United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________________________________

Nos. 00-4082WM, 00-4083WM, 01-1136WM

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No. 00-4082WM *

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United States of America, *

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Appellee, *

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v. *

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Arboleda A. Ortiz, * On Appeal from the United

* States District Court

Appellant. * for the Western District

* of Missouri.

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No. 00-4083WM *

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United States of America, *

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Appellee, *

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v. *

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German Sinisterra, *

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Appellant. *

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-2-

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No. 01-1136WM *

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United States of America, *

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Appellee, *

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v. *

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Plutarco Tello, *

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Appellant. *

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Submitted: June 10, 2002

Filed: November 5, 2002

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Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.

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RICHARD S. ARNOLD, Circuit Judge.

Arboleda A. Ortiz, German C. Sinisterra, and Plutarco Tello appeal their

convictions and death sentences (in the cases of Mr. Ortiz and Mr. Sinisterra) and life

sentence (in the case of Mr. Tello) for murder, drug trafficking, and traveling in

interstate commerce with the intent to commit a murder for hire. Appellants argue

that the trial court did not exclude or suppress inadmissible evidence, including

confessions that were involuntary and obtained in violation of Miranda and Article

36 of the Vienna Convention on Consular Relations, did not conduct adequate voir

dire, violated defendants’ Sixth and Eighth Amendment rights, improperly instructed

the jury at the sentencing phase of the trial, and should have declared a mistrial sua
-3-

sponte in response to remarks made in the government’s closing arguments. We

affirm. In particular, we hold that defendants have shown no prejudice to their case

resulting from violations of the Vienna Convention, and therefore are entitled to no

relief on the basis of those violations.

Defendants Arboleda A. Ortiz, German C. Sinisterra, and Plutarco Tello were

found guilty of (1) conspiracy to distribute cocaine, a Schedule II controlled

substance, in an amount of five kilograms or more; (2) aiding and abetting the use of

a firearm in relation to a drug-trafficking crime and committing a murder in the

perpetration of a drug trafficking crime; and (3) knowingly traveling in interstate

commerce with the intent that a murder for hire be committed. In addition, Mr.

Sinisterra was found guilty on one count of criminal forfeiture. At the sentencing

phase of the trial, the government requested that the death penalty be imposed on all

three defendants. The jury returned a verdict that Mr. Ortiz should receive sentences

of death on Counts Two and Three, and a custodial sentence of 324 months

imprisonment on Count One; that Mr. Sinisterra should receive sentences of death on

Counts Two and Three and a custodial sentence of 324 months on Count One; and

that Mr. Tello should receive life imprisonment on Counts Two and Three, and a

custodial sentence of 324 months on Count One. 

I.

 The events leading up to the murder which precipitated defendants’ arrests are

as follows. Edwin Hinestroza, a fugitive from justice, also charged with the above

three Counts, ran a cocaine distribution ring in the Kansas City metropolitan area. He

was assisted by Héberth Andres Borja-Molina (“Borja”). Cocaine shipments came

from “La Oficina” (“the office” -- a drug cartel) in Colombia, South America, via

Mexico. To transport the cocaine from Houston, where it first arrived from Mexico,

Hinestroza used several individuals, including one of the defendants, German

Sinisterra. The cocaine was delivered in vehicles with false compartments to one of
1

These conversations occurred in Spanish.

-4-

Hinestroza’s five major customers on consignment, and the recipients were allowed

several days to repay the drug debt. Once these debts were paid, money was sent

back to Houston in the same vehicles used to transport the cocaine to Kansas City.

Mr. Hinestroza lived in Kansas City with Monica Osma, the sister of Julian Colon

(the murder victim). On November 19, 1998, the apartment Mr. Hinestroza and Ms.

Osma shared was, by Ms. Osma’s account, robbed, and $240,000 of drug proceeds

was stolen. 

One week later, Ms. Osma (recovering from injuries sustained during the

reported robbery) was visited by Mr. Hinestroza, Jaime Hurtado (who worked for

Hinestroza), and two Colombian males, the defendants Ortiz and Tello. Mr. Ortiz and

Mr. Tello claimed to represent “La Oficina,” or the drug cartel. They questioned Ms.

Osma as to the robbery and were unconvinced by her account. They issued a death

threat, using the word “Muracco” -- a colloquialism taken to mean that “La Oficina”

would not be satisfied unless a dead body appeared. Two days later, in Kansas City,

Mr. Hinestroza asked Borja and Colon to meet him at a hotel, where they were

confronted by the three defendants, Mr. Ortiz, Mr. Sinisterra, and Mr. Tello. Borja

testified that he knew both Ortiz and Sinisterra to be killers by trade. Borja and

Colon accompanied the defendants to another house in Kansas City, where they were

bound with duct tape and physically assaulted by Hinestroza, Ortiz, Sinisterra, and

Tello, who demanded to know where the $240,000 in lost drug proceeds were. The

beatings and demands continued, and Borja was dragged to the basement, where he

overheard Mr. Hinestroza order the defendants to “shoot him [Colon] in the head”

and then heard “shoot the other one, too.”1

 Borja was also shot, but survived and

pretended to be dead while he and the other victim, Mr. Colon, were placed in the

trunk of a vehicle belonging to Borja. The vehicle was driven to a park where it and

the bodies were abandoned.
-5-

Borja escaped from the trunk of the car and eventually reached Mr. Colon’s

wife, who took him to the hospital, where police met with them. The three defendants

were taken into custody within hours of the murder and attempted murder.

A. German Sinisterra’s Arrest and Interrogation

Officer David Martin of the Overland Park Police Department was asked to

help take German Sinisterra from the Drury Inn in Overland Park to the Sanders

Station. Officer Martin had no conversation with Mr. Sinisterra before he entered the

booking area, at which point a videotape was started. Officer Martin read Mr.

Sinisterra his rights and asked if he understood them, to which Sinisterra replied,

“yes.” Immediately afterwards he signed a Miranda rights waiver form (in English),

although he was not asked if he could read. Chief John Douglass of the Overland

Park Police Department asked Sinisterra several questions and concluded that

Sinisterra understood him. When Chief Douglass learned that Sinisterra was a

foreign national and not a United States citizen, he told Sinisterra that he had the right

to contact his consul and that the police would let him do that. Sinisterra did not

respond to this suggestion, and Chief Douglass concluded that he did not wish to

contact his consul. Officer Martin did not give Mr. Sinisterra an opportunity to

contact his consul. Sinisterra asked to be permitted to make a phone call, and was

refused. As he later testified at the suppression hearing, he wished to call his wife,

on whom he was accustomed to rely for help in communicating in English because

of his limited education. He had completed the second grade in Colombia.

Deputy Herrera asked Mr. Sinisterra in Spanish if he could understand English,

and he responded that he could understand both Spanish and English. Deputy Herrera

thought that appellant’s English was fair, and that he understood questions put to him.

Deputy Herrera’s Spanish was acquired growing up in a family (originally from

Mexico) where Spanish was spoken, although his ability to write in Spanish is not

good. 
-6-

During a background interview conducted by Detectives Wilson and Sharp,

Detective Wilson also concluded that Mr. Sinisterra understood what the detectives

said to him, including questions put to him in English. Detective Sharp understood

Mr. Sinisterra’s responses in English. When presented with a Miranda rights waiver

form, Mr. Sinisterra stated that he did not read English, whereupon Detective Sharp

read the form out loud to him. At this point, appellant stated that he understood his

rights, and signed the Miranda form. After a non-videotaped interrogation by

Detectives Wilson and Sharp in which Mr. Sinisterra recounted the events leading up

to the murder and his role in it, he agreed to provide a videotaped statement.

Detective Sharp’s impression during the videotaping was that Mr. Sinisterra

understood the detectives’ English. At no time did he ask for an interpreter, nor did

the detectives offer him one. 

Mr. Sinisterra stated that he had gotten a call in Houston from a man named

“G.G.” (identified as Edwin Hinestroza) who wanted him to come to Kansas City to

get his stolen money back. Later the same evening, appellant met “G.G.,” the victim,

Julian Colon, and another person (Borja) at his motel in Kansas City. They drove to

a house where Sinisterra and Hinestroza tied up two people. “G.G.” asked Sinisterra

to shoot Colon, and he agreed. He then shot the victim in the head and took him to

the car. 

In subsequent testimony, at the suppression hearing (conducted with the aid of

a Spanish interpreter), appellant Sinisterra testified that he did not know that he had

the right to refuse to talk to detectives during this interrogation, and that, had he

known, he would have refused to talk to them. He also testified that he did not know

that he had the right to ask for an American lawyer to represent him, and that, had he

known of this right, he would have asked for a lawyer. He testified that he asked to

be allowed to call his wife or someone else at least five times. He relies on his wife

regularly for assistance in communicating in English. He also testified that he was

asked if he needed an interpreter and said, “No,” although he also claimed that he told
-7-

the officers questioning him that he understood very little English. Appellant

Sinisterra also stated that he was told he had the right to contact a consular official,

but that he did not understand this right.

B. Arboleda Ortiz’s Arrest and Interrogation

Mr. Ortiz was taken from the Drury Inn to the Sanders Station of the Overland

Park Police Department by Patrol Officer Matthew Bregel. During the booking

process, Officer Bregel asked him for basic information (such as name and date of

birth) and he responded normally. At this time, Officer Bregel advised Mr. Ortiz of

his Miranda rights, and he said he understood them. About an hour later, Officer

Bregel asked appellant Ortiz to sign a Miranda waiver form, which he did. At no time

did appellant request an interpreter, and Officer Bregel understood appellant’s

responses and believed he understood what was said to him in English. During the

booking process, Deputy Herrera asked appellant if he understood English or

Spanish. Appellant responded in Spanish that he understood both English and

Spanish. Appellant was unable to read English, and responded to questions in

Spanish, a language in which he was more comfortable. 

Chief Douglass of the Overland Park Police Department asked Mr. Ortiz if he

needed an interpreter and also advised him that he had the right to contact his consul.

Chief Douglass had the impression that Mr. Ortiz had no interest in contacting his

consul, but he could not testify that Mr. Ortiz said that he did not want to contact his

consul. Chief Douglass conducted these exchanges in English and believed that Mr.

Ortiz understood him and that he understood Mr. Ortiz.

Detectives Kenney and Sharp conducted the interview of Mr. Ortiz, in which

he was asked if he understood and spoke English, and he told Detective Kenney that

he did. The detectives conducted their interview in English, and both believed that

the defendant understood them and was able to answer all of their questions without
-8-

difficulty. During the initial part of the interview in which detectives asked for basic

information (about half an hour), Mr. Ortiz responded appropriately to questions, and

also said that he had a seventh grade education and could not read. 

Before the non-videotaped interrogation, Detective Sharp asked Mr. Ortiz if

he understood his Miranda rights and would agree to sign a waiver form. Mr. Ortiz

responded that he could not read English, and Detective Sharp read the Miranda

waiver aloud to him, at which point Mr. Ortiz indicated that he understood his rights

and signed the waiver form. Subsequently, detectives conducted a videotaped

interview, with questions based on those asked and answered in the non-videotaped

interview, in which Mr. Ortiz recounted the events leading up to the murder and his

role in it. Neither Kenney nor Sharp was aware of the Vienna Convention on

Consular Relations, and neither advised Mr. Ortiz of his right to have the Colombian

consul advised of his arrest.

Mr. Ortiz stated that he had flown to Kansas City because he was called by

someone who wanted help in getting stolen money back. He went to a house where

the victim, Julian Colon and another person (Borja) had been taken. He took the

other person (Borja) downstairs, taped him up, and beat him. He denied having any

role in the shootings.

Special Agent Oyler of the FBI arranged for a team of agents and police

officers to transport all three appellants from the Johnson County Adult Detention

Center in Olathe to the federal courthouse in Kansas City, Missouri. Special Agents

Oyler and Tongate transported defendant Ortiz, who began talking to them. The

agents stopped Mr. Ortiz from talking, advised him of his rights, and asked him if he

understood English. He said yes. Mr. Ortiz subsequently spoke to the agents about

his family in Houston and stated that he did not shoot anyone. 
-9-

Appellant Ortiz testified at the suppression hearing (conducted with the aid of

a Spanish interpreter) that he cannot read or write in any language, that he speaks

some English, and that he first entered school at about the age of fourteen in

Colombia. He also denied that officers ever explained to him that he had a right to

remain silent, a right to a lawyer, or that he had a right to call his consul. He also

stated that at no time did officers advise him of his Miranda rights or give him the

opportunity to stop the conversation. He testified that he asked to telephone his wife,

and that he was told by the agent of whom he made this request that he was to have

no communication. He stated that had he known that he had the right to refuse to

answer questions, he would have refused, and had he known that he had the right to

call his consul, he would have called his consul. He also stated that he did not know

what the word “waiver” meant.

C. Plutarco Tello’s Arrest and Interrogation

Appellant Tello was arrested and taken to the Overland Park Police

Department. Detectives Dillenkoffer and Martin of the Kansas City Police

Department went to the Overland Park Police Department but did not interview Mr.

Tello until he was transferred to the Johnson County Adult Detention Center. On

their arrival they were told that Mr. Tello was anxious to talk to them. Detective

Dillenkoffer testified that Mr. Tello spoke very little English, but Detective Martin

had the impression, because of Tello’s answers, that he understood questions put to

him in English. During their interview, the detectives questioned Mr. Tello through

Deputy Herrera, who spoke Spanish, and on whom they relied exclusively for

translation of their questions and Mr. Tello’s answers. Deputy Herrera had not

previously done simultaneous translations or Spanish translations for formal

questioning.

Mr. Tello told Deputy Herrera that he wanted to talk, that “something went

wrong and I want to get it out,” a request the deputy conveyed to the detectives.
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Detective Dillenkoffer asked Deputy Herrera to advise Mr. Tello of his Miranda

rights and provided one of the department’s Spanish Miranda waiver forms. The

detective explained the form to Deputy Herrera, as well as the Kansas City Police

Department’s procedure for using the form with suspects. He asked Deputy Herrera

to read the Miranda form verbatim to Mr. Tello and to advise him of his Miranda

rights in Spanish. Mr. Tello had no questions about what Deputy Herrera told him,

did not ask for an attorney, or indicate that he did not want to talk. When asked if he

understood his rights, Detective Martin testified that defendant Tello responded with

a “yes” in English. At times during the questioning, Mr. Tello responded in English.

Deputy Herrera translated when he responded in Spanish. During a non-videotaped

portion of the interview, Mr. Tello was asked by detectives if he understood his

rights, a question translated by Deputy Herrera. After these questions and answers,

Mr. Tello signed the Miranda waiver form in Spanish and asked no further questions

about the form.

Because Mr. Tello was eager to talk, Detective Dillenkoffer did not conduct his

usual pre-interview, but did advise him of his Miranda rights. Based on the booking

questions and initial interrogation of Mr. Tello, Deputy Herrera had no reason to

believe that Mr. Tello did not understand his Spanish. Throughout the interview

Detective Dillenkoffer’s impression was that appellant was eager to talk, that he

responded to questions without hesitation and understood them, and that he did not

wish, or attempt to, stop the interview at any point. Later, Mr. Tello was asked to

videotape his statement, and agreed. He did not ask for a lawyer at any point, or

indicate that he wished to stop talking. 

Mr. Tello stated that he had come from Texas with co-appellant Sinisterra the

day before to help Hinestroza retrieve money from Colon. They met Colon and Borja

and got into a car with them and Mr. Tello drove them to another house, where they

bound and taped the two victims. Tello and Ortiz took one victim downstairs while

Hinestroza and Sinisterra remained upstairs. Mr. Tello and Mr. Ortiz beat the person
2

We have omitted any accents from this phrase in Spanish. The spoken word

“sí,” with an accent, meaning “yes,” and the spoken word “si,” without an accent,

meaning “if,” sound exactly the same. The ambiguity thus created will be discussed

later.

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downstairs, and when Mr. Tello heard a gunshot he went upstairs and observed Mr.

Sinisterra standing over the victim (Colon). While upstairs, Mr. Tello heard a

gunshot from the basement. He also stated that he knew in advance what would

happen in the house and knew that he would be paid. He had a gun with him which

he later disposed of and, after these events, he did not attempt to get medical

treatment for the victims.

At one point during the videotaped statement, Detective Dillenkoffer asked Mr.

Tello if he understood his rights, and the detective interpreted Mr. Tello’s response

“Si, si es necessito un abogado,”2

 as an affirmation that appellant understood his

rights and had begun to repeat them. Deputy Herrera did not translate the word

“abogado” (“lawyer” in Spanish) for the detectives.

During the transfer from the Johnson County Adult Detention Center to the

federal courthouse, Agent Meads of the FBI, who speaks Spanish, stopped Mr. Tello

from talking to give him his Miranda warnings in Spanish. When asked if he

understood his rights, appellant responded “yes,” and continued to talk. 

Appellant Tello testified at the suppression hearing (conducted with the aid of

a Spanish interpreter) that, at the time of his arrest, he was not informed of his right

to have the Colombian consul notified of his arrest, and that, had he been informed

of this right, he would have asked that the police call the Colombian consul. He also

testified that, had the consul or an attorney explained to him the importance of not

speaking to the police without first talking to an attorney or having an attorney

present, he would have refused to answer questions during his police interview.

Appellant also indicated that, at the point on the videotape where he used the word
3

The Hon. Sarah W. Hayes, United States Magistrate Judge for the Western

District of Missouri.

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“abogado,” he was requesting an attorney, and that he told the officers that he did not

understand his rights. He stated that he continued talking to detectives without

comprehending his rights because he believed he would be hit if he did not do so.

As the recommended findings of the magistrate judge3

 indicate, appellants

Sinisterra and Ortiz were advised by Chief John Douglass of the Overland Park Police

Department that under the Vienna Convention on Consular Relations they could

contact their consulate, although appellants dispute the effectiveness of this

notification. In Mr. Sinisterra’s case, although he was told that he had a right to

notify his consul and that he would be given this right, nothing further was said or

done on the matter either by the police or by Sinisterra. Chief Douglass testified that

he would have used the same language to appellant Ortiz in notifying him of his right

to have the Colombian consul notified of his arrest. As the Government concedes,

Mr. Tello was not advised of his right to consular notification either at the time of his

arrest or at the time of his transfer to the custody of the FBI. Each of the defendants

was advised of his Miranda rights, and then waived those rights and gave videotaped

statements to the police. 

Appellants Ortiz and Sinisterra contend that their limited comprehension of

English made the brief explanation of their Miranda rights in English ineffectual, and

meant that their subsequent statements to police were neither knowing nor voluntary.

According to Dr. Warren Wheelock, a Professor of Education at the University of

Missouri at Kansas City, Mr. Sinisterra is functionally illiterate in English. Mr. Ortiz

contends that, because no one read or explained his Miranda rights to him in Spanish,

he did not intelligently waive his Fifth and Sixth Amendment rights. 
4

As previously noted, the meaning of the sentence depends on the placement

of accents. If the sentence reads, “Sí, si es necessito un abogado,” it means, “Yes, if

it is [that] I need a lawyer.” If the sentence reads, “Sí, sí, es necessito un abogado,”

it mean, “Yes, yes, it is [that] I need a lawyer.” The District Court found the former

meaning was, in context, more plausible. This finding is not clearly erroneous.

5

The Hon. Gary Fenner, United States District Judge for the Western District

of Missouri.

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 Appellant Tello claims that he did not effectively waive his Fifth and Sixth

Amendment rights, given the language barrier. Agent Jimenez of the FBI, who has

served as an interpreter on fifteen occasions for government wiretaps involving

Spanish-speaking individuals, reviewed the videotape of Mr. Tello’s statement to

check for errors and miscommunications. He concluded that, although Deputy

Herrera’s Spanish was “poor” or “not very good,” the government’s transcript and

translation of that interview was accurate, and that Mr. Tello, in the sentence in which

he used the word “abogado,” was not trying to ask for an attorney, but only reciting

what he understood to be his rights.4

 Dr. Yolanda Ayubi, a Colombian native who

holds a Ph.D. in post-cultural communication, testified that when Tello was advised

of his Miranda rights at one point during the interview, he asked which rights.

 Carlos Negret, formerly Consul General for Colombia in Chicago, Illinois,

stated that he was not contacted concerning the arrests of any of the three appellants.

In addition, he indicated that, had defendants made the request, he would have

informed them of their right to an attorney. Dale Close, the legal advisor to the

Kansas City, Missouri, Police Department, testified that he was unaware of the

Vienna Convention before the questioning of Mr. Sinisterra and Mr. Ortiz and that

it was not the policy of the Kansas City Police Department to advise an arrested

foreign national that he could notify his consul.

On these facts, the District Court5

 found that the defendants understood their

rights and voluntarily waived them. Accordingly, the motions to suppress
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defendants’ confessions were denied. As to the Vienna Convention, the District

Court concluded that it had been violated. Ortiz and Sinisterra were told of their

rights under the Convention, but they were also told, according to the findings of the

District Court, that the police would help them exercise these rights, or would give

them an opportunity to exercise them. No such opportunity was ever afforded. On

the contrary, defendants were not permitted to make any telephone calls. In

Mr. Tello’s case, there was no notification whatever of his right to get in touch with

the Colombian Consul. The District Court held, however, that violation of the Vienna

Convention created no individually enforceable rights in appellants. In addition, the

Court found that appellants would have made the same statements even if the

Convention had been fully complied with. They had requested, as a remedy for the

violation, either that the death penalty be excluded as a possible result, or that their

confessions be suppressed. This request was denied.

II.

We review the factual findings of the District Court under the familiar clearlyerroneous standard. Conclusions of law based on those findings, such as whether a

confession was voluntary, are reviewed de novo. United States v. Syslo, -- F.3d --,

W.L. 31000286 (8th Cir. 2002); United States v. Casal, 915 F.2d 1225, 1228 (8th Cir.

1990). A waiver of the Fifth Amendment privilege against self-incrimination is valid

only if it is made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384

U.S. 436, 444 (1966). A waiver is voluntary if it is “the product of a free and

deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine,

475 U.S. 412, 421 (1986). The District Court found, as we have noted, that the

defendants were adequately advised of their Miranda rights, and that they understood

these rights. There was evidence pointing both ways, but this finding is not clearly

erroneous, nor do the District Court’s conclusions suffer from any error of law. 
-15-

We address in particular defendants’ arguments based on the Vienna

Convention on Consular Relations, 21 U.S.T. 77, TIAS No. 6820. Two portions of

the Treaty are relevant. First, the Preamble includes the following explanatory

clause:

Realizing that the purpose of such privileges and

immunities is not to benefit individuals but to ensure the

efficient performance of functions by consular posts on

behalf of their respective States . . ..

21 U.S.T. at 79. This provision, the government argues, indicates that the Treaty

creates no individual rights, enforceable by detained persons, but only a right in the

governments that are parties to it to complain to each other of violations.

By contrast, Article 36 of the Treaty provides as follows:

1. With a view to facilitating the exercise of consular functions

relating to nationals of the sending State:

(a) consular officers shall be free to communicate with

nationals of the sending State and to have access to them.

Nationals of the sending State shall have the same freedom

with respect to communication with and access to consular

officers of the sending State;

(b) if he so requests, the competent authorities of the

receiving State shall, without delay, inform the consular

post of the sending State if, within its consular district, a

national of that State is arrested or committed to prison or

to custody pending trial or is detained in any other manner.

Any communication addressed to the consular post by the

person arrested, in prison, custody, or detention shall also

be forwarded by the said authorities without delay. The
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said authorities shall inform the person concerned without

delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a

national of the sending State who is in prison, custody, or

detention, to converse and correspond with him and to

arrange for his legal representation. They shall also have

the right to visit any national of the sending State who is in

prison, custody, or detention in their district in pursuance

of a judgment. Nevertheless, consular officers shall refrain

from taking action on behalf of a national who is in prison,

custody, or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be

exercised in conformity with the laws and regulations of the receiving

State, subject to the proviso, however, that the said laws and regulations

must enable full effect to be given to the purposes for which the rights

accorded under this Article are intended.

21 U.S.T. at 100-01. In particular, the provision in Article 36(1)(b) that

“[t]he . . . authorities [of the receiving State] shall inform the person concerned

without delay of his rights under this subparagraph” (emphasis ours), appears to

recognize that the person detained does have rights under the Treaty. The antecedent

of the pronoun “his” in this sentence is “the person arrested, in prison, custody or

detention,” a phrase occurring in the immediately preceding sentence.

As we noted in United States v. Santos, 235 F.3d 1105, 1107-08 (8th Cir.

2000), the federal courts are not in agreement as to whether Article 36 of the

Convention creates a right enforceable by an individual who has been arrested.

Compare, e.g., Standt v. City of New York, 153 F. Supp. 2d 417 (S.D. N.Y. 2001)

(individually enforceable right is created); United States v. Hongla-Yamche, 55 F.

Supp. 2d 74 (D. Mass. 1999), with, e.g., United States v. Emuegbunam, 268 F.3d 377

(6th Cir. 2001); United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir.), cert. denied,
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533 U.S. 962 (2001); United States v. Li, 206 F.3d 56, 61 (1st Cir. 2000) (en banc)

(Selya, J. and Boudin, J., concurring). The Supreme Court has not directly addressed

the issue, though it has said that the Convention “arguably confers on an individual

the right to consular assistance following an arrest.” Breard v. Greene, 523 U.S. 371,

376 (1998) (per curiam). 

As we understand defendants’ contentions in this Court, their major position

is that a violation of the Vienna Convention, in and of itself, renders their statements

inadmissible, entirely apart from whether the statements were voluntary. We

disagree. Even if we assume for present purposes that the Convention creates an

individually enforceable right, it would not follow, on this record, that the statements

should be excluded merely because the Convention has been violated. The reason is

that appellants are unable to establish a causal connection between the violation and

their statements. The District Court found: “No credible evidence suggests that had

defendants been advised of their right to have their Colombian consul notified of their

arrest, they would not have made the statements.” Opinion of Magistrate Judge at 33.

This finding is not clearly erroneous. 

Consul Negret does not say that he would have advised appellants not to make

their statements to the police. No doubt he would have informed them of their rights,

including the right to obtain counsel, and would have done so in Spanish. But they

had already been adequately informed of this right. There is no evidence that

receiving this information from the consul would have changed their conduct. In

other words, there is no evidence that defendants, if they had been given proper

consular access, would have chosen not to waive their Miranda rights. So far as we

can tell, the course of the trial would not have been changed at all. Furthermore, the

Vienna Convention does not require that interrogation cease until consular contact

is made. The interrogation in this case occurred on a Sunday. If defendants had been

allowed to telephone the consul, they could not have reached him. The most that

could have been done was to leave a message on the consulate’s voice mail, and the
6

A similar thought occurred to Judge Oda of the International Court of Justice

in the LaGrand case. Germany v. United States, 1999 I.C.J. 9, 19: “[I]f consular

contact had occurred at the time of Mr. Walter LaGrand’s arrest or detention, the

judicial procedure in the United States domestic courts relating to his case would

have been no different” (declaration of Oda, J.).

-18-

consul would have returned the call the next day. By that time, defendants, fully

informed of their rights under Miranda, had already confessed. In other words,

defendants have shown no prejudice, and therefore the violation of the Vienna

Convention is of no avail to them, even if the violation is assertable by an individual

detained person.

Defendants also argue that an appropriate remedy for the violation of the

Convention is a prohibition on the government’s seeking the death penalty. Again,

even assuming that the Convention creates individually enforceable rights, this

conclusion does not follow. There is no causal or logical connection at all between

the penalty imposed on defendants and violation of the Vienna Convention. The

death penalty is provided by statute. It comes into the case, of course, only after

defendants are convicted. We have already seen that their own incriminating

statements, potent evidence supporting the conviction, would have been made even

if consular contact had occurred. The Convention itself says nothing about the

appropriateness of penalties, and certainly does not provide that the death penalty is

excluded if the Convention is violated. We do not believe that courts are authorized

to create such a remedy. As the Supreme Court has said, “it is extremely doubtful that

. . . violation [of the Convention] should result in the overturning of a final judgment

of conviction without some showing that the violation had an effect on the trial.”

Breard, 523 U.S. at 377. Similarly, we have no warrant for overturning the sentence

without some showing that the violation had an effect on it.6

In short, this record contains no evidence that violations of the Vienna

Convention in the case of these defendants prejudiced them in any way. That
-19-

violations occurred is a fact, but it is a disembodied fact. Courts have no authority

to enforce the law, including treaties, in a vacuum, so to speak. Our job is simply to

decide the cases that come before us, and to do so in a way that is just as between the

parties. That the Convention was violated in these cases is not something to be proud

of. The position of the Kansas City Police Department, apparently determining as a

matter of policy that no notification of rights under the Convention will ever be made,

is disturbing, to say the least. “Great nations, like great men, should keep their

word.” Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 142

(1960) (Black, J., dissenting). Although the Department of State has made an effort

in recent years to advise federal, state, and local law enforcement agencies how to

comply with Article 36(b)(1), prior cases demonstrate that this nation’s overall

compliance record leaves a good deal to be desired. This fact, however, does not

automatically translate into relief for particular defendants in particular cases.

For the reasons given, we conclude that the motions to suppress defendants’

confessions were properly denied.

III.

The defendants contend that their Sixth Amendment right to be tried by a fair

and impartial jury was violated in this case. They argue that these rights were

violated on a number of grounds. First, they say, the trial court’s failure to conduct

a “searching” voir dire precluded them from receiving enough information to exercise

intelligently, peremptory challenges, failed to reveal any potential prejudice in the

venire, and prevented the trial court from striking certain veniremen whose responses

to various questions suggested that they might not be impartial. Second, they argue

that the trial court failed to conduct a proper examination of the venire during the

death-penalty-qualification phase of the trial. Third, defendants say the trial court

improperly questioned potential jurors regarding their feelings about immunized

witnesses during general voir dire. And fourth, it is asserted that the government
-20-

incorrectly struck certain jurors because of race. All three defendants’ arguments

have been combined for the purposes of this opinion. After conducting a thorough

review of the record before this Court, we hold that the defendants’ Sixth Amendment

rights were not violated.

The Sixth Amendment guarantees “the criminally accused a fair trial by a panel

of impartial, indifferent jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (internal

quotations omitted); see also Pruett v. Norris, 153 F.3d 579, 584 (8th Cir. 1998).

Voir dire serves the purpose of assuring a criminal defendant that this right will be

protected. See Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). “Without

an adequate voir dire the trial judge’s responsibility to remove prospective jurors who

will not be able impartially to follow the court’s instructions and evaluate the

evidence cannot be fulfilled. Similarly, lack of adequate voir dire impairs the

defendants’ right to exercise peremptory challenges . . ..” Id. (internal quotations

omitted). Voir dire may be conducted by the parties’ attorneys or by the court. Fed.

R. Crim. P. 24(a). If the trial court chooses to conduct voir dire, “the parties may

supplement the examination by such further inquiry as the court deems proper;

alternatively, the court may limit participation to the submission of additional

questions, which the court must ask only as it deems proper.” Rosales-Lopez, 451

U.S. at 189 (internal quotations omitted). Trial judges have broad discretion in

determining how best to conduct voir dire, though this discretion is not without

boundaries. See Harold v. Corwin, 846 F.2d 1148, 1150 (8th Cir. 1988). Because the

trial judge is in the best position to analyze the demeanor and credibility of a

venireman, we will not reverse a court’s rulings absent an abuse of discretion, United

States v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974); see also Wainright v. Witt,

469 U.S. 412, 428 (1985). The reason given is that juror bias “cannot be easily

discerned from an appellate record.” Wainwright, 469 U.S. at 429. Our standard of

review mandates that a trial court’s decision to strike a juror for cause be reversed

only where a defendant can show actual prejudice. See United States v. Blum, 65

F.3d 1436, 1442 (8th Cir. 1995). 
7

The general voir dire consisted of fourteen questions. See Appellee’s

Addendum C.

-21-

In this case, voir dire was conducted by the trial court. Initially, the Court

provided each member of the venire a questionnaire of 103 questions. Appellee’s

Addendum A 1-31. This questionnaire covered a multitude of subjects, including, but

not limited to, racial bias, personal views regarding the death penalty and the

legalization of certain drugs, and personal experiences involving law-enforcement

officers. After the jurors had completed the questionnaires, the Court allowed strikes

for cause to be made by the parties on the basis of responses to questions contained

in the questionnaire. After these strikes were made, and the Court had either granted

or denied such strikes, the Court divided the remaining pool into three equal groups.

The Court advised the parties that each group would be brought into the courthouse

for general group voir dire,7

 after which the Court would conduct individual death

qualification outside of the presence of the other potential jurors. The parties were

then asked to submit any supplemental questions that they wished the Court to

consider. After the Court had received such requests, it advised the parties that it

intended to conduct the entire voir dire and that it “intended to adopt many of the

proposed changes in [the Court’s] general voir dire as suggested by [the parties’

attorneys].” Appellee’s Addendum C. The Court conducted voir dire on three

consecutive days in the manner described, conducting general voir dire, then

individual death qualification, until 77 persons remained.

A. Racial Bias

The defendants contend that this process was insufficient. Specifically, the

defendants suggest that the Court failed to examine thoroughly the racial biases of

particular veniremen. Moreover, they argue that the Court erred in failing to strike

for cause at least one juror who they believe showed evidence of racial bias. We

disagree.
-22-

A court is constitutionally required to inquire into potential jurors’ racial

prejudices if “ethnic or racial issues are inextricably intertwined with conduct of the

trial, or if the circumstances in the case suggest a significant likelihood that racial

prejudice might infect the defendant’s trial.” United States v. Borders, 270 F.3d

1180, 1182 (8th Cir. 2001); see Rosales-Lopez, 451 U.S. at 190. If “substantial

indications” of racial prejudice exist in a particular case and a trial court denies a

defendant’s request to examine a venireman’s ability to be impartial, this inaction

may be characterized as “an unconstitutional abuse of discretion.” Borders, 270 F.3d

at 1183 (internal citation omitted).

Even in cases when such implications do not exist, and further inquiries are not

constitutionally required, the best practice is to allow defendants to choose whether

they would like “an inquiry into racial or ethnic prejudice in order to avoid the

appearance of injustice.” Id. When examining whether a potential juror holds any

racial or ethnic prejudices the questions do not have to be of a specific type, neither

must the court ask any particular questions. See Bear Runner, 502 F.2d at 912. In the

past, we have held that general questioning on the subject of race is sufficient. See

United States v. Thompson, 490 F.2d 1218, 1222 (8th. Cir. 1974). However, we have

also suggested that the better practice is to ask “direct probing questions” of

individual veniremen, “particularly . . . when the overall circumstances and

surroundings suggest the possibility of racial bias.” Bear Runner, 502 F.2d at 912. 

The Court first inquired into whether any juror held any ethnic or racial

prejudices that could potentially affect him or her in this case by means of the

questionnaire that the Court provided to every prospective juror. 

44. Do you believe that certain races or ethnic groups tend to be more

violent than others?

Yes _____ No _____
-23-

If your answer is yes, please indicate which races or ethnic groups you

believe to be more violent.

45. Have you ever had a bad experience involving a person whose

race is different from yours?

Yes _____ No _____

If your answer is yes, please describe any such experience.

46. How would you feel if a family of a different race moved next

door to you?

_____ I would favor it

_____ I would be indifferent because the race of my

neighbors makes no difference to me

_____ I would oppose it

47. The defendants in this case are Black and are accused of killing

a Hispanic person. Would the race or ethnicity of the defendants

or victim be important to you in deciding between a life sentence

and the death penalty?

a. Yes, victim _____ No _____

b. Yes, defendants _____ No _____

c. If yes to a or b, please explain your answer.

48. Do you have any feelings toward any racial or ethnic group which

would cause you to judge a member of that group differently than
-24-

you would judge a member of your own racial or ethnic group?

Yes _____ No _____

If yes, please explain.

Appellee’s Addendum A 12-13. 

The Court further examined the venire on this subject during general voir dire.

The Court stated:

Ladies and gentlemen, although the defendants in this case are from the

country of Colombia, they have African heritage. Some people

indicated on their questionnaires that they have had difficulty with a

person or persons of a different race or that they would oppose having

a person of a different race as a neighbor or that they believed certain

races to be more violent. Is there anyone here who expressed such a

belief and because of your belief, or for any other reason, feels that you

would be less likely to believe the position of a black person, or a person

from Colombia, as opposed to anyone else merely because of their race

or nationality?

Appellee’s Addendum C 5. There were no responses to this question. 

During death-penalty qualification of the potential jurors, the Court asked

several individuals additional questions on the subject of racial or ethnic prejudice.

The defendants argue that more questions were necessary during this individual

questioning. We will not discuss every person that the defendants contend was

inadequately examined, but will include certain examples to address the defendants’

argument.
8

Similar arguments were made with regard to juror number 33, Judy Schott.

-25-

Several potential jurors responded to question number 44 of the questionnaire

that they believed that certain races were more violent than others. For example,

Juror number 17, Jimmie Jones, stated in his questionnaire that in his opinion

“intercity people, being both black and white, tend to be more violent.” Tr. 115.

When the Court asked if he felt “that the fact that the defendants in this case are from

another country, from Colombia, and the fact they’re African Heritage would cause

you in any way not to be impartial in this case,” he responded, “[o]h, I don’t think so,

I didn’t have that knowledge at the time I filled that out and my only facts for making

that statement is reading the paper, I guess, it’s really not fair but that is what you

read and that’s what you understand.” Tr. 116. When the Court asked further if he

felt that the defendants’ nationality or race would be a consideration for him in either

determining guilt or determining punishment, he stated, “I don’t think so, sir. A man

is a man.” Id. He then stated that he would be able to listen to the evidence in this

case and make a decision based solely on the evidence and the law as instructed. Id.

There was no error in the Court’s inquiry. This venireman stated that he would not

consider race when determining guilt or punishment, and that he would make a

decision based solely on the evidence presented. Any further questioning would have

been superfluous.

Similarly, the defendants contend that juror number 69, Vicky Borland, and

juror number 98, Jacqueline Betts, were not examined adequately. Ms. Borland and

Ms. Betts both stated in their questionnaires that they believed that Hispanics and

African Americans were more violent. However, they both stated that the race of the

defendants would not affect any decision they might have to make in this case, and

that they could be impartial to the defendants. Tr. 328, 450. Again, we believe

further examination was not necessary.8

 In addition, the defendants used a

peremptory strike to remove Ms. Borland.
-26-

The defendants also contend that juror number 114, William Pecota, should

have been more thoroughly questioned. Mr. Pecota played baseball in Colombia for

a few months nearly twenty years ago. The Court asked Mr. Pecota several questions

regarding his experience in Colombia and whether this would tend to make him

“believe the charges against the defendants without hearing the evidence against

them.” Tr. 505. Mr. Pecota responded that it would not. Id. He also stated that he

thought that he could make a decision in this case solely on the evidence presented.

Again, we find that the Court’s inquiry was sufficient to reveal any potential

prejudices held by Mr. Pecota. 

Juror number 26, Thomas Jones, and juror number 104, Mark Fricke, raise a

slightly different concern. Mr. Jones responded in his questionnaire that he believed

certain races were more violent, though he did not identify a particular race. When

the defendants’ attorneys requested further questioning from the Court, this request

was denied. Mr. Fricke did not respond to the “pertinent” race questions on the

questionnaire, and the Court also denied further questioning of Mr. Fricke. Tr. 469.

Though the Court could have chosen to examine further these individuals, we do not

believe that failure to do so was an abuse of discretion. The Court did ask during

general voir dire whether the fact that the defendants were of African heritage would

hinder the ability of each person to be impartial. Neither of these veniremen

responded. More importantly, neither of these veniremen served on the jury;

therefore, no actual prejudice was suffered. 

The defendants also argue that the Court should have struck at least one juror

on account of his racial bias. The defendants contend that juror number 31, Kenneth

Whisler, should have been struck for cause. Mr. Whisler indicated in his

questionnaire that he believed that African Americans were more violent than other

races. However, he did not “think” that the fact that the defendants were from

Colombia would “impact his ability to be impartial.” Tr. 162. When the Court

further inquired whether “the fact that the defendants have African . . . heritage would
-27-

in any way weigh on your decision at that part of the trial or any other,” he responded,

“[n]o, sir.” Tr. 164. We will uphold a trial court’s decision whether to strike a juror

for cause unless the defendants can illustrate actual prejudice. See United States v.

Mills, 987 F.2d 1311, 1314 (8th Cir. 1993). In the present case, not only did Mr.

Whisler state that he could be impartial, he did not serve on the jury. Because the

necessity of using a peremptory strike does not establish actual prejudice, we find no

abuse of discretion by the trial court. 

 

B. Individual Death Qualification

We now turn our attention to the death qualification of the potential jurors.

The defendants urge this Court to hold that the trial court in the present case failed

to conduct a searching voir dire on this issue, and that the Court failed to strike for

cause jurors who suggested in their responses to the Court’s questions that they might

not be impartial. We do not agree with the defendants’ contentions.

The standard for the exclusion of a venireman on the basis of his inability to

consider a death-penalty verdict properly was articulated in Witherspoon v. Illinois,

391 U.S. 510 (1968). The Supreme Court stated “that a sentence of death cannot be

carried out if the jury that imposed or recommended it was chosen by excluding

veniremen for cause simply because they voiced general objections to the death

penalty or expressed conscientious or religious scruples against its infliction.” Id. at

522. In its opinion, the Court stated that this standard did not change the ability of

a court to excuse a juror who states that he would “automatically vote against the

imposition of capital punishment without regard to any evidence” presented to the

Court or “that [his] attitude toward the death penalty would prevent [him] from

making an impartial decision as to the defendant’s guilt.” Id. at 522 n.21. 

In a later case the Court noted that “a juror may not be challenged for cause

based on his views about capital punishment unless those views would prevent or
-28-

substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45 (1980). Even a juror

who has stated that he does not believe in the death penalty might be able to sit as a

juror if he can follow the trial judge’s instructions and “consider fairly the imposition

of the death sentence in a particular case.” Id. at 44-45 (citing Boulden v. Holman,

394 U.S. 478, 483-84 (1969)). Moreover, bias does not have to be “evident from

voir dire with ‘unmistakable clarity’ because many veniremen simply cannot be asked

enough questions to reach the point where their bias has been made ‘unmistakably

clear.’ ” Kinder v. Bowersox, 272 F.3d 532, 543 (8th Cir. 2001) (internal citations

omitted).

In their briefs, the defendants provide many examples of potential jurors that

they feel the Court should have struck for cause, or improperly struck for cause,

because of these individuals’ willingness vel non to sentence the defendants to death.

We will again include only a sample of these examples in our discussion in order to

analyze the defendants’ arguments, paying close attention, first, to those individuals

who served on the jury in this case.

The first inquiry that the Court made with regard to the death penalty was in

the juror questionnaire. Each person was asked:

4. How would your feelings about the death penalty affect you if

you served as a juror in a case and had to choose between the

death penalty and a sentence of life imprisonment without

possibility of parole? (Please read all of the statements, take

some time to think, and then mark all of the choices which you

believe describe your feelings.)

a. I am opposed to the death penalty, and I will never vote to

impose the death penalty in any case, no matter what the

facts.
-29-

b. I am opposed to the death penalty, and I would have a

difficult time voting to impose the death penalty.

c. I am opposed to the death penalty, but could vote to impose

the death penalty if I believed that the death penalty was

called for in light of the facts and the law in the case.

d. I have no definite opinion for or against the death penalty.

I could vote to impose the death penalty, or I could vote to

impose a sentence of life imprisonment without parole,

whichever I believed was called for in light of the facts and

the law in the case.

e. I am in favor of the death penalty, but I could vote for a

sentence of life imprisonment without possibility of parole

if I believed that sentence was called for in light of the

facts and the law in the case.

f. I am strongly in favor of the death penalty, and I would

have a difficult time voting against the death penalty. 

g. I am strongly in favor of the death penalty, and I would

vote for the death penalty in every case in which the person

charged is eligible for a death sentence.

h. None of the statements above correctly describes my

feeling about the death penalty.

41. Please describe your feelings about the death penalty in your own

words. How strong are those feelings and how long have you had

them?

Appellee’s Addendum A 11. 
-30-

The Court inquired further into the jurors’ views during the individual death

penalty qualification. It is with these individual interviews that the defendants are

most concerned. 

 The defendants first contend that juror number 7, Jaqueline Craig, should have

been struck for cause. Ms. Craig stated in her questionnaire that she “had no definite

opinions either for or against the death penalty” and that she could vote to impose

either punishment. Tr. 67. Ms. Craig also stated in her questionnaire that she

believed an “individual should be responsible for their actions and that evidence

would have to show an intent to murder for the death penalty to be imposed.” Id.

When questioned further on this matter, she stated that she believed that she could

vote for either punishment after considering any aggravating or mitigating

circumstances, and that she would not “automatically” vote one way or the other if

she found that a murder had been intentionally committed. Tr. 68. We see no error

in the Court’s failure to strike Ms. Craig, who ultimately served on the jury. Ms.

Craig did not indicate that she would favor one penalty or the other, and she did not

state that she would be unable to follow the procedure outlined by the Court.

 The defendants also argue that juror number 10, Linda Watson, should have

been removed by the Court for cause. Ms. Watson also served on the jury in this

case. First, we note that the defendants did not move to strike Ms. Watson following

her qualification. Ms. Watson stated in her questionnaire that she was in favor of the

death penalty but she could vote for life imprisonment. Tr. 80-81. She also stated in

her questionnaire that she would vote for the death penalty “if the evidence prove[d]

it.” Tr. 81. When the Court asked Ms. Watson if she could follow the process of

evaluating the mitigating and aggravating factors and consider both options of

punishment, she stated “[y]es.” Id. Again, we do not believe that the Court erred in

failing to strike Ms. Watson. She clearly indicated that she could consider both

options as to punishment. 
-31-

The defendants in this case moved to strike numerous other prospective jurors

who they felt would be inclined to vote for a sentence of death, rather than life

imprisonment without parole. After reviewing the individual questioning of all

veniremen, we shall discuss only the denials by the Court that are potentially of most

concern. 

The Court denied the defendants’ motion to strike juror number 33, Judy

Schott. Ms. Schott stated in her questionnaire that she “was in favor of the death

penalty but could vote for a sentence of life imprisonment without the possibility of

parole if [she] believe[d] the sentence was called for in light of the facts and the law

in the case.” Tr. 170. She also stated, “if a person deliberately planned to commit a

murder they deserved the death penalty because [she did] not believe a taxpayer

should have to keep these people alive.” Id. When asked “if a person committed a

murder with premeditation, . . . would [she] feel that under those circumstances that

[she] would automatically vote for the death penalty,” she stated that she “would be

inclined to, yes.” Tr. 171. When she was asked again, “if a person was convicted of

murder that [she] would not be able to consider both forms of punishment and that

she would automatically vote for one form or the other,” she replied, “[n]o, I don’t

believe I would automatically vote one way or the other.” Id. The Court then

inquired into her feelings regarding the taxpayers’ burden of keeping someone in

prison. She stated that she was not sure if that would be a consideration when

determining the appropriate form of punishment. When asked a second time if she

thought the expense of keeping someone in prison would make it difficult for her to

vote for life in prison, she stated, “[n]o.” Tr. 172-73. 

Similarly, juror number 74, Joseph Terranella, juror number 97, Samuel Goth,

and juror number 106, Lee Gabbert, all expressed strong feelings in favor of the death

penalty. Mr. Terranella stated in his questionnaire that he was “strongly in favor of

the death penalty” and “would have a difficult time voting against it.” Tr. 345. He

also stated that he “believe[s] there is biblical support for the death penalty.” Id. Mr.
-32-

Goth stated in his questionnaire that he was “strongly in favor of the death penalty

and would vote for it if a person was eligible.” Tr. 443. He also made the remark,

“[i]f they took somebody else’s life, knowingly was doing it, I don’t feel like they

should live either.” Tr. 445. Mr. Gabbert noted in his questionnaire that he believed

in “an eye-for-an-eye and those that take lives on purpose should pay the price.” Tr.

473. Moreover, when the Court asked Mr. Gabbert “if there was an intentional

murder committed you would then believe that the punishment automatically should

be imposition of the death penalty,” he responded, “[p]robably in most cases, yes,

sir.” Tr. 474.

However, each of these jurors ultimately stated that they could follow the

procedure outlined by the Court and weigh all mitigating and aggravating

circumstances before imposing punishment. For example, Mr. Terranella responded

affirmatively to the Court’s question of whether he could vote for either form of

punishment. Tr. 347. Mr. Goth also responded, “yes,” there would be “circumstances

where [he] would feel the appropriate punishment would be life imprisonment.” Tr.

445. Similarly, Mr. Gabbert responded, “[y]es, sir, I think I could, yes, sir,” when

asked if he could consider life imprisonment as punishment for someone found guilty

of committing intentional murder. Tr. 475-76. 

We do not believe that the Court abused its discretion in failing to strike

particular persons on the basis of their view on capital punishment. Each of the

potential jurors ultimately stated that he could consider life imprisonment without

parole as a possible punishment, and that he could follow the procedure as instructed

by the Court. This holding is consistent with our decision in Ramsey v. Bowersox,

149 F.3d 749 (8th Cir. 1998). In Ramsey, we found no error when a trial court failed

to strike two potential jurors who stated that “they were capable of voting for either

the death sentence or life imprisonment without parole” but then indicated that their

tendency would be to lean towards the death penalty. Id. at 758. Because the two

jurors had responded that they would be able to consider either sentence and would
-33-

not impose either sentence automatically after hearing the Court's statements about

aggravating and mitigating factors and “the necessity of the prospective jurors’

ability to follow the instructions,” we upheld the Court’s decision that they were

“qualified to sit as impartial jurors.” Id. Compare Hatley v. Lockhart, 990 F.2d 1070,

1072 (8th Cir. 1993), in which we held that the trial court properly excluded a

potential juror who stated that she would “automatically” vote for life imprisonment.

C. General Voir Dire Inquiry Regarding Immunity

The defendants also argue that the Court improperly questioned prospective

jurors regarding their feelings about the credibility of immunized witnesses during

general voir dire. Essentially the defendants contend that the general voir dire

question tended to lend credibility to the government witness who was granted

immunity. The Court asked the following question:

Some witnesses who are expected to testify have been granted immunity

from prosecution.

a. Does anybody feel that plea bargains or grants of immunity are

wrong, improper, or somehow unfair?

b. Would you tend not to believe the testimony of an individual who

has pled guilty pursuant to a plea agreement simply because that

witness entered into that agreement or has been given immunity?

c. Does anyone believe or feel it is wrong or improper for an

individual to agree to plead guilty and cooperate with the

government to identify and testify about others involved in the

criminal activity?

d. Would you be able to be fair, impartial and unbiased in your

evaluation to the testimony of witnesses who are convicted of

offenses or have been granted immunity and have agreed to

testify?

Appellee’s Addendum C 4. 
-34-

Only one government witness, Héberth Andres Borja-Molina, was granted

immunity in this case. Mr. Borja-Molina is a young man who was intimately

acquainted with the drug activity of the defendants. A similar instruction was upheld

by this Court in United States v. Eagle Hawk, 815 F.2d 1213 (8th Cir. 1987). In that

case, we held that the inquiry into the use of immunized testimony was “completely

impartial,” and within the broad discretion trial courts are afforded in determining

how to conduct voir dire. Eagle Hawk, 815 F.2d at 1219. We believe that the inquiry

made in this case was also impartial and was well within the Court’s discretion. A

juror who chooses to disbelieve a witness because that witness has been granted

immunity is in no way behaving improperly. But a potential juror’s attitude towards

immunized testimony is relevant, because it could help the parties exercise their

peremptory challenges.

D. The Batson Claim

The defendants contend that the government unconstitutionally used four of its

peremptory challenges to strike jurors because they were black. In Batson v.

Kentucky, 476 U.S. 79 (1986), the Supreme Court held that it is a violation of the

Equal Protection Clause to use peremptory strikes solely on the basis of race. In

order to establish a prima facie case of purposeful discrimination, a defendant must

prove the following: 

that he is a member of a cognizable racial group . . ., and that the

prosecutor has exercised peremptory challenges to remove from the

venire members of the defendant’s race. Second, the defendant is

entitled to rely on the fact, as to which there can be no dispute, that

peremptory challenges constitute a jury selection practice that permits

‘those to discriminate who are of a mind to discriminate,’ . . .. Finally,

the defendant must show that these facts and any other relevant

circumstances raise an inference that the prosecutor used that practice

to exclude the veniremen from the petit jury on account of their race. 

Batson, 476 U.S. at 96 (citations omitted). 
-35-

Once a defendant establishes a prima facie case, the burden shifts to the

prosecution to provide race-neutral reasons for excluding the veniremen in question.

Id. at 97. 

The defendants contend that the government unconstitutionally used

peremptory strikes to remove juror number 3, Anthony Wesson, juror number 66,

Glorus Hill, juror number 89, Cynthia Roe, and juror number 129, Ruthie Ashley.

The defendants argue that similarly situated Caucasians remained on the jury. We

believe the government provided sufficient race-neutral reasons for removing these

venire members. 

The government justified each of its strikes. It struck Mr. Wesson because he

had no views on the death penalty, he had indicated that he had been treated badly by

the police, and had been placed in a line-up wrongfully. In addition, he created the

appearance of possible bias during the voir dire process by paying particular attention

when the defendants read their witness list and paying little attention when the

government presented its list to the Court, Tr. 823. 

The government struck Ms. Hill because, according to the government’s

attorney, older jurors seem to have a more difficult time sentencing someone to death

“because they are facing their own mortality,” Tr. 826. She was approximately the

same age as a white woman, juror number 94, Rosemary Pilsl, who was not struck,

but Ms. Pilsl, unlike Ms. Hill, had indicated that accountability was important to her.

The government struck Ms. Roe because it believed that Ms. Roe’s response

in her questionnaire that she “tried not to let anything or anybody steal her joy,” Tr.

828, hinted that she might be “out there somewhere,” Tr. 829. The government was

also concerned that Ms. Roe might be sympathetic to the defendants because she had

a son who was on probation for a drug charge, and she did not like the way he was

treated when she went to visit him. 
-36-

The government struck Ms. Ashley because she indicated on her questionnaire

that she was opposed to the death penalty, and she was the only person who remained

on the venire who selected answer “c” in response to the question on the

questionnaire regarding her feelings on the death penalty. This answer indicated that

she was “opposed to the death penalty, but could vote to impose the death penalty if

she believed that the death penalty was called for in light of the facts and the law in

the case.” Tr. 831.

We agree with the District Court that the government provided sufficient raceneutral reasons for using peremptory strikes on these jurors. The government’s

proffered reasons are supported by the record. We do not believe that there was any

constitutional error. “We cannot say that the trial court clearly erred in finding that

the [government] lacked discriminatory motivation.” Shurn v. Delo, 177 F.3d 662,

665 (8th Cir. 1999).

III.

The defendants make a variety of other contentions, which we address in turn.

A. Admission of Gruesome Photographs

Mr. Tello argues that the Court erred in admitting photographs of the murder

victim. We review a District Court’s decision to admit evidence for an abuse of

discretion. United States v. Payne, 119 F.3d 637, 645 (8th Cir. 1997). Under Federal

Rule of Evidence 403, “relevant photographs of a victim should be admitted unless

[they are] ‘so gruesome or inflammatory that [their] prejudicial impact substantially

outweighs [their] probative value.’ ” United States v. Davidson, 122 F.3d 531, 538

(8th Cir. 1997) (quoting United States v. Petary, 857 F.2d 459, 463 (8th Cir. 1998)).

The photographs at issue here show the victim’s bloody corpse and are graphic.

However, they also have significant probative value. They corroborate the testimony
9

This Court has granted Mr. Ortiz’s motion to adopt the arguments made in the

briefs of his co-defendants. However, we cannot identify when, if at any time, Mr.

Ortiz made a motion for severance in the District Court. He does not claim in his

brief to have done so, and we cannot locate such a motion. If Mr. Ortiz did not file

a motion, this failure constitutes a waiver, see Fed. R. Crim. P. 12, and our review is

for plain error. At any rate, Mr. Ortiz was not entitled to a separate trial for the same

reasons given in our affirmance of the denial of his co-defendants’ motions. 

-37-

of the government’s key witness, Mr. Molina, establish that the victim had been

bound with duct tape and beaten before his murder, and support the government’s

contention that the crime was particularly heinous and depraved. We agree with the

District Court that the probative value of this evidence is not substantially outweighed

by its prejudicial effect. We affirm the Court’s denial of the motion to exclude this

evidence. 

B. Severance

Mr. Tello and Mr. Sinisterra9

 argue that the District Court abused its discretion

in denying their motions for severance. We disagree. The defendants cannot show

that the joint trial resulted in prejudice that denied them a fair trial. 

Mr. Tello filed two motions for severance. The first motion raised three

grounds: (1) that the use of the co-defendants’ statements would violate Mr. Tello’s

confrontation rights and be contrary to Bruton v. United States, 391 U.S. 123 (1968),

(2) that a joint trial would prevent an individualized assessment of Mr. Tello’s guilt,

and (3) that Mr. Tello and Mr. Ortiz had antagonistic defenses. His second motion,

which was repeatedly renewed during trial, contended that the District Court’s

redaction of Mr. Tello’s statement to resolve the Bruton issues raised by his codefendants removed information exculpatory of Mr. Tello, thereby prejudicing him.

Mr. Sinisterra made a pre-trial motion for severance based on Bruton problems

created by the redacted confessions of his co-conspirators and on having a defense

antagonistic to that of Mr. Tello. 
-38-

The decision to grant a defendant severance from joint trial is committed to the

discretion of the district court. United States v. Wint, 974 F.2d 961, 966 (8th Cir.

1992), cert. denied, 506 U.S. 1062 (1993); Federal Rule of Criminal Procedure 14.

We will affirm a district court’s decision to deny a motion for severance “absent an

abuse of discretion resulting in clear prejudice.” United States v. Johnson, 944 F.2d

396, 402 (8th Cir.), cert. denied, 502 U.S. 1008 (1991). 

Both Mr. Tello and Mr. Sinisterra argue that the joint trial was improper

because each had a defense that was antagonistic to another defendant. This does not,

as a matter of law, require severance. Zafiro v. United States, 506 U.S. 534, 538

(1993). Neither Mr. Tello nor Mr. Sinisterra convinces us that the facts of this trial

required severance based on antagonistic defense theories. While a defendant who

tries to minimize his role while emphasizing the participation of other actors “may

have a better chance of acquittal in [a] separate trial[,]” this does not entitle him to

severance. Id. at 540. Severance is mandated only when there is a danger “that the

jury will unjustifiably infer that this conflict [between the antagonistic defenses]

alone demonstrates that both are guilty.” United States v. Spitler, 800 F.2d 1267,

1272 (4th Cir. 1986). 

Mr. Tello and Mr. Ortiz each claimed that the other shot Mr. Molina. While

only one man committed that act, the government’s theory of the case did not require

the jury to decide who shot Mr. Molina. The indictment charged defendants with

crimes, including conspiracy and aiding and abetting, that did not require jurors to

choose a particular defendant as the shooter.

Also, Mr. Sinisterra argues that his defense was at substantial odds with Mr.

Tello’s. He does not specifically state the nature of the irreconcilability, see Spitler,

800 F.2d at 1272, but instead simply alleges that Mr. Tello introduced evidence

unfavorable to him. This type of “finger-pointing” does not constitute an

irreconcilable defense. Mr. Sinisterra cannot demonstrate clear prejudice merely by

showing that “one defendant trie[d] to shift blame to another defendant.” United
-39-

States v. Mason, 982 F.2d 325, 328 (8th Cir. 1993). Juries can decide where the

blame lies.

We also reject the argument that severance was warranted because a joint trial

prevented the jury from making individualized assessments of guilt. This risk is

always present in joint trials, which remain favored by the law. See Zafiro, 506 U.S.

at 537. Further, we note that Federal Rule of Criminal Procedure 14 does not require

severance to cure prejudice, but allows courts to order “whatever other relief justice

requires” in the particular situation. The District Court instructed the jury to consider

the evidence against each defendant individually. “Keep in mind you must separate

considerations of the evidence about each individual defendant. Each defendant is

entitled to be treated separately.” Tr. 2427. These instructions, combined with the

ample evidence of guilt the government introduced at trial, persuade us that there is

not “an appreciable chance that [defendants] would not have been convicted had

separate trials been granted.” Mason, 982 F.2d at 328. Therefore, defendants cannot

establish either an abuse of discretion in refusing to grant severance, or that clear

prejudice resulted from that decision. 

The defendants next argue that they were prejudiced by joint trial because the

redacted portions of the confessions that were introduced in evidence omitted

exculpatory statements, misled the jury about the defendant’s participation, or

damaged a defendant’s theory of defense. All three defendants made statements to

police at the time of their arrest. The government introduced these statements

through the testimony of the interrogating police officers, who recounted for the jury

each defendant’s version of the crime. Each defendant told a different story, but each

one implicated himself and his co-defendants in some part of the crime. 

Defendants have a Sixth Amendment right to confront the witnesses against

them. They also have a Fifth Amendment right not to be made witnesses against

themselves. In a joint trial, these rights collide when co-defendants implicate each

other in confessions that are introduced into evidence. In Bruton, the Supreme Court
-40-

held that instructing the jury to consider the confession of a particular defendant only

against that defendant, and not against his co-defendant, was insufficient to resolve

this problem. 391 U.S. at 137. Instead, if the government wants to introduce the

confession of co-defendants that implicate each other, the statements must be

redacted to eliminate “not only the defendant’s name, but any reference to his or her

existence.” Richardson v. Marsh, 481 U.S. 200, 211 (1987). Our Court has

interpreted this requirement to allow the admission of confessions so long as the

confession is redacted to avoid either facially implicating or leading the jury directly

to non-testifying co-defendants. See United States v. Edwards, 159 F.3d 1117, 1125

(8th Cir. 1998), cert. denied, 528 U.S. 825 (1999). 

Courts have used several methods to redact confessions, including replacing

proper names with pronouns or nondescriptive nouns like “another person.” See

United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999), cert. denied, 528 U.S.

1177 (2000); Edwards, 159 F.3d at 1125-26. In this case, the police officers phrased

their answers in the passive voice to avoid the need to name the co-defendants. For

example, in introducing the content of Mr. Ortiz’s statement, the prosecutor and

police officer had the following exchange:

“Did he [Ortiz] indicate to you what happened to these victims?”

“Yes.”

“What?”

“They were physically beaten and then they were shot.”

“Were they ever taped up?”

“Yes.”

Tr. 2106. This technique of introducing the content of the confessions does not
-41-

implicate the declarant’s co-defendants. The jury was not told who beat up, shot, and

taped up the victims, just that these actions occurred. They were not led straight to

the conclusion that the actions described were committed by any particular defendant.

See United States v. Long, 900 F.2d 1270, 1279-80 (8th Cir. 1990). The jury could

have concluded that any or all of the defendants were involved in these activities or

that they were conducted by the fugitive, Mr. Hinestroza. The method used by the

District Court to redact defendants’ confessions satisfies the requirements of

Richardson v. Marsh as we have construed them and did not violate any defendant’s

rights. 

Defendant Tello argues that he was prejudiced by joint trial because when his

confession was redacted, exculpatory statements were omitted, and he was portrayed

in a less favorable light than he would have been if his entire confession had been

introduced. In his brief, Mr. Tello gives two examples of exculpatory statements that

were redacted and argues that these examples show that he was prejudiced by a joint

trial. Defendant Tello’s Brief 75-76. However, our review of the confession revealed

two other times when Mr. Tello communicated essentially the same exculpatory

information in a manner that did not implicate his co-defendants, and so survived

redaction. In his first example, Mr. Tello states that he was upstairs when he heard

a shot downstairs. He is asked who was downstairs at that time and stated that Mr.

Ortiz was. The exculpatory part of this exchange is that Mr. Tello says that he was

not in the basement when the shot was fired there. He conveys this in another place

in his statement, which was not redacted. “Then I heard . . . another shot down there.

. . . Much later I heard another shot downstairs.” Defendant Tello’s Appendix 49.

Mr. Tello could have introduced this part of the confession in evidence to convey the

same exculpatory information that he complains was redacted. 

The same is true of Mr. Tello’s second example, in which he states that he

came to Kansas City “with the purpose, of, er, to be with my cousin [unintelligible].

. . . It was later that they told me about that.” Mr. Tello contends that this statement

provides a defense to the charge that he traveled in interstate commerce with the
-42-

intent to commit murder. This may be true; however, a similar statement denying that

he came to Kansas City to help Mr. Hinestroza with criminal activity was not redacted

and could have been placed in evidence. Defendant Tello’s Appendix 57. Because

the same content that was redacted was present in a slightly different form in the

edited version of his statement, Mr. Tello cannot show clear prejudice from the

redaction of his confession. See United States v. Comeaux, 955 F.2d 586, 590 (8th

Cir.), cert. denied, 506 U.S. 845 (1992) (holding that the rule of completeness

requires severance only when the redacted version prevents a defendant from

introducing “substantially exculpatory” statements.) Accordingly, we hold that the

District Court did not abuse its discretion in trying Mr. Tello with his co-defendants

in a joint trial. 

C. Jury Instruction Issues

Appellants make several arguments that the jury was instructed incorrectly

during the penalty phase. Four separate errors of this type are alleged. First,

defendants contend that Instructions 1 and 11 impermissibly used the verb “shall,”

which defendants argue informed the jury that it was required to impose a death

sentence. Instruction No. 1, in relevant part, stated that:

If you unanimously find the aggravating factor, or factors, which you all

found to exist sufficiently outweighs any mitigating factor, or factors,

which any of you found to exist to justify imposition of a sentence of

death or if, in the absence of a mitigating factor, or factors, you find the

aggravating factor, or factors, alone are sufficient to justify imposition

of a sentence of death, the law provides that the defendant shall be

sentenced to death.

Tr. 2574-75. Instruction No. 11 contained almost identical language. 

We reject defendants’ contention that these instructions were incorrect. The

Federal Death Penalty Act, 18 U.S. C. § 3591(a), uses almost identical language in
-43-

laying out the statutory scheme for the imposition of the death penalty. 

A defendant . . . shall be sentenced to death if, after consideration of the

factors set forth in section 3592 [delineating possible aggravating and

mitigating factors] . . . it is determined that imposition of a sentence of

death is justified. 

18 U.S.C. § 3591(a). As we explained in United States v. Allen, 247 F.3d 741, 780-

81 (8th Cir. 2001), vacated on other grounds, 122 S. Ct. 2653 (2002), the “shall”

language correctly repeats the law to the jury: under § 3591(a)(2) “a unanimous

finding that death is justified requires a recommendation of a death sentence.” The

District Court did not err in this regard. Allen is binding on this panel.

Next, Mr. Sinisterra argues that the instructions on the multiple-attemptedkilling aggravating factor were unconstitutional and not supported by evidence. The

District Court gave the following instruction on this factor:

Three, the defendant in concert with others, intentionally attempted to

kill more than one person in a single criminal episode. 

Tr. 2577 (penalty phase of German Sinisterra, Instruction No. 1). Mr. Sinisterra

contends that this instruction was incorrect as a matter of law. He argues that there

can be no liability as an accessory for an aggravating circumstance. This is not

correct. Although “individualized consideration [i]s a constitutional requirement in

imposing the death sentence,” Lockett v. Ohio, 438 U.S. 586, 605 (1978), an

aggravating factor can be based on liability as an accessory. See Buttrum v. Black,

721 F. Supp. 1268, 1319 (N.D. Ga. 1989). Allowing a jury to consider that the

defendant acted jointly in determining aggravating circumstances is consistent with

the rule that a defendant can be sentenced to death in some circumstances even

though he only aids and abets the killing. See Tison v. Arizona, 481 U.S. 137 (1987).
-44-

Here, the District Court’s instruction did not tell the jury that it could punish

Mr. Sinisterra for his co-defendants’ actions. Instead, it correctly stated that the jury

could consider whether Mr. Sinisterra acted with others in intentionally attempting

multiple killings. A defendant does not have to kill multiple people personally to

meet the aggravator; he need only have had an intention to attempt multiple killings.

This is true whether he acted alone or whether, as in this case, he acted with others.

Here, there was ample evidence that Mr. Sinisterra intentionally attempted to kill

multiple persons. Cf. United States v. Allen, 247 F.3d 741, 787 (8th Cir. 2001),

vacated on other grounds, 122 S. Ct. 2653 (2002) (upholding jury’s finding of “grave

risk of death” statutory aggravating factor because evidence, viewed in light most

favorable to government, was sufficient to support finding). 

Defendants also argue that there was insufficient evidence to support the

instruction on the non-statutory aggravating factor of future dangerousness. They

contend that this instruction used vague language that did not sufficiently guide the

jury’s determination. The government is required to give a capital defendant notice

of any aggravating factor it intends to prove at trial, see 18 U.S.C. § 3953(c), and to

provide evidence that adequately establishes the existence of the factor alleged. See

United States v. Nguyen, 928 F. Supp. 1525, 1542 (D. Kan. 1996). In the penalty

phases of Mr. Sinisterra and Mr. Ortiz, the government specified two types of

evidence it would use to support the future-dangerousness aggravating factor: lack

of remorse for the crime and the use of physical force and threats of violence to

collect drug debts and enforce discipline for Edwin Hinestroza. Tr. 2578 (Sinisterra);

Tr. 2948 (Ortiz). The government alleged only the second type of evidence, which

the parties term “enforcer” evidence, against Mr. Tello. 

In reviewing the sufficiency of the evidence to support an aggravating factor,

we view the evidence in the light most favorable to the government and consider

whether any rational trier of fact could have found the aggravating circumstance

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We

conclude that there was adequate evidence of all three defendants’ acting as
10Mr. Ortiz and Mr. Tello had separate penalty-phase hearings. The future

dangerousness instruction used by the Court varied slightly at their hearings. The

“among other” language was not used, but the phrase “for example” was in each

instruction. Neither defendant objected, so our review is for plain error. We

conclude there is none for the same reasons given for rejection of Mr. Sinisterra’s

contentions about this instruction. 

-45-

“enforcers” using physical force and threats to collect drug debts and enforce

discipline. Two witnesses testified as to Mr. Sinisterra’s reputation as an “enforcer,”

including one who repeated Mr. Sinisterra’s offer to “pop” a guy for $2,000. Tr.

1218, 1220. These statements, along with the evidence of the crimes of conviction,

are sufficient to support instructing the jury on future dangerousness.

The government also produced enough evidence to establish the defendants’

lack of remorse. In so doing, the government permissibly relied on evidence

introduced at trial, such as the defendants’ demeanor during their videotaped

statements to the police. See United States v. Davis, 912 F. Supp. 938, 946 (E.D. La.

1996) (“[i]nformation admissible in the guilt phase undoubtedly may be argued and

considered by the jury in the penalty phase”). The evidence of the disposal of Mr.

Colon’s body and Mr. Sinisterra’s admission that he planned on going drinking after

getting paid for the murder both show a lack of remorse for the crime. The jury was

properly instructed that it could consider this evidence in deciding whether to find the

future-dangerousness aggravating factor. 

We also review the language of the District Court’s instruction on future

dangerousness and conclude that it did not contain reversible error. Before Mr.

Sinisterra’s10 penalty phase hearing, the parties discussed the instruction, which

described the aggravating factor as follows:

One, future dangerousness based on the probability that German Sinisterra would

commit criminal acts of violence that would constitute a continuing threat to society

as evidenced, for example, by one or more of the following, among others. 
-46-

Tr. 2578 (emphasis added). The instruction then listed the defendant’s lack of

remorse and behavior as an “enforcer,” the factors discussed above. In a pre-hearing

conference with the District Court, the government conceded that “there is no ‘among

other’ evidence that is going to be presented.” Tr. 2572. The defendant was

apparently satisfied with this explanation, as he raised no further objections, and the

hearing began, with the jury being given the instruction (as given above) at the start

of the hearing. This instruction was repeated at the conclusion of the penalty phase

trial, except that the “among others” language was deleted. 

In his brief, Mr. Sinisterra argues that the instruction was vague and failed to guide

the jury’s discretion sufficiently in making a sentencing decision. Because defendant

did not object to the instruction, as given by the District Court at either the start or the

finish of the trial, our review is for plain error. The Supreme Court has held that a

death penalty phase jury must have “clear and objective standards that provide specific

and detailed guidance.” Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (citation omitted).

The phrases “among others” and “for example” are open-ended and could distract the

jury from focusing on whether the government has provided sufficient evidence on

“lack of remorse” and “enforcer” behavior to support the factor. In this case, however,

the use of this language does not rise to the level of a “miscarriage of justice” or an

error that “seriously undermine[s] the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Yellow Hawk, 276 F.3d 953, 955 (8th Cir.

2002) (internal citations omitted). The District Court omitted the “among others”

phrase in its final instruction, which the jury is presumed to follow. Also, neither

party mentioned this language in its arguments, and the government relied simply on

the evidence presented at trial to support future dangerousness. In light of these

factors, and the defendants’ failure to object, we will not reverse on this basis. 

Defendants’ last contention about the penalty-phase jury instructions is that the

overall tenor of the instructions, read as a whole, misled the jury by minimizing its

responsibility and implying that sentencing decisions would be made by the Court

instead of the jury. There was no error in asking the jury to record its findings at each
-47-

step. This process does not, contrary to defendant’s suggestion, relegate the jury to

the status of reporter or indicate that the Court would decide the defendant’s sentence.

The Court told the jury that “you will then engage in a weighing process” and

“whether or not the circumstances in this case justify a sentence of death is a decision

the law leaves entirely to you.” Tr. 2866. These statements specifically rebut the

defendants’ argument that the jury did not understand its role as the decision-maker

of the sentence. 

D. Improper Closing References

During closing arguments in Mr. Sinisterra’s penalty phase trial, the prosecutor made

reference to Adolph Hitler, Charles Manson, and Jeffrey Dahmer. Appellants did not

object to these references at trial so our review is for plain error. United States v.

Robinson, 110 F.3d 1320, 1326 (8th Cir.), cert. denied, 522 U.S. 975 (1997). The

prosecutor made these references when arguing that a family’s love for a convicted

criminal should not excuse the criminal’s behavior. Tr. 2891. The prosecutor was not

directly likening appellants’ crimes or characters to those of Hitler, Manson, or

Dahmer. Instead, the thrust of his argument was that familial love should not

outweigh the aggravating circumstances of a crime in deciding on the appropriate

punishment. This type of reference is not “prejudicial enough to deprive [the]

defendant[s] of [their] constitutional rights to a fair penalty phase hearing.” United

States v. Allen, supra, 247 F.3d at 776. We reach this conclusion after considering

that there was only a single reference to these famous criminals, and that defendants

failed to object at that time. The prosecutor’s behavior did not “seriously affect the

fairness, integrity or public reputation” of the penalty-phase hearing. United States

v. Olano, 507 U.S. 725, 736 (1993).

E. Videotaped Mitigating Evidence

Finally, Mr. Sinisterra argues that the District Court erred in its handling of

videotaped testimony of his family members that he presented as mitigating evidence
-48-

in the penalty phase. Specifically, Mr. Sinisterra alleges that the limiting instruction

that the Court gave to the jury before it heard the video evidence was improper. He

also argues that his Eighth Amendment right to have the jury consider all relevant

mitigating evidence was violated because the United States did not issue visas for his

family members to travel from Colombia to testify on his behalf, and that because of

this alleged violation he was entitled to a directed verdict for life imprisonment at the

close of the penalty phase. We reject these arguments. 

Before defense counsel presented the videotape testimony, the Court instructed the

jury that the defendant had attempted to secure the presence of the videotaped

witnesses but could not do so, that the government had not been given the tapes until

April 28th (the tapes were introduced on May 1st), and that the jury could consider the

government’s inability to cross-examine the witnesses in deciding what weight, if any,

to give to the videotaped interviews. Tr. 2713. This instruction was permissible. The

government was entitled to cross-examine defendant’s witnesses, and its inability to

do so with videotape testimony is a factor going to the evidence’s reliability. Our

independent reading of the instruction does not persuade us that the District Court’s

instruction placed blame on defendants or their counsel for the limits of the videotape

evidence. Instead, we believe that the Court was correctly explaining to the jury the

circumstances and limitations of this evidence so that they could exercise discretion

in weighing the evidence. There was no abuse of discretion in the District Court’s

handling of this matter. 

The United States government did not issue visas to Mr. Sinisterra’s relatives or grant

them humanitarian parole to enter this country to testify as witnesses on his behalf.

No party to this lawsuit explains why permission to enter the country was denied. It

is not contended that the government was acting to obstruct the defendants’ case, or

that the relatives were eligible by law for visas. Tr. 2670. Regardless of the reason

for the denials, defendants cannot show that prejudice resulted from their inability to

introduce live testimony by their family members. The videotaped testimony of family

members, while perhaps not so effective in some ways as live testimony, was
-49-

sufficient to allow Mr. Sinisterra to inform the jury of his family background. The

video testimony also had certain advantages over live testimony; defendants were able

to edit the tapes, and the tapes showed visually the poverty of defendants’ village and

family background. Therefore, Mr. Sinisterra’s Eighth Amendment right was not

abridged by his having to use video testimony, and he was not entitled to a directed

verdict of life imprisonment on this matter.

IV.

We have attempted to review each of defendants’ arguments with the care that the

gravity of these cases demands. Having done so, we find no error of law in the action

of the District Court. Accordingly, its judgments are

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.