### FI LED U.S . COURT OF APPEALS ELEVENTH CI RCUIT March 25, 2004 THOMAS K. KAHN

CLERK [P UBLI SH]
IN THE UNIT ED STATES COURT OF APPEALS FOR THE ELE VEN TH C IRCU IT

________________________ No. 03-10673

________________________ D. C. D ocket No . 00-0043 6-CR -J-25-TJC UN ITE D S TA TE S O F A M ER ICA , Plain tiff-A ppe llee,
versus KA RL T. W AL DO N, De fend ant-A ppe llant.

________________________ Appeal from the United States Distri ct Court for the Middle Dist

rict of Flori da

_________________________ (March 25, 2004) Before T JOF LA T, RO NE Y and FA Y C ircuit Judges. PER CUR IA M:2

Defendant KarlWaldon, a for mer law enfor cement of fice r for t

he Jac ksonvil le Sher if

f’ s Off ic e, appe al s hi s co nvi ct ionfor his inv olv ement i n a c ri me spr ee t hat cul minate d intherobb ery and murde r of

conv eni enc e store owner Sami Safar. Waldon asks for reversal of hi s convicti on based upon perceived grand jury irre gularitie s, and a lso submi ts t hat re versible er

ror occur red when the t

rialjudge faile d to suppress his own grand jury testimony and when the court death qualifi ed the ju ry. F inally, W aldo n claim s that w hen the ju ry, at se nten cing , failed to
reco mm end either death or life imp rison men t, the lan gua ge o f the F eder al D eath Pen alty A ct (“F DP A” ) pre clud ed th e trial ju dge from givin g him a life se nten ce. W e rejec t each of W aldo n’s cla ims a nd a ffirm his co nvic tion a nd s enten ce. I. Kar l T. W aldon was a sw orn d eputy sh eriff of th e Jackso nville S heriff’s Office (“JSO”), serving as a member of the SW AT team from 1 994 to 1997. In April 1997, Waldon began serving as a narcotics det ective f or JSO. In N ovember of that same year, Offi cers Ari c Sincl air a nd Jason Pough were al so assi gned to t he narcot ics unit. Si nclair and Pough brought wit h them to t

heir ne w unit a penc hant for stealing money fr om dru g dealers, including a local dealer nam ed Daryl Cro wd en. Th ese illicit activities flourish ed w hen th ey w ere place d in W aldon ’s divis ion, a

nd Waldon soon joi ned in. The three absconded dr ugs and money fr om3

crimi nals f

or their own use, often rese lling the drugs through ot her deal ers for profit , and eve ntual ly bega n burglarizi ng houses and hotel rooms of known drug dealers. Crowd en soon became the trio’ s partner i n crime, informing t he officers of potentialhits and purchasi ng the drugs they stol e. The Sa far Mu rder: In 1998 , Sinclair took a job doing off-duty security w ork for S outh Tru st Bank. Afte r notic ingthat t wo bank cus tome rs, conv eni enc e store owner Sami Safar and his nephew Hassam Tahhan , routinely withdrew large amoun ts of cash fo r t he i r b us i ne ss , Si nc l air c on co ct eda p l anwi t h Crowd ent o r ob t he me n. On M ay 15 , Cro wd en an d Jeffrey R eed a rrive d at th e ban k w hile T ahh an w as ins ide. W hen Tah han retur ned to his car w ith a m one y bag con tainin g ap pro xim ately $50 ,000 , Ree d po inted a gu n at h im, g rabb ed th e bag and fled w ith C row den
. Cro wd en th en g ave S inclair $20 ,000 of th e stole n m one y. Up on le arnin g of

the T ahh an ro bbe ry, W aldo n told fellow offic er R egin ald Bones that

he “would l ike t o get a hit like that .” Waldon appr oached Sinc lai r, who pro vide d him with a des criptio n of Saf ar’s v ehicle but r efus ed to assist h im in another robb ery because “the heat [w as] on” from the first robbery. Poug h also refuse d to help, so Waldon re cruited Office r Bones and re coveri ng drug addic t and convicted fel on Kenneth McLaughlin to assi st i n pulling off the heist . Accordi ng4

to the plan, Bones wo uld drive over to t he bank and notify Waldon w hen he saw Saf ar’s tru ck. W aldo n w ould then pull o ver S afar as if co ndu cting a rou tine tra ffic stop , and Bo nes a nd M cLa ugh lin w ould rush in, pe ppe r spr ay the driv er, stea l his money and fl ee. Bones , however, backed out on the day

of the r obbery and Waldon was forced to resche dule t he heis t for t

he foll owing week. In t he
mea ntim e, W aldo n’s b roth er-in -law , Jam es S wif t, aske d W aldo n fo r a loa n. Waldon told him that he could make the loan i f Swift could help him to coll ect some money supposedly ow ed to him by a drug dealer. On July 3, 1998, Waldon, in hi s squad ca r, and McLaughlin and Swift i n a Maxima, arrived at

a location ne ar the bank. Swift was inst ructe d to al ert Waldon when S afar lef

t the bank. Waldon’s new plan was to pull over Safar, c reate a
reaso n to a rrest h im, an d tak e him aw ay – a t wh ich p oint S wif t and M cLa ugh lin
wo uld ta ke th e mo ney f rom Saf ar’s ca r. Th e plan wa s pro ceed ing a ccor ding ly. However, when Waldon arres ted Safa r, he r efused to part wit h his money. Waldon called M cLa ugh lin an d S wif t on a cell ph one and told th em to follo w h is squ ad ca r. The three conti nued to t alk as they dr ove, and Waldon be came very anxious beca use “th e per son had seen his fa ce.” T he m en fin ally sto ppe d in a park ing lo t to decide what to do, and Waldon decided that Safar had t o be “taken out. ” McLaughlin obje cted a

nd the t hree began yell ing at

each ot her, at which poi nt5

W aldo n de cided to relo cate to ano ther p arkin g lot. At th e seco nd p arkin g lot, W aldo n step ped out o f his c ar w ith a b lack r ope in his hand and yelle d at Swift and McLaug hlin to get out of their c ar. At firs t they refused, but t

hen reluctantly approached Waldon’s car. Waldon opened the back doo r and Saf

ar, still h and cuffed b ehin d his back , beg an b egg ing f or h is life. W ith McLaughlin bloc king Safar ’s exit, Waldon f ollowed Safa

r int o the bac k seat , put the rope around his neck and choke d him. Safa r fel l bet ween the se at and t

he cage of the s quad car and Waldon ordered McLaughlin to get into t he back se at and finish “cho king him out.” Saf ar utte red h is last b reath as M cLa ugh lin clim bed into the back seat

and reached for the rope. After McL aughlin informed Waldon that Safar was dea d, Waldon frantic ally drove ar ound the city wit h Swift in hi s patrol car and McLaug hlin foll owing in the Maxima. Eventually, Safar’ s body was transferr ed to the Maxima and subsequently dumped by M cLaughlin in a secluded
area. The three lat er met at Swift’ s apart ment to divvy out t

he money and cl ean up their tracks. Waldon’s Grand Jur y Test imony: In late 199 9, tw o dr ug d ealers we re ar rested and beg an co ope rating with federa l aut

horities r egardi ng potentialcorrupt ion in t he JSO. The two deal ers soon finger ed Crowden, who agreed to cooperate and rec orded seve ral c onversations6

with Sincl air. Sincla ir eve ntual ly l earned t hat he was t

he subje ct of a

federa l grand jury investi gati on and that Waldon and Crowden were als o being ques tione d. Consequently, on February 15, 2000, Waldon w as served with a federal grand jur y subpoena, accompani ed by a l ett er expl aini ng that he was the s ubject

of the i nvesti gati on. Waldon appeared on Februar y 16 and, unde r oath, lie d about (among other

things ) the r eason he ha d visi ted Sinc lai r at t he bank and whethe r he
reco gniz ed p hoto s of S afar and Saf ar’s tru ck. Bones was later subpoena ed to t esti fy befor e the gr and jury but was not asked, nor did he volunteer , any informati on about the Safar inci dent. However, afte r his testimony he tol d a JSO detective t hat McLaughli n had infor mation a bout W aldo n. L aw enfo rcem ent o fficer s qu estion ed M cLa ugh lin thr ee tim es in la te May 2000 , and, on the t hird occasion, he told them about the r obbery and murder of Safar. Waldon soon learned of McL aughlin’s cooperation, and told Pough “they [are going to] f

ind Kenny [McLaughli n] somewhere wit h his hea d cut off

.” Soon after, P oug h de cided to co ope rate w ith au thor ities. In December 2000 , Waldon, Sinclair a nd Sw ift were charged by federa l indic tment. On August 21, 2002, t he government , to s ome extent util izi ng “rea dback” t estimony from the pr evious gr and jury , sec ured a se cond supers eding indictment against W aldon, now containing a “No tice of Special Findings”1 This notice was required by the recently-amended Federal Dea th Penalty Act, which itself was amended in response to the Supreme Court’s decision in Ring v. Arizona that the Sixth Amendment's jury

trial guarantee requires that the death penalty ag gravating factor determination be entrusted to the jury . 536 U.S. 584, 609 (2002).

2 Waldon re aches th

is conclusion base d on a rep ort in the local newspaper t hat exhibits and materials were taken into the gra nd jury room, “but there

was no parade of witnesses that 7 indicating the aggravating factor which it intended to prove at sent encing that
wou ld merit the death penalty. 1 Af ter a ju ry trial, W aldo n w as co nvic ted o n all counts. At sentencing, however, the jury rej ected the government’ s theory that Waldon m urdered Safar for “pecuniar y gain,” one of t

he aggravating factors that would justify t

he death penalt

y for a felony murder conviction, and the dis trict
cou rt jud ge se nten ced W aldo n to lif e imp rison men t. II. W aldo n co nten ds th at the d istrict co urt er red w hen it den ied h is mo tion to dism iss the seco nd s upe rsed ing in dictm ent, w hich , he ar gue s, w as sec ured in viola tion o f the F ifth A men dm ent’s g rand jury c lause . W e rev iew W aldo n's challenge t o the district court 's denialof his motion to dismi ss the indi ctment under the abus e of dis cret ion st andard. United St ates v . Piel

ago , 135 F.3 d 70 3, 70 7 (1 1th Cir. 1998). He raises a

variety of “fact ors” he belie ves “cumulatively” amounted to a def ective indi ctment : thegrand jur y procee dings t

hat produc ed the s econd superse ding indi ctment

were (appar ently) limited to agents re-re ading pre vious grand jury testimony of materialwitnesses 2 ; thegovernment c onceal ed from thegreeted the first gra nd jury when it met.” 8 gran d jur y sub stantia l, mate rial ex culp atory evid ence ; and the p retrial p ublic ity
accom panyin g this case prejud iced the g rand ju ry. Th e flaw in W aldon ’s argument, however, is that none of these “fac tors,” taken on their own, are legal
err ors . The ref

ore , t hes e fa ct ors taken toget her do not “c umul at ive ly ” be come
erro rs m erely b ecau se the y occ urre d co ntem por aneo usly. First , Waldon can point to no a uthori ty for

his position t

hat an indict

ment cannot be based on read-backs and hearsay wit nesses. To the contr ary, t his Court has explicitly found that relying on such testimony does not merit dismis sal of

the indic tmen t upo n w hich the tes timo ny w as ba sed. United St ate s v. Brown , 872 F.2d 385 , 387 -88 (11 th C ir. 19 89) . Th oug h so me c our ts hav e exp resse d critic ism in relying so lely on h earsay testim ony, W aldon simply c anno t overco me this C ourt’s ruli ng in Brown , wh ich in volv ed v irtually the ex act sce nario we are p resen ted w ith here – re ad-back testimony of an inve sti gati ng agent r ather than di rect

testimony from the wit

nesses themselves. Our Court found that

this did not r esult

in the fun dam ental u nfair ness that w ould mer it dism issal o f the in dictm ent. Id
. Waldon’s second “factor” i s equally unsupported by curr ent juri sprudence, and, i ndeed, ha s been fl atly rej ecte d by the Supre me Court. He cl aims t hat t he government’ s fai lure to present exculpatory e vidence to thegrand jur y tainted t

he9

second supe rsedi ng indic tment. Again thi s is s imply not a lega l err or. The gov ernm ent is un der no duty to b ring ex culpato ry evide nce to th e gran d jury’s attentio n. Uni t ed

St atesv. Wi l l i ams , 504 U.S. 36, 51-55 (1992). In Wi l l i ams , Justi ce Scal ia re asoned:

Imp osin g up on th e pro secu tor a le gal o bliga tion to present exculpatory e vidence in his possess ion would be incompatiblewith thi s system. If a "bala nced" as sessment of the e ntir e matt er is the obj ective, sur ely t he fir st t hing to be done--rather t

han requiring the prosec utor to say what he knows in def

ense of t he target of t

he i nv es t i gat i on -- i s to e nt i t l e t he t ar ge tt o t en de r h i s o wn defense . To requi re the former whil e denyi ng (as we do) the latte r w ould be q uite ab surd . It w ould also b e qu ite poin tless, sin ce it w ould mer ely inv ite the ta rget to circumnavigate t

he system by delivering his exculpatory evid ence to the pro secu tor, w here upo n it w ould hav e to be p assed on to the g rand jury- -un less th e pro secu tor is willing to take the c hance t hat a c ourt wil l not de em the evidence important

enough to qualify for mandatory disclo sure . Id . at 52 . W e are und oub tedly b oun d by these wo rds. S imp ly bu ndlin g this perceived inequi ty with others does not permit thi s Court to make a ruling contrary to theSupreme Court’ s ruling in Wi l l i ams . Fin ally, W aldo n arg ues th at pre trial pu blicity p rejud iced th e gra nd ju ry. Th is case wa s un dou bted ly the s ubje ct of m uch pres s in th e Jack son ville ar ea. Ag ain, h ow ever , pub licity is g ener ally no t a bas is for dism issal o f an in dictm ent. United St ates v . Washingt

on , 705 F.2 d 48 9, 49 9 (D .C. C ir. 19 83) ; In re Grand10

Jury , 508 F. Supp. 1210, 1213 (S.D. Ala. 1980) ("(i )t does not appea r that any indic tment ha s thus f

ar been di smisse d on th(e) ground" tha t it was "induce d by prejudi cialpublic ity ".) ( citing 8 Moore's FederalPracti ce P 6.03(4) , at 6-61 (2d ed. 1979)). T o the extent that this Court has no t addressed the issue directly, we do so today. This argument misconst rues the role of the grand jury, which is an "inves tigativeand accus atori al [body ] unimpede d by the e videntiary and procedur al restricti ons applicable to a criminal trial." United States v. Ca landra , 414 U.S. 338, 349 (1974) . Sincethe conc ern over a dverse publ ici ty i s it s effe ct on the fa irnes s of theensuing trial , and not it s effect on the grand jury, t

he trialcourt did not e rr in f

ail ing to di smiss t

he indi ctment

on this ground. In su m, b ecau se no indiv idua l erro rs un derly ing th e distr ict cou rt’s failu re to dism iss the indic tmen t hav e bee n de mo nstra ted, n o cu mu lative e rror s can exist. See United States v. Allen , 269 F.3d 842, 847 (7th Cir . 2001) (“ If the re are no
er ro rs or a s i ng l e e rr or , t he re can b e n o c umu l ati ve er ro r. ”)
. Acc or di ng l y, we affi rm the di stri ct cour

t’s denialof Waldon’s mot ion.

III. Waldon next submi ts t

hat, because the gover

nment fai led t o offer any evid ence to pr ove the ag grav ating facto r w hich wo uld m erit the death pen alty under the FDPA , thejury s hould not have been death qual ifi ed from the star t. The11

government, he cla ims, f ail ed to off

er any e vidence that

he murdered Saf

ar for pecu niary gain . Th e go vern men t adm its that, a t least ac cord ing to the ju ry's findings, i t did fai l to est ablish, as a matter of fact , that W aldo n m urd ered Saf ar to separate hi m from his money. It acknowledges that t he jury rej ected it s factual theo ry, an d fo und only that S afar wa s killed by W aldo n be caus e "he saw W aldo n's face. " This cha lle nge, t he government

asser ts, is a f actua l chal lenge to the suffici ency of the evidence , and not one that would have precluded t he distri ct
cou rt fro m d eath q ualify ing th e jury at the o utset. There is a signi ficant di sagreement between the parties as t o the proper standard of revie w applied to Waldon's assert ion that t he jury should not have been death qua lif

ied. Citi ng Johnson , the g ove rnm ent cla ims th at, bec ause W aldo n did not rai se thi s argument

when the government

fil ed it s noti ce of t

he aggravating facto r it inten ded to pr ove , our stand ard o f rev iew is plain erro r. Johnson v. United States , 520 U.S. 461, 466-67 (1997). Waldon insi sts t hat bec ause t

he government di d n ot have t he ev i de nc e t o p ro ve t he ag gr av ati ng fa ct or , t he n, as a m at t er of l aw, the j ury shoul d not have be en deat h quali fied. He submits hedid not know, a nd
cou ld no t hav e kn ow n, of this ar gum ent, h ow ever , until a fter th e evid ence cam e in. On this poi nt, we agr ee with Waldon. We cannot hold him to the pl ain er ror standa rd of revi ew when he did not know unti l thepenalt y phase t hat t he12

gov ernm ent w ould fail in its effo rt to p rov e the a ggr avatin g fac tor. T hus , we will review the district court’s death qualification of the jury de novo
. The FDPA sets out a ver y speci fic pr ocedure t

hat must be foll owed by the government when i t see ks the de ath pena lty agains t a fe deraldefendant . Section 359 3, su bsec tion ( a), re quir es the gov ernm ent to sign and file w ith the cou rt a notic e: (1) stating that thegovernment be lie ves a se ntence of deat h is j usti fied a

nd that the gover

nment willseek suc h sente nce; a nd (2) set

ting f orth t he aggravating factor t hat the government, i f the defendant i s convicted, proposes to prove as justi fying a sente nce of death. 18 U.S.C. § 3593(a). Subsection (b) t hen provides that , after the defendant is found, or plea ds, gui lty , a separat e sent encing he aring shall b e con duc ted to deter min e the p unis hm ent to be im pos ed. Id . at (b)
. The governmen t complied with thi s procedure. It filed a pre trialnotice t

hat it i ntended to seek the death penalty against Waldon, and indicated in that notice that it intended to prove that Waldon murdere d Safar for pecunia ry gai n – one of the aggravating factors justifying t he death sentence under the FDP A. After Waldon w as found guilty, the dist rict c ourt held a sent encing hearing, wit h the jury present , and t

he government

put on evi dence i n an attempt to prove the a ggravat ing factor. At the end of this prese ntati on of evidence, Waldon's counsel asked essential ly for

a judgment

of acqui tta l on thedeath pe nalt y, arguing that the3 The Supre me Court in

Enmund held that the Eigh th Amendme

nt does not

permit imposition of the death penalty on one who a ids and abets a felony

in the course of which a murder is committed

by others but

who does n

ot himself kill, atte mpt to kill, or intend that a killing take place or that lethal force will be employ ed. Enmund v. Florida , 458 U.S. 782 (1982). 13 government failed t o offer a shred of evidence to show that Waldon m urdered Saf ar to s epar ate him from his m one y and thus , as a m atter o f law , W aldo n co uld not be subjecte d to the death penalty. The dist rict c ourt took the motion under advise ment and l et t

he iss ue go to t

he jury . The jur

y found Waldon not gui lty of the so le statu tory a ggr avatin g fac tor. Waldo n cites Ree d v. S tate , 496 So. 2d 213 (Fla. 1st DCA 1986) in support of h is arg um ent, w hich invo lved a defend ant ch arge d w ith (an d ultim ately convicted of) first-degree felon y murder an d robbery. P rior to trial on the charges, defendant

in Reedmoved, pursua nt to Enmund v. Florida , to pr eclud e dea th qualification of the jury. 3 Id . at 214. The State argued t hat, while i t coul d not repr esen t how the ev iden ce w ould sup por t con sider ation of th e dea th pe nalty before t rial , it should not

be precluded "from se eing what mi ght devel op during trial." Id . At the end of it s case-i n-chief, however, t he State conceded that Enmund dictate d an d the death pen alty w as no t availa ble. Id . Florida's First Dis trict C our t of A ppe al rev ersed Ree d's co nvic tion a nd r ema nde d fo r a ne w tr ial, find ing th at, bec ause the S tate co uld n ot po int to a ny fa cts, pr ior to trial, tha t it felt14

cou ld su ppo rt imp osin g the death pen alty (af ter nin eteen mo nths and two sepa rate trials o f Re ed's a ccom plice) , it wa s erro r to d eath q ualify the ju ry. Id
. Th oug h, at fir st blu sh, Reedapp ears to sup por t W aldo n’s p ositio n, his argu men t fails b ecau se w e are bou nd b y the S upr eme Co urt’s d ecisio n in Buchanan v. Kentucky , 483 U.S. 402 (1987) . In t hat ca se, whic h posed the questi on whether a de fendant ’s Sixt h Amendment right s were viol ated when t he state was permit

ted t o death qua lif

y the j ury in de fendant ’s j oint t rialwhere the death penalt

y was sought against his c o-defendant, but not a gainst him, t he Court flatly re jected the notion that trialby a deat h quali fied j ury deprives a def endant of his S ixth A men dm ent rig ht to a n im partia l jury. Id . at 415. Justice Bl ackmun reje cted de fendant ’s argument and re asoned:

[I]f peti tione r’s pos iti on – that , beca use a “ deathquali fied” jury i s convic tion prone and likely to mete out harsher sentence s, it

should be used only in the ca pital case – were accepted, its l ogic would lead to an anomalous result: if, as in [co-defendant] ’s case, a capita l defendan t also is charged with no ncapital offenses, according to petitioner t here would have to be one trial for those offenses and another for the capi tal offe nse. Id . at 41 9. A s suc h, Buchanan entire ly for eclos es W aldo n’s ar gum ent. Even if we w ere to consider Reed , as Waldon would have us do, we bel ieve it must be re ad in conj uncti on with theFirst D.C.A.’s l ater

decis ion in Smith v. State

. In Sm ith , that court held t hat an inquiry into themotives of the s tat e behind4 Waldon takes issue with this apparent "target of the investigation" versus a mere

"subject" distinction, and claims that, because he was actually a targe t, he was more tha n just a witness when he testified. We find the distinction irrelevant here. Bec ause the grand jury was conducti ng a leg itimate investiga

tion in whic

h it believed Waldon had infor mation as a

subject, there was nothing improper about issuing a subpoena for his testimony. As such, we re ject Waldon's Sixth Amendment ineffective assistance claim on this issue out-of-hand, because the Sixth Amendment right to counsel simply does not attach until the initiation of formal adversar y proceedings. United Sta tes v. Go uveia , 467 U.S. 1 80, 189 (1 984). Whet her Waldon was a "subject" or "target" of the investigation at the time he testified, he simply had no constitutional right to counsel. 15 seeking the deat

h penalty can be made by the t rial c ourt judge only : (1) when t he defe nda nt ha s pro perly requ ested an in quir y after trial and , more i mportant ly, (2) when the facts indic ate evidence of bad faith . 568 So . 2d 965, 96 8-69 (F la. 1st DCA 1990). Taking the facts in the light most favorable to t

he government, there was evidenc e int

roduced t

hat coul d have been t

he basi s of a finding that Waldon murdered Safar for pec uniary gain. The mere fac t that thejury di d not so conc lude is no indic ation of b ad fa ith on the p art of the p rose cutio n. IV. As note d ab ove , the g ove rnm ent w ent b efor e the g rand jury o n tw o sep arate
occa sion s. Pr ior to the iss uan ce of the fir st ind ictme nt, W aldo n w as su bpo enae d to testify to the gra

nd jury, where he was ide ntif ied as a "subj ect" of the investi gati on of various crimes. 4 It i s thi s tes timony t hat i s the s ubject

of Waldon's next i ssue on appeal. He claims that the district court erred in denying his motion to sup press this tes timo ny. W e rev iew the d istrict co urt's d enial o f W aldo n's m otion to16

suppress de novo
. United States v. Ram irez-Chilel , 289 F.3d 744, 749 (11th Cir. 200 2). W aldo n claim s that h is Fif th A men dm ent rig hts w ere v iolated beca use, a kin to Ga rrity and its pro gen y, his te stimo ny w as co mp elled. Garrity v. New Jersey , 385 U.S. 493 (1967). He assert s that he reas onably be lie ved he would los e his j ob as a JS O o fficer if he in vok ed h is Fif th A men dm ent p rivileg e bef ore th e gra nd ju ry. The tri al cour

t rej ecte d this argument, findi ng that "even i f the de fendant sub jective ly belie ved that h e w as req uired to testif y, his b elief w as no t obje ctively reasonable." Before a pol ice of

fice r's testimony willbe consi dered "c oerced" within t he meaning of Ga rrity , he must show that he subjectively believed that he wo uld lose his jo b if h e ref

used to an sw er qu estion s and that h is belie f w as ob jective ly
reaso nab le. United States v. Vangetes , 287 F.3 d 13 15, 1 322 (11 th C ir. 20 02) . A subjec tivebeli ef is not obje cti vely r easonabl e unles s it derive d from act ions of t he gov ernm ental u nit. Id . at 13 23. T he g ove rnm ent ar gue s that W aldo n ha s failed to iden tify an y law or re gula tion th at required him to testif

y un der th reat o f san ction s. Indeed, it

appears that

the regulations he reli es upon reflect only a general exp ectatio n tha t polic e off icers w ill coo pera te and testify. W aldo n arg ues th at his beli ef that he would l ose his job was obje cti vely reasonabl e becaus e, t aking t he17

“totali ty of t

he cir cumstanc es” – i ncludi ng the Ja cksonvil le Municipal Code requ irem ent th at the c ity rese rves the rig ht to d isciplin e em ploy ees ex ercisin g the ir Fifth Am end men t priv ilege a nd th e Sh eriff’ s “virtu ally un fettere d dis cretio n” to discip line em ploy ees – the lik ely effect of him not te stifyin g w as term inatio n. W e agr ee w ith the distric t cou rt that W aldo n's b elief w as no t obje ctively
reasona ble. However, the point does not need to be belabor ed becaus e Waldon undisput edly l ied t o the gra nd jury, and Ga rrity doe s no t pro tect fals e testim ony . United St ates v . Veal , 153 F.3 d 12 33, 1 240 -41 (11 th C ir. 19 98) ; United States v. Olmeda , 839 F.2d 1433, 1436-37 (11 th Cir. 1988). Simil arly, there is no "perjury trap" wh en u nco ope rative witn esses lie in re spo nse to que stion s relate d to legitimate investigations. United St ates v . Regan , 103 F.3d 1072, 1079 (2d C ir. 1997). For t

hese re asons, we affir

m the dis tri ct cour

t’s denialof Waldon’s mot ion to su ppr ess. V. Finally, Waldon argues that, because t he jury did not "re commend" either death or lif e impri sonment, the pl ain l anguage of 18 U.S. C. § 3594 prohibited t he dist rict court f rom sente ncing hi m to any se ntence but a "l esser sente nce." The distric t cou rt's inte rpre tation of th e pen alty po rtion of th e Fe dera l De ath P enalty Act is r eviewed de novo
. United St ates v . Pist

one , 177 F.3d 957, 958 (11th Cir.18

199 9). The statute reads as follow s:

Upon a recommendati on under sec tion 3593( e) that the defendant should be sentence d to death or li fe imprisonment without possibi lit y of releas e, the court shallsente nce the defendant accordingly. Otherwise, the court shallimpose any lesser sentence t

hat is aut horized byl aw. 18 U.S.C. § 3594 . Waldon submits that t he latt er provision mandates a l esser sentence because t

he jury here did not " recommend" either death or l ife imp rison men t. Waldon's argument misapprehends the reach of the FDPA. Th e jury rej ected the gover

nment' s theor

y on the a ggravat ing fac tor and f ound him “not

guilt y,” a nd thus rejec ted applic ation of the FDPA altogether. Upon doing so, as the dist rict court a ccurately c oncluded, the FDPA ceased to a pply, and the Sentencing Guidelines dict ated Waldon’s sentence. The Fifth Circuit af firmed a simil ar finding in evaluating the deat h penalty procedures of 21 U.S.C. § 848 – procedures akin to tho se set f

orth in the FD PA
. United States v. Flores , 63 F.3d 1342, 1367 (5th Cir. 1 995 ). A ffirm ing th e distr ict cou rt’s ref usal to instru ct the ju ry tha t its only alternative , if

it di d not rec ommend the deat h penalt y, was l ife imprisonment without pa

role, the cour

t found: Un der § 848 (e), if th e jury had not r ecom men ded a dea th19 sente nce, th e distr ict cou rt cou ld ha ve se nten ced G arza to "any term of imprisonment, which shall not be le ss than 20 years, and w hich may be u p to life imprisonmen t." Th e distr ict cou rt w ould then hav e bee n req uired to follow the Sentencing Guidelines to arrive at an app rop riate se nten ce. Id . We adopt t

he same l ogic her e. When the j ury found Waldon “ not guilty” of kill ing Safar

for pecuni ary gain, thedist rict court c orrectly appl ied t he Sentenc ing Gu idelin es w hen it sente nced W aldo n to lif e imp rison men t. VI. For the re asons se t fort

h above, we AFFIRM W aldon’ s convic tion a nd sentence. AFFI RMED.