cf. United States v. Caro, 597 F.3d 608, 625–26 (4th Cir. 2010) 

(finding parts of the government’s future-dangerousness 

argument “troubling” but refusing relief since they were 

isolated, responsive to the defendant’s suggestion that the BOP 

could adequately secure the inmate, and supported by the 

record). 

Savage again overreaches in claiming the prosecutor 

suggested that his lawyers “would criminally conspire to help 

him violate the SAMs at AD[MA]X by arranging to ‘patch him 

through’ for unmonitored communications with unauthorized 

persons.” Def. Br. 230. In examining the comments in 

question, we believe the Government merely highlighted the 

vulnerability of the legal-call system and Savage’s prior 

manipulation of it. What’s more, while presenting testimony 

on Savage’s prior abuse of legal calls, prosecutors clarified that 
157 

Savage’s trial counsel played no role. See A29:15642–43 (“Q: 

I want to be absolutely clear here. Different attorneys in 2004 

and 2005 than the attorneys who represent Mr. Savage here, 

correct? A: Yes. Q: If you can tell us, you are fully competent, 

his current attorneys and their offices in no way participated in 

this type of scheme? A: Correct.”). So prosecutors neither 

impugned Savage’s trial team nor strayed from information 

that had been presented to the jury. 

Finally, despite what Savage says now, the Government 

never directly argued that keeping Savage alive would be too 

costly. It is indeed improper for prosecutors to “argue that 

death should be imposed because it [is] cheaper than life 

imprisonment.” Blair v. Armontrout, 916 F.2d 1310, 1322–25 

(8th Cir. 1990) (quoting Brooks v. Kemp, 762 F.2d 1383, 1412 

(11th Cir. 1985)) (holding the district court erred—though 

harmlessly—by permitting the prosecutor to argue “Why 

should we as taxpayers have to house this man for fifty years? 

Why should we have to feed him three meals a day for fifty 

years, clothe him for fifty years, furnish him recreation, 

medical care?”). But only economic efficiency arguments that 

specifically reference the pecuniary cost of prosecuting a 

defendant or of keeping a defendant alive have been held to 

violate that rule. See, e.g., Baer v. Neal, 879 F.3d 769, 787 (7th 

Cir. 2018) (“We are not anxious to file the death penalty . . . 

the cost is unbelievable. Who knows what it’s going to cost 

our community. Probably a half a million dollars. We’ve got 

people laid off. It’s not something you do haphazardly. It’s 

something you do to seek justice in a community” (alteration 

in original)); see also Edwards v. Scroggy, 849 F.2d 204, 210 

n.5 (5th Cir. 1988) (finding error but declining to award habeas 
158 

relief after a prosecutor argued for a death sentence because the 

defendant could “watch television and live off the taxpayers’ 

money for ten years . . . [a]nd get fed and housed and given all 

the conveniences of life”). In short, general references to the 

financial and administrative burden of ensuring a safe prison 

environment do not cross the line. 

And that’s what these comments did: they focused on 

the burdens the BOP faced to protect guards, other inmates and 

the public from Savage. The only time the prosecutor used the 

word “cost” was in relation to the need to keep witnesses in the 

Witness Protection Program. Even then, the reference was 

plausibly to emotional and psychological costs to witnesses 

rather than economic costs to taxpayers and the BOP. Those 

references were not improper prosecutorial comment.82

82 Even if it could be said that any of the comments complained 

of were improper, such error would have been harmless 

beyond a reasonable doubt. The quantum of evidence 

mustered against Savage was weighty, and future 

dangerousness was just one of numerous aggravating factors 

the jury found unanimously beyond a reasonable doubt. See

supra note 81. With that constellation of aggravating factors 

in mind, we are “confident that the jury would have imposed 

the same sentences even if the [future-dangerousness] factor 

had not been submitted for their consideration.” United States 

v. Bernard, 299 F.3d 467, 485 (5th Cir. 2002). 
159 

C. The District Court did not plainly err by 

admitting victim-impact statements. 

Savage next challenges the admission of victim-impact 

statements supporting the “harm to victims’ families” 

aggravator. Although he concedes some statements 

permissibly “relat[ed] to the personal characteristics of the 

victim and the emotional impact of the crimes on the victim’s 

family,” Payne v. Tennessee, 501 U.S. 808, 817 (1991), he still 

argues that others crossed the line and impermissibly involved 

“characterizations and opinions . . . about the crime, the 

defendant, and the appropriate sentence.” Bosse v. Oklahoma, 

137 S. Ct. 1, 2 (2016) (per curiam). 

1 

We must first determine the applicable standard of 

review. Since Savage challenges the statements on Eighth 

Amendment grounds, plenary review will apply if he preserved 

the issue in the District Court. See United States v. Torres, 383 

F.3d 92, 95 (3d Cir. 2004) (applying plenary review to 

preserved challenges presenting legal questions). If not 

preserved, we review the issue for plain error—an actual, 

obvious error that prejudiced Savage and that substantially 

affected his trial’s fairness, integrity and public reputation. See

United States v. Plotts, 359 F.3d 247, 248–49 (3d Cir. 2004). 

Savage contends plenary review applies. He makes that 

argument because his counsel asserted during a presentencing-phase hearing that “there are issues with . . . about 

90 percent of the victim impact letters,” including “some things 

which just blatantly shouldn’t be in the[m]” such as the 
160 

authors’ “thoughts [about] the punishment.” A29:15431, 

15437. But Savage’s counsel retreated from that position once 

the Government agreed to redact statements “mak[ing] 

reference to what the appropriate punishment should be.” 

A29:15437. The District Court then recessed the hearing to 

“give [the parties] a chance to look at” the letters, adding: “If 

there’s any disputes, I’ll hear them before the day is out.” 

A29:15438–39. Significantly, Savage’s counsel never 

returned to the issue. And when it came time to admit the 

victim-impact statements, Savage’s counsel remained silent. 

See A30:15776–15825. We therefore conclude that Savage did 

not “contemporaneous[ly] object[] to the victim-impact 

testimony.” United States v. Davis, 609 F.3d 663, 683 (5th Cir. 

2010). So we review his claims for plain error. Id.

2 

We begin our review by surveying the law governing 

use of victim-impact statements in capital sentencing cases, 

including some state court decisions in cases raising Eighth 

Amendment challenges. The government may generally 

introduce victim-impact evidence “relating to the personal 

characteristics of the victim and the emotional impact of the 

crimes on the victim’s family.” Payne, 501 U.S. at 817. 

Presenting that information “is simply another form or method 

of informing the sentencing authority about the specific harm 

caused by the crime in question.” Id. at 825. And the 

government can always “remind[] the sentencer that just as the 

murderer should be considered as an individual, so too the 

victim is an individual whose death represents a unique loss to 

society and in particular to his family.” Id. (quoting Booth v. 

Maryland, 482 U.S. 496, 517 (1987) (White, J., dissenting)). 
161 

Yet we are mindful that “admission of a victim’s family 

members’ characterizations and opinions about the crime, the 

defendant, and the appropriate sentence” violate the Eighth 

Amendment if they “distract the sentencing jury from . . . the 

background and record of the accused and the particular 

circumstances of the crime” and thereby “create[] an 

impermissible risk that the capital sentencing decision will be 

made in an arbitrary manner.” Bosse, 137 S. Ct. at 2; Booth, 

482 U.S. at 505–07, overruled on other grounds by Payne, 501 

U.S. 808. In Booth v. Maryland, the Supreme Court considered 

victim-impact statements saying that the victims were 

“butchered like animals,” that the defendant could “[n]ever be 

rehabilitated” and should not be “able to . . . get away with it” 

or “to do this again,” and that even “animals wouldn’t do” what 

the defendant did. 482 U.S. at 505–08. The Court held that 

those statements violated the Eighth Amendment because they 

directly characterized both the crime and the defendant in a 

way that “serve[d] no other purpose than to inflame the jury 

and divert it from deciding the case on the relevant evidence.” 

Id. at 508. 

Mindful of the Supreme Court’s admonition about 

jurors characterizing the appropriate sentence, courts have held 

victim-impact statements directly asking the jury for a death 

sentence violate the Eighth Amendment, too. See, e.g., Dodd 

v. Trammell, 753 F.3d 971, 995–96 (10th Cir. 2013); Ex parte 

Washington, 106 So.3d 441, 445–46 (Ala. 2011) (same); 

Miller v. State, 362 S.W.3d 264, 283–84 (Ark. 2010) (same). 

That said, abstract pleas for justice, accountability or 

closure do not by themselves violate the Eighth Amendment. 

See State v. Worthington, 8 S.W.3d 83, 89–90 (Mo. 1999). Nor 
162 

does “emotionally charged testimony” inviting the jury to 

“infer” a desire for “execution,” as long as “no evidence as to 

the witnesses’ preferred sentence [i]s actually admitted.” 

United States v. Whitten, 610 F.3d 168, 190–92 (2d Cir. 2010) 

(noting “[i]t cannot be expected that victim impact testimony 

will be cool and dispassionate” and concluding “anguished 

testimony . . . describ[ing] how [the victim’s] children visit the 

cemetery on Father’s Day and other occasions, write letters to 

their father, and embrace his headstone . . . . does not appear to 

exceed (or approach) the margins of what has been allowed”); 

see also Williams v. State, 251 S.W.3d 290, 293–95 (Ark. 

2007) (upholding admission of a victim’s testimony, “The 

meeting of my brother and sisters when we get together it’ll 

never be the same. We ask ourselves what can we do in 

situations like this. Well, we can’t do anything as a family but 

hold together and pray together. But you can do something. 

You are in a position to do that. What would you do if it was 

your brother or your sister or your baby that someone stole 

away from you. I can’t do anything, but you can. No words 

can express how we feel. Silence, the silence of never hearing 

[my brother]’s voice again haunts me and it will continue to 

haunt me. We miss him. We want him back but we can’t.”); 

State v. Chinn, 709 N.E.2d 1166, 1188 (Ohio 1999) (upholding 

admission of a victim’s testimony that “now we feel that the 

time has come for [the defendant] to be punished according to 

the law of Ohio.”). 

And statements expressing an ongoing fear of reprisals 

fall well within bounds since they “properly show[] how the 

victim’s death affected his surviving relatives.” People v. 

Wilson, 114 P.3d 758, 792 (Cal. 2005); see also United States 
163 

v. Battle, 173 F.3d 1343, 1348 (11th Cir. 1999); People v. 

Tully, 282 P.3d 173, 245–46 (Cal. 2012); Baker v. State, 71 

So.3d 802, 817–18 (Fla. 2011). 

To be sure, applying these rules requires a judge, 

inevitably, to engage in line-drawing. At one end of the 

spectrum, the Fifth Circuit held that a district court plainly 

erred by admitting a father’s victim-impact statement saying, 

“our children were tragically and recklessly stolen from us. . . . 

[I]t was just a useless act of violence and a total disregard of 

life,” apparently concluding the statement would distract the 

jury and cause them to make an arbitrary sentencing decision. 

United States v. Bernard, 299 F.3d 467, 480 (5th Cir. 2002). 

At the other end, the California Supreme Court 

permitted a sister to testify “that she could not understand why 

someone whom [her late brother] befriended and trusted would 

kill him,” holding the statement did not improperly 

characterize the defendant but rather merely addressed how the 

murder affected her. Wilson, 114 P.3d at 790–92 (Cal. 2005). 

The Arkansas Supreme Court reached a similar conclusion 

about a victim-impact statement expressing “disbelief,” 

“anger,” and the feeling of being “torn apart.” Kemp v. State, 

919 S.W.2d 943, 957 (Ark. 1996). The Fourth Circuit likewise 

upheld the admission of a mother’s victim-impact statement 

expressing her suffering through rhetorical questions posed to 

the defendant. See United States v. Barnette, 390 F.3d 775, 

797–800 & n.7 (4th Cir. 2004) (“I didn’t get to tell her goodbye. She was the joy of my life. Marc [the defendant] knew 

she was the joy of my life. The only little girl I had. You knew 

that, Marc. You took her life. Took away her future. You 

know how much she meant to me. . . . How can you kill my 
164 

baby? Why you kill [sic] my baby, Marc? She loved you, you 

know that. She never mistreated you, Marc.”), vacated on 

other grounds, 546 U.S. 803 (2005); cf. United States v. 

McVeigh, 153 F.3d 1166, 1218–22 (10th Cir. 1998) (allowing 

emotionally “devastating” victim-impact statements about 

“witnesses’ last contacts with deceased family members” 

killed in the 1995 Oklahoma City bombing and their 

“agonizing efforts to find out what happened to their loved 

ones,” “the professional and personal histories of victims,” a 

mother’s “recovery and return of her deceased daughter’s hand 

six months after the explosion,” and a graphic depiction of the 

near-suicide of a victim’s husband). 

3 

Against this background, we turn to the specific victimimpact statements Savage challenges: 

 “What gives anybody the right to blatantly take 

a life with no thought of remorse and audacity to 

play God?” A30:15779–80. 

 “I disconnected myself from most of my family, 

not wanting to be in the presence of constant 

reminders of better times. Also a lot of them 

didn’t want me around fearing that I would put 

them and their families in danger. . . . I 

questioned my faith because—let’s see. The 

only positive I see in my future is justice. . . . I 

know it will not bring my family back, but this 

will not allow anyone to hurt anyone else. This 

should end right here.” A30:15796–98. Because 
165 

this victim worked as a prison guard, she also 

explained her “genuine concern of [being] where 

[Savage was] in any way affiliated with anyone, 

whether they know him. When in the presence 

of inmates, it took me [to] a whole different 

level. I began to have anxiety attacks when in 

the presence of a lot of them in the rec room[,] 

leading to my transfer and [a] no inmate contact 

agreement.” A30:15797–98. 

 “[P]lease, we ask of you, the Court, let justice be 

done for all that have been killed by these people. 

Please let justice be done.” A30:15805–06. 

 “How can anyone take the lives of women and 

kids[?]” A30:15809. 

 “It is not fair or right for . . . the person directly 

or indirectly responsible for the death of those 

souls to walk around the earth free, not being 

held accountable for the part of the crime. We 

deserve closure in this matter and for [the] full 

extent of the law to be done in this matter. . . . All 

I ask is for the members of our family’s lives not 

to be in vain.” A30:15811–12. 

 “It hurts my heart when I look in their eyes, see 

the pain we all share. Just waiting for justice. . . . 

My sister’s and nephew’s heart have been broken 

into many pieces. What kind of man would kill 

women and children?” A30:15812–13. 
166 

 “I can’t understand how or why a person would 

do such a heinous act. Then to say such hurtful 

words after you have did this to our family. . . . I 

feel that everyone involved should get the same 

sentence as if they all threw the gasoline and 

match. How do they sleep at night? My family 

didn’t deserve this at all. We don’t trust no one 

with or around our children, and don’t feel 

protected because if calls were [monitored by the 

Government], why did we have to lose our 

family members? . . . I’m afraid of courtrooms 

due to you don’t know who is who and not living 

in a safe environment because of pollution of 

murderers who saw fit to kill children . . . . My 

prayer is full justice for all.” A30:15813–15. 

 “[M]y son and his paternal family were brutally 

murdered for no reason . . . . This was the worst 

crime in the history of Philadelphia in 2004. . . . 

How do you live with yourself and the decisions 

you’ve made[?] . . . How do we go on in our 

daily lives knowing you could care less that you 

inflicted so much pain and grief to so many 

people?” A30:15816–17. 

 “My daughter said to me, Mommy, I still can’t 

believe my brother is gone. I have no closure. 

How do I comfort my child? Honestly, I can’t 

because we have no closure.” A30:15817. 
167 

 “I will never understand how someone could kill 

anyone, anyone kill innocent people who are full 

of life.” A30:15819. 

 “Every year on October 9th I’m reminded how 

the evil actions of one man cost my family a 

tremendous loss.” A30:15820. 

 “I will forever have the image of their bodies 

being carried out in those blue bags. For a long 

time after the fire I couldn’t go past 6th Street 

because that’s all I saw. He, Kaboni Savage, 

turned my last memory of a place that I and many 

of my other family members shared so many fun 

times, into the most terrible thing I ever saw, into 

a lasting image and heart-tearing image.” 

A30:15821. 

 “Sean Anthony Rodriguez’s life ended on 

October 9, 2004 at the age of 15. His murder 

caused his family pain unlike no other. He spent 

the night at a friend’s house and never came 

home, the life of an innocent child, and a part of 

his family died never knowing that you will get 

what is coming to you, and hopefully the next.” 

A30:15823. 

 “I’m still confused about how anyone could do 

something like this to anyone. I personally 

continue to feel the pain of having to live with 

the fact that the people who are responsible for 
168 

this crime have not been held accountable for 

their actions. But with this having been said, I 

hope that this will bring some cleansing for 

myself and my family.” A30:15824. 

None of these statements form a basis for plain error. 

The Government acknowledges some “came close to” the 

constitutional line, Gov’t Br. 203, and we don’t disagree. But 

none are blatant violations of the Eighth Amendment’s 

prohibition against direct and inflammatory characterizations. 

Nor do any explicitly request the death penalty.83 At most, the 

statements express a generalized desire for justice and closure. 

Some seem to gesture vaguely toward capital punishment. 

Others emphasize a victim’s individuality and the unique loss 

a victim’s death posed, or highlight a witness’s profound loss 

and vulnerability. And most significantly for plain-error 

purposes, all resemble statements that other courts of appeals 

and state supreme courts have declared constitutional. 

In any event, even if a statement crossed the line (which 

we do not see here), we conclude Savage was not prejudiced 

“[i]n light of all of the other evidence, including the properly 

admitted victim impact testimony and the grisly nature of [the] 

crime.” Storey v. Roper, 603 F.3d 507, 521 (8th Cir. 2010) 

83 Indeed, underscoring that none of the victim-impact 

statements directly opined on what Savage’s sentence should 

be, the District Court instructed the jury that “because the law 

does not permit any witness to state whether he or she 

personally favors or opposes the death penalty, you should 

draw no inference either way from the fact that no witness has 

testified as to their views on this subject.” A32:16795. 
169 

(refusing relief for improper victim-impact testimony because 

it did not affect the defendant’s substantial rights); see also

Hain v. Gibson, 287 F.3d 1224, 1239–40 (10th Cir. 2002) 

(holding “the jury would have imposed a sentence of death 

even absent the improper victim impact testimony” because 

“the horrific nature of the murders”—the defendants forced the 

victims into a car trunk before setting the car on fire—“was 

uncontroverted” and “the evidence of [the defendant’s] guilt 

[and future dangerousness] was substantial”). Either way, no 

victim-impact statement considered by the jury, nor any 

portion thereof, constituted plain error.84

D. The District Court’s admission of autopsy 

photographs offered to support the 

“especially heinous, cruel, or depraved” 

aggravator was not improper. 

Savage challenges the District Court’s decision to admit 

the firebombing victims’ autopsy photographs. Although the 

Federal Rules of Evidence do not apply during a capital 

84 Savage also claims the Government compounded a 

constitutional violation by highlighting these victim-impact 

statements during its penalty-phase summation. We reject this 

argument for many of the same reasons we reject his challenge 

to the statements themselves. What’s more, we conclude that 

even if these prosecutorial comments were improper, they 

would not warrant plain error relief since they are “not, in and 

of themselves, nearly as inflammatory as the graphic evidence 

of the murders, or as powerful as the extensive victim impact 

testimony” itself. Mikhel, 889 F.3d at 1056 (quoting United 

States v. Mitchell, 502 F.3d 931, 995–96 (9th Cir. 2007)). 
170 

sentencing phase, the FDPA supplies a limitation paralleling 

Rules 402 and 403: “information may be presented as to any 

matter relevant to the sentence, including any mitigating or 

aggravating factor,” but “may be excluded if its probative 

value is outweighed by the danger of creating unfair prejudice, 

confusing the issues, or misleading the jury.” § 3593(c).85

Here, Savage brings something akin to a Rule 402 

relevancy challenge. The Government offered the autopsy 

pictures to show the arson murders were “especially heinous, 

cruel, or depraved”—a noticed statutory aggravator. 

§ 3592(c)(6). That aggravator requires proof of “torture” or 

“serious physical abuse.” Id. As relevant here, prosecutors can 

prove “serious physical abuse” by showing a defendant 

“inflicted ‘suffering or mutilation above and beyond that 

necessary to cause death.’” United States v. Montgomery, 635 

F.3d 1074, 1095–96 (8th Cir. 2011) (quoting United States v. 

Agofsky, 458 F.3d 369, 374 (5th Cir. 2006)). Savage argues 

the pictures are not relevant to that point since they don’t reveal 

anything about the cause of death, but “merely document the 

. . . . ‘gruesome spectacle’ of the murders’ aftermath.” Def. Br. 

263 (quoting Godfrey v. Georgia, 446 U.S. 420, 433 n.16 

(1980)). 

85 In fact, § 3593(c) is slightly more sensitive than 403, because 

Rule 403 only excludes evidence “if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice, 

confusing the issues, [or] misleading the jury.” (emphasis 

added). That said, Rule 403 also allows for exclusion based on 

undue delay, waste of time or cumulativeness, none of which 

justify exclusion under § 3593(c). 
171 

He also brings what is effectively a Rule 403 challenge, 

arguing “any conceivable probative value of the autopsy 

photographs was negligible and far outweighed by their unfair 

prejudicial impact.” Def. Br. 274. 

The District Court disagreed on both fronts. The Judge 

ruled that the gruesome postmortem injuries remained relevant 

to the “serious physical abuse” question. And though 

acknowledging the photographs were “not pleasant,” he 

allowed the jury to view them under conditions designed to 

minimize unfair prejudice. A32:16861. We discern no error. 

1 

Here too the parties dispute the applicable standard of 

review. Citing United States v. Trala, Savage argues for de 

novo review because he says the District Court’s decision to 

admit the autopsy photographs rested on an erroneous 

understanding of a legal standard. See 386 F.3d 536, 545 (3d 

Cir. 2004). For its part, the Government says any “decision 

regarding the admissibility of evidence is reviewed for abuse 

of discretion.” Gov’t Br. 220. We need not decide the issue 

because the District Court’s rulings on relevancy and prejudice 

withstand even plenary review. 

2 

Here, the District Court got the relevancy question right. 

The autopsy pictures tended to show that the fire mutilated the 

victims above and beyond their cause of death. And that fact 

supports the “especially heinous, cruel, or depraved” 
172 

aggravator. Savage’s contrary argument fails, both on 

precedent and even on its own terms. 

Savage’s quasi–Rule 403 challenge fails as well. The 

autopsy photographs may be horrific, but they have 

considerable probative value, and the District Court took 

adequate steps to ameliorate any risk of unfair prejudice. 

a 

Savage raises a narrow legal challenge to the 

photographs’ relevancy. He claims that for a murder to involve 

serious physical abuse, the abuse cannot arise directly from the 

same force that caused death. This position allows Savage to 

argue that the autopsy pictures lack relevancy because “[t]he 

exact same force that was used to kill the victims—the ignition 

of the arson—also produced the . . . post-mortem thermal 

injuries captured in the photographs.” Reply Br. 90. But that 

can’t be right. 

If Savage is correct, the “especially heinous, cruel, or 

depraved” aggravator would almost never apply to an arson 

murder. Yet that’s not how some courts have seen it. Several 

state courts have recognized that arson murders are often—if 

not always—especially heinous, cruel or depraved. See, e.g., 

Scott v. State, 163 So.3d 389, 470 (Ala. Crim. App. 2012); 

Dunaway v. State, 746 So.2d 1021, 1039–41 (Ala. Crim. App. 

1998); State v. Knapp, 562 P.2d 704, 716 (Ariz. 1977) (en 

banc) (“We can hardly think of a more ghastly death than this 

for anyone.”); Hain v. State, 919 P.2d 1130, 1146–47 (Okla. 

Crim. App. 1996); Smith v. State, 659 P.2d 330, 337 (Okla. 

Crim. App.) (“The victim was beaten into helplessness and left 
173 

in the bed of his pickup truck, and the truck was then set on 

fire. He died from the inhalation of flames and smoke. It is 

clear that the defendant either intended to inflict a high degree 

of pain or else he was utterly indifferent to his victim’s 

suffering.”), vacated on other grounds, 464 U.S. 924 (1983). 

Although those state court decisions do not directly 

interpret the federal statute at issue here, they clearly 

demonstrate that burning someone to death is a heinous crime 

within the ordinary meaning of that word. And being burned 

to death certainly involves ‘torture or serious physical abuse’ 

as required by the FDPA. § 3592(c)(7). That is a more than 

sufficient basis to invoke the “especially heinous, cruel, or 

depraved” aggravator. The autopsy photos were directly 

relevant to proving that the victims died as a result of the arson. 

They were thus directly relevant to the applicability of the 

aggravator. 

b 

The District Court also correctly held that the risk of 

unfair prejudice did not outweigh the probative value of the 

photographs. Savage protests, arguing that the photographs are 

extremely graphic. They are. They depict the horrific results 

of a horrific crime. Yet it should hardly be surprising that 

evidence probative of the “especially heinous, cruel, or 

depraved” aggravator will often be horrific in nature. That fact 

alone cannot be a reason for excluding it. 

And it is worth emphasizing that these autopsy 

photographs came into evidence during the penalty phase of 

the proceedings and not the guilt phase. The jury had already 
174 

concluded Savage was guilty of the murders. So the classic 

Rule 403 concern—that a photograph’s gruesome nature will 

“lure the factfinder into declaring guilt” based on emotion or 

passion, Old Chief v. United States, 519 U.S. 172, 180 

(1997)—is inapposite here. Put simply, the jury had already 

decided Savage was guilty of the six arson murders. Deciding 

just how brutal or cruel those murders were is inherent in 

penalty-phase determinations. 

On this point, the autopsy pictures—gruesome as they 

are—offer singular probative value. Photographs convey a 

pictorial accuracy and detail that words cannot duplicate nor 

that advocates can spin. Twelve jurors listening to a 

description of an abused corpse might walk away with twelve 

different understandings of the abuse’s severity. Color 

photography, especially these photographs, leave little room 

for disparate impressions. It is hard to imagine more accurate 

evidence of a murder’s cruelty, heinousness or depravity. We 

therefore conclude that any danger of unfair prejudice did not 

outweigh the photographs’ probative value.86

86 In so holding, we join several other courts of appeals in 

allowing autopsy photographs to support the “especially 

heinous, cruel, or depraved” aggravator. See, e.g., United 

States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2002) (holding 

color photographs of stab wounds, both fatal and nonfatal, 

were admissible to prove the “especially heinous, cruel, or 

depraved” aggravator); United States v. Sampson, 486 F.3d 13, 

43 (1st Cir. 2007) (holding the district court did not abuse its 

discretion in admitting autopsy photographs during the penalty 

phase because they “shed light on the manner in which each 
175 

Although we reach that conclusion based on our 

examination of the photographs themselves, we also consider 

the District Court’s prudent steps intended to mitigate the risk 

of unfair prejudice. Even after admitting the photographs into 

evidence, the District Court did not immediately publish them 

to the jury. Instead, the photographs were placed in an 

envelope, leaving it to the jury to decide whether they wished 

to view them. When the jurors, during their deliberations, 

asked to see the photographs, the District Court returned them 

to the courtroom, warned that the photographs were “not 

pleasant,” reminded the jurors “that your decisions in this 

matter must be based upon the evidence and testimony and not 

based upon any bias or prejudice or emotion,” told them to 

“heed those instructions when you are looking at these 

photographs,” and directed them to return the photographs 

after they finished viewing them. A32:16861. The jury 

returned the photographs less than ten minutes later.87 To the 

victim was killed (an important integer in the jury’s 

determination of whether the murders were committed in an 

especially heinous, cruel, or depraved manner)”); United States 

v. Ortiz, 315 F.3d 873, 897 (8th Cir. 2002) (finding no abuse 

of discretion after a district court admitted “graphic” 

photographs of a murder “victim’s bloody corpse” to “support 

the government’s contention that the crime was particularly 

heinous and depraved”). 

87 The pictures’ quantity and composition further diminish the 

risk of unfair prejudice. The District Court admitted only one 

photograph for each victim, and the bodies are depicted lying 

on a medical examination table, not amid the arson ashes and 

rubble. So although “gruesome crimes result in gruesome 
176 

extent the photographs posed a risk of unfair prejudice—and 

we acknowledge that such risk is always present when 

photographic evidence of this nature is before a jury—the 

District Court took sensible and effective measures to mitigate 

it. 

* * * 

All told, the District Court correctly admitted the 

autopsy photographs as proof of the “especially heinous, cruel, 

or depraved” aggravator. 

E. The Government’s argument against the 

“equally culpable” mitigator did not violate 

the Fifth or Sixth Amendments. 

Savage’s penalty-phase strategy sought to cast Lamont 

Lewis as an equally culpable defendant who was nevertheless 

not facing the death penalty—a statutory mitigator jurors were 

to consider. See § 3592(a)(4). Indeed, it was Lewis who 

firebombed the Coleman home and later admitted to five other 

murders—yet ultimately pled guilty in exchange for forty years 

of imprisonment. 

In response, the Government sought to distinguish 

Lewis’s past conduct as less blameworthy than Savage’s. 

Savage now contends that making the distinction 

photos,” Hain, 919 P.2d at 1143, these photographs portray the 

victims in a manner not designed to accentuate the victims’ 

horrific injuries. 
177 

impermissibly turned his Fifth and Sixth Amendment rights 

against him. 

1 

We start with this passage from the Government’s 

penalty-phase closing argument (but ignore the underlining for 

now): 

I want to talk about . . . equally culpable 

defendants not getting death. That is one of the 

mitigators. You know in this case Lamont Lewis 

is not getting the death penalty. You know that. 

He will be sentenced to 40 years to life. . . . 

When weighing that mitigator, consider Lamont 

Lewis’ acceptance of responsibility. His 

acknowledgment of his wrongs, his willingness 

to cooperate, the fact that he does not have a 

vendetta against the rats or the rats’ families. He 

doesn’t have a pact to kill loved ones. He did not 

call out hits from inside the jail. He’s not bent 

on destroying the justice system by killing 

witnesses. He is not and has not abused the right 

to communicate while he has been in prison. 

While these two men, Kaboni Savage and 

Lamont Lewis, were engaged in the same 

criminal actions at times and Lamont Lewis is 

certainly responsible for his violent killing spree, 

these two men are not equally culpable. They are 

not equally culpable for the rampage that Mr. 

Savage is responsible for. The only person 

responsible for all of that is Kaboni Savage. 
178 

That’s why justice warrants the ultimate 

punishment. 

A31:16708–09 (emphasis added). 

Then came the defense summation. Savage’s attorney 

tried to reinforce the “equally culpable” mitigator by 

contrasting Lewis’s extensive criminal history with his lesser 

punishment. Defense counsel also tried to use Lewis’s 

criminal history—including his admission during the guiltphase trial that he sold drugs in jail—to suggest Lewis himself 

posed a future danger. “You should be [concerned] about 

future dangerousness,” he concluded. Id. at 16742. “You are 

looking at it right there, Lamont Lewis.” Id.

The Government pushed back during its rebuttal, 

acknowledging that recommending Lewis’s non-capital 

sentence required a “tough call,” but urging jurors to 

“remember [Lewis’s] testimony” when “comparing” him to 

Savage: 

He sat in this courtroom and he took 

responsibility for everything that he has ever 

done wrong. He admitted he was wrong. He 

didn’t say, “The rats had it coming.” He didn’t 

say his problems were caused by rats. He 

admitted he was the one who was at fault. He 

isn’t a danger going forward. He told you that he 

had time to reflect when he got to [jail] and 

realized the magnitude of all of the harm that he 

had caused. He does not have the vendetta going 

forward that Kaboni Savage has. He is not trying 
179 

to blame people on the outside for his situation. 

He is trying to take steps to try to get some 

amends for what he has done. . . . Never going to 

happen, but at least he’s trying. Also, remember 

that . . . Lamont Lewis did the . . . murders under 

the direction and when ordered by Kaboni 

Savage. Kaboni Savage is the one who wanted 

those people dead. . . . Lamont Lewis is not 

seeking revenge. He’s not looking to kill 

witnesses. . . . Lamont Lewis is like a trigger on 

a gun. Kaboni Savage is the trigger man. 

Id. at 16764–66 (emphasis added). 

As for Lewis’s criminal history, the prosecutor noted 

Lewis “admitted it was wrong” after 

ha[ving] time to reflect and think about what he 

had done and to understand and appreciate the 

magnitude of what he had caused. He told you 

that’s one of the reasons he pled guilty. That’s 

one of the reasons when you’re considering 

comparing Lamont Lewis to Kaboni Savage, that 

the two are not equally culpable. Remember that 

Lamont Lewis has been in federal custody since 

2007. Did you hear one peep during his 

testimony about him illegally using the legal 

mail or the legal phone calls to talk to, to 

coordinate, to make—touch base with people on 

the outside illegally? Not once. He did not order 

any murders from prison. Kaboni Savage 

ordered two that ultimately resulted in seven 
180 

deaths. I say this not because Lamont Lewis is 

an angel. He is not. He is a convicted killer of 

multiple people. But when you’re comparing the 

two, he is not the danger that Kaboni Savage is. 

Kaboni Savage is a danger going forward. 

Id. at 16766–67 (emphasis added). 

2 

Savage contends that the prosecutorial comments that 

we have underlined violated the Fifth and Sixth Amendments 

by faulting Savage for not pleading guilty and for failing to 

testify. But in context, the statements he challenges weren’t 

about him at all; the Government was merely rebutting defense 

counsel’s suggestions of equal culpability and of future 

dangerousness by pointing to the fact of Lewis’s cooperation. 

a 

The parties again disagree about the standard of review. 

The Government argues for abuse-of-discretion review, the 

usual standard when a defendant challenges a district court’s 

decision to allow or excuse certain prosecutorial comment. See

Moore, 255 F.3d at 107. But Savage argues for the more 

exacting de novo standard since these statements related to his 

Fifth and Sixth Amendment rights. See Def. Br. 279 (citing 

United States v. Hardy, 37 F.3d 753, 756 (1st Cir. 1994); 

United States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994)). 

We need not resolve the issue since the prosecutor’s comments 

clear either hurdle. 
181 

b 

The Government’s penalty-phase closing and rebuttal 

did not impermissibly trench on Savage’s Fifth and Sixth 

Amendment rights. True, the Fifth Amendment does forbid 

prosecutors from commenting on a defendant’s decision not to 

testify, just as the Sixth Amendment forbids prosecutors from 

commenting on a defendant’s decision to plead not guilty. See 

United States v. Jackson, 390 U.S. 570, 581–83 (1968). But 

prosecutors cross these lines only when they use language 

“manifestly intended” or “of such character that the jury would 

naturally and necessarily take it to be a comment on the failure 

of the accused to testify” or plead guilty. United States v. 

Chaney, 446 F.2d 571, 576 (3d Cir. 1971) (internal quotation 

marks omitted) (quoting Hayes v. United States, 368 F.2d 814, 

816 (9th Cir. 1966)). 

So we consider the specific statements that Savage 

challenges. Here’s how he describes them in his brief: “the 

prosecutor’s adverse references to Savage’s failure to 

‘cooperate,’ ‘ple[a]d guilty,’ ‘t[ake] responsibility,’ and thus 

‘get some amends for what he has done.’” Def. Br. 292 

(underlining added) (alterations in original). 

None of these statements, nor all of them taken together, 

come close to violating Savage’s constitutional rights. First of 

all, the underlined language does not describe Savage’s failure 

to do anything. Rather, Savage plucks individual words and 

phrases from portions of the Government’s closing argument 

that highlighted the cooperation of Lewis. Hearken back to the 

underlined language in the quotations. Fairly viewed and read 

in context, rather than in sliced-and-diced form, these 
182 

statements focus on Lewis, explaining why he wasn’t equally 

culpable and why he wouldn’t pose a future danger. Savage’s 

invocation of the equally culpable mitigator necessarily invites 

just such testimony and argument. 

And Savage offers no authority to support his 

constitutional injury-by-implication argument. Instead, courts 

find a constitutional injury only when a prosecutor explicitly 

faults a defendant’s exercise of his own constitutional rights. 

Lesko v. Lehman is just such a case. There, a prosecutor 

impermissibly highlighted the defendant’s lack of remorse, 

“ask[ing] the jury to consider [the defendant’s] ‘arrogance’ in 

taking the ‘witness stand’ to present mitigating evidence about 

his background, without even having the ‘common decency to 

say I’m sorry for what I did.’” 925 F.2d 1527, 1544–45 (3d 

Cir. 1991) (quoting trial transcript) (describing “[t]he 

prosecutor . . . parod[ying] the gist of [the defendant]’s 

testimony: ‘I don’t want you to put me to death, but I’m not 

even going to say that I’m sorry.’” (quoting trial transcript)). 

So too in United States v. Whitten, where a prosecutor tried 

using a capital defendant’s own failure to take the stand to 

discredit the defendant’s penalty-phase allocution. 610 F.3d 

168, 198–200 (2d Cir. 2010) (restating “the uncontroversial 

rule that prosecutors can emphasize that an allocation is 

unsworn and uncrossed” but holding the prosecutor’s remark 

that “[t]he path to that witness stand has never been blocked 

for [the defendant]” could be understood as an impermissible 

comment on the defendant’s failure to testify during the guiltphase trial). 

If anything, the Government’s comments in this case 

land closer to what was said in United States v. Mikhel, where 
183 

a prosecutor rebutted the “equally culpable” mitigator by 

asking the jury to “compare [the cooperator’s] conduct with 

that of [the defendants]” and noting the cooperator “led the FBI 

to bodies they never would have found in this case.” 889 F.3d 

1003, 1060 (9th Cir. 2018) (quoting trial transcript) (emphasis 

omitted). Judge Bybee explained these comments did not 

violate the Fifth Amendment since they “would[n’t] naturally 

and necessarily be understood as commenting on defendants’ 

failure to testify.” Id. (internal quotation marks omitted). So 

too here. Viewed in their proper context, the challenged 

statements merely rebut both Savage’s “equally culpable” 

mitigator stance and his argument concerning Lewis’s future 

dangerousness. A jury would not naturally—and certainly not 

necessarily—take them as a comment on Savage’s choice to 

exercise his constitutional rights. 

And once again, any error in this regard would have 

been harmless since the jury unanimously agreed that the 

“equally culpable” mitigator did apply despite the prosecutor’s 

arguments to the contrary. In that way, this case mimics United 

States v. Runyon, where a prosecutor undercut the “equally 

culpable” mitigator by pointing out that another defendant pled 

guilty rather than forcing “a jury[ to] weigh in on all the 

evidence and determine whether [he] was guilty.” 707 F.3d 

475, 508 (4th Cir. 2013) (second alteration in original). 

Without deciding whether this comment impermissibly shaded 

the defendant’s Fifth and Sixth Amendment rights, the Fourth 

Circuit concluded that any error would have been harmless 

beyond a reasonable doubt since the jury unanimously found 

the “equally culpable” mitigator anyway. Id. at 510 (citing 

Chapman v. California, 386 U.S. 18, 24 (1967)) (noting “[t]he 
184 

list of aggravators and mitigators weighed by the jury would 

thus have been identical with or without the statements of 

which [the defendant] complains”). 

* * * 

In sum, the prosecutor rebutted the “equally culpable” 

mitigator without impermissibly faulting Savage for invoking 

his constitutional rights. And even had he crossed the line, any 

error would have been harmless because the jury still found for 

Savage on the “equally culpable” mitigator. 

F. The Government properly rebutted the 

mitigators relating to Savage’s relationship 

with his family. 

We turn to two nonstatutory mitigating factors 

concerning Savage’s relationship with his family: that “Savage 

has been a positive influence in the lives of his children, niece, 

and nephew” and that “Savage can continue to be an important 

influence in the lives of his children.” A2:790. Although the 

Government sought to rebut these mitigators with testimony 

and argument tending to show Savage had maintained little 

contact with his family, eight jurors still found the first 

mitigator and four jurors found the second. Despite those 

findings, Savage now rehashes the prosecution’s rebuttal, 

arguing the Government violated his constitutional rights by 

limiting his contact with family while he was imprisoned, and 

then disparaging the limited nature of the familial 

relationships. 
185 

For analytical purposes, we separate his argument into 

two claims: First, that the Government unconstitutionally 

interfered with his ability to develop mitigation evidence about 

family relationships; second, that the Government’s rebuttal of 

the “familial relationship” mitigators unfairly characterized 

those relationships as limited. 

Distilled to its essence, the first claim challenges 

Savage’s confinement conditions. To be sure—and for reasons 

previously explained—the Government broadly circumscribed 

Savage’s ability to communicate generally with the outside 

world. Those restrictions reasonably related to legitimate 

penological interests and, at all events, the record shows 

Savage still had an adequate opportunity to develop and 

present mitigation evidence about his familial relationships. 

The second claim boils down to allegations of improper 

cross-examination and prosecutorial argument. Here too, we 

discern no error. The challenged cross-examinations reiterated 

facts the defense itself had already elicited, and the challenged 

argument appropriately rebutted the defense’s mitigation 

evidence. 

1 

The first claim—that the Government 

unconstitutionally interfered with Savage’s ability to develop 

mitigation evidence about his familial relationships—simply 

retreads disagreements over the time, place and manner of 

Savage’s family visits. These disagreements began during voir 

dire, and prompted a memorandum opinion from the District 

Court recognizing that Savage needed “the opportunity to 
186 

develop . . . evidence” to “present at the sentencing phase of 

his trial.” The District Court also agreed with the defense that 

“the ability to visit with his children could impact the 

preparation of [Savage]’s mitigation case.” A1:46–48. The 

Judge ultimately refereed ongoing disputes over the time, place 

and manner of the visitation throughout the trial. Savage, 

however, was never satisfied. 

One such example stems from the BOP’s confinement 

of Savage on FDC-Philadelphia’s maximum-security floor 

during the trial. Although the maximum-security floor had a 

visitation room, the BOP did not allow the presence of minors 

on that floor. That led defense counsel to demand either that 

the BOP make an exception and allow Savage’s children onto 

the maximum-security floor, or that the BOP transfer Savage 

to another facility that could accommodate minors’ visits under 

maximum-security conditions (like, apparently, the 

Metropolitan Correctional Center in New York, where the 

BOP sometimes held Savage during breaks in his trial). For its 

part, the BOP offered to shut down the entire lower-security 

floor’s visitation area and to conduct the visit there. But 

because of the lower-security environment, the BOP said 

Savage would have to be immobilized by keeping him in a 

seated position. Defense counsel bristled, protesting that 

“[t]hat is inappropriate to meet with his children,” thereby 

precipitating an impasse that went unresolved. A34:18080. 

Yet we fail to see how this impasse amounts to a 

constitutional deprivation. The defense team still managed to 

arrange two occasions for the defense’s expert social worker to 

observe Savage interacting with his children. The social 

worker testified that she had considered “a lot of evidence” and 
187 

formed an educated opinion—an opinion that was very 

favorable to Savage, and that went largely unchallenged by the 

Government. A30:16264–68. She never suggested that more 

observation would have changed her opinion, and Savage 

never specified what additional witnesses or information he 

was prevented from offering. Although more familial contact 

may have strengthened his ability to build mitigation evidence 

generally, the same could be said for every capital defendant. 

The Constitution simply does not guarantee capital defendants 

unfettered access to their families. 

At all events, to the extent Savage challenges the BOP’s 

refusal to allow him to be unrestrained on a lower-security 

floor, he is essentially challenging the reasonableness of a 

prison regulation. But “restrictive prison regulations are 

permissible if they are ‘reasonably related to legitimate 

penological interests[]’ and are not an ‘exaggerated response’ 

to such objectives.” Beard v. Banks, 548 U.S. 521, 528 (2006) 

(citation omitted) (quoting Turner v. Safley, 482 U.S. 78, 87 

(1987)). Savage never explains why the BOP’s conditions 

violated this standard; indeed, Savage doesn’t even cite the 

standard. That failure is fatal to his argument since “the 

prisoner ‘bears the burden of persuasion’ when he is 

challenging a regulation.” Sharp v. Johnson, 669 F.3d 144, 

157 (3d Cir. 2012) (quoting Banks, 548 U.S. at 529). 

We regard the BOP’s insistence on immobilizing 

Savage in a seated position as well within bounds. “[P]rison 

administrators are not required to use the least restrictive 

means possible to further legitimate penological interests,” 

Monroe v. Beard, 536 F.3d 198, 207 (3d Cir. 2008), and we 

“presum[e] that the prison officials acted within their ‘broad 
188 

discretion,’” Shaw v. Murphy, 532 U.S. 223, 232 (2001) 

(quoting Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)). 

“We must accord substantial deference to the professional 

judgment of prison administrators, who bear a significant 

responsibility for defining the legitimate goals of a corrections 

system and for determining the most appropriate means to 

accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 

(2003). Given Savage’s extraordinary history of initiating 

violent crime through his contact with the outside world, we 

are especially unwilling to second-guess the BOP’s assessment 

of the risks Savage posed outside his specially modified, 

maximum-security cell. 

Savage’s proposed alternatives—allowing minor 

children onto a maximum-security floor or transferring him to 

another facility—would “burden . . . prison resources.” Jones 

v. Brown, 461 F.3d 353, 360 (3d Cir. 2006). That factor, plus 

that Savage “retain[ed an] alternative means of” visiting his 

children and that no “alternative” would “fully accommodate” 

Savage’s request “at de minimis cost to valid penological 

interests,” underscore the reasonableness of the BOP’s 

position. Id. 

2 

Next, Savage identifies four prosecutorial comments—

two made during cross-examination and two in closing 

arguments—which he contends improperly exploited his 

restricted familial relationship. 
189 

a 

Before we discuss the comments themselves, we 

summarize the relevant portions of Savage’s mitigation case. 

The mother of one of Savage’s children described Savage as “a 

good father, a loving person, very family-oriented,” and 

someone who “always wanted all the kids . . . . to come over 

and spend time with him.” A30:16224, 16228. She also 

testified that their daughter Siani 

loves her father very much. She wants to talk to 

him. She wants to come visit him, but we 

haven’t been able to do that on a regular 

basis. . . . Kaboni has always been a positive 

factor in his daughter’s life. These negative 

things that people are bringing about is nothing 

that we have witnessed, his daughter has not 

witnessed. He’s been a positive influence on her. 

. . . 

They have a bond with each other that just was 

unbreakable. . . . [S]he loves him regardless of 

anything that is happening in this case. This has 

been her father since birth. She’s grown up and 

basically looked up to him. He has been her 

hero. She was daddy’s little girl from the 

beginning, so it’s really difficult and hard for her 

to not have him around. She still loves him and 

wants him in her life, and I want him to be part 

of her life as well. He needs to be around. She 

needs to have him in her life. She has to have 
190 

him in her life. She doesn’t want to function 

without him in her life. She still goes to school 

and does well anyway and gets good grades and 

wants to make him proud, and that’s what she 

focuses her goals on. 

A30:16228–29, 16241–42. 

Savage’s own mother similarly noted that Savage still 

communicated with his children through letters, and that “they 

love him so hard.” A31:16400. 

Savage’s son Kaiion testified that before his father’s 

arrest, they “went out every weekend to the movies” and that 

Savage “stayed on us all the time about school” and “made sure 

he raised us like men.” A31:16527. Kaiion also expressed a 

belief that despite Savage’s incarceration, his father “c[ould] 

continue to have influence in [his] life.” A31:16543. 

Similarly, Savage’s nephew Yusef described a “school 

project” from “2004” when he 

had to choose the person of the year, the person 

who impacted [his] life the most, and [he] 

nominated [Savage] because of the role that 

[Savage] played on [him] and pushing [him] in 

[his] education and stuff [Savage] taught [him] 

about being a man and taking care of [his] 

family. 

A30:15991–93. 
191 

The defense also introduced letters Savage wrote to his 

children, niece and nephew over the years. That said, Kaiion 

conceded during his testimony that he “ha[dn’]t gotten a letter 

in a long time.” A31:16533. 

To buttress the significance of Savage’s familial 

relationships, defense witnesses reiterated the barriers Savage 

had to overcome to maintain contact with family. Both Kaiion 

and Savage’s sister Conchetta testified that Savage’s niece and 

nephew were not permitted to visit Savage since they were not 

his children. Conchetta noted that it became much harder to 

communicate with Savage once the Government moved him to 

ADMAX, and that Savage’s niece and nephew communicated 

with him through phone calls and letters “up until the point 

where we could.” A30:15974. 

The Government did little to refute this evidence. 

Prosecutors briefly cross-examined Kaiion: 

Q: Good afternoon, Mr. Savage. 

A: How you doing. 

Q: You are 17 years old? 

A: Yes. 

Q: And your whole life, have you lived with 

your mother? 

A: Yes. 
192 

Q: Your mother has been your primary 

caregiver? 

A: Yes. 

Q: It’s safe to say that for most of your life your 

father has been incarcerated, is that right? 

A: Yes. 

Q: On that letter that [defense counsel] just 

showed you[,] there was no date on that 

letter? 

A: No. 

Q: But that letter was sometime within the last 

year that that was written to you by your 

father? 

A: No. 

Q: Last—approximately when was it written, do 

you know? 

A: 2011, 2010, something like that. 

Q: So sometime within the last couple of years, 

is that correct? 

A: Yes. 

Q: Last two or three years? 
193 

A: Yes. 

Q: Since he has been charged in this case? 

A: Yes. 

Q: And you are, as Mr. Savage’s son, you are 

allowed visits occasionally, right? 

A: Yes. 

Q: You are allowed to have phone calls with 

your father, right? 

A: Yes. 

Q: But despite that, you said you have not gotten 

a letter from him in a long time? 

A: No. 

Q: How long has it been since you last got a 

letter from your father? 

A: Around like two, three years ago. 

[Prosecutor]: Nothing further. 

A31:16544–45. And when cross-examining Yusef, the 

Government reiterated that his “Man of the Year” project took 

place in 2004—a fact defense counsel had already elicited. 

Compare A30:15991 (defense’s direct) (“Q: In 2004, did you 

in a school project put him in for some sort of award? A: 

Yes.”), with A30:15998 (Government’s cross) (“Q: [Defense 
194 

counsel] showed us this certificate that you did for your uncle 

when you were a young man, correct? A: Yes. Q: What’s the 

date on that? A: December 8, 2004.”). 

During its sentencing summation, the Government 

admonished the jury to “not allow [Savage] to use his children 

as a mercy shield from imposing the ultimate sentence.” 

A31:16683. And after the defense summation had emphasized 

mitigating evidence involving Savage’s family, the 

prosecution used its rebuttal to remind the jury about the dearth 

of recent correspondence, and to argue that “[w]hile his 

children are certainly innocent victims in all of this, his very 

limited relationship with them does not outweigh the horrific 

violence that he has caused.” A31:16775. 

b 

Savage claims the following comments improperly 

leveraged his restricted familial relationship against him: 

 the Government’s cross-examination of Yusef, which 

reiterated the “Man of the Year” school project was in 

2004; 

 the Government’s cross-examination of Kaiion, which 

established Savage had not written him in several years; 

 the Government’s summation comment that Savage 

shouldn’t be able to use his children as a “mercy shield”; 

and 

 the Government’s rebuttal assertion that Savage had a 

“very limited relationship” with his children. 
195 

Savage concedes his trial counsel failed to object to 

these comments, so we review them for plain error. See Fed. 

R. Crim. P. 52(b). None clear that high bar. 

First, the one-off question asked during Yusef’s crossexamination and which reminded the jury that Yusef’s school 

project nominating Savage as “Man of the Year” took place 

back in 2004. But defense counsel had already elicited this fact 

on direct examination, so the Government’s query was not an 

error let alone a plain one. See Glass v. Phila. Elec. Co., 34 

F.3d 188, 194 (3d Cir. 1994) (citing Fed. R. Evid. 611(b)). 

Second, a fleeting comment during Kaiion’s crossexamination similarly rehashed a point already made on direct 

examination. The jury knew from defense questioning that 

Kaiion had admitted his father hadn’t written him a letter “in a 

long time.” A31:16533. Again, this cannot constitute error. 

Third, there is also the “mercy shield” comment. To be 

sure, the locution was derisive. But stripped of its rhetorical 

gloss, the term merely underscored the Government’s position 

that Savage’s relationship with his children did not outweigh 

the aggravating factors. The “mercy shield” reference may 

have been a hard blow, but it is not one we can rule as a foul. 

Finally, characterizing Savage’s parental relationship as 

“very limited” is innocuous. Savage’s limited familial contact 

was hardly news to the jurors: the defense itself had cataloged 

the severe restrictions Savage faced and the strain those 

restrictions placed on his familial relationships. In fact, much 

of Savage’s mitigation case was an attempt to prove that 

familial bonds remained despite the limited contact. How, 
196 

then, could it be plain error for the Government to suggest that 

the same limited contact might cut against mitigation? The 

prosecution was merely arguing a competing inference. See 

also 18 U.S.C. § 3593(c) (“The government . . . shall be 

permitted to rebut any information . . . and shall be given fair 

opportunity to present argument as to the adequacy of the 

information to establish the existence of any aggravating or 

mitigating factor . . . .”); United States v. Montgomery, 635 

F.3d 1074, 1097–98 (8th Cir. 2011) (permitting the 

government to rebut a “familial relationship” mitigator by 

disparaging the defendant’s parenting, including asking the 

defendant’s young daughter whether the defendant had “ever 

apologize[d] for what she put you and your siblings through”). 

* * * 

In sum, because the Government did not act to obstruct 

Savage’s opportunities to develop his mitigation case, and 

because the Government properly rebutted his argument 

supporting the “familial relationship” mitigators, there was no 

error. 

G. The verdict sheet’s format did not violate the 

Eighth Amendment. 

Finally, we take up Savage’s argument that the District 

Court constitutionally erred by producing a verdict form 

“dramatically overemphasiz[ing]” the aggravating factors 

“while relegating” the mitigating factors “to an afterthought.” 

Def. Br. 325. As the District Court correctly concluded, this 

argument lacks both factual and legal merit. 
197 

Savage specifically faults the verdict form for marching 

count-by-count through the various aggravating factors the 

Government offered while merely enumerating the defense’s 

blanket list of mitigating factors once at the end of the form. 

Alternatively, he suggests the form could have listed the 

mitigating factors once if it had listed the aggravating factors 

only once. The error, he contends, was “unfairly elevat[ing] 

the significance of the aggravating factors by repeating them 

over and over while relegating the mitigating ones to a single, 

short list at the back of the form.” Def. Br. 332. 

Once again, the parties do not agree on our standard of 

review. Though this claim deals solely with the District 

Court’s verdict form, not its instructions, Savage analogizes to 

United States v. Sussman’s de novo review of “a district court’s 

refusal to give a jury instruction on a defendant’s ‘theory of 

defense.’” 709 F.3d 155, 175 (3d Cir. 2013). But Savage isn’t 

arguing that the District Court refused to include the mitigators 

on the form; he merely protests how the mitigators appeared on 

the form. So the closer analogy would be to a “refusal to give 

a particular instruction or the wording of instructions,” which 

Sussman reviewed for “abuse of discretion.” Id. (quoting 

United States v. Jimenez, 513 F.3d 62, 74 (3d Cir. 2008)). The 

Government offers United States v. Hedgepeth as more support 

for abuse-of-discretion review. That case involved a “District 

Court’s decision to submit a special verdict form to the jury.” 

434 F.3d 609, 612 (3d Cir. 2006). And of course, applying the 

abuse-of-discretion standard here tracks how we review trial 

management rulings generally. See, e.g., Duquesne Light Co. 

v. Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995). 
198 

Accordingly, we review Savage’s challenge to the verdict 

form’s layout for an abuse of discretion. 

Yet the verdict form would pass muster under any 

standard. Repeating the aggravating factors for each count but 

listing the mitigating factors once at the end makes sense both 

legally and factually. 

Legally, a capital defendant’s default sentence is life 

imprisonment. A death sentence can be reached only after all 

twelve jurors find a statutory aggravator beyond a reasonable 

doubt. Sequentially, then, finding and weighing mitigating 

factors becomes important only after a jury has already 

found—unanimously—at least one aggravating factor. This 

means that if jurors go through all capital counts without 

finding a single aggravating factor, there is no need for them to 

consider any mitigators. Their work is over, and the defendant 

must receive a sentence of life imprisonment. Listing the 

mitigators after the aggravators tracks this order of jury 

deliberations, and should be of assistance to the jurors in their 

work. This format makes good sense. 

And viewed factually, it makes sense for two reasons. 

First, each of the thirteen capital counts had a unique set of 

applicable aggravators; the Government tailored thirteen 

separate lists, weaving different statutory aggravators with 

different non-statutory aggravators. But the defense sought to 

globally apply the same general list of twenty mitigators to all 

counts. So although the verdict form needed to specify which 

aggravators applied to which counts, nothing demanded 

repeating the twenty mitigators, count-by-count. 
199 

Second, and relatedly, the FDPA obliges jurors to 

consider “any mitigating factor,” while limiting jurors to the 

aggravating factors “for which notice has been given.” 

§ 3592(a), (c) (emphasis added). That means the verdict form 

had to include several blank lines for the jury to add any 

additional mitigators. So when the District Court produced the 

verdict form, although a certain subset of aggravators applied 

to each count, it was not clear in advance how many mitigators 

might apply, and what mitigators might apply to what counts. 

Moreover, the District Court prevented any risk of 

confusion by emphasizing the need to apply the mitigating 

factors to each capital count. On the verdict form itself, 

prominent oversized text preceded the list of mitigators and 

notified jurors that 

IN CONSIDERING THE MITIGATING 

FACTORS, YOU MUST KEEP IN MIND 

THAT EACH MITIGATING FACTOR IS 

ALLEGED WITH RESPECT TO EACH OF 

THE CAPITAL COUNTS. IF YOU 

DETERMINE BY A PREPONDERANCE 

OF THE EVIDENCE THAT A 

MITIGATING FACTOR IS PRESENT, 

THEN IT MUST BE CONSIDERED IN THE 

WEIGHING PROCESS FOR EACH AND 

EVERY CAPITAL COUNT. 

A2:788. Elsewhere, the verdict form tasked jurors with 

specifying “the number of jurors who have found the existence 

of that mitigating factor to be proven by a preponderance of the 

evidence with regard to each of the capital counts.” Id. 
200 

(emphasis added). And when instructing the jury during the 

sentencing phase, the District Court repeatedly highlighted the 

need for a count-by-count analysis. 

In sum, the District Court reasonably formatted the 

verdict form to reflect this case’s unique factual and legal 

circumstances. And it took several additional steps to ensure 

that jurors correctly understood and followed the form. We 

commend the District Judge for crafting and approving a 

verdict form that so intelligibly presented to the jurors the 

many difficult questions they were being asked to resolve. 

Nothing in the verdict form gave rise to legal error. 

XII. CONCLUSION

As Savage reminds us in his opening brief, “it has been 

nearly a century since this Court last adjudicated a direct appeal 

in a capital case.” Def. Br. 1. That passage of time has given 

rise to considerable debate over the death penalty: Is it just? Is 

it moral? Is it applied and administered in a manner that does 

not discriminate on the basis of race? These and other serious 

questions resound within the public square. 

 Yet none of those questions are what this Court is called 

upon to resolve. 

 We have meticulously combed the very substantial 

record provided us. We have given scrupulous attention to, 

and taken great care in resolving, each of the issues brought 

before us. And we have done so with what the late Justice 

Thurgood Marshall called “especial concern”—because, as he 

solemnly noted more than three decades ago, “execution is the 
201 

most irremediable and unfathomable of penalties.” Ford v. 

Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion). 

 Exercising the heightened responsibility required of us, 

we discern no grounds entitling Savage to relief on any of the 

issues he raises. The judgment of the District Court therefore 

will be affirmed.