FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IOURI MIKHEL,

Defendant-Appellant.

No. 07-99008

D.C. No.

CR-02-00220-DT-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JURIJUS KADAMOVAS,

Defendant-Appellant.

No. 07-99009

D.C. No.

CR-02-00220-DT-2

OPINION

Appeal from the United States District Court

for the Central District of California

Dickran M. Tevrizian, District Judge, Presiding

Argued and Submitted January 10, 2018

Pasadena, California

Filed May 9, 2018
2 UNITED STATES V. MIKHEL

Before: Jay S. Bybee, Milan D. Smith, Jr., and Michelle T.

Friedland, Circuit Judges.

Opinion by Judge Bybee

SUMMARY*

Criminal Law / Federal Death Penalty

The panel affirmed Iouri Mikhel’s and Jurijus

Kadamovas’s convictions and death sentences for several

federal crimes, including multiple counts of hostage taking

resulting in death under the Hostage Taking Act.

Guilt Phase

The panel reaffirmed that the Hostage Taking Act does

not require proof of a nexus to international terrorism. The

panel held that the Act was a valid exercise of Congress’s

power under the Necessary and Proper Clause together with

the Treaty Power, and rejected as unavailing the defendants’

independent Tenth Amendment challenge. The panelrejected

as meritless the defendants’ argument that even if the Act

does not itself exceed Congress’s power, the subsequent

amendment authorizing the death penalty exceeded

Congress’s power.

The panel held that the defendants’ motion for recusal of

the district judge was untimely and fails on its merits.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MIKHEL 3

Affirming the district court’s rejection of the defendants’

Batson challenge to the government’s peremptory strike of a

juror, the panel held that the defendants did not meet their

burden of demonstrating race was a substantial motivating

factor.

The panel held that the district court committed no error

in empaneling an anonymous jury.

The panel held that the district court did not violate the

defendants’ Sixth Amendment right to a public trial by

excluding from the courtroom a person who was observed

behaving in an intimidating manner.

The panel held that the district court did not err in using

this circuit’s model reasonable-doubt jury instruction in the

guilt phase.

The panel explained that the purpose of 18 U.S.C. § 3005,

under which a capital defendant has the right 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 attorneys was harmless. The

panel held that the district court’s denial of Kadamovas’s

motions for a continuance to allow one of his attorneys more

time to prepare did not violate § 3005, and that any technical

error would be harmless.

The panel held that the district court did not abuse its

discretion in excluding as irrelevant testimony of a person

who, without repercussion, committed perjury as a

cooperating witness in a different case.
4 UNITED STATES V. MIKHEL

The panel held that the district court did not plainly err by

failing to hold a competency hearing sua sponte at the outset

of trial, at the end of the guilt phase, and during the penalty

phase.

The panel rejected Kadamovas’s claim that under Bruton

v. United States Mikhel’s testimony and refusal to be crossexamined violated Kadamovas’s Sixth Amendment

Confrontation Clause rights. The panel wrote that because

Mikhel’s testimony did not facially incriminate Kadamovas,

the testimony did not trigger the Bruton rule, and it must be

assumed that the jury followed the district court’s instruction

to disregard Mikhel’s testimony. The panel concluded that

any error in this regard was harmless.

The panel held that the district court did not abuse its

discretion in denying Kadamovas’s motions for complete

severance of his case from Mikhel’s or in denying his

requests for sequential penalty phases.

Rejecting Kadamovas’s evidentiary challenges to his

conviction for conspiracy to escape, the panel held (1) that

the district court did not err under Fed. R. Evid. 608(b) or the

Confrontation Clause in limiting the defense’s crossexamination of a cooperating witness; and (2) that the

erroneous admission of a letter that was inadmissible hearsay

was harmless.

The panel held that the record supports the district court’s

determination that there was no pattern of Kadamovas being

denied computer access to review discovery materials as

contemplated by a stipulation with the government. 
UNITED STATES V. MIKHEL 5

Penalty Phase

The panel held that the district court did not plainly err by

using this circuit’s model reasonable-doubt jury instruction in

the penalty phase. 

The panel rejected the defendants’ contention that the

Eighth Amendment and the Federal Death Penalty Act only

permit evidence of a victim’s personal characteristics in

penalty proceedings to the extent they influenced, and thus

reveal something about, the relationship the victim had with

his or her family. The panel held that the district court did

not commit plain error in failing to exclude evidence of a

victim’s religion in the context of his commitment to his

family and celebration of life.

The panel rejected some of the defendants’ contentions as

to the propriety of the government’s remarks in penalty-phase

closing arguments, but agreed with the defendants that the

government should not have compared prison life to the

victims’ deaths. On plain error review, the panel held that the

latter statements did not so affect the jury’s ability to consider

the totality of the evidence fairly that it tainted the verdict and

deprived the defendants of a fair trial.

Assuming without deciding that there was error in the

district court’s jury instruction and verdict form on the nonstatutory aggravating factor of future dangerousnes, the panel

held that any error was harmless.

The panel rejected the defendants’ claim that the

government commented on their failure to testify at trial in

violation of their Fifth Amendment rights under Griffin v.

California.
6 UNITED STATES V. MIKHEL

Regarding Kadamovas’s contention that the government,

in questioning a witness, appealed to ethnic prejudice in

violation of Kadamovas’s Fifth Amendment right to a fair

trial, the panel held that there was no plain error.

The panel held that the district court did not abuse its

discretion in excluding an interview with Mikhel’s exgirlfriend, offered as mitigating evidence. The panel held

that the district court did not abuse its discretion in excluding

a portion of an interview with Mikhel’s cousin whose plea for

mercy was essentially an opinion about what the jury’s

verdict should be.

The panel held that the jury could have reasonably relied

on the government’s guilt-phase evidence to conclude that

Kadamovas presented a risk of future dangerousness beyond

a reasonable doubt. 

The panel held that the district court did not abuse its

discretion in admitting an antique dagger with swastikas on

the handle, and did not commit plain error by admitting

testimony that Kadamovas referred to the victim as a “fat

Jew.”

The panel rejected Kadmovas’s argument that the jury’s

failure to find the mitigating factor that he had no prior

criminal record demonstrates that it disregarded its statutory

obligation to consider mitigating factors and therefore

rendered an arbitrary verdict. The panel explained that the

jury was not required to find any mitigating factor, and held

that the jury’s failure to find that Kadamovas had no prior

criminal record was reasonable. 
UNITED STATES V. MIKHEL 7

The panel held that the district court did not abuse its

discretion in rejecting Kadamovas’s proffer of Lithuania’s

abolition of the death penalty as a mitigating factor.

COUNSEL

Benjamin L. Coleman (argued), Coleman &Balogh LLP, San

Diego, California; Barbara E. O’Connor, O’Connor & Kirby

P.C., Burlington, Vermont; Margaret Hills & O’Donnell,

Frankfort, Kentucky; for Defendant-Appellant Jurijus

Kadamovas.

Michael Tanaka (argued), Deputy Federal Public Defender;

Hilary Potashner, Federal Public Defender; Office of the

Federal Public Defender, Los Angeles, California; Sean J.

Bolser, Federal Capital Appellate Resource Counsel Project,

Federal Defenders of New York, Brooklyn, New York; Statia

Peakheart, Los Angeles, California; for Defendant-Appellant

Iouri Mikhel.

Michael A. Brown (argued), Assistant United States

Attorney; Lawrence S. Middleton, Chief, Criminal Division;

Sandra R. Brown, United States Attorney; United States

Attorney’s Office, Los Angeles, California; for PlaintiffAppellee.

Alexey V. Tarasov, Houston, Texas, for Amicus Curiae

Government of the Russian Federation.
8 UNITED STATES V. MIKHEL

OPINION

I. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. The Hostage-Taking Conspiracy. . . . . . . . . . . . . . 11

1. Death of Meyer Muscatel.. . . . . . . . . . . . . . . . 12

2. Death of Rita Pekler.. . . . . . . . . . . . . . . . . . . . 13

3. Death of Alexander Umansky. . . . . . . . . . . . . 14

4. Deaths of Nick Kharabadze and George Safiev

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

5. The FBI’s investigation. . . . . . . . . . . . . . . . . . 17

B. The Escape Conspiracy and Mikhel’s Second Escape

Attempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . 20

II. ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. The Guilt Phase. . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. The Hostage Taking Act. . . . . . . . . . . . . . . . . 23

2. Defendants’ recusal motion. . . . . . . . . . . . . . . 31

3. Batson challenge. . . . . . . . . . . . . . . . . . . . . . . 37

4. The use of an anonymous jury. . . . . . . . . . . . . 43
UNITED STATES V. MIKHEL 9

5. Right to a public trial. . . . . . . . . . . . . . . . . . . . 46

6. “Reasonable doubt” instruction as to guilt.. . . 48

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

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

8. Excluded testimony regarding 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 arguments

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

4. Instruction and verdict form on future

dangerousness. . . . . . . . . . . . . . . . . . . . . . . . . 96
10 UNITED STATES V. MIKHEL

5. Griffin error. . . . . . . . . . . . . . . . . . . . . . . . . . 104

6. Examination of Dr. Mark Cunningham. . . . . 106

7. Mikhel’s excluded mitigation evidence.. . . . 108

8. Kadamovas’s future dangerousness.. . . . . . . 111

9. Nazi and anti-Semitism evidence.. . . . . . . . . 113

10. Kadamovas’s mitigating factors.. . . . . . . . . . 116

11. Lithuania’s abolition of the death penalty. . . 117

III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
UNITED STATES V. MIKHEL 11

BYBEE, Circuit Judge:

Between late 2001 and early 2002, defendants Iouri

Mikhel and Jurijus Kadamovas abducted, held hostage, and

killed five people, dumping each victim’s body in the New

Melones Reservoir outside Yosemite National Park. After a

five-month trial, a jury convicted them of several federal

crimes, including multiple counts of hostage taking resulting

in death under the Hostage Taking Act, 18 U.S.C. § 1203. As

summarized below, the evidence that Mikhel and Kadamovas

did these things—and did them without concern for their

victims’ suffering—was detailed, comprehensive, and in a

word, overwhelming.

In subsequent penalty-phase proceedings under the

Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3591 et

seq., the juryunanimouslyrecommended that both defendants

be sentenced to death. Defendants now challenge their

convictions and death sentences on direct appeal to this court. 

After extensive briefing and argument from the parties, and

our own careful review, we affirm.

I. BACKGROUND

A. The Hostage-Taking Conspiracy

Defendants are foreign nationals under the Hostage

Taking Act: Mikhel is Russian, and Kadamovas is

Lithuanian. Both lived in Los Angeles, California, during the

events underlying this case. Defendants were assisted at

various times by coconspirators Petro Krylov, Ainar

Altmanis, Aleksejus Markovskis, and Natalya Solovyeva. 

Altmanis, Markovskis, and Solovyeva all pleaded guilty and
12 UNITED STATES V. MIKHEL

testified for the government. Krylov was tried and convicted

in a separate trial.

1. Death of Meyer Muscatel

In October 2001, Mikhel, Kadamovas, and Altmanis

discussed and rehearsed a plan to kidnap local real-estate

developer Meyer Muscatel. The plan called for Mikhel to

pose as a businessman interested in purchasing real estate. 

To that end, Mikhel asked Muscatel to view a property with

him. Muscatel agreed and drove with Mikhel to the property

in question (actually Mikhel’s house), where Kadamovas and

Altmanis were waiting.

When Muscatel entered the house, Altmanis and

Kadamovas grabbed him. Altmanis bound Muscatel’s legs

with plastic ties, and Kadamovas handcuffed his arms behind

his back. Mikhel duct-taped Muscatel’s eyes and pistolwhipped him in the head, drawing blood. Mikhel and

Kadamovas then took Muscatel’s wallet and credit cards and

questioned him about his finances. They attempted to

withdraw money from his bank account, but the bank froze

the account.

When Mikhel and Kadamovas determined theywould get

no money out of Muscatel, they injected him with Dimedrol

(an antihistamine with sedative properties) and held him

down to the ground. Mikhel closed a plastic bag over

Muscatel’s head and pinched his nose shut, suffocating him

to death. Mikhel and Kadamovas then loaded Muscatel’s

body into Kadamovas’s van and drove to the New Melones

Reservoir. They carried his body to the edge of the Parrotts

Ferry Bridge and accidentally dropped it on a curb—leaving

blood stains—before tossing it into the reservoir. Kadamovas
UNITED STATES V. MIKHEL 13

later told his friend Markovskis that he had once thrown a

“fat Jew” (i.e., Muscatel) off a bridge. The incident,

Markovskis said, “was very funny” to Kadamovas.

2. Death of Rita Pekler

Following Muscatel’s death, Mikhel and Kadamovas set

their sights on kidnapping George Safiev, a wealthy Russian

businessman. First, they decided to abduct Safiev’s financial

advisor, Rita Pekler, to use as bait. In December 2001,

Kadamovas contacted Pekler pretending to be interested in

her advice on a real estate transaction. Kadamovas had

Pekler pick him up and drive him to a property he claimed he

was interested in buying (actually his home). Mikhel,

Altmanis, and Kadamovas’s friend Krylov were already

there; Mikhel was carrying a gun with a fake silencer, and

Altmanis had a stun gun.

When Pekler arrived, Mikhel restrained her and told her

that, if she brought Safiev to them, they would get her drunk

with vodka or inject her with Dimedrol and leave her

unharmed in a motel. Pekler told them she was pregnant and

afraid alcohol or drugs would harm the baby. Undeterred,

defendants persisted in trying to use her to lure Safiev. Pekler

eventually contacted Safiev, but he told her he was too busy

to meet. Shortly thereafter, Safiev left Los Angeles for

Russia. Mikhel and Kadamovas decided Pekler had outlived

her usefulness; they injected her with Dimedrol, strangled

her, and as with Muscatel, threw her body off the Parrotts

Ferry Bridge.
14 UNITED STATES V. MIKHEL

3. Death of Alexander Umansky

Later that same month, Krylov suggested abducting his

former boss, Alexander Umansky, who owned an automobile

shop. Mikhel posed as a customer who needed audio systems

installed in two cars and asked Umansky for a ride to one of

them. Umansky was excited about the opportunity and

agreed to pick up Mikhel. Mikhel directed Umansky to

Kadamovas’s house, where Kadamovas, Altmanis, and

Krylov already lay in wait—Kadamovas with a gun and

Altmanis with a stun gun. When Umansky arrived,

Kadamovas sat him on a chair, handcuffed his hands behind

him, and bound his legs with plastic ties. Mikhel and

Kadamovas then took Umansky’s keys, telephone, and wallet

and questioned him about his finances. Later, Mikhel and

Altmanis used Umansky’s debit card to withdraw money

from an ATM and were captured doing so on a surveillance

camera.

Umansky remained trapped in Kadamovas’s home for

three days, during which Mikhel and Kadamovas forced him

to call his brother and plead for money to secure his release. 

Eventually, Mikhel and Kadamovas decided they no longer

needed Umansky alive. They sent Altmanis to buy weight

plates from a used sporting goods store. When Altmanis

returned, Mikhel shoved plastic bags in Umansky’s mouth,

duct-taped his mouth shut, and put a bag over his head, while

Kadamovas held him down and pinched his nose shut. When

these efforts proved ineffective, Mikhel and Altmanis twisted

a rope around Umansky’s neck and strangled him from

behind. Mikhel, Kadamovas, and Altmanis then tied a weight

plate around Umansky’s body and put it in Kadamovas’s van. 

They drove to Mikhel’s house and—with the body still in the

van—had dinner with Mikhel’s girlfriend. After dinner, the
UNITED STATES V. MIKHEL 15

three of them drove to the New Melones Reservoir, where

they threw Umansky’s body off the Parrotts Ferry Bridge.

Mikhel and Kadamovas had previously sent the Umansky

family a ransom note demanding nearly $235,000. The

Umansky family contacted the FBI, which advised them to

pay just part of the ransom to give the kidnappers a reason to

keep Umansky alive. The Umansky family followed the

FBI’s advice and paid part of the ransom. Later, after

receiving a call threatening harm to other family members,

they paid the rest of the ransom money. An IRS investigator

traced how the ransom payments were laundered abroad

before being deposited in accounts held by Mikhel,

Kadamovas, and defendants’ business, Designed Water

World (a fish aquarium store).

4. Deaths of Nick Kharabadze and George Safiev

In January 2002, Mikhel and Kadamovas learned Safiev

was back in Los Angeles and decided to trap him through his

friend and business partner, Nick Kharabadze. They planned

for Kadamovas’s girlfriend, Solovyeva, to call Kharabadze

and tell him she had gotten his phone number from a friend

and wanted to meet him. Markovskis was part of the plan

and later testified that Mikhel and Kadamovas were in charge

and calling all the shots.

Solovyeva called Kharabadze and asked him to meet her

at what she said was a private club but was in fact Designed

Water World’s office. When Kharabadze arrived, Altmanis

and Markovskis were playing pool, Mikhel and Krylov were

drinking, and Kadamovas was standing behind a bar. 

Kadamovas had a revolver hidden under the bar, and Mikhel

and Altmanis had guns concealed under their jackets. 
16 UNITED STATES V. MIKHEL

Solovyeva asked Kharabadze to order her a drink, while

Krylov closed the outside door behind him. Mikhel then

handcuffed Kharabadze to a chair, took his keys, wallet, and

telephone, and explained they wanted him to help them trap

Safiev. At their direction, Kharabadze called Safiev and

convinced him to come to Designed Water World.

When Safiev entered Designed Water World, Mikhel,

Kadamovas,Altmanis,Krylov, and Markovskis converged on

him. Mikhel handcuffed Safiev and took his keys, wallet, and

telephone. Mikhel and Kadamovas then transported

Kharabadze and Safiev to Kadamovas’s house, where they

forced Safiev to call his business partner, Konstantinos

Tezhik, and beg him to transfer $940,000 to a foreign

account. Kharabadze and Safiev remained imprisoned in

Kadamovas’s house for four days. During this time,

Kadamovas recorded Safiev’s voice to use to extort more

money after he was dead. Kadamovas also told Markovskis

that he planned to continue abducting people 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 Kharabadze and Safiev were no longer necessary. 

He and the others got Kharabadze and Safiev drunk with

vodka and drove them to the New Melones Reservoir in two

cars. On the way, a policeman pulled them over for driving

too closely together. Mikhel exited his car and had a brief

conversation with the policeman, who sent him on his way. 

Solovyeva later testified that Kadamovas said he would have

killed the policeman if he had seen the hostages in the car.

At the New Melones Reservoir, Mikhel killedKharabadze

by placing a plastic bag over his head and tightening a plastic
UNITED STATES V. MIKHEL 17

tie around his throat. Altmanis tied a weight around

Kharabadze’s body and assisted in throwing it off the

Stevenot Bridge. Safiev had already been killed and thrown

into the reservoir in a similar fashion. Mikhel told Altmanis

that Safiev, like Pekler, had been difficult to kill because he

was “strong as a snake.”

Mikhel used Kharabadze’s and Safiev’s ATM cards to

withdraw money and was again captured on surveillance

cameras. Kadamovas then gave the ATM cards to his

associate, Vladimir Paniouchkine, who traveled to Germany

to withdraw more money. Mikhel used one of Safiev’s credit

cards to order about $9,000 in electronic equipment. In

addition, Mikhel called Tezhik in London and faxed him a

ransom note—which Safiev had signed before he

died—demanding another $4 million in ransom. Tezhik taperecorded his calls with Mikhel.

All in all, Mikhel and Kadamovas received over

$1 million in ransom money from the hostage-taking

conspiracy, which they spent on high-end cars, renovations

for their homes, lavish presents for their girlfriends, and

expensive vacations, among other things.

5. The FBI’s investigation

A father and son returning from a fishing trip discovered

Muscatel’s body near the Parrotts Ferry Bridge. Later,

Altmanis learned the FBI was investigating him, decided to

confess, and helped the FBIfind the last four victims’ bodies. 

The FBI wire-tapped Mikhel’s and Kadamovas’s phones and

recorded them discussing ransom money. The FBI also

secured data from their cellphones, which showed them

driving north on Highway 99 toward the New Melones
18 UNITED STATES V. MIKHEL

Reservoir on the days Muscatel, Pekler, Umansky,

Kharabadze, and Safiev died.1

The FBI searched Mikhel’s house and found extensive

physical evidence linking him and Kadamovas to the victims,

including the original $4 million ransom note for Safiev, a

record of Safiev’s and Kharabadze’s personal and financial

information, four sets of handcuffs, and plastic ties like those

found on the victims. Mikhel’s and Kadamovas’s

fingerprints were on many of these items, and Safiev’s and

Kharabadze’s DNA was on the handcuffs. The FBI also

found fourteen handguns, handgun parts, ammunition, a

silencer, an electric shock baton, a stun gun, and several

stolen or fraudulent passports.

The FBIsearched Kadamovas’s two residences and found

additional evidence connected to the victims. At

Kadamovas’s house in Sherman Oaks, the FBI found several

weight plates (but no weight bars or other exercise

equipment) and an envelope with a phone number written on

it—the same number that defendants used to call the

1 After briefing in this appeal was complete, defendants filed a

supplemental brief claiming that the Supreme Court’s pending decision in

Carpenter v. United States, 137 S. Ct. 2211 (2017), may impact the

admissibility of their cellphone data. In Carpenter, the Court will address

whether the seizure of cellphone data pursuant to a court order under 18

U.S.C. § 2703, but without a warrant issued upon probable cause, violates

the Fourth Amendment. The government does not contest that the

cellphone data at issue here was seized in the same manner challenged in

Carpenter. But no matter how the Court rules in Carpenter, the decision

will have no impact on this case because the cellphone data only

corroborated other evidence. As discussed below, the evidence of

Mikhel’s and Kadamovas’s guilt was so overwhelming that even if we

thought it was error to admit the cellphone data, the exclusion of the

evidence would not have changed the verdicts.
UNITED STATES V. MIKHEL 19

Umansky family for ransom. At Kadamovas’s house in

Encino, the FBI found a distinctive dagger linked to

defendants’ money-laundering scheme, a handgun,

ammunition, and shoes with blood stains. The shoes matched

the shoeprints left in Muscatel’s blood on the Parrotts Ferry

Bridge. The carpet in Kadamovas’s house matched carpet

fibers retrieved from Kharabadze’s clothing.

B. The Escape Conspiracy and Mikhel’s Second Escape

Attempt

Following their arrests, Mikhel, Kadamovas, and Krylov

were detained at the Metropolitan Detention Center–Los

Angeles (“MDC”). Mikhel devised a plan by which he,

Kadamovas, Krylov, and others would smuggle tools into

their cells and bore holes through their cell walls to reach an

adjacent stairwell. Once in the stairwell, they would use a

hydraulic pump to push open the window’s bars, climb

through the window, and rappel down the side of the

building. A motorcycle gang would be waiting for them

outside and would spin off in different directions before

reuniting at a safe house. In accordance with the plan,

Mikhel successfully smuggled a veritable hardware store into

his cell, including hacksaw blades, wrenches, screwdrivers,

fishing line, paint, work gloves, bolt cutters, and a camcorder. 

Kadamovas was originally housed elsewhere in the facility

but managed to change cells to be next to the stairwell

intended for the escape.

Mikhel invited fellow inmate Billy Parker to join the

escape conspiracy, offering him the necessary tools (for a

price) and warning him they would have to kill any guards

they met on their way out. Parker, however, informed MDC

officials. In Mikhel’s cell, officials found a large hole carved
20 UNITED STATES V. MIKHEL

in the wall and his cache of tools. In Krylov’s cell, they

found a smaller hole, hacksaw blades, and a screwdriver. 

They did not find any evidence of tunneling or contraband in

Kadamovas’s cell. Nonetheless, there was extensive

evidence linking Kadamovas to the escape conspiracy, as

described in detail below.

After the first escape attempt, Mikhel was moved to a

high security section of San Bernardino County’s Central

Detention Center (“SB-CDC”). There, he was placed under

Special Administrative Measures and isolated from other

inmates. Despite these measures, Mikhel concocted a

detailed escape plan, which he outlined in a letter promising

$1 million to an alleged member of the Mexican Mafia in

exchange for help. Officials intercepted the letter, and a

deputy sheriff assigned to SB-CDC later testified that

Mikhel’s escape plan was very feasible.2

C. Procedural History

A grand jury indicted Mikhel and Kadamovas on one

count of Conspiracy to Take Hostages Resulting in Death

(18 U.S.C. § 1203), three counts of Hostage-TakingResulting

in Death (18 U.S.C. § 1203), Conspiracy to Launder

Monetary Instruments (18 U.S.C. § 1956(h)), Conspiracy to

Escape from Custody (18 U.S.C. § 371), and Criminal

Forfeiture (18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853, and

28 U.S.C. § 2461(c)). The government filed a notice of intent

to seek the death penalty against both defendants.

2 Later, at the West Valley Detention Center, the measures taken to

secure Mikhel included blindfolding him and transporting him around the

facility in a wheelchair to prevent him from counting his steps to orient

himself.
UNITED STATES V. MIKHEL 21

The guilt phase of trial began in July 2006 and spanned

five months. The government’s case in chief was detailed

and thorough, including scores of witnesses who testified

over the course of more than thirty trial days. Defendants

initially rested their case after just three trial days, but the

district court permitted them to reopen their case when

Mikhel unexpectedly chose to testify. Mikhel testified on

direct for three days, at the end of which he refused to be

cross-examined. On Kadamovas’s motion, the district court

struck Mikhel’s testimony and instructed the jury to disregard

it. On January 16, 2007, the jury began its deliberations. The

very next day, it returned separate verdicts in each

defendant’s case, finding both defendants guiltyon all counts.

The penalty phase began on January 24, 2007. The FDPA

requires the jury to make several findings before

recommending a sentence of death. Among other things, the

jury must find that at least one statutory aggravating factor

exists and that all aggravating factors proven by the

government “sufficiently outweigh” any mitigating factors

proven by defendants. 18 U.S.C. § 3593(e). The government

argued four statutory aggravating factors against both

defendants: (1) death during commission of another crime,

(2) procurement of offense by payment, (3) substantial

planning and premeditation, and (4) multiple killings. See

18 U.S.C. § 3592(c). The government also argued five nonstatutory aggravating factors against both defendants:

(5) future dangerousness, (6) contemporaneous convictions

for multiple offenses, (7) witness elimination, (8) emotional

suffering of the victims, and (9) victim impact. The

government’s penalty-phase case incorporated all of its guiltphase evidence. In addition, the government presented

several victim-impact witnesses and further evidence of

Mikhel’s escape attempts.
22 UNITED STATES V. MIKHEL

Mikhel proffered eighteen mitigating factors and

presented penalty-phase evidence regarding his upbringing,

mental health, and life in Russia, as well as several

videotaped interviews of his friends and family. Kadamovas

proffered nine mitigating factors and presented penalty-phase

evidence regarding statistical violence rates in prisons and the

former Soviet Union. The district court charged the jury on

February 13, 2007. Later the same day, after a brief threehour deliberation, the jury returned separate verdicts in each

defendant’s case. The jury unanimously found every

aggravating factor proposed by the government as to both

defendants. No juror found any mitigating factor as to either

defendant. And the juryunanimouslyrecommended that both

defendants be sentenced to death. Accordingly, the district

court sentenced both defendants to death on each of the four

capital offenses. The court also sentenced them to twenty

years’ imprisonment on the remaining counts and ordered

over $1 million in forfeiture.

II. ANALYSIS

Defendants claim errors in both the guilt and penalty

phases of trial. We have had the benefit of extensive briefing

and oral argument in this case: the briefs totaled more than

1,700 pages, and the court heard more than three hours of oral

argument. The court granted generous extensions of time and

space to the parties for briefing; indeed, this direct appeal was

heard over ten years after the entry of judgment and fifteen

years after the crimes. We will address each claimed error in

turn.
UNITED STATES V. MIKHEL 23

A. The Guilt Phase

1. The Hostage Taking Act

Defendants were convicted and sentenced to death on one

count of conspiring to take hostages resulting in death and

three counts of hostage taking resulting in death under the

Hostage Taking Act, 18 U.S.C. § 1203. They seek to

overturn their convictions on grounds that the Hostage Taking

Act requires a nexus to “international terrorism” and that no

such nexus exists here. In the event the Act does not

require such a nexus, they claim it exceeds Congress’s

constitutionally enumerated powers and also violates the

Tenth Amendment. We review 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 International

Convention Against the Taking of Hostages, Dec. 17, 1979,

T.I.A.S. No. 11081, 1316 U.N.T.S. 205 (“the Treaty”), which

binds its signatories to take “effective measures for the

prevention, prosecution and punishment of all acts of taking

of hostages as manifestations of international terrorism.” 

Treaty, pmbl. The Treaty defines hostage taking as follows:

Any person who seizes or detains and

threatens to kill, to injure or to continue to

detain another person . . . in order to compel a

third party . . . to do or abstain from doing any

act as an explicit or implicit condition for the

release of the hostage commits the offence of

taking of hostages . . . within the meaning of

this Convention.
24 UNITED STATES V. MIKHEL

Id. art. 1(1). The Treaty, with limited exceptions, does not

apply where a hostage taking is committed within a single

nation, both the offender and victim are nationals of that

nation, and the offender is found within that nation. Id. art.

13.

Congress implemented the Treaty through the Hostage

Taking Act, which tracks the Treaty’s language:

(a) . . . [W]hoever, whether inside or outside

the United States, seizes or detains and

threatens to kill, to injure, or to continue to

detain another person in order to compel a

third person or a governmental organization to

do or abstain from doing any act as an explicit

or implicit condition for the release of the

person detained, or attempts or conspires to do

so, shall be punished by imprisonment for any

term of years or for life and, if the death of

any person results, shall be punished by death

or life imprisonment.

. . . .

[(b)](2) It is not an offense under this section

if the conduct required for the offense

occurred inside the United States, each

alleged offender and each person seized or

detained are nationals of the United States,

and each alleged offender is found in the

United States, unless the governmental

organization sought to be compelled is the

Government of the United States.
UNITED STATES V. MIKHEL 25

18 U.S.C. § 1203. There are three elements to this crime:

“(1) a seizure or detention; (2) a threat to kill, injure, or

continue to detain; (3) with the purpose of compelling a third

person or governmental entity to act in some way or refrain

from acting.” United States v. Sierra-Velasquez, 310 F.3d

1217, 1220 (9th Cir. 2002). In addition, § 1203(b) requires

some international element, i.e., that the offense occurred

abroad, that the defendant is found abroad, that a defendant

or victim is a foreign national, or that the defendant sought to

compel something from the federal government.

Defendants’ interpretation of the Hostage Taking Act as

requiring proof of a nexus to international terrorism is both

infirm as a matter of statutory interpretation and foreclosed

by our prior decision in United States v. Lopez-Flores,

63 F.3d 1468 (9th Cir. 1995). The definition of a hostagetaking offense in the Treaty and the Act makes no mention of

international terrorism. Defendants base their argument

instead on the Treaty’s preamble, which refers to “all acts of

taking of hostages as manifestations of international

terrorism.” Treaty, pmbl. (emphasis added). By its own

terms, the preamble’s reference to “international terrorism”

is illustrative only; it limits neither the Treaty nor Congress’s

implementing legislation.

Contraryto defendant’s argument, the statute’s legislative

history affirms that hostage taking is not limited to acts with

a nexus to international terrorism. See Lopez-Flores, 63 F.3d

at 1476 (quoting Legislative Initiatives Hearings, 98th Cong.,

2d Sess. 48–49 (1984) (statement of Victoria Toensing,

DeputyAssistant AttorneyGeneral) (“[T]he bill is not limited

to hostage-taking by terrorists, in keeping with the purpose of

the international Convention . . . .”)). Thus, in Lopez-Flores,

we held that the Act applied to alien smugglers who held
26 UNITED STATES V. MIKHEL

aliens for ransom. Id. at 1475–76. And in Sierra-Velasquez,

we rejected a narrow reading of Lopez-Flores and once again

upheld the conviction of alien smugglers. 310 F.3d at 1220

(“Lopez-Flores . . . does not limit hostage taking to the facts

of that case.”).

Nevertheless, defendants argue that the Supreme Court’s

more recent decision in Bond v. United States requires a

narrower reading of the Hostage Taking Act. 134 S. Ct. 2077

(2014) (“Bond II”). In Bond II, the Court held that Bond—a

microbiologist who had poisoned her husband’s lover by

spraying low-dosage toxic chemicals on her doorknob, car,

and mailbox—could not be convicted under the federal

Chemical Weapons Act. Id. at 2084–85. The statute, which

implemented the Chemical Weapons Convention,

criminalized the use of “chemical weapon[s].” Id. at 2085. 

The Court considered the ordinary meaning of “chemical

weapons” and acknowledged that “the chemicals in this case

are not of the sort that an ordinary person would associate

with instruments of chemical warfare [i.e., the subject of the

underlying treaty].” Id. at 2090. For this reason, and given

the lack of any clear indication that Congress intended the

statute to reach purely local crimes, the Court refused to

“adopt a reading of [the Act] that would sweep in everything

from the detergent under the kitchen sink to the stain remover

in the laundry room.” Id. at 2091.

By contrast, Mikhel and Kadamovas’s conduct in

abducting and holding their victims for ransom fits squarely

within the Treaty and Hostage Taking Act and comports with

any ordinary understanding of a “hostage taking.” Moreover,

the Hostage Taking Act does not cover purely local conduct

but rather expressly requires some international component.

See 18 U.S.C. § 1203(b). Mikhel and Kadamovas’s offenses
UNITED STATES V. MIKHEL 27

not only met the Act’s requirements but had other

international contacts as well, further demonstrating an

appropriate federal interest in this case. For instance, Mikhel

and Kadamovas sent a ransom demand abroad and laundered

ransom money through foreign countries. We therefore

reaffirm, in accordance with our prior decisions in LopezFlores and Sierra-Velasquez, that the Hostage Taking Act

does not require proof of a nexus to international terrorism.

This brings us to defendants’ constitutional argument. In

Lopez-Flores, we rejected challenges to the Hostage Taking

Act as unconstitutionally vague or as violating the Equal

Protection Clause, but we did not address the argument

defendants assert here—namely, that the Hostage Taking Act

exceeded Congress’s constitutionally enumerated powers and

violated the Tenth Amendment. Lopez-Flores, 63 F.3d at

1473–75. In this regard, we are persuaded by the Second

Circuit’s reasoning in United States v. Lue, which rejected a

similar argument and held that the Act was a valid exercise of

Congress’s power under the Necessary and Proper Clause

together with the Treaty Power. 134 F.3d 79, 82–85 (2d Cir.

1998).

The Constitution grants the President the “Power, by and

with the Advice and Consent of the Senate, to make Treaties,

provided two thirds of the Senators present concur.” U.S.

CONST. art. II, § 2, cl. 2. It also grants Congress the power

“[t]o make all Laws which shall be necessary and proper for

carrying into Execution the foregoing 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.

CONST. art. I, § 8, cl. 18. In Missouri v. Holland, the

Supreme Court held that, if a treaty is a valid exercise of the

President’s Treaty Power, then Congress’s statute
28 UNITED STATES V. MIKHEL

implementing that treaty is valid “as a necessary and proper

means to execute the powers of the Government.” 252 U.S.

416, 432 (1920). We and other courts have commonly

understood Holland to mean that the Necessary and Proper

Clause grants Congress broad authority to enforce our

country’s treaty obligations by statute. See, e.g., United

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

v. Rodriquez-Camacho, 468 F.2d 1220, 1222 (9th Cir. 1972). 

Although this broad reading of the Necessary and Proper

Clause has been criticized and debated, see, e.g., Bond II,

134 S. Ct. at 2098–102 (Scalia, J., concurring), the Supreme

Court has never undertaken to clarify or correct our

understanding. We 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 President’s Treaty

Power. 134 F.3d at 83 (“Whatever the potential outer limit

on the treaty power of the Executive, the Hostage Taking

Convention does not transgress it.”). Furthermore, there can

be little question that the Hostage Taking Act fulfills our

country’s obligation under the Treaty. The Hostage Taking

Act tracks the Treaty’s language in all material respects,

compare 18 U.S.C. § 1203(a), with Treaty, art. I, and clearly

bears a rational relationship to the Treaty, see United States

v. Comstock, 560 U.S. 126, 134 (2010) (“[I]n determining

whether the Necessaryand Proper Clause grants Congress the

legislative authority to enact a particular federal statute, we

look to see whether the statute constitutes a means that is

rationally related to the implementation of a constitutionally

enumerated power.”); United States v. Santos-Riviera,

183 F.3d 367, 373 (5th Cir. 1999) (“Congress rationally

concluded that a hostage taking within our jurisdiction

involving a noncitizen is sufficiently likely to involve matters

implicating foreign policy or immigration concerns as to
UNITED STATES V. MIKHEL 29

warrant a federal criminal proscription.”); Lue, 134 F.3d at 84

(“The [Hostage Taking] Act here plainly bears a rational

relationship to the Convention.”). Accordingly, the Hostage

Taking Act was a valid exercise of Congress’s power under

the Necessary and Proper Clause together with the Treaty

Power. See Holland, 252 U.S. at 432.3

Defendants’ independent Tenth Amendment challenge is

unavailing. The Tenth Amendment provides that “[t]he

powers not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the States

respectively, or to the people.” U.S. CONST. amend. X. The

Tenth Amendment is not a substantive, external constraint on

Congress’s power. Rather, it reflects a “truism,” “declaratory

of the relationship between the national and state

governments.” United States v. Darby, 312 U.S. 100, 124

(1941). The Tenth Amendment summarizes and, thus,

reinforces the relationship between the UnitedStates—whose

powers are limited and enumerated—and the states whose

powers are general, except as limited by the U.S. Constitution

and their own constitutions. Defendants’ argument that the

states have exclusive authority to punish hostage taking

depends on their ability to show one of two things: either that

the Constitution has not conferred any authority to Congress

to enact the Hostage Taking Act or, more improbably, that the

Constitution actuallyconfers exclusive authorityover hostage

taking to the states. The former they cannot show, because

“if Congress acts under one of its enumerated powers”—as

we have concluded it did here—then “there can be no

3

In light of this conclusion, we need not consider whether there might

be other sufficient constitutional bases for the Hostage Taking Act as well,

such as the Define and Punish Clause, U.S.CONST. art. I, § 8, cl. 10, or the

Commerce Clause, id. art. I, § 8, cl. 3.
30 UNITED STATES V. MIKHEL

violation of the Tenth Amendment.” United States v. Jones,

231 F.3d 508, 515 (9th Cir. 2000). As to the latter,

defendants have no evidence. See Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 550 (1985) (“With rare

exceptions, . . . the Constitution does not carve out express

elements of state sovereignty that Congress may not employ

its delegated powers to displace.”). Although California

undoubtedly has its own authority to punish defendants, that

only confirms the United States and California’s concurrent

jurisdiction—an example of the dual sovereignty doctrine. It

does not prove the exclusive jurisdiction of California. In

short, the Hostage Taking Act is consistent with Congress’s

“federalism-based respect for state and local authority in this

area of law enforcement.” Lopez-Flores, 63 F.3d at 1473.

Finally, defendants argue that, even if the Hostage Taking

Act does not itself exceed Congress’s power, the subsequent

amendment to the Act authorizing the death penalty does

exceed Congress’s power. The argument is without merit. If

Congress has the power to criminalize conduct, it also has the

power to prescribe a constitutionally permissible punishment

for that conduct. See Mistretta v. United States, 488 U.S.

361, 364 (1989) (“Congress, of course, has the power to fix

the sentence for a federal crime.”). Indeed, the Treaty that the

Hostage Taking Act implements requires its signatories to

make hostage taking “punishable by appropriate penalties

which take into account the grave nature of those offences.” 

Treaty, art. II. The Treaty is not self-executing, see Medellin

v. Texas, 552 U.S. 491, 504–05 & n.2 (2008); it neither

prescribes nor forbids any particular punishment but

explicitly leaves it to each signatory to do so. Congress’s

amendment authorizing the death penalty for hostage takings
UNITED STATES V. MIKHEL 31

resulting in death was equally within its constitutional power

under the Necessary and Proper Clause as the original Act.4

2. Defendants’ recusal motion

Defendants claim 28 U.S.C. § 455(a) required Judge

Tevrizian to recuse himself after he applied to a local

screening committee for the position of United States

Attorney for the Central District of California—the same

office prosecuting this case. “We review the denial of a

recusal motion for an abuse of discretion.” United States v.

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

On December 28, 2006, Judge Tevrizian held 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 floating around

here. You know, I had announced that I’m

4

 We acknowledge the Russian Federation’s amicus brief in support

of defendants but are unpersuaded by its arguments. As explained above,

Mikhel’s and Kadamovas’s conduct fell squarely within the Hostage

Taking Act, and we have previously held that the Act does not violate the

Equal Protection Clause. Lopez-Flores, 63 F.3d at 1473; see also Lue,

134 F.3d at 85–87. The Federation’s other argument—that the death

penalty violates the Eighth Amendment—is not for us to decide. See

United States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007) (“Whether

contemporary values dictate a different answer [to the constitutionality of

the death penalty] today is for the Supreme Court to decide; the Eighth

Amendment does not authorize this court to overrule Supreme Court

precedent ‘even where subsequent decisions or factual developments may

appear to have significantly undermined the rationale for [an] earlier

holding.’”).
32 UNITED STATES V. MIKHEL

going to retire just as soon as this case is over

and join a judicial arbitration mediation

service. A couple of weeks ago I received a

telephone call from a search committee that’s

looking to replace the United States Attorney

and they asked me to submit my name for that

position. The search committee is not

associated with the Justice Department nor is

it associated with the administration. They

make recommendations and they asked me to

submit my name. Whether anything comes of

it I don’t know, but I thought Ishould disclose

this to you. I’m not doing it for any financial

gain, because I made it very clear that if I do

take the position that I would do it for a dollar

a year, because of the fact that I’m on a

federal pension, judicial pension, and I don’t

believe in double dipping. So I do make this

disclosure to you. Again, I don’t know if

anything is going to come of it. I haven’t

been contacted by the administration. I

haven’t been contacted by anybody in

Washington.

Neither side made any objection.

Trial proceeded, and the jury returned guilty verdicts a

few weeks later. It was not until January 29, 2007, after the

government had rested its case in chief in the penalty phase,

that defendants moved for recusal. Judge Tevrizian denied

defendants’ motion the next day, stating that he had

withdrawn his name from consideration and that his

application had never progressed past a preliminary stage:
UNITED STATES V. MIKHEL 33

I advised and disclosed to all parties on the

record that I was contacted by a representative

of the local screening committee to apply for

the position of United States Attorney for the

Central District of California. None of the

parties or their counsel ever objected.

I submitted a form application and was

interviewed by the screening committee only. 

I have never been interviewed by anyone of

the Department of Justice o[r] White House

counsel’s office. In fact, I never directly

submitted my application to the Department

of Justice or White House counsel’s office. It

was submitted only to the local screening

committee, who may have passed it on.

Again, none of the defense counsel or the

defendants objected when I made the

disclosure on the record weeks ago that I was

planning to apply for the position.

. . . .

Yesterday I withdrew my name for

consideration for the position of United States

Attorney by notifying the local committee. 

The only personal contact I had with either the

Department of Justice or the White House

counsel’s office was over the telephone,

yesterday, to inform them that I had

withdrawn my name from consideration.
34 UNITED STATES V. MIKHEL

I was also informed that my application

was never considered on the merits by the

Department of Justice or White House

counsel’s office.

Defendants filed a petition for mandamus in our court. We

denied the petition, noting that they had “arguably filed their

motion to recuse the district judge too late.”

“It is well established in this circuit that a recusal motion

must be made in a timely fashion.” E. & J. Gallo Winery v.

Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992). 

“While there is no per se rule that recusal motions must be

made at a fixed point in order to be timely, such motions

should be filed with reasonable promptness after the ground

for such a motion is ascertained.” Id. (citation omitted)

(quotation marks omitted). Where “unexplained delay” in

filing a recusal motion “suggests that the recusal statute is

being misused for strategic purposes,” the motion will be

denied as untimely. Id. at 1296; see also United 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 alleged grounds for recusal on

December 28, 2006, but nevertheless waited until January 30,

2007, to file their motion. Although a delay of a little over a

month would not always, or even ordinarily, doom a motion

for recusal, defendants’ delay here renders their motion

untimely. Defendants were clearly notified that Judge

Tevrizian had put himself in the running to be United States

Attorney, yet they withheld their motion while trial was

ongoing and waited to file until after the jury’s verdicts

against them, and after the government rested its penalty-
UNITED STATES V. MIKHEL 35

phase case.5See Rogers, 119 F.3d at 1380. We see “a

heightened risk” that defendants used a recusal motion “for

strategic purposes.” Preston v. United States, 923 F.2d 731,

733 (9th Cir. 1991). Defendants’ recusal motion asked Judge

Tevrizian to “declare a mistrial of the penalty phase, and then

recuse himself from presiding further,” but did not seek a

mistrial as to the guilt phase. Defendants likely recognized

that the evidence of guilt was overwhelming and, rather than

delay the inevitable, may have tried to throw a wrench into

the penalty phase in the hope that the government would

prefer accepting life sentences to conducting a fresh penalty

phase.

Defendants argue that whether they timely moved for

recusal is neither here nor there because § 455(a) and Canon

3C(1) of the Code of Judicial Conduct place the duty to

recuse on the judge. We have rejected this same argument

before. E. & J. Gallo Winery, 967 F.2d at 1295. “In fact,

28 U.S.C. § 144 expressly requires that a motion to disqualify

must be ‘timely,’ and we have judicially required as much

under 28 U.S.C. § 455.” Rogers, 119 F.3d at 1380. 

Enforcing the timeliness of a recusal motion is necessary to

prevent litigants from using § 455(a) for strategic purposes. 

Defendants cannot avoid their timeliness problem by putting

5 Defendants argue they did not become aware of the need for recusal

until late January 2007 when they read a newspaper article suggesting that

Judge Tevrizian was among the frontrunners for the position. This

argument is meritless. Judge Tevrizian’s statement in December 2006

clearly indicated he had submitted his name to the local screening

committee for the position. His disclosure was straightforward and

sufficient to advise all parties of the issue. Defendants’ alleged basis for

recusal did not turn on whether they thought Judge Tevrizian’s application

might be successful.
36 UNITED STATES V. MIKHEL

the onus of recusal on the district court. They filed their

recusal motion too late.

In addition to its untimeliness, defendants’ recusal motion

fails on its merits. Under § 455(a), “[a]ny justice, judge, or

magistrate judge of the United States shall disqualify himself

in any proceeding in which his impartiality might reasonably

be questioned.” 28 U.S.C. § 455(a). “The goal of section

455(a) is to avoid even the appearance of partiality.” United

States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (quoting

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,

860 (1988)). Thus, we “ask whether a reasonable person with

knowledge of all the facts would conclude that the judge’s

impartiality might reasonably be questioned.” Id. (quotation

marks omitted). “The reasonable person is not someone who

is hypersensitive or unduly suspicious, but rather is a wellinformed, thoughtful observer.” Id. (quotation marks

omitted). “The standard must not be so broadly construed

that it becomes, in effect, presumptive, so that recusal is

mandated upon the merest unsubstantiated suggestion of

personal bias or prejudice.” Id. (quotation marks omitted).

Here, Judge Tevrizian promptly and clearly disclosed the

alleged grounds for recusal to the parties; his only contact

was with a local screening committee; he stated he would not

seek remuneration for the position, and there was no

opportunity for him to negotiate salary, bonuses, or the like;

his application was never considered on its merits by the

Department of Justice or White House Counsel’s office; and

he immediately withdrew his application when defendants

filed their motion. The fact that Judge Tevrizian immediately

withdrew his application is particularly significant. If

defendants had made a timely motion and Judge Tevrizian

had not immediately withdrawn his application, this issue
UNITED STATES V. MIKHEL 37

might have presented a closer question. As it is, we cannot

say that a reasonable person with knowledge of all the facts

would have questioned Judge Tevrizian’s impartiality.

6

3. Batson challenge

Defendants made a Batson challenge to the government’s

peremptory strike of Juror 285, a black woman. “Purposeful

racial discrimination in selection of the venire violates a

defendant’s right to equal protection because it denies him the

protection that a trial by jury is intended to secure.” Batson

v. Kentucky, 476 U.S. 79, 86 (1986). Ruling on a Batson

challenge requires a three-step framework:

First, a defendant must make a prima facie

showing that a peremptory challenge has been

exercised 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 light of the parties’

submissions, the trial court must determine

whether the defendant has shown purposeful

discrimination.

United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.

2015) (quoting Miller-El v. Cockrell, 537 U.S. 322, 328–29

(2003)). Ordinarily, we review the district court’s ruling on

a Batson challenge for clear error. See Snyder v. Louisiana,

6 Defendants also contend that Judge Tevrizian’s failure to recuse

himself violated their rights under the Due Process Clause. Because there

was no abuse of discretion under § 455(a), there was no due-process error. 

See Exxon Corp. v. Heinze, 32 F.3d 1399, 1403 (9th Cir. 1994) (noting

that § 455(a) is more stringent than due process).
38 UNITED STATES V. MIKHEL

552 U.S. 472, 478 (2008). We have applied de novo review,

however, where the court improperly applied the three-step

framework. See, e.g., Alvarez-Ulloa, 784 F.3d at 565. We

need not decide which standard of review applies here

because defendants’ challenge fails even under de novo

review. We acknowledge, however, that under either

standard we are at some disadvantage because we are

assessing a cold record and cannot, as did the trial judge and

counsel, take measure of Juror 285’s visage, inflection, or

body language. See Snyder, 552 U.S. at 483 (“We recognize

that a retrospective comparison of jurors based on a cold

appellate record may be very misleading when alleged

similarities were not raised at trial.”).

The jury pool consisted of 270 potential jurors, and

each side had twenty-eight peremptory challenges. The

government used its thirteenth peremptory challenge against

Juror 285. Defendants made a Batson challenge, and the

government responded that its reasons for striking Juror 285

were that (1) her father was in prison on drug charges and

(2) she was lukewarm on the death penalty. Defense counsel

replied that “[e]very juror that the government has kicked has

been a juror of color, whether it’s been black, Hispanic, or

Asian.” When the government correctly pointed out that the

last juror it had struck was white, the district court stated

there was “no Batson challenge” and gave no further

consideration to the issue. Juryselection continued—with the

government leaving ten peremptorychallenges unexercised—

and defendants never renewed their Batson challenge. The

final jury consisted of five white jurors, three Hispanic jurors,

two black jurors, one Asian juror, and one multi-race juror.

The parties agree that the government’s proffered reasons

for its peremptorychallenge to Juror 285 mooted step one and
UNITED STATES V. MIKHEL 39

satisfied step two of the Batson analysis. Only step three is

at issue. “[A]t the third step, the trial court must decide not

only whether the reasons stated are race-neutral, but whether

they are relevant to the case, and whether those stated reasons

were the prosecutor’s genuine reasons for exercising a

peremptory strike, rather than pretexts invented to hide

purposeful discrimination.” Green v. LaMarque, 532 F.3d

1028, 1030 (9th Cir. 2008). “The defendant need not prove

that all of the prosecutor’s race-neutral reasons were

pretextual, or even that the racial motivation was

‘determinative.’” Currie v. McDowell, 825 F.3d 603, 605

(9th Cir. 2016). “Instead, to prove a Batson violation, the

defendant must demonstrate that ‘race was a substantial

motivating factor’ in the prosecutor’s use of the peremptory

strike.” Id. at 606. “It is true that peremptories are often the

subjects of instinct, and it can sometimes be hard to say what

the reason is. But when illegitimate grounds like race are in

issue, a prosecutor simply has got to state his reasons as best

he can and stand or fall on the plausibility of the reasons he

gives.” Miller-El v. Dretke, 545 U.S. 231, 252 (2005)

(citation omitted).

We consider first the government’s proffered reasons for

striking Juror 285 vis-à-vis its other peremptory strikes. 

“Comparative juror analysis is a useful tool at Batson step

three and failure to strike similarly situated venire members

can ground a conclusion that purposeful discrimination

occurred.” Alvarez-Ulloa, 784 F.3d at 567 (citation omitted). 

Defendants highlight Juror 285’s juror questionnaire, on

which she wrote “I am neither for or against the death

penalty.” She explained: “[T]he death penalty to me is no

joke. [L]ife to me is a gift so when it come[s] to taking

someone’s life a lot of things need to be tak[en] into

consideration.” In response to a question asking whether she
40 UNITED STATES V. MIKHEL

felt the death penalty was used too often, too seldomly, or

randomly, she wrote: “[I]f people had any concious [sic] as

to what would happen if they did the wrong, maybe even

getting the death penalty, they may think twice about what

they are about to do.” When asked whether her views would

cause her “substantial difficulty in voting for death as the

appropriate penalty,” she checked “No.”

Although these written responses suggested Juror 285

would have been willing to vote for the death penalty under

appropriate circumstances, her oral responses during voir dire

demonstrated far greater hesitance:

[Government]: . . . . Ma’am, in the penalty

phase, depending on the evidence as you

heard it, could you consider either

punishment, either life imprisonment or the

death penalty?

[Juror 285]: I can’t consider it right now

because I don’t know what it is.

[Government]: I’m not asking—

[Juror 285]: And I can’t base my decision on

something that I don’t know, so I can’t answer

that question for you.

[Government]: Absolutely. Could you just

consider the evidence presented by both

sides?

[Juror 285]: Yes, ma’am.
UNITED STATES V. MIKHEL 41

Juror 285’s hesitant responses during voir dire—particularly

her interruption of the prosecutor and unwillingness to give

an unequivocal answer to whether she could consider

imposing the death penalty—would understandably give

pause to any prosecutor trying a death penalty case. This

concern was reflected in the prosecutor’s extemporaneous

response to the challenge: “This has nothing to do with the

color of anybody’s skin. It has totally to do with their

attitudes concerning the death penalty and their ability to be

a fair juror and render the verdict that we think is appropriate

in this case.”

Defendants contend Jurors 67 and 84 (whom the

government did not strike) were as hesitant or more hesitant

to impose the death penalty as Juror 285. Juror 67, a

Hispanic male, stated he was “fairly neutral” on the death

penalty and wrote in his questionnaire that the death penalty

is used “unfairly” because “a great deal depends on your

ability to hire a competent lawyer.” But when the

government asked him during voir dire whether he could

consider imposing the death penalty, Juror 67 gave an

unequivocal response: “Certainly.” This prevents him from

being an apposite comparison to Juror 285.

Juror 84, a white male, wrote on his juror questionnaire

that he was neither 100 percent for nor against the death

penalty and that, “depending on the crime,” “the death

penalty should be a possible penalty.” He indicated the death

penalty is used “fairly” and is generally reserved “for the

most terrible crimes.” Although defendants correctly quote

his statement that he “really hate[d] to see anybody put to

death,” they ignore 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, Juror 84
42 UNITED STATES V. MIKHEL

confirmed, “I believe so, yes.” Like Jurors 67 and 84, the

other jurors highlighted in defendants’ briefs all affirmed they

could consider imposing the death penalty—which is

precisely what Juror 285 did not do. In short, comparative

analysis does not show that the government’s concern over

Juror 285’s willingness to impose the death penalty was

pretextual.

There is less merit to the government’s other stated reason

for striking Juror 285: that her father was in prison on drug

charges. Juror 285 stated her “dad ha[d] gone to jail on drug

related charges” but that this would not influence her

decisions. Some non-stricken jurors also had family in prison

or had been charged with crimes themselves. Juror 67 had

pleaded guilty to a DUI, and Juror 8, an Asian male, had

pleaded guilty to misdemeanor assault. It is unclear whether

either juror was incarcerated, but the government apparently

did not follow up with them on the issue. That said, Juror

67’s father and cousin were both police officers, and Juror 8

wrote in his questionnaire that he “believe[d] in the death

penalty” and that it was “used fairly.”

Somewhat more troubling, Juror 39, a white male, had a

son who was imprisoned after pleading guilty to seconddegree murder. Juror 39 attested this would not influence his

decisions, but when asked whether the incident “left a bad

taste in [his] mouth regarding the criminal justice system[,]”

he responded “[t]hat’s a hard one for me to answer . . . .” He

then provided a lengthy explanation, exhibiting frustration

with his son for accepting a plea bargain without consulting

him and with the district attorney for charging his son with

first-degree murder rather than manslaughter. On the other

hand, Juror 39 represented that he had served on several

juries, all of which went to verdict. This provided a powerful
UNITED STATES V. MIKHEL 43

reason for the government not to strike Juror 39: a prosecutor

might assume that, if a prospective juror has served on

several juries that all reached a verdict, the juror is unlikely

to be a defense-friendly holdout during deliberations.

On balance, even if the government’s explanation about

Juror 285’s father’s criminal history seems weak, the

comparative analysis here provides little evidence of

discriminatory intent, particularly given the government’s

genuine and compelling reason for striking Juror 285 for

being lukewarm on the death penalty, and possible reasons

for not striking Jurors 8, 39, and 67 despite their criminalhistory responses. Furthermore, although the government

applied six of its eighteen exercised peremptory challenges to

black jurors, there were two black jurors on the final jury and

two black jurors as alternates. The government accepted this

outcome, leaving ten peremptory challenges unexercised. 

Moreover, the final jury’s composition fairly resembled the

entire jury pool, with white jurors actually making up a

smaller percentage of the jury than they did of the pool. After

careful review, we cannot say defendants have met their

burden of demonstrating race was a “substantial motivating

factor” in the government’s peremptory strike of Juror 285. 

Currie, 825 F.3d at 606.

4. The use of an anonymous jury

Empaneling an anonymous jury is permissible only if

“(1) there is a strong reason for concluding that it is necessary

to enable the jury to perform its factfinding function, or to

ensure juror protection; and (2) reasonable safeguards are

adopted by the trial court to minimize any risk of

infringement upon the fundamental rights of the accused.” 

United States v. Shryock, 342 F.3d 948, 971 (9th Cir. 2003). 
44 UNITED STATES V. MIKHEL

Defendants did not object to empaneling an anonymous jury,

and they do not challenge the district court’s determination

that an anonymous jury was necessary to ensure juror

protection. Rather, they claim specific precautions—a

cautionary instruction on the reasons for juror anonymity and

the disclosure of potential jurors’ names and addresses to

defense counsel—were required to minimize the risk of

prejudice to their Fifth Amendment right to a presumption of

innocence and Sixth Amendment right to an impartial jury. 

As defendants raised neither issue below, we review for plain

error.7

See United States v. Mitchell, 502 F.3d 931, 967 (9th

Cir. 2007).

First, the district court took reasonable precautions to

safeguard defendants’ Fifth Amendment right to a

presumption of innocence. The district court did not instruct

the jury on the reasons for their anonymity but simply

informed them they would be referred to by number rather

than name. The questionnaire potential jurors completed

stated their information would “be kept confidential” and that

“[n]either your identities nor your answers will be released to

the general public or the media.” In short, the court treated

the jurors’ anonymity as routine and suggested through the

questionnaires that it was concerned about their privacy and

unwanted media attention. The court also repeatedly

instructed the jury that defendants were presumed innocent,

further mitigating any potential prejudice in this regard.

7 Plain error requires “(1) error, (2) that is plain, and (3) that affect[s]

substantial rights. If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466–67

(1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993))

(quotation marks omitted).
UNITED STATES V. MIKHEL 45

Although we upheld empaneling an anonymous jury in

Shryock, where the jury was given a pretextual reason for

anonymity, we did not say that giving a pretextual reason was

a necessary precaution. Simply treating anonymity as a

routine procedure and offering neutral justifications focused

on juror confidentiality also sufficiently guard against

prejudice. United States v. Fernandez, 388 F.3d 1199, 1245

(9th Cir. 2004) (collecting cases). Indeed, “the generally

accepted practice for minimizing prejudice . . . is to downplay

(not accentuate) the significance of the juror anonymity

procedure.” United States v. Ochoa-Vasquez, 428 F.3d 1015,

1037 (11th Cir. 2005). Had the district court done what

defendants now contend was required and given a cautionary

instruction on anonymity, the instruction might have drawn

more attention to anonymity and led jurors to speculate on the

subject. There was no error, let alone plain error, in failing to

give a sua sponte cautionary instruction on the reasons for

anonymity.

Second, the district court took reasonable precautions to

safeguard defendants’ Sixth Amendment right to an impartial

jury. As we recognized in Shryock, “the use of an

anonymous jury may interfere with defendants’ ability to

conduct voir dire and to exercise meaningful peremptory

challenges, thereby implicating defendants’ Sixth

Amendment right to an impartial jury.” 342 F.3d at 971. 

Moreover, 18 U.S.C. § 3432 requires a “list of the veniremen

. . . stating the place of abode of each venireman” to be

provided to a capital defendant, unless “the court finds by a

preponderance of the evidence that providing the list may

jeopardize the life or safety of any person.” Defendants do

not dispute the district court’s finding that disclosing jurors’

identifying information would have jeopardized their lives or

safety. Instead, defendants argue it was plain error for the
46 UNITED STATES V. MIKHEL

court not to sua sponte disclose potential jurors’ identities to

defense counsel under a protective order.

The district court sufficiently safeguarded defense

counsel’s ability to conduct voir dire by providing defendants

with an eleven-page questionnaire for each potential juror

detailing age, marital status, city of residence, employment

history, and education, among other things. None of our

cases require, or even suggest, that providing potential jurors’

names and addresses to defense counsel is necessary in

circumstances such as these. Nor does § 3432 require

disclosing jurors’ identifying information to counsel when the

“life orsafety” exception applies, as it undisputedly did here.8

The district court committed no error, and certainly no plain

error, in empaneling the anonymous jury as it did. See United

States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.

2011) (an error “cannot be plain where there is no controlling

authority on point”).

5. Right to a public trial

Defendants claim the district court’s exclusion of Armen

Harutiunian from trial violated their Sixth Amendment right

to a public trial. Harutiunian attended Mikhel’s last day of

testimony on January 5, 2007. He had been released from

federal prison earlier that same day. He had a visible

Armenian gang tattoo on his neck, told courtroom staff he

8 Defendants do assert that § 3432 required the district court to find

by a preponderance of the evidence that disclosing jurors’ identities to

counsel would have jeopardized jurors’ safety. The statute has no such

requirement; it refers to defendants, and the district court properly made

its finding as to defendants. Once the court made this finding, it was not

required by statute to disclose jurors’ identifying information to either

defendants or their counsel.
UNITED STATES V. MIKHEL 47

was a “friend” or “fan” of Mikhel, and was observed

behaving in a manner that was “intimidating in nature.” The

next week, the district court informed the parties that

Harutiunian would be barred from reentering the courtroom

going forward. Neither defendant objected, and neither

defendant gave any indication of an acquaintance with

Harutiunian. There is also no evidence Harutiunian ever

attempted to attend the trial again. Because defendants did

not object to the exclusion below, we review for plain error. 

See Mitchell, 502 F.3d at 967.

“The right to a public trial entitles a criminal defendant at

the very least . . . to have his friends, relatives and counsel

present, no matter with what offense he may be charged.” 

United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012)

(quotation marks omitted). “Nonetheless, in some

circumstances, exclusion of members of the public from a

judicial proceeding does not implicate the constitutional

guarantee.” Id. To determine whether a closure implicates

the Sixth Amendment, we look to whether the closure

affected the values undergirding the right to a public trial,

including ensuring fair proceedings,reminding the prosecutor

and judge of their grave responsibilities, discouraging

perjury, and encouraging witnesses to come forward. Id. 

Nothing in the record here suggests Harutiunian’s exclusion

had any effect on these values, particularly given his lack of

any apparent connection to defendants or the case and the

absence of any evidence that he later sought readmittance to

the courtroom. The exclusion did not implicate defendants’

constitutional rights. The district court therefore did not err,

let alone plainly err, by excluding Harutiunian.
48 UNITED STATES V. MIKHEL

6. “Reasonable doubt” instruction as to guilt

Defendants challenge the district court’s use of our

circuit’s model “reasonable doubt” instruction in the guilt

phase.9 The parties dispute whether defendants preserved the

objection. We 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 based upon reason and common sense and is not

based purely on speculation.” Model Crim. Jury Instr. 9th

Cir. 3.5. Defendants argue this misstates the law: in their

view, a jury can use speculation to find a “reasonable doubt”

in favor of the accused. Defendants are incorrect. “[D]oubt

that does not rise above pure speculation is not reasonable.” 

Ramirez v. Hatcher, 136 F.3d 1209, 1212–13 (9th Cir. 1998)

(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 vaguely pejorative cast; when judges

use it, they generally refer to inferences that are irrational or

impermissible.”). Moreover, we have repeatedly upheld the

model instruction. See, e.g., United States v. AlcantaraCastillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015); United

States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006). There

was no error in using the model instruction in the guilt phase.

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

Under 18 U.S.C. § 3005, a capital defendant has a right to

two counsel, at least one of whom is “learned in the law

9 We address defendants’ challenge to the district court’s use of the

same instruction in the penalty phase in our discussion of that phase

below.
UNITED STATES V. MIKHEL 49

applicable to capital cases.” Four years before trial, the

district court appointed Richard Callahan and Dale Rubin to

defend Mikhel and Marcia Brewer and Richard Lasting to

defend Kadamovas. Rubin and Lasting both had prior

experience in capital cases.

Mikhel claims the district court violated § 3005 by

allowing trial to proceed for three days while one of his

attorneys, Callahan, was absent. In 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 next day,

and Rubin asked for a continuance. The government

proposed instead that the parties proceed with examining live

foundational witnesses—subject to defendants being able to

recall those witnesses later—and with playing videotaped

deposition testimony. The court adopted the government’s

plan.

Three days later, Rubin determined Callahan would not

be able to return for at least another week and again requested

a continuance. The court granted first a one-week

continuance and then an additional two weeks. Mikhel

concedes that when trial resumed “Callahan had sufficiently

recovered from his injuries to participate in the trial.” 

Ultimately, Callahan only missed three trial days, during

which the government presented six live foundational

witnesses and the videotaped deposition testimony of three

substantive witnesses. Defendants chose not to recall any of

the live witnesses for further cross-examination.

Mikhel does not cite, and we have not found, any

authority addressing whether counsel’s brief absence from

trial may violate § 3005. The statute neither states nor

implies that two counsel must be present in the courtroom
50 UNITED STATES V. MIKHEL

every day of trial, and we will not read the statute “so as to

put in what is not readily found there.” United States v.

Hood, 343 U.S. 148, 151 (1952). Moreover, we have

previously held that “the purpose of the two-attorney right is

to reduce the chance that an innocent defendant would be put

to death because of inadvertence or errors in judgment of his

counsel.” United States v. Dufur, 648 F.2d 512, 515 (9th Cir.

1980) (quotation marks omitted). That purpose is not

undermined by one attorney’s de minimis absence from

trial.10 To the extent Mikhel wishes to argue that his counsel

failed to adequately represent him, that is an ineffective

assistance of counsel claim, not a violation of § 3005.

Regardless, any error was harmless.11 Mikhel does not

allege any prejudice stemming from Callahan’s absence. Nor

could he. Both of his counsel worked on his case for years

before trial, and both were present at trial for, inter alia, voir

dire, openings, the testimony of the three key cooperating

coconspirators, Mikhel’s testimony, closings, guilt-phase

verdicts, the entire penalty phase, and sentencing. Callahan

was absent only for the examination of six foundational

witnesses (whom he could have recalled but chose not to) and

the deposition designations ofthree substantive witnesses (the

10 We need not address whether a more extended absence of second

counsel might violate § 3005.

11 Mikhel relies heavily on a pair of Fourth Circuit cases holding that

a court’s failure to appoint a second attorney after a capital defendant’s

request violates § 3005 and cannot be harmless error. United States v.

Boone, 245 F.3d 352, 361 & n.8 (4th Cir. 2001); United States v. Watson,

496 F.2d 1125, 1129–30 (4th Cir. 1973). Neither case addresses a

situation like that here, where a second attorney was appointed but missed

a handful of trial days.
UNITED STATES V. MIKHEL 51

admissibility of which was litigated before trial). Callahan’s

three-day absence in no way prejudiced Mikhel.

Kadamovas raises a similar but distinct argument. He

claims the district court violated § 3005 by denying his

requests to continue trial to allow one of his attorneys more

time to prepare.12 Even assuming without deciding that

denying a continuance could violate § 3005 under some

circumstances, there was no violation here. Trial in this case

was originally scheduled for 2002, but was continued several

times until it was finally set for July 2006. In November

2005, ten months before trial, one of Kadamovas’s attorneys

(Brewer) submitted a declaration stating she did not have

time to prepare the case to her client’s satisfaction. As a

result, the district court appointed Sonia Chahin in her stead.

In March 2006, Kadamovas unsuccessfully moved to

continue the trial date to allow Chahin more time to prepare. 

Less than a week before trial, Kadamovas unsuccessfully

moved for a continuance again. Trial began as scheduled on

July 11, 2006, with potential jurors completing

questionnaires. There was then a month-long break to

accommodate Chahin—who had another trial that July—

before proceedings resumed on August 15, 2006, with voir

dire.

Notably, between appointment in November 2005 and the

beginning of trial in July 2006, Chahin billed almost 900

hours on this case. And in the four years leading up to trial,

12 Kadamovas also vaguely asserts that the district court’s denial of

his motions for a continuance violated his constitutional rights. He offers

no argument to support a constitutional violation, and we find no basis for

one.
52 UNITED STATES V. MIKHEL

Kadamovas’s other attorney,Lasting, billed over 4,000 hours. 

Moreover, we cannot overlook the benefit Chahin derived

from Brewer’s prior years of work. Chahin was not starting

from a blank slate; she had ten months to get up to speed; she

billed 900 hours before trial began; and Kadamovas concedes

she played a substantial role at trial, taking 30 percent of the

witnesses. The district court’s denial of Kadamovas’s

motions for a continuance did not violate § 3005.

Finally, like Mikhel, Kadamovas makes little attempt to

explain why he was prejudiced in this regard. At best, he

states: “Chahin went from a six-week murder trial into this

grueling trial without reviewing much of the discovery and

never traveling to Lithuania to investigate Mr. Kadamovas’s

background.” But he does not explain what discoveryChahin

failed to review that might have changed the jury’s verdict or

why traveling to Lithuania was essential to effectively

representing him. His contention that Chahin had inadequate

time to prepare is also belied by the extensive hours she spent

on the case. Thus, even if there were a technical violation of

§ 3005, it would be harmless.

8. Excluded testimony regarding cooperating witnesses

Altmanis, Solovyeva, and Markovskis all testified for the

government as cooperatingwitnesses. On cross-examination,

defendants attacked their credibility by questioning them

about their plea agreements. On redirect, the government

sought to rehabilitate Solovyeva and Markovskis’s credibility

by eliciting testimony to the effect that their plea agreements

would be voided if they committed perjury. Defendants then

sought to one-up the government once more, proffering

Clifford Smith as an example of a cooperating witness who

had committed perjury in a different case without
UNITED STATES V. MIKHEL 53

repercussion. The district court held the proffered testimony

irrelevant. We review the district court’s evidentiary rulings

for abuse of discretion. See United States v. Orm Hieng,

679 F.3d 1131, 1135 (9th Cir. 2012).

Smith had no connection to defendants, the crimes, or the

investigation. He had merely testified in another case

pending in the same courthouse. According to defendants, he

committed perjury in that case and suffered no consequence

for doing so. Kadamovas argues that the government’s

efforts to rehabilitate Solovyeva and Markovskis created the

misleading impression that the government always controls

cooperating witnesses by prosecuting them if they lie. He

claims the government thereby opened the door to Smith’s

“profile” evidence regarding the United States Attorney’s

Office’s modus operandi with respect to cooperating

witnesses who commit perjury.

Contrary to Kadamovas’s arguments, the proffered

testimony was plainly excludable. There is nothing in the

record to indicate that any of the cooperating witnesses knew

that Smith had committed perjury and not been prosecuted. 

Cf. United States v. Chang Da Liu, 538 F.3d 1078, 1088 (9th

Cir. 2008). Smith’s possible history of perjuring himself with

impunity was at most minimally probative of Altmanis,

Solovyeva, or Markovskis’s credibility and threatened to

create a distracting trial-within-a-trial regarding events

having nothing to do with this case. In this regard,

Kadamovas’s reliance on our decision in United States v.

Beltran-Rios is inapposite. 878 F.2d 1208 (9th Cir. 1989). 

There, the defendant was charged with a drug trafficking

crime and argued in his defense that he lacked the typical

characteristics of a drug trafficker. Id. at 1210. We held that

the prosecution could rebut this argument through otherwise
54 UNITED STATES V. MIKHEL

inappropriate “criminal profile” testimony. Id. at 1212–13. 

Here, by contrast, defendants’ proffered evidence had at most

an extremely limited bearing on the witnesses testifying. 

There was no abuse of discretion in excluding the evidence.13

9. Mikhel’s competency

Mikhel argues the district court erred in failing to hold a

hearing to evaluate his competencyat numerous points during

trial. “It is well established that a conviction obtained against

an incompetent defendant is a clear violation of the

constitutional guarantee of due process.” United States v.

Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997)

(quotation marks omitted). “Competency requires that the

defendant have the ‘capacity to understand the nature and

object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense.’” Id. (quoting

Drope v. Missouri, 420 U.S. 162, 171 (1975)); see also

18 U.S.C. § 4241(a) (codifying this standard). The

competency right does not end at a conviction but extends to

“post-conviction proceedings,” including the penaltyphase of

a capital trial. United States v. Duncan, 643 F.3d 1242, 1248

(9th Cir. 2011).

The parties dispute whether the district court held a

competency hearing in this case. We need not resolve that

dispute and assume without deciding that no competency

hearing occurred. For this reason, and because defense

13 Kadamovas also argues the exclusion of this evidence rose to the

level of a constitutional violation by depriving him of his right to present

a complete defense. But even if the evidence was minimally relevant, it

did not violate due process to exclude it. See Wood v. Alaska, 957 F.2d

1544, 1549 (9th Cir. 1992).
UNITED STATES V. MIKHEL 55

counsel never moved for a competency hearing,

14 we pass to

considering whether 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).

In this respect, our “inquiry is not whether the trial court

could have found the defendant either competent or

incompetent, nor whether the reviewing court would find the

defendant incompetent.” Id.(alterations omitted). Rather,we

look to see “if the evidence of incompetence was such that a

reasonable judge would be expected to experience a genuine

doubt respecting the defendant’s competence.” Id. (emphasis

added); see also Duncan, 643 F.3d at 1249 n.2 (discussing the

various ways we have articulated this standard); Chavez v.

United States, 656 F.2d 512, 516 n.1 (9th Cir. 1981) (same). 

“To raise a genuine doubt, there must be substantial evidence

that, due to a mental disease or defect, the defendant is either

unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.” 

United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014)

(quotation marks omitted). “Among the factors to consider

when evaluating whether a court erred 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[;] however, none of these factors is

determinative, and even one of these factors standing alone

may, in some circumstances, be sufficient.” Dreyer, 705 F.3d

at 964 (citations omitted) (quotation marks omitted)

(alterations omitted).

14 Mikhel argues plain error review is improper because his counsel

“expressed doubt” of his competency at three different points during trial. 

As we explain below, the doubts raised were highly tentative, and we are

unconvinced Mikhel ever squarely moved for a competency hearing.
56 UNITED STATES V. MIKHEL

Mikhel identifies three different points at which he

believes the court should have held a genuine doubt as to his

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

onset; (2) at the end of the guilt phase; and (3) during the

penalty phase. We begin by reviewing Mikhel’s pretrial

history of mental illness and then address each trial segment

in turn.

After his first escape attempt, Mikhel was moved to a

high security section of SB-CDC and placed under Special

Administrative Measures. In January 2004, more than two

years before his trial began, he attempted to commit suicide

by cutting an artery in his ankle. Mikhel would later explain

that this was an impulsive act that he did not plan out and that

he was feeling hopeless about his case at the time.

Following the suicide attempt, Mikhel was moved to the

West ValleyDetention Center (“WVDC”), where he received

treatment from psychiatrist Dr. Inderpal Dhillon. Dr. Dhillon

originally diagnosed Mikhel with major depression and

prescribed anti-depressants. Later, she concluded he suffered

from bipolar disorder and revised her treatment plan

accordingly. During three meetings in early 2004, Dr.

Dhillon noted that Mikhel suffered from auditory

hallucinations, including speaking to people who were not

there and hearing electricity. Mikhel continued to be treated,

and nothing indicates that he suffered from any form of

hallucination at any later point.15

A year passed, and in April 2005, Mikhel attempted to

take his life a second time by hoarding his medications and

15 Indeed, Dr. Dhillon attributed these symptoms to a medication that

she had prescribed.
UNITED STATES V. MIKHEL 57

taking them all at once. He reported that his reason was the

same as before—that he was feeling hopeless about his case. 

Afterward, Dr. Dhillon continued to treat Mikhel and noted

he was showing signs of hypomania, including increased

activity, racing thoughts, and feelings of grandiosity.

Another year passed, and in May 2006, Mikhel was

transferred back to MDC, where he would be held during

trial. The medical staff there diagnosed him with depression

and prescribed anti-depressants. Prior to trial, defense

counsel had psychiatrist Dr. William Vicaryexamine Mikhel. 

In a September 5, 2006, letter, Dr. Vicary opined that

Mikhel’s demanding and irritable behavior was “largely due

to his untreated Bipolar Disorder.” He summarily concluded

that Mikhel’s competency would be “enhanced” with proper

treatment, but gave no opinion as to Mikhel’s competency to

stand trial.

On the eve of opening statements, Mikhel attempted

suicide a third time by trying to hang himself with a sheet. 

Once again, his stated reason for doing so was hopelessness

about his case. The next day he insisted on appearing in court

in his jail garb, with a ligature mark visible on his neck. The

court addressed the incident with Mikhel’s counsel, who

stated that “with [Mikhel’s] suicidal frame of mind, I don’t

know that he’s competent.” Counsel suggested Mikhel

should be medically examined but never moved for a

competency hearing. The court agreed to another medical

examination and ordered an MDC staff psychiatrist to

evaluate Mikhel.

The following week, MDC’s chief forensic psychologist,

Dr. Ralph Ihle, completed a full forensic evaluation of Mikhel

and submitted a comprehensive report to the court. Dr. Ihle
58 UNITED STATES V. MIKHEL

spoke to Mikhel’s attorneys and reviewed Mikhel’s personal

history and prior treatment, including Mikhel’s medical

records, a declaration from Dr. Dhillon, Dr. Vicary’s initial

September 5, 2006, letter, and a follow-up letter from Dr.

Vicary reiterating his bipolar diagnosis. Dr. Ihle also

personally interviewed Mikhel and found that he was able to

follow directions and maintain daily routines at MDC; that

his demeanor was polite and cooperative; that he engaged in

appropriate reciprocal communication; that there was no

evidence of him experiencing hallucinations, delusions, or

confusion; that he had no significant deficits in attention,

concentration, or memory; and that he showed no signs of

odd or bizarre behavior, though he was depressed and

expressed that he felt hopeless about his case. Dr. Ihle tested

Mikhel’s intellectualfunctioning and believed he was “within

the high or above average range”:

Mr. Mikhel’s verbal behavior during the

evaluation suggested that he was within the

high or above average range of intellectual

functioning. He demonstrated adequate

English grammar for someone educated in a

foreign country, and an above average English

vocabulary. His speech was well organized

and sufficiently goal directed. His logic was

easy to follow, and his associations were

adequately organized with a normal flow or

continuity of ideas. He is also well read in the

subject of philosophy. He discussed his views

on existential philosophy works by Frankel

and Nietzsche, regarding the meaning of life

and Nihilism. He had good recall of some of

the passages or concepts espoused in the

books. In summary, the objective information
UNITED STATES V. MIKHEL 59

suggests that Mr. Mikhel is most likely

functioning in the high to above average range

of intelligence. He does not exhibit any

significant signs of cognitive impairment or

gross brain damage. His intellectual

functioning supports his having the present

ability to understand the nature and

consequences of the charges brought against

him, or to properly assist in his defense.

With respect to Mikhel’s understanding of the charges against

him, Dr. Ihle noted that Mikhel could clearly articulate the

charges; that he knew they were serious felonies and that he

could face the death penalty; that he understood the different

types of pleas and their legal consequences; and that he had

an adequate understanding of courtroom participants and

procedures, as well as appropriate courtroom behavior. 

Mikhel told him he was willing to cooperate with an attorney

but lacked confidence in his present attorneys because they

did not follow his suggestions.

Based on the materials he reviewed and his personal

examination, Dr. Ihle concluded that Mikhel was competent

to stand trial:

Based on the information available, there

is evidence to indicate that Mr. Mikhel suffers

from a Major Depressive Disorder, but the

symptoms do not impair his present ability to

understand the nature and consequences of the

court proceedings against him, or his ability to

properly assist counsel in his defense.
60 UNITED STATES V. MIKHEL

The presence of a Major Depressive

Disorder, or any other disorder, does not, in

and of itself, render an individual so

compromised as to lack the ability to

understand legal materials and to cooperate

with defense counsel in a rational manner. 

Despite the presence of symptoms of a Major

Depressive Disorder, the defendant was able

to articulate a coherent and comprehensive

history, and did not appear to have any

difficulties in expressive (i.e., speaking) or

receptive (i.e., understanding) language. 

Overall, the defendant was able to offer

relevant and meaningful information to this

evaluator regarding both historical data and

legal matters. During the competency portion

of the evaluation, he provided appropriate

responses to the questions posed to him. He

did not appear to experience any difficulties in

communicating his thoughts to the evaluator,

nor did he parrot the information. Any

difficulties he exhibits with respect to legal

counsel are volitional, and a reflection of his

perception that his defense against the charges

is hopeless at this point.

Dr. Ihle submitted his report to the court on September

14, 2006, and the court found the same day that Mikhel was

“competent to stand trial.” Again, we need not decide

whether the court’s consideration of Dr. Ihle’s report

amounted to a competency hearing. What matters for our

purposes is whether the district court plainly erred in failing

sua sponte to order any additional competency proceeding. 

Dr. Ihle’s opinion respecting Mikhel’s competency and the
UNITED STATES V. MIKHEL 61

absence of any clinical evidence of incompetence distinguish

this case from those in which we have found reversible error. 

See, e.g., Duncan, 643 F.3d at 1246–50 (reversing denial of

a competency hearing where court was faced with five

competing expert reports, some finding “no evidence of

psychotic behavior” and others finding “severe psychosis”);

Odle v. Woodford, 238 F.3d 1084, 1087–89 (9th Cir. 2001)

(reversing for retrospective competency hearing because

defendant had well-documented brain damage resulting in

hallucinations, “psychotic behavior,” suicide attempts, and

“behavioral disturbances beyond his control”).

In this regard, Mikhel’s prior suicide attempts did not

require the court to sua sponte order a competency hearing;

not “every suicide attempt inevitably creates a doubt

concerning the defendant’s competency.” LoyolaDominguez, 125 F.3d at 1318–19. Mikhel attempts to

analogize his case to Loyola-Dominguez, where the defendant

also attempted suicide on the eve of trial. But the trial court

in Loyola-Dominguez did not elicit adequate information to

dispel serious concerns regarding competency. Rather, the

trial court inquired how long it would take to get an

evaluation and then conducted a brief colloquy with the

defendant. See id. at 1319 (“Also of concern is [LoyolaDominguez’s] response to the question from the court, ‘Do

you know what’s going on?’ Loyola-Dominguez answered,

‘I don’t know. I’ve never been like this, so I don’t know.’”). 

Here, by contrast, the district court ordered a forensic

evaluation after Mikhel’s third suicide attempt and the

resulting report found no impairment to Mikhel’s ability to

understand the nature and object of trial or to aid in his

defense. Every doctor to examine Mikhel after a suicide

attempt reported that he tried to take his life because he

regarded his future as hopeless. Based on these facts,
62 UNITED STATES V. MIKHEL

Mikhel’s suicide attempts, although naturally concerning, did

not raise a genuine doubt as to his competency.

As for Mikhel’s decision to wear his jail garb in court,

this is the type of “bizarre action[ ]” we have said is “not

necessarily sufficient evidence to compel a [competency]

hearing” but is “a factor to be considered.” Torres v. Prunty,

223 F.3d 1103, 1109–10 (9th Cir. 2000). Mikhel later

provided a reasoned explanation for his decision, stating he

felt it would have been superficial to wear civilian clothes

only during the few hours a day he spent in court. His

decision to wear his jail garb did not create a genuine doubt

as to his competency. See Davis v. Woodford, 384 F.3d 628,

645–46 (9th Cir. 2004) (the defendant’s “decision not to wear

civilian clothes and to remain in the doorway of the

courtroom” during a capital trial did not mandate reversing

for a competency hearing given that he “was evidently aware

of the risks of his behavior . . . and rationally weighed those

risks”). Although we acknowledge the confluence of these

circumstances is concerning and that a competency hearing

might have been prudent, we cannot say the district court

plainly erred by failing to sua sponte order a hearing at the

outset of trial.

Next, Mikhel asserts the district court should have

ordered a competency hearing near the end of the guilt phase. 

A few months into trial, Mikhel sent the court a handwritten

request for new counsel, which complained that his attorneys

were unwilling to implement his trial-strategy suggestions. 

The court rejected Mikhel’s request, and defense counsel

asked that Dr. Ihle examine Mikhel again. The court refused,

stating it was receiving oral reports from MDC keeping it

“fully abreast” of Mikhel’s mental condition and that

“nothing . . . indicates [Mikhel is] slipping or failing in any
UNITED STATES V. MIKHEL 63

way.” Mikhel later filed a second request for new counsel

based on disagreements with his attorneys over whether he

should testify. The court again denied the request. At the

very end of the guilt phase, Mikhel testified on direct for

three days but refused to be cross-examined. The court struck

this testimony, and Mikhel refused to appear in court

thereafter (except to hear the guilt-phase verdict).

Mikhel’s requests for new counsel did not raise any

genuine doubt as to his competency; to the contrary, they

evinced his intelligence, his firm grasp of the proceedings and

the legal system, and his own strong views on the best

strategy for his defense. For instance, in response to Mikhel’s

allegations that his attorneys were not adequately

communicating with him or preparing him to testify, his lead

counsel asserted, and the court agreed, that Mikhel was

merely “attempting to put appellate issues into the record.” 

Moreover, Mikhel’s stricken testimony, though perhaps ill

advised, was not irrational. The evidence against him was

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

attempt to exculpate himself and Kadamovas. Throughout

his three days of testimony—which we describe in greater

detail below—he carefully developed a theme that he was a

wealthy white-collar criminal operating at the margins of the

law and thus had no reason to engage in the comparatively

high-risk, low-reward violent hostage takings he was charged

with committing. This testimony clearly demonstrated the

native intelligence identified by Dr. Ihle, as well as the ability

to understand and respond to questions, convey a narrative,

and recall details from events spanning decades.16

16 Mikhel also highlights that he was unshaven and “unkempt” during

this stage of trial. But when his counsel raised the issue with the district
64 UNITED STATES V. MIKHEL

Accordingly, the final months of the guilt phase provided the

district court little or no reason to question Mikhel’s

competency.

Finally, we consider the penalty phase. Mikhel refused to

be present in court for any of the penalty proceedings. His

mitigation case proceeded without him and included

testimony from Drs. Vicary and Dhillon regarding his mental

health. Dr. Vicary asserted that Mikhel suffered from

paranoid delusion and reported that Mikhel said his attorneys,

the judge, and the government were “all working against

him.” Dr. Vicary attributed this in part to Mikhel being kept

under special administrative conditions for a long time and

believed prescribing a mood-stabilizing medication would

reduce these symptoms. He further testified Mikhel was

“faking health” as patients who want to avoid treatment often

do. He explained: “He’s crazy. He’s irrational. You cannot

sit down with [Mikhel] and spend time with him and ask him

questions before he gets into this ‘everything is rosy, I have

no problems, and it’s all just a conspiracy against me.’”

Days later, Mikhel filed another request for new counsel. 

In a hearing in which Mikhel was initially absent, his counsel

represented that Mikhel wanted to submit to a psychological

evaluation “to show that he has no mental problems” and “is

totally competent in everything he does.” Counsel also

asserted Mikhel was “doing everything in his power . . . to

throw a monkey wrench into [the defense’s] ability to put on

any kind of a mitigation defense.” Counsel further stated: “I

have a question as to Mr. Mikhel’s competency. I don’t

object to him being submitted to an independent,

court, Mikhel explained he was unshaven because MDC limited his access

to a beard trimmer while he was on suicide watch.
UNITED STATES V. MIKHEL 65

psychological or mental evaluation.” The court responded

that, “based upon all the reports that I have received, he is

competent to stand trial.” Although counsel’s statement came

close to a request for a competency hearing, counsel himself

did not suggest that Mikhel might be incompetent. Rather,

counsel’s statement that he would not “object” to an

independent evaluation was an accommodation to Mikhel,

who wanted an evaluation to prove he was competent.

The court then heard from Mikhel, who extensively

criticized his counsel. Mikhel took issue with Dr. Vicary

referring to him as a “pathological liar” on cross-examination

and with his counsel’s failure to address this testimony on

redirect. Mikhel asserted this was an intentional omission by

his counsel: “In my opinion, he’s not doing that because he’s

going to use the very, very same statement to discredit me on

the further actions when his performance and his conduct will

be put in review later on.” Mikhel explained he had planned

to testify for two weeks in order to counter all of the

government’s evidence against him. The reason why he

refused to be cross-examined or attend the remainder of the

trial was because his counsel abandoned this strategy. The

court denied Mikhel’s request for new counsel.

Mikhel now argues that, by the end of trial, the

cumulative evidence of his purported incompetency

resembled that in Drope. There, the state court was aware

from a pretrial psychiatric report that the defendant had

difficulty participating in the exam, counting, and telling

time; was “markedly circumstantial and irrelevant in his

speech;” was diagnosed with a borderline mental deficiency

and depression; and had a history of purposefully falling

down flights of stairs to get attention. Drope, 420 U.S. at 165

n.1, 175–76. Moreover, in the midst of trial, the defendant
66 UNITED STATES V. MIKHEL

shot himself in the stomach. Id. at 166–67. The Supreme

Court held that the state trial court erred in not sua sponte

holding a competency hearing. Id. at 181–82.

Two key facts distinguish Drope from the instant case. 

First, there was no forensic competencyevaluation performed

in Drope, and no mental health professional had opined that

the defendant in that case was competent to stand trial. Id. at

180. Indeed, the psychiatric report—which called into

question the defendant’s ability to even comprehend the

proceedings and was thus far more drastic than the opinions

Drs. Vicary and Dhillon rendered—was the only professional

evaluation of the defendant’s mental health. See Mendez v.

Knowles, 556 F.3d 757, 773 (9th Cir. 2009) (distinguishing

Drope based, in part, on the “finding of the court-appointed

expert that Mendez was competent to stand trial”). Secondly,

the defendant in Drope was absent from the remainder of trial

due to his suicide attempt, and as a result, “the trial judge and

defense counsel were no longer able to observe him in the

context of the trial and to gauge” his competence. Drope,

420 U.S. at 181. Although Mikhel voluntarily absented

himself from the penalty phase, the district court held two

hearings with him in lock-up and thus had the ability to

observe his demeanor, comprehension of the risks, and ability

to respond to questions. See Davis, 384 F.3d at 646

(distinguishing Drope based on trial judge’s abilityto observe

defendant on days he decided to sit at defense table rather

than courtroom’s doorway). Mikhel’s attempt to analogize

Drope to his case is without merit.

Mikhel also cites Torres, where the defendant was

convicted of shooting several doctors at a hospital due to

delusional beliefs they had injected him with AIDS as part of

a conspiracy against him. 223 F.3d at 1105. A court-
UNITED STATES V. MIKHEL 67

appointed psychologist diagnosed the defendant with “severe

delusional (paranoid) disorder,” and the defendant believed

his counsel and the court were part of the conspiracy against

him. Id. at 1105, 1108. While there are some parallels, this

case is not Torres. There, the defendant’s delusions were

well documented and evident throughout every facet of the

case, including his commission of the crime. Though Dr.

Vicarytestified that Mikhel suffered fromparanoid delusions,

he did not expound upon any perceived conspiracy. 

Tellingly, Mikhel himself had many opportunities to express

such views through his requests for new counsel and the

resulting hearings, but he at most criticized his attorneys’

unwillingness to follow his desired trial strategy and

expressed his opinion that his counsel was attempting to

discredit him in anticipation of a charge of ineffective

assistance of counsel. Most notably, Mikhel’s own counsel,

who presumably had the most contact with Mikhel and had

the best opportunity to observe his mental state, never moved

for a competency hearing.

As we concluded for the trial’s guilt phase, this evidence

demonstrates Mikhel’s understanding of the nature and object

of the trial and his familiarity with his appellate rights. He

disavowed that he was trying to undermine his own

mitigation defense and blamed his absence from trial on his

disagreement with his attorneys. This bolsters the district

court’s conclusion that Mikhel was merely attempting to

manufacture issues for appeal. “Although there is little doubt

that [Mikhel] was recalcitrant and acted in ways that were

detrimental to his case, his interactions with the trial judge

indicated that he understood what was at stake during the

penalty phase and could make informed decisions.” Davis,

384 F.3d at 645; see also Garza, 751 F.3d at 1136 (“A

defendant who refuses to work with his lawyer out of spite
68 UNITED STATES V. MIKHEL

alone is not incompetent even if that defendant has a serious

mental disease or defect.”). Accordingly, the penalty phase

yielded no genuine doubt of Mikhel’s competency, and the

district court did not plainly err in failing to hold a

competency hearing sua sponte at any stage of trial.

10. Kadamovas’s Confrontation Clause claim

Kadamovas claims Mikhel’s testimony and refusal to be

cross-examined violated his Sixth Amendment confrontation

right and prejudiced him in both the guilt and penalty phases. 

We review alleged Confrontation Clause violations de novo. 

See United States v. Peterson, 140 F.3d 819, 821 (9th Cir.

1998).

Mikhel’s testimony on direct spanned three days. During

the first two days, Mikhel testified about his life before the

offense conduct at issue here. Much of this testimony

concerned his purportedly lavish lifestyle as a successful

smuggler and money launderer. For instance, he testified that

he purchased a $17 million yacht to smuggle “big quantities”

of money between countries, that he traveled throughout the

Caribbean, Europe, and Asia to advance his illicit enterprises,

and that he used a vineyard outside Modesto, California, as a

“safe house” for paperwork and money. According to

Mikhel’s counsel, the purpose of this testimony was to

proactively raise Mikhel’s past misconduct—which did not

involve kidnapping or murder—and to “establish[ ] a

foundation for what he did later.”

Mikhel had relatively little to say about Kadamovas in his

testimony, and what he did say offered innocent explanations

for some of the government’s evidence tying himself and

Kadamovas to the kidnappings. Mikhel testified that
UNITED STATES V. MIKHEL 69

Kadamovas once helped him smuggle money out of the

United States by strapping bricks of cash to their bodies using

plastic ties (thus explaining the plastic ties later found in

Mikhel’s home). He further testified that Kadamovas

participated in smuggling schemes to Cuba and Cyrus. And

he testified that Kadamovas assisted him in an extortion

scheme, in which they videotaped a meeting with a man who

sought their help hiring 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

underlying this case. He claimed that an unnamed associate

wanted Muscatel to be “taught a lesson” and that he hired

Altmanis for the job, merely instructing Altmanis to “do

whatever you think you’re supposed to do” without wanting

him to kill anyone. Mikhel said he told Altmanis, “I don’t

want to know what’s going to happen after you leave here.” 

He also said that his conversation with Altmanis caused

him to be concerned about the money in his home, prompting

him and Kadamovas to drive to his Modesto safe house the

next day (thus explaining the cellphone data showing them

making that trip).

Mikhel also testified to some events connected to the

Umansky family’s ransom payments, asserting that he

believed he was only helping Altmanis launder this money

and did not know its provenance. With regard to being

caught on a surveillance camera using Umansky’s ATM card,

Mikhel said he purchased the card from Altmanis to facilitate

creating shell corporations. As for the Safiev-related plots,

Mikhel testified he used Pekler and Kharabadze to lure Safiev

into a meeting in order to help Safiev. Mikhel claimed that

unnamed individuals were after Safiev for cheating them of

$50 million, that he sought a meeting with Safiev to assist
70 UNITED STATES V. MIKHEL

him in disappearing to safety, and that he expected several

million dollars in compensation for his services. Mikhel

wove a complicated story to this effect, which included him

and Kadamovas once again making trips to the Modesto safe

house. Mikhel ended his testimony by attesting that he did

not kill Muscatel, Pekler, Umansky, Kharabadze, or Safiev. 

When he refused to be cross-examined, the district court

struck his testimony and instructed the jury not to consider it

“in any matter against Mr. Mikhel or against Mr.

Kadamovas.”

Kadamovas argues that the district court’s instruction

could not cure his inability to cross-examine Mikhel under

Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the

Supreme Court held that a defendant is deprived of his Sixth

Amendment right of confrontation when a facially

incriminating confession of a nontestifying codefendant is

introduced at their joint trial, even if the jury is instructed to

consider the confession only against the codefendant.17

Bruton, 391 U.S. at 126. This holding “recognized a narrow

exception” to the “assumption of the law that jurors follow

their instructions.” Richardson v. Marsh, 481 U.S. 200,

206–07 (1987) (citing Bruton, 391 U.S. at 135–36). The

Court reasoned:

[T]here are some contexts in which the risk

that the jury will not, or cannot, follow

17 In the Bruton line of cases, “codefendant” refers to the individual

who confesses and inculpates both himself and the “defendant.” For

instance, in Bruton, Evans (the codefendant) confessed during an

interrogation that he and Bruton (the defendant) committed armed

robbery. 391 U.S. at 124. The confession was admitted at their joint trial,

but the trial court instructed the jury to consider it only as to Evans and not

as to Bruton. Id. at 124–25.
UNITED STATES V. MIKHEL 71

instructions is so great, and the consequences

of failure so vital to the defendant, that the

practical and human limitations of the jury

system cannot be ignored. Such a context is

presented . . . where the powerfully

incriminating extrajudicial statements of a

codefendant, who stands accused side-by-side

with the defendant, are deliberately spread

before the jury in a joint trial. Not only are

the incriminations devastating to the

defendant but their credibility is inevitably

suspect . . . . The unreliability of such

evidence is intolerably compounded when the

alleged accomplice . . . does not testify and

cannot be tested by cross-examination. It was

against such threats to a fair trial that the

Confrontation Clause was directed.

Bruton, 391 U.S. at 135–36 (emphasis added) (citations

omitted).

The Court narrowed Bruton’s scope in Richardson, where

it held that there is no Confrontation Clause violation if the

codefendant’s confession must be linked to other evidence to

incriminate the defendant. Richardson, 481 U.S. at 208. 

“Where the necessity of such linkage is involved, it is a less

valid generalization that the jury will not likely obey the

instruction to disregard the evidence. Specific testimony that

‘the defendant 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 “contextual

implication” doctrine that required courts to assess whether,

in light of all of the evidence, a codefendant’s confession was

so powerfully incriminating that a new, separate trial was
72 UNITED STATES V. MIKHEL

required for the defendant. See United States 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. We have held that “[a] statement is not

facially incriminating merely because it identifies a

defendant; the statement must also have a sufficiently

devastating or powerful inculpatory 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 States v. Lopez, 484 F.3d 1186

(9th Cir. 2007) (en banc). We have also held that the Bruton

rule applies not only to out-of-court confessions but also to

when a codefendant confesses in court. Toolate v. Borg,

828 F.2d 571, 572 (9th Cir. 1987). Although it is ordinarily

a sufficient remedy to strike the testimony of a witness who

refuses to be cross-examined, “in-court confessions are no

less credible or powerful as a rule than out-of-court ones.” 

Id. at 572–73. Thus, “the presumed inability of juries to

disregard an incriminatory codefendant’s confession” also

applies to in-court confessions and may result in a

Confrontation Clause violation. Id. at 574–75.

Kadamovas argues Bruton and Toolate mandate reversal

because Mikhel’s testimony “corroborated the government’s

case and directly implicated” him. Specifically, Kadamovas

contends the testimony “plac[ed] him in the events

surrounding the abductions of four of the victims and

validat[ed] the evidence about the trips to the [New Melones]

Reservoir.” The government counters that Mikhel’s

testimony does not implicate Bruton and Toolate because

Mikhel (1) did not confess to the crimes he was charged with

and (2) did not incriminate Kadamovas.
UNITED STATES V. MIKHEL 73

As an initial matter, we agree that Mikhel’s testimony

cannot accurately be described as a confession. While he

certainly corroborated portions of the government’s evidence

against him, he never admitted to conduct that would satisfy

any element of the hostage-taking charges, such as seizing or

detaining the victims, threatening to kill or injure them, or

holding them for ransom. Nor did he admit to conspiring

with others to commit these crimes.18 Rather, Mikhel’s

testimony was clearly an attempt to exculpate himself by

offering an alternate narrative for the government’s

overwhelming evidence against him. For instance, he

attempted to provide a non-nefarious explanation for why he

lured Pekler, Kharabadze, and Safiev into meeting with him;

why plastic ties were found in his home; and why cellphone

data placed him near the reservoir at critical times.

We need not decide, however, whether a codefendant

must completely inculpate himself in order to trigger

Bruton’s protection because Mikhel’s testimony did not

facially incriminate Kadamovas. See United States v.

Yarbrough, 852 F.2d 1522, 1537 (9th Cir. 1988) (“Bruton

does not require that all extrajudicial statements or

confessions not be used in a joint trial. Rather, only those

statements that ‘clearly inculpate’ the defendant or are

‘powerfully incriminating’ implicate the ‘Bruton’ rule.”). 

Most of Mikhel’s testimony regarding the offense conduct,

including the events underlying Muscatel and Umansky’s

disappearances, made no mention of Kadamovas. When

Mikhel did insert Kadamovas into his narrative, he never

claimed Kadamovas seized, detained, threatened, injured, or

18 In contrast, it does appear that Mikhel incriminated himself as to the

charge of conspiracy to escape from custody. But Mikhel never mentions

Kadamovas in this portion of his testimony.
74 UNITED STATES V. MIKHEL

demanded ransom for any of the victims. Rather, Mikhel’s

attempt to exculpate himself also extended to Kadamovas,

providing Kadamovas, for instance, an explanation for why

his cellphone placed him near the reservoir around the times

of the victims’ deaths.

Kadamovas argues that parts of Mikhel’s testimony

corroborated the government’s evidence against him. For

example, Mikhel’s testimony supported the government’s

evidence that Kadamovas posed as a potential client to meet

with Pekler and that Solovyeva lured Kharabadze to Designed

Water World. But none of this evidence, on its own, directly

established that Kadamovas committed or conspired to

commit hostage taking. Instead, by arguing that Mikhel’s

testimony corroborated the government’s evidence,

Kadamovas implicitly acknowledges that the testimony must

be linked to other evidence in order to inculpate him. 

Kadamovas thus asserts the precise type of “contextual

implication” argument that the Supreme Court rejected in

Richardson. Because Mikhel’s testimony did not facially

incriminate Kadamovas, it did not trigger the Bruton rule. 

See Angwin, 271 F.3d at 797–98 (finding no Bruton violation

where the codefendant’s pretrial statements “could support”

the government’s narrative but were only “mildly

incriminating”). We therefore assume the jury followed the

district court’s instruction to disregard Mikhel’s testimony. 

See Richardson, 481 U.S. at 206. There was no

Confrontation Clause violation.19

19 Kadamovas alternatively argues that, even absent a Confrontation

Clause violation, Mikhel’s testimony violated Federal Rules of Evidence

403 and 404(b) and that striking the testimony was an insufficient remedy. 

In support of this argument, however, he only cites cases involving

defective curative instructions. See, e.g., United States v. Merino-
UNITED STATES V. MIKHEL 75

Finally, any error in this regard was harmless. An error

is harmless if, absent the offending evidence, it remains

“clear beyond a reasonable doubt that the jury would have

returned a verdict of guilty.” United States v. VelardeGomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc). The

evidence presented at trial to prove defendants’ guilt was

overwhelming and included the detailed testimony of three

cooperating coconspirators; the testimony of numerous other

witnesses linking defendants to the victims’ disappearances;

physical evidence retrieved from defendants’ homes and

Designed Water World’s office; DNA and fingerprint

evidence linking many of these artifacts to defendants or their

victims; cellphone data placing defendants near the reservoir

at the time of the victims’ deaths; and expert testimony

tracing ransom payments to defendants’ bank accounts,

identifying defendants’ voices in recorded telephone calls,

and matching Kadamovas’s shoes to shoeprints left in

Muscatel’s blood on the Parrotts Ferry Bridge. Indeed, the

district court remarked at sentencing that it had “never seen

a case where the evidence of guilt was so compelling as in

this particular case.” It is clear beyond a reasonable doubt

that Mikhel’s testimony impacted neither Kadamovas’s

convictions nor (for reasons explained in our discussion of

the penalty-phase below) his sentence.

11. Kadamovas’s severance motion

Kadamovas repeatedly moved for complete severance of

his case from Mikhel’s or, in the alternative, for sequential

penalty-phase hearings. The district court denied his motions. 

Balderrama, 146 F.3d 758, 764 (9th Cir. 1998) (holding that “the

[curative] instruction was inadequate on its face”). There is no reason to

believe the district court’s instructions were ineffective here.
76 UNITED STATES V. MIKHEL

We review denial of severance for abuse of discretion. 

United States v. Jenkins, 633 F.3d 788, 807 (9th Cir. 2011).

“Defendants jointly indicted ordinarily should be jointly

tried. Serious consideration must be given to judicial

economy. The burden is on the defendant to show ‘clear,’

‘manifest,’ or ‘undue’ prejudice from a joint trial.” United

States v. Polizzi, 801 F.2d 1543, 1553–54 (9th Cir. 1986)

(citations omitted). Severance should be granted “only if

there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or

innocence.” Zafiro 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 district court [in

denying severance] is whether a joint trial was so manifestly

prejudicial as to require the trial judge to exercise his

discretion in but one way, by ordering a separate trial.” 

Jenkins, 633 F.3d at 807. Our review in this area is

“extremely narrow.” United States v. Mariscal, 939 F.2d

884, 886 (9th Cir. 1991) (citing United States v. Stirling,

571 F.2d 708, 733 (2d Cir. 1978) (severance question is

“virtually unreviewable”)). “The possibility of acquittal in a

separate trial is not itself sufficient to require severance.” 

Jenkins, 633 F.3d at 807.

The joint guilt-phase trial was not so prejudicial as to

deny Kadamovas a fair trial, and the district court did not

abuse its discretion in denying Kadamovas’s severance

motions. Although Kadamovas cites Mikhel’s testimony as

evidence of guilt-phase prejudice, the district court granted
UNITED STATES V. MIKHEL 77

Kadamovas’s motion to strike that testimony and gave a

curative instruction. For the reasons discussed above, we

assume that the jury followed the court’s instruction and that

Mikhel’s testimony therefore did not prejudice Kadamovas. 

Likewise, none of Mikhel’s unusual behavior during trial—

such as wearing his jail garb, appearing in court with a visible

ligature mark from his third suicide attempt, and refusing to

attend the final days of trial—demonstrated the kind of

manifest prejudice required to reverse a conviction for denial

of severance.20 Moreover, the court repeatedly instructed the

jury not to consider Mikhel’s absence against Kadamovas.

Kadamovas relies on the Seventh Circuit’s decision in

United States v. Mannie, which held that a district court

abused its discretion in denying motions for mistrial and

severance based on the “co-defendant’s severe and violent

disruptions during the trial.” 509 F.3d 851, 852 (7th Cir.

2007). But Kadamovas’s claim is, if anything, weakened by

this comparison. In one of many courtroom incidents in

Mannie, the codefendant yelled at defense counsel, “then

stood up, knocked one of his attorneys to the ground, grabbed

the other attorney by his necktie, and threw him to the ground

as well.” Id. at 855. Mannie exemplifies the “truly rare” case

in which jury instructions provide insufficient protection to

the right to a fair trial. Id. at 857. Here, by contrast, the

district court did not abuse its discretion in denying severance

at the guilt phase.

20 Kadamovas also cites an incident in which Mikhel applauded a

potential juror’s response during voir dire. There was no possible

prejudice as a result of this incident, as it took place only in front of the

potential juror, who was immediately excused and prevented from

discussing the matter with any other potential jurors.
78 UNITED STATES V. MIKHEL

Nor did the district court abuse its discretion in denying

Kadamovas’s requests for sequential penalty phases. Like a

joint trial, a joint penalty phase is favored for efficiency and

fairness, even though it raises a potential risk to the

individualized consideration due each capital defendant. See

United States v. Tipton, 90 F.3d 861, 892–93 (4th Cir. 1996)

(finding joint penalty hearing was not an abuse of discretion). 

Kadamovas argues he was prejudiced during the penalty

phase by Mikhel’s continued absence from court, evidence of

Mikhel’s suicide attempts, the disparity in his mitigation case

versus Mikhel’s, and the government’s presentation of

evidence and arguments as to both defendants.

While it would not have been an abuse of discretion for

the court to conduct sequential penalty phases before the

same jury, it also was not an abuse of discretion to order a

joint penalty phase. None of the issues raised by Kadamovas

show the type of manifest prejudice or risk to individualized

consideration that would be required to vacate his sentence on

this ground. In this regard, we note that the jury rendered

separate verdicts and made individualized findings and

recommendations as to each defendant. Moreover, the

district court’s penalty-phase instructions required the jury to

give individualized consideration to each defendant, which

adequately mitigated any risk of prejudice. See Fernandez,

388 F.3d at 1243 (“We have repeatedly held that a district

court’s careful and frequent limiting instructions to the jury

. . . can reduce or eliminate any possibility of prejudice

arising from a joint trial.”); Tipton, 90 F.3d at 892–93

(holding that “frequent instructions on the need to give each

defendant’s case individualized consideration sufficed to

reduce the risk to acceptable levels” in joint capital penalty

hearing).
UNITED STATES V. MIKHEL 79

12. Kadamovas’s conviction for conspiracy to escape

Kadamovas was convicted of conspiring to escape from

custody under 18 U.S.C. § 371. Kadamovas argues this

conviction must be reversed because of two alleged

evidentiary errors: (1) limiting the defense’s crossexamination of cooperating witness Jose Avila in violation of

the Federal Rules of Evidence and Confrontation Clause; and

(2) admitting improper hearsay evidence in the form of a

letter penned by Mikhel after the escape conspiracy ended. 

We review a Confrontation Clause challenge based on the

exclusion of an area of inquiry de novo, United States v.

Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc), and

we review evidentiary rulings for abuse of discretion, Orm

Hieng, 679 F.3d at 1135.

Mikhel’s counsel sought to impeach Avila’s credibilityby

questioning him about a 2001 drug trafficking offense in

Ohio and threats he purportedly made against a cooperating

witness in that case named Robert Walsh. The government

objected, and the district court ruled the line of crossexamination irrelevant. Mikhel then proffered a letter from

the United States Attorney for the Northern District of Ohio

stating that a member of Jose Avila’s family had once

threatened an unnamed “potential witness” by saying “We

know where you are and where your family lives.” Mikhel’s

counsel told the court he “assume[d]” the letter was about

Walsh. The court again sustained the government’s objection

to the proffered evidence.

Federal Rule of Evidence 608(b) permits crossexamination of a witness on prior conduct bearing on his or

her character for truthfulness or untruthfulness. Fed. R. Evid.

608(b). In addition, the exclusion of “otherwise appropriate
80 UNITED STATES V. MIKHEL

cross-examination designed to show a prototypical form of

bias on the part of the witness” can rise to the level of a

violation of the Confrontation Clause. Holley v. Yarborough,

568 F.3d 1091, 1098 (9th Cir. 2009). The Confrontation

Clause inquiry is (1) whether the excluded evidence was

relevant; (2) whether there were other legitimate interests

outweighing the defendant’s interest in presenting the

evidence; and (3) whether the exclusion of evidence left the

jury with sufficient information to assess the witness’s

credibility. Larson, 495 F.3d at 1103. “[T]rial judges retain

wide latitude insofar as the Confrontation Clause is concerned

to impose reasonable limits on such cross-examination based

on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” 

Id. at 1101.

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

error or Confrontation Clause violation. Kadamovas’s theory

of the proposed testimony’s relevance was speculative,

attenuated, and convoluted. Other legitimate interests easily

outweighed the testimony’s minimal probative

value—particularly, legitimate interests in avoiding undue

delay and preventing a trial-within-a-trial on unrelated events

surrounding Avila’s drug trafficking offense and purported

threats in connection with proceedings in Ohio. The district

court did not err under either Rule 608(b) or the

Confrontation Clause in excluding this line of crossexamination.

Kadamovas also challenges the district court’s admittance

of a letter concerning Mikhel’s escape plans. The escape

conspiracy was discovered on March 7, 2003, and

Kadamovas withdrew from the conspiracy no later than
UNITED STATES V. MIKHEL 81

March 17, 2003.21 Over a week later, on March 26, 2003,

Mikhel asked a prison guard to pass Kadamovas a magazine

in which he had hidden the letter now at issue. The guard

seized the letter, and Kadamovas never saw it. The letter

outlined steps Mikhel wanted Kadamovas to take to

communicate with other prisoners 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 you. I’m just asking

you to do everything exactly as laid out below. We’ve made

enough mistakes.”

Generally, out-of-court statements are admissible for the

truth of the matter asserted if “made by the party’s

coconspirator during and in furtherance of the conspiracy.” 

Fed. R. Evid. 801(d)(2)(E). Kadamovas argues Mikhel’s

letter was inadmissible because “once a partywithdraws from

a conspiracy subsequent statements by a coconspirator do not

fall within this exemption.” United States v. Nerlinger,

862 F.2d 967, 974 (2d Cir. 1988). The government responds

that the conspiracy had revived by the time of Mikhel’s letter. 

The problem with the government’s argument, however, is

that there is no proof of the conspiracy reviving other than the

contested hearsay. We may consider contested hearsay in

determining whether the Rule 801(d)(2)(E) exemption

applies, but there must also be “some evidence, aside from

the proffered statements, of the existence of the conspiracy

and the defendant’s involvement.” United States v. Gordon,

844 F.2d 1397, 1402 (9th Cir. 1988). Here, Mikhel’s letter

was the only evidence of an ongoing conspiracy to escape

21 Kadamovas confessed to his involvement in the escape conspiracy

on March 17, 2003, but the government conceded the confession was

obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and was

inadmissible.
82 UNITED STATES V. MIKHEL

after Kadamovas’s withdrawal. The letter was therefore

inadmissible hearsay.

In any five-month trial involving dozens of witnesses and

hundreds of exhibits, there is likely to be some evidentiary

error. Our question on review is whether that evidentiary

error was harmless—i.e., whether, absent the error, it remains

“clear beyond a reasonable doubt that the jury would have

returned a verdict of guilty.” Velarde-Gomez, 269 F.3d at

1034. In this case, we have no doubt the admission of

Mikhel’s letter was harmless, as the letter was merely

cumulative of other evidence linking Kadamovas to the

conspiracy. Avila testified he went to Kadamovas’s cell in

“Nine South” to talk with Mikhel through the air vents and

that Kadamovas “pretty much told me a little bit about like

one of the plans and he just mentioned that—like behind his

pillow that he was supposed to like make a hole and they

were supposed to squeeze out of there and they were all

supposed to go out into the stairwell and meet at a certain

time.” Parker, a fellow inmate, testified he heard Mikhel

communicating through the air vents in a foreign language

with someone on “Nine South.” Coconspirator Sabrina

Tuinan testified she obtained four cellphones, three of which

were for Mikhel, her husband, and her brother-in-law. 

Though she was not certain, she believed the fourth phone

was for “the other Juri,” i.e., Jurijus Kadamovas. Prison

records showed Mikhel had sent money to Krylov, Avila,

Cook, and Kadamovas—all members of the conspiracy. And

inmate housing records showed that Kadamovas managed to

be reassigned to a cell adjacent to the stairway the

conspirators intended to use for their escape. In light of this

evidence, the erroneous admission of Mikhel’s letter did not

impact Kadamovas’s conviction for conspiring to escape

custody. Nor could it have impacted his death sentence for
UNITED STATES V. MIKHEL 83

the reasons we explain in our discussion of the penalty phase

below.

13. Kadamovas’s access to a computer

Kadamovas claims the government breached its

stipulation with him regarding his access to discovery

materials on a computer. He requests a remand “for an

evidentiary hearing to determine whether the stipulation was

violated and, if so, the appropriate remedy.” “Stipulations

freely and voluntarily entered into in criminal trials are as

binding and enforceable as those entered into in civil

actions.” United States v. Shapiro, 879 F.2d 468, 470 (9th

Cir. 1989). We interpret a stipulation de novo and consider

whether the facts demonstrate a breach of that stipulation

under the more deferential clearly erroneous standard. See

United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996).

In November 2005, Kadamovas complained he lacked

sufficient access to a computer to review discovery in his

case, as he only had access on weekdays between 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

granted access to a computer for ten hours a day. The parties

entered into a stipulation by which Kadamovas withdrew his

motion based on the prison warden’s representation that “Mr.

Kadamovas will, to the maximum practicable extent, be

granted daily access to his laptop computer, Monday through

Friday, excluding holidays, from approximately 7:00 a.m. to

3:15 p.m.” The stipulation was expressly subject to the

MDC’s safety, security, management, and operational needs. 

Significantly, Kadamovas was a high security inmate housed

in MDC’s Secure Housing Unit and required three guards to

be present during all of his movements.
84 UNITED STATES V. MIKHEL

In March 2006, Kadamovas filed a renewed motion with

the district court claiming he was receiving insufficient

computer access and requesting leave to use a computer in his

cell. The court heard argument on the motion and denied

Kadamovas’s request, explaining that Kadamovas “always

had an opportunity to review this material, and he’s chosen

not to do it.” Three months into trial, after continued

complaints about insufficient computer access, the court

ordered that Kadamovas be permitted computer access in his

cell fourteen hours a day.

The district court did not clearly err in finding that

Kadamovas was receiving sufficient computer access in

accordance with that contemplated by the stipulation. A

detailed declaration from Federal Bureau of Prisons

Supervisory Attorney Eliezer Ben-Shmuel attested that

Kadamovas had regular computer access but was often not

using it. The declaration attached prison records approving

Kadamovas’s various requests to use his computer. Isolated

incidents of Kadamovas being denied computer access were

consistent with the stipulation’s terms providing that access

was “subject to the safety, security, management and

operational needs” of MDC. In short, the record supports the

district court’s determination that there was no pattern of

Kadamovas being denied computer access in violation of the

stipulation.

B. The Penalty Phase

As we find no reversible error in the guilt phase, we

proceed to considering the penalty phase. Generally, the

same jury that determines a defendant’s guilt must also

consider his or her eligibility for the death penalty under the

FDPA. 18 U.S.C. § 3593(b)(1). To impose a sentence of
UNITED STATES V. MIKHEL 85

death, the jury must first make the following threshold

findings: (1) the defendant was 18 years of age or older at the

time of the offense, id. § 3591(a)(2)(D); (2) the defendant had

at least one of four enumerated mentes reae, id. § 3591(a)(2);

and (3) at least one of sixteen statutorily defined aggravating

factors applied, id. § 3592(c).

If the jury makes these threshold findings, it must then

decide whether the aggravating factor or factors found to

exist “sufficiently outweigh” any mitigating factor or factors

found to exist to justify a sentence of death. Id. § 3593(e). 

Aggravating factors must be found unanimously and beyond

a reasonable doubt; mitigating factors may be found by one

or more jurors by a preponderance of the evidence. Id.

§ 3593(c), (d). Based on its consideration of all aggravating

and mitigating factors, the jury recommends by unanimous

vote whether the defendant should be sentenced to death or

some lesser sentence. Id. § 3593(d), (e). In this case, the jury

unanimously found all nine of the government’s aggravating

factors against both defendants, and no juror found any

mitigating factor as to either defendant. The jury

unanimously recommended that both defendants be sentenced

to death.

1. “Reasonable doubt” instruction as to penalty

As it did in the guilt phase, the district court instructed the

jury in the penalty phase using our circuit’s model

“reasonable doubt” instruction. Model Crim. Jury Instr. 9th

Cir. 3.5. The court quoted the instruction nearly verbatim,

adapting it only slightly to refer to aggravating factors rather

than guilt:
86 UNITED STATES V. MIKHEL

Proof beyond a reasonable doubt is proof that

leaves you firmly convinced that an

aggravating factor exists. It is not required

that the government prove the existence of an

aggravating factor beyond all possible doubt.

A reasonable doubt is a doubt based upon

reason and common sense and is not based

purely on speculation. It may arise from a

careful and impartial consideration of all the

evidence, or from a lack of evidence.

Defendants did not object to the instruction in the penalty

phase, so we review for plain error. See Mitchell, 502 F.3d at

967.

Defendants contend that using the model instruction to

describe the government’s burden of proof on aggravating

factors—particularly, future dangerousness—was error

because aggravating factors inherently contemplate

“speculative inquiries and speculative evidence.” The

Supreme Court recently observed that the future

dangerousness inquiry is not a determination of “historical

fact,” but “a predictive judgment inevitably entailing a degree

of speculation.” Buck v. Davis, 137 S. Ct. 759, 776 (2017). 

We do not understand this as requiring a different definition

of “reasonable doubt.” Notwithstanding the predictive nature

of finding future dangerousness, or of any other aggravating

factor, a reasonable doubt remains “something more than a

speculative one.” Victor, 511 U.S. at 19–20.

Defendants further contend the model instruction was

unfairly lopsided because it instructed jurors not to find a

reasonable doubt in their favor based purely on speculation,
UNITED STATES V. MIKHEL 87

without telling them not to speculate in finding the

government’s burden of proof beyond a reasonable doubt. 

The instruction, however, left no room for jurors to

unreasonably speculate in making any finding favoring the

government. The instruction clearly explained that “[p]roof

beyond a reasonable doubt is proof that leaves you firmly

convinced that an aggravating factor exists.” This correctly

stated the government’s burden of proof. See, e.g., United

States v. Velasquez, 980 F.2d 1275, 1278–79 (9th Cir. 1992)

(approving “firmly convinced” language in reasonable doubt

instruction). It was not plain error to so instruct the jury. See

United States v. Soto-Zuniga, 837 F.3d 992, 1004 (9th Cir.

2016); Ruiz, 462 F.3d at 1087.

2. Victim-impact evidence

The government presented twelve penalty-phase

witnesses, eight of whom testified to the non-statutory

aggravating factor “Victim Impact.”22 Defendants challenge

the admission of this victim-impact evidence insofar as it

(1) concerned not a victim’s family but his or her professional

accomplishments or value to the wider community, or

(2) touched on a victim’s religion. At most, defendants only

made the first challenge below. Thus, we review the first

challenge for abuse of discretion, and the second for plain

error. See Mitchell, 502 F.3d at 967.

22 The eight victim-impact witnesses were Nancy Shapiro Muscatel

(Muscatel’s wife), Rachel Hoisman (Muscatel’s daughter), Roman

Khayumov (Pekler’s husband), Ruven Umansky (Umansky’s father),

Michael Umansky (Umansky’s brother), Evgenia Safieva (Safiev’s

daughter), Matvy Shatz (Kharabadze’s stepfather), and Ron Shelton

(Kharabadze’s friend).
88 UNITED STATES V. MIKHEL

Defendants first argue that the Eighth Amendment and

FDPA only permit evidence of a victim’s personal

characteristics in penalty proceedings to the extent those

characteristics influenced, and thus reveal something about,

the relationship the victim had with his or her family. 

Although we have not previously addressed this issue, we

agree with several of our sister circuits that have held that

victim-impact evidence is not so limited. See, e.g., United

States v. Runyon, 707 F.3d 475, 499–501 (4th Cir. 2013)

(evidence of impact of victim’s death on friends and

colleagues and of victim’s service in Navywas admissible).23

In Payne v. Tennessee, the Supreme Court held that the

Eighth Amendment does not erect a per se bar to victimimpact evidence in capital sentencing proceedings. 501 U.S.

808, 827 (1991). Victim-impact evidence gives a “quick

glimpse” of the victim’s life and of his “uniqueness as an

individual human being.” Id. at 822–23. Such evidence is

relevant to whether the death penalty should be imposed and

is no different than any other relevant evidence. Id. at 827. 

It is generally admissible if it is not “so unduly prejudicial

23 See also United States v. Whitten, 610 F.3d 168, 187–92 (2d Cir.

2010) (testimony from victim’s colleagues on police force about

professional accomplishments was admissible); United States v. Bolden,

545 F.3d 609, 626 (8th Cir. 2008) (testimony from victim’s friends,

coworkers, and pastor about his relationship with his girlfriend and career

aspirations was admissible); United States v. Battle, 173 F.3d 1343, 1348

(11thCir. 1999) (testimony fromfellowcorrectional officers about impact

of victim’s murder on Atlanta prison was admissible). Only the Tenth

Circuit has adopted an arguably more restrictive view: in United States v.

Fields, it held that victim-impact evidence froma friend and coworker was

admissible, but was unwilling to extend the victim-impact inquiry further

to “community-level consequences.” 516 F.3d 923, 946–48 (10th Cir.

2008).
UNITED STATES V. MIKHEL 89

that it renders the trial fundamentally unfair,” in violation of

due process. Id. at 825.

Payne concerned testimony from a victim’s grandmother

but nowhere limited victim-impact evidence to evidence by

or about family members. Rather, it expressly affirmed the

state’s “legitimate interest in . . . reminding the sentencer that

. . . the victim is an individual whose death represents a

unique loss to society and in particular to his family.” Id.

(emphasis added). Contrary to defendants’ assertions, the

Supreme Court’s recent decision in Bosse v. Oklahoma,

137 S. Ct. 1 (2016) (per curiam), does not require a narrower

reading of Payne. Bosse held that Payne did not alter the

Court’s preexisting “prohibition on characterizations and

opinions from a victim’s family members about the crime,

the defendant, and the appropriate sentence.” Id. at 2

(emphasis added). Bosse did not speak to the scope of

victim-impact testimony admissible under Payne to show the

victim’s “uniqueness as an individual human being.”

Defendants alternatively argue that, even if the Eighth

Amendment does not limit victim-impact evidence in the

manner they suggest, the FDPA does. The FDPA provides

that non-statutory aggravating factors

may include factors concerning the effect of

the offense on the victim and the victim’s

family, and may include oral testimony, a

victim impact statement that identifies the

victim of the offense and the extent and scope

of the injury and loss suffered by the victim

and the victim’s family, and any other

relevant information.
90 UNITED STATES V. MIKHEL

18 U.S.C. § 3593(a). Defendants interpret § 3593(a)’s

references to “the victim’s family” as limiting the scope of

admissible victim-impact evidence. But that language is

illustrative, not exhaustive. Section 3593(a) alludes to one

possible non-statutory aggravating factor—“the effect of the

offense on the victim and the victim’s family”—and then

gives examples of how the government may prove that factor,

ending with the catchall “any other relevant information.” It

does not prohibit evidence of a victim’s professional

accomplishments or value to the community. The

government’s victim-impact evidence was relevant to each

victim’s “uniqueness as an individual human being” and was

not “so unduly prejudicial that it render[ed] the trial

fundamentally unfair.” Payne, 501 U.S. at 822–23, 825. The

district court did not abuse its discretion.

Defendants also argue that the district court plainly erred

in failing to exclude evidence of Muscatel’s Jewish faith—

specifically, that he was a “deeply religious man,” who was

“very committed to Kabala,” “observed Shabbat every

Friday, Saturday,” and helped start a children’s spirituality

program. We faced a similar issue in Mitchell, where the

defendant challenged testimony bearing on the victim’s

religion and cultural heritage as a Native American. Mitchell,

502 F.3d at 989. We saw “nothing untoward in this

testimony,” as “it would have been difficult if not impossible

to capture what [the victim’s] loss meant to her family

without reference to the significance that traditional Navajo

religion and culture played in their lives.” Id. at 989–90.

Witnesses testified to Muscatel’s religion in the context

of describing his commitment to his family and celebration of

life. As in Mitchell, this testimony was admissible to show

Muscatel’s uniqueness as a person. See id.; see also United
UNITED STATES V. MIKHEL 91

States v. Bernard, 299 F.3d 467, 479 (5th Cir. 2002)

(“Because religion played a vital role in [the victims’] lives,

it would be impossible to describe their ‘uniqueness as

individual human beings’ without reference to their faith.”). 

In any event, the testimony added little risk of prejudice

because the jury already knew of Muscatel’s religion from

Markovskis’s guilt-phase testimony.

To the extent defendants argue that the jury found for

death because Muscatel was Jewish, the argument is

unavailing. As the FDPA requires, the district court

instructed the jury not to consider the religious beliefs of any

defendant or victim. 18 U.S.C. § 3593(f). We assume jurors

follow instructions. See Mitchell, 502 F.3d at 990. 

Moreover, as the FDPA requires, each juror certified he or

she would have made the same recommendation irrespective

of the religious beliefs of any defendant or victim. 18 U.S.C.

§ 3593(f). “Absent a substantial indication to the contrary,

we accept the jurors’ assurance that no impermissible

considerations of race or religion factored into the verdict.” 

Mitchell, 502 F.3d at 990. There was no plain error here.

3. Misconduct in penalty-phase closing arguments

Defendants assert that several of the government’s

remarks in penalty-phase closing arguments amounted to

prosecutorial misconduct requiring reversal. Because

defendants did not object to the alleged misconduct at trial,24

24 Mikhel objected four times in penalty-phase closing arguments;

Kadamovas objected zero times. None of Mikhel’s objections preserved

the prosecutorial-misconduct claims asserted here because none were

“specific enough to bring into focus the precise nature of the alleged
92 UNITED STATES V. MIKHEL

we review for plain error. See Mitchell, 502 F.3d at 967. 

“Under the plain error standard, reversal is appropriate only

if the prosecutor’s improper conduct so affected the jury’s

ability to consider the totality of the evidence fairly that it

tainted the verdict and deprived [the defendant] of a fair

trial.” United States v. Sanchez, 659 F.3d 1252, 1257 (9th

Cir. 2011) (quotation marks omitted).

First, defendants contend it was improper for the

government to argue that their mitigation evidence did not

“excuse,” “explain,” or “justify” their crimes. For instance,

defendants highlight the government’s rhetorical questions:

“Do any of the mitigating factors in this case justify or

explain the horrible crimes committed by the Defendants? . . . 

Do any of them lessen the culpability of the Defendants?” 

According to defendants, statements like this incorrectly told

the jury they could only consider mitigating evidence that had

some nexus to the crimes for which defendants were

convicted. See Tennard v. Dretke, 542 U.S. 274, 284 (2004)

(rejecting the view that mitigation evidence must have a

nexus to the crime of conviction); 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 mischaracterize the government’s statements,

which did not suggest that the jury could not consider

defendants’ proffered mitigating factors but only that the jury

should not give those factors much, if any, weight. The

FDPA requires the jury to decide whether “all the aggravating

factor or factors found to exist sufficiently outweigh all the

error.” United States v. Pineda-Doval, 614 F.3d 1019, 1026 (9th Cir.

2010) (quotation marks omitted).
UNITED STATES V. MIKHEL 93

mitigating factor or factors found to exist to justify a sentence

of death.” 18 U.S.C. § 3593(e) (emphasis added). The

government’s remarks that any mitigating factors did not

“justify”—or, for the sake of variety, did not “excuse” or

“explain”—defendants’ crimes were consistent with this

statutory language. The remarks were not improper. See

Sims v. Brown, 425 F.3d 560, 580 (9th Cir. 2005)

(prosecutor’s comments were not improper where he did “not

suggest that the jury cannot consider Sims’s background as

a mitigating factor but rather that it should not find that

[factor]”).

Second, defendants contend the government misstated the

law with respect to mitigating factors when it said the

following:

When you consider each of these

mitigating factors, I’d like you to ask yourself

as to each of them, when you go back to the

Jury room to deliberate. Ask yourself, first:

Does this factor actually exist? Are there

facts that support it? Then ask yourself: If

they do exist, is this really something that

would justify a lesser sentence?

And then, finally, if you do think that it’s

something that might justify a lesser sentence,

ask yourself: What weight, if any, you should

give it in your deliberation process?

According to defendants, this statement outlined a three-step

process that conflicted with the FDPA by telling jurors to not

“consider” any mitigating factors that did not justify a lesser
94 UNITED STATES V. MIKHEL

sentence. Cf. 18 U.S.C. § 3592(a) (the jury “shall consider

any mitigating factor”).

As a threshold matter, defendants’ argument makes little

sense: regardless of whether the jury found that the proffered

mitigating factors were factually unsupported or that they

simply did not justify a lesser sentence, the final result is the

same. To the extent defendants claim the government’s

statement erroneously asked jurors to entirely ignore the

proffered mitigating factors, their claim is belied by the very

statement they quote, which begins “When you consider each

of these mitigating factors . . . .” If defendants’ contention is

rather with the government’s separation into two steps of

whether a mitigating factor “justif[ies] a lesser sentence” and

what “weight” to give that factor, their argument is still

unavailing. As explained above, the FDPA requires the jury

to determine whether aggravating factors “sufficiently

outweigh” mitigating factors “to justify a sentence of death.” 

18 U.S.C. § 3593(e). The government’s paraphrase of this

language may have been a little clunky, but it did not misstate

the law.25

Third, defendants claim the government improperly

inflamed the passions of the jury by comparing life in prison

to the victims’ deaths. For instance, the government argued

that defendants’ life in prison must be measured “against the

five lives, the five lifetimes of days that have been ripped

away;” that defendants will “get three square meals a day,”

while “[t]he last thing that Meyer Muscatel tasted in his life

was that boot cover that was shoved in his mouth;” that

25 This is particularly true in light of the government’s closing

argument as a whole, which repeatedly stressed jurors’ responsibility to

“weigh” all aggravating and mitigating factors.
UNITED STATES V. MIKHEL 95

defendants’ “privileges” of watching cable television or

reading books in prison are things the victims “only wished

they could do;” and that the jury should show no mercy to

defendants because defendants showed none to their victims.

These statements should never have been made. See

Mitchell, 502 F.3d at 995 (prosecutor should not have made

several comments, such as “Mitchell gets to come before the

jury and say ‘Spare my life.’ . . . I suppose that’s the beauty

of the system. Doesn’t work for the victim.”).26 The

government responds that it was merely trying to rebut

defendants’ argument that prison life was already so harsh as

to be a sufficient sentence. While the government was surely

permitted to argue prison life was less dire than defendants

made it out to be, the government should not have done so by

comparing life in prison to the victims’ deaths. The

comparison was not necessaryto rebut defendants’ arguments

and appears to have been calculated to unnecessarily inflame

the passions of the jury.

That said, we cannot conclude that the government’s

statements so “affected the jury’s ability to consider the

totality of the evidence fairly that it tainted the verdict and

deprived [defendants] of a fair trial.” Sanchez, 659 F.3d at

1257. As in Mitchell, the comments here “were not, in and of

themselves, nearly as inflammatory as the graphic evidence

of the murders, or as powerful as the extensive victim impact

26 See also United States v. Johnson, 495 F.3d 951, 979 (8th Cir.

2007) (prosecutor’s statement “No matter howsmall [the defendant’s] cell

may be, it’s going to be larger than the coffin that [the victims] are laying

[sic] in now” was questionable; but permitting it was not plain error);

Bland v. Sirmons, 459 F.3d 999, 1027–28 (10th Cir. 2006) (it was

improper but harmless for prosecutor to compare defendant’s life in prison

to victim’s plight).
96 UNITED STATES V. MIKHEL

testimony, which was quite properly before the jury.” 

502 F.3d at 995–96 (prosecutor’s comments were not plain

error). Moreover, the jury was clearly instructed that the

government’s argument was neither evidence nor law; that it

must avoid the influence of passion or prejudice; and that it

must weigh all aggravating and mitigating factors. There was

no plain error.

4. Instruction and verdict form on future dangerousness

Defendants claim the jury instruction and verdict form on

the non-statutory aggravating factor of future dangerousness

violated due process and impermissibly intruded on the jury’s

role as fact finder. We review de novo whether the jury

instruction and verdict form violated due process. United

States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). In

addition, we review the district court’s formulation of its

instructions for abuse of discretion. Id. at 898.

The government’s notice of intent to seek the death

penalty included the non-statutory aggravating factor of

“Future Dangerousness of the Defendant.” The notice

indicated the government would prove future dangerousness

in three ways: defendants’ continuing pattern of violence,

their escape risk and institutional misconduct, and their lack

of remorse. Defendants initially submitted a proposed futuredangerousness jury instruction that closely tracked the

language in the government’s notice and specifically referred

to the government’s three methods of proof. The government

submitted a substantially identical proposed jury instruction.

At the jury charge conference, however, defense counsel

changed course and objected to the district court’s futuredangerousness instruction on two grounds. First, defense
UNITED STATES V. MIKHEL 97

counsel argued the factor should be limited to future

dangerousness in federal prison. The court agreed and

altered the factor to read “Future Dangerousness of Defendant

If Confined To A Federal Prison For The Rest Of His Life

Without The Possibility Of Release.” Second, defense

counsel argued that the government’s three allegations

concerning the defendants’future dangerousness—continuing

pattern of violence, escape risk and institutional misconduct,

and lack of remorse—should not appear anywhere in the

instruction or verdict form. The court rejected this argument,

and the final verdict form read:

Instructions: For each of the following

questions, answer “yes” or “no” to the five

numbered questions below. (You need not

answer “yes” or “no” to the lettered

statements contained in question number 1,

which merely describe the government’s

allegation of how the existence of a nonstatutory aggravating factor would be

demonstrated.)

1. Future Dangerousness of Defendant If

Confined To A Federal Prison For The Rest

Of His Life Without The Possibility Of

Release. Do you, the jury, unanimously find

that the government has proved beyond a

reasonable doubt that the defendant is likely

to commit criminal acts of violence in the

future that would constitute a continuing and

serious threat to the lives and safety of others,

including one or more of the following:
98 UNITED STATES V. MIKHEL

a. Continuing Pattern of Violence. The

defendant has engaged in a continuing pattern

of violence, attempted violence, and

threatened violence, including, at least, the

crimes charged in the Second Superseding

Indictment.

b. Escape Risk and Institutional

Misconduct. The defendant poses a future

danger to the lives and safety of other persons,

as demonstrated by his escape risk and

institutional misconduct, including, at least:

defendant’s participation in a conspiracy to

escape from the Metropolitan Detention

Center Los Angeles, California, which was

detected by the government on or about

March 7, 2003, and charged as Count Six in

the Second Superseding Indictment.

c. Lack of Remorse. The defendant has

demonstrated a lack of remorse for the capital

offenses committed in this case, as indicated

by his statements and actions during the

course of and following the offenses alleged

in the Second Superseding Indictment.

ANSWER TO SECTION IV, QUESTION

NUMBER 1:

Yes ____

No ____
UNITED STATES V. MIKHEL 99

The final jury instruction on future dangerousness used

substantially identical language but substituted “as evidenced

by, at least, one or more of the following” for “including one

or more of the following.”

Defendants’ challenge on appeal centers on the three

lettered subheadings describing the government’s futuredangerousness allegations. In the penalty phase, Kadamovas

presented Dr. Mark Cunningham as an expert regarding

future dangerousness in prison. Dr. Cunningham described

several statistical studies of violence in prisons. Among other

things, he opined that, even though a conviction for

conspiring to escape is “a warning factor,” “[h]istory of

escape . . . does not seem to be reliably predictive of violence

in prison;” that “community violence [outside of prison] is

not a reliable predictor of prison violence;” and that given the

prevalence of “antisocial personality disorder” and repeat

offenses among prisoners, “remorse is not going to tell you

anything about who’s likely to be violent in prison.” Dr.

Cunningham concluded that Kadamovas was “quite unlikely

to commit acts of serious violence [if] confined for life in

federal prison,” especially in light of his age, his lack of

serious violence during pretrial custody, the low rate of

serious violence among capital offenders, and the low rate of

serious violence in U.S. penitentiaries.

Based onDr.Cunningham’s testimony, defendants argued

to the jury that none of the three lettered subheadings listed

in the jury instruction and verdict form could predict future

dangerousness. Defendants now contend that the instruction

and verdict form prevented the jury from crediting their

argument and therefore amounted to a “permissive inference

instruction” that violated due process or, at least, was an
100 UNITED STATES V. MIKHEL

abuse of the district court’s discretion in formulating

instructions.

“A permissive inference instruction allows, but does not

require, a jury to infer a specified conclusion if the

government proves certain predicate facts.” Warren, 25 F.3d

at 897–98 (addressing the instruction “If it is shown that the

defendant used a deadly weapon . . . , then you may find, . . .

the existence of the malice”). Such an instruction violates

due process if it suggests a conclusion that “is not one that

reason and common sense justify in light of the proven facts

before the jury.” Id. at 897; see also United States v. RubioVillareal, 967 F.2d 294, 296 (9th Cir. 1992) (en banc) (“A

permissive inference is constitutional so long as it can be said

‘with substantial assurance’ that the inferred fact is ‘more

likely than not to flow from the proved fact on which it is

made to depend.’” (quoting Ulster County v. Allen, 442 U.S.

140, 166 n.28 (1979))). In addition, a district court abuses its

discretion in formulating instructions if “the instructions—

taken as a whole and viewed in context of the entire

trial—were misleading or confusing, inadequately guided the

jury’s deliberations, or improperly intruded on the fact

finding process.” Warren, 25 F.3d at 898.

We assume without deciding that the district court erred

in listing the government’s allegations under the heading of

future dangerousness but conclude that any error in this

regard was harmless. Although defendants claim the

government forfeited harmlessness on this issue, the FDPA

requires that a “court of appeals shall not reverse or vacate a

sentence of death on account of any error which can be

harmless, including any erroneous special finding of an

aggravating factor, where the Government establishes beyond

a reasonable doubt that the error was harmless.” 18 U.S.C.
UNITED STATES V. MIKHEL 101

§ 3595(c)(2). We have held that even where the government

does not argue harmlessness, “we are not foreclosed from

considering prejudice ourselves. Indeed, under the FDPA we

must consider whether error in a sentence of death is

harmless.” Mitchell, 502 F.3d at 977 (emphasis in original). 

In particular, “we may overlook the government’s failure to

mount a harmless error argument when . . . considerations of

length and complexity of the record, certainty of how

harmless the error is, and the consequences of reversal

(‘protracted, costly, and ultimately futile proceedings in the

district court’) counsel in favor of doing so.” Id. at 977–78. 

These reasons strongly support a harmlessness inquiry in this

case. Furthermore, it is not even clear that the government

forfeited harmlessness in this case. Harmlessness was a

consistent theme in the government’s voluminous answering

brief, and though the government did not make a full

harmless-error argument with respect to the specific

instruction and verdict form at issue here, it correctly noted

that any error in this regard was subject “to a harmless error

review.” “[T]he rule of waiver is a discretionary one,” Ruiz

v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.

2012), and even if the FDPA did not require us to review for

harmlessness, we would exercise our discretion to do so here.

Error in a jury instruction or verdict form is harmless if it

is “clear beyond a reasonable doubt that a rational jury”

would have reached the same decision absent the error. 

United States v. Anchrum, 590 F.3d 795, 801 (9th Cir. 2009). 

The evidence of defendants’ future dangerousness was

overwhelming and included the brutal manner in which they

killed Muscatel, Pekler, Umansky, Kharabadze, and Safiev in

four separate incidents over the course of four months; the

cold and premeditated nature of their crimes (including

stopping for dinner on the way to dispose of Umansky’s
102 UNITED STATES V. MIKHEL

body); and their demonstrable indifference to their victims’

suffering (e.g., Mikhel saying Safiev and Pekler were as

difficult to kill as snakes, and Kadamovas laughing about

throwing a “fat Jew” off a bridge). The evidence showed not

only defendants’ violent actions but that they had announced

their intention to continue taking and killing hostages for

financial gain. Once they had been arrested and jailed,

Mikhel and Kadamovas carefully plotted their escape from

prison—a plan that involved other prisoners and that

acknowledged they might have to kill guards on the way

out.27 Mikhel later devised a second, solo escape plan despite

the Special Administrative Measures used to secure him. 

That plan showed similar sophistication and a willingness to

involve criminal organizations with resources outside the jail. 

Although defendants only faced the possibility of the death

penalty while awaiting trial, they proved resourceful,

determined, and desperate to escape incarceration without

regard to the attendant risk to themselves or others.

In assessing harmlessness, we must take into account that

future dangerousness was only one of nine aggravating

factors. Four of those factors were statutory: death during

commission of another crime, procurement of offense by

payment, substantial planning and premeditation, and

multiple killings. 18 U.S.C. § 3592(c). To those the

government added five more non-statutory factors:

contemporaneous convictions for multiple offenses, witness

elimination, emotional suffering of the victims, victim

27 The erroneous admission of Mikhel’s letter penned after

Kadamovas withdrew from the escape conspiracy does not alter this

conclusion. See supra at 80–83. Although the letter was probative of

Kadamovas’s future dangerousness, it was merely a drop in an ocean of

more probative evidence of future dangerousness.
UNITED STATES V. MIKHEL 103

impact, and future dangerousness. Under the FDPA, the jury

had to find at least one of the statutory factors to recommend

the death penalty, and it had to make a specific and

unanimous finding as to any statutory factor found to exist. 

18 U.S.C. § 3593(d). By unanimous vote, the jury found the

existence of every aggravating factor the government

presented, both statutory and non-statutory. The jury

therefore had to weigh these aggravating factors against any

mitigating factor found by one or more jurors. Id. § 3593(d),

(e). In fact, no juror found any mitigating factor. The jury’s

unanimous findings make clear that it had no difficulty

weighing aggravating and mitigating factors: it found

multiple, independent reasons to impose the death penalty,

and no reason in mitigation to spare defendants. We can be

confident that any alleged error in the instruction on the

single non-statutory factor of future dangerousness would not

have changed the verdicts; even if the jury had not concluded

that defendants presented a risk of future danger, it would still

have had eight independent reasons (four statutory and four

non-statutory) to impose the death penalty and no reasons not

to impose it. See Mitchell, 502 F.3d at 977 (claimed error

respecting aggravating factor was harmless; “the jury found

five other statutory aggravating factors; only one is required

. . . [the defendant] remains death eligible even if this one

statutory aggravating factor is disregarded”).

In addition, we note that the district court mitigated any

potential prejudice to defendants by carefully and repeatedly

instructing the jury on its role as fact finder and on its

ultimate responsibility to weigh all aggravating and

mitigating factors in reaching a bottom-line recommendation

of death or a lesser sentence. Given the circumstances of this

case, we have no question the jury would have returned a

finding of future dangerousness and a recommendation of
104 UNITED STATES V. MIKHEL

death even if the instruction and verdict had not listed the

government’sthree future-dangerousness allegations. In sum,

even if we thought there was some flaw in the instructions,

the callous and heinous nature of the defendants’ crimes, their

disregard for life, and their utter lack of remorse, would

“compel[ ] [us] to conclude . . . that it is not reasonably

probable that even one juror would have held out for a life

sentence over death.” Allen v. Woodford, 395 F.3d 979,

984–85 (9th Cir. 2005).

5. Griffin error

Defendants claim the government commented on their

failure to testify at trial in violation of their Fifth Amendment

rights under Griffin v. California, 380 U.S. 609, 611–13

(1965). “A prosecutor’s comment is impermissible if it is

‘manifestly intended to call attention to the defendant’s

failure to testify or is of such a character that the jury would

naturally and necessarily take it to be a comment on the

failure to testify.’” Beardslee v. Woodford, 358 F.3d 560,

586 (9th Cir. 2004). This rule applies equally to trial and

penalty phases. Id. at 587. Defendants preserved their

objection, and we therefore review the alleged Griffin error de

novo. United States v. Inzunza, 638 F.3d 1006, 1022 (9th Cir.

2011).

Defendants claim the government implicitly commented

on their failure to testify in two ways. First, defendants point

to the government’s statements that they never “expressed

remorse,” arguing that the jury inevitably understood the

government as referring to their failure to express remorse

while testifying. Taken in context of the government’s entire

closing argument, these statements clearly referred not to

defendants’ failure to testify but to their conduct during, and
UNITED STATES V. MIKHEL 105

in the months after, the killings. For example, the

government argued: “You heard about the actions that these

defendants took after each of their killings, up to and

including the escape attempts. They’ve never shown

remorse.” Statements such as this did not violate defendants’

Fifth Amendment rights. See Beardslee, 358 F.3d at 586.

Second, defendants challenge the government’s

statements comparing their lack of remorse to Altmanis’s

decision to confess and cooperate. According to defendants,

these statements suggested they lacked remorse by failing to

testify. The statements, however, were made in the context

of comparing the coconspirators’ conduct. For example, the

government argued: “[W]hat I would ask you to do, ladies

and gentlemen, is to compare; compare Ainar Altmanis;

compare his conduct with that of Jurijus Kadamovas.” The

government also noted that “[Altmanis] led the FBI to bodies

they never would have found in this case.” This was relevant

not only to establishing Mikhel and Kadamovas’s lack of

remorse but to rebutting one of their proffered mitigating

factors—i.e., that Altmanis was “equally culpable in the

crime” but would not be punished by death. See 18 U.S.C.

§ 3592(a)(4). Because none of the government’s statements

in this regard would “naturally and necessarily” be

understood as commenting on defendants’ failure to testify,

there was no Griffin error. Beardslee, 358 F.3d at 586–87.

Relatedly, Mikhel claims the same two categories of

statements invited the jury to consider his stricken testimony,

thereby violating the district court’s order striking that

testimony and amounting to prosecutorial misconduct. For

the same reasons given above, the government’s statements

regarding Mikhel’s lack of remorse and Altmanis’s

cooperation clearly referred to the coconspirators’ respective
106 UNITED STATES V. MIKHEL

conduct during and following the killings. The statements did

not refer to Mikhel’s testimony and thus neither violated the

district court’s order that the testimony be stricken nor

constituted prosecutorial misconduct.28

6. Examination of Dr. Mark Cunningham

Kadamovas presented expert testimony from Dr.

Cunningham regarding statistical violence rates in prison. 

While cross-examining Dr. Cunningham, the government

asked the following questions:

Q. I’d like to ask you some questions about

the features that you accounted for in your

base rate studies in reaching your assessment

about Defendant Kadamovas?

A. Yes, ma’am.

28 Defendants also argue the government’s statements violated the

FDPA. The FDPA directs that the jury “shall consider any mitigating

factor,” including whether any “defendant or defendants, equally culpable

in the crime, will not be punished by death.” 18 U.S.C. § 3592(a)(4)

(emphasis added). Defendants ask us to interpret the words “in the crime”

to preclude the government from offering any evidence or argument

regarding a coconspirator’s behavior after the crime (such as Altmanis

cooperating with the FBI’s investigation). But § 3592(a) does not purport

to limit the scope of admissible evidence; rather, it lists several potentially

mitigating factors and ends in a broad catchall for “[o]ther factors in the

defendant’s background, record, or character or any other circumstance of

the offense.” It is § 3593(c) that principally governs the evidence

admissible in capital penalty proceedings, and that section permits the

government “to rebut any information received at the hearing” and to

“present argument as to the adequacy of the information to establish the

existence of any . . . mitigating factor.” The government’s statements did

not violate the FDPA.
UNITED STATES V. MIKHEL 107

Q. What percentage of the people in your base

rate studies were Russian or Lithuanian?

A. I do not know the ethnic origins of the

individuals in these studies. . . .

The government then proceeded to ask Dr. Cunningham

about whether his studies accounted for inmates who

committed more than one murder, committed murder with

premeditation, or were in their mid-30s. The clear intent of

these questions was to suggest that Dr. Cunningham’s studies

were not tailored to Mikhel or Kadamovas.

Kadamovas characterizes the government’s question

about persons of Russian or Lithuanian origin as an appeal to

ethnic prejudice that violated his Fifth Amendment right to a

fair trial. Although he concedes that Dr. Cunningham did not

substantively answer the question, he argues that “the mere

question, with its improper implication, constituted

misconduct.” Neither defendant objected to the question

below, so we review for plain error. See Mitchell, 502 F.3d

at 967.

Kadamovas relies 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, 594 (9th Cir. 2000). In Bains, we

held it was error for a prosecutor to generalize that “all Sikh

persons (and thus Bains by extension) are irresistibly

predisposed to violence when a family member has been

dishonored.” 204 F.3d at 974–75. Likewise, in Cabrera, we

held it was plain error to admit an investigating officer’s

repeated testimony about Cubans being drug dealers and

flight risks. 222 F.3d at 594–96. To the extent the

government’s questioning in this case could be interpreted as
108 UNITED STATES V. MIKHEL

appealing to ethnic or national-origin stereotyping, it was at

most a subtle reference and was not emphasized like the antiSikh references in Bains or the anti-Cuban references in

Cabrera.

29 There was no plain error in permitting the

government’s single question.30

7. Mikhel’s excluded mitigation evidence

Mikhel sought to introduce a number of videotaped

interviews of his friends and family. These were not

depositions: the witnesses were not under oath, and the

government was not represented. The district court admitted

several of the interviews, but excluded all of an interview

with Mikhel’s ex-girlfriend, Marina Karagodina, and a small

part of an interview with Mikhel’s cousin, Edward Mikhel. 

Mikhel claims the exclusion of this evidence violated his

rights under the Eighth Amendment and FDPA. We review

29 Kadamovas also cites the Supreme Court’s decision in Buck. 

137 S. Ct. at 769. In that case, defense counsel called an expert

psychologist who testified the defendant was statistically more likely to

be violent because he was black. Id. The Court held this testimony

supported an ineffective assistance of counsel claim and noted it “would

be patently unconstitutional for a state to argue that a defendant is liable

to be a future danger because of his race.” Id. at 775. Here, by contrast,

Dr. Cunningham did not even give a substantive answer to the

government’s question. Regardless, the government’s question did not

imply defendants were liable to pose a future danger based on their race

or ethnicity.

30 To the extent defendants argue the jury found future dangerousness

because of their national origin, the district court instructed the jury not to

consider national origin, and the jury certified it did not do so. We accept

the jurors’ assurance that no impermissible considerations factored into

the verdict absent substantial indication to the contrary. Mitchell,

502 F.3d at 990.
UNITED STATES V. MIKHEL 109

the exclusion of mitigating evidence for abuse of discretion. 

See 18 U.S.C. § 3593(c); Mitchell, 502 F.3d at 991.

The Eighth Amendment and FDPA protect the right to

present relevant mitigating evidence in capital sentencing

proceedings. 18 U.S.C. § 3593(c); Eddings v. Oklahoma,

455 U.S. 104, 113–15 (1982). “Relevant mitigating evidence

is evidence which tends logically to prove or disprove some

fact or circumstance which a fact-finder could reasonably

deem to have mitigating value.” Tennard, 542 U.S. at 284. 

Under the FDPA, “[i]nformation is admissible regardless of

admissibility under the [Federal] Rules [of Evidence], except

that in the trial judge’s discretion, information ‘may be

excluded if its probative value is outweighed by the danger of

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 things, Karagodina stated in her interview

that she had a good relationship with Mikhel, that Mikhel had

been good to her son from a previous marriage, and that

Mikhel deserved mercy. The district court excluded the

interview entirely, reasoning that Karagodina was being led

by the investigator’s questions, lacked first-hand knowledge

on some issues, gave irrelevant testimony about Mikhel’s

arrest and her feelings toward the police, and could have

traveled from England to the United States to testify in

person. To this list of reasons to exclude the interview, the

government adds that much of what Karagodina said in 2002

was no longer true by the time the penalty phase began in

2007. The government cites a 2005 interview in which

Karagodina called Mikhel a “scary man” and said that he had

threatened her, that she had switched phone numbers because
110 UNITED STATES V. MIKHEL

of him, and that she had changed her daughter’s last name

from “Mikhel” to “Karagodina.”

Parts of the Karagodina interview spoke to Mikhel’s

character and background and thus were at least marginally

relevant. See 18 U.S.C. § 3592(a)(8). Nevertheless, the

district court was within its discretion in excluding the

interview for its danger of creating unfair prejudice,

confusing the issues, or misleading the jury. See Mitchell,

502 F.3d at 991. As the district court explained, many of

Karagodina’s statements “were, at best, gratuitous remarks or

coached answers by defense investigators.” Moreover, had

the interview been admitted, the government would have had

no opportunity to cross-examine Karagodina on her alleged

involvement in Mikhel’s crimes and bring to light her

changed attitude toward Mikhel. Although it might not have

been an abuse of discretion to admit the interview, we hold

the district court did not abuse its discretion in excluding it. 

Cf. United States v. Taylor, 814 F.3d 340, 363 (6th Cir. 2016)

(mitigation evidence may have been admissible, but it was

not an abuse of discretion to exclude it).

The district court admitted most of Edward’s interview

but excluded a small portion at the end in which he stated:

“The only thing I ask for to be merciful, the court to be

merciful. Maximum merciful as it is possible to my cousin,

to my relative. What else can I say? To be merciful, to be

merciful.” It seems Edward did not know Mikhel well, and

defense counsel conceded Edward had not seen Mikhel for

years. The district court reasoned that Edward’s plea for

mercy was irrelevant because it was “not a mitigating factor”

but “just a personal plea on behalf of the witness who has no

knowledge of what transpired here.”
UNITED STATES V. MIKHEL 111

Mikhel argues on appeal that a bare plea for mercy is

relevant mitigating evidence under our decision in Mitchell. 

But that case does not help him. In Mitchell, we held the

district court “drew a fine, but appropriate, line” by admitting

testimony regarding witnesses’ “affection for [the defendant]

and their wish for his life to be spared,” while excluding

testimony offering “an opinion about what they thought the

jury’s verdict should be.” 502 F.3d at 991. Here, Edward’s

plea for mercy—particularly in light of his apparently limited

relationship with Mikhel—was essentially an opinion about

what the jury’s verdict should be. The plea did not bear on

Mikhel’s character, prior record, or the circumstances of his

offense. The district court did not abuse its discretion in

excluding it.31See id.; see also Lockett v. Ohio, 438 U.S. 586,

604 n.12 (1978) (reaffirming “the traditional authority of a

court to exclude, as irrelevant, evidence not bearing on the

defendant’s character, prior record, or the circumstances of

his offense”).

8. Kadamovas’s future dangerousness

Kadamovas claims the evidence was insufficient for the

jury to find that he presented a risk of future dangerousness

if confined to prison. As described above, Kadamovas

offered Dr. Cunningham as an expert witness on future

dangerousness. Dr. Cunningham presented statistical studies

of violence rates in prisons and opined that Kadamovas was

“quite unlikely to commit acts of serious violence [if]

31 Moreover, any error in this regard was harmless for the reasons

explained above, particularly in light of the minimal to nonexistent

probative value of Mikhel’s proffered mitigation evidence. See McKinney

v. Ryan, 813 F.3d 798, 821 (9th Cir. 2015) (en banc) (reviewing the

exclusion of mitigating evidence for harmlessness).
112 UNITED STATES V. MIKHEL

confined for life in federal prison,” given his age, his lack of

serious violence during pretrial custody, the low rate of

serious violence among capital offenders, and the low rate of

serious violence in U.S. penitentiaries. Kadamovas now

argues that, in light of Dr. Cunningham’s purportedly

“unrebutted” testimony, there was no basis for the jury to find

against him with respect to the non-statutory aggravating

factor of future dangerousness. We review for whether any

rational trier of fact could have found this factor beyond a

reasonable doubt. See United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc).

Kadamovas simply overlooks the fact that the

government’s penalty-phase case incorporated all of its guiltphase evidence, which included the gruesome means by

which Kadamovas participated in killing five people; his

callous remarks about the victims; his statement that he

would continue taking hostages even if it meant piling bodies

up to the surface of the reservoir; and his conviction for

conspiring to escape custody. There was no shortage of

evidence suggesting that Kadamovas presented a risk of

future dangerousness if confined to prison. Although the

government did not present its own expert to contradict Dr.

Cunningham, it was not required to do so. The jury did not

have to find Dr. Cunningham’s statistical studies or opinion

testimony persuasive. Dr. Cunningham presented statistics

related to the probability that persons with certain

characteristics would be dangerous in the future. He did not,

and could not, testify that Kadamovas would not be

dangerous in the future. The jury could certainly have found

that Kadamovas’s own conduct was more probative of his

future dangerousness than Dr. Cunningham’s statistics about

future dangerousness generally. Thus, the jury could have

reasonably relied on the government’s guilt-phase evidence
UNITED STATES V. MIKHEL 113

to conclude that Kadamovas presented a risk of future

dangerousness beyond a reasonable doubt.

9. Nazi and anti-Semitism evidence

Kadamovas claims the government improperlyintroduced

“Nazism and anti-Semitism evidence” and prejudicially

portrayed him “as an anti-Semitic Nazi sympathizer.”32

Specifically, he argues the admission of (1) an antique dagger

with swastikas on the handle and (2) testimony that he

described a victim as a “fat Jew,” along with the

government’s references to that testimony during argument,

violated his constitutional and statutory rights. As

Kadamovas only objected to the dagger below, we review the

first challenge for abuse of discretion, and the second

challenge for plain error. See Mitchell, 502 F.3d at 967.

Coconspirator Krylov purchased the dagger at Mikhail

Gurevich’s pawn shop, which defendants used to launder

ransom money. Later, the FBI found the dagger at

Kadamovas’s home. Over Kadamovas’s objection, the court

ruled the dagger relevant and admissible to connect him to the

money-laundering conspiracy. Kadamovas requested that the

government “not focus or highlight the swastika on the

dagger,” and the court agreed the prosecution should not do

so. As a result, the prosecution never used the words “Nazi”

or “swastika” before the jury.

The dagger was admitted through the testimony of an FBI

agent who referred only to its “distinct markings.” Weeks

32 Kadamovas argues that these harms were exacerbated by the

improper victim-impact evidence touching on Muscatel’sJewish faith. As

explained above, the victim-impact evidence was properly admitted.
114 UNITED STATES V. MIKHEL

later, Gurevich testified and mentioned the swastikas on the

handle in identifying the dagger as the one Krylov had

purchased. The court denied Kadamovas’s motion for a

mistrial based on this testimony, noting there was no risk of

prejudice as the dagger had been introduced into evidence

and the jurors would see it when given the exhibits. 

Kadamovas did not ask for a limiting instruction or object to

the dagger’s consideration during the penalty phase, during

which it was never mentioned.

The dagger was relevant to prove the existence of a

conspiracy to commit money laundering and admissible

under both the Federal Rules of Evidence and the FDPA. The

district court did not abuse its discretion in balancing the

evidence’s probative value against its potential for unfair

prejudice, and minimized any potential prejudice by

instructing the government not to refer directly to the

swastikas—which the government did not do at any time. 

The only mention of the swastikas to the jury came from

Gurevich, who did so in the context of explaining why he was

able to identify the knife from Kadamovas’s house as the one

he had sold years before to Krylov (a fact to which

Kadamovas did not stipulate).

Kadamovas also argues that admitting the dagger

implicated his First Amendment rights. His argument is

perplexing because he does not claim to hold any protected

belief or association regarding Nazism, but rather denies he

is a Nazi sympathizer. Regardless, his argument is without

merit. In Dawson v. Delaware, the Supreme Court held that

admitting evidence relating to the defendant’s membership in

the Aryan Brotherhood that was “totally without relevance”

violated the defendant’s First Amendment right to

association. 503 U.S. 159, 165 (1992). Dawson concluded
UNITED STATES V. MIKHEL 115

that “the Constitution does not erect a per se barrier to the

admission of evidence concerning one’s beliefs and

associations at sentencing simply because those beliefs and

associations are protected by the First Amendment,” but that

such evidence must be relevant. Id. Here, the dagger was

relevant to Kadamovas’s participation in the conspiracy, and

Gurevich’s testimony was relevant to the dagger’s

identification. There was no abuse of discretion in admitting

this evidence.

We turn next to Kadamovas’s challenge to Markovskis’s

testimony that he referred to a victim as a “fat Jew.” In the

guilt phase, Markovskis testified that Kadamovas laughingly

described throwing a “fat Jew” (i.e., Muscatel) off a bridge. 

Markovskis said Kadamovas “didn’t mention the name of the

person, he described him only as a fat Jew, fat, heavy

person.” The government briefly referred to this testimony in

its guilt and penalty-phase opening statements and closing

arguments. It was not plain error to admit Markovskis’s

testimony, which was relevant to identifying Muscatel as

Kadamovas’s unnamed victim. Similarly, the government’s

reasonable repetition of Kadamovas’s words was permissible

to argue both Kadamovas’s connection to Muscatel’s death

and his lack of remorse.

Contrary to defendants’ assertions, the government did

not use Markovskis’s testimony to inflame the passions of the

jury or as improper propensity evidence. While a

prosecutor’s “appeal[ ] to racial, ethnic, or religious

prejudice” against a defendant violates the Fifth Amendment

right to a fair trial, Cabrera, 222 F.3d at 594, no such appeal

was made here in eliciting testimony from a coconspirator

that connected Kadamovas to one of the charged acts and

bore on an aggravating factor. We have also recognized that
116 UNITED STATES V. MIKHEL

“race or ethnicity is relevant and not prejudicial” when used

for identification purposes. Id. at 597 (emphasis added). It

was therefore not plain error to allow Markovskis’s testimony

or the government’s references to it.

10. Kadamovas’s mitigating factors

Kadamovas proffered nine mitigating factors, including

the statutory mitigating factor that he had no prior criminal

record (which he claims the government conceded below). 

He argues that the jury’s failure to find even this one

mitigating factor demonstrates that it disregarded its statutory

obligation to “consider” mitigating factors and therefore

rendered an “arbitrary” verdict.

“Neither the FDPA nor [the Constitution] require a capital

jury to give mitigating effect or weight to any particular

evidence.” United States v. Basham, 561 F.3d 302, 337 (4th

Cir. 2009); accord United States v. Lawrence, 735 F.3d 385,

426 (6th Cir. 2013); United States v. Paul, 217 F.3d 989,

999–1000 (8th Cir. 2000). “There is no constitutional

requirement that the jury find a mitigating factor even when

it is supported by uncontradicted evidence.” United States v.

Higgs, 353 F.3d 281, 327 (4th Cir. 2003). Nor does the

FDPA’s “shall consider” language impose any such

requirement. See 18 U.S.C. § 3592(a); see also Higgs,

353 F.3d at 327 (noting that § 3592(a) requires the jury to

consider mitigating factors but nevertheless holding the jury

need not find any mitigating factor). Rather, our concern in

this regard is whether “there exists a reasonable likelihood

that the jurors believed themselves precluded from

considering relevant mitigating evidence.” Paul, 217 F.3d at

1000. Here, the jury was allowed to consider all of

Kadamovas’s relevant mitigating evidence. It was not
UNITED STATES V. MIKHEL 117

required to find any mitigating factor based on that

evidence.33

Moreover, the jury’s failure to find that Kadamovas had

no prior criminal record was reasonable. Kadamovas’s only

evidence in this regard was a letter from the Lithuania

Department of Informatics and Communications stating that

it had no “records of criminal activities or law suits in the

name of Mr. Jurijus Kadamovas.” Kadamovas offered no

testimony about the letter’s reliability, who wrote it, or what

it meant. The letter does not prove that Kadamovas had no

prior criminal record. It only showed that one agency in his

home country had no such record; it said nothing about the

reliability of the evidence or its implications for records in

other jurisdictions. Furthermore, the government did not

concede the point: at most, the prosecutor said it was

“[m]aybe” true Kadamovas had no record, “but he sure made

up for lost time.” Defendants bore the burden of proving

mitigating factors by a preponderance of the evidence, see

18 U.S.C. § 3593(c), and a reasonable trier of fact could have

found that Kadamovas failed to prove he had no prior

criminal record, cf. Lawrence, 735 F.3d at 421 (“Speculation

is insufficient to show arbitrary influence; there must be some

basis for concluding that emotion rather than reason swayed

the jury.”).

33 Even if the jury had found that Kadamovas lacked a prior criminal

record (or that there was at least no evidence he had a prior criminal

record), the jury still would have been required to weigh that mitigating

factor against all the aggravating factors it found to exist. See 18 U.S.C.

§ 3593(e). Nothing in the FDPA, the jury instructions, or the verdict form

required the jury to treat the lack of a prior criminal record as sufficiently

mitigating to render the imposition of the death penalty unjustifiable.
118 UNITED STATES V. MIKHEL

11. Lithuania’s abolition of the death penalty

Kadamovas proposed the following mitigating factor:

“Jurijus Kadamovas is a citizen of Lithuania, a country which

has abolished the death penalty.” The government argued

that Lithuania’s abolition of the death penalty was unrelated

to the offense, the circumstances of the offense, or

Kadamovas, and therefore was not a relevant factor. The

district court agreed and rejected the proposed factor. 

Kadamovas claims the exclusion of this factor and related

evidence violated his statutory and constitutional rights. We

review the exclusion of mitigating evidence for abuse of

discretion. See 18 U.S.C. § 3593(c); Mitchell, 502 F.3d at

991.

As previously noted, the Eighth Amendment and FDPA

protect the right to present relevant mitigating evidence in

capital sentencing proceedings. Eddings, 455 U.S. at 113–15;

18 U.S.C. § 3593(c). A capital jury cannot be precluded from

considering as mitigating evidence “any aspect of a

defendant’s character or record and any of the circumstances

of the offense that the defendant proffers as a basis for a

sentence less than death.” Lockett, 438 U.S. at 604 & n.12. 

But evidence that does not bear on the defendant’s character,

prior record, or the circumstances of the offense may be

excluded as irrelevant. Id.; Tennard, 542 U.S. at 284–86;

Hamilton v. Ayers, 583 F.3d 1100, 1132 (9th Cir. 2009)

(“[V]irtually no limits are placed on the relevant mitigating

evidence a capital defendant may introduce concerning his

own circumstances.” (emphasis added) (quoting Payne,

501 U.S. at 822)).

Kadamovas contends Lithuania’s abolition of the death

penalty is relevant because it relates to (1) his background as
UNITED STATES V. MIKHEL 119

a Lithuanian citizen and (2) the circumstances of his offense,

as his status as a foreign national was an element under

18 U.S.C. § 1203. But the excluded mitigating factor was not

evidence of Kadamovas’s citizenship; it was rather evidence

of Lithuania’s abolition of the death penalty. Kadamovas’s

citizenship may well have been relevant to his background,

and indeed, one of the mitigating factors the jury considered

was that he “was raised under a communist system of

government that devalued the life of the individual.” In

contrast, Lithuania’s abolition of the death penalty has no

bearing on Kadamovas’s character, his prior record, or the

circumstances of his offense. Kadamovas’s proposed factor

was irrelevant.

In analogous cases, the Fourth and Sixth Circuits have

held that a federal capital defendant’s ineligibility for the

death penalty under state law is not relevant mitigating

evidence. Higgs, 353 F.3d at 328; United States v. Gabrion,

719 F.3d 511, 520–23 (6th Cir. 2013) (en banc). As the Sixth

Circuit explained:

That Michigan lacks a death penalty . . . has

nothing to do with Gabrion’s background or

character. It has nothing to do with the

reasons why he chose to kill Rachel

Timmerman. It has nothing to do with the

utter depravity of the manner in which he

killed her. And above all it has nothing to do

with his culpability for that offense or with

any other consideration the Supreme Court

has ever flagged as mitigating.

Gabrion, 719 F.3d at 522. The location of the offense on

federal land may have been relevant to the circumstances of
120 UNITED STATES V. MIKHEL

the offense in those cases, but that did not make it relevant

mitigating evidence that the defendant would not have been

eligible for the death penalty under different law. To hold

otherwise would simply be an invitation to jury nullification. 

See United States v. Gabrion, 648 F.3d 307, 362–63 (6th Cir.

2011) (Batchelder, C.J., concurring in part and dissenting in

part) (“Gabrion’s counsel would urge the jurors to disregard

federal law in favor of Michigan law and decline to impose

the death penalty because it would be unavailable under

Michigan law.”), reh’g en banc granted, opinion vacated

(Nov. 17, 2011), on reh’g en banc, 719 F.3d 511 (6th Cir.

2013).

Kadamovas cites our decision in Mitchell, in which a

letter from the Navajo Nation opposing capital punishment

both as a general matter and specifically as to the defendant

was admitted as mitigating evidence. 502 F.3d at 989. Even

though the Navajo Nation’s opposition to the death penalty

was not proffered as a mitigating factor, seven of the jurors

wrote on the verdict form that they found it to be an

additional mitigating factor. Id. at 974, 989. Given that

Mitchell involved an intra-Indian crime committed in Navajo

territory, id. at 946–49, the fact that the Navajo Nation

opposed the death penalty for Mitchell personally may have

been relevant. That does not suggest, however, that the

general laws of Lithuania were relevant in this case.34

Lithuanian law had nothing to do with Kadamovas’s

34 Kadamovas asserts on appeal that Lithuania does oppose the death

penalty for him personally, citing a 2012 letter expressing the Lithuanian

Embassy’s position against the death penalty. We need not decide

whether that letter would have been relevant had it been written before

trial and proffered below. The evidence Kadamovas proffered to the

district court was not Lithuania’s opposition to the death penalty for him

personally but its abolition of the death penalty generally.
UNITED STATES V. MIKHEL 121

background, character, or offense. It was not relevant

mitigating evidence, and the district court did not abuse its

discretion in excluding Kadamovas’s proffered mitigating

factor. See Lockett, 438 U.S. at 604 & n.12.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.