Volume 1 of 3

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-99010

Plaintiff-Appellee, D.C. No.

v.  CR-01-01062-PCTLEZMOND C. MITCHELL, MHM

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Arizona

Mary H. Murguia, District Judge, Presiding

Argued and Submitted

February 15, 2007—San Francisco, California

Filed September 5, 2007

Before: Stephen Reinhardt, Pamela Ann Rymer, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Rymer;

Dissent by Judge Reinhardt

11547
COUNSEL

Celia M. Rumann, Assistant Federal Public Defender, Phoenix, Arizona, and Michael P. O’Connor, Tempe, Arizona, for

appellant Lezmond Mitchell. 

UNITED STATES v. MITCHELL 11553
Daniel R. Drake, Assistant United States Attorney, and Vincent Q. Kirby, Assistant United States Attorney, Phoenix, Arizona, for appellee the United States. 

OPINION

RYMER, Circuit Judge: 

Lezmond Mitchell, a Navajo, appeals his conviction and

sentence for first degree murder, 18 U.S.C. §§ 1111, 1153,

felony murder, 18 U.S.C. §§ 1111, 2111, carjacking resulting

in death, 18 U.S.C. § 2119, and related federal crimes involving other Navajos on the Navajo Indian reservation in Arizona. A jury convicted Mitchell on all counts. Mitchell faced

capital punishment under the Federal Death Penalty Act

(FDPA), 18 U.S.C. §§ 3591-98, because of his conviction for

carjacking resulting in death. Following a penalty phase hearing, the jury unanimously returned a recommendation of a

sentence of death as to each of the two victims who were murdered. The district court sentenced Mitchell to death on the

carjacking count in accordance with the jury’s verdict. We

conclude that no error requiring reversal occurred in connection with either conviction or sentence, and therefore affirm.

I

In October 2001, Mitchell, then 20 years old, Jason Kinlicheenie, Gregory Nakai and Jakegory Nakai decided to rob a

trading post on the Arizona side of the Navajo Indian reservation. Mitchell and 16 year-old Johnny Orsinger set out from

Round Rock, Arizona, for Gallup, New Mexico, on October

27 to look for a vehicle they could steal to use during the robbery. They bought one knife and stole another while there.

Hitchhiking back to the reservation, they were picked up by

a trucker who took them part of the way. 

11554 UNITED STATES v. MITCHELL
Meanwhile, on the afternoon of Sunday, October 28, 2001,

Alyce Slim (63 years old) and her nine year-old granddaughter, Jane Doe, left Fort Defiance, Arizona to go to Tohatchi,

New Mexico where Slim hoped to secure the services of Betty

Denison, a traditional medicine person, for leg ailments. It is

a 35 minute drive that the two made in Slim’s pewter-colored

double cab Sierra GMC pickup truck. They got to Tohatchi

about 4 p.m. Denison was unable to assist her, but thought

another medicine woman, Marie Dale, might be able to help.

She, Slim, and Jane drove to Twin Lakes, New Mexico where

Slim arranged an appointment with Dale for the next day. The

three returned to Denison’s home where they dropped Denison off around 5 p.m., then Slim and her granddaughter left.

That is the last time they were seen alive. 

Somewhere in route, and somehow, Mitchell and Orsinger

got into Slim’s truck. Slim and Jane were in front, Mitchell

in the right-rear passenger seat and Orsinger in the left. Slim

stopped near Sawmill, Arizona, to let Mitchell and Orsinger

out of the car, but Orsinger started stabbing her with a knife

and Mitchell joined in. Slim ended up being stabbed 33 times,

both from the left and right, with sixteen incised wounds on

her hands that indicated she fought the attack. Once dead, her

body was pulled onto the rear seat. Jane was put next to her.

Mitchell drove the truck some 30-40 miles into the mountains

with Jane beside her grandmother’s body. 

There, Slim’s body was dragged out. Jane was ordered out

of the truck and told by Mitchell “to lay down and die.”

Mitchell cut Jane’s throat twice, but she didn’t die. Orsinger

and he then dropped large rocks on her head, which killed her.

Twenty-pound rocks containing blood tied to Jane were found

near the bodies. 

Mitchell and Orsinger returned to the site with an axe and

shovel. Mitchell dug a hole while Orsinger severed the heads

and hands of Jane and Slim. Together, they dropped the severed body parts (along with Mitchell’s glove) into the hole,

UNITED STATES v. MITCHELL 11555
and covered them. The torsos were pulled into the woods.

Later they burned the victims’ clothing, jewelry, and glasses.

Mitchell and Orsinger washed the blood from the knives in a

nearby stream; the next day, Mitchell also washed the knives

with alcohol to remove any blood. 

Jane’s mother, Marlene, became concerned when Jane and

Slim, who was Marlene’s mother, had not returned home. She

tried to call Slim on her cell phone Sunday night, then the

next morning at home, but got no answer. After checking at

Slim’s house and Jane’s school, Marlene filed a missing persons report on Tuesday. 

On Wednesday, October 31, 2001, the Red Rock Trading

Post, a convenience store and gas station located in Navajo

territory, was robbed by three masked men. Kinlicheenie supplied the masks as well as his parents’ car for use after the

truck was abandoned; Mitchell carried a 12-gauge shotgun,

and Jakegory Nakai had a .22 caliber rifle. Charlotte Yazzie,

the store manager, was mopping the floor when one of the

robbers assaulted her, striking her with his firearm and pulling

her behind a desk. Watching this, another store clerk, Kimberly Allen, ducked behind shelving. A second robber saw

Allen and pushed her against the counters. When Allen said

she didn’t know the combination to the safe, the gunman told

her, “If you lie to me or you don’t cooperate with us, we are

going to kill you.” He told Allen to turn on the gas pump. As

she did, she saw a pickup truck parked outside, which she

described as a double cab beige Chevrolet. Yazzie was taken

into a back room where the robbers demanded, and she provided, more money. Mitchell, Nakai and Kinlicheenie emptied the cash registers and safe and then tied down Allen and

Yazzie in the vault room. They made off with $5,530 and

Yazzie’s purse. 

The robbers drove back to Kinlicheenie’s car and he followed the truck to a place about a mile and a half south of

Wheatfields, Arizona, where Mitchell set fire to it using kero11556 UNITED STATES v. MITCHELL
sene stolen from the Trading Post. They returned to the Nakai

residence and split the money. Mitchell got $300 from Kinlicheenie. 

As it happens, a customer and his girlfriend pulled into the

parking lot while the robbery was in progress and saw two of

the masked gunmen, one of whom was wearing purple gloves.

The customer also saw a beige, extended cab Sierra or Silverado model truck parked at the fuel tank. The customer’s girlfriend took down the license plate number and gave it to one

of the Trading Post employees. The next day, a Navajo police

officer discovered an abandoned pickup truck a mile and a

half south of Wheatfields, Arizona, within the Navajo Indian

reservation. The officer detected the odor of gasoline, and

portions of the truck’s interior were burned. It turned out to

be Slim’s 2001 GMC Sierra pickup. Criminal investigators

discovered a purple latex glove and Halloween masks inside

the truck, as well as Mitchell’s fingerprints and Slim’s blood.

Based on this information and a tip, investigators focused

on Orsinger, Orsinger’s father, Mitchell, Jakegory Nakai and

Gregory Nakai, among others. On the morning of November

4, 2001, FBI Agent Ray Duncan conducted a briefing with

criminal investigators and SWAT team officers of the Navajo

Department of Law Enforcement. Tribal warrants were issued

and executed at the house of Gregory Nakai. Mitchell, Jimmy

Nakai, and Gregory Nakai were arrested. Mitchell had been

asleep and wore only a t-shirt and shortcuts. He asked for his

pants, which he told an FBI agent were near a bunk bed on

the floor. As the agent was picking them up, a silver butterfly

knife fell from a pocket. 

Gregory Nakai and his mother, Daisy Nakai, consented to

a search of the house. Two FBI agents, an evidence technician, and a Navajo criminal investigator conducted the search.

They retrieved the silver butterfly knife and found a second

butterfly knife with a black handle. Trace amounts of blood

from the silver knife were matched to Slim. The search also

UNITED STATES v. MITCHELL 11557
turned up a newspaper that had a front page story on the Trading Post robbery, and a cell phone belonging to Slim. 

Agent Duncan and a Navajo criminal investigator met with

Mitchell at the Navajo Department of Criminal Investigations

around 1:30 p.m. Mitchell signed a waiver of his Miranda

rights and, after flipping a coin, agreed to talk. When asked

about his whereabouts on the weekend of October 27, Mitchell stated that he had been drinking around Round Rock. He

denied being involved in the disappearances and robbery.

Mitchell then agreed to a polygraph examination, which FBI

Special Agent Kirk conducted about 5:30 p.m. Mitchell was

reminded that his Miranda rights still applied and he signed

an FBI consent form after reading it. Kirk told Mitchell that

the test results indicated he had lied. Mitchell made inculpatory statements about the robbery and agreed to a tape

recorded interview after again being reminded of his Miranda

rights. Mitchell admitted his involvement in the Trading Post

robbery, and also confirmed that he was present when “things

happened” to Slim and Jane. He agreed to help investigators

find the bodies. The interview ended around 11:00 p.m. 

Orsinger was arrested the next day, November 5, 2001, and

he, too, agreed to take agents to the bodies. Orsinger had difficulty doing so, and agents called for Mitchell to be brought

out. Mitchell directed Navajo police officers to the site. While

there, Mitchell acknowledged to Kirk that his Miranda rights

were in effect and agreed to answer more questions. According to the agent, Mitchell stated that he had stabbed the “old

lady,” and that the evidence would show and/or witnesses

would say that he had cut the young girl’s throat twice. Mitchell said he told Jane to “lay down on the ground and die,” and

that he and Orsinger then gathered rocks, and with Orsinger

leading on, the two took turns dropping them on Jane’s head.

Mitchell indicated that he and Orsinger retrieved an axe and

shovel, severed the heads and hands, buried the parts in a

foot-deep hole, burned the victims’ clothing, and cleaned the

knives in a stream. 

11558 UNITED STATES v. MITCHELL
Mitchell was returned to tribal jail and taken before a tribal

judge on November 7. A federal indictment was issued on

November 21, and on November 29 an FBI agent picked up

Mitchell from the tribal jail and drove him to the courthouse

in Flagstaff, Arizona. Just before arraignment, agents read

Mitchell his Miranda rights and obtained a signed waiver.

Mitchell explained that one to two weeks before the Trading

Post robbery, he had talked with Jakegory Nakai about committing a robbery. He and Orsinger hitchhiked from Round

Rock, Arizona to Gallup, New Mexico to purchase liquor and

while in Gallup, the two visited a shopping mall where they

purchased one knife and stole another. They caught a ride to

Ya Ta Hey, New Mexico, where they were picked up by an

older lady and a young girl near the border. Mitchell asked to

be let off near Sawmill, Arizona, and when the truck stopped,

Orsinger began stabbing the woman. Mitchell admitted that

he stabbed her four to five times. They put the older woman

and the little girl into the back, and drove into the mountains

where they dragged Slim’s body out, threw rocks on the girl’s

head, and severed the victims’ heads and hands. Mitchell said

this was Orsinger’s idea, because he would also have severed

the feet. 

On July 2, 2002, a superceding indictment was returned

charging Mitchell and Orsinger with murder; felony murder,

robbery; carjacking resulting in death; several robbery-related

counts; kidnapping; and felony murder, kidnapping. On September 12, 2002, the government filed a notice of intent to

seek the death penalty as to Mitchell based on the 18 U.S.C.

§ 2119 charge of carjacking resulting in death. Jury selection

began April 1, 2003. On the same day, the court severed the

joint trial of Mitchell and Orsinger. Opening statements were

given on April 29, and on May 8, 2003, the jury convicted

Mitchell on all counts. 

Mitchell indicated that he did not want to be present during

the penalty phase, and his attorneys explained to the court that

Mitchell had become uncooperative and was breaking off

UNITED STATES v. MITCHELL 11559
contact with them. For this reason they felt obliged to withdraw. After time to reconsider, and extended colloquy, Mitchell stated that he saw no benefit or relevance to being there

and wished to waive his presence, but did not have a problem

with his attorneys. Accordingly, the court granted Mitchell’s

request not to be present but denied counsels’ request to withdraw. 

The penalty phase began on May 14. The government presented testimony from family members who described what

the victims were like and the emotional impact of the murders

on them. The defense presented as mitigating evidence the

testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student

with no disciplinary problems except for a brief suspension

for possessing marijuana, who was an outstanding athlete

with college football prospects, a leader both in student council and in sports, and respectful towards teachers. FBI agent

Duncan also testified. He discussed Mitchell’s confession,

noting that Mitchell claimed to have been drinking heavily at

the time of the murders. Duncan also described a separate carjacking and double murder involving Gregory Nakai and Orsinger that took place on the Navajo reservation during which

Orsinger pistol whipped the two victims and then shot one of

them in the head. Nakai shot the other victim five times. See

United States v. Gregory Nakai, 413 F.3d 1019 (9th Cir.

2005), cert. denied, 126 S. Ct. 593 (2005). Evidence was

introduced that neither Orsinger nor Nakai would receive the

death penalty, and that the Navajo Nation did not condone

capital punishment in general or for Mitchell’s crimes in particular. 

The jury unanimously found all four “gateway intent factors,” each of the statutory aggravating factors, and one

non-statutory aggravating factor with respect to both victims.

At least one juror found the existence of each of the mitigating factors. After weighing the aggravating and mitigating

factors, the jury recommended imposition of a sentence of

11560 UNITED STATES v. MITCHELL
death. The court imposed that sentence, and this timely appeal

followed. 

II

We first consider Mitchell’s challenges to jurisdiction of

the federal court and to application of the Federal Death Penalty Act (FDPA). He contends that the FDPA does not extend

to carjackings committed by one Indian against other Indians

in Indian country. In related arguments, Mitchell also submits

that he cannot be sentenced to death under the FDPA because

the Navajo Nation never opted into the federal capital punishment scheme, and that applying the FDPA in these circumstances violates the First Amendment and the American

Indian Religious Freedom Act of 1978 (AIRFA), 42 U.S.C.

§ 1996. 

[1] “Indian tribes initially possessed exclusive jurisdiction

over crimes committed by one tribal member against another

in Indian country — even when the crime was murder . . . .”

David H. Getches, Charles F. Wilkinson, Robert A. Williams,

Jr., Federal Indian Law 475 (5th ed. 2005). See also William

C. Canby, Jr., American Indian Law 133 (4th ed. 2004).

Today, by virtue of the interplay between the Indian Country

Crimes Act or Federal Enclave Act, 18 U.S.C. § 1152, and the

Major Crimes Act, 18 U.S.C. § 1153, federal court jurisdiction extends to certain major crimes committed by an Indian

against another Indian, or by an Indian in Indian country, see

United States v. Bruce, 394 F.3d 1215, 1220 (9th Cir. 2005);

United States v. Anderson, 391 F.3d 1083, 1085 n.3 (9th Cir.

2004), and by virtue of decisional law, federal court jurisdiction extends to intra-Indian violations of federal criminal laws

of general, nationwide applicability. Id. at 1085-86; United

States v. Smith, 387 F.3d 826, 829 (9th Cir. 2004) (stating that

federal criminal jurisdiction extends to intra-Indian violations

of 18 U.S.C. § 1513(b), retaliating against a witness, as it is

a statute of nationwide applicability); United States v. Errol

D., Jr., 292 F.3d 1159, 1164-65 (9th Cir. 2002) (observing

UNITED STATES v. MITCHELL 11561
that the federal government could have charged Indian defendant who burglarized Bureau of Indian Affairs facilitates

located in Indian country with 18 U.S.C. § 641, theft of government property); United States v. Begay, 42 F.3d 486, 499

(9th Cir. 1994) (holding that a violation of 18 U.S.C. § 371,

conspiracy, “applies equally to everyone everywhere within

the United States, including Indians in Indian country”). 

[2] Mitchell maintains that the Major Crimes Act is the sole

source of federal criminal jurisdiction over intra-Indian

crimes, and that, because carjacking resulting in death is not

one of the crimes identified in the Act, he cannot be prosecuted for it in federal court. However, we have previously

rejected this argument. See, e.g., United States v. Juvenile

Male, 118 F.3d 1344, 1350-51 (9th Cir. 1997) (holding that

the district court could properly exercise jurisdiction over the

charged federal criminal offense of general applicability,

despite its not being enumerated in the Major Crimes Act, in

an incident occurring between Indians in Indian country).

Mitchell’s suggestion that Juvenile Male is contrary to two

earlier Supreme Court opinions, United States v. Antelope,

430 U.S. 641 (1977), and United States v. Quiver, 241 U.S.

602 (1916), fails because we are bound by Juvenile Male. In

any event, both Antelope and Quiver involved enclave crimes,

not crimes of general applicability. See United States v. Brisk,

171 F.3d 514, 522 & n.7 (7th Cir. 1999) (rejecting identical

arguments invoking Quiver and Antelope); see also Begay, 42

F.3d at 499-500 (rejecting the notion that our case law,

including United States v. Jackson, 600 F.2d 1283, 1286 (9th

Cir. 1979), can be read as indicating that federal laws of otherwise nationwide applicability do not apply in Indian country). 

Mitchell proposed at oral argument, for the first time, that

our precedent is undermined by legal summaries, contained in

the legislative history of 25 U.S.C. § 1301, which predate

decisions such as Begay. See H.R. Conf. Rep. No. 102-261,

at 3-4 (1991); S.Rep. No. 102-168, at 2 (1991). This is not the

11562 UNITED STATES v. MITCHELL
same statute at issue here. Apart from the fact that a threejudge panel has no power to do what Mitchell asks, we reject

the underlying premise that an attempt (presumably a staffer’s) to summarize the state of federal jurisdiction over Indian

crimes for purposes of a different statute has any authoritative

bearing on the question presented here. 

In addition, relying on Ex Parte Crow Dog, 109 U.S. 556

(1883), Mitchell stresses that the federal carjacking statute

does not expressly provide for jurisdiction over intra-Indian

violations. From this, he would have us infer that Congress

did not intend for it to apply to cases such as this. However,

Crow Dog, like Antelope and Quiver, involved the prosecution of an intra-Indian murder charged under federal enclave

law; it does not speak to a federal criminal statute that is of

general applicability. Beyond this, the general rule is that a

federal statute of nationwide applicability that is otherwise

silent on the question of jurisdiction as to Indian tribes “will

not apply to them if: (1) the law touches ‘exclusive rights of

self-governance in purely intramural matters’; (2) the application of the law to the tribe would ‘abrogate rights guaranteed

by Indian treaties’; or (3) there is proof ‘by legislative history

or some other means that Congress intended [the law] not to

apply to Indians on their reservations . . . .” Donovan v. Coeur

d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985)

(quoting United States v. Farris, 624 F.2d 890, 893-94 (9th

Cir. 1980)). Mitchell makes no attempt to explain how the

federal carjacking statute might fall within one these exceptions, except to suppose that Congress must have intended

such an exemption as it employed Interstate Commerce

Clause language but not Indian Commerce Clause language in

§ 2119. But silence in this (or any other) respect does not

manifest intent for the law not to apply to Indian tribes; rather,

the baseline is that federal statutes of nationwide applicability,

where silent on the issue, presumptively do apply to Indian

tribes. See Smith, 387 F.3d at 829 n.5; see also Federal Power

Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960)

UNITED STATES v. MITCHELL 11563
(stating that “a general statute in terms applying to all persons

includes Indians and their property interests”). 

Mitchell next argues that § 2119 should not apply in this

case because its authorization of the death penalty impinges

on tribal sovereignty given the Navajo Nation’s longstanding

religious and cultural opposition to capital punishment. For

this he relies on the Eighth Circuit’s view that “if a particular

Indian right or policy is infringed by a general federal criminal law, that law will be held not to apply to Indians on reservations unless specifically so provided.” United States v.

Blue, 722 F.2d 383, 385 (8th Cir. 1983). However, Blue itself

held that a federal district court had jurisdiction over an intraIndian violation of 21 U.S.C. § 841(a)(1) (distribution of marijuana and possession with intent to distribute) as enforcement

of the federal narcotics laws does not impermissibly infringe

upon tribal sovereignty or self-government. Id. This is in line

with our own decisions applying federal criminal laws of

nationwide applicability to Indian tribes. 

[3] We recognize that the Navajo Nation opposes the death

penalty on cultural and religious grounds. Indeed, the Attorney General of the Navajo Nation expressed the Nation’s

opposition to the possibility of the United States seeking capital punishment in this case in a letter sent January 22, 2002

to the United States Attorney for the District of Arizona. We

cannot say, however, that ideological opposition to the death

penalty by its own force exempts tribal members from the

reach of federal criminal laws, or overrides the presumption

that federal criminal laws of nationwide applicability apply to

Indian tribes. 

[4] Neither do we believe that the FDPA’s opt-in provision

for Indian tribes, 18 U.S.C. § 3598, or the lack of an opt-in by

the Navajo Nation, renders the carjacking statute inapplicable.

Section 3598 provides:

Notwithstanding sections 1152 and 1153, no person

subject to the criminal jurisdiction of an Indian tribal

11564 UNITED STATES v. MITCHELL
government shall be subject to a capital sentence

under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian

country (as defined in section 1151 of this title) and

which has occurred within the boundaries of Indian

country, unless the governing body of the tribe has

elected that this chapter have effect over land and

persons subject to its criminal jurisdiction. 

Thus, the FDPA unambiguously requires opt-in only where

jurisdiction is based on Indian country, not, as Mitchell would

have it, whenever the federal government seeks capital punishment. To construe § 3598 as Mitchell does is inconsistent

with the statute’s plain language and the basic canon of statutory construction that qualifying language should not be read

out of the statute. See, e.g., Bowsher v. Merck & Co., 460 U.S.

824, 833 (1983) (applying the “settled principle of statutory

construction that we must give effect, if possible, to every

word of the statute”). Mitchell insists that a contrary interpretation defeats the purpose of § 3598 if the government, precluded from seeking the death penalty on the basis of first

degree murder, can instead rely on a federal death eligible

statute such as § 2119. While a court may refuse to follow the

plain language of a statute if it would produce unreasonable

results, Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510

(1989), it is doubtful that Congress would have intended to

carve out special exemptions to Indian tribes for the more

than 40 death eligible federal offenses covered by the FDPA

without expressly saying so. See Jones v. United States, 527

U.S. 373, 407 (1999) (providing background information on

FDPA) (citing 18 U.S.C. § 3591; §§ 60005-60024, 108 Stat.

1970-1982)). Instead, the opt-in provision appears to afford

Indian tribes as much authority as states in determining

whether capital punishment may be imposed in circumstances

not involving federal crimes of general applicability. The federal government seeks and obtains FDPA death sentences in

states that have long since abandoned the death penalty themselves. Michael J. Zydney Mannheimer, When the Federal

UNITED STATES v. MITCHELL 11565
Death Penalty is “Cruel and Unusual,” 74 U. Cin. L. Rev.

819, 819 (2006) (reporting that “since 2002, five people have

been sentenced to death in federal court for conduct that

occurred in States that do not authorize the death penalty”);

see also 137 Cong. Rec. S8488-03 (daily ed. Jun. 24, 1991)

(remarks of Sen. Inouye suggesting that capital crimes will

apply without regard to what would otherwise be within the

scope of state or tribal jurisdiction). As there is no reasoned

basis for departing from the statute’s plain language, we

decline to accept Mitchell’s proffered construction of § 3598.

[5] Finally, Mitchell’s assertion that given the Navajo

Nation’s religious opposition to capital punishment, sentencing him under the FDPA violates the First Amendment and

AIRFA, is raised for the first time on appeal. Although normally we would review for plain error,1

 it makes no difference

whether that, or the de novo review which Mitchell seeks, is

the appropriate standard because either way, his claims fail.

He makes no showing that the FDPA burdens the free exercise of any Navajo religious belief. In any case, his free exercise challenge cannot succeed because “a rationally based,

neutral law of general applicability does not violate the right

to free exercise of religion even though the law incidentally

burdens a particular religious belief or practice.” Miller v.

Reed, 176 F.3d 1202, 1206 (9th Cir. 1999) (citing Employment Div. v. Smith, 494 U.S. 872, 879 (1990)). Mitchell’s reliance on AIRFA fares no better, as “AIRFA is simply a policy

statement and does not create a cause of action or any judi1Many of the issues that Mitchell raises on appeal are subject to plain

error review because they were not raised in the district court. Plain error

lies where there was: “(1) error, (2) that was clear or obvious, (3) that

affected substantial rights, and (4) that seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States

v. Randall, 162 F.3d 557, 561 (9th Cir. 1998) (citing United States v.

Olano, 507 U.S. 725, 732-36 (1993)). Normally, the defendant must make

a specific showing of prejudice — that the error affected the outcome of

the proceedings — in order to establish plain error. Olano, 507 U.S. at

734-35. 

11566 UNITED STATES v. MITCHELL
cially enforceable individual rights.” Henderson v. Terhune,

379 F.3d 709, 711 (9th Cir. 2004). 

III

A number of issues are presented that relate to jury selection, both of the venire and the panel. 

A

We start with Mitchell’s contention that the procedures

used to empanel jurors in Phoenix for Navajo reservation

crimes, while apparently satisfactory in non-capital cases, see

United States v. Etsitty, 130 F.3d 420, 425 (9th Cir. 1997), are

unsatisfactory for death penalty cases. 

“[T]he selection of a petit jury from a representative cross

section of the community is an essential component of the

Sixth Amendment right to a jury trial.” Taylor v. Louisiana,

419 U.S. 522, 528 (1975). A defendant establishes a prima

facie violation of the fair-cross-section requirement by showing “(1) that the group alleged to be excluded is a ‘distinctive’

group in the community; (2) that the representation of this

group in venires from which juries are selected is not fair and

reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). 

In Nakai, which involved one of Mitchell’s co-defendants,

the court “accept[ed] for purposes of [that] appeal the argument that Native Americans in Arizona constitute a distinctive

group, although our cases suggest that Hopi and Navajo are

far from being a unitary ethnic block.” 413 F.3d at 1022. We

assume so here as well. 

Mitchell asserts that his trial was improperly transferred

from Prescott to Phoenix, but abandons the point by developUNITED STATES v. MITCHELL 11567
ing no argument with respect to it. He does, however, develop

his contention that the jury administrator improperly weeded

the 2329 jury questionnaires that were returned (out of 3000

sent) down to 263 “actually qualified” persons. Allowing for

jurors who were excused mainly without objection, a venire

of 207 was set. Mitchell argues that of this pool, only 30 —

or 14.49% — were Native Americans. The district court

found, according to the 2000 census, that the adult population

of the Prescott Division was 18.64% Native American, that

Native Americans comprise 16.7% of the Prescott master jury

wheel (from which the jury was drawn in this case), that

17.23% of the 3000 people selected from the wheel in this

case resided within Indian reservations, and that 36 of the

207-person venire (17.39%) identified themselves as Native

American. Mitchell’s numbers are slightly different but even

accepting his, an absolute disparity of 4.15% exists between

the venire and the adult population of the division. This is less

than the disparity that we found constitutionally permissible

in United States v. Esquivel, 88 F.3d 722, 726-27 (9th Cir.

1996) (finding insubstantial an absolute disparity of 4.9% for

Hispanics who comprised 14.6% of the adult citizen population in the district but only 9.7% of the master jury wheel). 

Regardless, “a violation of the fair cross-section requirement cannot be premised upon proof of underrepresentation

in a single jury. While juries must be drawn from a source

fairly representative of the community, the composition of

each jury need not mirror that of the community.” United

States v. Miller, 771 F.2d 1219, 1228 (9th Cir. 1985). Thus,

the defendant in Miller failed to satisfy the second prong

when he introduced evidence concerning only his particular

grand jury venire. Id.; cf. Duren, 439 U.S. at 362 (defendant

showed persistent disparity over eight months of weekly venires). Mitchell points to disparities in the trial of Gregory

Nakai, in which 14.1% of the 199-person venire as drawn

consisted of Native Americans, but only 6.1% of the pool that

reported for duty consisted of Native Americans. See Nakai,

413 F.3d at 1022. However, the 6.1% figure was the result of

11568 UNITED STATES v. MITCHELL
a telephonic procedure used specially in that case, which the

court deliberately avoided using in this one. The 14.1% figure

provides a second data point, but this alone cannot demonstrate that the underrepresentation was systematic. Underrepresentation in the master juror wheel would be systematic,

but the Prescott juror wheel has only a 1.94% absolute discrepancy. 

In Etsitty, we expressed concern with the jury selection process in trials transferred from Prescott to Phoenix. However,

our concerns in Etsitty had to do with the different jury

wheels in Phoenix (where Native Americans constitute less of

the population) and Prescott (where they constitute more).

The district court cured that problem here by using the Prescott wheel. It found there was little reason to suspect that

Native Americans in the jury pool would be disparately

impacted by the transfer to Phoenix based on local geography

and highway access, and Mitchell points to no evidence to the

contrary. 

[6] Mitchell offers no authority or argument relating the

special nature of capital punishment to the need for lower tolerance for disparity in jury pools. Nor is any apparent. The

right to a representative jury pool comes from the Sixth

Amendment, not the Eighth, and applies to all criminal jury

trials. 

Mitchell also appears to suggest that the striking of various

jurors for cause resulted in an unrepresentative jury. However,

the Sixth Amendment imposes “no requirement that petit

juries actually chosen must mirror the community and reflect

the various distinctive groups in the population. Defendants

are not entitled to a jury of any particular composition.” Taylor, 419 U.S. at 538. In Lockhart v. McCree, 476 U.S. 162,

173-74 (1986), the Court accordingly declined to extend the

fair-cross-section requirement to death qualification, or “to

invalidate [on fair-cross-section grounds] the use of either forcause or peremptory challenges to prospective jurors” who

UNITED STATES v. MITCHELL 11569
expressed opposition to the death penalty. In Holland v. Illinois, 493 U.S. 474, 477-86 (1990), the Court similarly distinguished between the venire stage and panel stage, and rejected

the claim that a prosecutor’s use of peremptory challenges to

remove African Americans from the panel violated the Sixth

Amendment right to a representative cross-section. As it

explained, “[t]he ‘representativeness’ constitutionally

required at the venire stage can be disrupted at the jury-panel

stage” to serve a legitimate interest in permitting the disqualification of jurors for reasons related to their ability to serve

in a particular case. Id. at 483; see also Evans v. Lewis, 855

F.2d 631, 634-35 (9th Cir. 1988) (“[T]he juror’s removal was

part of the process of selecting the petit jury and did not

involve the composition of the venire. Therefore, the fair

cross-section right did not attach.”); Harris v. Pulley, 885

F.2d 1354, 1371 (9th Cir. 1988) (“The fair cross-section rule

is limited to the method of summoning the venire panel from

which the petit jury is selected.”). 

[7] Because Mitchell does not show that the underrepresentation of Native Americans on venires such as his was

either substantial or systematic, and because the right to a representative cross-section does not extend to petit jury selection, Mitchell fails to establish a constitutional violation

arising out of the procedures that were followed. 

B

We turn next to issues relating to death qualification and

for-cause strikes. 

i

Did the district court violate the equal protection component of the Due Process Clause by engaging in race-based

questioning of potential jurors and by making raciallydiscriminatory decisions to strike? 

11570 UNITED STATES v. MITCHELL
“For over a century, [the] Court has been unyielding in its

position that a defendant is denied equal protection of the

laws when tried before a jury from which members of his or

her race have been excluded by the State’s purposeful conduct

. . . . Although a defendant has no right to a ‘petit jury composed in whole or in part of persons of [the defendant’s] own

race,’ he or she does have the right to be tried by a jury whose

members are selected by nondiscriminatory criteria.” Powers

v. Ohio, 499 U.S. 400, 404 (1991) (internal citations omitted).

The same applies to the federal government under the equal

protection component of the Fifth Amendment. Cf. Bolling v.

Sharpe, 347 U.S. 497, 499 (1954). Judges, of course, are state

actors, and the obligation to refrain from racial discrimination

in the selection of jurors extends to all those state actors “who

are trusted with jury selection.” Akins v. Texas, 325 U.S. 398,

403 (1945). To establish a violation, however, “[a] purpose to

discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by

unequal application of the law to such an extent as to show

intentional discrimination.” Id. at 403-04 (articulating principle for a grand jury); see Alexander v. Louisiana, 405 U.S.

625, 626 n.3 (1972) (noting that principles prohibiting exclusion from jury service on account of race “are essentially the

same for grand juries and for petit juries”). Thus, Mitchell can

establish a violation of his Fifth Amendment rights if he can

show purposeful racial discrimination by the district court in

striking jurors for cause. Because Mitchell did not raise this

issue in the district court, we review for plain error. 

[8] Mitchell tries to show purposeful discrimination by suggesting that the judge questioned potential jurors differently

depending upon whether they were Native American or not.

We cannot see how the district court’s voir dire abused its

ample discretion. Rosales-Lopez v. United States, 451 U.S.

182, 189 (1981) (noting that “[b]ecause the obligation to

impanel an impartial jury lies in the first instance with the

trial judge, and because he must rely largely on his immediate

perceptions, federal judges have been accorded ample discreUNITED STATES v. MITCHELL 11571
tion in determining how best to conduct the voir dire”). The

judge inquired of all prospective jurors whether there was

anything about Mitchell’s being Native American that would

affect their ability to be fair and impartial, which was unquestionably proper, see id. at 191-92, but sometimes hinged questions of similar import to the common ethnicity shared by the

juror and the defendant when the juror indicated that he or

she, too, was Native American. This was simply a natural way

of eliciting possible bias, and does not show discrimination

along racial lines. In no way did the court’s questioning suggest that it was applying different standards depending upon

the juror’s ethnicity. 

At oral argument, Mitchell attempted to cast his equal protection argument as one under Alexander. As we explained in

Esquivel, an Alexander-type equal protection challenge is

somewhat similar to a Sixth Amendment fair cross-section

challenge, and requires the defendant to make a prima facie

case by showing (1) “that the group, of which the appellant

is a member, is ‘one that is a recognizable, distinct class, singled out for different treatment under the laws’ ”; (2) a substantial underrepresentation of the group, “by comparing the

proportion of the group in the total population to the proportion of the group called to serve as . . . jurors, over a significant period of time”; and (3) discriminatory intent, which may

be satisfied by showing that the selection procedure is “susceptible of abuse or is not racially neutral.” 88 F.3d at 725

(quoting Castaneda v. Partida, 430 U.S. 482, 494 (1977)).

Mitchell fails to establish a prima facie case because he has

not shown substantial underrepresentation over a significant

period of time and because, as in Esquivel, he has not

explained how the venire-selection process was susceptible to

abuse. Id. at 727-28. Mitchell appears to assume, as he did

with his fair cross-section claim, that the Alexander framework should extend past the venire stage and into strikes for

cause. He offers no authority for doing so, and no persuasive

reason why it should. “[A] defendant has no right to demand

that members of his race be included” on the final jury, Alex11572 UNITED STATES v. MITCHELL
ander, 405 U.S. at 628, and since the record is fully developed as to the basis for each strike, Mitchell must show why

each was discriminatory or pretextual. 

Mitchell complains that of 30 Native Americans who

appeared for voir dire, 29 were dismissed by the trial court

before peremptories. However, we consider his appeal only

with respect to prospective jurors #3, #22, and #24 because he

fails to explain why the others may have been dismissed for

race-based reasons. As to them, the district court only pressed

questions of racial bias when the jurors gave answers implicating their impartiality, where it was entirely appropriate to

do so. 

The lengthy questioning and discussion relating to #3 had

almost nothing to do with race; he was excused for cause on

account of his perceived inability to set aside religious opposition to the death penalty. 

Race played some role in the voir dire of #22, who was a

Navajo and who indicated in response to questioning by the

government that she thought she was biased for the Native

American. Most of the questioning focused on this prospective juror’s stated moral opposition to the death penalty. The

district court found from #22’s answers that it would be “extremely difficult, if not impossible” for her to set aside her

opinions regarding the death penalty and that her bias toward

Native Americans and against the government was also “troubling.” Both findings are well-supported in the record. 

Prospective juror #24 himself injected race into the voir

dire by responding to the court’s inquiry about whether he had

an opinion about the death penalty, “Well, as a Native American, this is something that we don’t have in our laws on the

reservation.” He thought being Native American would affect

his ability to be fair and impartial. He said that having to sit

in judgment of another Navajo would “have a long-term

affect on [him] . . . emotionally and to a certain extent spirituUNITED STATES v. MITCHELL 11573
ally,” at least if he were to “come out to a certain result,”

because Navajo ceremonies are based on valuing life; therefore, it would be “difficult” for him to sit as a juror against

a fellow Navajo. He also indicated that he thought it would be

wrong for the United States government to put a Navajo to

death for murder. The district court recognized that this last

statement was not an automatic disqualifier, but given how

difficult #24 said it would be for him to sit as a juror because

of his beliefs, and to sit in judgment on a Navajo, the district

court concluded #24 would be substantially impaired from

being able to perform his duties. In this, the court was not

impermissibly drawing inferences from #24’s race, but permissibly from his own responses about his beliefs.2

ii

[9] Did the procedures used to select the jury impermissibly

exclude jurors on the basis of their Navajo traditional religion

and culture, thereby violating the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, and the American

Indian Religious Freedom Act of 1978 (AIRFA), 42 U.S.C.

§ 1996? On this issue, our review is for plain error as it was

not raised in district court. 

2For the first time in his reply brief, Mitchell argues that the exclusion

of jurors #2, 3, 19, 22, and 24 also violates Witherspoon v. Illinois, 391

U.S. 510 (1968), and Gray v. Mississippi, 481 U.S. 648 (1987), because

these jurors were dismissed merely for expressing moral scruples against

the death penalty. We deem these arguments waived. United States v.

Anderson, 472 F.3d 662, 668 (9th Cir. 2006); Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999). 

Similarly, in a footnote, Mitchell contends that the district court improperly excluded jurors #1, 2, 9, and 11 in part due to their use of Navajo as

a first language without providing interpreters, thereby erroneously applying the Jury Selection Act and violating “equal protection, due process, a

fair trial and a reliable sentencing determination.” However, “[t]he summary mention of an issue in a footnote, without reasoning in support of

the appellant’s argument, is insufficient to raise the issue on appeal.”

Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996). 

11574 UNITED STATES v. MITCHELL
RFRA “suspends generally applicable federal laws that

‘substantially burden a person’s exercise of religion’ unless

the laws are ‘the least restrictive means of furthering [a] compelling governmental interest.’ ” United States v. Antoine, 318

F.3d 919, 920 (9th Cir. 2003) (quoting 42 U.S.C. § 2000bb1(a)-(b)). Mitchell does not identify what specific federal rule

or procedure burdened the exercise of Navajo religion. We

understand his argument to be that the rule disqualifying

jurors whose traditional Navajo views on the death penalty

would prevent or substantially impair the performance of their

duties as a juror in accordance with their instructions violates

RFRA, because the Navajo religion is opposed to the death

penalty. Mitchell points out that the government has no compelling interest in keeping traditional Navajos from serving on

juries, or in obtaining a death sentence against a Navajo for

a crime arising in Indian country against another Navajo. But

this misplaces the focus. The question is whether a juror is

able to follow the law and apply the facts in an impartial way,

which is a compelling government interest. And the rule

excluding jurors who are unable to do so is the least restrictive means to achieve that end; jurors are not excluded simply

because they are opposed to the death penalty on religious

grounds, but only if they are unable to set those views aside

and apply the law impartially. See Wainwright v. Witt, 469

U.S. 412, 420-26 (1985). 

Mitchell simply asserts, without explanation, that AIRFA

was also offended, but as we have already noted AIRFA

creates no judicially enforceable individual rights. 

iii

[10] Did the district court err by refusing to strike for cause

several prospective jurors (#31-38, except for #32 and #34)

who were biased in favor of capital punishment? 

A defendant has a constitutional due process right to

remove for cause a juror who will automatically vote for the

UNITED STATES v. MITCHELL 11575
death penalty. See Morgan v. Illinois, 504 U.S. 719 (1992).

But the Supreme Court has made clear that a court’s failure

to strike for cause a biased veniremember violates neither the

Sixth Amendment guarantee of an impartial jury, Ross v.

Oklahoma, 487 U.S. 81 (1988), nor the Fifth Amendment

right to due process, United States v. Martinez-Salazar, 528

U.S. 304 (2000), when the biased veniremember did not sit on

the jury, even though the defendant must use a peremptory

challenge to strike him. Of the veniremembers whom Mitchell

challenges, only #36 sat on the jury. Mitchell attempts to distinguish Ross and Martinez-Salazar by arguing that his claim

is not based on his compelled use of a peremptory challenge,

but this only shows that Mitchell has asserted no injury at all.

A district court’s refusal to strike a juror challenged for

cause is reviewed for abuse of discretion. United States v.

Miguel, 111 F.3d 666, 673 (9th Cir. 1997). However, our

review here is for plain error under Fed. R. Crim. P. 52(b)

because Mitchell did not ask the court to excuse juror #36 for

cause. Cf. United States v. Mendoza-Reyes, 331 F.3d 1119,

1121 (9th Cir. 2003) (review of voir dire is for plain error

where defendant does not object); United States v. Ross, 886

F.2d 264, 266 (9th Cir. 1989) (district court’s treatment of

juror reviewed for plain error where defendant made no

motion to remove after juror announced desire to leave).

Although in response to one question #36 indicated that she

thought the only punishment for certain kinds of “horrific”

crimes should be death, she later qualified that response by

indicating “well, death or imprisonment.” Thereafter she said

in a number of ways that she could keep an open mind. Neither side moved to strike, and the court did not plainly err in

not striking her sua sponte. 

iv

[11] Did the district court err in striking #39 for cause

merely because she expressed conscientious scruples against

imposing the death penalty? 

11576 UNITED STATES v. MITCHELL
A prospective juror may be excluded for cause because of

her views on capital punishment when “the juror’s views

would ‘prevent or substantially impair the performance of

[her] duties as a juror in accordance with [her] instructions

and [her] oath.’ ” Wainwright, 469 U.S. at 424 (quoting

Adams v. Texas, 448 U.S. 38, 45 (1980)). The juror need not

indicate that she would “automatically” vote against the death

penalty, nor need the bias be shown with “unmistakable clarity”; the trial court need only be left with a “definite impression that a prospective juror would be unable to faithfully and

impartially apply the law.” Id. at 425-26. Deference is owed

to the trial judge who sees and hears the juror. Id. 

Because this rule is grounded in the Sixth Amendment’s

guarantee of an impartial jury, and not the Eighth Amendment, exclusions under it are no different from exclusions of

jurors for any other form of bias. Id. at 423, 429. A district

court’s decision to excuse a juror for actual bias is reviewed

for abuse of discretion. United States v. Gonzalez, 214 F.3d

1109, 1112 (9th Cir. 2000). 

Prospective juror #39 gave answers to the written prescreening questionnaire that show her beliefs about the death

penalty would substantially impair her ability to perform her

duties. Among them, she checked the box indicating she

“could never, under any circumstances, return a verdict which

recommended a sentence of death.” She wrote as an explanation for why she couldn’t reach a verdict of guilty as to a

crime for which the defendant could be sentenced to death,

“No one has the right to take another person’s life — regardless of the evils done by that person — it reduces society to

the level of the evil doer.” She checked boxes reflecting that

she would not follow the instructions given by the court in

deciding whether a defendant was guilty or not guilty if a

death sentence would result, that her views about the death

penalty would prevent her from recommending the death penalty as a punishment, that she would automatically vote to

recommend a sentence of life without the possibility of

UNITED STATES v. MITCHELL 11577
release, that she would not consider all the evidence before

making a decision to recommend either a death or life sentence, that she would disregard the law and hold the government to a higher burden of proof than beyond a reasonable

doubt, and that she would not want to serve as a juror in this

case. 

Her oral responses at voir dire were more nuanced; for

example, she would have “a difficult time” imposing the

death penalty or following related instructions; she could possibly have sentenced to death Charles Manson and a serial

killer from Florida (presumably, Ted Bundy); “off the top of

[her] head,” she didn’t think she could set aside her beliefs,

but she would be open to listening to all of the evidence; “offhand,” she didn’t think she could fairly consider either sentence, but she couldn’t know for sure without being in the

position and seeing the evidence; she would “probably” vote

for a life sentence, but wouldn’t automatically vote for a life

sentence regardless of the evidence and would keep an open

mind; and she would “like to think” she could be open to

either death or life and deliberate without prejudgment. In

response to the judge’s final question whether she could set

aside her views and listen to the facts and law that the court

gives and keep an open mind and consider imposing either

sentence if she felt it was appropriate, #39 responded “I could

only try . . . . I do feel very strongly about the value of human

life, no matter what that life has done. But I — I like to think

I would listen; I would be open. It would be up to the prosecution and the defense to convince me. I can’t give a definitive

answer at this time. I’m sorry.” 

Although the court found that #39 tried to be candid, it was

left with the “firm impression, based on her demeanor here in

court, that she would struggle to the point that I don’t think

she would honestly consider the death penalty in accordance

with the instruction and her duty as an oath.” In addition, it

noted that the questionnaire answers were compelling where

#39 wrote in by hand that no one has the right to take another

11578 UNITED STATES v. MITCHELL
person’s life, and that she could not follow instructions if a

death sentence would result. Accordingly, the court concluded

that #39 “would be substantially impaired to follow her oath

as a juror in this case and follow the law that the Court gives

to her,” and so was not qualified. As the overall landscape of

#39’s answers supports a definite impression that she would

be unable faithfully and impartially to apply the law, and the

district court applied the correct standard in so determining,

we see no abuse of discretion in the dismissal of #39 for

cause. 

C

The government used a peremptory challenge to strike the

only African American member of the venire which was, in

Mitchell’s view, contrary to Batson v. Kentucky, 476 U.S. 79

(1986). This followed a strike of a Native American that the

court disallowed on Batson grounds. 

To establish a prima facie case of a Batson violation, a

defendant must show “(1) the defendant is a member of a cognizable group; (2) the prosecution has removed members of

such a group; and (3) circumstances raise an ‘inference’ that

the challenges were motivated by race.” Fernandez v. Roe,

286 F.3d 1073, 1077 (9th Cir. 2002). The burden then shifts

to the government to offer a race-neutral ground for the challenge. Finally, the district court determines whether the defendant has proven purposeful discrimination. Id. Although the

burden rests with the defendant to prove purposeful discrimination, the court must evaluate the persuasiveness of the proffered justification and determine whether it should be

believed. Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.

2006) (en banc). 

Native Americans constitute a cognizable group for Batson

purposes, see id., as do African Americans, see Fernandez,

286 F.3d at 1077. Mitchell, a Native American, may raise

Batson challenges to the exclusion of African Americans as

UNITED STATES v. MITCHELL 11579
well as Native Americans. See id. (citing Powers v. Ohio, 499

U.S. 400, 409-16 (1991)). 

Whether the government’s reason for exercising a peremptory challenge is an adequate race-neutral explanation is an

issue of law reviewed de novo. See United States v. Steele,

298 F.3d 906, 910 (9th Cir. 2002). The district court’s findings of fact as to the racially discriminatory use of peremptory

challenges are reviewed for clear error. See United States v.

Annigoni, 96 F.3d 1132, 1136 n.3 (9th Cir. 1996) (en banc).

Whether a defendant has made a prima facie showing of racial

discrimination is reviewed for clear error. United States v.

Steele, 298 F.3d 906, 910 (9th Cir. 2002). 

The government used its first peremptory strike against the

only remaining Native American member of the jury panel.

The district court found that under the totality of the circumstances, the use of a first strike against the only Native American panel member when the defendant and victims were

Native American established a prima facie case. The government offered the explanation that the juror indicated he would

look to the court for direction at sentencing. The district court

found that he was not the only juror to express uncertainty

due to lack of knowledge of the law, and that the juror had

repeatedly indicated that he would follow the court’s instruction and understood that the court would not direct a sentence.

On that basis, the court found the government’s explanation

unpersuasive, and denied the strike. 

The government then used another peremptory challenge to

strike the only African American member of the panel.

Responding to Mitchell’s Batson challenge, the government

offered the explanation that it struck that juror along with

another because both had prior experience on juries that had

acquitted defendants. The district court determined that most

of the reasons for finding a prima facie case against the only

Native American juror did not apply to the African American

juror, and that no prima facie case had been made out. Alter11580 UNITED STATES v. MITCHELL
natively, the court found that the government’s explanation

was neutral, non-discriminatory, and permissible; that the

juror had indicated that he had participated in an acquitting

jury in Colorado in the mid-1980s, although he could not

recall the circumstances; that the explanation was sufficient;

and that Mitchell had failed to carry his burden. 

We recognized in Fernandez that the relevant circumstances surrounding strikes include a prima facie case of discrimination as to another cognizable group. 286 F.3d at 1078

(holding that prior strike of an Hispanic prospective juror supported an inference of general discriminatory intent germane

to strike of two African Americans). Here, the government

struck the only African American venireperson, which is less

compelling evidence of discrimination than in Fernandez

because two African Americans were struck there and it is

more difficult to infer discrimination based on one strike than

two. At the same time, the court here had actually found discrimination by the government in exercising a strike against

a Native American, whereas the trial court in Fernandez had

previously only found a prima facie case. We can’t tell from

what it said that the district court factored this into its ruling.

[12] But we need not decide whether, following Fernandez,

under the totality of the circumstances, including the prior discriminatory attempt to strike the only Native American juror,

the district court’s finding that there was no prima facie case

of discrimination as to the African American venireperson

was clearly erroneous, because Mitchell does not show how

the district court’s alternative finding — that the prosecution’s

justification was valid and persuasive — was incorrect. That

a juror acquitted in a prior case is a valid, race-neutral reason

to strike. See United States v. Thompson, 827 F.2d 1254, 1260

(9th Cir. 1987). Mitchell notes that the acquittal had been 20

years earlier, but the inquiry is not whether the ground is strategically sound, but whether it is believeable. Kesser, 465

F.3d at 359. Nor does Mitchell contest the fact that the government had moved to strike another, non-African American

UNITED STATES v. MITCHELL 11581
juror for the same reason. Cf. id. at 360-61 (discussing comparative juror analysis). The finding of discrimination where

the government used its first strike against the only Native

American juror when the defendant and victims were Native

American does not compel a finding of pretext against the

African American juror when a non-race-based reason is

proferred. Therefore, Mitchell’s Batson claim fails. 

D

[13] Mitchell faults the district court for having alleviated

the government’s burden of proving the elements of the MCA

crimes beyond a reasonable doubt when it told jurors during

voir dire that he was a Native American or Navajo, that the

crimes occurred on an Indian reservation, and that the deaths

of the victims had been “murders.” In doing so, he posits, the

district court informed members of the jury that these elements of the charged crimes were true, thereby impermissibly

shifting the government’s burden at trial. Because Mitchell

did not object on this or any other ground in the district court,

our review is for plain error. See Mendoza-Reyes, 331 F.3d at

1121. 

Of course, the government bears the burden of proving

every element of a crime beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364 (1970). However, a judge does

not plainly err by making a statement in the course of voir

dire to determine whether a prospective juror can be fair and

impartial in relation to a charge made in the indictment.

Mendoza-Reyes, 331 F.3d at 1121. That is all the court did

here. Mitchell never contested that he was a Native American,

and, in fact, offered to stipulate to it. Advising the jury that

the murder counts were being prosecuted pursuant to the

Major Crimes Act was an entirely accurate summary that

shifted no burden at all to Mitchell. The same goes for asking

prospective jurors whether testimony or pictures of a graphic

nature regarding the murders in this case would affect their

ability to be fair and impartial. There was no question that

11582 UNITED STATES v. MITCHELL
murders had occurred; the question was whether Mitchell was

responsible, and the court’s query did nothing to suggest that

he had to prove he wasn’t. Indeed, Mitchell’s counsel himself

prefaced juror voir dire by relating his “impression that there

are certain crimes which, like many people, you would find

very troubling and very disturbing to hear about . . . . And

among them might be a crime involving the murder of two

people, a nine-year-old and a 65-year-old.” 

Mitchell submits that structural error of the Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993), sort occurred, but Sullivan involved a jury instruction containing an unconstitutional

definition of “beyond a reasonable doubt.” No such thing happened here. The district court instructed the jury that it “must

not read into . . . anything the court may have said or done

any suggestion as to what verdict you should return,” that the

defendant was presumed innocent and the government had the

burden to prove every element of the charges beyond a reasonable doubt, and that the government had to prove beyond

a reasonable doubt that Mitchell was an Indian and that the

offenses occurred in Indian Country for all counts under the

Major Crimes Act. 

Because the district court did not tell the jury that certain

facts were established or shift the burden to Mitchell, but

rather stated the charges for explanatory and bias-probing purposes at voir dire, and because Mitchell cannot in any event

show prejudice, there was no plain error. Cf. Neder v. United

States, 527 U.S. 1, 10-11 (1999) (explaining that errors in

omitting, misdescribing, or conclusively presuming an element of an offense are not structural). 

E

[14] Orsinger was severed from Mitchell’s trial on the

morning that jury selection began. Mitchell now claims that

this decision dramatically changed the nature of the case for

which he was selecting a jury, but at the time did not object

UNITED STATES v. MITCHELL 11583
or request a continuance. He points to nothing in the record

that indicates any effect of this decision on counsel’s strategy

or that calls into question his counsel’s judgment in going forward with voir dire. There was no plain error. 

Nor did the court plainly err in proceeding with jury selection rather than, sua sponte, starting it anew after the severance. Mitchell argues that his jury was tainted by Orsinger’s

participation in drafting the juror questionnaire, listing stipulated juror excusals, and making arguments at a hearing with

respect to for-cause dismissals. Yet he points to no evidence

(and does not claim) that he and Orsinger disagreed over any

decision along the way, or that Orsinger took any action that

prejudiced Mitchell. No plain error appears. 

IV

Mitchell sought to suppress his post-arrest statements on

the ground that they were involuntary, and seeks reversal on

this footing and because they were taken in violation of his

Fifth Amendment rights under Miranda v. Arizona, 384 U.S.

436 (1966), and his right to counsel under the Fifth and Sixth

Amendments. 

A

FBI Agent Purscell had been working on the disappearance

of the Orsinsger/Nakai victims, and got an anonymous call on

November 2 offering information on those murders and

another possible homicide and robbery. The call turned out to

be from Jimmy Nakai, with whom agents met that night. The

next day, FBI agents and tribal investigators held a joint meeting at the Gallup FBI office, led by Duncan and Purscell, to

share information and discuss courses of action. Tribal investigators had found Slim’s truck, though that incident was still

being investigated as missing persons with possible criminal

circumstances. 

11584 UNITED STATES v. MITCHELL
At some point Purscell, an FBI supervisor, and an Assistant

United States Attorney (AUSA) participated in a conference

call. It was decided that there was not enough information to

obtain probable cause for a federal search or arrest warrant.

The AUSA suggested possibly attempting to seek tribal arrest

warrants. One of the tribal investigators thought he could get

a tribal warrant, and it was decided that the suspects should

be picked up tribally because of concern for public safety. A

tribal warrant was in fact obtained, Mitchell was arrested, and

FBI agents interviewed him. 

Mitchell posits that he was not actually in tribal custody

when he confessed to FBI agents, but in federal custody,

because federal and tribal authorities acted in collusion to circumvent his federally-protected rights to a prompt arraignment, to remain silent, and to the assistance of counsel. He

submits that collusion is evident given that a federally-funded

task force conducted the criminal investigation using tribal

investigators as “an additional source of manpower,” that the

investigation was based on a tip to the FBI, that a tribal arrest

warrant was issued only after FBI agents conferred with an

AUSA, that this route was chosen as a way to contact Mitchell and interview him, and that FBI agents were the officials

who interviewed him three times. Consequently, in Mitchell’s

view, his confessions are inadmissible as they were involuntarily given under 18 U.S.C. § 3501. 

As the government points out, Mitchell did not raise this

specific issue at trial. Mitchell requested (and received) a

hearing on the voluntariness of his custodial statements. So

did Orsinger. In argument at the first evidentiary hearing, Orsinger’s counsel suggested that the tribal arrest and custody

had been a facade orchestrated by the FBI to deprive Orsinger

of federal procedural rights for a juvenile, such as the speedy

presentation of federal charges to a federal judge and the

prompt appointment of counsel. (Orsinger was a juvenile, but

Mitchell was not.) During his argument, Mitchell’s counsel

said he joined in the remarks of Orsinger’s counsel about

UNITED STATES v. MITCHELL 11585
“what happened in this case,” adding: “Rather than file federal charges and implicate not only the juvenile rights that

[Orsinger’s counsel] said were violated with respect to Mr.

Orsinger, but also the obvious rights that would have attended

the filing of federal charges including the right to the immediate appointment of counsel for Mr. Mitchell, essentially Mr.

Mitchell was stashed in the tribal jail for more than three

weeks on these tribal charges which no one connected with

this case believed were ever going to proceed.”

3

 Other than

this passing comment, Mitchell’s presentation was pitched

entirely to Miranda issues. The court issued a reasoned order

denying Mitchell’s motion to suppress based on the voluntariness of Miranda waivers. After the initial hearing, Orsinger

filed a motion that addressed the collusion issue more specifically; Mitchell did not join in this motion. The court ultimately held another evidentiary hearing on Orsinger’s motion,

for which Mitchell and his counsel were present but in which

they did not join or participate. The court issued a detailed

ruling on delay and collusion issues with respect to Orsinger.

Understandably, it made no findings or conclusions on these

issues with respect to Mitchell; and Mitchell neither sought to

correct the court’s impression that he did not raise them, nor

to adduce evidence and elicit a ruling that would have determined these issues discretely as to him. 

[15] At most, therefore, our review is for plain error. But

even if Mitchell’s passing comment at the first hearing sufficed to piggyback on Orsinger’s pursuit of the point thereafter, no reason appears for the district court to have treated the

co-defendants differently. There is no apparent difference

3The Sixth Amendment right to counsel does not apply in tribal court

proceedings. See United States v. Percy, 250 F.3d 720, 725 (9th Cir.

2001). The Indian Civil Rights Act, 25 U.S.C. § 1302, provides for a right

to retained counsel only. Percy, 250 F.3d at 724 n.2. The record here

shows that the Navajo Tribe at the time of Mitchell’s arrest did at least in

some circumstances appoint advisors for indigent defendants, but these

advisors were not necessarily licensed attorneys, and that some such nonlawyer advisor was appointed for Mitchell. 

11586 UNITED STATES v. MITCHELL
between the two that would affect disposition of the collusion

and delay issues that Mitchell now poses. The federal rights

that Mitchell asserts were circumvented, found in § 3501 and

Fed. R. Crim. P. 5(a)(1), are substantively similar to the corresponding rights for a juvenile in 18 U.S.C. § 5033.4

 Mitchell

developed no record that distinguishes his situation from Ors4Section 5033 provides, in pertinent part: 

Whenever a juvenile is taken into custody for an alleged act of

juvenile delinquency, the arresting officer shall immediately

advise such juvenile of his legal rights, in language comprehensive to a juvenile, and shall immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such

custody. . . . 

The juvenile shall be taken before a magistrate judge forthwith.

In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate

judge. 

Although Mitchell doesn’t say so, presumably his argument rests in part

on Fed. R. Crim. P. 5(a)(1), and in part on §§ 3501(a) and (b). Rule 5(a)(1)

provides: 

A person making an arrest within the United States must take

the defendant without unnecessary delay before a magistrate

judge, or before a state or local judicial officers as Rule 5(c) provides [if a magistrate judge is not reasonably available], unless a

statute provides otherwise. 

Sections 3501(a) and (b) together provide that a confession shall be admissible if voluntarily given, and that the trial judge in determining voluntariness shall take all the circumstances into consideration, including the time

elapsing between arrest and arraignment, if the confession was made in the

interim; whether the defendant knew the nature of the offense with which

he was charged or of which he was suspected; whether the defendant was

advised or knew he was not required to make statements and that any such

statement could be used against him; whether the defendant had been

advised prior to questioning of his right to counsel; and whether the defendant was without the assistance of counsel when questioned. Section

3501(c) allows the government a six-hour safe harbor during which a confession made while a person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency shall not

be inadmissible solely because of delay in bringing such person before a

magistrate judge. 

UNITED STATES v. MITCHELL 11587
inger’s; indeed, he developed no record on the point at all.

Applying our opinion in United States v. Doe, 155 F.3d 1070,

1076 (9th Cir. 1998) (en banc), the district court found on the

basis of testimony by federal agents and tribal investigators

during the evidentiary hearings that after concluding there

was insufficient evidence to obtain federal search or arrest

warrants, participants in the November 4 briefing determined

there was sufficient evidence to obtain arrest warrants on

tribal charges, and jointly decided on that course in the interests of public safety. It concluded that Orsinger had not met

his burden to demonstrate actual collaboration between federal and tribal authorities to deprive him of his federal procedural rights.5

[16] Alternatively assuming that Mitchell preserved issues

arising out of collusion and delay, and our review is under the

normal standards instead of for plain error, we cannot say that

the district court clearly erred in its findings or that its conclusion did not follow the law. Mitchell had the burden of showing “actual collaboration” intended to deprive him of federal

procedural rights. Doe, 155 F.3d at 1078. Having heard the

agents and investigators who were involved in the decision to

seek a tribal warrant testify in Orsinger’s case, the court found

that the testimony of Agents Purcell and Duncan was credible.

This means that the difference in rights afforded to those in

federal and tribal custody was not discussed, the federal officers concluded there was insufficient evidence to obtain federal search or arrest warrants, the tribal officers concluded

there was sufficient evidence to obtain arrest warrants on

tribal charges, both were concerned about public safety, and

they jointly decided to pursue a tribal warrant. While the court

could have found otherwise, it was not obliged to do so as its

findings are not without support in the evidence. See United

States v. Michaud, 268 F.3d 728, 735 (9th Cir. 2001) (stating

that the district court’s factual determination regarding the

5We resolved Orsinger’s appeal in an unpublished memorandum disposition. United States v. Orsinger, No. 03-10500 (9th Cir. June 27, 2005).

11588 UNITED STATES v. MITCHELL
existence of collusion is only reversed for clear error). In light

of what it found, Mitchell was not functionally arrested on

federal charges when he was arrested, and held, by tribal

authorities on November 4; put differently, he was not

arrested tribally in order to deprive him of federal procedural

rights. Proof of deliberate intent to deprive a suspect of federal procedural rights is required to trigger the protections of

§ 3501, Michaud, 268 F.3d at 735; Doe, 155 F.3d at 1078, but

is lacking in Mitchell’s case. Therefore, he was not federally

arrested until November 29. Interviews by federal authorities

in the meantime were permissible and statements obtained

were admissible. Michaud, 268 F.3d at 734 (so stating with

respect to a defendant in state custody); United States v.

Percy, 250 F.3d 720, 727 (9th Cir. 2001) (so stating with

respect to a defendant in tribal custody); see also United

States v. Alvarez-Sanchez, 511 U.S. 350, 358-59 (1994) (holding that a person questioned by a federal officer while being

held on state charges was outside any protection afforded by

18 U.S.C. § 3501(c)).6

[17] Given this, to the extent Mitchell maintains that delay

alone is enough to require suppression of his confessions, the

relevant delay is not the period from November 4 until

November 29, but is the period on November 29 between the

time when Mitchell was picked up at the tribal jail and when

he was presented to the magistrate judge in Flagstaff.

Although Mitchell notes that his statements got progressively

more incriminating, with the third — and most incriminating

— occurring after his arrival at the federal courthouse but

before arraignment, he points to no evidence (and does not

6The dissent suggests that the delay between when federal agents knew

enough to make an arrest and when they did compels a finding of collusion. Dissenting op. at 11662-64. Not so. See Percy, 250 F.3d at 723-24,

727 (upholding a finding of no collusion where cross-certified federal/

tribal agent arrested the defendant on tribal charges despite knowledge of

an outstanding federal arrest warrant; the defendant was interviewed 17

days later; and he was then placed under federal arrest). 

UNITED STATES v. MITCHELL 11589
argue) that his November 29 confession should have been

suppressed under § 3501 due solely to delay that morning.7

B

[18] Mitchell did not object at trial to evidence about the

knife that fell out of the pocket of his pants at the Nakai residence, but now maintains that it violated Miranda because he

had been arrested at that point but had not yet been advised

of his rights. As Mitchell admitted, the officer probably would

not have gone to retrieve his pants if he — Mitchell — had

not asked for them. In these circumstances, the officer cannot

possibly have believed that asking Mitchell where his trousers

were would be reasonably likely to elicit anything incriminating. 

C

[19] Finally, Mitchell asserts that his confessions were

involuntary in that agents implied that things would go in a

positive way if Mitchell cooperated, and told him he would

have the right to have a lawyer appointed for him when, in

fact, no appointment was possible for individuals in tribal custody. The district court credited the agents’ testimony and its

findings were not clearly erroneous. Mitchell offered no evidence that he was confused by any promise made by the

agents, or that he ever asked for counsel. 

7Mitchell mentions the Sixth Amendment but neither raised any Sixth

Amendment claim in district court nor develops any argument with respect

to it here. In any event, no plain error appears. See United States v. Percy,

250 F.3d 720, 726-27 (9th Cir. 2001) (explaining that an arguably tribal,

arguably federal defendant who does not retain counsel, does not indicate

that he wants the assistance of counsel, and executes a valid waiver of his

Fifth Amendment right to counsel, also waives any Sixth Amendment

right to counsel he might have) (citing Patterson v. Illinois, 487 U.S. 285

(1988)). 

11590 UNITED STATES v. MITCHELL
V

Other guilt phase issues center on joinder and discovery;

evidentiary rulings that Mitchell claims ran afoul of his rights

to confrontation, due process, and a fair trial; the aiding and

abetting instruction; and declining to grant a mistrial for misconduct in opening statement and closing argument. 

A

Joinder difficulties permeated pretrial proceedings. Mitchell, Orsinger, and Gregory Nakai were slated to be tried

jointly but Gregory was only charged in the armed robbery

counts and Orsinger was only charged in the murder counts.

The district court decided to sever Gregory out, but also to

keep Gregory and Mitchell together on the robbery counts

while Mitchell and Orsinger were left together on the carjacking counts. Then Mitchell’s trial on the robbery counts was

severed from Gregory, and Orsinger was severed on the carjacking counts when Mitchell filed a motion to introduce

impeachment evidence against him five days before jury

selection was to begin. The district court then granted the

government’s motion to rejoin the robbery and carjacking

counts against Mitchell, finding that they were parts of a common scheme and that joinder would cause no prejudice. 

Mitchell presses error only under Fed. R. Crim. P. 14(a).

He has the burden of proving that the joint trial was “manifestly prejudicial” in that his right to a fair trial was abridged.

United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986).

While he believes this standard is wrong, a three-judge panel

has no power to change it. Applying this standard, the district

court was not compelled to exercise its discretion to sever the

counts. Evidence on the robbery charges would have been

largely admissible in a separate trial on the carjacking counts.

See United States v. Irvine, 756 F.2d 708, 712 (9th Cir. 1985)

(holding that there is no manifest prejudice in such circumstances); United States v. Kenny, 645 F.2d 1323, 1345 (9th

UNITED STATES v. MITCHELL 11591
Cir. 1981) (same). The carjacking on October 28 provided the

get-away vehicle for the robbery on October 31. The two sets

of crimes were part of a common plan or scheme, rendering

evidence of one legally relevant as to the other; as the crimes

are correlated, knowing about one helps explain the other and

so makes it more likely.8 Mitchell also faults the court for failing explicitly to conduct a Federal Rule of Evidence 403 analysis in determining whether evidence on one set of charges

would have been admissible in a trial on the other. However,

the court found that limiting instructions (which it gave)

would ameliorate the risk of unfair prejudice. Mitchell does

not argue this is incorrect. 

Further, Mitchell suggests, without supporting authority,

that severance was required because the carjacking count was

death eligible. But the potential for prejudice turns on the factual evidence relating to that count, not on whether a given

count is death eligible. There is no reason to suppose that evidence of the carjacking, which was death eligible, was more

prejudicial than evidence of the murder, which was not. 

Mitchell finally argues that the rejoining of counts so late

in the game prejudiced him. We fail to see how. Mitchell was

himself responsible for the late decision, having moved for

the first time to introduce prejudicial evidence against his codefendant only three business days before jury selection was

to begin. That prompted the district court to sever Orsinger

from Mitchell, and the prospect of having four separate trials

prompted the decision to rejoin all of Mitchell’s counts. 

[20] In sum, joinder of the robbery and murders counts was

permissible and declining to sever them was not “manifestly

prejudicial” because they were, in fact, related, and the evidence would have come in anyway. 

8Mitchell suggests that even if this were so for purposes of the guilt

phase, it wasn’t for the penalty phase, but we disagree. Evidence of the

robbery was also relevant to show the pecuniary gain aggravating factor.

11592 UNITED STATES v. MITCHELL
B

Mitchell complains that the government committed two

discovery violations affecting the guilt phase. We review the

district court’s discovery rulings for abuse of discretion.

United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir.

2003). For reversal, the defendant must show that the district

court abused its discretion, and that “the error resulted in prejudice to substantial rights.” United States v. Amlani, 111 F.3d

705, 712 (9th Cir. 1997). 

[21] No plain error appears with respect to his first contention, that he was not given the questions or answers to the

polygraph examination. Mitchell did move for a mistrial when

the government sought to introduce anatomical drawings to

aid in the medical examiner’s testimony. However, counsel

acknowledged that he had been told that diagrams were being

made and the district court offered a break, which counsel

accepted. In these circumstances, Mitchell’s substantial rights

were not affected, nor did the court abuse its discretion in

denying a mistrial. 

C

Mitchell finds various violations of the Confrontation

Clause in the record. We do not. We review the district

court’s construction of a hearsay rule de novo, and its exclusion of evidence under a hearsay rule for abuse of discretion.

United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000).

Alleged violations of the Confrontation Clause are reviewed

de novo. United States v. Ballesteros-Selinger, 454 F.3d 973,

974 n.2 (9th Cir. 2006). 

i

[22] First, Mitchell was not allowed on cross-examination

of Agents Kirk and Duncan to elicit exculpatory statements

that he made during interviews to the effect that he had coopUNITED STATES v. MITCHELL 11593
erated with law enforcement, that he had denied killing anyone, and that he and Orsinger had been drinking in Gallup.

These statements were inadmissible hearsay; as Mitchell was

attempting to introduce them himself, they were not partyopponent admissions, nor did the fact that they were made in

a more broadly self-inculpatory confession bring them within

the statement-against-interest exception. Ortega, 203 F.3d at

682 (citing Williamson v. United States, 512 U.S. 594, 599

(1994)). Mitchell asks us to ignore Ortega, but this panel cannot do so. He also argues that this case should be distinguished because it involves capital punishment, but offers no

authority in support of the claim that the hearsay rules operate

differently in capital cases. Additionally, he submits that

Ortega has been undermined by Crawford v. Washington, 541

U.S. 36 (2004), but Crawford is inapposite. Crawford stands

for the proposition that it is improper in certain circumstances

to admit hearsay testimony against the accused even if it falls

into one of the hearsay exceptions. It says nothing about when

a defendant ought to be able to compel the admission of hearsay evidence in his favor.

Neither was Mitchell’s constitutional right to crossexamine witnesses severely restricted, nor were his due process rights offended. The inculpatory statements elicited on

direct examination of Agents Kirk and Duncan were not taken

out of context or otherwise distorted. See Ortega, 203 F.3d at

683 (no violation in such circumstances, when a defendant

testifies himself as to exculpatory statements) (citing United

States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988) (per

curiam)); Nakai, 413 F.3d at 1022 (same, without consideration of whether the defendant testified or not). That Mitchell

told Duncan he had been drinking had nothing to do with his

ability to impeach the agent on the testimony that the agent

did give. And Mitchell’s purported reason for seeking to elicit

statements in which he denied killing anyone — the need to

clarify and refute Agent Kirk’s testimony that Mitchell lied

11594 UNITED STATES v. MITCHELL
during questioning — was removed when the trial court

struck that testimony.9

ii

[23] During its opening statement the government referred

to statements made by Orsinger and elicited those statements

during examination of Agent Kirk. Mitchell argues this ran

afoul of Bruton v. United States, 391 U.S. 123 (1968). An

alleged Bruton violation is reviewed de novo. United States

v. Angwin, 271 F.3d 786, 795 (9th Cir. 2001), overruled on

other grounds, United States v. Lopez, 484 F.3d 1186 (9th

Cir. 2007) (en banc). 

“Under Bruton and its progeny, the admission of a statement made by a non-testifying codefendant violates the Confrontation Clause when that statement facially, expressly,

clearly, or powerfully implicates the defendant.” Id. at 796.

However, Bruton applies only where co-defendants are tried

jointly, and is inapplicable when the non-testifying codefendant is severed out, as was the case here. See United

States v. Gomez, 276 F.3d 694, 699 & n.4 (5th Cir. 2002) (citing United States v. Briscoe, 742 F.2d 842, 847 (5th Cir.

1984) (“For Bruton to apply, however, there must be a joint

trial with co-defendants. Briscoe’s trial was severed from that

of the other defendants; thus Bruton is inapplicable.”)). 

iii

Evidence came in without objection regarding the license

plate of the truck used by the Trading Post robbers; informa9Mitchell’s argument that exclusion of his exculpatory statements violated Fed. R. Evid. 106 is waived because he raised it for the first time in

reply. It is also foreclosed by Ortega, 203 F.3d at 682, where we rejected

a similar argument. Rule 106 applies only to written and recorded statements, not unrecorded oral confessions, and Rule 106 does not render

admissible otherwise inadmissible hearsay. 

UNITED STATES v. MITCHELL 11595
tion received by law enforcement from an unidentified informant that Slim’s truck had been in the area of Mitchell’s

grandfather’s house; and the value of the goods taken during

the Trading Post robbery. Also, the fingerprint examiner testified that his conclusions had been verified by someone else,

and the medical examiner testified about incised wounds to

Doe’s neck and a diagram of injuries that may have been the

work of an assistant. Mitchell now claims Crawford error.

Our review is for plain error. United States v. Jawara, 474

F.3d 565, 583 (9th Cir. 2007). 

The Confrontation Clause does not apply to non-hearsay,

that is, it “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted,” nor does it apply to hearsay by a declarant who appears

for cross-examination at trial. Crawford, 541 U.S. at 59 n.9

(citing Tennessee v. Street, 471 U.S. 409, 414 (1985) and California v. Green, 399 U.S. 149, 162 (1970)). Statements made

in the course of police interrogation are nontestimonial when

made “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” but are testimonial

when “circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 126

S. Ct. 2266, 2273-74 (2006). 

[24] No plain error appears. Testimony by a patrol officer

about information an eyewitneses gave her about the car

parked at the Trading Post was offered as a basis for action,

not for its truth. Even if the tip that Slim’s vehicle had been

in an area near Mitchell’s grandfather’s house were hearsay,

nothing came of it and there was other, direct testimony to

similar effect. Mitchell waived error with respect to the value

of the goods by agreeing to allow the government to reopen

for Agent Duncan to testify to what he was told. The fingerprint examiner’s testimony was harmless in light of his proper

11596 UNITED STATES v. MITCHELL
testimony as to his own conclusions and the abundant other

evidence linking Mitchell to the crime. And the medical

examiner who conducted and supervised the examination and

completion of the diagram was available for crossexamination, so Mitchell’s substantial rights were not affected

even if some annotations were someone else’s out-of-court

statement. 

Mitchell also argues that his Crawford rights were again

violated in the penalty phase because all of the evidence

received during the guilt phase was admitted during the penalty phase as well. Assuming (without deciding) that Crawford applies during a capital sentencing phase, there was no

plain error. As we have explained, there was no obvious or

consequential Crawford error, and Mitchell makes no effort to

explain how, if there were, it affected his substantial rights

during the penalty phase. 

iv

[25] Jason Kinlicheenie was a cooperating witness who testified for the government pursuant to a written plea agreement. Mitchell was able to elicit that Kinlicheenie had entered

a plea agreement; that he had been facing four counts relating

to armed robbery with a potential minimum sentence of 62

years; that if “things were to go [his] way” under the agreement he would instead receive a minimum sentence of 7

years, a reduction of 55 years; that the plea agreement

required him to testify truthfully regarding the robbery and

the murders of Slim and Doe, as well as the murders of two

other victims (Begay and Sam); that in order to obtain the

benefit of the agreement, he had to tell the truth as determined

by the government prosecutor in Mitchell’s case; and that the

prosecutor could prosecute him for any crime and seek the

maximum penalty if the prosecutor did not believe he was

telling the truth, as well as inform the Bureau of Prisons

which could result in a loss of protective custody status.

Mitchell was not, however, allowed to go into the details of

UNITED STATES v. MITCHELL 11597
the Begay and Sam murders because, in the district court’s

view, discussion of those murders would be too prejudicial

under Rule 403. He claims this was an undue restriction on

his right to confront and cross-examine. 

We disagree that there was any such undue restriction. In

order for the Confrontation Clause to be satisfied, “where a

plea agreement allows for some benefit or detriment to flow

to a witness as a result of his testimony, the defendant must

be permitted to cross examine the witness sufficiently to make

clear to the jury what benefit or detriment will flow, and what

will trigger the benefit or detriment, to show why the witness

might testify falsely in order to gain the benefit or avoid the

detriment.” United States v. Schoneberg, 396 F.3d 1036, 1042

(9th Cir. 2005). This was allowed. It was not necessary for the

jury to hear in detail about the Begay/Sam murders (in which

Orsinger and Gregory Nakai, but not Mitchell, were involved)

in order to assess the benefit Kinlicheenie received for his

cooperation, and thus his motivation to lie. It would have been

distracting and of marginal probative value. Mitchell adduced

ample evidence of what the plea bargain was objectively

worth — 55 years off of a 62 year sentence — and of its subjective value to Kinlicheenie as he was willing to cooperate

against Mitchell, his longtime friend and relative. 

Mitchell also contends that the district court violated Fed.

R. Evid. 608(b) as well as his constitutional rights by preventing him from questioning Kinlicheenie about a prior arrest for

theft. This would have been only weakly probative of Kinlicheenie’s character for truthfulness; regardless, cutting off

this line of inquiry cannot have prejudiced Mitchell as the

other evidence he was able to elicit from Kinlicheenie, including admissions that Kinlicheenie had lied on several occasions, was far more effective impeachment and rendered

insignificant any additional value from the theft. Mitchell

cites no authority for his argument that a district court’s

refusal to permit a defendant to ask a witness about a past

instance of criminal misconduct in order to prove a poor char11598 UNITED STATES v. MITCHELL
acter for veracity violates a defendant’s constitutional rights

to confrontation or due process. Nor could he, unless every

exercise of discretion under Rule 608 adverse to a defendant

is a constitutional violation. 

UNITED STATES v. MITCHELL 11599
Volume 2 of 3

UNITED STATES v. MITCHELL 11601
v

Mitchell cites a number of discrete items of evidence that

he claims were improperly admitted. Our review is for abuse

of discretion, United States v. Alvarez, 358 F.3d 1194, 1205

(9th Cir. 2004), unless no objection was made in which event

we review for plain error, United States v. Tisor, 96 F.3d 370,

376 (9th Cir. 1996). Harmless error analysis applies to the

preserved objections; we will reverse a conviction only if an

erroneous ruling more likely than not affected the verdict.10

Alvarez, 358 F.3d at 1205. Addressing his assignments of

error in turn: 

[26] Medical Examiner Hearsay. An adequate foundation

was laid for admission of the diagram made during the

autopsy as a business record under Fed. R. Evid. 803(6). 

[27] Post-mortem Mutilation. Evidence of post-mortem

decapitation and dismemberment, thus of photographs depicting it, was relevant to show motive, premeditation, and consciousness of guilt; it tended to show that Mitchell needed to,

and tried to, obscure the identity of Slim and Doe in order to

have an untraceable vehicle for use in the Trading Post robbery that he and his cohorts planned to commit. Beheading

and dismembering Slim and Doe to conceal who the victims

were also shed light on the veracity of Mitchell’s theory of

defense — that he was present but did not participate in the

killings — because a glove linked to Mitchell through DNA

evidence was found in the hole where severed parts were buried, tending to show participation in the mutilation, thus consciousness of guilt, thus participation in the killings. Also, as

the district court observed, the medical examiner had to discuss severance of Doe’s head in order to explain the difficulty

10We note Mitchell’s suggestion that the Federal Death Penalty Act is

infirm in failing to allow for plain-error review, but we have no need to

address the question here because the government does not argue that any

of his claims are not subject to plain error analysis under the FDPA. 

11602 UNITED STATES v. MITCHELL
in determining whether and how her neck was sliced, and why

the examiner could not determine whether the slicing wounds

were fatal. Cause of death was obviously important because

it bore on details related in Mitchell’s confession. The district

court painstakingly scrutinized graphic photographs offered

by the government, making refined judgments about which

should be received into evidence, and how they should be

cropped or displayed to minimize prejudicial impact. It did

not abuse its discretion in balancing probative value in relation to prejudicial effect under Rule 403. 

Mitchell’s suggestion that the court erred by not considering elements of any charge other than murder in conducting

its Rule 403 analysis is unsupported, but even so, would fail

because he neither asked for, nor argues that it was a mistake

not to give, a limiting instruction. Likewise, Mitchell’s argument that the risk of prejudice in the penalty phase compelled

exclusion of the evidence in the guilt phase fails if for no

other reason than, as we shall explain, it was admissible on

the gateway intent factors and on one or more of the aggravating factors. 

[28] Victim Vulnerability. Evidence of Slim’s leg injuries

was relevant both to explain why Slim set out to see a medicine person and to premeditation because it tends to show that

Slim posed no threat to Mitchell and Orsinger, and they only

killed her because it furthered their plan to obtain an untraceable getaway car. Mitchell did not object, and there was no

plain error. 

[29] Victim Impact Evidence. Testimony by Doe’s mother

that Doe didn’t want to go with Slim on the trip, but her

mother made her, was not so plainly inflammatory that it

should have been excluded sua sponte. Nor, in light of the

overwhelming evidence of guilt can it possibly have been

plain error, in the absence of a motion to strike, for the court

to let stand an observation by the medicine woman whom

Slim saw that day that Slim or Doe had been a beautiful perUNITED STATES v. MITCHELL 11603
son, and “it was a shame.” The same is true of testimony by

two robbery victims about going to the hospital as a result of

having been hit with a gun and having been scared and

pushed around the counters. This was relevant to show that

the taking was done by force or violence, an element of robbery. 

[30] Opinion Evidence. An investigative agent testified,

without objection, that he took pictures of “blood splatter” on

the inside of the truck; he authenticated the photos but did not

express any opinion about what the photos signified. Similarly, an FBI agent testified about photographs of rocks that

he believed had blood on them, but did not testify that the

substance on the rocks was blood. As there was no expert testimony by the agents, there was no plain error in allowing it

without qualifying them. 

[31] Hearsay from Informant and Photos of “Mitchell’s

Canyon.” A tribal investigator was permitted to explain why

he went to an area near where Mitchell’s grandfather lived to

confirm information that he had gotten from an informant that

the Slim vehicle was supposedly there at some point.

Although he testified to finding tire tracks and footprints, he

also admitted that no “efforts were made to match either the

tire tracks that [he] saw or the footprints that [he] saw to any

tires or shoes that belonged to someone in this case.” This

cannot have been plainly erroneous. 

[32] Items Seized in Nakai’s Home. Investigators testified

to finding a newspaper with a front-page story on the robbery

and a police scanner and codes in the Nakai residence on the

morning that Mitchell was arrested there. Mitchell’s argument

that the newspaper was hearsay is meritless. The paper obviously came in for the fact of its presence in the home, not for

its content. In any event, the story could not be read as the

court only allowed the jury to see the paper and headline from

afar. Mitchell did not object to the court’s solution. This evidence was not irrelevant, as Mitchell contends, because the

11604 UNITED STATES v. MITCHELL
fact that he and others suspected of committing the Trading

Post robbery were staying together in a house where a police

scanner and a newspaper article covering the robbery were

also found corroborates other evidence that Mitchell and those

men actually did commit the robbery. Of course there are

other possible explanations for why Mitchell was found in a

place with these things, but that he was is probative circumstantial evidence of his involvement in the crime. Even if

there were error, it would be harmless given the strong evidence linking him to the robbery. 

[33] Height, Weight, and Age. Mitchell did not object at

the time to evidence of Orsinger’s height, weight, and age and

his own; having second thoughts later, he argued that it

opened the door for him to put in bad act evidence about Orsinger and moved to strike. The evident purpose of the Orsinger evidence was to counter the defense theory that Mitchell

was intimidated by Orsinger even though Orsinger was younger than he. There was no error. 

[34] DNA Evidence. Mitchell argues that the court should

not have admitted confusing, misleading, and irrelevant DNA

testimony, and also suggests that doing so fell short of the

Daubert test. Daubert v. Merrill Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) (making federal courts the gatekeeper for

reliability of scientific evidence). Daubert, however, was

never mentioned in district court and no argument is developed with respect to it in this court. No plain error is apparent;

the real difficulty with the DNA evidence in this case lay with

the coherence of the expert’s explanation of what constituted

a “match,” an “exclusion,” and a “cannot exclude” — not

with the inherent integrity of the methodology or results. 

According to the government’s expert, a “match” exists

when the person possesses all 14 of the “alleles” (DNA

sequence segments) taken from a sample at different “loci”

(positions on a chromosome), but the person is “excluded”

when he possesses none of the alleles taken from the sample.

UNITED STATES v. MITCHELL 11605
Mitchell’s complaint centers on confusion about what it

meant that a person “could not be excluded.” Undoubtedly the

expert’s explanation was not a model of clarity. She basically

said it meant that alleles of more than one person are present

in the sample, yet never clearly articulated what exactly the

fact that a person cannot be excluded from a sample says

about the probability that the person’s DNA is present in the

sample, or how likely it would be that a person would possess

any given number of alleles in a mixture and yet still not have

contributed the DNA. 

Mitchell suggests that “cannot exclude” is the very definition of non-probative. Thus, he submits, evidence beyond that

matching Slim’s blood to the truck and knives found in the

Nakai house, and matching Doe’s blood to the rocks, should

not have been admitted because it told the jury nothing. We

do not agree; the expert’s testimony indicates that a “cannot

exclude” finding can tell a lot, and can increase the probability that the person’s DNA is present, depending on the number of loci at which the person cannot be excluded. 

Apart from the evidence that Mitchell concedes was properly admitted, the jury was told that there was a mixture of at

least three person’s DNA on the black butterfly knife from

which the expert concluded that Mitchell and Jakegory could

not be excluded at all 14 loci, Slim could not be excluded at

13 of the 14, and Orsinger’s father and Gregory Nakai also

could not be excluded; that there was a mixture of at least two

people on the chrome knife, and Slim matched the major

component at all 14 loci, which would be expected to occur

in 1/650 billion Navajos; that Mitchell could not be excluded

at 12 of 14 loci on Slim’s cell phone; that Mitchell could not

be excluded from a Halloween mask because he had some of

the alleles found, but alleles he could not have produced were

also present; and that Mitchell could not be excluded as a contributor at all six loci that could be tested on a glove buried

with the body parts. The jury likely understood from this evidence that DNA linked Mitchell to the black knife and Slim’s

11606 UNITED STATES v. MITCHELL
cell phone, and somewhat linked him to the mask and glove.

It definitely connected Slim’s blood to the chrome knife

found in Mitchell’s pants. In sum, Mitchell has shown no

plain error. 

D

Mitchell requested the aiding and abetting instruction that

was given (Ninth Circuit Model Jury Instruction 5.1), but now

claims that it omitted the element that the accused had the

requisite intent of the underlying substantive offense. United

States v. Garcia, 400 F.3d 816, 819 n.2 (9th Cir. 2005) (listing elements). Giving the instruction was not plain error,

however, because it included the statutory language in 18

U.S.C. § 2(a) and stated that someone must have committed

the crime charged. United States v. Armstrong, 909 F.2d

1238, 1244 (9th Cir. 1990). 

E

Mitchell identifies three instances of misconduct in the

government’s opening statement. A district court’s response

to an objection on the grounds of prosecutorial misconduct,

including denial of a mistrial, is reviewed for abuse of discretion. United States v. Steele, 298 F.3d 906, 910 (9th Cir.

2002). When objected to, misconduct is subject to harmless

error review, while conduct to which the defendant failed to

object is reviewed for plain error. United States v. de Cruz, 82

F.3d 856, 861 (9th Cir. 1996). 

[35] First, the AUSA mentioned statements made by Orsinger, which Mitchell claimed was in violation of the court’s

order not to refer in opening statement, or during the case-inchief, to any of Orsinger’s statements that refer to Mitchell.

The AUSA stated that between Orsinger and Mitchell the

bodies of Alyce Slim and Jane Doe were located; that according to Kinlicheenie, Mitchell and Orsinger admit that they

killed an old lady and a young girl; and that when Agent Kirk

UNITED STATES v. MITCHELL 11607
told Mitchell “We have talked to Johnny Orsinger. He says

you stabbed Grandma,” Mitchell responded by saying “I did.

I stabbed Grandma a few times.” The district court agreed

with Mitchell that the government should not have made the

last statement under its prior order, but denied Mitchell’s

request for a mistrial. Mitchell argues that Orsinger’s hearsay

statements implicated him, but they either did not, or did so

obliquely as not to be prejudicial. The court also emphasized

to the jury that statements by the lawyers are not evidence.

For both reasons the court did not abuse its discretion in

refusing a mistrial. 

Second, the AUSA asserted that “Mitchell was asked, ‘Did

you yell at her or did you yell that the bitch won’t die’? ‘Lay

down and die, bitch.’ And he admitted that he said words to

that effect and the little girl laid down on the ground.” Mitchell interposed no objection. Agent Kirk, whom the government expected to testify that he had been told Mitchell said

this, testified only that “after he slashed the young girl’s

throat, he told her, in essence, to lay down on the ground and

die.” Absent any suggestion that the statement was in bad

faith (and there isn’t any), this was not plainly misconduct,

nor could it have affected Mitchell’s substantial rights in light

of the instructions. 

Third, the AUSA stated: “When we find the hole, next to

[Doe’s] head is a pair of latex gloves. And you will hear that

there is DNA material in that glove similar to the defendant’s.

. . . We found masks in the truck. And you will hear that

there’s some DNA material linking all three defendants to the

masks that were worn during the robbery.” Again, Mitchell

did not object. At trial, the DNA expert testified that, as to the

glove, the partial DNA profile obtained “was a mixture of at

least two individuals and that Mr. Lezmond Mitchell could

not be excluded as a contributor,” and as to the mask, the profile “was a mixture of at least three individuals. And that Mr.

Lezmond Mitchell could not be excluded as a contributor to

this mixture. There were other individuals who were excluded

11608 UNITED STATES v. MITCHELL
as contributors.” There is not enough difference to the lay ear

to constitute plain misconduct. 

In addition to these statements, Mitchell complains about

the government’s identifying Slim as a Navajo. Neither this

reference, nor testimony to the same effect by Yazzie and

Kinlicheenie, was racially inflammatory or in any way invidious. What the jury was told, and learned, about their ethnicity

was unavoidable. 

[36] Mitchell points to many statements made in closing

that he claims were improper, but to which he neither

objected at trial nor develops much of an argument on appeal.

We have reviewed the closing arguments with close attention

to each of the comments about which Mitchell complains.

While some things might have been put more felicitously, we

cannot see prejudicial impact from the remarks, singly or collectively. 

VI

[37] Sometime during the guilt phase, members of the victims’ family apparently sat in the courtroom wearing buttons

with pictures of Slim and Doe. This could be a problem if it

were “so inherently prejudicial as to pose an unacceptable

threat” to a defendant’s right to a fair trial, meaning that “an

unacceptable risk is presented of impermissible factors coming into play,” see, e.g., Norris v. Risley, 918 F.2d 828, 830

(9th Cir. 1990); Musladin v. Lamarque, 427 F.3d 653, 656-57

(9th Cir. 2005), vacated on other grounds, Carey v. Musladin,

127 S. Ct. 649 (2006), but there is no basis for supposing the

conduct here posed any such risk. All the record reflects is

that Mitchell’s counsel told the court a week later, and in connection with a different matter, that some members of the victims’ family were wearing buttons and that he and

government counsel had worked it out informally. There was

no plain error. 

UNITED STATES v. MITCHELL 11609
VII

[38] On two occasions the district judge met ex parte with

the United States Marshals Service, once to discuss security

concerns relevant to the court’s reconsidering its decision to

transfer the case to Phoenix, and another prior to the penalty

phase after Mitchell announced his refusal to be present. He

claims both incidents violated Fed. R. Crim. P. 43 and implicated his right to be present at a critical stage of the proceedings. No objection was lodged at the time. With respect to the

first instance, the court determined that it should hear from

the Marshal without anyone in attendance because of the Marshal’s concern about testifying in open court on security matters; however, the court invited counsel to suggest questions

to be pursued. With respect to the second, Mitchell’s counsel

asked the judge to speak with the Marshals about Mitchell’s

complaint that the Marshals had “forced him” to be present

when he did not want to be. During the conference that followed with the Marshal, the Marshal apparently told the judge

that Mitchell had stated his intent to fight any attempt to bring

him to court for the penalty phase. The judge relayed this

information from the bench, with Mitchell present, the next

day. As we indicated in United States v. Olano, 62 F.3d 1180,

1191 (9th Cir. 1995), and Unites States v. Dischner, 974 F.2d

1502, 1512-13 (9th Cir. 1992), meetings of this sort are not

“stages” of the trial for purposes of Rule 43. Securing facilities and transportation is a matter largely within the province

of the Marshal, to which it is unlikely that Mitchell could

have contributed anything substantial beyond his suggested

questions. Mitchell had every opportunity to challenge what

the Marshal said about his acting out, and to state his own

position. Mitchell does not suggest how he was prejudiced on

either occasion. 

Nor has Mitchell shown any constitutional violation. Neither discussion bears any connection to evidence presented

against Mitchell at trial. Thus, there was no Confrontation

Clause violation. Cf. Kentucky v. Stincer, 482 U.S. 730, 739-

11610 UNITED STATES v. MITCHELL
40 (1987) (indicating that the Confrontation Clause “may

well” protect right to presence at a witness competency hearing because of the relationship to trial testimony); United

States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam)

(indicating that the Confrontation Clause largely protects the

right to presence, but the Due Process Clause is implicated

instead “where the defendant is not actually confronting witnesses or evidence against him”). Likewise, there is no suggestion that these discussions interfered in any way with

Mitchell’s right to have the assistance of his counsel, from

whom he was not separated and no information was withheld.

No improper material was communicated to the jury so as to

deny him a fair trial. Finally, for all the reasons that there was

no Rule 43 violation, there was no due process violation. Id.

at 526 (the due process right to be present attaches only when

the defendant’s presence “ ‘has a relation, reasonably substantial, to the fulness of his opportunity to defend against the

charge . . . .’ ”) (quoting Snyder v. Massachusetts, 291 U.S.

97, 105-06 (1934)) (alterations in original); Stincer, 482 U.S.

at 745 (recognizing a defendant’s right to be present at any

stage of the criminal proceeding that is critical to its outcome

if his presence would contribute to the fairness of the procedure). 

VIII

Mitchell raises a number of issues with respect to capital

sentencing under the Federal Death Penalty Act, including

constitutionality of the scheme itself and how it was applied

to him. 

In order to consider death as a sentencing option, the FDPA

requires that the court or jury — in this case, the jury — first

unanimously find beyond a reasonable doubt: (1) the defendant was 18 years of age or older at the time of the offense;

18 U.S.C. § 3591(a); (2) the defendant had at least one of four

enumerated mentes reae (often referred to as “gateway intent

UNITED STATES v. MITCHELL 11611
factors”),11 id. § 3591(a)(2); and (3) the existence of at least

one of sixteen statutorily defined aggravating factors, id.

§ 3592(c). If the jury makes these threshold findings, the

defendant is eligible for the death penalty. In that event, the

jury decides whether to impose a sentence of death or life

imprisonment without possibility of release. In determining

the appropriate sentence, the jury considers whether any nonstatutory aggravating factors alleged by the government have

been proven beyond a reasonable doubt, and whether any mitigating factors have been proved by the defendant by a preponderance of the evidence. A finding of a mitigating factor

may be made by one or more members of the jury, and it may

be considered regardless of the number of jurors who concur.

If (as here) at least one mitigating factor is found, the jury

then decides whether all the aggravating factors found to exist

“sufficiently outweigh” the mitigating factors found to exist.

Id. § 3593(e); see also United States v. Brown, 441 F.3d 1330,

1365-66 (11th Cir. 2006) (outlining process). Special findings

must be returned identifying any aggravating and mitigating

factors found to exist. Id. § 3593(d). Based upon its consideration of the aggravating and mitigating factors, the jury by

unanimous vote recommends whether the defendant should be

11The four factors/mentes reae are: 

(A) intentionally killed the victim; 

(B) intentionally inflicted serious bodily injury that resulted in

the death of the victim; 

(C) intentionally participated in an act, contemplating that the

life of a person would be taken or intending that lethal force

would be used in connection with a person, other than one

of the participants in the offense, and the victim died as a

direct result of the act; or 

(D) intentionally and specifically engaged in an act of violence,

knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such

that participation in the act constituted a reckless disregard

for human life and the victim died as a direct result of the

act. 

11612 UNITED STATES v. MITCHELL
sentenced to death, to life imprisonment without possibility of

release, or some other lesser sentence. Id. § 3593(d), (e).12

A

Mitchell first asserts that each of the aggravating circumstances is unconstitutional facially or as applied or both. 

Six statutory aggravating factors were presented to the jury:

pecuniary gain; the manner of committing the offense was

especially heinous, cruel, or depraved; substantial planning

and premeditation; vulnerability of the victim; multiple killings; and the death of Jane Doe occurred during the commission and attempted commission of another felony,

kidnapping. 18 U.S.C. § 3592 (c)(8), (6), (9), (11), (16), (1).

One non-statutory aggravating circumstance was presented:

that the defendant caused injury, harm, and loss to the victim’s family. The jury found each of these factors to exist. 

Mitchell urged as mitigating factors that he did not have a

significant prior criminal record, id. § 3592(a)(5); that another

person, equally culpable in the crime, will not be punished by

death, id. § 3592(a)(4); that if life in prison were directed, it

would be without any possibility of release; that he responded

well to structured environments; that his capacity to appreciate the wrongfulness of his conduct was impaired, id.

§ 3592(a)(1); and that other facts in his childhood, background, character, and record mitigated against imposition of

the death sentence, id. § 3592(a)(8). The court also instructed

that in addition to these six factors, members of the jury could

consider anything about the circumstances of the offense, or

12When, as here, an appeal is taken, the statute directs the court of

appeals to review the entire record in the case including the evidence submitted during the trial; information submitted during the sentencing hearing; the procedures employed in the sentencing hearing; and the special

findings returned under § 3593(d). 18 U.S.C. § 3595(a), (b). We have done

so. 

UNITED STATES v. MITCHELL 11613
anything else relevant that anyone individually believed mitigated against imposition of the death penalty. All members of

the jury found the first three factors to exist by a preponderance of the evidence; two found Mitchell responded well to

structured environments and would make an excellent adjustment if sentenced to life imprisonment; one found his capacity to appreciate his conduct impaired; six found other factors;

and seven wrote-in that they found the letter from the Navajo

Nation an additional mitigating factor. 

It is a constitutional requirement of capital sentencing

schemes that they “perform a narrowing function with respect

to the class of persons eligible for the death penalty . . . .”

Jones v. United States, 527 U.S. 373, 381 (1999) (citation

omitted). Therefore, “[w]hen the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish

those who deserve capital punishment from those who do not,

the circumstance must provide a principled basis for doing

so.” Arave v. Creech, 507 U.S. 463, 474 (1993) (citing Lewis

v. Jeffers, 497 U.S. 764, 776 (1990)). Overbreadth is therefore

a relevant concern and the basic rule is that factors “can be

overbroad if the sentencing jury ‘fairly could conclude that an

aggravating circumstance applies to every defendant eligible

for the death penalty.” Jones, 527 U.S. at 401 (quoting Arave,

507 U.S. at 474). Vagueness is also an applicable doctrine,

though review is “quite deferential;” if “an aggravating factor

has a core meaning that criminal juries should be capable of

understanding, it will pass constitutional muster.” Id. at 400

(citing Tuilaepa v. California, 512 U.S. 967, 973 (1994)). We

consider each of the factors at issue here in light of these principles. 

[39] Pecuniary Gain. The first statutory aggravating factor

the jury was instructed on required a finding that Mitchell

“committed the killing as consideration for the receipt, or

expectation of receipt, of anything of pecuniary value.”

13 See

13In addition to the statutory language, the court defined terms for the

jury: 

11614 UNITED STATES v. MITCHELL
18 U.S.C. § 3592(c)(8). Mitchell did not object on any basis;

he now complains that this factor is unconstitutional because

it fails to narrow the class of offenders and is unconstitutionally vague and overbroad. The contention is foreclosed by

Woratzeck v. Stewart, 97 F.3d 329 (9th Cir. 1996), which

rejected a similar “narrowing” challenge to Arizona’s almost

identical pecuniary gain aggravating factor. See also Williams

v. 

Stewart, 441 F.3d 1030, 1058-59 (9th Cir. 2006) (same).

Mitchell’s vagueness challenge also lacks merit. The “core

meaning” of the pecuniary value factor is obvious from the

face of the language and the definitions provided to the jury.

Mitchell further contends this factor is unconstitutional

because it automatically triggers capital eligibility for every

carjacking that results in death. He reasons that “pecuniary

value” as an aggravating factor provides no narrowing function because every carjacking is by definition committed “in

the expectation” of obtaining something of value. The plain

reading of § 3593(c)(8) is that it applies “in the murder-forhire scenario . . . or in the robbery scenario (if the defendant

committed a concomitant murder ‘in the expectation of the

receipt of anything of pecuniary value’).” See Brown, 441

F.3d at 1370. Mitchell proffers no alternative construction.

Nor does he suggest when § 3592(c)(8) is appropriately considered by the jury if “pecuniary value” could not include

Alyce Slim’s truck or the Trading Post robbery. Limiting

§ 3592(c)(8) to murders-for-hire would read the second clause

out of the statute. And Mitchell’s insistence that § 3592(c)(8)

“Consideration” in this context means a payment or promise of

payment in return for services. The Government need not prove

that something of pecuniary value actually changed hands. The

words “receipt, or expectation of receipt” should be given their

ordinary, everyday meaning which includes obtaining or expecting to obtain something. “Anything of pecuniary value” means

anything in the form of money, property, or anything else having

some economic value, benefit or advantage. 

UNITED STATES v. MITCHELL 11615
is unconstitutional because it “encompasses every carjacking”

is the same argument that was made and rejected in Woratzeck. Mitchell’s motivation for killing was directly tied to

pecuniary gain, and his crime spree was ongoing — he

needed to kill Slim and Jane so the vehicle used in the robbery

could not be traced to him. That distinguishes this case from

United States v. Bernard, 299 F.3d 467 (5th Cir. 2002), on

which Mitchell relies, where the Fifth Circuit held that it was

error to instruct on pecuniary value as an aggravating factor

where the carjackers shot victims to prevent them from

reporting their crimes. Mitchell’s reliance on United States v.

Chanthadara, 230 F.3d 1237 (10th Cir. 2000), is also misplaced. Chanthadara held that the phrasing of the pecuniary

value instruction given in that case was error because it

“failed to specify the ‘offense’ to which it referred was the

homicide, not the underlying robbery, and thereby failed to

impose a necessary limitation.” Id. at 1264. In contrast, the

instruction here specified that the “Defendant committed the

killing as consideration . . . .” 

Section 3593(c)(8) by its plain terms applies to robbery

scenarios in which the defendant is motivated to kill for pecuniary reasons. That is not the case in every carjacking-murder

scenario but it aptly described what happened here. Slim and

Jane were not murdered incidentally, or solely to cover up a

crime, but because “pecuniary gain was expected to flow

directly from the homicide.” Bernard, 299 F.3d at 483-84.

Accordingly, there was no plain error. 

[40] Heinous, Cruel and Depraved. The second aggravating factor upon which the jury was instructed required it to

find that Mitchell “committed the killing in an especially heinous, cruel, or depraved manner in that it involved torture or

serious physical abuse to Alyce Slim and/or [Jane Doe].” See

18 U.S.C. § 3592(c)(6). Mitchell submits that this factor is

unconstitutional, but this can’t be so given that Congress

defined what it meant by “especially heinous, cruel, or

depraved” when it specified that for this manner of killing to

11616 UNITED STATES v. MITCHELL
be aggravating, it must involve “torture or serious physical

abuse to the victim.” See Maynard v. Cartwright, 486 U.S.

356, 364-65 (1988) (strongly suggesting that such a narrowing construction would be constitutional); Walton v. Arizona,

497 U.S. 639, 654-55 (1990) (approving of such an aggravator), overruled on other grounds, Ring v. Arizona, 536 U.S.

584 (2002); United States v. Jones, 132 F.3d 232, 249-50 (5th

Cir. 1998). Alternatively, Mitchell maintains that the court’s

charge defined the statute in overbroad terms,14 particularly

14The court’s instruction, essentially adopted verbatim from an instruction before the Fifth Circuit in United States v. Hall, 152 F.3d 381, 414

(5th Cir. 1998), stated: 

The second statutory aggravating factor alleged by the Government is that the Defendant committed the killing in an especially

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

serious physical abuse to Alyce Slim and/or [Jane Doe]. 

“Heinous” means shockingly atrocious. For the killing to be

heinous, it must involve such additional acts of torture or serious

physical abuse of the victim as set apart from other killings. 

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

degree of pain by torture or serious physical abuse of the victim

in addition to killing the victim. 

“Depraved” means that the defendant relished the killing or

showed indifference to the suffering of the victim in addition to

killing the victim. 

“Torture” includes mental as well as physical abuse of the victim. In either case, the victim must have been conscious of the

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

specifically intended to inflict severe mental or physical pain or

suffering upon the victim, apart from killing the victim. 

“Serious physical abuse” means a significant or considerable

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

a substantial risk of death, unconsciousness, extreme physical

pain, substantial disfigurement, or substantial impairment of the

function of a bodily member, organ, or mental faculty. Serious

physical abuse—unlike torture—may be inflicted either before or

after death and does not require that the victim be conscious of

the abuse at the time it was inflicted. However, the defendant

must have specifically intended the abuse apart from the killing.

UNITED STATES v. MITCHELL 11617
because it permitted the jury to consider conduct that occurred

after Slim and Doe lost consciousness or were dead. 

There is no question that post-mortem mutilation may constitutionally be considered as an aggravating factor in death

sentence determinations. See, e.g., Richmond v. Lewis, 506

U.S. 40, 48, 51 (1992) (holding that Arizona’s narrowing construction of its “especially heinous, cruel or depraved” factor

to include “needless mutilation of the victim” after death is

constitutionally adequate) (citing Lewis v. Jeffers, 497 U.S.

764, 777-78 (1990)). This is so even when the mutilation

occurs the next day and is done to conceal evidence; such a

factor plainly narrows the class of those eligible for the death

penalty and rationally identifies those who are more blameworthy on account of their depravity or cold-bloodedness.

The question here, however, is not the reach of the constituPertinent factors in determining whether a killing was especially heinous, cruel, or depraved include: infliction of gratuitous

violence upon the victim above and beyond that necessary to

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

helplessness of the victim. 

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

meaning of being highly or unusually great, distinctive, peculiar,

particular, or significant. 

In order to find that the Government has satisfied its burden of

proving beyond a reasonable doubt that the Defendant committed

the killing in an especially heinous, cruel, or depraved manner in

that it involved torture or serious physical abuse to the victim,

you may only consider actions of the defendant. 

Hall rejected vagueness and overbreadth challenges, noting that the

instruction made clear that what was contemplated was abuse “apart from”

the killing, and rejected Hall’s argument that the definition of “serious

physical abuse” was suspect because it allowed the jury to consider conduct after the victim lost consciousness. The court saw no reason why the

jury should be precluded from considering such conduct because it was

evidence that the killing was committed in a depraved manner in that it

provides an indication that Hall relished the killing. Id. at 415. 

11618 UNITED STATES v. MITCHELL
tion, but of the statute. A good argument can be made that the

text on its face does not encompass post-mortem mutilation,

as this factor is narrowed to focus on the manner of committing the murder, i.e., on specific kinds of suffering inflicted

beyond the act of killing itself — not what happens afterwards. On the other hand, as the government points out, other

circuits have accepted the proposition that post-mortem mutilation is encompassed within the “serious physical abuse”

aggravator. See Hall, 152 F.3d at 414 (holding that this is constitutional, and suggesting that it is also correct as a matter of

statutory interpretation); Chanthadara, 230 F.3d at 1261-62

(observing that there is no authority suggesting an alternate to

Hall’s construction of § 3592(c)(6)); Brown, 441 F.3d at

1362-63 (holding there was no error or only harmless error in

admitting post-mortem evidence because the FDPA does not

limit the “heinous, cruel, or depraved” aggravating circumstance to abuse inflicted while the victim was alive). 

However, in this case we do not need to resolve the reach

of § 3592(c)(6) because even if it were error to allow consideration of post-mortem mutilation as a statutory aggravating

factor, it was undoubtedly harmless. The reason is the jury

found five other statutory aggravating factors; only one is

required for passing through step three of the statutory process to make the defendant death eligible. Therefore, Mitchell

remains death eligible even if this one statutory aggravating

factor is disregarded. Beyond step three, the district court held

that evidence of mutilation was relevant on the non-statutory

aggravating factor, victim impact, and Mitchell does not challenge that ruling on appeal. Even if post-mortem mutilation

may not inform the statutory aggravating factor, it could

inform a non-statutory aggravating factor encompassing mutilation after death; as noted, such a factor would plainly be

constitutional. Cf. Brown v. Sanders, 126 S. Ct. 884, 892

(2006) (noting constitutional error arises only where the jury

could not have given aggravating weight to the same facts and

circumstances under some other sentencing factor). This

would make no difference in outcome here, because Mitchell

UNITED STATES v. MITCHELL 11619
had notice that the government would use this aggravator, see

18 U.S.C. § 3592(c), and once Mitchell became death eligible,

all of the aggravating factors — statutory and non-statutory

alike — and all of the mitigating factors were thrown into the

pot to be weighed by the jury as it saw fit. 

We recognize that the government does not argue that if

there were instructional error, it was harmless. Nevertheless,

we are not foreclosed from considering prejudice ourselves.

Indeed, under the FDPA we must consider whether error in a

sentence of death is harmless, for § 3595 instructs that “the

court of appeals shall not reverse or vacate a sentence of death

on account of any error which can be harmless, including any

erroneous special finding of an aggravating factor, where the

Government establishes beyond a reasonable doubt that the

error was harmless.” See Jones, 527 U.S. at 402-05. Regardless, we may overlook the government’s failure to mount a

harmless error argument when, as here, considerations of

length and complexity of the record, certainty of how harmless the error is, and the consequences of reversal

(“protracted, costly, and ultimately futile proceedings in the

district court”) counsel in favor of doing so. United States v.

Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir. 2005). 

Unlike most harmless error inquiries, this is not a factbased inquiry where the length and complexity of the record

might deter appellate courts from sua sponte conducting a

harmless error analysis. Rather, the analysis here is straightforward, and certain: the jury found a statutory aggravating

factor that is surplus if invalid; we know for sure what the

jury would find as to a non-statutory aggravating factor based

on mutilation. Accordingly, we leave the full reach of

§ 3592(c)(6) for another day. Error in this case, if any, was

harmless beyond a reasonable doubt. 

[41] Substantial planning and premeditation; victim vulnerability; multiple killings. Mitchell insists that the statutory

aggravators — “substantial planning and premeditation,

11620 UNITED STATES v. MITCHELL
§ 3592(c)(9), victim vulnerability, § 3592(c)(11), and multiple

killings in a criminal episode, § 3592(c)(16) — are vague and

overbroad in that the jury was left without sufficient guidance

to determine what constitutes “substantial,” “youth,” “infirmity,” and “single criminal episode.” We disagree. Aggravating

factors “are by necessity somewhat general,” and the Constitution does not demand “mathematical precision.” See

Tuilaepa, 512 U.S. at 973 (quoting Walton, 497 U.S. at 655).

The Supreme Court has “found only a few factors vague, and

those in fact are quite similar to one another” in their tendency to involve pejorative adjectives that describe a crime as

a whole. Id. at 974; Arave, 507 U.S. at 472. That is not the

case with any of these particular factors. Nor could these

aggravating facts apply to “every defendant eligible for the

death penalty.” Id. at 474. Not all kill a sixty-three year old

grandmother and a nine-year old girl, pursuant to a plan to

obtain a car for use as a get-away vehicle in a robbery. 

[42] Kidnapping. The jury was permitted to consider as a

statutory aggravating factor that “the death of [Jane Doe]

occurred during the commission and attempted commission of

[her kidnapping].” See 18 U.S.C. § 3592(c)(1). Mitchell contends that because the kidnapping charge was brought pursuant to the Major Crimes Act, the Navajo Nation must have

opted-in to the FDPA under 18 U.S.C. § 3598 before it could

be used as an aggravating factor permitting the jury to recommend death. However, as we have explained, Mitchell was

subject to a capital sentence on account of his violating

§ 2119 (carjacking resulting in death), a crime of general,

nationwide applicability that is an “offense for which a sentence of death is provided.” 18 U.S.C. § 3591(a)(2). Having

been convicted on the § 2119 count, his offense under § 1201

(kidnapping) was relevant to “determining whether a sentence

of death is justified for an offense described in section

3591(a)(2).” Id. § 3592(c). 

[43] Non-statutory aggravating factors. Mitchell complains for the first time on appeal that the provision within

UNITED STATES v. MITCHELL 11621
§ 3592(c) authorizing the government to pursue non-statutory

aggravating factors is an unconstitutional delegation of legislative power. Assuming (without deciding) that such an

authorization even constitutes a delegation of legislative

power, it would be “permissible so long as there are intelligible principles’ by which to exercise the delegated authority.”

United States v. Jensen, 425 F.3d 698, 707 (9th Cir. 2005)

(citing United States v. Mistretta, 488 U.S. 361, 371 (1989)),

cert denied, 126 S. Ct. 1664 (2006). Mitchell insists that the

government is “limited only by its imagination” in deciding

what qualifies as an aggravator. That is incorrect. As the Fifth

Circuit pointed out in rejecting this identical argument, there

are a number of limitations on the government’s power to pursue non-statutory aggravators, including that the defendant

must have been given notice of the factor, see 18 U.S.C.

§ 3592(c); that the Supreme Court has articulated several constitutional limitations on the use of aggravating factors; that

“the district court functions as a gatekeeper to limit the admission of useless and impermissibly prejudicial information”;

and that “the jury find at least one statutory aggravating factor

beyond a reasonable doubt before it may consider the nonstatutory factors.” Jones, 132 F.3d at 239-40; see also United

States v. Frank, 8 F. Supp. 2d 253, 266 (S.D.N.Y. 1998).

Mitchell’s vagueness and overbreadth challenge to the nonstatutory aggravator used here, that he “caused injury, harm,

and loss to [the victim’s] family,” likewise fails given the

Supreme Court’s rejection of vagueness and overbreadth challenges to a similar aggravator. See Jones, 527 U.S. at 378,

400-01 (observing that jury would have no trouble “comprehending” that the factor “asked it to consider the victim’s personal traits and the effect of the crime on her family”); id. at

401-02 (“Because [the] factors . . . directed the jury to the evidence specific to this case, we do not think that they were

overbroad in a way that offended the Constitution.”). 

B

[44] Based on Ring, where the Court held that the Sixth

Amendment requires a jury rather than a sentencing judge to

11622 UNITED STATES v. MITCHELL
find the existence of any aggravating factor “necessary for

imposition of the death penalty,” 536 U.S. at 609, Mitchell

contends that the FDPA is unconstitutional because it does

not require statutory aggravating factors to be charged in the

indictment. Regardless, Mitchell’s indictment did charge statutory aggravating factors upon which the government proceeded. Therefore, his facial challenge is unavailing. See

Brown, 441 F.3d at 1367; United States v. Robinson, 367 F.3d

278, 290 (5th Cir. 2004). 

Mitchell also complains that the government failed to present and charge non-statutory aggravating factors, but there is

nothing to suggest that this is constitutionally required. The

rationale underlying the requirement that statutory aggravating factors be charged is that the existence of at least one is

a prerequisite to increasing a defendant’s sentence from life

imprisonment. A non-statutory aggravating factor by itself

cannot trigger death eligibility. See, e.g., United States v.

LeCroy, 441 F.3d 914, 922 (11th Cir. 2006); Brown, 441 F.3d

at 1368. 

[45] Mitchell also submits that the FDPA’s procedural protections are inadequate because the Act authorizes admission

of evidence at the penalty phase that would not be admissible

under the Federal Rules of Evidence, and that § 3593(c),

allowing information without regard to its admissibility under

the rules for admission of evidence at criminal trials, violates

due process and the Confrontation Clause.15 The Rules of Evidence do not apply to sentencing proceedings. See Fed. R.

Evid. 1101(d)(3). To the extent Mitchell suggests that they, or

similar constraints, constitutionally must apply, we disagree.

15Section 3593(c) states in relevant part: 

Information is admissible regardless of its admissibility under the

rules governing admission of evidence at criminal trials except

that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the

issues, or misleading the jury. 

UNITED STATES v. MITCHELL 11623
While capital punishment demands increased reliability, “the

Supreme Court has . . . made clear that in order to achieve

‘such heightened reliability,’ more evidence, not less, should

be admitted on the presence of aggravating and mitigating

factors[.]” United States v. Fell, 360 F.3d 135, 143 (2d Cir.

2004) (citing Gregg v. Georgia, 428 U.S. 153, 203-04

(1976)); accord United States v. Lee, 374 F.3d 637, 648 (8th

Cir. 2004) (agreeing that “the admission of more rather than

less evidence during the penalty phase” enhances reliability).

Moreover, the FDPA allows the district judge to exclude evidence if its probative value is outweighed by the danger of

creating unfair prejudice, confusing the issues, or misleading

the jury. This provides a constitutionally sufficient procedural

safeguard for evidentiary reliability. Id.; cf. Fed. R. Evid. 403

(allowing for exclusion when the probative value is “substantially outweighed” by prejudicial effect); see also United

States v. Fulks, 454 F.3d 410, 438 (4th Cir. 2006) (stating that

the FDPA’s balancing test is a “ready mechanism” with

which trial courts can protect defendants). 

C

Section 3593 is not unconstitutional, as Mitchell proposes,

because it places the burden of proving mitigating factors on

the defense while giving the government the right to argue

first and last.16 The order of march is the same as for trials

1618 U.S.C. § 3593(c) provides in pertinent part: 

The government and the defendant shall be permitted to rebut any

information received at the [sentencing] hearing . . . . The government shall open the argument. The defendant shall be permitted to reply. The government shall then be permitted to reply in

rebuttal. The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the

existence of such a factor is established beyond a reasonable

doubt. The burden of establishing the existence of any mitigating

factor is on the defendant, and is not satisfied unless the existence

of such a factor is established by a preponderance of the information. 

11624 UNITED STATES v. MITCHELL
generally under Fed. R. Crim P. 29.1. In addition, the FDPA

“requires more exacting proof of aggravating factors than mitigating ones — although a jury must unanimously agree that

the Government established the existence of an aggravating

factor beyond a reasonable doubt, § 3593(c), the jury may

consider a mitigating factor in its weighing process so long as

one juror finds that the defendant established its existence by

preponderance of the evidence, §§ 3593(c), (d).” Jones, 527

U.S. at 377. 

D

Mitchell argues that the FDPA is unconstitutional because

it is a “weighing statute” that includes non-statutory aggravating factors yet does not provide for proportionality review.

Proportionality review refers to the notion that imposition of

the death penalty would be “unacceptable in a particular case

because [it is] disproportionate to the punishment imposed on

others convicted of the same crime.” Pulley v. Harris, 465

U.S. 37, 43 (1984). Pulley squarely rejected the claim that the

Constitution requires proportionality review in death sentences. Id. at 43-45; Allen v. Woodford, 395 F.3d 979, 1018

(9th Cir. 2005). Mitchell cites no authority suggesting that

Pulley is distinguishable merely because the FDPA authorizes

consideration of non-statutory aggravating factors, and we

join other circuits in rejecting this proposition. See, e.g.

United States v. Higgs, 353 F.3d 281, 320-21 (4th Cir. 2003);

United States v. Jones, 132 F.3d 232, 241 (5th Cir. 1998) (“As

long as the statute prevents an arbitrary death sentence, the

inclusion of relevant nonstatutory aggravating factors at the

sentencing stage does not render the death penalty scheme

unconstitutional.”). Zant v. Stephens, 462 U.S. 862 (1983),

upon which Mitchell relies but which preceded Pulley, does

not suggest otherwise. It contemplated that non-statutory

aggravating factors were constitutionally permissible. See id.

at 878 (observing that while “statutory aggravating circumstances play a constitutionally necessary function . . . . the

UNITED STATES v. MITCHELL 11625
Constitution does not require the jury to ignore other possible

aggravating factors”). 

E

Mitchell asserts that his death sentence violates the Eighth

Amendment because he was less culpable than Orsinger and

Nakai, neither of whom was sentenced to death. To the extent

his claim rests on a right for inter-case proportionality review,

it is foreclosed. See Martinez-Villareal v. Lewis, 80 F.3d

1301, 1308 (9th Cir. 1996) (observing that there is “no federal

constitutional requirement of an inter-case proportionality

analysis of death sentences”). In any event, Nakai’s culpability in a separate double murder is irrelevant. Mitchell’s presumption that he was less culpable than Orsinger is also

unavailing. As with Nakai, it is irrelevant that Orsinger was

also involved in the separate double murder. As to the crimes

at issue in this case, the jury implicitly rejected Mitchell’s theory that he was less culpable than Orsinger in finding Orsinger was “equally culpable in the crime.” Further, Orsinger’s

ineligibility for the death penalty had nothing to do with his

factual culpability; he was categorically ineligible for capital

punishment because he was 16 years-old at the time of the

murders. See Roper v. Simmons, 543 U.S. 551, 569-74 (2005).

Thus, there is nothing arbitrary about the sentencing disparity

between Orsinger and Mitchell. Neither was the jury precluded from evaluating this very issue during penalty phase.

It was, indeed, the focal point of Mitchell’s case in mitigation.

F

Mitchell maintains that it would violate the Eighth Amendment to sentence him to death because of his age and maturity

level (he was 20 at the time of the offenses). According to

Mitchell, there is little practical difference between himself

and an offender under the age of 18, who is categorically

excluded from being subject to the death penalty by Simmons.

543 U.S. 551 at 578-79. The Court drew this line well aware

11626 UNITED STATES v. MITCHELL
of the “objections always raised against categorical rules,” id.

at 574, driven by two rationales: there was “objective indicia

of consensus” against sentencing juveniles to death in that, for

example, most States had already rejected it; and the death

penalty “is a disproportionate punishment” because juveniles

as a class are less culpable. Id. at 563-69; see also Allen v.

Ornoski, 435 F.3d 946, 952 (9th Cir. 2006). 

[46] Mitchell suggests that “evolving standards of decency”

weigh against sentencing a 20 year-old such as he to death,

but offers no “objective indicia” that this is so. Mitchell also

fails to explain how his level of culpability is such that his

death sentence is a disproportionate punishment. Of course,

“[t]he qualities that distinguish juveniles from adults do not

disappear when an individual turns 18,” Simmons, 543 U.S. at

574, so it may well be true that Mitchell is less mature than

the average 20 year old. But whether true or not, and whether

that mitigates against his crime, is a question the Constitution

permits to be answered on a case-by-case basis. 

[47] Mitchell insists that it is unconstitutional in his case

because he suffers from the same infirmities as a juvenile. As

we explained in Allen, there are “three traits of juveniles

which, as a class, render them less culpable and therefore

unsuitable to be placed in the worst category of offenders: (1)

“a lack of maturity and an underdeveloped sense of responsibility resulting in impetuous and ill-considered actions and

decisions; (2) a heightened vulnerability to negative influences and outside pressures; and (3) personality that is more

transitory, less fixed.” 435 F.3d at 952 (quoting Simmons, 543

U.S. at 569-70) (internal quotations omitted). There is nothing

to suggest, nor does Mitchell claim, that the jury was not permitted to consider traits such as these as mitigating. Nor does

anything presented by Mitchell in the penalty phase indicate

a manifestly underdeveloped level of maturity. He was

described as a “very excellent student,” “active in student

council,” who spoke at his high school graduation, and knew

UNITED STATES v. MITCHELL 11627
“the difference between right and wrong.” In sum, his death

sentence is not barred by the Eighth Amendment. 

G

Mitchell asks us to declare the FDPA unconstitutional but

offers no particulars. In a single sentence he asserts that the

death penalty is racist and “represents an intellectually dishonest Congressional response” to the nation’s crime problem; vests uncontrolled discretion in prosecuting authorities;

no longer comports with evolving standards of decency; and

results in the execution of innocent people. In a related claim,

Mitchell provides statistical data from a web site and a

Department of Justice report to suggest that the federal death

penalty disproportionately applies to minorities, in violation

of the Eighth Amendment and the Equal Protection Clause. 

[48] We resolve these points summarily. The bare allegation that the federal death penalty is “racist to its very core”

cannot sustain a constitutional challenge. It is axiomatic that

“capital punishment be imposed fairly, and with reasonable

consistency, or not at all,” Eddings v. Oklahoma, 455 U.S.

104, 112 (1982), but Mitchell makes no effort to explain in

what manner race has infected the FDPA sentencing process.

His related claim regarding disproportionate impact relies

solely on statistical data and is, without more, likewise insufficient. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987)

(“[T]o prevail under the Equal Protection Clause, McCleskey

must prove that the decisionmakers in his case acted with discriminatory purpose.”); Harris v. Pulley, 885 F.2d 1354,

1374-77 (9th Cir. 1988). His unexplained and unsubstantiated

claim regarding prosecutorial discretion is foreclosed. See

Campbell v. Kincheloe, 829 F.2d 1453, 1465 (9th Cir. 1987)

(observing that a challenge to a state capital punishment statute on the ground that it “vests unbridled discretion in the

prosecutor to decide when to seek the death penalty . . . has

been explicitly rejected by the Supreme Court”) (citations

omitted). Similarly unavailing is his contention that capital

11628 UNITED STATES v. MITCHELL
punishment is incompatible with society’s values or otherwise

categorically violates the Eighth Amendment. See Gregg, 428

U.S. at 187. Whether contemporary values dictate a different

answer today is for the Supreme Court to decide; the Eighth

Amendment does not authorize this court to overrule Supreme

Court precedent “even where subsequent decisions or factual

developments may appear to have significantly undermined

the rationale for [an] earlier holding.” Simmons, 543 U.S. at

594 (O’Connor, J., dissenting) (internal quotations and citation omitted). 

Finally, Mitchell cites no authority suggesting that the risk

of executing an innocent defendant renders capital punishment inherently unconstitutional. The danger of executing the

innocent is one the Supreme Court has long been aware of.

See, e.g., Furman v. Georgia, 408 U.S. 238, 367-68 (1972)

(Marshall, J., concurring) (“We have no way of judging how

many innocent persons have been executed but we can be certain that there were some.”); Atkins v. Virginia, 536 U.S. 304,

321 n.25 (2002) (“Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact

that in recent years a disturbing number of inmates on death

row have been exonerated.”). The Second Circuit has

expressly rejected the same contention, see United States v.

Quinones, 313 F.3d 49, 69 (2d Cir. 2002), and, as it observed,

the contention is hardly novel. Mitchell’s undeveloped argument therefore fails. 

H

[49] Mitchell argues that the death penalty is infrequently

sought or imposed under the FDPA, making it an “unusual”

penalty in violation of the Eighth Amendment. That federal

executions are rare,17 however, does not render the FDPA

17The Department of Justice reported in 2000 that “[f]rom 1930 to 1999,

state governments executed over 4,400 defendants. During the same time

period, the federal government executed 33 defendants and has not carried

UNITED STATES v. MITCHELL 11629
unconstitutional. The relevant question — whether capital

punishment in the abstract violates the Eighth Amendment —

was answered in the negative by Gregg, 428 U.S. at 187. In

a related claim, Mitchell maintains that the FDPA is applied

irrationally because he is the first Native American to be sentenced pursuant to it for an intra-Indian crime. But it does not

follow from that fact, or the fact that the government declined

to seek the death penalty against Nakai, that sentences under

the FDPA are inexplicably random. To the extent Mitchell

suggests that such discrepancies of their own force render the

FDPA unconstitutional, his claim is foreclosed by McCleskey.

481 U.S. at 314-18. 

I

As § 3596 requires, Mitchell’s judgment provides that his

execution be carried out “in the manner prescribed by the law

of the State of Arizona.” Arizona presently executes prisoners

by lethal injection. A.R.S. § 13-704. Mitchell contends that

lethal injection constitutes cruel and unusual punishment. He

recognizes that Arizona’s lethal injection method has previously withstood constitutional challenge, see LaGrand v.

Stewart, 133 F.3d 1253, 1264-65 (9th Cir. 1998); Poland v.

Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997), but requests

reconsideration of those decisions “in light of evolving standards of decency” and a new study suggesting that inmates

received insufficient anaesthesia, leaving them conscious but

paralyzed as they die. It is not obvious that Mitchell may

bring this claim on direct appeal of his conviction and regardless, we could not consider Mitchell’s claim because review

would be impossible on the present record. The point wasn’t

out any executions since 1963.” U.S. Dep’t of Justice, The Federal Death

Penalty System: A Statistical Survey (1988-2000) 5 (2000). As of 2004,

there have been three executions under the FDPA. See Joshua Herman,

comment, Death Denies Due Process: Evaluating Due Process Challenges to the Federal Death Penalty Act, 53 DePaul L. Rev. 1777, 1895

n.182 (2004). 

11630 UNITED STATES v. MITCHELL
raised in district court and absolutely nothing pertinent to it

appears. We therefore decline to address the issue. See Hill v.

McDonough, 126 S. Ct. 2096, 2101-02 (2006) (indicating that

a challenge could be brought in a 42 U.S.C. § 1983 action

upon a conviction’s becoming final). 

J

Another challenge suffers a similar problem and is also

misplaced — that the government has denied Mitchell’s last

rights by preventing him from participating in a sweat lodge

ceremony in federal prison. Given that his current and future

prison conditions are unrelated to his sentence, bringing this

challenge on direct appeal is both inapposite (there is no way

of telling when or whether Mitchell has requested a sweat

lodge ceremony and what the prison’s response was) and premature. 

IX

Mitchell made the uncommon decision not to be present for

the penalty phase. As a result, his counsel asked to withdraw.

We must therefore consider whether the court abused its discretion in determining to proceed with the same counsel who

represented Mitchell for the guilt phase, and whether Mitchell

could (and did effectively) waive presence at the penalty

phase. 

A

On May 8, a few days before the penalty phase was to

begin, counsel advised the court of Mitchell’s intent to waive

presence. The district judge carefully questioned Mitchell.

Mitchell said he just didn’t want to be present, and that his

counsel could proceed without him. A similar colloquy

occurred the next day; Mitchell clearly indicated that he had

no issues with his attorneys’ continuing to represent him. On

the basis of these statements, the court denied counsels’

UNITED STATES v. MITCHELL 11631
request to withdraw. It found no irreconcilable differences, or

any actual conflict; to the contrary, Mitchell was not opposed

to counsel presenting mitigation in his behalf. Further, it

found that substituting counsel on the eve of the penalty phase

would be detrimental to Mitchell’s interests and would require

considerable delay and likely empanelment of a new jury. A

few days later counsel renewed their request, the judge again

made inquiry of Mitchell, and again, based on his assurance

that appointing another lawyer would make no difference in

his position, denied the motion. 

The denial of a motion for substitution of counsel is

reviewed for abuse of discretion. United States v. Cassel, 408

F.3d 622, 637 (9th Cir. 2005) (internal citation and quotations

omitted). Generally, three factors are considered in reviewing

the trial court’s decision: “(1) the adequacy of the court’s

inquiry into the defendant’s complaint, (2) the extent of conflict between the defendant and counsel, and (3) the timeliness

of the motion and the extent of resulting inconvenience or

delay.” Id. (citing United States v. Gonzalez, 113 F.3d 1026,

1028 (9th Cir. 1997)).

[50] There is no close question on any of the three. First,

the district court’s inquiry into the matter was more than adequate. The court gave Mitchell’s counsel plenty of opportunity to make their case and questioned Mitchell several times

before providing a reasoned explanation why it was denying

the request. Second, the “complete communications breakdown,” United States v. Nguyen, 262 F.3d 998, 1005 (9th Cir.

2001), resulted from Mitchell’s desire no longer to participate

in court proceedings, not from anything specific to his relationship with his attorneys. The district court found no actual

conflict and sensibly concluded that appointing new counsel

would not change Mitchell’s behavior or be in his best interests. Finally, while Mitchell’s attorneys were diligent in

requesting withdrawal once Mitchell stopped cooperating, the

timing could hardly have been worse. They were ready to go

with the penalty phase, which Mitchell wanted them to do.

11632 UNITED STATES v. MITCHELL
Delay, probably including the need to empanel a new jury,

would be inevitable. Accordingly, the district court did not

abuse its broad discretion in refusing the request. United

States v. Garcia, 924 F.2d 925, 926 (9th Cir. 1991). 

B

The more difficult questions arise out of Mitchell’s waiver

of presence: Should the court have held a competency hearing

before accepting Mitchell’s waiver? and could it allow him to

waive presence under Fed. R. Crim. P. 43? 

According to counsel, Mitchell had been contemplating a

request to waive his presence at the penalty phase even before

the jury verdicts in the guilt phase. On May 8, the day the verdicts were returned, Mitchell’s attorneys informed the judge

that he had become uncooperative and made clear that he no

longer wanted to participate in court proceedings. Outside the

presence of the jury and government counsel, the judge told

Mitchell that waiver was ill-advised and would not be in his

best interests. Mitchell responded: “I would just like to state

the fact that I wish to waive my appearance.” The district

judge then told Mitchell to consider his decision and that they

would discuss it again the next day. 

The next day Mitchell again stated he did not want to be

present at trial any longer. When asked why, Mitchell said, “I

don’t see no benefit or any relevance to me being here.” The

judge told Mitchell that in her opinion, it would be both relevant and beneficial. She explained in detail what the sentencing hearing was about, reemphasized that waiving presence

was ill-advised, and told him in several different ways that his

presence would substantially affect whether the jury sentenced him to death or not. Nevertheless, acknowledging that

he understood the consequences and in the face of the court’s

advice that “your very life hangs in the balance and that your

presence during the sentencing phase may affect the jury’s

decision,” Mitchell repeated his position and gave the same

UNITED STATES v. MITCHELL 11633
reason. Noting a strong argument could be made that a defendant may not waive his presence during a capital sentencing

proceeding, the court denied the request and directed Mitchell

to appear. Mitchell’s counsel sought to counter the court’s

observation by citing Johnson v. Zerbst, 304 U.S. 458 (1938),18

and representing that the right to be present at all critical

stages of trial can be waived if the waiver is accepted by the

court on the basis that it is voluntarily, knowingly, and intelligently made. Counsel added that to force Mitchell’s presence

would make things worse as he might become disruptive and

refuse to dress out of his prison uniform. The court responded

that it had no reason to doubt that Mitchell, who had been

respectful throughout, would not follow the court’s directive.

Another hearing was held on May 13th. Mitchell’s attorneys reiterated that based on information received that morning, Mitchell would not dress out and if that were to happen

it would be more detrimental than beneficial. The district

judge meticulously explained again that she believed Mitchell

was wrong in believing the jury had already made up its mind,

that only one juror had to be persuaded that he did not deserve

a sentence of death, and that his presence could tip the balance. She pointed out the significance of the fact that Orsinger

was not looking at the death penalty, and indicated that

Mitchell had a chance not to get the death penalty but his

presence was critical. At sidebar, the court told counsel that

it hoped Mitchell would reconsider, but if he did not, it would

grant the waiver and have him watch the proceedings on a

closed-circuit TV. 

Another hearing was held on May 14th at noon, just prior

to the start of trial. Mitchell appeared before the court shackled and in prison clothes. He indicated that he had refused to

dress out because he had not changed his mind about wanting

18Johnson v. Zerbst is the leading case establishing that a waiver is an

“intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464. 

11634 UNITED STATES v. MITCHELL
to be present during the penalty phase. The court then

engaged Mitchell in a lengthy colloquy to determine whether

his decision was knowing and voluntary. Satisfied that his

answers showed it was, the court granted his request, indicating that Mitchell at any time could change his mind about

being present or about testifying. The court also found that it

wanted to avoid any disruptiveness from Mitchell, who had

informed the Marshal that he did not want to be in court and

would fight being there for the sentencing phase, which would

not be in his best interests. Following this ruling, counsel

renewed their motion to withdraw, which was denied after

confirming with Mitchell that he had no issues with his lawyers. Once the penalty phase got underway, the court admonished the jury not to draw any adverse inference from the fact

that the defendant exercised his right not to testify or attend

the proceedings. 

i

Mitchell insists that given his “irrational behavior and

demeanor,” the court should have ordered a competency hearing sua sponte. “Due process requires a trial court to hold a

competency hearing sua sponte whenever the evidence before

it raises a reasonable doubt whether a defendant is mentally

competent.” Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir.

1997). The standard for competency is the “ability to understand the proceedings and to assist counsel in preparing a

defense;” this is measured by “evidence of the defendant’s

irrational behavior, his demeanor in court, and any prior medical opinions on his competence.” Id. (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)). “On review, [the] inquiry is

not whether the trial court could have found the defendant

either competent or incompetent, nor whether [the reviewing

court] would find the defendant incompetent . . . .” Chavez v.

United States, 656 F.2d 512, 516 (9th Cir. 1981). Rather, the

record is reviewed “to see if the evidence of incompetence

was such that a reasonable judge would be expected to experiUNITED STATES v. MITCHELL 11635
ence a genuine doubt respecting the defendant’s competence.”

Id.

It is clear from the record that Mitchell understood the

nature of the proceedings and that his chances of avoiding the

death penalty could ride on his presence. He points to no psychiatric evidence that he was somehow clinically incompetent. Finally, Mitchell was not disruptive, did not launch into

emotional outbursts, maintained appropriate demeanor, and

did not behave erratically. Cf. Torres v. Prunty, 223 F.3d

1103, 1109 (9th Cir. 2000) (describing bizarre courtroom conduct by a habeas petitioner who had been diagnosed with a

severe delusional disorder, which included wearing jailhouse

blues; threatening to assault his attorney; continually disrupting the proceedings; and insisting that he be handcuffed as

well as shackled). In short, Mitchell gave the judge no “reason

to doubt [his] competence.” Godinez v. Moran, 509 U.S. 389,

402 n.13 (1993). 

[51] While Mitchell recognized that his decision might be

self-defeating, he made it anyway. The court did its best to

talk Mitchell out of doing something that it believed was

imprudent and not in his best interests. Mitchell acknowledged what the court, and his counsel, thought but, as he put

it at one point, “Isn’t that my decision?” As manifest by the

extensive exchanges, Mitchell was alert, understood what he

was doing, and gave no hint of lacking a rational grasp on the

proceedings. Accordingly, the district court did not err in failing to hold a more complete competency hearing sua sponte.

ii

Mitchell argues that Fed. R. Crim. P. 43 required his presence and that it could not be waived in a capital case. No

objection was made on this basis. Indeed, Mitchell’s attorneys

argued in support of waiver before the district court. 

11636 UNITED STATES v. MITCHELL
Rule 43(a) requires a defendant’s presence at every trial

stage including sentencing, but when a defendant has initially

been present at trial, Rule 43(c) allows for waiver of the right

to be present when the defendant is voluntarily absent after

the trial has begun; in a noncapital case, when the defendant

is voluntarily absent during sentencing; or when the defendant

persists in disruptive behavior after being warned.19

[52] The scope of a defendant’s right to be present at every

trial stage, derived from the Confrontation Clause of the Sixth

Amendment and the Due Process Clause of the Fifth Amendment, has evolved from Diaz v. United States, 223 U.S. 442

(1912), where the Court held that a defendant who was neither in custody nor charged with a capital offense could waive

the right of presence by voluntarily absenting himself, to our

current view that there is “no principled basis for limiting to

noncapital offenses a defendant’s ability knowingly, voluntarily, and intelligently to waive the right of presence.” Campbell v. Wood, 18 F.3d 662, 672 (9th Cir. 1994) (en banc)

(briefly surveying development of the law). That waiver of

presence is constitutionally permissible, however, does not

19Rule 43(c) provides in full: 

(1) In General. A defendant who was initially present at trial,

or who had pleaded guilty or nolo contendere, waives the right

to be present under the following circumstances: 

(A) when the defendant is voluntarily absent after the trial

has begun, regardless of whether the court informed

the defendant of an obligation to remain during trial; 

(B) in a noncapital case, when the defendant is voluntarily

absent during sentencing; or 

(C) when the court warns the defendant that it will remove

the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies

removal from the courtroom. 

(2) Waiver’s Effect. If the defendant waives the right to be

present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence. 

UNITED STATES v. MITCHELL 11637
necessarily mean that it is permissible under Rule 43. Mitchell

points to no cases holding that waiver was not an option in the

circumstances here, and we cannot read the Rule as precluding it. (The cases upon which he does rely, such as United

States v. Lumitap, 111 F.3d 81 (9th Cir. 1997), and United

States v. Moore, 466 F.2d 547 (3rd Cir. 1972), involve the

quite different situation of a defendant trying to absent himself from trial in order to avoid in-court identification. Both

upheld the district court’s discretion to deny a proffered

waiver.) 

The default in Rule 43(c)(1) permits waiver when a defendant who was initially present at trial waives the right to be

present by being voluntarily absent. No distinction is drawn

between capital and noncapital defendants. Tellingly, Rule 43

did make such a distinction before 1975, when it provided:

“In prosecutions for offenses not punishable by death, the

defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial

to and including the return of the verdict.” Fed. R. Crim. P.

43 (1963) (emphasis added), quoted in Bartone v. United

States, 375 U.S. 52, 53 n.1 (1963). Now, subsection (c)(1)(A)

plainly applies regardless of the nature of the offense. See

Neil P. Cohen, Can They Kill Me If I’m Gone: Trial in Absentia in Capital Cases, 36 U. Fla. L. Rev. 273, 276-77 n.24

(1984) (noting that the “1975 revision removed any distinction between capital and noncapital cases,” so that under the

current version, “in both capital and noncapital cases, a defendant can waive his right to be present provided he was initially present at the trial and was voluntarily absent after the

trial commenced”).20

20The 1974 amendment notes indicate that the question whether the

right can be waived was then open for courts ultimately to clarify. Rule

43, Notes of Advisory Committee on Rules-1974 Amendment; see also

L’Abbe v. DiPaolo, 311 F.3d 93, 97 (1st Cir. 2002) (observing that “the

Supreme Court has never directly ruled on the issue of whether a criminal

defendant can waive his right to presence in a capital case”). 

11638 UNITED STATES v. MITCHELL
[53] Waiver under subsection (c)(1)(B), which relates to

sentencing, does depend upon whether the case is capital or

noncapital. It specifically authorizes waiver “in a noncapital

case” when the defendant is voluntarily absent during sentencing; by negative implication, it doesn’t do so in a capital

case. However, subsection (c)(1)(B) applies only to “sentencing.” Logically and structurally, “sentencing” connotes the

proceeding when judgment is pronounced and sentence is

imposed, not the proceeding during which it is determined

whether the defendant is death eligible and what sentence to

recommend.21 In mandating presence, Rule 43(a) distinguishes among the initial appearance phase of a criminal proceeding, trial stages, and sentencing. Under this construct, the

penalty phase of a capital case is plainly a “trial stage.” Thus,

subsection (c)(1)(B) does not preclude Mitchell’s waiver. 

[54] We conclude that Rule 43 presented no obstacle to

Mitchell’s waiver of presence for the penalty phase. 

21The history of recent changes made to Rule 43 also indicates that

“sentencing” means the pronouncement of sentence. Up until the 2002

Amendments became effective, Rule 43 used the term “imposition of sentence” rather than “sentencing.” See Fed. R. Crim. P. 43 (2001). The Advisory Committee Notes to the 2002 Amendments, however, clarify that

aside from a few exceptions not relevant here, “[t]he language of Rule 43

has been amended as part of the general restyling of the Criminal Rules

to make them more easily understood and to make style and terminology

consistent throughout the rules. These changes are intended to be stylistic

only . . . .” Fed. R. Crim. P. 43 advisory committee’s notes to 2002

Amendments (emphasis added). Rule 35, which governs corrections and

reductions of sentences and is explicitly referenced by Rule 43 as an

instance in which presence is not required, see Fed. R. Crim. P. 43(b)(4),

also underwent the same stylistic change in 2002. There the Advisory

Committee Notes address that specific revision and clarify that “[n]o

change in practice is intended by using that term.” Fed. R. Crim. P. 35

advisory committee’s notes to 2002 Amendments. Courts had divided over

whether “imposition of sentence” referred to the oral announcement of

sentence or entry of judgment. Because ambiguity remained following the

stylistic change to “sentencing,” Rule 35 was amended again in 2004 to

add subsection (c), which provides: “As used in this rule, ‘sentencing’

means the oral announcement of the sentence.” See Fed. R. Crim. P. 35

advisory committee’s notes to 2004 Amendments. 

UNITED STATES v. MITCHELL 11639
X

Trial-related issues arising out the penalty phase include

whether there were Brady violations, mistaken evidentiary

rulings, instructional error, and prosecutorial misconduct in

opening and closing. 

A

Beginning on December 5, 2001, Mitchell’s attorneys

wrote a number of letters to the government seeking Brady

material, including material “relating to sentencing and mitigation.” Soon thereafter, the government asked for victim

impact statements from family members. On May 13, 2003,

one day before the penalty phase began, the government

turned over the statements it had obtained along with a January 2002 letter from the Attorney General of the Navajo

Nation to United States Attorney Paul Charlton indicating

opposition to capital punishment, both as a general matter and

as to Mitchell. 

[55] Assuming that the evidence was favorable and material (the Navajo letter certainly was, though it is unclear

whether the victim impact statements would have been), there

was no prejudice. See Raley v. Ylst, 470 F.3d 792, 804 (9th

Cir. 2006) (noting that to prevail on a Brady claim, a defendant must demonstrate that the evidence is favorable, it was

suppressed, and prejudice resulted). Mitchell told the district

court that his approach to the mitigation process would have

been different if he had known about the information, particularly the letter from the Navajo Nation, but did not (and still

does not) suggest how. He did not ask for a continuance. Nor

is it evident that members of the family would have cooperated with Mitchell in any material way (or, indeed, what their

opinion was); it appears that they knew Mitchell’s counsel

wanted to speak to them, but they did not wish to speak to

him. Mitchell also claims that this information would have

helped persuade the Department of Justice not to seek the

11640 UNITED STATES v. MITCHELL
death penalty, but again, does not suggest how. The Department of Justice obviously knew the Tribe’s position because

the letter was sent to it; and Mitchell does not claim that the

letter disclosed anything about the Tribe’s opposition to capital punishment, or about its failure to opt in to the federal

death penalty, that he didn’t already know. Regardless, the

court received the letter as evidence in mitigation, Mitchell

made effective use of it, and seven jurors found the letter was

an additional mitigating factor. In short, there is no reasonable

probability that earlier disclosure would have produced a different result. 

B

[56] Mitchell argues that his First Amendment, Eighth

Amendment, and due process rights were violated when the

government elicited testimony bearing on race, religion and

cultural heritage, and made statements in closing argument

impermissibly plying on the same factors. Plain error review

applies because (as he concedes) Mitchell did not object at

trial. 

i

Geraldine Slim testified that, traditionally, the maternal

side of the Tribe transmits Tribal values and culture to children and grandchildren. In a similar vein, Kimberly Houston

and Marlene Slim testified that Slim was responsible for

teaching her grandchildren about their Navajo heritage and

passing down the Tribe’s traditions and practices. 

We see nothing untoward in this testimony. “Evidence

about a victim’s characteristics and the impact of the murder

on the victim’s family is relevant and admissible at a death

penalty sentencing proceeding.” Gretzler v. Stewart, 112 F.3d

992, 1009 (9th Cir. 1997) (citing Payne v. Tennessee, 501

U.S. 808, 827 (1991)). “Admission of such evidence will only

be deemed unconstitutional if it is so unduly prejudicial that

UNITED STATES v. MITCHELL 11641
it renders the sentence fundamentally unfair.” Id. This evidence is not. 

Slim’s daughters did not call upon divine authority to condemn Mitchell, insinuate that he was atheist, or otherwise

inflame the jury on the basis of race or religion. In the circumstances, it would have been difficult if not impossible to capture what Slim’s loss meant to her family without reference

to the significance that traditional Navajo religion and culture

played in their lives. This was relevant victim impact evidence, and was not unduly prejudicial. See Payne, 501 U.S.

at 825 (“Victim impact evidence is simply another form or

method of informing the sentencing authority about the specific harm caused by the crime in question.”) 

The jury was instructed, as § 3593(f) directs, that it could

not consider the race or religious beliefs of the defendant or

of any victim.22 We assume that jurors follow the instructions.

In addition, § 3593(f) requires each juror to sign a certificate

that neither race nor religion played a part in reaching the

22Section 3593(f) provides: 

In a hearing held before a jury, the court, prior to the return of

a finding [concerning a sentence of death], shall instruct the jury

that, in considering whether a sentence of death is justified, it

shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is

not to recommend a sentence of death unless it has concluded

that it would recommend a sentence of death for the crime in

question no matter what the race, color, religious beliefs, national

origin, or sex of the defendant or of any victim may be. The jury,

upon of a finding [concerning a sentence of death], shall also

return to the court a certificate, signed by each juror, that consideration of the race, color, religious beliefs, national origin, or sex

of the defendant or any victim was not involved in reaching his

or her individual decision and that the individual juror would

have made the same recommendation regarding a sentence for

the crime in question no matter what the race, color, religious

beliefs, national origin, or sex of the defendant or any victim may

be. 

11642 UNITED STATES v. MITCHELL
decision. All of Mitchell’s jurors certified this was true.

Absent a substantial indication to the contrary, we accept the

jurors’ assurance that no impermissible considerations of race

or religion factored into the verdict. 

Geraldine Slim also testified more problematically that:

It’s been really hard . . . to know that someone

within our own kind, our own people would be so

disrespectful for our own culture and our own belief,

our own traditional values, how we teach our young

people. 

This was an inadmissible opinion about Mitchell’s crime and

the error was obvious because victim impact statements

“set[ting] forth the family members’ opinions and characterizations of the crimes and the defendant” are “irrelevant to a

capital sentencing decision.” Booth v. Maryland, 482 U.S.

496, 502-03, 508-09 (1987), overruled on other grounds,

Payne, 501 U.S. at 830 n.21; see also Bernard, 229 F.3d at

480 (holding that error in admitting a statement from the victim’s father that the murder was “just a useless act of violence” was plain). But Mitchell fails to show that the error

was prejudicial. Geraldine’s comment was brief, isolated, and

could not have had more than a marginal impact on the jury.

iii

The district court refused to permit defense witnesses to

express their opinion on whether Mitchell should be given the

death penalty, although witnesses were allowed to ask the jury

to spare Mitchell’s life. 

Section 3593(c)’s standard for admissibility of information

in a capital sentencing proceeding is more lenient than the

standard for admissibility of evidence under the Federal Rules

of Evidence. Information is admissible regardless of admissibility under the Rules, except that in the trial judge’s discreUNITED STATES v. MITCHELL 11643
tion, information “may be excluded if its probative value is

outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.”

23 This assures that

the jury “not be precluded from considering as a mitigating

factor, any aspect of a defendant’s character or record and any

circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.” Skipper v. South

Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)). 

[57] Here the court drew a fine, but appropriate, line for

testimony as to whether Mitchell should receive the death

penalty. It allowed witnesses to testify regarding their affection for Mitchell and their wish for his life to be spared, but

did not allow them to offer an opinion about what they

thought the jury’s verdict should be. In doing so, the court

kept the jury focused on relevant mitigating evidence, i.e.,

“evidence which tends logically to prove or disprove some

fact or circumstance which a fact-finder could reasonably

deem to have mitigating value.” Tennard v. Dretke, 542 U.S.

274, 284-85 (2004) (quoting McKoy v. North Carolina, 494

U.S. 433, 440 (1990)). Testimony that was adduced from

Mitchell’s family and teachers about his record and character

was relevant mitigating evidence because it had a tendency to

23The statute provides in relevant part: 

At the sentencing hearing, information may be presented as to

any matter relevant to the sentence, including any mitigating or

aggravating factor permitted or required to be considered under

section 3592. Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not

present during the trial, or at the trial judge’s discretion. The

defendant may present any information relevant to a mitigating

factor . . . . Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal

trials except that information may be excluded if 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). 

11644 UNITED STATES v. MITCHELL
show that imposition of the death penalty was not justified.

See 18 U.S.C. § 3592(a)(8). By the same token, personal

opinions about what the verdict should be are not probative of

any statutory mitigating factor identified in § 3592(a)(1)-(8).

Id. § 3592(a)(8). The district court had discretion to exclude

irrelevant evidence, see Lockett v. Ohio, 438 U.S. 586, 605

n.12 (1978), and acted well within it here. 

As we have already discussed, Mitchell wanted to put in

evidence in the guilt phase about the details of the Sam and

Begay murders to impeach Kinlicheenie, and he also wanted

to do so in the penalty phase in order to contrast his culpability in connection with the Slim/Doe murders with Nakai’s

culpability in connection with the Sam/Begay murders. The

district court declined to admit evidence about the details of

the Nakai murders, as they had little apparent bearing on

Mitchell’s character or the circumstances of Mitchell’s

offense. However, the court did allow Mitchell to elicit testimony from FBI Agent Duncan that, as a result of an August

2001 double murder, Gregory Nakai was convicted on kidnapping, carjacking, and first degree/felony murder charges

but did not face the death penalty, and to introduce a letter

from the government to Nakai’s attorney stating that the

Attorney General of the United States had decided against

seeking the death penalty for Nakai. From this Mitchell was

able to highlight the fact that Nakai was a “stone killer” that

“escaped the death penalty.” We cannot see how the court

abused its discretion in concluding that more information than

this about these separate murders would confuse the issues

and mislead the jury. 

Over objection as to his expertise, Agent Duncan was permitted on rebuttal to explain how decisions are made to seek

the death penalty. He indicated that decisions are made after

the cases are referred to the Department of Justice and are

made at a high level. Whether properly adduced or not, Duncan’s testimony was of such a general nature and of such

slight value that we cannot say it resulted in an unreliable senUNITED STATES v. MITCHELL 11645
tencing determination, as Mitchell now maintains. The jury

was already aware that the Attorney General was involved in

the decisionmaking process from the Attorney General’s letter

declining to seek the death penalty against Nakai, which

Mitchell introduced. 

C

[58] Mitchell asserts that the penalty phase jury instructions

and verdict forms violated his right to due process and a reliable sentencing determination. No objection was made except

to the “heinous, cruel or depraved” instruction, so our review

is for plain error as to the rest. 

The Navajo Nation’s letter. It was not necessary for the

jury to be specifically instructed that it should consider the

letter from the Navajo Nation’s Attorney General to the

United States Department of Justice. The instructions, as

given, clearly allowed for consideration of catch-all factors.

That the jury understood it could consider the letter is manifest in the verdict form, where the letter was handwritten in

as an additional mitigating factor. 

Guilt phase evidence. The district court instructed the jury

that it could consider evidence admitted in the guilt phase as

well as information presented in the penalty phase. In Mitchell’s view this allowed the government to use offenses

charged only under the Major Crimes Act, which would not

have been relevant or admissible in the penalty phase to

obtain a death sentence on the carjacking offense. We have

already explained why this is not so. Mitchell became subject

to capital punishment by virtue of his conviction for carjacking resulting in death, not his other offenses, yet evidence

detailing his double murder was necessarily relevant to proving the carjacking charge. Cf. United States v. Cruz-Kuilan,

75 F.3d 59, 61 (1st Cir. 1996). We have also explained why

Mitchell’s contention that this also allowed the government to

inject race into the proceedings is unavailing; the fact of

11646 UNITED STATES v. MITCHELL
Mitchell’s race was unavoidable, and was important to his

own case in mitigation. 

Gateway intent factors. The court instructed that at step

two, the jury should consider the gateway intent factors concerning the personal intent of the defendant “in regard to the

homicides for which he was convicted.” Mitchell takes issue

with this focus on the footing that it misled the jury into

thinking that the death penalty was available for the multiple

murders rather than just the carjacking. “Gateway intent” is a

threshold finding for death eligibility required by the FPDA.

However, as the text of § 3591(a)(2) makes clear, the requisite

mens rea is the mens rea involved in killing the victim, not the

mens rea involved in committing the triggering offense. Cf.

Jones, 527 U.S. at 376 (noting in a case where the defendant

was convicted of kidnapping resulting in death that as “an initial matter, the sentencing jury was required to find that petitioner had the requisite intent, see § 3591(a)(2); it concluded

that petitioner intentionally killed his victim and intentionally

inflicted serious bodily injury resulting in her death”). Further, the jury could not have been confused about which of the

convictions made Mitchell subject to the death penalty; the

district court expressly informed them: “You previously

found defendant guilty of . . . the capital offense of Carjacking

Resulting in Death. The sole question before you now is

whether Defendant should be sentenced for this offense . . . .”

Standard of proof in weighing step. Mitchell told the district judge that he thought the court was correct in believing

that the jury did not have to find that aggravating factors sufficiently outweigh mitigating factors beyond a reasonable

doubt. Now he claims this eliminated the burden of proof at

the weighing stage, as well as on the issue whether death is

the appropriate sentence, in violation of due process, a reliable sentencing determination, and Blakely v. Washington,

542 U.S. 296, 303 (2004); Ring v. Arizona, 536 U.S. 587, 588

(2002); and Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). He reasons that the FPDA makes these two findings

UNITED STATES v. MITCHELL 11647
essential; Apprendi requires that essential facts be submitted

to a jury and be found beyond a reasonable doubt; therefore

the rule of Apprendi requires not only that the question

whether aggravators outweigh mitigators and the question

whether death is justified be submitted to a jury — but that

they be proved beyond a reasonable doubt. 

Under the FDPA, the burden was properly put on the government to prove that Mitchell was death eligible, i.e., he was

eighteen years old, at least one gateway intent factor existed,

and at least one statutory aggravating factor existed. The jury

was required to — and did — find these factors, making him

death eligible, beyond a reasonable doubt. Once these core

factors were established by the government, it did not offend

the Constitution to put the burden on Mitchell to prove any

mitigating factor by a preponderance of the evidence. Walton,

497 U.S. at 649 (plurality opinion); Kansas v. Marsh, 126

S. Ct. 2516, 2524 (2006) (“At bottom, in Walton, the Court

held that a state death penalty statute may place the burden on

the defendant to prove that mitigating circumstances outweigh

aggravating circumstances.”); Jeffers v. Lewis, 38 F.3d 411,

418 (9th Cir. 1994). Thereafter, the fact-finder’s role is first,

“to consider whether the aggravating factors found to exist

sufficiently outweigh the mitigating factor or factors found to

exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone

are sufficient to justify a sentence of death,” and then, to

make a recommendation concerning the sentence. 18 U.S.C.

§ 3593(e). At this stage, the jury’s task is no longer to find

whether factors exist; rather, each juror is to “consider” the

factors already found and to make an individualized judgment

whether a death sentence is justified. Id. Thus, the weighing

step is an “equation” that “merely channels a jury’s discretion

by providing it with criteria by which it may determine

whether a sentence of life or death is appropriate.” See Marsh,

126 S. Ct. at 2526. Mitchell does not suggest how a beyondreasonable-doubt standard could sensibly be superimposed

upon this process, or why it must be in order to comport with

11648 UNITED STATES v. MITCHELL
due process, or to make his death sentence reliable, or to comply with the Sixth Amendment. Were it required, then the corollary obligation under the Fifth Amendment would

presumably be triggered, and the “fact” that aggravating factors outweigh mitigating factors would need to be found by

the grand jury and charged in the indictment. See United

States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005) (en banc);

see also Jones v. United States, 526 U.S. 227, 243 n.6 (1999)

(“under the Due Process Clause of the Fifth Amendment and

the notice and jury trial guarantees of the Sixth Amendment,

any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment”).

This illustrates the flaw in Mitchell’s position, for of course

the grand jury has no way of knowing what mitigating factors

the defendant will urge. 

There is no authority suggesting that Apprendi extends as

far as Mitchell would have it. Given plain error review, resolution of the question whether it was in fact error is not

squarely presented. Therefore, we simply conclude that the

court’s weighing instructions are not plainly erroneous. 

Guilt phase findings. Mitchell contends, for the first time,

that the jury should not have been instructed that it could rely

on findings in the guilt phase in determining the gateway

intent factors. The point goes nowhere, as the jury was not so

instructed. To the contrary, the court specifically told the jury

that it may not rely upon its first-stage verdict of guilt or factual determinations therein with respect to Mitchell’s intent,

and must decide this issue again. 

D

i

Mitchell criticizes the government’s opening statement as

consisting entirely of argument, though he made no such

objection at the time either on that basis or for its content.

UNITED STATES v. MITCHELL 11649
Several statements were inartfully phrased as summations that

evidence established the gateway and aggravating factors.

However, Mitchell’s substantial rights were not affected as

the jury had already heard this evidence. In terms of content,

references to evidence adduced in the guilt phase were not

improper because that evidence was properly considered in

the penalty phase. See 18 U.S.C. § 3593(c). Finally, the

AUSA’s statement to the jury that they would hear members

of the victims’ family describe “what they went through and

how this affected you” was an obvious slip of the tongue.

Saying “you” instead of “them” in this context was neither

misconduct nor prejudicial. 

ii

[59] One of the statements made in closing about which

Mitchell now complains was improvident but not plainly

improper. The AUSA argued that “[t]he defendant, Lezmond

Mitchell, has sentenced himself to death.” Mitchell analogizes

to Caldwell v. Mississipi, 472 U.S. 320 (1985), but the statements that Caldwell condemned were quite different. There,

the prosecutor told the jury that “your decision is not the final

decision” and that it is automatically reviewable by the

Supreme Court. These statements — unlike those made to the

jury here — had the effect of affirmatively misleading the

jury by shifting the responsibility for a death sentence onto

someone else. Id. at 328-29; see Romano v. Oklahoma, 512

U.S. 1, 9 (1994); Waters v. Thomas, 46 F.3d 1506 (11th Cir.

1995) (rejecting a challenge to a similar statement as it did not

lessen the jury’s sense of responsibility). 

Mitchell faults the government for asking the jury to consider how important a grandmother was to the community,

and for suggesting that Mitchell turned his back on his religious and cultural heritage. “[R]eligious arguments [in closing] have been condemned by virtually every federal and state

court to consider their challenge.” Sandoval v. Calderon, 241

F.3d 765, 777 (9th Cir. 2001) (holding that prosecutor who

11650 UNITED STATES v. MITCHELL
paraphrased the Bible and argued that the death penalty was

sanctioned by God denied habeas petitioner his right to a fair

penalty phase trial). However, the circumstances here are a far

cry from those in Sandoval. Although the AUSA did, at least

indirectly, allude to religion, it was in the same sense that the

Navajo Nation’s letter did when it stated: 

As part of Navajo cultural and religious values we

do not support the concept of capital punishment.

Navajo hold life sacred. Our culture and religion

teach us to value life and instruct against the taking

of human life for vengeance. 

As the letter was in evidence and was relied upon by Mitchell

in mitigation, it was not plainly erroneous for the government

to challenge the credibility of Mitchell’s reliance. See Dawson

v. Delaware, 503 U.S. 159, 166 (1992) (recognizing that “just

as the defendant has the right to introduce any sort of relevant

mitigating evidence, the State is entitled to rebut that evidence

with proof of its own”); Payne, 501 U.S. at 809 (observing

that “[t]he State has a legitimate interest in counteracting

[mitigating] evidence”). Similarly, what a grandmother meant

to the Slim family in terms of culture and tradition was properly part of the government’s case in aggravation. The government’s argument did not implicate Mitchell’s beliefs

“simply because the jury would find these beliefs morally reprehensible.” Dawson, 503 U.S. at 167. 

Other statements that Mitchell cites were not improper as

they were founded in the evidence or were obviously figurative. 

This said, the government’s closing argument was riddled

with comments that should not have been made. For instance:

“[I]nformation furnished in this case [to the Attorney General]

as to this defendant, it rose to that level [to seek the death penalty] . . . . It was . . . rational, well-reasoned, based on information that you don’t have before you that this case was

UNITED STATES v. MITCHELL 11651
different [from Nakai’s].” “What I like to call mitigating factors are excuses for murder because we have free will.”

“What has Lezmond Mitchell done to earn a minimum sentence for the slaughter of two people?” “Mitchell gets to come

before the jury and say ‘Spare my life.’ . . . I suppose that’s

the beauty of the system. Doesn’t work for the victims, but it

works for the defendant. And you need to keep that in mind

when asking why to spare the life of the defendant.” “But we

live in a civilized society. Perhaps years ago, Tombstone, he

would have been taken out back, strung up. He would have

gotten a trial, nothing like this. We have been at this for seven

weeks.” “The defendant has done nothing to earn an opportunity to be a message to someone in prison. He has earned no

opportunity to live in a cell whether he likes the cell or not.

He has earned no opportunity to get a college degree while in

prison or to Internet chat with someone or to work in the shop

of a prison. He has earned nothing.” 

We disagree with the government that these were fair comments on the evidence and were not, even arguably, calculated to arouse the passions of the jury or to suggest that

Mitchell bore a burden he did not bear. The question is

whether they were prejudicial, singly or collectively. In

reviewing for plain error, “reversal is appropriate ‘only if the

prosecutor’s improper conduct so affected the jury’s ability to

consider the totality of the evidence fairly that it tainted the

verdict and deprived [Mitchell] of a fair trial.” United States

v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005) (quoting United States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992)).

The comments were not, in and of themselves, nearly as

inflammatory as the graphic evidence of the murders, or as

powerful as the extensive victim impact testimony, which was

quite properly before the jury. The jury was clearly instructed

on the burden of proof, and that the statements and argument

of counsel were not evidence; that it must avoid any influence

of passion, prejudice, or any other arbitrary consideration; and

that whether or not the circumstances call for a sentence of

11652 UNITED STATES v. MITCHELL
death is a personal judgment that the law leaves entirely up

to each member of the jury. 

[60] The burden is Mitchell’s to show that the misconduct

tainted the verdict. In support, he points to a positive statement about his chances that the district judge made in trying

to dissuade him from waiving presence, but her statement was

just that, an effort to point out to Mitchell how critical his

presence was, not a post-penalty phase assessment of the

strength of the evidence.24 As full review of the record shows,

the evidence was overwhelming. By any reasonable measure,

the mitigating factors proffered by Mitchell were weak when

compared to the gruesome nature of the crimes and the impact

they had on the victims’ family. Without at all condoning prosecutorial excess, it is plain that the improper argument in this

case could not possibly have “so affected the jury’s ability to

consider the totality of the evidence fairly” that it deprived

Mitchell of a fair trial. We conclude that the misconduct, by

24According to Mitchell, the district court “noted [that] the government’s case with regard to the sentence of death was not overwhelming.”

However, the district court noted no such thing. In responding to Mitchell’s query whether waiving presence with its consequences wasn’t his

decision, what the court stated was as follows: 

It is your decision, ultimately it’s your decision. But, and I don’t

know what’s factoring into your decision. I just know that you

have a chance not to get the death penalty and your presence is

critical. You only have to convince one — and you don’t even

have to convince. The government has to convince all of them.

But if in the mitigation and these factors that your lawyers — and

they have a lot of exhibits here that seem to be particularly compelling that will probably be introduced. Those exhibits, with

your presence, and the adequacy of your lawyers, I think, give

you as good a chance as any of not getting the death penalty. And

so I would hope that you really give serious consideration 

It may be difficult to listen to everything that’s presented, but

I hope that you will give serious consideration to being here, to

dressing tomorrow, and to being here and listening at least to

what is said and so that you can decide whether or not you are

going to say something on your own behalf. 

UNITED STATES v. MITCHELL 11653
itself or when cumulated, did not affect Mitchell’s substantial

rights. 

XI

Mitchell was sentenced on the non-death counts to life on

counts 1 (murder of Alyce Slim), 3 (felony murder of Alyce

Slim and Jane Doe), 5 (murder of Jane Doe), 6 (felony murder

of Jane Doe) and 7 (kidnapping); 180 months on each of

counts 4 (robbery of the pickup truck), 8 (robbery of the Trading Post), and 10 (robbery of Charlotte Yazzie), to be served

concurrently; 84 months on count 9 (brandishing a firearm

during a crime of violence); and 300 months on count 11

(brandishing a firearm during a crime of violence). He raises

Booker error, which does not appear to be preserved, and

remand is unwarranted. On his firearm convictions, the district court sentenced Mitchell to the statutory minimums. See

18 U.S.C. §§ 924(c)(1)(A)(ii) (seven years); 924(c)(1)(C)(i)

(25 years). Similarly, Mitchell was sentenced to life pursuant

to statutory mandatory sentences. See, e.g., 18 U.S.C.

§§ 1111(b), 1201(a). Given his life sentences, his 180 month

sentences on each of the robbery counts do not affect his substantial rights. Furthermore, in light of the fact that the district

court sentenced Mitchell to the statutory maximum on his

robbery counts, see 18 U.S.C. § 2111, we cannot imagine that

the sentence would have been more favorable had the district

court known the guidelines were advisory.

AFFIRMED. 

11654 UNITED STATES v. MITCHELL
Volume 3 of 3

UNITED STATES v. MITCHELL 11655
REINHARDT, Circuit Judge, dissenting: 

The majority errs both in affirming the conviction and

upholding the death sentence of Lezmond Mitchell, a young

Navajo tribe member found guilty of committing a robbery

and two horrific murders on Navajo land in Arizona.1 During

the investigation of these crimes, federal agents convinced

eagerly cooperative tribal authorities to arrest Mitchell, who

was then held in tribal custody for twenty-five days without

counsel or arraignment. Federal agents repeatedly interrogated Mitchell during his tribal detention, and unlawfully

secured from him a series of confessions. The inculpatory

statements, which were obtained in violation of Mitchell’s

federal rights, were then used to convict him at his trial. The

trial court’s failure to suppress the confessions warrants reversal of Mitchell’s conviction. 

Another significant error occurred during jury selection.

The trial court allowed the prosecution to strike the only

African-American juror, accepting its pretextual explanation

that the juror was removed not because of his race but

because more than twenty years earlier he had served on a

jury that voted to acquit a defendant of unknown charges.

Removal of this juror violated the constitutional guarantees of

equal protection and due process, and, like the first error,

requires reversal of Mitchell’s conviction. 

Finally, the sentencing phase of Mitchell’s trial was rife

with errors. Contrary to the provisions of the Federal Rules,

the trial court permitted Mitchell to waive his presence at the

sentencing phase; as a result, the jury heard this critical part

of the proceedings, and voted for the death penalty, without

facing or hearing from the individual whose life, or death, it

was determining. This error in itself requires that the sentence

1Mitchell was subject to the death penalty under the Federal Death Penalty Act, because the murder resulted from an armed carjacking. See 18

U.S.C. §§ 3591-98. 

11656 UNITED STATES v. MITCHELL
of death that the jury imposed be vacated. Moreover, the government’s closing sentencing argument was a compendium of

improper statements, exacerbating the prejudice resulting

from Mitchell’s absence from the sentencing phase. Finally,

the court erroneously failed to instruct the jury that the government had the burden of proving that aggravating factors

outweighed mitigating factors. Considered cumulatively, the

sentencing errors were sufficiently prejudicial that Mitchell’s

death sentence must be vacated. 

Therefore, although I agree with the majority’s resolution

of a number of Mitchell’s other claims, I respectfully dissent.

I. Conviction 

A. Suppression of Post-Arrest Statements

Following a conference that led to an agreement between

all the involved federal and tribal authorities, Mitchell was

arrested on tribal charges on the morning of November 4,

2001. He was not presented to a federal magistrate until

November 29, 2001. During this period of prolonged tribal

detention, federal authorities interrogated him and obtained a

set of increasingly incriminating statements. Mitchell argues

that the district court should have suppressed these statements

because they were obtained in violation of his federal right to

timely arraignment and to counsel.2 In order to determine

whether these federal rights attached during Mitchell’s detention, it is necessary to decide whether he was effectively in

federal custody during the period between his tribal arrest and

his federal arrest. The majority concludes that Mitchell was

not in federal custody until he was formally arrested by federal agents on November 29. See ante, at 11589. I disagree.

2As the majority states, ante, at 11586 n.4, the Sixth Amendment right

to counsel does not attach to defendants in tribal custody. See United

States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001). 

UNITED STATES v. MITCHELL 11657
Unlike the majority, see ante, at 11585-87, I would not

review this issue for plain error. The Federal Rules of Criminal Procedure provide that “[a] party may preserve a claim of

error by informing the court — when the court ruling or order

is made or sought — of the action the party wishes the court

to take, or the party’s objection to the court’s action and the

grounds for that objection.” Fed. R. Crim. P. 51(b). Before

trial, Mitchell moved for a hearing to determine whether his

custodial statements were voluntary. At this time, Mitchell

was still being tried jointly with co-defendants Johnny Orsinger and Gregory Nakai, both of whom participated in the

voluntariness hearing. During the hearing, Orsinger’s counsel

argued that the FBI controlled the operation leading to the

defendants’ tribal arrest. He stated that the defendants were

effectively in federal custody from the time of their tribal

arrest and sought leave to file a new motion to suppress on the

ground that Orsinger was deprived of procedural rights for

juveniles established by 18 U.S.C. § 5033. Mitchell’s counsel

adopted this argument, stating:

I would like to join in the remarks of [Orsinger’s

counsel] about what I think has happened in this

case. I think this case is illustrative to all of us about

FBI strategies and techniques in cases like this.

Rather than file federal charges and implicate not

only the juvenile rights that [Orsinger’s counsel] said

were violated with respect to Mr. Orsinger, but also

the obvious rights that would have attended the filing

of charges including the right to the immediate

appointment of counsel for Mr. Mitchell, essentially

Mr. Mitchell was stashed in the tribal jail for more

than three weeks on these tribal charges which no

one connected with this case believed were ever

going to proceed. 

Thus, Mitchell not only requested that the court suppress the

custodial statements, but he also identified the failure to

11658 UNITED STATES v. MITCHELL
afford him his pretrial rights as one ground for suppression.

This complies with the requirements of Rule 51(b). 

Turning to the merits of Mitchell’s claim, Rule 5(a) of the

Federal Rules of Criminal Procedure provides that a person

who is arrested must be arraigned “without unnecessary

delay.” Rule 5(a) both reflects and is reinforced by Supreme

Court decisions requiring exclusion of pre-arraignment statements obtained in violation of the prompt presentment

requirement. See McNabb v. United States, 318 U.S. 332, 341

(1943); Mallory v. United States, 354 U.S. 499, 455 (1957).

This judicially developed exclusionary rule is limited by 18

U.S.C. § 3501(c), which created a “safe harbor” for statements obtained within six hours of detention. 

In United States v. Alvarez-Sanchez, 511 U.S. 350 (1994),

the Supreme Court held that § 3501(c) authorizes suppression

of a custodial statement only when a person has been held in

federal custody for more than six hours before giving the

statement. Id. at 358. However, the Court pointed to one circumstance in which delay would be viewed differently,

“namely, the situation that would arise if state or local authorities, acting in collusion with federal officers, were to arrest

and detain someone in order to allow the federal agents to

interrogate him in violation of his right to a prompt federal

presentment.” Id. at 359. Mitchell argues that his arrest and

interrogations fall within this exception and that the district

court was therefore required to suppress his confessions. 

To establish collusion, a defendant must show a collaborative effort by the two authorities involved and “proof of a

deliberate intent to deprive a defendant of [his] federal procedural rights.” United States v. Michaud, 268 F.3d 728, 735

(9th Cir. 2001) (citing United States v. Doe, 155 F.3d 1070,

1078 (9th Cir. 1998)). Here, there is no question as to the former. As for the “deliberate intent” element, it is not necessary

for the defendant to extract admissions from the federal and

tribal authorities that such was their intent. Intent may be

UNITED STATES v. MITCHELL 11659
shown from the objective circumstances surrounding the

decision-making process and from subsequent occurrences.

Undisputed facts in the record show that Assistant U.S. Attorney Joe Lodge and FBI agents persuaded tribal authorities to

arrest Mitchell and then used the tribal detention to interrogate him. Two agents testified that tribal arrest was a way to

get suspects into custody quickly so that they could interrogate them.3

 They also acknowledged that they were aware that

taking a suspect into tribal custody would mean that he would

not be entitled to certain federal rights, such as the right to

appointed counsel and the right to a prompt arraignment. The

agents offered no plausible explanation for why it was necessary to use a tribal arrest rather than simply to arrest Mitchell

on federal charges. Instead, the circumstances surrounding

Mitchell’s arrest and interrogation compel the conclusion that

the delay in filing federal charges was the result of a deliberate decision to have the federal agents question him in violation of his rights. 

Although the record does not include Mitchell’s tribal

arrest warrant, review of the trial transcript indicates that

Mitchell was most likely arrested for robbery.4 Criminal conduct that would permit a defendant to be charged with robbery

under the Navajo Nation Code would also allow the defendant

3The agents also testified that they wanted to get defendant into custody

quickly to protect the public safety. Public safety is a concern whenever

violent crimes are involved. The pertinent question is not whether there

was a legitimate reason to detain the defendant, but rather whether the

manner in which the authorities detained him — having him arrested by

tribal rather than federal authorities — reflected a deliberate effort to

avoid affording him his federal rights. See Alvarez-Sanchez, 511 U.S. at

359. 

4Agent Purscell, one of the FBI agents involved in Mitchell’s arrest and

interrogation, stated that he believed the tribal arrest warrant was for robbery or assault. According to Orsinger, Mitchell’s co-defendant, after the

tribal arrest federal agents told him that he was arrested on an armed robbery charge. Orsinger also testified that three FBI agents, and no tribal

agents, attended his first post-arrest interrogation. 

11660 UNITED STATES v. MITCHELL
to be charged with that offense under federal law.5

 The most

significant difference in “robbery,” as defined in the two

codes, is the Navajo Nation Code’s requirement that the threat

or use of force be immediate, an element not described in the

federal definition, creating a higher burden than under federal

law. The statements made by FBI Agents Raymond Duncan

and Bradley Purscell, that federal agents had determined that

there was insufficient evidence to obtain a federal search warrant, but sufficient evidence to obtain a tribal arrest warrant,

are clearly inconsistent with the governing law. Agent Purscell acknowledged that robbery on Indian land is subject to

federal jurisdiction and could not offer any explanation for

suggesting the existence of any difference in probable cause

needed for a tribal versus a federal arrest warrant.6 Agent

5The offense of robbery is similarly defined under the Navajo Nation

Code and federal law. The Navajo Nation Code describes the elements of

robbery and armed robbery as follows: 

17 N.N.C. § 491 (A) A person commits robbery if in the course

of committing theft, he or she threatens or uses immediate force

against any person with intent either to coerce surrender of property or to forestall resistance to his or her taking or retaining of

property. 

17 N.N.C. §492 (A) A person commits armed robbery if in the course of

committing robbery as defined in 17 N.N.C. § 491, he or she or an accomplice: 

(1) Is armed with a deadly weapon; or 

(2) Uses or threatens to use a deadly weapon or dangerous

instrument. 

The Federal Criminal Code describes the elements of robbery: 

18 U.S.C.A. § 2111 Whoever, within the the special maritime

and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value, shall be imprisoned

not more than fifteen years. 

Armed robbery is encompassed by § 2111, see United States v. Burns, 701

F.2d 840, 841, 842 (9th Cir. 1983). 

6As in the case of robbery, if the arrest were for assault the type of

assault involved here would constitute a federal crime as well as a tribal

crime, compare 18 U.S.C. §§ 113, 1153 with 17 N.N.C. § 314-15, and the

probable cause requirement would be the same. 

UNITED STATES v. MITCHELL 11661
Duncan said that they discussed trying to obtain a federal warrant for robbery but rejected that approach because they could

not connect the robbery to a house. However, as described

above, federal robbery does not include any element requiring

that the offense take place in a house. Moreover, that the

arrest for a tribal offense was a ruse arranged to allow federal

officers to interrogate Mitchell without affording him the

opportunity to consult counsel becomes evident from a comparison of the possible penalties under tribal and federal law.

The maximum penalty for any offense under tribal law,

including criminal homicide, is one year. See 17 N.N.C.

§§ 223, 303(b). The maximum under federal law for robbery

and homicide is fifteen years and death respectively. Accordingly, there can be little doubt that the authorities always

intended that Mitchell and his co-defendants would be tried

on federal rather than on tribal charges. Even if the district

court’s finding that the agents’ testimony was credible were

not clearly erroneous, and I think that it was, the circumstances surrounding the decision to take Mitchell into tribal

custody establish collusion with the requisite intent, despite

the claim that officials never explicitly discussed depriving

defendant of his rights. Both FBI agents made it quite clear

in their testimony that a significant motivation underlying the

arrest was to be able to interrogate the defendant and that if

he were in tribal rather than federal custody, the interrogation

could be conducted without affording him substantial rights

designed to protect him against self-incrimination. 

Moreover, if federal agents did not have probable cause to

obtain a federal warrant at the time of the November 3 meeting (in which case the tribal officers also lacked probable

cause for the tribal arrest), the agents clearly had probable

cause to arrest Mitchell after November 4, when he confessed

to participating in the robbery. However, he remained in tribal

custody and was questioned further. A federal indictment was

not filed until November 21. On November 29, FBI agents

conducted at least one more extensive pre-arraignment interrogation precisely because they knew that a lawyer would be

11662 UNITED STATES v. MITCHELL
appointed shortly thereafter, when Mitchell would appear

before a magistrate. This evidence establishes that Mitchell

was effectively in federal custody from the time of his tribal

arrest. Therefore, federal rights attached and the violation of

these rights requires suppression of statements obtained during this period. 

The majority errs in the analysis that leads it to a contrary

conclusion. First, the majority fails to consider the federal

agents’ conduct after Mitchell’s tribal arrest. This court has

made clear that the post-arrest activity of federal agents is

directly relevant to a finding of collusion or lack thereof. See

Michaud, 268 F.3d at 734-35. Critical to the Michaud court’s

conclusion that the defendant offered “no evidence of actual

collusion . . . to deny her federal right to appear before a magistrate judge,” id. at 735, was the timeliness with which federal charges were brought against her. Although Michaud had

first been arrested by state authorities for kidnap and sexual

assault, “[a]s soon as the federal agents gathered sufficient

evidence against Michaud from the search of her van, they

obtained an arrest warrant and took the steps necessary to

prosecute her in federal court.” Id. at 734-35. An initial search

of Michaud’s hotel room on December 2 led to her arrest by

state officials, but a search of her van later that day revealed

additional evidence that allowed the federal agents to obtain

a federal warrant on December 5. Four days after that, on

December 9, the federal agents executed the warrant. 

Here, the federal agents made no similar effort to obtain a

federal search warrant as “soon as [they] gathered sufficient

evidence against [Mitchell].” To the contrary, the record suggests that the agents deliberately delayed bringing Mitchell

under federal jurisdiction. On November 4, the FBI and tribal

officials executed the tribal warrant, and Mitchell was taken

into custody. After agreeing to take a polygraph test and failing, Mitchell made a statement to a federal agent inculpating

himself in the robbery. Although this confession should have

given the FBI agents sufficient evidence to establish probable

UNITED STATES v. MITCHELL 11663
cause to obtain a federal warrant to arrest Mitchell, two hours

later FBI agents successfully sought to have Mitchell record

that confession. In this recorded statement, Mitchell admitted

for the first time that he was present when “things happened”

to the victims. Then, the next day, Mitchell led tribal officers

to the crime scene, where he confessed to participating in both

murders and provided graphic details about the murders and

post-mortem dismemberment. Even after this last statement,

the FBI agents did not seek a federal warrant, but instead

waited sixteen days to file an indictment and eighteen days to

have a warrant issued. They then interrogated Mitchell one

last time while he was in federal custody and shortly before

they presented him to a federal magistrate — a full twentyfour days after he had taken federal agents to the crime scene

and confessed to committing the crime of which he was convicted.7

The actions of the federal agents in taking one final inculpatory statement from Mitchell before his arraignment provides especially strong evidence of deliberate intent to deprive

him of his rights. On November 29, FBI agents arrested

Mitchell on a federal warrant and drove him to the courthouse

in Flagstaff. At the courthouse, they took him to a conference

room and obtained another statement from him before bringing him before a magistrate judge. In this final and most

7The majority’s reliance on U.S. v. Percy, 250 F.3d 720 (9th Cir. 2001),

for the proposition that this delay does not compel a finding of collusion

is unavailing. First, in Percy, the delay occurred between the time defendant was detained and the time federal agents questioned him. Id. at 724.

The defendant was transferred into federal custody the day after the interview. Id. Here, Mitchell remained in tribal custody long after the first

interrogation by federal officials, and through successive rounds of additional questioning. Clearly, there is a difference between delaying the initial interrogation and delaying the transfer into custody once the

interrogation has taken place. Second, the defendant in Percy did not challenge the district court’s finding that there was no collusion, so the court

was bound by that finding on appeal and did not conduct its own analysis

of the question. Id. at 727. Thus, Percy is of no assistance to the majority

here. 

11664 UNITED STATES v. MITCHELL
incriminating statement, Mitchell gave a detailed confession

describing the robbery scheme, carjacking, and murders. See

ante, at 11559. One of the agents admitted at trial that they

talked to Mitchell this one last time because they knew that

a lawyer would be appointed at his upcoming appearance and

that they would not have another opportunity to interrogate

him without counsel. This is a direct admission of deliberate

intent to deprive Mitchell of his federal rights. 

To conclude that these facts do not satisfy the “deliberate

intent” requirement would turn an already difficult evidentiary burden into a free pass for FBI agents who know full well

that the rights under federal and tribal law differ substantially,

and who take purposeful actions to deny defendants their federal rights. Under the majority’s approach, federal agents

could meet with tribal agents, as they did here, and encourage

a tribal arrest with the express purpose of interrogating defendants and with the knowledge that these interrogations will

occur without counsel and before arraignment. Yet so long as

the agents do not explicitly state that they sought to avoid

affording the defendants their federal protections and as long

as they also testify that a purpose of the arrest was to protect

the public, they would be free to interrogate repeatedly a

defendant held indefinitely without counsel or any arraignment. I do not believe that this court intended such a result

when it held that the defendant must show “deliberate intent”

to deprive a defendant of procedural rights. 

Because Mitchell has shown collusion, his right to federal

presentment attached at the time of his tribal arrest, and statements made during the period of unnecessary delay before

arraignment should be suppressed. Mitchell’s first statement

may have fallen within the six hour safe harbor established by

18 U.S.C. § 3501(c), but his subsequent confessions did not.8

8During his first round of questioning, Mitchell denied involvement in

the disappearances and the robbery, and an inability to suppress this statement would therefore be of little consequence. 

UNITED STATES v. MITCHELL 11665
Although this court does not require exclusion of all non-safe

harbor statements, the delay in Mitchell’s arraignment is not

justified by either of the reasons we recognize for admitting

such statements. See United States v. Mendoza, 157 F.3d 730,

731 (9th Cir. 1998) (“We will admit a statement made outside

of the safe harbor if the delay was reasonable or if public policy concerns weigh in favor of admission.” ) (citing United

States v. Van Poyck, 77 F.3d 285, 289 (9th Cir. 1996)). We

have held that an overnight or weekend delay due to the

unavailability of a magistrate is reasonable. Van Poyck, 77

F.3d at 289. However, Mitchell’s arraignment was delayed

twenty-five days, not one or two. Furthermore, as there was

no intent to take Mitchell before a magistrate when he was

arrested, the delay in his arraignment does not fall within that

exception. Additionally, given the deliberate delay in arraignment, public policy concerns weigh in favor of suppression,

not admission.9 Cf. Van Poyck, 77 F.3d at 290 (finding public

policy did not require suppression and explaining “[t]his is

not a case where the officers intentionally postponed arraignment so they could interrogate the defendant”). 

In sum, the district court erred in not suppressing Mitchell’s

inculpatory statements. The confessions were highly incriminating and highly prejudicial. Thus, this error warrants reversal of Mitchell’s conviction. 

B. Jury Selection

Mitchell also contends that the trial court erred in allowing

the prosecution to strike Juror #30, the only AfricanAmerican juror on the venire at the time he was struck. As the

9With respect to public policy concerns, some of the federal agents’

statements emphasized the importance of arresting Mitchell and his coparticipants in order to remove them from the streets for public safety reasons. However, this goes to the reason for the arrest, not the reason for the

subsequent retention of Mitchell in tribal custody or the inordinate delay

in his arraignment after probable cause unquestionably existed. 

11666 UNITED STATES v. MITCHELL
Supreme Court recognized in Batson v. Kentucky, 476 U.S. 79

(1986), and subsequent cases, the constitutional guarantee of

equal protection forbids a prosecutor from excluding jurors

because of their race.10 To determine whether a prosecutor

violated this guarantee by using peremptory strikes in a

racially discriminatory manner, courts apply the three prong

analysis announced in Batson. First, a defendant must establish a prima facie case by showing that relevant circumstances

support an inference that the prosecutor excluded venirepersons because of their race. Id. at 96. At the second step, the

burden shifts to the prosecution to justify the strikes by articulating a “neutral explanation related to the particular case to

be tried.” Id. at 98. Finally, the trial court must determine

whether the defendant established purposeful discrimination.

Id. At this third stage, “[t]he trial court must not simply accept

the proffered reasons at face value; it has a duty to evaluate

meaningfully the persuasiveness of the prosecutor’s raceneutral explanation to discern whether it is a mere pretext for

discrimination.” Williams v. Rhoades, 354 F.3d 1101, 1108

(9th Cir. 2004) (internal punctuation omitted) (quoting United

States v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003)). 

In this case, the prosecution struck the only Native American and African-American jurors surviving to the peremptory

stage of jury selection. Mitchell raised Batson challenges to

both strikes, and the court disallowed the strike of the Native

American juror (#29) but overruled the objection to the strike

of the African-American (#30). In permitting the prosecution

to strike juror #30, the court found that Mitchell did not make

out a prima facie case of discrimination and that the government presented a persuasive non-discriminatory reason for the

strike that was not pretextual. Mitchell contends that these

10Although the prima facie case described in Batson required a defendant to show that the prosecutor used peremptories to remove venirepersons of the same race as the defendant, 476 U.S. at 96, in Powers v. Ohio,

499 U.S. 400, 402 (1991), the Supreme Court removed the requirement

that the defendant and the stricken jurors be of the same race. 

UNITED STATES v. MITCHELL 11667
findings are clearly erroneous and that they warrant reversal

of his conviction. He is correct. 

In assessing the prima facie case of discrimination with

respect to juror #30, the trial court gave no weight to its previous finding that the prosecution violated Batson by striking

juror #29, the only Native American remaining on the panel.11

However, as this Court recognized in Fernandez v. Roe, 286

F.3d 1073, 1079 (9th Cir. 2002), the prosecution’s strikes of

jurors of one race are relevant in assessing strikes of jurors of

another race. This is particularly true when the absolute number of jurors of a particular racial group is small, and the use

of challenges against that group may be insufficient to support

an inference of discrimination. Id at 1078. In Fernandez, we

held that peremptory strikes against Hispanic jurors helped

establish a prima facie case of discrimination against AfricanAmerican jurors. Similarly, in this case, the prosecution’s

unlawful strike of the only Native American juror is a relevant

circumstance giving rise to an inference of discrimination in

11The majority suggests it cannot determine whether in ruling on juror

#30 the district court factored in its ruling on juror #29. However, the

record makes quite clear that the trial court found no relevant circumstances other than juror #30’s being African-American. The Court stated:

I do not find that a prima facie case has been made strictly

because #30 is an African-American male. I see nothing else in

the facts and circumstances that have been presented or that the

Court is aware of surrounding the exercise of the peremptory

challenge that would raise an inference of discrimination. 

Although the Court did discuss its previous ruling on juror #29, it did so

only to contrast the two strikes, and not as a circumstance relevant to the

strike of juror #30: 

#30 is different from #29, although both are members of a recognizably protected group. For the reasons I stated previously with

#29 because of the totality of the circumstances of this particular

case involving Native Americans and #29 being the only Native

American venireperson, and the other reasons stated I think distinguish #29 from #30 and my consideration that a prima facie

case has been made. 

11668 UNITED STATES v. MITCHELL
the strike of the only African-American juror. The trial court

erred in failing to consider this evidence and in concluding

that Mitchell did not establish a prima facie case of discrimination. 

Turning to the second step of the Batson analysis, the government may have offered a facially “legitimate” reason for

its decision to dismiss juror #30. See Miller-El v. Dretke, 545

U.S. 231, 239 (2005) (quoting Batson, 476 U.S. at 98) (“[T]he

prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenge.”)

(emphasis added). The government stated that it struck juror

#30 because he had served on a past jury that acquitted a

criminal defendant. The record indicates that on the jury questionnaire, juror #30 stated that over twenty years earlier he

had participated in a state criminal trial in which the verdict

was not guilty. During voir dire, the prosecution asked him no

questions about this prior jury service. In contrast, defense

counsel asked juror #30 whether he remembered the nature of

the offense or anything about the prior case. Juror #30

responded: “I think it occurred like two or three years earlier

[prior to the trial]. And we just had a little information. I

guess I really don’t.” However, despite the prosecution’s

apparent lack of interest in the issue during voir dire, and

despite juror #30’s statement that he did not recall anything

of significance about the case, the prosecution declared that

it struck the one African-American juror because of his prior

jury service. The district court held that this was “clearly

allowed.” 

The district court and the majority accept without question

the proposition that the government can permanently prevent

someone from serving on all juries simply because, several

decades previously, that individual once voted to acquit a person accused of a crime, possibly in a case involving a minor

non-violent offense, even a misdemeanor, in which the defendant established his innocence beyond question. Such a proposition, if accepted generally, would place a substantial

UNITED STATES v. MITCHELL 11669
burden on the exercise by any citizen of the right to serve on

a jury. As the Supreme Court recognized in Powers v. Ohio,

499 U.S. 400 (1991), “[j]ury service is an exercise of responsible citizenship by all members of the community, including

those who otherwise might not have the opportunity to contribute to our civic life.” Id. at 402. Like voting, jury service

is both an opportunity to participate in the affairs of government and a means by which our government maintains its

legitimacy:

Jury service preserves the democratic element of the

law, as it guards the rights of the parties and ensures

continued acceptance of the laws by all of the people. See Green v. United States, 356 U.S. 165, 215[ ]

(1958) (Black, J., dissenting). It “affords ordinary

citizens a valuable opportunity to participate in a

process of government, an experience fostering, one

hopes, a respect for law.” Duncan, supra, 391 U.S.,

at 187[ ] (Harlan, J., dissenting). Indeed, with the

exception of voting, for most citizens the honor and

privilege of jury duty is their most significant opportunity to participate in the democratic process. 

Id. at 406-07. 

A strike based solely on a juror’s participation along with

all of his fellow jurors in a prior acquittal in a trial of an undetermined nature, held many years earlier, threatens the institution of the jury by penalizing a juror for his past lawful and

proper “exercise of responsible citizenship.” In addition to

infringing upon the juror’s right to serve, such strikes create

an incentive for jurors to vote to convict in order to retain the

possibility of serving on other juries in the future. This undermines the jury’s role in “guard[ing] the rights of the parties”

and encourages jurors to violate their constitutional duty to

acquit when required by the law and the evidence. As a society, we benefit from having jurors who can exercise their

responsibilities fully and fairly without the government seek11670 UNITED STATES v. MITCHELL
ing improperly to influence their decisions. Permitting prosecutors to strike jurors who have once voted to acquit an

unknown defendant on an unknown charge authorizes them to

prevent those who have previously stood between the state

and the individual from ever again “being part of the judicial

system of the country [and] prevent[ing] its arbitrary use or

abuse.” Id. at 406 (quoting Balzac v. Porto Rico, 259 U.S. 298

(1922)). It is enough to disqualify from serving on death penalty juries those citizens who have reservations about capital

punishment or who would reserve that penalty for the most

extreme offenses. See Uttecht v. Brown, 127 S. Ct. 2218,

2224-29 (2007). To also disqualify all those who might have

ever believed that a defendant could be innocent would seem

to cross the line between providing a fair jury — a jury of

one’s peers — and adopting a system that is inherently proprosecution and weighted overwhelmingly in favor of conviction. 

Even though a strike for the reasons suggested by the prosecution is not truly legitimate in the ordinary sense of the

word, it nonetheless survives the de minimus burden placed

on the prosecution at the second of the Batson analysis.

Although Batson spoke of “legitimate” reasons, 476 U.S. at

98 n.20, and recent Supreme Court cases continue to use this

language, see, e.g., Miller-El v. Dretke, 545 U.S. 231, 239

(2005), courts applying this step have equated “legitimate”

with “race-neutral.” See, e.g., Purkett v. Elem, 514 U.S. 765,

768 (1995) (quoting Hernandez, 500 U.S. at 360) (“At this

[second] step of the inquiry, the issue is the facial validity of

the prosecutor’s explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered

will be deemed race neutral.”); Tolbert v. Page, 182 F.3d 677,

680 (9th Cir. 1999) (en banc) (“Whether the justification

offered by a prosecutor is an adequate race-neutral explanation is a question of law reviewed de novo.”) (quoting United

States v. Bishop, 959 F.2d 820, 821 n. 1 (9th Cir. 1992))

(internal quotation marks omitted). On its face, the explanation that a juror was removed because he once voted to acquit

UNITED STATES v. MITCHELL 11671
a defendant is race-neutral. Under that standard, the reason

advanced here by the prosecution is “legitimate” for purposes

of step two of Batson. 

An absolute bar on jury service for a citizen who once

voted, long ago, to acquit an unknown defendant on unknown

charges is, however, so divorced from the individual consideration of jurors required by Batson and so damaging to the

fairness and independence of the jury system that, when exercised to remove the sole African-American on the panel, it

must, under the third step, be viewed as a pretext. So

improper and arbitrary a justification cannot be presumed to

be the prosecution’s true motive. 

“Competence to serve as a juror ultimately depends on an

assessment of individual qualifications and ability impartially

to consider evidence presented at a trial.” Batson, 476 U.S. at

87. When a juror has recently served on a jury that voted to

acquit, individualized assessment of that juror may well lead

the prosecution to conclude that he might be inclined to favor

the defense. See, e.g., United States v. Power, 881 F.2d 733,

740 (9th Cir. 1989) (noting the challenged juror “had recently

completed service on another jury” and the prosecutor “feared

the juror might be hostile to the government for calling him

to serve again so soon after his service as a juror in a long

prior trial”); United States v. Thompson, 827 F.2d 1254, 1256

n.1 (9th Cir. 1987) (quoting the prosecution’s explanation that

it struck a juror “because he acquitted in a case just a couple

of weeks ago”). However, when the past jury service was over

two decades ago, and of such minimal consequence that the

juror cannot recall the substance of the case, there is no basis

for inferring that his prior vote to acquit would influence his

vote in the present case. The prosecution’s questions during

voir dire did not address the past acquittal at all, much less

reveal information supporting a genuine concern that the

experience would affect juror #30’s present deliberations.

Under these circumstances, the proffered explanation for

striking juror #30 must be deemed a pretext for what was, in

11672 UNITED STATES v. MITCHELL
fact, a race-based strike. The district court’s decision to the

contrary was clearly erroneous, and this error as well requires

reversal of Mitchell’s conviction. See Powers v. Ohio, 499

U.S. 400, 412 (1991); Batson, 476 U.S. at 100. 

II. Sentencing 

On appeal, Mitchell raises numerous errors to which he

failed to object during trial. I now consider the effect of three

of the most significant of these errors that occurred during the

sentencing phase of this case. The three errors are as follows:

First, the district court erred in permitting Mitchell to be

absent from the sentencing phase, in direct violation of the

Federal Rules. This is a structural error requiring automatic

reversal of Mitchell’s sentence. However, were the error

deemed not to be structural, it would then constitute a part of

the cumulative error analysis. See Section D, infra at 11685.

While individual errors “may not rise to the level of reversible

error, their cumulative effect may nevertheless be so prejudicial to the appellants that reversal is warranted.” United States

v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988) (citing

United States v. Berry, 627 F.2d 193, 200-01 (9th Cir. 1980)).

In addition to Mitchell’s absence from the penalty phase, the

two other errors on which I rely are (a) the prosecution’s

numerous improper statements during closing arguments and

(b) the court’s failure to instruct the jury on the correct standard of proof for finding that aggravating factors outweigh

mitigating factors. I conclude that the cumulative effect of

these three errors is prejudicial, and I would, accordingly,

vacate Mitchell’s death sentence. 

A. Defendant’s Absence From the Sentencing Phase

As the majority opinion describes, ante, at 11633-35,

Mitchell unequivocally stated that he did not wish to attend

the sentencing phase of the proceedings. The district judge

strongly urged him to exercise his right to be present on several occasions, and carefully explained the reasons why he

UNITED STATES v. MITCHELL 11673
should do so. Ultimately, with considerable misgivings, she

reluctantly allowed him to be absent. Mitchell now argues that

the Federal Rules of Criminal Procedure require a capital

defendant’s presence during sentencing proceedings and that

the district court erred in permitting him to waive his presence. He is correct, and notwithstanding the majority’s difficulty with the issue, the error is plain. 

Rule 43(a)(3) provides that a defendant must be present at

sentencing. Although a non-capital defendant may waive this

right, a capital defendant may not.12 The majority makes the

perplexing assertion that Rule 43(a)(3) does not apply because

the sentencing phase of a capital trial is not part of “sentencing.” See ante, at 11639. This contradicts both the common

understanding of the nature of the sentencing phase and the

rule’s purposes in requiring a capital defendant’s presence at

sentencing, as well as the plain meaning of the rule itself. 

In a capital trial, the term sentencing phase is synonymous

with the term penalty phase. The two terms are used interchangeably, along with the statutory term sentencing hearing.

See, e.g., Rice v. Wood, 77 F.3d 1138 (9th Cir. 1996) (en

banc) (observing that a capital defendant’s trial “was bifurcated into separate guilt and sentencing phases, with the same

jury sitting in both”). Cf. Black’s Law Dictionary (8th ed.

2004) (noting that “penalty phase” is “[a]lso termed sentencing phase”). Indeed, the Federal Death Penalty Act specifi12Rule 43(a)(3) states “Unless this rule . . . provides otherwise, the

defendant must be present at . . . sentencing.” The rule is limited by

43(c)(1)(B), which permits waiver of that provision “in a noncapital case,

when the defendant is voluntarily absent during sentencing.” As the

majority concedes, Rule 43(c)(1)(B) by negative implication does not permit a capital defendant to waive his presence during sentencing by being

voluntarily absent. Because Rule 43(c)(1)(B) does not apply to capital

defendants, and the facts do not support any of the other reasons for

waiver, see Fed. R. Crim. P. 43(c)(1)(A) and (B), we are presented with

a straightforward question about the meaning of “sentencing” as the term

is used in Rule 43(a)(3). 

11674 UNITED STATES v. MITCHELL
cally provides that if a defendant is found guilty of a death

eligible offense, the trial judge “shall conduct a separate sentencing hearing to determine the punishment to be imposed.”

18 U.S.C. § 3593(b) (emphasis added). It is at the sentencing

hearing (a.k.a. the sentencing phase or the penalty phase) that

the evidence is adduced, the arguments are made by counsel,

the defendant has the opportunity to address the jury — the

body that determines what his punishment — and the ultimate

decision is made as to the defendant’s sentence. 

The conclusion that “sentencing” includes the sentencing

hearing is also required by an examination of the reasons for

requiring a defendant’s presence at sentencing. In non-capital

cases, the requirement that a defendant be present at sentencing, inter alia, “serves the defendant’s interest by facilitating

allocution . . . .” United States v. Curtis, 523 F.2d 1134, 1135

(D.C. Cir. 1975). It is at sentencing that the defendant has

“the opportunity to address any issues relevant to his sentence.” United States v. Robinson, 390 F.3d 853, 887 (6th Cir.

2004). Additionally, the mere presence of the defendant in the

courtroom during sentencing proceedings exerts a psychological influence on the jury. See, e.g., United States v. Canady,

126 F.3d 352, 362 (2d Cir. 1997) (“In the jury context, several

courts, in rejecting the argument that the defendant’s presence

is useless, have pointed to the fact that the defendant’s mere

presence exerts a “psychological influence upon the jury.”

(quoting United States v. Santiago, 977 F.2d 517, 523 n.6

(10th Cir. 1992)). 

In a federal capital case, the reasons for requiring a defendant’s presence at sentencing are applicable primarily to the

sentencing hearing rather than to the formal pronouncement

of sentence by the judge, although the defendant’s presence

is required at both.13 As noted, it is during the sentencing

phase of the proceedings — the sentencing hearing — that a

13In contrast, in a non-capital case the hearing regarding the sentence

and the pronouncement of the sentence occur at a single proceeding. 

UNITED STATES v. MITCHELL 11675
capital defendant has the opportunity to present any mitigating evidence, and to ask the jury — the body deciding on his

sentence — for mercy. Additionally, the psychological influence of the defendant’s presence on the jury is most significant during the time when it is hearing the argument as to

whether he should live or die and when it is receiving the

information that serves as the basis for its decision. Finally,

to the extent that a defendant’s presence legitimizes a sentence, this legitimizing function is most critical in the sentencing phase, when the State argues that there is cause to exercise

the full measure of its power by taking the life of a defendant

and the defendant seeks the alternative of life imprisonment.

In short, the process of determining a capital defendant’s sentence occurs during the sentencing or penalty phase. The Federal Death Penalty Act provides that at the conclusion of this

phase, the jury “shall recommend whether the defendant

should be sentenced to death, to life imprisonment without

possibility of release or some other lesser sentence.” 18

U.S.C. 3593(e). If the jury recommends death and, the judge

is obligated to impose that sentence and has no discretion to

impose a lesser penalty. See 18 U.S.C. 3594 (“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.”).

Thus, although Mitchell was present when the jury returned

its verdict and, months later, when the judge entered the death

sentence, he was no more than a passive audience on these

occasions. The decision-making process was over. The time

when Mitchell’s presence was important, when he could have

been an active participant in the sentencing proceedings and

influenced the determination as to his sentence, was during

the sentencing or penalty phase. Any remarks he may have

been permitted to make to the judge subsequent to the jury’s

decision were of no legal or practical consequence. His

absence during the sentencing hearing violated the plain language as well as the purposes of Rule 43(a).14

14The majority argues that Fed R. Crim. P. 35(c), which defines the

word “sentencing” as “the oral announcement of the sentence,” should

11676 UNITED STATES v. MITCHELL
There is little room for doubt that Rule 43(a)(3)’s requirement that a defendant be present at sentencing applies to the

sentencing or penalty phase of a capital trial: to the sentencing

hearing. Because Rule 43(a) states that only a noncapital

defendant may waive his presence during sentencing, the district court erred in allowing Mitchell to be voluntarily absent

during the penalty phase. Furthermore, this error is a structural error that requires reversal even without a specific showing of prejudice. Although we generally consider structural

error within the context of constitutional errors, “numerous

errors are subject to automatic reversal even though they do

not violate constitutional rights.” United States v. Annigoni,

96 F.3d 1132, 1144 (9th Cir. 1996) (en banc). See, e.g.,

Gomez v. United States, 490 U.S. 858, 874-76 (1989) (holding

defendant did not need to show prejudice resulting from a

magistrate supervising voir dire in violation of the Federal

Magistrate’s Act because the defendant’s right “to have all

govern the interpretation of Rule 43. Rule 35(c) specifically states that the

definition applies to the term sentencing “[a]s used in this rule.” Id.

(emphasis added). Even aside from that express limitation, there is no reason to believe that the definition should carry over to other rules. Indeed,

there is every reason to believe that it should be limited to Rule 35,

because that rule contains several provisions that set deadlines based on

the date of sentencing. Rule 35(c) simply clarifies how those deadlines

should be calculated. Rule 43 serves a completely different purpose. The

fact that it explains in one section that “sentence correction” is a proceeding under Rule 35 is of no relevance whatsoever to the question before us.

The majority also relies on the legislative history of the amendments to

Rule 43. I find this history inconclusive. Although the earlier version

allowed a defendant in a noncapital case to be absent from the “imposition

of sentence” while the current version allows a noncapital defendant to be

absent from “sentencing,” there is no practical difference between the

terms as applied to a noncapital defendant. There is one sentencing proceeding in noncapital cases and it is at that proceeding that imposition of

the sentence occurs. The word “sentencing” and the term “sentencing proceeding” have far broader meanings with respect to a capital defendant. A

negative implication under such circumstances is also broader. Thus, general committee notes, which are ambiguous as applied, are hardly conclusive of critical questions that otherwise would be resolved by looking to

the plain meaning or ordinary construction of the terms in question. 

UNITED STATES v. MITCHELL 11677
critical stages of a criminal trial conducted by a person with

jurisdiction to preside” is “among the basic fair trial rights

that can never be treated as harmless”). In determining

whether an error requires automatic reversal, we look at

whether the error is a “structural defect affecting the framework within which the trial proceeds, rather than simply an

error in the trial process itself.” Arizona v. Fulminante, 499

U.S. 279, 310 (1991). Here, Mitchell’s absence throughout

the penalty phase affected the very nature of the proceedings.

The absence of a defendant when his presence is required is

as fundamental as the absence of his lawyer, see Gideon v.

Wainright, 372 U.S. 335, 344 (1963), or even of the judge.

See Tumey v. Ohio, 273 U.S. 510, 535 (1927). The defendant’s presence is required so that he may assist his counsel

and plead for mercy from the jury. Additionally, his presence

could well have significantly affected the course of the proceedings, the presentation of the mitigating and aggravating

evidence. In contrast to cases in which the defendant was

absent only during the pronouncement of the verdict, see, e.g.,

Rice v. Wood, 77 F.3d 1138 (9th Cir. 2002), a conversation

between a judge and a juror, see, e.g., Rushen v. Spain, 464

U.S. 114, 119 (1983), or the readback of testimony, see, e.g.,

Hegler v. Borg, 50 F.3d 1472, 1474-75 (9th Cir. 1995), a capital defendant has an “active role to play” during the penalty

phase of his trial. Cf. Rice, 77 F.3d at 1142. Because Mitchell’s absence was an error that permeated the entire penalty

phase, it may not be “quantitatively assessed in the context of

other evidence presented . . . .” Fulimante, 499 U.S. at 308.

It is impossible to determine from a review of a record

whether the penalty imposed would have been different if an

absent defendant had been present during the sentencing

phrase. 

I would reverse the death sentence on the basis of the

court’s fundamental error in allowing Mitchell to be absent

from the sentencing hearing. See Annigoni, 96 F.3d at 1147

(holding that a violation of Rule 24(b) of the Federal Rules of

Criminal Procedure, regarding peremptory challenges, is an

11678 UNITED STATES v. MITCHELL
error requiring automatic reversal). In the alternative, I will

consider the Rule 43 error below as if it were mere trial error,

in which case it would constitute part of the cumulative error

analysis. See section D at pp. 11685. 

B. Closing Arguments

As the majority opinion acknowledges, ante, at 11651, the

government made many improper statements in its closing

arguments. In determining whether these improper statements

alone warrant reversal, “[t]he critical inquiry is whether, in

the circumstances of the trial as a whole, the remarks were so

prejudicial that they likely influenced the jury adversely to the

defendant and deprived the defendant of a fair trial.” United

States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985). 

Much of the argument consisted of prohibited statements

intended to arouse the passion of the jury. See Leon-Reyes,

177 F.3d 816, 822 (9th Cir. 1999) (“Prosecutors may not

make comments calculated to arouse the passions or prejudices of the jury.”). For instance, the prosecution commented:

“What I like to call mitigating factors are excuses for murder

because we have free will.” Regarding defense witness who

offered mitigation testimony, the prosecution stated: “By the

way, the defendant’s using these people, too. Manipulating

them. They are up there begging for his life. Do you think

[Jane Doe] begged when she was told to lay down and die?”

In arguing a death sentence would be a “message” to Mitchell, the prosecution suggested the jury could consider its own

trauma in hearing about the murders: “It is a message all right,

it is a message to the defendant, that you have challenged us,

you have come before us with things that are going to cause

us nightmares as long as we are alive.” 

In a similar vein, the prosecution suggested Mitchell had

already received mercy by virtue of the trial itself: “Perhaps

years ago, Tombstone, he would have been taken out back,

strung up. He would have gotten a trial, nothing like this. We

UNITED STATES v. MITCHELL 11679
have been at this for seven weeks. We’ve gone to great

lengths to choose the jury. We have presented a trial. You

have made your findings. And yet still he gets to come before

you and say, ‘Spare my life.’ ” 

Other statements improperly shifted the burden of proof to

Mitchell to show that death was not warranted. The prosecutor asked: “What has Lezmond Mitchell done to earn a minimum sentence for the slaughter of two people? Nothing.”

Similarly, he remarked: “The defendant has done nothing to

earn an opportunity to be a message to someone in prison. He

has earned no opportunity to live in a cell whether he likes the

cell or not. He has earned no opportunity to get a college

degree while in prison or to Internet chat with someone or to

work in the shop of prison. He has earned nothing.” In contrast with cases where the prosecution clarified its comments

by reminding the jury that the government had the burden of

proof, see, e.g., United States v. Cabrera, 201 F.3d 1243,

1249 (9th Cir. 2000), the prosecution in this case offered no

such reminder. 

However, in the context of the entire trial, I cannot conclude that these statements alone warrant reversal. It is not

clear that by themselves, they were so prejudicial that they

violated due process and “deprived the defendant of a fair

trial.” Patel, 762 F.2d at 795. Nonetheless, the prosecutor’s

numerous improper statements were contrary to applicable

law and constituted sentencing phase error. The effect of these

errors must therefore be considered as a part of our cumulative error analysis.

C. Failure to Include “Beyond a Reasonable Doubt” in

Weighing Instruction

Finally, Mitchell argues that the district court erred by failing to instruct the jury that the government bore the burden

of proving beyond a reasonable doubt that aggravating factors

outweighed mitigating factors. Instead, the instructions stated:

11680 UNITED STATES v. MITCHELL
This weighing process asks whether you are unanimously persuaded that the aggravating factors sufficiently outweigh any mitigating factors or, in the

absence of any mitigating factors, that the aggravating factors are themselves sufficient to justify a sentence of death. 

The “beyond a reasonable doubt” standard applies if the

finding that aggravating factors outweigh mitigating factors is

a finding of fact that serves to increase the maximum sentence

a judge may impose on a defendant. “Other than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In Ring

v. Arizona, the Supreme Court held that Apprendi applies to

the sentencing phase of capital trials. Ring v. Arizona, 536

U.S. 587, 588 (2002) (“Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an

increase in their maximum punishment.”). In so holding, it

overruled Walton v. Arizona, 497 U.S. 639 (1990), “to the

extent that it allows a sentencing judge, sitting without a jury,

to find an aggravating circumstance necessary for imposition

of the death penalty.” Ring, 536 U.S. at 609. 

There is no doubt that the finding that aggravating factors

outweigh mitigating factors increased Mitchell’s maximum

punishment. The Federal Death Penalty Act provides that as

the final step in determining whether death is justified, the

jury must consider:

whether all the aggravating factor or factors found to

exist sufficiently outweigh all the mitigating factor

or factors found to exist to justify a sentence of

death, or, in the absence of a mitigating factor,

whether the aggravating factor or factors alone are

sufficient to justify a sentence of death.

UNITED STATES v. MITCHELL 11681
18 U.S.C. §3593(e). Absent this finding, the maximum sentence the court could have imposed would have been life

imprisonment without the possibility of release. See 18 U.S.C.

§ 3594. Thus, the only question is whether this finding is a

finding of fact. The majority suggests that it is not, although

it concludes that it is unnecessary to resolve the question on

plain error review. I conclude that it is necessary to make the

determination if only because the failure to instruct the jury

on the burden of proof is a serious error that must be considered as part of our cumulative error analysis. 

The majority suggests that the weighing process merely

channels the jury’s discretion and that it does not result in a

finding of essential fact. Ante, at 11648. The majority supports this suggestion with two observations. First, it cites dicta

from Kansas v. Marsh, 126 S. Ct. 2516, 2526 (2006), to the

effect that the weighing step simply channels jury discretion

by giving jurors criteria to use in deciding whether or not to

recommend a death sentence. While the majority is correct

that this step channels juror discretion, the same can be said

of every other step in the Federal Death Penalty Act’s sentencing process. Channeling discretion is not incompatible

with finding essential facts. Rather, it is precisely by instructing juries which facts are essential that the Act channels juror

discretion. 

Second, the majority suggests that Mitchell’s argument is

inconsistent with the Fifth Amendment requirement that facts

increasing the maximum penalty be found by the grand jury

and charged in the indictment. See Jones v. United States, 526

U.S. 227, 243 n.6 (1999). According to the majority, since the

grand jury cannot know which mitigators the defendant will

urge, it cannot find that aggravators outweigh mitigators.

Thus, the majority concludes that Mitchell’s position is

flawed because it characterizes as an essential fact something

that cannot be found by the grand jury. Ante, at 11648. However, the majority creates conflict where none exists. The

weighing process mandated by the Act applies regardless of

11682 UNITED STATES v. MITCHELL
whether jurors have found mitigating factors. As the Act

explains, “in the absence of a mitigating factor, [the jury shall

consider] whether the aggravating factor or factors alone are

sufficient to justify a sentence of death.” 18 U.S.C. § 3593(e).

The grand jury, working without knowledge of mitigating

facts, is capable of making a similar determination based upon

the aggravating factors before it. In fact, grand juries regularly

make factual determinations, for the purposes of that body’s

limited function, without having heard the defendant’s opposing facts that might have caused it to reach an opposite conclusion. Hearing only one-side of the story and rendering a

judgment is a hallmark of the grand jury system. 

This court has not yet decided whether the weighing of

aggravators and mitigators results in a finding of fact. It is

apparent to me that it does. Pre-Apprendi decisions in other

circuits rejected the Eighth Amendment claim that the “beyond a reasonable doubt” standard applies to the weighing of

aggravators and mitigators, but these decisions did not consider whether the weighing decision was a “fact.” See United

States v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995); United

States v. Chandler, 996 F.2d 1073, 1091-93 (11th Cir. 1993).

The one circuit court that has considered this question since

Apprendi held, in the context of a Fifth Amendment claim,

that the Federal Death Penalty Act’s weighing process did not

result in a finding of fact that must be charged in an indictment. See United States v. Purkey, 428 F.3d 738, 750 (8th Cir.

2005) (noting the weighing process is not an elemental fact

but instead merely “the lens through which the jury must

focus the facts that it has found to produce an individualized

determination”). However, this reasoning is faulty. As noted,

the weighing process does have a discretionary aspect, but it

also requires the jury to make an ultimate factual determination about whether aggravating factors sufficiently outweigh

mitigating factors so as to justify a sentence of death. Unless

it so determines, the death penalty cannot be imposed. 

Notwithstanding the discretionary elements of the weighing

step, three state supreme courts have held that Apprendi

UNITED STATES v. MITCHELL 11683
applies to similar weighing provisions in state death penalty

statutes. See Missouri v. Whitfield, 107 S.W.3d 253 (Mo.

2003) (en banc) (noting that weighing “require[s] factual findings that are prerequisites to the trier of fact’s determination

that a defendant is death eligible”); Woldt v. People, 64 P.3d

256, 265 (Colo. 2003) (en banc) (invalidating a superseded

Colorado death penalty statute because three steps of the sentencing process, including weighing, “required judges to

make findings of fact that render a defendant eligible for

death”); Johnson v. State, 118 Nev. 787, 802-03 (Nev. 2002)

(holding Apprendi and Ring apply to the finding that mitigation does not outweigh aggravation). As stated succinctly by

the Nevada Supreme Court, the jury’s finding on this issue “is

in part a factual determination, not merely discretionary

weighing.” Johnson, 118 Nev. at 802-03. 

Ultimately, the majority’s attempt to characterize the

weighing step as resulting in something other than an

Apprendi finding of fact reflects a level of formalism rejected

by both Apprendi and Ring. As Apprendi emphasized, “the

relevant inquiry is one not of form, but of effect—does the

required finding expose the defendant to a greater punishment

than that authorized by the jury’s guilty verdict?” 530 U.S. at

494. In Ring v. Arizona, the Court relied on this approach in

holding that aggravating factors must be proven to a jury

beyond a reasonable doubt. 536 U.S. at 609 (“Because Arizona’s enumerated aggravating factors operate as ‘the functional

equivalent of an element of a greater offense,’ the Sixth

Amendment requires that they be found by a jury.”) (internal

citation omitted). From this functional perspective, there is no

practical difference between the increase in punishment due

to the finding of an aggravating factor and the increase due to

the finding that aggravators outweigh mitigators. Because the

Federal Death Penalty Act requires both findings in order for

a judge to sentence a defendant to death, the Sixth Amendment requires a jury to make these findings beyond a reasonable doubt. The district court erred in concluding otherwise.

11684 UNITED STATES v. MITCHELL
D. Cumulative Error

Considered cumulatively, each of the errors discussed

above combined to prejudice Mitchell with respect to the

jury’s final determination to impose the death penalty. Mitchell’s absence from penalty phase proceedings meant that he

was not present to participate in the sentencing hearing, a critical point in the determination of his fate. His absence also

meant that the jury was not required to face him in the immediate period before it decided that he should die. The government’s improper closing arguments appealed to the jury’s

emotions and undoubtedly exacerbated their revulsion at the

offenses. Finally, the jurors were not required to decide

beyond a reasonable doubt whether aggravating factors outweighed mitigating factors, and thus were allowed to opt for

death without having to make the more difficult and stringent

decision required by law. 

Given the nature of the jury’s function in determining

whether to impose capital punishment, it seems apparent that

the cumulative effect of these errors was not harmless. Each

affected in an important way a significant aspect of the jury’s

decision-making process. Cumulative error may include violations that fail the plain error test, but are nevertheless errors.

See United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th

Cir. 2004) (considering errors that did not rise to the level of

plain error in a cumulative error analysis); United States v.

Wallace, 848 F.2d 1464, 1476 n.21 (9th Cir. 1988) (holding

that an error that was not objected to at trial, and may not

have amounted to plain error, should be considered in the

cumulative error analysis). Multiple errors, even if harmless

when considered individually, may have a cumulative prejudicial effect that deprives the defendant of the due process right

to a fair trial. See Karis v. Calderon, 283 F.3d 1117, 132 (9th

Cir. 2002); Ceja v. Stewart, 97 F.3d 1246, 1254 (9th Cir.

1996). Here, the combined effect of multiple sentencing phase

errors may well have caused at least one juror to vote for

death when he or she would otherwise have decided not to do

UNITED STATES v. MITCHELL 11685
so. In light of this probability, I would vacate Mitchell’s death

sentence. 

III. Conclusion 

I respectfully dissent. For the reasons set forth above, I

would reverse Mitchell’s conviction and remand for a new

trial. Should his conviction stand, however, I would, for the

additional reasons explained in this opinion, vacate Mitchell’s

sentence and remand for a new sentencing hearing.

11686 UNITED STATES v. MITCHELL