F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

I O U R I M I K H E L , Defendant-Appellant

. No. 07-99008

D.C. No. CR-02-00220-DT-1

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

J U R I J U S K A D A M O V

A S , Defendant-Appellant

. No. 07-99009

D.C. No. CR-02-00220-DT-2

OPI NI ON

A ppeal from the United States District Court for the Central District of California Dickran M. Tevriz ian, District J udg e, Presiding

Arg ued and Submitted J anuary 10, 2018 Pasadena, California

F iled May

9, 2018U N I T E D S T A T E S V

. M I K H E L 2

B efore: J ay

S. B y bee, Milan D. Smith, J r., and Michelle T. F riedland, Circuit J udg es.

Opinion by

J udg e B y bee

SUMMARY *

Crim inal Law / F ederal Death P e nalty

The panel affirmed I ouri Mikhel’s and J urijus Kadamovas’s co n v i ctions and d eath sentences for several federal crimes, including multiple c ounts of hostag e taking resulting in death under the Hostag e Taking Act.

Guilt Phase

T h e p anel reaffirmed that the Hostag e Taking A ct doe s

n o t require proof of a n ex us to international terrorism. The panel held that the Act was a valid ex ercise o f Cong ress’s
power under the Necessary and Proper Clause toge ther with the Treaty Power, and rejected as unavailing the defendants’ independent Tenth A mendment challeng e. Th e p a n e l r e j e c ted

as meritless the defendants’ arg ument tha t e ven if the A ct does not itself e x ceed Cong ress’s power, the subsequent amendment authoriz i n g the d eath penalty ex ceeded Cong r ess’s power.

The panel held that the defendants’ motion for recusal o f the district judg e was untimely and fails on its merits.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M I K H E L 3

Affirming the district court’s rejection of the defendants’ Batson challeng e to the g overnment’s peremptory strike of a juror, t h e panel held that the d efendants did n ot meet their burden of demonstrating r a ce was a substantial motivating factor.

The panel held that the district court committed no error in empaneling an anony

mous jury

.

The panel held that the district court did not v i o late the defendants’ Six th Amendment rig ht to a public trial b y

e x c luding from the courtroom a person who was observ e d behaving in an intimidating manner.

T he p anel held that the district court did not err in u s i n g this circuit’s model reasonable-doubt jury instruction in the
g uilt phase.

The panel ex plained that the purpose of 18 U.S.C. § 3005, under which a capital defendant has the rig ht to two counsel, is not undermined by one attorney ’ s de minimis absence from trial, and that any error stemming from the three-day absence from trial of one of Mikhel’s attor n ey s was harmless. The panel held that the district c o urt ’s denial of Kadamovas’s motions f or a continuance to allow one of his attorney s more time to prepare did not violate § 3005, and that any technical error would be harmless.

The panel hel d t hat the district court did not a buse its discretio n i n ex cluding as irrelevant testimony of a person who, without repercussion, committed perjury as a cooperating w itness in a different case.U N I T E D S T A T E S V

. M I K H E L 4

The panel held that the district court did not p lainly err b y failing to hold a c ompetency hearing sua sponte at the outset of trial, at the end of the g uilt phase, and during the penalty phase.

The panel rejected Kadamovas’s claim that under Bruton

v. U nited States Mikhel’s testimony and refusal t o b e crosse x a m i n e d v i o l a t e d K a d a m o v a s ’s S i x t h Amendm e n t Confrontation Clause rig hts. The panel wrote tha t b ecause Mikhel’s testimony did not facially incriminate K adamovas, the testimony did not trig g e r the Bruton rule, and it must be assumed that the jury followed the district court’s instruction
to disreg ard Mikhel’s testimony

. The panel c o n cluded that
any error in this reg ard was harmless.

The panel held that the distri c t court did not a buse its discretion in deny ing Kadamovas’s m o tions for complete

severance of his case from Mikhel’s or in deny ing his requests for sequential penalty phases.

R e jecting Kadamovas’s evidentiary challeng es to h i s conviction f

or conspiracy to esc ape, the panel held ( 1) that the district c ourt did not err under F ed. R. Evid. 608(b) or the Confrontation Clause in limiting the defense’s c rossex a mination o f a c ooperating witness; and (2) that the

erroneous a dmission of a letter that was inadmissible hearsay was harmless.

The panel h eld that the record supports the district court’s determination that there was no pattern o f Kadamovas being denied computer access to review discovery mate r i a l s a s contemplated by

a stipulation with the g overnment.U N I T E D S T A T E S V

. M I K H E L 5

Penalty Phase

The panel held that the d istrict court did not p lainly err b y using this circuit’s model reasonable-doubt jury instruction in the penalty

phase.

The p a nel rejecte d the d efendants’ contention that the Eig hth Amendment a

nd the F e deral Death Pen a l t y A ct only permit evidence of a victim’ s personal characteristics in penalty pr o ceeding s to the ex tent they influenced, and thus reveal something

about, the relationship the victim had with hi s o r h er family

. The panel held that the district court did
not commit plain error in failing to ex c lude ev i d ence of a victim’s relig ion in the contex t o f h i s commitment to his family and celebration of life.

The panel rejected some of the defendants’ contentions a s to the propriety of the g overnment’s remarks in penalty -phase closing arg u ments, but ag r eed with the d e f endants that the
go v e rnment should not have compared prison life to the victims’ deaths. On p lain error review, the panel held that the latter statements did not so affect the jury ’s ability to consider the totality o f the evidence fairly that it tainted the verdict a nd deprived the defendants of a fair trial.

Assuming wi t h out deciding that there was error in the district c ourt’s jury instruction and verdict f orm on t h e nonstatutory ag g ravating factor o f f uture dang erousnes, the panel held that any

error was harmless.

The panel r ejected the defendants’ c laim that the
g overnment commented on their failure to testify a t trial in violation of their F ifth A m e n d ment r ig hts under Griffin v

. California

.U N I T E D S T A T E S V

. M I K H E L 6

Reg arding Kadamovas’s contention that the g overnment, in questioning a witn e ss, appealed to ethnic p r e judice in violation of Kadamovas’s F ifth Amendment rig h t t o a fair trial, the panel held that there was no plain error.

T h e p a nel held that the district court did not abuse its discretion in ex c l u d ing an interview with Mikhel’s ex

g irlfriend, offered as mitig ating evidence. The p anel h eld that the district court did n ot abuse its d iscretion in ex cluding

a portion of an interview with Mikhel’s cousin whose plea for
mercy w as essentially an opinion about what t h e jury ’s verdict should be.

The panel held that the jury could h ave reasonably relied

on the g overnment’s g uilt-phase e vidence to conclude that Kadamovas presented a risk of future dang erousness bey ond a reasonable doubt.

The panel held that the district c ourt d i d not a buse its discretion in admitting an antique dag ge r with swastikas on the handle, and did n o t commit plain error by admitt i n g testimony that Kadamovas referred to the v i c t i m as a “fat J ew.”

The panel rejected Kadmovas’s arg um e n t that the jury ’s failure to find the mitig ating f ac t o r that he had no prior criminal record demonstrates that it disreg arded its statutory oblig ation to consider mitig atin g fa ctors and therefore

r e ndered an arbitrary v erdict. The panel ex plained that t h e jury was not required to find any miti ga t ing factor, and h eld that the jury ’s failure to find that Kadamovas had no prior criminal record was reasonable.U N I T E D S T A T E S V

. M I K H E L 7

The panel held that the district c ourt di d n ot a buse its d iscretion in rejecting Kadamovas’s proffer of L ithuania ’s abolition of the death penalty as a mitig ating factor.

COUNSEL

B enjamin L

. Coleman ( arg ued), Coleman & B alog h L L P, San Dieg o, California; B arbara E. O’Connor, O’Connor & Kirby P.C., B urling ton, Vermont; Marg aret Hills & O ’D o nnell, F rankfort, Kentucky ; for Defendant-Appellant J urijus Kadamovas.

Michael Tanaka (arg

ued), Deputy F ederal Public Defender; Hilary Potashner, F ederal Public D e f e nder; Office of the F ederal Public Defender, L o s Ang eles, Cali fornia; Sean J

. B olser, F ederal Capital Appellate Resource Counsel Project, F ederal Defenders of New York, B rookly n, New York; Statia Peakheart, L o s Ang eles, California; for Defendant-Appellant I ouri Mikhel.

Michael A. B rown (arg ued), Assistant Un i t ed States Attorney ; L awrence S. Middleton, Chief, Criminal D ivision; Sandra R. B r own, United States Atto rn e y ; United States Attorney ’s Office, L os Ang eles, California; for PlaintiffAppellee.

Alex e y V. Tarasov, Houston, Tex as, for Amicus Curiae Government of the Russian F ederation.U N I T E D S T A T E S V

. M I K H E L 8

OP INION

I . B ACKGROUND.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. The Hostage-Taking Conspiracy

. . . . . . . . . . . . . . 11

1. Death of Mey

er Muscatel.

. . . . . . . . . . . . . . . . 12

2. Death of Rita Pekler.

. . . . . . . . . . . . . . . . . . . . 13

3. Death of Alex ander Umansky

. . . . . . . . . . . . . 14

4. Deaths of Nick Kharabadz e and Georg e Safiev

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5. The F B I ’s investig ation.

. . . . . . . . . . . . . . . . . 17

B

. The Escape Conspiracy and M ikhel’s Second Escape Attempt

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Procedural History

. . . . . . . . . . . . . . . . . . . . . . . . 20

I I

. ANAL YSI S.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. The Guilt Phase

. . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. The Hostag e Taking Act.

. . . . . . . . . . . . . . . . 23

2. Defendants’ recusal motion.

. . . . . . . . . . . . . . 31

3. Batson c halleng e

. . . . . . . . . . . . . . . . . . . . . . . 37

4. The use of an anony

mous jury

. . . . . . . . . . . . . 43U N I T E D S T A T E S V

. M I K H E L 9

5. Rig ht to a public trial.

. . . . . . . . . . . . . . . . . . . 46

6. “Reasonable doubt” instruction as to g u ilt.

. . . 48

7. Rig ht to two counsel under 18 U.S.C. § 3005

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

8. Ex cluded testimony r eg arding cooperating witnesses.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

9. Mikhel’s competency

. . . . . . . . . . . . . . . . . . . . 54

10. Kadamovas’s Confrontation Clause claim.

. . . 68

11. Kadamovas’s severance motion.

. . . . . . . . . . . 75

12. Kadamovas’s conviction for conspiracy to escape

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

13. Kadamovas’s access to a computer.

. . . . . . . . 83

B

. The Penalty Phase

. . . . . . . . . . . . . . . . . . . . . . . . . 84

1. “Reasonable doubt” instruction as to penalty

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

2. Victim-impact evidence.

. . . . . . . . . . . . . . . . . 87

3. Misconduct in penalty -phase closing arg uments

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

4. I nstruction and verdict form on future dang erousness.

. . . . . . . . . . . . . . . . . . . . . . . . 96U N I T E D S T A T E S V

. M I K H E L 10

5. Griffin error.

. . . . . . . . . . . . . . . . . . . . . . . . . 104

6. Ex amination of Dr. Mark Cunning ham.

. . . . 106

7. Mikhel’s ex cluded mitig a tion evidence.

. . . . 108

8. Kadamovas’s future dang erousness.

. . . . . . . 111

9. Naz i and anti-Semitism evidence.

. . . . . . . . . 113

10. Kadamovas’s mitig ating factors.

. . . . . . . . . . 116

11. L ithuania’s abolition of the death penalty

. . . 117

I I I . CONCL USI ON.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 121U N I T E D S T A T E S V

. M I K H E L 11

B YB EE, Circuit J udg e:

Be tween late 2001 and e a rly 2002, defendants I o u r i Mikhel and J u rijus Kadamovas abducted, held hostage

, a nd killed five people, dump i n g e ach victim’s body in the New Melones Reservoir outside Yosemite National Park. After a five-month trial, a jury convicted them of several f e deral crimes, including multiple counts o f hostag e taking resulting in death under the H ostag e Taking Act, 18 U.S.C. § 1203. A s summariz e d below, the evidence that Mikhel and Kadamovas di d these thing s—and did them without concern for their victims’ suffering

—was detailed, comprehensive, and in a word, overwhelming

.

I n subsequent penalty

- phase procee d i n g s under the F ederal Death Penalty Act ( “F DPA”), 1 8 U.S.C. § 3591 et
seq. , the jury unanimously recommended that both d e f e n d ants be sentenced to d e a th. Defendants now c h a l leng e their convictions and d eath sentences on direct appeal to this court. After ex tensive briefing and arg ument f r om the parties, a

nd our own careful review, we affirm.

I

. B ACKGROUND

A. The Hostage-Taking Conspiracy

Defenda n t s are foreig n nationals under the Hostag e T a k i ng A ct: Mikhel is Russian, and Kadamovas i s L ithuanian. B oth lived in L os A ng eles, California, during the
events u nderlying this case. D efendants were ass isted at various times by coconspir a t o rs Petro Kry lov, Ainar Altmanis, Aleksejus Markovskis

, and Nataly a Solovy eva. Altmanis, Markovskis, and Solovy eva all pleaded g uilty a ndU N I T E D S T A T E S V

. M I K H E L 12

testified for the g overnment. Kry lov was tried and convicted in a separate trial.

1. Death of Mey

er Muscatel

I n October 2 001, Mikhel, Kadamovas, and Altmanis discussed and rehearsed a plan to kidnap local real

- e state develo p e r Mey er Muscatel. T he plan called for Mikhel to pose a s a bus i n essman interested in p urchasing real estate. To that end, Mikhel asked Muscatel to v iew a property with him. Muscatel ag reed and d rove with Mikhel to the property in question (actually Mikhel’s house), where Kadamovas a nd Altmanis were waiting

.

W h en Muscatel entered the house, Altm a n i s a nd Kadamovas g rabbed him. Al t m anis bound Muscatel’s leg s with plastic ties, a

nd Kadamovas handcuffed his arms behind his back. Mikhel duct-taped Muscate l ’ s ey e s and pistolwhipped him in the h ead

, d r a w ing blood. Mikhel a nd Kadamovas then took Muscatel’s w allet and credit cards a nd questioned h im abou t his finances. They attempted to withdraw money from his bank account, but the ba n k froz e the account.

W h en Mikhel and Kadamovas determined they would g et no money out of Muscatel, they injected him with Dimedrol (an ant i h istamine with sedative p roperties) and held him down to the g round. Mikhel c l osed a plastic b ag over Muscatel’s head and pinched h i s nose shut, suffocating him
to death. Mikhe l a n d Kadamovas then loaded Muscatel’s body into Kadamovas’s v a n a n d drove to the New Melones Reservoir. They carried h i s body to the edg e of the Parrotts F erry B ridg e and accidentally dropped it on a curb—leaving blood stains—before tossing it into the reservoir. KadamovasU N I T E D S T A T E S V

. M I K H E L 13

l a t e r told his friend Markovskis that he had once thrown a “fat J ew” (i.e., Muscatel) off a bridg e. The incident, Markovskis said, “was very funny ” to Kadamovas.

2. Death of Rita Pekler

F ollowing Muscatel’s d eath, Mikhel and Kadamovas set their sig hts on kidnapping Georg e Safiev, a wealthy Russian businessman. F irst, they d ecided to abduct Safiev’s financial advisor, Rita Pekler, to use as bait. I n December 2001, Kadamovas contacted Pekler pre t e n ding to be interested in her adv ice on a real estate transaction. Kadamovas h ad Pekler pick him u

p and drive him to a property he claimed he

was interested in buy ing ( actually his home). Mikhel, Altmanis, and Kadam o vas’s f riend Kry lov were already there; Mikhel was carry

ing a g u n w ith a fa k e s i lencer, a nd Altmanis had a stun g un.

W h en Pekler arrived, Mikhel r estrained her an d told her that, if she broug ht Safiev to them, they would g et her d runk with vodka or inject her with Dimedrol and leave her unharmed in a motel. Pekler told them she was preg nant a nd afraid alcohol or drug s would harm the bab y

. U n deterred, defendants persisted in try ing to u se her to lure Safiev. Pekler eventually contacted Safiev, but he told her he was too b usy to meet. Shortly thereafter, Safiev left L os A n g eles for Russia. Mikhel and K adamovas decided Pekler had outlived her usefulness; they injected h er with Dimedrol, strang led her, and a s with Muscatel, th r ew her body off the Parrotts F erry B ridg e.U N I T E D S T A T E S V

. M I K H E L 14

3. Death of Alex ander Umansky

L ater that same month, Kry lov sug g ested abducting his former boss, Alex ander Umansky

, who owned an automobile shop. Mikhel p osed as a customer who needed audio sy stems installed in two cars a

nd asked Umansky

for a ride to one of them. Umansky was ex c ited about th e o p p o r tunity a nd
ag reed t o p i c k up Mikhel. Mikhel directed Umansky to Kadamovas’s house, where Kadam o v a s, Altmanis, a nd Kry lov al r e a d y lay in wait—Kadamovas with a g un a nd Altmanis with a stun g un. W h en Umansky arrived, Kadamovas sat him on a chair, handcuffed his hands behind him, a nd bound his leg s w ith plastic ties. Mikhel a nd Kadamovas then took Umansky ’s key s, telephone, and wallet and questioned him about his finan c e s

. L ater, Mikhel a nd Altmanis used Umansky ’s debit c ard to withdraw money from an ATM and w ere captured d oi n g s o o n a surveillance

camera.

Umansky r emained trapped in Kadamovas’s ho me for three day s, d

uring which Mikhel and Kadamovas forced him to call his brother and plead for money to secure his release. Eventua l l y , Mikhel a

nd Kadamovas decided they n o long er needed Umans k y a live. They sent Altmanis to buy w eig ht plates from a use d s p orting g oods store. W hen Altmanis returned, Mikhel shoved plastic bag s in Umansky ’s mouth, duct-taped h is mouth shut, and put a bag over his head, while Kadamovas held him down and pinched his nose shut. W h en these e fforts proved ineffective, Mikhel and Altmanis twisted

a rope around U mansky ’s neck and strang led him from behind. Mikhel, K adamovas, and A ltmanis then tied a w eig ht plate around Umansky ’s body and put it in Kadamovas’s van. They d rove to Mikhel’s h ouse and—with the body still in the van—had dinner with Mikhel’s g irlfriend. After dinner, theU N I T E D S T A T E S V

. M I K H E L 15

three o f t h e m drove to the New Melones Reservoir, where they threw Umansky ’ s body

off the Parrotts F erry

B ridg e.

Mikhel and Kadamovas had previously sent the Umansky family a rans o m note d emanding nearly $235,000. The Umansky family contacted the F B I
, wh i ch advised them to pay just part of the ransom to g ive the kidnappers a reason to k eep Umansky a live. The Umansky family follow e d t h e F B I ’s advice and paid part of the ransom. L ate r, a f ter receiving a call threatening harm to other f amil y members, they paid the rest of the ransom money

. An I RS investig ator traced how the ransom pay ments were la u n dered a broad before being deposited in a ccounts held by Mikhel, Kadamovas

, and d efendants’ business, D esig ned W ater W o rld (a fish aquarium store).

4. Deaths of Nick Kharabadz e and Georg e Safiev

I n J a nuary 2 002, Mikhel and Kadamovas learned Safiev

was back in L o s Ang e les and decided to trap him throug h his friend and business partner, Nick Kharabadz e. They planned for Kadamovas’s g irlfriend, Solovy e v a, to call Kharabadz e and tell h im she had g o tten his pho n e n u m ber from a friend

a n d wanted to meet him. Markovskis w as part of the pl a n and later testified that Mikhel and K adamovas w ere in charg e and calling all the shots.

Solovy eva called Kharabadz e and asked him to meet her
at w h at she said was a private club but w as in fact Desig n ed W a ter World’s office. W hen Kharabadz e arrived, Altmanis and Markovskis were play ing pool, Mikhel and K ry lov were drinking

, and Kadamovas was stan d i n g behind a bar. Kadamovas had a revolver hidden under the bar, and Mikhel and Altmanis had g un s c o n cealed under their jackets.U N I T E D S T A T E S V

. M I K H E L 16

Solovy eva asked Kharabadz e to order her a drink, while Kry lov close d t h e outside door behind him. Mikhel then handcuffed Kharabadz e to a chair, took his key s, wallet, a nd telephone, and ex plained they wanted him to help them t rap Safiev. A t their direction, Kharabadz e called Safiev a nd convinced him to come to Desig ned W a ter W orld.

W h en Safiev e n tered Desig ned W ater W orld, Mikhel, Kadamovas

, A l t

m a n i s , K r y lov, and Markovskis converg e d on him. Mikhel handcuffed Safiev and took his key s, wallet, a nd telephone. Mikhel and Kadamovas then transported K harabadz e and Safiev to Kadamovas’s house, where th e y forced Safiev to call his business partner, Konstantinos Tez hik, a n d b eg him to transfer $940,000 to a foreig n account. Kharabadz e a nd Safiev r emained imprisoned in Kadamovas’s house for four day s. D u r ing this time, Kadamovas recorded Safiev’s voic e t o use to ex tort more money after he was dead. Kadamovas also told Markovskis that he planned to continue abducting p e o p l e and throwing their bodies into the reservoir until he had $50 million, even if it meant piling bodies up to the surface of the water.

After Mikhel confirmed receipt of the $940,000, he decided Kharabadz e and Safiev were no long er necessary

. He and the others g ot Kharabadz e an d Safiev drunk with vodka and drove them to the New Melones Reservoir in two

cars. On the way , a p o liceman pulled them over for driving
to o c l o s e ly tog ether. Mikhel ex ited his car and had a brief conversation with the p oliceman, who sent him on h is way

. Solovy eva later testified that Kadamovas said he would have killed the policeman if he had seen the hostag es in the car.

At the New Melones Reservoir, Mikhel k i l l e d K h a r a b a d ze by placing a plastic bag over his h ead and tig htening a p lasticU N I T E D S T A T E S V

. M I K H E L 17

t i e a r ound his throat. A ltmanis tied a weig ht arou n d Kharaba d z e ’s body a

nd assisted in throwing it off the Stevenot B r idg e. Safiev had already been killed and thrown into the reservoir in a similar fashion. Mikhel told Altmanis that Safiev, like Pekler, h ad been diff i c u l t to k ill because he was “strong

as a snake.”

Mikhel used Kharabadz e ’ s and Safiev’s ATM cards to withdraw money and was ag ain captured on surveillance

ca m eras. Kadamovas then g ave the ATM cards to his associate, Vladimir Paniouchkine, who traveled to Germany
to w ithdraw more money

. Mikhel u sed one of Safiev’s credit cards to order about $ 9,000 in e lectronic equipment. I n addition, Mikhel called Tez hik in L ondon and fax ed him a

ransom note—which Safiev had sig ned b efore he died—demanding another $ 4 million in r ansom. Tez hik taperecorded his calls with Mikhel.

All in all, Mikhel an d K adamovas received over $1 m i l lion in ransom money from the hostag e-taking conspiracy

, which they spent on hig h-end c ars, renovations for their homes, lavish presents f o r t h eir g irlfriends, a

nd

ex p ensive vacations, among other thing s.

5. The F B I ’s investig ation

A father and son returning from a fishing trip discovered Muscatel’s body near the Parrott s Fe rry B ridg e. L ater, Altmanis learned the F B I w as i n vestig ating him, decided to confess, and helped the F B I find the last four victims’ bodies. The F B I wire-tapped Mikhel’s and K adamovas’s phones a nd

r e corded them discussing r a n som money

. The F B I al s o secured data f

rom the i r cellphones, which showed them driving n orth on Hig h way 9 9 toward the N ew MelonesU N I T E D S T A T E S V

. M I K H E L 18

Reservoir on the d ay s Muscatel, Pekler, Umansky

, Kharabadz e, and Safiev died. 1

The F B I searched Mikhel’s house and f ound ex tensive phy sical evidence linking him and Kadamovas to the victims, including the o rig inal $ 4 m i llion ransom note for Safiev, a record of Safiev’s and Kharabadz e’s personal and fi n a ncial information, f

our sets of h andcuffs, and plastic ties like those found on the victims. M ikhel’s and Kadamovas’s fing erprints w ere on many of these items, and Sa f i ev ’ s a nd Kharabadz e’s DNA was on the h a ndcuffs. The F B I also found fourteen handg uns, h andg un parts, ammu nition, a silencer, an electric shock baton, a stun g un, and several stolen or fraudulent passports.

The F B I searched Kadamovas’s two r esidences and f ound additional e vidence c o n n ected to the victims. At Kadamovas’s house in Sherman Oaks, the F B I found several weig ht plates (but no we i gh t bars or other ex ercise equipment) a

nd an envelope with a phone number written on i t

— t h e same number that defendants used to call t h e

1 Aft e r b rief

in g in th is ap p eal w as co m p lete, d ef en d an ts f iled a

su p p lem en tal b rief claim in g th at th e S u prem e Co u rt’ s p en d in g d ecisio n in Ca rp en t e r v

. U

n ited S ta tes , 1 3 7 S. C t. 2 2 1 1 (2 0 1 7 ), m ay im p act th e ad m i ssib ility of th eir cellp h o n e data. In Ca rp en ter , th e Co u rt w ill ad d ress

w h eth er th e seizu re o f cellp h o n e d ata pu rsu an t to a co u rt o rd er u n d er 1 8 U.S.C. § 27 0 3
, b u t w ith o u t a w arran t issu ed u p o n p ro b ab le cau se, v io lates th e Fo u r t h A m en d m en t. T h e g ov ern m en t d o es n o t co n t est th at th e cellp h o n e d ata at issu e h ere w as seized in th e sam e m an n er ch allen g ed in Ca rp en ter

. Bu t n o m atter h o w t h e Co u rt ru les in Ca r

p en ter , t h e d ecisio n

w ill h av e n o im

p act o n t

h is c a se b e c au se t

h e cellp h o n e d ata o n ly

co rro b o rated o th er ev id en ce. A s d iscu ssed b elo w , t h e ev id en ce of Mik h el’ s an d Kad am o v as’ s g u i lt w as so o v erw h elm in g th at ev en if w e th o u g h t it w as er r o r to ad m it th e cellp h o n e d ata, th e ex clu sio n o f th e

ev id en ce w o u ld n o t h av e ch an g ed th e v erd i cts.U N I T E D S T A T E S V

. M I K H E L 19

Umansky family for ransom. At Kadamovas’s h o u s e in Encino, the F B I found a d istinct i v e d a g g er linked to d e f e n d a n t s ’ m o n e y

- l a u n d e r i n g s ch e m e , a h a n d g u n , ammunition, and shoes with b lood stains. The shoes matched the shoeprints left in Muscate l ’s blood on the Parrotts F erry B ridg e. The carpet in Kadamovas’s house matched carpet fibers retrieved from Kharabadz e’s clothing

.

B

. The Escape Conspiracy and Mikhel’s Second Escape Attempt

F ollowing their arrests, Mikhel, Kadamovas, and Kry lov

were detained at the Metropolitan Detention Center–L os Ang eles (“MDC”). Mikhel devised a plan by w hich he, Kadamovas, Kry lov, and others would smug g le tools into their cells and bore holes throug h their cell w alls to reach an

a djacent stairwell. Once in the stairwell, they w ould us e a h y d raulic pump to push open the window’s bars, climb throug h the window, and r a p p el down the side of the b u i lding

. A motorcy cle g ang w ould be waiting for them outside and w ould spin off in different d i r ections before reuniting at a safe h ouse. I n accordance with t he plan, Mikhel successfully smug g led a veritable hardware store into his cell, including hacksaw b l a des, wrenches, screwdrivers, fishing line, paint, w ork g loves, b olt cutters, and a c amcorder. Kadamovas was orig inally h oused elsewhere in t h e facility but manag e d to c h ang e cells to be nex t to the stairwell intended for the escape.

M ikhel invited f

ellow inmate B illy Parker to jo i n t h e escape conspiracy

, offering h i m t he necessary tools (for a p rice) a nd warning him they would have to kill any g u a r d s they met o n their way o ut. Parker, however, informed MDC officials. I n Mikhel’s cell, officials found a larg e h o le carvedU N I T E D S T A T E S V

. M I K H E L 20

in the wall and his cache of tools. I n K r y l o v ’ s cell, they found a smaller hole, hacksaw blades, and a s c r e wdriver. They did not find any evidence of tunneling or contraband in Kadamovas’s cell. Nonetheless, t h e r e was ex tensive evidence linking Kadamovas t o the escape conspiracy

, a s described in detail below.

After th e fi rst escape attempt, Mikhel was moved to a hig h secu rity section of San B e rnardino County ’ s Central Detention Center (“SB -CDC”). There, he was placed under Special A dministrative Measures and isolated f r om other inmates. Despite these measures, Mikh el c oncocted a detailed escape plan, which he o u tlined in a letter promising $1 million to an a l leg ed member of the Mex ican Mafia in

ex c h a ng e for help. Officials intercepted the letter, and a deputy sheriff a ssig ned to S B- C D C later testified that Mikhel’s escape plan was very feasible. 2

C. Procedural History

A g rand jury indicted Mikhel and Kadam o v a s o n o ne

co u n t o f Conspiracy to Take Hostag es Resulting in Death (18 U.S.C. § 1203), three counts of Hostag e-Taking Resulting in D eath (18 U.S.C. § 1 2 03), Conspiracy to L a under Monetary I n struments (18 U.S.C. § 1956(h)), C o n s p iracy to Escape from Custody ( 18 U.S.C. § 371), and Criminal F orfeiture (18 U.S.C. § 9 81(a)( 1 ) ( C )

, 21 U.S.C. § 853, a nd 28 U.S.C. § 2461(c)). The g overnment filed a notice of intent to seek the death penalty

ag a inst both defendants.

2 L ater, at th e W est Valley Deten t io n C e n ter, th e m easu res tak en to

secu re Mik

h el in clu d ed b l in df

o ld in g h im an d tran sp o rtin g h im aro u n d th e f acility i n a w

h eelch ai r t o p rev en t h im f ro m co u n tin g h is step s to o rien t h im self

.U N I T E D S T A T E S V

. M I K H E L 21

The g uilt phase o f trial beg an in J uly 2006 and spanned five months. The g ov e rn m ent’s case in chief was detailed and thoroug h, includin g s c o res of witnesses who testified

over the c ourse of more than t h i rt y trial day s. Defendants initially res t e d t h eir case after just three trial day s, but the district court permitted them to r e o p e n their case when Mikhel unex pectedly chose to testify

. Mikhel testi fi e d on direct for three d a y s , a t the end o f which he refused to be

cross-ex amined. On Kadamovas’s motion, the district court struck Mikhel’s testimony and instructed the jury to d isreg ard it. On J anuary 16, 2007, the jury beg an its deliberations. The
very nex t d a

y , it r eturned separate ve r d i cts in e ach defendant’s case, finding both defendants g uilty on all counts.

The penalty phase beg an o n J anuary 24, 2007. The F DPA

re q u i r es the jury to make several finding s before recommending a sentence o f death. A mong other thing s, the j ury must find that at least one statutory ag g ravating f actor

e x i s t s and that all ag g r avating factors proven by the
g overnment “sufficiently outweig h” a ny mitig a ting f

actors proven by defendants. 18 U.S.C. § 3593(e). The g overnment arg ued f o ur st a t u tory ag g ravating factors ag ainst both defendants: (1) d eath during commission of a n o t h er crime, (2) procurement of offense b y p a y ment, (3) substantial planning and premeditati o n , and (4) multiple killing s. See 18 U.S.C. § 3592(c). The g overnment also arg u e d five nonstatutory ag g ravating f actors ag ainst both defend a n t s: (5) future dang erousness, ( 6) contemporaneous c o n v ictions for multiple offenses, (7) witness elimination, (8) emotional

s u ffering of the victims, a nd (9) victim impact

. T h e g overnment’s penalty -phase case incorporated all of its g uiltphase evidence. I n a ddition, t he g overnment presented

se v e r al v ictim-impact witnesses and further evidence o f Mikhel’s escape attempts.U N I T E D S T A T E S V

. M I K H E L 22

Mikhel proffered e i ghteen mitig ating factors a nd
p r esented p enalty -phase evidence reg arding his upbring in g, mental health, a n d l i f

e in Russia, as well as several videotaped interviews of his friends and family

. Kadamovas proffered nine mitig ating factors and presented penalty -phase evidence reg arding statistical violence rates in prisons and the former Soviet Union. The district court charg e d t h e jury on F ebruary 13, 2007. L a ter the same day

, af t e r a brief threehour deliberation, the jury returned separate verdicts in each defendan t ’s c ase. The jury unanimously found every ag g r avating fac t o r proposed by the g overnment as to both defendants. No juror found any mitig ating factor a s to either defendant. And the jury unanimously r ecommended that both defendants b e sentenced to d eath. According ly

, the district
court sentenced both defendants to death on each of the four capital offenses. T he court also sentence d them to twenty
y ears’ imprisonment on the remai n i ng counts and ordered over $1 million in forfeiture.

I I . ANAL YSI S

Defendants claim errors in b o th the g uilt and penalty phases of trial. W e have had the benefit of ex tensive briefing and oral arg ument in t h i s c ase: the briefs totaled more than 1,700 pag es, and the c ourt heard more than three h ours of oral
arg ument. The court g ranted g e nerous ex tensions of time a nd
space to the parties for briefing ; indeed, this direct appeal was he ar d over ten y ears after the entry of judg ment a nd fifteen
y ears a fter the crimes. W e will address each claimed error in
turn.U N I T E D S T A T E S V

. M I K H E L 23

A. The Guilt Phase

1. The Hostag e Taking Act

Defendants were c o nvicted and sentenced to d e ath o n o ne count of conspiring to t ake hostag es resulting in death a nd three counts of hos t age taking resulting in death u nder the Hostag e Taking Act, 18 U.S.C. § 1 203. They seek to

ov e r turn their convictions on g rounds that the Hostag e Taking Act requires a

nex us to “international terrorism” and that no such nex u s ex ists here. I n the e vent the Act does not require such a nex us, they claim it ex ceeds Cong ress ’s constitutionally enum erated p owers and also violates the Tenth Amendment. W e rev iew these questions of statutory construction and constitutional law de novo. See United States v. Chi Mak , 683 F .3d 1126, 1133 (9th Cir. 2012).

The United States is a party to the I n ternational Convention Ag ainst the Taking of Hosta ge s, Dec. 17, 1979, T.I .A.S. N o. 11081, 1316 U .N.T.S. 205 (“the Treaty ”), which binds its sig natories to take “effective m easures for the prevention, prosecution and punishment of all acts of taking of hostag es as manifestations of in t e rnational terrorism.” Treaty
, pmbl. The Treaty defines hostag e taking as follows:

Any person who seiz es or detains a nd
t h r eatens to kill, to injure o r to continue t o detain another person

. . . in order to compel a third party

. . . to do o r abstain f rom doing any act as an ex plicit or implicit condition for the release of the hostag e commits the offence o f taking of hostag es

. . . w ithin the meaning o f this Convention.U N I T E D S T A T E S V

. M I K H E L 24

I d

. art. 1(1). The Treaty
, w ith limited ex ceptions, does n o t apply where a hostag e taking is c ommitted within a sing le

n ation, both the offender and victim a re nationals of t h at nation, and the offender is found within that nati o n

. Id. art. 13.

Cong r ess implemented t h e Treaty throug h the Hostag e Taking Act, which tracks the Treaty ’s lang uag e:

(a)

. . . [ W ] hoever, whether inside or outside the United States, seiz es o r detains a nd threatens t o kill, to injure, or to continue to detain another person in o rder to compel a third person or a g overnmental o rg aniz ation to do o r a bstain f rom d oing any act as an ex plicit

or implicit condition for the release of the
person detained, or attempts o r conspires to do
so, shall be punished by imprisonment for any t e r m of y ears or for life and, if the death o f
any person results, shall be punished by death or life imprisonment.

. . . .
[ (b)] (2) I t is not an offense under this section if the conduct required for the offense occurred inside the Un i t ed States, e ach al l e g e d offender and e a ch p erson seiz ed o r detained are nationals of the U n i ted States, and each alleg ed offender is found in the United States, unless the g overnmental
org aniz ation soug ht to be c ompelled is the Government of the United States.U N I T E D S T A T E S V

. M I K H E L 25

1 8 U

. S

. C. § 1203. There are three elements to this crime : “(1) a seiz ure or detention; (2) a threat to kill, i n jure, o r continue to detain; (3) w ith the purpose of compelling a third
person or g o vernmental entit y t o a ct in some way or refrain f r om a cting .” United States v

. Sierra-Velasquez

, 310 F. 3 d 1217, 1220 (9th Cir. 2002). I n addition, § 1203(b) requires

some international e l ement, i.e., that the offense occurred abroad, that the d efendant is found abroad

, t hat a defendant

or victim is a foreig n national, or that the defendant soug ht to compel something from the federal g overnment.

Defenda n t s’ interpretation of the Hostag e Taking Act a s requiring proof of a nex u s to inter n a tional terrorism is both infirm as a matter of statut ory interpretation and foreclosed by our prior decision i n United S tates v. Lopez-Flores

, 6 3 F .3d 1468 (9th Cir. 1995). T he definition o f a h o s t a ge

taking offense in the Treaty and the Act makes no mention o f international terrorism. Defendants base their arg ument instead on the Treaty ’s preamble, which refers to “all acts o f taking of h ostag es as manifestations of international terrorism.” T reaty , p mbl. (emphasis added). B y its o wn terms, the preamble’s reference t o “international terrorism” is illustrative only ; it limits neither the Treaty nor Cong ress’s implementing leg islation.

Contrary to defendant ’s arg u ment, the statute’s leg islative history affirms that hostag e taking is not limited to acts with

a nex us to international terrorism. See Lopez-Flores

, 63 F .3d
at 1476 (quoting L eg islative I nitiatives Hearing s, 98th Cong
., 2d Sess. 48–49 ( 1 984) (statement of Victoria Toensing

, Deputy Assistant Attorney General) (“[ T] he bill is not limited
to hostag e-taking by terrorists, in keeping with the purpose o f the international Convention

. . . .”)). Thus, in Lopez-Flores

, we held that the Act a

pplied t o a l ien smug g lers who h eldU N I T E D S T A T E S V

. M I K H E L 26

aliens for ransom. Id. a t 1 475–76. And in Sierra-Velasquez

, we rejected a narrow reading of Lopez-Flores and once ag ain upheld the c onviction of alien smug g lers. 310 F .3d at 1220 (“ Lopez-Flores

. . . does not limit hostag e taking to the facts of that case.”).

Nevertheless, defendants arg ue that the Supreme Court’s

more r e ce n t decision in B ond v. United States r equires a

narrower reading of the Hostag e Taking Act. 134 S. Ct. 2077 (2014) (“ B ond II ”). I n Bond II

, the Court held that B o nd—a microbiolog ist who had poisoned her husband’s l o v er b y spray ing low-dosag e tox ic chemi c a ls on her doorknob, car,

a n d mailbox —could not be convicted under the fede ra l Chemical Weapons A ct. Id. at 2084–85. The statute, which i m p l e m e n t e d t h e C h e m i c a l W e a p o n s C o n v e n t i o n , criminaliz ed the use of “chemical weapon[ s] .” Id. a t 2 0 85. The Court considered the ordinary m e aning of “chemical weapons” and acknowledg ed that “ the chemicals in this case

are not of the sort that an ordinary perso n w ould associate with instruments of chemical w arfare [ i.e., the subject of the underly ing treaty ] .” Id. at 2090. F or this r e a s o n , and g iven the lack of any clear indication t h at Cong ress intended the
statute to reach purely local c r ime s, the Court refused to “adopt a reading of [ the Act] that would sweep in every thing from the deterg ent under the kitchen sink to the stain r emover in the laundry

room.” Id. at 2091.

B y contrast, Mikhel and Kadamovas’s conduct in abducting and holding their victims for ransom fits squarely within the Treaty and Hostag e T a king Act and c omports with
any ordinary understanding of a “hostag e taking .” Moreover, the Hostag e Taking Act d oes not c over purely local conduct b u t rather e x pressly requires some international component. See 18 U.S.C. § 1203(b). Mikhel a nd Kadamovas’s o ffensesU N I T E D S T A T E S V

. M I K H E L 27

not only met the Act’s requirements b ut h a d other international c ontacts as well, f urther demo n s t rating an appropriate federal interest in this case. F or instance, Mikhel and Kadamovas sent a r ansom d emand abroad and laundered

ransom money throug h foreig n count r ies. W e therefore reaffirm, in accordance with our prior decisions in LopezFlo r e s a nd Sierra-Velasquez

, that the H ostag e Taking A ct does not require proof of a nex us to international terrorism.

This bring s us to defendants’ constitutional arg u ment. I n Lopez-Flores

, we rejected challeng es to the Hos tag e Taking Act as unconstitutionally vag ue o r as violating the E q ual Prote c t ion Clause, b ut we did not address the arg ument defendants assert here—namely

, that the Hostag e T aking A ct

ex c e eded Cong ress’s constitutionally enumer a t e d p o wers a

nd violated the T enth Amendmen t

. L opez

- Flores

, 63 F

. 3d at 1473–75. I n this reg ard, we are p e rs u aded by the Second Circuit’s reasoningin United States v. Lue , which rejected a similar arg ument and held that the Act was a v alid ex ercise o f C o n g ress’s power under the Necessary and Proper Clause tog ether with the Treaty Power. 134 F .3d 79, 82–85 ( 2d Cir. 1998).

The Constitution g r ants the President the “Power, by a nd with the Advice and Consent of the Senate, to make T reaties, provided two thirds of the Senat o r s p resent concur.” U.S. C O N S T

. a rt. I I
, § 2, cl. 2. I t also g rants Cong ress t h e p o wer “[ t] o make all L aws which shall be necessary and proper for
carry ing int o Ex ecution the foreg o ing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. C O N S T

. art. I
, § 8, cl

. 1 8

. I n Missouri v. Holland

, the Supreme Court held that, if a treaty is a valid ex ercise of the P re s i d e n t’s Tr e a t y P o w e r , t h e n C o n gr e s s ’ s s t a t u t eU N I T E D S T A T E S V

. M I K H E L 28

implementing that treaty is valid “as a necessary and proper means to ex ecute the powers of the Government.” 252 U.S. 416, 4 32 (1920). W e a n d o ther courts have commonly understood Holland to mean that the Necessary and P r o p e r Clause g rants Cong ress broad a uthority to enforce our country ’s treaty obliga t ions by statute. See, e.g. , United States v

. Shi

, 525 F .3d 709, 721 (9th Cir. 2008); United States

v. Rodriquez-Camacho

, 4 68 F .2d 1 220, 1 222 (9th Cir. 1972). Althoug h this broad reading of the Necessary an d P roper Clause has been criticiz ed and debated, see, e.g. , Bond II
, 134 S. Ct. at 2098–102 (Scalia, J ., concurring ), the Supreme Court has never undertaken to clarify o r correct our understanding . W e are thus bound by our prior cases.

As the Second Circuit held in Lue
, there is no question the Treaty at issue here is well within the Pr e s i dent’s T r eaty Power. 134 F .3d at 83 (“W hatever the potential o u t e r limit

on the treaty power of the E x e cutive

, the H ostag e Taking Convention d oes not transg ress it.”). F urthermore, there can be little question that the Hostag e Tak i n g A c t fulfills our country ’s oblig ation under the T reaty

. The Hostag e Taking Act tracks the Treaty ’s lang uag e in a l l m aterial r espects,
compare 1 8 U.S.C. § 1203(a), with Treaty
, a rt. I
, and clearly bears a rational re l a t i onship to the Treaty
, see United States

v

. C o mstock

, 5 60 U.S. 126, 134 (2010) (“[ I ] n d etermining whether the Necessary and Proper Clause g rants Cong r e ss the leg islative authority to enact a particular federal statute, we look to see whe t h e r t h e statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”); United States v. Santos-Ri v iera
, 183 F

. 3d 367, 373 (5th Cir. 1999) (“Cong r ess ra t ionally

c o n cluded that a hostag e taking w ithin our jurisdict i o n involving a noncitiz en is sufficiently likely to involve matters implicating foreig n policy o r i mmig ration concerns as toU N I T E D S T A T E S V

. M I K H E L 29

warrant a federal criminal proscription.”); Lue
, 134 F .3d at 84 (“The [ Hostag e Taking ] A ct here p lainly bear s a r a tional relationship to the Convention.”). According ly

, the Hostag e Taking Act was a valid e x e r cise of Cong ress’s power under the Necessary and Proper Clause tog ether with the Tre at y Power. See Holland

, 252 U.S. at 432. 3

Defendants’ independent T enth Amendment challeng e is unavailing

. The Tenth Amendment provides that “[ t] he
powers not deleg ated to the United States by the Constitution,

nor prohibi ted by it to the States, are reserved to the States respectively

, or to the people.” U.S. C O N S T

. amend. X. The Tenth A mendment is not a substantive, ex ternal constraint on Cong r ess’s power. Rather, it reflects a “truism,” “declaratory of the relationship between t h e national and state g overnments.” United States v

. Da r b y , 312 U .S. 100, 124 (1941). The Tenth Amendment summariz es and, thus, reinforces the relationship between the Unite d States—whose
powers are limited and enumerated—and the state s whose
powers are g eneral, ex cept as limited by the U.S. Constitution and their own constitutions. Defend a n t s ’ arg ument that the
states have ex clusive authority to punish hostage t ak ing depends on their ability to show one of two thing s: e ither that the Constitution has not conferred any authority to Cong ress to e n a ct the Hostag e Taking Act o r, more improbably

, that the C o n s t i t u tion actually confers ex clusive authority over hostag e taking to the stat e s. The f ormer they cannot show, because “if Cong ress acts u nder o ne of its e numerated powers”—as

w e h av e concluded it did here—then “there can be no

3 In lig h t o f th is co n clu sio n , w e n eed n o t co n sid er w h eth er th ere m ig h t b e o th er su f

f icien t co n stitu

t io n al b ases f

o r th e Ho s tag e T ak in g A ct as w ell,

su ch as th e Def

in e an d P u n ish Clau se, U.S. C ONST

. art. I, § 8
, cl. 1 0
, or th e Co m m erce Clau se, id

. art. I, § 8 , cl. 3

.U N I T E D S T A T E S V

. M I K H E L 30

violation of the Tenth Amendment.” U nited States v

. Jones
, 231 F .3 d 5 0 8, 515 (9th Cir. 2000). As to the latter, defendants h ave n o evidence. See Garcia v. San Antonio M e t r o. Transit Auth.

, 469 U.S. 528, 550 (1985) (“W ith r a r e

ex c e ptions,

. . . the Constitution does not carve out ex press elements of state sovereign ty that Cong ress may

not employ its deleg ated powers to displace.”). Althoug h California undoubtedly has its own authority to punish defendants, that only confirms the U nited States and California’s concurrent jurisdiction—an ex a mple of the dual sovereig nty doctrine. I t does n ot p rove the ex clusiv e j u r isdiction of California. I n shor t , t he Hostag e Taking Act is c onsistent with Cong ress’s “federalism-based respect f or state and local authority in this area of law enforcement.” Lopez-Flores , 63 F .3d at 1473.

F inally

, defendants arg ue that, even if the Hostag e Taking Act does n ot itself ex ceed Cong ress’s power, the subsequent amendment to the Act authoriz ing the d e ath penalty does

ex c e ed Cong ress’s power. The arg ument is without merit. I f Cong r ess has the power to c riminaliz e conduct, it also has the
power to prescribe a constitutionally permissible punishment for that conduct. See Mistretta v

. U n ited States
, 488 U.S. 361, 364 ( 1989) (“Cong ress, of c o urse, has the power to fix the sentence for a federal crime.”). I ndeed, the Treaty that the Hostag e Taking Act implements requires its s i gn a tories to make hostag e taking “ punishable by appropriate penalties which take into account the g rave nature of those offences.” Treaty
, art. I I

. The T r eaty is n ot self-ex ecuting

, see Medellin

v. Texas
, 552 U.S. 491, 504–05 & n .2 (2008); it neither prescribes nor forbids a ny p articular punishment but

ex p licitly leaves it to each sig natory to do so

. C o ng ress’s amendment authoriz ing the death p enalty for hostag e taking sU N I T E D S T A T E S V

. M I K H E L 31

resulting in death was equally within its constitutional power under the Necessary

and Proper Clause as the orig inal Act. 4

2. Defendants’ recusal motion

Defendants claim 28 U.S.C. § 455(a) required J udg e Tevriz ian to recuse himself after he a p p lied to a local screenin g committee for the position of United States Attorney f

or the Central District of California—the same office prosecuting this case. “ W e review the denial of a recusal motion for an a

buse of discretion.” Unit ed States v

. Johnson , 610 F .3d 1138, 1147 (9th Cir. 2010).

On Decemb e r 2 8, 2006, J udg e Tevriz ian h eld a status conference and informed the parties that a search committee had asked him to submit his name for the position of United States Attorney for the Central District of California and that he had done so:

There’s been a lot of rumors f loating around here

. Yo u know, I had announced that I ’ m

4 W e ack n ow led g e th e Ru ssian Fed eratio n ’ s am i cu s b rief i n su p p o rt

o f d ef en dan ts b u t are u n

p ersu ad ed b y i ts arg u m en ts. A s ex plain ed ab o v e, Mi k h el’ s an d Kad am o v as’ s co n d u ct f ell sq u arely w ith in th e Ho stag e T ak in g A ct, an d w e h av e p rev io u s ly h eld th at th e A ct d o es n o t v io late th e Eq u al P ro tectio n Clau se. Lo pez-Flo res , 6 3 F .3 d at 1 4 7 3 ; see a lso Lu e , 1 3 4 F.3 d at 8 5

– 8 7

. T h e F ed er a t i o n ’s o th er arg u m en t—th at t h e d eath
p en alty v io l ates th e Eig h th A m en d m en t—is n ot f o r u s to d eci d e

. S e e Un ited S t a tes v. Mitch ell

, 5 0 2 F

. 3 d 9 3 1
, 9 8 2 (9 th Cir. 20 0 7 ) (“ W h eth er

co n tem p o rary v alu es d ictate a d if f eren t an sw er [to th e co n stitu tio n ality of th e d eath p en al ty ] to d ay is f o r t h e S u prem e C o u rt to d ecid e; t

h e Eig h th A m en d m en t d oes n o t au th o rize th is co u rt to o v erru le Su p rem e Co u rt p reced en t ‘ ev en w

h ere s u bseq u en t d ecisio n s o r f

actu al d ev elo p m en ts m ay ap p ear t o h av e si g n i fi c a n tly u n d erm in ed t h e ratio n ale f

o r [an ] earlier h o ld in g .’ ”).U N I T E D S T A T E S V

. M I K H E L 32

g oing to retire just a s soon as this case is over and join a judicial arbitration mediation service. A couple of weeks ag o I r e c eived a telephone call from a search committee that’s looking to replace the U nited States Attorney and they a sked me to submit my n ame for that position. T he search committee is not associated w ith the J ustice Department nor is it associated wit h the administration. They make recommendations a n d they asked me to submit my name. Whether any thing comes o f it I don’t know, but I thoug ht I should disclose this to y ou. I ’ m not doing it for any financial
g ain

, b e c a use I made it very clear that if I do take the position that I would do it for a dollar

a y ea r , b e cause of the f act that I ’m o n a f e d eral pension, judicial pension, and I don’ t believe in double dipping

. So I do make this disclosure to y ou. Ag a in, I don’t know if
any t h i n g is g oing to come of it. I haven’t been contacted by t h e administration. I haven’t b een contacted b y any b ody in W a shing ton.

Neither side made any

objection.

Trial p r o c eeded, and the jury returned g uilty verdicts a few weeks later. I t was not until J anuary 29, 2007, after the
g overnment had rested its case in chief in the p enalty phase, that defendants moved for r e cusal. J udg e Tevriz ian denied defendants’ motion the nex t day

, stating that he h ad withdrawn his name from consideration and that his application had never prog ressed past a preliminary

stag e:U N I T E D S T A T E S V

. M I K H E L 33

I advised and disclosed to a ll parties o n the record that I was contacted by a representative of the local screening c ommittee to a p p ly for the position of United States Attorney for the C e n tral District of California. None of t h e parties or their counsel ever objected.

I submit t e d a form application and was interviewed by the screening committee only

. I have never been interviewed b y a n y one o f the Department o f J us t ice o[ r] W hite House counsel’s o ffice. I n fact, I never directly submitted my application to the Department of J ustice or White House c ounsel’s o ffice. I t

was submitted only to the local screening committee, who may

have passed it on.

Ag ain, none of the defense counsel or the defendants o bjected when I made the disclosure on the record weeks ag o that I was planning to apply

for the position.

. . . . Yesterday I withdrew my name for consideration for the position of United States Attorney by notify ing the local committee. The only personal contact I had with either the Department of J us t i c e or the W hite House counsel’s of

f i c e was over the telephone,
y esterday

, to inform them that I h a d withdrawn my name from consideration.U N I T E D S T A T E S V

. M I K H E L 34

I w as al s o informed that my application

was never considered on the merits by the Department of J ustice or W hite House counsel’s office.

Defendants f

iled a p etition for mandamus in our cour t

. W e denied the petition, noting that they had “arg uably filed their motion to recuse the district judg e too late.”

“I t is well established in this circuit that a recusal motion
must be m a d e in a timely fashion.” E. & J. Gallo W inery v

. Gallo Cattle Co.
, 967 F .2d 1280, 1295 (9th Cir. 1992 ). “W h ile there is no per se r ule that recusal motions must be made at a fix ed point in o rder to b e timely

, such motions should be filed with reasonable p romptness after the g r ound for such a motion is ascertained.” Id. (c i t a tion omitted) (quotation marks omitted). W here “unex plained d elay ” in f i l i ng a r ecusal motion “sug g ests that the recusal statute is being misused for strateg ic purposes,” t h e motion will be denied as untimely

. Id. at 1296; see a l s o U nited States v

. Rogers
, 119 F .3d 1377, 1380 (9th Cir. 1997); Davies v

. Comm’r , 68 F

. 3d 1129, 1131 (9th Cir. 1995).

Defendants discovered the alleg ed g rounds for recusal on December 28, 2006, but nevertheless w aited until J a nuary 30, 2007, to file their motion. Althoug h a delay of a little over a month would not alway s, o r even ordinarily , doom a motion for recusa l

, defendants’ delay here renders their motion untimely

. Defendants were clearly notified that J udg e Tevriz ian had put himself in the running to be United States Attorney
, y et they wi t hheld their motion w hile trial was ong oing a

nd waited to file u n t il after the jury ’ s verdicts
ag ainst them, and after the g overnment rested its penalty

-U N I T E D S T A T E S V

. M I K H E L 35

phase c ase. 5 See Rogers
, 1 19 F .3d at 1 3 8 0

. W e see “a heig htened risk” that defendants u s ed a recusal motion “for strateg ic purposes.” P reston v. United States

, 923 F .2d 731, 733 (9th Cir. 1991). Defendants’ recusal motion asked J udg e Tevriz ian to “declare a mistrial o f the p enalty phase, and then

recuse h imself from presiding further,” but did not s eek a mistrial as to t h e gu i l t phase. Defendants likely recog niz ed that the evidence of g uilt was o verwhelming and, rather than delay the ine v itable, may have tried to throw a wrench into
t h e p e nalty phase in the hope that the g overnment wo u l d prefer a ccepting life sentences to conducting a fr e s h penalty phase.

Defendant s arg ue that whether they timely moved for recusal is neither here nor there because § 455(a) and Canon 3C(1) of the Code o f J udici a l Conduct place the duty to

recuse on the judg e. We have rejected this same arg ument before. E. & J. Gallo W inery
, 9 67 F

. 2d at 12 9 5

. “I n f act, 28 U.S.C. § 144 ex pressly requires that a motion to d isqualify
must b e ‘timely ,’ and we have judiciall y required as much under 28 U.S.C. § 4 5 5

. ” Rogers
, 119 F .3d at 1380. Enforcing the timeliness of a recusal motion is necessary to prevent litig a

nts from usi n g § 455(a) for strateg ic purposes. Defendants c annot avoid their timeliness problem by putting

5 Def en d an ts arg u e th ey d i d n o t b eco m e aw are o f th e n eed f o r recu sal

u n til late J an u ary 2 0 07 w

h en th ey read a n ew sp ap er article su g g estin g th at J u d g e T ev rizian w as am o n g th e f ro n tru n n ers f

o r th e p o sitio n

. T h is
arg u m en t i s m eritless. J u d g e T ev rizian ’ s statem e n t in Decem b er 2 0 0 6 clearly in d i cat e d h e h ad s u bm itted h is n am e to th e lo cal screen in g

co m m ittee f or t h e p o sitio n

. His disclo s u r e w as straig h t f o rw ard an d

su f f icien t to ad v ise all p arties o f th e issu e. D ef

en d an ts’ alleg ed b asis f

or

recu sal d i d n o t tu rn o n w

h eth er th ey th o u g h t J u d g e T ev rizian ’ s ap p licatio n

m ig h t b e su ccessf

u l.U N I T E D S T A T E S V

. M I K H E L 36

the onus of recus a l o n t he district court. T h ey filed their recusal motion too late.

I n addition to its untimeliness, defendants’ recusal motion fails on its merits. Under § 455(a), “ [ a ] n y j u stice, judg e, o r mag istrate judg e of the United States shall disqualify himself in any p roceeding in which his impartiality mig ht reasonably be questioned.” 28 U .S.C. § 455(a). “The g oal of section 455(a) is to avoid e v en the appearance of partiality

. ” United States v. Holland

, 519 F .3d 9 0 9, 913 (9th Cir. 2008) (quoting Liljebe r g v. Health Servs. Acquisition Corp.
, 486 U.S. 847, 860 (1988)). Thus, we “ ask whether a r easonable person with knowledg e of all the facts w ould conclude tha t t h e judg e’s impartiality mig ht reasonably b e questioned.” Id. ( quotation marks o mitted). “The reasonable p erson is not someone w ho is h y p e rsensit i v e or u nduly suspicious, but rather is a wellinformed, thoug htful observer.” Id. ( q uotation marks omitted). “The standard must not be s o b r oadly construed that it becomes, in e ffect, p resumptive, s o t h a t recusal is

m a n d ated upon the merest unsubstantiated sug g estion of personal bias or prejudice.” Id. (quotation marks omitted).

Here, J udg e Tevriz ian p romptly and clearly disclosed the alleg ed g rounds for re c u s a l to the p arties; his only contact

was with a local screening committee; he stated he would not seek remuneration for the position, a n d there was no opportunity

for him to n eg o tiate salary

, bonuses, or the like; his application was never considered o n its mer i t s b y the Department of J u stice or W hite House Counsel’s office; a nd he immediately withdrew his application wh en defendants filed their motion. The fact that J udg e Tevriz ian immediately withdrew his application is particularly sig nifican t. I f de fe ndants had made a timely motion and J udg e T e vriz ian had not immediately withdrawn his a p plication, this issueU N I T E D S T A T E S V

. M I K H E L 37

mig ht have presen t ed a closer question. As it is, we cannot say that a r e a s o n able person with knowledg e of all the facts would have questioned J udg e Tevriz ian’s impartiality

. 6

3. Batson challeng e

Defendants made a Batson challeng e to the g overnment’s peremptory strike of J uror 2 85, a black woman. “Purposeful racial discri m i n a t i on in selection of the venire violates a defendant’s rig ht to equal protection because it denies h im the protection that a trial by jury is i n t e n d e d to secure.” Batson

v. Kentucky

, 476 U .S. 79, 86 (1986). Ruling o n a Batson challeng e requires a three-step framework:

F irst, a defe n dant must make a prima facie showing that a peremptory challeng e has been

ex e rcised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in lig ht of the parties’ submissions, the trial court must d etermine whether the defendant has s h own purposeful discrimination.

United States v. Alvarez

- U l l o a , 784 F .3d 558, 5 65 (9th Cir. 2015) (quoting Miller-El v. Cockrell

, 537 U .S. 322, 328–29 (2003)). Ordinarily

, w e review the district court’s r uling on

a Batson challeng e for clear error. See S nyder v. Louisiana
,

6 Def en d an ts al so co n t en d th at J u d g e T ev rizian ’ s f ailu re to recu s e h im self v io l ated t

h eir rig h ts u n d er th e Du e P ro cess Clau se. B ecau se th ere

w as n o ab u se o f d i scretio n u n d er § 4 5 5 (a), th ere w as n o d u e- p ro cess erro r. S ee Exxo n Co rp

. v. H

e i n z e , 3 2 F .3 d 1 3 9 9, 1 4 0 3 (9 th Cir. 1 9 9 4) (n o tin g th at § 4 5 5(a) is m o re strin g en t th an d u e p ro cess).U N I T E D S T A T E S V

. M I K H E L 38

552 U.S. 4 72, 478 (2008). W e h a v e applied de novo review, however, where the court improperly applied the three-st e p f r a m e w ork. See, e.g. , Alvarez-Ulloa

, 784 F .3d at 565. W e need not decide which sta n dard of review a pplies here bec a use d efendants’ challeng e f ails even under d e novo review. W e acknowledg e , however, that under either standard we a

re at s o m e d isadvantag e because w e a re assessing a cold r ecord and cannot, as did the trial judg e a nd counsel, take m easure of J uror 285’s visag e , inflection, o r body lang uag e. See S

nyder

, 552 U.S. at 483 (“W e r ecog niz e that a retrospective compariso n o f jurors based on a c old appellate record may b e v ery misleadin g when alleg ed similarities were not raised at trial.”).

The jury p ool consi s ted o f 270 potential jurors, a nd each side had twenty -eig ht p e r emptory challeng es. The
g overnment used its thirteenth peremptory challeng e ag ainst J uror 2 85. Defendants made a Batson c h a lleng e, and the
g overnment responded that its reasons for striking J uror 285

were that (1) her father w as in prison o n d rug charg es a nd (2) she w as lukewarm on the death p e n alty

. Defense counsel replied that “[ e] very juror that the g overnment has kicked has been a juror o f color, whether it’s been black, Hispanic, o r Asian.” W hen the g overnment correctly pointed o ut that the last juror i t had struck was white, the district court stated there was “n o Batson challeng e” and g ave no f urther consideration to the issue. J ury selection continued

— with the
g o v e r n m e n t leaving ten peremptory challeng es un e xe r c i s e d

— and defendants never renewed their Batson challe n ge

. The final jury consisted o f five w hite jurors, three Hispanic jurors, two black jurors, one Asian juror, and one multi-race juror.

The parties ag ree that the g o vernment’s proffered reasons for its peremptory challeng e to J uror 2 85 mooted step one a ndU N I T E D S T A T E S V

. M I K H E L 39

satisfied step two of the Batson analy s i s

. On ly step three is
at issue. “[ A] t the third step, the trial court mus t d e c i d e n ot only whether the reasons stated are r a c e-neutral, but whether they a re relevant to the case, and whether those stated reasons

wer e the prosecutor’s g enuine reasons for ex ercising a p e remptory strike, r ather than pretex ts invented to hide purposeful discrimination.” Green v. LaMarque
, 532 F .3d 1028, 1 030 (9th Cir. 2008). “The defendant need n o t p r o v e that all of the prosecutor’s ra c e-neutral reasons were pr e t e x t ual, or even that the r acial motivation was ‘determinative. ’ ” Currie v. McDowell

, 825 F

. 3d 603, 605 (9th Cir. 2016). “I ns t e ad, to prove a Batson violation, the defendant mu s t d e monstrate that ‘ race was a substantial motivating f

a c t o r ’ in the prosecutor’s use of the p e remptory strike.” I d

. at 606. “I t is true that peremptories a re often the subjects of instinct, and it c an sometimes be hard to say what the reason is. B u t when illeg itimate g rounds like race are in issue, a prosecutor simply has g ot to state his reasons as best h e c a n a nd stand or fall on the plausibility of the r e asons he gi v e s .” Miller-El v

. Dretke

, 5 45 U .S. 231, 252 (2005) (citation omitted).

W e consider first the g overnment’s p roffered reasons for striking J u ror 285 vis-à-vis its o t her peremptory strikes. “Comparative juror analy s i s i s a useful tool at Batson step three and failure to strike similarly situated venire members

can g r ound a conclusion that purposeful discrimination occurred.” Alvarez-Ulloa

, 784 F .3d at 567 (citation omitted). Defendants hi g hlig ht J uror 285’s juror questionnaire, on which she wrote “ I a m neither for or ag ainst the death penalty

. ” She ex plained: “ [ T] he death penalty to me is no joke. [ L ] ife to me is a gi f t so when it come[ s] to taking someone’s life a lot of thing s need t o b e tak[ en] into consideration.” I n r esponse to a question asking whether sheU N I T E D S T A T E S V

. M I K H E L 40

felt the death penalty was used too o f ten, too seldomly

, o r randomly

, she wrote: “[ I ] f people h ad any concious [ sic] a s to what would happen if they did the wrong , may be even ge tting the death penalty

, they may think twice about w h at they are about to do.” W hen asked whether her views would

cause her “substantial difficulty in voting for deat h as t h e appropriate penalty ,” she checked “No.”

Altho u gh these written responses sug g ested J uror 285 would have b e e n w i lling to v ote for the death penalty under appropriate circumstances, her oral responses during v oir dire demonstrated far g

reater hesitance:

[ Government] :

. . . . Ma’am
, i n the penalty phase, d e pending on the evidence as y ou h e a r d i t , c o u l d y o u c o n s i d e r e i t h e r pun i shment, either life imprisonment or the death penalty ?

[ J uro r 2 85] : I can’t consider it rig h t now because I don’t know what it is.

[ Government] : I ’ m not asking

—
[ J uror 2 85] : A nd I can’t base my decision on something that I don’t know, so I can’t answer that question for y o u.

[ Government] : Absolutely

. C ould y ou just consider the evi d e n ce presented by both sides?

[ J uror 285] : Yes, ma’am.U N I T E D S T A T E S V

. M I K H E L 41

J uror 2 85’s hesitant r esponses during voir dire—particularly her interrup t i on of the prosecutor and u n willing ness to g ive

an unequivocal answ e r to w hether she could consider im posing the death penalty —would understandably g ive
pause to a

ny p rosecutor try

ing a death penalty case. T his

concern was reflected in the prosecutor’s ex temporaneous response to the cha l l e ng e: “This h as nothing to do with the color of any

b ody ’s skin. I t h a s t o tally to do with their attitudes concerning the deat h p enalty and their ability to be

a fair juror and render the verdict that w e think is appropriate in this case.”

Defendants contend J urors 67 and 8 4 (whom the
g overnment did not strike) were as hesitant or more hesitant
to impose the death p e nalty as J uror 285. J uror 6 7, a Hispanic male, stated h e was “fairly neutr a l ” on the death penalty and wrote in his questionnaire that the death penalty is used “ unfairly ” because “a g reat d e a l depends on y our ability to hire a competent lawy er.” Bu t when the
g overnment a sked him during v oir dire whether he could consider imposing t he death penalty

, J uror 67 g ave an unequivocal response: “Certainly .” This prevents h im from being an apposite comparison to J uror 285.

J u r o r 84, a white male, wrote on his juror questionnaire that he w as n either 1 00 percent f or nor ag ain s t the death
p e nalty and that, “depending o n the crime,” “the d e a t h penalty should be a possible penalty .” He indicated the death penalty is u sed “fairly

” and is g enerally reserved “ for the
most terr i b l e crimes.” Althoug h d efendants correctly quote his st a t e m ent that he “ really hate[ d] to see any body put to dea t h

, ” they ig nore the remainder of his response: “[ B ] ut I

can see the reason for it in today ’s society .” When asked if he could consider imposing the death penalty

, J u r or 84U N I T E D S T A T E S V

. M I K H E L 42

confirmed, “I believe so, y es.” L ike J u r o r s 67 a nd 84, the other jurors h ig hlig hted in defendants’ briefs a ll affirmed they could consider imposing the death penalty —which is precisely what J u ror 285 did n ot do. I n short, comparative analy sis does not show t h a t t h e g overnment’s concern over J uror 2 85’s willing ness to impos e t h e death penalty was pretex tual.

There is less merit to the g overnment’s other stated reason for striking J uror 285: that her father was in prison on d rug charg es. J u ror 285 stated her “dad ha[ d] g one to jail on d rug

r elated c harg es” but that this would not influence h e r decisions. Some non-stricken jurors also had family in prison

or had been charg ed with crimes t h em s e l v es. J uror 67 h ad pleaded g uilty to a D UI
, an d J u ror 8, an Asian male, h ad pleaded g uilty to misdemeanor assault. I t is unclear whether either juror was incarcerated, but the g overnment apparently did not follow up with them on the issue. Th a t s a i d

, J uror 67’s father and cousin were both police officers, and J uror 8
wrote in his questionnaire that h e “bel i e v e [ d] in the death penalty ” and that it was “used fairly .”

Somewhat more troubling

, J uror 39, a white male, had a

son who w as i m p r isoned after pleading g uilty to seconddeg ree murder. J uror 39 a ttested this would not influence his decisions, but when a sked whethe r t h e incident “left a b ad
taste in [ his] mouth reg arding the criminal justice sy stem[ ,] ” he responded “[ t] hat’s a h ard one for me to answer

. . . .” He then provide d a leng thy ex p lanation, ex hibiting frustration with his son for accepting a plea barg ain without c o n s u l ting him and with the district attorney for charg ing h is son with fir s t

- d e gree murder rather than manslaug hter. On the other hand, J uror 39 represente d t h a t he had served on several juries, all of which went to verdict. This provided a powerfulU N I T E D S T A T E S V

. M I K H E L 43

reason for the g overnment not to strike J uror 39: a p rosecutor mig ht assume t h a t, if a prospective juror has served on several juries that all reached a verdi c t , the juror is unlikely to be a defense-friendly

holdout during deliberations.

On balance

, even if the g overnment’s ex planation about J u ror 285’s father’s criminal history seems weak, th e comparat i v e a

naly sis h ere provides little evidence o f discriminatory intent, particularly g iven the g ov e r n ment’s
g enuine and c o mpelling reason f or striking J uror 2 85 for being lukewarm on the death pe n a l t y , and p ossible reasons for not striking J urors 8, 3 9, and 67 despite their criminalhistory responses. Fu r

thermore, althoug h the g overnment applied six of its eig hteen e x ercised peremptory challeng es to black jurors, there w ere two b lack jurors on the final jury a nd
two black jurors as alternates. T h e g o vernment accepted this outcome, leaving ten peremptory c halleng e s unex ercised. Moreover, the final jury ’s composition fairly r e sembled the entire jury pool, with white jurors a ctually making up a smaller percentag e of the jury than they d id of the pool. After careful review, we cannot say defendants have met th ei r burden of demonstrating r ace w as a “ s u b stantial motivating factor” in the g overnment’s p e remptory strike of J u ror 285. Currie , 825 F .3d at 606.

4. The use of an anony

mous jury

Empaneling an anony

mous jury is permissible only if “(1) there is a strong reason f or concluding that it is necessary to enable the jury to perform its fact f inding function, or to

ensure juror protection; an d (2) reasonable safeg uards a re adopted by the trial court to mi n imiz e any risk o f infring ement upon the fundamental rig hts of the a ccu s e d.” United States v. S

hryock

, 342 F .3d 948, 971 (9th Cir. 2003).U N I T E D S T A T E S V

. M I K H E L 44

Defendants did not object to empaneling an anony mous jury

, and they d o n o t c halleng e the district court’s determination that an anony

mous jury was necessary to ens u re juror protection. Rather, they claim specific precautio n s—a cautionary instruction on the reasons for juror anony mity a nd the disclosure of p otential jurors’ n ames and addres s e s to d e f ense counsel—were required to minimiz e the r isk o f prejudice to their F ifth Amendment rig ht to a presumption o f innocence and Six th Amendmen t rig ht to an impartial jury

. As defendants raised neither issue below, we review for plain

error. 7 See United S

tates v. Mitchell

, 502 F .3d 931, 967 (9th Cir. 2007).

F irst, the d istrict c our t took reasonable precautions to safeg uard defendants’ F ifth Amendment rig h t t o a presumption of innocence. The district court did not instruct the jury on the reasons for their a nony mity but simply informed them they would be referred t o b y number rather than name. The questionnaire potential jurors completed stated their information w ould “be kept confidential” and that “[ n] either y our identities nor y our answers will be released to the g eneral p ublic or the media.” I n s h o rt, the court treated the jurors’ anony

mity as routine and sug g ested throug h the questionnaires that it was concerned a bout their privacy a

nd unwanted media attention. T h e court also repeatedly instructed the jury t h a t defendants were presumed innocent, further mitig ating any

potential prejudice in this reg ard.

7 P lain erro r req u ires “ (1 ) erro r, (2 ) th at is p lain

, an d (3 ) th at af f ect[s]

su b stan tial rig h ts. If

all th ree co n d itio n s are m et, an ap p ellate co u rt m ay th en e x e rcise its d iscretio n to n otice a f o rf eited erro r, b u t o n ly i f (4 ) th e

erro r serio u sly af

f ect[s] th e f

airn ess, in teg rity

, o r p u

b lic r ep u tatio n of j u d icial p ro ceed in g s.” Jo h n so n v. Un i ted S ta tes , 5 2 0 U.S. 4 61
, 4 6 6

– 6 7 (1 9 9 7) (q u otin g Un ited S ta tes v. Ola n o , 5 07 U.S

. 7 2 5
, 7 3 2 (1 99 3 )) (q u o tatio n

m ark s o m itted ).U N I T E D S T A T E S V

. M I K H E L 45

Althoug h we u

phel d e mpaneling an anony mous jury in Shryock

, where the ju ry was g iven a pretex tual reason for
anony mity

, we did not say that g iving a pretex tual r eason was

a n e cessary precaution

. Simply treating anony mity as a routine procedure and o ffering neutral justifications focused

o n juror confidentiality also sufficiently g uard ag ainst prejudice. United States v. Fernandez

, 388 F .3d 1199, 1245 (9th Cir. 2004) ( c o llecting cases). I ndeed, “the g enerally accepted p ractice for minimiz ing prejudice

. . . is to downplay (not accentu at e ) the sig nificance o f the juror anony mity procedure.” United States v. Ochoa-Vasquez

, 428 F .3d 1015, 1037 (11th Cir. 20 0 5 )

. Ha d the district court done what defendants now c ontend w as required and g iven a cautionary instruction on anony

mity

, the instruction mi ght have drawn

more a ttention to anony

mity a nd led jurors to speculate on the subject. There was no error, let alone plain error, in failing to g ive a sua sponte cautionary instruction on the r easons for
anony mity

.
Second, the district court took reasona b le precautions to safeg uard defendants’ Six th Amendment rig ht to an impartial jury

. As w e recog niz ed in S h ryo c k

, “the use of an anony mous jury may interfere with d efendants’ abili t y to conduct voir dire and to ex ercise meaning ful p e remptory

c h a l l e n g e s , t h e r e b y i m p l i c a t i n g d e f e n d a n t s ’ S i x t h Amen dment rig ht to an impartial jury

. ” 342 F

. 3d at 971. Moreover, 18 U.S.C. § 3432 requires a “list of the v eniremen

. . . stating the place of abode of each venireman” to be provided to a capital defendant, unless “the c o u r t finds by a preponderance of the evidence that providing the l i s t m ay jeopardiz e the life o r safety of any person.” D e f e n d a nts do not dispute the district court’s finding that disclosing jurors’ identify ing information would h ave jeopardiz ed their lives o r safety

. I n s t e a d, defendants a r g ue it w as plain error f

or theU N I T E D S T A T E S V

. M I K H E L 46

court n ot to sua sponte disclose potential jurors’ identities to defense counsel under a protective order.

The district court sufficiently safeg uarded defense counsel’s a

bility to conduct voir dire by providing defendants with a n eleven-pag e questionnaire for each potential juror detailing ag e, marital status, city of residenc e, employ ment histor y , a n d education, a mong other thing s. None of our

cases require, or even sug g est, that providing potential jurors’

names and addresses to defense counsel i s necessary in circumstances such as these. Nor d oes § 3432 require di s c l osing jurors’ identify ing information to counsel when the “life o r safety ” ex ception applies, as it undisputedly did here. 8 The district court committed no error, and certainly no plain
error, in e mpaneling the anony mous jury as it did. See United States v. Gonzalez-Aparicio

, 6 6 3 F. 3 d 419, 428 (9th Cir. 2011) (an error “cannot be plain where there is n o controlling authority on point”).

5. Rig ht to a public trial

Defendants claim the district court’s ex clusion of Armen Harutiunian from trial violated their Six th Amendment rig ht
to a p ublic trial. H arutiunian attended Mikhel’s last day o f
t e stimony on J anuary 5
, 2007. He had been released from federal prison earlier t h a t s ame day

. He had a visible Armenian g a

ng tattoo on his neck, told courtro o m staff he

8 Def en d an ts d o assert th at § 3 43 2 req u ired th e d istrict co u rt t o f in d b y a p rep o n d eran ce o f th e ev id en ce th at d isclo sin g j u ro rs’ id en tities t o

co u n sel w o u ld h a v e j e o p a rd ized j u ro rs’ saf ety

. T h e statu te h as n o su ch
req u irem en t; it ref

ers to d ef en d an ts, an d th e d i strict co u rt p ro perly

m ad e its f in d in g as to d ef

en d an ts. On ce th e co u rt m ad e th is f in d in g , it w as n o t req u ired b y statu te to d i sclo s e j u ro rs’ id en tif y i n g in f o rm atio n to eith er d ef en d an t s o r th eir co u n sel.U N I T E D S T A T E S V

. M I K H E L 47

w as a “friend” or “fan” o f Mikhel, and was o b s e r v e d behaving in a manner that was “intimidating in nature.” The

nex t week, the di s t rict c ourt informed the parties that Harutiunian would be ba rred f rom reentering the courtroom go i ng forward. Neither d efendant objected, and neit h e r defendant g ave any indication of a n acquain t an c e with Harutiunian. There is a lso no evidence Harutiunian ever attempted to attend the trial ag ain. B e c ause defendants did not object to the ex clusion below, we review for p lain error. See Mitchell , 502 F .3d at 967.

“The rig ht to a public trial e ntitles a criminal defendant at the very least

. . . to have his friends, relatives and counsel present, no matter with w h at offense h e may be c harg ed.” United States v

. Rivera
, 682 F .3d 1 223, 1229 (9th Cir. 2 012) (q uotation marks omitted). “Nonetheless, in some circumstances, ex clusion o f membe r s of the public from a judicial proceeding does not implicat e the constitutional
g uarantee.” Id. To d etermine whether a c l osure implicates the Six th Amendment, we look to whet h e r the closure affected the values u nderg irding the r igh t t o a public trial, including ensuring fair p roceedin g s , r e m inding the p rosecutor and jud ge of their g rave responsibilities, discourag ing perjury

, and encourag ing witnesses to come f orward. I

d

. Nothing in the record here sug g ests Harutiunian’s ex clusion had a ny effect on these values, p articularly g iven his lack o f
any apparent connection to defendants or the c a se and the absence of any evidence that he later soug ht readmittance to the courtroom. The ex clusion did not implicate defendants’ constitutional rig hts. The district court therefore did not err, let alone plainly

err, by ex cluding Harutiunian.U N I T E D S T A T E S V

. M I K H E L 48

6. “Reasonable doubt” instruction as to g uilt

Defendants c halleng e the district court’s u s e o f our circuit’s model “ reasonable d o u b t” instruction in the g u ilt phase. 9 The parties dispute whether defendants preserved the

o b j e ction. W e need not resolve that dispute because the instruction was not erroneous even under de novo review.

Our model instruction provides that a “reasonable doubt is a doubt b a s e d upon reason and common sense a nd is not based purely o n speculation.” Model Crim. J ury I n str. 9th Cir. 3 .5. Defendants a r gu e this misstates the law: in their view, a jury can u se speculation to find a “reasonable doubt” in favor o f the accused. Defendants are incorrect. “[ D ] oubt that d oes not rise a

b ove pure speculation is not reasonable.” Ramirez v. Hatcher

, 136 F .3d 1209, 1212–13 (9th Cir. 1 998) (citing Victor v. Nebraska

, 511 U.S. 1, 17 (1994)); cf. United States v. Ramirez
, 714 F .3d 1134, 1138 (9th Cir. 2013) (“The
term ‘speculate’ has a vag uely pejorative cast; when judg e s use it, they g enerally refer to inferences that are irrational or impermissible.”). Moreover, we have repeatedly upheld the model instruction. See, e.g. , United S tates v. AlcantaraCastillo

, 7 88 F .3d 1186, 1198 n .4 (9th Cir

. 2 0 1 5); United States v. Ruiz
, 462 F .3d 1082, 1087 (9th Cir. 2006). There

was no error in using the model instruction in the g uilt phase.

7. Rig ht to two counsel under 18 U.S.C. § 3005

Under 18 U.S.C. § 3 005, a c apital defendant has a rig ht to two counsel, at least one of whom is “learned in the law

9 W e ad dress d ef

en d an ts’ ch allen g e to th e district co u rt’ s u se o f t h e

sam e in stru ctio n in t he pen alty p h ase in ou r discu ssio n o f th at p h ase b elo w

.U N I T E D S T A T E S V

. M I K H E L 49

applicable to capital c ases.” F our y e a r s before trial, the district court appointed Richard Callahan and Dale Rubin to defend Mikhel and Marcia B rewer and Richard L a s t i ng to defend Kadamovas. Rubin and L as t i n g b oth had prior

ex p erience in capital cases.

Mikhel claims the di s trict court violated § 3005 b y allowing trial to proceed f o r t h ree d ay s while one of his attorney s, Callahan, was absent. I n the second week of trial, Callahan fell down the stairs in his home and suffered serious head injuries. He was unable to appear in court the nex t day

, and Rubin asked for a continuanc e. T he g overnment proposed instead that the parties proceed with ex amining live foundational witnesses—subject to defendants being a ble to recall those w itnesses later—and with play ing videotaped deposition testimony

. The court ad o p ted the g overnment’s plan.

T h re e day s later, Rubin determined Callahan w ould not be able to return for at least another week and ag ain requested

a continuance. T h e c o u rt g ranted first a o ne-week continuance and then an addi t i onal two weeks. Mikhel concedes that when trial resumed “Callahan had sufficiently recovered from his injuries to participate i n the trial.” Ultimately

, Callahan only missed three trial day s, during which the g overnment presented six l ive foundational witnesses a

nd the videotaped de p o s i tion testimony of three substantive witnesses. Defendants chose not to recall any o f the live witnesses for further cross-ex amination.

Mikhel d o es not cite, and we have not found, any authority addressing whether counsel’s brief absenc e fr om trial may violate § 3 005. The statute neither state s n o r implies that two counsel must be present in the court roomU N I T E D S T A T E S V

. M I K H E L 50

every day of trial, and we will not rea d the statute “so as to p u t i n w h at is not readily found there.” United States v. Hood

, 343 U.S. 148, 151 (1952). Moreover, w e h ave previously h eld that “the purpose of the two-attorney rig ht is
to reduce the chance that an innocent defendant would be put to d eath b ecause of inadvertence o r e r rors in judg ment o f his counsel.” U

nited States v

. Dufur

, 648 F

. 2d 512, 515 (9th Cir. 1980) (q u o t a t ion marks omitted). That purpose is not under m i n ed by one attorney ’ s de minimis absence from trial. 1 0 To the ex tent Mikhel wishes to arg ue that h is counsel failed to adequately represent him, that is an i n e f f e ctive assistance of counsel claim, not a violation of § 3005.

Reg ardless, any error wa s harmless. 1 1 Mikhel does not alleg e any p rejudice stemming from Callahan’s absence. Nor could h e. B oth of his counsel worked o n his case f o r y ears before trial, and b oth were present at trial for, inter alia

, voir dire, opening s, the testimony of the thr e e key cooperating coconspirators, Mikhel’s testimony

, closing s, g uilt-phase verdicts, the e ntire penalty phase, and sentenc ing

. Callahan

was absent only for the e x amination of six foundational witnesses ( whom he could h ave r e c alled b ut chose not to) a nd the deposition desig nations of t h r e e s u b s t a n tive witnesses (the

10 W e n eed n o t ad d ress w h eth er a m o re ex ten d ed ab sen ce o f seco n d

co u n sel m ig h t

v io late § 3 0 0 5

.

11 Mik h el relies h eav ily o n a p air o f Fo u rth C ircu it cases h o l d i n g th at

a co u rt’ s f

ailu re t o ap p o i n t a seco n d atto rn ey af ter a cap ital d ef

en d an t’ s req u est v io late s § 3 0 0 5 a n d can n o t b e h arm less erro r. Un ited S ta tes v. Bo o n e , 24 5 F.3 d 3 5 2
, 3 61 & n .8 (4 th Cir. 2 0 0 1 ); Un ited S ta tes v. W a tso n , 4 9 6 F.2 d 1 1 2 5
, 1 1 2 9

– 3 0 (4 th Cir. 1 9 73 ). Neith er case ad d resses a situ atio n lik e t

h at h ere, w

h ere a seco n d atto rn ey w as ap p o in ted b u t m issed a h an d f u l o f trial d ay s.U N I T E D S T A T E S V

. M I K H E L 51

admissibility of which w as litig ated before trial). Callahan’s three-day absence in no way prejudiced Mikhel.

Kadamovas raises a simila r but distinct arg ument. He

c l a i ms the district court v iolated § 3005 by deny ing h i s requests to continue tr i a l t o allow one of his a ttorney s more time to prepare. 1 2 Even a s suming without deciding that deny ing a c o n tinuance could violate § 3005 under some circumstances, there w as no violation here. Trial in this case

was orig inally scheduled for 2002, but was continued several times until it was finally set f or J uly 2006. I n N ovember 2005, ten months before trial, one o f Kadamovas’s attorney s (B rewer) submitted a declaration s t a ting she did not have time to p rep are the case to her client’s satisfaction. As a result, the d istrict court a

ppointed Sonia Chahin in her stead.

I n March 2006, Kadamovas unsucces s fully moved to continue the trial date to allow Chahin more time to prepare. L ess than a w eek before trial, Kadamovas u n s uccessfully moved for a continuance ag ain. Trial beg an as scheduled on J u l y 1 1
, 2 0 0 6
, w i t h p o t e n t i al j u r o r s c o m p l e t i n g questionnaires. There was t h e n a month-long break to accommodate Chahin—who h a d another trial that J uly

— before proceeding s resumed on Aug ust 15, 2006, with vo i r dire.

Notably

, between appointment in November 2005 and the beg inning of trial in J uly 2006, Chahin billed a l m o st 900 hours on this case. A nd in the f our y ears leading up to trial,

12 K ad am o v as also v ag u ely asserts t h a t t h e d istrict co u rt’ s den ial of h is m otio n s f

o r a co n tin

u an ce v io lated h is co n stitu tio n al rig h ts. He o f

f ers

n o arg u m en t to su

p p o rt a co n stitu

tio n al v io latio n , an d w e f

in d n o b asis f

or

o n e.U N I T E D S T A T E S V

. M I K H E L 52

Kadamovas’s other attorney , L a sting

, billed over 4,000 hou r s. Moreover, w e c an n ot overlook the benefit Chahin derived from B rewer’s prior y e ars of work. Chahin was not starting from a blank slate; she had ten months to g et up to speed; she billed 900 h ours before trial beg an; and Kadamovas concedes she play e d a substantial role at trial, taking 30 percent of the witnesses. The d i s t r i ct court’s d enial of Kadamovas’s motions for a continuance did not violate § 3005.

Finally

, like Mikhel, Kadamovas makes little attempt t o

ex p lain why he was prejudiced in this reg ard. At best, he
stat e s : “Chahin went from a six -week murder trial into this
g rueling trial without reviewing much of the discovery a nd

never traveling to L ithuania to investig ate Mr. Kadamovas’s backg round.” B ut he does not ex plain what discovery Chahin failed to review that mig ht have chang ed the jury ’s verdict o r why traveling to L ithuania was e s s en tial to effectively representing him. His contention that Chahin h ad inadequate time to prepare is also b elied b y the ex tensive hours she spent

on the case. Thus, e v en if there were a technical violation o f § 3005, it would be harmless.

8. Ex cluded testimony

reg arding cooperating w itnesses

Altmanis, Solovy eva, and Markovskis all testified for the
g overnment as coopera

t i n g w i tnesses. On cross-ex amination, defendants attacked their credibility by questioning them about their plea ag reements. On redirect, the go v e rnment soug h t to rehabilitate Solovy e v a and Markovskis’s credibility by eliciting testimony to the effect that their plea ag reements would be voided if they c ommitted perjury

. Defendants then
soug h t to on e

- up the g overnment o nce more, proffering Clifford Smith as an ex ample of a cooperating witnes s w ho had c ommitted p e r

j u ry in a different case withoutU N I T E D S T A T E S V

. M I K H E L 53

repercussion. The district court held the proffered testimony irrelevant. W e review the d istrict court’s evidentiary ruling s for a buse of discretio n

. See United States v. Orm Hieng
, 679 F .3d 1131, 1135 (9th Cir. 2012).

Smith had no connection to defendants, the crimes, or the investig ation. H e had merely testifi e d i n another case pending in the same courthouse. According to d efendants, he committed p erjury in that case and suffered no co nsequence for doing so. K adamovas a rg ues that the g overnment’s efforts to rehabilitate Solovy e v a and Markovskis c reated the misleading impression that the go v e rnment alway s c ontrols cooperating witnesses by prosecuting them if t h e y l i e. He claims the g overnment th er e b y opened the door to Smith’s “profile” evidence reg arding the U n i ted States Attorney ’s Office’s modus operandi with respect to cooperating witnesses who commit perjury

. Contrary to Kadamovas’s arg uments, the p roffered testimony was plainly ex cludable. The re is nothing in the record to indicate that a

ny o f the c o operating witnesses knew that Smith h ad committed perjury and not b e e n p r osecuted. Cf. United States v. Chang Da Liu
, 538 F .3d 1078, 1088 (9th Cir. 2008). Smith’s possible history of perjuring himself with im punity was at most minimally probative of Altmanis, Solo v y eva, or Markovskis’s credibility and threatened to create a distracting trial-with i n-a-trial reg arding events having nothing to d o with thi s case. I n this reg ard, Kadamovas’s r e l i a n ce on our decision in U nited States v

. Beltran-R i o s is inapposite. 878 F .2d 1208 (9th Cir. 1989). There, the defendan t w as charg ed with a drug trafficking crime a nd arg ued in his de f

e n s e that he lacked the ty pical characteristics of a drug trafficker. I d. at 1210. W e held that the prosecution could rebut this arg ument throug h otherwiseU N I T E D S T A T E S V

. M I K H E L 54

inappropriate “cr i m i n a l profile” testimony

. Id. at 1212–13. Here, by contrast, defendants’ proffered evidence had at most

an ex tremely limited b e aring on the witnesses testify ing

. There was no abuse of d iscretion in ex c luding the evidence. 1 3

9. Mikhel’s competency

Mikhel arg ues the district c ourt erred in failing to hold a hearing to evaluate h is competency at numerous points during trial. “ I t is well established that a conviction obtained ag ainst

an incompetent defendant is a clear violation of the

cons t i t u t ional g uarantee of d ue process.” United States v

. L o y o l a-Dominguez
, 125 F .3d 1315, 1318 (9th Cir. 1997) (quotation marks omitted). “Comp e t e n cy requires that the defendant have the ‘capacity to understand the nature a nd object of the proceeding s a ga i n st h im, to consult with counsel, and to assist in preparing h is defense.’” Id

. (quoting Drope v. Missouri
, 420 U .S. 162, 1 71 (19 7 5 ) ) ; see also 18 U .S.C. § 4241(a) (co d ify ing this standard). The competency rig ht does not end at a conviction but e x tends to “post-conviction proceeding s,” including t h e p e nalty phase o f

a capital trial. United States v. Duncan
, 643 F .3d 1242, 1248 (9th Cir. 2011).

Th e p a r ties dispute whether the district court held a competency hearing in this case. W e need not resolve that dispute and a ssume without d eciding that no compe tency hearing occurred. F or this reas o n , a n d because defense

13 K ad am o v as also arg u es th e ex clu sio n o f th is ev id en ce ro se to th e lev el o f a co n stitu

tio n al v io l atio n b y d ep riv in g h im o f h is rig h t to p resen t

a co m p lete d ef en se. B u t ev en if th e ev id en ce w as m in im ally relev an t , i t d id n ot v i o late d u e p ro cess to ex clu d e it. S ee W o o d v. Ala ska

, 9 57 F.2 d 1 5 4 4 , 1 5 4 9 (9 th

Cir. 1 9 9 2).U N I T E D S T A T E S V

. M I K H E L 55

counsel never moved for a competency hearing

, 1 4 we pass to considering w hether the district court plainly erred in failing
to order a competency hearing sua sponte. See United States v. Dreyer , 705 F .3d 951, 960 (9th Cir. 2013).

I n this respect, our “inquiry is not whether the trial court could h a v e found the defendant either competent o r incompetent, nor whether the reviewing court would find the defendant incompetent.” Id. (alterations omitted). Rathe r , w e look to see “if the evidence of incompetence was such that a reasonable judg e would be ex pected to ex perience a genuine doubt r especting the defendant’s competence.” Id. (emphasis added); see also Duncan
, 643 F .3d at 1249 n.2 (discussing the various way s w e have articulated this standard); Chavez v

. United States
, 656 F .2d 512, 516 n.1 (9th Cir. 1981) (same). “To raise a g enuine doubt, there must be substantial evidence that, due to a mental disease or defect, the defendant is either unable to understand the nature and c o n s eq uences of the proceeding s ag ainst him o r to assist properly in his d efense.” United States v. G arza , 7 51 F .3d 1130, 1134 (9th Cir. 2014) (quotation marks omitted). “Among th e f a ctors to consider when evaluating whether a court e r re d in failing to order a competency hearing sua sponte , are the defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion

on competence[ ;] h owever, n one of these factors is determinative, and ev e n o ne of these factors standing alone
may , in some circumstances, be sufficient.” Dreyer
, 705 F .3d
at 964 ( ci tations o mitted) (quotation marks omitted) (alterations omitted).

14 Mik h el arg u es plain erro r rev iew is im pro p er b ecau se h is co u n sel

“ ex p ressed d o u

b t” o f h is co m

p eten cy at th ree d if

f eren t p o in ts du rin g trial. A s w e ex p l ain belo w , th e d o u bts raised w ere h ig h ly ten tativ e, an d w e are

u n co n v in ced Mik

h el ev er sq u arely

m o v ed f o r a co m p eten cy h earin g

.U N I T E D S T A T E S V

. M I K H E L 56

Mikhel identifies three different points at which he believes the c ourt should have held a g enuine doubt as to his competency a

nd therefore held a hearing : (1) at the trial’s

on s et; (2) at the end of the g u ilt phase; and (3) during the penalty phase. W e beg in by reviewing Mikhel’s pretrial history of mental illness and then address each trial seg ment in turn.

After his f

irst e scape attempt, Mikhel was moved to a hig h securit y section of SB -CDC and placed under Special Administrative M e a sures. I n J anuary 2004, more than two
y ears before his trial beg an, he attempted to commit suicide by cutting a

n artery in his ankle. Mikhel would later e x plain that this was an impulsive act that he did not plan out and that he was feeling

hopeless about his case at the time.

F ollowing the suicide attempt, Mikhel was moved to the W e st V alley Detention Center (“W V DC”), where he received
treatment f

rom psy chiatrist Dr. I nderpal Dhillon. Dr. Dhillon orig inally d i a g nosed Mikhel with major depression a nd prescribed anti-depressants. L ater, she concluded he suffered from b ipolar disorder and revised her treatm e n t p lan according ly

. During t h r ee meeting s in early 2004, Dr. Dhillon noted that Mik hel suffered from auditory hallucinations, including speaking to people who were not there and hearing electricity

. Mikhel continued to b e treated, and nothing indicates that he suffered from any form o f hallucination at any

later point. 1 5

A y ear passed, and in April 2005, Mikhel a ttemp t e d to take h is life a second time by h oarding his medications a nd

15 In d eed

, D r. Dh i llo n attrib u ted th ese sy m p t o m s to a m ed icatio n th at sh e h ad p rescrib ed

.U N I T E D S T A T E S V

. M I K H E L 57

taking them all at once. H e reported that his reason was t he

same as b efore—that he w as feeling hopeless about his c ase. Afterward, Dr. Dhillon continued to treat Mikhel and no t ed h e was showing sig n s of hy pomania, including incre a s e d activity

, racing

thoug hts, and feeling s of g randiosity

.

Another y ear passed, and in May 200 6, Mikhel was transferred back to MDC, w h ere he would be held during trial. The medical staff there diag n osed him with depression and prescribed anti-depressan t s

. Prior to trial, defense counsel had psy chiatrist Dr. W illiam Vicary e x amine Mikhel. I n a September 5, 2006, letter, Dr. Vicary opined th at Mikhel’s demanding and irritable behavior was “larg ely d ue to h is untreated B ipolar Disorder.” He summarily concluded that Mikhel’s c ompetency would b e “enhanced” with proper treatment, but g ave no opinion as to Mikhel’s competency to stand trial.

On the e ve of opening statements, Mik h e l attempted suicide a third time by try ing to hang him s el f w i t h a sheet. Once ag ain, his stated reason for d o i n g so was hopelessness about his case. The nex t day he insisted o n appearing in court in h is jail g arb, with a lig ature mark v isible on his neck. The
court addres s e d the incident with Mikhel’s counsel, w ho stated that “ with [ M i k hel’s] suicidal f rame of mind, I don’t know that h e’s competent.” Counsel s u gg ested Mikhel should b e m e dically ex amined but never moved f o r a competency hearing

. T h e court ag reed to another medical

ex a mination and o r dered an MDC staff psy chiatrist to evaluate Mikhel.

The f ollowing week, MDC’s chief forensic psy cholog ist, Dr. Ralph I hle, completed a full forensic evaluation of Mikhel and submitted a comprehensive re p ort to the court. Dr. I hleU N I T E D S T A T E S V

. M I K H E L 58

spoke to Mikhel’s attorney s and reviewed Mikhel’s personal history and prior treatment, including Mikhel’s medical records, a d e claration from Dr. Dhillon, Dr. V i cary ’s initial S ep t e mber 5, 2006, letter, and a f ollow-up letter from D r. V i cary reiterating his bipolar d iag nosis. Dr. I h le a l s o personally interviewed Mikhel and f ound that he w a s able to follow d irections and maintain daily r outines at MD C ; t h at his demeanor was polite and cooperative; that he eng ag e d in appropriate reciprocal communication; that there was no evidence of him ex periencing h allucinations, del u s i ons, o r confusion; that h e had no s i g nificant deficits in attention, concentration, or m e m ory ; and that h e showed no sig ns o f

o d d or biz a

rre behavior, thoug h he was depressed a n d

ex p ressed that he felt hopeless about his case. Dr. I hle tested Mikhel’s intellectual functioning and believed he was “within the hig h or above averag e rang e”:

Mr. Mikhel’s v erbal behavior during the evaluation sug g est e d t hat he was within the hig h or above averag e r ang e of intellectual functioning

. He d e monstrated adequate Eng lish g rammar for someone e ducated i n a foreig n country , and a

n above averag e Eng lish

voca b ulary

. His speech was w ell org aniz ed

a n d sufficiently g oal directed. H is log ic wa s easy to follow, and his associations were adequately or ga niz e d with a normal flow o r continuity of ideas. He is also well read in the subject of philosophy

. H e discussed his views

on ex istential philoso phy works by F rankel and Nietz sche, reg arding the meaning of life and Nihilism. He had g ood r ecall of some of the passag es or concepts espoused in t he books. I n summary , the objective informationU N I T E D S T A T E S V

. M I K H E L 59

sug g ests that Mr. Mikhel is most likely functioning in the hig h to above averag e r ang e of intellig ence. He does not ex hibit any sig nificant si g ns of cog nitive impairment o r g ross brain d ama ge

. His intellectual functioning supports his hav i n g the present ability to u n d e r s t an d t h e nature a nd

c o n sequences of the charg es b roug ht a g ainst him, or to properly

assist in his defense.

W ith r espect to Mikhel’s u nderstanding o f the charg es ag ainst him, Dr. I hle noted th a t Mikhel could clearly articulate the charg es; that he k

new they w ere serious felonies and that he could f ace the death penalty ; that he understood the different ty pes o f p l e as and their leg al c onsequences; and that he h ad

an adequate understanding o f courtroom participants a nd procedures, as well a s appropriat e courtroom behavior. Mikhel told him he was willing to cooperate with an attorney but lacked c onfidence in his present attor n e y s because they did not follow his sug g estions.

B a sed on th e materials he reviewed and his personal

ex a mination, Dr. I hle concluded that Mikhel was competent to stand trial:

B a sed on the information available, there is evidence to indicate that Mr. Mikhel suffers from a Major Depressive Disord e r , but the
sy mptoms do not impair his present ability to understand the nature and consequences of the
court p roceeding s ag ainst him, or his ability to properly assist counsel in his defense.U N I T E D S T A T E S V

. M I K H E L 60

The presence of a Major Dep r e ssive Disorder, or any other disorder, does not, in and of itself, render an individual s o compromised a s to lack the ability to

u n d erstand leg al materials a nd to cooperat e with defense counsel in a rational m a nner. Despite the presence of sy mptoms of a Major D e pressive Disorder, the d efendant was able
t o articulate a coherent and c o mprehensive history

, and did not appear to have any d ifficulties in ex pressive (i.e., speaking ) o r receptive (i.e., u nderstanding ) lan g uag e

. Overall, the defe n d ant was able to offer

re levant a

nd meaning ful information to this

eva l u a tor reg arding both h istorical data a nd leg al matters. During the competency portion of the evaluation, he p r ovided appropri ate responses to the questions posed to him. He did not appear to ex perience a ny difficulties in communicating his thoug hts to the evaluator,

n or did he p arrot the information. A n y difficulties he e x hibi t s with respect to leg al

couns e l a r e volitional, and a reflection of his perception that his d efense ag ainst the charg e s is hopeless at this point.

Dr. I hle submitted his repo r t t o the court on September 14, 2006, and the court found the same day that Mikhel was “competen t to stand trial.” Ag ain, we need not decide whether the cour t ’ s consideration of Dr. I hle’s report amounted to a competency hearing

. W hat matters f o r o u r purposes is whether the d istrict court plainly e rred in failing

sua sponte to order a

ny additional c o mpetency proceeding

. Dr. I hle’s opinion respecting Mikhel’s competency a nd theU N I T E D S T A T E S V

. M I K H E L 61

absence of any clinical evidence of incompetence disting uish this case from those in w hich we have found r eversible error. See, e.g. , Duncan
, 643 F .3d at 1 246–50 (reversing denial o f

a co m petency hearing where court was faced with five

com p e t ing ex pert reports, some finding “no evidence o f
psy chotic b ehavior” and others f inding “severe psy chosis”); Odl e v. W oodford

, 238 F .3d 1084, 1087–89 (9th Cir. 2 001) (reversing for retrospective c o mpetency he a r i ng because defendant had well-documented b rain damag e resu lting in hallucinat ions, “psy chotic behavior,” suicide attempts, a nd “behavioral disturbances bey ond his control”).

I n this r eg a rd, Mikhel’s prior suicide attempts d id not

r e q u i r e the court to sua sponte order a competency hearin g; not “every suicide a t t e mpt inevitably creates a doubt concerning the d e f

en d a n t ’ s competency .” LoyolaD o minguez
, 125 F .3d at 1318–19. Mikhel attempts t o analog iz e his c ase to Loyola-Dominguez

, where t he defendant also attempted suicide on the eve of trial. B ut the trial court in Loyola-Dominguez did not elicit a d equate information to dispel serious concerns reg arding com p e tency

. Rather, the trial court inquired how lon g i t w ould take to g et an evaluat i o n and then conducted a brief colloquy with the defendant. See id

. at 1319 ( “Also of conce r n is [L oy olaDoming uez ’s] response to the question from t h e c o u r t, ‘Do
y ou know what’s g oing on? ’ L oy ola-Doming uez answered, ‘I don’t know. I ’ve never been like this, so I don’t know.’”). Here, by c o n t r a st, the district court ordered a forensic evaluation after Mikhel’s third suici d e attempt and the resulting report found no impairment to Mikhel’s ability to understand the n ature and o b j e c t o f trial or to aid in his defense. Every doctor t o ex amine Mikhel after a suicide attempt reported that he t r i e d t o take his life because he
reg arde d h i s f

uture as hopeless. B ased on these facts,U N I T E D S T A T E S V

. M I K H E L 62

Mikhel’s suicide attempts, althoug h n aturally concerning

, did not raise a g enuine doubt as to his competency

.

A s for Mikhel’s decision to wear his jail g arb in c o u r t , this is the ty

p e of “biz arre action[ ] ” we have said is “ not

n ecessarily sufficient evidence to c ompel a [ competency ] hearing ” but is “a factor to be considered.” Torres v. Prunty
, 223 F .3d 1 1 0 3
, 1109–10 (9th Cir. 2000). Mikhel later provided a reasoned ex planation f o r h i s d ecision, stating he felt it w ould have been superfic i a l to wear civilian clothes

on l y d u r ing the few h ours a day h e spent in c ourt. His decision to wear his jail g arb did not c re a t e a g e nuine doubt

as to his competency

. S

ee Davis v. W

o odford

, 384 F .3d 628, 645–46 (9th Cir. 2004) (the defendant’s “ decision not to wear civilian clothes a

n d to remain in the doorway of the courtroom” during a capital trial did not mandate r e v e r sing for a competency hearing g iven that he “was evidently a ware of the risks of his behavior

. . . and rationally weig hed those risks”). Althoug h w e acknowledg e the c o n fluence of these circumstances is concerning and that a competency h earing mig ht have been prudent, we cannot say t h e district court plainly erred by failing to sua s p o n t e order a hearing at the outset of trial.

N e x t, Mikhel asserts the district court should hav e ordered a competency hearing n ear the end of the g uilt phase. A few months into trial, Mikhel sent the court a handwritten request for new counsel, which complained that his attorney s

were unwilli ng to implement his trial-strateg y sug g estions. The court reject e d Mikhel’s r equest, and defense counsel asked that Dr. I hle ex a mine Mikhel ag ain. The court refused, stating it was receiving oral r e p orts from MDC k eep i n g it “fully abreast” of Mi k

hel’s mental condition a nd that “nothing

. . . indicates [ Mikhel is ] s l ipping o r failing in anyU N I T E D S T A T E S V

. M I K H E L 63

w a y .” Mikhel later f

iled a second r equest for new counse l based on disag reement s w i th his attorney s over whether he should testify

. The c ourt ag ain denied the request. At the
very end of the g uilt p hase, M i k h el testified on direct for three d ay s b ut refused to b e cross-ex a mined. The court struck this testimony

, and Mikhel refused to appea r i n court thereafter (ex cept to hear the g uilt-phase verdict).

M ikhel’s requests for new counsel did not rais e a n y g enuine doubt as to his compe t e n c y ; to the contrary , they evinced h is intellig ence, his firm g rasp of the proceeding s a nd
t h e l eg al sy stem, and his o wn strong views on the be s t strateg y for his defense. F or instance, in r esponse to Mikhel’s alleg ations that his attorney s were not adequately communicating with him or preparing him to testify

, his lead counsel asserted, and the c o u rt ag reed, that Mikhel was merely “attempting to put appellate issues into the recor d.” Moreover, Mikhel’s stricken testimony

, thoug h perhaps ill advised, was not irrational. The e vide n c e ag ainst him was overwhelming

, and he had nothing to lose in this “Hail Mary ”

a ttempt to ex culpate himself and Kadamovas. Throug h o u t his three day s of testimony —which we describe in gr eater detail below—he carefully developed a them e t h at he was a wealthy white-collar criminal o perating at the marg ins of the law and thus had no reason to eng ag e in the c o m p a ratively hig h-risk, low-reward violent hostag e taking s he was charg ed with committing

. This testimony clearly demonstrated the native intellig ence identified by Dr. I hle, as well a s the ability
to understan d and respond to questions, convey a narrative, and recall details f

rom e v e n ts spanning decades. 1 6

16 Mik h el also h ig h lig h ts th at h e w as u n s h av en an d “ u

n k em p t” d u rin g th is stag e o f trial. B u t w

h en h is co u n s el raised th e issu e w ith th e d istrictU N I T E D S T A T E S V

. M I K H E L 64

According ly

, the final months o f the g uilt phase provided the district court little or no reason to question Mikhel’s competency

.

F inally

, we consider the penalty p hase. Mikhel refused to be present in court for any o f the penalty proceedin gs

. H is mitig at i o n case proceeded without him and included testimony from Drs. Vicary and Dhillon reg a rding his mental health. Dr. Vicary asserted th a t M ikhel suffered from paranoid d elusion and reported that Mikhel said his attorney s, th e judg e, and the g overnment were “all working ag ainst him.” Dr. Vicary attributed this in part to Mikhel being k ept under special administrative conditions for a long time a nd believed prescribing a m o o d -stabiliz ing medication would reduce these sy

mptoms. H e f

urther testified Mikhel was “faking health” as patients who want to avoid treatment often do. He ex plained: “He’s craz y

. He’s irrational. You cannot sit down with [ Mikhel] and spend time with him and ask him
q u e s t i o ns before he g ets into this ‘every thing is rosy , I have no problems, and it’s all just a conspiracy ag ainst me.’”

Day s later, Mikhel filed a nother request for new counsel. I n a hearing in which Mikhel was initially absent, his counsel represented that Mikhel wanted to submit to a psy cholog ical evaluation “to show that he has no mental problems” and “ is totally competent in ev ery thing he does.” Counsel also asserted Mikhel wa s “doing every thing in his power

. . . to throw a monkey wrench into [ the d efense’s] ability to put on any kind o f a mitig ation d efense.” Counsel further stated: “I have a question as to Mr. Mikhel’s compete n c y

. I don’t object to h i m b eing submitted to an independent,

co u rt, Mik

h el ex p lain ed h e w as u n sh av en b ecau se MDC lim ited h is access to a b eard trim

m er w h ile h e w as o n

su i cid e w atch

.U N I T E D S T A T E S V

. M I K H E L 65

psy cholog ical or men tal evaluation.” The court responded that, “based upon all the reports that I h ave received, he is competent to stand trial.” Althoug h c ounsel ’ s statement came close to a request for a competency hearing

, counsel himself did not sug g est that Mikhel mig ht be incompetent. Rather, counsel’s statement that he would n ot “ object” to an independent evalu ation was an accommodation to Mikhel, who wanted an evaluation to prove he was competent.

The court then heard from Mikhel, who ex tensively criticiz ed his c ounsel. Mikhel took issue with D r

. Vicary referring to him as a “patholog ical liar” on cross-ex amination

a n d w ith his c ounsel’s failure to address this testimony on redirect. Mikhel asserted this w as an intentional omission b y his c ounsel: “I n my opinion, he’s not doing that because he’s
g oing to use the very , very same statement to discredit me on the f urther actions w hen his performance and his conduct will be put in review later on.” Mikhel ex plained he had planned
to testify for two weeks in order to count e r a l l of the
g overnment ’ s e vidence ag ainst him. T he reason why he refused to be cross-ex amined or atte n d t h e remainder of the trial was because h is counsel a ba n d o n e d this strateg y

. The court denied Mikhel’s request for new counsel.

Mikhel now arg ues that, by the end of tri a l

, t h e cumulative evidence of hi s purported incompetency resembled that in D rope

. There

, the state court was a ware from a pretrial psy c hiatric report that the defendant h ad difficulty p a r t icipating in the ex am, counting

, and telling time; was “marke d l y circumstantial and irrelevant in his speech;” was diag n osed with a borderline mental deficiency and depression; and had a history of p urposefully f a l l i ng down flig hts of stairs to g e t attention. D rope , 4 2 0 U.S. at 165 n.1, 175–76. Moreover, in the midst of trial, the defendantU N I T E D S T A T E S V

. M I K H E L 66

shot himself in the s t o m a c h

. Id

. a t 166–67. The Supreme Court held that the state trial court erred in not sua sponte holding a competency

hearing

. I

d. at 181–82.

Two k ey facts disting u ish Drope from the instant c ase. F irst, there was no forensic competency evaluation performed in Drope , and no mental health professional had o pined that the defendant in that case was c ompetent to stand trial. Id

. at 180. I ndeed, the psy chiatric r e p o r t —which called into
q uestion the defendant’s ability to even comprehend t h e proceeding s and was thus f ar more drastic than the o p inions Drs. Vicary and Dhillon rendered—was the only professional

e v a l u ation o f the d efendant’s mental health. See M endez v

. Knowles

, 556 F .3d 757, 773 ( 9th Cir. 2009) ( d i s t ing u ishing Drope b ased, in part, on the “finding of the c ourt-appointed

ex p ert that Mendez was competent to stand trial”). Secondly

, the defendant in Drope was absent from the remainder of trial due to h is suicide attempt, and as a result, “the trial judg e a nd defense counsel were n o long er able to o b serve him in the
contex t of the trial and to g aug e” his c o m p e t e nce. Drope
, 420 U.S

. a t 181. Althoug h Mikhel v oluntarily absented himself from the penalty phase, t h e d i s t rict c ourt held two h e a ring s with him in lock-up and thus had the abili t y t o observe h is demeanor, comprehension of the risks, and ability
to respond to questions. S e e D avis
, 384 F .3d at 646 (disting uishing Drope based on trial judg e’s ability to observe defendant on day s h e d e c i ded to sit a t defense table rather than courtroom’s doorway ). Mikhel’s attempt to a n a log iz e Drope to his case is without merit.

Mikhel also c i t e s Torres
, where the defendant was convicted of shooting seve r a l doctors at a hospital d ue to delusional beliefs they had injected him with AI DS as part o f

a conspiracy ag ainst h im. 223 F .3d at 1105. A c o u r t

-U N I T E D S T A T E S V

. M I K H E L 67

appointed psy cholog ist diag nosed the defendant w ith “ severe delusional ( paranoid) disorder,” a nd the defendant believed his counsel a

nd the court were part of the conspiracy ag ainst him. Id

. a t 1105, 1 1 08. W hile there are some parallels, this

case is not Torres

. There, the defendant’s delusions w e re well documented and evident throug h out every facet of the

cas e , i ncluding his commission of the crime. Thoug h Dr. Vicary testified that Mikhel suffered f r o m p a ranoid delusions, he did not ex pound upon any pe r c e i ved conspiracy

. Telling ly

, Mikhel h imself had many opportunities to ex press

su c h v i e w s throug h his r equests for n e w counsel and the resulting hearing s, bu t h e at most criticiz ed his attorney s’ unwil ling ness to follow h is desired trial strateg y a nd

ex p ressed his opinion th a t h i s counsel was attempting to discredit him in anticipati o n o f a c h arg e of ineffective assistance of counsel. Most notably

, Mikhel’s own counsel, who presumably had the most contact with Mikhel and h ad the b est opportunity to observe his mental state, never moved for a competency

hearing

.

As we concluded for the trial’s g uilt phase, this evidence demonstrates Mikhel’s understanding of the nature and object of the trial and his familiari ty with his appellate rig hts. He disavowed that he was try ing to undermin e his o wn mitig ation defense and b lamed his absence from trial on his disag reement with his attorney s. This bolsters the district court’s conclusion that Mik h el was merely attempting to manufacture issues for a

p peal. “Althoug h there is little doubt that [ Mikhel] was recalcitran t a n d acted in way s that were detrimental to his case, h is interactions with the trial judg e indicated that he u nderstood what w as at stake dur i n g the penalty p hase and could make informed decisions.” D a vis
, 384 F .3d a t 645; see a l s o Garza
, 751 F .3d at 1136 (“A defendant who refuses to w o r k with his lawy er out of spiteU N I T E D S T A T E S V

. M I K H E L 68

alone is not incompetent even if that defendant h as a serious mental disea s e or defect.”). According ly

, the penalty phase
y ielded no g enuine doubt o f Mikhel’s c ompetency , and the district court did not p l a i n l y err in failing to hold a competency

hearing sua sponte at any stag e of trial.

10. Kadamovas’s Confrontation Clause claim

Kadamovas claims Mikhel’s testimony and refusal to be

cross-ex amined violated his Six th Amendment confrontation rig ht and p rejudiced h im in b o th the g uilt and penalty phases. W e review alleg ed Confrontation Clause violations de novo. See United S

tates v. Peterson
, 140 F

. 3d 819, 8 2 1 (9th Cir. 1998).

Mikhel’s testimony on direct spanned three day s. During the first two d ay s, M ikhel testified about his life before the offense c onduct at issue here. Much of t his testimony concerned h is purportedly lavish lifest y le as a successful
smug g ler and money launderer. F or instance, he testified that he purchased a $17 million y acht to smug g le “big quantities” of money between countries, that he traveled throug hout the Caribbean, Europe, and Asia to advance his illicit e nterprises, and that he used a viney ard outside Modesto, California, as a “safe house” for paperwork and money

. According t o Mikhel’s c ounsel, the p urpose of this test i mony was to proacti v e ly raise Mikhel’s past misconduct—which did not involve kidnapping o r murder—and to “e s t a blish[ ] a foundation for what he did later.”

Mikhel had relatively little to say about Kadamovas in his testimony

, and what h e did say offered innocent ex p lanations for some o f the g overnment’s evidence ty ing himself a nd Kadamovas to the kidnapping s. Mikhel testified thatU N I T E D S T A T E S V

. M I K H E L 69

Kadamovas once h e l p e d him smug g le money out of the United States by strapping bricks of cash to their bodies using plastic ties (thus ex plaining the p lastic ti e s l a t e r found in Mi k hel’s home). H e further testified that Kadamovas participated in smug g ling schemes to Cuba and Cy r u s. And h e testified that Kadamovas assisted him in an ex tortion scheme, in which they v ideotaped a meeting with a man w ho
soug h t their hel p h iring an assassin and then threatened to publish the tape unless the man paid them $50,000.

On his third day of testimony

, Mikhel turned to the events underly ing this case. He claimed that an unnamed associate wanted Muscatel to be “taug ht a lesson” and that he hired Altmanis for the job, merely instructing Altmanis to “ do whatever y

ou think y ou’re supposed to do” without wanting him to kill any one. Mikhel said he told Altmanis, “ I don’t
want to know what’s g oing to happen after y o u l e a ve here.” He also said that his conversation wi th Altmanis c aused him to be concerned about the money in his h o me, prompting him and Kadamovas to drive to his Modesto s a f e h ouse the

nex t day (thus ex plaining the cellphone d ata showing them making that trip).

Mikhel also testified to some events connected to the U m ansky f

amily ’s ransom p ay

ments, asserting that h e beli e v ed h e was only helping Altmanis launder this money

a nd d id not know its provenance. W ith reg ard to b e i n g caug ht on a surveillance c amera using U mansky ’s ATM c ard, Mikhel said h e purchased the c ard from Altmanis to facilitate creating shell corporation s

. A s for the Safiev-related p lots, Mikhel testified he used Pekler and Kharabadz e to lure Safiev into a meeting in order to help Safiev. M i k h e l c laimed that unnamed individuals w ere a f t er Safiev f

or cheating them o f $50 million, that he soug ht a meeting w ith Safiev to a ss i stU N I T E D S T A T E S V

. M I K H E L 70

him in d isappearing to safety

, and th at h e ex pected several million d ollars in co mpensation for his services. Mikhel

wove a complicated story to thi s e ffect, which included him and Kadamovas o n ce ag ain making trips to the Modesto safe house. Mikhel e nded h is t e s t i m o n y b y attesting that he did
not kill Muscatel, Pekler, Umansky

, Kharabadz e, or S a fiev. W h e n he r efused to b e cross-ex amined, the district court struck his testimony a

n d instructed the jury not to consider it “in any matter ag ainst Mr

. M ikhel or ag ainst Mr. Kadamovas.”

Kadamovas arg ues that the district court’s instructi on could not c ure his inability to cross-ex amine M i khel under Bruton v. United States
, 3 91 U.S. 123 ( 1968). I n Bruton
, the Supreme Court held that a defendant is d eprived of his Six th Amendment rig h t of confrontation when a facially incriminating confession of a nontestify i n g codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only ag ainst t h e codefendant. 1 7 Bruton
, 391 U.S. at 126. This holding “recog niz ed a narrow

ex c e ption” to the “assumption of the l a w that jurors f ollow their instructions.” Richardson v. Marsh

, 4 81 U

. S. 200, 206–07 ( 1 9 8 7 ) (citing Bruton
, 391 U.S. at 135–36). The Court reasoned:

[ T] here are some contex ts in which the risk
t h a t the jury will not, or cannot, fol l o w

17 In th e Bru to n lin e o f cases, “ co d ef en d an t ” ref

ers to th e i n d iv id u al

w h o co n f esses an d in cu l p ates bo th h im self an d th e “d ef en dan t.” Fo r in stan ce, in Bru to n , Ev an s (t h e c o d ef en d an t ) co n f

essed d u rin g an i n terro g atio n th at h e an d B ru to n (th e d ef en d an t ) co m

m itted a r m e d

ro b b ery

. 3 9 1 U .S. at 1 2 4

. T h e co n f essio n w as ad m itted at th eir j o in t trial, b u t th e trial co u rt in stru cted th e j u ry to co n sid er it o n ly as to Ev an s an d n o t as to B ru to n

. Id

. at 1 2 4

– 2 5

.U N I T E D S T A T E S V

. M I K H E L 71

instructions is so g reat, a

nd the c onsequences of f ailure so vital to t h e defendant, that the practical and human limitat i o ns of the jury
sy stem cannot b e i gnored. Such a contex t is
p resented

. . . where the powerfu l l y incriminating extrajudicial s t atements of a codefendant, who stands accused side-by

- side

w i th the defendant, are deliberately spread b efore the jury in a joint trial. N ot o n l y a r e t h e i n c r i m i n at i o n s d e v a s t at i n g t o t h e defendant bu t t heir c r edibility is inevitably suspect

. . . . The unreliability of such evidence is intolerably c o mpounded when the alleg ed accomplice

. . . does not testify and
cannot be tested by cross-ex amination. I t was ag ainst such threats to a fair trial that the Confrontation Clause was directed.

Bruton
, 391 U .S. at 135–36 (emphasis added) (ci t a t i o ns omitted).

The Court n arrowed Bruton ’s scope in Richardson

, where it held that there is no Co n f r ontation Clause v iolation if the codefendant’s confession must be linked to other evidence to incriminate the defendant. Richardson

, 481 U.S. at 208. “W h e re the necessity of such linkag e is involved, it is a less valid g e neraliz ati o n t h at the jury will not likely obey the instruction to d isreg ard the evidence. Specific testimony that ‘the d efendan t helped me commit the crime’ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind.” Id

. The Court rejected the “contex tual implication” doctrine that required courts to assess whether, in lig ht of a ll of the evidence, a codefendant’s confession was

so powerfully incriminat i n g t h at a new, separate trial wasU N I T E D S T A T E S V

. M I K H E L 72

required f

or the defendant. See Unit ed S tates v. Sherlock

, 962 F .2d 1349, 1361 (9th Cir. 1989) (citing Richardson

, 481 U.S. at 206)

.

The Bruton rule is thus “limited to facially incriminating confessions.” Id

. W e h ave held that “ [ a] statement is not facially incriminating merely because it identifies a defendant; the statement must also have a sufficiently devastating or powerful i n c u l p a tory impact to be incriminatory on its face.” United States v. Angwin
, 271 F .3d 786, 796 (9th Cir. 2001) (quotation marks omitted), overruled

on other grounds by United Stat e s v

. Lopez
, 484 F .3d 1186 (9th Cir. 2007) (en banc). W e have also held that the Bruton rule applies not o nly to o ut

- o f

- court confessions but also to when a codefendant confesse s in court. Toolate v. Borg
, 828 F .2d 571, 572 (9th Cir. 1 987). Althoug h it is ordinarily

a sufficient remedy to strike the testimony of a witness w ho refuses to be cross-ex amined, “in-court c onfessions are no less credible or p owerful a s a rule than out-of -court ones.” Id

. at 572–73. Thus, “the presumed in a bility of juries to disreg ard an incriminatory codefendant’s c o nfession” also applies to in-court confessions and may r esult in a Confrontation Clause violation. Id . at 574–75.

Kadamovas arg ues Bruton and Toolate mandate reversal because Mikhel’s testimony “ c orroborated the g overnment’s

case and directly implicated” him. Specifically

, Kadamovas contends the testimony “plac[ ed] him in the events surrounding the abductions of four o f t h e v ictims a nd validat[ ed] the evidence about the trips to the [ New Melones] Reservoir.” The g overnment counters that Mikhel’s testimony does not implicate Bruton and Toolate beca u se Mikhel (1) d id not confess to the crimes he was charg e d with and (2) did not incriminate Kadamovas.U N I T E D S T A T E S V

. M I K H E L 73

As a n initial matter, we ag re e that Mikhel’s testimony
cannot accurately be described as a confession. W hile he certainly corroborated portions of the g overnment’s evidence
ag ainst him, he never admitted to conduct that w ould satisfy
any element of the hostag e-taking charg es, such as seiz ing o r detaining the victims, t h r ea tening to kill or injure them, o r hol d i n g them for ransom. N or did he admit to c onspiring with others to commit these crimes. 1 8 Rather, Mikhel’s testimony w a s c learly an attempt to ex culpate himself b y offering an alte r n a t e narrative for the g overnment’s overwhelming evidence ag ain s t him. F or instance, he attempted to p rovide a non-nefarious ex planation for why he lured Pekler, K

harabadz e, and Safiev into meeting with him; why plastic ties w ere f

ound in his home; and w hy cellphone data placed him near the reservoir at critical times.

W e need n ot decide, however, whether a codefendant
must completely inculpate himself in order to t r i gg er Bruton ’s protection because Mikhel’s testimony d i d not facially i ncriminate Kadamovas. S ee United S

tates v

. Y a rbrough

, 8 5 2 F .2d 1522, 1537 ( 9th Cir. 1988) (“ Bru t o n does not require that all ex trajudicial statements o r confessions not be used in a j o i n t trial. Rather, only those

s tatements that ‘clearly inculpate’ the defendant or a r e ‘powerfully incriminating ’ implic a te the ‘B ruton’ rule.”). Most of Mikhel’s testimony reg arding the o ffe n s e conduct, including the events underly ing Muscatel and Uman s k y ’s disappearances, made no mention of Kad amovas. W h en Mikhel did in s e rt Kadamovas into his narrative, he never claimed Kadamovas seiz ed, detained, threatened, injured, o r

18 In co n trast, it d o es ap pear th at Mik h el in crim in ated h im self as to th e ch arg e o f co n sp iracy to escap e f ro m cu sto d y

. B u t Mik

h el n ev er m en tio n s Kad am o v as in

th is p o rtio n

o f h is testim o n y

.U N I T E D S T A T E S V

. M I K H E L 74

demanded ransom for a

n y of the victims. Rather, Mikhel’s attempt to ex culpate himself also ex tended t o K a damovas, providing Kadamovas, fo r i n stance, an ex planation for why his cellphone placed him near the r eservoir around the times of the victims’ deaths.

Kadamovas arg ues that parts of Mikhel’s testi m o n y corroborated the g overnment’s evidence ag ainst him. F o r

ex a mple, Mikhel’s testimony sup p o r ted the g overnment’s evidence that Kadamovas posed as a potential client to meet with Pe k ler and that Solovy eva lured K harabadz e to Desig n ed W a ter W orld. B ut none of this evidence, on its own , directly

e stablished that Kadamovas committed o r conspired t o commit hostag e taking

. I nstead, b y a rg uing that Mikhel’s
t e s t i m o n y c o r r o b o ra t e d t h e go v e r n m e n t ’ s ev i d e n c e, Kadamovas implicitly acknowledg es that the testimony must be linked to other evidence in or d e r t o inculpate him. Kadamovas thus asserts the precise ty pe of “contex tual implication” arg ument that the Supreme C o urt rejected in Richardson

. B ecause Mikhel’s testimony di d n o t facially incriminate Kadamovas, it did not tri gge r the B ruton rule. See Angwin
, 271 F .3d at 7 97–98 (finding no Bruton violation where the codefendant’s pretrial statements “could support” the g overnment’s narra tive but were only “mildly incriminating ”). W e the r e fore assume the jury followed the distr i c t court’s instruction to disreg a r d Mikhel’s testimony

. See R ichardson

, 481 U

. S

. a t 206. There was no Confrontation Clause violation. 1 9

19 Kad am o v as altern ativ ely arg u es th at, ev en ab sen t a Co n f ro n tatio n Clau se v io latio n , Mik

h el’ s testim o n

y v io l ated Fed eral Ru l es of Ev id en ce 4 0 3 an d 4 0 4 (b ) an d th at strik in g th e testim o n y w as an in su f f icien t rem ed y

. In su p po rt of th is arg u

m en t, h o w e v e r , h e o n ly cites cases in v o lv in g d ef ectiv e cu rativ e in stru ctio n s. S ee, e.g

. , U

n i t e d S ta tes v. Merin o-U N I T E D S T A T E S V

. M I K H E L 75

F inally

, any e rror i n t h is reg a r d was harmless. An error is harmless if, absen t the o ffending evidence, it remains “clear bey ond a reasonable doubt that the jury would have returned a verdict of gu i l ty .” U nited States v. VelardeGomez , 269 F

. 3d 1023, 1034 (9th Cir. 2001) (en banc). The evidence presented at trial to prove defendants’ g u i l t was overwhelming and included the detailed testimony of three cooperating coconspirators; the testimony of numerous other witnesses linking defendants to the victims’ disappearances; phy sical e vidence retrieved from d efen d a n ts’ homes a nd Desig ned W ater W o r l d ’s office; DNA and fing erprint evidence linking many of these artifacts to defendants or their victims; cellphone d ata placing defendants near the reservoir
at the time of the victi m s ’ deaths; and ex pert testimony tracing r ansom pay

m ents to defendants’ bank accounts, identify ing defendants’ voices in recorded telephon e calls, and matching Kadamovas’s shoes to shoeprints left in Muscatel’s blood on the Parrotts F erry B ridg e. I n d e e d, the d istrict court remarked at sentencing that it had “nev e r s e e n

a case where the evidence of g u ilt was s o compelling as in this particular case.” I t is clear bey o n d a reasonable doubt that Mikhel’s testimony impacted neither Kad amovas’s convictions nor (for reasons e x plained in our d iscussion o f the penalty -phase below) his sentence.

11. Kadamovas’s severance motion

Kadamovas repeatedly moved for complete severance o f his case from Mikhel’s or, in the alternative

, for sequential penalty

- phase he a

ring s. The d istrict c ourt denied his motions.

Ba ld erra ma , 1 4 6 F .3 d 7 5 8
, 7 6 4 ( 9 t h Cir. 1 99 8 ) (h old in g th at “ th e [cu rativ e] in s tru ctio n w as in ad eq u ate o n its f ace”). T h ere is n o reaso n to b eliev e th e d istrict co u rt’ s in stru ctio n s w ere in ef f ectiv e h ere.U N I T E D S T A T E S V

. M I K H E L 76

W e review d enial of severance for abuse of discretion. United States v. Jenkins , 633 F .3d 788, 807 (9th Cir. 2011).

“Defendants jointly ind i c t ed ordinarily should be jointly tried. Serious considerati o n must be g iven to judicial
economy

. The burden is o n t h e defendant to show ‘ clear,’ ‘manifest,’ or ‘ u n d u e ’ prejudice from a joint trial.” United States v. Polizzi

, 801 F .2d 1 543, 1553–54 (9th Cir. 1 986) (citations omitted). Severance should be g ranted “ o nly if there is a serious risk that a joint trial w ould compromise a specific trial rig ht of one of the defendants, or p r e v e n t the jury from making a reliable judg me n t a bout g u ilt o r innocence.” Z

a firo v. United States
, 506 U .S. 534, 539 (1993). “[ L ] ess drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Id.

“The test for abuse of discretion by the dist r i ct co urt [ in deny ing severance] is whether a joint trial was so manifestly prejudicial as to require the trial judg e to ex ercise his discretion in but one way , by ordering a separate trial.” Jenkins

, 633 F .3d at 807. O u r review in this area is “ex tremely narrow.” United States v. Mariscal

, 9 39 F .2d 884, 886 (9th Cir. 1991) (c i ting United States v. Stirling

, 571 F .2d 708, 7 33 ( 2 d C i r. 1978) (severance question is “virtually unreviewable”)). “The p ossibility of acquittal in a separate trial is not itself sufficient to require severance.” Jenkins , 633 F .3d at 807.

The joint g uilt- p h as e trial was not so prejudicial as to deny K a d a m ovas a f

air trial, a

n d the district court did not abuse its di s cr e tion in deny ing K adamovas’s severance motions. Althoug h Kadamo v a s cites Mikhel’s testimony a s evidence o f guilt-phase prejudice, the d istrict court g rantedU N I T E D S T A T E S V

. M I K H E L 77

Kadamovas’s motion to strike t h a t testimony and g ave a curative instruction. F or the reasons discussed above, we

assume that the jury followed the court’s instruction and that Mikhel’s testimony ther e f ore d id n ot prejudice K adamovas. L ikewise, none of Mikhel ’ s unusual behavior during trial— such as wearing h is jail g arb, appearing in court with a visible lig ature mark fr om his third suicide attempt, and refusing to attend the final day s of trial—demonstrate d t h e kind o f manifest prejudice required to reverse a c onviction for denial of severance. 2 0 Moreover, the court repeatedly instructed the jury not to consider Mikhel’s absence ag ainst Kadamovas.

K ad a m ovas relies on the Seventh Circuit’s d ecision in United States v. Mannie
, which he ld that a district court abused its discretion in deny ing m o t i o ns for mistrial a nd

severance based on the “co-defendan t ’s severe a

nd violent disruptions d

uring the trial.” 509 F

. 3d 851, 85 2 ( 7th Cir. 2007). B u t Kadamovas’s claim is, if any thing

, weakened b y this comparison. I n one of many courtroom i n cidents in Mannie
, the codefendant y elled at defense c o u n sel, “then stood up, knocked one of his attorney s to the g round, g r abbed the o ther a ttorney b y his necktie, and threw him to the g r ound

as well.” Id. at 855. Mannie ex emplifies the “truly rare” case in which jury instructions provide insufficient protection to the rig h t t o a fair trial. I d. at 857. Here, b y contrast, the district court did not abuse its discretion in deny ing severance at the g uilt phase.

20 K ad am o v as also cites an in cid en t in w h i c h Mik h el ap p lau d ed a p o ten tial j u ro r’ s resp on se d u rin g v o ir d i r e

. T h ere w as n o p o ssib le
p rej u d ice as a resu lt o f th is in cid en t , a s i t t o o k p l ace o n ly in f ro n t o f th e p o ten tial j u ro r, w

h o w as im

m ed iately ex cu sed an d p rev en t ed f ro m d iscu ssin g th e m atter w ith an y o th er p o ten tial j u

ro rs.U N I T E D S T A T E S V

. M I K H E L 78

N o r d i d the district court abuse its discretion in deny in g Kadamovas’s requests for sequential penalty phases. L ike a joint trial, a joint penalty phase is favored f

or efficiency a

nd fairness, even thoug h i t r a ises a potential risk to the individualiz ed consideration due each capital defendant. See United States v. Tipton
, 90 F .3d 861, 8 92–93 (4th Cir. 1 996) (finding joint penalty hearing was not a n abuse of discretion). Kadamova s a r g ues he was prejudiced during the penalty phase b y Mikhel’s continued absence f rom court, evidence o f Mikhel’s suicide attempts, the disparity in his mitig ation case

versus Mikhel’s, a

n d the g overnment ’ s presentation o f evidence and arg

uments as to both defendants.

W h ile it would no t have been an a b u se of discretion for the court to conduct sequential pe n al t y phases before the

sa m e j u ry , it also was not an abuse of discretion to order a joint penalty p hase. None of the issues raised by Kadamovas show the ty

pe of manifest prejudice or risk to individualiz ed consideration that would be required to vacate his sentence on this g round. I n this reg ard, we note that t h e jury rendered separate verdicts and made individualiz ed finding s a nd recommendations a s to each defendant. Moreo v e r , the district c ourt’s penalty -phase instructions required the jury to g ive individualiz ed consideration t o each defendant, which adequately mitig ated any risk o f p rejudice. See Fernandez

, 388 F .3d at 1243 ( “W e h ave repea t e d l y h eld that a district court’s careful and frequent limiting instructions to t h e jury

. . . can reduce or eliminate a n y p o ssibility of prejudice arising from a joint trial.”); Tipton
, 90 F .3d at 892–93 (holding that “frequent instructions on the need to g ive e ach defendant’s case individualiz e d consideration suff i c ed to reduce t h e r i s k to acceptable levels” in joint capital penalty hearing )

.U N I T E D S T A T E S V

. M I K H E L 79

12. Kadamovas’s conviction for conspiracy to escape

Kadamovas was convicted of conspiring to es c a p e from custody under 18 U.S.C. § 3 7 1

. Kadamovas arg ues this conviction must be reversed b e c a use of two alleg ed evidentiary errors: (1) limiting the defens e ’ s crossex a mination of cooperating witness J ose Avila in v iolation o f the F ederal Rules of E vidence and Confrontation Clause; a nd (2) admit t i n g i m proper h earsay evidence in the form of a letter penned b y Mikhel after the escape conspir a c y ended. W e review a Confrontation Clause c halleng e based o n the

ex c lusion of an area of inquiry d e n ovo, United States v

. Larson
, 495 F .3d 1094, 1101 (9th Cir. 2007) ( e n banc), a nd

we review evidentiary ruling s for abuse of d i s cr e tion, Orm Hieng , 679 F .3d at 1135.

Mikhel’s counsel soug h t to impeach A v ila’s c redibility b y questioning him about a 2001 drug tr a f ficking offense in Ohio and threats he purportedly made aga i n s t a cooperating witness in that case n amed Robert W a lsh. T h e go v ernment objected, and the district court ruled t h e line of crossex a mination irrelevant. Mikhel then p roffered a letter from the United States Attorney for the Northern District of Ohio stating that a member of J ose Avila’s family h a d o nce threatened an unn a m e d “potential w itness” b y say ing “W e know w here y o u are and where y our family lives.” Mikhel’s counsel told the court he “assu m e [ d ] ” the letter w as about W a lsh. The court ag ain sustained the g overnment’s objection to the proffered evidence.

F ederal Rule of Evide nce 6 08(b) permits crossex a mination o f a witness on prior conduct bearing on his o r her character for truthfulness or untruthfulness. F ed. R. Evid. 608(b). I n

addition, the ex clusion of “otherwise appropriateU N I T E D S T A T E S V

. M I K H E L 80

cross-ex amination de s i gn e d to show a prototy pical f orm o f bias on the part of the witness” c a n r ise to the level of a violation o f the Confrontation Clause. Holley v. Y arborough

, 568 F .3d 1091, 1098 (9 t h C i r. 2009). The Confrontation Clause inquiry is (1) wheth e r the ex cluded evidence was relevant; (2) w hether t h e re were other leg itimate interests outweig hing the d e f

endant’s interest in presenting the evidence; and (3) whether the e x clusion of e v i dence left the jury with sufficient information to assess the witness’s credibility

. Larson
, 495 F .3d at 1103. “ [ T] rial judg es retain wide latitu d e i n sofar as the Confrontation Clause is concerned
to impose reasonable limits on such c r oss-ex a mination based

on concerns about, among other thing s, harassment,
p r e j u dice, confusion of the issues, the witness’ safety

, o r interrog ation that is repetitive or o n l y marg inally relevant.” Id. at 1101.

Even under d e novo review, there was no Rule 608(b)

error or Confrontation Clause violation. Kadamovas’s theory of the proposed testimony ’ s r elevance was speculative, attenuated, and convoluted. Other leg itimate interests easily

o u t w e i g h e d t h e t e s t i m o n y ’ s m i n i m a l p r o b a t i v e value—particularly

, leg itimate inte re s ts in a voiding undue delay and preventing a trial-within-a-trial on u nrelated events surrounding Avila’s d

rug traffick i n g offense and purported threats in connection with proceeding s in Ohio. The district
court did not err under either Rule 608(b) o r the Confrontation Clause in ex clu d i ng this line of crossex a mination.

Kadamovas also challeng es the district court’s adm i t t a n c e of a letter concerning Mikhel’s escape plans. The e scape conspirac y w a s discovered on March 7, 2003, a nd Kadamovas w ithdrew f

rom the conspiracy no later thanU N I T E D S T A T E S V

. M I K H E L 81

M arch 17, 2003. 2 1 Over a week later, o n March 26, 2003
, Mikhel asked a prison g uard to pass Kadamovas a mag az ine i n w hich he h ad hidden the letter now at issue. The g u a r d

s e iz ed the letter, and Kadamovas never saw it. The le t t e r outlined st e p s Mikhel wanted Kadamovas to take to communicate with other p r isoners and stated: “[ L ] et’s start putting into motion my big bluff. Out of concern for security

, for now I won’t describe the details to y ou. I ’m just asking
y ou to do e very

thing ex actly as laid out below. W e’ve made
enoug h mistakes.”

Generally

, out-of-court statements are admissible for the
t ruth of the matter asserted if “ made b y the part y ’s coconspirator during a

nd in furtherance of the conspiracy

. ” F ed. R. Evid. 801(d ) (2)(E). Kadamovas arg ues Mikhel’s letter was inadmissible b ecause “once a party withdraws from

a conspiracy subsequent statements by a coconspirator d o not fall within this ex emption.” United S t a tes v. Nerlinger

, 862 F .2d 9 67, 9 74 (2d Cir. 1988). The g overnment responds that the conspiracy had revived by the time of Mikhel’s letter. T he p roblem with the g overnment’s arg ument, however, i s that there is no proof of the conspiracy reviving other than the

c o ntested hearsay

. W e may consider contested h e ars ay i n determining whether the Rule 801(d)(2 ) ( E ) ex emption applies, b ut there must also be “s o me evidence, aside from the proffere d statements, o f the ex istence of the conspiracy and the defendant’s involvement.” United States v. G ordon

, 844 F .2d 1397, 1 4 0 2 ( 9 t h Cir. 1988). Here, Mikhel’s letter

was the only e v i dence of an ong o ing conspiracy to escape

21 Kad am o v as co n f

essed to h is in v o lv em en t in th e escap e co n sp iracy

o n March 1 7
, 20 0 3
, b u t t h e g o v ern m en t co n ced ed th e co n f essio n w as

o b tain ed in v io latio n o f Mira n d a v. Arizo n a , 3 8 4 U.S. 4 3 6 (1 96 6 ), an d w as in ad m issib le.U N I T E D S T A T E S V

. M I K H E L 82

after K a d a m ovas’s withdrawal. The letter was therefore inadmissible hearsay

.

I n any five-month trial involving doz ens of witnesses a nd hundreds of ex hibits, there is likely to be some evidentiary

error. O ur question on review is w hether that evidentiary

error was harmless—i.e., whether, a b sent the error, it remains “clear bey ond a reasonable doubt that the jury would have returned a verdict of g uilty

. ” Velarde-Gomez

, 26 9 F. 3 d at 1034. I n this case, w e h ave no d oubt t h e admission o f Mikhel’s letter was harmless, as the letter w a s merely cumulative o f other evidence linking Kadamov as to the

c onspiracy

. Avila testified h e went to Kadamovas’s cell in “Nine South” to talk with Mikhel throug h the a i r v ents a nd
t h a t Kadamovas “pretty much told me a little bit about l i k e one of the plans and he just mentioned that—like behind his pillow that he was supposed to li k e make a h ole and they

were supposed to squeez e out of there a n d they were all supposed to g o out into the stairwell and m eet at a c ertain time.” Parker, a f

ellow inmate, testi f

i e d he heard Mikhel communicating throug h the air v ents in a foreig n lang uag e with someone on “Nine South.” Coconspirator S a b rina Tuinan testified she obtained four cellphones, three of which

were for Mikhel, her h usband, and her brother-in-law. Thoug h she was not certain, she b elieved the fourth phone

was for “the other J uri,” i.e., J urijus Kadamovas. Prison records showed Mikhel had sent money to K ry lov, A v i l a, Cook, and Kadamovas—all members o f the conspiracy

. A nd inmate housing records showed that Kadamovas manag ed to be reassig ned to a cell adja cent to the stairway the conspirators intended to use for their escape. I n lig ht of this evidence, the erroneous admission of Mikhel’s letter did not impact Kadamovas’s conviction for con spiring to escape

c u s t o d y

. Nor could it have impacted his death sentence f o rU N I T E D S T A T E S V

. M I K H E L 83

the reasons we ex plain in our discussion of the penalty phase below.

13. Kadamovas’s access to a computer

Kadamovas claims the g o vernment breached its stipulation with h im reg arding his access to discovery materials on a computer. H e r equests a remand “ for an evidentiary hearing to d etermine whether the stipulation was violated and, if so, the appropr i a t e remedy

. ” “Stipulations freely and voluntarily entered into in c riminal t r i a ls are a s binding a

nd enforceable as those entered into in civil actions.” U

nited States v. Shapiro

, 879 F .2d 468, 470 (9th Cir. 1989). W e i n t e rpret a stipulation de novo a nd consider whether the facts demonstrate a b reach of t h a t stipulation under the more deferential clearly erroneous standa r d. See United States v. Salemo

, 81 F .3d 1 4 53, 1460 (9th Cir. 1996).

I n November 2 005, Kadam o v a s complained he lacked sufficient a ccess to a c omputer to rev i e w d i s covery in his
case, as he only had access o n weekday s b etween 8:00 a .m. and 2:00 p.m., and only when one of three visiting rooms was available. He moved the district court to order that he be
g ranted access to a computer for ten h ours a day

. The parties entered into a stipulation by which Kadamovas withdrew his motion based on the p rison warden’s representation that “Mr. Kadamovas will, to t h e max imum p racticable ex tent, be
g ranted daily access to h is laptop computer, Monday throug h F riday

, ex c luding holiday s, f rom a pprox imately 7:00 a.m. to 3:15 p .m.” The s t i pulation was e x pressly subject to the MDC’s safety

, security

, manag ement, a n d operational needs. Sig nificantly

, Kadamovas w as a hig h security inmate housed in MDC’s Secure H ousing Unit and required three g uards to be present during

all of his movements.U N I T E D S T A T E S V

. M I K H E L 84

I n March 2006, Kadamovas filed a renewed motion with the district court cl aiming he was receiving insufficient computer access and r equesting leave to u se a computer in his

c e ll. The court heard arg u ment on the motion and d en i e d Kad a m o vas’s request, ex plaining that Kadamovas “alway s had an opportunity to r e v iew this material, and he’s chosen
not t o do it.” Three months into trial, after continued compla ints about insufficient computer access, the court ordered that Kadamovas be permitted c o mputer access in his cell fourteen hours a day

.

T he district court did n ot clearly err in finding th at Kadamovas was receiving sufficient computer access in accordance with that con t e m plated b y the stipulation. A detailed declaration f

r o m F e deral B ureau of Prisons Supervisory Attorney E liez e r B en-Shmuel attested that Kadamovas had reg ular computer a ccess but was often not using it. The d eclaration attached prison records a p proving Kadamovas’s various requests to use his computer. I solated incidents of Kadamovas being denied computer access were consistent with the stipulation’s terms p roviding that access

was “subject to the safety

, security

, manag e m e n t a nd operational needs” of MDC. I n short, the record supports the district court’s determinat i o n t h at there was no pattern o f Kadamovas being d enied computer a ccess in violation of the stipulation.

B

. The Penalty Phase

As we find no reversible error in the g uilt pha s e , we proceed to considering the penalty phase. G eneral l y , the

same jury that determines a defendant’s g uilt must also consider his or her elig ibility for the death penalty under the F DPA. 1 8 U

. S

. C

. § 3593(b)(1). To impose a sentence o fU N I T E D S T A T E S V

. M I K H E L 85

death, the jury must first make the following threshold finding s: (1) the defendant was 18 y ears of ag e or older at the time of the offense, id. § 3591(a)(2)(D); ( 2) the defendant h ad
at least one of f

our enumerated mentes reae , id. § 3591(a)(2); and (3) at least one of six teen statutorily defined ag g ravating factors applied, id. § 3592(c).

I f the jury makes these threshold finding s, it must then decide whether the a g g ravati n g f actor or factors found to

ex ist “sufficiently outweig h ” any mitig ating f actor or f actors found to ex i s t to justify a sentence o f death. Id. § 3593(e). Ag g r avating factors must b e found unanimously and bey ond

a reasonable doubt; mitig ating factors may be fo und by o ne

or more jurors b y a preponderance of the evidence. Id. § 3593(c), (d). B ased on its consideration of all ag g ravating and mitig ating factors, the jury r ecommends by unanimous
vote whether the defendant should be sentenced to death o r

some lesser sentence. Id. § 3593(d), (e). I n this case, the jury unanimously found all nine of the g overnment’s ag g ravating factors ag a inst b oth defendants, and no juror found any

m i t i gating factor as to either defendant. The ju r y

u n a n imously recommended that both d e f enda n t s b e s e n t e n c e d to death.

1. “Reasonable doubt” instruction as to penalty

As it did in the g uilt phase, the district court instructed the jury in the penalty phase using our ci r c u i t ’s model “reasonable doubt” instruction. Model Crim. J ury I nstr. 9th Cir. 3.5. The court quoted the instruction nearly v erbatim, adapting it o nly slig h tly to refer to ag g ravating factors rather than g uilt:U N I T E D S T A T E S V

. M I K H E L 86

Proof bey ond a reasonable doubt is proof that leaves y ou f

irmly conv i n ced that an ag g r avating factor ex ists. I t is not require d that the g overnment p rove the ex istence of an ag g r avating factor b ey ond all p ossible doubt.

A reasonable doubt is a doubt based upon

re a s o n and common sense and is not based purely on speculation. I t ma y arise from a careful and impartial c onsideration of all the evidence, or from a lack of evidence.

D e f endants did not o bject to the instruction in the penalty phase, so we r eview for plain error. See Mitchell

, 502 F .3d at 967.

Defendants contend that using the m o d e l instruction to describe the g overnment’s burden of p roof on ag g ravating factors—par

ticularly

, future d ang erousness—was error b e c a u s e a ggr a v a t i n g f ac t o r s i n h e r e n t l y c o n t em p l a t e “specul a tive inquiries and speculative evidence.” The Supreme Court r ec e n t l y o b s e r v ed t h a t t h e future dang erousness inquiry is not a d etermination of “historical fact,” but “a predictive judg ment inevitably entailing a deg r ee of speculation.” B uck v. Davis
, 137 S. Ct. 7 59, 776 (2017). W e do not understand this as r equiring a different definition of “reasonable doubt.” Notwithstanding the predictive nature of finding future dang erousness, or of any other ag g ravating factor, a reasonable doubt remains “ something more than a speculative one.” Victor , 511 U.S. at 19–20.

Defendants f

urther c ontend the model instruction w a s unfairly lopsided because it instruct e d j u rors not to find a reasonable doubt in their favor based purely o n speculation,U N I T E D S T A T E S V

. M I K H E L 87

without telling them n o t t o speculate in finding the
g overnment’s b urden of proof bey ond a reasonable doubt. The instruction, however, left no room for jurors to unreasonably speculate i n making any finding favoring the
g overnment. The instruction clearly ex p lained that “[ p] roof bey ond a reasonable doubt is proof that leaves y ou f irmly convinced that a n ag g ravating factor ex ists.” This correctly stated the g over n m e n t’s burden of proof. See, e.g. , United States v

. Velasquez

, 980 F .2d 1275, 1278–79 (9th Cir. 1 992) (approving “firmly convinced” lang uag e in reasonable doubt instruction). I t was not plain error to so instruct the jury

. See United States v. Soto-Zuniga
, 837 F .3d 992, 10 0 4 ( 9 th Cir. 2016); Ruiz , 462 F .3d at 1087.

2. Victim-impact evidence

The g overnment presented twelve penalty -phase witnesses, eig ht of whom testified to the non-statutory ag g r avating factor “Victim I mpact.” 2 2 Defendants challeng e the admission of this victim-impact ev idence insofar as it (1) concerned not a victim’s family but his or h er professional accomplishm e n t s or v alue to the w ider community

, o r (2) touched on a victim’s relig ion. At most, defendants only made the first challeng e below. T h u s , we review the first challeng e for abuse of discretion, and the second for plain

error. See Mitchell , 502 F

. 3d at 967.

2 2 T h e eig h t v ictim

- im

p act w itn esses w ere Nan cy Sh ap iro Mu sca t e l (Mu scatel’ s w if

e), Rach el Ho ism an (Mu scatel’ s d au g h ter), Ro m an Kh ay u m o v (P ek l er’ s h u s b a n d ), Ru v en U m an sk

y (Um an sk

y ’ s f ath er), Mich ael Um an sk

y (Um an sk

y ’ s bro t h er), Ev g en ia Saf

iev a (Saf iev ’ s d au g h ter), Matv y Sh atz (Kh arab ad ze’ s step f ath er )

, an d Ro n Sh elto n (Kh arab ad ze’ s f

rien d ).U N I T E D S T A T E S V

. M I K H E L 88

Defendants first a

r g u e that the E ig hth Amendment a nd F DPA only permit evidence o f a victi m ’s personal characteristics in penalty proceeding s to the ex tent th o se ch ar a c teristics influenced, and thus r eveal something a bout, the relationship the victim had with his or her family

. A l t h o ug h we have not p reviously addressed this issue, we ag ree with sever a l o f our sister circuits that have held that victim-impact evidence is not so limited. See, e.g. , United States v. Runyon
, 7 07 F .3d 475, 499–501 (4th Cir. 2 013) (evidence of imp ac t o f victim’s death on friends a nd colleag ues and of victim’s service in Navy was admissible). 2 3

I n Pa yn e v

. Tennessee
, the Supreme Court held that the Eig hth A mendment d o e s n o t erect a per se bar to victimimpact evidence in capital sentencing p roceeding s. 501 U.S. 808, 827 (1991). Victim-im p a ct e vidence g ives a “quick
g limpse” of the victim’s life and of his “ u n i queness as an individual human being

. ” Id. at 822–23. S u c h evidence is relevant to whether the death penalty should be imposed a nd i s no different than any o ther relevant evidence. Id. a t 8 2 7

. I t is g enerally admissible if it is not “so u n duly prejudicial

23 See a lso Un ited S ta t es v. W h itten
, 6 10 F.3 d 16 8
, 1 8 7

– 9 2 (2 d Cir. 2 0 1 0 ) (testim o n y f

ro m v ictim ’ s co lleag u es o n p o l ice f orce ab ou t p ro f essio n al acco m

p lish m en ts w as ad m issib le); Un ited S ta tes v. Bo ld

en , 5 4 5 F.3 d 6 0 9
, 6 2 6 (8 t

h C ir. 2 0 0 8 ) (testim on y f ro m v ictim ’ s f

rien d s,

co w o rk ers, an d p asto r ab o u t h is relatio n sh ip w ith h is g irlf rien d an d career asp iratio n s w as ad m issib le); Un ited S ta tes v. Ba t tle

, 1 7 3 F.3 d 1 34 3
, 1 3 4 8 (1 1 th C ir. 1 9 99 ) (testim o n y f ro m f ello w co rrectio n al o f

f icers ab ou t im

p act

o f v ictim ’ s m

u rd er o n A tlan ta p riso n w as ad m i ssib le )

. On ly t h e T en th Circu it h as ad o p ted an arg u ab ly m o re restrictiv e v iew : in U n ited S t a tes v. Field s , it h eld th at v ictim

- im

p act ev id en ce f

ro m a f rien d an d co w o rk er w as ad m i ssib le, b u t w as u n w illin g to ex ten d th e v ictim

- im p act in q u iry f

u rth er to “ co m m u n ity

- lev el co n seq u en c es.” 5 1 6 F.3 d 9 2 3
, 9 4 6

– 4 8 (1 0 th Cir. 2 0 0 8 ).U N I T E D S T A T E S V

. M I K H E L 89

that it renders the trial f

undamentally u nfair,” in violation of due process. Id. at 825.

Payne c oncerned testimony from a victim’s g randmother but nowhere limited vict i m

- i mpact e v idence to evidence b y

or about family member s

. R a ther, it ex pressly affirmed the state’s “leg itimate interest in

. . . reminding the sentencer that

. . . the victim is an individual whose death repr e s e nts a

un i q u e l o s s to society and in particular to his family .” Id. (emphasis a dded). Contrary to defendants’ asser t i o ns, the Supreme Court’s r ecent decision in B o s s e v. Oklahoma

, 137 S. Ct. 1 ( 2 016) (per c uriam), does not require a n arrower reading of Payne

. Bosse held that Payne did not alter the Court’s preex isting “prohibition o n characteriz ations a nd opinions from a victim’s f a m i l y m e mbers about the crime, the defendant, and the appr o p r i a t e sentence. ” I

d. at 2 (emphasis added). Bosse did not s p e ak to the scope o f victim-impact testimony a dmissible under Payne to show the victim’s “uniqueness as an individual human being .”

Defendants alternatively arg ue that, even if the Eigh th Amendment does n ot limit victim-impact evidence in the

manner they sug g e st, the F DPA does. The F DPA provides that non-statutory

ag g ravating factors

may include factors concerning the effect of the offense o n t h e victim and the victim’s family

, and may include oral testimony

, a victim impact statement that identifies the victim of the offense and the ex tent and scope of the injury and loss suffered by the victim and the victim’s family

, a nd any other relevant information.U N I T E D S T A T E S V

. M I K H E L 90

18 U.S.C. § 3593(a). D efenda n t s interpret § 3593(a)’s references t o “t h e victim’s family ” as limiting the scope o f admissible victim-impact evidence. B ut that la n gu a g e is illustrative, not ex haustive. Sectio n 3593(a) alludes to o ne possible non-statutory ag g ravating factor—“the effect of the offense o n the victim and the v i c t i m ’s family ”—and then
g ives ex amples of how the g overnment may prove that f actor, ending with the c atchall “any o ther relevant information.” I t does not prohibit e v i d ence of a victim’s professional accomplishments or value to the community

. The
g overnment’s vi c t im-impact evidence was relevant to e ach victim’s “uniqueness as an individual h uman being ” and was not “so undu l y prejudicial that it r ender[ ed] the trial fundamentally unfair.” Payne
, 501 U.S. at 822–23, 825. The district court did not abuse its discretion.

Defendants also a

rg ue that the district court plainly erred in failing to ex clude evidence of Muscat e l’s J ewish faith— specifically

, that he w as a “deeply relig i o u s m a n ,” who was “very committed to Kabala,” “ observe d Shabbat every F riday

, Saturday ,” and helped start a ch i l dren’s spirituality
prog r am. W e faced a similar issue in Mit chell

, where the defendant challeng ed testimony bearing on the victim’s relig ion a nd cultural h eritag e as a Native A merican. Mitchell

, 502 F

. 3d at 989. W e saw “nothing untoward in this testimony ,” a s “it would h ave been difficult if not impossible
to capture what [the victim ’ s ] loss meant to her family without reference to the sig nificance that tradition a l N a v ajo relig ion and culture play

ed in their lives.” Id. at 989–90.

W itnesses testified to Muscatel’s relig ion in the c o n t ex t of d escribing his commitment to his family and celebration o f life. As in Mitchell

, this testimony wa s admissible to show Muscatel’s uniqueness as a perso n

. See id. ; see also UnitedU N I T E D S T A T E S V

. M I K H E L 91

States v

. Bernard

, 29 9 F .3d 467, 479 (5th Cir. 2 002) (“B ecause relig ion play ed a vital role in [ the victims’] lives, it would be impos s i b l e to describe their ‘uniqueness a s individual human being s’ without refe rence to their faith.”). I n any event, the testimony added little risk of prej udice because the jury already k new of Muscatel’s relig ion from Markovskis’s g uilt-phase testimony

.

To the ex tent defendants a r g u e t h a t t h e jury found for de at h because Muscatel was J ewish, the arg ument is unavailing

. As the F D PA requires, t h e district court instructed the jury not to consider the relig ious beliefs of any defendant o r victim. 18 U.S.C. § 3593(f). W e assume jurors follow i n s t r u ctions. See Mitchell

, 502 F .3d at 990. Moreover, as the F DPA requires, each juror c e rtified h e o r she would have made the same recommendation irrespective of the relig ious beliefs of any defendant or victim. 18 U .S.C. § 3593(f). “Absent a substantial indication to the contrary , w e a ccept the jurors’ assurance that no impermissible considerations of race or relig ion factored into the v erdict.” Mitchell , 502 F .3d at 990. There was no plain error here.

3. Misconduct in penalty -phase closing arg uments

Defendants assert that several of the g overnment’s remarks in p enalty -phase closing arg uments am o u n ted to prosecutorial miscon d uct requiring reversal. B ecause defendants did not object to the alleg ed misconduct at trial, 2 4

24 Mik h el o b j ected f o u r tim es i n p en alty

- p h ase clo s in g arg u m en ts; Kad am o v as o b

j ected zero tim es. No n e o f Mik h el’ s o bj ectio n s p reserv ed th e p ro secu t o rial- m isco n d u ct claim s asserted h ere b ecau se n o n e w ere

“ s p ecif ic en o u g h to b rin g in t o f o cu s th e p r e c i s e n a tu re o f t h e alleg edU N I T E D S T A T E S V

. M I K H E L 92

w e r ev i e w for plain error. See Mitchell

, 502 F

. 3 d a t 967

. “Under the plain error standard, reversal is a pprop r iate only if the prosecutor’s improper c o nduct so affected the jury ’s ability to c onsider the totality of the evidence fairly that it tainted the verdict and deprived [ the d efendant] of a fair trial.” United States v. Sanchez

, 659 F .3d 1252, 1257 (9th Cir. 2011) (quotation marks omitted).

F irst, defendants contend it w a s improper for the
g overnment to arg ue that their mitig ation evidence did not “ex c use,” “ e x plain,” or “justify ” their crimes. F or instance, defendants hig hlig ht the g o vernment’s rhetorical questions: “Do any o f the mitig ating factor s i n t his case justify o r

ex p lain the horrible crimes committed by the Defendants?

. . . Do any of them lessen the culpabil i t y o f the Defendants? ” According to defendants, statements like this incorrectly told the jury they could only consider mitig ating e vidence that h ad

some nex us to the crimes for which defendants were convicted. See Tennard v. Dretke

, 542 U.S. 274, 284 (2004) (rejecting the view that mitig ation eviden ce must have a

nex us to the crime of c onviction); Smith v. Texas
, 543 U.S. 37, 45–46 (2004) (same); Poyson v. Ryan
, 879 F .3d 875, 887 (9th Cir. 2018) (same), cert. pet. docketed

, No. 17-1274 (Mar. 12, 2018).

Defendants mischaracte r i ze t h e g overnment’s statements,

w h ich did not sug g est that the jury could not con s i d e r defendants’ proffered mitig ating factors but only that the jury should not g i v e t h o se f

actors much, if any , weig ht. The F DPA requires the jury to decide whether “all the ag g ravating factor or factors found to ex ist sufficiently outweigh all the

erro r.” Un i ted S ta t es v. Pin ed a -Do va l

, 61 4 F.3 d 1 0 1 9
, 1 0 2 6 (9 t h Cir. 2 0 1 0 ) (q u o tatio n

m ark s o m itted ).U N I T E D S T A T E S V

. M I K H E L 93

mitig ating factor or factors found to ex ist to justify a sentence of death.” 18 U.S.C. § 3593(e) (emp h a s i s added). The
g overnment’s remarks that any mitig ating factor s did not “justify ” —or, for the sake of variety

, did not “ex cuse ” o r “ex p lain”—defendants’ crimes were c onsistent with this

s tatutory lang u ag e. The remarks were not improper. See Sims v. Brown
, 425 F .3d 5 6 0, 580 (9th Cir. 2 005) (prosecutor’s comments w ere n ot improper where he did “ not sug g est that the jury cannot consider Sims’s back g r o und a s

a mitig ati n g factor but rather that it should not find that [ factor] ”).

Second, defe n d a

n ts contend the g overnment misstated the law with respect t o m itig ating factors when it said the following :

W h en y ou consider e ach of these mitig ating factors, I ’d like y ou to ask y ourself

as to each of them

, w h e n y ou g o back to the J ury room to deliberate. Ask y ourself, first: Does this factor actually ex ist? A r e there facts that suppor t it? Then ask y o urself: I f
t h e y do ex ist, is this really something tha t would justify a lesser sentence?

And then, finally

, if y ou do think that it’s something that mig ht justify a lesser sentence, ask y ourself: W hat weig h t, if any , y ou should
g ive it in y o ur deliberation process?

According to defendants, this statement outlined a three-step
process that conflicted with the F DPA by telling jurors to not “consider” any mitig a ting factors that did not justify a lesserU N I T E D S T A T E S V

. M I K H E L 94

sentence. Cf. 18 U

. S

. C

. § 3 5 92(a) (the jury “shall consider
any mitig ating factor”).

As a threshold matter, defendants’ arg ument makes little

sense: reg ardless of whether the jury found that the p roffered mitig ating factors were factually unsupported or tha t t hey simply did not justify a lesser sentence, the final result is the

same. To the ex tent defendants claim the g overnment’s
statement erroneously asked jurors to entirely ignore the proffered mitig ating factors, their claim is belied by the very statement they quote, which beg ins “W hen y ou consider e ach of these mitig ating factors

. . . . ” I f d efendants’ contention is rather with the g overnment’s sep aration into two steps o f whether a mitig ating factor “justif[ ies] a lesser sentence” a nd what “weig ht” to g ive that f a c tor, their arg ument is still unavailing

. As ex plained above, the F DPA requires the jury
to determine whether ag g ravating factors “ sufficiently outweig h” mitig ating factors “to justify a sentence of death.” 18 U.S.C. § 3593(e). The g overnment’s p a raphrase of this lang uag e may have been a little clunky

, but it did not misstate the law. 2 5

Third, defendants claim the g overnment improperly inflamed the passions of the jury by comparing life in prison
to the victims’ deaths. F or instance, the g overnment a rg u ed that defendants’ life in prison must be measured “ag ainst the five lives, the five lifetimes of day s that have been ripped
away ;” that d ef

e ndants will “g et three square meals a day

, ” while “[ t] he last thing that Mey er M u s c atel tasted in his life

was that boot cover that was shoved in his m o u th;” that

25 T h is is partic u l a r l y t ru e in lig h t o f th e g o v ern m en t’ s clo sin g arg u m en t as a w

h o le

, w h i c h rep eated ly stressed j u ro rs’ resp o n sib i lity to

“ w eig h ” all ag g rav atin g an d m itig atin g f acto rs.U N I T E D S T A T E S V

. M I K H E L 95

defendants’ “privileg es” of watching cable television o r reading books in prison are thing s t h e v i ctims “only wished they could do;” a

nd th a t t h e j u ry should show no mercy to defendants because defendants showed n one to their victims.

These statements should never have been ma d e. See Mitchell

, 502 F .3d at 995 (prosecutor should not ha v e made several comments, such as “Mitchell g ets to come before the j ury and say ‘Spare my life.’

. . . I suppose that’s the b e au t y of the sy ste m

. D o e sn’t work for the victim.”). 2 6 The
g overnment responds that it was merely try ing to rebut defendants’ arg ument that prison life w as already so harsh a s to b e a sufficient sentence. W hile the g overnment was surely permitted to a

rg ue prison life was less dire than defendants made it out to be, the g overnment should not have d o ne so b y comparing life in prison to the victims’ d eaths. The comparison was not necessary to rebut defendants ’ arg uments and appears to have been calculated to unnecessarily inflame the passions of the jury

.

T h a t said, we cannot conclude that the g overnment ’s
statements so “affected the jury ’s a b i l i t y to consider the totality of the evidence fairl y t h a t it tainted the verdict a nd deprived [defendant s ] of a fair trial.” Sanchez

, 659 F .3d at 1257. A s in Mitchell

, the comments here “were not, in and o f themselves, nearly as inflammato ry as the g r aphic evidence of the murders, or as p owerful as the ex tensive victim impact

26 See a lso Un ited S t

a tes v. Jo hn s o n , 4 9 5 F.3 d 9 5 1
, 97 9 (8 t h Cir. 2 0 0 7 ) (p ro secu to r’ s statem en t “ No m atter h ow sm all [th e d ef en d an t’ s] cell

m ay b e, it’ s g o i n g to b e larg er th an th e co f f in th at [th e v ictim s] are lay in g [sic] in n o w ” w as q u estio n ab le; b u t p er m ittin g it w as n o t p lain erro r); Bla n d v. S irmo n s , 4 5 9 F.3 d 9 9 9, 1 0 2 7

– 28 (1 0 th Cir. 2 0 0 6 ) (it w as im p ro p er b u t h arm less f

o r p ro secu to r to co m

p are d ef en d an t’ s lif

e in p riso n to v ictim ’ s p lig h t).U N I T E D S T A T E S V

. M I K H E L 96

t e s timony

, which w as quite p roperly before the jury

. ” 502 F .3d at 995–96 (prosecutor’s comments were not plain error). Moreover, the jury was c learly instructed that the
g overnment’s arg ument w as neither evidence nor law; that it
must a void the influence of p a s s i o n or prejudice; and that it
must weig h all ag g ravating and mitig ating factors. There was no plain error.

4. I nstruction a

nd verdict form on future dang erousness

Defendants claim the jury instruction and verdict form on the non-statutory

ag g ravating factor of f

u ture dang erousness violated d ue process and impermissibly intruded on the jury ’s role a s fact finder. W e r ev iew de novo whether the jury instruction and verdict f

o rm violated due p r o c es s

. United States v. W

arren , 25 F .3d 890, 897 (9th Cir. 1994). I n addition, we r eview the district court’s formula t i o n o f its instructions for abuse of discretion. Id. at 898.

The g overnment’s notice of intent to s e e k the death penalty included the non-statutory ag g ravating f actor o f “F uture Dang erousness of the Defendant.” Th e n o t ice indicated the g overnment would prove future dang erousness in three w ay s: defendants’ c o n t inuing pattern of violence, their escape risk and institutional misconduct, and their lack of remorse. Defendants initially submitted a proposed futuredang erousness jury instruct i o n that closely tracked the lang uag e in the g overnment’s n otice and specifically referred
to the g overnment’s three methods of proof. The g overnment submitted a substantially identical proposed jury instruction.

At the jury charg e conference, however, defense counsel

c h a n g ed c ourse and objected to the district court’s futuredang erousness instruction on two g rounds. F irst, def e n seU N I T E D S T A T E S V

. M I K H E L 97

c o u n sel a

rg ued the factor should b e limited to futu r e dang erousness in federal prison. Th e court ag reed a nd altered the factor to read “F uture D ang e rousness of Defendant I f Confined To A F ederal Prison F or The Rest Of Hi s L i f e W ithout The Possibility Of Release

. ” Second, defense counsel a

r gued that the g overnment’s three alleg ations

c o n c e r n i n g t h e d e f e n d a n t s ’ f u t u re dang erousness—con

t i n u i n g pattern of violence, escape risk and institutional misconduct, and lack of remor s e

— s h ould not appear any where in the instruction o r verdict form. The court r ejected this arg ument, and the final verdict form read:

Instructions : F or each of the following
qu es t i ons, answer “y es” or “no” to the five numbere d q u estions below. ( You need not

an s wer “y es” o r “no” to the lettered
statements contained in question number 1
, which merely describe the g overnment’s alleg ation of how th e ex istence of a nonst a t u t o r y ag g ravating factor would be demonstrated.)

1. F uture Dang erousness of Defendant I f Confined To A F ederal P rison F or The Rest Of His L ife W ithout T h e Possibility Of Release. Do y ou, the jury

, unanimou s ly find that the g overnment h a s proved bey ond a reasonable doubt that the defend a n t is likely
to commit criminal acts o f violen c e i n the future that would constitute a c ontin u ing a nd serious threat to the lives and safety of o thers, including one or more of the following :U N I T E D S T A T E S V

. M I K H E L 98

a. Conti n u ing Pattern of Violence. The defendant has e ng ag ed in a continuing pattern

o f v i o l e n c e , a t t e m p t e d v i o l e n c e , a n d threatened v iolen c e , including

, at least, the crimes charg ed in t he Second Superseding I ndictment.

b. Esc ap e Risk and I nstitutional Misconduct. The d ef

e n dant poses a future dang er to the lives and safety of other persons,

as demo n s t rated by his e scape risk a nd institutional miscondu c t, including

, at least: defendant’s participation in a c onspi racy to escape f ro m the Metropolitan Detention Center L os Ang eles, California, which was detected by t he g overnment on or about March 7, 2003, and charg e d as Count Six in the Second Superseding I n d ictment.

c. L ack of Remorse. T he d e fendant has demonstrated a lack o f remorse for the capital offenses committe d i n this case, as indicated by his statements a

nd actions during the

course of and f

ollowing th e o f

fenses alleg ed in the Second SupersedingI ndictment.

ANSW ER T O SECTI ON I V, QUESTI O N NUMB ER 1:

Yes

____
No

____U N I T E D S T A T E S V

. M I K H E L 99

The fin al jury instruction on future d ang erousness used substantially identical lang uag e but substituted “as evidenced by

, at least, one or more o f the following ” for “including o ne or more of the following .”

Defendants’ challeng e on a p p eal centers on the three let t ered subheading s d escribing the g overnment’s futuredang erousness alleg ations. I n the p enalty phase, Kadamovas
prese n t ed Dr. Mark Cunning ham as a n ex pert reg arding future dang erousness in priso n

. Dr. Cunning ham described several statistical studies of violence in prisons. A mong other thing s, he opined that, even thoug h a c o n v i c tion for conspiring to escape is “a warning factor,” “[ h] istory o f
escape

. . . does not seem to be reliably predictive of violence in prison;” that “ community violence [ outside of priso n ] is
not a reliable predictor of prison violence;” and that g iven the prevalence of “antisocial personality dis o rder” and repeat offenses among prisoners, “remorse is n ot g oi n g t o tell y ou any thing about who’s likely to be viole n t i n prison.” Dr. Cunning ham concluded that K adamovas was “quite unlikely
to commit a cts of serious violence [ i f ] confined f

or life in federal prison,” especially in lig ht of his ag e, his lack o f serious v iolence during pretrial c u stody

, t he low rate o f serious v iolence among capital offenders, and the low rate o f serious violence in U.S. penitentiaries.

B a s e d o n D r

. C u

n n i ng ham’s testimony

, defendants a r g u e d
to the jury that none of the three lettered s u b h eading s listed in the jury instruction and verdict form coul d predict future dang erousness. Defendants now contend that the instruction and verdict form pr ev e n ted the jury from crediting their
arg ument and therefore amounted to a “permissive inference i n s t r u ction” that violated due process or, at least, was anU N I T E D S T A T E S V

. M I K H E L 100

abuse o f the d istrict court’s discretion in formulating instructions.

“A p ermissive inference instruction allows, but does not
req u ire, a jury to infer a specified conclusion if the
g overnment p r oves certain predicate facts.” W arren , 25 F .3d
at 8 97–98 (addressing the instruction “I f it is shown that the defendant used a deadly weapon

. . . , then y ou may f ind,

. . . the ex istence of the malice”). Such a n instruction violates due process if it sug g ests a conclusion that “is not one that reason and common sense justify in lig ht of the proven facts before the jury .” Id. at 897; see also United States v. RubioVillareal

, 9 67 F .2d 2 94, 296 ( 9th Cir. 1992) (en banc) (“A permissive inference is constitutional so long as it can be said ‘with s u b s tantial assurance’ that the inferred fact is ‘more l ikely than not to flow f

rom the p roved fact on whi c h i t i s made to depend.’” ( quoting U lster County v. Allen

, 442 U.S. 140, 1 6 6 n.28 (1979))). I n addition, a d istrict court abuses its discretion in formulating instructions if “the i n s tructions— taken as a whole and v i e w e d in contex t of the entire trial—were misleading or confusing

, inadequately g uided the jury ’s deliberations, or improperly intruded on t he fact finding process.” W

arren , 25 F

. 3d at 898.

W e assume without deciding that the district court erred in listing t h e go v ernment’s alleg ations under the heading o f future d a ng erousness but conclude that any error in this
reg ard was harmless. Althoug h defenda n t s claim the
g overnment forfeited h armlessness o n this issue, t h e F DPA requires that a “court of appeals shall not reverse or v acate a sentence of d eath on ac c o u n t of any error which can be harmless, including any erroneous special finding of a n

a g g ravating factor, w here the Government establishes bey ond

a r e a sonable doubt that the error was harmless.” 18 U.S

. C

.U N I T E D S T A T E S V

. M I K H E L 101

§ 3595(c)(2). W e h ave held that even w here the g overnment does not arg ue harmlessness, “we a re not for ec losed from considering prejudice ourselves. I ndeed, under the F DPA we must consider whether err o r i n a sentence o f death is harmless.” Mitchell

, 502 F .3d at 9 77 ( emphasis in orig inal). I n particular, “we may o v erlook the g overnment’s failure to mount a h a

rmless error arg u ment when

. . . c onsiderations o f leng th a n d complex ity of the record, certainty of h ow harmless the error is, and the c o n sequences of r eversal (‘protracted, costly

, and ultimately f utile proceeding s in the district court’) counsel in favor o f doing so.” I d. at 977–78. These reasons strong ly support a harmlessness inquiry in this

case. F urthermor e, it is not even clear that the g overnment forfeited harmlessness i n this c ase. Harmlessness was a consistent theme in the g overnment’s voluminous answering brief, a nd thoug h the g overnment did not make a full harmless-error a

rg ument with respect to t h e s p ecific instructio n a n d v erdict form at issue here, it correctly noted
t h at any e rror in this reg ard was subject “to a harmless error review.” “[ T ] he rule of waiver is a discretion a r y one,” Ruiz

v. Affinity Logistics Corp.
, 667 F .3d 1 3 1 8
, 1322 (9th Cir. 2012), and e ven if the F DPA did not require us to review for harmlessness, we would ex ercise our discretion to do so h ere.

Error in a jury instruction or verdict form is harmless if it is “clear bey ond a r easonable d oubt that a ra tional jury ”

w ould have reached the same decision absent the er ro r. United States v. Anchrum

, 590 F .3d 795, 801 (9th Cir. 2009). The e vidence of d ef

endants’ future dang erousness was overwhelming and included the brutal manner in which they killed Muscatel, Pekler, Umansky

, Kharabadz e, and Safiev in fou r s e p arate incidents over the course of four months; the

co ld and premeditated nature of their crimes (including stopping for dinner on the way to dispose of Umansky ’sU N I T E D S T A T E S V

. M I K H E L 102

body ); and their d e m onstrable indifference to their victims’ suffering (e.g

., Mikhel say ing Safiev and Pe k l er were a s difficult to k ill as s n a kes, and K adamovas laug hing about throwing a “fat J ew” off a b ridg e). The evidence showed not only defendants’ violent actions but that they had announced their intention to con t i n u e taking and killing hostag es for fin a n c i a l g ain. Once they had been arrested and jailed, Mikhel and Kadamovas carefully plotted their escape from prison—a plan that involved o ther prisoners and that acknowledg ed they mig ht have to kill gu a r ds on the way out. 2 7 Mikhel later devised a second, solo escape plan despite the Spe c i a l Administrative Measures used to secure him. That plan showed similar sophistication and a willing ness to involve criminal org aniz a tions with resources outside the jail. Althoug h d efendants only faced the possibility of the d e ath penalty while a

waiting tri a l, they proved resourceful, determined, and desperate to escape i n carceration without
reg ard to the attendant risk to themselves or others.

I n a ssessing harmlessness, we must take into account that future d ang erousnes s w a s only one o f nine ag g ravating factors. F our of those factors were statutory : death during commission of a

nother c r ime, procurement of offense b y pay ment, subst a n t ial p lanning and premeditation, a nd multiple killing s. 1 8 U.S.C. § 359 2 (c). To those the
g overnment added five mor e non-statutory factors: contemporaneous convictions for multiple o f fenses, witness elimination, emotional suffering of the victims, victim

27 T h e erro n eo u s ad m issio n o f Mik h el’ s letter p en n ed af

ter Kad am o v as w ith d rew f

ro m t h e escap e co n s p iracy d o es n o t a l ter th is

co n clu sio n

. S

ee su p ra at 8 0

– 8 3

. A lth o u g h th e letter w as p ro b a t i v e of Kad am o v as’ s f

u tu re d a n g e r o u s n ess, it w as m erely a d ro p in an o cean of

m o re p ro b ativ e ev id en ce o f f u tu re d an g ero u sn ess.U N I T E D S T A T E S V

. M I K H E L 103

impact, and f

uture dang erousness. Under the F DPA, the jury had to find at least one of the statutory factors to recommend the death penalty

, and it had to make a specific a nd

un an i m ous finding a s to any statutory factor found to ex ist. 18 U.S.C. § 3593(d)

. B y unanimous vote, the jury found the

ex istence of every ag g ravating f actor the g overnment presented, both s tatutory a nd non-statutory

. The jury therefore had to w eig h these ag g ravating f actors ag ainst any mitig ating factor found b y o ne or more jurors. Id. § 3593(d), (e). I n fact, no juror found any mitig ating factor. The jury ’s

un an i m o us f

inding s make clear that it had no d ifficulty weig hing ag g ravating a nd mitig ating factors: it f ound multiple, independent reasons to impose the d e ath penalty

, a n d no reason in mitig ation to spare defendants. W e can b e confident that any alleg ed error in the ins t r u c t ion on the sing le non-statutory factor of future d ang erousness would not have chang ed the verdicts; even if the jury had not concluded that defendants presented a risk of future dang er, it would still have h ad eig ht independent reasons (four s t a tutory and four non-statutory

) to impose the d eath penalty and no r easons not to impose it. See Mitchell

, 502 F .3 d a t 9 7 7 (claimed error respecting ag g ravating factor was harmless; “the jury f ound five other statutory ag g ravating factors; only o ne is r equired

. . . [ the defendan t ] r e m a i n s d eath elig ible even if this o ne statutory ag g ravating f

actor is disreg arded”).

I n addition, w e note that the d i s trict court mitig ated any potential prejudice to defendants by carefully and repeatedly instructing the jury on its r o l e a s f a c t finder and on its ultimate responsibility to we i gh all ag g ravating a nd mitig ating factors in reaching a bottom-line recommendation of death o r a lesser sentence. Given the circumstances of this
case, we have no question t h e j ury would have returned a finding of future dang erousness a nd a recommendation o fU N I T E D S T A T E S V

. M I K H E L 104

death e ven if the i n struction and verdict had not listed the
g o v e r n m e n t ’ s three f

uture-dang erousness alleg ations

. I n s u m , even if we thoug ht there was so m e f l aw in the instructions, the callous and heinous nature of the defendants’ crimes, their disreg ard f

o r life, and their utter lack of remorse, w o u l d “compel[ ] [us] to con c lude

. . . that it is not reasonably probable that even o n e juror would have held out for a life
sentence over death.” Allen v. W oodford

, 395 F .3d 979, 984–85 (9th Cir. 2005).

5. Griffin error

D efendants claim the g overnment commented on th ei r failure to testify at trial in violation of their F ifth A mendment rig hts under Griffin v. Cal i f o r n ia
, 3 8 0 U.S. 609, 611–13 (1965). “A prosecutor’s comment is imperm i s s ible if it is ‘manifestly intended to call attenti o n to the defendant’s failure to testify

or is of such a c haracter that the jury would naturally a

nd necessarily take it to b e a comment on the failure to testify .’” Beardslee v. W oo d ford

, 358 F .3d 560, 586 (9th Cir. 2004). This rule appli es equally to trial a nd penalty p hases. Id. a t 587. Defendants preserv e d t h e ir objection, a

nd we therefore review the alleg ed Griffin error de

novo. United States v. Inzunza
, 638 F

. 3d 1006, 1022 ( 9th Cir. 2011).

Defendants claim the g overnment implicitly commented

on their failure to testify in two way s. F irst, defendants point
to the g overnment’s statements that they never “ex pressed remorse,” arg uing that the jury inevitably unders t o o d the
g overn m ent as referring to their f ailure to ex press remorse while testifying

. Taken in contex t of the g overnment’s entire closing arg ument, these s t atements clearly referred not to defendants’ f

a ilure to testify but to their conduct during

, a ndU N I T E D S T A T E S V

. M I K H E L 105

in the months after, t h e k illing s. F o r ex ample, the
g overnment arg

ued: “You heard about the actions that these defendants took a f

t er each o f their killing s, up to and including the escape attempts

. T h ey ’ ve never shown remorse.” Statements such as this did not violate defendants’ F ifth Amendment rig hts. See Beardslee , 358 F .3d at 586.

Second, defendants challeng e the g overnment’s
statement s comparing their lack of r e morse to Altmanis’s decision to confess and cooperate. According to d e fendants, these statements sug g ested they lacked remorse by failing to test i fy

. The statements, however, were made in the c ontex t of comparing the coconspirators’ conduct. F or ex ample, the
g overnment arg ued: “ [W ] h a t I w ould a sk y ou to do, ladies and g entlemen, is t o c o mpare; compare Ainar Altmanis;
compare his conduct with that of J u ri j u s Kadamovas.” The
g overnment also noted that “[ Altmanis] led the F B I to b odies they n ever would have found in this c ase.” This w as relevant
not only to establishing Mikhel and Kadamo v a s ’ s lack o f

remorse but to rebutting one of their p r offered mitig ating factors—i.e., that Altmanis was “equally culp able in the crime” but would not be punished by death

. See 18 U .S.C. § 3592(a)(4). B ecause none of the g overnment’s statements in this reg ard would “naturally and n e c essarily ” be understood as commenting o n defendants’ failure to testify

, there was no G riffin error. Beardslee

, 358 F .3d at 586–87.

Relatedly

, Mikhel claims the same two c a teg ories o f
statements invited the jury to consider his stricken testimony

, thereby violating the distri ct court’s order striking that testimony and amounting to prosecutorial misconduc t

. F o r the same reasons g iven a bove, the g overnment’s stat ements reg arding Mikhel’s lack of remorse and Altmani s ’s cooperation clearly referred to the coconspirators’ respectiveU N I T E D S T A T E S V

. M I K H E L 106

conduct d uring and following the killing s. The statements did
not refer to Mikhel’s testimony and thus neither violated the district court’s order t h at the testimony be stricken nor constituted prosecutorial misconduct. 2 8

6. Ex amination of Dr. Mark Cunning ham

Kadamovas presented ex pert testimony f rom Dr. Cunning ham r eg arding statistical violence rates i n prison. W h ile cross-ex am ining Dr. Cunning h am, the g overnment asked the followingquestions:

Q. I ’d like to as k y o u some questions about th e features that y o u accounted for in y our base rate studies in reaching y our assessment about Defendant Kadamovas?

A. Yes, ma’am.

28 D ef en d an t s also arg u e th e g ov ern m en t’ s sta t em en t s v io lated th e FDP A

. T h e F DP A d irects th at th e j u ry “ sh all c o n s i d e r an y m itig atin g f acto r,” in clu d in g w

h eth er an y “ d ef

en d an t o r def

en d an ts, eq u ally cu lp ab le in th e crime
, w i l l n o t b e p u n ish ed b y d eath .” 1 8 U .S.C. § 35 9 2(a)(4 ) (em p h asis ad d ed ). Def

en d an ts ask u s to in terp ret th e w o rd s “ i n th e crim e”
to p reclu d e th e g o v ern m en t f ro m o f f erin g an y ev id en ce o r arg u m en t reg ard in g a co co n sp irato r’ s b eh av io r a fter th e crime (su ch as A ltm an is

co o p eratin g w ith th e FB I’ s in v estig atio n ). B u t § 3 5 9 2 (a) d o es n o t p u rp o rt to lim i t th e s co p e o f ad m issib le ev i d en ce; rath er, it lists sev eral p oten tially

m itig atin g f

acto rs an d en ds in a b ro ad catch all f o r “ [o ]th er f

acto rs in th e d ef en d an t ’ s b ack g ro u n d

, reco rd

, o r ch aracter o r an y o th er circu m stan ce of th e o f f en se.” It is § 35 9 3 (c) th at p rin cip ally g o v e r n s th e ev id en ce ad m i ssib le in c a p i t al p en alty p ro ceed i n g s, an d th at sectio n p erm its th e g o v ern m en t “ to reb u t an y i n f o rm atio n r eceiv ed at th e h earin g ” an d to “p r esen t arg u

m en t as to th e ad eq u acy o f th e i n f o rm atio n to estab lish t h e

ex isten ce of an

y

. . . m itig atin g f

acto r.” T h e g o v ern m en t’ s statem en ts did

n o t v io late th e FDP A

.U N I T E D S T A T E S V

. M I K H E L 107

Q. W hat percentag e of the people in y our base rate studies were Russian or L ithuanian?

A. I do n o t know the ethnic orig ins of the individuals in these studies. . . .

The g o vernment then p roceeded to ask Dr. Cunning h am about whether his studies account e d for inmates w ho committed more th a n o n e murder, committed murder with premeditation, or were in their mid-30s. The clear inte nt o f these q uestions was to sug g est that Dr. Cunning ham’s studies were not tailored to Mikhel or Kadamovas.

Kadamovas charact eriz es the g overnment’s question about persons of Russian or L ithuanian orig in as an appeal to ethnic prejudice that violated his F ifth Amendment rig ht to a fair trial. Althoug h he concedes that Dr. Cunning ham did not substantively answer the question, h e arg ues t h a t “ the mere question, w i th its improper implication, constituted misconduct.” Neither defendant objected to the question below, so we review for plain error. S ee M i t chell

, 502 F .3d at 967.

Kadamovas r elies principally on our decisions in Bains v

. Cambra

, 204 F .3d 964, 974 (9th Cir. 2000), and United States

v. Cabrera

, 222 F .3d 590, 5 94 (9th Cir. 2000). I n Bains
, we held it was error for a p rosecutor to g eneraliz e that “ all Sikh
pe rsons ( and thus B a ins by ex tension) are irresistibly predisposed to violence when a family m e m b e r has been dishonored.” 204 F .3d at 974–75. L ikewise, in Cabrera

, we held i t was plain error to admit an investig ating officer’s repeated testimony a

bout Cuban s b e ing drug dealers a nd flig ht risks. 222 F

. 3 d a t 594–96. To the ex tent the
g overnment’s questioning in this case could be interpreted a sU N I T E D S T A T E S V

. M I K H E L 108

appealing to ethnic o r national-orig in stereoty ping

, it was at most a subtle reference and w as not emphasiz ed like the antiSikh r eferences in Bains or the anti-Cuban refe re n c e s in Cabrera

. 2 9 There was no plain error in permitti n g the
g overnment’s sing le question. 3 0

7. Mikhel’s ex cluded mitig a tion evidence

Mikhel soug ht to introduce a n u m b e r of videotaped interviews of his friends a n d fa m ily

. These were not depositions: the witnesses were not under oath, and the
g overnment was not represented. The district court admitted

s e v e r al of the interviews, but ex cluded all of an interview with Mikhel’s ex -g irlfriend, Marina Karag odina, a nd a small part of a n interview with Mikhel’s cousin, Edward Mikhel. Mikhel claims the ex clusion of this e v idence violated his rig hts under the Eig h th Amendment and F DPA. W e r eview

29 Kad am o v as also cites th e Su p rem e Co u rt’ s decisio n in Bu ck

. 1 3 7 S. Ct. at 7 6 9

. In th at case, d ef en se co u n sel ca l l e d a n ex p ert p sy ch o lo g ist w

h o testif ied th e d ef

en dan t w as statistically m ore lik el y t o b e v i o l e n t b ecau se h e w as b lack

. Id

. T h e Co u rt h eld th i s testim o n y

su p p o rted an in ef

f ectiv e assistan ce o f

co u n s el claim an d n o ted it “ w ou ld b e paten tly u n co n stitu

tio n al f o r a state to arg u e th at a d ef en d an t is liab le
to b e a f u tu re d an g er b ecau se o f h is race.” Id

. at 7 7 5

. Here, b y co n trast, Dr. Cu n n in g h am d id n o t ev en g iv e a su b stan t i v e a n s w er t o th e g o v ern m en t ’s q u estio n

. Reg ard less, th e g o v ern m en t’ s q u estio n d id n o t im p ly d ef en d an t s w ere liab l e t o p o se a f u tu re d an g er b ased o n th eir race

o r eth n icity

.

30 T o th e ex ten t d ef

en d an t s arg u e th e j u ry f

o u n d f u tu re d an g ero u sn ess b ecau se o f th eir n atio n al o rig in

, th e d istrict co u rt in stru cted th e j u ry n o t to

co n sid er n atio n al o rig in

, an d th e j u ry certif ied it d id n o t d o so

. We accep t t h e j u ro rs’ assu

ran ce th at n o im

p erm issib le co n sid eratio n s f acto red i n t o th e v erd ict ab sen t s u b stan tial in d icatio n to t h e co n trary

. M

itch ell

, 5 0 2 F.3 d at 9 90

.U N I T E D S T A T E S V

. M I K H E L 109

the ex clusion of mitig a ting evidence for abuse of discretion. See 18 U.S.C. § 3593(c); Mitchell , 502 F .3d at 991.

The E ig h th A m e n d m ent and F DPA protect the rig ht to present relevant mitig ating evidence in capital sente n c i n g proceeding s. 18 U.S.C. § 3593(c ) ; Eddings v. Oklahoma

, 455 U.S. 104, 113–15 (1982). “ Relevant mitig a ting evidence is evidence whic h tends log ically to prove or disprove some fact o r circumstance which a f act-finder could reasonably deem to have mitig ating value.” Tennard

, 542 U. S

. at 284. Under the F DPA, “[ i] nformation is admissible re gardless o f admissibility under the [ F ederal] Rules [ of Evidence]

, e x cept that in the trial judg e’s discre tion, information ‘may be

ex c luded if its probative value is outweig hed by the dang er o f creating unfair prejudice, confusing the issues, or misleading the jury

. ’ ” Mitchell

, 502 F .3d at 991 (quoting 18 U .S.C. § 3593(c)).

Among other thing s, Karag odina stated in her in t e rview that she h ad a g ood relationship with Mikhel, that Mikhel h ad b e en g ood to her son from a previous marriag e , and t h at Mi k h e l d eserved mercy

. The district court ex cluded the interview entirely

, reasoning that Karag odina was being led by the investig ator’s questions, lacked first-hand knowledg e

o n some issues, g ave irrelevant testimony about Mikhel’s
arrest and h er feeling s toward the police, an d could have travele d fr o m Eng land to the United States to testify in
person. To this list of reasons to ex clude t h e interview, the
g overnment adds that much of what Karag odina said in 2002

w a s no long er true b y the time the penalty phase b e ga n i n 200 7

. The g overnment c ites a 2005 interview in which Karag odina called Mikhel a “scary man” and said that he h ad threatened her, that she had switched phone numbers becauseU N I T E D S T A T E S V

. M I K H E L 110

of him, and that she had chang ed her d aug hter’s last name from “Mikhel” to “Karag odina.”

Parts of the Karag odina intervie w spoke to Mikhel’s character and backg round a n d thus were at least marg i n ally relevant. See 18 U.S.C. § 3 5 92(a)(8). Nevertheless, the district court was within i t s d i scretion in ex cluding the interview for its dang er of creating unfair prejudice, confusing the issues, or misleading t h e jury

. See Mitchell

, 502 F .3d at 991. As the district court ex plaine d

, m a ny o f Karag odina’s statements “were, a t best, g ratuitous r emarks o r coached answers by defense inve stig ators.” Moreover, h ad the interview been admitted, the g o vernment would have h ad

no opportunity to cross-ex amine Karag odina on her alleg ed involvement in Mik h e l ’s crimes and bring to lig h t her chang ed attitude toward Mikhel. A lthoug h it mig ht not have been a n abuse of discretion to admit the interview, we hold the district c ourt did not abuse its discretion in ex c luding it. Cf. U nited States v. Taylor

, 814 F .3d 340, 363 ( 6th Cir. 2 016) (mitig ation evidence may have been a dmi ssible, but it was not an abuse of discretion to ex clude it).

The district court a d mitted most o f Edward’s interview but ex cluded a small portio n a t the end in which he stated: “The only thing I ask for to be merciful, th e court to be merciful. Max imum merciful as it is possible to my cousin,
to my r e l a t i v e. What else can I say ? To be merciful, to be merciful.” I t seems Edward did not k n ow Mikhel well, a

nd defense counsel conceded Edward h ad n o t seen Mikhel for
y ears. The district court r e asoned that Edward’s p lea for
mercy was irrelevant because it w as “not a mitig a ting factor” but “just a personal plea on behalf of the witness who has no knowledg e of what transpired here.”U N I T E D S T A T E S V

. M I K H E L 111

Mikhel arg ues on appeal that a bare plea for mercy i s relevant mit i ga ting evidence under our decision in Mitchell

. B ut that case d oes not help him. I n Mitchell

, w e held t he district c ourt “drew a fine, b ut appropriate, line” by a dmitting testimony reg arding witnesses’ “affection for [ the defendant] and their w ish for his life to b e spared,” while ex c luding testimony offering “an opinion about what they thoug ht the jury ’s verdict should be.” 502 F .3d at 991. Here, Edward’s plea for mercy

—particularly in lig h t of his apparently limited relationship with Mikhel—was es sentially an opinion about what the jury ’s verdict sho u l d b e

. The plea did not bear on Mikhel’s character, prior record, or the c ircumstances of his offense. The dis t r i ct court did not a buse its discretion in

ex c luding it. 3 1 See id. ; see also Lockett v. Ohio

, 438 U

. S. 586, 604 n .1 2 ( 1 978) (reaffirming “the traditional authority of a

co u rt to ex clude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the c ircumstances o f his offense”).

8. Kadamovas’s future dang erousness

Kadamovas clai m s t h e e vidence was insufficient for the jury to f ind that h e prese nted a r isk of future dang erousness if confined to prison. As described above, Ka d amovas of f ered D r. Cunning ham as an ex pert witness on future dang erousness. Dr. Cunning ham presented statistical studies of violence rates in prisons and opined that Kadamovas was “quite unlikely to commit acts o f serious violence [ if]

31 Mo reo v er, an y e r r o r in t h is reg ard w as h arm less f o r th e reaso n s

ex p lain ed ab o v e, p articu larly in lig h t o f th e m in im al to n o n ex isten t p ro b ativ e v alu e o f Mik

h el’ s p ro f f ered m itig atio n ev id en ce. S ee McKin n ey

v. Rya n , 8 1 3 F.3 d 7 9 8
, 8 21 (9 t h C i r

. 20 1 5 ) (en ban c) (rev iew in g th e

ex clu sio n o f m itig atin g ev i d en ce f

o r h arm l essn ess).U N I T E D S T A T E S V

. M I K H E L 112

confined f

or life in federal prison,” g iven his ag e, his lack o f serious v iolence duri n g pretrial custody

, the low rate o f serious v iolence among capital offenders, and the low rate o f serious violence in U. S

. penitentiaries. Kadamovas n ow arg ues that, in lig ht of Dr. Cunning ham’s purportedly “unrebutted” testimony

, there w as no basis f or the jury to find
ag ainst him with respect t o the non-statutory ag g ravating factor of future dang erousness. W e review for whe ther any rational trier of fact could have fou n d this factor b ey ond a reasonable doubt. See United States v. Nevils

, 598 F .3d 1158, 1163–64 (9th Cir. 2010) (en banc).

K adamovas simply overlooks the fact that the
g overnment’s penalty -phase case incorporated all of its g uiltphase evidence, whi c h included the g ruesome means b y which Kadamovas participated i n killing five people; his callous remarks about the v ictims ; his statement that he would continue taking hostag es even if it meant piling b odies
up to the surface of the r eservoir; and h i s c onviction for conspiring to escape c u stody

. There was no shortag e o f evidenc e s u g g esting that Kadamovas presented a risk o f future dang e rousness if confined to priso n

. A l thoug h the
g overnment did not present its o w n ex pert to c ontradict Dr. Cunning ham, it was n ot requ i r ed to do so. The jury did not have to find Dr. C unning ham’s statistical studies or opinion testimony persuasive. Dr. Cunni n gham presented statistics related to the probability that p ersons with ce rtain characteristics would be d ang erous in the future. He did not, and could not, testify that Kadamovas w o u ld not be dang erous in the future. T h e jury could certainly h ave f ound that Kadamovas’s own co n duct was more probative of his future dang erousness than D r. Cunning ham’s statistics about future dang erousness g ene r a lly

. Thus, the jury c ould have reasonably relied on the government’s g uilt-phase evidenceU N I T E D S T A T E S V

. M I K H E L 113

t o conclude that Kadamovas presented a r isk of futu r e dang erousness bey

ond a reasonable doubt.

9. Naz i and anti-Semitism evidence

K a d a m o v a s c l a i m s the g overnment improperly i n t r o d u c e d “Naz ism and anti-Semitism evidence” and prejudicially portra y e d him “as an anti-Semitic Naz i sy mpathiz er.” 3 2 Specifically

, h e arg ues the admission of (1) an antique dag g er with swastikas on the h andle and (2) t e s t i mony that he described a vic t i m as a “fat J ew,” along with the
g overnment’s references to that testimony duri ng arg ument,

v iolated his constitutional and statutory rig hts. As Kadamovas only objected to the dag g er below, we review the first challeng e for ab u s e o f d iscretion, and the second challeng e for plain error. See Mitchell , 502 F .3d at 967.

C o c onspirator Kry lov purchased the dag g er at Mikhail Gurevich’s pawn shop, which defendants u sed to l a u nder

ransom money

. L ater, t h e F B I f ound the dag g er at Kadamovas’s h ome. Over Kadamovas’s objection, the court ruled the dag g er relevant and admissible to connect him to the
money -laundering conspiracy

. Kadamovas requested that the
g overnment “not focus or high l i ght the swastika on the dag g er,” and the court a g reed the p rosecution should not do

so. As a result, the prosecution never used the words “Naz i” or “swastika” before the jury

.

The dag g er was admitted throug h the testimony of an F B I
ag ent who referred only to i t s “distinct marking s.” W eeks

32 Kad am o v as arg u es th at th ese h a r m s w ere ex acerb ated b y th e im p ro p er v ictim

- im

pact ev id en ce to u ch in g on Mu scatel’ s J ew ish f aith

. A s

ex p lain ed ab o v e, th e v ictim

- im p act ev id en ce w as p ro p erly ad m itted

.U N I T E D S T A T E S V

. M I K H E L 114

later, Gurevich t e s t ified and mentioned the swastikas on the handle in identify ing the dag g er as t h e o n e Kry lov h ad purchased. T he c o u r t d enied Kadamovas’s motion for a mistrial b ased on this testimony

, not i n g there was no risk o f prejudice as the dag g er h a d b een introduced into evidence and the jurors would see i t w h en g iven the ex hibits. Kadamovas did not ask f

or a limiting instruction or o b ject to the dag g er’s c on s i d eration during the penalty phase, during which it was never mentioned.

The dag g er was releva n t to prove the ex istence of a conspiracy to commit money laundering a nd admissible under both the F ederal Rules of Evidence and the F DPA. The district cou r t d i d not abuse its discretion in balancing the

e vidence’s probative value ag ainst its potential for u n f ai r prejudice, and minimiz ed a ny potent i a l prejudice b y instructing the g overnment not to refer directly to the swastikas—which the g overnment did not d o at a ny time. The only mention of the swastikas to the j u ry came from Gurevich, w ho did so in the contex t of ex plaining why he was able to identify the knife from Kadamovas’s house as the o ne he had sold y e a r s before to Kry lov (a f act to which Kadamovas did not stipulate).

Kadamovas also arg ues that ad m i tting the dag g er implicated his F irst A m e n d m ent rig hts. His arg ument is perplex ing because he does not c laim to hold any protected be l ief o r association r eg arding Naz ism, but rather denies he is a Naz i sy

mpathiz er. Reg ardless, his arg ument is without merit. I n Dawson v. Delaware

, the Supreme Court h eld that admitting evidence relating to the defendant’s membership in the Ary an B r otherhood that w a s “totally without relevance” violated the defendant’s F irst Amendment r ig ht to

a s sociation. 503 U.S. 159, 1 65 (1992)

. Dawson concl u d e dU N I T E D S T A T E S V

. M I K H E L 115

t h a t “the Constitution does not erect a per se b a rrier to t h e admission of evidence concerning o ne’s beliefs a nd associations at sentencing simp l y because those beliefs a nd associations are protected by the F irst Amendment,” but that such evidence must b e relevant. Id. Here, the dag g e r w a s relevant to Kadamovas’s participation in the conspiracy

, a nd Gurevich’s testimony was relevant to the dag ge r’s identification. There was no abuse of d iscretion in a dmitting this evidence.

W e turn nex t to Kadamovas’s c halleng e to Markovskis’s
te s t i mony that he referred to a victim as a “fat J ew.” I n the
g uilt phase, Markovskis testified that Kadamovas laug hing ly described throwing a “fat J e w” (i.e., Muscatel) off a bridg e

. Markovskis said Kadamovas “didn’t mention the n a me o f the
person, he d escribed him o n l y as a fat J ew, fat, heavy person.” The g overnment b riefly referred to this testimony in its g uilt and penalty

- phase opening statements and closing
arg uments. I t was not plain error to a d m i t Markovskis’s testimony

, which was relevant to identify ing Muscatel a s Kadamovas’s unnamed v ictim. Similarly

, the g overnment’s reasonable repetition of Kadamovas’s words was permissible
to arg ue both Kadamovas’s connection to Muscatel’s death and his lack of remorse.

Contrary to defendants’ assertions, the g overnment did
not use Markovskis’s testimony to inflame the passions of the jury or a s i m p r o per propensity e vidence. W h ile a prosecutor’s “appeal[ ] to racial, et h n i c , or relig ious prejudice” ag a inst a d efendant violates the F ifth A mendment rig ht to a f

air trial, Cabrera

, 222 F .3d at 594, no such appeal

was made h ere in eliciting testimony from a coconspirator th a t c onnected Kadamovas to one of the charg ed a cts a nd bore on an ag g ravating factor. W e have also recog niz ed thatU N I T E D S T A T E S V

. M I K H E L 116

“race or ethnicity is relevant and not prejudicial ” when used for identification purposes. Id. a t 597 (emphasis a dded). I t

was therefore not plain error to allow Markovskis’s testimony or the g o vernment’s references to it.

10. Kadamovas’s mitig ating factors

Kadamovas proffered n ine m i tig ating factors, including th e s tatutory mitig ating factor that he had no p rior criminal record (which he c laims the g overnment conceded below). He a rgu e s that the jury ’s failure to find even this o ne mitig ating factor demonstrates that it disreg arded its statutory oblig ation to “consider” mitig at ing factors and therefore rendered an “arbitrary

” verdict.

“Neither the F DPA n or [ the Constitution] r equire a capital jury to g ive mitig ating effect or w eig h t t o an y particular evidence.” U

nited S tates v

. B asham

, 5 61 F .3d 302, 337 (4th Cir. 2 009); accord U

nited S tates v

. Lawrence
, 735 F .3d 385, 426 (6th Cir. 2013); United S tates v. Pa u l

, 217 F .3d 989, 999–1000 (8th Cir. 2000). “There is no constitutional requirement that the jury find a m itig ating factor even when it is supported by uncontradicted evidence.” United States v

. Higgs
, 3 53 F. 3 d 2 8 1
, 327 ( 4th Cir. 2003). Nor d o es the F DPA’s “shall consider” lang uag e impose a ny such requirement. See 18 U.S.C. § 3 592(a); see a l s o Higgs
, 353 F .3d at 327 (n o t i n g t hat § 3592(a) requires the jury to consider mitig ating factors but nevertheless holding the jury need not find any mitig ating factor). Rather

, o u r concern in this reg a rd is w hether “there e x ists a reasonable li k elihood that the jurors b e l i eved themselves precluded from considering relevant mitig a ting e vidence.” Paul

, 217 F .3d at 1000. H e r e , t h e jury was allowed to consider all o f Kadamovas’s relevant mitig a tin g e v i dence. I t was notU N I T E D S T A T E S V

. M I K H E L 117

required to find any mitig a ting factor based on that evidence. 3 3

Moreover, the jury ’s failure to find that Kadamovas h ad no prior criminal record was reasonable. Kadamovas’s o nly evidence in this reg ard was a le tter from the L ithuania Department o f I nformatics and Communications stating that it had no “records of criminal activities or law suits in the

name of Mr. J urijus Kadamovas.” Kadamovas offered no testimony about the letter’s reliability

, who wrote it, or what it meant. The letter does not prove that Kadam o v a s had no prior criminal record. I t only showed tha t one ag ency in his home country had n o such record; it said noth ing about the reliability of the evidence or its implication s f o r records in other jurisdictions. F urthermore, t h e g overnment d id not concede the point: at most , t h e prosecutor said it was “[ m] ay be” true Kadamovas h ad no record, “but he sure made
up for lost time.” Defendants b ore t h e b u r d e n of proving mitig ating factors b y a preponderance o f the evidence, see 18 U.S.C. § 3 593(c), and a r easonable trier of fact could have found that K adamovas failed to pr o v e he had no prior criminal record, cf. Lawrence
, 735 F .3d at 421 (“Speculation is insufficient to show a

rbitrary influence; there must b e some basis for concluding that emotion rather than reason sway ed the jury .”).

33 Ev en if th e j u ry h ad f

ou n d th at Kad am ov as lack ed a prio r crim in al

reco rd (o r th at t

h ere w as at least n o ev id en ce h e h ad a p r i o r crim in al

reco rd ), th e j u ry still w o u ld h av e b een req u ired to w eig h th at m itig atin g f acto r ag ain st all th e ag g rav atin g f acto rs it f o u n d to ex ist. S

ee 1 8 U.S.C. § 3 5 93 (e). N o th in g in th e FDP A
, th e j u ry in stru ctio n s, o r th e v erd ict f o rm req u ired th e j u ry to treat th e lack o f a p rio r crim in al reco rd as su f f i cien tly

m itig atin g to ren der th e im p o s itio n o f th e d eath p en alty

u n j u stif i ab le.U N I T E D S T A T E S V

. M I K H E L 118

11. L ithuania’s abolition of the death penalty

Kadamovas proposed t h e following mitig ating factor: “J urijus Kadamovas is a citiz en of L ithuania, a country which h a s a bolished the death penalty .” T he g overnment argu e d that L ithuania’s abolition of the death penalty was unrelated
to the offense, the circumstances o f t h e offense, o r Kadamo v a s , a n d therefore was not a relevant factor. The district court ag reed and rejected the proposed f actor. Kadamovas claims the e x clusio n o f t his factor and r elated evidence violated his statutory and constitutional rig hts. W e review the ex clusi o n o f mitig ating evidence for abuse o f d i s c r etion. S

ee 18 U .S.C. § 3593(c); Mitchell

, 502 F .3d at 991.

As previously n oted, the Eig hth Amendment a n d F DPA
p rotect the r ig ht to present relevant mitig ating evidence i n capital sentencing proceeding s. E ddings

, 455 U.S. at 113–15; 18 U.S.C. § 3593(c). A capital jury cannot be precluded from considering as mitig ating evidence “ a ny aspect of a defendant’s character or record a nd any of the circumstances of the offense that the defendant p r o f f ers as a basis for a sentence less than death.” L o c ke tt , 438 U.S. at 604 & n.12. B ut evidence that does n ot b ear on the defendant’s character, prior record, or the circumstances of the o ffense may be

ex c luded as irrelevant. Id. ; Te n n a r d

, 542 U.S. at 284–86; Hamilton v. Ayers
, 583 F .3d 1100, 1132 (9th Cir. 2 0 09) (“[ V] irtually no limits are placed o n the relevant m i tig ating evidence a capital defendant may introduce concerning his

own circumstances .” (emphasis added) (quoting Payne
, 501 U.S. at 822)).

Kadamovas c ontends L i t huania’s abolition of the death penalty is relevant because it relates to (1) his backg round a sU N I T E D S T A T E S V

. M I K H E L 119

a L ithuanian citiz en and ( 2) the circumstances of h is offense,

as his status as a foreig n national was an e l e m ent under 18 U.S.C. § 1203. B ut the ex cluded mitig ating factor was not evidence of Kadamovas’s citiz enship; it was rather evidence of L ithuania’s abolition o f the death penalty

. Kadamovas’s citiz enship may well have been relevant to his backgr o u n d

, and indeed, one of the mitig ating factors the jury considered

was that h e “was r aised under a c o m m unist sy stem o f
g overnment that devalued the life of the individual.” I n contrast, L ithuania’s abolition of the death penalty h as no bearing o n Kadamovas’s character, his prior rec o r d, or the circumstances of his offense. Kadamovas’s proposed factor was irrelevant.

I n analog ous cases, the F ourth a n d Six th Circuits have held that a fe d e r a l c apital defendant’s inelig ibility for the death penalty under state law is n o t relevant mitig ating evidence. Higgs
, 353 F .3d at 3 28; United States v

. Gabrion

, 719 F .3d 511, 520–23 (6th Cir. 2013) (en banc). As the Six th Circuit ex plained:

That Michig an lacks a death pena lty

. . . has nothing to do w ith Gabrion’s backg round o r character. I t has no t h i ng to do with the

reasons why he chose to kill Rachel Timme r man. I t has n o thing to do with the
utter d epravity of the manner in which he killed her. And above a ll it has n othing to do with his cul pability for that offense or with
any other cons ideration the Supreme Court has ever flag g ed as mitig ating

.

G a b r i on , 719 F .3d at 522. The location of the offen s e o n f ederal land may have been relevant to the circumstances o fU N I T E D S T A T E S V

. M I K H E L 120

t he offense in those cases, b u t that d id not make it relev a n t mitig ating evidence that the defendant w ould not have be en elig ibl e f o r t he death p enalty under different law. To hold otherwise would simply be an invitation to jury nullification. See United States v

. Gabrion

, 6 48 F

. 3d 307, 362–63 (6th Cir. 2011) (B atchelder, C.J
., concurring in part and dissenting in part) (“Gabrion’s counsel would urg e the jurors to disreg ard federal law in favor of Michig an law and decline t o i mpose the death penalty because it would be unavailab le under M ichig an law.”), reh’g en b anc granted

, opinion vaca t e d (Nov. 1 7, 2011), on reh’g en b anc , 719 F .3d 511 (6th Cir. 2013).

Kadamovas cites our decision in Mitchell

, in which a letter from the Navajo Nation oppo s i ng capital punishment both as a g ene ral matter and specifically as to the defendant

was admitted as mitig a ting evidence. 502 F .3d at 989. Even thoug h the Navajo Nation’s opposition to t h e d eath penalty

w as not proffered as a mitig ating factor, seven of the j u ro rs wrote on t he verdict form that they found it to be an additional mitig ating factor. Id. a t 9 7 4
, 9 89. G iven that Mitchell involved a

n intra-I ndian crime committed in Navajo territory

, id. at 946–49, the fact that th e N a v ajo Nation opposed the death penalty for Mitc h e l l p ersonally may have b e e n relevant. That d oes not sug g e st, however, that the
g eneral laws of L ithuania were relevant in th i s case. 3 4 L ithuanian law had nothing to do with Kada movas’s

34 K ad am o v as asserts o n ap p eal th at L ith u an ia d oes o p p o se t

h e d eath
p en alty f o r h im p erso n ally

, citin g a 2 01 2 letter ex p ressin g th e L ith u an ian Em b assy ’ s p o sitio n ag ain st t h e death pen alty

. W e n eed n o t d ecid e

w h eth er th at letter w o u ld h av e b een rel e v a n t h a d it b een w ritten b ef ore t rial an d p ro f

f ered b elo w

. T h e ev id en ce Kad am o v as p ro f f ered to th e d istrict co u rt w as n o t L ith u an ia’ s o p p o sitio n to th e d eath p en alty f o r h im
p erso n ally

b u t its ab o litio n

o f th e d eath p en alty

g en erally

.U N I T E D S T A T E S V

. M I K H E L 121

backg ro u n d

, character, or offense. I t was not relevant mitig ating e vidence, and the district court did not a b u se its discretion in ex cluding Kadamovas’s proffered m itig ating factor. See Lockett , 438 U.S. at 604 & n.12.

I I I

. CONCL USI ON

F or the foreg oing r easons, we AF F IRM the judg ment o f the district court.