## REVISED, February 10, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10113 and No. 96-10448

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LOUIS JONES, JR.,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of Texas

January 5, 1998

Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.

Robert M. Parker, Circuit Judge:

The defendant, Louis Jones, appeals from a conviction of

kidnapping with death resulting, in violation of 18 U.S.C. § 1201.

After a post-conviction sentencing hearing, the jury recommended

the death penalty. The defendant challenges the sentence of death

imposed by the court pursuant to the Federal Death Penalty Act of

1994 (“FDPA”), 18 U.S.C. §§ 3591-97

. A fter considering all the

issues raised by the defendant on appeal, we affirm both the

conviction and the sentence of death.2 I. Background

On February 18, 1995, Pvt. Tracie Joy McBride was abducted at

gunpoint from Goodfellow Air Force Base. During the abduction,

Pvt. Michael Peacock was assaulted by McBride’s attacker and

severely injured while attempting to aid McBride. The base

launched an intense investigation into the abduction of McBride.

On March 1, 1995, Sgt. Sandra Lane informed investigators of

the Office of the Air Force Special Investigati ons (“OSI”), who

were investigating the abduction of Pvt. McBride, that her exhusband, Louis Jones, had attacked her on February 16, 1995, two

days before McBride’s disappearance. After convincing Lane to file

a complaint, the OSI investigators summoned San Angelo Police who

took a sworn statement from Lane. An arrest warrant was issued for

Jones based on the statement made by Lane. Jones was arrested later

that evening.

While in state custody for the abduction and sexual assault of

Sandra Lane, in vestigators from the OSI questioned Jones as a

possible suspect in the abduction of Pvt. McBride. The OSI

investigators advised Jones of his M iranda rights, but Jones

indicated that he did not want an attorney and that he was willing

to answer questions. In response to questioning by OSI

investigators, Jones gave a written stateme nt admitting to the

abduction and murder of McBride. In his statement, Jones admitted

to taking McBride back to his apartment, tying her up, and placing

her in the closet. Jones stated that he then drove McBride to a3

remote location where he repeatedly struck her over the head with

a tire iron until she was dead. Although Jones could not give

investigators directi ons to where the body was located, he

indicated that he could show them. Subsequently, Jones lead law

enforcement officials to a bridge located twenty miles outside San

Angelo under which the body of Tracie McBride was discovered. An

autopsy revealed that McBride died due to blunt force trauma to the

head. The autopsy also revealed evidence of sexual assault.

Louis Jones was indicted in an instrument that charged him

with kidnapping McBride with her death resulting, in violation of

18 U.S.C. § 1201(a)(2). The government alleged that the offense

occurred within the special maritime and territorial jurisdiction

of the United States. Conviction for kidnapping with death

resulting under the Federal Kidnapping Statute, 18 U.S.C. § 1201,

could result in a sentence of life imp risonment or death.

Exercising the discretion granted by the Federal Death Penalty Act,

the United States Attorney prosecuting the case decided to seek the

death penalty. As required by 18 U.S.C. § 3593(a), the prosecution

filed its Notice of Intent to Seek the Death Penalty. The jury

trial commenced on October 16, 1995 and resulted in a guilty

verdict on October 23, 1995.

Following Jones’s conviction, a separate sentencing hearing

was conducted to determine whether Jones would receive a sentence

of death. See 18 U.S.C. § 3593. To obtain a sentence of death, the

government had the burden of proving the following: the death of

McBride was an intentional killing; and the existence of one or1 The government alleged the following four statutory aggravating

factors:

(1) the defendant caused the death or injury resulting in

the death of Tracie Joy McBride during the commission of the

offense of kidnapping;

(2) the defendant, in the commission of the offense,

knowingly created a grave risk of death to one or more persons in addition to the victim of the offense, Tracie Joy McBride;

(3) the defendant committed the offense in an especially

heinous, cruel, and depraved manner in that it involved torture

and serious physical abuse to the victim, Tracie Joy McBride;

and

(4) the defendant committed the offense after substantial

planning and premeditation to cause the death of Tracie Joy

McBride.

2 The three non-statutory aggravating factors are as follows:

(1) the defendant’s future dangerousness to the lives and

safety of other persons;

(2) Tracie Joy McBride’s young age, her slight stature, her

background, and her unfamiliarity with San Angelo, Texas; and

(3) Tracie Joy McBride’s personal characteristics and the

effect of the instant offense on Tracie Joy McBride’s family.

4 more aggravat ing factors make the defendant death-eligible. 18

U.S.C. § 3591(a). In the first stage of the sentencing hearing,

the jury was required t o determine whether Louis Jones

intentionally caus ed the death of Tracie McBride. 18 U.S.C. §

3591(a). Regarding the intent element, the jury unanimously found:

(1) Jones intentionally killed McBride; and (2) Jones intentionally

inflicted seriously bodily injury th at resulted in the death of

McBride.

The second stage of the sentencing hearing required the jury

to weigh any aggravating factors against any mitigating factors to

determine whether a sentence of death was appropriate. 18 U.S.C. §

3593(e). The government, in its notice of intent to seek the death

penalty, set forth four statutory aggrava ting factors 1 and three

non-statutory aggravating factors. 2 In order to consider an3 The defendant proposed eleven mitigating factors, ten of which were

found to exist by one or more jurors (the number of jurors finding each

mitigating factor is enclosed in brackets):

(1) the defendant Louis Jones did no t have a significant prior

criminal record [6];

(2) the defendant’s capacity to appreciate the wrongfulness

of the defendant’s conduct or to conform to the requirements of

the law was significantly impaired, regardless of whether the

capacity was so impaired as to constitute a defense to the

charge [2];

(3) the defendant committed the offense under severe mental

5 aggravating factor, the jury must unanimous ly find that the

g o vernment established the existence of an aggravating factor

beyond a reasonable doubt. 18 U.S.C. § 3593(c). The jury made

unanimous findings regarding the following two statutory factors:

Jones caused the death of the victim or the injury resulting in the

death of the victim during the commission of the offense of

kidnapping; and Jones committed t he offense in an especially

heinous, cruel, and depraved manner. The jury also made unanimous

findings regarding the following two non-statutory aggravating

factors: McBride’s young age, her slight stature, her background,

and her unfamiliarity with San Angelo, T exas; and McBride’s

personal characteristics and the effect of the offense on her

family

.

Once the jury found aggravating factors to exist, the jury

next had to determine whether any mitigating factors existed. To

consider a mitigating factor in jury deliberations, only one juror

must find that the defendant established the existence of a

mitigating factor by a preponderance of the evidence. Of the

eleven mitigating factors proposed by the defendant, ten mitigating

factors were found to exist by at lea st one or more jurors. 3 Inor emotional disturbance [1];

(4) the defendant was subjected to physica l, sexual, and

emotional abuse as a child (and was deprived of sufficient

parental protection that he needed)[4];

(5) the defendant served his country well in Desert Storm,

Grenada, and for 22 years in the United States Army [8];

(6) the defendant is likely to be a well-behaved inmate [3];

(7) the defendant is remorseful for the crime he committed

[4];

(8) the defendant’s daughter will be harmed by the emotional

trauma of her father’s execution [9];

(9) the defendant was under unusual and substantial internally

generated duress and stress at the time of the offense [3];

(10) the defendant suffered from nume rous neurological or

psychological disorders at the time of the offense [1]; and

(11) other factors in the defendant’s background or character

militate against the death penalty [0].

Additionally, seve n jurors added Jones’s ex-wife Sandra Lane as a

mitigating factor.

6 deliberations, the jury was asked to weigh the aggravating factors

against any mitigating factors to determine the propriety of a

death sentence. The jury returned a unanimous verdict recommending

death on November 3, 1995.

II. Constitutionality of Federal Death Penalty Act

The defendant challenges the constitutionality of the Federal

Death Penalty Act, 18 U.S.C. §§ 3591-97, on the following four

grounds: (1) the prosecutor’s ability to define non-statutory

aggravating factors amounts to an unconstitutional delegation of

legislative power; (2) the lack of proportionality review combined

with prosecutor’s unrestrained authority to allege non-statutory

aggravating factors renders the statute unconstitutional; (3) the

relaxed evidentiary standard at the sentenc ing hearing combined

with the unrestrained use of non-statutory aggrav ating factors

renders the jury’s recomm endation arbitrary; and (4) the death7

pen alty is unconstitutional under all circumstances. We review

c o nstitutional challenges to federal statutes de novo. United

States v. Bailey , 115 F.3d 1222, 1225 (5th Cir. 1997).

A.

First, the defendant asserts that the prosecutor’s authority

to define non-statutory aggravating factors results f rom an

unconstitutional delegation of legislative power. The

nondelegation doctrine arises from the constitutional principle of

separation of powers, specifically Article 1, § 1, which provides

that “all legislative Powers herein granted shall be vested in a

Congress of the United States.” See Touby v. United States , 500

U.S. 160, 165 (1991); United States v. Mistretta

, 488 U.S. 361, 371

(1989). Under the nondelegation doctrine, Congress may not

constitutionally delegate its legislative power to another branch

of government. S ee Mistretta

, 488 U.S. at 372. Congress, however,

may seek assistance, within limits, from coordinate branches of

government. S ee id. So long as Congress formulates “an

i ntelligible principle to which the person or body authorized to

exercise the delegated authority is directed to conform, such

legislative action is not a forbidden delegation o f legislative

power.” Id.

Jones asserts that Congress faile d to formulate an

“intelligible principle” in § 3592(c) when it delegated the

authority to define additional aggravating factors to the4 In reviewing similar challenges to the death penalty provisions of

the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e), two other circuits

rejected this argument. U nited States v. McCullah

, 76 F.3d 108 7 (10th Cir.

1996); United States v. Tipton , 90 F.3d 861, 895 (4th Cir. 1996).

8 Department of Justice. 4 On the contrary, the delegated authority

is sufficiently circumscribed by “intelligible principles” to avoid

violating the nondelegation doctrine. See United States v. Tipton

,

90 F.3d 861, 895 (4th Cir. 1996). The authority to define

nonstatutory aggravating factors falls squarely within the

Executive’s broad prosecutorial discretion, much like the power to

decide whether to prosecute an individual for a particular crime.

See United States v. Armstrong

,

__ U.S.

__, 116 S.Ct. 1480, 1486

(1996)(noting the prosecutor’s broad discretion in deciding whether

to prosecute); United States v. Johnson

, 91 F.3d 695, 698 (5th Cir.

1996)(stating that “[ a] prosecutor has broad discretion during

pretrial proceedings to determine the extent of the societal

intere st in prosecution.") Obviously, Congress could not list

every possibl e aggravating factor. An exclusive list of factors

would bind the hands of the prosecutor in deciding whether to

pursue the death penalty.

Nevertheless, the prosecution does not have carte blanche in

devising non-statutory aggravating factors. At least four

limitations guide the prosecution in exercising its de l egated

authority. First, the statute limits the scope of aggravating

factors to those for which prior notice has been given by the5 Section 3592(c) allows the jury to consider “whe t her any other

aggravating factor for which notice has been given exists.” 18 U.S.C. §

3592(c).

9 prosecution. 5 S ee 18 U.S.C. § 3593(a). Second, the death penalty

jurisprudence devised by the Supreme Court guides the prosecution

in formulating nonstatutory aggravating factors. For example, due

process requires that information submitted as aggravating

genuinely nar row the class of persons eligible for the death

penalty. See Zant v. Stephens, 462 U.S. 862, 877 (1983). Third,

the district court functions as a gatekeeper to limit the admission

of useless and impermissibly prejudicial information. S ee 18

U.S.C. § 3593(c). And fourth, the requirement that the jury find

at least one statutory aggravating factor beyond a reasonable doubt

before it may consider the non-statutory factors further limits the

delegated authority. S ee 18 U.S.C. § 3593(d). The requirement of

at least one statutory aggravatin g factor secures sufficient

Congressional guidance in classifying death-eligible offenders.

Consequently, the se limitations provide the prosecution with an

“intelligible principle” so that an unconstitutional delegation

does not occur.

B.

Second, the d e fendant argues the lack of proportionality

review combined with the prosecutor’s unrestrained authority to

allege non-statutory aggravating factors renders the statute

unconstitutional. Proportionality review examines the

appropriateness of a sentence for a particular crime by comparing10

the gravity of the offense and the severity of the penalty with

sentencing practices in other prosecutions for similar offenses.

See Pulley v. Harris , 465 U.S. 37, 43 (1984). Although the Court

has upheld capital sentencing schemes requiring proportionality

review, the C ourt has never required such review as

constitutionally mandated. See Gregg v. Georgia

, 428 U.S. 153, 204-

05 (1976) (plu rality opinion) (noting the benefits of

proportion ality review as a means of preventing arbitrary death

sentences, but not mandating such review). S ee also Pulley

, 465

U.S. at 44-45 (“that some [capital sentencing] schemes providing

proportionality review are constitutional does not mean that such

review is indispensable”). Thus, the Constitution does not require

comparative proportionality review in every capital case, but only

that the death penalty not be imposed arbitrarily or capriciously.

See Pulley , 465 at 49-50.

The FDPA is not so lacking in other checks on arbitrariness

that it fails to pass constitutio nal muster for lack of

proportionality review. See id . at 880. The FDPA bifurcates the

penalty phase from guilt determination. During the penalty phase,

the jury must first determine whether the defendant intentionally

killed the victim, or intentionally committed or participated in an

act that resulted in the death of the victim. 18 U.S.C. § 3591(a).

Then the jury mus t make a finding, beyond a reasonable doubt, of

the existence of any aggravating factor or factors enumerated in §

3592(c). After finding the existence of at least one statutory

a ggravating factor, the jury may consider the existence of11

nonstatutory aggravating factors for which notice has been given by

the government. See 18 U.S.C. § 3593(d). Individual jurors must

then consider evidence of any mitigating factor that he or she has

found to exist by a preponderance of the evidence. Prior to

imposing a sentence of death, the jurors must conclude that

evidence of the a ggravating factors unanimously found to exist

beyond a reasonable doubt, both statutory and nonstat utory,

outweighs the mitigating factors any individual juror has found to

exist by a preponderance of the evidence. Additionally, the

statute provides for appellate review to dete rmine whether the

death sen tence was imposed under the influence of passion,

prejudice or any other arbitrary factor. 18 U.S.C. § 3595.

Jones argues that the Constitution requires proportionality

review when the capital sentencing procedur e allows the jury to

consider nonstatu tory aggravating factors because of the danger

that the death penalty will be imposed arbitrarily, capriciously,

or freakishly. As long as the statute prevents an arbitrary death

sentence, the inclusion of relevant nonstatutory aggravating

factors at the sentencing stage does not render the death penalty

scheme unconstitutional. S ee Barclay v. Florida

, 463 U.S. 939,957

(1983)(citing Zant v. Stephens

, 462 U.S. 862, 878-89 (1983)). The

FDPA provides sufficient safeguar ds to prevent the arbitrary

imposition of the death penalty. First, the legislature designed

a narrow statute by applying the death penalty to a limited number6 A defendant may be sentenced to death if convicted of the

following offenses: espionage, 18 U.S.C. § 794; treason, 18 U.S.C.

§ 2381; or intentionally murderin g or causing the death of a

p erson during the commission of certain crimes, see, e.g.,

kidnapping with death resulting, 18 U.S.C. § 1201.

12 of criminal offenses. 6 S ee 18 U.S.C. § 3591. Second, the statute

further narrows the class of persons eligible for the death penalty

by requiring a finding of at least one statutory aggr avating

factor. S ee 18 U.S.C. § 3593(d). And third, the statute provides

for appellate review to determine whether the evidence supports the

special finding of an aggravating factor and to ensure that the

death sentence was not imposed under the influence of passion,

prejudice or any other arbitrary factor. S ee 18 U.S.C. § 3595.

Consequently, we hold that the Constitution does not mandate

proportionality review when the capital sentencing scheme permits

the jury to consider nonstatutory aggravating factors as long as

the statute provides for other safeguards against an arbitr ary

imposition of the death penalty.

C.

Third, Jones argues that the relaxed evidentiary standard at

the sentencing hearing combined with the unrestrained use of nonstatutory aggravating factors renders the jury’s recommendation

arbitrary and unreliable. The Federal Death Penalty Act provides

for a relaxed evidentiary standard during the sentencing hearing in

order to give the jury an opp ortunity to hear all relevant and

reliable information, unrestrained by the Federal Rules of

Evidence. The FDPA provides:7 The relevancy standard enunciated in § 3593(c) actually excludes

a greater amount of prejudicial information than the Fed eral Rules of

Evidence because it permits the judge to exclude information where the

“probative v alue is outweighed by the danger of creating unfair prejudice”

rather than “substantially outweighed.” S ee Fed. R. Evid. 403. S ee also

Anti-Drug Abuse Act, 21 U.S.C. § 848(j) (codifying Fed. R. Evid. 403

standard of “substantially outweighs”).

13 The government may present any information relevant to an aggravating factor for which notice ha s been provided

under subsection (a). Information is admissible

regardless of its admissibility under the rules governing

admission of evidence at criminal trials except that

information may be exclude d if its probative value is

out weighed by the danger of creating unfair prejudice,

confusing the issues, or misleadi ng the jury. The

government and the defendant shall be permitted to rebut

any informatio n received at the hearing, and shall be

given fair opportunity to present a rgument as to the

adequacy of the information to establish the existence of

any aggravating or mitigating factor, and as to the

ap propriateness in the case of imposing a sentence of

death.

18 U.S.C. § 3593(c). Therefore, the defendant and the government

may introduce any relevant inform ation during the sentencing

hearing limited by the caveat tha t such information be relevant,

reliable, and its probati ve value must outweigh the danger of

unfair prejudice. 7

Although the Eighth Amendment requires a heightened

reliability standard in capital sentencing procee dings, the jury

must also receive suf ficient information regarding the defendant

and the of fense in order to make an individual sentencing

de termination. See Lowenfield v. Phelps, 484 U.S. 231, 238-239

(1988)(the “qualitative difference between death and other

penalties calls for a greater degree of reliability when the death

sentence is imposed”). The Court has recognized that the defendant

must be given the opportunity to introduce in formation regarding14

mitigating factors, without traditional evidentiary restraints, in

order to provide the jury with the fulle st possible information

about the defendant. See Gregg v. Georg ia , 428 U.S. 153, 204

(1976) (“So long as the evidence introduced and the arguments made

at the presentence hearing do not prejudice a defendant, it is

preferable not to impose restrictions. We think it desirable for

the jury to have as much information before it as possible when it

makes the sentencing decision.”). S ee also Jurek v. Texas

, 428

U.S. 262, 276 (1976) (stating that it is “essential

. . . that the

jury have before it a ll possible relevant information about the

individual defendant whose fate it must determine”). Although the

sentencing hearing will not be governed by traditional evidentiary

restraints, the district court will prevent the evidentiary freefor-all prophesied by Jones by excluding u n fairly prejudicial

information under the standard enunciated in § 3593(c).

Consequently, the relaxed evidentiary standard does not impair the

reliability or relevance of informati o n at capital sentencing

he arings, but helps to accomplish the individualized sentencing

required by the constitution. S ee United States v. Nguyen

, 928

F.Supp. 1525, 1546-47 (D.Kan. 1996).

D.

Finally, the defendant argue s that the death penalty is

unconstitutional under all circumstances. We are bound by Supreme

Court precedent which forecloses any argument that the death

penalty violates the Constitution under all circumstance. S ee8 The defense proposed two jury instructions regarding the unanimity

requiremen t. Requested instruction number five, entitled “Unanimity

Required Only for Death Sentence,” provided in relevant part as follows:

15 McCleskey v. Kemp , 481 U.S. 279, 300-03 (1987); Gregg v. Georgia

,

428 U.S. 153 (1976).

III. Jury Instructions

A.

The defendant claims that the district court erred by failing

to give the defendant’s requested instructions. We review the

district court’s refusal to give a requested instruction for abuse

of discretion. See United States v. Townsend

, 31 F.3d 262, 270 (5th

Cir. 1994). A refusal to give a requested instruction is

reversible error only if the proposed instruction was (1)

subst antively correct, (2) not substantively covered in the jury

charge, and (3) concerned an important issue in the trial, such

that failure to give the requested instruction seriously impaired

the presentation of a defense. Id.

The actual jury instructions given by the district court

repeated the sentencing options available under the FDPA. The

instructions traced 18 U.S.C. § 3593(e) by informing the jury that

it could recommend death, life without the possibility of release,

or some lesser sentence. The defendant, however, contends that the

jury should have been instructed that a failure to reach a

unanimous verdict recommending the death pena lty would result in

the court automatically imposing a sentence of life without the

possibility of release. 8 The defendant’s proposed instructionsIn the event, after due deliberation and reflection, the jury

is unable to agree on a unanimous decision as to the sentence

to be imposed, you should so adv ise me and I will impose a

sentence of life imprisonment without possibility of release.

The defense’s requested jury instruction number four provided in relevant

part as follows:

If, after fair and impartial consideration of all the evidence

in this case, any one of you is not persuaded that justice

demands Mr. Jones’s execution, then the jury must return a

decision against capital punishment and must fix Mr. Jones’s

punish ment at life in prison without the possibility of release.

16 were not substantively correct because the proposed instr uctions

informed the jury that the failure to return a unanimous verdict

would result in an automatic senten ce of life without the

possibility of release. Such is not the case under § 3593, which

requires unanimity for every sentence rendered by the jury

regardless of whether the verdict is death, life with out the

possibility of release, or, if possible under the substantive

criminal statute, any other lesser sentence. Life without the

possibility of release was not the default penalty in the event of

non-unanimity. On the contrary, the failure to reach a unanimous

decision regarding sentencing would result in a hung jury with no

verdict rendered. As such, a second sentencing hearing would have

to be held in front of a second jury impa neled for that purpose.

See 18 U.S.C. § 3593(b)(2)(C). Therefore, the district court did

not err by refusing to give the defendant’s requested instructions

because such instructions were not substantively correct.17 B.

Additionally, the defendant contends that the district court

committed reversible error with the instructions actually given for

the following two reasons: First, Jones argues that the

instructions actually given by the district court caused the jurors

to recommend the death penalty under the false impression that the

failure to reach a unanimous verdict would automatically result in

the imposition of some lesser sentence. Second, Jones argues that

the instructions incorrectly informed the jury they had the option

of recommending some lesser sentence, in addition to the death

penalty or life imprisonment options. Thus, the defendant claims

that the instruction resulted in an arbitrary and cap ricious

imposition of the death penalty in violation of the Eighth

Amendment and Due Process.

We review all alleged errors in jury instructions for abuse of

discretion. United States v. Townsend , 31 F.3d 262, 270 (5th Cir.

1994). A conviction will not be reversed unless the jury

instructions, when viewed in their entirety, failed to correctly

state the law. S ee United States v. Flores

, 63 F.3d 1342, 1374(5th

Cir. 1995)

. Thus, even if a portion of the jury instructions are

not technically perfect, the district court’s instructions will be

affirmed on appeal if the charge in its entirety presents the jury

with a reasonably accurate picture of the law. See id. (citing

United States v. Branch

, 46 F.3d 440, 442 n. 2 (5th C ir. 1995)).

The district court will be reversed, however, if the interpretation

urged by the appellant is one that a “reasonable jury could have18

drawn from the instructions given by the trial judge and from the

verdict form[s] employed in this case.” Id. at 175 (citing Mills v.

Maryland , 486 U.S. 367, 375-76 (1988)).

If the defendant did not object below, we review for plain

error. See F lores , 63 F.3d at 1374 (citing U nited States v.

Willis , 38 F.3d 170, 179 (5th Cir. 1994)). Under the plain error

standard, there must be an error tha t is plain and that affects

substantial rights. See Fed. R. Crim. P. 52(b) . See also United

States v. Olano

, 507 U.S. 725, 731 (1993)(explaining plain error

standard). Thus, an appellate court may correct a plain error only

i f it meets the following criteria: (1) there must be an e rror,

which is defined as a deviation from a legal rule in the absence of

a valid waiver; (2) the error must be clear or obvious error under

current law; and (3) the error must have been prejudicial or

affected the outcome of the district court proceedings. S ee Olano,

507 U.S. at 732-35; United States v. Dupre

, 117 F.3d 810, 816 (5th

Cir. 1997); United States v. Calverley

, 37 F.3d 160, 162-64 (5th

Cir. 1994)(en banc). Additionally, an appellate court has

discretion in deciding whether to correct a plain error. S ee

Olano, 507 U.S. at 735-36

. Such discretion should not be exercised

unless th e error “seriously affect[s] the fairness, integrity or

publi c reputation of judicial proceedings.” I d. (citing United

States v. Young , 470 U.S. 1, 15 (1985).

The district court instructed the jury as follows:

After you have completed your findings as to the

existence or absence of any aggravating or mitigating

factors, you will then engage in a weighing process. In

determining whether a sentence of death is appropriate,19

you must weigh any aggravating factors that you

unanimously find to exist--whether statutory or nonstatutory--against any mitigating factors that any of

you find to exist. You shall consider whether all the

aggravating factors found to exist sufficiently outweigh

all the mitigating factor or factors found to exist to

justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or

factors alone are sufficient to justify a sentence of

death. Based upon this consideration, you the jury, by

unanimous vote, shall recommend whether the defendant

should be sentenc ed to death, sentenced to life

imprisonment without the possibility of release, or

sentenced to some other lesser sentence

.

If you unanimously conclude that the aggravating

factors found to exist sufficiently outweigh any mitigating fa ctor or factors found to exist, or in the

absence of any mitigating factors, the aggravating

factors are themselves sufficient to justify a sentence

of death, you may recommend a sentence of death. Keep in

mind, however , that regardless of your findings with

respect to aggravating and mitigating factors, you are never required to recommend a death sentence.

If you recommend the imposition of a death sentence,

the court is required to impose that sentence. If you

recommend a sentence of life without the possibility of

release, the court is required to impose that sentence.

If you recommend that some other lesser sentence be

imposed, the court is required to impose a sentence that

is authorized by the law. In deciding what

recommendation to make, you are not to be concerned with

the question of what sentence the defendant might receive

in the event you determine not to r ecommend a death

sentence or a sentence of life without the possibility of

release. That is a matter for the court to decide in the

event you conclude that a senten ce of death or life

without the possibility of release should not be

recommended.

. . . .

In order to bring back a verdict recommend ing the

punishment of death or life without the possibility of

release, all twelve of you must unanimously vote in favor

of such specific penalty.20 i.

We must first decide whether the inst ructions given by the

district court could have led a reasonable jury to believe that the

court would automatically impose some lesser sentence if the jury

failed to reach a unanimous verdict, as alleged by the defendant.

As we have previously stated, § 3593(e) requires the jury to return

a unanimous verdict regardless of whether the jury recommends

death, life without the possibility of release, or s ome other

lesser sentence. In arguing that the jury instructions and verdict

forms caused the jury confusion, the defendant points to the

following: (1) the district court did not repeat the unanimity

requirement each time the court mentioned the lesser sentence

option in the instruction; (2) decision forms B and C, which

recommended t he death sentence and life imprisonment without the

possibility of release, required the signature of all twelve

jurors, while decision form D which recommended a lesser sentence

only required the signature of the foreman; (3) the court erred by

declining to instruct the jury on the e ffect of the failure to

arrive at a unanimous decision; a nd (4) after the sentencing

hearing, two jurors gave statements to defense attorneys attesting

to the confusion caused by the jury instructions.

Regarding the district court’s failure to repeat the unanimity

requirement each time the court mentioned the lesser sentence

option, the instructions could not have led a reasonable jury to

conclude that non-unanimity would result in the imposition of a

lesser sentence. S ee Flores, 63 F.3d at 1375. Reading the21

instructions in their entirety, the court clearly stated that the

jury must reach a unanimous v erdict. At no time were the jurors

ever informed that the failure to reach a unanimous verdict would

result in the imposition of a term less than life imprisonment. As

such, we hold that the district court did not abuse its discretion

by failing to repeat the unanimity requirement.

Additionally, the defendant argues that the disparity of the

verdict fo rms caused the jury to assume that nonunanimity would

result in a lesser sentence because form D only required the

signature of the jury foreperson, when forms B and C required all

twelve juror signatures. The defendant did not object to the

format of the verdict forms; therefore, we review for plain error.

See Flores , 63 F.3d at 1374. Although the verdict forms standing

alone could have persuaded a jury to conclude that unanimity was

not required for the lesser sentence option, any confusion created

by the verdict forms was clarified when considered in light of the

entire jury instruction. Consequently, we hold that no error

occurred.

Next, Jones argues that the failure to instruct the jury of

the consequences of not reaching a unanimous verdict resulted in a

violation of the Eight Amendment proscription against cruel,

unusual, and excessive punishment . Jones requested, but was

denied, an instruction on the failure to arrive at a unanimous

decision. Jones points to S tate v. Williams, 392 So. 2d 619 (La.

1980), where the Louisiana Supreme Court held that juries must be

informed of the consequences of failing to achieve a unanimous9 Juror Christie Beauregard called the office of the Federal Public

Defender and spoke with attorney Carlton McLarty and investigator Daniel

Salazar. Mr. Salazar executed an affidavit detailing the conversation he

had with Ms. Beauregard in which she stated that she was pressured into

changing her vote by other jurors who believed that the court would impose

a lesser sentence if the jury did not reach a unanimous verdict.

Juror Cassandra Hastings contacted defense attorney Daniel Hurley.

22 verdict. The defendant does not persuade us by invoking Williams

because the Louisiana death penalty act, under which Williams was

sentenced, expressly provided that life imprisonment resulted when

the jury could not unanimously agree on the death penalty. Unlike

the Louisiana statute, the Federal Death Penalty Act requires the

jury to achieve unanimity or no verdict results. See 18 U.S.C. §

3593(e). Although the use of instructions to inform the jury of

the consequences of a hung jury have been affirmed, federal courts

have never been affirmatively required to give such instructions.

See Allen v. United States, 164 U.S. 492, 501-02 (1896) (upholding

the use of supplemental instructions to inform the jury of the

effect of a hung jury); United States v. Sutherland

, 463 F.2d 641,

648 (5th Cir. 1972)(allowing use of Allen charge). Consequently,

we hold that no constitutional violation oc curs when a district

court refuses to inform the jury of the consequences of failing to

reach a unanimous verdict.

Finally, t he defendant attempts to prove the instructions

caused jury c onfusion through the use of juror affidavits.

Following the sentencing hearing, two jurors initiated

communications with defense attorneys in which the jurors referred

to alleged confusion caused by the instructions regarding the

una nimity requirement. 9 Jones cannot utilize juror affidavits toMs. Hastings executed an affidavit stating that she changed her vote to

death under the mistaken belief that if the jury could not reach a

unanimous decision, then the court would impose a lesser sentence.

23 undermine the jury verdict. See Fed. R. Evid. 606(b); United States

v. Ruggiero

, 56 F.3d 647, 652 (5th Cir. 1995). Federal Rule of

Evidence 606(b) bars juror testimony regarding at lea st four

topics: (1) the method or arguments o f the jury’s deliberations,

(2) the effect of any particular thing upon an outcome in the

deliberations, (3) the mindset or emotions of any juror during

deliberations, an d (4) the testifying juror’s own mental process

during the deliberations. See Ruggiero

, 56 F.3d at 652. Under the

rule, a juror may only testify to extraneous forces which influence

jury deliberations. See Tanner v. United States, 483 U.S. 107, 121

(1987)(juror use of alcohol and drugs not extraneous influence on

jury deliberations). Allegations of jury confusion caused by jury

instructions would not be an outside influence about which a juror

could competently testify. S ee Peveto v. Sears Roebuck & Co.

, 807

F.2d 486, 489 (5th Cir. 1987). An “outside influence” refers to a

factor originating ou tside of normal courtroom proceedings which

influences ju ry deliberations, such as a statement made by a

bailiff to the jury or a threat against a juror. I d. (citing Fed.

R. Evid. 606(b) Advisory Committee Note and Judiciary Committee

Note). Rule 606(b) has consistently been used to bar testimony

when the jury misunderstood i nstructions. S ee, e.g., Robles v.

Exxon Corp., 862 F.2d 12 01, 1204 (5th Cir. 1989) (holding that

juror testimony regarding misunderstanding of instructions

prohibited by rule 606(b)). T he defendant argues that the24

inapplicability of the Federal Rules of Evidence during sentencing

hearings precludes the use of Rule 606(b) to bar juror affidavits

impeaching the sentence. S ee 18 U.S.C. § 3593(c). The reasons for

not allowing jurors to undermine verdicts in jury trials, however,

apply with equal force to sentencing hearings. S ee Silagy v.

Peters

, 905 F.2d 986, 1009 (7th Cir. 1990) (holding that a juror's

statements could not be used in a habeas corpus proceeding to

impeach the jury's sentencing d etermination). Noting that the

Eighth Amendment requires a “greater degree of reliability when the

death sentence is imposed,” we are convinced that Rule 606(b) does

not harm but helps guarantee the reliability of jury determinations

in death penalty cases. S ee Lockett v. Ohio

, 438 U.S. 586, 604

(1978) (stating that the qualitativ e difference with the death

penalty requires a greater degree of reliability).

Jury deliberations entail delicate negotiations where majority

jurors try to sway dissenting jurors in order to reach certain

verdicts or sentences. An individual juror no longer exposed to

the dynamic offered by jury d eliberations often may question his

v ote once the jury has been dismissed. Such self-doubt would be

expected once extrinsic influences bear down on the former jurors,

especially in decisions of life and death. When polled, each juror

affirmatively indicated that he had voted for the death penalty.

We will not allow a juror to change his mind after the jury has

rendered a verdict. In this situation, the outcome could just as

easily have turned out the other way with the jurors not supporting

the death sentence convincing the death-prone jurors to impose life25

without the possibility of release. If the jury truly feared that

the district court would impose some lesser sentence in the absence

of a unanimous recommendation, then the jury had the option of

imposing life without the possibility of release. Furthermore, the

jury neve r sought a clarifying instruction to remedy the alleged

confusion. Consequently, the affidavits do not convince us that

the instructions given by the distri ct court could lead a

reasonable jury to believe that the failure to reach a unanimous

decision would result in the imposition of a lesser sentence.

ii.

Additionally, the defendant contends that the district court

erred because the instructions misi nformed the jury that three

sentencing options were available, when in fact only two sentencing

options existed under the substantive criminal statute--death and

life imprisonment. See 18 U.S.C. § 1201. When a statute allows

the jury to exercise sentencing powers, due process requires that

a jury must be informed of all available sentencing options. See

Hicks v. Oklahoma

, 447 U.S. 343, 346 (1980). At Jones’ sentencing

hearing the district cour t informed the jury of the three

sentencing options available under § 3593 of the federal death

penalty provisions rather than limiting the instructions to the two

sentencing options available under § 1201, the substantive criminal

statute for which the defendant was convicted. The defendant did

not object to the inclusion of the “lesser sentence” option below;1 0 At the charge conference, and in written objections, the defendant

objected to the court’s refusal to include the language “rather than a

sentence o f life imprisonment without the possibility of release or a

lesser sentence” when ever the instructions referred to the jury’s

responsibility to determine whether the defendant should be sentenced to

death. If the district court had actually used the defendant’s requested

instruction, then we would review under the invited error doctrine. S ee

United States v. Baytank (Houston ), Inc. , 934 F.2d 599, 606 (5th Cir.

1991)

. The district court, however, did not use the defendant’s requested

language. Furthermore, the defendant did not object to other references

in the instructions to the “lesser sentence” option. Consequently, we

review for plain error.

26 the refore, we review for plain error. 1 0 S ee Flores

, 63 F.3d at

1374.

We must first determine whether the district court committed

error by instructing the jury of the sentencing options available

under § 3593, rather than limiting the instructions to the two

sentencing options which existed under the substantive criminal

statute. S ee Olano, 507 U.S. at 732-33. I f any error occurred

regarding the available sentencing options, the error was caused by

the disparate sentencing options provided for in the Federal

Kidnapping statute, 18 U.S.C. § 1201, and the Federal Death Penalty

Act, 18 U.S.C. § 3593(e)(3). Under § 1201, a defendant convicted

of kidnapping with the death of the victim resulting shall be

punished by death or life imprisonm ent. S ee 18 U.S.C. § 1201.

Under the federal death penalty provisions, however, the jury may

recommend that the court sentence the defendant to death, to life

imprisonment without the possibility of release, or some other

lesser sentence, upon the unanimous recommendation of the jury. See

18 U.S.C. § 3593(e).

The defendant argues that the language of the kidnapping27

statute clearly limits the possible sentences to death or life

imprisonment. Moreover, the defendant argues that the term “life

imprisonment” in the kidnapping statute actually means life without

the possibility of release because parole no longer exists in the

federal system. Thus, the jury actually had only two sentencing

options--death or life without the possibility of release.

Conversely, the government argues that the jury in fact had three

options be cause Congress distinguishes between “life” and “life

without the possibility of release.” The government raises § 3594

as an example of the qualitative difference between life and life

without the possibility of release. Section 3594 states that if

the jury recommends a lesser sentence, then “the court shall impose

any lesser sentence that is autho rized by law . . . . if the

maximum termof imprisonment is life imprisonment, the court may

impose a sentence of life imprisonment without the possibility of

release.” 18 U.S.C. § 3594. Thus, the government argues that the

jury in fact had the option of recommending death, life without the

possibility of release, or a lesser sentence, but the district

court was obligated to impose life without the possibi lity of

release as the only “lesser sentence” authorized by law.

In deciding whether the FDPA or § 1201 provides the

appropriate sentencing options, we must first determine what effect

the death penalty scheme has on the substantive criminal law. The

FDPA acts like a sentence enhancement provision in that it does not

add to or otherwise affect the pe nalties available under the

substantive criminal statutes. S ee United Sta tes v. Branch , 911 1 The legislative history also supports a holding that § 3593 was

intended to create procedures for imposing the death penalty rather than

cr eate additional substantive crimes. S ee House Report No. 103-467, 103rd

28 F.3d 699, 738-40 (5th Cir. 1996)(holding that 18 U.S.C. § 924(c)

does not create separate offense). Although the FDPA does not

function exactly as a sentence enhancement provision, we will

utilize the sentence enhancement analysis in order to determine the

effect of the death penalty provisions on the substantive criminal

law. In determining whether a statute creates a separate offense

or is merely a sentence enhanceme nt provision, the court has

suggested the following four factors: (1) whether the statute

predicates punishment upo n conviction under another section; (2)

whether the statute multiplies the penalty received under another

section; (3) whether the statute provides guidelines for the

sentencing hearing; and (4) whether the statute is titled as a

sentencing provision. Id. at 738 (citing United States v. Jackson

,

891 F.2d 1151, 1152 (5th Cir. 1989)). These factors complement

traditional tools of statutory interpretation, namely, the text and

legislative history. Id. at 738. As with the sentence enhancement

provisions applicable to the use of a firearm during the commission

of a drug crime, the FDPA does not cr eate a separate and

i ndependent offense, but depends upon a conviction under another

section. S ee Branch, 91 F.3d at 738. Additionally, the death

penalty statute merely provides guidelines and procedures for the

sentencing hearing. Nothing in the text or legislative history

indicates that Congress intended to create new, separate offenses

under the death penalty scheme. 11Cong., 2d Sess. (1994).

29

Although all three sentencing options were available to the

jury under § 3593, the defendant could only receive death or life

imprisonment u nder § 1201, the substantive criminal statute for

which Jones was convicted. Contrary to the government’s assertion,

no meaningful distinction exists between “life” and “life without

the possibility of release.” Thus, had the jury recommended some

lesser sentence, the court would have been obligated to impose life

without the possibility of release as the only author ized lesser

sentence . Because the substantive criminal statute takes

precedence over the death penalty sentencing provisions, the

district court should have instru cted the jury of the sentencing

options available under § 1201. Consequently, the district court

committed error by informing the jury of the lesser sentence option

available under § 3593.

After determining that error occurred, we must next determine

whether the error was clear or obvious error under current law.

See Olano

, 507 U.S. at 734; Dupre

, 117 F.3d at 817. P rior to this

appeal, the death penalty sentencing provisions under which Jones

was sentenced had never been reviewed on appeal. No clearly

established law answered the question of whether § 3593 or the

substantive criminal statute under which the defendant is convicted

provides the correct sentencing options. The error was not so

obvious, clear, readily apparent, or conspicuous that the judge was

derelict by not recognizing the error. Consequently, we hold that30

instructing the jury as to the sentencing options available under

§ 3593 was not plain error.

IV. Statutory Aggravating Factors

The def endant argues that the district court committed

reversible error by submitting statutory aggravating factors to the

jury which failed genuinely to narrow or channel the jury’s

discretion. The government submitted four statutory aggravating

factors to the jury during the penalty phase of the trial. The

jury made unanimous findings regarding two statutory aggravat ing

factors.

A.

Jones argues that the inclusi o n of statutory aggravating

factor 2(A), which merely repeated the elements of the crime, did

nothing to narrow the jury’s discretion, and thus, vio lated the

Eighth Amendment. Statutory aggravating factor 2(A), based on §

3592(c)(1), provides: “The defendant Louis Jones caused the death

of Tracie Joy McBride, or injury resulting in the death of Tracie

Joy McBride, which occurred during the commission of the offense of

Kidnapping.”

As stated previously, a capital s entencing scheme must

genuinely nar row the class of persons eligible for the death

penalty. Zant v. Stephens , 462 U.S. 862, 877 (1983). The use of

aggravati ng factors helps to narrow the class of death-eligible

persons and thereby channels the jury’s discretion. S ee Lowenfield31

v. Phelps , 484 U.S. 231, 244 (1987). An aggravating factor which

merely repeats an element of the crime passes constitutional muster

as long as it narrows the jury’s discretion. See id. at 246. In

Lowenfield

, the Co u rt held that the constitutionally required

narrowing function in a capital punishment regi me could be

performed in either of two ways: “The legislature may itself narrow

the definition of capital offenses,

. . . so that the jury finding

of guilt responds to this concern, or the legislature may more

broadly define capital offenses and provide for narrowing by jury

findings of aggravating circumsta nces at the penalty phase.”

Lowenfield

, 484 U.S. at 246. Thus, the requisite narrowing can be

done at either the guilt or penalty phase of trial.

The FDPA channels the jury’s discre tion during the penalty

phase to ensure that the death penalty is not arbitrarily imposed.

The federal death penalty regime establishes the class of persons

eligible for the deat h penalty through its definition of capital

offenses, to include only treason, espionage, and certain

intentional killings. S ee 18 U.S.C. § 3591. Although the federal

death penalty regime defines capi tal offenses, the narrowing

function does not occur until the penalty phase of the trial. In

narrowing the jury’s discretion in federal homicide prosecutions,

the FDPA requires the jury first to find that the defendant had the

requisite intent. 18 U.S.C. § 3591. The FDPA further narrows the

jury’s discretion with the requirement the jury find at least one

statutory aggravating factor prio r to recommending the death

penalty. See 18 U.S.C. § 3592(c). Thus, the FDPA narrows the32

jury’s discretion through the findings of intent and aggravating

factors. Repetition of the elements of the crime as an aggravating

factor helps to channel the jury’s discretion by allowing the jury

to consider the circumstances of the crime when deciding the

propriety of the death se ntence. The jury may constitutionally

consider the circumstances of the crime when deciding whether to

impose the death penalty. S ee Tuilaepa v. California

, 512 U.S.

967, 976 (1994).

The narrowing fun ction was not performed at the guilt phase

when the jury convicted Jones of kidnapping with death resulting,

but at the penalty phase when the jury found Jones intentionally

killed McBride and two st a tutory aggravating factors existed.

Although the jury had already found the defendant guilty of

kidnapping with death resulting at the guilt phase of the trial,

the jury did not consider whether Jones caused the death of the

victim during the commission of the crime of kidnapping until the

penalty phase of the trial. The jury could have convicted Jones of

kidnapping with death resulting in the guilt phase of the trial and

still answered “no” to statutory aggrav ating factor 2(A) in the

penalty phase if the jury found that Jones did not cause the death

of the victim during the commission of the crime of kidnapping.

The submission of the elements of the crime as an aggravating

factor merely allowed the jury to consider the circumstances of the

crime when deciding whether to impose the death penalty. Thus, the

kidnapping was weighed only once by the jury during the penalty

phase of the trial. Consequently, the repetition of the elements33

of the crime as an aggravating factor did not contradict the

constitutional requirement that aggravating factors genuinely

narrow the jury’s discretion.

B.

Jones conten ds that the district court committed reversible

error by allowing statutory aggravat ing factor 2(C). Statutory

factor 2(C), based on § 3592(c)(6), provides: “The defendant Louis

Jones committed the offen se in an especially heinous, cruel, and

depraved manner in th at it involved torture or serious physical

abuse to Tracie Joy McBride.” Jones argues that the language used

in aggravating factor 2(C) was unconstitutionally vague, resulting

in the arbitrary imposition of the death penalty in violation of

the Eighth Am endment. As the Supreme Court stated in M aynard v.

Cartwright :

Claims of vagueness directed at aggravating circumstances

defined in capital punishment statutes are analyzed under

the Eighth Amendment and characteristically assert that

the challenged provision fails adequately to inform

juries what they must find to impose the death penalty

and as a result leaves them and appellate courts with the

kind of open-ended discretion which was held invalid in

Furman v. Georgia.

May nard v. Cartwright , 486 U.S. 356, 361-62 (1988) (citation

omitted). Due to the difficulty in precisely defining aggravating

factors, however, “our vagueness review is quite defere ntial.”

United States v. Flores

, 63 F.3d 1342, 1373 (5th Cir. 1995)

(quoting Tuilaepa v. California

, 512 U.S. 967, 975 (1994)).

Consequently, an aggravating factor will be upheld as long as it

has some “common-sense core meaning

. . . that criminal juries1 2 The district court gave the following limiting instruction to

explain statutory aggravating factor 2(C):

To establish that the defendant killed the vic tim in an

especially heinous, cruel, or deprave d manner, the government must

prove that the killing involved either torture or serious physical

abuse to the victim. The terms “heinous, cruel, or depraved” are

stated in the disjunctive: any one of them individually may

constitute an aggravating circumstance warranting imposition of the

death penalty.

“Heinous” means extremely wicked or shockingly evil, where the

killing was accompani ed by such additional acts of torture or

serious physical abuse of the victim as set a part from other

killings.

“Cruel” means that the defendant intended to inflict a high

degree of pain by torturing the victim in addition to killing the

victim.

“Depraved” means that the defendant relished the killing or

showed indifference to the suffering of the victim, as evidenced

by torture or serious physical abuse of the victim.

“Torture” includes mental a s well as physical abuse of the

victim. In either case, the victim must have been conscious of the

abuse at the time it was inflicted; and the defendant must have

specifically intended to inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.

“Serious physical abuse” means a significant or considerable

amount of injury or damage to the victim’s body which involves a

substantial risk of death, unconsciousn ess, extreme physical pain,

protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental

faculty. Serious physical abuse--unlike torture--may be inflicted

either before or after death and does not require that the victim

34 should be capable of understanding.” Id.

The language “especially heinous, cruel, and depraved” without

a limiting instruction woul d be unconstitutionally vague. S ee

Maynard v. Cartwright

, 486 U.S. at 364; King v. Puc kett , 1 F.3d

280, 284 (5th Cir. 1993). Any vagueness in the language, however,

is cured by the limitation in the statute that the offense involve

torture or serious physical abuse. S ee Walton v. Arizona

, 497 U.S.

639, 654-55 (1990) (citing Maynard v. Cartwright

, 486 U.S. at 364-

65). Moreover, the district court defined each term in aggravating

factor 2(C) which resolved any possible vagueness or ambiguity of

the language. 12 The statutory limitation, along with the districtbe conscious of the abuse at the time it was inflicted. However,

the defendant must have specifically intended the abuse apart from

the killing.

Pertinent factors in determining whether a killing was

especially heinous, cruel, or depraved include: infliction of

gratuitous vio lence upon the victim above and beyond that necessary

to commit the killing; needless mutilation of the victim’s body;

senselessness of the killing; and helplessness of the victim.

The word “especially” should be given its ordinary, everyday

meaning of being highly or unusually great, d istinctive, peculiar,

particular, or significant.

35 cou rt’s instruction, gave the jury an aggravating factor with a

“common-sense core meaning” that they were c apable of

understanding. Thus, the language of statutory aggravating factor

2(C) was not unconstitutionally vague and did not lead to the

arbitrary imposition of the death penalty in violation of the

Eighth Amendment.

V. Non-statutory Aggravating Factors

Jones argues that the death sentence must be reversed because

the nonstatutory aggravating factors considered by the jury were

unconstitutionally vague, overbroad, and duplicative. After giving

the appropriate notice required by § 3593(a), the gov ernment

submitted the following nonstatutory aggravating factors:

3(A). The defendant constitutes a future danger to the

lives and safety of other persons as evidenced by

specific acts of violence by the defendant Louis Jones.

3(B). Tracie Joy McBride’s young age, her slight stature,

her backgro und, and her unfamiliarity with San Angelo,

Texas.

3(C). Tracie Joy McBride’s personal characteristics and

the effect of the instant offense on Tracie Joy McBride’s

family constitute an aggravating factor of the offense.

The jury unanimously found nonstatutory aggravating factor 3(B) and36

3(C) to exist beyond a reasonable doubt.

The government contends t hat factors 3(B) and 3(C) apply to

entirely different areas of aggravation--3(B) applies to McBride’s

vulnerability, while 3(C) applies to “victim impact” or the impact

of the murder on McBride’s family. Although the use of

vulnerability and victim impact evidence has been upheld on appeal,

the language used in 3(B) and 3(C) does not accomplish this goal.

See Payne v. Tennessee , 501 U.S. 808, 827 (1991) (victim impact);

Tuilaepa

, 512 U.S. at 977 (vulnerability through age of victim).

The plain meaning of the term “personal characteristics,” used in

3(C), necessarily includes “young age, slight stature, background,

and unfamiliarity,” which the jury was asked to consider in 3(B).

Thus, nonstatutory aggravating factors 3( B) and 3(C) are

duplicative. As the Tenth Circuit recently stated, “Such double

counting of aggravating factors, especially under a w eighing

scheme, has a tendency to skew the weighing process and creates the

risk that the death sentence will be imposed arbitrarily and thus,

unconstitutionally.” U nited States v. McCullah

, 76 F.3d 1087, 1111

(10th Cir. 1996). We agree. Such double-counting of aggravating

factors creates the risk of an arbitr ary death sentence. If the

jury has been asked to weigh the same aggravating factor twice, the

appellate court cannot assume that “it would have made no

difference if the thumb had been removed from death’s side of the

scale.” Stringer v. Black

, 503 U.S. 222, 232 (1992). Consequently,

the district court erred by submitting the duplicative aggravating

factors to the jury.37

Additionally, the defendant contends that the nonstatutory

aggravating factors are vague and overbroad, in violation of the

Eighth Amendment. S ee Maynard v. Cartwright

, 486 U.S. 356, 361-62

(1988). We agree. Non-statutory aggravating factors 3(B) and

3(C) fail to guide the jury’s discretion, or distinguish this

murder from any o ther murder. We fail to see how the victim’s

“background,” her “personal characteristics,” or her “unfamiliarity

with San Angelo” made the defendant more death-worthy than other

murderers. Furthermore, the district court offered no additional

instructions to clari fy the meaning of the non-statutory

aggravating factors. The use of the terms “background,” “personal

characteristics,” and “unfamiliarity” without further definition or

instruction left the jury with “the kind of open-ended discretion

which was held invalid in Furman v. Georgia. ” See Maynard

, 486 U.S.

at 361-62 (1988). Consequently, aggravating factors 3(B) and 3(C)

were invalid.

After determining that the non-statutory aggravating factors

submitted to the jury were invalid, we must next determine whether

the death sentence may stand. The Federal Death Penalty Act sets

up a weighing scheme in which the jury is asked to weigh any

aggravating factors found to exist beyond a reasonabl e doubt

against any mitigating factors found to exist by a preponderance of

the evidence. If the aggravating factors outweigh the mitigating

evidence, then the jury may recommend the death penalty. In a

weighing scheme, aggravating factors lie at the very heart of the1 3 In non-weighing statutes, the jury must find the existence of one

aggravating factor before imp osing the death penalty, but such factors play

no additional role in the jury’s determination of whether a defendant

eligible for the death penalty should receive it under the circumstances

of the case. S ee St ringer v. Black , 503 U.S. 222, 229-30 (1992)

(discussing the Georgia non-weighing death penalty statute at issue in Zant

v. Stephens , 462 U.S. 862 (1983)).

38 jury’s ultimate decision to impose a death sentence. 1 3 S ee

Stringer, 503 U.S. at 230

. Under a weighing statute, affirming a

d eath sentence when an aggravating factor has been found invalid

requires the appel late court to scrutinize the role which the

invalid aggravating factor played in the sentencing process in

order to comp ly with the Eighth Amendment requirement of

individualized sentencing determinations in death penalty cases.

See Stringer

, 503 U.S. at 230. A rule automatically affirming a

death sentence in a weighing scheme as long as one aggravating

factor remained would violate the requirement of individualized

sentencing. See Clemons v. Mississippi

, 494 U.S. 738, 752

(1990)(citing Lockett v. Ohio , 438 U.S. 586 (1978) and Eddings v.

Oklahoma

, 455 U.S. 104 (1982)). When the jury considers an invalid

aggravating factor at the sentencing hearing, the appellate court

mus t strike the invalid factor and then either reweigh the

remaining aggravating factors against the mitigating evidence or

apply harmless error review. See Clemons v. Mississippi

, 494 U.S.

738, 741 (1990); Wiley v. Puckett

, 969 F.2d 86, 92 (5th Cir. 1992).

If the appell ate court chooses to reweigh the remaining

aggravating factors against the mitigating evidence, the court must

determine what the jury would have done absent the invalid

aggravating factor. See Stringer, 503 U.S. at 230. On the other39

hand, if the appellate court choo ses to apply harmless error

review, then the harmless error analysis can be applied in the

following two ways: First, the appellate court may inquire into

whether, beyond a reasonable doubt, the death sentence would have

been imposed had the invalid aggravating factor been properly

defined in the jury instructions. See Clemons, 494 U.S. at 754;

Wiley

, 969 F.2d at 92-93. Second, the appellate court may inquire

into whether, beyond a reasonable doubt, the death sentence would

have been imposed absent the i nvalid aggravating factor. S ee

Clemons

, 494 U.S. at 753; Wiley

, 969 F.2d at 91. If the government

establishes that an error regarding aggravating factors is harmless

beyond a reasonable doubt, then the appellate court may not reverse

or vacate the death sentence, unless of course such error rises to

the level of a denial of constitutional rights. S ee 18 U.S.C. §

3595.

At this point, the appellate court may either reweigh the

aggravating and mitigating evidence or apply one of the methods of

harmless error review. S ee Wiley

, 969 F.2d at 92. It matters not

which standard of review an appel late court chooses to apply

because all three standards lead to the same conclusi on. If a

death sentence would be overturned under harmless error review,

then the death sentence would be overturned after reweighing, and

vice versa. The government asserts that we must apply the harmless

error standard. Although the statute provides that an appellate

court “shall not reverse or vacate a sentence of death on account

of any error which can be harmless,” 18 U.S.C. § 3595(c), the40

statute does not establish a standard of review. Therefore, an

appellate court can choose to apply any of the available forms of

review as long as the d efendant receives an individual

determination of the propriety of his death sentence.

In affi rming the defendant’s death sentence, we apply the

second method of harmless error review. In applying the second

method of harmles s error review, an appellate court must inquire

into whether, beyond a reasonable doubt, the death sentence would

have been imposed absent the invalid aggravating factors. S ee

Clemons

, 494 U.S. at 753; Wiley

, 969 F.2d at 91. This second form

of harmless error review requires the appellate court to redact the

invalid aggravating factors and “reconsider the entire mix of

aggravating and mitigating circumstances presented to the jury.”

See Wiley, 969 F.2d at 93.

After removing the offensive non-statutory aggravating factors

from the balance, we are left with two statutory aggravating

factors and eleven mitigatin g factors to consider when deciding

whether, beyond a reasonable doubt, the death sentence would have

been imposed h ad the invalid aggravating factors never been

submitted to the jury. At the sentencing hearing, the government

placed great emphasis on the two statutory aggravating factors

found unanimously by the jury--Jones caused the death of the victim

during the commission of the offense of kidnapping; and the offense

was committed in an especially heinous, cruel, and depraved manner

in that it involved torture or serious physical abuse of the

victim. Under part two of the Special Findings Form, if the jury41

had failed to find that the government proved at least one of the

statutory aggravating factors beyond a reasonable doubt, then the

deliberations would have ceased leaving the jury powerless to

recommend the death penalty. Therefore, the ability of the jury to

recommend the death penalty hinged on a f inding of a least one

statutory aggravating factor. Conversely, jury findings regarding

the nonstatutory aggravating factors were not required before the

jury could recommend the death penalty. After removing the two

nonstatutory aggravating factors from the mix, we conclude that the

two remaining statutory aggravating factors unanimously found by

the jury support the sentence of death, even after considering the

eleve n mitigating factors found by one or more jurors.

Conseq uently, the error was harmless because the death sentence

would have been imposed beyond a reasonable doubt had the invalid

aggravating factors never been submitted to the jury.

VI. Conclusion

After considering the eighteen issues raised by the appellant

on appeal, we conclude that the s entencing provisions of the

Federal Death Penalty Act are constitutional and that the

defendant’s death sentence was not imposed under the influence of

passion, prejudice, or any other arbitrary factor. Consequently,

the conviction and the sentence of death is

AFFIRMED.