07-1320-cr

United States v. Wilson 1 UNI TED STATE S C OURT O F A PPEALS 2 3 FOR TH E S ECOND CIRCUI T 4 5 Aug ust Te rm, 20 09 6 7 (Ar gue d: Nov emb er 5, 200 9 De cid ed: Ju ne 30, 20 10) 8 9 Doc ket No . 0 7-1 320 -cr 10 11 12 - - - - - - - - - - - - - - - - - - - - -x 13 UNI TED ST ATE S O F AMER ICA , 14 15 App ell ee, 16 17 18 - v .- 19 MIC HAE L W HIT TEN , P ARI S B ULL OCK , A NGE L 20 21 ROD RIG UEZ , a lso kn own as Ic e, JAMAL BRO WN, 07- 132 0-c r 22 als o k now n a s M al, 23 Def end ant s, 24 25 26 RON ELL WI LSO N, als o k now n a s R ate d R , 27 28 Def end ant -Ap pel lan t. 29 30 - - - - - - - - - - - - - - - - - - - - x 31 Bef ore : JAC OBS , C hie f J udg e, MIN ER, an d 32 33 LIV ING STO N, Cir cui t J udg es. 34 35 Ronell Wilson murdered two undercover police detectives 36 who were posing as gun buyers. Wilson appeals from a 37 judgment of conviction and a sentence of death entered on 38 March 29, 2007, in the United States District Court for the2 1 Eastern District of New York (Garaufis, J.). Wilson appeals 2 on twelve grounds (some with subparts), among them that: the 3 evidence was insufficient to support a finding under the 4 Violent Crimes in Aid of Racketeering statute, 18 U.S.C. § 5 1959, that Wilson acted to maintain or increase his position 6 in a racketeering enterprise; and the district court abused 7 its discretion in cutting off recross-examination that had 8 bearing on whether Wilson shot in perceived self-defense 9 because he thought his victims were about to rob him. We 10 affirm as to those claims and therefore affirm the 11 convictions. 12 We likewise affirm the district court’s rejection of 13 Wilson’s arguments that: voir dire was unfairly biased and 14 constitutionally inadequate; testimony in the penalty phase 15 exceeded what is permissible under the Constitution and the 16 Federal Death Penalty Act, and required an additional 17 corrective charge; and a fellow inmate was acting as a 18 government agent in eliciting admissions from Wilson. 19 However, we vacate the death sentences, and remand, 20 because two arguments made to the jury by the prosecution-- 21 both bearing on the critical issues of remorse, acceptance 22 of responsibility, and future dangerousness--impaired3 1 Wilson’s constitutional rights. The government argued: [i] 2 that Wilson put the government to its proof of guilt rather 3 than plead guilty; and [ii] that Wilson’s allocution of 4 remorse should be discredited because he failed to testify 5 notwithstanding the fact that “ [t] he pat h f or tha t w itn ess 6 sta nd has ne ver be en blo cke d f or Mr. Wi lso n.” As to the 7 first argument, although a guilty plea may properly be 8 considered to support a sentence mitigation for acceptance 9 of responsibility, the Sixth Amendment is violated when 10 failure to plead guilty is treated as an aggravating 11 circumstance. As to the second, it is a fair argument for 12 the prosecution to say that an allocution of remorse is 13 unsworn and uncrossed, but the Fifth Amendment is violated 14 when the defendant is denied a charge that limits the Fifth 15 Amendment waiver to that which is said in the allocution and 16 the jury is invited to consider more generally that the 17 defendant declined to testify. These constitutional 18 violations were not harmless beyond a reasonable doubt. 19 Accordingly, we vacate the death sentences and remand 20 for further proceedings. 21 Jud ge Liv ing sto n d iss ent s i n p art in a sep ara te 22 opi nio n.4 1 BEV ERL Y VAN NES S, New Yo rk, Ne w 2 Yor k; BAR RY J. FIS HER , S ara tog a 3 Spr ing s, New Yo rk, fo r 4 Def end ant -Ap pel lan t. 5 6 Ben ton J. Ca mpb ell , U nit ed 7 Sta tes At tor ney , E ast ern 8 Dis tri ct of New Yo rk, Br ook lyn , 9 New Yo rk; MO RRI S J . F ODE MAN , 10 DAV ID BIT KOW ER (Pe ter A. 11 Nor lin g, Jas on A. Jon es, Za ina b 12 Ahm ad, on th e b rie f), As sis tan t 13 Uni tedSt ate s A tto rne ys, Ea ste rn 14 Dis tri ct of New Yo rk, Br ook lyn , 15 New Yo rk; Je ffr ey B. Kah an (on 16 the br ief ), Uni tedSt ate s 17 Dep art men t o f J ust ice Ca pit al 18 Cas e U nit , W ash ing ton , D .C. , f or App ell ee. 19 20 21 DEN NIS JA COB S, Chi ef Jud ge: 22 23 Ronell Wilson murdered two undercover police detectives 24 who were posing as gun buyers. Wilson appeals from a 25 judgment of conviction and a sentence of death entered on 26 March 29, 2007, in the United States District Court for the 27 Eastern District of New York (Garaufis, J.). Wilson appeals 28 on twelve grounds (some with subparts), among them that: the 29 evidence was insufficient to support a finding under the 30 Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18 31 U.S.C. § 1959, that Wilson acted to maintain or increase his 32 position in a racketeering enterprise; and the district 33 court abused its discretion in cutting off recross-5 1 examination that had bearing on whether Wilson shot in 2 perceived self-defense because he thought his victims were 3 about to rob him. We affirm as to those claims and 4 therefore affirm the convictions. 5 We likewise affirm the district court’s rejection of 6 Wilson’s arguments that: voir dire was unfairly biased and 7 constitutionally inadequate; testimony in the penalty phase 8 exceeded what is permissible under the Constitution and the 9 Federal Death Penalty Act, and required an additional 10 corrective charge; and a fellow inmate was acting as a 11 government agent in eliciting admissions from Wilson. 12 However, we vacate the death sentences, and remand, 13 because two arguments made to the jury by the prosecution-- 14 both bearing on the critical issues of remorse, acceptance 15 of responsibility, and future dangerousness--impaired 16 Wilson’s constitutional rights. The government argued: [i] 17 that Wilson put the government to its proof of guilt rather 18 than plead guilty; and [ii] that Wilson’s allocution of 19 remorse should be discredited because he failed to testify 20 notwithstanding the fact that “ [t] he pat h f or tha t w itn ess 21 sta nd has ne ver be en blo cke d f or Mr. Wi lso n.” As to the 22 first argument, although a guilty plea may properly beThe re is no mer it to Wil son ’s arg ume nt tha t t he cas e 1 nee d b e r ema nde d t o a di ffe ren t d ist ric t c our t j udg e. Se e Uni tedSt ate s v . D emo tt, 51 3 F .3d55 , 5 9 ( 2d Cir . 2 008 ) ( per cur iam ). 6 1 considered to support a sentence mitigation for acceptance 2 of responsibility, the Sixth Amendment is violated when 3 failure to plead guilty is treated as an aggravating 4 circumstance. As to the second, it is a fair argument for 5 the prosecution to say that an allocution of remorse is 6 unsworn and uncrossed, but the Fifth Amendment is violated 7 when the defendant is denied a charge that limits the Fifth 8 Amendment waiver to that which is said in the allocution and 9 the jury is invited to consider more generally that the 10 defendant declined to testify. These constitutional 11 violations were not harmless beyond a reasonable doubt. 12 Accordingly, we vacate the death sentences and remand 13 for further proceedings. 1 14 15 BAC KGR OUND 16 Wilson was convicted on five capital counts: two counts 17 of murder in aid of racketeering under VICAR (18 U.S.C. § 18 1959(a)(1)), two counts of causing a death through the use 19 of a firearm (18 U.S.C. § 924(j)), and one count of7 1 carjacking with death resulting (18 U.S.C. § 2119(3)). He 2 was also convicted on five non-capital counts. At a 3 separate penalty phase, the same jury unanimously voted to 4 sentence Wilson to death on all five capital counts. 5 Eight of the convictions (including all five capital 6 counts) stem from a March 10, 2003 robbery and murder of New 7 York Police Department detectives James Nemorin and Rodney 8 Andrews. The other two counts (a robbery conspiracy and the 9 use of a firearm) stem from a May 2, 2002 aborted robbery. 10 Wilson was arrested on March 12, 2003, two days after the 11 murders. 12 At trial, the defense contended that the triggerman was 13 Jesse Jacobus, a fellow gang member who was with Wilson 14 during the murders and who testified against him at trial; 15 but Wilson does not appeal the jury’s finding that he, 16 Wilson (and not Jacobus), fired the shots. 17 The district court had jurisdiction to hear the case 18 under 18 U.S.C. § 3231. This Court has jurisdiction over an 19 appeal from a final order of the district court under 28 20 U.S.C. § 1291. 21 22 ATh e g ove rnm ent ca lle d D iaz an d J aco bus as co ope rat ing 2 wit nes ses in th e g uil t p has e o f t his ca se to tes tif y a bou t the cr imi nal ac tiv iti es of the ga ng andth e m urd ers of th e pol ice of fic ers . Bot h t hes e m en hadpl ead ed gui ltyto fel ony mu rde r i n s tat e c our t a nd wou ld be sen ten cedto 15 -25 yea rs to lif e i n p ris on. 8 1 The Stapleton Crew was a violent gang that operated in 2 Staten Island from approximately 1999 until it was disbanded 3 by the arrest of the principals following the murders 4 committed by Wilson. The gang was involved in robberies and 5 the sale of drugs. The core members of this gang were 6 Michael Whitten, Paris Bullock, Omar Green, Hason Taylor, 7 and Rashun Cann; associated gang members included Mitchell 8 Diaz, Jacobus, and the appellant, Wilson. 2 9 The Stapleton Crew collectively owned several guns that 10 were available for the members’ use. One week before the 11 murders, on March 3, 2003, Whitten and Green sold one of 12 these guns, a .357 caliber revolver, for $780. The buyer in 13 that transaction was actually Detective Nemorin working 14 undercover. He made no arrest at that time because he 15 wanted to further infiltrate the gun-sale operation and make 16 additional arrests later. Accordingly, he arranged to 17 purchase another of the Stapleton Crew’s guns the following 18 week.9 1 2 B 3 Detective Andrews volunteered to accompany Detective 4 Nemorin as backup at the second transaction. They were 5 accompanied at a distance by officers on foot and in nearby 6 cars; one of the putative gun buyers wore a fake beeper that 7 would broadcast audio to officers conducting surveillance. 8 In advance of the March 10 meeting, members of the 9 Stapleton Crew decided to rob the buyer of the $1,200 price 10 rather than deliver the gun. The discussion among Wilson, 11 Diaz, Bullock, Whitten, and Green in Green’s apartment was 12 as follows: Jacobus would assist Wilson; Wilson would be 13 armed with one of the communal guns, which (Wilson was told) 14 he might have to use; Green or Whitten raised the 15 possibility that Detective Nemorin might be a police officer 16 or a thief attempting to rob the Stapleton Crew; Wilson 17 committed to go through with the robbery anyway if Green and 18 Whitten wanted him to do so; Green and Whitten then approved 19 of the planned robbery. 20 On the night of March 10, 2003, Wilson and Jacobus got 21 into the back seat of the undercovers’ car (Wilson sat 22 behind the driver, Detective Nemorin). Wilson directed the10 1 driver to another neighborhood in Staten Island, where 2 Wilson got out, met Diaz, and picked up the .44 caliber 3 pistol ultimately used in the murders. Wilson and Diaz 4 discussed what both recognized to be an undercover police 5 presence in the area, although Diaz stated that he told 6 Wilson he did not believe the police were deployed on their 7 account. Wilson, now armed, rejoined the others in the car, 8 and directed the driver to another neighborhood (where the 9 planned robbery would take place). 10 When they arrived, Wilson briefly stepped out of the 11 car. When he got back in, Wilson shot Detective Andrews in 12 the head. Wilson then pointed the gun at Detective Nemorin 13 and said, “Where’s the shit at? Where’s the shit at? 14 Where’s the money? Where’s the shit at?” Jacobus testified 15 that Detective Nemorin “was pleading for his life” before 16 Wilson shot him in the head. 17 Wilson and Jacobus left the car with the victims’ 18 bodies inside, walked quickly to the nearby apartment of 19 Wilson’s stepfather, entered with Wilson’s key, and stashed 20 the murder weapon in a closet. Wilson and Jacobus then 21 returned to the car and pulled the bodies out to search them 22 for money. Leaving the bodies in the street, they drove off11 1 in the bloodstained car. As they drove away from the crime 2 scene, Jacobus asked Wilson why he shot the men; Wilson 3 responded, “I don’t give a fuck about nobody.” 4 Wilson and Jacobus parked the car near the Stapleton 5 Projects and began to search it for money. Wilson found a 6 gun under the front passenger seat and said, “[t]hey was 7 going to get us before we got them.” Jacobus testified that 8 Wilson had not previously suggested that the killings were 9 preemptive. Wilson kept the gun he took from the car. 10 As Wilson and Jacobus walked back to the projects, 11 Wilson yelled something to a passing police car. The police 12 car stopped and the officers got out; Wilson and Jacobus 13 ran, and the officers pursued; Jacobus was arrested a short 14 distance away. 15 Wilson escaped into the Stapleton Projects, and went to 16 Green’s apartment, where Green was with Diaz. Diaz 17 testified that Wilson was asked what happened, and Wilson 18 responded that he, Wilson, had “popped” the buyers. Diaz 19 recalled that Wilson said other things as well, but in a 20 ruling contested on this appeal, questioning of Diaz on that 21 issue was terminated. Wilson left the apartment with Green 22 and Diaz.12 1 Wilson was arrested two days later in Brooklyn. In his 2 pocket the arresting officers found (among other things) rap 3 lyrics he had written that arguably describe the murders. 4 5 C 6 In March 2003, Wilson was indicted in state court for 7 first-degree murder, and the district attorney filed notice 8 of intent to seek the death penalty. In June 2004, the New 9 York Court of Appeals ruled that the state’s death penalty 10 statute violated the New York Constitution. 11 The federal government then took up the prosecution. 12 On November 17, 2004, a federal grand jury indicted Wilson, 13 Bullock, Whitten, and two other members of the Stapleton 14 Crew. Wilson’s four co-defendants each pled guilty to 15 racketeering and narcotics charges, and have been imprisoned 16 for a term of years. 17 A notice of intent to seek the death penalty was filed 18 in federal court on August 2, 2005. In September 2006, the 19 grand jury approved a superseding indictment that served as 20 the trial indictment, charging Wilson on five capital counts 21 (two charges of murder in aid of racketeering, two charges 22 of firearm murders during a robbery, and one charge of13 1 carjacking murder) as well as five non-capital counts (three 2 of which stem from the March 10, 2003 robbery and two from a 3 previous aborted robbery). 4 The government gave notice that it was seeking the 5 death penalty on the basis of six aggravating factors. The 6 two statutory aggravating factors were [i] that he committed 7 the murders in the expectation of the receipt of something 8 of pecuniary value and [ii] that he intentionally killed 9 more than one person in a single criminal episode. See 18 10 U.S.C. § 3592(c)(8), (c)(16). The non-statutory aggravating 11 factors were [iii] that the victims were law enforcement 12 officers murdered during their official duties, [iv] that 13 Wilson faced contemporaneous convictions for serious acts of 14 violence, [v] that Wilson was a continuing danger to others, 15 and [vi] that the victims’ deaths impacted survivors. See 16 18 U.S.C. § 3593(a)(2). On appeal, Wilson argues that the 17 victim impact evidence should have been limited to family, 18 and that in any event he was prejudiced by the emotional 19 content of the victim impact testimony. 20 Approximately 600 potential jurors were assembled in 21 September 2006 and filled out a questionnaire. Individual 22 voir dire of approximately 260 potential jurors began in14 1 October 2006 and ended on November 16, 2006, during which 2 time the parties submitted and objected to proposed written 3 questions for the court to pose. After voir dire, the 4 defense moved to discharge all twelve seated jurors; the 5 motion was denied. On appeal, Wilson argues that the voir 6 dire was biased to favor the prosecution and 7 unconstitutionally omitted a critical inquiry--the 8 willingness of the jury to consider childhood deprivation as 9 a mitigator. 10 At the guilt phase of trial, the government largely 11 proved the case set out above in connection with the March 12 10, 2003 double homicide. Wilson argues on appeal that the 13 trial evidence did not sufficiently prove that he killed for 14 pecuniary gain or for position in the gang, an element of 15 murder in aid of a racketeering activity. On December 20, 16 2006, the jury returned guilty verdicts on all ten counts 17 against Wilson. 18 19 D 20 At the penalty phase of the trial the government relied 21 on six aggravating factors to justify a sentence of death. 22 The two factors expressly listed in the statute had been the15 1 subject of evidence in the guilt phase: killing for 2 pecuniary gain and killing multiple people in a single 3 incident. See 18 U.S.C. § 3592(c)(8), (c)(16). Of the four 4 non-statutory factors, two had been the subject of evidence 5 in the guilt phase: killing law enforcement officers in the 6 course of duty and contemporaneous convictions for serious 7 acts of violence (the earlier aborted robbery). The 8 government’s case at sentencing was therefore focused on two 9 (non-statutory) aggravating factors: victim impact and 10 future dangerousness. 11 The government’s victim impact evidence consisted of: 12 five witnesses who testified primarily about Detective 13 Andrews (his widow, sister-in-law, son, cousin, and a friend 14 in the police department); five witnesses who testified 15 primarily about Detective Nemorin (his widow, mother-in-law, 16 sister, former supervisor, and a friend in the police 17 department); 41 photos of the detectives as they were in 18 life; and an excerpt from a documentary film (sponsored by 19 one of the police witnesses) in which Detective Nemorin 20 discussed his job as an undercover police officer. Wilson 21 objected to much of this evidence on a number of grounds. 22 To show future dangerousness, the government adduced16 1 Wilson’s record of increasingly serious offenses, starting 2 at age 11. The offenses included robberies and assaults. 3 The victim of an assault committed when Wilson was 19 years 4 old required 300 stitches. Between ages 15 and 17, Wilson 5 was confined to a maximum security juvenile facility for 6 robbery; at 17, he entered Rikers Island for one year. 7 Wilson murdered Detective Andrews and Detective Nemorin when 8 he was 20 years old. The prosecution also cited a long 9 disciplinary record of prison offenses. Moreover, the 10 prosecution established that Wilson was a member of the 11 Bloods gang, stayed a member while in prison, and had (on at 12 least two occasions) told fellow gang members to “pop off” 13 (i.e., attack the guards). 14 To testify about the Bloods’ structure and 15 organization, and how acts of violence move a member up 16 within the gang hierarchy, the government put on a 17 cooperating witness, Shabucalik Geralds, a former Bloods 18 member who was still to some extent affiliated with the gang 19 at the time he testified. Geralds, who encountered Wilson 20 in prison while Wilson was detained following the murders, 21 also testified to statements made by Wilson. The defense 22 argues on appeal that Geralds’s testimony about the Bloods17 1 was unreliable opinion testimony lacking a foundation of 2 personal knowledge and that Geralds was a government agent 3 when he elicited information from Wilson. 4 Wilson put on an expert witness to refute the idea that 5 he would be a danger in prison. Donald Romine, a former 6 Bureau of Prisons supervisor, testified that prisons have 7 many effective controls in place to prevent violence, that 8 Wilson’s prison disciplinary record was unremarkable, and 9 that the Bloods gang does not present a particularly high 10 risk within the federal prison population. On cross11 examination, the prosecution elicited testimony from Romine 12 about the internal workings of the Bloods, including that 13 acts of violence could lead to promotion within their ranks. 14 Wilson’s affirmative case in the sentencing phase 15 focused on mitigating factors relating to his Dickensian 16 upbringing. His father was largely absent; his mother was a 17 drug addict; and he lived in poverty either with them or 18 with other relatives. State child services intervened on 19 several occasions. Wilson lived for a time with his 20 grandmother in a three-bedroom apartment in the Stapleton 21 Projects, along with twelve other people. When Wilson was 22 six years old, he was hospitalized three times for18 1 psychiatric difficulties, including suicidal tendencies. 2 Prior to his hospitalizations, child services had taken him 3 away from his mother, and given him over to his aunt. 4 Wilson exhibited both sadness and aggression at school. His 5 IQ has been tested in the high 70s. The defense also called 6 members of Wilson’s family to testify about his loving 7 relationship with them, and how they would suffer if he is 8 executed. 9 The defense received permission for Wilson to read 10 aloud an allocution of remorse, both to support the 11 mitigating factors of remorse and acceptance of 12 responsibility and to counter the prosecution’s aggravating 13 factor of future dangerousness. The defense argues on 14 appeal that the district court improperly limited the scope 15 of Wilson’s allocution of remorse and that the court’s 16 rulings and the prosecution’s improper arguments on 17 summation ultimately caused the jury to hold against him his 18 allocution of remorse, his exercise of the right to trial, 19 and the fact that he did not testify. 20 The jury unanimously voted to sentence Wilson to death 21 on each of the five capital counts. The special verdict 22 form reports unanimous findings beyond a reasonable doubt19 1 that the prosecution established the two statutory 2 aggravating factors and each of the four non-statutory 3 aggravating factors. Further, the jury unanimously found 4 that 14 mitigation factors were proven by a preponderance of 5 the evidence. No juror found that Wilson was remorseful or 6 that he took responsibility for his actions. 7 The district court entered judgment on March 29, 2007. 8 Wilson appeals from that judgment. 9 10 DIS CUS SION 11 Two grounds of appeal would impact Wilson’s 12 convictions: whether the evidence was sufficient to support 13 a finding under the VICAR statute that Wilson committed the 14 murders to maintain or increase his position in the gang 15 (see Point I); and whether the district court abused its 16 discretion in curtailing recross-examination that had 17 bearing on whether Wilson shot the detectives out of 18 perceived self-preservation (see Point II). We affirm as to 19 these claims and, therefore, affirm the convictions. 20 The remaining grounds of appeal challenge the sentence 21 of death. These include whether the judge’s voir dire 22 inquiries were improperly biased (see Point III); whether20 1 testimony in the penalty phase exceeded what is permissible 2 under the Constitution and the Federal Death Penalty Act, 3 and required a corrective charge (see Point IV); and whether 4 a fellow inmate was acting as a government agent in 5 eliciting admissions from Wilson (see Point V). We reject 6 those challenges. 7 However, we vacate the death sentences, and remand, on 8 the grounds that two arguments made by the prosecution, both 9 bearing on the critical issue of Wilson’s claimed remorse 10 and acceptance of responsibility, violated Wilson’s 11 constitutional rights (see Points VI and VII). These 12 constitutional violations were not harmless beyond a 13 reasonable doubt (see Point VIII), and so we vacate and 14 remand. 15 Wilson further appeals his sentence of death on 16 additional grounds that we can reject without making new law 17 (see Point IX). 18 19 I 20 Wil son co nte nds th at the ev ide nce wa s i nsu ffi cie nt to 21 sup por t a ju ry fin din g t hat he ha d a cte d w ith an y o f t he 22 mot ive s r equ ire d f or con vic tio n u nde r t he VIC AR sta tut e, and21 1 tha t h is con vic tio ns on Cou nts On e a nd Two of th e i ndi ctm ent 2 mus t t her efo re be vac ate d. 3 The VI CARst atu te pro vid es, in pe rti nen t p art : 4 Who eve r, as con sid era tio n f or the re cei pt of, or 5 as con sid era tio n f or a p rom ise or ag ree men t t o 6 pay , a nyt hin g o f p ecu nia ry val ue fro m a n 7 ent erp ris e e nga gedin ra cke tee rin g a cti vit y, or 8 for th e p urp ose of ga ini ng ent ran ce to or 9 mai nta ini ng or inc rea sin g p osi tio n i n a n 10 ent erp ris e e nga gedin ra cke tee rin g a cti vit y, 11 mur der s . . . a ny ind ivi dua l i n v iol ati on of the 12 law s o f a ny Sta te or the Un ite d S tat es . . . sha ll 13 be pun ish ed- - ( 1) . . . by dea th or lif e 14 imp ris onm ent , o r a fi ne und er thi s t itl e, or bot h. 15 18 U.S .C. § 195 9(a ). Th e g ove rnm ent un der too k t o s how th at 16 Wil son ac tedfo r p ecu nia ry gai n a nd “fo r t he pur pos e o f 17 . . . mai nta ini ng or inc rea sin g p osi tio n” wit hin th e 18 Sta ple ton Cr ew. I d. Be cau se we con clu de tha t t her e w as 19 suf fic ien t e vid enc e t o s upp ort th e f ind ing th at Wil son ac ted 20 for st atu s a nd pos iti on we nee d n ot con sid er pec uni aryga in. 21 To sho w t hat Wi lso n a cte d “ for th e p urp ose of . . . 22 mai nta ini ng or inc rea sin g p osi tio n,” th e p ros ecu tio n m ust 23 sho w [ i] “th at [Wi lso n] hada pos iti on in the en ter pri se, ” 24 and[i i] “th at his ge ner al pur pos e” in mur der ing De tec tiv es 25 Nem ori n a nd And rew s “ was to ma int ain or in cre ase hi s 26 pos iti on in the en ter pri se. ” Uni tedSt ate s v . C onc epc ion , 27 983 F. 2d 369 , 3 81 (2dCi r. 199 2). “ [M] ain tai nin g o r22 1 inc rea sin g p osi tio n i n t he [ra cke tee rin g] ent erp ris e [ nee d 2 not ha ve bee n] def end ant ’s sol e o r p rin cip al mot ive .” Id . 3 “[T ]he mo tiv e [ ele men t i s] sat isf iedif th e j uryco uld 4 pro per ly inf er tha t t he def end ant co mmi tte d h is vio len t 5 cri me bec aus e h e k new it wa s e xpe cte d o f h im by rea son of 6 his me mbe rsh ip in the en ter pri se or tha t h e c omm itt ed it in 7 fur the ran ce of tha t m emb ers hip .” Id .; see al so Uni ted 8 Sta tes v. Dh ins a, 243 F. 3d 635 , 6 71 (2dCi r. 200 1) 9 (“[ S]e cti on 195 9 e nco mpa sse s v iol ent cr ime s i nte nde d t o 10 pre ser ve the de fen dan t’s po sit ion in th e e nte rpr ise or to 11 enh anc e h is rep uta tio n a nd wea lth wi thi n t hat en ter pri se. ” 12 (em pha sis om itt ed) ). 13 There is evidence that Wilson murdered the two 14 detectives in order to improve his position within the 15 Stapleton Crew. Jacobus made the connection between 16 violence by Crew members and status within the Crew. He 17 testified that he himself committed crimes “to raise [his] 18 status” within the group, that Wilson enjoyed “a certain 19 status” due to his reputation for violence, and that violent 20 acts, especially the murder of police officers, would 21 enhance one’s “status” within the Stapleton Crew. That such 22 conduct would enhance Wilson’s status is confirmed by23 1 evidence of the Crew’s violent character. The gang’s 2 members regularly committed violent acts on behalf of the 3 Crew with fellow members. Members were expected to adopt 4 each other’s grievances, and to react with violence toward 5 offending outsiders, including any member of the rival 456 6 gang. The Crew possessed firearms for use by its members. 7 Photographs show members of the Stapleton Crew brandishing 8 firearms and displaying gang signs. Rap lyrics written by a 9 member celebrate the Crew’s rivalry with the 456. Finally, 10 as Diaz testified, Wilson went from the murders to the 11 apartment of one of the Crew’s leaders, reported to those 12 present that he had “popped” (i.e., shot) his victims, and 13 produced Detective Nemorin’s pistol. 14 In reviewing a conviction for sufficiency of 15 evidentiary support, “the trial evidence is viewed most 16 favorably for the Government” and “all reasonable inferences 17 a jury may have drawn favoring the Government must be 18 credited.” United States v. Wexler, 522 F.3d 194, 206-07 19 (2d Cir. 2008). We affirm “‘if any rational trier of fact 20 could have found the essential elements of [the] crime 21 beyond a reasonable doubt.’” Id. at 207 (emphasis omitted) 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).Wi lso n c ont end s t hat Ja cob us lac kedfi rst -ha nd 3 kno wle dge of fa cts su ffi cie nt to pro vid e a ra tio nal ba sis for hi s t est imo ny on the st atu s e ffe cts of vi ole nt act s b y mem ber s o f t he Sta ple ton Cr ew, an d t hat th is tes tim onywa s the ref ore admit tedin vi ola tio n o f F ede ral Ru le of Evi den ce 701 . See United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (“The rational-basis requirement [of F.R.E. 701] ‘is the familiar requirement of first-hand knowledge or observation.’” (quoting Fed. R. Evid. 701 Advisory Comm. Note on 1972 Proposed Rules)). W e d isa gre e. Ja cob us tes tif iedge ner all y t o w hat an ac t o f v iol enc e w oul d d o f or a m emb er’ s s tat us, no t d ire ctl y t o w hat Wi lso n k new or bel iev ed. C f. United States v. Kaplan, 490 F.3d 110 , 1 17- 19 (2dCi r. 200 7) ; United States v. Garcia, 291 F.3d 127, 140- 41 (2d Cir. 2002) . The re is amp le evi den ce of Jac obu s’s man y c onn ect ion s t o t he Sta ple ton Cr ew andre lat ion shi ps wit h i ts mem ber s. Th is fou nda tio nal ev ide nce su ppo rte d a con clu sio n t hat Ja cob us hadsu ffi cie nt kno wle dge ab out th e Cre w’s cu ltu re, hi era rch y, andor gan iza tio n t o t est ifyto the st atu s e ffe cts of vi ole nce . Adm iss ion of hi s t est imo ny was no t a n a bus e o f d isc ret ion . Cf. Kaplan, 490 F.3d at 117-19. 24 1 We conclude without difficulty that there is sufficient 2 evidence of Wilson’s “position in the enterprise.” 3 Concepcion, 983 F.2d at 381. It is a closer question 4 whether Wilson’s “general purpose” in murdering Detectives 5 Nemorin and Andrews was “to maintain or increase his 6 position in the enterprise,” id., but we find sufficiency. 7 First, Jacobus testified that violent acts by members 8 of the Stapleton Crew enhance status within the group. 3 9 This testimony was reinforced by evidence that the Crew 10 encouraged and even glorified violence: Members regularly25 1 organized and committed violent crimes and retaliatory acts 2 of violence; the Crew made available firearms for such 3 purposes; photographs and rap lyrics reflect group pride in 4 its violent character. 5 Second, there is evidence that the murders were 6 contemplated and implicitly authorized by the group’s 7 leaders. Green directed Wilson to commit the robbery, and 8 it was decided that Wilson would carry the firearm, which 9 was provided by the Crew. At the planning meeting in 10 Green’s apartment, which included the group’s leaders, it 11 was acknowledged that Wilson “might have to use” the gun 12 with which they were going to commit the robbery--i.e., that 13 Wilson might have to “shoot” one or more of the victims, and 14 that one or another of the victims “might be a cop or he may 15 be trying to rob” Wilson or Jacobus. When Wilson was then 16 “asked whether he wanted to go ahead with” the robbery, he 17 deferred to Green and Whitten--two of the group’s leaders-- 18 and it was decided that the robbery would proceed 19 notwithstanding the risks. 20 Third, Wilson’s actions after the murders suggest that 21 he was proud of the crimes and wanted others to be made 22 aware of them. When asked immediately after the murders whyTh oug h t est imo ny dif fer ed as to wha t w as sai d, the 4 jur y w as fre e t o c red it thi s v ers ion , w hic h w as rep ort ed by one of th e p oli ce off ice rs pre sen t, andwe ar e b oun d t o res pec t t hat co ncl usi on. S ee Wex ler , 5 22 F.3 d a t 2 06- 07. So me tes tim ony su gge sts th at the am oun t w as $1, 300 , 5 but th e j ury wa s f ree to cr edi t t est imo ny as to the lo wer amo unt , a nd we are bo undto co nst rue al l e vid enc e i n f avo r of the Go ver nme nt. S ee Wex ler , 5 22 F.3 d a t 2 06- 07. 26 1 he had killed the officers, Wilson responded with bravado, 2 “I don’t give a fuck about nobody”; and when Wilson was 3 returning to his apartment after the murders, he called out 4 to a police car, “[W]hat, are you looking for more 5 trouble?” Furthermore, Wilson reported back to one of the 4 6 Crew’s leaders--Green--following the murders. Finally, 7 given the modest expected yield from the robbery (the gun 8 transaction totaled $1,200 ), the jury may rationally have 5 9 concluded that Wilson had an additional, non-pecuniary 10 motive for committing such a crime. 11 Wilson argues that, in any event, maintenance or 12 increment in gang “status” is not a purpose that falls 13 within the category of qualifying statutory motives. The 14 argument is premised on a distinction between “status,” 15 which Jacobus testified would be increased by violence, and 16 “position,” the word used in the VICAR statute. That 17 distinction is not so clear as Wilson makes it out to be; in27 1 ordinary usage the words are synonyms, and in the dictionary 2 they reference each other. One definition of “status” is 3 “position or rank in relation to others.” Webster’s Third 4 New International Dictionary Unabridged 2230 (Philip B. Gove 5 ed., Merriam-Webster 3d ed. 1986) (1961). And “position” in 6 turn, means “social or official rank or status.” Id. at 7 1769. “Position” should not be construed so narrowly as to 8 distinguish it from “status.” It does not matter, for 9 example, that the Stapleton Crew did not promote by grade in 10 a ramified hierarchy. 11 Wilson contends that, on this record, status was at 12 most a secondary or incidental motive for his crimes, and 13 that the evidence therefore does not sustain a conviction 14 under the VICAR statute. See, e.g., United States v. Thai, 15 29 F.3d 785, 817-19 (2d Cir. 1994) (insufficient evidence to 16 sustain VICAR conviction because the only evidence of motive 17 suggested defendant had acted for pecuniary gain); United 18 States v. Jones, 291 F. Supp. 2d 78, 87-89 (D. Conn. 2003) 19 (insufficient evidence to sustain conviction where there was 20 little evidence that act was motivated by anything other 21 than personal animus). Wilson argues that in fact the 22 primary motive was self-defense. However, the only evidence28 1 bearing upon a self-defense theory is testimony by Jacobus 2 that, when he and Wilson returned to the detectives’ car 3 following the murders, Wilson found a gun under the driver’s 4 seat, and said “[t]hey was going to get us before we got 5 them.” This statement says nothing about Wilson’s belief or 6 motivation at any point prior to the moment he found the 7 gun, after the deed was already done. In any event, the 8 evidence discussed supports a jury finding that incremental 9 status was one of Wilson’s primary motives; that is enough. 10 See United States v. Farmer, 583 F.3d 131, 143-44 (2d Cir. 11 2009) (“The government was not required to prove that 12 [defendant’s] sole or principal motive was maintaining or 13 increasing his position, so long as it proved that 14 enhancement of status was among his purposes.” (internal 15 quotation marks and citation omitted)). 16 Finally, Wilson argues that there is no evidence the 17 murders increased Wilson’s status in fact. This argument is 18 foreclosed by Farmer, 583 F.3d at 142 (“[T]he question is 19 not whether [defendant’s] position . . . was advanced in 20 fact by the murder he committed, but whether his purpose in 21 committing the murder was to benefit his position.”). 22 Accordingly, we hold that sufficient evidence supported29 1 Wilson’s convictions for murder in aid of racketeering in 2 violation of 18 U.S.C. § 1959, Counts One and Two of the 3 indictment. 4 5 II 6 Soo n a fte r t he mur der s , Wil son re tur nedto th e 7 Sta ple ton ap art men t o f G ree n. Ac cor din g t o the testimony of 8 Diaz --w ho was in th e a par tme nt wit h G ree n-- Wil son an nou nce d 9 tha t h e h ad “po ppe d” the tw o v ict ims . Gre en didno t 10 tes tif y; but he wa s t he sub jec t o f a Br adyle tte r, acc ord ing 11 to whi ch Gre en “in for medth e g ove rnm ent th at Wil son ac tua lly 12 sai d t hat he ki lle d t he vic tim s b eca use ‘t heywe re goi ng to 13 rob us .’” S ee gen era lly Br adyv. Ma ryl and , 3 73 U.S . 8 3, 87- 14 88 (19 63) . Gre en’ s § 35 00 mat eri al ind ica tedth at Wil son 15 als o s aidth e v ict ims we re pul lin g o ut the ir wea pon s. Se e 16 Uni tedSt ate s v . R iga s, 583 F. 3d 108 , 1 25 (2dCi r. 200 9) 17 (no tin g t hat 18 U. S.C . § 35 00 “co dif [ie s] the go ver nme nt’ s 18 dis clo sur e o bli gat ion s d uri ng cri min al pro cee din gs” ). 19 For th e f irs t t ime , o n r ecr oss -ex ami nat ion , t he def ens e 20 ask ed Dia z i f h e h ad hea rd Wil son ma ke the st ate men ts 21 att rib ute d t o h im in the Br adyle tte r a nd oth er rel ate d 22 sta tem ent s. Th e c our t s ust ain ed the pr ose cut ion ’s rep eat ed30 1 obj ect ion s t hat th e q ues tio ns wer e o uts ide th e s cop e o f 2 red ire ct. T he rel eva nt pas sag e i n t he gov ern men t’s di rec t3 exa min ati on of Dia z i s a s f oll ows : 4 PRO SEC UTI ON : Wha t d id [Wi lso n] say ? 5 DIA Z : I d on’ t r eme mbe r h is exa ct wor ds, bu t h e 6 sai d s ome thi ng to the [e ]ff ect th at he 7 pop pedhi m. 8 9 PRO SEC UTI ON : The wo rd “po p” you us ed, is th at a w ord 10 tha t t he def end ant us ed? 11 12 DIA Z : Yes . 13 14 Wil son co nce des th at “[d ]ef ens e c oun sel di d n ot cro ss15 exa min e D iaz ab out wh at Wil son sa id on his re tur n t o G ree n’s 16 apa rtm ent .” On th is top ic, cr oss -ex ami nat ion to uch ed onl y 17 on whe the r D iaz ha d a cl ear me mor y o f W ils on’ s d ecl ara tio n 18 tha t h e h ad “po ppe d” the vi cti ms. O n r edi rec t, the 19 gov ern men t t her efo re reh abi lit ate d D iaz ’s mem oryof Wi lso n’s 20 adm iss ion : 21 PRO SEC UTI ON : Whe n t he def end ant sa id “I pop pedth em, ” 22 wha t d id you un der sta nd himto me an? 23 24 DIA Z : Tha t h e s hot th em. 25 26 PRO SEC UTI ON : Sho t w ho? 27 DIA Z : The vi cti ms. 28 PRO SEC UTI ON : Hum an bei ngs ? Peo ple ? 29 DIA Z : Yes .31 1 The go ver nme nt con clu dedDi az’ s r edi rec t w ith th e f oll owi ng 2 lin e o f q ues tio nin g: 3 PRO SEC UTI ON : Do you ha ve anydo ubt , a ny dou bt at all , 4 tha t w hen yo u g ot bac k t o O mar Gr een ’s 5 hou se, th at [Wi lso n] cam e i nto th e h ous e 6 andsa id I p opp ed the m? Do yo u h ave an y 7 dou bt abo ut tha t? 8 9 DEF ENS E : Obj ect ion to th e l ead ing fo rm of the 10 que sti on, Yo ur Hon or. 11 12 COURT : You ma y a nsw er. 13 14 PRO SEC UTI ON : Do you ha ve anydo ubt ab out th at, si r? 15 DIA Z : No. 16 On rec ros s, def ens e c oun sel tu rne d t o W ils on’ s a dmi ssi on 17 tha t h e h ad “po ppe d” the vi cti ms: 18 DEF ENS E : [Wi lso n] sai d m ore th an pop pedhi m, isn ’t 19 tha t c orr ect ? 20 21 DIA Z : Yes . 22 23 DEF ENS E : He sai d s ome thi ng lik e t heypu lle d o ut, 24 didyo u h ear th at? 25 26 PRO SEC UTI ON : Out sid e t he sco pe, Yo ur Hon or. 27 Obj ect ion . 28 29 COURT : Sus tai ned . 30 31 DEF ENS E : He sai d s ome thi ng lik e, the y w ere tr yin g 32 to rob us ? 33 34 PRO SEC UTI ON : Obj ect ion . 35 36 COURT : Sus tai ned . 3732 1 DEF ENS E : Do you re mem ber he ari ng any thi ng lik e 2 tha t? 3 4 PRO SEC UTI ON : Obj ect ion , J udg e. Ou tsi de the sc ope . 5 6 COURT : Sus tai ned . 7 8 DEF ENS E : The re wer e m ore wo rds th an pop pedhi m, 9 isn ’t tha t c orr ect , s ir? 10 11 PRO SEC UTI ON : Obj ect ion . The sa me obj ect ion . 12 13 COURT : You ma y a nsw er. 14 15 DIA Z : Yes . 16 17 DEF ENS E : You do n’t re mem ber th ose ot her wo rds , 18 isn ’t tha t c orr ect , s ir? 19 20 PRO SEC UTI ON : Obj ect ion . Tha t’s no t w hat he sa id. 21 22 COURT : Sus tai ned . 23 24 DEF ENS E : Whi le all th is was go ing on , y ou wer e a 25 ner vou s w rec k, isn ’t tha t c orr ect , s ir? 26 27 DIA Z : Yes . 28 29 DEF ENS E : Tha nk you . 30 31 32 Wil son co nte nds th at thi s c urt ail men t o f D iaz ’s rec ros s 33 was er ror , t hat Di az’ s a nsw ers mi ght ha ve ind ica tedth at 34 Wil son ac tedou t o f a pe rce ive d n eedfo r s elf -pr ese rva tio n, 35 andth at rea son abl e d oub t t her ebywo uldha ve bee n r ais ed 36 reg ard ing Wi lso n’s “p ecu nia ry” an d “ pos iti on” mo tiv es for 37 the mu rde rs.33 1 “Cr oss -ex ami nat ion sh oul d b e l imi tedto th e s ubj ect 2 mat ter of th e d ire ct exa min ati on andma tte rs aff ect ing th e 3 cre dib ili ty of the wi tne ss. T he cou rt may , i n t he exe rci se 4 of dis cre tio n, per mit in qui ry int o a ddi tio nal ma tte rs as if 5 on dir ect ex ami nat ion .” Fe d. R. Evi d. 611 (b) . “Th e s cop e 6 andex ten t o f c ros s-e xam ina tio n a re gen era llywi thi n t he 7 sou nd dis cre tio n o f t he tri al cou rt, an d t he dec isi on to 8 res tri ct cro ss- exa min ati on wil l n ot be rev ers ed abs ent an 9 abu se of dis cre tio n.” U nit ed Sta tes v. Ro sa, 11 F. 3d 315 , 10 335 (2 d C ir. 19 93) . In the ex erc ise of di scr eti on, a 11 dis tri ct cou rt sho uldco nsi der th e n eedto “a sce rta in[ th e] 12 tru th, ” “ avo id nee dle ss con sum pti on of tim e,” an d “ pro tec t 13 wit nes ses fr om har ass men t o r u ndu e e mba rra ssm ent .” Fe d. R. 14 Evi d. 611 (a) ; s ee als o D ela war e v . V an Ars dal l, 475 U. S. 15 673 , 6 79 (19 86) (e xpl ain ing th at the di str ict co urt ha s 16 “wi de lat itu de . . . to imp ose re aso nab le lim its on . . . 17 cro ss- exa min ati on bas ed on con cer ns abo ut, am ong ot her 18 thi ngs , . . . i nte rro gat ion th at is rep eti tiv e o r o nly 19 mar gin all y r ele van t”) . A g oodfa ith ba sis fo r p rop ose d 20 que sti ons is re lev ant to th ese co nsi der ati ons . On the fa cts 21 of thi s c ase , w e d ete ct no abu se of dis cre tio n i n t he 22 dis tri ct cou rt’ s c ont rol of Di az’ s r ecr oss -ex ami nat ion .34 1 The pr ecl ude d q ues tio ns wer e o uts ide th e s cop e o f 2 Dia z’s re dir ect -ex ami nat ion . As the tr ans cri pt exc erp ts 3 sho w, the de fen se eff ort on re cro ss was to pl ace Wi lso n’s 4 adm iss ion in th e c ont ext of ot her an d a ddi tio nal st ate men ts, 5 whe rea s t he gov ern men t h ad ret urn ed to the su bje ct on 6 red ire ct for th e s ole pu rpo se of cou nte rin g t he def ens e’s 7 att ack on th e c lar ity of Di az’ s m emo ry con cer nin g t hat on e 8 adm iss ion . Eve n t hou gh the pr ecl ude d q ues tio ns wer e o uts ide 9 the sc ope of re dir ect , t he dis tri ct cou rt ret ain ed 10 dis cre tio n t o p erm it the m. Bu t W ils on fai ledto ad duc e h is 11 goo d f ait h b asi s f or the pr ecl ude d q ues tio ns or exp lai n t he 12 sig nif ica nce of Di az’ s p ote nti al ans wer s, anddi d n ot 13 req ues t a si deb ar con fer enc e t o a rgu e a ny bas is upo n w hic h 14 the di str ict co urt sh oul d h ave pe rmi tte d t his li ne of 15 que sti oni ng. S ee Jon es v. Ber ry, 88 0 F .2d67 0, 673 (2 d C ir. 16 198 9) (“[ A] par ty who se pro spe cti ve que sti oni ng is 17 thr eat ene d w ith cu rta ilm ent sh oul d m ake al l r eas ona ble 18 eff ort s t o a ler t t he cou rt to the re lev anc e a nd imp ort anc e 19 of the pr opo sedqu est ion s.” ). 20 No dou bt, th ere wa s a go od fai th bas is for Wi lso n’s 21 pre clu dedqu est ion s; but th e t ria l c our t w as not ma de awa re 22 of it. T he Bra dy dis clo sur e ( whi ch, al ong wi th Gre en’ s §35 1 350 0 m ate ria l, fur nis hedth e g oodfa ith ba sis ) w as cop iedto 2 anddi scu sse d w ith th e d ist ric t c our t o n A ugu st 21, 20 06. 3 How eve r, mor e t han th ree mo nth s i nte rve nedbe for e D iaz ’s 4 Dec emb er 4, 200 6 r ecr oss -ex ami nat ion . Gre en him sel f d id not 5 tes tif y, andth e d ist ric t c our t h ad no occ asi on to rev iew 6 the Br ady di scl osu re (or Gr een ’s § 3 500 ma ter ial ) i n 7 pre par ati on for te sti mon y b y D iaz . The re is no rea son to 8 bel iev e t hat th e g oodfa ith ba sis fo r t he pre clu ded 9 que sti ons wo uldha ve bee n f res h i n t he dis tri ct cou rt’ s 10 min d, andth ere is no in dic ati on of anyde fen se eff ort to 11 ref res h. 12 Mor eov er, th ere is no re aso n t o b eli eve th at the 13 dis tri ct cou rt wou ld hav e u nde rst oodth e s ign ifi can ce of 14 Dia z’s po ten tia l a nsw ers . Def ens e c oun sel co uldha ve ask ed 15 the pr ecl ude d q ues tio ns on Dia z’s cr oss -ex ami nat ion , a nd the 16 jud ge cou ld ass ume th at the qu est ion s w oul d h ave be en ask ed 17 the n i f t hey we re of gre at imp ort . Fur the rmo re, th e 18 pre clu dedqu est ion s r epr ese nte d a wh oll y n ew dep art ure . 19 Thr oug hou t t he gui lt pha se, Wi lso n’s th eor y o f t he cas e w as 20 tha t J aco bus pu lle d t he tri gge r, not Wi lso n, whe rea s t he 21 pre clu dedqu est ion s w ere ba sedon th e i dea th at Wil son 22 pul ledth e t rig ger , a lbe it out of a per cei vedne ed for se lf-36 1 pre ser vat ion . 2 Acc ord ing ly, we de tec t n o a bus e o f d isc ret ion in th e 3 dis tri ct cou rt’ s c ont rol of Di az’ s r ecr oss -ex ami nat ion , a nd 4 we the ref ore fi nd no err or. 5 As we fin d n o e rro r i n t he gui lt pha se, we af fir m 6 Wil son ’s con vic tio ns. 7 8 III 9 The district court declined to include in its written 10 jury questionnaire the following question, proposed by 11 Wilson: 12 If Ronell Wilson is found guilty of murder for the 13 intentional killings of Detectives Nemorin and 14 Andrews, without any legal excuse or 15 justification, the defense might present evidence 16 at a sentencing phase of the trial about Ronell 17 Wilson’s childhood and background in support of a 18 sentence other than the death penalty. How 19 relevant is information like that to you when 20 making a decision about punishment for murder? 21 Wilson requested similar questions during oral voir dire, 22 but the district court declined to pursue the subject 23 uniformly, or at the level of particularity Wilson sought. 24 (A counterpart to this issue is Wilson’s Eighth AmendmentTh e E igh th Ame ndm ent fo rbi ds a c api tal se nte nci ng 6 reg ime in wh ich th e j ury is “p rec lud ed fro m c ons ide rin g, as a m iti gat ing

fa cto r , anyas pec t o f a de fen dan t’s ch ara cte r or rec ordan d a ny of the ci rcu mst anc es of the of fen se tha t the de fen dan t p rof fer s a s a ba sis fo r a se nte nce le ss tha n dea th. ” Abd ul- Kab ir v. Qua rte rma n, 550 U. S. 233 , 2 47- 48 (20 07) (i nte rna l q uot ati on mar ks omi tte d). A cco rdi ng to Wil son , t he pro sec uti on’ s s umm ati ons ad vis ed the ju ry tha t onl y d efe nse s t o t he cri me andth e a ggr ava tin g f act ors co uld be con sid ere d m iti gat ing ev ide nce , t hat a dea th sen ten ce sho uldbe im pos ed irr esp ect ive of th e m iti gat ion be cau se a sen ten ce of lif e w ith out pa rol e w as app rop ria te for ce rta in les s s eri ous cr ime s, andth at Wil son ’s mer cil ess co ndu ct ren der ed himca teg ori cal ly ine lig ibl e f or mer cy. O n r evi ew, we ask wh eth er the re is a “ rea son abl e l ike lih oodth at the jur ors be lie vedth ems elv es to be pre clu dedfr om con sid eri ng [th e] mit iga tin g e vid enc e.” U nit ed Sta tes v. Fe ll, 53 1 F .3d 197 , 2 23 (2dCi r. 200 8) (ci tin g A yer s v . B elm ont es, 54 9 U .S. 7, 24 (20 06) ). We see no su ch lik eli hoo d. Fi rst , t he gov ern men t’s summat ion s d epr eca tedth e w eig ht of the mi tig ati ng evi den ce, exp lai nedwh y a li fe sen ten ce is ins uff ici ent , a nd arg ued tha t t he vic timim pac t e vid enc e m ili tat ed aga ins t m erc y; but the go ver nme nt’ s s umm ati ons di d n ot urg e t he jur y t o i gno re mit iga tio n a nd rep eat edl y i nst ruc tedth e j uryto co nsi der eve ry mit iga tin g f act or. S eco nd, th e f ina l j urych arg e i n the pe nal ty pha se ins tru cte d t he jur ors to co nsi der th e mit iga tin g e vid enc e b roa dly . Thi rd, th e j uryhe ardse ver al day s o f t est imo ny con cer nin g m iti gat ion , a nd the pr ose cut ion ext ens ive ly arg uedth e w eig ht of tha t e vid enc e: “It is imp rob abl e t he jur ors be lie vedth at the pa rti es wer e eng agi ng in an exe rci se in fut ili ty” al l t hat ti me. A yer s, 549 U. S. at 16- 17; se e a lso Br own v. Pa yto n, 544 U. S. 133 , 144 (2 005 ); Boy de v. Cal ifo rni a, 494 U. S. 370 , 3 83- 84 (19 90) ; F ell , 5 31 F.3 d a t 2 22- 23. F our th, th e v erd ict fo rm evi den ces th e j ury ’s act ive co nsi der ati on of the mi tig ati ng evi den ce. 37 1 argument--rejected in the margin --that the prosecution’s 6 2 penalty phase summations improperly urged the jury to giveEv en tho ugh th e s ame ju ry sat th rou gho ut, th e 7 con sti tut ion al err or Wil son al leg es hadbe ari ng onl y o n t he sen ten cin g p has e, so the pr ope r r eme dy wou ld be vac atu r o f the de ath se nte nce . Mor gan v. Il lin ois , 5 04 U.S . 7 19, 73 9 (19 92) . 38 1 little or no weight to Wilson’s mitigation evidence.) 2 Wilson assigns constitutional error to these refusals, 3 argues in addition that the propounding of specific 4 questions requested by the prosecution conferred unfair 5 advantage in identifying prospective jurors, and requests 6 that we vacate his death sentence and remand for re7 sentencing. 7 8 When a district court chooses to examine veniremen 9 itself, it “may ask” questions submitted by counsel “if [the 10 court] considers [the questions] proper.” Fed. R. Crim. P. 11 24(a)(2)(B). Refusal is reviewed for abuse of discretion. 12 United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002). 13 That discretion, however, is subject to constitutional 14 limits. United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 15 1994). The trial court must ask a proposed voir dire 16 question if refusal would “render the defendant’s trial 17 fundamentally unfair.” Mu’Min v. Virginia, 500 U.S. 415, 18 425-26 (1991); see also Mor gan v. Il lin ois , 5 04 U.S . 7 19,Th oug h t hes e c ase s i nte rpr et the Fo urt een th 8 Ame ndm ent , t he Sup rem e C our t h as ind ica tedth at the re lev ant pro tec tio ns in sta te andfe der al cou rt are co ext ens ive . See Mor gan , 5 04 U.S . a t 7 26- 27; se e a lso Un ite d S tat es v. Tip ton , 9 0 F .3d86 1, 878 -79 (4 th Cir . 1 996 ) ( app lyi ng Mor gan to a f ede ral ca pit al tri al) ; U nit ed Sta tes v. Mc Cul lah , 7 6 F.3 d 1 087 , 1 113 -14 (1 0th Ci r. 199 6) (sa me) . De fen dan t-a ppe lla nt in Mor gan ha d r equ est ed in the 9 tri al cou rt the fo llo win g v oir di re que sti on: “ If you fo und [de fen dan t] gui lty , w oul d y ou aut oma tic all y v ote to im pos e the de ath pe nal ty no mat ter wh at the fa cts ar e?” 5 04 U.S . 39 1 730 & n.5 (1 992 )

. Fundamental unfairness arises if voir 8 2 dire is not “adequate . . . to identify unqualified jurors.” 3 Morgan, 504 U.S. at 729. In capital cases, a juror is 4 constitutionally unqualified if he has “views on capital 5 punishment” that would “prevent or substantially impair the 6 performance of his duties as a juror in accordance with his 7 instructions and his oath.” Id. at 728 (internal quotation 8 marks omitted). That category includes “those prospective 9 jurors who would always impose death following conviction.” 10 Id. at 733-34. Thus, in Morgan, sole reliance on general 11 inquiries--as to willingness to “follow [the court’s] 12 instructions on the law even though you may not agree” and 13 ability to “be fair and impartial”--did not afford defense 14 counsel an opportunity to identify and challenge for cause 15 those jurors who would automatically impose the death 16 penalty. Id. at 723-25 (internal quotation marks omitted). 9at 723 (i nte rna l q uot ati on mar ks omi tte d). 40 1 Voir dire in this case proceeded in two stages. First, 2 veniremen completed a 54-page questionnaire that included, 3 inter alia, questions about background, relevant media 4 exposure, opinions and biases, and ability to follow the law 5 and discharge a juror’s duty. One question (proposed by the 6 government) asked whether “the fact that the victims were 7 killed while working undercover and posing as individuals 8 engaging in illegal conduct [would] affect your ability to 9 fairly and impartially evaluate the evidence in this case.” 10 Another asked whether 11 you hold any beliefs or opinions that would affect 12 your ability to evaluate . . . testimony [given 13 pursuant to a cooperation agreement with the 14 government] from . . . witnesses [who have lengthy 15 histories of narcotics trafficking and violent 16 criminal conduct and have pled guilty to some of 17 the most serious crimes in the indictment]. 18 With respect to capital punishment, the questionnaire 19 advised: 20 Should a “penalty phase” be necessary, the 21 question for the jury to decide is whether the 22 defendant should be sentenced to death or to life 23 imprisonment without the possibility of release. 24 The jury makes this decision by weighing a variety 25 of factors. 26 The court proceeded to ask the following questions:41 1 Do you have any personal beliefs about what the 2 law is or should be regarding the death penalty 3 that would affect your ability to follow the 4 Court’s legal instructions? 5 Would knowing that the defendant faced the death 6 penalty as a possible punishment make you 7 reluctant to impose a sentence of life without the 8 possibility of release even if you thought the 9 circumstances of the case warranted a non-death 10 sentence? 11 Second, the district court orally examined prospective 12 jurors in person. At the outset of oral voir dire, the 13 district court read a statement to the venire: 14 The indictment charges, among other things, that 15 in March of 2003, the defendant murdered two 16 undercover police officers, Detectives James 17 Nemorin and Rodney Andrews, who were attempting to 18 purchase firearms from Wilson and other members of 19 the Stapleton Crew. 20 The court emphasized, as it had in the jury questionnaire: 21 Should a penalty phase be necessary, the question 22 for the jury to decide is whether the defendant 23 should be sentenced to death or to life 24 imprisonment without the possibility of release. 25 The jury makes this decision by weighing a variety 26 of factors. 27 Thereafter, the district court started questioning the 28 individual veniremen, outside the presence of the other 29 prospective jurors. Counsel was not permitted to ask 30 questions, though both proffered inquiries for the court to 31 make.Wi lso n c onc ede s t hat th e v oir di re of thr ee jur ors 10 was su ffi cie nt. Ju ror 15 6 a nsw ere d t his qu est ion in su bst anc e i n 11 res pon se to a d iff ere nt inq uir y. 42 1 With two exceptions, each member of the petit jury 2 whose voir dire Wilson challenges was asked some variation 10 3 of the following question concerning evidence of character 4 and background: “[W]ould you be willing to consider 5 evidence about the convicted individual’s character and 6 background of this case and listen to argument from the 7 defense that the death penalty should not be imposed in this 8 case?” And each challenged member of the petit jury (with 9 one exception) was asked some variation of the following 10 life-qualifying question: “Would you be able to meaningfully 11 consider life in prison instead of the death penalty as the 12 correct punishment for someone who commits a murder?” 11 13 What was done was constitutionally sufficient, and the 14 district court’s refusal of Wilson’s proffered questions was 15 not error. Each juror was informed that (in the event of 16 conviction) the jury would determine the sentence based on 17 various factors, and most of them were informed that those 18 factors would include Wilson’s character and background. 19 And each juror confirmed, by questionnaire and in person,43 1 that he could meaningfully consider life in prison as a 2 possible sentence. Morgan requires nothing more. See 504 3 U.S. at 729-39; see also United States v. Tipton, 90 F.3d 4 861, 878-79 (4th Cir. 1996) (finding Morgan satisfied where 5 district court asked questions sufficient to determine 6 whether any venireman would automatically vote for death). 7 “The district court was not required . . . to allow inquiry 8 into each juror’s views as to specific mitigating factors as 9 long as the voir dire was adequate to detect those in the 10 venire who would automaticallyvote for the death penalty.” 11 United States v. McCullah, 76 F.3d 1087, 1114 (10th Cir. 12 1996); see also id. at 1113-14. 13 Wilson argues that there is a great disparity between 14 the case-specific questioning allowed the prosecution and 15 what Wilson was allowed. However, Morgan demands adequacy, 16 not parity. It requires only that defendants be afforded an 17 opportunity to identify constitutionally biased jurors. 18 In any event, the record does not reflect the disparity 19 Wilson alleges. He cites four alleged points of error: [i] 20 the district court asked whether juror impartiality would be 21 affected by the fact that the victims were undercover police 22 officers posing as individuals engaged in illegal conduct;44 1 [ii] the court asked whether jurors held any beliefs or 2 opinions affecting their ability to evaluate testimony from 3 cooperating witnesses; [iii] the court informed the venire 4 that the murders were multiple; and [iv] the court informed 5 the venire that the victims were police officers. 6 Wilson argues that the two questions afforded the 7 prosecution more case-specific information than the defense 8 was allowed, and that the reference to two victims, both 9 police detectives, highlighted two of the expected 10 aggravating factors, making each subsequent death-penalty 11 question more particularized and thus more helpful to the 12 government. Viewed in the context of a lengthy 13 questionnaire and extensive oral examination, the two cited 14 questions are hardly sufficient to render the voir dire 15 meaningfully imbalanced, especially since the answers would 16 have been helpful to the defense as well as the prosecution. 17 As to disclosing that there were two victims, both of them 18 police officers, those facts were also built into questions 19 that the defense affirmatively sought, and cannot be deemed 20 prejudicial. 21 The district court did not abuse its discretion in 22 rejecting Wilson’s proposed written and oral voir dire45 1 questions. 2 3 IV 4 During the penalty phase, one of the four aggravating 5 factors that the prosecution undertook to prove was victim 6 impact. The jury unanimously found that the government 7 proved beyond a reasonable doubt that “[d]efendant Ronell 8 Wilson caused loss, injury, and harm to the victims and the 9 victims’ families.” 10 To prove this aggravating factor, the prosecution 11 called ten witnesses: seven family members of the murdered 12 detectives (including in-laws); and three police officers 13 who testified that the murders caused them anguish and had a 14 profound influence on other officers who worked with 15 Detectives Andrews and Nemorin, and who admired them 16 personally and professionally. 17 Wilson challenges the victim impact evidence on three 18 grounds: [i] the testimony of non-family members (i.e., the 19 three police officers) was outside the constitutional and 20 statutory scope of admissible victim impact evidence in aWi lso n’s ob jec tio ns on thi s p oin t a re pre ser ved . 12 Aft er los ing hi s i n l imi ne mot ion th at sou ght to pr ohi bit all no n-f ami ly tes tim ony , W ils on’ s a tte mpt s t o l imi t t hat tes tim ony in sp eci fic wa ys didno t a mou nt to con ces sio n o r wai ver . 46 1 capital case; [ii] the testimony in the aggregate was 12 2 prejudicially emotional and the court failed to give proper 3 jury instructions to counteract this; and [iii] the jury 4 improperly inferred and took into account the witnesses’ 5 views on sentencing. We hold that all of the testimony was 6 correctly admitted and that the jury instructions were 7 proper. 8 9 A 10 The Constitution. The Eighth Amendment does not erect 11 a per se bar to the admission of victim impact evidence in a 12 death penalty case. Payne v. Tennessee, 501 U.S. 808, 827 13 (1991). Evidence concerning the personal characteristics of 14 a victim and the effect of a murder on survivors “[i]s 15 simply another form or method of informing the sentencing 16 authority about the specific harm caused” by the defendant’s 17 crime in a capital case. Id. at 825 (evidence of harm is 18 “evidence of a general type long considered by sentencing 19 authorities”).47 1 At issue in Payne was testimony from a family member of 2 the victims; but while the holding of Payne is therefore 3 expressed in those terms, id. at 827, nothing in the Court’s 4 reasoning suggests that the principle is so limited. 5 Elsewhere in the opinion, the Court states that a fact6 finder should be allowed to measure the “specific harm” the 7 defendant caused by committing the murder, id. at 825, a 8 phrase broad enough to embrace the loss felt by friends or 9 co-workers who were close to the victim. The opinion refers 10 repeatedly to the specific harm caused as encompassing loss 11 felt by “community” or “society.” Id. at 822-23, 825; see 12 also id. at 830 (O’Connor, J., concurring). 13 We therefore hold that the Constitution allows evidence 14 from non-family members about their own grief and about the 15 loss felt by other non-family members. Other circuits are 16 in accord. See, e.g., United States v. Bolden, 545 F.3d 17 609, 626 (8th Cir. 2008); United States v. Fields, 516 F.3d 18 923, 946 (10th Cir. 2008); United States v. Barrett, 496 19 F.3d 1079, 1098-99 (10th Cir. 2007); United States v. 20 Nelson, 347 F.3d 701, 712-14 (8th Cir. 2003); United States 21 v. Bernard, 299 F.3d 467, 478 (5th Cir. 2002). 2248 1 The FDPA. Wilson also argues that the Federal Death 2 Penalty Act (“FDPA”), 18 U.S.C. § 3591 et seq., limits 3 victim impact evidence to impact on family members. The 4 FDPA governs whether and under what circumstances a sentence 5 of death may be imposed on a defendant, and includes the 6 requirement that the government prove one or more specified 7 aggravating factors beyond a reasonable doubt in order to 8 establish that a defendant is eligible for the death 9 penalty. 18 U.S.C. § 3592(c). The government may also 10 present additional, non-statutory aggravating factors in 11 order to convince the jury that the defendant deserves a 12 death sentence, so long as the government gives notice of 13 which non-statutory factors are to be presented. Id. 14 As the FDPA was enacted after Payne, Congress 15 specifically indicated that victim impact evidence could be 16 included as a non-statutory aggravating factor: 17 The factors for which notice is provided under 18 this subsection may include factors concerning the 19 effect of the offense on the victim and the 20 victim’s family, and may include oral testimony, a 21 victim impact statement that identifies the victim 22 of the offense and the extent and scope of the 23 injury and loss suffered by the victim and the 24 victim’s family, and any other relevant 25 information. 26 27 18 U.S.C. § 3593(a). Wilson argues that this provision49 1 should be read to limit victim impact evidence to impact on 2 the family alone. We read this passage as language of 3 inclusion, not exclusion. It speaks to what “may [be] 4 include[d].” Id.; see also 18 U.S.C. § 3592(c) (“The jury, 5 or if there is no jury, the court, may consider whether any 6 other aggravating factor for which notice has been given 7 exists.”). The final phrase (“and any other relevant 8 information”), though ambiguous, is read most naturally as a 9 catch-all for what may be deemed “relevant” by the court. 10 Wilson’s reading assumes that unless the victim has family, 11 no one suffered loss other than the victim--so that a 12 distant cousin may testify, but not a fiancé or a partner or 13 a friend or a colleague. 14 Other circuits allow testimony from friends (including 15 friends who are co-workers) regarding the impact of a 16 victim’s death, rejecting challenges similar to Wilson’s. 17 Barrett, 496 F.3d at 1098 (allowing testimony from police 18 colleagues of victim, and rejecting argument that Congress 19 limited victim impact evidence in federal death penalty 20 cases to evidence “concerning the effect of the offense on 21 the victim and the victim’s family” (internal quotation 22 marks and citation omitted)); see also Fields, 516 F.3d at50 1 946 (allowing victim impact testimony from non-family 2 members); Nelson, 347 F.3d at 712-13 (same); Bernard, 299 3 F.3d at 478 (same). 4 5 Utilitarian Loss and Societal Harm. Wilson argues in 6 the alternative that, even if non-family impacts are not 7 excluded categorically, the Constitution and FDPA prohibit 8 evidence of utilitarian losses to a workplace or evidence of 9 the victims’ professional accomplishments. The police 10 officers here testified for the most part that: [i] the 11 victims had close relationships with their families; [ii] 12 the victims continue to be mourned by members of the New 13 York Police Department who worked with them, including the 14 witnesses themselves; and [iii] the victims were exemplary, 15 heroic policemen. Wilson argues only the first type of this 16 testimony is admissible. We disagree. 17 Wilson relies on the Tenth Circuit’s decision in 18 Fields, which distinguished between co-workers who were also 19 friends with the victim (who could testify) and “co-workers 20 per se” (who could not). 516 F.3d at 946-47. The court 21 disapproved of co-worker testimony focused on “impersonal 22 utilitarian considerations” such as “the loss of [the51 1 victim’s] contribution to an office, unit, or team; the kind 2 of loss that businesses insure with ‘key man’ policies.” 3 Id. (holding nonetheless that the testimony at issue in the 4 case came from a co-worker who was a friend and therefore 5 was acceptable). Whether or not we are persuaded by Fields, 6 the victims’ colleagues in this case testified to personal 7 loss, even though it concerned in part loss experienced in a 8 workplace that fosters intense loyalty and camaraderie. 9 They did not adduce the “impersonal utilitarian 10 considerations” that concerned the court in Fields and 11 therefore the colleagues’ testimony was properly admitted. 12 Wilson characterizes as utilitarian in character the 13 testimony describing Detectives Andrews and Nemorin as 14 heroic individuals who loved their work and inspired other 15 policemen. Such testimony is permissible to show a 16 “victim’s uniqueness as an individual human being.” See 17 Payne, 501 U.S. at 823 (internal quotation marks omitted). 18 As the Payne concurrence explains, the prosecution may, 19 consistent with the Constitution, show “all that is special 20 and unique about” the victim, including their “hopes, 21 dreams, and fears.” Id. at 832 (O’Connor, J., concurring). 22 To demonstrate that victims in capital cases were52 1 special and unique human beings, courts have allowed 2 testimony concerning a victim’s professional life. See, 3 e.g., Barrett, 496 F.3d at 1099 (allowing testimony about 4 “the personal and professional characteristics of [the 5 victim]”); Bernard, 299 F.3d at 479 (allowing testimony that 6 the victims were religious youth ministers in part 7 “[b]ecause religion played a vital role in [their] lives, 8 [and so] it would be impossible to describe their uniqueness 9 as individual human beings without reference to their faith” 10 (internal quotation marks omitted)); United States v. 11 McVeigh, 153 F.3d 1166, 1219 (10th Cir. 1998) (“Numerous 12 witnesses . . . testified about the professional and 13 personal histories of victims who perished in the bombing, 14 including reflections on the admirable qualities of the 15 deceased.”). 16 The police officers’ testimony that dealt with the 17 victims’ outstanding careers, including the excerpted 18 documentary videotape that showed Detective Nemorin 19 discussing his job, was therefore properly admitted. 20 Finally, Wilson contends that the testimony by the 21 police officers went beyond evidence of the “specific harm” 22 caused by the defendant, as allowed in Payne, and invoked a53 1 generalized community harm. See Fields, 516 F.3d at 947 2 (noting its concern with “replacing a close-in focus on 3 persons closely or immediately connected to the victim with 4 a wide view encompassing generalized notions of social value 5 and loss”). However, no prohibition on such evidence is 6 generally recognized. See, e.g., United States v. Battle, 7 173 F.3d 1343, 1348 (11th Cir. 1999) (allowing testimony 8 about how much more difficult a prison was to administer 9 after the murder of a guard); Bernard, 299 F.3d at 479 10 (allowing testimony related to the victim’s proselytizing 11 due to its relevance to a “‘community’s loss at [the 12 victims’] demise’” (quoting South Carolina v. Gathers, 490 13 U.S. 805, 821 (1989) (O’Connor, J., dissenting), overruled 14 by Payne, 501 U.S. 808)). 15 In any event, once the testimony of the detectives’ 16 heroism and professional accomplishments is properly 17 characterized as evidence of their uniqueness as human 18 beings, and therefore admissible, Wilson’s argument on 19 generalized societal harm comes down to a single sentence: 20 One police colleague testified that the murder of Detective 21 Andrews “robbed the City of New York of another layer of 22 security, and, more importantly, took away a father from his54 1 children.” In that sentence, harm to the City is expressly 2 subordinated to the harm suffered by the victim’s children. 3 Moreover, the reference to societal harm does not appear to 4 go beyond the scope of what is deemed permissible; Payne 5 references harm to society or community, but teaches that 6 the Constitution allows only evidence that describes the 7 “specific harm” caused by the crime. See Payne, 501 U.S. at 8 822, 823, 825; see also id. at 830 (O’Connor, J., 9 concurring). 10 The victim impact testimony given by the victims’ 11 police colleagues was admitted without error. 12 13 B 14 Due process is violated when victim impact evidence is 15 introduced that “is so unduly prejudicial that it renders 16 the trial fundamentally unfair.” Payne, 501 U.S. at 825. 17 Similarly, the FDPA requires remand if “the sentence of 18 death was imposed under the influence of passion, prejudice, 19 or any other arbitrary factor.” 18 U.S.C. § 3595(c)(2)(A). 20 Wilson argues that his sentence was an arbitrary outcome 21 resulting from unduly prejudicial victim impact testimony. 22 Wilson concedes that he lodged no contemporaneousTh e v ict im imp act te sti mon y d eem ed adm iss ibl e i n 13 Pay ne was de liv ere d b y a wi tne ss who wa s m oth er to one vic timan d g ran dmo the r t o a se con d. Sh e t est ifi ed tha t h er gra nds on, a sma ll chi ld at the ti me of tri al, “c rie s f or his mom . He doe sn’ t s eemto un der sta nd whysh e d oes n’t co me hom e. An d h e c rie s f or his si ste r L aci e. He co mes to me man y t ime s d uri ng the we ek andas ks me, Gr and mam a, do you mis s m y L aci e. An d I te ll himye s. He sa ys, I’ m w orr ied abo ut my Lac ie. ” Pay ne, 50 1 U .S. at 81 4-1 5 ( int ern al quo tat ion ma rks om itt ed) ; s ee Nel son , 3 47 F.3 d a t 7 13 (no und ue pre jud ice wh ere “[ a] fai r s umm ati on of [th e wit nes ses ’] col lec tiv e t est imo ny is tha t t he wit nes ses pro vid ed emo tio nal an d, on occ asi on, te arf ul tes tim onyab out [th e v ict im] an d t he imp act of he r m urd er on the ir liv es” ; thi s i ncl ude d t est imo ny fro m t he vic tim ’s sis ter wh o b ega n tes tif yin g b ut bro ke dow n a nd was un abl e t o c ont inu e); Uni tedSt ate s v . C han tha dar a, 230 F. 3d 123 7, 127 4 ( 10t h C ir. 200 0) (al low ing yo ung ch ild ren to te sti fy in tea rs abo ut the ir mur der ed mot her ); McV eig h, 153 F. 3d at 121 9-2 2 55 1 objection to the testimony. We thus review for plain error. 2 See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). 3 We conclude there was no error in the admission of the 4 testimony, or in the district court’s refusal to grant a 5 mistrial. 6 The family members of Detectives Andrews and Nemorin 7 delivered emotionally charged testimony. The anguished 8 testimony of Detective Nemorin’s widow described how her 9 children visit the cemetery on Father’s Day and other 10 occasions, write letters to their father, and embrace his 11 headstone. Even such testimony does not appear to exceed 12 (or approach) the margins of what has been allowed. It 13(al low ing in ten sel y e mot ion al tes tim onyfr om num ero us

wit nes ses ).

56 1 cannot be expected that victim impact testimony will be cool 2 and dispassionate. Some deaths cause more suffering than 3 others. The only way to ensure against victim impacts 4 caused by one’s murder of a well-loved human being is to 5 take care to murder no one at all. 6 Courts are reluctant to conclude that the jury was 7 unduly prejudiced by emotional testimony if the defendant 8 presented mitigating factors that the jury found proven and 9 if the trial court instructed the jury about not giving a 10 verdict based on emotion. See McVeigh, 153 F.3d at 1222; 11 see also Nelson, 347 F.3d at 713 (discussing how the 12 presentation of mitigators reduces risk of jury prejudice 13 from victim impact evidence). We presume that juries follow 14 instructions; and a jury diligent and dispassionate enough 15 to find mitigating factors is unlikely to have been 16 overmastered by emotion. See Richardson v. Marsh, 481 U.S. 17 200, 206 (1987) (juries are presumed to follow 18 instructions). Wilson’s jury found 14 mitigating factors, 19 one of them (peer pressure) a factor not even argued by the 20 defense. We therefore go on to consider the instructions toWi lso n c hal len ges th e s uff ici enc y o f t hes e j ury 14 ins tru cti ons on th e g rou nd tha t t he fir st ins tru cti on sho uld hav e b een re pea tedimmed iat elybe for e d eli ber ati ons . Sin ce 57 1 the jury. 2 Consistent with the statutory prohibition, the jury was 3 charged not to rule on the basis of passion, prejudice, or 4 arbitrary factors. See 18 U.S.C. § 3595(c)(2). Before the 5 final five victim impact witnesses testified, Wilson 6 requested that the court instruct the jury not to be 7 overpowered by emotion. The judge complied and told the 8 jury that: 9 You are about to hear more testimony about the 10 impact of the murders on the victims’ family 11 members and colleagues. The law permits you to 12 hear this evidence. However, by its nature, it is 13 highly emotional. I instruct you not to let this 14 evidence overwhelm your ability to follow the law 15 as I will instruct you before deliberations. You 16 must decide the proper punishment without undue 17 passion or prejudice. 18 19 Before final deliberations, the court charged: 20 In engaging in the weighing process, you must 21 avoid any influence of passion, prejudice, or 22 undue sympathy. Your deliberations should be 23 based upon the evidence you have seen and heard 24 and the law on which I have instructed you. 25 Passion, prejudice, and arbitrary considerations 26 have no role to play in your efforts to reach a 27 just result in this case. 28 29 See 18 U.S.C. § 3595(c)(2). These instructions were 30 sound. 14the ch arg e g ive n a t t he endef fec tiv elyex pre sse d w hat th e

def end ant wa nte d c onv eye d, the di str ict co urt di d n ot err in ref usi ng the re pet iti on. S ee gen era llyUn ite d S tat es v. Des ino r, 525 F. 3d 193 , 2 01 (2dCi r. 200 8); cf . M cVe igh , 1 53 F.3 d a t 1 222 & n.5 0 ( all owi ng muc h m ore vi cti m i mpa ct tes tim ony wh ile on ly giv ing a sin gle in str uct ion , s imi lar to the se con d o f t he two in str uct ion s g ive n h ere ). Wi lso n’s su bsi dia ry arg ume nt- -th at the co urt er red 15 by ref usi ng an ins tru cti on tha t t he jur y i gno re the vi cti m imp act wi tne sse s’ opi nio n a s t o s ent enc ing --f ail s f or the sam e r eas on; as th e w itn ess es pre sen tedno su ch vie ws, th ere was no thi ng for th e j ury to di sre gar d. In an y e ven t, the cou rt cap tur ed the es sen ce of thi s i nst ruc tio n w hen it cha rge d t he jur y t hat th e q ues tio n w het her to se nte nce th e def end ant to de ath or no t “ is a d eci sio n t hat th e l aw lea ves ent ire ly to you .” 58 1 We conclude that the testimony was not overly 2 prejudicial and was admitted without error. 3 4 C 5 “[T]he admission of a victim’s family members’ 6 characterizations and opinions about the crime, the 7 defendant, and the appropriate sentence violates the Eighth 8 Amendment.” Payne, 501 U.S. at 830 n.2. Wilson argues that 9 the jurors were improperly influenced because they could 10 infer that the victim impact witnesses wanted execution. 11 However, no evidence as to the witnesses’ preferred sentence 12 was actually admitted. Because there was no evidence to 13 exclude, this claim necessarily fails. 15Wi lso n a lso ch all eng es Ger ald s’s co mpe ten ce to 16 tes tif y a bou t t he Blo ods . Ger ald s h ad bee n a me mbe r o f t he Blo ods fo r a sh ort ti me, lo ng in the pa st; ho wev er, mu ch of his te sti mon y w as exp lic itl y b ase d o n p ers ona l o bse rva tio n, andth e r est co uldbe re adi ly inf err ed to hav e b een le arn ed 59 1 The victim impact evidence presented in this case was 2 properly admitted, was not overly prejudicial, and was 3 considered in the light of jury instructions that were 4 properly framed. 5 6 V 7 Shabucalik Geralds, a gang associate of Wilson and a 8 former member of the Bloods, testified for the prosecution 9 about the Bloods (one of Wilson’s affiliations) and about an 10 admission made by Wilson when both men were confined in the 11 same prison unit. Wilson argues that Geralds was a 12 government agent at the time Wilson confided to him that 13 his, Wilson’s, efforts on behalf of the Bloods entitled him 14 to senior status in the gang, and hence that the testimony 15 was inadmissible under the Supreme Court’s decision in 16 Massiah v. United States, 377 U.S. 201 (1964). (Wilson’s 17 contention that Geralds and another witness gave testimony 18 about the Bloods that was inadmissible is rejected in the 19 margin. ) 16thr oug h p ers ona l o bse rva tio n d uri ng his lo ng aux ili ary

aff ili ati on wit h t he Blo ods af ter hi s m emb ers hip la pse d. See Un ite d S tat es v. Toc co, 13 5 F .3d11 6, 128 (2 d C ir. 19 98) (ev ide nce sh oul d n ot be exc lud ed due to a wit nes s’s la ck of per son al kno wle dge un les s a co urt fi nds th at no “re aso nab le tri er of fac t c oul d b eli eve th e w itn ess ha d p ers ona l kno wle dge ” ( int ern al quo tat ion ma rks om itt ed) ). Wil son al so obj ect ed to som e o f t he Blo ods -re lat ed tes tim ony el ici tedon cr oss -ex ami nat ion of de fen se exp ert Don aldRo min e, a f orm er pri son ad min ist rat or. R omi ne tes tif iedon di rec t-e xam ina tio n t hat th e p ris on sys temwa s cap abl e o f p rev ent ing Wi lso n f romha rmi ng oth ers . Rom ine was cr oss -ex ami nedas to wh eth er mem ber s o f t he Blo ods wo uld be mot iva tedto co mmi t a cts of vi ole nce in pr iso n i n o rde r to rai se the ir sta tus . Rom ine wa s c omp ete nt to tes tif y abo ut the na tur e o f t hat th rea t, bas ed on his lo ng adm ini str ati ve exp eri enc e a t s eve ral pr iso ns andin th e Bur eau of Pr iso ns- -ex per ien ce tha t i ncl ude d e xam ini ng pri son ers ’ r eco rds to de ter min e t hei r t hre at lev el. The di str ict co urt di d n ot abu se its di scr eti on in all owi ng Ger ald s’s an d R omi ne’ s t est imo ny reg ard ing th e Blo ods . See Un ite d S tat es v. Kap lan , 4 90 F.3 d 1 10, 11 7 ( 2d Cir . 2 007 ). 60 1 Wilson had met Geralds through fellow Bloods members 2 Green and Whitten. When Wilson encountered Geralds during 3 Wilson’s pre-trial detention, Geralds was subject to a 4 cooperation agreement in another case. In their first 5 conversation in prison, Geralds testified, Geralds mentioned 6 that a high-ranking Blood known as the “Original Gangster 7 Staten Island” (or “OG SI”) was in the same prison. Wilson 8 expressed the view that this OG SI was a government 9 informant, and added with a smile that Wilson himself should61 1 be the OG SI because he had put in sufficient “work.” 2 Geralds clarified for the jury that “work” meant violence, 3 and that killing police officers would constitute this kind 4 of work. Geralds also testified that in later 5 conversations, Wilson enlisted Geralds’s help in finding a 6 woman who would bear his child, and in checking out the gang 7 status of a fellow inmate. 8 Wilson objected on the ground that Geralds was acting 9 as a government agent when he elicited these admissions, and 10 that admission of Geralds’s testimony regarding his prison 11 conversations with Wilson therefore would violate Wilson’s 12 Sixth Amendment right to counsel. Massiah, 377 U.S. at 205- 13 06 (holding that surreptitious interrogations after 14 defendant’s indictment conducted outside the presence of 15 counsel violated defendant’s right to counsel). A jailhouse 16 informant is deemed to have conducted an interrogation in 17 violation of a defendant’s Sixth Amendment Massiah rights if 18 the informant was acting as a “government agent” who 19 “deliberately elicit[ed]” the incriminating information; 20 information is only excluded if it is obtained as a result 21 of the government’s intentional efforts. United States v. 22 Stevens, 83 F.3d 60, 64 (2d Cir. 1996) (internal quotation62 1 marks omitted). 2 The district court denied Wilson’s objection after a 3 hearing: “Based on Geralds’ testimony at this hearing, I 4 find that he did not act as a ‘government agent’ when he 5 spoke with Wilson, that he did not ‘deliberately elicit’ any 6 statements from Wilson, and that the Government made no 7 ‘intentional effort’” to obtain statements from Wilson 8 through Geralds. United States v. Wilson, 493 F. Supp. 2d 9 514, 515 (E.D.N.Y. 2007) (quoting Stevens, 83 F.3d at 64). 10 “The standard of review for evaluating the district 11 court’s ruling on a suppression motion is clear error as to 12 the district court’s factual findings, viewing the evidence 13 in the light most favorable to the government, and de novo 14 as to questions of law.” United States v. Rodriguez, 356 15 F.3d 254, 257 (2d Cir. 2004). The sequence of events is as 16 follows, viewing the evidence in the light most favorable to 17 the government: Geralds became a cooperator; in the course 18 of cooperation, before Geralds or the prosecutors knew that 19 Wilson and Geralds were in the same prison unit, Geralds 20 identified Wilson as a gang member known to him, and was 21 questioned by prosecutors about Wilson; Wilson learned that 22 Geralds was housed nearby and initiated contact with him;63 1 Geralds and Wilson had their conversation about Wilson’s 2 pretension to be the OG SI; Geralds reported this 3 conversation to prosecutors, who instructed Geralds to “not 4 get any information from Mr. Wilson”; in further 5 conversations, Geralds and Wilson discussed topics “from 6 girls to music [to] cars,” and Wilson asked for help in 7 finding a woman and in checking on the gang status of 8 another inmate. 9 Even assuming that Geralds deliberately elicited 10 information from Wilson in the first conversation (about OG 11 SI), Geralds was not a government agent at that time. More 12 than a cooperation agreement is required to make an 13 informant a government agent with regard to a particular 14 defendant. United States v. Birbal, 113 F.3d 342, 346 (2d 15 Cir. 1997). An informant becomes a government agent vis-a16 vis a defendant when the informant is “instructed by the 17 police to get information about the particular defendant.” 18 Id. This first prison conversation was initiated by Wilson, 19 and Geralds was under no government influence. True, the 20 prosecutors had showed interest in Wilson in a meeting with 21 Geralds before this conversation--and before Wilson or the 22 prosecutors knew that Geralds would meet Wilson in prison--64 1 but evincing interest did not amount to an instruction 2 sufficient to make Geralds a government agent. Cf. United 3 States v. Henry, 447 U.S. 264, 270-71 & n.8 (1980) (holding 4 that an informant was a government agent where the 5 investigators were aware that the informant “had access” to 6 the defendant and they “singled out” the defendant). 7 Further assuming arguendo that Geralds became a 8 government agent after he reported the OG SI conversation-- 9 when the prosecutors knew that Geralds had access to Wilson 10 and had delivered information about him--Geralds’s testimony 11 still did not violate Wilson’s Sixth Amendment rights. 12 There is no evidence that Geralds did anything in the later 13 conversations with Wilson but follow the government’s 14 instructions to “merely listen[].” See Kuhlmann v. Wilson, 15 477 U.S. 436, 459 (1986). 16 In any event, the only damaging admission to which 17 Geralds testified was Wilson’s claim to OG SI status in the 18 first conversation, at which point Geralds was not a 19 government agent. Geralds’s testimony did not infringe 20 Wilson’s Sixth Amendment right to counsel. 21 22 VIWi lso n a lso ar gue s t hat he di d i n f act of fer to 17 ple ad gui lty an d t hat th e p ros ecu tor s t her efo re imp erm iss ibl y m isl ed the ju ror s i nto th ink ing ot her wis e. Our co nst itu tio nal ho ldi ng obv iat es tha t d isp ute . 65 1 During summation, the prosecution made the following 2 argument to the jury, of which the emphasized passage is 3 challenged: 4 Ron ell Wi lso n u p u nti l t he ver y m ome nt tha t h e 5 add res sedyo u l ast we ek has do ne eve ryt hin g h e 6 cou ld to esc ape re spo nsi bil ityfo r h is cri mes . He 7 has an ab sol ute ri ght togototr ial , p ut the 8 gov ern men t t o i ts bur den of pr oof , t o p rov e h e 9 commit ted th ese cr ime s, but he ca n’t ha ve it bot h 10 way s. He ca n’t doth at, th en say I acc ept 11 respon sib ili ty. [De fen se obj ect ion ov err ule d.] 12 And [s ay “]I ’m sor ry, on ly aft er you pr ove I did 13 it. [”] Th at’ s n ot acc ept anc e o f r esp ons ibi lit y. 14 Tha t i s a ma nip ula tiv e c rim ina l s ayi ng wha t h e h as 15 to, sa yin g w hat he kn ows yo u w ant to he ar whe n 16 it’ s i n h is int ere st to sayit .” 17 18 Def . A pp. at 86 8 ( emp has is add ed) . Wil son ar gue s t hat th is 19 commen t u nco nst itu tio nal ly bur den ed his Si xth Am end men t 20 rig ht to a j ury tr ial . We agr ee. 17 21 Under the “unconstitutional conditions doctrine,” “the 22 government may not do indirectly what it cannot do 23 directly.” United States v. Oliveras, 905 F.2d 623, 627-28 24 & n.7 (2d Cir. 1990) (per curiam). The doctrine keeps the 25 prosecution from “trench[ing] on [a] defendant’s 26 constitutional rights and privileges.” United States v.66 1 Parker, 903 F.2d 91, 98 (2d Cir. 1990). “The prosecution 2 cannot use the defendant’s exercise of specific fundamental 3 constitutional guarantees against him at trial.” Burns v. 4 Gammon, 260 F.3d 892, 896 (8th Cir. 2001). For that reason, 5 a statute cannot disallow the death penalty for those who 6 plead guilty but allow it for those who exercise their right 7 to a trial. United States v. Jackson, 390 U.S. 570, 581 8 (1968). By the same token, a capital-sentencing scheme 9 cannot allow the jury to draw an adverse inference from 10 constitutionally protected conduct such as a request for 11 trial by jury; if the government invites the jury to find 12 the existence of an aggravating factor based on “inferences 13 from conduct that is constitutionally protected . . . for 14 example . . . the request for trial by jury, . . . due 15 process of law would require that the jury’s decision to 16 impose death be set aside.” Zant v. Stephens, 462 U.S. 862, 17 885 (1983). 18 We maintain “a distinction between increasingthe 19 severity of a sentence for a defendant’s failure to 20 cooperate and refusing to grant leniency .” United States v. 21 Stratton, 820 F.2d 562, 564 (2d Cir. 1987) (emphasis added). 22 Str att on its elf il lus tra tes th e o ne- wayra tch et: I t i s67 1 per mis sib le for a sen ten cin g c our t t o c ons ide r t hat , “ if 2 [th e d efe nda nt] we re wil lin g t o a ssi st us to bri ng the ot her 3 per son to ju sti ce, I wou ld fin d i t v eryea sy to be 4 rea son abl e a nd len ien t,” id . ( quo tin g M all ett e v . S cul ly, 5 752 F. 2d 26, 31 (2 d C ir. 19 84) ), but it is un con sti tut ion al 6 to impose consecutive rather than concurrent sentences 7 solely on account of the defendant’s failure to cooperate , 8 id. Similarly, the federal Sentencing Guidelines treat 9 acceptance of responsibility (usually via a plea) as a basis 10 for leniency, see U.S. Sentencing Guidelines Manual § 3E1.1 11 (2007), but do not provide a harsher sentence for failure to 12 plead . 13 Thi s d ist inc tio n i s t he “on ly rul e t hat re cog niz es the 14 rea lit y o f t he cri min al jus tic e s yst em whi le pro tec tin g t he 15 int egr ity of th at sys tem .” Ma lle tte , 7 52 F.2 d a t 3 0. 16 Som eti mes th e r ule ma y b e “ dif fic ult to ap ply ,” or eve n 17 “so mew hat il lus ory ,” Str att on, 82 0 F .2dat 56 4 ( int ern al 18 quo tat ion ma rks om itt ed) ; b ut not in th is cas e. In purpose 19 and effect, the government used Wilson’s demand for trial to 20 evidence lack of remorse and refusal to accept 21 responsibility, characteristics offered to undermine 22 Wilson’s defenses to a sentence of death. The governmentAs to Wi lso n’s Si xth Am end men t r igh t, the di sse nt 18 arg ues th at Str att on is not ge rma ne bec aus e t he pro sec uti on’ s r ema rk (ab out Wi lso n e xer cis ing hi s t ria l rig ht) is lo cat ed in the di scu ssi on of Wil son ’s mit iga tin g evi den ce, an d t hus di d n ot arg ue for ag gra vat ion on th is gro und . We dis agr ee. T he nat ure of th e p ena ltyph ase , str uct ura lly , i s t o d ete rmi ne whe the r t he sen ten ce of lif e sho uldbe ra ise d t o a se nte nce of de ath . Fur the rmo re, Wil son ’s dec isi on to go to tri al was us ed not on ly to und erm ine hi s p rop ose d m iti gat or (ac cep tan ce of res pon sib ili ty) ; i t a lso wa s u sedto sh ow dep rav ity , w hic h sup por tedan in fer enc e o f f utu re dan ger ous nes s, a p rop ose d agg rav ato r. 68 1 also emphasized Wilson’s lack of remorse as support for the 2 aggravating factor of future dangerousness. See Def. App. 3 at 604 (“What else tells you about the incredible danger 4 that this man poses? . . . The fact that the defendant has 5 absolutely, absolutely no remorse whatsoever for his 6 actions.”). In so doing, the prosecution contravened Zant, 7 462 U.S. at 885, and Jackson, 390 U.S. at 581, and crossed 8 the line drawn in St rat ton , 8 20 F.2 d a t 5 64. 18 9 “Wh eth er [a sen ten cin g] dif fer ent ial is a rew ardfo r 10 coo per ati on or a p ena lty fo r i nvo kin g a co nst itu tio nal ri ght 11 dep end s o n t he ben chm ark –-t he ‘no rma l’ sen ten ce tha t w oul d 12 be met ed out if co nst itu tio nal ri ght s w ere no t s ali ent .” 13 Uni tedSt ate s v . K lot z, 943 F. 2d 707 , 7 10 (7t h C ir. 19 91) . 14 The re is no dou bt tha t t he bas eli ne sen ten ce in thi s c ase is 15 lif e w ith out pa rol e, andth at a v erd ict of de ath is an69 1 inc rea se in sev eri ty. T o a chi eve a dea th pen alt y, the 2 gov ern men t w as req uir ed to pro ve the ag gra vat ing fa cto rs 3 jus tif yin g d eat h b eyo nd a r eas ona ble do ubt to a una nim ous 4 jur y. Se e 1 8 U .S. C. §§ 359 3(c ), (e) . Wil son ’s 5 con sti tut ion all y p rot ect ed dec isi on to go to tri al was ci ted 6 as a r eas on to sen ten ce himto de ath , a nd thu s t o “ enh anc e” 7 wha t w oul d o the rwi se be a l ife se nte nce . 8 The go ver nme nt rel ies he avi ly on Uni tedSt ate s v . 9 Mik os, 53 9 F .3d70 6, 718 (7 th Cir . 2 008 ), whi ch obs erv es: 10 “If it is pr ope r t o t ake co nfe ssi ons , g uil ty ple as, an d v ows 11 to imp rov e o ne’ s l ife in to acc oun t w hen de cid ing wh eth er a 12 mur der er sho uldbe pu t t o d eat h-- andit is un que sti ona bly 13 pro per fo r t he jud ge or jur y t o d o s o-- the n i t m ust al so be 14 pro per fo r t he pro sec uto r t o r emi nd the ju ry whe n n one of 15 the se eve nts ha s o ccu rre d.” ( int ern al cit ati on omi tte d). 16 Mik os the n s ugg est s t hat § 3E1 .1 of the Se nte nci ng 17 Gui del ine s “ ins tit uti ona liz e[s ]” thi s p rac tic e, andth at “in 18 a c api tal ca se . . . wha t h app ens au tom ati cal ly as a r esu lt 19 of § 3 E1. 1 m ust be ar gue d f or. T he two ar e e qua lly 20 app rop ria te. ” Id. W e a re unp ers uad ed. T he quo tedla ngu age 21 is arg uab ly dic ta, id . a t 7 19 (“I f e rro r o ccu rre d i n t his 22 pen alt y p roc eed ing , i t w as har mle ss. ”); it co nfl ict s w ithSe e M iko s, 539 F. 3d at 722 (P osn er, J. , c onc urr ing 19 in par t a nd dis sen tin g i n p art ) ( “[T ]he re is a d iff ere nce bet wee n a de fen dan t’s ar gui ng for le nie ncyon th e b asi s o f his ad mit tin g t o h avi ng commit tedth e c rim e w ith wh ich he is cha rge d a nd the go ver nme nt’ s a ski ng the ju ry to dra w a n inf ere nce of he ino usn ess fr om his fa ilu re to adm it tha t.” ). Thi s d ist inc tio n r efl ect s t he con cer ns tha t u nde rli e t his Cou rt’ s d eci sio n i n S tra tto n. Th e d iss ent ac cur ate ly obs erv es tha t U nit ed Sta tes 20 v. Fel l, 531 F. 3d 197 (2 d C ir. 20 08) “g oes la rge ly una ddr ess ed by the ma jor ity ” i n t he dis cus sio n o f S ixt h Ame ndm ent er ror . Dis sen t a t 9 . The gr oun d o f d ist inc tio n tha t r end ers Fe ll unh elp ful he re is tha t F ell ’s wil lin gne ss to ple ad was pu t i n i ssu e b y h im, so th at the go ver nme nt’ s arg ume nt was re spo nsi ve. U nit ed Sta tes v. Fe ll, 53 1 F .3d 197 , 2 21 (2dCi r. 200 8) (“W e b eli eve th e[ gov ern men t’s ] arg ume nts . . . we re rea son abl e r esp ons es to Fel l’s us e o f [hi s o ffe r t o p lea d g uil ty] .”) . Her e, Wil son di d n ot put in iss ue his de cis ion to go to tr ial --h e o ffe redno pr oof (be yon d h is all ocu tio n) of his ar gum ent th at he acc ept ed 70 1 ear lie r S eve nth Ci rcu it pre ced ent , s ee Uni tedSt ate s v . 2 Sau nde rs, 97 3 F .2d13 54, 13 62 (7t h C ir. 19 92) (“ [U] nde r t he 3 so- cal ledun con sti tut ion al con dit ion s d oct rin e . . . a 4 def end ant ma y n ot be sub jec tedto mo re sev ere pu nis hme nt for 5 exe rci sin g h is or her co nst itu tio nal ri ght to st and 6 tri al. ”); an d i t m isc ons tru es Sec tio n 3 E1. 1 o f t he 7 Sen ten cin g G uid eli nes , w hic h d oes no t c ont emp lat e i ncr eas ed 8 pun ish men t f or a f ail ure to co ope rat e. 19 9 Fo r t hes e r eas ons , w e c onc lud e t hat th e g ove rnm ent 10 unc ons tit uti ona lly bu rde nedWi lso n’s Si xth Am end men t r igh t 11 to tri al. B eca use Wi lso n’s Fi fth Am end men t r igh ts wer e 20res pon sib ili ty- -an d t hus th e g ove rnm ent ’s res pon se

unc ons tit uti ona lly bu rde nedth at pro tec tedde cis ion . Wi lso n r ais es two ar gum ent s r ega rdi ng the sc ope of 21 his al loc uti on. F irs t, he con ten ds tha t t he dis tri ct cou rt abu sedit s d isc ret ion by re dac tin g t he fol low ing : “ It jus t hur tedme to he ar tha t y oun g k id [De tec tiv e A ndr ews ’s son , Chr ist ian ] & hi s b rot her Ju sti n w ill ne ver ha ve the y f ath er the re to be the fa the r m ost me n r efu sedto be li ke my own . I w oul d n eve r w ish th is for no bod y b eca use I kno w h ow pai nfu l i t i s.” Se con d, he arg ues th at the pr ose cut ion unf air ly exp loi tedth at rul ing byci tin g t o t he jur y Wil son ’s fai lur e t o s pec ifyth e c ond uct fo r w hic h h e w as cla imi ng rem ors e ( i.e ., mur der ing th e t wo det ect ive s). As to the fi rst ar gum ent : Und er the FD PA, th e d ist ric t cou rt has th e d isc ret ion to ex clu de evi den ce if the 71 1 als o u nco nst itu tio nal ly bur den ed (se e P oin t V II) we co nsi der 2 har mle ssn ess cu mul ati vel y ( see Po int VI II) . 3 4 VII 5 At the st art of th e s ent enc ing ph ase , d efe nse co uns el 6 adv ise d t he cou rt tha t W ils on wan tedto re ad to the ju ry a 7 sta tem ent of re mor se in his ow n w ord s, wit hou t t aki ng the 8 wit nes s s tan d. On ad vic e o f c oun sel , t he sta tem ent wo uld 9 omi t a ny “ev ide nti ary ” d isc uss ion of th e c rim e i tse lf. T he 10 gov ern men t o bje cte d o n t he gro und s t hat th e s tat eme nt was to 11 be uns wor n a nd not su bje ct to cro ss- exa min ati on. 12 Fol low ing a ser ies of di spu tes co nce rni ng the 13 per mis sib le sco pe of Wil son ’s all ocu tio n, Wi lso n r eadth is 21“pr oba tiv e v alu e i s o utw eig hedbyth e d ang er of cre ati ng

unf air pr eju dic e, con fus ing th e i ssu es, or mi sle adi ng the jur y,” 18 U. S.C . § 35 93( c), or if it is so un rel iab le tha t it “mi ght re nde r a tr ial fu nda men tal ly unf air ,” Uni ted Sta tes v. Fe ll, 36 0 F .3d13 5, 145 (2 d C ir. 20 04) (i nte rna l quo tat ion ma rks om itt ed) . The di str ict co urt th ere for e exc lud ed fro m t he all ocu tio n, int er ali a, “an y a rgu men ts rai sedby th e [ pro sec uti on] (o the r t han th eir ar gum ent th at Wil son la cks re mor se for mu rde rin g D ete cti ves An dre ws and Nem ori n)” or an y r efe ren ce to “th e t est imo ny of anywi tne ss, inc lud ing me mbe rs of the vi cti ms’ fa mil ies (w ho wer e s wor n in andsu bje ct to cro ss- exa min ati on) . . . .” We re vie w t he dis tri ct cou rt’ s d eci sio n l imi tin g t he sco pe of Wil son ’s all ocu tio n f or abu se of dis cre tio n. Fe ll, 53 1 F .3dat 21 9- 20. A ppl yin g t hat st and ard , w e f indno er ror . The se con d a rgu men t o ver loo ks the di str ict co urt ’s rul ing exp lic itl y al low ing Wi lso n t o a llo cut e t o h is rem ors e for th e s pec ifi c c rim e o f h avi ng mur der ed Det ect ive s A ndr ews andNe mor in. D ef. Ap p. at 131 5 ( pre clu din g W ils on fro m all ocu tin g t o “ any ar gum ent s r ais ed by the [p ros ecu tio n] ( oth er tha n t hei r a rgu men t t hat Wi lso n l ack s r emo rse fo r mur der ing

De tec tiv es And rew s a nd Nem ori n .”) (e mph asi s add ed) . The ref ore , w e f indno er ror he re, ei the r. Th e t ran scr ipt sh ows th e w ordas “r emo rse ful ,” but 22 thi s a ppe ars to ha ve bee n a ty pog rap hic al err or. 72 1 sta tem ent of re mor se to the ju ry: 2 Goo d a fte rno on. I , R one ll Wil son , w rot e a 3 sta tem ent th at I w ant to re ad to you , t he jur y. I 4 wan t y ou to und ers tan d m y d eep est so rro w t owa rds 5 the vi cti m[s ’] fam ilyan d f rie nds . I h ave se en 6 the pa in tha t I ha ve cau sedth e f ami ly andfr ien ds 7 of the vi cti ms andto myow n f ami ly andfr ien ds. 8 I k now th at the wi ves an d c hil dre n a nd lov ed one s 9 are al so vic tim s. 10 11 I w oul d n eve r w ish th is for an yon e b eca use I kno w 12 how pa inf ul it is. S o I ca nno t b e r emo rse [le ss] 22 13 andsh ow no sym pat hy to the se men ’s fam ili es and 14 fri end s.73 1 2 I a m n ot goo d w ith wo rds . I w ish I cou ld exp lai n 3 mys elf mo re bet ter , b ut I a m n ot tru ly- -bu t I am 4 tru ly sor ry for th e p ain I hav e c aus ed the m a ll. 5 I k now th at I h ave ca use d a gr eat de al of pai n t o 6 the m a ll andI sayit ag ain an d a gai n, I a m s o 7 sor ry. 8 9 I a m s orr y t hat I cau sedso mu ch pai n t hro ugh out 10 my lif e t o o the rs, es pec ial ly my fam ilyan d t he 11 fam ili es of the vi cti ms. 12 13 I k now th at the vi cti ms’ fa mil ies ma y n ot acc ept 14 my apo log y b ut I p rayth at Godwi ll giv e t hemal l 15 the co mfo rt andst ren gth th at the y n eedto mo ve on 16 fro m t his tr age dy. I ha ve the sa me pra yer fo r m y 17 fam ily al so. 18 19 Tha nk you . 20 Bef ore su mma tio ns, Wi lso n c ons ent ed to an ins tru cti on 21 all owi ng the ju ry to con sid er tha t h is sta tem ent of re mor se 22 was ne ith er swo rn nor su bje ct to cro ss- exa min ati on, an d t hat 23 cha rge wa s u lti mat ely gi ven to th e j ury . Wil son ’s req ues t 24 for th e f oll owi ng no- adv ers e-i nfe ren ce ins tru cti on was 25 den ied : 26 [Y] ou may dr aw no inf ere nce wh ats oev er fro m t he 27 fac t t hat th e d efe nda nt has ch ose n n ot to tes tif y 28 at the se nte nci ng pha se of thi s t ria l. He is 29 ent itl ed to mak e t hat ch oic e a nd the re maybe ma ny 30 rea son s f or himha vin g d one so . The fa ct tha t h e 31 didno t t est ifyis , q uit e s imp ly, to pl ay no par t 32 wha tso eve r i n y our de cis ion -ma kin g a t t his st age . 33 34 In its su mma tio n, the pr ose cut ion pr ope rlypo int ed out 35 tha t W ils on’ s a llo cut ion wa s u nsw orn an d u ncr oss ed, bu t t hen74 1 wen t o n t o e mph asi ze Wil son ’s dec isi on not to te sti fy (th e 2 pro ble m w ord ing is em pha siz ed) : 3 I w ant to ta lk to you a min ute ab out th e s tat eme nt 4 its elf . You ma y h ave no tic ed tha t w hen he ma de 5 tha t s tat eme nt, Ro nel l W ils on was n’t si tti ng up 6 the re on the wi tne ss sta nd und er oat h, sub jec t t o 7 cro ss- exa min ati on. He cho se to do it fro m t her e 8 (in dic ati ng) . The pa th for th at wit nes s s tan d h as 9 nev er bee n b loc ked fo r M r. Wil son , h ad tha t 10 opp ort uni ty too . He cho se, li ke man y o the r t hin gs 11 in thi s c ase , t o d o i t t hat wa y. 12 13 You ma y a sk you rse lve s w ell , w hat mo re wou ld we 14 hav e i f h e t ookth at sta nd, wh at wou ld be the 15 dif fer enc e? We ll, we mi ght ha ve bee n a ble to as k 16 himwh en didyo u c ome up wi th thi s? Ho w d id you 17 com e u p w ith it ? Whydi d y ou com e u p w ith it ? 18 Why no w? Wh y n ow of all ti mes ar e y ou sor ry? W e 19 mig ht be abl e t o t est th e c red ibi lit y o f t he 20 sta tem ent , t he ver aci ty of it. Y ou mig ht hav e 21 inf orm ati on tha t c oul d h elp yo u d eci de if you ne ed 22 to bel iev e i t. Ro nel l W ils on did n’t wa nt tha t. 23 He wan tedto sa y i t f romth ere , [ “]t ake mywo rd 24 for it no w a fte r a ll thi s, I’mso rry [”] . 25 26 Def . A pp. at 86 8 ( emp has is add ed) . 27 28 Aft er summat ion , d efe nse co uns el arg uedth at the 29 pro sec uti on had“s ugg est [edth at] he sh oul d h ave ta ken th e 30 sta nd andbe en und er oat h. . . . Myco nce rn is tha t t he 31 jur y s hou ldn ’t com e a way wi th the mi sim pre ssi on tha t s ome how 32 the de fen dan t h as the bu rde n o f t aki ng the st andin a 33 cap ita l c ase an d b e s ubj ect ed to cro ss- exa min ati on. T hat ’s 34 jus t n ot the de fen dan t’s bu rde n.” The de fen se req ues teda 35 cur ati ve ins tru cti on- -to be in ser tedin th e c har ge tha t75 1 exp lai nedho w t o e val uat e t he sta tem ent of re mor se- -th at 2 “it ’s not th e b urd en of the de fen dan t t o t ake th e s tan d o r 3 to be sub jec tedto cr oss -ex ami nat ion .” Th e g ove rnm ent 4 mai nta ine d t hat it s a rgu men t w as pro per . The co urt 5 ins tru cte d t he jur ors th at, “[ w]h en con sid eri ng the 6 def end ant ’s sta tem ent of Ja nua ry 24, 20 07, yo u m ay tak e i nto 7 acc oun t t hat th e d efe nda nt mad e t he sta tem ent wi tho ut bei ng 8 swo rn in andwi tho ut sub jec tin g h ims elf to cr oss 9 exa min ati on. ” But th e c our t g ave ne ith er of the re que ste d 10 no- adv ers e-i nfe ren ce ins tru cti ons . 11 Wil son co nce des on ap pea l t hat it wa s w ith in bou nds fo r 12 the pr ose cut ion to co mme nt in summat ion th at the al loc uti on 13 was no t m ade un der oa th andwa s n ot sub jec t t o c ros s14 exa min ati on. W ils on arg ues , h owe ver , t hat th e a llo cut ion 15 didno t e ffe ct a w aiv er of his Fi fth Am end men t r igh t a nd 16 tha t t he pro sec uti on the ref ore vi ola tedth at rig ht by 17 tel lin g t he jur y t hat “[ t]h e p ath to th at wit nes s s tan d h as 18 nev er bee n b loc kedfo r M r. Wil son .” Th at app roa ch acc ord s 19 wit h t he vie w o f s ome co urt s, whi ch hav e d ist ing uis hed 20 bet wee n c omm ent s t hat fo cus on th e f act th at an all ocu tio n 21 was un swo rn andun cro sse d ( dee medpe rmi ssi ble ) a nd commen ts 22 tha t e mph asi ze the de fen dan t’s fa ilu re to tes tif y ( dee med76 1 imp erm iss ibl e). S ee, e. g., De pew v. An der son , 3 11 F.3 d 7 42, 2 750 (6 th Cir . 2 002 ); Uni tedSt ate s v . M art in Agu ila r, No. 3 01- 136 7-c r ( E.D .N. Y. Jan . 1 1, 200 7); St ate v. Sk atz es, No . 4 158 48, 20 03 WL 241 964 06, at *3 3 ( Oh. Ap p. Jan . 3 1, 200 3). 5 We con sid er, ho wev er, th at thi s p erm eab le lin e i s 6 ine ffe cti ve for pr ese rvi ng the ri ght ; i t i s a lto get her to o 7 lik ely th at a j ury wi ll nat ura lly(a nd sen sib ly) eq uat e 8 tes tim ony un der oa th sub jec t t o c ros s-e xam ina tio n w ith 9 tes tim ony fr om the wi tne ss sta nd. W e a dop t a di ffe ren t 10 app roa ch, pr emi sedon wa ive r, a principle that inheres in 11 the uncontroversial rule that prosecutors can emphasize that 12 an allocution is unsworn and uncrossed. W e s tar t w ith fi rst 13 pri nci ple s. 14 It is set tle d t hat pr ose cut ors ma y n ot commen t 15 adv ers ely on a def end ant ’s inv oca tio n o f h is Fif th Ame ndm ent 16 pri vil ege no t t o t est ify . Gri ffi n v . C ali for nia , 3 80 U.S . 17 609 , 6 15 (19 65) (“ [T] he Fif th Ame ndm ent . . . fo rbi ds eit her 18 commen t b y t he pro sec uti on on the ac cus ed’ s s ile nce or 19 ins tru cti ons by th e c our t t hat su ch sil enc e i s e vid enc e o f 20 gui lt. ”). T his pr ote cti on ext end s t o c api tal se nte nci ng 21 pro cee din gs. S ee Est ell e v . S mit h, 451 U. S. 454 , 4 62- 63 22 (19 81) (“ We can di sce rn no bas is to dis tin gui sh bet wee n t he77 1 gui lt andpe nal ty pha ses of re spo nde nt’ s c api tal mu rde r 2 tri al so far as th e p rot ect ion of th e F ift h Amen dme nt 3 pri vil ege is co nce rne d.” ). To se cur e t hes e p rot ect ion s, 4 “th e F ift h Amen dme nt req uir es tha t a cr imi nal tr ial ju dge 5 mus t g ive a ‘no -ad ver se- inf ere nce ’ j uryin str uct ion wh en 6 req ues tedby a def end ant to do so .” Ca rte r v . K ent uck y, 450 7 U.S . 2 88, 30 0 ( 198 1). 8 “Th e t est go ver nin g w het her a pro sec uto r’s st ate men ts 9 amo unt to an im pro per co mme nt on the ac cus ed’ s s ile nce in 10 vio lat ion of th e F ift h Amen dme nt loo ks at the st ate men ts in 11 con tex t a nd exa min es whe the r t heyna tur all y a nd nec ess ari ly 12 wou ld be int erp ret ed by the ju ry as a c omm ent on th e 13 def end ant ’s fai lur e t o t est ify .” Un ite d S tat es v. Kno ll, 16 14 F.3 d 1 313 , 1 323 (2 d C ir. 19 94) (i nte rna l q uot ati on mar ks 15 omi tte d). H owe ver , a de fen dan t’s co ndu ct can re sul t i n a 16 lim ite d w aiv er of his Fi fth Am end men t r igh ts aga ins t s elf

17 inc rim ina tio n a nd aga ins t t he dra win g o f a n a dve rse 18 inf ere nce fr om his in voc ati on of tha t r igh t. Fo r e xam ple , a 19 def end ant wh o t est ifi es on dir ect ca nno t c lai m F ift h 20 Ame ndm ent immun ity fr om cro ss- exa min ati on on mat ter s t hatWi lso n a nal ogi zes an un swo rn, un cro sse d a llo cut ion 23 to a d efe nda nt’ s u se of his pr ior ou t-o f-c our t s tat eme nt and cit es cas es tha t r efu se to fin d w aiv er in suc h cir cum sta nce s. Se e, e.g ., Hor ne v. Tri cke y, 895 F. 2d 497 , 500 -01 (8 th Cir . 1 990 ); Por ter v. Es tel le, 70 9 F .2d94 4, 958 -59 (5 th Cir . 1 983 ). Th e a nal ogyis in apt , b eca use th e typ e o f a llo cut ion at is sue he re, re ad alo ud to the ju ry by the de fen dan t, is a c los e a nal og to tes tim onyan d d oes no t sou nd lik e s ile nce . Acc ordBo oth v. St ate , 5 07 A.2 d 1 098 , 111 4 ( Md. 19 86) (“ [A] llo cut ion is mo re lik e t est imo ny tha n sil enc e a nd for Fi fth Am end men t p urp ose s i s t est imo nia l . .

. . ”), re v’don ot her gr oun ds, Bo oth v. Ma ryl and , 4 82 U.S . 496 (1 987 ), ove rru ledby , P ayn e v . T enn ess ee, 50 1 U .S. 80 8 (19 91) . 78 1 his ow n d ire ct tes tim ony pu t i nto di spu te. B row n v . 23 2 Uni tedSt ate s, 356 U. S. 148 , 1 55- 56 (19 58) ; s ee als o 3 Har ris on v. Uni tedSt ate s, 392 U. S. 219 , 2 22 (19 68) (“ A 4 def end ant wh o c hoo ses to te sti fy wai ves hi s p riv ile ge 5 aga ins t c omp uls ory se lf- inc rim ina tio n w ith re spe ct to the 6 tes tim ony he gi ves . . . .”) ; L esk o v . L ehm an, 92 5 F .2d15 27, 7 154 2 ( 3d Cir . 1 991 ) ( exp lai nin g t hat an ad ver se inf ere nce 8 may be dr awn “w hen th e d efe nda nt has te sti fie d a s t o s ome 9 fac ts con cer nin g t he cri me cha rge d, but ha s r efu sedto 10 tes tif y a s t o o the r f act s w ith in his kn owl edg e”) . Lim ite d 11 wai ver ac commod ate s t he nee d o f b oth si des fo r “ the 12 opp ort uni ty to mee t f air ly the ev ide nce an d a rgu men ts of one 13 ano the r.” U nit ed Sta tes v. Ro bin son , 4 85 U.S . 2 5, 28, 33 14 (19 88) ; s ee als o i d. at 28, 34 (h old ing th at gov ern men t’s79 1 arg ume nt tha t d efe nda nt “co uldha ve tak en the st andan d 2 exp lai nedit to yo u, any thi ng he wan tedto ,” was pe rmi ssi ble 3 bec aus e i t “ fai rly re spo nd[ ed] to an ar gum ent of th e 4 def end ant ”). 5 App lyi ng the pr inc ipl es of lim ite d w aiv er art icu lat ed 6 in the se cas es, we ho ld tha t a n u nsw orn , u ncr oss ed 7 all ocu tio n c ons tit ute s a li mit ed Fif th Ame ndm ent wa ive r t hat 8 all ows th e p ros ecu tio n t o a rgu e f or an adv ers e i nfe ren ce 9 fro m a de fen dan t’s fa ilu re to tes tif y as to th at to whi ch he 10 has all ocu ted . Acc ordBo oth v. St ate , 5 07 A.2 d 1 098 , 1 114 11 (Md . 1 986 ) ( exp lai nin g t hat th e d efe nda nt’ s a llo cut ion 12 con sti tut es, “a t a mi nim um, a wai ver of an y p riv ile ge to 13 avo id commen t b y t he pro sec uto r o n t he all ocu tio n”) , r ev’ d 14 on oth er gro und s, Boo th v. Mar yla nd, 48 2 U .S. 49 6 ( 198 7), 15 ove rru ledby , P ayn e v . T enn ess ee, 50 1 U .S. 80 8 ( 199 1). 16 Thu s, Wil son ’s all ocu tio n c ons tit ute d a li mit ed wai ver of 17 his ri ght un der Gr iff in to be fre e f romad ver se commen t o n 18 his fa ilu re to tes tif y a nd of his ri ght un der Ca rte r t o a 19 bla nke t j ury in str uct ion pr ohi bit ing th e j uro rs fro m 20 con sid eri ng his si len ce. 21 Although Wilson’s allocution effected a limited waiver 22 of the Fifth Amendment rights he enjoyed under Griffin and80 1 Carter--the waiver was limited. The prosecution attempted 2 conscientiously to focus solely on the subject matter of the 3 allocution and to maintain that context. Even so, there is 4 something expansive about saying “[t]he path to that witness 5 stand has never been blocked for Mr. Wilson,” and a juror 6 could think that “never” is a period that extends back to 7 the guilt phase of the trial and extends as well to the full 8 penalty phase rather than just to the reading of the 9 allocution. In any event, and despite his limited waiver, 10 Wilson remained entitled to a Carter no-adverse-inference 11 instruction upon request. 12 Neither request made by Wilson was wholly free from 13 defect. The charge that Wilson requested pre-summation was 14 a fair statement of law at the time. True, it did not take 15 into account the adverse inference that may be drawn from 16 the expression of remorse by allocution rather than by 17 testimony; but that is doctrine clarified in this opinion. 18 The instruction that Wilson sought post -summation would have 19 barred a permissible adverse inference from Wilson’s failure 20 to express remorse from the witness stand. 21 Nevertheless, the denial of anyCarter instruction 22 risked transforming Wilson’s limited waiver into a completeAs to th e F ift h Amen dme nt err or, th e d iss ent 24 con ten ds tha t o ur who le arg ume nt of har m r est s o n a me re thr ee wor ds ref lec tin g a n u nfo rtu nat e c hoi ce of ten se. Dis sen t a t 1 2-1 3. A jur isp rud enc e b ase d o n w ord -co unt wo uld tra nsf ormth is are a o f l aw for th e w ors e. In an y e ven t, the thr ee wor ds (“h as nev er bee n”) ar e e mbe dde d i n a pa ir of cru cia l, emp hat ic sen ten ces , a nd dri ve the pr edi cat e: “T he pat h f or tha t w itn ess st andha s n eve r b een bl ock ed for Mr . Wil son , h ad tha t o ppo rtu nit y t oo. H e c hos e, lik e m anyot her thi ngs in th is cas e, to do it tha t w ay. ” The di sse nt que sti ons wh eth er a j ury wo uldth ink (a s w e t hin k) tha t “ne ver ” i s a pe rio d t hat ex ten ds bac k “ to the gu ilt ph ase .

. . an d e xte nds as we ll to the fu ll pen alt y p has e.” Maj ori ty at 80. H ow far ba ck, on e w ond ers , doe s th e d iss ent con sid er tha t “ nev er” ex ten ds bac k? Th e w ordne ver is a hum ble An glo -Sa xon wo rd, bu t i t i s e mph ati c. Se e O xfo rd Eng lis h D ict ion ary (D raf t r ev. ed . J une 20 10) (“ At no tim e or mom ent ; o n n o o cca sio n; not ev er. ”). 81 1 one, particularly in view of some wording in the 2 government’s summation. The district court should have 3 issued a variant of the Carter instruction that allowed the 4 jurors to consider Wilson’s failure to testify as to the 5 subject of his allocution , but that forbid them from 6 considering his failure to testify for any other purpose or 7 as to any other part of the defense’s case. 24 8 We next consider whether this error combined with the 9 Sixth Amendment error (see Point VI) requires us to vacate 10 the death sentences. 11 12 VIII82 1 Wil son ha s a deq uat elypr ese rve d b oth hi s S ixt h a nd 2 Fif th Ame ndm ent cl aim s; har mle ss err or rev iew th ere for e 3 app lie s. Se e S att erw hit e v . T exa s, 486 U. S. 249 , 2 56 4 (19 88) . Acc ord ing ly, we wi ll vac ate th e s ent enc es unl ess 5 the “p ros ecu tio n c an pro ve bey onda rea son abl e d oub t t hat a 6 con sti tut ion al err or didno t c ont rib ute to th e v erd ict .” 7 Id. B eca use th ere ar e t wo err ors , w e c ons ide r w het her 8 vac atu r i s r equ ire d b y t hes e e rro rs in the ag gre gat e. See 9 United States v. Rahman, 189 F.3d 88, 145 (2d Cir. 1999) 10 (per curiam) (“[T]he effect of multiple errors in a single 11 trial may cast such doubt on the fairness of the proceedings 12 that a new trial is warranted, even if no single error 13 requires reversal.”). 14 The prosecution cited two constitutional elections made 15 by Wilson--to go to trial and not to testify--as reasons to 16 reject two of Wilson’s offered mitigators: acceptance of 17 responsibility and remorse. And the government then cited 18 the lack of remorse as evidence of an aggravating factor: 19 Wilson’s future dangerousness. See Def. App. at 604 (“What 20 else tells you about the incredible danger that this man 21 poses? . . . The fact that the defendant has absolutely, 22 absolutely no remorse whatsoever for his actions.”); Def.83 1 App. at 885 (“Now, during jury selection, many of you talked 2 about wanting to believe that someone who committed murder 3 would wake up every day and feel sorry about it, feel some 4 remorse about what he had done. Well, Ronell Wilson is not 5 that person.”). 6 Moreover, the focus on Wilson’s decision to elect a 7 trial had an uncontrollable resonance for the jury. After 8 acknowledging Wilson’s “absolute right to go to trial,” the 9 government suggested that if Wilson had accepted 10 responsibility, he would not have “put the government to its 11 burden of proof, to prove he committed these crimes.” Not 12 incidentally, however, the burden thus placed on the 13 prosecution to mount its case placed a counterpart burden on 14 the jurors to sit through it. 15 These arguments were potent-- no juror found that Wilson 16 accepted responsibility or showed remorse, and every juror 17 found that Wilson presented a risk of future dangerousness. 18 On these facts, it is hard to see how the government 19 can prove that these errors were harmless. Indeed, the 20 government’s emphasis on these arguments during summation 21 suggests they were not harmless beyond a reasonable doubt. 22 See Clemons v. Mississippi, 494 U.S. 738, 753 (1990) (theSe e, e.g ., Rig gin s v . N eva da, 50 4 U .S. 12 7, 143 25 (19 92) (K enn edy , J ., con cur rin g) (“I n a ca pit al sen ten cin g pro cee din g, ass ess men ts of cha rac ter an d r emo rse ma y c arr y gre at wei ght an d, per hap s, be det erm ina tiv e. . . .” ); Uni ted Sta tes v. Mi kos , 5 39 F.3 d 7 06, 72 4 ( 7th Ci r. 200 8) (Po sne r, J., co ncu rri ng in par t a nd dis sen tin g i n p art ) ( cit ing stu die s a nd art icl es sup por tin g t his pr opo sit ion ); Mic hae l A. Sim ons , B orn Ag ain on De ath Ro w: Ret rib uti on, Re mor se, andRe lig ion , 4 3 C ath . L aw 311 , 3 22 (20 04) (“ The im por tan ce of a d efe nda nt’ s r emo rse in ca pit al sen ten cin g i s w ell doc ume nte d. Em pir ica l s tud ies of ca pit al jur ies ha ve dem ons tra tedth at a d efe nda nt’ s r emo rse (o r l ack of re mor se) is one of th e s ing le mos t i mpo rta nt fac tor s i n t he jur y’s sen ten cin g d eci sio n.” (f oot not e o mit ted )); Th eod ore Eis enb erg , S tep hen P. Ga rve y, & M art in T. Wel ls, Bu t w as he sor ry? T he Rol e o f R emo rse in Ca pit al Sen ten cin g, 83 Cor nel l L . R ev. 15 99, 16 33 (19 98) (“ In sho rt, if [S out h Car oli na] ju ror s b eli eve d t hat th e d efe nda nt was so rryfo r wha t h e h ad don e, the y t end ed to sen ten ce himto li fe imp ris onm ent , n ot dea th. ”); Wi lli am S. Gei mer & Jon ath an Ams ter dam , W hy Jur ors Vo te Lif e o r D eat h: Ope rat ive Fa cto rs in Ten Fl ori da Dea th Pen alt y C ase s, 15 Am. J. Cr im. L. 1, 51- 53 (19 87- 88) . 84 1 prosecution’s reliance on a particular issue bears on 2 whether error regarding that issue is harmless). And the 3 dis tri ct cou rt ack now led gedth at lac k o f r emo rse an d f utu re 4 dan ger ous nes s ( as evi den ced , i n p art if no t i n w hol e, by a 5 lac k o f a cce pta nce of re spo nsi bil ity ) w ere am ong th e m ost 6 inf lue nti al fac tor s t hat mo vedth e j uryto re tur n a ve rdi ct 7 of dea th. T hat in sig ht acc ord s w ith ex per ien ce, in tui tio n, 8 andre sea rch . T he pro sec uti on rec ogn ize d a s m uch in th is 25 9 cas e. See De f. App . a t 8 85 (“[ D]u rin g j uryse lec tio n . . . 10 [m] ost of yo u t alk ed abo ut acc ept anc e o f r esp ons ibi lit y a nd85 1 rem ors e a nd how im por tan t t hos e t hin gs wou ld be to you wh en 2 you de cid e w hat pu nis hme nt wou ld be app rop ria te. ”). 3 The ha rm mig ht hav e b een mi tig ate d i f t he jur y c oul d 4 hav e r eli ed on a C art er ins tru cti on giv en in the gu ilt 5 pha se. H owe ver , t he dis tri ct cou rt’ s i nst ruc tio ns in the 6 sen ten cin g p has e i mpl iedth at the no -ad ver se- inf ere nce 7 pri nci ple ar tic ula teddu rin g t he gui lt pha se aff irm ati vel y 8 did

no t a ppl y

to th e s ent enc ing ph ase : 9 [I] t i s m y r esp ons ibi lit y t o i nst ruc t y ou as to 10 the la w t hat go ver ns thi s p has e. . . . [I] t w oul d 11 be a v iol ati on of you r o ath s a s j uro rs to bas e 12 you r s ent enc ing de cis ion s u pon an y v iew of th e l aw 13 oth er tha n t hat gi ven to yo u i n t hes e 14 ins tru cti ons . 15 16 Som e o f t he leg al pri nci ple s t hat yo u m ust ap ply 17 in thi s p has e d upl ica te tho se you fo llo wedin 18 rea chi ng you r v erd ict as to th e g uil t o f t his 19 Def end ant . Oth ers ar e d iff ere nt. T he 20 ins tru cti ons I am giv ing yo u n ow are a com ple te 21 set of in str uct ion s a bou t t he law ap pli cab le to 22 the pe nal ty pha se. 23 24 Tha t “ com ple te set of in str uct ion s a bou t t he law ap pli cab le 25 to the pe nal ty pha se” om itt ed anyno -ad ver se- inf ere nce 26 pri nci ple . 27 In lig ht of the se con sid era tio ns, we ca nno t s ay bey ond 28 a r eas ona ble do ubt th at the ef fec ts of the tw oTh e d iss ent fi nds no Si xth Am end men t v iol ati on, an d 26 pun ts as to whe the r t her e w as a v iol ati on of the Fi fth Ame ndm ent . We, th ere for e, do not jo in iss ue wit h t he dis sen t o n w het her a Fif th Ame ndm ent er ror al one wo uldbe har mle ss. O ur ana lys is con clu des on ly tha t t he two er ror s-- eac h r ein for cin g a nd amp lif yin g t he oth er on the cr iti cal iss ues of re mor se, ac cep tan ce of res pon sib ili ty, an d f utu re dan ger ous nes s-- can not be fo undha rml ess be yon d a re aso nab le dou bt. 86 1 con sti tut ion al err ors we re har mle ss. A cco rdi ngl y, we 26 2 vac ate th e d eat h s ent enc es (on ly) an d r ema nd to the di str ict 3 cou rt for a new se nte nci ng pha se. 4 5 IX 6 Applying well-established rules of law, we find that 7 Wilson’s arguments addressed in this Point are meritless. 8 However, in a death penalty case we are statutorily obliged 9 to address all arguments in writing, and we do so here. 18 10 U.S.C. § 3595(c). 11 12 A 13 Wil son as ser ts tha t i n t he pen alt y p has e s umm ati ons , 14 the pr ose cut ion ca sti gat ed def ens e c oun sel fo r [ i] 15 pre sen tin g t he mit iga tin g e vid enc e, and[i i] shi fti ng the 16 bla me for th e m urd ers to th e v ict ims an d o the rs. W e w ill 17 rev ers e o n t he gro undof pr ose cut ori al mis con duc t o nlyif87 1 tha t m isc ond uct ca use d “ sub sta nti al pre jud ice byso 2 inf ect ing th e t ria l w ith un fai rne ss as to mak e t he res ult ing 3 con vic tio n a de nia l o f d ue pro ces s.” U nit ed Sta tes v. 4 Eli as, 28 5 F .3d18 3, 190 (2 d C ir. 20 02) (i nte rna l q uot ati on 5 mar ks omi tte d). “ In ass ess ing wh eth er pro sec uto ria l 6 mis con duc t c aus ed ‘su bst ant ial pr eju dic e,’ th is Cou rt has 7 ado pte d a th ree -pa rt tes t: the se ver ityof th e m isc ond uct , 8 the me asu res ad opt ed to cur e t he mis con duc t, andth e 9 cer tai nty of co nvi cti on abs ent th e m isc ond uct .” Id . Her e, 10 mis con duc t ( if any ) c oul d n ot be dee medse ver e. Se e U nit ed 11 Sta tes v. Ne wto n, 369 F. 3d 659 , 6 81 (2dCi r. 200 4) 12 (ca uti oni ng aga ins t “ dis pro por tio nat e e mph asi s [ on] is ola ted 13 inc ide nts of al leg ed err or” ); Eli as, 28 5 F .3dat 19 1 ( “[T ]he 14 sev eri ty of the mi sco ndu ct is mit iga tedif th e m isc ond uct is 15 an abe rra tio n i n a n o the rwi se fai r p roc eed ing .”) . Mor eov er, 16 Wil son ca nno t s how su bst ant ial pr eju dic e: Th e j urych arg e 17 dir ect ed bro ad con sid era tio n o f m iti gat ion fa cto rs, an d t he 18 cha lle nge d c omm ent s d id not bo lst er the go ver nme nt’ s 19 agg rav ati ng fac tor s o r u nde rmi ne Wil son ’s mit iga tin g 20 fac tor s. 21 22 B88 1 The district court instructed the jury that in order to 2 decide that Wilson constituted a future danger (a non3 statutory aggravating factor), it needed to find that “the 4 defendant is likely to commit criminal acts of violence in 5 the future that would constitute a continuing and serious 6 threat to the lives and safety of others.” (emphasis added). 7 Wilson argues that the district court erred in rejecting his 8 proposed jury instruction, which used both “likely” and 9 “probable” to describe future dangerousness. 10 Since the two words are synonymous, the court’s 11 instruction viewed as a whole, see United States v. 12 Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004), did not mislead 13 the jury as to the correct standard, see People v. Randall, 14 711 P.2d 689, 692 (Colo. 1985) (defining “likely” as 15 synonymous with “probable”); see also Fadiga v. Attorney 16 Gen. of the U.S., 488 F.3d 142, 154 (3d Cir. 2007) (“[T]he 17 proper inquiry is whether there is a ‘reasonable likelihood’ 18 (or, synonymously, a ‘reasonable probability’). . . .”). 19 Wilson’s own proposed instruction used “likely” and 20 “probable” interchangeably. Wilson’s related argument that 21 the prosecutor’s summation filled a supposed “void” as to 22 the probability standard also fails, because any possible89 1 prejudice from the prosecutor’s summation was cured by the 2 district court’s proper instruction. See United States v. 3 Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam). 4 5 C 6 Wilson contends that the jury was left to think that 7 failure to deliver a unanimous verdict would allow the court 8 to impose some other, lesser sentence. In support, Wilson 9 cites the district court’s refusal to charge that if the 10 jury deadlocked, Wilson would be sentenced to life without 11 the possibility of parole, coupled with two features of the 12 special voting form, which [i] solicited a unanimous vote as 13 to either death or life without the possibility of parole 14 and [ii] for three of the capital counts, directed a jury 15 that had not reached a unanimous vote on either sentencing 16 option to vote on whether “some other sentence authorized by 17 law shall be imposed.” Wilson posits that a juror who would 18 vote against the death penalty if a life sentence without 19 the possibility of parole was the certain alternative might 20 vote for death to avoid creating a deadlock that would allow 21 Wilson’s future release. 22 A capital defendant is not entitled to a jury90 1 instruction on the effect of deadlock. Jones v. United 2 States, 527 U.S. 373, 382 (1999) (“[T]he proposed 3 instruction has no bearing on the jury’s role in the 4 sentencing process. Rather, it speaks to what happens in 5 the event that the jury is unable to fulfill its role--when 6 deliberations break down and the jury is unable to produce a 7 unanimous sentence recommendation. . . . We have never 8 suggested, for example, that the Eighth Amendment requires a 9 jury be instructed as to the consequences of a breakdown in 10 the deliberative process.”). 11 To show that “the instructions and decision forms” 12 confused the jury, a defendant must demonstrate that “there 13 is a reasonable likelihood that the jury has applied the 14 challenged instruction in a way that violates the 15 Constitution.” Id. at 389-90 (internal quotation marks 16 omitted). The adverse effect that Wilson posits was 17 foreclosed by repeated instructions that Wilson would be 18 sentenced either to death or to life in prison without the 19 possibility of parole. There is no “reasonable likelihood” 20 that the jury misunderstood the charge: The jury 21 unanimously found proven the mitigating factor that Wilson 22 would stay in prison for the rest of his life if he were not91 1 sentenced to death. See Boyde v. California, 494 U.S. 370, 2 380 (1990). 3 4 D 5 In a capital case, a defendant may present to the jury 6 as a mitigating factor the fact that “[a]nother defendant or 7 defendants, equally culpable in the crime, will not be 8 punished by death.” 18 U.S.C. § 3592(a)(4). The district 9 court allowed Wilson to stipulate that other members of the 10 Stapleton Crew who participated in the crime (Whitten, 11 Green, and Bullock) had not been sentenced to death. Wilson 12 wanted the jury to learn that they had been sentenced to a 13 term of years, not life in prison. When that request was 14 denied, Wilson withdrew this mitigating factor. 15 In the sentencing phase of a capital trial, this Court 16 gives deference to the district court’s decision on the 17 admissibility of evidence and will not overrule it so long 18 as it does not abuse its discretion by acting arbitrarily or 19 irrationally. United States v. Pepin, 514 F.3d 193, 202 (2d 20 Cir. 2008). 21 The district court ruled that the stipulation provided 22 all the relevant information required by the statute, and92 1 that further evidence as to specific prison sentences would 2 have low probative value, would confuse the jury, and would 3 provoke or require trials within the trial concerning the 4 other defendants, their cooperation, and their roles in the 5 murders. That decision was no abuse of discretion; the 6 reasons adduced by the court are either explicitly permitted 7 by the statute or have been accepted by this Court. See 18 8 U.S.C. § 3953(c) (“[I]nformation may be excluded if its 9 probative value is outweighed by the danger of creating 10 unfair prejudice, confusing the issues, or misleading the 11 jury.”); Pepin, 514 F.3d at 206 (ruling that the district 12 court’s decision to exclude evidence of the defendant’s 13 prior crimes for fear that they would confuse the issues at 14 hand by requiring a “diversionary trial within a trial” was 15 not an abuse of discretion). 16 Even assuming that the jury would find the other 17 defendants “equally culpable in the crime”--though it was 18 Wilson who pulled the trigger--the probative value of 19 additional specific sentences was small. The jury had 20 already learned, when two of Wilson’s fellow gang members 21 testified, that both Jacobus (who was with Wilson during the 22 murders) and Diaz (who provided the murder weapon) were93 1 sentenced to a minimum of 15-25 years imprisonment. The 2 defense attorney in summation pointed out that Jacobus could 3 therefore be out of prison in twelve years. 4 5 E 6 Wilson argues that United States v. Whitley, 529 F.3d 7 150 (2d Cir. 2008), requires vacatur of his life sentence 8 for Count Six (use of a firearm during a crime of violence, 9 18 U.S.C. § 924(c)(1)(A)(iii)), as well as his life 10 sentences for Counts Seven and Eight (causing death through 11 the use of a firearm, 18 U.S.C. § 924(j)). We hold that any 12 error here is harmless and so we affirm as to this issue. 13 Section 924(c)(1)(A) provides, in relevant part: 14 Except to the extent that a greater minimum 15 sentence is otherwise provided by this subsection 16 or by any other provision of law , any person who, 17 during and in relation to any crime of violence or 18 drug trafficking crime . . . for which the person 19 may be prosecuted . . . uses or carries a firearm, 20 or who, in furtherance of any such crime, possesses 21 a firearm, shall, in addition to the punishment 22 provided for such crime of violence or drug 23 trafficking crime-- 24 25 (iii) if the firearm is discharged, be sentenced to 26 a term of imprisonment of not less than 10 years. 27 28 18 U.S.C. § 924(c)(1)(A)(iii) (emphasis added). The 29 underlying predicate offense need not be a firearms offense:94 1 “[t]he ‘except’ clause includes minimum sentences for 2 predicate statutory offenses arising from the same criminal 3 transaction or operative set of facts.” United States v. 4 Williams, 558 F.3d 166, 171 (2d Cir. 2009). Section 924(j) 5 provides in turn that “[a] person who, in the course of a 6 violation of subsection (c) , causes the death of a person 7 through the use of a firearm, shall . . . if the killing is 8 a murder . . . be punished by death or by imprisonment for 9 any term of years or for life.” 18 U.S.C. § 924(j) 10 (emphasis added). 11 Capital sentences imposed under § 924(j) (Counts Seven 12 and Eight) withstand Whitley. Section 924(j) is triggered 13 by a “violation” of § 924(c). See 18 U.S.C. § 924(j). But 14 § 924(c) has both a substantive component (describing 15 criminal conduct) and a punishment component (setting out 16 the range of permissible sentences for criminals who engage 17 in that criminal conduct). A plain reading of § 924(j), 18 therefore, indicates that a § 924(j) sentence is proper if 19 the defendant violates the substantive component of § 20 924(c); whether that defendant can be properly sentenced 21 under § 924(c) is of no moment. Since Wilson’s § 924(c) 22 conviction stands, so do his sentences under § 924(j). Any95 1 error specific to Count Six would be harmless, due to the 2 mandatory minimum sentences of life without the possibility 3 of parole already in place. See United States v. Rivera, 4 282 F.3d 74, 78 (2d Cir. 2002). Therefore, we affirm as to 5 this issue. 6 7 CON CLU SION 8 For th e f ore goi ng rea son s, we aff irmth e c onv ict ion s, 9 vac ate th e d eat h s ent enc es (on ly) , a nd rem andfo r a ne w 10 sen ten cin g p has e c ons ist ent wi th thi s o pin ion .1 1 DEB RA ANN LIVI NGSTON, Circuit Judge , c on c ur ri ngin p art

and dis se nti ngin p art : 2 The majority conclu d es that the jury ’s five c apital sentenc ing de terminations must be set 3 a sid e on

tw o s epa rategro un ds , e a c h invo lvi ngtheg ov e rnme nt’ s r e sp on seto Ron e ll Wil so n’ s c la ims , 4 in miti g ation, that he felt remorse for the murders of Detec tives Andre ws and Nemorin and that he 5 acc epted responsibility for his ac tions. First, the m ajority deter mines that about fifty

alleg edly errant 6 words in th e gover nment’s summation during thepenalty phase unc onstitut ionally burdene d 7 Wils on ’s Sixth Ame ndme nt right t o a jur y tr ial

. S eco nd , it

c on c lud e s th at Wils on ’s F if th 8 Amendment rights wereviolated by threeadditional words in thesummation, coupled with the trial 9 court’s f

ailure to g ive a “no a dverseinference”instruction pursuant to Carter v. Kentucky , 4 50 U. S. 10 288 (1981), albeit one modified for the s pecial circ umstances of this case. B eca use I concludethat 11 therewas no Six th Amendment violation, and that any Fifth Ame ndment error that took placewas 12 indisputably

harmless, I

respe ctfully dissent from P arts VI , VI I , and VI I I of the majority ’s opinion, 13 and from the judgme nt vacating the de ath sentenc es. I join in the remainder

of the majority ’s 14 opinion. 15 I. The Pe nalty Phase of Wilson ’s Trial 1 6 Proper a s s e s s ment o f th e p ur p o rte d e r r o r s o nwh ic hth e ma

jo rit y r e li e s r e qu ire s a

fuller 17 prese ntation of the background fac ts reg arding Wil son’s sentenc ing hearing. The pe nalty phase of 18 Ron e ll Wil so n’ s tria l, c on du cte d befo re thesamejur y tha t c onvic te d h im o f f

ivec a pit a l c ri me s, 19 lasted for

nine days, involved so m e for ty witnesses, and e ncompassed ne arly 1800 pag es of tria l 20 tr ans c ript. Th e F e de ral D e ath P e na lty Ac t r e qu ir e d th e g ov e rnment t o p ro veat le a st o nethre sh old 21 culpability

fac tor and onestatutory

ag gravating f

actor beyond a rea sonable doubt bef ore Wilson was 22 elig ible for th e d ea thpenalty . 18 U.S.C. § 3593(c), (e ). The g overnme nt relied on trial e videnceThese f

our fa ctors we re: (1) that Wil son “intentionally killed [ his] victim[ s]”; (2) that he 1 “intentionally

inflicted serious bodily

injury that resulted in the de ath of [his] victim[ s]”; (3) that he “intentionally

participated in an ac t, contemplatingthat the life of a person would betaken or intending that lethal forc e would be use d in connec tion with a person, other than one of

the participa nts in the offense , and the victim[s] died as a direc t result of the a ct”; and ( 4) that he “intentionally

and spec ifically

eng ag ed in an a ct of violenc e, knowingthat the ac t cre ated a grave risk of death to a person . . . suc h that participation in the act constituted a re ckless disreg ard f or human life a

nd the victim[ s] di ed as a direc t result of the a ct.” 18 U.S.C. §§ 3951(a) (2)(A)-( D). The two statutory

ag gravating f

actor s relied on by

the g overnme nt werethat Wil son committed 2 the offenses for “pecunia

ry g ain,” 18 U.S.C. § 3592(c) (8), a nd that he “intentionally

killed . . . more than oneperson in a sing le criminal episode”, id. § 3592(c) (16). Thetwo non-statutory ag gravating f

actor s for whic h the g overnme nt relied on trial e videncewere: (1) that Wi lson murde re d tw o la

w e nf orc e me nt o ff

ic e rs duri ngthec ours e of the ir of fi c ia l dutie s, and

that th is fac tor tended to support imposition of the death pe nalty ; and (2) that he fa ced c ontemporane ous convictions for othe r serious acts of violenc e cha rg ed in the counts in the indictment on which he had been convicted. 2 1 alone to provefour thre shold culpability fac tors, two statutory

ag gravat i n g factors, and two 1 2 additional non-statutory ag grav a tin g f ac to r s . Th eg o v er

nment’ s p en alt

y p h a s e evide nce thus focused 2 3 on its re ma ini ngno n- statut or y a g gra vatin gfa c tor s: t

hat Wils on

ha d c a us e d lo ss, inj ur

y , a nd ha rm to 4 the victims and their families; and that he represe nted a continuing dang er to the lives and saf ety of 5 other pe rsons. 6 Th e g ov e rnme nt c a lle d ten v ict im impa c t w itn e sse s, amon gthe m Ma ryann e An dr e ws , 7 Detec tive Andre ws’s ex-wife; sixt een year old Christi an Andrews, one of Detective Andrews’s two 8 sons; Rose Nemorin, Dete ctive Ne morin ’ s w idow and the mother of his threechildren; a

nd Detec tive 9 Nemorin’s sister , Marie- J ean N emorin. The g overnme nt introduced a n additional sevente en 10 witnesses and ma ny exhibi ts attesting to Wilson’s violent past, which beg an ea rly in childhood, as 11 well as his ongoi n gmembership and le ader ship role in the B loods and his continuing violent 12 behavior

in custody

afte r beingarrested for

the murder s of Dete ctives Andrews and Ne morin. 13 The F ederal Dea th Penalty Act provides that the defense may , if it wishes, ask the jury duringTh e fu ll t e xt of thestate me nt re a ds a s f

oll ow s: 3 Go od

a ft e rn oo n. I , Ro ne ll Wil so n, wrotea state me nt t

hat I wa nt t o r e a d to you, the jury . Iwant you to understand my deepe st sorrow towards the victim’s family and friends. Ihave se en the pain that Ihave c aused thefamily and friends of the victims and to my

own family

and friends. Iknow that the wives a nd c hil dr e n a nd lov e d o ne s area lso vic tim s. Iwould never

wish this for anyone bec ause I know how painf

ul it is . So I c ann ot b e re mor se fu l and sh owno sy

mpathy to t he seme n’ s f

amil y and frie nd s. Iam n o t g o o d

w it hw o r d s . Iw is hIc o u ld

e xp lain mys e lf mo r e b e tt e r

[s ic ], but Iam not truly

– but Iam truly

sorry for the pain Ihave c aused the m all. I know that I

have c aused a

great deal of pain to them all and Isay it ag ain and a g a i n , I ams o s o r

r y. Iam so rr y that I c a us e d s o mu c h p a in t

hrou gho ut my

lif e to o thers , e sp e c ia lly my fa mil y and thefa mil ie s o f t

hevic tim s. Iknow that the victims’ families may not acc ept my

apology but Ipray that God will givethem all the comfor t and strength that they

need to move on from this trag edy . Ihave thesame pra yer f or my family also. Thank you. Tr. 1501.

3 1 the penalty

phase to find spe cific mitig atingfac tors, which mus t be shown by a prepondera nce of the 2 evidenc e. Id. § 3593(c)

. Wil son identified eightee n such factors for the jury to consider. Wilson 3 prese nted thirteen w itnesses durin g h is de fensecase , including his mother, Che ryl Wi lson; his father, 4 Rob e rt Ea

rl B arn e s; and his sis te r, Depe tr a Wils on . T hede fens e a lso int ro du c e d numero us e xhibi ts, 5 inc ludingdo zen s o f p ho togra ph s of Wils on a s a c hil d a nd many do c uments depic tin ga sp e c ts o f h is 6 trou

ble d u pb ri ng ing , whic h w a s th e princ ipal f oc us of thede fens e ’s mit ig atio n c a se . O ther d e fens e 7 evidenc e purpor

ted to show that Wil son had adjusted to fede ral prison a nd would not be a da

ng er 8 in the future if

spare d the death pe nalty . Without taking thestand, Wil son himself rea d a prepare d, 9 un sw or

n s tate me nt t o th e jur

y that e xpre sse d r e mor sefo r h is c ri me s. 3 10 At the close of the evidence, the jurors were instructe d that they were called upon “to make 11 a unique , individualiz ed judgment about the appropriatene ss of imposing the de ath penalty .” Tr.The jury

unanimously

found in mitigation that (1) Wil son was twenty year s old on the date of 4 thec ri me s, (2 ) i f n ot s e ntenc e d to de ath, Wils on wo uld beinc arc e ra

te d “ fo r t here st o f h is l if

e in prison without possibi lity of re leaseor parole,” ( 3) Wilson’s parents were substanceabuser s “which resulted in poor parenting , an unstable a nd chaotic livingenvironment, a nd separation of his family ,” (4) at ag e twenty-one months, Wils on was hospitalized for over two wee ks after contra ctingbacte rial mening itis, (5) Wi lson was exposed to drug s and violenceas a c hild and adolesc ent, (6) Wilson grew up in “poverty and deprivation,” (7) during his c hildhood, W ilson

“ wa s a dmi tte d to ho sp itals o n at le a st f our o c c a sio ns fo r p syc hiatric c are ,”(8 ) t hrou gho ut h is childhood, Wil son was “prescribed medication by mental health professionals,” ( 9) Wilson had a history of depression, (10) Wilson performe d “we ll below gradelevel in school,” ( 11) Wilson was plac ed in Special Educ ation classes, ( 12) Wilson’s poor perfor mancein school was “a ffe cted by ne g ativ e inf

luenc e s in his ho melif

e ,”and (1 3) Wils on

ha d a “ lov ingre latio ns hip wi th h is family members, who [would] suffer grief a nd loss if he [were] executed.” V erdic t Form at 13- 14, App’x at 1392-93. The jury also unanimously

identified as a

n additional mitigatingfac tor that Wil son “wa s possibly subject to pee r pre ssure.” Id. at 15. An additional ele ven jurors

4 1 1743. Eac h juror wa s instructed to weigh the ag gravating f actor s that all jurors had agree d on 2 unanimously

ag ainst any

mitigatingfac tors that the individual juror believed t o b e p re sent. The 3 jurors we re then instructed to deter mine whether

they unanimously

conclude d that the ag gravating 4 fa c tor s su ff

ic ie ntly outw e ighe d a

ny mit ig atin gfa c tor s o r, in the a bs e nc e of mit ig atin gc irc ums tanc e s, 5 whether

the ag gravating f

actor s by themselves justified a se ntenceof death. Id. at 1741. Wil son’s 6 jury

was spec ifically instructed that “no jury is ever require d to impose the death penalty” and that 7 the jury

may decline to do so “ without givinga re ason for that decision.” Id. Urg e d b y thec ourt to 8 g ive “c are ful and thorough consideration to all the evidence ,” id. at 1724, the jurors de liberate d for 9 over a

day and half

. 10 Th e jur

y a gre e d una

nim ou sly that th e g ov e rnme nt h a d e sta bli sh e d e a c h o f i ts f

our t hr e sh old 11 c ulp a

bil ity fa c tor s and the six a g gra vatin gfa c tor s u

po n whic h it

re lie d b e yon d a

re a so na bledo ub t. 1 2 T h e j ur o r s a l s o a gr e e d un an i m o u s l y th atW i l s o nh a d e s t a b l i s h e d th i rt e e nm i t i g at i n gf

a c t o r s b y a 13 pr epo nd e ra

nc e of thee vide nc e , a

nd that on e a dd ition a l f

a c tor wa s p re se nt whic h th e jur y its e lf 14 identi fi e d. No juror c on c lud e d th at Wils on

ha d e sta bli sh e d, a s h e atte mpt e d, that hefe lt re mor se 4conclude d that “[d] uringhis early childhood, Ronell W ilson was exposed to an unsafeand unsanitary

home environme nt,” and thre e jurors f ound that Wil son’s “scores on standardized intelligenc e tests are below a verag e.” Id. at 13-14.

5 1 for his crimes, that he had a ccepted re sponsibili ty for them, or

that he had a djusted well to fede ral 2 priso n. Th e jur

y un anim ou sly vo te d to se ntenc e Wils on to de ath on e a c h of thefi vec a pit a l c ounts

. 3 II. Wil so n’ s Six th Am e ndm e ntCl aim 4 Wil son prese nted as mitigating fac tors during the penalty phase that he “ h adt ake[n] 5 responsibility

for his ac tions” and that he “ ha[d] remorsefor the murder[s] of Detectives Andrews 6 and

Ne morin. ” Ve rdict F or

m at 15 , App ’x at 13 94 . T heprinc ipal e vid e nc e – in de e d, theon ly 7 evidenc e – that Wilson offere d in support of these m i t i gat ing f actor s was the prepared, unsworn 8 s t at e m e ntth at h e r e a d t o th e j ur y w i th o utt ak i n gth e s t an d

. Ini t , W i l s o nc l a i m e d t o b e “ tr u l y s o r r y” 9 fo r t

hepain h e ha d c a

us e d, and hee xpre sse d h is “ de epe st s or ro w t ow ard s th e vic tim ’s [sic ] famil y 10 and friends.”Tr. 1501. The majority conclude s that the g overnment unconstituti onally burdene d 11 Wil son’s Six th Amendment right to a jury trial in challeng ing thecre dibility of this allocution during 12 its summ ation. Respectf ully , Idisagree . 13 The g overnme nt’s alleg edly improper words came not in the principal part of its summation, 14 which addressed the e videncesupporting e ach of the aggravating factors on which the g overnme nt 15 re lie d, but in

tha t po rtion of thesummatio n discus sin gthemit ig atin gfa c tor s th at Wils on urg e d to 1 6 b e p r e s e nt. T h e ma jo rit y f o c u s e s s o le ly

o nth e la n gu a g e in it a li c s , wh ic h r e a d s in it s b r o a d e r

c o nte xt 17 a s f

oll ow s: 18 Ronell W ilson takes responsibil i ty for his ac tions. Ronell W ilson has 19 remorse for the murders of De tective Andrews a nd Nemorin. Did Ronnell Wils on 20 show remor se af ter hekilled Detec tive Andre ws and whe n he turne d the gun on 21 Detec tive Nemorin, killed him as he be g g ed for his l i fe ?

. . . From the moment of6 1 those mu

r d e r s u p to th e s ta

rt o f th is trial, d id

yo uh e ar any e v id e n c e , is th e r e any 2 evidenc e in the re cord of remorseor ac cepta

nce of responsibility ? There ’s none. 3 Ronell W ilson up until the very moment that he addressed you last wee k has 4 done every thing hecould to esca

pe re sponsibili ty

for his crimes. 5 He has an ab s o lu t e r i ght to go to tr ial, put the governme nt to its burden of 6 proof, to prove he c ommitted these c rimes, but he can’ t have it both ways. He c an’t 7 do that, then say I acc ept responsibility.

. . . And [say “] I’m sorry , only after you 8 p ro v eI

di d i t.[ ”] That’s not ac cepta nce of responsibility . That is a manipulative 9 c ri min a l sa yingwh at heha s to , s ayingwh at hekn ow s you wa nt t o h e ar whe n it ’s in 10 his int e re st t o s ay it. 11 The timing of his statement alone should t el l yo u i t ’s nothing more than a 12 self-interested self ish man trying to save his own skin. 13 14 Tr. 1637-38. 15 The ma

j o ri ty co ntends that this languag e – which e xplicitly states that Wils on had an 16 “absolute right to g o to trial” – neve rtheless unlaw fully burdene d his Si x th Amendment right to jury 17 trial by

using “ Wil son’s constitutionally protec ted dec ision to g o to trial . . . as a reason to sente nce 18 him to death.” (Ma j. Op. at 69.) This conte ntion, however , simply mischara ct er i z es the 19 g ov e rnme nt’ s summa tio n. Th e g ov e rnme nt did no t, a s th e ma

jority c onte nd s, “ c ite [] as a

re a so n to 20 sentenc e him to d ea th ” that Wils on had ele cted to g o to trial. ( Id. ) Instead, the g overnme nt 21 appropriately

responde d to Wi lson’s miti g ation evidenc e. 22 The challeng ed comments occur red in response to Wil son’s endea vor t o persua de the jury 23 that he ha d a c c epte d r e sp on sib ili ty fo r h is a c tio ns , a

nd tha t in light o f t his mitigating fac tor – a fa ctor 24 hepla c e d b e

forethejur

y– a sente nce of

death wa s not justi fied. Theg overnme nt did not, as the 25 majority

contends, see k to “cha rac terize . . . the re quest for trial b y jury as an ag gravating 26 circ umstance,” Zant v. Stephens , 462 U.S. 862, 885 (1983) (citation omitted) – a rea son “to sentenc e 27 [Wilso n] to de ath. ” (M a j. O p. at 69 .) Ins te a d, it s ou ght o nly to d ra w i nto qu e sti on

thec re dib ili ty 28 of Wilson’s late-in-comingexpression of remorse , which Wilson proffered as a basis for c oncludingTh e ma

jority a lso a pp e ars to c onte nd

that th e jur

y ’s c on sid e ra

tio n o f t hefuture da

ng e ro us ne ss 5 ag gravator was somehowtainted bec ause Wilson’s lack of remorse w as cited to show his future dang erousne ss. (Maj. Op. at 68 &n.18, 82.) This argument is made despite the f act that Wil son’s dec ision to go to trial was ne ver c ited as a reason to find this ag gravating f actor . The jury instructions permitted the jury to consider lac k of re morse as evidenceof future dang erousne ss; the defe nse did not object to this languag e below, themajority does not state that allowingthis consideration wa s error in and of itself, a nd it would be perf

ectly logic al for thejury to conclude that one who lac ks remorsefor multiple murders c ould be more likely to be a da

ng er in the future. Moreover , even a ccepting ( as I do not) the majority ’s argument reg arding“taint,” the majority

conclude s that this supposed Si x th Amendment er ror wa s not harmless only in light of theF if th Ame ndme nt error

it also c ite s: “ Our a

na lysis c on c lud e s o nly

that th e tw o e rror s – eac h reinforcingand amplifying theother on the c ritical issues of re morse, ac cepta nce of responsibility , and futuredang erousne ss – cannot be f ound harmless be yond a re asonabledoubt.” (Maj. Op. at 87 n.26.) The prosecutor, how ever , cited neither Wil son’s dec ision to go to trial nor his decision not to testify as evide nce of

dang erousne ss. Furthe rmore, a s expl ained inf ra , in light of Wilson’s waiver of his F ifth Amendment right as to the subject of his re morse ( a waiver that the majority agrees took

place ) t hejur y wa s e nti tle d to draw a

n a dv e rs e inf

e renc e a s to thi s subject from Wi lson’s decision not to take the stand. Thus, e ven apa rt from the ove rwhe lming e vid e nc e of

future da ng e ro us ne ss t

hat w ou ld re nd e r a

ny su pp os e d “ ta int ” a s to da

ng e ro us ne ss indisputably

harmless, the F ifth Amendment er ror on whic h the majority relies to conc lude that it s s u p p o s e d Si xth Amen dment er

r o r w a s n o t h ar

ml e s s in n o w ay “ r e in f o r c [e d ]”o r

“ amp li f [i e d ]” this supposed error

. 7 1 that the g overnme nt’s evidenc e in ag gravation did not just ify the multiple death sentenc es for which 2 he wa s elig ible. 5 3 United States v. Stratton , 8 20 F .2 d 5 62 (2 d Ci r. 19 87 ), on whic h th e ma jority re lie s, is 4 there foreinapplicable. Stratton rec ognized a distinction between “ incre asingthe s ev er i ty of a 5 sentence fo r a d efe ndant’s failure to coope rate ,” which is prohibited, a nd “re fusingto grant 6 leniency,” which is not. Stratton , 8 20 F .2 d at 56 4. B ut Stratton would only be rele vant here , to the 7 extent relevant at all, if the g overnme nt had urg ed the jury to c onsider Wil son’s exercise of his jury 8 trial right as a re ason to sentenc e him to death. Ag ain, this is not what the government did. The 9 prosec utor’s re marks ca me not in his discussion of ag gravating f actor s, but in his ex amination of the 10 mitigatingevidenc e put forw ard by Wil son, and in the conte x t of explai n i n g why this evidence 11 should not be cre dited.8 1 The prose cutor’s comment, to the effec t that the allocution lacke d cre dibility as a state ment 2 of remorse beca

use it c ame only when Wil son fac ed punishment f or his c rimes, was entirely proper . 3 It is both natural and irre sistibl e for a jury , in evaluatingthe sincerity of a state m en t of contrition, 4 to note wh en i tcomes only at the point a def

endant is see king to avoid the maxi mum penalty and 5 when it i s utt erly devoid of c orroboration. In an analogous situation, the SupremeCourt has 6 indicated that prosec utorial comment pointing thesefac ts out to the jury impairs no constitutional 7 rights. Se ePo rtu on do v . A ga rd, 529 U.S. 6 1 , 6 7 -6 8 (2000). In Portuondo , the Supreme Court 8 deter

mined that it did not

unlawfully

burden a defe ndant’s Six th Amendment rights to be prese nt and 9 to c on front th e wi tne sse s a g a ins t him fo r a pros e c uto r t o c omm e nt, in s umm atio n, on theop po rt

un ity 10 that the exercise of these rights provided the def endant to t ai l o r h i s testimony in light of the 11 g overnme nt’s case . The Court noted that “ it is natura l a nd irresistible for a jury , in e valuatingthe 12 relative cre dibility of a defe ndant who testifies last, to ha ve in mind and we igh in the balancethe fa ct 13 that he hea

rd the testimony

of all those who prece ded him.” Id. Prohibiti ngthe prosecutor from 14 makin gthi s p oint, a s th e ma jority wo uld do in thi s c a se , is un jus tif ia ble : to do so “ e ith e r p ro hib its 15 inv iti ngthejur

y to d o wha t the j ur

y is p e rf e c tly e nti tle d to do ; or

it re qu ir e s th e jur

y to d o what is 16 prac tically

impossibl e.” Id. at 68. 1 7 T h i s c a s e i s thu s s u b s t ant i a l l y le

ss difficult than United States v. Mik os , 5 39 F .3 d 7 06 (7 th 18 Cir. 2008), in which the Seve nth Circuit deter mined that the gover

nment was e ntitled to rely on the 19 defe ndant’s supposedly remorse -free de meanor

in court – in essenc e, on his decision t o g o to trial 20 and remain silent there – to prove a n aggravating fa c tor : that the de fend ant ha d no re mor sefo r h is 21 c ri me s. Th e ma

jority c ri tic ize s Mikos , b ut t

heSe ve nth

Circ uit ’s ana lysis is whol ly a pt t o e xpla in 22 why

there mark s at is su ehe rewe reprop e r:9 1 [The defe ndant] fought e very charg e ever

y step of the wa

y . That wa s his right, but 2 in t

heproc e ss h e sh ow e d n o re mor se , co mpa re d with a pe rs on wh o c on c e de d s ome 3 culpability . . . I f it is proper to take confe ssions, guilty pleas, and vows to improve 4 one’s life into account when decidingwhether a murde rer

should be put to death – 5 and it is unquestionably proper for a judge or j ury to do so, see W illiams v. Taylor , 6 529 U.S. 362, 120 S.C t. 1495, 146 L .Ed.2d 389 (2000) – then it must also be proper 7 for the prosecutor to remind the jury when noneof these e vents has occurre d. 8 9 Mikos , 539 F.3d at 718. 10 In truth, this case is quite akin to Un ite d S tates v . F e ll , 531 F.3d 197 (2d Cir. 2008), which 11 g oes larg ely

unaddre ssed by

the majority . The de fen dant in Fe ll introduced e videnceduringthe 12 penalty

phase of his c apital trial that he had offe red to ple ad guilty in e x chang e for a sentenc e of life 13 imprisonment without parole – evidenc e he said was re levant to establishingthat he had a ccepted 1 4 res p o n s ib il it

y f o r h is a c ti o n s . Se nten c e d

to d e ath , F e llc h a ll e n g e d th e g o v e r

nment’ s s umm ati on 15 comments to the eff ect that “ if [Fell] wanted to plead guilty , he could have pled guilty”: 1 6 L e t’ s mo v e o n to th e n e xt [m itig ati n g ] f a c to r : D o n a ld F e ll o f

f e r e d to plead 17 guilty

to kidnapping a

nd murder[] .

. . knowing that the law require s a sente nce of life 18 imp ri so nment w ith out th e po ssibil ity of re le a se and he ha s ma int a ine d that of fer t o 19 this day

. 20 L adies and g entlemen, the judge instructed you. You know the law. L i fe 21 imp ri so nment w ith out th e po ssibil ity of re le a seis t

hemin imum se ntenc ethat D on a ld 22 Fe ll fac es for kidnapping with death resulting. It’s the m inimum sentenc e. W hen he 23 offe red to makethat plea, heknew the e vidence ag ainst him wa s overwhelming.

. . . . 24

. . . . 25 L adi es an dg entlemen, wehad to try to convict him. I f he w anted to plea d 26 guilty , he could have pled gu ilty . We had a guilt phase in this case, ladie s and 27 g entlemen. We put on our case . We me t our burden. We proved it. And now we 28 arehe reto d e c idewh at is the jus t se ntenc e . Th e min imum se ntenc e ? Or thede ath 2 9 S e nt e n c e ? 30The prose cutor ha d also argued at the guilt phase in Fe ll that: 6 [D] efe nse counse l . . . told you in his opening state ment that Donald F ell acc epted re s p o n s i b i l i ty

fo r wh ath e d i d

. Butth at ’s n o tent i re l y tru e b ec au s e a s th e j u d ge tol d you on thefi rs t da

y of tria l D on a ld F e ll h a s p le a de d n ot guil ty . And be c a us e he plea ded not guilty

a jury must find whether or

not the Gover

nment can introduce e videncebeyond a re asonabledoubt to overcomethe pre sumption of inn oc e nc e that th e law p ro vid e s to Do na ld F e ll.

. . . . [D] efe nse counse l also said that Fe ll accepts responsibility for what he did. But he plea ded not guilty . And that’s why we’ re he re. . . . Fe ll , 531 F.3d at 220 n.13. 10 1 Trial Tr. at 50, Un ite d S tates v . F e ll , No. 01-12 (D . Vt. July 13, 2005). This Court deter mined that 2 the g overnme nt’s rema rks constituted a re asonableresponseto Fell’s evidencein miti g ation and that 3 “[n] o error occ urre d.” Id. at 221. 6 4 Both F ell and Wilson ex erc ised their constitutional right to go to trial. B oth therea fter sought 5 to persuadethe jury that they had ac cepte d responsibility , and that this was a fac tor in mitig ation that 6 the jury

should take into acc ount. Fe ll attempted to do so by showingthat he wa s willing to ac cept 7 punishment short of death, Wilson with hi s statement of c ontrition. The jury in eac h casecould have 8 considere d this evidenceand found it per suasive. At the same time, how ever , the g overnme nt was 9 entitled to point to rea sons that jurors shoul d not take this course . Cf. Portuondo , 529 U.S. at 68; 10 United States v. Robinson , 485 U.S. 25, 32 (1988) (notingthat “whe re . . . [a] prosecutor’ s ref ere nce 11 to t

he defe nd ant’ s o pp or

tun ity to t e sti fy is a fair re sp on seto a

c la im m a deby

de fend ant o r h is 12 c ouns e l,”theF if

th Ame ndme nt i s n ot v iol ate d) . It is thu s who lly ir re le va nt t hat Fe ll is disti nct from 13 this case, a s Wil son and the majority contend, because Wil son, unlike Fe ll, introduced no evide nce 14 that he had of

fered to plead. ( Maj. Op. at 70 n.20.)11 1 In Fe ll’s case , the prosecutor leg itimately argued that an offe r to ple ad guilty in exchang e for 2 the minimum penalty authorized for one ’s conduct doe s not demonstrate a cceptanceof 3 responsibility

. Fe ll , 5 31 F .3 d at 22 1; see also Br . of Appe llant at 79, Fe ll , 531 F.3d 197 (notingthat 4 theple a

of fer w a s introd

uc e d in an atte mpt

to d e mon stratea c c epta

nc e of res po nsibi lity

a s a 5 mit ig atin gfa c tor). It w a s in tha t c onte xt that th e pros e c uto r s tate d, “ weha d to tr y to c onvic t him. 6 I f he w anted to plea d guilty , he could have pled guilty . We had a guilt phase in this case, ladie s and 7 g entlemen. We put on our c ase. We met our burden.” In Wil son’s case , the g overnme nt argued that 8 a stateme nt of contrition that came at the last minute a nd was uncorroborate d by any other e vidence 9 wa s n ot w or

thy of be lie f. It wa s in that conte xt that the pros e c uto r sa id, “ [Wilso n] ha s an a bs olute 10 ri ght to g o to trial, put the g ov e rnme nt to its burde n of proo f, to prov e he c omm itt e d th e sec ri me s, 1 1 but h e c an ’ t h av e it b o th w ay s . ” In n e it h e r c a s e d id th e p r o s e c uti o n urg e th e ju r y to s e ntence the 12 de fend ant t o d e ath b ecausehewe nt t o tria l and in n e ith e r c a sewe rethede fend ant’ s Sixth 13 Amendment rights violated. Therewas no e rror here , much less er

ror requiringvacatur. 14 III . W ils on’ s F ift h Am e ndm e ntCl aim 15 Although Wilson’s Fifth Amendment argument is marg inally more substantial, it is doubtful 16 any

error occurre d and certain that if there was error, it was harmless. The issue he re c oncer ns the 1 7 F i f

thAm e n dm e ntc o n s e qu e n c e s o f W i l s o n ’ s e l e c t i o nt o o f

f e r h i s s t at e m e nto f

r e m o r s e b utn o tto 18 open himself up for cross e x amination with reg ard to it. The majority first conc ludes that the 19 introduction of such a statement ef

fec ts at least “a limit ed Fifth Amendment waiver that a llows the 20 prosec ution to argue for an adver se inference from a defe ndant’s failure to testify as to that to which 21 heha s a llo c ute d. ” (M a j. Op . at 79 (e mph a sis omi tte d) .) Th e ma jority ne xt de te rm ine s th at Carter 22 v. Kentuck

y , 450 U.S. 288 (1981), nevertheless e nti t l es th e d efendant in such a situation to a12 1 modified adve rse infe renc e instruction direc ted at matter s other than those to whic h the def endant 2 allocuted, a

nd that the failure to g ive such a n instruction, coupled in this case with the prose cutor’s 3 use of three errant words (esse ntially a wrongchoiceof ver b tense) in refe rringto the defe ndant’s 4 decision not to take the stand, require s vacatur. W i th re gard to the second dete rmination, I 5 respe ctfully

disagree . 6 I , like the majority , “start with first princ iples.” (Ma j. Op. at 76.) Wilson was entitled to the 7 protec tions of the Fifth Ame ndment duringthe penalty phase of his trial, me aning that he had a right 8 no t to te sti fy and that the g ov e rnme nt co uld no t use his sil e nc e a g a ins t hi m, at le a st “ wi th re g ard to 9 fac tual deter

minations respec ting the c ircumstan ce s an d details of the c rime.” Mitchell v. U nited 10 States , 5 26 U. S. 33 0, 32 8 ( 19 99 ). Th e Sup re meCourt ha s n ot ye t de te rm ine d whe ther s ile nc e in t his 11 setting properly

“bea rs upon the dete rmination of a lac k of re morse.” Id

. at 330. Be causeWil son 12 did not remain silent at his sentencingproce eding , this open question need not be a nswere d here

. 13 Iagreewith the majority that Wil son’s decision t o speak to the jury constituted a waiver of 1 4 his Fifth Amen dment rights w it hr e g ar d to th e s u b je c t m att e r

o f h is a ll o c uti o n , an d

th u s th at the 1 5 pro s e c uti o n w a s p e r mi tt e d , a s th e ma

jo rit y s tate s , “ to argu e f

o r an a dv e r s e in f

e r e n c e from [the] 16 defe ndant’s failure to te sti fy as to that to which he . . . allocuted .” (M a j. Op

. at 79 .) G iv en this 17 deter

mination, the majority

rightly finds wholly

leg itimate the g overnme nt’ s a rg u ment in summ ation 18 that if W i l s o n h ad t aken thestand, the sincerity of his allocution could havebeen be tter asse ssed. 19 Indeed, be causeit accepts that W ilson waived his Fifth Ame ndment rights with reg ard t o the 20 a llo c uti on , th e ma jority fi nd s F if th Ame ndme nt f

a ult tod ay wi th b ut three words in the g overnme nt’s 21 summation:13 1 Iwant to talk to you a m i nut e about the stateme nt itself. You may have 2 noticed that whe n he madethat statement, Ronell Wil son wasn’t sitting up the re on 3 the witness stand under oath, subject to cross-examination. He chose to do it from 4 there(indicating ). The pa th for that wi tness stand has neve r been blocked f or Mr. 5 Wils on , h a d th at op po rt un ity , to o. He c ho se , like many oth e r thing s in thi s c a se , to 6 d o i tth atw ay. 7 You may ask yourselves well, what more would we have if he took that stand, 8 wh at w ou ld b e the dif ferenc e ? Wel l, w e might h avebe e n a bleto a sk him wh e n did 9 you

c omeup wi th t

his ? Ho w did you c ome up wi th i t? W hy did you c omeup wi th 10 it? Why

now? Wh y n o w o f al l t i m es are you sorry? We might be a ble to test the 11 c re dib ili ty of thestate me nt, theve ra c ity of it. Yo u mi ght h aveinf

or matio n th at c ou ld 12 help you decide if you need to be lieve it. Ronell Wilson didn’t want that. He wa nted 13 to say

it from there , take my

word for it now after

all this, now I ’m sorry

. 14 15 Tr. 1638. 16 The subtlety of this error

cannot go unremarke d. For it is i ndeed thedifferencebetween “wa s 17 not” and “ has neve r bee n” on which themajority relies. B y

the majority ’s own holdingtoday , the 18 g overnme nt was fully entitled to argue that “[ t] he path [to] that witness stand was not blocked,”and 19 that Wils on ’s de c isi on no t to takethesta

nd to t e stify to h is re mor sewa s a

re a so n to do ub t it s 20 cre dibility . The majority contends, somewhat tepidly , that tense makes a difference , and that a juror 21 he ari ng “ ha s ne ve r be e n” might thi nk “ that ‘n e ve r’ is a pe ri od that e xten ds ba c k to theguil t ph a se 22

. . . and e xten ds a s we ll to the fu ll pe na lty ph a se .”(M a

j. O p. at 80 .) B ut t

heg ov e rnme nt made no 23 argument

that the defe ndant’s decision not to take the stand was rele vant to any thing other

than the 24 cre dibility

of his allocution. So the only possible error

must boil down to threeerrant words. 25 This is a slim reed indee d on which to hanga constituti onal infirmity meritingthe vac atur 26 of five c apital sentenc es re ndere d by jurors who, be twee n th e trial and thepenalty phase, de voted 27 ov e r t

hr e e we e ks to h e ari ngte sti mony in t his c a se . T hema

jority kn ow s a s m uch

. Inde e d, it 28 conce des that the prosecution “attempted conscientiously to focus solely on the subject matter

of the 29 allocution.” (Ma j. Op. at 80.) It states only – and ag ain tepidly

– that “[e]ven so, there is something14 1 expansive” about saying “has neve r bee n.” ( Id. ) It th e n hur

ri e dly drop s th e su

bje c t, m ov ingon

to 2 discuss the district court’s f ailure to g ive a modified Ca rte r i n s truction – the re al hea rt of the 3 problem. 4 Car t erv. K en tucky he ld t hat a tria l c ourt

ha s a c on sti tution a l ob lig atio n, up on re qu e st, to 5 instruct a trial jury that no adver se inferences a re to bedrawn from a de fenda nt’s elec tion not to t ake 6 thesta

nd – in e ssenc e , th at it

may no t tre at th e de fend ant’ s si le nc e a s substantiv e e vid e nc e of his 7 guilt. Carter , 4 50 U. S. at 30 5; see also Robinson , 485 U.S. at 32 (notingthat the Fif th Amendment 8 prohibits the judge and prosec utor from sug g esting to the jury that silence may be tre ated a s evidenc e 9 of guilt). The Supreme Court ha s never expressly held that this obligation extends to the sentenc ing 10 phase of

a criminal procee ding, muc h less that it app l i es in a situation in which the defendant has 11 waived his F ifth Amendment rights, at least with reg ard to the subjec t matter of an allocution he has 12 introduced. I

will assume for now, with the m ajority , that Wil son was entitl ed to an instruction that 1 3 the jur

y s h o u l d n o tdr awany

a dv e r s e i n f

e r e n c e f r o mh i s d e c i s i o nt o r e m a i ns i l e ntw i thr e g ar d to 14 matte rs oth e r tha

n his al le g e d fe e lin g s of re mor se . And Iwi ll p a ss o ve r, a s th e ma jority a lso do e s, 15 that Wil son never asked f or such a “modified adver se inference” instruction – the only instruction 16 that could havebeen a ppropriatein the context of this case – and that it is not our normal prac tice 17 in such circ umstances to af ford relief. See U

nited States v. De

sinor , 5 2 5 F. 3 d193, 198 (2d Cir. 18 2007) (notingthat judgme nt will not be rever sed base d upon the denial of a requeste d instruction 19 wh e retheins tructi on re qu e ste d w a s n ot l e g a lly c or re c t or wa s n ot s up po rt e d b y

an a de qu ateba sis 20 in the rec ord). 2 1 T h e ma

jo rit y c o n c lu d e s an d I a gr e e th at h ar ml e s s e r r o r an a lys is is a

p p r o p riatein

th e c o nte xt 22 of Carter

error. Se e, e .g., Un ite d S tates v . S oto , 519 F.3d 927, 930- 31 (9th Cir. 2008) (holdingthatInd e e d, a s Judg e Ea ste rb ro ok no te d, “ [i]nf

or min gthejuror s a

bo ut [thede fend ant’ s d e c isi on to 7 remain silent] may

remind them of a

n inference the y

otherwise w ould not have dra wn, so a defe ndant might opposethe g iving of such an instruc tion.” Hunter , 934 F.2d at 865.

15 1 failureto give Carter ins tr uc tio n is su

bje c t to ha

rm le ss error

analysis ); United States v. Brand, 80 2 F .3 d 5 60 , 5 68 (1 st C ir . 1 99 6) (s ame ); Hu nte r v . Cl ar k, 934 F.2d 856, 860 ( 7th Cir. 1991) (en ba nc) 3 (s ame ); United States v. Ramire z , 810 F.2d 1338, 1344 ( 5th Cir. 1987) (same) . It is here, how ever , 4 that we ag ain part ways. Any error that resulted from the g overnme nt’s errant three wo rd s (“ h as 5 never

been” ) and the district court’s failure to g ive a modified Carter instruction (one that was neve r 6 reques t ed ) was harmless beyond a re asonabledoubt. See U nited States v. Hasting, 461 U.S. 499, 7 50 8- 09 (1 983) (”[ I ] t is theduty of a re viewi ngc ourt

to c on sid e r t

hetria l r e c ord a s a

wh oleand

to 8 igno ree rror s th at areha rm le ss” ); se eals o Satterwhite v. Texas , 48 6 U. S. 24 9, 25 6 (1 98 8)

. Th is c a se 9 thus falls well short of presenting any circ umstances that war rant vacatur of the jury ’s work, e ven 10 assuming that error occur red. 11 First, as alrea dy noted, the g overnme nt never argued that Wil son’s decision not to takethe 12 sta

nd sh ou ld b e us e d b y

the jur y to make fa c tual de te rm inatio ns fa vo ra bleto t heg ov e rnme nt w ith 13 reg ard to a

ny thing e x cept f

or Wilson’s allocution – the matter that the majority concl u d es was 14 properly the subject of an a dverseinference. This is si gnificant be cause Carter itself rec ognized that 15 the instruction it requires is prophy lactic. Carter , 4 50 U.S. at 30 5. In f a c t, i t is a

prop hyla c tic 16 ins tr

uc tio n “ to p ro te c t the prop hyla c tic ru le that thepros e c uto r c ann ot a sk a jur y to d ra w a n a dv e rs e 17 inference f

rom the def

endant’ s failur e t o testify which in turn protec ts the defe ndant’s ac tual 18 constitutional right to re fuse to testify .” Hunter , 93 4 F. 2 d at 8 6 4

. It is thus “at least two steps 19 remove d from the c onstitut ional privileg e,” a nd “[n] either g iving nor

withholding the instruction has 20 a certain, powe rful, ef fec t on the jury ’s work.” Id . at 865-66 (E asterbrook, J. , concur ring ). The 716 1 Supreme Court in Carter de term ine d th at r e qu iringsu c h an ins tr uc tio n, up on

re qu e st, gua

rd s a g a ins t 2 the dang er that an unguided jury might use a

d ef endant’s silence a s evidenc e of his guilt. Carter , 3 450 U.S. at 301. The failure to g ive s uch an instruction, howeve r, does not mean that this injury has 4 occur

red. Even assuming, the n, that a modified Carter instruction was appropriate he re, theabsenc e 5 of any

direc t a rgument from the g overnme nt that Wi lson’s silence beused in an unlaw ful manner 6 weighs strong ly

ag ainst the conc lusion that the failure to g ive such a n instruction was har

mful. 7 The jury ’s own dete rminations, moreover , strong ly sug g est that it did not draw any inference 8 adver se to Wil son with reg ard to matters other than his state ment of remorse . As previously noted, 9 the jury

unanimously

found that Wilson had established thirteen of the eighteen mitigating f actor s 10 he put forw ard a

nd, indeed, it identified a

n additional mitigatingfac tor not e ven cited by the def ense. 11 Th e jur

y thu s broa dly a c c epte d Wils on ’s e vid e nc e of a trou ble d c hil dh oo d and dif

fi cul t t im e in 12 school – that he ha d grown up in pover ty and deprivation, for instance , that h i s pare nts were 13 su

bs tanc e a bu se rs , th at hewa s e xpos e d to dr ug s a nd vio le nc e a s a

c hil d, tha

t hepe rf or me d w e ll 14 below gradelevel in school and ha d a history of depression. Eleven juror s found, in addition, that 15 Wils on

ha d b e e n expo se d to an uns a fe and un sa nit ary ho mee nv ironme nt, and

thre e fo un d th at hi s 16 sc or e s o n s tand ardize d te sts we rebel ow aver ag e . Ind e e d, thejur y un anim ou sly

re je c te d o nly

his 17 c la ims that he a c c epte d re sp on sib ili ty and fe lt re mor se(t

hetw o mi tig ator s about which he allocuted 18 and that were properly the subject of an adverseinference ) and that he had a djusted well to fede ral 19 prison – a fina l claim in miti g ati o n th at was simply not cre dible, in light of the g overnme nt’s 20 e vid e nc e of

future da ng e ro us ne ss. 21 T h e evide nce e stablishing the g overnme nt’s ag gravating f actor s, moreover , was 22 overwhelming. The district cour t itself said, in se ntencing Wil son, that “Ronell Wil son’s guilt hasThe g overnme nt relied on its evidenc e at tria l to demonstrate that Wilson commi tted the 8 murders f or pec uniary

g ain, that he murde red morethan one pe rson in a sing le criminal episode, that he fa ced c ontemporane ous convictions for other serious ac ts of violence, a nd that he murde re d la

w e nf orc e me nt o ff

ic e rs duri ngthec ou

rs e of the ir of fi c ia l dutie s. 17 1 been proved not mere ly beyond a rea sonable doubt, but beyond all doubt.” Tra nscript of Sentenc ing 2 Impositi on, Mar. 29, 2007 (“Ma r. 29 2007 Tr.”) , at 29. Indeed, theevidenc e pre sented at trial proved 3 four of

the six ag gravating f

actor s before the penalty

phase e ven beg an. The picturethis evidence 8 4 painted, more over, w as itself deva stating to Wilson’s posit ion th at a d ea thsentenc e could not be 5 justified. 6 Thus, the trial evidence showed that bef ore the se murder s took place, Wilson discussed the 7 possibili ty

with his co nfede rate s that the man he intende d to rob, Dete ctive Ne morin, might be a 8 police off

icer , and that Wilson m ight have to shoot him. On the day of the crimes, as he set his plan 9 in motion, W ilson expresse d concern that he w as beingfollowed, a nd that therewer e undercover 10 police vehic les in the vicinity . Minutes later, Wilson climbed into the back se at of the unde rcove r 11 officers’ c ar, pulled out the .44 caliber revolve r he was c arr ying, a nd shot without warningDetec tive 12 Andre ws, who had a ccompa nied Nemorin to meet with Wi lson that day , in th e b ack of the hea d. 1 3 Wil son th e ns h o t N e mo rin , a g a in in th e h e a d , a s th e d e te c ti v e p le a d e d f o r h is li f e . At W il s o n ’s 14 direc tion, W ilson an d h isc o n f e d era te , J essie Jacobus, searched thebodies, looking f or money , before 15 dumping them in the stre et and driving o ff in the undercove r off icer s’ ca r. When J acobus a sked 16 Wil son why he had killed the m en, W ilson said simply , “I don’t g ive a f

uck about nobody .” Tr. 378. 17 The jury

finally heard evidenc e that at the time of his arre st, two day s after th e ex ec ut i ons of 18 Detec tives Andrew s and Nemorin, Wil son, whose nickna me is “Rated R,” w as ca

rry ing rap ly rics 19 heha d wri tte n th at c e lebrate d v iol e nc e and that c ould h avebe e n inte rp re te d to re fer t o th e c ri me s: 20 Come teast R ated U better have dat vest and Dat Golock/leavea 45 slog s in da bac k18 1 o f ya h e a d c a u s e u c a u s e I ’ m g e ti n d at B r e a d I a in ’ t g o in s to p to Im d e a d /When I 2 g etin dat money / and when y

say Rated don’t forg et da “ R.” 3 4 Gov’t Ex. 15.01. 5 The district cour t stated i n p ronouncingsentenc e that “Wilson’s allocution was not 6 convincing .” Mar . 29, 2007 Tr. at 33. It must have s ee m ed we ak, in l ight of the cold-bloode d 7 characte r of Wil son’s crimes, his beha vior there afte r, as we ll as his many additional acts of violenc e, 8 both beforeand af ter the murders of the detectives. During the penalty phase, the jury lear ned from 9 threeof his victims that W ilson, as a young teenag er, had repe atedly assaulted other children – in one 10 case , attackinga 13-year old on a city

bus and bre akinghis jaw in the courseof robbinghim. There 11 was e videnceof a f ight in Times Square with a man Wil son had attempted to e x tort when both we re 1 2 p ri s o ni nm at es –

a f i ghti nwh i chW i l s o ns l as h edth e m ani nth e f ac e i n fr o nt o f acr o wd , l eav i n g a 13 wo un d th at r e qu ire d 3 00 sti tches to c los e . A dditi on a l e vid e nc e we nt t o v iol e nc e in cus tod y – to 14 assaults on corrections off icer s, to fist fights with other inm ates. There was e videncethat Wil son 15 believed hedeser ved “O G status” within the B loods – the highe st status, reserve d for those who have 16 committed the mo s t acts of violenc e on behalf of the g ang . Therewas e videncethat Wil son used 17 his positi on in the Bloods to incite other inmates to commit v i o l en ce. The jury found beyond a 18 re a so nab le do ub t th at Wils on repr e se nte d a

c ontin uin gda ng e r t o o thers , a

nd that hewa s li ke ly

to 19 c omm it a c ts o f v iol e nc e a g a in. Th e c ourt at se ntenc ingstate d it s c on c lus ion that Wils on

“ is c a pa ble 20 of committing e x treme a cts of viol ence without war ning or provocation,” Mar. 29, 2007 Tr . at 35, 21 and it ch ar ac t erized the proof in support of the jury ’s futuredang erousne ss finding a s 22 “over

whelming ,” id. at 34. 23 So, too , w a s th e e vid e nc e tha t Wilson ’s c ri me s re su lte d in loss to thevic tim s, the ir fa mil ie s,19 1 and to others. Thedistrict court obser ved in pronounc ing se ntence : 2 Those of us when we heard the Detectives’ family members testify will never f org et 3 Christian Andrews, D etec tive Andre ws’ older son, rec ounting his daily chess g ames 4 wi th his father, or the ir annua l famil y trips to Un ivers a l Studi os in F lorida . N or wi ll 5 we e ver f

org et Marie -Jean Nemorin, Detec tive Nemorin’s sister, explaining how she 6 g avehe r b a by broth e r t henic kn ameTi c ho u, wh ic h me ans littlesw e e the art [,] or Ros e 7 Nemorin, De tective Nem o ri n’s widow, desc ribinghow their thre e childre n now 8 c e lebrateF ather’ s D ay in a c e me te ry wh e rethey

hu ga c old wal l in ste a d o f t

he ir 9 fathe r. 10 11 May

29, 2007 Tr. at 31-32. The judge further observed that “[w]hen W ilson murdered D etec tives 12 Andre ws and Ne morin, he took two police officers from this city , two fathe rs from their children, 13 two husbands from their wives, two brother s from their sibling s, and two sons from their pa rents.” 14 Id. at3 2

. T h e j ur y f o un d b e yo n d a r e a s o n a b l e d o u b tth atW i l s o n ’ s c ri m e s h a d c a u s e d l o s s , i n j ur y, 15 and

ha rm . 16 Ihave my doubts whether Carter v. Kentucky ’s prophylactic r ule prope rly

appli es in a 17 sentenc ing procee ding in whic h the defe ndant has chosen not to remain silent, but instea d to speak. 18 Be causethe obligation to give a Carter ins tr uc tio n arise s only “ up on re qu e st, ” I have fu rt he r d ou bts 19 that it

e ve r a ro sein t his c a se , g iven th at th e ins tr uc tio n a c tually

re qu e ste d b y

thede fend ant w ou ld 20 have c overe d matters about whic h the def endant had waived his F ifth Amendment rights. That said, 21 Ihaveno do ub t a bo ut t he ha rm le ssn e ss of thea lle g e d F if th Ame ndme nt error

on wh ic h th e ma

jority 22 relies. I

concludewithout hesitation th at n either theprosec utor’s threeerrant words ( “has ne ver 23 been” ) nor the district c ourt’s failure to g ive the modified Carter i n s tru ct ion that was neve r 24 reque sted, influence d this jury ’s dec ision to any degree . 25 The SupremeCourt has said that the seve rity of a de ath sentenc e “ma ndates c are ful scrutiny 26 i n th e re v iew of a ny colora ble claim of e rror .” Zant v. Stephens , 462 U.S. at 885. Ch apman ,20 1 howeve r, re quires at lea st a “re asonablepossibili ty that the [error] comp l ained of might have 2 contributed to the [result]” beforean er ror wa rra nts rever sal. Cha

pm an v . Ca lif

or nia , 386 U.S. 18, 3 2 3 (1 9 6 7 ) ( qu o t i n g Fahy v . Connecticut , 3 7 5 U.S . 85, 86-87 (1963) (internal quotation marks 4 omitted). “[N]ot ever y imperfe ction in the deliberative proc ess is sufficient, e ven in a c apital ca se,” 5 to set a judgment aside. Zant , 462 U.S. at 885. Indeed, if this were not the case , Congress’s dec ision 6 in the Fe deral Death Penalty Act to g ive to juries the delica te and diff

icult decision as to when a 7 capital se ntenceis justi fied would bewholly undone. 8 The jury

hereheard evidenc e over the course of eighteen day s. This evidenc e cast a strong 9 light o n th e d e f

e n d ant : o n h i s c ri m e s , h i s c h ar a c t e r , th e h ar m s h e h a s c a

u s e d , andhis c a se in 10 mit ig atio n. Th e dis tric t c ourt no te d, in s e ntenc ingWils on , th at th e jur y he re“ [wa s] amon gthemos t 11 attentive and se rious [i t] had ever seen,” and that the jurors “listened c are fully to ever y argument and 12 the witness t estimony , and examined eve ry pieceof evide nce introduc ed in this case.”Mar. 29, 2007 13 Tr. at 44. 14 I conclude that if there was Fifth Amendment error here – and I find it doubtful – such error 15 ha d n o im

pa c t on thejur y tha t se ntenc e d Wil so n. Withre g ard to t heSixth Ame ndme nt, there is 16 sim

ply no e rror to re view. Ha

vin g re a c he d the se c on c lus ion s, I be lie vethede ath s e ntenc e s sh ou ld 17 be af

firmed. I respe ctfully dissent f

rom Parts VI , VI I , and VI I I of the majority ’s opinion and from 18 the judgment vacating the de ath sentenc es, while joiningin the rest of themajority ’s opinion.