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76 F. 3d 1087 - United States v. McCullah

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76 F3d 1087 United Stat es v. McCull ah

76 F.3d 1087

UNITED STATES of America, Plaintiff-Appellee,

v .

John J av ilo McCULLAH, Defendant-Appellant.

No. 93-71 18.

United States Court of Appeals,

Tenth Circuit.

Feb. 5, 1 996 .

Gary Peterson, Oklah oma City , Oklahoma (Stephen J. Gr eubel and Stephen J. Knorr of Office of Federa l

Public Defender, Tul sa, Oklahoma, w ith h im on the brief), for defendant -appellant .

Robert J. Er ickson, Depart m ent of Justice, Washing ton, DC (John Raley , United States Attorney ,

Sheldon J. Sperling a nd Paul G. Hess, Assistan t United States Att orn ey s, Muskogee, Oklahoma , w ith

him on th e brief), for plain tiff-appellee.

Before SEYMOUR, Ch ief Judge, A NDERSON and KELLY, Circu it J udges.

PAUL KELLY, Jr ., Circuit Judge.

1

Th is appeal challenges a death sentence imposed under the Anti-Drug Abuse Act of 1988, 21 U.S.C.

848(e). Defendant-appellant John Jav ilo McCullah was convicted of drug conspiracy , 2 1 U.S.C. 84 6

(Count 1 ); conspiracy , 1 8 U.S.C. 37 1 (Count 13 ); interstate trav el with intent to comm it mur der, 1 8

U.S.C. 1 958, 2 (Count 1 4); and mu rder in furthera nce of a continuing crimina l enterprise, 21 U.S.C.

848(e) and 1 8 U.S.C. 2 (Count 1 6), an d sentenced to death on the capital m urder cha rge. Mr.

McCullah a ppeals both h is conv iction and sentence on the capital ch ar ge as well as his conv ictions and

sentences on other r elated coun ts. We affirm all of Mr. McCulla h's conv ictions, but w e rem and th e case

for r esentencin g.

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http://openjurist.org/76/f3d/1087/united-states-v-mccullah 2

Background

2

This case ar ises from t he act iv ities of a lar ge Californ ia-based dru g organ ization m ana ged by J oseph

"Eddie" Ar v izu. The Arv izu orga nization distributed cocaine and m ar ijuan a acr oss th e count ry in

tr ucks. Members of the org anization inclu ded: Ray Molina, Mr. Ar v izu's cousin an d confidante; Norw ood

Hutching, an Oklahoma ranch er and businessma n w ho ov ersaw the cr oss-countr y tran sporta tion;Tony Wiscowiche, a close confidante of Mr. A rv izu; Thomas "Stim ey " Sanch ez, a g uar d and occasional

drug cour ier; and Gabriel Lozano, another gua rd and courier.

3

In April 1 99 1 , a pickup truck containing nearly 1 00 kilogram s of cocaine was stolen from the Arv izu

org anization by J am es Shiew, one of the org anization's cross-countr y driv ers. The tru ck wa s parked at

the Hulbert , Oklahoma , residence of Rut h Ford at t he tim e of the th eft. Upon lear ning of the tr uck's

disappearan ce, Mr. Hutching launch ed a search, offering a rewar d for t he tr uck's recov ery . Both Mr.

Hutch ing an d Mr. Ar v izu questioned Mr. Shiew a bout t he theft, but h e skillfully div erted suspicion

from him self and instead im plicated a ma n nam ed Av ery Rogers. Mr. Rogers, wh o operated a

com bination used car lot and pig farm , wa s a friend of Rut h Ford, from w hose residence the t ru ck ha d

been stolen. Mr. Hutching an d Mr. Ar v izu soon began to suspect that Mr. Rogers an d Ms. Ford were

beh ind the theft .

4

The Arv izu organization, led by Mr. Arv izu h imself, set up headquarters in Tulsa, Oklahoma, t o ov ersee

the r ecov ery of the stolen drug s. The org anization att empted to kidnap Ms. Ford and m ake her r ev ealthe w her eabout s of the dru gs, but t his plan w as thw ar ted wh en Ms. Ford refused to open her door.

5

Mr. Arv izu's next plan inv olv ed an att empted kidnapping and tortur e of Mr. Rogers. This plan w as

abandoned wh en one of Mr. Rogers' farm anim als began m aking noise, betray ing t he kidnappers'

presence.

6

Mr. Ar v izu then decided to att empt a roadside ambu sh of Mr. Rogers. As Mr. Rogers drove h ome along a

wooded r oad in his truck, a ca r blocked t he r oad a head of him while a v an blocked t he r ear. Mr . Molina

and Mr. Sanch ez emer ged from the ca r a nd began firing at Mr. Rogers. Mr. Rogers backed his tr uck off

the r oad out of the am bush and ev entu ally smashed his tr uck int o a tr ee in the woods. Under cov er of

the w oods, Mr. Rogers retur ned to his home on foot and notified the police. After the fail ur e of th is

am bush, Mr. Ar v izu and his party retur ned to California.

7


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Mr. Arv izu continued to plot ag ainst Mr. Rogers after h is retur n to California. In May 1 99 1 , Mr. Ar v izu

hir ed thr ee non-English-speaking Mexican g unm en--"pistoleros"--and had Mr. Wiscowich e driv e th em to

Oklahoma . Meanwh ile, Mr. Molina recru ited Joe Mendoza and Mr. McCullah in California t o assist in

the r ecov ery of the stolen drug s. Mr. McCulla h, Mr. Molina, Mr. Mendoza, and Mr. Sanch ez all drov e

from California to Oklahoma t ogether in late May .

8

Mr. Molina's gr oup rendezv oused with t he pistoleros at a lake house in Wagoner, Oklahoma . They wer e

joined there by tw o other Mexican na tionals, br inging th e tota l t o fiv e: Poncho, Ca rlos, J uan , Mikey ,

and Roberto. Mr. Arv izu an d Mr. Hut ching ar riv ed at the lake house shortly thereafter, th e latter

bringing a la rge ca ch e of fir earm s. Mr . A rv izu an d Mr. Hutc hing th en departed the lake h ouse, nev er to

return.

9

The gr oup rem ained at t he lake h ouse for about t wo weeks under the superv ision of Mr. Molina. During

that time, severa l plans were dev ised to kill Mr. Rogers. The initial plan, form ulated by Mr. Arv izu an d

Mr. Molina, w as to kidnap and tortur e Mr. Rogers unt il he rev ealed the wher eabout s of the drug s, then

kill him . A second plan, suggested by Mr. Molina, wa s to go to Mr. Rogers' used car lot and kill ev ery one

ther e and th en to go after Ms. Ford. Th e plan finally adopted, designed by either Mr. Wiscowiche and

Mr. McCullah, or by Mr. Sanch ez, Mr. McCullah a nd Ponch o, was to lur e Mr. Rogers awa y from the u sed

car lot and kill him . Mr. McCullah, being the lone non-Hispanic, v olunteered to act a s th e lure,

reasoning tha t h e would arouse less suspicion th an t he others.

1 0

The group then u ndertook the necessary prepara tory steps. Mr. Wiscowiche and Mr. McCullah , actin g

on Mr. A rv izu's instr uct ions, purc hased a total of four used v ehicles for t he operat ion. A t Mr. Molina's

direction, Mr. McCulla h an d Mr. Wiscowich e also purch ased am mu nition for th e v ar ious weapons, and

Mr. Wiscowiche cleaned th e weapons. Mr. Wiscowich e, Mr. McCullah , an d Ponch o drove ar ound the

region and selected an appropriate am bush site. Mr. McCullah , accompan ied by Mr. Wiscowiche,

reconnoitered th e area ar ound the used car l ot. Finally , Mr. Wiscowich e attem pted to cut t he telephone

line leading to Mr. Rogers' car lot, but inadv ertantly only cut t he ground wire.

1 1

On June 3 , 1 99 1 , Mr. McCullah , posing as a prospectiv e custom er, m et Mr. Rogers' at h is used car l ot.

Mr. Rogers took Mr. McCullah for a test driv e in a Pontia c Fiero, driv ing out t o th e am bush site. At th e

conclusion of the test driv e, Mr. McCullah stated tha t h e would return later t hat day , but he failed to do

so. Mr. McCulla h r eport ed back to the lake h ouse tha t Mr. Rogers wa s "going for t he bait. "

1 2

The next m orning, Mr. Molina depart ed for Los Ang eles. He gav e Mr. Wiscowiche $5000 to distr ibute


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am ong t he people rema ining a t th e lake house, with $2000 to go to Mr. McCulla h. Mr. Wiscowich e

distr ibuted the m oney as directed.

1 3

Pursuant to the am bush plan explained by Mr. McCullah and Poncho, the other part icipants drov e to

their assigned places. Mr. McCullah retu rned to Mr. Rogers' used car lot, chose another car and asked to

test driv e it. Una ble to accompany him , Mr. Rogers asked one of his employ ees, Jew ell Leon Collins,primar ily a detail m an, to accompany Mr. McCullah on th e test driv e. Mr. Collins bore no resemblance

to Mr. Rogers. Regar dless, Mr. McCulla h departed the lot with Mr. Collins in a 1 97 5 Chev rolet.

1 4

Mr. McCullah drov e the Chev rolet to the prear ra nged am bush site wit h Poncho and Carlos following

them in another car . Mr. Mendoza and Juan w ere already on-site in another car to pick up the gu nm en.

Upon ar riv al at the am bush site, Mr. McCullah stopped the car and quickly exited the v ehicle, leav ing

Mr. Collins in th e v ehicle. At the same tim e Poncho emerged from th e trailing ca r, r an t o the Chevr olet,

and fired a single shot at point-blank ra nge int o Mr. Collins' head, killing h im in stantly . Mr. McCullah

drove aw ay in Ponch o and Carlos's car, w hile Ponch o and Carlos joined Mr. Mendoza an d Juan in th e

wai ting v ehicle. Th e four drov e ont o a n earby dir t road a nd disca rded their fir earms in the

undergrowth.

1 5

The entire gr oup except for Mr. McCullah, who apparently retur ned to California by himself,

rendezvoused at a r estau ran t in Wagoner, Oklah oma, an d then proceeded to th e Tulsa airport. Mr.

Wiscowich e, Carlos and Ponch o flew back to Los An geles, an d the oth ers returned by ca r or bus.

1 6

Soon after the m urder, t he Ar v izu organization's drug trafficking operation cam e under th e scrutiny of

Californ ia la w enforcemen t officials. As the in v estiga tion progressed, som e mem bers of the orga nization,

inclu ding Mr. Lozano, Mr. Wiscowich e and Mr. Shiew , w ere persuaded to come forw ard a nd cooperate

with th e in v estiga tion. Th is allowed the FBI to piece toget her what happened in Oklah oma and led to

the ev entu al ar rest and 29 -count superseding indictm ent of Mr. McCullah , Mr. Molina, Mr. Mendoza,

Mr. Sanchez, and Mr. Hutching . Mr. Arv izu fled to Mexico in Jan uar y 1 99 2 a nd has not been seen

since. Before th e tria l began, Mr. Mendoza negotiated a plea barga in in r etur n for h is cooperat ion an d

trial testimony.

1 7

Aft er a one m onth tria l, th e ju ry foun d Messrs. Molina, Sanc hez and McCu llah gu ilty on a ll count s with

which th ey were ch arged, respectiv ely , a nd Mr. Hutch ing guilty on a ll count s except count s 26 and 27 .

The governm ent sought the death penalty against Messrs. Hutching, Molina and McCullah. The jur y

separately considered the death penalty for each defendant, beginning w ith Mr. Hutching, then Mr.


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Molina, an d finally Mr. McCullah. The jury rejected the death penalty as to Mr. Hutch ing and Mr.

Molina, but sentenced Mr. McCullah t o death.

1 8

Mr. McCullah filed a tim ely notice of appeal, a lleging num erous errors in both the g uilt a nd penalty

phases of his tr ial.

Discussion

Guilt Phase Challenges

I. Assista nce of Coun sel

1 9

Mr. McCullah cla ims tha t th e district court comm itted mu ltiple errors in its prov ision of coun sel for

him . Mr. McCulla h ar gu es th at tw o counsel were not properly appointed, tha t his coun sel were not

"learn ed in the la w", and th at his counsel operat ed under a conflict of interest. The construct ion of

statu tes regar ding th e appointm ent of counsel in ca pital ca ses is a lega l question subject to de nov o

rev iew. United States v. Walker, 947 F.2d 1439, 1 441 (10th Cir.199 1 ). The trial court's ruling on

whether to appoint addi tiona l coun sel bey ond t hose requir ed by sta tu te is r ev iew ed for an abuse of

discretion. United States v . Steel, 759 F.2d 706, 7 1 0 (9th Cir.1 985). The trial court's determ ination

rega rding a conflict of inter est is subject to de nov o rev iew. United States v. Mar tin, 965 F.2d 839, 841

(10 th Cir.1 99 2). Subsidiary factual findings concerning th e disqualification of an at torney a re

rev iewed for clear error. Martin, 9 65 F.2d at 841 ; United States v . Collins, 920 F.2d 619, 628 (10th

Cir.1 990), cert. denied, 500 U.S. 920, 1 1 1 S.Ct. 2022 , 1 1 4 L.Ed.2d 1 08 (19 91 ).

A. Appointment of Coun sel

20

Under 1 8 U.S.C. 3 005, t he defendant in a ca pital case is entitl ed, upon request, to the appointm ent of

two defense counsel. 18 U.S.C. 3 005. In this case, the t rial court actua lly appointed only one lawy er,

the Federal Public Defender, to represent Mr. McCullah . Howev er, Mr. McCullah failed to object on this

ground below, so his claim is rev iewable only for plain er ror. United Stat es v . Olano,507 U.S. 7 25, 730-

32, 1 13 S.Ct. 17 7 0, 17 76 , 123 L.Ed.2d 508 (19 93).

21

Before and during the tr ial Mr. McCullah w as represented by Mr. Greubel and Mr. Bry ant, both of the

Federal Public Defender's office. Only Mr. Br y ant wa s identified as Mr. McCulla h's appointed counsel in

the docket sheet, but the court w as inform ed that both Mr. Greubel and Mr. Bry ant would jointly

represent Mr. McCullah. Although no formal appointment was entered designating Mr. Greubel as Mr.

McCullah's counsel, th is clerical ov ersight does not am oun t t o plain er ror. See Fed.R.Crim .P. 52(b). Mr.
http://openjurist.org/507/us/725http://openjurist.org/920/f2d/619http://openjurist.org/965/f2d/839http://openjurist.org/759/f2d/706http://openjurist.org/947/f2d/1439


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McCullah has failed to make any showing th at t he lack of a form al appointm ent affected his

representation or his substantive rights.

22

Mr. McCullah a lso claim s th at t he tr ial court er red in failing to appoint additional counsel for him at h is

request. The t rial court denied Mr. McCullah 's motion for additional counsel, finding t ha t "[t]he

defendant h as ver y adequate representat ion by ex perienced tr ial counsel...." While this was a com plexand difficult case, the tr ial court found Mr. McCullah 's two coun sel up to the ta sk, and in ligh t of th e

record we ca nnot say that this finding is clearly erroneous. Cf. Collins, 9 20 F.2d at 6 28. Thus, we find

tha t th e tria l court did not abu se its discretion in declining to appoint a dditional counsel. See Steel, 7 59

F.2d at 71 0.

B. Lear ned in th e Law

23

Under 1 8 U.S.C. 3 005 as it existed at t he tim e of Mr. McCulla h's tr ial,1a capital defendant is entit led

to "counsel learned in t he law ." 1 8 U.S.C. 3005 (1 982 ). Mr. McCullah ar gues that the phra se "learned

in the law" requires that counsel have prior capital punishment experience. We disagree.

24

The plain m eaning of the phra se "learn ed in th e law" refers to a person wh o ha s receiv ed a regula r lega l

education, generally signified by admission to the bar . See Black's Law Dictionary 889 (6th ed. 1 99 0).

The plain m eaning of the phr ase does not im ply any specialized death penalt y experience. If Congr ess

intended that coun sel be learned in th e law a pplicable to capita l cases, it could hav e so stated, wh ich itdid when it amended the statute in 1994. See 18 U.S.C. 3005. Despite Mr. McCullah's contention to

the contrary , the 1 994 amendment did not m erely "clarify " the law but rather substantiv ely changed

it, creating a new requirement which previously had not existed.

25

Further evidence that the form er 3 005's "learned in the la w" requirem ent referred only to law

generally is found in 2 1 U.S.C. 848(q)(5). Under 21 U.S.C. 848(q)(5), enacted in 1 988 , a ca pital

defendant is entitled to at least one attorney wh o has been admitt ed to pra ctice for at least five y ears

and ha s at least thr ee yea rs' experience in th e actu al tr ial of felony prosecutions. Id. If the form er

30 05's "learn ed in th e law" requir ement referred to capita l punishm ent experience, as Mr. McCulla h

conten ds, Congr ess would har dly h av e created a special expert ise requir ement fr am ed in term s of

"felony prosecutions" in a lat er stat ut e.

26

Mr. McCullah 's counsel wer e both experienced public defenders wh o had been admit ted to pract ice for

ten y ears. While they ma y hav e lacked capital punishment experience, Mr. McCullah does not


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challenge th eir general pract ice or felony litigation cr edentials. We find that Mr. McCullah was

properly represented by counsel "learn ed in th e law" under the form er Section 3 005.

C. Conflict of Int erest

27

Mr. McCullah contends that h is Sixth A m endment righ t to counsel was v iolat ed because of a conflict ofinter est on the par t of his counsel. Rodger Emberson, a prospectiv e gover nm ent w itness, w as being

represented by Mr. Nigh , an oth er assistant in th e sam e federal public defender office that represented

Mr. McCullah. Mr. McCullah argues that this representation disqualified all members of that federal

public defender office. He furt her conten ds th at the pr ospect of Mr. Emberson's tr ial t estim ony

thr eatened Mr. McCullah's counsel's professional judgm ent on behalf of Mr. McCullah .

28

The m ere possibility of a conflict of inter est "is insufficient t o im pugn a crim inal conv iction." Cuy ler v .

Sullivan, 446 U.S. 335, 350, 1 00 S.Ct. 17 08, 1 7 1 9, 6 4 L.Ed.2d 333 (1 980). "Prejudice is presum ed only

if the defendant demonstrat es th at counsel 'activ ely represented conflicting inter ests'.... " Strickl and v .

Washing ton, 466 U.S. 668, 692 , 1 04 S.Ct. 2052, 206 7 , 80 L.Ed.2d 674 (19 84). However, wh ere the

defendant m akes a tim ely objection pointing out a conflict of inter est, pr ejudice is presumed if the tr ial

cour t fails to m ake an adequat e inquiry into the situat ion and ta ke appropriat e steps. Selsor v . Kaiser,

22 F.3d 1029, 1 032-33 (10th Cir.199 4) (citing Holloway v . Arkansas, 435 U.S. 475, 484, 98 S.Ct. 11 73 ,

11 78-79, 55 L.Ed.2d 426 (1 97 8)).

29

The trial court ma de adequate inquiry and found th at no conflict existed, especially after it determined

tha t Mr. Em berson's testimony would not be admissible.2Mr. McCullah has failed to demonstra te an

actu al conflict on th e part of his coun sel, nor has he adequately shown a ny adv erse effects. There is no

ev idence sugg esting t ha t priv ileged inform ation wa s sha red betw een Mr. McCulla h's coun sel and Mr.

Nigh . Mr. Nigh 's representation of Mr. Emberson m ay hav e disqua lified Mr. Nigh fr om also

representing Mr. McCullah, but it was not Mr. Nigh who represented Mr. McCullah. Mr. McCullah was

represented by oth er att orn ey s in th e sam e federal public defender office, not by t he same at torney as

Mr. Emberson. Acc ord United Stat es v . Trev ino, 992 F.2d 64, 66 (5th Cir.1 99 3) ("The potential for such

conflicts, howev er, does not necessar ily exist wh en ... codefendant s are represented by different

att orn ey s, albeit in t he sam e public defender office").

30

Even assuming that a potential conflict existed, that conflict never materialized because Mr. Emberson

was n ot a llowed to test ify at Mr. McCu llah's tr ia l. See Un ited St at es v . Dr essel, 742 F.2d 1256, 1260

(1 0th Cir .1 98 4) (because "conflicted" wit ness nev er testified, defendant 's att orn ey w as not prev ented

from cross-examining a g ov ernm ent w itness). Accord Wycoff v. Nix, 869 F.2d 111 1, 11 17 (8th Cir.),

cert. denied, 49 3 U.S. 863, 1 1 0 S.Ct. 17 9, 1 07 L.Ed.2d 1 35 (1 989) (no actual conflict because
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"conflicted" wit ness did not t estify ). Mr. McCulla h c laim s that the spectre of Mr. Emberson's testimony

ma y hav e affected his counsel's professional judgm ent on h is behal f, but we find th at this "conflict" is too

speculativ e and hy pothetical to impug n h is conv iction. Th e record rev eals that t he tr ial court a ssessed

the r isk of conflict an d properly determin ed that disallowing Mr. Emberson's testim ony adequately

eliminated any risk.

II. V oir Dire

31

Mr. McCullah contends that t he tr ial court err ed in failing t o remov e prospective juror Dehart, a prison

gua rd at a stat e minim um secur ity prison, for cau se, forcin g Mr. McCullah t o use one of his peremptory

cha llenges to remov e him . Th e tria l court's decision t o refuse a for-cause dism issal is rev iewed only for

clear abuse of discretion, United States v. McInty re, 99 7 F.2d 687 , 69 7 (1 0th Cir.1 99 3), cert. denied, --

- U.S. ----, 1 1 4 S.Ct. 7 36 , 1 26 L.Ed.2d 69 9 (1 99 4), alth ough rev iew of legal questions, such a s the

statu tory qualificat ions for ju rors, is de novo, see United Stat es v. Protex Indus., Inc., 874 F.2d 740, 743

(10th Cir.1989).

32

Under 2 8 U.S.C. 1 86 3(b)(6 )(B), mem bers of the fire or police depar tm ents of any State ar e barred

from jur y duty . 28 U.S.C. 1 86 3 (b)(6)(B). Mr. McCulla h seeks to equate "prison gu ar d" wit h "police

officer", rely ing on an Oklah om a statu te wh ich inv est prison gu ards with th e powers of "peace officers"

and an oth er stat ut e wh ich defines "police officer" and "peace officer" similar ly . See 57 Okla.Stat .

51 0(3); 21 Okla.Stat. 64 8(A). Mr. McCullah's interpretation of 186 3(b)(6)(B) goes against the plain

lang ua ge of the statu te wh ich clear ly refers to only "police officers", a specific, na rr ow ca tegory of

persons. See 28 U.S.C. 18 63 (b)(6)(B). While prison guar ds m ay ha v e som e police-like duties, th ey ar enot m embers of the police depar tm ent. Had Congr ess intended to exclude a broader class of persons from

jury serv ice, it could h av e sim ply used a broader term , su ch as "la w enforcem ent officer." Th e fact that

the stat e of Oklah om a m ay , in cert ain in stances, consider prison gu ards officers of the law , see Sny der

v . Stat e, 7 38 P.2 d 54 8, 55 0 (Okla.Crim .A pp.1 987 ) (correct ions officer s within scope of sta tu te

prohibiting assaults on police officers), does not alter 1863(b)(6)(B)'s definition of "police officer" to

inclu de prison g uar ds.

33

"Generally , a court m ust gr ant a cha llenge for cau se if the prospectiv e juror's actu al prejudice or bias is

shown." Vasey v . Martin Marietta Corp., 29 F.3d 1460, 14 67 (10th Cir.19 94). The trial court and

counsel thorough ly examined prospectiv e juror Dehart r egarding his employ ment as a prison gu ard

and any potential bias or prejudice his employm ent m ight cause. We agree with the Second and

Sev enth Circuit s that "a tria l court 'is not required to excuse any jur or on th e basis of his occupat ional

backgr oun d so long as th e cou rt is able to conclu de that the ju ror w ould be a ble to v iew th e ev iden ce a nd

decide the case with out bias.' " United States v. Nur ur din, 8 F.3d 1187, 11 91 (7th Cir.199 3), cert.

denied, --- U.S. ----, 1 1 4 S.Ct. 1 32 8, 1 27 L.Ed.2d 67 6 (1 99 4) (quoting United States v. Maldonado-

Rivera, 922 F.2d 934, 97 0-7 1 (2d Cir.1 99 0)). Dehart stated that he believ ed him self to be fair and
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impart ial and th at he ha d no fixed opinion a bout inma tes or cr iminals. Thorough questioning by the

tr ial court a nd counsel failed to rev eal any bias; th erefore, t he tr ial court did not abuse its discretion in

not r emoving prospectiv e juror Dehar t for cau se. Accord Nurur din, 8 F.3d at 1 1 90-91 (four potential

jurors r ela ted to law enforcem ent were not dismissed for cause); Un ited St at es v . McCord, 695 F.2d 823,

828 (5th Cir.), cert. denied, 46 0 U.S. 1 07 3, 1 03 S.Ct. 1 533 , 7 5 L.Ed.2d 953 (1 983 ) ("[O]ne's official

position as a m ember of the law enforcem ent comm unit y does not requir e a court in t he exercise of its

discretion to excu se a jur or for cau se wh ere the jur or has stat ed that h e or she could rem ain im part ial").

III. Coerced Statements

34

Mr. McCullah claim s that th e trial court erred in admitting statem ents coerced from h im by a

gov ernm ent ag ent. Mr. Lozano, in cooperation wit h th e FBI, staged a monitored conv ersation with Mr.

McCullah. Mr. Lozano, a form er Ar v izu employee, took Mr. McCullah on a long driv e into th e

mountains. Before th e drive w as underway , Mr. Lozano gav e Mr. McCullah approximately twenty

dollars, which Mr. McCullah claim s he used to purchase heroin wh ich he used imm ediately . During the

thr ee-hour driv e, Mr. Lozano told Mr. McCullah th at the A rv izu organ ization was planning to kill him

becau se of th e fiasco in Oklah oma and offered to intercede with Ar v izu on Mr. McCu llah 's beha lf

prov ided that he tell him the tr uth about the ev ents in Oklahoma . Mr. McCullah proceeded to tell Mr.

Lozano about t he ha ppenings in Oklahoma, discussing the sma ll sum he wa s paid and expressing h is

willing ness to go back t o Okla homa an d do th e job h im self. Lat er in th e conv ersat ion, Mr. McCu llah

grew frigh tened of Mr. Lozano, seeming to believ e tha t Mr. Lozano m ay ha v e been th e one assigned to

kill him.

35

Mr. McCullah m oved to suppress his stat ement s to Mr. Lozano at tria l on the basis th at t he statem ents

were in v olunt ar y due to th e in flu ence of dru gs an d due to th e gov ernment's "out rag eous" conduct in

obtaining th e statem ents. Contrary to the govern ment's assertion that Mr. McCullah raised only the

intoxicat ion issue, t he issue of gov ernm enta l conduct, inclu ding Mr. Lozano's threat s, was adequately , if

ineloquent ly , ra ised by Mr. McCullah's allega tion of "out ra geous" conduct . The tr ial court t reat ed the

tw o gr oun ds as distinct and addressed them separat ely . The tr ial court denied Mr. McCulla h's motion,

finding tha t any drug use was v olunta ry and that t he gov ernm ent's other conduct fell within the "wide

latitude" giv en to the gov ernm ent in crim inal inv estigations.

36

The v olunta riness of a confession is a leg al qu estion subject to rev iew de nov o based on t he ent ire r ecord.

United States v . Chalan , 812 F.2d 1302, 1 307 (1 0th Cir.1 987 ). Subsidiary factual findings are subject

to review under th e clearly erroneous standard. Id. at 1 307 -08. Th e prosecution h as the burden of

prov ing by at least a preponderance of evidence that the confession w as v olunta ry . Lego v . Twomey ,

404 U.S. 477, 489 , 92 S.Ct. 61 9, 6 26 -27 , 30 L.Ed.2d 61 8 (1 97 2). If a coerced statem ent is admitted in

error, rev ersal is required unless the Gov ernm ent can show tha t th e error w as harm less bey ond a

reasonable doubt. Arizona v . Fulm inante, 499 U.S. 279, 295-96, 1 1 1 S.Ct. 1246, 1 257-58, 1 13 L.Ed.2d
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302 (1991) .

37

A defendant 's confession is in v olunt ar y if t he gov ernm ent's condu ct ca uses th e defenda nt 's will to be

ov erborne and "his capacity for self-determ inat ion critica lly im paired." Schneckloth v . Bustam onte, 412

U.S. 218, 225-26, 93 S.Ct. 2041 , 2047 , 36 L.Ed.2d 854 (19 7 3). In determining whether the

defendant's will w as ov erborn e in a par ticul ar ca se, the court exa m ines "the totalit y of all thesurrounding c ircu m stances--both t he cha ra cteristics of the accused and the details of the interr ogat ion."

Id. at 226, 93 S.Ct. at 2047 .

38

The circum stances in th is case are substant ially similar to those in Ar izona v . Fulmina nte. In

Fulminante, the defendant, a prison inm ate at the tim e, was approached and befriended by another

inma te wh o was a FBI inform er. The informer t old the defendant th at h e knew t he defendant wa s

start ing to get som e rough tr eatm ent from other inm ates and offered to protect the defendant from

other inma tes if the defendant gav e him the full facts of the alleged crime. Th e defendant th en m ade

incrimina ting adm issions which w ere used against him at trial.

39

The Supreme Court held that the defendant's statem ents in Fulminant e were coerced. Fulm inante, 4 99

U.S. at 2 87 , 1 1 1 S.Ct. at 1 252 -53. "[C]oercion need not depend upon actu al v iolence by a govern ment

agent ; a credible thr eat is sufficient." Id. Similar ly , in t his case, Mr. McCullah 's stat ement s to Mr.

Lozano were coerced by a credible thr eat of v iolence. Mr. Lozano told Mr. McCulla h th at t he Ar v izu

organ ization was out to kill him, a cr edible threat coming from a form er m ember of the orga nization. Asin Fulm inan te, Mr. Lozano offered to inter cede to protect Mr. McCulla h from t he th reat if Mr. McCulla h

confessed. Indeed, t his case presents a str onger exam ple of coercion th an Fulm inan te because in t his

case Mr. Lozano fabrica ted the th reat to Mr. McCulla h.

40

Mr. McCullah also claims tha t h is statem ents to Mr. Lozano were rendered inv olunta ry by Mr.

McCullah's alleged heroin use at the tim e of the statem ents. While any drug use may hav e made the

coercion m ore effectiv e, see United Stat es v. Haddon, 927 F.2d 942, 946 (7th Cir.1 991 ), we need not

reach th is issue because we find that rega rdless of whet her Mr. McCulla h's resistan ce was weaken ed by

drug s at the t ime, t he th reat and offer of protection by Mr. Lozano clearl y coerced Mr. McCullah 's

statements.3

41

The err oneous admission of a coerced confession is subject t o harm less error r ev iew. Fulm inan te, 4 99

U.S. at 3 1 0, 1 1 1 S.Ct. at 1 26 5. "When rev iewing the erroneous admission of an inv olunta ry confession,

the appellate court ... simply rev iews the remainder of the ev idence against the defendant to determ ine
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whether th e adm ission of t he confession w as h ar m less bey ond a reasonable doubt. " Id. The Su prem e

Cour t ha s stat ed:

42

A c our t m ust a ppr oach [the har mless er ror i ssue] by asking whether th e force of t he ev iden ce

presum ably considered by the jur y in accordance with t he instructions is so ov erwhelm ing as to leav e it

bey ond a reasonable doubt that th e v erdict resting on t hat ev iden ce would hav e been the sam e in theabsence of th e [coerced confession].

43

Yates v . Ev att ,500 U.S. 391 , 404-05, 11 1 S.Ct. 1884, 1 893, 1 14 L.Ed.2d 432 (1991 ). Reviewing the

evidence against Mr. McCullah, we find that t here was ov erwhelm ing ev idence to conv ict Mr.

McCullah of the crim es cha rg ed ev en in th e absence of his coerced stat ement s. The coerced stat ement s

ma inly pertain ed to Mr. McCullah 's actions in Oklahoma , and the record is replete with a t rem endous

am oun t of oth er ev idence as to Mr. McCulla h's act ions in Oklahoma. Ev idence of finger print s togeth er

with th e testim ony of sev eral witnesses placed Mr. McCu llah in Oklah oma at the la ke h ouse a nd at th e

homicide scene. Sev eral w itnesses testified to Mr. McCullah 's piv otal role in both t he plann ing a nd

execution of the mur der, a s well as to the pay ment he received. We find that with regard to Mr.

McCullah's conv ictions, the a dmission of Mr. McCullah 's stat ement s to Mr. Lozano was har m less bey ond

a reasonable doubt. Id. at 405, 1 1 1 S.Ct. at 1 893 -94 .

44

Hav ing concluded tha t th e use of the coerced statem ents was ha rm less err or in t he gu ilt pha se does not

end our inquir y in th is case. We must next consider the effect, if an y , of th ese coerced stat ement s on th epenalty phase. Mr. McCullah's coerced statem ents were prominently featur ed by the govern ment in the

penalty phase of the trial. Mr. McCullah's statem ents regarding the paltry sum h e receiv ed for th e

mu rder an d his offer to go back an d do th e job him self were th e only ev idence of his unrepenta nce.

These statem ents were empha sized by t he gov ernm ent, an d we cannot say bey ond a reasonable doubt

that t hese rema rks may not hav e influenced the jury in their findings of aggrav ating and mitiga ting

factors, as well as affecting t he w eighing process itself. Th ere wa s no ev idence of Mr. McCullah 's

willing ness to m urder ag ain oth er than these coer ced sta tements. Mr. McCu llah 's statem ents may hav e

had a significant im pact on the penalty phase decision of the jur y , and w e cannot say that the

admission of Mr. McCullah 's coerced stat ement s was har m less err or dur ing t he penalty phase of the

trial. A ccordingly , w e reman d for a new penalty phase proceeding.

IV. Sufficiency of the Ev idence

45

Mr. McCullah challenges his conv ictions, claiming that they are n ot supported by sufficient ev idence.

In r eviewing the sufficiency of evidence supporting a conv iction, w e examine t he ev idence, and all

reasonable inferences to be draw n th erefrom, in th e light m ost fav orable to th e gov ernm ent an d " 'ask
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whether an y rational juror could hav e found th e essential elem ents of th e cr im e bey ond a reasonable

doubt. ' " United States v . Lev ine, 41 F.3d 607, 61 0 (10t h Cir.1 99 4) (quoting United States v . Arut unoff,

1 F.3d 1112, 1 1 1 6 (1 0th Cir.1 99 3)). "We consider both direct and circumstantial ev idence and accept

the ju ry 's resolution of conflicting ev idence and its assessment of th e credibility of wit nesses." Lev ine, 4 1

F.3d at 61 0.

A. Homicide

46

Mr. McCullah was convicted under 2 1 U.S.C. 84 8(e)(1 )(A), which refers to intentional h omicides

comm itted by "any person ... working in fur theran ce of a continuing cr iminal enterprise." See 21 U.S.C.

848(e)(1 )(A). Mr. McCullah contends that h is conv iction on th is count should be ov ertu rn ed because

he lacked th e knowledge needed to "work in fur th eran ce of" th e Arv izu crim inal ent erprise and because

the k illing of Collins wa s not in furt hera nce of the organ ization's objectiv es. We find both of these reasons

unpersuasiv e.

47

i. Knowledge of th e enter prise

48

Section 84 8 does not define the phr ase "working in fur th eran ce of." See 21 U.S.C. 848 (section 84 8(c)

defines "engaging in"). Absent any statu tory definition, t erms should be giv en th eir ordinary meaning .

United States v . Cooper, 19 F.3d 1154, 1 1 65 (7 th Cir.1 99 4). Mr. McCullah contends that "working in

furt hera nce of a contin uing crim inal ent erprise" should be defined wit h reference to the law ofconspiracy and seeks to im pute th e knowledge requir ement of conspiracy law to 84 8(e).

49

While kn owledge of the nexus between th e h omicide a nd the continuing cr im inal enterprise is

necessar y under 84 8(e), th e defendant n eed not be a "conspirat or" nor h av e full knowledge of th e

objectiv es or ext ent of th e contin uing crim inal ent erprise in order to be "working in fur ther ance of" the

enterprise. Cf. Cooper, 1 9 F.3d at 1 1 64 -65; United States v . Chandler, 996 F.2d 1073, 1096 (11 th

Cir.1 99 3), cert. denied, --- U.S. ----, 1 1 4 S.Ct. 2 7 24 , 1 29 L.Ed.2d 848 (1 99 4). The ev idence presented at

trial indicated that Mr. McCullah knew that the planned mu rder was being car ried out on behalf of the

Ar v izu drug org an ization an d kn ew that the m urder was being com m itted to fur ther the orga nizat ion's

crim inal objectiv es. This knowledge suffices to m ake Mr. McCulla h's actions "working in fur th eran ce of"

the Arv izu continuing crim inal enterprise. The fact that Mr. McCullah wa s not engaged in the drug

trafficking portion of the Arvizu criminal enterprise is irrelevant; the reach of section 848(e) extends to

hired henchmen, like Mr. McCullah, w ho comm it m urder to furt her a dru g enterprise in which they

ma y not otherw ise be intim ately inv olv ed.4Cooper, 1 9 F.3d at 1 1 64-65.

50
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ii. "In fur ther ance" of the en terpr ise

51

The fact tha t th e intended v ictim, A v ery Rogers, was not th e person actu ally killed does not m ean th at

the m urder w as not "in furth erance" of the Arv izu enterprise. The m urder of Mr. Collins may hav e

actually furthered the Arv izu organ ization by sending a powerful m essage t o Mr. Rogers and others

tha t th e org anization would stop at n oth ing to recover it s stolen drug s. To th e extent th at fear is apower ful element of th e Arv izu enter prise, th e mur der of Mr. Collins likely furt hered the organization's

imag e and reputa tion.

52

Further, a mu rder ma y be comm itted "in furth erance" of a continuing crimina l enterprise even th ough

it does not actu ally furt her t he enterpr ise's goals. Cf. United Stat es v . May es, 917 F.2d 457, 464 (10th

Cir.1 990), cert. denied, 498 U.S. 11 25, 1 1 1 S.Ct. 1 087 , 1 1 2 L.Ed.2d 1 1 92 (19 91 ) ("in furtherance" does

not r equire actual furthera nce of the conspiracy but r ather an int ent to promote conspiratorial

objectiv es). The key fact or is th at th e mur der was designed and intended to fur th er the enter prise,

notwith standing any failure to fulfill that g oal.

53

Mr. McCullah contends that the murder of Mr. Collins was not intended by the Arvizu organization but

by Mr. McCu llah al one a nd th us was n ot "in furth erance" of the continu ing cr im inal en terpr ise. Th is is

too narr ow a v iew of "in furth erance." The mu rder of the wr ong v ictim is still in furth erance of the

crimina l enterprise because the cr ime, a s planned by the Ar v izu organization, w as designed to furt her

the ent erprise. The fact tha t th e crim e did not go as planned--that Mr. McCulla h took it upon him self tosubstitut e the v ictim--does not alter th e fact that the m urder w as aimed at furth ering th e enterprise.

54

The fact that th e actual v ictim w as not the intended v ictim is irrelev ant to the statu te. Section 848 (e)

is not v ictim -specific but ra th er refers broadly to "th e intentional killin g of an indiv idual." See 21 U.S.C.

848(e)(1)(A). As long a s the required nexus between th e mu rder and the continuing cr iminal

enterprise is established, the identity of the actu al v ictim ma tters not.

B. Drug Conspira cy

55

Mr. McCullah wa s conv icted of conspiring t o possess and distr ibute m ariju ana and cocaine in v iolat ion

of 21 U.S.C. 846 . Mr. McCullah contends that there w as insufficient ev idence linking h im to the drug

conspiracy and tha t he mer ely associated wit h th e conspirators. We disagr ee.

56
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A person "mu st h av e a 'general a wareness of both th e scope a nd th e objec tiv e of the enterprise t o be

rega rded as a coconspirator.' " United Sta tes v . A nderson, 981 F.2d 1560, 1563 (10th Cir.199 2)

(emphasis in original) (quoting United States v. Evans, 970 F.2d 663, 67 0 (10t h Cir.1 99 2)). In order for

ther e to be a conspiracy , th ere m ust at some point be a m eeting of the min ds as to th e com m on pur pose

of the conspiracy . Anderson, 98 1 F.2d at 1 563 .

57

The governm ent concedes that t here wa s no ev idence that Mr. McCullah a ctually trafficked in drugs for

the Ar v izu organization, but the ev idence did indicate tha t McCullah wa s affiliated with t he

org anization and part icipated in one of the orga nization's key drug -related operations, nam ely th e

recov ery of the stolen drugs and th e punishm ent of the drug t hiev es. Contrary to Mr. McCullah's

assertions that he m erely associated with t he m embers of the Ar v izu organization, t he ev idence

indicates Mr. McCullah took an active part in the planning of the drug-related operation.

58

Mr. Mendoza testified th at Mr. McCullah helped with t he plan to kidnap and tort ur e Av ery Rogers, th en

helped to chang e that plan and to form ulate th e new plan to mu rder Mr. Rogers, and that Mr. McCullah

v olunt eer ed to dra w Mr. Rogers out . Mr . McCu llah 's act iv e in v olv em ent in the oper at ion to recov er the

stolen drug s leads to th e reasonable inference th at Mr. McCulla h w as part of the conspiracy to distribute

the drug s, once recov ered. Far from being a complete outsider, Mr. McCullah w as familiar w ith t he

Ar v izu org an ization and understood th e objectiv es of th e conspir acy ; Mr. McCullah understood th at the

mu rder of Rogers was not an end in itself but ra th er wa s par t of the Ar v izu orga nization's lar ger dru g

distr ibution operation. See id. The jury could reasonably infer from the ev idence th at th ere was a

meetin g of th e min ds between Mr. McCullah and th e oth ers as to a genera l aw aren ess of the scope and

the objective of the Arv izu drug conspiracy , an d this sufficiently supports the jur y 's verdict on the dru gconspiracy cha rg e. Id.

59

C. Conspiracy to, and v iolation of, 1 8 U.S.C. 19 58

60

Mr. McCullah w as conv icted of "trav el ... in interstate ... comm erce ... with intent th at a m urder be

com m itted ... as considera tion for a promise or ag reem ent to pay " in v iolat ion of 1 8 U.S.C. 1 958 (a), 2 .

Mr. McCullah w as also conv icted of conspiracy to violate 1 8 U.S.C. 1 95 8(a), in v iolation of 1 8 U.S.C.

37 1 . Mr. McCulla h contends th at th ere was insufficient ev idence to support h is conv iction on th ese

coun ts. We disagree.

61

The governm ent concedes that there is no direct ev idence tha t Mr. McCullah knew of the m urder plan

at th e time of the interstate trav el, but from t he ev idence the jury could reasonably infer th at Mr.
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McCullah w as knowingly recruited in California t o participate in a mu rder in Oklahoma . The ev idence

rev ealed that the Ar v izu organization h ad already decided to mur der Rogers before th ey recruited Mr.

McCullah an d that Mr. McCullah wa s specifically recruited to participate in the drug r ecov ery and

mu rder schem e. The oth er r ecruit s--Mr. Mendoza and th e Mexican pistoleros--all knew the pu rpose of

the tr ip to Oklahoma w as to eliminat e the drug thief. The jury could reasonably infer t hat Mr.

McCullah, too, m ust ha v e known th e purpose of the t rip; indeed it w ould be difficult to hide the pur pose

from him ev en had th ey wa nted to. Mr. McCulla h knew th at h e was "to do a job for Ray [Molina]", 21 R.

51 , and presumably , he knew wha t th at job was before he un dertook it. In light of all th e evidence, thejury could r easonably infer th at Mr. McCu llah m ust h av e know n a bout th e homicida l pu rpose behind

the trip from California to Oklahoma before he undertook the venture, and thus the convictions under

1 8 U.S.C. 1 958, 3 7 1 are sufficiently supported by th e ev idence.

V. Dr ug Conspiracy Conv iction

62

Mr. McCullah challenges his drug conspiracy conv iction, claim ing t hat this count is a lesser included

offense in his 848 (e) mur der conv iction an d that the drug quantity used for sentencing un der t he

drug conspiracy conv iction was erroneous. Mr. McCulla h failed to ra ise either of these claim s in th e

distr ict court, so we rev iew only for plain er ror. See Fed.R.Crim .P. 52(b).

A. Mul tiplicity with Homicide Coun t

63

Generally , a conspirac y cha rge a nd a substan tiv e char ge ar e separat e offenses, an d one offense is not a

lesser inclu ded offense of th e other. See United Sta tes v . Horn,946 F.2d 738

, 74 4-45 (10th Cir.199 1 ).The situat ion is even m ore clear wh ere th e substant iv e offense is not the object of the conspiracy . In th is

case, Mr. McCullah wa s conv icted of drug conspiracy under 846 and capital m urder un der 84 8(e).

The conspiracy cha rge is separat e and distinct from th e mu rder cha rg e, not a lesser inclu ded offense.

64

A v iola tion of 848(e) requ ir es that th e m urder be comm itted by a per son "eng ag ing in or w orking in

furthera nce of a continuing cr iminal enterprise." 21 U.S.C. 848 (e)(1 )(A). A v iolation of 846 requires

tha t a person "att empt or conspire" to com m it a dru g offense. 21 U.S.C. 846 . Mr. McCullah seeks to

equate th e continuing crimina l enterprise requirement of 848(e) with conspiracy , claiming that

furthera nce of a continuing crimina l enterprise necessitates participation in a conspiracy . However, as

we discussed supr a, a per son m ay furth er a continu ing cr im inal en terpr ise w ithout necessarily bein g a

full member of the underly ing conspiracy .

65

Reliance on United States v . Stall ings, 810 F.2d 973(10 th Cir.1 987 ), is misplaced. In Stallings, the

defendant w as charged with engaging in a continuing cr iminal ent erprise as well as conspiracy , but t he
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conspiracy alleged was the continuing crimina l enterprise. By contrast, here th e continuing crimina l

enterprise requirement is part of a greater offense, capital murder, which is separate from the drug

conspiracy char ge.

66

Further, w e note tha t un der Missouri v . Hunter, 459 U.S. 359, 368-69, 1 03 S.Ct. 673 , 67 9-80, 74

L.Ed.2d 53 5 (1 983 ), Congress could specifically aut horize cum ulativ e punishm ent un der t wo statu tesev en if both statu tes prohibit th e "same" conduct . Congress ha s clear ly expressed its intent ion th at t he

848(e) punishm ent be cum ulativ e with any other applicable punishment, stating in the statute that

the 84 8(e) penalties are "[i]n addition to the other penal ties set fort h in th is section." See 21 U.S.C.

84 8(e)(1 ). Thus, ev en if we found th e offenses duplicativ e, cum ula tiv e sentences would still be

appropriate.

B. Drug Quantity

67

Mr. McCullah w as sentenced on th e drug conspiracy count based on th e size of the 9 1 kilogram cocaine

shipment which the conspiracy sough t t o recov er. See U.S.S.G. 2D1.1 (a)(3). He challenges this drug

quantity , contending th at t his quant ity was not reasonably foreseeable by him and thu s cannot be used

in sentenc ing h im. Mr. McCullah failed to raise this issue below, and aga in we rev iew only for plain

error a nd find none.

68

Mr. McCullah contends that t here w as no ev idence that h e knew about th e stolen dru gs in Oklah oma orthat he knew the drugs weighed 91 kilogram s. Howev er, the ev idence showed that he was awar e that

the purpose behind the plann ed kidnapping an d mu rder of Av ery Rogers was the r ecov ery of a quant ity

of drugs. The fact that Mr. McCullah did not know th e exact am ount is irrelev ant; Mr. McCullah wa s an

activ e participant in a conspiracy to recov er and distribute 9 1 kilogram s of cocaine, and thu s this

am oun t is properly att ribut able to him in sentencing. See United States v . Robertson, 45 F.3d 1423,

1 44 4-45 (10t h Cir.), cert. denied, --- U.S. ----, 1 1 6 S.Ct. 1 33 , 1 33 L.Ed.2d 81 (1 99 5).

69

Mr. McCulla h contends th at th e dru g quan tity m ust be "reasonably foreseeable," rely ing on Sentencin g

Guideline 1B1 .3(a)(1 )(B). See also Robertson, 4 5 F.3d at 1 44 5 (1 0th Cir.1 99 5). Howev er, Sentencing

Guideline 1 B1 .3 (a)(1 )(A) ma kes a defendant r esponsible for "all act s ... comm itted, aided, [and]

abetted ... by the defendant" with out regard to foreseeability . The Gu ideline Comm entary example

ma kes this abundantly clear:

7 0

Defendant A is one of ten persons hir ed by Defendant B to off-load a ship conta ining m arih ua na. The off-
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constitu tional provin ce of any one Bran ch." Mistretta v . United States, 488 U.S. 361, 390, 1 09 S.Ct.

647 , 66 4, 1 02 L.Ed.2d 71 4 (1 989). In Mistretta the Court stated:

7 5

We . .. hav e recognized .. . t hat the sepa ration-of-powers principle, an d the nondelegat ion doctrine in

part icula r, do not prev ent Congress from obtaining th e assistance of its coordinate Bran ches.... So long

as Congr ess "shall lay down by legislativ e act an intellig ible principle to wh ich t he person or bodyaut horized to [exercise the delegat ed auth orit y ] is directed to conform , such legislat iv e action is not a

forbidden delegat ion of legislativ e power ." ... Congress simply cann ot do its job absent an ability to

delegat e power u nder broad general directiv es.

7 6

Mistretta, 48 8 U.S. at 37 2, 1 09 S.Ct. at 654 -55 (quoting J.W. Ham pton, Jr. , & Co. v . United States, 276

U.S. 394, 409 , 48 S.Ct. 3 48, 3 52, 7 2 L.Ed. 62 4 (1 92 8)). The prosecutoral discretion to promulgat e non-

statu tory aggr av ating factors falls squarely with in th e permissible delegation of power t o the Executiv e

Branch.

7 7

At th e select ion sta ge of a c apital pr oceeding , t he focu s is on "an indiv idu al ized det erm inat ion on t he

basis of th e char acter of th e in div idu al an d the ci rcu m sta nc es of th e cr im e." Zan t v . Stephens, 462 U.S.

862, 87 9, 1 03 S.Ct. 27 33 , 27 44 , 7 7 L.Ed.2d 23 5 (19 83) (emphasis in original). In light of this purpose,

Congress, recognizing that it could not adequately account for all the possible aggravating and

mit igat ing factors inherent in a ny part icula r homicide, allowed factors to be considered wh ich it did not

specifically enum erate in th e statu te. See 21 U.S.C. 848(h )(1)(B), (m)(1 0). To achiev e the goal ofindiv idualized sentenc ing, Congr ess has properly delegat ed some degree of discretion to the Execu tiv e

Branch, lim ited by the directive th at th e factors must be "aggr av ating" and furt her constrained by t he

requir ement of notice. See 21 U.S.C. 84 8(h)(1 )(B). The established notion of "agg ra v atin g factors",

coupled with th e principle of indiv idualized sentencin g a nd notice, provides an "intelligible prin ciple" to

which th e execu tiv e br an ch m ust c onform its exercise of th e delegated power. See Mistr etta, 488 U.S. at

37 2, 1 09 S.Ct. at 654 -55. Furth er, th e limited natu re of the delegated power should also be noted; an

(n)(1) statu tory aggr av ating factor m ust be present for a defendant t o be death-eligible, an d only then

do th e non-stat ut ory factors com e into play . See 21 U.S.C. 84 8(k).

7 8

The Supreme Court has dealt with the issue of non-statu tory aggr av ating factors in state capital

punishm ent statutes and has held the u se of non-statu tory aggr av ating factors perm issible. Zant, 4 62

U.S. at 87 8, 1 03 S.Ct. at 27 43. See Barclay v . Florida, 463 U.S. 939, 966-67 , 103 S.Ct. 341 8, 3433-34,

7 7 L.Ed.2d 1 1 34 (1 983 ) (Stev ens, J., concurring) (th e Constitution does not require tha t statutory

agg rav atin g factors be "exclusiv e"). In Zant th e Cour t stated:

7 9
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Our cases indicate, then, th at statutory aggr av ating circu mstances play a constitutionally necessary

funct ion at th e stag e of legislativ e definition: they circu m scribe the class of persons eligible for t he death

penalty . But th e Constitut ion does not require the jur y to ignore oth er possible aggr av atin g factors in

the process of selecting, from am ong tha t cla ss, th ose defendants wh o will actu ally be sentenced to

death.

80

Zant, 4 62 U.S. at 8 7 8, 1 03 S.Ct. at 27 43 . To the extent th at some delegation of discretion to the

executiv e branch is necessary to achieve t he individualized sentencing m andated by the Constitution,

clearly th e delegation itself cannot be unconstitu tional.

B.

81

Mr. McCullah ch allenges the constitutional v alidity of sev eral of the non-statutory aggr av ating factors

presented to the jur y , as well as the sufficiency of the ev idence support ing one of the factors. The

constitu tional v alidity of agg ra v atin g factors is a question of law subject to de nov o rev iew. See Allen,

24 F.3d at 1 1 82. Th e sufficiency of evidence supporting a n aggr av ating factor is rev iewed under the

same standar d as the sufficiency of evidence support ing a conv iction; we determ ine if the ev idence,

including reasonable inferences to be draw n th erefrom, w hen ta ken in th e light most fav orable to the

gov ernment , is sufficient that a r easonable jury could find the ag grav ating factor bey ond a reasonable

doubt. See 21 U.S.C. 848 (j); United Stat es v. Hooks, 780 F.2d 1526, 1 531 (10th Cir.), cert. denied, 475

U.S. 1 1 28, 1 06 S.Ct. 16 57 , 90 L.Ed.2d 199 (1 986).

82

i.

83

Mr. McCullah arg ues that the "use of a deadly weapon" cannot be an ag grav ating factor because this

factor adds noth ing bey ond the essential element s of the offense of mu rder a nd does not n arr ow th e class

of death -eligible defendants. Mr. McCullah claim s that by definition a deadly weapon is inher ent in

every homicide. We disagr ee.

84

The plain, ev ery day meaning of the term "deadly weapon" necessarily implies an inh erently dangerous

instru menta lity designed for u se as a w eapon. Such an instru menta lity is not n ecessarily present in

ev ery homicide. For exam ple, hom icides are often accomplished by strang ula tion, but the rea sonable

juror w ould not pr esum e that th is w as a ccomplished by "use of a deadly weapon." Thu s, "use of a deadly

weapon" may properly be u sed as an ag grav at ing fact or beca use this factor g enuinely na rrows t he cl ass

of defendant s eligible for th e death penalty and aids in indiv idualized senten cing. See Ara v e v . Creech,
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507 U.S. 463, 47 3-75, 1 1 3 S.Ct. 1 534, 1 542, 1 23 L.Ed.2d 1 88 (1 993 ); Tuilaepa v . California, --- U.S. ----

, ----, 1 1 4 S.Ct. 2630, 2 635, 1 29 L.Ed.2d 7 50 (199 4).

85

ii.

86

Mr. McCulla h c onten ds that "comm ission of th e cha rged offenses" cannot be used as a n on-stat ut ory

agg rav atin g factor because this factor adds nothing above an d bey ond the elem ents of the offense itself.

We disag ree.

87

In Lowen field v . Phelps, 484 U.S. 231, 24 6, 1 08 S.Ct. 546, 555, 98 L.Ed.2d 568 (1 988), the Supreme

Court held it permissible to count an element of the u nderlying offense as an a ggra v ating factor w here

the "narr owing" funct ion is performed at t he gu ilt pha se. Lowenfield inv olv ed a Louisiana ca pital

punishm ent case where the statutory aggr av ating factor, "the offender knowingly created a risk of

death or gr eat bodily ha rm to more tha n one person," was also an elem ent of first degree mu rder un der

the Louisiana statu te. Th e Cour t in Lowenfield stated:

88

The fact tha t th e sentencing jury is also required to find the existence of an agg rav ating circum stance

in addition is no part of the constitu tionally requir ed narr owin g process, and so the fact t hat th e

agg rav atin g circu m stance duplicated one of the elements of the crim e does not make th is sentenc econstitutionally infirm.

89

Id. at 24 6, 1 08 S.Ct. at 555. The Court found that the nar rowing function wa s adequately perform ed by

the statute itself, and the statu tory aggr av ating factor merely repeated one of the narr owing

conditions.

90

Simila rly , in th is case the federal statu te nar rows the class of death-eligible defendant s by restrictin g

the possibility of capita l punishm ent to certain situ ations. 21 U.S.C. 84 8(e)(1 ). Under Lowenfield, an

agg rav atin g factor tha t does not add any th ing abov e and bey ond the offense is constitu tionally

perm issible provided tha t t he stat ute it self nar rows the c lass of death-eligible defendant s. Lowenfield,

484 U.S. at 246 , 108 S.Ct. at 555. Thus, although the non-statu tory ag grav ating factor, "comm itted

the offenses cha rg ed in the indictm ent", may be seen as simply restatin g th e elements of the offenses,

this is not an unconstitutional aggravating factor under Lowenfield because the statute itself under

which Mr. McCu llah was indict ed specifica lly na rrows t he field of death -elig ible defendan ts. "Commit ted
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the offenses cha rg ed in the indictm ent" is essentiall y equiv alent t o restatin g th e elements of each offense

indiv idually, which falls squar ely within Lowenfield.

91

The governm ent correctly points out t hat the agg rav ating factor "comm itted the offenses charg ed in

the indictment" allowed the jur y to consider th e circum stances of McCullah's crimina l activ ity . This

aggr av ating factor allowed the jury to consider the fact that t he mu rder was comm itted in furth eranceof an illegal dru g operat ion. Th e jury is entitl ed to consider th e circum stances of the crim e in

determining whether to impose the death penalty. Zant, 4 62 U.S. at 87 9, 1 03 S.Ct. at 2 7 43-44.

92

iii.

93

Mr. McCullah claims th at the ev idence did not support a finding th at "repeated attem pts to rehabilitate

the defendant ... or deter h im from future cr iminal behav ior h av e been u nsuccessful." We again

disagree.

94

The record shows, and Mr. McCulla h concedes, that t he gov ernm ent presented ev idence of thr ee

separa te felony conv ictions aga inst Defendant, al l of which r esult ed in prison term s. The fact t ha t Mr.

McCullah continued to com m it cr imes after h is release from prison indicat es th at pr ison failed to deter

Mr. McCullah's futu re crim inal conduct. Th is is sufficient to support t he jur y 's finding th at at tem pts toreha bilitate McCullah or to deter his fut ur e misconduct h av e been unsuccessful. Contrar y to McCulla h's

conten tion, no ev idence of more specific rehabilit ativ e or deterr ent effort s need be shown.

VII. Sta tutory Agg rav at ing Factor s

95

The district court submitt ed four statu tory aggr av ating factors to the jury , and the jur y found all four.

The four fact ors wer e 21 U.S.C. 84 8(n)(1 )(C) ("The defendant int entionally engag ed in conduct

intending that t he v ictim be killed or th at letha l force be employed against the v ictim, w hich r esulted

in th e death of the v ictim"), (n)(1 )(D) ("The defendant intentionally engaged in conduct w hich (i) th e

defendant kn ew would creat e a gra v e risk of death t o a person, other th an one of the part icipants in the

offense; and (ii) result ed in the death of the v ictim "), (n)(7 ) ("The defendant com m itted th e offense as

considerat ion for th e receipt, or in t he expectation of th e receipt, of any thin g of pecuniar y v alu e"), and

(n)(8) ("The defendant comm itted th e offense after substan tial pla nnin g an d premeditat ion"). Mr.

McCullah contends that th ese statu tory aggr av ating factors were erroneously submitt ed to the jury .

A.


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96

Mr. McCullah a rgu es that the statutory (n)(1) factors are merely eligibility factors which Congress did

not intend to be weigh ed against m itiga ting factors in the selection phase of the sentencing pr ocess. The

clear language of the statute refutes this contention.

97

In int erpretin g a stat ute w e look first to the plain m eaning of th e words of th e stat ute, a nd if the words of

the statut e are u nam biguous, our inquiry ends. See Negonsott v . Sam uels,507 U.S. 99, 113 S.Ct. 111 9,

1 1 22 -23 , 1 22 L.Ed.2d 457 (1 99 3). Section 84 8(n)(1) is listed along with eleven other factors ( 848 (n)

(2)-(12)) in a subsection entitled, "Aggravating factors for homicide." 21 U.S.C. 848(n). The plain

langua ge of 848(k) clearly contemplates the weighing of (n)(1) factors as aggrav ating factors and is

unambiguous as to this point. See 21 U.S.C. 848(k). Section 848(k) states, in pertinent part:

98

If an a ggr av atin g fact or set fort h in subsection (n)(1 ) of th is section and one or m ore of the other

agg rav atin g factors set fort h in subsection (n) of th is section are foun d to exist, th e jury , or if there is no

jury , t he cour t, sha ll then consider whether the agg rav at ing fact ors found to exist su fficien tly out weig h

any mitiga ting factor or factors found to exist, or in the absence of mitigat ing factors, w hether the

aggr av ating factors are them selv es sufficient to justify a sentence of death.

99

Id. The statu tory langua ge refers to all aggrav ating factors, which clearly includes the (n)(1 ) factors. In

considering the r eferences to "agg rav atin g factors", it is dispositiv e tha t (n)(1 ) factors are specificallydenominated as "aggr av ating factors" by the statut e. See 21 U.S.C. 848 (k), (n).

1 00

The fact th at Congress changed the ca pital sentencing scheme for other cr imes six y ears after the

adoption of 848(e) et seq. does not a lter t he plain lang ua ge int erpreta tion of 848 (e). The Federal

Death Penalty Act of 19 94 created a new capital sentencing scheme for m any federal offenses, but

significantly did not alter 848(e). See Federal Death Penalty Act of 1 99 4, Pub.L. No. 103 -32 2, 1 08

Stat. 1 7 96 (codified in scattered sections of 1 8 U.S.C.). Ev en had th e 1 99 4 A ct been an am endment to

848, it would merely indicate th at Congress can, and did, alt er th e federal capital sentencing scheme

for dru g conspiracies. Howev er, th is does not in any way indicate any error in th e prior scheme; there is

more than one proper meth od of stru cturing a capital sentencing scheme. See Harris v . Alabam a, ---

U.S. ----, ----, 1 1 5 S.Ct. 10 31 , 1 034 -35, 1 30 L.Ed.2d 1 004 (1 99 5). Furt her, th ere is simply no merit t o

Mr. McCullah's ar gum ent th at t he 1 99 4 Act should be constru ed as "clar ify ing" a prov ision it did not

even purport to amend.

B.


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1 01

Mr. McCullah ar gues that th e 848(n)(1) a ggra v ating factors encompass the full univ erse of

defendants eligible for the death penalty , m aking t he factor constitutionally infirm because it fails to

adequately nar row th e class of death-eligible defendant s.

1 02

While a ca pit al sent encing schem e m ust a dequ at ely na rrow t he cla ss of deat h-elig ible defenda nt s, t he

narr owing function m ay be perform ed by jury findings at either th e sentencing phase of the trial or th e

guilt phase. Lowenfield, 484 U.S. at 244-45, 108 S.Ct. at 554-55. See Part VI (B)(ii), supra. Congress

has statut orily nar rowed the field of death eligible defendants by lim iting t he possibility of capital

punishm ent t o homicides in furt hera nce of continuin g cr im inal en terpr ises or other specified offenses.

See 21 U.S.C. 84 8(e)(1 ). Thu s, contr ar y to McCulla h's assertion, only a smal l subset of all potentia lly

death-eligible defendant s ar e subject to capital pun ishment under t he federal schem e, and thu s the

requisite narr owing is present. While the factors in 848(n)(1 ) ma y mirr or t he intent element found at

the gu ilt phase, this is perm issible under Lowenfield. The nar rowing fu nction of 84 8(e) ma kes furt her

narr owing by 848(n)(1 ) unnecessary . Furtherm ore, 848 requires that the jury find at least one

other aggr av ating factor from t he list of (n)(2)-(n)(12 ) before th e death penalty can be im posed,

furt her r educing th e field of death -eligible defendants. 21 U.S.C. 84 8(k). The na rr owing funct ions of

84 8(e) and 848(k) clear ly satisfy th e constitut ional r equirem ents of Lowenfield. Accord Cha ndler,

996 F.2d at 1 093.

1 03

Mr. McCullah suggests that Lowenfield is distinguishable because the aggravating factor was not as

broadly inclusiv e as th e fact or h ere. Howev er , t he difference i s merely illu sory ; in deed t he federalcapital sentencin g scheme is more lenient t ha n th e one upheld in Lowenfield. The Louisiana ca pital

punishm ent stat ut e ma de "first degree mu rder" a ca pital offense and defined "first degree mu rder" to

inclu de "wh en th e offender ha s a specific intent t o kill ... m ore th an one person." Lowenfield, 48 4 U.S. a t

24 2, 1 08 S.Ct. at 553 . The statute m ade "knowingly created the risk of death ... t o more than one

person" a statutory aggr av ating factor. Id. at 243 , 1 08 S.Ct. at 553 -54. Therein, th e defendant was

conv icted of first degree m ur der on the basis of his intent to kill m ore th an one person a nd sentenced to

death on th e basis of that sole statu tory aggr av ating factor as well. Thu s no narr owing funct ion w as

serv ed by the agg rav ating factor, but ra ther th e narrowing occurred in the statu tory definition of first

degree m urder.

1 04

Simila rly , in th e federal scheme t he (n)(1 ) factor does not nar row th e field of death -eligible defendants,

rath er th e narr owing is accomplished by statutory definition in 848(e). Mr. McCullah suggests that

the federal schem e is different from th e Louisiana sta tut e in Lowenfield because the (n)(1 ) factor does

not exactly duplicate the 848(e) narrowing factors, but is broader than 848(e). This difference is

imm aterial because the practical effect is the sam e regardless of whether the ag grav ating factor

exactly mir rors the statut ory elements or extends slightly beyond.


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1 05

Mr. McCullah ar gues that th e Supreme Court 's decision in Ar av e v . Creech requires that aggr av ating

factors must play a narr owing role. See Arav e, 507 U.S. at 47 3-75, 1 1 3 S.Ct. at 1 542. Howev er, this is

incorrect. Arave is distinguishable because the capital punishment statute in that case was "defined

broadly to inc lu de all fir st-deg ree m urderers .. . [a]nd the cat egory of first-deg ree m urderers is also

broad." Id. at 47 5, 1 1 3 S.Ct. at 1 54 2-43 . Th us, a broad capital punishm ent sta tute necessita tes th at the

narr owing funct ion be perform ed by the aggr av ating factors, wh ereas here the nar rowing function wa sperform ed by the statute itself. See Lowenfield, 484 U.S. at 24 4-46, 1 08 S.Ct. at 554-55.

C.

1 06

The jury found as a statutory aggr av ating factor tha t Mr. McCullah "comm itted the offense after

substant ial planning and premeditation." See 21 U.S.C. 84 8(n)(8). Mr. McCullah contends that this

factor w as submitt ed in error because the statu tory langu age is unconstitut ionally v ague and th at th e

ev idence fails to support the ju ry 's finding.

1 07

i.

1 08

The Suprem e Cour t ha s ann oun ced th at a v agu eness rev iew should be "quite deferentia l" because

"m ath ema tical precision" is not possible in t he definition of aggr av atin g fact ors. Tu ilaepa, --- U.S. at ----,1 1 4 S.Ct. a t 2 63 5. The "basic prin ciple" is th at "a factor is not un constitu tional if it has some

'comm onsense core of meanin g . .. tha t cr imin al ju ries should be ca pable of understanding. ' " Id. at ---- - --

--, 1 1 4 S.Ct. at 26 35-36 (quoting Jurek v. Texas, 428 U.S. 262, 27 9, 96 S.Ct. 2950, 2959-60, 49

L.Ed.2d 929 (1976) (White, J., concurring)). Nevertheless, an aggravating factor may be

unconstitutionally v ague if it "leav e[s] the sentencer with out sufficient guidance for determining the

presence or absence of the fact or." Espinosa v . Florida,505 U.S. 1079, 1081 , 12 0 L.Ed.2d 854, 11 2 S.Ct.

2926, 2928 (1992).

1 09

Mr. McCullah arg ues that the w ord "substantial" is inherently am biguous and v ague. We disagree. In

the context in w hich it a ppears, the term c learly has a com m onsense meanin g of "considerable in

quantity : significantly large," which crim inal jur ies are capable of understanding. See Webster's Ninth

New Collegiate Dictionary 1 1 7 6 (1 99 1 ). In th e context in w hich it appeared, it could not be reasonably

confused wit h th e altern ativ e definition denoting m ere existence, as in th e sense of hav ing substance.

1 1 0


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Mr. McCullah r equested that the district court instru ct th e jury that : " 'Substantial' planning m eans

considerably m ore plann ing th an is ty pical for th e comm ission of the cr im e at issue, in th is case,

mu rder." The district court instead instructed the jur y that : " 'Substantial' planning means planning

which is consider able or am ple for t he com mission of th e crim e at issue." We find no error in th e dist rict

cour t's definition. "Substantia l" plannin g does not r equire "considera bly m ore plan ning th an is ty pical"

but rat her it m eans "considerable" or "am ple for c omm ission of th e crim e."

1 1 1

ii.

1 1 2

Mr. McCullah argues that there was insufficient evidence to support a finding of substantial planning

becau se the m urder v ictim was n ot t he in tended v ictim . We disa gr ee. Section 84 8(n)(8) is not drafted

in a v ictim-specific fashion, n or should it be construed that way . The plain la ngua ge of the statut ory

factor states: "The defendant comm itted th e offense after substan tial pla nnin g an d premeditat ion." 21

U.S.C. 848 (n)(8). T he "offense" refers to Section 84 8(e), w hich is also not drafted in a v ictim -specific

fashion, referr ing only to the "intent ional killin g of an indiv idual." See 21 U.S.C. 84 8(e)(1 )(A). In this

case, substant ial plann ing an d prem editation result ed in the constr uct ion of a deadly en counter, a nd

the fact tha t th e eventu al v ictim w as not th e intended victim does not alter the fact tha t th e killing of

an indiv idual was accomplished by the prem editated plan.

D.

1 1 3

The jury found as a statutory aggr av ating factor tha t Mr. McCullah "comm itted the offense as

considerat ion for th e receipt, or in t he expectation of th e receipt, of any thin g of pecuniar y v alu e." See

21 U.S.C. 848(n)(7). Mr. McCullah contends that the evidence was insufficient to support this finding

becau se any com pensat ion receiv ed w as for th e ki ll ing of Rogers, n ot Collins, the ev entual v ictim . This

argument is disingenuous.

1 1 4

Like section 848(e), section 84 8(n)(7 ) is not fra m ed in v ictim -specific term s. Mr. McCullah comm itted

the offense for pecun iary gain , ev en if he did not kill th e righ t person. Mr. McCulla h does not, a nd

indeed could not, dispute the fact th at h e participated in the m urder for pecuniary rewar d, and that

more tha n satisfies the statu tory factor.

VIII. Duplicativ e Agg rav at ing Factors

1 1 5

Mr. McCullah contends that th e district court erred in submitt ing duplicative an d cumu lativ e


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aggr av ating factors to the jury . We agree.

1 1 6

The district court submitted to the jury both th e 848 (n)(1)(C) statu tory aggr av ating factor,

"intentionally engaged in conduct intending that the v ictim be killed or t hat lethal force be employ ed

against the v ictim, w hich resulted in death of the v ictim," and the non-statu tory aggr av ating factor,

"comm itted th e offenses as to which he is char ged in th e indictm ent." These tw o fact ors substan tiall yov erlap w ith one another. In order for th e jury to find tha t Mr. McCullah c om m itted the offenses wit h

which he w as charged, t he ju ry necessar ily had to conclu de that Mr. McCu llah did intentionally kill an

indiv idual, or did intentionally coun sel, comm and, induce, procure, or cause the killing of an

indiv idual, and such killing did result or h appen. See 21 U.S.C. 848 (e).

1 1 7

The district court also submitt ed to the jury both the Section 84 8(n)(1)(C) and (n)(1 )(D) statutory

aggr av ating factors. The (n)(1 )(D) factor r equires that the defendant intentionally engages in conduct

which he kn ows creates a g rav e r isk of dea th an d that such death result s. 2 1 U.S. C. 848(n)(1 )(D) .

This substant ially ov erlaps with th e (n)(1)(C) factor w hich r efers to intentional conduct intending th at

the v ictim be killed. See 21 U.S.C. 848(n)(1 )(C). Any intentional conduct a imed at producing death is

by defin it ion conduct done w ith kn owledge of grav e r isk of dea th . While the fact ors are not identica l per

se, th e (n)(1 )(C) factor necessar ily subsum es th e (n)(1 )(D) factor.

1 1 8

Such double counting of aggra v ating factors, especially under a w eighing scheme, has a tendency to

skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily andthu s, unconstitut ionally . Cf. String er v . Black,503 U.S. 222, 230-32, 11 2 S.Ct. 1130, 11 37, 1 17

L.Ed.2d 36 7 (1 99 2). As the Supreme Court of Utah pointed out, w hen th e sam e aggra v ating factor is

coun ted twice, th e "defendant is essential ly condemn ed 'tw ice for t he sam e culpable act ,' " wh ich is

inherently unfair. Parsons v. Barn es, 87 1 P.2d 51 6, 52 9 (Utah) (quoting Cook v . State, 36 9 So.2d

1 251 , 1 256 (Ala.197 9)), cert. denied, U.S. ----, 1 1 5 S.Ct. 43 1 , 1 30 L.Ed.2d 34 4 (1 994 ). While the

federal statu te at issue is a weighing statu te wh ich allows the jury to accord as much or as little weight

to any particular ag grav ating factor, the mere finding of an aggr av ating factor cannot but imply a

qualitativ e v alue to that factor. Cf. Engberg v . Mey er, 820 P.2d 70, 89 (Wy o.1 991 ). When the

sentencin g body is asked to weigh a factor tw ice in its decision, a r ev iewing court ca nnot "assum e it

would hav e m ade no differ ence if t he thumb h ad been rem ov ed fr om death 's side of th e sca le. " Str inger,

503 U.S. at 23 2, 1 1 2 S.Ct. at 11 37 . In Stringer the Supreme Court m ade it clear that:

1 1 9

When the w eig hing process itself h as been skew ed, only constitu tional h ar m less-error a nal y sis or

reweighing a t th e trial or appellate lev el suffices to guaran tee that the defendant received an

indiv idualized sentenc e.


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1 20

Id. We hold that the use of duplicative aggravating factors creates an unconstitutional skewing of the

weig hing process which necessit ates a r ew eig hing of th e agg rav at ing and m it igat ing fact ors.

1 21

To the extent tha t Congress want s a particular aggr av ating factor to receive enhanced weight in thesentencin g process, it can provide for such enh ancem ent in th e stat ute itself. Howev er, Congress elected

not to do so, and th e prosecut or cannot att empt t o circu m v ent Congress's inact ion by intr oducin g th e

same factor in a different gu ise a second tim e.

IX. Mitigatin g Factors

1 22

The district court submitt ed sixteen mitiga ting factors to the jury . While at least one juror found th e

existence of every factor, only thr ee factors were found by a consensus. Mr. McCullah claims tha t t he

jurors er red in failing to find three m it igat ing fact ors est ablished by unc ontradicted ev iden ce. We

disagree.

1 23

Under Section 84 8(k), mitigat ing factors are weighed by each juror individually . 21 U.S.C. 848(k).

Howev er, if the ev idence does not support a jur or's failur e to find a mitig atin g factor, th e resulting

death sentence is unsound. 21 U.S.C. 84 8(q)(3). Th e defense has the burden of prov ing m itiga ting

factors by a preponderan ce of the ev idence. 21 U.S.C. 84 8(j).

1 24

The governm ent questions whether Mr. McCullah m ay seek rev iew of the jur y findings because at least

one juror found each mitiga ting factor. The statu te refers to the "failure to find ... a ny mitiga ting

factors," but does not specify wh ether a finding by a single jur or suffices to preclude judicial rev iew. See

21 U.S.C. 848(q)(3)(B). We believe that a non-unanimous finding is subject to appellate review. Any

other r esult w ould be contra ry to the intent of the statut e and would preclude appellate rev iew wh ere

an incontr ov ertible fact is denied by a ll but one jur or. Indeed, it seems clearly contra ry to the spirit an d

intent of the statute to provide for appellate review where no juror finds a mitigating factor, but to deny

such rev iew wh ere but a single juror finds such a factor.

1 25

We r ev iew a ju ror's finding concer ning the absence of mit igat ing fact ors in the light m ost fav ora ble to

the prosecution. See Jackson v. Virginia, 443 U.S. 307, 31 9, 99 S.Ct. 2781 , 27 89, 61 L.Ed.2d 560

(19 7 9). Ju rors are not r equired to believe th e testimony of witnesses simply because the testimony is

not directl y contr adicted. See Maggio v. Fulford, 462 U.S. 111, 11 7-11 8, 103 S.Ct. 2261 , 2264-65, 76


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L.Ed.2 d 79 4 (1 98 3). Th e credibility of witnesses is an issue th at is the proper prov ince of the trier of

fact, and th us as an appellate court we m ust be cautious and deferential in our r ev iew of factua l

findings of jurors.

1 26

Mr. McCulla h ar gu es th at h e presented un contr adicted testim ony from Dr. Randall Price tha t his I.Q. is

curr ently 80, a nd y et one juror r efused to so find. A r eview of the r ecord rev eals severa l facts whichma y hav e lead a reasonable jur or to conclu de that Mr. M

76 f3d 1087 united states v

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