United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-2742

___________________________

United States of America

 Plaintiff - Appellee

v.

Charles Michael Hall

 Defendant - Appellant

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Appeal from United States District Court

for the Western District of Missouri - Springfield

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Submitted: January 15, 2019

Filed: December 19, 2019

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Before LOKEN, GRASZ, and STRAS, Circuit Judges.

____________

STRAS, Circuit Judge.

Charles Hall and Wesley Coonce killed Victor Castro-Rodriguez after brutally

beating him. A jury found Hall guilty of first-degree murder, see 18 U.S.C. 

§ 1111(b), and following the presentation of a number of aggravating and mitigating 

factors, returned a death sentence. Hall appeals only his sentence and challenges, 

among other issues, the aggravating and mitigating factors the jury considered, the 

evidence it heard, and the instructions it received. We affirm.
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I.

The three men were serving federal sentences in a mental-health ward at a

medical center for federal prisoners in Springfield, Missouri, when Hall and Coonce 

attacked Castro-Rodriguez. As Hall admitted, they had discussed the crime two or 

three days in advance. Hall has said that killing calms him and that if CastroRodriguez had not been available, he “would have randomly selected another 

inmate” to kill instead.

According to the testimony of one inmate, Hall lured Castro-Rodriguez by 

promising him money if he would pretend to be a hostage. Hall allegedly told him 

that if he would go along, prison officials might agree to give them additional 

privileges, including cable television, in exchange for his release. After CastroRodriguez agreed, Hall and Coonce followed him into his cell, where they made him 

lie on his back, bound his hands and feet, stuffed a rag in his mouth, and blindfolded 

him. Once he could no longer move or call for help, Coonce repeatedly kicked him

and stomped on his neck. Hall then stood on his throat. After several minutes, Hall 

stepped off, checked for a pulse, and punched his stomach “to see if he would react.” 

An autopsy revealed that Castro-Rodriguez died from suffocation caused by

compression of his larynx, although he also had internal bleeding, scrapes, and 

bruises from the repeated blows to his head, neck, and chest.

Hall and Coonce were tried together. The jury found them both guilty after 

deliberating for less than three hours. At a joint sentencing hearing, the jury heard

evidence about various aggravating and mitigating factors. After deliberating 

again—this time into a second day—the jury unanimously recommended a death 
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sentence for both of them. The district court1 accepted the jury’s recommendation

and entered judgment.

II.

The first question is whether the district court abused its discretion by trying 

Hall and Coonce together. See United States v. Ortiz, 315 F.3d 873, 898 (8th Cir. 

2002). Both initially objected to a joint trial, but after the jury found them guilty, 

Hall withdrew his objection to a joint sentencing hearing. His position now is that 

the refusal to sever the proceedings at the guilt phase allowed the jury to hear 

evidence that unfairly prejudiced him during the penalty phase.

A joint trial is “often preferable when the joined defendants’ criminal conduct 

arises out of a single chain of events,” because it gives the jury a chance “to assign 

fairly the respective responsibilities of each defendant.” Kansas v. Carr, 136 S. Ct. 

633, 645 (2016) (citation omitted). This case is a good example. Hall and Coonce 

agreed ahead of time to murder Castro-Rodriguez. Once they entered his cell 

together, Hall tied him up, Coonce took the lead in assaulting him, and then Hall 

dealt the fatal blow by standing on his throat. They acted side by side at every step, 

so it was logical for the district court to allow “their fates [to be] determined by a 

single jury.” Id. at 646.

To be sure, holding a joint trial resulted in the same jury hearing both 

Coonce’s guilt-phase defense that Hall was the driving force behind the crime and 

the government’s case for the death penalty. This made the proceeding unfair, 

according to Hall, because Coonce’s theory “logically supported” and supplemented 

the government’s penalty-phase argument that Hall would likely be violent in the 

future.

 

1

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

District of Missouri.
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Even if these arguments overlapped to some degree, Hall cannot establish that 

Coonce’s guilt-phase evidence “so infected the sentencing proceeding with 

unfairness as to render the jury’s imposition of the death penalty” unconstitutional. 

Id. at 644–45 (citation omitted). In arguing that he was less blameworthy than Hall, 

Coonce never suggested that Hall, as the alleged mastermind, would do something 

similarly violent in the future. Nor did the government connect those dots. Its theory 

was simpler: Hall was dangerous because he repeatedly said he would commit 

crimes and had a lengthy history of threatening violence. See infra Part IV.B 

(addressing the admissibility of the government’s evidence). For us to accept Hall’s 

theory that the joint trial unfairly prejudiced him would require “an exercise in 

speculation, rather than reasoned judgment.” Romano v. Oklahoma, 512 U.S. 1, 14

(1994). And speculation is not enough. See Carr, 136 S. Ct. at 646.

III.

Hall’s next group of challenges focuses on the aggravating and mitigating 

factors presented to the jury. In determining whether a death sentence was 

“justif[ied],” the jury’s task during the penalty phase was to “consider” whether the 

aggravating factors “sufficiently outweigh[ed]” the mitigating factors. 18 U.S.C. 

§ 3593(e); see also id. § 3592 (identifying potential aggravating and mitigating 

factors).

A.

The federal death-penalty statute divides aggravating factors into two 

categories: the listed ones that the jury “shall” consider and those “other aggravating 

factor[s]” that it “may” consider. Id. § 3592(c). Despite this open-ended language, 

Hall claims that one unlisted factor, grave indifference to human life, should never
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have been submitted to the jury.

2

 He points out that the jury already considered his 

mental state once in determining that he was eligible for the death penalty, so doing

it again improperly counted the same factor twice. The premise is correct, but his

conclusion is not.

Nothing in the federal death-penalty statute says that the jury can only 

consider a defendant’s mental state once. To the contrary, the statute contemplates 

the possibility that the jury will do so at least twice, first when determining whether 

the death penalty is on the table at all and again when evaluating the aggravating 

factors presented by the government. Compare id. § 3591(a)(2) (listing the various 

mental states giving rise to death-sentence eligibility), with id. § 3592(c)(5) 

(requiring a “grave risk of death”); id. § 3592(c)(6) (committing the offense in an 

“especially heinous, cruel, or depraved manner”); id. § 3592(c)(9) (demonstrating 

“substantial planning and premeditation”); id. § 3592(c)(16) (having the intent to kill 

or attempting “to kill more than one person in a single criminal episode”). And some

of the factors even seem to overlap with one another, further weakening Hall’s 

double-counting theory. See, e.g., id. § 3592(a)(1) (acting with a “significantly 

impaired” capacity to “appreciate the wrongfulness” of the conduct); id. 

§ 3592(a)(6) (carrying out the offense “under severe mental or emotional 

disturbance”). Hall’s argument, in other words, is contrary to the statute, which 

constructs a two-stage process with overlapping inquiries, see id. §§ 3591(a)(2), 

3592(a), (c), and is inclusive when it comes to the factors that a jury may consider, 

see id. § 3592(c).

 

2

Hall also argues that future dangerousness should not have been submitted as 

an aggravating factor because a prediction about events yet to occur cannot be 

proved beyond a reasonable doubt. See 18 U.S.C. § 3593(c) (requiring the 

government to prove the “existence of any aggravating factor” beyond a reasonable 

doubt). We recently considered and rejected this argument, see United States v. 

Coonce, 932 F.3d 623, 642–43 (8th Cir. 2019), and do so here too.
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B.

Hall challenges another aggravating factor for a different reason. He argues 

that the government did not provide enough evidence for the jury to find that he 

killed Castro-Rodriguez in an especially heinous, cruel, or depraved manner. See id.

§ 3592(c)(6).

In explaining this factor, the district court told the jury that the killing was

heinous if it was “extremely wicked or shockingly evil”; it was cruel if Hall 

“intended to inflict a high degree of pain”; and it was depraved if Hall “relished the 

killing or showed indifference to [Castro-Rodriguez’s] suffering.” The government 

also had to show “serious physical abuse,” which the instructions defined as “a 

significant or considerable amount of injury or damage to [Castro-Rodriguez’s] 

body.” See 18 U.S.C. § 3592(c)(6) (requiring “torture” or “serious physical abuse”); 

see also United States v. Montgomery, 635 F.3d 1074, 1095–96 (8th Cir. 2011)

(defining “serious physical abuse” to include “inflict[ing] suffering . . . above and 

beyond that necessary to cause death” (internal quotation marks and citation 

omitted)).

Contrary to Hall’s suggestion, the government’s evidence was sufficient to 

find that the killing was heinous, cruel, or depraved, and that it involved the infliction 

of serious physical abuse. The primary source of the government’s evidence was 

Hall’s initial statement to investigators shortly after the murder. In it, he recounted 

how he had bound Castro-Rodriguez’s hands and feet, stuffed a rag in his mouth, 

blindfolded him, watched Coonce assault him, and then stood on his throat until he 

stopped breathing. He also acknowledged the senselessness of the crime, explaining 

that if Castro-Rodriguez had not been available, he “would have randomly selected 

another inmate and killed him” instead. The medical examiner, after describing the

injuries and confirming that they were consistent with Hall’s account, estimated that 

it likely took “more than three minutes, maybe [even] five minutes” for Castro-
-7-

Rodriguez to die and that it was possible that he remained conscious nearly the entire 

time.

From this evidence, a reasonable juror could conclude that Hall intended to 

“inflict a high degree of pain” and was “indifferen[t] to [Castro-Rodriguez’s] 

suffering.” The fact that Castro-Rodriguez had been tricked and rendered helpless 

only increased his distress, and the prolonged beating inflicted gratuitous pain. And 

even as the assault was coming to a close, Hall extended Castro-Rodriguez’s 

suffering by suffocating him slowly, even as he likely remained conscious.

It is true, as Hall argues, that other death-penalty cases have involved greater 

cruelty and more extreme violence. See, e.g., id. at 1079–80. But those cases do not 

set the floor, and the fact that some murders are even more heinous, cruel, or 

depraved does not mean that this one was not.

C.

Turning to the mitigating factors, the district court allowed the jury to 

consider, as relevant here, Hall’s good behavior in prison after the murder and his 

difficulties with a chronic gastrointestinal disease, neither of which was disputed 

factually. Even so, some jurors found that the factors did not “exist[],” which Hall 

attributes to a failure to follow the court’s instructions to make factual findings on 

each of the mitigating factors first, before deciding whether to assign them weight.

We agree that the most likely explanation is that some jurors misunderstood

the instructions on the the verdict form. The form required the foreperson to record 

“the number of jurors who . . . found the existence of [each] mitigating factor to be 

proven by a preponderance of the evidence,” yet she wrote “6” in the space for Hall’s 

medical condition and “0” in the other. Following their discharge, some jurors 

informed the district court that the foreperson may have recorded the number who 

voted to give these factors mitigating weight, rather than the number who found that 
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they “had been proved.” See Fed. R. Evid. 606(b)(2)(C) (providing an exception for 

juror testimony when it involves “a mistake . . . in entering the verdict on the verdict 

form”). Given that the government did not dispute either factor, however, there was 

no reason for the foreperson to write anything other than “12” for both.

Unlike Hall, however, we are convinced beyond a reasonable doubt that any 

mistake the jury may have made was harmless. See 18 U.S.C. § 3595(c)(2). As a 

baseline principle, the jurors were not required to give any mitigating weight to 

Hall’s post-murder good behavior or his medical condition, see United States v. 

Paul, 217 F.3d 989, 999 (8th Cir. 2000), even if he had a right to present them to the 

jury. Only if the jurors assigned no weight to them because they believed, “as a 

matter of law,” that they were “unable even to consider the evidence” would a 

constitutional problem arise. Eddings v. Oklahoma, 455 U.S. 104, 113 (1982).

Nothing in the record suggests that this was the case. To the contrary, the fact 

that six jurors assigned some weight to Hall’s medical condition suggests that they 

understood that it was their call to make. See Paul, 217 F.3d at 1000 (explaining 

that the test is whether “there exists a reasonable likelihood that the jurors believed 

themselves precluded from considering relevant mitigating evidence”). There is, in 

short, no reason to believe that marking the form with one piece of information rather 

than another affected the jury’s decision-making or changed its overall conclusion.

IV.

Hall also challenges several evidentiary rulings. Under the federal deathpenalty statute, the standard for admission of evidence at penalty-phase proceedings 

is “relaxed”: parties may present ordinarily inadmissible evidence without worrying 

about the Federal Rules of Evidence. United States v. Purkey, 428 F.3d 738, 758

(8th Cir. 2005); see 18 U.S.C. § 3593(c). The idea is that the more information the 

jury has when choosing between life and death, the better. See United States v. Lee, 

274 F.3d 485, 494 (8th Cir. 2001). Yet the statute also vests the district court with 
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broad discretion to exclude evidence if it is irrelevant or “its probative value is 

outweighed by the danger of creating unfair prejudice, confusing the issues, or 

misleading the jury.” 18 U.S.C. § 3593(c). Compare id. (requiring only that the 

probative value be “outweighed” by the “danger[s]” created by the evidence), with 

Fed. R. Evid. 403 (adopting a similar standard, but requiring the probative value to 

be “substantially outweighed” by these risks (emphasis added)). The court has more 

gatekeeping power, in other words, even though a greater range of evidence can 

potentially pass through the door. See Purkey, 428 F.3d at 756.

A.

The first evidentiary ruling that we have been asked to review wasthe decision 

to limit the scope of Dr. Park Dietz’s cross-examination. The government called 

him to rebut the opinions of several mental-health experts who testified that Hall’s 

bipolar disorder caused him to lose self-control. While explaining his qualifications, 

Dr. Dietz stated that he had been asked to testify in over one thousand cases, 

including some high-profile prosecutions. He admitted that in one of them, he had 

made false statements that eventually led to an overturned conviction. See Yates v. 

State, 171 S.W.3d 215, 221–22 (Tex. App. 2005).

The district court allowed Hall’s attorney to thoroughly question Dr. Dietz 

about what happened in Yates. But it would not allow him to question Dr. Dietz 

about a judge’s refusal to appoint him as a court-appointed expert in another case, 

Gates v. Chappell, No. C 88-2779 WHA (N.D. Cal.). Because the judge in Gates

had refused to appoint Dr. Dietz based solely on concerns about his impartiality after 

Yates, the court reasoned, there was little to be gained from the additional 
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questioning. In Hall’s view, cutting off this line of inquiry was an abuse of 

discretion.3

 See 18 U.S.C. § 3595(c)(2). We disagree.

The additional questioning had low probative value even if it was arguably 

relevant. The first possibility was that it could have shed light on Dr. Dietz’s 

credibility. But the opinion of a single district judge on his fitness for a different 

type of role in an unrelated case only marginally assisted the jurors in answering the 

critical question they faced: should they believe his testimony?

The second possibility was that it could have rebutted Dr. Dietz’s claim that 

he had testified in over one thousand cases. See id. § 3593(c) (allowing both the 

government and the defendant to “rebut any information received at the hearing”). 

This is an impressive-sounding number, and as Hall points out, Gates was one case 

in which Dr. Dietz was not allowed to testify. Still, the evidence had limited

probative value, especially after Dr. Dietz admitted that the figure was not as 

impressive as it sounded. Earlier in his career, he explained, he worked in a hospital 

and participated in about a dozen commitment hearings per week. More recently, 

by contrast, he had not appeared in court nearly as often.

Not only was the probative value low, it carried a high risk of confusing or 

misleading the jury. It is unlikely that the jurors could have understood the 

differences between the roles of a court-appointed expert and a government witness, 

at least without additional factual development. In fact, some may well have 

concluded that a federal judge’s decision not to appoint Dr. Dietz superseded their 

own opinions about his testimony, no matter what he said about Hall. Cf. Rosales-

 

3

Hall also claims that the decision violated his rights under the Confrontation 

Clause of the Sixth Amendment. As we recently explained, however, the 

Confrontation Clause does not apply to sentencing proceedings, even those 

involving a potential death sentence. See Coonce, 932 F.3d at 640–41; see also 

Williams v. New York, 337 U.S. 241, 251–52 (1949).
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Lopez v. United States, 451 U.S. 182, 188 (1981) (stating that jurors “must reach 

conclusions as to impartiality and credibility by relying on their own evaluations of 

demeanor evidence and of responses to questions”). Given these risks, we cannot 

say that the court abused its discretion in cutting off this line of questioning. See id.

B.

Another contested evidentiary ruling was allowing the government to prove 

Hall’s future dangerousness through, among other things, evidence of threats Hall 

had made against various officials, his pre-murder misbehavior in prison, and his 

numerous prior crimes. According to Hall, this evidence was minimally probative 

and highly prejudicial and never should have been admitted.

During the penalty-phase proceedings, the jury heard that Hall had threatened 

to kill a federal judge and prosecutors; to bomb various sensitive locations, including 

an airport and President George H.W. Bush’s home; and to orchestrate a mass 

poisoning. This evidence was presented along with various statements that he had 

made to psychiatrists, psychologists, nurses, and other staff about wanting to harm

or kill people in prison. As the government pointed out, he even acted on those 

desires once before murdering Castro-Rodriguez, when he assaulted another inmate. 

Although the victim suffered only minor injuries, Hall later stated in a letter to a

psychiatrist that his intent “wasn’t . . . just to punch him. . . . [It] was to choke him 

to death.” The letter went on to say that if he “was on the open unit today, [killing 

someone] would” have been his “intent and goal.”

The jury also heard that Hall had difficulty following the rules, both inside 

and outside of prison. The government introduced evidence that he had been 

convicted of a number of crimes over a 25-year period, including burglary, forgery, 

theft, false public alarm, receiving stolen goods, and assault. His behavior was 

problematic in prison too, where he fought, gambled, and possessed contraband prior 

to the murder.
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All of this evidence was relevant. See 18 U.S.C. § 3593(c). A reasonable 

juror could view Hall’s threats as reflecting a propensity for violence. It is true, of 

course, that Hall could have been bluffing, as he now claims, knowing full well that 

he could not possibly carry out some of his threats. But that was a credibility 

determination for the jury to make. See id.; see also Lee, 274 F.3d at 494 (discussing 

the “very low barriers to the admission of evidence”).

To be sure, the evidence was of mixed value. For example, Hall’s decadesold convictions, some for nonviolent crimes, arguably shed less light on his future 

dangerousness. But collectively, the evidence tended to show that Hall wanted to 

hurt others and might do so if given an opportunity, regardless of where he was or

what constraints were placed on him.

On the other side of the scale, the evidence was only prejudicial in the sense 

that it made it hard for Hall to argue that he was not dangerous. But there was 

nothing unfair about its admission. Cf. United States v. Looking Cloud, 419 F.3d 

781, 785 (8th Cir. 2005) (“Evidence is not unfairly prejudicial because it tends to 

prove guilt, but because it tends to encourage the jury to find guilt from improper 

reasoning.”). It did not cause confusion or lead the jury to consider a factor it should 

not have in making its sentencing recommendation. Without showing that one of 

those things may have occurred, Hall has given us little reason to question the district 

court’s discretionary decision to admit it. See Lee, 274 F.3d at 494 (“[D]etermining 

whether there is a threat of unfair prejudice [under 18 U.S.C. § 3593(c)] is a fact 

specific inquiry . . . .”).

C.

Hall also questions the district court’s decision to allow the government to 

introduce two letters that he sent to the prosecutor before trial. In the first, he

expressed his desire to be executed and offered to “enter a ple[a] of guilty” if the 
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prosecutor “could guarantee” that he received a death sentence. He also explained 

that “[t]he only thing that [would] stop [him] from killing again [was] to put [him] 

to death.” In the second, which was delivered both to the prosecutor and to his own 

attorney, he explained in detail why he thought he was eligible for the death penalty, 

directed his attorney to work toward a death sentence, and requested a guilty plea 

“as long as” the prosecutor would recommend one. The government did not respond 

to either letter.

The district court admitted both letters during the guilt phase of Hall’s trial, 

but they played a significant role at sentencing too. See 18 U.S.C. § 3593(c) 

(allowing the jury to consider information from the guilt phase when evaluating 

aggravating and mitigating factors). Because Hall is appealing only his sentence, 

however, we review their admissibility under the “more lenient” evidentiary 

standard applicable at the penalty phase, Purkey, 428 F.3d at 756, leaving aside 

whether the jury should have seen them earlier when it was evaluating Hall’s guilt.

Coonce, 932 F.3d at 637.

Under this standard, the district court did not abuse its discretion when it 

admitted the letters. They contained expressions of guilt and threats to kill again, 

both of which were highly probative of several aggravating factors, including his 

future dangerousness, lack of remorse, and indifference to human life.

It does not matter that admitting the letters left him with an uphill battle during 

the penalty-phase proceedings, because there was nothing unfair about their 

admission, even if, as Hall claims, his “notions about the case changed dramatically 

after [he] benefitted from different legal advice offered by new counsel.” Cf. 

Looking Cloud, 419 F.3d at 785 (explaining that “unfair prejudice” refers to 

encouraging “the jury to find guilt from improper reasoning”). Just because he 

changed his mind does not mean that it was unfair to use his earlier admissions
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against him.4

 Cf. United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir. 2011) 

(holding that a district court did not abuse its discretion under Rule 403 when it 

permitted the government to play a defendant’s videotaped confession).

His argument to the contrary is really just an attempt to import Federal Rule 

of Evidence 410(a)(4)—which prohibits using statements made during plea 

negotiations against a defendant at trial—into penalty-phase proceedings. But this 

theory gets him nowhere because, according to the federal death-penalty statute,

“[i]nformation is admissible” at the sentencing hearing “regardless of its 

admissibility under the rules governing admission of evidence at criminal trials.” 

18 U.S.C. § 3593(c). So it makes no difference whether, as Hall insists, the 

statements would otherwise count as having been “made during plea negotiations.”

They were admissible either way.

D.

The final evidentiary issue was the exclusion of Hall’s “comparative 

proportionality” evidence, which summarized the aggravating and mitigating 

circumstances in other death-penalty cases. Hall’s theory was that the jury might be 

less likely to think that he deserved the death penalty if it could evaluate how he 

compared to others who committed similar crimes. The evidence consisted of short 

 

4

Hall vaguely asserts that allowing the jury to see that he had previously asked 

for the death penalty was unfairly prejudicial. But this is a different argument than 

he raised before the district court or in his briefs, which took the position that the 

letters were completely inadmissible because they contained statements made during

plea negotiations. See Fed. R. Evid. 410(a)(4). In any event, Hall never sought a 

limiting instruction or argued that the court should have redacted the letters, so we 

can hardly fault it for failing to take one of these actions on its own. Cf. United 

States v. Melton, 870 F.3d 830, 837–38 (8th Cir. 2017) (holding that admitting a 

document containing potentially prejudicial statements was not an abuse of 

discretion because, although the defendant requested a limiting instruction, he “did 

not pursue the government’s offer to redact” them).
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summaries of sixteen cases—all involving murders committed in federal prison—

along with a list of the aggravating and mitigating factors in each case. Also 

included were three spreadsheets that repackaged this information in various ways.

As the district court recognized, the evidence had limited probative value. The 

most obvious shortcoming was that no one had any way of knowing whether the 

selected cases were representative. According to Hall’s attorney, they shared three 

characteristics: each went to trial, a death sentence was on the table, and information 

was available from public sources or the attorneys who tried them. This approach 

made sense from a practical, information-gathering perspective, but relevant 

information could have been missing for a variety of reasons. Indeed, Hall has 

trimmed his list down even more on appeal. The explanation, according to his brief, 

is that “the detailed facts . . . necessary for a proper comparative analysis could not 

be assembled” for five of his original sixteen cases. It is unclear what, if anything, 

changed, but this development highlights the problems posed by the evidence.

The presentation of the cases posed other potential problems. The nuances 

were arguably lost in the long lists of aggravating and mitigating factors that he 

provided. For example, two cases might involve the same future-dangerousness

aggravating factor, but a jury might find a death sentence appropriate in one case 

and not the other, leaving the jurors in this case to wonder why. Compare United 

States v. Houston, 648 F.3d 806, 811–12 (9th Cir. 2011) (involving a life sentence 

for a racially-motivated-stabbing death), with United States v. Snarr, 704 F.3d 368, 

377 (5th Cir. 2013) (imposing a death sentence for a stabbing attack that killed a 

fellow inmate and left two prison guards wounded). Admitting the evidence could 

have opened the door to a debate about whether Hall’s lists and spreadsheets 

adequately captured their details, not to mention whether they were similar enough

to Hall’s case. If so, the potential for confusion and distraction was clear.

Another more serious risk was also looming. Using lists and spreadsheets 

potentially invited the jurors to view their assignment in Hall’s case in similar terms: 
-16-

simply tally up the aggravating and mitigating factors and see where he fell on the 

list, rather than undertake an “individualized determination” based on the facts and 

circumstances of his case. Tuilaepa v. California, 512 U.S. 967, 972 (1994) (citation 

omitted); see Purkey, 428 F.3d at 762 (explaining that the federal death-penalty 

statute “avoids arbitrary death sentences by requiring juries to weigh [the] 

aggravating and mitigating factors rather than [just] tally the factors on each side and 

declare a winner based on sheer numbers”).

It is possible, of course, that the district court could have found a way to 

manage these difficulties. But this was a discretionary call, and the court was 

entitled to conclude that admitting the evidence would have caused more trouble

than it was worth.5

 See 18 U.S.C. § 3593(c) (giving the district court broad authority 

as gatekeeper).

V.

Hall’s remaining challenge is to the district court’s response to two notes from

the jury foreperson during penalty-phase deliberations. One of them stated that the 

jury could not reach a unanimous decision on Hall’s sentence, but the court directed

the jury to keep trying. Hall’s position is that it felt pressured after that point to 

recommend a death sentence.

In evaluating Hall’s argument, context matters. See United States v. Walrath, 

324 F.3d 966, 970 (8th Cir. 2003) (listing factors that help identify impermissible 

jury coercion). The jury began its deliberations on Friday afternoon, had the 

weekend off, and then resumed on Monday morning. Shortly after lunch, the 

foreperson sent a note asking if “the lawyers have the option to poll the jury if [it]

 

5

In light of this conclusion, we leave for another day the broader question of 

whether comparative-proportionality evidence is ever admissible as a mitigating 

factor. See 18 U.S.C. § 3592(a) (providing a nonexclusive list of mitigating factors).
-17-

can’t reach a unanimous decision[?]” The court replied that the jury “w[ould] not 

be polled if a nonunanimous verdict [was] accepted.” The foreperson then sent a 

second note, this time announcing that the jury had reached a decision on Coonce, 

but “with 100% certainty” could not reach one on Hall. Hall’s attorney urged the 

court to declare that the jury was “hung,” which would have resulted in a life 

sentence. See Jones v. United States, 527 U.S. 373, 380–81 (1999). Instead, the 

court told the jury to “continue [its] deliberations, and [to] try to reach unanimous 

verdicts.” After deliberating for approximately another hour, the jury returned a 

recommendation of death.

The district court was faced with a choice: declare the jury deadlocked or 

direct it to continue its deliberations. Given that the jury had been deliberating for 

less than one full day, it sent the jury back so that it could keep trying. See United 

States v. Hagan, 412 F.3d 887, 890 (8th Cir. 2005) (reviewing a coercive-instruction 

claim for an abuse of discretion). In making this decision, the court did not have to 

automatically acquiesce in the jury’s assessment. Lowenfield v. Phelps, 484 U.S. 

231, 238 (1988). Rather, as the Supreme Court has recognized, courts

“incontestably” have the “authority to insist that [jurors] deliberate further,” at least 

under certain circumstances. Id.

This is one of those circumstances. The jury had previously been instructed 

that its task was to choose between life in prison and a death sentence. Telling the 

jurors to deliberate further in an effort to reach unanimity did not “coerce” them into 

picking one alternative over the other. Nor did the court tell the jurors to reconsider 

their positions or that they must be unanimous in the end, which are the types of 

statements that have necessitated prophylactic instructions in the past. See United 

States v. Robinson, 953 F.2d 433, 437 (8th Cir. 1992). Here, the court was simply

exercising its judgment that it was sensible under the circumstances to ask the jury 

to deliberate longer before giving up. Lowenfield, 484 U.S. at 238; see also United 

States v. Reed, 686 F.2d 651, 652 n.1 (8th Cir. 1982) (“A supplemental instruction 

merely to continue deliberating after impasse . . . is not properly characterized as a 
-18-

traditional Allen charge.” (citing Allen v. United States, 164 U.S. 492, 501–02

(1896))).

The jury’s response showed that it did not feel pressured to choose either 

alternative. Although it continued to deliberate for only about an hour more, the jury 

requested three exhibits connected to the lack-of-remorse and future-dangerousness 

aggravating factors. Cf. United States v. Warfield, 97 F.3d 1014, 1022 (8th Cir. 

1996) (“Although the jury’s return with a verdict approximately one hour after 

receiving the Allen charge is somewhat expeditious, we do not believe the 

postinstruction deliberation time . . . raises an inference of coercion.”). This timeline

suggests that the jurors continued to debate whether the death penalty was justified;

discussed and reexamined the evidence that they found most compelling; and 

eventually agreed on a recommendation. If they felt no choice but to impose the 

death penalty, as Hall now claims, there would have been little reason to request the 

exhibits. The bottom line is that nothing here raises a red flag that there may have 

been coercion.

The design of the verdict form does not change our conclusion. Hall argues 

that by instructing the jurors to “proceed to” consideration of a life sentence if it 

could not unanimously agree on a death sentence, the district court should have 

known that the second note reported that the jury had effectively ruled out death.6

 

There are two flaws in this argument. First, the second note said only that the jury 

 

6

It is true that at some point the foreperson marked “NO” in the space for 

recommending a death sentence, before scratching it out and marking “YES” 

instead. But we have no way of knowing when it happened or why. Cf. Blueford v. 

Arkansas, 566 U.S. 599, 607 (2012) (explaining that until deliberations are over and 

the jury announces its final decision, jurors are free to “rethink” their votes). Neither 

did the district court, because even if the foreperson marked “NO” before sending 

the second note, the court never saw the partially completed form. So this possibility

cannot have a bearing on our assessment of its decision to send the jury back for 

further deliberations.
-19-

was not unanimous, not that death was off the table. Second, the argument ignores 

the fact that the jury had a binary choice to make: life in prison or a death sentence. 

Nothing prevented the jury from moving back and forth between these two 

alternatives, and the second note simply reflected the fact that, up to that point, there 

was a lack of agreement on which of the two to choose. Under these circumstances, 

it was reasonable for the court to conclude that the jury was not trying to return a

final verdict and that further deliberations would eventually allow it to do so.

VI.

Finally, we note that Hall has raised three issues for potential en banc or 

Supreme Court review: it was unconstitutional to use future dangerousness as an 

aggravating factor, the district court misstated the law when it instructed the jury 

that Hall “must be sentenced to death” if it made certain findings, and it was 

unconstitutional to treat his lack of remorse as both proof of future dangerousness 

and as a standalone aggravating factor. Controlling precedent squarely forecloses 

Hall’s positions on these three issues.

7

 See Barefoot v. Estelle, 463 U.S. 880, 896 

(1983) (future dangerousness); Montgomery, 635 F.3d at 1099 (the jury instruction); 

Purkey, 428 F.3d at 762 (overlapping aggravating factors).

VII.

We accordingly affirm the judgment of the district court.

______________________________

 

7

Moreover, to the extent that Hall argues that he is entitled to a new trial 

because of cumulative error, this argument fails on its own terms. See supra Part 

III.C (identifying as the only potential error that the jury may have misunderstood 

one part of the verdict form); see also United States v. Darden, 70 F.3d 1507, 1549 

(8th Cir. 1995) (rejecting a cumulative-error argument because the court had only 

identified one error).