FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 25, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-10673

________________________

D. C. Docket No. 00-00436-CR-J-25-TJC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

KARL T. WALDON, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 25, 2004)

Before TJOFLAT, RONEY and FAY Circuit Judges.

PER CURIAM:
2

Defendant Karl Waldon, a former law enforcement officer for the

Jacksonville Sheriff’s Office, appeals his conviction for his involvement in a crime

spree that culminated in the robbery and murder of convenience store owner Sami

Safar. Waldon asks for reversal of his conviction based upon perceived grand jury

irregularities, and also submits that reversible error occurred when the trial judge

failed to suppress his own grand jury testimony and when the court death qualified

the jury. Finally, Waldon claims that when the jury, at sentencing, failed to

recommend either death or life imprisonment, the language of the Federal Death

Penalty Act (“FDPA”) precluded the trial judge from giving him a life sentence. 

We reject each of Waldon’s claims and affirm his conviction and sentence. 

I.

Karl T. Waldon was a sworn deputy sheriff of the Jacksonville Sheriff’s

Office (“JSO”), serving as a member of the SWAT team from 1994 to 1997. In

April 1997, Waldon began serving as a narcotics detective for JSO. In November

of that same year, Officers Aric Sinclair and Jason Pough were also assigned to the

narcotics unit. Sinclair and Pough brought with them to their new unit a penchant

for stealing money from drug dealers, including a local dealer named Daryl

Crowden. These illicit activities flourished when they were placed in Waldon’s

division, and Waldon soon joined in. The three absconded drugs and money from
3

criminals for their own use, often reselling the drugs through other dealers for

profit, and eventually began burglarizing houses and hotel rooms of known drug

dealers. Crowden soon became the trio’s partner in crime, informing the officers

of potential hits and purchasing the drugs they stole.

The Safar Murder:

In 1998, Sinclair took a job doing off-duty security work for South Trust

Bank. After noticing that two bank customers, convenience store owner Sami

Safar and his nephew Hassam Tahhan, routinely withdrew large amounts of cash

for their business, Sinclair concocted a plan with Crowden to rob the men. On

May 15, Crowden and Jeffrey Reed arrived at the bank while Tahhan was inside. 

When Tahhan returned to his car with a money bag containing approximately

$50,000, Reed pointed a gun at him, grabbed the bag and fled with Crowden. 

Crowden then gave Sinclair $20,000 of the stolen money. 

Upon learning of the Tahhan robbery, Waldon told fellow officer Reginald

Bones that he “would like to get a hit like that.” Waldon approached Sinclair, who

provided him with a description of Safar’s vehicle but refused to assist him in

another robbery because “the heat [was] on” from the first robbery. Pough also

refused to help, so Waldon recruited Officer Bones and recovering drug addict and

convicted felon Kenneth McLaughlin to assist in pulling off the heist. According
4

to the plan, Bones would drive over to the bank and notify Waldon when he saw

Safar’s truck. Waldon would then pull over Safar as if conducting a routine traffic

stop, and Bones and McLaughlin would rush in, pepper spray the driver, steal his

money and flee. Bones, however, backed out on the day of the robbery and

Waldon was forced to reschedule the heist for the following week. In the

meantime, Waldon’s brother-in-law, James Swift, asked Waldon for a loan. 

Waldon told him that he could make the loan if Swift could help him to collect

some money supposedly owed to him by a drug dealer.

On July 3, 1998, Waldon, in his squad car, and McLaughlin and Swift in a

Maxima, arrived at a location near the bank. Swift was instructed to alert Waldon

when Safar left the bank. Waldon’s new plan was to pull over Safar, create a

reason to arrest him, and take him away – at which point Swift and McLaughlin

would take the money from Safar’s car. The plan was proceeding accordingly. 

However, when Waldon arrested Safar, he refused to part with his money. Waldon

called McLaughlin and Swift on a cell phone and told them to follow his squad car. 

The three continued to talk as they drove, and Waldon became very anxious

because “the person had seen his face.” The men finally stopped in a parking lot to

decide what to do, and Waldon decided that Safar had to be “taken out.” 

McLaughlin objected and the three began yelling at each other, at which point
5

Waldon decided to relocate to another parking lot. 

At the second parking lot, Waldon stepped out of his car with a black rope in

his hand and yelled at Swift and McLaughlin to get out of their car. At first they

refused, but then reluctantly approached Waldon’s car. Waldon opened the back

door and Safar, still handcuffed behind his back, began begging for his life. With

McLaughlin blocking Safar’s exit, Waldon followed Safar into the back seat, put

the rope around his neck and choked him. Safar fell between the seat and the cage

of the squad car and Waldon ordered McLaughlin to get into the back seat and

finish “choking him out.” Safar uttered his last breath as McLaughlin climbed into

the back seat and reached for the rope. After McLaughlin informed Waldon that

Safar was dead, Waldon frantically drove around the city with Swift in his patrol

car and McLaughlin following in the Maxima. Eventually, Safar’s body was

transferred to the Maxima and subsequently dumped by McLaughlin in a secluded

area. The three later met at Swift’s apartment to divvy out the money and clean up

their tracks.

Waldon’s Grand Jury Testimony:

In late 1999, two drug dealers were arrested and began cooperating with

federal authorities regarding potential corruption in the JSO. The two dealers soon

fingered Crowden, who agreed to cooperate and recorded several conversations
6

with Sinclair. Sinclair eventually learned that he was the subject of a federal grand

jury investigation and that Waldon and Crowden were also being questioned.

Consequently, on February 15, 2000, Waldon was served with a federal

grand jury subpoena, accompanied by a letter explaining that he was the subject of

the investigation. Waldon appeared on February 16 and, under oath, lied about

(among other things) the reason he had visited Sinclair at the bank and whether he

recognized photos of Safar and Safar’s truck. 

Bones was later subpoenaed to testify before the grand jury but was not

asked, nor did he volunteer, any information about the Safar incident. However,

after his testimony he told a JSO detective that McLaughlin had information about

Waldon. Law enforcement officers questioned McLaughlin three times in late

May 2000, and, on the third occasion, he told them about the robbery and murder

of Safar. Waldon soon learned of McLaughlin’s cooperation, and told Pough “they

[are going to] find Kenny [McLaughlin] somewhere with his head cut off.” Soon

after, Pough decided to cooperate with authorities. 

In December 2000, Waldon, Sinclair and Swift were charged by federal

indictment. On August 21, 2002, the government, to some extent utilizing “readback” testimony from the previous grand jury, secured a second superseding

indictment against Waldon, now containing a “Notice of Special Findings”
1This notice was required by the recently-amended Federal Death 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 aggravating factor

determination be entrusted to the jury. 536 U.S. 584, 609 (2002).

2Waldon reaches this conclusion based on a report in the local newspaper that exhibits

and materials were taken into the grand jury room, “but there was no parade of witnesses that

7

indicating the aggravating factor which it intended to prove at sentencing that

would merit the death penalty.1 After a jury trial, Waldon was convicted on all

counts. At sentencing, however, the jury rejected the government’s theory that

Waldon murdered Safar for “pecuniary gain,” one of the aggravating factors that

would justify the death penalty for a felony murder conviction, and the district

court judge sentenced Waldon to life imprisonment.

II.

Waldon contends that the district court erred when it denied his motion to

dismiss the second superseding indictment, which, he argues, was secured in

violation of the Fifth Amendment’s grand jury clause. We review Waldon's

challenge to the district court's denial of his motion to dismiss the indictment under

the abuse of discretion standard. United States v. Pielago, 135 F.3d 703, 707 (11th

Cir. 1998). He raises a variety of “factors” he believes “cumulatively” amounted

to a defective indictment: the grand jury proceedings that produced the second

superseding indictment were (apparently) limited to agents re-reading previous

grand jury testimony of material witnesses2

; the government concealed from the
greeted the first grand jury when it met.” 

8

grand jury substantial, material exculpatory evidence; and the pretrial publicity

accompanying this case prejudiced the grand jury. The flaw in Waldon’s

argument, however, is that none of these “factors,” taken on their own, are legal

errors. Therefore, these factors taken together do not “cumulatively” become

errors merely because they occurred contemporaneously. 

First, Waldon can point to no authority for his position that an indictment

cannot be based on read-backs and hearsay witnesses. To the contrary, this Court

has explicitly found that relying on such testimony does not merit dismissal of the

indictment upon which the testimony was based. United States v. Brown, 872 F.2d

385, 387-88 (11th Cir. 1989). Though some courts have expressed criticism in

relying solely on hearsay testimony, Waldon simply cannot overcome this Court’s

ruling in Brown, which involved virtually the exact scenario we are presented with

here – read-back testimony of an investigating agent rather than direct testimony

from the witnesses themselves. Our Court found that this did not result in the

fundamental unfairness that would merit dismissal of the indictment. Id.

Waldon’s second “factor” is equally unsupported by current jurisprudence,

and, indeed, has been flatly rejected by the Supreme Court. He claims that the

government’s failure to present exculpatory evidence to the grand jury tainted the
9

second superseding indictment. Again this is simply not a legal error. The

government is under no duty to bring exculpatory evidence to the grand jury’s

attention. United States v. Williams, 504 U.S. 36, 51-55 (1992). In Williams,

Justice Scalia reasoned:

Imposing upon the prosecutor a legal obligation to

present exculpatory evidence in his possession would be

incompatible with this system. If a "balanced" assessment

of the entire matter is the objective, surely the first thing

to be done--rather than requiring the prosecutor to say

what he knows in defense of the target of the

investigation--is to entitle the target to tender his own

defense. To require the former while denying (as we do)

the latter would be quite absurd. It would also be quite

pointless, since it would merely invite the target to

circumnavigate the system by delivering his exculpatory

evidence to the prosecutor, whereupon it would have to

be passed on to the grand jury--unless the prosecutor is

willing to take the chance that a court will not deem the

evidence important enough to qualify for mandatory

disclosure. 

Id. at 52. We are undoubtedly bound by these words. Simply bundling this

perceived inequity with others does not permit this Court to make a ruling contrary

to the Supreme Court’s ruling in Williams. 

Finally, Waldon argues that pretrial publicity prejudiced the grand jury. 

This case was undoubtedly the subject of much press in the Jacksonville area. 

Again, however, publicity is generally not a basis for dismissal of an indictment. 

United States v. Washington, 705 F.2d 489, 499 (D.C. Cir. 1983); In re Grand
10

Jury, 508 F. Supp. 1210, 1213 (S.D. Ala. 1980) ("(i)t does not appear that any

indictment has thus far been dismissed on th(e) ground" that it was "induced by

prejudicial publicity".) (citing 8 Moore's Federal Practice P 6.03(4), at 6-61 (2d ed.

1979)). To the extent that this Court has not addressed the issue directly, we do so

today. This argument misconstrues the role of the grand jury, which is an

"investigative and accusatorial [body] unimpeded by the evidentiary and

procedural restrictions applicable to a criminal trial." United States v. Calandra,

414 U.S. 338, 349 (1974). Since the concern over adverse publicity is its effect on

the fairness of the ensuing trial, and not its effect on the grand jury, the trial court

did not err in failing to dismiss the indictment on this ground.

In sum, because no individual errors underlying the district court’s failure to

dismiss the indictment have been demonstrated, no cumulative errors can exist.

See United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001) (“If there are no

errors or a single error, there can be no cumulative error.”). Accordingly, we

affirm the district court’s denial of Waldon’s motion.

III.

Waldon next submits that, because the government failed to offer any

evidence to prove the aggravating factor which would merit the death penalty

under the FDPA, the jury should not have been death qualified from the start. The
11

government, he claims, failed to offer any evidence that he murdered Safar for

pecuniary gain. The government admits that, at least according to the jury's

findings, it did fail to establish, as a matter of fact, that Waldon murdered Safar to

separate him from his money. It acknowledges that the jury rejected its factual

theory, and found only that Safar was killed by Waldon because "he saw Waldon's

face." This challenge, the government asserts, is a factual challenge to the

sufficiency of the evidence, and not one that would have precluded the district

court from death qualifying the jury at the outset.

There is a significant disagreement between the parties as to the proper

standard of review applied to Waldon's assertion that the jury should not have been

death qualified. Citing Johnson, the government claims that, because Waldon did

not raise this argument when the government filed its notice of the aggravating

factor it intended to prove, our standard of review is plain error. Johnson v. United

States, 520 U.S. 461, 466-67 (1997). Waldon insists that because the government

did not have the evidence to prove the aggravating factor, then, as a matter of law,

the jury should not have been death qualified. He submits he did not know, and

could not have known, of this argument, however, until after the evidence came in. 

On this point, we agree with Waldon. We cannot hold him to the plain error

standard of review when he did not know until the penalty phase that the
12

government would fail in its effort to prove the aggravating factor. Thus, we will

review the district court’s death qualification of the jury de novo.

The FDPA sets out a very specific procedure that must be followed by the

government when it seeks the death penalty against a federal defendant. Section

3593, subsection (a), requires the government to sign and file with the court a

notice: (1) stating that the government believes a sentence of death is justified and

that the government will seek such sentence; and (2) setting forth the aggravating

factor that the government, if the defendant is convicted, proposes to prove as

justifying a sentence of death. 18 U.S.C. § 3593(a). Subsection (b) then provides

that, after the defendant is found, or pleads, guilty, a separate sentencing hearing

shall be conducted to determine the punishment to be imposed. Id. at (b). 

The government complied with this procedure. It filed a pretrial notice that

it intended to seek the death penalty against Waldon, and indicated in that notice

that it intended to prove that Waldon murdered Safar for pecuniary gain – one of

the aggravating factors justifying the death sentence under the FDPA. After

Waldon was found guilty, the district court held a sentencing hearing, with the jury

present, and the government put on evidence in an attempt to prove the aggravating

factor. At the end of this presentation of evidence, Waldon's counsel asked

essentially for a judgment of acquittal on the death penalty, arguing that the
3The Supreme Court in Enmund held that the Eighth Amendment does not permit

imposition of the death penalty on one who aids and abets a felony in the course of which a

murder is committed by others but who does not himself kill, attempt to kill, or intend that a

killing take place or that lethal force will be employed. Enmund v. Florida, 458 U.S. 782

(1982). 

13

government failed to offer a shred of evidence to show that Waldon murdered

Safar to separate him from his money and thus, as a matter of law, Waldon could

not be subjected to the death penalty. The district court took the motion under

advisement and let the issue go to the jury. The jury found Waldon not guilty of

the sole statutory aggravating factor. 

Waldon cites Reed v. State, 496 So. 2d 213 (Fla. 1st DCA 1986) in support

of his argument, which involved a defendant charged with (and ultimately

convicted of) first-degree felony murder and robbery. Prior to trial on the charges,

defendant in Reed moved, pursuant to Enmund v. Florida, to preclude death

qualification of the jury.3

 Id. at 214. The State argued that, while it could not

represent how the evidence would support consideration of the death penalty

before trial, it should not be precluded "from seeing what might develop during

trial." Id. At the end of its case-in-chief, however, the State conceded that

Enmund dictated and the death penalty was not available. Id. Florida's First

District Court of Appeal reversed Reed's conviction and remanded for a new trial,

finding that, because the State could not point to any facts, prior to trial, that it felt
14

could support imposing the death penalty (after nineteen months and two separate

trials of Reed's accomplice), it was error to death qualify the jury. Id. 

Though, at first blush, Reed appears to support Waldon’s position, his

argument fails because we are bound by the Supreme Court’s decision in

Buchanan v. Kentucky, 483 U.S. 402 (1987). In that case, which posed the

question whether a defendant’s Sixth Amendment rights were violated when the

state was permitted to death qualify the jury in defendant’s joint trial where the

death penalty was sought against his co-defendant, but not against him, the Court

flatly rejected the notion that trial by a death qualified jury deprives a defendant of

his Sixth Amendment right to an impartial jury. Id. at 415. Justice Blackmun

rejected defendant’s argument and reasoned:

[I]f petitioner’s position – that, because a “deathqualified” jury is conviction prone and likely to mete out

harsher sentences, it should be used only in the capital

case – were accepted, its logic would lead to an

anomalous result: if, as in [co-defendant]’s case, a capital

defendant also is charged with noncapital offenses,

according to petitioner there would have to be one trial

for those offenses and another for the capital offense.

Id. at 419. As such, Buchanan entirely forecloses Waldon’s argument. 

Even if we were to consider Reed, as Waldon would have us do, we believe

it must be read in conjunction with the First D.C.A.’s later decision in Smith v.

State. In Smith, that court held that an inquiry into the motives of the state behind
4Waldon takes issue with this apparent "target of the investigation" versus a mere

"subject" distinction, and claims that, because he was actually a target, he was more than just a

witness when he testified. We find the distinction irrelevant here. Because the grand jury was

conducting a legitimate investigation in which it believed Waldon had information as a subject,

there was nothing improper about issuing a subpoena for his testimony. As such, we reject

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 adversary

proceedings. United States v. Gouveia, 467 U.S. 180, 189 (1984). Whether 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 death penalty can be made by the trial court judge only: (1) when the

defendant has properly requested an inquiry after trial and, more importantly, (2)

when the facts indicate evidence of bad faith. 568 So. 2d 965, 968-69 (Fla. 1st

DCA 1990). Taking the facts in the light most favorable to the government, there

was evidence introduced that could have been the basis of a finding that Waldon

murdered Safar for pecuniary gain. The mere fact that the jury did not so conclude

is no indication of bad faith on the part of the prosecution. 

IV.

As noted above, the government went before the grand jury on two separate

occasions. Prior to the issuance of the first indictment, Waldon was subpoenaed to

testify to the grand jury, where he was identified as a "subject" of the investigation

of various crimes.4 It is this testimony that is the subject of Waldon's next issue on

appeal. He claims that the district court erred in denying his motion to suppress

this testimony. We review the district court's denial of Waldon's motion to
16

suppress de novo. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.

2002). 

Waldon claims that his Fifth Amendment rights were violated because, akin

to Garrity and its progeny, his testimony was compelled. Garrity v. New Jersey,

385 U.S. 493 (1967). He asserts that he reasonably believed he would lose his job

as a JSO officer if he invoked his Fifth Amendment privilege before the grand jury. 

The trial court rejected this argument, finding that "even if the defendant

subjectively believed that he was required to testify, his belief was not objectively

reasonable." 

Before a police officer's testimony will be considered "coerced" within the

meaning of Garrity, he must show that he subjectively believed that he would lose

his job if he refused to answer questions and that his belief was objectively

reasonable. United States v. Vangetes, 287 F.3d 1315, 1322 (11th Cir. 2002). A

subjective belief is not objectively reasonable unless it derived from actions of the

governmental unit. Id. at 1323. The government argues that Waldon has failed to

identify any law or regulation that required him to testify under threat of sanctions. 

Indeed, it appears that the regulations he relies upon reflect only a general

expectation that police officers will cooperate and testify. Waldon argues that his

belief that he would lose his job was objectively reasonable because, taking the
17

“totality of the circumstances” – including the Jacksonville Municipal Code

requirement that the city reserves the right to discipline employees exercising their

Fifth Amendment privilege and the Sheriff’s “virtually unfettered discretion” to

discipline employees – the likely effect of him not testifying was termination. 

We agree with the district court that Waldon's belief was not objectively

reasonable. However, the point does not need to be belabored because Waldon

undisputedly lied to the grand jury, and Garrity does not protect false testimony. 

United States v. Veal, 153 F.3d 1233, 1240-41 (11th Cir. 1998); United States v.

Olmeda, 839 F.2d 1433, 1436-37 (11th Cir. 1988). Similarly, there is no "perjury

trap" when uncooperative witnesses lie in response to questions related to

legitimate investigations. United States v. Regan, 103 F.3d 1072, 1079 (2d Cir.

1997). For these reasons, we affirm the district court’s denial of Waldon’s motion

to suppress. 

V.

Finally, Waldon argues that, because the jury did not "recommend" either

death or life imprisonment, the plain language of 18 U.S.C. § 3594 prohibited the

district court from sentencing him to any sentence but a "lesser sentence." The

district court's interpretation of the penalty portion of the Federal Death Penalty

Act is reviewed de novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.
18

1999). 

The statute reads as follows:

Upon a recommendation under section 3593(e) that the

defendant should be sentenced to death or life

imprisonment without possibility of release, the court

shall sentence the defendant accordingly. Otherwise, the

court shall impose any lesser sentence that is authorized

by law.

18 U.S.C. § 3594. Waldon submits that the latter provision mandates a lesser

sentence because the jury here did not "recommend" either death or life

imprisonment. 

Waldon's argument misapprehends the reach of the FDPA. The jury rejected

the government's theory on the aggravating factor and found him “not guilty,” and

thus rejected application of the FDPA altogether. Upon doing so, as the district

court accurately concluded, the FDPA ceased to apply, and the Sentencing

Guidelines dictated Waldon’s sentence. The Fifth Circuit affirmed a similar

finding in evaluating the death penalty procedures of 21 U.S.C. § 848 – procedures

akin to those set forth in the FDPA. United States v. Flores, 63 F.3d 1342, 1367

(5th Cir. 1995). Affirming the district court’s refusal to instruct the jury that its

only alternative, if it did not recommend the death penalty, was life imprisonment

without parole, the court found:

Under § 848(e), if the jury had not recommended a death
19

sentence, the district court could have sentenced Garza to

"any term of imprisonment, which shall not be less than

20 years, and which may be up to life imprisonment." 

The district court would then have been required to

follow the Sentencing Guidelines to arrive at an

appropriate sentence. 

Id. We adopt the same logic here. When the jury found Waldon “not guilty” of

killing Safar for pecuniary gain, the district court correctly applied the Sentencing

Guidelines when it sentenced Waldon to life imprisonment.

VI.

For the reasons set forth above, we AFFIRM Waldon’s conviction and

sentence.

AFFIRMED.