PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-11

DAVID ANTHONY RUNYON,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Rebecca Beach Smith, District Judge.

(4:08-cr-00016-RBS-TEM-3)

Argued: December 5, 2012

Decided: February 25, 2013

Before WILKINSON, NIEMEYER, and GREGORY,

Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Niemeyer and Judge Gregory joined.

Judge Niemeyer wrote a concurring opinion.
COUNSEL

ARGUED: Seth C. Farber, WINSTON & STRAWN, LLP,

New York, New York, for Appellant. Brian James Samuels,

OFFICE OF THE UNITED STATES ATTORNEY, Newport

News, Virginia, for Appellee. ON BRIEF: Teresa L. Norris,

BLUME WEYBLE & NORRIS, LLP, Columbia, South Carolina, for Appellant. Neil H. MacBride, United States Attorney,

Alexandria, Virginia, Lisa R. McKeel, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Newport News, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Defendant David Anthony Runyon appeals his conviction

and capital sentence for conspiracy to commit murder-forhire, among other charges stemming from the same course of

events. For the following reasons, we affirm.

I.

A.

On April 30, 2007, Cory Allen Voss, an officer in the

United States Navy, was found dead of multiple gunshot

wounds in his pickup truck in a parking lot in Newport News,

Virginia. Three individuals were arrested in connection with

the killing: Runyon; Catherina Voss ("Cat"), the victim’s

wife; and Michael Draven. On February 13, 2008, a federal

grand jury in the Eastern District of Virginia returned a fivecount indictment charging all three with the following crimes:

• Count One: conspiracy to commit murder-forhire, in violation of 18 U.S.C. § 1958(a);

2 UNITED STATES v. RUNYON
• Count Two: carjacking resulting in death, in violation of 18 U.S.C. § 2119 and 18 U.S.C. § 2;

• Count Three: bank robbery resulting in death, in

violation of 18 U.S.C. § 2113(a) and (e) and 18

U.S.C. § 2;

• Count Four: conspiracy to commit robbery

affecting commerce, in violation of 18 U.S.C.

§ 1951(a); and

• Count Five: murder with a firearm in relation to

a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1) and (j) and 18 U.S.C. § 2.

The indictment also included the requisite notice of special

findings for seeking capital punishment pursuant to the Federal Death Penalty Act (FDPA), 18 U.S.C. §§ 3591-3598,

which governs multiple aspects of this case. The government

further notified Runyon that it intended to seek the death penalty against him on July 17, 2008.

Cat pleaded guilty to all counts and was sentenced to life

imprisonment. Runyon and Draven were jointly tried before

a jury beginning on June 30, 2009. At the end of the prosecution’s case on the question of guilt, the court granted the

defendants’ motion to dismiss Count Three. The jury found

both defendants guilty of Counts One, Two, and Five and not

guilty of Count Four. The government did not pursue the

death penalty against Draven. He received a sentence of life

imprisonment, and this court affirmed his convictions in

United States v. Draven, 417 F. App’x 362 (4th Cir. 2011)

(per curiam). 

The district court conducted a death penalty eligibility hearing for Runyon on July 22, 2009. The previous day, the court

had excused a juror whose mother had died the night before

and replaced her with an alternate, and the court informed the

UNITED STATES v. RUNYON 3
parties of this substitution immediately before the eligibility

hearing. Neither side presented additional evidence at the

hearing, and on that same day, the jury found Runyon eligible

to receive the death penalty as a threshold matter. The penalty

selection phase commenced on August 19, 2009. The jury

began deliberating during the afternoon of August 26, 2009.

The next morning, the court excused a juror whose brother-inlaw had passed away the night before, replacing her with an

alternate. The jury returned its verdict that evening, recommending a sentence of death on Counts One and Five and a

sentence of life imprisonment on Count Two. The court

imposed the recommended sentences on December 4, 2009,

and this appeal followed.

B.

The evidence adduced during the guilt phase of Runyon’s

trial established the following factual foundations for his convictions.

Cat and Draven began conducting an extramarital affair

during the summer of 2006. The affair commenced when

Voss, to whom Cat had been wed since 1999, was deployed

aboard the USS Elrod. Cat and Draven hired Runyon, whom

Draven met while participating in a drug study in February

2007, to murder Voss in hopes of gaining his Navy death benefits and life insurance proceeds. 

On April 20, 2007, Cat opened an account at a branch of

the Langley Federal Credit Union in Newport News ("the

LFCU") with a five dollar deposit. Shortly before midnight on

April 29, 2007, Cat sent Voss to the automated teller machine

("ATM") at the LFCU to withdraw cash. Video surveillance

showed that while Voss stood at the ATM, an unidentifiable

intruder entered his pickup truck. Voss drove away from the

ATM but returned a few minutes later and attempted another

withdrawal, which was denied due to insufficient funds. Voss

was found dead in his truck in a parking lot near the LFCU

4 UNITED STATES v. RUNYON
the next morning. He had been shot five times at close range.

Four hollow-point bullets from a ".38 class" gun—which

includes firearms capable of firing .357 magnum, .38 special,

and 9 mm cartridges—were recovered from his body. The

cause of death was three shots to the chest and abdomen.

The prosecution presented a wealth of evidence proving

that Runyon acted as the triggerman in a murder-for-hire conspiracy. The government established that on the day of the

killing, Runyon purchased a .357 magnum handgun and

ammunition in West Virginia, where he lived, and that a

friend of his pawned the gun several months later. In the console of Runyon’s vehicle, law enforcement located a map of

Newport News with notes referring to Voss, Voss’s vehicle,

and the LFCU, as well as a photograph of Cat and Draven

with their names, addresses, and a social security number

written on the back. In Runyon’s current and former homes,

investigators discovered phone numbers for Cat and Draven;

a box of .357 magnum bullets with five missing; papers mentioning the LFCU and the travel time to Virginia; and a list

of items including a taser, Spyderco knife, tarp, and trash bag,

as well as boots, gloves, a black hoodie sweatshirt, and

military-style pants. Moreover, a variety of telephone and

email evidence showed that Cat, Draven, and Runyon had

arranged the contract killing and attempted to orchestrate a

cover-up. For example, while Runyon apparently asked for

five hundred dollars up front, a Western Union money order

showed that he received two hundred and seventy-five dollars

from Draven’s brother on June 1, 2007. Finally, several witnesses testified that Runyon had boasted about killing Voss—

or a military member or unidentified individual—for money.

As mentioned above, at the close of the prosecution’s casein-chief, the court dismissed the bank robbery charge (Count

Three). The jury ultimately convicted Runyon of conspiracy

to commit murder-for-hire (Count One), carjacking resulting

in death (Count Two), and murder with a firearm in relation

to a crime of violence (Count Five) and found him not guilty

UNITED STATES v. RUNYON 5
of conspiracy to commit robbery affecting commerce (Count

Four).

C.

The sentencing portion of the trial began with the eligibility

phase, which determines whether a defendant meets the minimum statutory requirements for receiving the death penalty.

Pursuant to the FDPA, a defendant convicted of certain

crimes—including those charged in Counts One, Two, and

Five here—can be declared eligible if the jury determines,

unanimously and beyond a reasonable doubt, that one of four

enumerated intent elements and at least one statutory aggravating factor are present. See 18 U.S.C. §§ 3591-3593. Here,

the jury found that Runyon had intentionally killed Voss, see

id. § 3591(a)(2)(A), and that the prosecution had established

two statutory aggravating factors: first, that Runyon "committed the offense as consideration for the receipt, or in the

expectation of the receipt, of anything of pecuniary value"

and, second, that he "committed the offense after substantial

planning and premeditation to cause the death of a person,"

id. § 3592(c)(8), (9). 

The district court then proceeded to the penalty selection

phase. Pursuant to the FDPA, the jury must decide by unanimous vote "whether the defendant should be sentenced to

death, to life imprisonment without the possibility of release

or some other lesser sentence." Id. § 3593(e). In deciding

whether to recommend capital punishment, the jury must

determine "whether all the aggravating . . . factors found to

exist sufficiently outweigh all the mitigating . . . factors found

to exist to justify a sentence of death." Id. The FDPA enumerates a number of statutory aggravating factors and mitigating

factors (which are also often called "aggravators" and "mitigators") and allows the parties to propose nonstatutory factors

for the jury to consider as well. Id. § 3592(a), (c); id.

§ 3593(a). While the jury may find only aggravators for

which the prosecution has provided notice as defined by the

6 UNITED STATES v. RUNYON
statute, the jury may find additional mitigators beyond those

specifically proposed by the defense. Id. § 3592(a), (c); id.

§ 3593(a). Finally, the FDPA provides that, while findings

concerning aggravating factors must be unanimous, findings

concerning mitigating factors "may be made by 1 or more

members of the jury, and any member of the jury who finds

the existence of a mitigating factor may consider such factor

established." Id. at § 3593(d).

After receiving an abundance of evidence over several days

(from sixteen prosecution and twenty-one defense witnesses),1

the jury unanimously found that the prosecution had proved

each of its proposed nonstatutory aggravators, in addition to

the two statutory aggravators already found during the eligibility phase. As listed on the special verdict form, these were:

• Nonstatutory Aggravating Factor One: Runyon

"caused injury, harm, and loss to the victim, Cory

Allen Voss, and the victim’s family and friends";

• Nonstatutory Aggravating Factor Two: In killing

Voss, Runyon "utilized education, training, and

experience that he received in college courses

focused on criminal justice, and as a law enforcement and correctional officer, as an officer of the

Kansas National Guard, and as a member of the

United States Army"; 

• Nonstatutory Aggravating Factor Three: Runyon

"engaged in acts of physical abuse toward

women"; and 

• Nonstatutory Aggravating Factor Four: Runyon

1

It bears note that the FDPA speaks in terms of "information" rather

than "evidence" and expressly provides that the rules of evidence do not

generally apply to capital sentencing proceedings. See id. § 3593(c).

Where it is natural to do so, we use the word "evidence" here colloquially.

UNITED STATES v. RUNYON 7
"has demonstrated a lack of remorse for murdering Cory Allen Voss as demonstrated by the evidence in the case." 

The jury also unanimously found that Runyon had established seven of the fourteen mitigators proposed by the

defense: 

• Statutory Mitigating Factor One: Runyon "does

not have a serious criminal record," see id.

§ 3592(a)(5);

• Statutory Mitigating Factor Two: "Other persons

equally culpable in the crime will not be punished by death," see id. § 3592(a)(4);

• Nonstatutory Mitigating Factor One: Runyon

"will serve a sentence of life in prison without the

possibility of release if not sentenced to death";

• Nonstatutory Mitigating Factor Nine: Runyon’s

son "will suffer emotional harm if his father is

executed";

• Nonstatutory Mitigating Factor Ten: Runyon’s

mother "will suffer emotional harm if her son is

executed";

• Nonstatutory Mitigating Factor Eleven: Runyon

"served his country as a member of the United

States Army and was honorably discharged"; and

• Nonstatutory Mitigating Factor Twelve: Runyon

"graduated from high school and earned an associate of arts degree . . . and took further college

courses to expand his education."

Additionally, the jury unanimously found two further nonstatutory mitigating factors that the defense had not expressly

8 UNITED STATES v. RUNYON
proposed: first, that Runyon "continued to witness and experience domestic violence and parental conflict/abuse from [his]

mother and adoptive father" and, second, that Runyon’s

brother "will suffer emotional harm if his brother is executed." 

Finally, beyond these unanimous findings, ten or eleven of

the twelve jurors found the following three proposed mitigators:

• Nonstatutory Mitigating Factor Two: Runyon

"has worked and has been legally employed for

all of his life";

• Nonstatutory Mitigating Factor Three: Runyon

"committed acts of kindness and generosity for

his neighbors and his community"; and

• Nonstatutory Mitigating Factor Four: Runyon

"grew up, witnessed, and experienced, domestic

violence and parental conflict until his mother

and biological father separated."

And eleven jurors agreed that the defense had established an

additional mitigating factor that it had not specifically proposed: that Runyon "was given the impression that Cory Voss

was molesting [Voss’s] daughter."

The special verdict form concluded by confirming that

upon weighing the six aggravating factors (two from the eligibility phase and four from the penalty selection phase) and

multiple mitigating factors, the jury unanimously recommended a sentence of death on Counts One and Five and a

sentence of life imprisonment without the possibility of

release on Count Two.

II.

Runyon appeals both his convictions and his sentences on

various grounds. Although the bulk of Runyon’s appeal

UNITED STATES v. RUNYON 9
focuses on the latter, we take up his conviction-related challenges first in the interest of chronological order. First, Runyon claims that the statutes on which Counts One and Two

are premised are unconstitutional. Second, he contends that

there was insufficient evidence to establish the jurisdictional

element of Count One. We address these arguments in turn

and, for the reasons that follow, find each unconvincing.

A.

Runyon asserts that both the federal murder-for-hire statute,

18 U.S.C. § 1958, which underlies Count One, and the federal

carjacking statute, 18 U.S.C. § 2119, which underlies Count

Two, are unconstitutional because their enactment exceeded

Congress’s enumerated powers—in particular, the power to

"regulate Commerce with foreign Nations, and among the

several States." U.S. Const. art. I, § 8, cl. 3.

1.

The text of the murder-for-hire statute provides for punishment of whoever

travels in or causes another (including the intended

victim) to travel in interstate or foreign commerce,

or uses or causes another (including the intended victim) to use the mail or any facility of interstate or

foreign commerce, with intent that a murder be committed in violation of the laws of any State or the

United States as consideration for the receipt of, or

as consideration for a promise or agreement to pay,

anything of pecuniary value, or who conspires to do

so.

18 U.S.C. § 1958(a). While Runyon does not appear to challenge the statute’s constitutionality to the extent that it

addresses "travel in interstate or foreign commerce," he takes

issue with the fact that it also purports to reach the mere "use

10 UNITED STATES v. RUNYON
[of] any facility of interstate or foreign commerce" to perpetrate contract killings. In particular, Runyon argues that a

2004 amendment changing the phrase "facility in interstate or

foreign commerce" to "facility of interstate or foreign commerce" broadened the statute’s scope to such a degree as to

cover virtually every murder-for-hire—including, for

instance, a contract killing in which all of the parties were

neighbors and the defendant made a single phone call to the

victim’s residence.

This argument fails by a wide margin. Pursuant to its commerce power, Congress may, among other things, "regulate

and protect the instrumentalities of interstate commerce, or

persons or things in interstate commerce, even though the

threat may come only from intrastate activities." United States

v. Lopez, 514 U.S. 549, 558 (1995). We agree with all of the

circuits to address the question that the amended murder-forhire statute meets this standard, as there exists "no meaningful

distinction between the terms ‘facilities’ and ‘instrumentalities’ of interstate commerce." United States v. Marek, 238

F.3d 310, 317 & n.26 (5th Cir. 2001); see also, e.g., United

States v. Mandel, 647 F.3d 710, 720-23 (7th Cir. 2011);

United States v. Schaefer, 501 F.3d 1197, 1205 (10th Cir.

2007) (listing "any facility of interstate . . . commerce" language from § 1958(a) as an example of an "expansive exercise of [Congress’s] Commerce Clause powers"), overruled

on other grounds by United States v. Sturm, 672 F.3d 891,

901 (10th Cir. 2012). Congress’s enactment of the murderfor-hire statute, therefore, did not exceed its authority under

the Commerce Clause.

2.

Runyon’s constitutional attack on the federal carjacking

statute meets the same fate. That statute criminalizes "tak[ing]

a motor vehicle that has been transported, shipped, or

received in interstate or foreign commerce from the person or

presence of another by force and violence or by intimidation,

UNITED STATES v. RUNYON 11
or attempt[ing] to do so," where the perpetrator possesses "the

intent to cause death or serious bodily harm." 18 U.S.C.

§ 2119. 

Runyon’s challenge cannot overcome United States v.

Cobb, which expressly rejected a Commerce Clause challenge

to the same statute. 144 F.3d 319 (4th Cir. 1998). First, we

found that the carjacking statute’s inclusion of an "express

jurisdictional element" tying the covered cars to interstate or

foreign commerce "‘satisfies the minimal nexus’" required by

recent Supreme Court precedent. Id. at 321-22 (quoting

United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996)). Second, and independently, we found that the carjacking statute

"is also a valid exercise of Congress’s power to regulate an

instrumentality of interstate commerce—cars," citing the

same language from Lopez on which we rely above and noting that multiple other circuits had come to the same conclusion. Id. at 322. The arguments pressed by Runyon, therefore,

are both foreclosed by Cobb and unpersuasive on the merits.

Because we also find that the prosecution’s evidence provided

firm support for Runyon’s conviction on Count Two, that

conviction stands.

B.

Next, Runyon argues that even if the federal murder-forhire statute underlying Count One survives his constitutional

challenge, there was insufficient evidence here to satisfy its

jurisdictional hook. As indicated above, the murder-for-hire

statute requires that the defendant, while possessing the requisite intent, (1) "travel[ed] in or cause[d] another (including the

intended victim) to travel in interstate or foreign commerce"

or (2) "use[d] or cause[d] another (including the intended victim) to use the mail or any facility of interstate or foreign

commerce." 18 U.S.C. § 1958(a). Here, the government

argues that evidence establishing that Runyon drove his own

truck from West Virginia to Virginia on the day of the murder

sufficiently satisfied the first hook, on which the jury was

12 UNITED STATES v. RUNYON
instructed. Runyon contends, to the contrary, that travel "in

interstate commerce" requires transport by commercial means

(such as by bus, train, or plane). This is so, he argues, because

if all travel between two or more states qualifies, the word

"commerce" becomes entirely superfluous. 

Runyon’s argument, however, fails under United States v.

Lentz, in which this court found that travel from one state to

another in a personal vehicle constituted "transport[ ] in interstate or foreign commerce" under the federal kidnapping statute, 18 U.S.C. § 1201(a)(1). 383 F.3d 191, 196-97, 199-200

(4th Cir. 2004). The text of the jurisdictional element at issue

here is, of course, essentially identical to that considered in

Lentz, and we therefore decline to interpret it differently. 

With the pertinent scope of the jurisdictional hook thus

established, we turn to whether "substantial evidence" supported that element here. In answering that question,

the appellate function is not to determine whether the

reviewing court is convinced of guilt beyond reasonable doubt, but, viewing the evidence and the reasonable inferences to be drawn therefrom in the light

most favorable to the Government, "whether the evidence adduced at trial could support any rational

determination of guilty beyond a reasonable doubt."

United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996)

(en banc) (quoting United States v. Powell, 469 U.S. 57, 67

(1984)). Runyon cannot clear this high hurdle, as the prosecution presented evidence from which the jury could readily

infer that he drove his truck across state lines in order to kill

Voss. Such evidence included the fact that investigators found

in that very truck the map of Newport News and the photograph of Cat and Draven, both of which contained inculpatory

notes, along with the fact that Runyon made a withdrawal

from an ATM in West Virginia during the early afternoon

hours of the day Voss was shot. The prosecution, therefore,

UNITED STATES v. RUNYON 13
sufficiently established the jurisdictional element of the

murder-for-hire statute, and we accordingly affirm Runyon’s

conviction on Count One.2

III.

With the remainder of his arguments, Runyon shifts from

contesting his convictions for killing Voss to contesting the

jury’s sentencing recommendations on those convictions.

Specifically, he challenges the nonstatutory aggravating factors charged by the prosecution and found by the jury, various

evidence introduced by the prosecution to prove these factors,

comments made by the prosecution during the closing arguments to the penalty selection phase of the trial, the district

court’s substitution of jurors at points following the guilt

phase, and the district court’s instructions to the jury at the

end of the sentencing proceeding. 

Before considering the merits of these arguments, it is

worth noting a few formidable obstacles that they must overcome. First, many of Runyon’s nonconstitutional challenges

concern rulings by the district court that we review under the

deferential abuse-of-discretion standard. See, e.g., Noel v. Artson, 641 F.3d 580, 591 (4th Cir. 2011) (evidentiary rulings);

United States v. Novak, 607 F.3d 968, 972 (4th Cir. 2010)

(jury instructions); United States v. Ollivierre, 378 F.3d 412,

417 (4th Cir. 2004) (comments during closing arguments),

vacated on other grounds by Ollivierre v. United States, 543

U.S. 1112 (2005). We are generally reluctant to reverse such

discretionary rulings because district courts enjoy the considerable advantage of having perceived firsthand the witnesses

2We likewise reject Runyon’s challenge to his conviction on Count Five

for using and carrying a firearm "in relation to any crime of violence . . .

for which the person may be prosecuted in a court of the United States."

18 U.S.C. § 924(c)(1)(A). Runyon’s argument that no predicate offense

survives necessarily fails in light of our affirming his convictions on

Counts One and Two. 

14 UNITED STATES v. RUNYON
who testified, the evidence that was introduced, and the arguments that were made at the proceeding under review. While

we by no means abdicate our duty to carefully consider Runyon’s claims, we discharge this duty mindful of the risks of

overstepping our limited role and impinging on trial courts’

essential trial-management functions. 

Second, in impugning multiple aspects of his sentencing

proceeding, Runyon seems to overlook the fact that sentencing, including capital sentencing, is a wide-ranging process

that accords considerable discretion to the sentencer—here,

the jury. As the Supreme Court has held: 

"Once the jury finds that the defendant falls within

the legislatively defined category of persons eligible

for the death penalty, . . . the jury then is free to consider a myriad of factors to determine whether death

is the appropriate punishment." Indeed, the sentencer

may be given "unbridled discretion in determining

whether the death penalty should be imposed after it

has found that the defendant is a member of the class

made eligible for that penalty." 

Tuilaepa v. California, 512 U.S. 967, 979-80 (1994) (citation

omitted) (quoting California v. Ramos, 463 U.S. 992, 1008

(1983); Zant v. Stephens, 462 U.S. 862, 875 (1983)). The

FDPA reflects this broad conception of capital sentencing,

permitting the jury to consider not only a number of expressly

enumerated aggravating factors, but "any other aggravating

factor for which notice has been given." 18 U.S.C. § 3592(c).

It also allows the parties to present aggravating or mitigating

evidence "as to any matter relevant to the sentence . . . regardless of its admissibility under the rules governing admission

of evidence at criminal trials." Id. § 3593(c). Whereas Runyon

may wish to severely cabin the jury’s sentencing discretion by

restricting the evidence it may hear and the inferences it may

draw, the FDPA anticipates that the jury will confront a broad

UNITED STATES v. RUNYON 15
array of information and enjoy considerable leeway in assessing it. 

Third, as envisioned by the FDPA, capital sentencing proceedings are not only wide-ranging; they are in important

respects even-handed. Just as the defendant may introduce

evidence on myriad mitigating factors, so the prosecution may

try to prove an equally varied range of aggravating factors. Id.

§ 3592(a), (c). Runyon, by contrast, seems to contemplate a

more one-sided affair, with the defendant making his mitigation case more or less unfettered and the prosecution responding with but a narrow subset of the available aggravating

evidence. Though we must uphold for capital defendants the

procedural safeguards guaranteed them by the Constitution

and the FDPA, we must also avoid constraining unduly the

prosecution’s ability to paint a complete picture of the defendant’s crime and character, lest the jury be less than fully and

amply informed.

With these caveats in mind, we now turn to Runyon’s specific challenges.

IV.

Runyon first challenges the nonstatutory aggravating factors submitted to the jury and the prosecution’s efforts to

prove them. Specifically, pursuant to the FDPA, 18 U.S.C.

§ 3592(c), the prosecution gave notice of four nonstatutory

aggravating factors for the jury to consider: (1) lack of

remorse; (2) injury and loss to Voss and his family and

friends ("victim impact"); (3) use of law enforcement and military training to perpetrate the murder; and (4) history of

physical abuse toward women. Runyon objected on various

grounds to each of these factors, as well as to some of the evidence and arguments the prosecution presented to establish

them. The district court overruled his objections, and the jury

heard evidence on all four, ultimately finding all of them to

exist. We consider each factor in turn.

16 UNITED STATES v. RUNYON
A.

We first address Runyon’s arguments on the lack-ofremorse aggravator. While Runyon does not challenge on

appeal the propriety of the prosecution proposing this aggravator, he contends that the court’s decision to admit a particular piece of evidence in support of this factor (and in rebuttal

to a mitigator proposed by the defense) violated the Constitution and the FDPA. That evidence was a videotaped depiction

of Runyon being interrogated on December 11, 2007, as the

investigation came closer to uncovering his role in the crime.

The video runs just over forty-two minutes. It shows three

law enforcement officers, led by Detective Larry Rilee of the

Newport News Police Department, questioning Runyon intensively about his role in Voss’s death. The interrogation begins

with Rilee reading Runyon his Miranda rights, which Runyon

confirms understanding. Runyon makes a handful of inculpatory statements—including admitting that he knew Draven

somewhat, had spoken with Cat by phone, owned the map

with notes about Voss, and had been in possession of both the

photo of Cat and Draven and certain firearms. Nevertheless,

he sits silently for the vast majority of the exchange, seldom

providing answers longer than one or two words, and he never

expressly admits any involvement in the murder. At one

point, the officers leave the room, apparently to give Runyon

time to consider whether he wants to cooperate with the

investigation. (While the time stamp indicates that Runyon

remained alone for approximately twelve minutes, the video

omits this period.) Throughout the interrogation, Runyon’s

demeanor is basically attentive; his tone is generally calm;

and his face is largely expressionless. The conversation ends

when Runyon makes clear that he wishes to consult with

counsel. 

The video was played before the jury and subsequently

admitted into evidence during the portion of the penalty selection phase in which the prosecution had the opportunity to

UNITED STATES v. RUNYON 17
rebut mitigation evidence presented by the defense. Specifically, the prosecution proposed to use the video to rebut evidence on the statutory mitigator that "[a]nother defendant or

defendants, equally culpable in the crime, will not be punished by death." 18 U.S.C. § 3592(a)(4). On this factor, the

defense had introduced Cat’s plea agreement and the accompanying statement of facts. In response, the prosecution

sought to have Rilee testify about Cat’s and Draven’s postarrest confessions, contrasted with the video and Rilee’s recollections of Runyon’s December 11, 2007, interrogation.

Defense counsel objected orally, arguing that the video did

not properly rebut any defense evidence. The district court

overruled the objection. As for the equally-culpable mitigator,

the court held that the prosecution was entitled to explain why

the government had not pursued the death penalty against

Runyon’s co-conspirators. Moreover, the court expressed an

expectation that the video would also provide evidence supporting the lack-of-remorse aggravator. 

1.

On appeal, Runyon renews his objection to this piece of

evidence on multiple grounds—some constitutional, some

statutory. We first address Runyon’s contention that several

statements made by the interrogating officers in the video

contaminated the sentencing proceeding with invidious considerations concerning his ethnicity and religion. 

Toward the beginning of the exchange, Detective Rilee

asked Runyon: "[Y]ou’re Asian, right, Asian-American?

You’re an honorable Asian man, aren’t you?" "Yes sir," he

answered. Imploring Runyon to be honest, Rilee continued,

"You know, if you’re an honorable Asian man and your integrity is intact and you have any respect for anybody at all, then

you’ll do the right thing today, okay?" The officers proceeded

to invoke Runyon’s "honor" on multiple occasions during the

interrogation. 

18 UNITED STATES v. RUNYON
Later, Rilee asked Runyon whether he had any "religious

beliefs," to which Runyon replied that he is a Christian. Rilee

continued:

You believe in forgiveness then; you can be forgiven

for whatever the sin might be. Obviously in the Ten

Commandments, "thou shalt not kill" would be one

of the more prominent ones. But do you believe that

you can be forgiven for that? . . . If you asked God

for forgiveness, do you believe that He’ll forgive

you for that? You can repent your sins, can’t you? 

"Yes, yes, anybody can repent their sins," Runyon stated.

Rilee responded, "Having that in mind, you know, don’t you

think it’s time to repent, to say that you’re sorry for what happened . . . ?" Runyon answered, "It sounds like to me that I

need a lawyer," at which point the interrogation effectively

ended.

Runyon further argues that several additional portions of

the video were likewise improperly inflammatory. Whatever

the force of those arguments might be, this court need proceed

no further than the officers’ comments referencing Runyon’s

ethnicity and religion to conclude that the video had no place

at this sentencing proceeding. The government contends that

these comments were not problematic because, first, they

"were not addressed to the jury" but were instead "intended to

elicit truthful information from [the] defendant" and, second,

they "appealed not to negative aspects of Runyon’s character,

but to positive aspects of his identity." Appellee’s Br. 33. For

the reasons that follow, we find these arguments unpersuasive. 

The Supreme Court has long made clear that statements

that are capable of inflaming jurors’ racial or ethnic prejudices "degrade the administration of justice." Battle v. United

States, 209 U.S. 36, 39 (1908). Where such references are

legally irrelevant, they violate a defendant’s rights to due proUNITED STATES v. RUNYON 19
cess and equal protection of the laws—whether the remarks

occur during the prosecution’s presentation of evidence or

argumentation. See, e.g., Bains v. Cambra, 204 F.3d 964, 974

(9th Cir. 2000); United States v. Vue, 13 F.3d 1206, 1212-13

(8th Cir. 1994); United States v. Doe, 903 F.2d 16, 24-25

(D.C. Cir. 1990); see also McCleskey v. Kemp, 481 U.S. 279,

309 & n.30 (1987). And the Supreme Court has taken pains

to ensure that racial prejudice plays no role in jury deliberations in capital sentencing proceedings. See, e.g., Turner v.

Murray, 476 U.S. 28, 36-37 (1986) (holding that "a capital

defendant accused of an interracial crime is entitled to have

prospective jurors . . . questioned on the issue of racial bias").

While it is certainly true that district judges must weigh the

"probative value" of evidence against "the danger of creating

unfair prejudice" in each case under the FDPA, 18 U.S.C.

§ 3593(c), we think that the particular references to ethnicity

here were problematic for several reasons. One, the references

came directly from the mouths of law enforcement. Two, they

directly alluded to the defendant himself. Three, they bore no

relevance to the particular issues that the jury was being asked

to resolve. And four, they conveyed what were, frankly,

stereotyping and insulting notions about how "an honorable

Asian man" is supposed to act. Thus, while it is admittedly

impossible to script all-or-nothing answers to evidentiary

questions on appeal, the error in admitting the statements at

issue here is apparent.

We are compelled to reach the same conclusion with

respect to the discussion of Runyon’s religion. The Supreme

Court has held that the First Amendment "prevents [the prosecution] from employing evidence of a defendant’s abstract

beliefs at a sentencing hearing when those beliefs have no

bearing on the issue being tried." Dawson v. Delaware, 503

U.S. 159, 168 (1992). Here, the government makes no argument that the video’s references to Runyon’s faith were germane to the question of what sentence he should receive, nor

is any such argument apparent to the court. There is no indica20 UNITED STATES v. RUNYON
tion that the killing was motivated by or connected to Runyon’s Christianity at all, and the discussion of his religion did

not serve to rebut any mitigating evidence offered by the

defense. See id. at 166-68. Like Runyon’s ethnic background,

neither his Christian beliefs nor the implication that he somehow betrayed those beliefs by failing to "repent his sins" was

legally relevant in any way. Likewise, this exchange was

flawed for evidentiary purposes because the offending statements were made by law enforcement officers and were personally targeted at the defendant. It was accordingly error for

the jury to hear these remarks.

As mentioned above, Runyon further contends that a number of other comments made by the officers in the video were

improperly inflammatory. These involve statements in which

the officers expressed opinions about the crime, Runyon himself, and how a jury might ultimately decide his fate—

including statements implying that Runyon’s refusal to confess might render him subject to capital punishment:

• "But don’t let me walk out of that, that door right

there thinking that you’re some piece of shit that

murdered a U.S. naval officer and didn’t have

enough respect to man up when he—when it was

done."

• "He didn’t deserve to die like a dog."

• "I don’t have any disrespect for you at this point,

but if you don’t have enough integrity, enough

honor about yourself to tell the truth at this point,

then I won’t have any respect for you. And as a

matter of fact, when they make a choice as to

whether they charge you with capital murder and

seek the death penalty, I’ll remember exactly

how honorable you were, or not . . . ."

• "It makes a difference in the way that the jury is

gonna perceive you when you go to trial. It’s

UNITED STATES v. RUNYON 21
either gonna be, ‘well this is a cold-blooded murderer’ or ‘this is a guy who made a mistake.’ . . .

[T]hat’s what they’re going to think about when

they’re deciding how this can end up for you."

• "But I want you to sit back and I want you to

think about, in front of a jury of twelve, twelve

citizens, okay? About this family right here, this

whole family is torn apart. . . . And David Runyon is going to be the one that did that—that

physically did it. Without David Runyon’s cooperation, without David Runyon’s honesty and

remorse for what he did, what do you think

twelve reasonable people would, uh, conclude

from that? . . . [T]hey’re going to make you out

to be a monster, man."

Runyon claims that the jury’s consideration of these statements offended the Eighth Amendment by inviting application of the death penalty in an arbitrary and capricious manner

under precedent stemming from Furman v. Georgia, 408 U.S.

238 (1972). Moreover, he offers additional arguments as to

why introduction of the interrogation video was erroneous.

First, he contends that the video was inadmissible on the lackof-remorse aggravator because it did not actually provide any

evidence relevant to the issue of remorse. He further argues

that the video was irrelevant to rebutting the equally-culpable

mitigator because evidence of conduct after the crime is

immaterial to a defendant’s culpability "in the crime," per the

text of the FDPA. 18 U.S.C. § 3592(a)(4) (emphasis added).

Next, Runyon asserts that he sufficiently invoked his Fifth

Amendment right to remain silent during the interrogation and

that introduction of the video therefore violated the principles

set forth in Miranda v. Arizona, 384 U.S. 436 (1966), and its

progeny. And finally, he contends that even if some portions

of the video were pertinent to certain questions before the

court, its admission as a whole was nevertheless unfairly prejudicial under the FDPA. 

22 UNITED STATES v. RUNYON
In response to Runyon’s Eighth Amendment argument concerning inflammatory statements made by the officers, the

government contends that "statements by detectives, made in

the course of the investigation, and not referred to by the prosecutor, cannot be attributed to the government deliberately

introducing prejudicial or arbitrary matters." Appellee’s Br.

36. As for Runyon’s other claims, the government first

responds that the video was admissible as to the lack-ofremorse aggravator because Runyon’s refusal during the

interrogation to take responsibility for his actions, along with

his general demeanor when faced with the officers’ questions,

conveyed a complete absence of contrition. And with regard

to the video’s relevance to the equally-culpable mitigator, the

government contends that culpability is a continuing moral

concept that does not simply shut off once a crime has been

committed. Further, in response to Runyon’s Fifth Amendment self-incrimination claim, the government argues that

evidence of a defendant’s demeanor while sitting silent is

meaningfully distinct from evidence of silence itself and, in

any event, that Runyon never unambiguously invoked the

right to remain silent after receiving Miranda warnings, as

required by Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

And finally, for all of these reasons, the government rejects

the defense’s argument that admission of the video unduly

prejudiced Runyon. 

The parties proceed to argue at some length over these

additional claims of error pertaining to the video. Nevertheless, because we have established that the court erred in

admitting the video due to the particular references to ethnicity and religion described above, we need not consider what

other reasons may or may not exist for coming to the same

conclusion. To be sure, one could argue that the trial court’s

error extends only to any offending portions of the video. In

the interest of caution, however, we will assume that exclusion of the entire video was warranted. Moreover, as discussed in greater detail below, we shall elect to apply the most

UNITED STATES v. RUNYON 23
defendant-favorable standard possible in order to determine

whether this error requires reversal of Runyon’s sentences.

2.

The parties vigorously dispute the proper standard for

deciding whether Runyon’s sentences must be reversed on

account of the erroneous admission of the interrogation video.

The defense asserts that because certain of Runyon’s arguments are constitutional in nature, the government must

"prove beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained." Chapman v.

California, 386 U.S. 18, 24 (1967). The government, in contrast, contends that Runyon did not properly preserve his constitutional arguments before the district court and that plain

error analysis pursuant to United States v. Olano, 507 U.S.

725 (1993), thus applies. 

We note that although Runyon’s counsel did object strenuously to the introduction of the video below, the argument

was premised predominantly, even exclusively, on the notion

that the video did not properly rebut the defense’s evidence on

the equally-culpable mitigator for several statutory and evidentiary reasons. Nevertheless, because we find for the following reasons that admission of the interrogation video

constituted harmless error even under the most stringent of

standards, we proceed pursuant to Chapman. See United

States v. Williams, 461 F.3d 441, 448 (4th Cir. 2006) (electing

to apply Chapman where not necessarily required).

As a threshold matter, the fact that the district court provided a detailed limiting instruction specifically circumscribing the jury’s consideration of the interrogation video is

significant. The court stated:

During the government’s rebuttal evidence, it played

for you a videotape of an interrogation of the defendant, David Anthony Runyon. This evidence was

24 UNITED STATES v. RUNYON
offered for the limited purposes of demonstration of

remorse in regard to the alleged nonstatutory aggravating factor to this effect, and for relevant culpability in regard to the alleged statutory mitigation factor

to this effect.

You are instructed that no statement made by the

detectives during the interrogation is itself evidence

in this case. You should disregard any statements of

fact or opinion made by the interrogating officers,

including any speculation about a future jury’s possible sentencing decision or the punishment that the

defendant might receive, or any characterization by

the officers of the defendant’s conduct or character.

These portions of the video could not be removed

without making the interrogation itself unintelligible,

but they should not be considered by you in deciding

on defendant’s sentence.

In addition, in accordance with the directive stated in 18

U.S.C. § 3593(f), the court delivered the following more

general—but equally unequivocal—instruction establishing

the impropriety of considering Runyon’s ethnicity or religious

affiliation: 

In considering whether a death sentence is justified, you must not consider the race, color, religious

beliefs, national origin, or sex of the defendant or the

victim in this case. These facts are completely irrelevant to the important issues you must consider at this

phase of the proceedings. You are not to recommend

a sentence of death unless you have concluded that

you would recommend a sentence of death for the

crime in question no matter what the race, color, religious beliefs, national origin, or sex of either the

defendant or the victim might have been.

To emphasize the importance of this consideration, the special verdict form has a certificate that

UNITED STATES v. RUNYON 25
must be signed by each juror. When you have

reached a decision, each of you is to sign the certificate, but only if this is so, attesting that considerations of race, color, religious beliefs, national

origin, or sex of the defendant or the victim w[ere]

not involved in reaching your individual decision,

and attesting that you would have made the same

recommendation regarding a sentence for the crime

in question no matter what the race, color, religious

beliefs, national origin, or sex of the defendant or

victim might have been.

Each juror signed the certificate.

Our analysis is governed, first and foremost, by the "almost

invariable assumption of the law that jurors follow their

instructions." Richardson v. Marsh, 481 U.S. 200, 206 (1987).

The assumption would certainly apply in a case such as this

one, where a certificate was signed and where the limiting

instructions were so clear and emphatic. The assumption has

become axiomatic because it is so essential to the efficient

functioning of the criminal justice system. "Not every admission of inadmissible . . . evidence can be considered to be

reversible error unavoidable through limiting instructions;

instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." Bruton v. United

States, 391 U.S. 123, 135 (1968). Accordingly, absent some

specific "reason to doubt that the jury . . . adhered to the district court’s directive," this court will not conclude to the contrary. United States v. Castillo-Pena, 674 F.3d 318, 322 (4th

Cir. 2012). 

We see no such reason here. Nevertheless, we note that

whereas the district court’s instructions are naturally read to

neutralize the officers’ statements in the video, Runyon’s

challenge goes further. Specifically, Runyon objects to admission of the video in its entirety—including his responses, verbal and nonverbal alike, to the officer’s questions. We

26 UNITED STATES v. RUNYON
therefore consider, and find convincing, additional grounds

establishing the harmlessness of introducing the video at all,

focusing in particular on the limited purposes for which the

court permitted the jury to consider it: the lack-of-remorse

aggravator and the equally-culpable mitigator.

The government has demonstrated beyond a reasonable

doubt that the jury would not have voted any differently on

the lack-of-remorse aggravator in the absence of the interrogation video. The prosecution’s argument that Runyon exhibited no remorse for killing Voss rested on evidence of at least

four classes of affirmative conduct and speech on Runyon’s

part, none of which depended on the video for proof. Runyon

(1) bragged about being a hitman to at least three people following the shooting; (2) attempted to collect on the contract

after the murder; (3) schemed for months to conceal evidence

and mislead law enforcement officers about his role in the

conspiracy; and (4) groused crudely about the investigation in

recorded phone calls—including describing the accumulated

evidence as "circumstantial bullshit" and declaring that "[i]f

they don’t watch themselves before it’s all said and done

they’re gonna have a fucking civil lawsuit for harassment."

By contrast, the defense never attempted to argue that Runyon

exhibited remorse in any way. Hence, we find that "[e]ven

without considering [the tainted evidence], the jury could not

reasonably have reached another conclusion regarding lack of

remorse." United States v. Caro, 597 F.3d 608, 631 (4th Cir.

2010).

We are likewise convinced beyond a reasonable doubt that

introduction of the interrogation video was harmless with

respect to the equally-culpable mitigator—namely, that

"[a]nother defendant or defendants, equally culpable in the

crime, will not be punished by death." 18 U.S.C. § 3592(a)(4).

The fact that the jury accepted the defense’s arguments on this

factor, unanimously finding in Runyon’s favor, is dispositive.

Hence, this evidence did not detract from Runyon’s defense.

Introduction of the video, therefore, neither encouraged the

UNITED STATES v. RUNYON 27
jury to find any inadequately supported aggravator nor discouraged the jury from finding any adequately supported mitigator, leaving the slate of factors in the aggravator-versusmitigator computation required by the FDPA unaltered. 

Nor do we believe that the overall balancing of these factors could have possibly produced a different result. The

Chapman standard requires review of "the record as a whole

to determine the probable impact of the improper evidence on

the jury." Williams, 461 F.3d at 448-49 (emphasis added)

(internal quotation marks omitted). Thus, erroneously admitted evidence cannot be assessed in isolation. Viewed quantitatively, the interrogation video comprised an insignificant

portion of the proceeding, consuming less than an hour of a

combined trial and sentencing lasting longer than three weeks

and featuring five days of evidence and thirty-seven witnesses

during the sentencing portion alone. See United States v. Stitt,

250 F.3d 878, 898 (4th Cir. 2001) (finding admission of

improper evidence harmless in death penalty case where such

evidence "comprised only a fraction of the total testimony

heard during the penalty phase"). 

The video was likewise inconsequential from a qualitative

perspective. What ultimately drove the jury’s decision was

not some video but the overpowering evidence of Runyon’s

guilt, his pivotal role in the crime, and the exceptionally callous nature of his conduct. With three fatal shots to the chest

and abdomen, Runyon robbed an innocent man of his life and

two small children of their father. And for what? Money. The

aggravating factors found by the jury—including that Runyon

sought pecuniary gain, engaged in substantial planning and

premeditation, and utilized his military and criminal justice

background to facilitate his actions—reflect the utter heartlessness of this horrific homicide, providing an abundant basis

for the verdict. See Stitt, 250 F.3d at 898-99 (finding error

harmless in light of "the overwhelming force of the aggravating factors found by the jury which showed the violent and

28 UNITED STATES v. RUNYON
predatory nature of [the defendant’s] character and activities"). 

Moreover, even beyond the equally-culpable mitigator,

Runyon’s counsel had the opportunity—entirely untainted by

the interrogation video—to present a multitude of arguments

for leniency. Specifically, the defense proposed fourteen mitigating factors and offered testimony from nearly two dozen

witnesses during the penalty selection phase alone, all in

hopes of dissuading the jury from recommending the death

penalty. The defense’s evidence ranged from Runyon’s childhood and character to his relationships and employment

history—and even to his pre-trial conduct in jail and ability to

adjust to prison in the event he received a life sentence. Nevertheless, although the jury did find several mitigators in Runyon’s favor, the case for clemency simply did not overcome

in the jury’s eyes the case presented by the government. 

We recognize, of course, that where "record review leaves

the conscientious judge in grave doubt about the likely effect

of an error," the error should be treated "as if it affected the

verdict." O’Neal v. McAninch, 513 U.S. 432, 435 (1995). But

we have no doubt that the error in admitting the interrogation

video "did not contribute to the verdict obtained," Chapman,

386 U.S. at 24, and that reversal is consequently unwarranted.

B.

A second nonstatutory aggravating factor charged that Runyon "caused injury, harm and loss to the victim and the victim’s family and friends." To prove this factor, the

prosecution introduced various items of "victim impact" evidence. These included the testimony of Jennifer Kime, a former Navy officer, and Lieutenant Jeremy Chayer, both of

whom served with Voss on the USS Elrod, as well as a video

and an approximately nine-minute montage of photographs of

Voss, both of which were shown during his memorial service

aboard the Elrod. Kime and Chayer testified about their

UNITED STATES v. RUNYON 29
friendships with Voss, his Navy service, and the impact of his

death on them and on the Elrod’s crew more generally, while

the video contained statements by Chayer and Commander

Matthew Graham reminiscing about Voss. 

Runyon objected below, and argues on appeal, that this

aggravator violated both the Constitution and the FDPA insofar as it included (1) the impact of Voss’s death on his friends

and colleagues, rather than just his family, and (2) Voss’s professional contributions as a Navy officer, rather than just his

personal relationships with specific individuals. We consider

Runyon’s constitutional and statutory challenges to the factor

de novo and review the district court’s decision to admit certain evidence on that factor for abuse of discretion. United

States v. Higgs, 353 F.3d 281, 320, 322 (4th Cir. 2003).

1.

Runyon first contends that both the Eighth Amendment and

the FDPA limit the scope of victim-impact evidence in a capital sentencing proceeding to the impact of the crime on the

victim’s family and that the nonstatutory aggravating factor

transgressed these limits by bringing before the jury the

impact of Voss’s death on his friends and shipmates. 

Neither the constitutional nor the statutory argument succeeds. Runyon’s constitutional argument relies on the

Supreme Court’s decision in Payne v. Tennessee, 501 U.S.

808 (1991). In holding that the introduction of victim-impact

evidence during capital sentencing did not necessarily violate

the Eighth Amendment, the Payne Court understood such evidence to include "evidence about the victim and about the

impact of the murder on the victim’s family." 501 U.S. at 827.

Runyon takes this statement for an exhaustive definition, one

that implicitly prohibits the introduction of evidence concerning the impact of the victim’s death on any individuals other

than "the victim’s family." 

30 UNITED STATES v. RUNYON
Runyon’s reading, however, is a stretch. As even he concedes, "certain language used by the majority . . . opinion[ ]

could be read as suggesting approval of a broader range of

evidence." Appellant’s Opening Br. 66. Indeed, on multiple

occasions, the Payne Court expressly countenanced the introduction of evidence concerning the impact of the victim’s

death on society at large. See, e.g., id. at 822 (noting that the

prosecution should be permitted to "demonstrat[e] the loss to

the victim’s family and to society which has resulted from the

defendant’s homicide" (emphasis added)); id. at 825 ("[T]he

State has a legitimate interest in counteracting the mitigating

evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose

death represents a unique loss to society and in particular to

his family." (emphasis added) (internal quotation marks omitted) (quoting Booth v. Maryland, 482 U.S. 496, 517 (1987)

(White, J., dissenting))). 

In light of these statements, we see no reason to think that

the Payne Court intended to forbid the introduction of evidence regarding the impact of the victim’s death on his

friends and colleagues as well as his family. For limiting

victim-impact evidence to family would be an exceedingly

artificial line to draw. While the most devastating sense of

loss from a murder may well be felt by immediate family, the

deceased’s friends and colleagues may suffer too. Just as individuals may touch many people during life, so too may their

death be widely mourned. It was thus well within the district

court’s discretion to admit the expressions of grief felt by

Voss’s shipmates for the loss of one of their own. Kime, for

instance, testified that "[e]verybody [aboard the Elrod] was

shocked, and everybody was upset," while Chayer similarly

reported that "[e]veryone on board, from the captain all the

way down to the new seaman recruit that checked in the day

before, loved him." In reading Payne to allow such evidence,

we are in good company. See, e.g., United States v. Whitten,

610 F.3d 168, 187-88 (2d Cir. 2010); United States v. Bolden,

UNITED STATES v. RUNYON 31
545 F.3d 609, 626 (8th Cir. 2008); United States v. Barrett,

496 F.3d 1079, 1098 (10th Cir. 2007); United States v. Bernard, 299 F.3d 467, 478 (5th Cir. 2002). 

Runyon’s statutory argument is equally strained. Echoing

his constitutional argument, Runyon emphasizes the provision

of the FDPA providing that nonstatutory aggravating factors

may include factors concerning the effect of the

offense on the victim and the victim’s family, and

may include oral testimony, a victim impact statement that identifies the victim of the offense and the

extent and scope of the injury and loss suffered by

the victim and the victim’s family, and any other relevant information. 

18 U.S.C. § 3593(a)(2) (emphases added). Once again, Runyon takes the references to "the victim’s family" to preclude

evidence regarding the impact of the victim’s death on his

friends and colleagues.

But once again, Runyon is creating restrictions on victimimpact evidence out of whole cloth. Contra Runyon’s interpretation, the text of this provision is illustrative rather than

exhaustive, identifying some kinds of aggravating factors and

evidence that the prosecution’s notice to the defendant "may

include" and concluding with a catchall permitting the prosecution to present "any other relevant information." Runyon’s

narrower reading, moreover, is in tension with the provision

of the FDPA permitting the jury to "consider whether any

other aggravating factor for which notice has been given

exists." Id. § 3592(c) (emphasis added). Based on the broad

language of the provision cited by Runyon, other circuits have

consistently construed the FDPA to allow the prosecution to

introduce evidence concerning the impact of the victim’s

death on individuals outside his family. See, e.g., Whitten, 610

F.3d at 188-89; Bolden, 545 F.3d at 626; Barrett, 496 F.3d at

1098-99. We see no reason to hold otherwise. 

32 UNITED STATES v. RUNYON
2.

Runyon also challenges the victim-impact aggravator on

the ground that some of the evidence introduced to support it

concerned Voss’s professional accomplishments as a Navy

officer, rather than being limited to his relationships with specific individuals (family members or otherwise). Both Kime

and Chayer, for instance, testified about Voss’s position and

duties aboard the Elrod—testimony that, according to Runyon, exceeded constitutional and statutory limits on victimimpact evidence. 

These putative limits, however, lack a sound legal basis. On

the contrary, Payne expressly allowed the prosecution to provide "a quick glimpse of the life" of the victim and his

"uniqueness as an individual human being," 501 U.S. at 822,

823, and nothing in the FDPA purports to restrict this use of

victim-impact evidence. Other circuits have accordingly

upheld the introduction of evidence regarding the victim’s

professional background and accomplishments. See, e.g.,

Whitten, 610 F.3d at 189; Barrett, 496 F.3d at 1099; Bernard,

299 F.3d at 479. And for good reason. As the Payne Court

explained, to forbid the prosecution to give the jury a sense

of the victim’s background would be to "unfairly weight[ ] the

scales in a capital trial," given that "virtually no limits are

placed on the relevant mitigating evidence a capital defendant

may introduce concerning his own circumstances." 501 U.S.

at 822. 

We would countenance such unfairness here were we to

declare the evidence concerning Voss’s Navy service inadmissible. The prosecution’s aggravation case was already less

extensive than the defense’s mitigation case. To take just one

measure: whereas the prosecution called only fourteen direct

and two rebuttal witnesses during the penalty selection phase,

the defense called twenty-one mitigation witnesses. The district court was well within its discretion in seeking to ensure

some sense of balance in the parties’ presentations. The eviUNITED STATES v. RUNYON 33
dence concerning Voss’s Navy service did nothing more than

help to provide "a quick glimpse" of the central aspect of his

professional life—and thus accorded with both the Eighth

Amendment and the FDPA.

C.

A third nonstatutory aggravating factor charged that Runyon "utilized education, training and experience that he

received in college courses focused on criminal justice, as a

law enforcement and correctional officer, as an officer of the

Kansas National Guard and as a member of the United States

Army to kill Cory Voss." The prosecution sought to prove this

factor by introducing evidence that Runyon had attended a

Junior ROTC military academy; served as an officer in the

Kansas National Guard; completed courses in criminal justice

and law enforcement; trained and worked as a corrections

officer for the Kansas Department of Corrections; served as

an enlisted member of the United States Army; attended

peace-officer training; worked for a Georgia police department; and received weapons training for many of these positions. Drawing on all this experience, the prosecution

contended, Runyon perpetrated the murder "in the manner of

a professional ‘hit’": planning the crime meticulously, dispatching Voss efficiently, and leaving behind so few forensic

clues that it took investigators more than seven months to

amass enough evidence to justify an arrest.

Runyon challenges this aggravating factor on the grounds

that it is impermissibly vague and overbroad, is actually mitigating rather than aggravating, and was supported by insufficient evidence. We consider Runyon’s first and second

challenges, which are constitutional in nature, de novo. Higgs,

353 F.3d at 320. As for his third challenge, we consider

"whether the evidence supports the special finding of the existence of" the aggravating factor. 18 U.S.C. § 3595(c)(1). 

34 UNITED STATES v. RUNYON
1.

Runyon first argues that this factor of his training and experience is unconstitutionally vague and overbroad in a manner

that renders the imposition of capital punishment arbitrary and

capricious under the Eighth Amendment. He does not press

his vagueness argument with much conviction, and it is easy

to see why. An aggravating factor may not be so indeterminate that it effectively leaves jurors with unbridled discretion,

for during both the eligibility phase and the penalty selection

phase, "[t]he State must ensure that the process is neutral and

principled so as to guard against bias or caprice in the sentencing decision." Tuilaepa v. California, 512 U.S. 967, 973

(1994). At the same time, however, vagueness review is

"quite deferential." Tuilaepa, 512 U.S. at 973. Accordingly, "a

factor is not unconstitutional if it has some ‘common-sense

core of meaning . . . that criminal juries should be capable of

understanding.’" Id. (quoting Jurek v. Texas, 428 U.S. 262,

279 (1976) (White, J., concurring in the judgment)).

The aggravating factor at issue here easily satisfies this test.

The Supreme Court has tended to invalidate as vague only

those factors that contain "pejorative adjectives . . . that

describe a crime as a whole," such as "heinous" and "cruel,"

and that are not further elucidated by case law, jury instructions, or the prosecution’s evidence and arguments. Arave v.

Creech, 507 U.S. 463, 472 (1993). In contrast, the meanings

of the constituent terms of the factor at issue here—in particular, "education, training and experience"—are readily

grasped, especially when considered in light of the specific

evidence of Runyon’s background that the prosecution introduced. We thus have no trouble concluding that the factor was

not unconstitutionally vague.

Runyon’s overbreadth challenge fares no better. An aggravator is unconstitutionally overbroad "if the sentencer fairly

could conclude that [the] aggravating circumstance applies to

every defendant" eligible for the death penalty, such that the

UNITED STATES v. RUNYON 35
factor fails to sufficiently narrow the class of offenders who

may receive that punishment. Id. at 474. That was so here,

Runyon contends, because the expertise he allegedly

employed in committing the murder—namely, expertise "in

the use of firearms," "in the use of force and controlling

inmates in confined spaces," and "in investigative techniques"

—is actually commonplace knowledge possessed by countless

people.

It is simply not the case, however, that "the sentencer fairly

could conclude that [the] aggravating circumstance applies to

every defendant." Id. This is because the prosecution successfully established that Runyon’s weapons and forensic expertise extended far beyond any basic knowledge arguably held

by the majority of murderers. Not every murder defendant

possesses specialized firearms proficiency obtained through

professional military and law enforcement training. Not every

murder defendant has honed advanced investigative techniques while working in a police department. By its own

terms, the aggravating factor distinguishes Runyon from the

"mine-run" of murder defendants and thus is not overbroad.

2.

Even if this aggravator was neither vague nor overbroad,

Runyon insists that it nevertheless violated the Eighth

Amendment because it cited elements of his background—to

wit, his career in the military and law enforcement—that demonstrate service to his country and community, rendering the

factor actually mitigating rather than aggravating. 

The prosecution may not, of course, adduce as aggravators

those circumstances "that actually should militate in favor of

a lesser penalty," a distortion that would render the jury’s

decisionmaking "arbitrary and capricious." Zant v. Stephens,

462 U.S. 862, 885 (1983). But that did not happen here.

Rather, both Runyon and the prosecution invoked related but

distinct elements of his background to advance their respec36 UNITED STATES v. RUNYON
tive arguments. Specifically, whereas Runyon argued that his

service in the military and law enforcement mitigated his culpability, the prosecution argued that he exploited the skills

acquired during that service to perpetrate the homicide. The

jury could obviously distinguish these mutually consistent

contentions, for while it ultimately accepted the prosecution’s

aggravation argument, it also accepted Runyon’s argument

about his military service. This result confirms that the aggravator did not describe a mitigating circumstance and thus

posed no risk of distorting the jury’s deliberations.

3.

Finally, Runyon argues that there was insufficient evidence

for the jury to conclude that he used whatever special training

and experience he had to orchestrate and execute the crime.

More specifically, he contends that the prosecution proved

neither that he planned the crime, as opposed to merely following Cat and Draven’s instructions, nor that he used his

experience to carry it out. On the contrary, he insists, anyone

with a gun and a modicum of intelligence could have perpetrated the crime in the manner he did: carjack someone at an

ATM, force him to drive a short distance, and then shoot him

five times at close range—all the while making sure to leave

virtually no forensic trail. 

Runyon was perfectly entitled to make these arguments to

the jury—and he did. But he may not complain now simply

because the jury rejected his reading of the evidence. We

must, of course, determine "whether the evidence supports the

special finding of the existence of an aggravating factor

required to be considered under section 3592 [of the FDPA]."

18 U.S.C. § 3595(c)(1). Moreover, "[t]he burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor

is established beyond a reasonable doubt." Id. § 3593(c). 

The prosecution, however, plainly met its burden here,

identifying myriad ways in which Runyon’s background

UNITED STATES v. RUNYON 37
helped him to plan and commit the murder. For example, as

discussed above, the police discovered in Runyon’s vehicle a

checklist of items to be used in the murder, as well as a map

of Newport News showing the location of the LFCU and containing handwritten references to Voss and the car he would

be driving—strong evidence that Runyon planned certain

details of the plot, even if Cat and Draven hatched it. Such

meticulous planning, the prosecution argued, reflected Runyon’s training as a soldier and law enforcement officer, as did

his selecting a secluded location for the "hit" and his ordering

Voss to drive around the LFCU a second time in order to

make the murder appear to be a random robbery. His training

also undoubtedly helped him to commit the lethal act itself,

as soldiers and law enforcement officers are trained to aim for

a target’s "center mass"—precisely where the fatal bullets

fired from Runyon’s gun lodged in Voss’s body. And while

it may be "common knowledge that police look for fingerprints and DNA evidence" at crime scenes, as Runyon contends, Appellant’s Opening Br. 53, few members of the

general public are familiar with specific forensic methods and

various ways of frustrating those methods. Runyon was, and

the fact that the police found only two bullet casings at the

scene and required more than seven months to amass enough

evidence to arrest him shows that he was far more successful

than the typical murderer in covering his tracks, the most natural explanation for which was his special training and experience. In short, from the ample evidence introduced by the

prosecution, the jury could find this aggravator beyond a reasonable doubt. 

D.

The final nonstatutory aggravating factor alleged that Runyon had "engaged in acts of physical abuse toward women,

including, but not limited to, his estranged spouse and former

girlfriend." The prosecution sought to prove this factor by

introducing evidence of three incidents: (1) Runyon was

charged in 1994 with assaulting his former girlfriend, a charge

38 UNITED STATES v. RUNYON
that was ultimately dismissed; (2) he was convicted in 2001

of a misdemeanor simple battery for grabbing his wife’s arm

and poking her nose; and (3) a protective order was entered

against him in 2007 on petition of another girlfriend, who

claimed that he had given her a black eye, though the charges

related to this incident were dismissed when the girlfriend

failed to appear in court. Based on this evidence, the prosecution argued that Runyon had engaged in "a recurring pattern"

of "domestic violence over the past 15 years." 

Runyon raises various constitutional, statutory, and evidentiary challenges to this aggravator. We take up each in turn,

considering his constitutional and statutory arguments de

novo and reviewing the district court’s decision to admit evidence of the three incidents for abuse of discretion. Higgs,

353 F.3d at 320, 322.

1.

Runyon first argues that the prosecution may not introduce

unadjudicated acts to support a nonstatutory aggravating factor for prior misconduct and that the district court consequently erred in admitting evidence of the first and third

incidents, neither of which resulted in a conviction. Runyon

concedes, as he must, that this court has previously permitted

the introduction of unadjudicated conduct to support nonstatutory aggravators for future dangerousness and obstructing justice. See United States v. Basham, 561 F.3d 302, 331-32 (4th

Cir. 2009) (future dangerousness); Higgs, 353 F.3d at 322-23

(obstructing justice). Nevertheless, he insists that the FDPA

mandates a different result where, as here, the aggravator is

for prior misconduct, since the statute creates a distinct aggravator for when "[t]he defendant has previously been convicted

of 2 or more Federal or State offenses, punishable by a term

of imprisonment for more than 1 year, committed on different

occasions, involving the infliction of, or attempted infliction

of, serious bodily injury or death upon another person." 18

U.S.C. § 3592(c)(4). By limiting this factor to prior misconUNITED STATES v. RUNYON 39
duct of which the defendant stands "convicted," Runyon contends, Congress implicitly precluded the prosecution from

introducing misconduct that did not result in a conviction. To

hold otherwise, the argument goes, would be to allow the

prosecution to circumvent the express limits on priormisconduct evidence enshrined in the FDPA.

The main problem with this argument is that we explicitly

rejected it in Higgs. There, while noting that "the FDPA does

specify certain types of convicted criminal conduct that may

be used as a statutory aggravating factor authorizing imposition of the death penalty," we emphasized that "it also provides that ‘[t]he jury . . . may consider whether any other

aggravating factor for which notice has been given exists,’"

an expansive provision that bespeaks Congress’s intent to

afford the prosecution leeway in deciding which aggravating

factors to propose. Higgs, 353 F.3d at 323 (quoting the catchall provision in 18 U.S.C. § 3592(c)). To be sure, nonstatutory

aggravating factors are subject to constitutional limits, but the

Supreme Court, in upholding a similarly focused aggravator

in Tuilaepa, gave no indication that a distinction between

adjudicated and unadjudicated conduct was dispositive. 512

U.S. at 976. Indeed, the statute at issue in Tuilaepa allowing

the jury to consider the defendant’s prior "criminal activity"

expressly provided that, "[a]s used in this section, criminal

activity does not require a conviction." Cal. Penal Code

§ 190.3.

Because we find no basis in either the FDPA or the Constitution for excluding unadjudicated conduct from consideration as an aggravating factor, we conclude that the district

court did not err in admitting evidence of Runyon’s prior acts

of domestic violence simply because some of them did not

result in a conviction. 

2.

According to Runyon, whether adjudicated or unadjudicated, all the prior acts of domestic violence cited by the pros40 UNITED STATES v. RUNYON
ecution were "relatively minor," in that the charges arising

from them either were dismissed or resulted in, at most, a

misdemeanor conviction. Appellant’s Opening Br. 61. Only

more "serious" misconduct, Runyon contends, may be used to

support a death sentence. He once again bases this argument

on the FDPA’s aggravating factor for prior convictions, which

comprehends only "offenses, punishable by a term of imprisonment for more than 1 year, . . . involving the infliction of,

or attempted infliction of, serious bodily injury or death upon

another person." 18 U.S.C. § 3592(c)(4). Why, Runyon asks,

should the prosecution be permitted to introduce minor misconduct as a nonstatutory aggravator if it may not introduce

such misconduct under the statutory aggravator?

We reject this "minor misconduct" argument for the same

reason we rejected Runyon’s argument regarding unadjudicated misconduct: nothing in the FDPA suggests that we

should read the express aggravating factor for prior convictions to limit the provision permitting the jury to consider

"any other aggravating factor" asserted by the prosecution. Id.

§ 3592(c). The whole purpose of the aggravator/mitigator

structure is to provide a broad umbrella under which each

party may advance its most compelling arguments, leaving

the jury as the ultimate arbiter of their weight. Nor does the

Constitution preclude the jury from considering less serious

convictions and charges—at least those that involve the use of

force or threat thereof. See Tuilaepa, 512 U.S. at 976 (upholding a California aggravating factor that permitted the jury to

consider "[t]he presence or absence of criminal activity by the

defendant which involved the use or attempted use of force or

violence or the express or implied threat to use force or violence" (alteration in original)). 

In all the incidents cited by the prosecution, Runyon

attempted, used, or threatened force or violence against

another person. One may, of course, debate at length the relative seriousness of each of the incidents, and Runyon was free

to contest the gravity or even the occurrence of each episode

UNITED STATES v. RUNYON 41
in whatever manner he saw fit. But he had proper notice of

the government’s intent to propose the aggravator, and neither

the Constitution nor the FDPA barred the jury from considering the evidence supporting it. 

3.

More generally, Runyon faults the district court for failing

to exclude much of the evidence of the three incidents of

domestic violence as unreliable, especially given that the first

incident occurred about thirteen years before Voss’s murder

and the third was based almost exclusively on what Runyon

claims was inconsistent testimony from his former girlfriend.

This argument, however, sorely misunderstands the district

court’s role, for it is the jury, not the judge, that determines

whether the evidence offered by the prosecution is sufficiently

reliable to support an aggravating factor. Although the jury

must make this finding "beyond a reasonable doubt," 18

U.S.C. § 3593(c), an instruction reminding the jury of this

requirement adequately guards against the risk that unreliable

evidence will taint its decision. See Higgs, 353 F.3d at 323.

The district court so instructed the jury here and rightly

declined to usurp its traditional fact-finding function.

Nevertheless, Runyon further argues that the district court

should have excluded the evidence of the three incidents even

if it was reliable, since "its probative value [was] outweighed

by the danger of creating unfair prejudice, confusing the

issues, or misleading the jury." 18 U.S.C. § 3593(c). Although

the government contends that Runyon failed to preserve this

argument for appeal, we assume that Runyon’s claim in his

motion to the district court that "the prejudice outweighs the

probative value" sufficed to put the district court on notice

that he was objecting under section 3593(c). But ultimately

this is of no avail to Runyon, for it is within the district

court’s sound discretion to weigh the potential prejudicial

effect of proffered evidence against its probative value, and

the district court did not abuse its discretion here. 

42 UNITED STATES v. RUNYON
V.

Runyon next challenges, on constitutional grounds, various

statements made by the prosecution during the closing arguments of the penalty selection phase. His objections to these

comments can be classified as, first, arguments that the prosecution violated the Fifth and Sixth Amendments by inviting

the jury to make unfavorable inferences from his exercise of

these rights and, second, arguments that certain remarks were

impermissibly inflammatory as a more general matter. The

Supreme Court has observed that "[w]hen specific guarantees

of the Bill of Rights are involved, this Court has taken special

care to assure that prosecutorial conduct in no way impermissibly infringes them." Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974). By contrast, when such provisions are

not at issue, a finding of error as to a prosecutor’s remark

requires that it "so infected the trial with unfairness as to

make the resulting [verdict] a denial of due process." Id.

Before we consider Runyon’s specific claims, a general

point bears emphasis. The Constitution does not strictly limit

what the prosecution may say during its summation. On the

contrary,

great latitude is accorded counsel in presenting closing arguments to a jury. In our adversary system,

prosecutors are permitted to try their cases with earnestness and vigor, and the jury is entrusted within

reason to resolve heated clashes of competing views.

. . . To be sure, there are some lines that prosecutors

may not cross. But to parse through a prosecutor’s

closing statement for minor infelicities loses sight of

the function of our adversary system, which is to

engage opposing views in a vigorous manner.

United States v. Johnson, 587 F.3d 625, 632-33 (4th Cir.

2009). Thus, while courts should not hesitate to condemn

those prosecutorial comments that truly offend constitutional

UNITED STATES v. RUNYON 43
norms, neither shall we attach constitutional significance to

every verbal fillip, lest we unduly censor the clash of viewpoints that is essential to adversarial proceedings. With this

caveat in mind, we turn to Runyon’s arguments.

A.

1.

We first consider Runyon’s contention that the prosecution’s closing argument infringed his Sixth Amendment rights

by impugning his decision to proceed to trial. Runyon points

specifically to the following excerpt:

Cat Voss and Michael Draven did both admit their

conduct when they were confronted with it. The justice system always considers acceptance and remorse

when determining punishment. Catherina Voss

showed this. Her actions are despicable. But take a

look at her plea agreement. She pled guilty, and she

agreed to everything in that statement of facts which

showed her guilt. Did David Runyon do that? Is that

a difference between the two of them that you can

consider? It is.

You can look at her plea agreement and see that she

did not contest her guilt, did not have someone, a

jury, weigh in on all the evidence and determine

whether she was guilty. She pled guilty to all of the

charges in the indictment . . . .

A "request for trial by jury" may not be treated "as an

aggravating circumstance" in a capital sentencing proceeding.

Zant v. Stephens, 462 U.S. 862, 885 (1983); see also United

States v. Jackson, 390 U.S. 570, 581-83 (1968) (invalidating

a federal statute exposing to the death penalty only defendants

who went to trial because "[t]he inevitable effect of any such

provision, is of course, to discourage assertion of the Fifth

44 UNITED STATES v. RUNYON
Amendment right not to plead guilty and to deter exercise of

the Sixth Amendment right to demand a jury trial"); United

States v. Whitten, 610 F.3d 168, 194 (2d Cir. 2010) ("[A]

capital-sentencing scheme cannot allow the jury to draw an

adverse inference from constitutionally protected conduct

such as a request for trial by jury . . . ."). 

Under this standard, the prosecution’s statements were

plainly problematic—particularly with regard to the clear reference to Runyon "hav[ing] someone, a jury, weigh in on all

the evidence and determine whether [he] was guilty." The

prosecution’s words, however, did not come out of the blue.

Rather, the prosecution’s statements were tendered in rebuttal

to the equally-culpable mitigator, which the defense had made

a centerpiece of the proceeding. Indeed, Runyon’s counsel

had gone to great lengths to demonstrate that the three defendants, despite all being integrally involved in the murder, had

received differential treatment, with the government pursuing

the death penalty against Runyon but not against Cat or Draven. In particular, the defense introduced Cat’s plea agreement and the accompanying statement of facts, which recited

her role in the crime in stark detail, and argued vigorously and

repeatedly before the jury that Runyon did not deserve death

if neither Cat nor Draven was subject to that sentence. 

Runyon, of course, had every right to focus the jury’s attention on the equally-culpable mitigator. But the prosecution, in

turn, had every right to rebut it— including, within constitutional and statutory bounds, by explaining the government’s

charging decisions. In light of these complexities of context,

whether it was necessary or appropriate for the prosecution to

juxtapose Runyon’s decision to proceed to trial with Cat’s and

Draven’s decisions to confess—and Cat’s further decision to

plead guilty—remains open for question. Given our ultimate

disposition of Runyon’s Sixth Amendment claim, however,

we need not answer that question at this point. Instead, we

will simply assume for the sake of argument that it was error

for the jury to hear these statements.

UNITED STATES v. RUNYON 45
Next, Runyon raises a Fifth Amendment Self-Incrimination

Clause challenge to several statements from the prosecution’s

closing argument relating to his refusal more generally to

admit any involvement in the killing, including:

• "You saw his demeanor when being questioned

in the [videotaped] interview yesterday by Detective Rilee. You can see, ladies and gentlemen, . . .

how he is trying to come up with an explanation,

and you can see there, you can see by his demeanor, of his guilt. But you can also see how unaffected he is by the crime that he has committed."

• "You saw they had a picture on the table there of

Cory Voss. David Runyon would pick up that

picture and just set it down. No attempts to atone

for what he did. The opportunity to cooperate and

talk about his involvement was given to him,

given to him before it was given to any of the

other defendants, and he rejected that. He sat

stone-faced after being confronted with all this

evidence and expressed no remorse, no regret

whatsoever. He turned away every effort that was

extended to him to try and put things right, to try

and make amends for this horrible crime he has

committed."

• "You know that David Runyon has expressed

absolutely no regret for his actions following the

murder of Cory Voss."

• "The next mitigator is that the other defendants

are equally culpable . . . . But there are differences in their conduct, differences that you will

have to consider. . . . You also know that the

other defendants did express and did admit their

involvement in the crime. They took some

46 UNITED STATES v. RUNYON
actions to express remorse or atone for their

crimes, and David Runyon has never done that."

• "Mercy follows remorse and repentance, ladies

and gentlemen, and that’s a principle in our justice system, that when people admit their wrongs,

when people [show] some sort of acceptance of

responsibility and show remorse, they can be

extended mercy. . . . Has there been any expression of remorse by David Runyon? This case is

not about mercy." 

As an initial matter, Runyon asserts that these comments all

referenced his silence during the videotaped interrogation. He

is correct with regard to the first and second statements, and

because we have held that it was error for the jurors to see this

particular video, we find that it was inappropriate for them to

hear these comments as well. We agree with the government,

by contrast, that the remaining statements "were removed

both in their content and their context from any discussion of

the videotape," especially given that other evidence amply

supports their substance—to wit, that while Runyon’s coconspirators admitted to and vocalized regret for their roles in

the murder, he did not. 

As to Runyon’s Fifth Amendment claim, this court stated

in United States v. Caro that "penalizing a capital defendant

for failure to articulate remorse burdens his Fifth Amendment

privilege against self-incrimination" and that "the Fifth

Amendment may well prohibit considering a defendant’s

silence regarding the non-statutory aggravating factor of lack

of remorse." 597 F.3d 608, 629-30 & n.19 (4th Cir. 2010)

(citing Mitchell v. United States, 526 U.S. 314 (1999); Estelle

v. Smith, 451 U.S. 454 (1981)). Like the Sixth Amendment

question addressed above, this suggestion plainly relates to

the principle set forth in Zant that a court may not treat "conduct that is constitutionally protected . . . as an aggravating

circumstance." 462 U.S. at 885.

UNITED STATES v. RUNYON 47
It bears emphasis, however, that not all silence on the part

of a criminal defendant qualifies as "constitutionally protected" within the ambit of Zant. For instance, immense controversy surrounds the questions of whether a defendant’s

silence prior to arrest can be used to prove guilt, see Salinas

v. Texas, 81 U.S.L.W. 3211 (U.S. Jan. 11, 2013) (No. 12-246)

(granting certiorari to decide this issue), and whether a defendant’s intermittent refusal to answer questions during a custodial interrogation after receiving Miranda warnings

constitutes admissible evidence, see McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 104-05 (3d Cir. 2012) (outlining circuit split). We are thus faced with a complex

question in determining whether the Fifth Amendment

encompasses the various periods of silence during which Runyon failed to confess or declare contrition throughout the twoplus years between the murder and his trial. 

Fortunately, we need not address the matter here. The

Supreme Court has explicitly reserved judgment on

"[w]hether silence bears upon the determination of a lack of

remorse." Mitchell, 526 U.S. at 330. And Caro—noting the

deep circuit split that has developed over the matter—

ultimately followed suit, finding that any error on this front

would have been harmless. 597 F.3d at 629-30. Because we

come to the same conclusion on harmlessness here, as

explained below, we shall assume for purposes of argument

that the district court also erred in allowing the prosecution to

reference Runyon’s refusal to express remorse and leave this

complicated constitutional question for another day.

2.

In assessing whether the Fifth or Sixth Amendment

requires reversal of Runyon’s sentences, we note that the

defense did not object even once to the prosecution’s closing

argument during the penalty selection phase below. In all

events, however, "the government has met its burden of proving this error harmless" even under the standard applicable to

48 UNITED STATES v. RUNYON
properly preserved constitutional claims, United States v. Williams, 461 F.3d 441, 448 (4th Cir. 2006), because it has established "beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained," Chapman v.

California, 386 U.S. 18, 24 (1967).

Excising the portions of the prosecution’s closing argument

challenged on Fifth and Sixth Amendment grounds would

have yielded no change to the jury’s sentencing verdict. The

challenged statements relate at most to the lack-of-remorse

aggravator and the equally-culpable mitigator. As to the former, the prosecution indisputably proved Runyon’s absence

of contrition on the basis of his affirmative conduct and

speech—in particular, his boasting about the murder, seeking

payment, concealing evidence and deceiving law enforcement

officers, and disparaging the investigation. See Caro, 597

F.3d at 631. And as for the equally-culpable mitigator, it is

again significant that the jury unanimously voted for Runyon

on this factor, rendering the prosecution’s challenged statements necessarily harmless in relation thereto.

The list of aggravators and mitigators weighed by the jury

would thus have been identical with or without the statements

of which Runyon complains. Moreover, the comments that

Runyon challenges for the first time on appeal comprised but

a small fraction of the prosecution’s argument—at most three

of over forty-five pages of transcript encompassing the prosecution’s close. And any error must be set in the context of

"the overwhelming force of the aggravating factors found by

the jury which showed the violent and predatory nature of [the

defendant’s] character and activities." United States v. Stitt,

250 F.3d 878, 898-99 (4th Cir. 2001). We thus hold that the

government has established beyond a reasonable doubt that

any Fifth or Sixth Amendment error in the prosecution’s closing argument "did not contribute to the verdict obtained,"

Chapman, 386 U.S. at 24, and therefore does not warrant

reversal. 

UNITED STATES v. RUNYON 49
B.

We next consider Runyon’s claim that various other comments by the prosecution during its closing argument violated

his due process rights. As mentioned above, such comments

violate due process if and only if they "so infected the trial

with unfairness as to make the resulting [verdict] a denial of

due process." Donnelly, 416 U.S. at 643. That is, Runyon

must show both "(1) that the government’s remarks were in

fact improper and (2) that the remarks ‘prejudicially affected

the defendant’s substantial rights so as to deprive the defendant of a fair [sentencing proceeding].’" United States v.

Higgs, 353 F.3d 281, 330 (4th Cir. 2003) (quoting United

States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993)).

In determining whether Runyon has made the second showing with respect to any particular comment, we consider a

number of factors, including: 

(1) the degree to which the prosecutor’s remarks

have a tendency to mislead the jury and to prejudice

the accused; (2) whether the remarks were isolated

or extensive; (3) absent the remarks, the strength of

competent proof introduced to establish the guilt of

the accused; and (4) whether the comments were

deliberately placed before the jury to divert attention

to extraneous matters.

Id. (quoting Mitchell, 1 F.3d at 241). Also relevant to this second inquiry is the "the issuance of curative instructions from

the court," Humphries v. Ozmint, 397 F.3d 206, 218 (4th Cir.

2005) (en banc), which, as already noted, the jury is presumed

to follow, Richardson v. Marsh, 481 U.S. 200, 206 (1987).

Although the district court here did not address in its instructions any of the specific comments challenged by Runyon, it

did repeatedly admonish the jury to consider only admitted

evidence, not lawyers’ statements, in selecting a sentence—

50 UNITED STATES v. RUNYON
admonitions that would perforce counteract any dubious comments made by the prosecution. 

With the governing standards thus set forth, we turn to the

challenged comments themselves.

1.

At one point during its closing statements, the prosecution

said that "Michael Draven was not authorized for the death

penalty"—apparently a reference to the government’s discretionary decision not to seek capital punishment against him.

According to Runyon, this comment impermissibly implied

that the United States Department of Justice, in pursuing the

death penalty against him but not Draven, had concluded that

he was more culpable than Draven.

Tellingly, Runyon cites no precedent of either this court or

the Supreme Court forbidding the prosecution to refer to the

government’s authority to pursue the death penalty against a

particular defendant. Moreover, we must consider the comment in context. Runyon implies that it was the prosecution

that first mentioned the fact that it had sought the death penalty against Runyon but not Draven. But in fact, it was Runyon’s lawyer who raised the issue and imputed the disparate

treatment to the government, stating during his closing argument, "Now, I certainly don’t make the decision about who

they seek the death penalty against. The United States makes

that decision." 

Runyon’s lawyer made this statement in order to show that

an allegedly equally culpable participant in the crime would

not receive the death penalty, one of the mitigating factors

proposed by the defense. Only in responding to this argument,

during its rebuttal statement, did the prosecution make the

comment challenged by Runyon—as demonstrated by the fact

that the prosecution began the relevant section by reminding

the jury that defense counsel "spoke about the fact that

UNITED STATES v. RUNYON 51
Catherina Voss and Michael Draven do not face the death

penalty." The comment thus briefly recapitulated an argument

that Runyon’s lawyer had already made during his summation

in order to respond to that argument. Due process does not

require the prosecution to leave the defense’s mitigation arguments unanswered. 

Moreover, Runyon makes little attempt to show that the

prosecution’s reference to Draven "prejudicially affected [his]

substantial rights so as to deprive [him] of a fair trial." Higgs,

353 F.3d at 330. And how could he? The prosecution’s comment told the jury nothing it did not already know. It already

knew that the government was seeking the death penalty

against Runyon. It already knew—from myriad pieces of evidence and comments by the parties during both the guilt and

penalty phases—that the government had forgone that punishment for Draven. Nor did the comment affect the ultimate

outcome, for the jury unanimously found the equally-culpable

mitigator, thereby ruling in Runyon’s favor on the point he

now contests. Nothing about the prosecution’s comment violated Runyon’s right to due process.

2.

Runyon next contends that the prosecution in its close

impermissibly compared the value of his life with that of

Voss’s. For example, the prosecution claimed that "Cory

Voss, of course, as an officer represented what David Runyon

never managed to achieve" and that Voss attained "a military

and family life that David Runyon might have once coveted

but never achieved." In addition, as it extolled Voss’s accomplishments as a Navy officer, husband, and father, the prosecution made a number of what Runyon describes as

"derogatory and superfluous" comments about Runyon’s own

life, Appellant’s Opening Br. 75, asserting that he "left his

wife and children and didn’t provide support for them";

"abandoned more gainful attempts at employment, to get

employment through these sporadic drug studies that put him

52 UNITED STATES v. RUNYON
into contact with people like Michael Draven"; met his girlfriend "at a strip bar"; and "play[ed] video games" while his

girlfriend held down three jobs. Such comments, Runyon

argues, constituted "comparative judgments" regarding the

worth of his and Voss’s lives and thus violated the limits on

victim-impact evidence articulated in Payne v. Tennessee, 501

U.S. 808, 823 (1991).

Once again, however, Runyon takes the prosecution’s comments out of context. Other than the first two, isolated statements cited by Runyon, the prosecution made no direct

"comparative judgments" about the value of his life and

Voss’s. Rather, it made a number of arguments about Voss’s

background and then made a distinct set of arguments about

Runyon’s, with the latter separated from the former by multiple pages in the record. Each set of arguments, moreover,

served a legitimate prosecutorial purpose. First, as we have

already noted, the prosecution was undoubtedly permitted to

introduce evidence providing a "quick glimpse" of Voss’s life

and to comment on that evidence in its summation. See id. at

826. Second, it was also entitled to rebut the defense’s mitigating evidence purporting to show that Runyon was, in many

respects, an upstanding individual. It thus could not avoid

commenting on both Voss’s and Runyon’s backgrounds over

the course of the same summation. Were we to hold that separate descriptions of the victim’s and defendant’s lives together

constitute impermissible "comparative judgments," we would

force the prosecution either to forgo argument on a legitimate

aggravating factor or not to contest a mitigating factor during

summation—a dilemma that the Constitution cannot possibly

create.

Moreover, even if some of the prosecution’s comments did

compare Runyon’s life with Voss’s, this court has rejected a

constitutional challenge to comments that compared the

defendant’s and victim’s lives far more explicitly than did the

comments at issue here. Humphries, 397 F.3d at 220-26. 

UNITED STATES v. RUNYON 53
3.

In both the opening and rebuttal portions of its summation,

the prosecution made a number of comments contrasting the

criminal justice system’s treatment of Runyon with Runyon’s

treatment of Voss. For example, it asked the jury to consider

that "this protection that has been afforded this defendant, . . .

this was a process, these were protections that were never

given to Cory Voss." And in response to the defense’s plea

for the jury to show Runyon "mercy," the prosecution stated:

And I understand that [defense counsel] has asked

you to give mercy to David Runyon. And I do think

that it’s important for you to ask yourselves what

mercy he showed, not only Cory Voss, but his family and his children? . . . Cory Voss—we don’t know

what was said. But he was found in a defensive posture. It is likely he asked for mercy. He didn’t get a

chance to present any mitigating evidence. He didn’t

get a chance probably to talk about the effect of his

crime on his family. There was probably an element

of asking for mercy, pleading for his life. Did the

defendant show him any mercy? You know, of

course, that he did not.

According to Runyon, these comments rendered his sentencing proceeding unfair by appealing to the jury’s emotions,

thus precluding the kind of dispassionate decision that due

process requires.

It is, of course, perfectly permissible for the prosecution to

urge the jury not to show a capital defendant mercy, see

Higgs, 353 F.3d at 331, which is what the prosecution did

here. And as to the mention of Runyon’s failure to show Voss

any mercy, Runyon largely has his own lawyer to blame, for

it was his lawyer who first told the jury that the prosecution

"will probably stand up and say they are asking for mercy but

Mr. Runyon didn’t show Mr. Voss any mercy." In any event,

54 UNITED STATES v. RUNYON
the whole matter represents the sort of thrust and parry in

which attorneys typically engage in the course of their last

chance to persuade a jury, and we see no error here.

4.

Runyon next argues that the prosecution improperly invited

the jury to speculate about the mental "torture" that Voss

might have endured during the period between the carjacking

and his murder, taking issue with the following three comments, in particular: 

• "You can see that the truck leaves the ATM at

11:36, and you can see that it comes back at

about 11:44, some minutes later, and that is a

seven- or eight-minute period of time, just the

two men in the car. David Runyon has got a gun

pointed at Cory Allen Voss. That time must have

felt like an eternity to Cory Voss. And what

could he have been thinking with a man sitting

there pointing a gun at him? What kind of torture

did that cause him to think about?"

• "What did David Runyon say to Cory Voss to get

him to go around and make a second trip to that

ATM machine? What fear must Cory Voss have

felt when he was doing that? . . . We know that

he must have done everything asked of him by

David Runyon. He was trying to cooperate, to

save himself, to get back to his family."

• "Certainly in that period that [Runyon] was in the

truck with Cory Voss, Cory Voss was trying to

comply and do whatever he could to get away, to

get back to his family."

According to Runyon, because the prosecution introduced no

evidence regarding Voss’s state of mind, these comments

UNITED STATES v. RUNYON 55
invited sheer speculation. And, he insists, because the prosecution never proposed the statutory aggravator for when

"[t]he defendant committed the offense in an especially heinous, cruel, or depraved manner," 18 U.S.C. § 3592(c)(6),

they were also completely irrelevant. 

We disagree on both counts. Far from "speculating" about

Voss’s thoughts, the prosecution merely drew inferences from

relevant evidence that was properly before the jury. For

instance, the jury had heard testimony establishing the times

at which Runyon entered Voss’s car and Voss attempted withdrawals from the ATM. The medical examiner had also testified that Voss’s body had been found in a "defensive

posture." From this evidence, it was a short step to the conclusion that Voss had feared for his life and complied with Runyon’s orders in hopes of saving it. We decline to fault the

prosecution for what was, at most, a slight rhetorical flourish.

Nor did the prosecution’s comments prejudice Runyon, given

their isolated nature and the overwhelming evidence supporting the aggravating factors found by the jury. 

5.

Runyon challenges two final comments as inappropriate

appeals to the jurors’ emotions. First, the prosecution concluded its main summation with the following statement: "On

behalf of the United States of America, in memory of Cory

Voss, we ask that you do your duty and impose a sentence of

death on the defendant for the murder of Cory Allen Voss."

Second, the prosecution had earlier urged the jury to "send a

message to the community, send a message with your verdict."

We agree with Runyon that the prosecution’s exhortation to

the jury to "do your duty" was improper. In United States v.

Young, the Supreme Court condemned a prosecutor’s almostidentical exhortation for the jury to "do its job" and find

against the defendant. 470 U.S. 1, 18 (1985). We fail to see

56 UNITED STATES v. RUNYON
why the prosecution should be able to circumvent this holding

simply by substituting the word "duty" for "job." The government contends that it used the word "duty" here to refer to the

jury’s obligation to dispassionately weigh the aggravating and

mitigating factors. That explanation is unpersuasive, given

that the prosecution immediately followed the challenged

statement by encouraging the jury to "impose a sentence of

death." 

We also decline to approve the prosecution’s encouraging

the jury to "send a message to the community, send a message

with your verdict." In United States v. Caro, we expressed

skepticism about "the government’s comments about messages sent to anyone other than" the defendant, 597 F.3d 608,

625 n.17 (4th Cir. 2010)—skepticism that other circuits seem

to share, see, e.g., Sinisterra v. United States, 600 F.3d 900,

910 (8th Cir. 2010) (holding that urging "the jury to send a

message with its verdict" is improper because it "impinge[s]

upon the jury’s duty to make an individualized determination

that death is the appropriate punishment for the defendant").

To be sure, juries "express the conscience of the community

on the ultimate question of life or death" when they decide

whether to impose a death sentence. Witherspoon v. Illinois,

391 U.S. 510, 519 (1968). But that is different from the prosecution’s comment here. Whereas reminding the jury that it

"express[es] the conscience of the community" nevertheless

maintains a proper focus on the defendant (since any "expression" is directed at the defendant alone), urging it to "send a

message to the community" invites it to play to an audience

beyond the defendant—to use its decision not simply to punish the defendant, but to serve some larger social objective or

to seek some broader social approval as well. This latter perspective is at least in tension with the individualized assessment of the defendant’s culpability that the Constitution

requires.

We are confident, however, that neither comment rendered

the proceeding unfair, for "the complained-of comments were

UNITED STATES v. RUNYON 57
isolated, did not rise to the level of argument that might mislead or inflame the jury concerning its duty or divert it from

its task and were made in the context of a case involving compelling evidence of numerous aggravating factors." Higgs,

353 F.3d at 331; see also Caro, 597 F.3d at 625 n.17 (finding

that comments similar to those here, though perhaps

improper, did not warrant reversal because they were not sufficiently prejudicial). Runyon singles out two improper statements from a summation that spans nearly four dozen pages

in the record. 

Throughout the summation, moreover, the prosecution

repeatedly and accurately explained to the jury how it should

weigh any aggravating factors it had established against any

mitigating factors established by the defense. The district

court reinforced these points in its jury instructions, admonishing that "[t]he law does not permit you to be governed by

conjecture, surmise, speculation, prejudice, or public opinion"

and that "[p]assion, prejudice, and arbitrary considerations

can play no role in your efforts to reach a just result in this

case." And the court further warned that "statements and arguments of counsel are not evidence in the case," as mentioned

above. Taken together, all these instructions minimized any

risk that the jury would render a decision based on the prosecution’s two fleeting comments, as opposed to the overwhelming evidence supporting all of the six statutory and

nonstatutory aggravators. Neither of the prosecution’s questionable comments, then, "prejudicially affected" Runyon,

Higgs, 353 F.3d at 330—and his sentencing proceeding,

therefore, was not so infected "with unfairness as to make the

resulting [verdict] a denial of due process." Donnelly, 416

U.S. at 643.

VI.

Runyon challenges a number of other aspects of his sentencing proceeding on both constitutional and statutory

grounds. We consider each challenge in turn.

58 UNITED STATES v. RUNYON
A.

Runyon first takes issue with portions of the instructions

that the district court delivered to the jury at various points

during the proceeding. In particular, he challenges a number

of passages typified by the following:

In this phase, at the end of your deliberations all 12

jurors must unanimously agree that the aggravating

factors sufficiently outweigh any mitigating factors,

or in the absence of mitigating factors, that the

aggravating factors are themselves sufficient to justify a sentence of death. But if any of you, even a

single juror, is not persuaded that the aggravating

factors sufficiently outweigh any mitigating factors

such that a sentence of death is justified, then the

jury may not recommend the death penalty on the

verdict form.

According to Runyon, these instructions were unconstitutional because they indicated that the jury could impose a

death sentence so long as it concluded that the aggravating

factors "sufficiently outweighed" the mitigating factors, when

in fact it should have been instructed that it had to find that

the former outweighed the latter "beyond a reasonable doubt."

Runyon’s argument, however, is belied by the plain text of

the FDPA. Under the statute, although the government bears

"[t]he burden of establishing the existence of any aggravating

factor . . . beyond a reasonable doubt," the jury must ultimately determine "whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating

factor or factors found to exist to justify a sentence of death"

in order to recommend that punishment. 18 U.S.C. § 3593(c),

(e). Contra Runyon, the FDPA does not require the jury to

find that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt, and the jury therefore need

not be so instructed. 

UNITED STATES v. RUNYON 59
To be sure, the Supreme Court has held that the Sixth

Amendment requires juries to find aggravating factors necessary for the imposition of the death penalty beyond a reasonable doubt, see Ring v. Arizona, 536 U.S. 584 (2002), but it

has never extended this requirement to juries’ weighing of

aggravating and mitigating factors. The only appellate decision to make that leap is one by a panel of the Sixth Circuit

that has since been vacated pending rehearing en banc. See

United States v. Gabrion, 648 F.3d 307, 325-28 (6th Cir.

2011), reh’g en banc granted, opinion vacated, Nos. 02-

1386/1461/1570, 2011 U.S. App. LEXIS 23290 (6th Cir. Nov.

17, 2011). In contrast to this outlier, at least four other circuits

have held that the reasonable-doubt standard does not apply

to the weighing of aggravating and mitigating factors, reasoning that that process constitutes not a factual determination,

but a complex moral judgment. See United States v. Fields,

516 F.3d 923, 950 (10th Cir. 2008); United States v. Mitchell,

502 F.3d 931, 993-94 (9th Cir. 2007); United States v. Sampson, 486 F.3d 13, 31-32 (1st Cir. 2007); United States v.

Fields, 483 F.3d 313, 345-46 (5th Cir. 2007). We find this

reasoning persuasive and accordingly join the broad consensus of authority.

Because the district court here recited the governing standard from the FDPA virtually verbatim, and because it also

repeatedly reminded the jury to find only those aggravating

factors that the prosecution had proved beyond a reasonable

doubt, we conclude that its instructions were perfectly proper.3

B.

At two points following the conclusion of the guilt phase,

the district court excused a juror and replaced her with an

3Even were we to deem the instructions erroneous, any error would

likely constitute invited error, as Runyon’s own lawyer requested the very

instructions that Runyon now challenges on appeal. See United States v.

Herrera, 23 F.3d 74, 75-76 (4th Cir. 1994). 

60 UNITED STATES v. RUNYON
alternate. Runyon now challenges certain decisions by the district court related to these substitutions, but we find no error

warranting reversal of his sentences. 

1.

On July 21, 2009, four days after the guilt phase ended and

one day before the eligibility phase began, the district court

excused juror Robin Foreman, whose mother had died the

previous night. It replaced her with one of the alternates, who

had not been released. The district court informed the parties

of the substitution the next day, just before the eligibility

phase commenced.

Although Runyon did not object at the time, he now argues

that the district court abused its discretion in dismissing Foreman, rather than simply postponing the half-day eligibility

hearing until closer to the selection hearing, which did not

begin until August 19, 2009, nearly a month later. We can

readily dispose of this claim. Federal Rule of Criminal Procedure 24(c) expressly authorizes district courts to impanel

alternate jurors and to substitute them for jurors who can no

longer serve. This court, moreover, reviews such decisions for

abuse of discretion, which is rarely found in this context. See,

e.g., United States v. Nelson, 102 F.3d 1344, 1349-50 (4th

Cir. 1996) (finding no abuse of discretion where the district

court replaced two jurors with alternates because the jurors

were scheduled to go on vacation the next day); United States

v. Hayden, 85 F.3d 153, 157 (4th Cir. 1996) (finding no abuse

of discretion where the district court replaced a juror who

knew one of the witnesses with an alternate, rather than

declare a mistrial); United States v. Colkley, 899 F.2d 297,

303 (4th Cir. 1990) (finding no abuse of discretion where the

district court excused a juror who failed to appear for thirty

minutes and replaced him with an alternate). Here, before

excusing Foreman, the district court confirmed that her

mother had actually died. Given the uncertainty regarding

when she might be able to return, as well as the inconvenience

UNITED STATES v. RUNYON 61
that any delay might cause, we have no trouble concluding

that the district court was well within its discretion in deciding

to excuse and replace Foreman rather than postpone the proceedings.

Runyon also contends that the district court, in deciding to

dismiss Foreman at an in camera proceeding from which both

he and his lawyer were absent and of which they received no

notice, violated his right to be present at certain critical stages

of the proceedings against him, as guaranteed by both the

Fifth Amendment’s Due Process Clause and Federal Rule of

Criminal Procedure 43. We agree that the district court erred

in deciding to dismiss Foreman with neither Runyon nor his

lawyer present. The Due Process Clause guarantees a defendant the "right to be present at all stages of the trial where his

absence might frustrate the fairness of the proceedings,"

Faretta v. California, 422 U.S. 806, 819 n.15 (1975), while

Rule 43 enshrines an even broader right to be present, see

United States v. Rolle, 204 F.3d 133, 136-37 (4th Cir. 2000).

In United States v. Camacho, 955 F.2d 950, 952-53 (4th Cir.

1992), we held that both of these provisions required the

defendant’s presence at jury impanelment, a requirement we

extended to the removal of jurors in United States v. Hanno,

21 F.3d 42, 46-47 (4th Cir. 1994). We thus hold that Runyon

should have been present when the district court decided to

excuse and replace Foreman.4

We next consider whether this error requires us to reverse

Runyon’s sentences. The parties vigorously dispute the appropriate prejudice standard, with Runyon urging us to apply

harmless error and the government plain error. Although Run4Although we hold that Runyon should have been present when the district court decided to excuse Foreman, we do not agree with Runyon’s

claim that the proceeding needed to be public, for Runyon points us to no

precedent extending the Sixth Amendment right to a public trial to such

decisions. On the contrary, district courts often decide whether to replace

jurors with alternates at in camera conferences. See, e.g., United States v.

Boone, 759 F.2d 345, 347 (4th Cir. 1985). 

62 UNITED STATES v. RUNYON
yon and his lawyer obviously never could have objected at the

in camera proceeding, from which they were absent, they also

failed to object at the beginning of the eligibility hearing,

when the district court announced Foreman’s dismissal.

Because Runyon thus had "an opportunity to object" to the

district court’s ruling but failed to do so, we apply Olano’s

plain error standard. Fed. R. Crim. P. 51; see Fed. R. Crim.

P. 52(b). 

We find that Runyon has failed to show that the district

court’s error satisfies the third prong of Olano—to wit, that

the error affected Runyon’s "substantial rights." United States

v. Olano, 507 U.S. 725, 732 (1993). The district court

replaced Foreman with an alternate who had been selected

along with all the other jurors and alternates during voir dire,

at which both Runyon and his lawyer were present. Moreover,

the court replaced her during a hiatus in the proceedings—

after the jury had found Runyon guilty but before it had even

begun to hear evidence as to what sentence he should receive.

See United States v. Evans, 352 F.3d 65, 70 (2d Cir. 2003)

(finding no prejudice from a Rule 43 violation where the juror

was replaced "well before the case was sent to the jury"). Had

there been any risk of prejudice from the substitution, one

would have expected Runyon’s lawyer to have vigorously

objected and to have asked for a continuance to await Foreman’s return when the district court announced its decision,

yet he did neither. It would set a poor precedent to allow a

party to remain silent when a substitution is announced, await

the verdict, and lodge an objection only when the jury’s determination was adverse. In common parlance, such a tactic is

called sandbagging. For this reason among others, Runyon’s

presence claim fails not only under Olano’s third prong, but

its fourth prong as well, as our refusal to reverse does not

result in any "miscarriage of justice." 507 U.S. at 736.5

5Even were we to apply harmless error, we believe that the government

has "prove[d] beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained." Chapman, 386 U.S. at 24. 

UNITED STATES v. RUNYON 63
2.

The district court replaced a second juror on August 27,

2009. Specifically, on August 26, the penalty selection phase

ended, and the jury deliberated for just under an hour and a

half before recessing for the evening. The next morning, the

court learned that the brother-in-law of juror Carol Kocevar

had passed away in Delaware the night before. Kocevar asked

to be excused so that she could travel to Delaware. After holding a hearing in open court (but without the other jurors present), and with the agreement of both the prosecution and

Runyon, the district court excused Kocevar and replaced her

with the next alternate. 

On appeal, Runyon contests not the district court’s decision

to excuse Kocevar, but rather its instruction to the jury after

she was replaced by the alternate. That instruction stated:

I would tell you that what you need to do is, now it

is the 12 of you, and if you would review for [the

second alternate juror]—you were out only a little

over an hour yesterday, and, [Jury Foreperson], as

foreperson, if you would just see that you review

with her what was discussed and key her in, and then

proceed with your deliberations.

According to Runyon, by telling the jury merely to "review"

the previous day’s deliberations with the alternate and then

"proceed with your deliberations," the district court violated

Federal Rule of Criminal Procedure 24(c)(3), which provides

in relevant part: "If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its

deliberations anew." Because Runyon failed to object to the

instruction at the time, we review it for plain error. Olano,

507 U.S. at 732. 

Assuming for the sake of argument that the distinction

Runyon seeks to draw is more than semantic, he again cannot

64 UNITED STATES v. RUNYON
show that any error affected his "substantial rights." Id.

Instructions should not be prone to quibbles. See Henderson

v. Kibbe, 431 U.S. 145, 152-54 & n.10 (1977). "While a careful picking apart of the instructions’ wording [may often]

reveal minor ambiguity, when read in [their] entirety," it may

become apparent that "the instructions were clear and did not

permit" an improper verdict. United States v. Moran, 493 F.3d

1002, 1010 (9th Cir. 2007) (per curiam). Here, while the district court did not repeat the words of the Rule verbatim, the

court in substance instructed the jury to rewind its proceedings for the benefit of the alternate before proceeding further.

This, in essence, is what the Rule requires. 

Moreover, Kocevar participated in the deliberations for

under an hour and a half—the time the jury deliberated on

August 26, the first day of deliberations. After she was

replaced, on the morning of August 27, the jury continued to

deliberate for the better part of a day—specifically, until six

that evening, when it informed the court that it had reached

a verdict. Given that the alternate had heard the very same

evidence as all the other jurors and was absent for no more

than one and a half hours of deliberations that lasted at least

eight, we fail to see how the district court’s instructing the

jury to "begin its deliberations anew" would have made any

difference to the course of the deliberations and thus to the

ultimate outcome.

According to Runyon, this quantitative analysis misses the

qualitative significance of Kocevar’s replacement. Specifically, he notes that the district court had originally instructed

the jury to begin its deliberations by voting on the four proposed nonstatutory aggravating factors and only then to proceed to weighing any aggravators against any mitigators. It is

thus possible, Runyon argues, that, absent the instruction

required by Rule 24(c)(3), the alternate who replaced Kocevar

ended up voting to sentence Runyon to death based on nonstatutory aggravating factors that had been found by the other

jurors before Kocevar was excused. We cannot reverse a

UNITED STATES v. RUNYON 65
jury’s verdict, however, based on such a "speculative assertion of prejudice." United States v. Evans, 635 F.2d 1124,

1128 (4th Cir. 1980) (refusing to overturn a conviction where

the district court failed to instruct the jury to begin its deliberations anew after replacing one juror with an alternate). We

cannot possibly know just where the jury was in its deliberations when Kocevar was replaced. Moreover, like all the other

jurors and alternates, the alternate who replaced Kocevar had

been repeatedly instructed by the district court that any nonstatutory aggravating factor had to be found unanimously,

beyond a reasonable doubt. We have no reason to suspect, let

alone presume, that the jury failed to follow these instructions. 

Finally, as already noted, this was simply not a close case:

the evidence on each aggravator was overwhelming, and the

relative weight assigned by the jurors to the aggravators and

mitigators hardly shows their judgment to have been in any

way unreasonable. It should thus have come as no surprise

that, when polled, each juror, including the one who replaced

Kocevar, affirmed the verdict. Once again, to reverse under

Olano on the basis of what was at most an infelicitous expression would encourage counsel to sit strategically silent during

trial and to forage for error thereafter.

C.

Finally, Runyon asserts that the totality of the errors he has

alleged rendered his entire sentencing hearing fundamentally

flawed and that his sentences must therefore be reversed

under both the constitutional "cumulative error" doctrine and

the FDPA, which requires us to determine "whether the sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor," 18 U.S.C.

§ 3595(c)(1).

"Pursuant to the cumulative error doctrine, the cumulative

effect of two or more individually harmless errors has the

66 UNITED STATES v. RUNYON
potential to prejudice a defendant to the same extent as a single reversible error." United States v. Basham, 561 F.3d 302,

330 (4th Cir. 2009). "To satisfy this requirement, such errors

must so fatally infect the trial that they violated the trial’s fundamental fairness." Id. "Generally, however, if a court ‘determine[s] . . . that none of [a defendant’s] claims warrant

reversal individually,’ it will ‘decline to employ the unusual

remedy of reversing for cumulative error.’" Id. (alterations in

original) (quoting United States v. Fields, 483 F.3d 313, 362

(5th Cir. 2007)). The harmless errors in this case do not justify that "unusual remedy." On the contrary,

although we recognized (and assumed) a few harmless errors, they were not widespread or prejudicial

enough to have fatally infected [the defendant’s] trial

or sentencing hearing. The proceeding below

adhered to fundamental fairness. There is overwhelming evidence of guilt in the record and any

possible error did not play a role in the outcome of

either phase of [the] trial. Moreover, each aggravating factor (both statutory and non-statutory) determined by the jury was well supported by the record.

Finally, we cannot see how cumulative error could

have caused the jury to weigh the relevant sentencing factors any differently.

United States v. Lighty, 616 F.3d 321, 371 (4th Cir. 2010); see

also United States v. Caro, 597 F.3d 608, 635-36 (4th Cir.

2010). 

"It is well-settled that a criminal defendant is entitled to a

fair trial not a perfect one." Lighty, 616 F.3d at 336 (citing

United States v. Hasting, 461 U.S. 499, 508-09 (1983)).

Indeed, it is the rare trial that will be an ideal specimen in all

respects, given that even the most well-intentioned trial participants may commit the occasional error. Though imperfect

in some minor respects, Runyon’s sentencing hearing was

thoroughly fair. Tellingly, none of his claims concern his

UNITED STATES v. RUNYON 67
basic ability to present his case to the jury in an effective

manner. He does not contend that he was denied the opportunity to confront the prosecution’s witnesses or rebut its other

evidence. Nor does he argue that he was in any way hamstrung in his ability to call witnesses of his own or introduce

mitigating evidence. Such a claim would be simply incredible,

given the scope, length, and magnitude of the defense’s mitigation case. Runyon’s claim that the jury’s verdict was impermissibly biased is belied by the fact that the very same jury

unanimously found nine mitigators in his favor. Though Runyon’s claims deserve—and have received—our careful attention, he seeks in essence to present his case unfettered while

substantially shutting down his adversary’s. That is not a fair

proceeding, but a one-sided one.6

In short, the basic problem with Runyon’s cumulative error

claim is that it runs up against the cumulative weight of all the

evidence against him. There is simply no question that Runyon fired five bullets into the body of an innocent naval officer and young father—at close range and in cold blood. There

6At oral argument, questions arose with regard to the government’s

selection of defendants for capital punishment. In this case, the prosecution exercised its discretion on the basis of a number of distinctions

between Runyon and the other defendants—including that Runyon was

the actual triggerman in the murder-for-hire scheme; that he accepted payment for killing someone who was essentially a complete stranger; and

that he not only never cooperated with the investigation but sought to

thwart it at virtually every turn. 

This does not mean, of course, that the prosecution’s discretion cannot

be questioned in any way. Here, that discretion was challenged quite vigorously, in fact, by the defense’s emphasis on the equally-culpable mitigator, on which the jury found in Runyon’s favor. For this court, however,

to overturn Runyon’s sentences in the absence of evidence that the prosecution exercised its discretion on some impermissible basis (such as race,

ethnicity, or religion) would exceed our authority. See United States v.

Passaro, 577 F.3d 207, 219 (4th Cir. 2009) (holding that where the defendant "fail[ed] to cite any evidence that in prosecuting him . . . the Government unlawfully or discriminatorily exercised its prosecutorial discretion,"

there existed "no basis for judicial interference with that discretion"). 

68 UNITED STATES v. RUNYON
is simply no question that the jury had a strong evidentiary

basis for unanimously finding numerous aggravating factors

beyond a reasonable doubt—including that Runyon acted

with monetary motives, planned and premeditated the murder,

exploited his military and law enforcement experience in

committing it, and showed not a hint of remorse for inflicting

inestimable human damage for a paltry sum. The jury was

justified in concluding that these aggravators sufficiently outweighed the mitigators established by the defense, and Runyon has given us no reason to upset the judgment. For the

same reasons, we also reject Runyon’s contention that "the

sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor." 18 U.S.C.

§ 3595(c)(1).7 His convictions and sentences thus stand

affirmed.

AFFIRMED

NIEMEYER, Circuit Judge, concurring:

I join in Judge Wilkinson’s fine opinion and judgment on

appeal, reserving only my conclusion that the district court

did not err in admitting the videotape recording into evidence

during the penalty selection phase of the trial.

The videotape was a recording of a voluntary interview

given by Runyon after being fully advised of his Miranda

rights. There is no evidence that Runyon’s will was overborne

or that he provided the statement in response to any trick or

misrepresentation. Moreover, the statement was relevant, as

Judge Wilkinson has pointed out in more detail, to the aggra7Runyon also argues that the death penalty now violates the Eighth

Amendment, in light of "the evolving standards of decency that mark the

progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958)

(plurality opinion). But we rejected an identical claim just recently, see

Lighty, 615 F.3d at 370, and to do otherwise here would run afoul of the

Supreme Court. 

UNITED STATES v. RUNYON 69
vating factor that Runyon lacked remorse for his conduct and

to the mitigating factor that other equally culpable defendants

would not receive the death penalty.

While Runyon contends that his interrogators inappropriately played race and religion during the course of the interrogation, a review of the recording does not reveal any

unconstitutional intent, purpose, or effect. The interrogators

invoked racially-generalized traits of courage and pride, as

well as religious values of repentance and forgiveness, to

encourage Runyon to tell the truth about what occurred. These

references to race and religion were not inflammatory, unless

any reference to race, ethnicity, and religion is considered

inflammatory, a view that I do not hold, but were appeals to

Runyon’s moral sense, albeit unsuccessful. Surely, if the

interrogators had called Runyon a mouse or a wimp or suggested that he was not a whole man until he spoke the truth,

he would have made no complaint.

At bottom, I would conclude that the interview was voluntarily given, was relevant, and accurately revealed Runyon’s

total lack of remorse and moral responsibility.

To be especially cautious, the district court nonetheless

instructed the jury that the tape was offered only "for the limited purposes of demonstration of remorse in regard to the

alleged nonstatutory aggravating factor to this effect, and for

relevant culpability in regard to the alleged statutory mitigation factor to this effect." The district judge also admonished

the jury that no statement made by the detectives during the

interrogation was to be taken as evidence in the case. Finally,

the court instructed the jury repeatedly that in considering the

death sentence for Runyon, it was not to "consider the race,

color, religious beliefs, national origin, or sex of the defendant

or the victim in this case. These facts are completely irrelevant to the important issues you must consider at this phase

of the proceedings." Indeed each juror was required to sign a

70 UNITED STATES v. RUNYON
certificate affirming his or her compliance with the instruction.

In these circumstances, I believe that the district court did

not err in admitting the videotape into evidence at this phase

of the trial. I also concur fully in Judge Wilkinson’s analysis

and conclusion that any error in admitting the videotape was

harmless beyond a reasonable doubt.

I am pleased to join his well-crafted and thorough analysis

of the issues presented in this appeal, and I am pleased to concur.

UNITED STATES v. RUNYON 71