PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-5
BRANDON LEON BASHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-02-992)
Argued: October 31, 2008
Decided: March 30, 2009
Before WILLIAMS, Chief Judge, and TRAXLER and
KING, Circuit Judges.
Affirmed by published opinion. Chief Judge Williams wrote
the opinion, in which Judge Traxler and Judge King joined.
COUNSEL
ARGUED: Melissa Anne Meister, JENNER & BLOCK,
L.L.P., Washington, D.C.; Timothy Joseph Sullivan, BREN-
NAN, SULLIVAN & MCKENNA, L.L.P., Greenbelt, Mary-
land, for Appellant. Thomas Ernest Booth, UNITED STATES
2 UNITED STATES v. BASHAM
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lee. ON BRIEF: David W. DeBruin, Stephen L. Ascher, Kali
N. Bracey, Thomas G. Pulham, Eric R. Haren, JENNER &
BLOCK, L.L.P., Washington, D.C., for Appellant. William
W. Wilkins, III, United States Attorney, Robert F. Daley,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina; Scott N.
Schools, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
OPINION
WILLIAMS, Chief Judge:
A jury sitting in the District of South Carolina sentenced
Brandon Leon Basham to death for the carjacking and kidnap-
ping resulting in the death of Alice Donovan in 2002. In this
appeal, Basham raises six claims of error relating to both the
guilt and penalty phases of his capital trial: (1) the district
court abused its discretion in failing to grant Basham’s motion
for a new trial or a new sentencing proceeding after learning
that the jury foreperson contacted several news media outlets
during the trial; (2) the district court abused its discretion in
disqualifying Basham’s appointed counsel prior to trial; (3)
the district court abused its discretion in admitting prior acts
as "intrinsic" to the charged crimes; (4) the district court
abused its discretion in its evidentiary rulings during the pen-
alty phase; (5) the district court erred in omitting the "catchall
mitigator," 18 U.S.C.A. § 3592(a)(8) (West 2000), from the
special verdict form; and (6) his death sentence was rendered
under "the influence of passion, prejudice, or any other arbi-
trary factor" in violation of 18 U.S.C.A. § 3595(c)(2)(A)
(West 2000). For the following reasons, we reject Basham’s
contentions and affirm.
UNITED STATES v. BASHAM 3
I.
A.
In 2002, Basham, a lifelong Kentucky resident, was serving
the final years of a felony forgery conviction sentence at the
Hopkins County Detention Center in Kentucky. In October of
that year, Chadrick Evan Fulks became Basham’s new cell-
mate. In early November, Fulks was charged with an addi-
tional (and serious) state offense, first degree abuse of a child
aged twelve years or younger. On November 4, 2002, Basham
and Fulks escaped the detention center together by scaling a
wall in the recreation area and leaving the area on foot.
By the evening of November 5, Basham and Fulks reached
the home of James Hawkins in nearby Hanson, Kentucky.
Basham approached the dwelling, knocked on the door, and
asked to use the telephone. Basham told Hawkins that his car
had broken down and, after Basham made two calls, Hawkins
agreed to drive him to a nearby convenience store. When
Basham and Hawkins left the residence, Fulks joined them
and the three men left in Hawkins’s truck. The two men then
told Hawkins that their vehicle was disabled in Robards, Ken-
tucky, and they asked for a ride. During the drive, Fulks told
Hawkins that the disabled vehicle was actually in Indiana and
directed Hawkins to drive there. Fulks later changed the direc-
tions again; by this point, Basham was pointing a knife at
Hawkins to keep him driving to their preferred destination. At
some point, Fulks took the wheel, drove the truck into a field,
and ordered Basham to tie Hawkins to a tree. Fulks became
dissatisfied with Basham’s speed in tying and eventually com-
pleted the job himself. They left Hawkins clothed in shorts,
flip-flops, and a short-sleeved vest. Fifteen hours later, Haw-
kins freed himself and flagged a passing motorist. When inter-
viewed by police officers later that day, Hawkins identified
Basham and Fulks as the individuals who kidnapped him.
4 UNITED STATES v. BASHAM
After abandoning Hawkins, Fulks and Basham drove to
Portage, Indiana, to visit one of Fulks’s former girlfriends,
Tina Severance.1 They abandoned Hawkins’s vehicle at a
hotel and walked to a trailer shared by Severance and her
friend Andrea Roddy. The four then drove to a hotel in north-
ern Indiana and stayed there for the next few days. At some
point, Basham and Roddy began a consensual sexual relation-
ship.
During their time in Indiana, Fulks asked Severance if she
knew anyone from whom he could obtain firearms. Severance
informed Fulks that a friend of hers, Robert Talsma, kept sev-
eral firearms at his home; Severance and Roddy thereafter
agreed to lure Talsma out of his house by offering to buy him
breakfast. While Talsma was at breakfast with the women,
Basham and Fulks entered Talsma’s home and stole four fire-
arms, a ring, and several blank checks. They then reunited
with Severance and Roddy, and the four traveled in Sever-
ance’s van to Sturgis, Michigan. That night, November 8,
Basham and Roddy stayed at a hotel in Sturgis while Fulks
and Severance drove to Goshen, Indiana, to smoke marijuana
and methamphetamines with Fulks’s brother, Ronnie Fulks.
That evening, two police officers began knocking on doors
at the hotel where Basham and Roddy were staying in Sturgis.
Basham opened his room door, saw the officers, closed the
door, and cocked a .22 caliber revolver that he had stolen
from Talsma. The officers ended up leaving before reaching
Basham’s door. Basham told Roddy, however, "I was about
to shoot me a mother-f***er cop right. I was going to blow
the f***ing cop away." (J.A. at 802.) The next morning,
November 9, Basham and Roddy drove to a local Kmart to
purchase sundries. Basham met a group of teenagers in the
parking lot, and he reported to Roddy that they had some
1
Tina Severance and Fulks met while Fulks was imprisoned in Indiana.
Severance worked as a correctional officer at the facility where he served
his sentence.
UNITED STATES v. BASHAM 5
money and he wanted to kill them for it. After purchasing
sundries with some of Talsma’s stolen checks, Basham
invited the teenagers back to the hotel room. Severance and
Fulks arrived back at the hotel shortly thereafter, and the teen-
agers left. Fulks, Basham, Severance, and Roddy then drove
Severance’s van to the home of Fulks’s brother, Ronnie
Fulks, in Goshen, Indiana.
On November 10, 2002, the group of four drove to Piketon,
Ohio, in Severance’s van. Basham again used Talsma’s
checks to buy sundries, which Roddy later returned for cash.
Basham and Fulks also bought two sets of camouflage cloth-
ing and Fulks stole a purse and cell phone from a Wal-Mart
parking lot. On November 11, they drove to Kenova, West
Virginia, near Huntington, and rented a hotel room. Fulks and
Basham, wearing their sets of camouflage clothing, left the
hotel room by themselves and did not return until the morning
hours of November 12.
Samantha Burns, a nineteen-year-old Marshall University
student, worked at the J.C. Penney’s store in the Huntington
Mall. In addition, Burns also participated in a school fund-
raiser by selling candy boxes, which she kept in her car. On
November 11, Burns met her aunt at Penney’s to purchase
clothing for one of Burns’s nieces; they parked in separate
locations at the mall. At 9:46 p.m. that evening, Burns called
her mother to say she was staying at a friend’s house that
night. Burns has never been seen since.
During the early morning hours of November 12, 2002, a
local fire department responded to a reported explosion and
fire at a rural area three miles outside of Huntington. The
responding firemen found a car later identified as belonging
to Burns burned out at a cemetery.
Meanwhile, Fulks and Basham returned to the hotel carry-
ing muddy clothing, and Fulks indicated that they had stolen
some money. Later that morning, the group of four checked
6 UNITED STATES v. BASHAM
out of the motel and drove to South Carolina, where Fulks had
lived for several years in the 1990s. Several facts emerged
linking Basham and Fulks to Burns’s disappearance. Roddy
and Severance reported seeing mud, as well as one of Burns’s
candy boxes, in the van. In addition, Basham began wearing
a heart-shaped ring around his neck that belonged to
Samantha Burns. Basham told the women that he had stolen
the candy from a girl selling it and that he had stolen the ring
from a car. Roddy also found Burns’s photo ID discarded
with other items linking Burns to Fulks and Basham. More-
over, it was later revealed that Fulks used Burns’s ATM card
twice on the evening of November 11 at local banks.
The evening of November 12, Fulks, Basham, Severance
and Roddy arrived at a motel in Little River, South Carolina.
The next day was a day of relative rest; Fulks and Basham
stole several purses and wallets from unattended vehicles,
went shopping, and then returned to the motel room to smoke
marijuana, drink, and play cards. On November 14, the four
moved to a motel in Myrtle Beach, South Carolina. Fulks and
Basham left the women and drove to nearby Conway, South
Carolina. Hoping to steal firearms, Fulks and Basham burglar-
ized the Conway home of Sam Jordan. Carl Jordan, Sam’s
father, drove up to the home as Fulks and Basham were leav-
ing. Fulks attempted to ram Jordan’s car with Severance’s van
but stopped short; Basham exited the house and fired a shot
at a nearby greenhouse. Fulks then fired a shot that shattered
the back-window of Jordan’s car. Jordan fled the area, with
Fulks and Basham in pursuit, still firing. At some point, Fulks
and Basham ceased their chase, abandoned Severance’s van,
and stole a truck, which they drove to the Wal-Mart in Con-
way.
Upon arriving at the Wal-Mart, Basham approached a blue
BMW sedan driven by forty-four year old Alice Donovan.
Basham entered the car and forced Donovan to drive to the
back of the parking lot, where Fulks waited. There, Fulks
entered the driver’s side of the car and drove away; at 4:03
UNITED STATES v. BASHAM 7
p.m., Fulks used Donovan’s ATM card to purchase gas from
a service station in Shallote, North Carolina. At 4:30 p.m.,
Donovan called her daughter to say she was shopping and
would be home late. Later that day, several men at the Bee
Tree Farms Hunt Club in Winnabow, North Carolina, saw
two men and a woman in a blue BMW drive to the end of a
road by the lodge, turn around, and leave the area. Donovan,
like Burns, was never seen again.
Basham and Fulks returned to their Myrtle Beach motel
later that day and told Severance and Roddy they had to leave
town because Basham shot at some police officers and Sever-
ance’s van had been seized. Basham and Fulks took Dono-
van’s BMW and began driving to West Virginia, leaving
Severance and Roddy behind in Myrtle Beach. Donovan’s
ATM card was used in Little River, Myrtle Beach, and
Raleigh, North Carolina. Meanwhile, Severance filed a (false)
police report alleging that her van had been stolen.
On November 15, 2002, Fulks and Basham arrived at the
home of Beth McGuffin near Huntington, West Virginia.
McGuffin, a childhood friend of Fulks, agreed to let Fulks and
Basham stay at her home. Fulks introduced Basham to her as
"Tommy Blake." (J.A. at 1089.) Later on November 15, Fulks
and Basham purchased crack cocaine to share. Basham and
McGuffin also began a sexual relationship and had sexual
intercourse three times over the next several days. Basham
also gave McGuffin Burns’s heart-shaped ring. On November
16, the three watched a news story about the disappearance of
Samantha Burns. When McGuffin remarked that Burns was
likely dead, Fulks stated, "[s]he is dead." (J.A. at 1127.)
At the same time, the Federal Bureau of Investigation
("FBI") was investigating the kidnapping of James Hawkins,
which it believed Basham and Fulks had committed after
escaping from prison. The FBI learned that the two men
might be in Myrtle Beach, South Carolina, and that Severance
had reported her van stolen. On November 16, the FBI and
8 UNITED STATES v. BASHAM
local authorities interviewed Severance and learned that
Basham and Fulks had left the area. The FBI also became
aware of the disappearance of Alice Donovan and suspected
that Fulks and Basham might be involved.
On Sunday, November 17, Fulks, Basham, and McGuffin
smoked marijuana before Fulks and Basham left McGuffin’s
house, telling her they were headed to Arizona. Instead, they
stopped at the Ashland Mall in Ashland, Kentucky, about 20
minutes from Huntington. Sometime that evening, in a Wal-
Mart parking lot, Basham approached Deanna Francis’s
fifteen-year-old daughter as she entered the passenger side of
their vehicle. Basham pointed a gun into the teenager’s side,
attempted to enter the car, and asked for directions to Green-
ville, Kentucky. When Basham realized Deanna’s daughter
was talking on her cell phone, he said "[M]y bad, I didn’t
mean to scare you" and walked away. (J.A. at 1640.) Deanna
immediately called the police.
Ashland Police Officer Matt Davis was approximately four
blocks from the Ashland Mall when he heard the dispatch
about the attempted carjacking. Davis drove to the mall,
where he saw Basham, who met the description of the sus-
pected carjacker. Davis exited his patrol vehicle and
approached Basham; Basham immediately began to flee. As
Davis chased Basham through the mall area, Basham drew his
weapon and fired a shot in the air. As the chase continued,
Basham drew his weapon a second time, turned, and fired at
Davis, who fired three shots of his own in return. Basham
eventually made his way to a rail yard on the banks of the
Ohio River where he hid. Davis radioed reinforcements,
which surrounded the area. More than an hour later, at
approximately 9:00 p.m., Basham surrendered to police, iden-
tifying himself as "Josh Rittman." (J.A. at 1244.) Police
recovered a knife—later identified as belonging to Alice Don-
ovan—and a crack cocaine pipe on Basham’s person.
Basham’s pistol was recovered from a rail car several days
later.
UNITED STATES v. BASHAM 9
Fulks returned to McGuffin’s home that evening and
watched a news report on Basham’s arrest. The morning of
November 18, Fulks left McGuffin’s residence to drive Dono-
van’s BMW to his brother’s house in Goshen, Indiana. Fulks
stopped at a rest area, where an Ohio state trooper, who had
ascertained that the BMW was stolen, approached him; a
high-speed chase then ensued at speeds in excess of 130 miles
per hour. During this chase, Fulks nearly struck another
trooper before managing to evade capture. Fulks eventually
arrived at his brother’s home in the early morning hours of
November 20. Police officers were staking out Ronnie’s
home, however, and when Fulks, his brother Ronnie, and
Ronnie’s girlfriend drove to a barn to hide the BMW, Fulks
was arrested. Fulks’s semen and the bodily fluids from an
unidentified female were later found in the back seat of the
BMW.
Back in West Virginia, investigators determined that "Josh
Rittman" was actually Basham, and that he was a recent
prison escapee. At 2:00 a.m. on November 19, Basham was
interviewed for the first time. Basham first told investigators
that he and Fulks had escaped from prison and committed
several crimes along the way. Later, he admitted that they had
traveled to South Carolina and kidnapped a woman in Con-
way, South Carolina. Basham, however, insisted that the
woman was alive and with Fulks.
At 9:45 a.m. on November 19, investigators re-interviewed
Basham. Basham told investigators that he and Fulks kid-
napped a man after escaping from prison, and carried firearms
when kidnapping Donovan. He further told investigators that
they used her credit cards to obtain cash, that they had driven
Donovan to Ashland, Kentucky, and that Fulks was waiting
for Basham when Basham was caught. This time, Basham
said he thought Donovan was dead because she was not with
Basham and Fulks at the Ashland Mall. During this interview,
Basham also told investigators that Fulks "got a girl" in West
Virginia as well. (J.A. at 1505.)
10 UNITED STATES v. BASHAM
On November 20, FBI agents interviewed Basham for
seven hours. On this occasion, Basham told investigators that
after they kidnapped Donovan, Fulks dropped Basham off at
the hotel, drove Donovan to a resort area, raped her, tied her
up, and left her. Basham also claimed that Fulks was the one
who actually carjacked Donovan. Basham also clarified that
when he said Fulks "got a girl" in West Virginia, that he
meant they had stolen a girl’s credit cards, not that they had
kidnapped anyone else. (J.A. at 1530-31.) At this point, inves-
tigators believed Donovan may have been still alive. Basham
drew a map of the places Fulks and Basham had been with
Donovan. This map roughly corresponded with the Savannah
Bluff area of Horry County, South Carolina. A two-day
search of the area, however, left investigators no closer to dis-
covering Donovan’s fate.
On November 25, Basham, now represented by counsel,
agreed to further aid investigators in finding Donovan’s body.
He drew a map, mentioned passing through a cemetery, and
informed investigators that Donovan’s body was left covered
but unburied in the woods. Basham was unable to identify any
specific landmarks to aid investigators.
On November 26, through counsel, Basham informed
investigators that Samantha Burns was dead and that he and
Fulks had rolled her body down an embankment and into the
Guyandotte River near Huntington.
Two days later, on November 28, FBI and state investiga-
tors organized a search team to search Brunswick County,
North Carolina, for Donovan’s body. Basham, now repre-
sented by Cameron B. Littlejohn, Jr. and William H. Monck-
ton, VI, accompanied the agents. During the ride, Basham
saw a deer and said, "I never could kill a deer and here I
have," but was cut off before finishing his sentence. (J.A. at
1560.) Later that day, Basham told the investigators that he
and Fulks had driven past a park, taken Donovan’s body out
of the car, dragged it into the woods, and covered it. On two
UNITED STATES v. BASHAM 11
occasions, Basham became emotional as he identified land-
marks where he and Fulks had taken Donovan. Later, Basham
told the investigators he had thrown out a Liz Claiborne purse
strap at the Bee Tree Farms Cemetery. When they arrived, the
local sheriff asked, "Is this where it happened?" (J.A. at
1576.) Basham responded, "This is it. It is." (J.A. at 1576.)
The cemetery was searched to no avail. To date, Donovan’s
remains have not been identified.2
Starting in late November 2002, while in jail awaiting trial,
Basham began writing letters to McGuffin, telling her his real
name, claiming that he loved her, that he had not "hurt that
girl from South Carolina" (J.A. at 1133), and that Fulks was
responsible for their crime spree. On this last point, Basham
wrote that Fulks "lied to me" and "told me he had all kinds
of money, and a new car, and all of this stuff just waiting on
him, and all he needed me to do was to show him the way
away from the jail because I was raised in that area." (J.A. at
1142.) Basham was not entirely forthright with McGuffin,
however, as he also wrote that Burns’s ring, which he had
given to McGuffin, was "not stolen or anything like that."
(J.A. at 1143.) Basham also confided that he "did a lot of bad
s**t with [Fulks]." (J.A. at 1146.)
On December 24, 2002, Basham called a former middle-
school teacher in Madisonville, Kentucky, Clifford Jay. When
Jay asked whether Basham had killed Alice Donovan,
Basham replied, "Yes, Sir. We killed them." (J.A. at 1619.)
Jay was surprised by the use of the term "them," because he
had only heard about the Donovan killing.
2
Recently, acting on information and a map provided by Fulks, authori-
ties discovered human remains in a wooded area of Horry County, South
Carolina, which they believe to be those of Alice Donovan. Tonya Root,
Horry County Family Prays Remains Bring Peace, Myrtle Beach Sun
News (January 28, 2009), http://www.myrtlebeachonline.com/news/local/
story/761011.html.
12 UNITED STATES v. BASHAM
B.
On December 17, 2002, both Basham and Fulks were
charged in a three-count indictment by a grand jury sitting in
the District of South Carolina for carjacking resulting in
death, in violation of 18 U.S.C.A. § 2119 (West 2000), kid-
napping resulting in death, in violation 18 U.S.C.A. § 1201(a)
(West 2000 & Supp. 2008), and interstate transportation of
stolen motor vehicles, in violation of 18 U.S.C.A. § 2312
(West Supp. 2008).
A superseding indictment was later filed, alleging a total of
eight counts: carjacking resulting in death, in violation of 18
U.S.C.A. § 2119 (Count 1); kidnapping resulting in death, in
violation of 18 U.S.C.A. § 1201(a) (Count 2); interstate trans-
portation of a stolen vehicle, in violation of 18 U.S.C.A.
§ 2312 (Count 3); conspiracy to commit carjacking, kidnap-
ping, interstate transportation of a stolen vehicle, felon in pos-
session of a firearm, and possession of stolen firearms, in
violation of 18 U.S.C.A. § 371 (West 2000) (Count 4); con-
spiracy to use, carry, and possess firearms during and in rela-
tion to, and in furtherance of, crimes of violence, in violation
of 18 U.S.C.A. § 924(o) (West 2000 & Supp. 2008) (Count
5); using, carrying, and possessing firearms during and in
relation to, and in furtherance of, crimes of violence, in viola-
tion of 18 U.S.C.A. § 924(c) (West 2000 & Supp.
2008)(Count 6); being a felon in possession of a firearm, in
violation of 18 U.S.C.A. § 922(g) (West 2000) (Count 7); and
possession of stolen firearms, in violation of 18 U.S.C.A.
§ 922(j) (West 2000) (Count 8). Counts 1 and 2 carried with
them the possibility of a death sentence.
On September 13, 2003, the Government filed a notice of
intent to seek the death penalty against Basham under 18
U.S.C.A. § 3593(a) (West 2000), the Federal Death Penalty
Act ("FDPA"). The Government alleged two statutory aggra-
vating circumstances: that Basham and Fulks murdered Dono-
UNITED STATES v. BASHAM 13
van for pecuniary gain, 18 U.S.C.A. § 3592(c)(8),3 and that
Donovan’s death occurred during a kidnapping, 18 U.S.C.A.
§ 3592(c)(1). The Government alleged several non-statutory
aggravators: Basham’s other acts of violence from November
4, 2002, through November 18, 2002; Basham’s future dan-
gerousness to other persons, including inmates; and the
impact of Basham’s acts on Donovan’s family. Basham’s and
Fulks’s cases were severed for trial on January 29, 2004.
Fulks pled guilty and, after a penalty phase, was sentenced to
death. We affirmed his conviction and sentence on direct
appeal. United States v. Fulks, 454 F.3d 410 (4th Cir. 2006),
cert. denied, 127 S. Ct. 3002 (2007).
Basham’s trial commenced on September 13, 2004. During
the guilt phase, the Government produced testimony from
eighty-nine witnesses, including Severance, Roddy, and
McGuffin, as well as several of Basham’s victims of related
crimes: Hawkins, Jordan, Deanna Francis’s daughter, and
Officer Davis. Basham’s post-arrest statements to the FBI
were introduced, as were his statements to Clifford Jay and
his letters to McGuffin. The carjacking and kidnapping of
Donovan were captured on Wal-Mart surveillance videos, as
were the ATM withdrawals made by Fulks with Donovan’s
ATM card.
During trial, Basham admitted culpability in the carjacking
and kidnapping, but argued that Fulks committed Donovan’s
murder and was the instigator throughout the crime spree. To
that end, during Basham’s opening statement, counsel argued
that the only "issue in controversy" was Basham’s intent to
commit serious bodily harm to Donovan at the time of the
abduction. (J.A. at 530.) In framing this issue, Basham noted
that he could not drive a car and had never been outside of
Kentucky prior to the prison escape, that all of the places they
visited were places from Fulks’s past, and that Fulks was
dominant and intelligent while Basham was more limited
3
This aggravator was not submitted to the jury. (Gov’t Br. at 18.)
14 UNITED STATES v. BASHAM
intellectually and passive. After a thirteen-day trial, the jury
convicted Basham of all eight counts in the superseding
indictment.
The penalty phase began on October 12, 2004. The Gov-
ernment introduced the trial record as its principal evidence,
but also introduced testimony from correctional officers and
a female nurse regarding Basham’s misconduct, drug use, and
sexual misconduct towards female employees in prison. The
Government also introduced testimony from Donovan’s hus-
band, daughter, and sister regarding the impact Donovan’s
death had on their family. Finally, the Government entered a
videotape showing a courtroom scuffle between Basham and
the U.S. Marshals that occurred during the guilt phase of the
trial.
In mitigation, Basham offered six statutory and thirty non-
statutory factors. The six statutory factors were: (1) impaired
capacity; (2) duress; (3) minor participation; (4) no prior vio-
lent criminal conduct; (5) emotional disturbance; and (6) other
factors. See 18 U.S.C.A. § 3592(a). Most of the non-statutory
mitigating factors related to Basham’s troubled youth and
home life. In particular, Basham put forth evidence that his
parents encouraged his bad behavior, forced him to steal to
support their drug habits, and even introduced him to drugs.
Basham was also sexually abused by one of his father’s
friends.
Basham also put forth mitigation evidence regarding his
mental condition. Basham showed that he was diagnosed with
learning disabilities at a young age and eventually placed into
youth homes following his expulsion from school. Basham
also put forth evidence suggesting that he had a deteriorating
mental condition—to wit, Basham’s IQ had declined from
100 as a youth to approximately 68 due to illegal drug abuse
and other factors. Experts testifying on Basham’s behalf diag-
nosed him as suffering from a brain impairment, multiple-
cause dementia, drug-inhalant psychosis and anxiety. His psy-
UNITED STATES v. BASHAM 15
chiatrist admitted under oath, however, that these problems
did not contribute to his offenses or keep him from distin-
guishing between right and wrong.4 Finally, Basham put forth
evidence of his ability to adapt to prison life through the testi-
mony of prison officials.
On November 2, 2004, following a sixteen-day penalty
phase, Basham was sentenced to death on Counts 1 and 2.
The jury first found the threshold factor that Basham inten-
tionally engaged in an act of violence that created a grave risk
of death. 18 U.S.C.A. § 3591(a)(2)(D) (West 2000). The jury
further found the statutory aggravator that the death occurred
during a kidnapping, as well as non-statutory aggravating fac-
tors that Basham: escaped from jail, killed Samantha Burns,5
assaulted Carl Jordan, kidnapped and carjacked James Haw-
kins, attempted to murder Officer Davis, and impacted Dono-
van’s family. The jury did not find the aggravator of future
dangerousness. At least one juror found two of the six statu-
tory mitigating factors and seventeen of the twenty non-
statutory mitigating factors. The jury found four non-statutory
mitigators unanimously as to either Count 1 or Count 2: fam-
ily history of violence (Counts 1 and 2), parents’ violence
(Counts 1 and 2), that Basham’s mother told him to steal
(Count 1), and that Basham abused drugs (Count 1).
A sentence of 744 months imprisonment was entered on the
remaining six counts. Basham’s conviction and sentence of
death were finally entered on February 16, 2005. Basham
filed a timely notice of appeal later that same day. Basham’s
death sentence was authorized by the FDPA, 18 U.S.C.A.
4
To rebut the testimony of Basham’s experts, the Government called its
own expert witness, a psychiatrist, who testified that Basham suffered
from antisocial personality disorder, a learning disorder, and substance
abuse problems, but did not suffer from brain damage or dementia. (J.A.
at 2663-83.)
5
Basham and Fulks subsequently pled guilty to carjacking resulting in
death and were sentenced to life imprisonment for the murder of Burns.
See United States v. Fulks, 454 F.3d 410, 416 n.1 (4th Cir 2006).
16 UNITED STATES v. BASHAM
§ 3594 (West 2000). We possess jurisdiction over Basham’s
appeal pursuant to 28 U.S.C.A. § 1291 (West 2006) and 18
U.S.C.A. § 3595 (West 2000).
On appeal, Basham raises six contentions of error, which
we address in turn.
II. Juror Misconduct
We first consider Basham’s argument that the district court
should have granted his motion for a new trial after learning
that the jury foreperson contacted several news media outlets
during the penalty phase of the trial. As with several other
arguments raised by Basham, additional factual background is
needed to put this claim in proper context.
A. Factual Background
The jury returned a death sentence against Basham on
November 2, 2004. On November 3, Shannon Mays, a news
producer from WSPA, a television station in Greenville,
South Carolina, called the Assistant United States Attorney
("AUSA") in charge of the case to inform him that she had
been contacted by a woman purporting to be a juror on the
Basham case during the trial. The AUSA inquired further and
discovered that the female juror called and asked why WSPA
was not covering the trial. The woman also told the producer
she believed the jury would have a difficult time reaching a
decision in the penalty phase because there were several
jurors for and several against the death penalty. She also
informed the producer that Basham had "acted out" in court
and that there were some jurors from the upstate.6 (J.A. at
3249.)
6
Greenville is located in what is considered "the upstate" region of
South Carolina.
UNITED STATES v. BASHAM 17
The AUSA immediately contacted the district court and
defense counsel; during a November 10, 2004 status confer-
ence, the district court decided to call the female jurors from
upstate South Carolina before the court. On November 12, a
sealed hearing was held involving three female jurors from
the upstate, as well as Shannon Mays. Mays testified that she
knew of the Basham case because she covered Basham and
Fulks’s escape from prison when she worked for a news sta-
tion in Indiana and had informed the juror of that fact during
their conversation. She stated that she did not impart any
other information to the juror and that the call lasted less than
five minutes.
The district court, after offering them legal representation,
then questioned each of the three female jurors from the
upstate under oath. After consulting with counsel, the jury
foreperson, Cynthia Wilson, admitted to calling not only
WSPA, but also two other television stations while the trial
was in progress. Wilson claimed that she made the calls in an
effort to have the media do a profile piece on the dangers of
shopping alone at malls. Wilson testified that none of the peo-
ple she spoke with imparted any information to her, and that
she did not pass along any specific information about the
jury’s thoughts or deliberations. Wilson further testified that
the jury did not begin discussing the penalty portion of the
case prior to the deliberations. Finally, Wilson testified that
her husband followed the trial via the internet, but that he did
not share any of his findings with her until after the trial. The
other two female jurors declined the assistance of counsel,
denied having contacted any media outlets, and confirmed
that they had not discussed the penalty portion of the case
with anyone prior to the deliberations. Neither mentioned
Wilson bringing any external information to their attention.
On November 18, the district court recalled the remaining
nine regular jurors for questioning under oath, and it held
another hearing on November 23, 2004, to question the alter-
nates; Wilson; and her husband, Greg Wilson. During these
18 UNITED STATES v. BASHAM
hearings, none of the remaining jurors mentioned Wilson
bringing any external information to their attention. One juror,
Shelda Richardson, testified that she did not engage in prema-
ture deliberations, but that Wilson did, on occasion, ask her
how she felt about certain issues and commented on witness
testimony. Richardson testified that Wilson was an "ei-
ther[/]or" person who "already had her mind made up to a cer-
tain degree." (J.A. at 2970.) Wilson testified that she had not
engaged in any conversations with any juror about the facts
or law of the case prior to the deliberations. Mr. Wilson con-
firmed that he had not discussed anything that he had found
in his internet research with his wife.
On December 1, 2004, Basham moved for a new trial, a
motion that the Government opposed. The district court then
granted defense counsel’s motion to obtain Ms. Wilson’s
phone records. During a December 13, 2004 hearing, the dis-
trict court learned that the phone records revealed that Wilson
made the calls on Friday, October 29, 2008, after the close of
the evidence in the penalty phase but before the jury instruc-
tions were given and the deliberations began.
Specifically, Wilson made a six-minute call to WSPA, two
one-minute calls and a four-minute call to WHNS Asheville,
a two-minute call to WYFF in Greenville, a two-minute call
to the Greenville News, and a one-minute call to the Spartan-
burg Herald. These latter two calls to newspapers had not
been reported by Wilson during her initial testimony.
The district court contacted these media outlets to find any-
one who remembered speaking with Wilson. WHNS
responded that no one could remember speaking with Wilson;
WYFF responded that an employee, Stephanie Moore, had
taken a call from a female juror on the Basham case and may
have said something to the caller about the case. Both news-
papers ultimately were unable to produce anyone who remem-
bered taking a call from Wilson. The district court, noting the
short duration of both of those calls, surmised that Wilson,
UNITED STATES v. BASHAM 19
calling on a Friday evening, most likely failed to reach any-
one at the papers. Wilson was recalled to testify about these
remaining contacts; she did not remember calling the newspa-
pers. The district court also questioned Wilson about an
eleven-minute call she made to another juror immediately
prior to her calls to the media outlets. Wilson testified that she
had simply offered that juror a landscaping job and did not
discuss the case with him.
On January 14, 2005, Basham moved for further investiga-
tion after Wilson’s telephone records revealed seventy-one
calls between her and two other jurors from September
through October 2004. Several of these calls, according to
Basham, occurred at critical moments during the trial. For
instance, Wilson called both jurors on the day the jury ren-
dered its guilt-phase verdict and called one of them again the
day of opening arguments in the penalty phase. In addition,
the day before closing arguments in the penalty phase, Wilson
spoke four times with a juror for a total of almost two hours.
Basham’s defense counsel conceded during an earlier hearing,
however, "I looked at the record . . . [those two jurors] have
been asked if they prematurely deliberated, they did not."
(S.J.A. at 24.)
After holding a lengthy hearing, the district court denied
the request for further investigation, finding that it credited
those two jurors’ statements that they did not deliberate pre-
maturely and concluding that any further investigation would
risk infringing on the jurors’ privacy. As the district court
explained, summarizing the breadth of its investigation "[w]e
have heard from 16 jurors under oath and we have heard from
Cynthia Wilson three times, and I’ve signed subpoenas for the
defense lawyers to get dozens if not hundreds of telephone
records." (J.A. at 3189.)
The district court held its ninth and final hearing on Febru-
ary 14, 2005, to consider Basham’s motion for a new trial in
full. By written order on March 14, 2005, the district court
20 UNITED STATES v. BASHAM
denied the motion for a new trial.7 The district court con-
cluded that Wilson’s contact counted as an improper external
influence, triggering a presumption of prejudice under Rem-
mer v. United States, 347 U.S. 227 (1954) (Remmer I), and its
progeny. See, e.g., Stockton v. Virginia, 852 F.2d 740, 743-44
(4th Cir. 1988). The district court described the situation as
follows: "This case presents a unique situation involving egre-
gious misbehavior by a juror, but no showing that she learned
anything or was influenced in any way." (J.A. at 3259.) Ulti-
mately, the district court concluded that the Government had
rebutted the presumption of prejudice because "the contact
did not involve the defendant, the government, or any wit-
nesses in the case," and Wilson "reached out to strangers to
the suit who would have had no information other than what
was available in the public arena." (J.A. at 3260.) And, "there
is no evidence that the juror informed the other members of
the jury about the phone calls." (J.A. at 3261.)
The district court rejected a similar argument by Basham
that Wilson’s "flagrant[ ] violat[ion]" of the court’s instruc-
tions created a due process violation and a structural error.
(J.A. at 3261.) The district court, citing Sherman v. Smith, 89
F.3d 1134 (4th Cir. 1996) (en banc), in which we declined an
invitation to rule that juror misconduct was a structural error,
found that "there has been no showing that the juror’s actions
in this case was anything other than harmless error." (J.A. at
3262.)
B. Legal Analysis
We review the denial of a motion for a new trial for abuse
of discretion. Fulks, 454 F.3d at 431. However, in cases
involving possible improper communication with jurors, "be-
7
During a separate hearing, the district court held Wilson in contempt
of court for violating its instructions not to discuss the case publicly. It
fined Wilson $2,500 and ordered her to perform 120 hours of community
service.
UNITED STATES v. BASHAM 21
cause the ultimate factual determination regarding the impar-
tiality of the jury necessarily depends on legal conclusions, it
is reviewed in light of all the evidence," and therefore we
apply a "somewhat narrowed" modified abuse of discretion
standard that grants us "more latitude to review the trial
court’s conclusion in this context than in other situations."
United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996)
(internal citation and quotation marks omitted).
The Sixth Amendment includes an impartial jury clause,
such that "[p]rivate communications, possibly prejudicial,
between jurors and third persons, . . . are absolutely forbid-
den, and invalidate the verdict, at least unless their harmless-
ness is made to appear." Mattox v. United States, 146 U.S.
140, 150 (1892). "In essence, the right to jury trial guarantees
to the criminally accused a fair trial by a panel of impartial,
indifferent jurors. The failure to accord an accused a fair hear-
ing violates even the minimal standards of due process." Irvin
v. Dowd, 366 U.S. 717, 722 (1961) (internal quotation marks
omitted). This rule resulted in what is colloquially called the
Remmer I presumption:
[A]ny private communication, contact, or tampering
directly or indirectly, with a juror during a trial about
the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial, if not
made in pursuance of known rules of the court and
the instructions and directions of the court made dur-
ing the trial, with full knowledge of the parties. The
presumption is not conclusive, but the burden rests
heavily upon the Government to establish, after
notice to and hearing of the defendant, that such con-
tact with the juror was harmless to the defendant.
Remmer I, 347 U.S. at 229.
We apply a familiar process "for analyzing allegations of
extrajudicial juror contact." Cheek, 94 F.3d at 141. First,
22 UNITED STATES v. BASHAM
"[t]he party who is attacking the verdict bears the initial bur-
den of introducing competent evidence that the extrajudicial
communications or contacts were more than innocuous inter-
ventions." Id. (internal quotation marks omitted). Second,
upon satisfaction of this "minimal standard . . . , the Remmer
I presumption is triggered automatically." Id. And, "[t]he bur-
den then shifts to the prevailing party to prove that there
exists no ‘reasonable possibility that the jury’s verdict was
influenced by an improper communication.’" Id. (quoting Ste-
phens v. S. Atl. Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.
1988)). This "heavy obligation" requires the court to "exam-
ine the entire picture, including the factual circumstances and
the impact on the juror." Cheek, 94 F.3d at 142 (internal quo-
tation marks omitted).
In determining whether a communication is innocuous, we
"turn to the factors the Supreme Court deemed important."
Cheek, 94 F.3d at 141. "These factors are: (1) any private
communication; (2) any private contact; (3) any tampering;
(4) directly or indirectly with a juror during trial; (5) about the
matter before the jury." Id.
On appeal, Basham contends that the district court abused
its discretion in finding that the Government met its heavy
burden of rebutting prejudice, while the Government argues
that it satisfied its burden. Applying our modified abuse of
discretion standard, we affirm the district court’s denial of the
motion for a new trial.
The Government concedes that Wilson’s contact with the
news media outlets constituted improper external communica-
tions and triggered the Remmer I presumption of prejudice.8
8
Basham contends that, given what he terms the "extraordinary conflu-
ence of juror misconduct," no showing of prejudice is required. Like the
district court, we agree that "the error complained of by the defendant is
not subject to structural error analysis." (J.A. at 3262.) See Sherman v.
Smith, 89 F.3d 1134, 1139 (4th Cir. 1996) (en banc) (noting harmless error
analysis has been applied to "claims of juror misconduct and bias").
UNITED STATES v. BASHAM 23
Thus, we must only answer whether there exists no "reason-
able possibility that the jury’s verdict was influenced by an
improper communication." Id. Courts look at a variety of fac-
tors in determining if this standard has been met, including
the extent of the improper communication, the extent to which
the communication was discussed and considered by the jury,
the type of information communicated, the timing of the
exposure, and the strength of the Government’s case. See,
e.g., Stockton, 852 F.2d at 747 (considering the extent of
exposure), United States v. Lloyd, 269 F.3d 228, 240-41 (3d
Cir. 2001) (considering the timing of exposure, length of jury
deliberations and structure of its verdict, and strength of Gov-
ernment’s case); United States v. Williams-Davis, 90 F.3d
490, 497 (D.C. Cir. 1996) (considering the strength of Gov-
ernment’s case, whether information gained was cumulative);
United States v. Blumeyer, 62 F.3d 1013, 1017-18 (8th Cir.
1995) (same).
On balance, these factors indicate a lack of prejudice to
Basham. First, the extent of the communication, the most
important factor, was minimal; several phone calls to different
media outlets, none lasting longer than six minutes. The dis-
trict court found there was "no showing" that the media out-
lets even provided any information to Wilson. See United
States v. Sampson, 486 F.3d 13, 41-42 (1st Cir. 2007), cert.
denied, 128 S. Ct. 2424 (2008) (finding no prejudice where
communication between juror and witness, during which juror
told witness he had a good memory, was "terse, fortuitous,
and devoid of substantive content"); Blumeyer, 62 F.3d at
1016-18 (concluding that the presumption of prejudice does
not even attach unless extraneous information relates to facts
under deliberation and, even assuming it did, finding no prej-
udice where jury foreman asked lawyer hypothetical question
about issue of law); United States v. Diez, 736 F.2d 840, 845-
46 (2d Cir. 1984) (finding no prejudice where juror asked a
law enforcement officer whether he knew two witnesses in an
ongoing trial). To the extent Wilson received any information,
it was a statement from the WSPA news producer Shannon
24 UNITED STATES v. BASHAM
Mays that she had covered the case in Indiana when Basham
and Fulks escaped; such information was obviously cumula-
tive of what the jury had already heard. In addition, the dis-
trict court found "no evidence" that Wilson "informed the
other members of the jury about the phone calls." (J.A. at
3261.)
We admit the timing of the communication, right before
jury instructions, is troubling. See Waldorf v. Shuta, 3 F.3d
705, 713 (3d Cir. 1993) (noting that exposure both the night
before and day of the verdict was at a very critical moment).
Courts rarely find external communication prejudicial, how-
ever, where, like here, the communications are "devoid of
substantive content." Sampson, 486 F.3d at 41. Given the dis-
trict court’s express finding that Wilson received no substan-
tive information during these phone calls, we cannot say that
the district court abused its discretion in denying Basham’s
motion for a new trial.9
9
We likewise reject Basham’s related contention that the district court
failed to adequately investigate the issue of prejudice by failing to further
question the jurors about the seventy-one phone calls Wilson made and
whether Wilson imparted extrajudicial information during those calls or at
any other time during the deliberations.
"The district court has broad discretion in choosing how to handle a
claim of juror bias or misconduct." United States v. Barnette, 390 F.3d
775, 808 (4th Cir. 2004), vacated on other grounds, 546 U.S. 803 (2005).
"The Fourth Circuit follows the view that the trial court may deal with
[claims of juror misconduct] as it feels the particular circumstances require
and only reverse for abuse of discretion." United States v. Gravely, 840
F.2d 1156, 1159 (4th Cir. 1988).
We find no such abuse of discretion in this case. As catalogued above,
the district court conducted a searching inquiry that spanned nine hearings.
More importantly, the district court found that Wilson did not receive any
"knowledge" from the media outlets, (J.A. at 3260), and that there was "no
evidence" that Wilson informed the other jurors of the media contacts,
(J.A. at 3261). Given these factual findings, which we believe are amply
supported by the record, we do not believe the district court abused its dis-
cretion in denying Basham’s request for further inquiry.
UNITED STATES v. BASHAM 25
In drawing this conclusion, we find relevant the First Cir-
cuit’s following statement in Sampson:
Here, moreover, the district court’s inquiry was vir-
tually a textbook model. The court’s response was
swift, its questioning pointed, and its search for any
inkling of prejudice thorough. After making a face-
to-face assessment of the juror’s sincerity and of the
possibility that other jurors had been contaminated,
the court concluded that the interaction was harm-
less. That conclusion may not have been inevitable,
but it plainly was not an abuse of discretion.
Id. at 42.
Likewise, the district court’s inquiry here was a "textbook
model." Immediately after being contacted by the AUSA, it
called in the jurors potentially responsible for the communica-
tion. In total, the district court held nine hearings, subpoenaed
phone records, questioned every juror and alternate, and care-
fully considered all the evidence concerning the communica-
tion. While, as in Sampson, the district court’s conclusion was
not necessarily "inevitable," it "plainly was not an abuse of
discretion." Sampson, 486 F.3d at 42.
III. Disqualification of Appointed Counsel
Next, we consider Basham’s argument that the district
court should not have disqualified his appointed counsel prior
to trial. We review a district court’s disqualification of
defense counsel for a conflict of interest for abuse of discre-
tion. United States v. Wheat, 486 U.S. 153, 163 (1988).
A. Factual Background
We begin by presenting additional facts necessary to
resolve this claim. On November 20, 2002, the Government
filed a criminal complaint against Basham and Fulks in the
26 UNITED STATES v. BASHAM
District of South Carolina. On November 27, 2002, the pre-
siding magistrate judge appointed Cameron Littlejohn and
William Monckton to represent Basham. On November 28,
2002, a search team consisting of Littlejohn, Monckton,
Basham, and federal and state authorities scoured Winnabow,
North Carolina, in Brunswick County, for Donovan’s body.
Near the end of the day, one of the FBI agents informed
Monckton and Littlejohn that Basham would be given one
more chance to help, since his suggestions that day had thus
far failed to yield any results. After consulting with Basham,
Littlejohn returned and said, "hypothetical[ly]," that Fulks
raped Donovan in the back of the BMW, strangled her with
a leather strap from her purse, and placed her in the trunk.
(J.A. at 3295, 3397.) After driving away, Fulks became con-
cerned that she was still alive. Fulks parked the BMW,
returned to the trunk, and slit her throat. "Hypothetical[ly],"
Littlejohn continued, the leather strap was at the Bee Tree
Cemetery with Donovan’s body. (J.A. at 3295.) That particu-
lar cemetery had previously been mentioned by Basham as a
possible location for Donovan. The search team returned to
the cemetery but still was unable to find Donovan’s body.
Basham and Fulks were later indicted and, on January 13,
2003, the Government moved to disqualify Littlejohn and
Monckton, over objection. The Government first argued that
Littlejohn’s statements were admissible, under Federal Rule
of Evidence 801(d)(2)(D), as party admissions. The Govern-
ment also contended that Littlejohn’s statements were false
because forensic testing revealed no blood in the BMW, as
there would have been if Fulks had really slit Donovan’s
throat in the trunk. Thus, the Government believed Little-
john’s statements would show Basham was lying when, in
other statements, he blamed Fulks for Donovan’s death.10
10
At the time the Government filed its motion to disqualify counsel,
Basham’s and Fulks’s cases had not yet been severed for trial, and both
Basham and Fulks had given statements implicating each other in the mur-
ders.
UNITED STATES v. BASHAM 27
And, the possibility that Littlejohn would have to testify
against Basham at trial created a conflict of interest requiring
disqualification.
The district court appointed counsel to represent Littlejohn
and Monckton and held hearings on January 15, 2003 and
April 4, 2003 on the disqualification issue. At the January
hearing, Littlejohn testified that the FBI agent’s version of the
statement was inaccurate, and that he prefaced his statements
with the word "hypothetical" because "it was not a verbatim
statement. It was not being offered as a statement by the
defendant." (J.A. at 142.) Littlejohn testified that he made no
affirmation that Fulks stabbed Donovan in her car, so the
statement did not contradict any forensic evidence the Gov-
ernment possessed. Basham, meanwhile, indicated that he had
a good rapport with Littlejohn and Monckton and wanted to
keep them as counsel. He did indicate, however, that he had
not authorized Littlejohn to tell the FBI agents what they had
discussed. Finally, both Basham and Littlejohn argued that
disqualifying the attorneys could wreak havoc on the relation-
ship between defense counsel and the Government. In particu-
lar, both Basham and Littlejohn contended that discussions
between the Government and defense attorneys frequently
involved hypothetical statements that neither believed to be
admissible in a later proceeding.
On April 9, 2003, by written order, the district court dis-
qualified Littlejohn and Monckton "out of an abundance of
caution." (J.A. at 3406.) The district court announced several
reasons for its decision: that (1) because of the cost of capital
litigation, it wished to avoid "expensive and cumbersome
post-verdict issues" (J.A. at 3402); (2) Basham’s case was in
its "infancy" and removal would "work no substantial hard-
ship" and "eliminate a thorny issue that could arise later" (J.A.
at 3403); (3) the statement might be admissible at trial under
several scenarios; (4) other conflicts of interest existed,
because Basham argued that he never authorized Littlejohn to
make the statement to the FBI agents; and (5) although
28 UNITED STATES v. BASHAM
Basham currently wanted to retain Littlejohn and Monckton,
it was foreseeable that if Basham was sentenced to death, he
would blame those attorneys for his situation and raise their
potential conflict of interest on appeal.
The district court also rejected the policy argument that
defense counsel’s relationship with the Government in gen-
eral would be affected if counsel were unable to offer the
authorities hypothetical statements during pre-trial discus-
sions. The district court believed the circumstances of this
case—a rapidly-planned and executed search for a missing
person believed to possibly be alive—were atypical and that
there would be no chill on the relationship between defense
counsel and the Government in future cases. Ultimately, the
district court ruled the Littlejohn statements inadmissible at
both the guilt and penalty phases of Basham’s trial.
B. Legal Analysis
1.
On appeal, Basham argues vehemently that the district
court abused its discretion in disqualifying his attorneys. In
Wheat, the Supreme Court established the general rule that
"the district court must be allowed substantial latitude in
refusing waivers of conflicts of interest not only in those rare
cases where an actual conflict may be demonstrated before
trial, but in the more common cases where a potential for con-
flict exists which may or may not burgeon into an actual con-
flict as the trial progresses." Wheat, 486 U.S. at 163. In
response to concerns that the Government may attempt to
"manufacture" conflicts of interest to remove able counsel,
the Court responded, "trial courts are undoubtedly aware of
this possibility, and must take it into consideration along with
all of the other factors which inform this sort of decision." Id.
Thus, while recognizing "a presumption in favor of petition-
er’s counsel of choice," the Wheat Court found that such a
"presumption may be overcome not only by a demonstration
UNITED STATES v. BASHAM 29
of actual conflict but by a showing of a serious potential for
conflict." Id. at 164 (emphasis added). And, "[t]he evaluation
of the facts and circumstances of each case under this stan-
dard must be left primarily to the informed judgment of the
trial court." Id. A district court is free to disqualify counsel
even if the defendant is willing to waive a conflict of interest
because of the judiciary’s "independent interest in ensuring
that criminal trials are conducted within the ethical standards
of the profession and that legal proceedings appear fair to all
who observe them." Id. at 160.
Following Wheat, we have upheld a district court’s deci-
sion to disqualify counsel who had previously represented a
witness at his current client’s trial, United States v. Williams,
81 F.3d 1321, 1324-25 (4th Cir. 1996), and reversed for abuse
of discretion a district court’s failure to disqualify counsel
who had represented the prosecution’s "star witness" in a
prior trial, Hoffman v. Leeke, 903 F.2d 280, 288-90 (4th Cir.
1990). We have made clear that a district court "must have
sufficiently broad discretion to rule without fear that it is set-
ting itself up for reversal on appeal" if it disqualifies counsel.
Williams, 81 F.3d at 1324. And, "a district court has an obli-
gation to foresee problems over representation that might
arise at trial and head them off beforehand." United States v.
Howard, 115 F.3d 1151, 1155 (4th Cir. 1997).
2.
On balance, we cannot say that the district court abused its
discretion in disqualifying Littlejohn and Monckton. Basham
focuses on the fact that the district court later found the state-
ments inadmissible, but that perspective overlooks a district
court’s ability to disqualify counsel in cases where the "poten-
tial for conflict exists which may or may not burgeon into an
actual conflict as the trial progresses." Wheat, 486 U.S. at
163. Although the district court eventually declined to admit
the statements, there remained throughout the trial the possi-
bility that Littlejohn could be called to testify. Moreover, if
30 UNITED STATES v. BASHAM
Littlejohn had remained as counsel, the potential remained
that Basham could later argue that Littlejohn tried the case to
avoid testifying in a way that would be prejudicial to Basham.
As the district court explained:
[O]ne could imagine a scenario in which Basham
could argue that the court erred by keeping the origi-
nal attorneys on the case, because once they knew
they were in the case to stay, Littlejohn and Monck-
ton would attempt to marshal the evidence and try
the case in such a way as to ensure that their state-
ments could not be an issue in the case. In other
words, Basham could argue that his original attor-
neys had a vested interest in trying the case a certain
way so as to minimize the possibility, however
remote, that they might be called to testify.
(J.A. at 3405.) In addition, the district court was also faced
with Basham’s statement that he had not authorized Littlejohn
to make those disclosures to the investigators.
In sum, Wheat and our own precedent counsel deference to
the district court in this area, particularly in anticipating
potential conflicts before they come to bear. The district court
held hearings, invited an expert witness to testify, and care-
fully considered the arguments on both sides before disquali-
fying Littlejohn and Monckton. In such circumstances, we
cannot say that it abused its discretion.
3.
An additional reason counsels against granting Basham
relief on this claim. Under the Sixth Amendment, all defen-
dants, indigent and otherwise, have the right to effective assis-
tance of counsel. Strickland v. Washington, 466 U.S. 668,
684-87 (1984). Defendants with the ability to hire their own
attorney also have a right to counsel of their own choosing.
See United States v. Gonzalez-Lopez, 548 U.S. 140, 151-52
UNITED STATES v. BASHAM 31
(2006). In Gonzalez-Lopez, the Court held that a violation of
the right to counsel of choice constitutes a structural error and
does not require a showing of prejudice. Id. Basham argues
that the same result follows here; we, however, have made
clear that "an indigent criminal defendant has no constitu-
tional right to have a particular lawyer represent him." Miller
v. Smith, 115 F.3d 1136, 1143 (4th Cir. 1997). Thus, the only
right implicated by the district court’s disqualification of Lit-
tlejohn and Monckton was the right to effective assistance of
counsel. See United States v. Van Anh, 523 F.3d 43, 48 n.3
(1st Cir. 2008) (holding indigent defendants have no right to
counsel of their own choosing); Daniels v. Lafler, 501 F.3d
735, 739 (6th Cir. 2007), cert. denied, 128 S. Ct. 1654 (2008)
(same). As the Supreme Court noted, albeit in dicta, "those
who do not have the means to hire their own lawyers have no
cognizable complaint so long as they are adequately repre-
sented by attorneys appointed by the courts." Caplin & Drys-
dale v. United States, 491 U.S. 617, 624 (1989).
In Daniels, the Sixth Circuit addressed a similar argument
and concluded that no Sixth Amendment violation occurred
when, over objection, the trial judge removed a defendant’s
appointed counsel. The court surmised, "[t]he replacement of
court-appointed counsel might violate a defendant’s Sixth
Amendment right to adequate representation . . . if the
replacement prejudices the defendant-e.g., if a court replaced
a defendant’s lawyer hours before trial or arbitrarily removed
a skilled lawyer and replaced him with an unskilled one."
Daniels, 501 F.3d at 740.
In this case, Littlejohn and Monckton were removed during
the "infancy" of the proceeding (J.A. at 3403)—there were
another sixteen months until jury selection began—and
Basham’s replacement counsel was Jack Swerling and Greg-
ory Harris, two extremely experienced members of the South
Carolina defense bar. Swerling, in particular, is well-known
for his representation in homicide and death penalty cases.
See, e.g., Sims v. Brown, 425 F.3d 560, 582 n. 14 (9th Cir.
32 UNITED STATES v. BASHAM
2005) (noting Swerling’s experience at the time included 100
homicide cases, four of which involved the death penalty).
Basham does little to argue that this substitution was prejudi-
cial, merely noting that Littlejohn and Monckton had filed a
competency motion, which Swerling later withdrew, indicat-
ing that those attorneys were pursuing a different strategy
than the one Swerling and Harris ultimately implemented.
This sort of speculation, we believe, cannot meet the burden
of showing prejudice.
In sum, Basham, as an indigent defendant, had the right to
effective assistance of counsel, but not to counsel of his own
choosing. He thus must point to some type of prejudice suf-
fered because of the removal of Littlejohn and Monckton
which, given the time of their removal and the replacement
counsel Basham received, we do not believe he can do.
Accordingly, the district court did not commit reversible error
in disqualifying Littlejohn and Monckton prior to trial.
IV. Guilt Phase Evidence
Next, Basham contends that the district court committed
reversible error in admitting certain evidence during the guilt
phase. In particular, Basham argues that four categories of
evidence were not admissible under Federal Rule of Evidence
404(b) and 403: (1) evidence of his drug and alcohol use and
consensual sexual relationships during the crime spree; (2)
evidence regarding statements Basham made threatening to
kill a drug dealer, several teenagers, and two police officers;
(3) evidence of Fulks’s 130-mile-per hour police chase, which
occurred after Basham was captured; and (4) evidence of
Burns’s carjacking and the attempted carjacking of Deanna
Francis and her daughter.
We review evidentiary rulings of the district court for abuse
of discretion.11 United States v. Delfino, 510 F.3d 468, 470
11
The Government contends that, except for the threats against the
police officers, Basham failed to preserve an objection to this evidence.
UNITED STATES v. BASHAM 33
(4th Cir. 2007), cert. denied, 129 S. Ct. 41 (2008). An error
of law is, by definition, an abuse of discretion. United States
v. Singh, 518 F.3d 236, 251 (4th Cir. 2008). We will not "‘va-
cate a conviction unless we find that the district court judge
acted arbitrarily or irrationally’ in admitting evidence."
United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008)
(quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.
1993)).
Under Rule 404(b), "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in
order to show action in conformity therewith." Fed. R. Evid.
404(b). Such evidence, however, may "be admissible for other
purposes, such as proof of motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of mistake or
accident." Id. Furthermore, "to be admissible under Rule
404(b), evidence must be (1) relevant to an issue other than
character; (2) necessary; and (3) reliable." United States v.
Siegel, 536 F.3d 306, 317 (4th Cir. 2008), cert. denied, 129
S. Ct. 770 (2008) (internal quotation marks omitted). Rule
404(b) is "an inclusive rule, admitting all evidence of other
crimes or acts except that which tends to prove only criminal
disposition." United States v. Young, 248 F.3d 260, 271-72
(4th Cir. 2001) (internal quotation marks omitted). And, "[a]s
a rule of inclusion, the rule’s list is not exhaustive." United
States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).
The Rule 404(b) inquiry, however, applies only to evidence
of other acts that are "extrinsic to the one charged." United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). "[A]cts intrinsic
to the alleged crime do not fall under Rule 404(b)’s limita-
Because we conclude that Basham is not entitled to relief under an abuse
of discretion standard, we do not address the Government’s argument that
Basham must meet the more onerous plain error standard. See, e.g., United
States v. Olano, 507 U.S. 725, 732-34 (1993) (noting defendant’s
increased burden under the plain error standard); United States v. Hughes,
401 F.3d 540, 547-48 (4th Cir. 2005) (same).
34 UNITED STATES v. BASHAM
tions on admissible evidence." Id. at 87-88. "Evidence of
uncharged conduct is not ‘other crimes’ evidence subject to
Rule 404 if the uncharged conduct ‘arose out of the same
series of transactions as the charged offense, or if [evidence
of the uncharged conduct] is necessary to complete the story
of the crime on trial.’" Siegel, 536 F.3d at 316 (quoting
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)).
See also Chin, 83 F.3d at 88 (noting "[o]ther criminal acts are
intrinsic when they are inextricably intertwined or both acts
are part of a single criminal episode or the other acts were
necessary preliminaries to the crime charged" (internal quota-
tion marks omitted)). Evidence is intrinsic if it is necessary to
"provide context relevant to the criminal charges." United
States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007).
Rule 403 provides a more limited bar to otherwise admissi-
ble evidence:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
Fed. R. Evid. 403.
"Evidence sought to be admitted under Rule 404(b) must
also satisfy Rule 403’s requirement." Siegel, 536 F.3d at 319.
Under this rule, "damage to a defendant’s case is not a basis
for excluding probative evidence," because "[e]vidence that is
highly probative invariably will be prejudicial to the defense."
United States v. Grimmond, 137 F.3d 823, 833 (4th Cir.
1998); see also 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 404.21(3)(b) (Joseph M.
McLaughlin, ed., 2d. Ed. 2002) (noting "[u]nfair prejudice
under Rule 403 does not mean the damage to a defendant’s
case that results from the legitimate probative force of the evi-
UNITED STATES v. BASHAM 35
dence"). Rule 403 "only requires suppression of evidence that
results in unfair prejudice—prejudice that damages an oppo-
nent for reasons other than its probative value, for instance, an
appeal to emotion, and only when that unfair prejudice sub-
stantially outweighs the probative value of the evidence."
United States v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003)
(internal quotation marks omitted). Unfair prejudice "speaks
to the capacity of some concededly relevant evidence to lure
the factfinder into declaring guilt on a ground different from
proof specific to the offense charged." Old Chief v. United
States, 519 U.S. 172, 180 (1997).
With this legal framework in place, we turn to each cate-
gory of evidence contested by Basham.12
A. Basham’s Drug and Alcohol Use and Sexual
Relationships
During its case-in-chief, the Government put forth evidence
that, during their escape, Basham and Fulks frequently used
drugs and alcohol, and that Basham had consensual sex with
Roddy and McGuffin. No evidence was proffered, however,
that Basham raped either victim—Samantha Burns or Alice
Donovan.
12
Basham raised an additional argument relating to the district court’s
evidentiary rulings: that the Government failed to provide proper notice of
its intent to use Rule 404(b) evidence. Rule 404(b) requires "reasonable
notice in advance of trial . . . of the general nature of any [Rule 404(b)]
evidence [the government] intends to introduce at trial." Fed. R. Evid.
404(b). This argument fails because the record illustrates that Basham had
sufficient notice of all of this bad acts evidence. See United States v.
Erickson, 75 F.3d 470, 478 (9th Cir. 1996) (finding no error under Rule
404(b) notice requirement where record showed defendant had actual suf-
ficient notice). For instance, Basham objected to admission of the threats
against the police officers and the teenagers before the Government even
reached that line of questioning with Tina Severance. See J.A. at 775
(introducing the objection by noting, "[o]ne other issue . . . I thought this
may be the appropriate time to do it . . . although it will be some distance
away").
36 UNITED STATES v. BASHAM
We do not believe that the district court abused its discre-
tion in admitting the evidence of Basham’s relationship with
McGuffin under either Rule 404(b) or 403. "Rule 404(b) does
not bar evidence that completes the story of the crime or
explains the relationship of parties or the circumstances sur-
rounding a particular event." United States v. Edwards, 159
F.3d 1117, 1129 (8th Cir. 1998). The evidence of Basham’s
relationship with McGuffin served exactly that purpose—in
particular, that relationship puts into context Basham’s deci-
sion to give Burns’s ring to McGuffin and to write inculpatory
letters to her from prison.
As for evidence of Basham’s relationship with Roddy and
his drug use, any abuse of discretion in admitting that evi-
dence was harmless. See Fed. R. Crim. P. 52(a) ("Any error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded."); Fed. R. Evid. 103(a) (noting
evidentiary errors support reversal only if they affect "sub-
stantial right"). Erroneously admitted evidence is harmless if
a reviewing court is able to "say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error." Kotteakos v. United States, 328 U.S.
750, 765 (1946); United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997).
While "it was detrimental to the defendants for the jury to
view them as drug [users]," United States v. Brooks, 125 F.3d
484, 500 (7th Cir. 1997), we remain cognizant that Basham
was charged with heinous actions during a crime spree fol-
lowing his escape from prison. Evidence that Basham used
drugs and had consensual sex with Roddy was unlikely to
substantially sway the jury in this case. The Government pre-
sented an overwhelming case against Basham during the guilt
phase; the carjacking and kidnapping were recorded by a
security camera, and Basham’s counsel, during opening state-
ment, summarized Basham’s situation succinctly: "Based on
what I told you, it should be fairly apparent at this point that
UNITED STATES v. BASHAM 37
we will, more than likely, with all probability, have a second
trial in this case. We will, more than likely, proceed into that
sentencing phase." (J.A. at 531.) While an attorney’s state-
ments are not evidence, they paint a fair picture of the evi-
dence against Basham in this case.
In addition, Basham actually used some of this evidence to
his advantage. For instance, during the guilt phase, Basham
focused on his lack of specific intent to kill Alice Donovan or
cause her serious bodily harm. To that end, Basham repeat-
edly contended that Fulks was the leader during the crime
spree, the driving force behind the violence. As Basham’s
counsel explained during closing argument, "[Fulks] was the
one buying the drugs, doling out the money . . . bringing
drugs back, and telling everybody how much they could
have." (J.A. at 1746.) The admission of this evidence was
harmless to Basham.
B. Basham’s Threats of Violence
Next, Basham objects to the admission of his statements in
the hotel room in Sturgis, Michigan, that he was prepared to
kill the two police officers who were knocking on hotel room
doors, his statements that he was going to rob and kill the
group of teenagers at the mall there because they had money,
and a statement he made to McGuffin that he was going to kill
her brother, who was selling drugs to Fulks. The Government
contends, and we agree, that these statements were admissible
under Rule 404(b)’s "other purposes" trigger, that is, that they
were relevant to Basham’s intent.
Basham’s specific intent to kill Donovan or cause her seri-
ous harm was the crucial issue at trial;13 Basham admitted to
carjacking and kidnapping Donovan during his opening state-
13
Indeed, during the deliberations the jury actually asked the district
court for a definition of intent, (J.A. at 1765-67), further suggesting that
Basham’s guilt turned on this element of the offense.
38 UNITED STATES v. BASHAM
ment and contended only that he lacked that specific intent.
Statements made after Basham’s escape that he was willing to
kill, without Fulks present, are thus clearly relevant to show
Basham was capable of having the specific intent to do harm.
See United States v. Higgs, 353 F.3d 281, 312 (4th Cir. 2003)
(death threats admissible to prove motive and intent); United
States v. Abraham, 386 F.3d 1033, 1035 (11th Cir. 2004)
(prior threats of violence admissible to prove motive, intent,
or lack of mistake). For these same reasons, the district court
did not abuse its discretion in declining to exclude these state-
ments under Rule 403 because, although undoubtedly prejudi-
cial, they were highly probative of Basham’s ability to form
the specific intent to cause serious harm.
C. Fulks’s High Speed Police Chase
Count 4 alleged a conspiracy between Basham and Fulks
to, among other aims, transport stolen cars in interstate com-
merce. Overt acts 19 and 20 related to Fulks’s efforts to hide
Donovan’s BMW at his brother’s home in Indiana following
Basham’s capture. Evidence of Fulks’s flight through the state
of Ohio was thus arguably intrinsic to proving this conspiracy
and those particular overt acts. Even intrinsic evidence, how-
ever, must also satisfy Rule 403’s balancing test, Grimmond,
137 F.3d at 832, and, as Basham notes, the Government intro-
duced this evidence via videotape of the chase itself.
Admission of this evidence, even if erroneous, however,
was harmless. The tape represented a minor portion of the
Government’s lengthy presentation and showed Fulks’s reck-
lessness and desire to avoid capture, not Basham’s. The Gov-
ernment presented overwhelming evidence of Basham’s guilt,
and we can confidently state that admission of this tape did
not substantially sway the jury’s verdict.
D. The Burns Carjacking and Francis Attempted
Carjacking
Basham’s fourth contention is that the district court permis-
sibly admitted (1) evidence that Basham and Fulks carjacked,
UNITED STATES v. BASHAM 39
kidnapped, and murdered Burns, and (2) evidence that
Basham attempted to carjack Deanna Francis and her daugh-
ter, but that the district court impermissibly let the Govern-
ment use this evidence in its closing argument not to prove
intent under Rule 404(b), but to prove propensity. Basham did
not object to the Government’s closing argument, so our
review is for plain error. United States v. Fields, 483 F.3d
313, 340 (8th Cir. 2007), cert. denied, 128 S. Ct. 1065 (2008).
Under plain error review, Basham must show that (1) the dis-
trict court committed an error; (2) the error was plain; and (3)
the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 732-34 (1993); United States v. Hughes,
401 F.3d 540, 547-48 (4th Cir. 2005). Even if Basham makes
this showing, we notice the error only if it "seriously affects
the fairness, integrity or public reputation of judicial proceed-
ings." Hughes, 401 F.3d at 555 (internal quotation marks and
citation omitted).
We find no error, let alone plain error, on this claim. The
Government referred to both incidents in its closing argu-
ments during a list of incidents showing that Basham pos-
sessed "intent to harm, and threat[en], and cause serious
bodily harm and death." (J.A. at 1728-29.) It discussed the
Burns and Francis incidents as follows:
What evidence do you have? Ladies and gentlemen,
you have got Alice Donovan sandwiched in between
Samantha Burns and Andrea Francis. Similarities are
unbelievable. You got Brandon Basham participat-
ing, going to a mall just like with Alice Donovan,
with Samantha Burns, abducting a lone female, kill-
ing her, and disposing of her body three days before
Alice Donovan. And three days after Alice Donovan,
you got Brandon Basham going to a mall, picking
out an isolated female and trying to carjack and kid-
nap her. So, three days before and three days after
Alice Donovan, you got Brandon Basham acting
with the same, similar intent with the same, similar
40 UNITED STATES v. BASHAM
motivation. Samantha Burns is dead. Andrea Fran-
cis, they weren’t able to get her.
(J.A. at 1728.)
Basham takes isolated statements from this argument to
suggest that the Government was contending that Basham
should be found guilty of killing Donovan because he mur-
dered Samantha Burns and attempted to carjack the Francis
family. Such an argument, Basham notes, would be forbidden
by Rule 404(b)’s admonition that other act evidence is not
usable "to prove the character of a person to prove conformity
there with." Fed. R. Evid. 404(b). A full examination of this
closing argument, however, reveals that the Government tied
this evidence entirely to a discussion of Basham’s intent.
Accordingly, there was no error, let alone plain error, in
allowing the Government’s closing argument on this point.
E. Cumulative Error
Basham’s final contention is that, even if the improperly
admitted evidence, when viewed individually, is harmless,
that result changes when the evidence is viewed cumulatively.
Pursuant to the cumulative error doctrine, "[t]he cumulative
effect of two or more individually harmless errors has the
potential to prejudice a defendant to the same extent as a sin-
gle reversible error." United States v. Rivera, 900 F.2d 1462,
1469 (10th Cir. 1990) cited with approval in United States v.
Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Generally, how-
ever, if a court "determine[s] . . . that none of [a defendant’s]
claims warrant reversal individually," it will "decline to
employ the unusual remedy of reversing for cumulative
error." Fields, 483 F.3d at 362. To satisfy this requirement,
such errors must "so fatally infect the trial that they violated
the trial’s fundamental fairness." United States v. Bell, 367
F.3d 452, 471 (5th Cir. 2004). When "none of [the] individual
rulings work[ ] any cognizable harm, . . . [i]t necessarily fol-
UNITED STATES v. BASHAM 41
lows that the cumulative error doctrine finds no foothold."
Sampson, 486 F.3d at 51.
In the instant case, given the overwhelming evidence
against Basham, and the fact that neither the admission of
Basham’s drug use nor the admission of Fulks’s car chase "in-
dividual[ly] work[ ] any cognizable harm" and were mere
blips in a presentation that included eighty-nine witnesses and
countless exhibits, we have little difficulty concluding that
cumulatively there is no error. Id.
V. Penalty Phase Evidence
Basham next raises several contentions regarding the
admissibility of certain evidence during the penalty phase of
the trial. In particular, Basham contends that the district court
should not have admitted: (1) evidence of his behavior toward
female prison employees; (2) evidence of a scuffle in the
courtroom between him and the United States Marshals; and
(3) the trial record itself. Basham also contends that the dis-
trict court should have admitted as evidence that, in Fulks’s
trial, the Government referred to Basham as Fulks’s "puppet."
Basham failed to raise a timely objection to the latter two rul-
ings.
We review evidentiary rulings for abuse of discretion. Del-
fino, 510 F.3d at 470. We have held that this standard of
review is equally applicable to evidentiary rulings made at the
penalty phase. Fulks, 454 F.3d at 434. By statute, however, at
the penalty phase, if evidence was erroneously admitted,
reversal is mandated unless the Government can show beyond
a reasonable doubt that the error was harmless. United States
v. Barnette, 211 F.3d 803, 824 (4th Cir. 2000); 18 U.S.C.A.
§ 3595(c)(2)(C) (noting, for "any other legal error requiring
reversal . . . that was properly preserved . . . [t]he court of
appeals shall not reverse or vacate a sentence of death on
account of any error which can be harmless"). Basham’s
unpreserved claims are reviewed for plain error.
42 UNITED STATES v. BASHAM
In federal capital sentencing hearings, the Federal Rules of
Evidence do not apply. Instead, 18 U.S.C.A. § 3593(c) (West
2000 & Supp. 2008) provides:
Information is admissible regardless of its admissi-
bility under the rules governing admission of evi-
dence at criminal trials except that information may
be excluded if its probative value is outweighed by
the danger of creating unfair prejudice, confusing the
issues, or misleading the jury.
18 U.S.C.A. § 3593(c).
That section also provides that the Government "may pre-
sent any information relevant to an aggravating factor for
which notice has been provided" and that a defendant "may
present any information relevant to a mitigating factor." Id.
Moreover, "[i]nformation presented may include the trial tran-
script and exhibits if the hearing is held by a jury or judge not
present during the trial, or at the trial judge’s discretion." Id.
Courts have noted that the FDPA "erects very low barriers"
of admissibility given that "the need to regulate the scope of
testimony is less at the penalty phase than at the guilt phase."
United States v. Lee, 274 F.3d 485, 494 (8th Cir. 2001). With
this statutory framework in place, we turn to each of
Basham’s claims.
A. Basham’s Behavior Toward Female Prison Employees
The Government’s death notice against Basham listed "fu-
ture dangerousness" as a non-statutory aggravating circum-
stance. Future dangerousness is best defined as evidence that
a defendant is "likely to commit criminal acts of violence in
the future that would be a threat to the lives and safety of oth-
ers." United States v. Bernard, 299 F.3d 467, 482 (5th Cir.
2002). The Supreme Court has recognized future dangerous-
ness as a legitimate aggravating factor in capital proceedings.
Simmons v. South Carolina, 512 U.S. 154, 162-63 (1994). At
UNITED STATES v. BASHAM 43
the penalty phase, the Government sought to introduce evi-
dence that Basham’s behavior in correctional facilities and his
behavior toward female prison employees indicated a failure
to adapt to societal norms and suggested his future dangerous-
ness towards inmates and correctional employees. To that
end, during the penalty phase, the Government introduced
evidence that Basham, while imprisoned prior to trial,
hoarded medicine, fought with guards, broke prison rules, and
brought in contraband. Basham did not object to this evi-
dence.
The Government next entered testimony, over Basham’s
objection, that Basham exposed himself and masturbated in
front of female nurses delivering medicine. Likewise, a male
guard testified that, when, at the nurses’ request, he con-
fronted Basham regarding the behavior, Basham smiled and
said he was just playing around with the women. The experi-
ences of one particular nurse, Jennifer Miosi, are representa-
tive. Nurse Miosi testified that, on one occasion, Basham
masturbated when Miosi was speaking with him, ignored
requests to stop, and ejaculated in her direction. On other
occasions, Basham asked her to stay and watch him finish
masturbating. He once stuck his erect penis and genitals
through the food slot of his cell and ejaculated at her. He also
threatened to sodomize her during an incident involving a
telephone. Basham had been given a headset to make a phone
call from his cell but refused to give it back and began threat-
ening the staff that he was going to "use it to bash people’s
heads in." (J.A. at 2036.) Nurse Miosi attempted to de-
escalate the situation, to which Basham responded by threat-
ening her, "I am going to f**k you up the a**, Ms. Miosi. I
am going to kill you, psych b***h." (J.A. at 2038.)
We do not believe the district court abused its discretion in
admitting this evidence. First, under § 3593(c), the Govern-
ment may introduce "any information relevant to an aggravat-
ing factor for which notice has been provided." This evidence
is clearly "relevant" to the future dangerousness aggravator.
44 UNITED STATES v. BASHAM
Relevance "means evidence having any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence." Fed. R. Evid. 401. "[R]elevance
typically presents a low barrier to admissibility." United
States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003). Thus,
evidence is relevant if it is "worth consideration by the jury"
or has a "plus value." Queen, 132 F.3d at 998 (internal quota-
tion marks omitted). Evidence that Basham, while a prisoner,
engaged in sexually aggressive and threatening behavior
towards female employees clears that minimal hurdle as to his
future dangerousness. See, e.g., United States v. LeCroy, 441
F.3d 914, 930 (11th Cir. 2006) (concluding that evidence of
prior crimes was "clearly probative" to defendant’s future
dangerousness); Bernard, 299 F.3d at 482 (concluding that
evidence of propensity for violence in prison permitted find-
ing of future dangerousness); Lee, 274 F.3d at 494 (holding
that evidence defendant abused a girlfriend, assaulted his sis-
ter, and assaulted patients and inmates at facilities probative
of future dangerousness).
Second, we do not believe the district court abused its dis-
cretion in concluding that the probative value of the evidence
was not outweighed by the risk of unfair prejudice. We do
appreciate the fact that the female employees were not partic-
ularly concerned by Basham’s display; for instance, one nurse
testified that she chose not to report Basham for his behavior,
and Nurse Miosi testified she "didn’t feel as though [she] was
in danger of him trying to grab . . . or hit . . . [her] hands" dur-
ing the foot slot incident (J.A. at 2031), and that "the thing is,
I can walk away from his cell. He can’t follow me." (J.A. at
2050.) This testimony in and of itself, however, would seem
to eliminate much of the concern of unfair prejudice Basham
raises. Moreover, given the heinousness of the acts committed
by Basham during his escape, we find it unlikely that this evi-
dence would particularly inflame the jury. See Lee, 274 F.3d
at 494 (finding unfair prejudice did not outweigh probative
value of future dangerousness evidence because "none of the
UNITED STATES v. BASHAM 45
evidence elicited . . . was likely to inflame the jury as much
as testimony about [the defendant’s] involvement in the mur-
der"). Indeed, Basham’s counsel, during the guilt phase, noted
that the criminal acts committed by Basham were "despica-
ble" and would "shock" the jury. (J.A. at 524, 523.)
Basham contends, however, that the risk of unfair prejudice
from the evidence regarding his sexually threatening behavior
was elevated because the Government had posited that
Fulks—but not Basham—raped Donovan prior to her death.
Thus, argues Basham, evidence of his sexually inappropriate
behavior toward the female prison employees might have led
the jury to associate him with those rapes as well. We dis-
agree; any such minimal risk is offset by the highly probative
nature of this evidence and the fact that this evidence was no
more likely to inflame the jury than the testimony of the hei-
nous acts committed by Basham in November 2002.
B. The Courtroom Scuffle
During the guilt phase of the trial, it came to the district
court’s attention that Basham was having trouble staying
awake in court. Basham informed the court that he was unable
to stay awake by the afternoon because he was emotionally
exhausted and stressed out; he then became emotional, saying
he simply wanted to sign the death warrant and be executed.
As a less drastic measure, the district court agreed to let
Basham, in exchange for staying awake, use chewing tobacco
in court.
The following Monday, the district court withdrew this
promise on the advice of the United States Marshal. The Mar-
shal informed the court that Basham had a history of flinging
fluids—bodily and otherwise—at correctional officers, and
the Marshal was concerned about what Basham might do with
the spit created by chewing tobacco. As a compromise, the
district court offered Basham nicotine gum and Mountain
Dew, or a similarly caffeinated beverage. Later, outside the
46 UNITED STATES v. BASHAM
presence of the jury, the district court addressed a report that
Basham had told another marshal that he did not actually care
about having the chewing tobacco, but that he just wanted to
make U.S. Deputy Marshal Riley, an African-American, mad.
During this discussion, Basham became agitated and asked to
go downstairs to a holding cell to watch the proceedings.
After the district court informed Basham that would not be
possible because Basham’s counsel had previously indicated
opposition to him leaving the courtroom, Basham refused to
comply with the district court’s instruction to take his seat.
Marshals approached Basham to assist him to his seat,
prompting Basham to say, "Let me go, like I said. You mother
f***ers." (J.A. at 1156.) The trial transcript continues,
"[w]hereupon a tussle ensued in the courtroom between the
defendant and the marshals." (J.A. at 1156.)
Basham kept a running commentary during the "tussle,"
swearing at the marshals, saying "[t]he f***ing judge lied to
me," (J.A. at 1157), claiming that he never said anything to
Deputy Marshal Riley, and that "It is all because that Riley is
black. It is racism is all it was." (J.A. at 1158.) Basham then
noted, "And another thing. You talking about spitting. If I was
going to spit, I would be spitting now." (J.A. at 1158.)
Once the situation was controlled, Basham was sent down-
stairs to the holding cell. The trial was adjourned for that
afternoon. Thereafter, the district court permitted Basham to
have dip during breaks, and Basham behaved himself. During
the penalty phase, over Basham’s objection, the Government
moved to introduce the transcript and videotape of the scuffle.
The district court obliged, but removed all references to him-
self (i.e. the threat "the f***ing judge lied") and to Basham’s
beliefs that the confrontation was spurred by racism. The dis-
trict court was concerned that putting those details before the
jury could cause it to punish Basham for threatening the judge
or being racially insensitive instead of for the crimes charged.
Again, like the evidence of Basham’s sexual misconduct
towards the female prison employees, this evidence was
UNITED STATES v. BASHAM 47
clearly relevant to Basham’s future dangerousness—it proved
his confrontational nature toward authority figures, particu-
larly prison officials. It was also probative as rebuttal to one
of Basham’s principal mitigation arguments—that Basham
suffered from various mental defects limiting his culpability.
Basham’s actions and manipulation during the episode (say-
ing he would have spit during the fight if he was someone
who did spit), coupled with the fact that he remained calm
during the remainder of the trial once he was permitted to
have his chewing tobacco during breaks, point to a manipula-
tive individual.
Moreover, the district court substantially diminished any
risk of unfair prejudice by excising Basham’s comments
about racism and the district court. In these circumstances, we
cannot say the district court abused its discretion in admitting
this evidence.
C. The Trial Transcript
Basham failed to raise a contemporaneous objection to the
admission of the trial transcript during the penalty phase.14
Accordingly, we review this claim for plain error. Chin, 83
F.3d at 87. Under plain error review, Basham must show that
(1) the district court committed an error; (2) the error was
plain; and (3) the error affected his substantial rights, i.e., that
the error affected the outcome of the penalty phase. Olano,
507 U.S. at 732-34; Hughes, 401 F.3d at 547-48. Even if
Basham makes this showing, we notice the error only if it "se-
riously affects the fairness, integrity or public reputation of
judicial proceedings." Hughes, 401 F.3d at 555 (internal quo-
tation marks and citation omitted).
Section 3593(c) provides that "[i]nformation" during the
14
Basham contends that he did raise such an objection, but a review of
the record shows that Basham simply asked the district court to include all
of his objections to trial testimony in admitting the record.
48 UNITED STATES v. BASHAM
penalty phase "may include the trial transcript and exhibits if
the hearing is held before a jury or judge not present during
the trial, or at the trial judge’s discretion." 18 U.S.C.A.
§ 3593(c). Thus, the language of the FDPA clearly rests the
decision to admit the trial record firmly in the district court’s
discretion. Common sense would dictate that, given that the
same jury is presumed to hear both the guilt and penalty
phases, see 18 U.S.C.A. § 3593(b), the trial record is almost
always going to be considered during the penalty phase. Cf.
United States v. Ortiz, 315 F.3d 873, 902 (8th Cir. 2002) (not-
ing "the government permissibly relied on evidence intro-
duced at trial" to prove an aggravating factor during the guilt
phase).
Section 3593(c), however, sets forth a different evidentiary
standard than the Federal Rules of Evidence provide at trial.
Thus, "a court has two separate sets of responsibilities with
respect to evidence that a single jury may consider twice,
once when deciding between guilt and acquittal, the other
when deciding between life and death." United States v.
Pepin, 514 F.3d 193, 207 (2d Cir. 2008). To that end, courts
have found reversible error when a district court applies the
Federal Rules of Evidence to keep evidence out during the
penalty phase. Lee, 274 F.3d at 495. Such a rule does not,
however, suggest that the FDPA’s evidentiary rules operate to
keep out a great deal of relevant evidence. Instead, the
Supreme Court itself recognized it is "desirable for the jury to
have as much information before it as possible when it makes
the sentencing decision." Gregg v. Georgia, 428 U.S. 153,
204 (1976).
In this case, we do not believe that the district court com-
mitted plain error in admitting the trial record. Basham’s main
objection is to the admission of the evidence of Basham’s
drug use and sexual encounters during the crime spree; how-
ever this evidence was highly probative of several of the Gov-
ernment’s aggravating factors, namely, Basham’s intent in
killing Donovan, his lack of remorse, see Ortiz, 315 F.3d at
UNITED STATES v. BASHAM 49
902 (evidence that defendant went drinking after being paid
for murder-for-hire showed lack of remorse); Jackson v.
Johnson, 194 F.3d 641, 652 (5th Cir. 1999) (finding that evi-
dence that defendant played pool and drank beer was relevant
to show a lack of remorse), and his future dangerousness.
And, given that the jury had already heard all of this evidence,
it is somewhat difficult to understand how prejudicial its
admission in the form of the trial record could be.15
D. Inconsistent Statements During Fulks’s Trial
Finally, Basham argues that the district court should have
admitted statements made by the Government during Fulks’s
trial that suggested Basham was merely Fulks’s "puppet" dur-
ing their crime spree. Basham concedes that he did not raise
this claim below. A review of the record, however, convinces
us that plain error review is not even available on this claim.
Prior to trial, Basham moved to enter—as evidence at the
penalty phase—the Government’s statements in Fulks’s case
about Basham’s role in the offense. The district court stated
that it would defer ruling on the motion until the Government
presented its case in chief. Basham’s attorney responded "that
works for us" (J.A. at 511), but thereafter never moved for
admission of those statements. By failing to request that the
district court rule on the admissibility of that evidence,
Basham has waived this argument. See United States v. Jack-
15
For similar reasons, we also reject Basham’s related contention that,
even if the record was properly admitted, the Government impermissibly
used the testimony regarding Basham’s drug use and sexual encounters
during closing arguments and elsewhere as propensity evidence. To the
extent the Government did make such arguments during the closing argu-
ment, there was no plain error because that evidence was relevant to
aggravating factors. Moreover, the district court properly instructed the
jury that closing arguments were not evidence, (J.A. at 1908), and we pre-
sume the jury follows instructions, Jones v. United States, 527 U.S. 373,
394 (1999) ("The jurors are presumed to have followed . . . [the] instruc-
tions.").
50 UNITED STATES v. BASHAM
son, 346 F.3d 22, 24 (2d Cir. 2003) ("Where . . . a claim has
been waived through explicit abandonment, rather than for-
feited through failure to object, plain error review is not avail-
able."). It would be difficult to see how the district court
committed plain error when it never even issued a ruling to
be found in error.16
VI. Jury Instructions
We review de novo the question of whether a mitigator was
properly submitted to the jury during the penalty phase.
Higgs, 353 F.3d at 328. Under 18 U.S.C.A. § 3592(a), "[i]n
determining whether a sentence of death is to be imposed on
a defendant, the finder of fact shall consider any mitigating
factor." Section 3592(a)(1-7) lists seven particular mitigating
factors; subsection (a)(8) is a catchall, which permits the jury
to find, as a mitigating factor, "[o]ther factors in the defen-
dant’s background, record, or character or any other circum-
stance of the offense that mitigate against imposition of the
death sentence." 18 U.S.C.A. § 3592(a)(8).
Prior to issuing the jury instructions during the penalty
phase in this case, the district court announced, over
Basham’s objection, that it would issue an instruction on
§ (a)(8) but would not include it on the special verdict form
because of its "catchall" nature. (J.A. at 2738-41.) In its actual
instructions, the district court informed the jury that Basham
raised six statutory mitigating factors:
Number Six, any other factors in Brandon Leon
Basham’s background, record, or character, or any
other circumstance of the offense that mitigates it
against the imposition of the death sentence.
16
Basham also contends that the cumulative error doctrine applies to
these claims. Because we conclude that the district court did not commit
error in its evidentiary rulings during the penalty phase, it follows a forti-
ori that there was no cumulative error.
UNITED STATES v. BASHAM 51
(J.A. at 2751.)
In its final discussion of mitigating factors, the district court
reiterated:
Unlike aggravating factors, the law does not limit
your consideration of mitigating factors to those that
are listed for you; therefore, if there are any mitigat-
ing factors not listed in these instructions, but which
any juror finds to be established by a preponderance
of the evidence, that juror is free to consider them in
his or her sentencing decision.
(J.A. at 2755.)
Later during the instructions, the district court instructed
the jury on the special verdict form:
I have prepared a form entitled ‘Special Verdict
Form’ to assist you during deliberations. You are
required to record your decisions on this form . . . it
will be necessary for you to record the number of
jurors, if any, who found each mitigating factor. For
a jury’s determination to be tallied on the verdict
form in this fashion requires that the juror individu-
ally go through the two-step process.
(J.A. at 2760-61, 2749)
The district court reiterated, "on the special verdict form in
Section 5, you should report the total number of jurors who
found that any particular factor was established by a prepon-
derance of the evidence, and that the factor was also mitigat-
ing." (J.A. at 2750.) As mentioned, however, while the district
court instructed that the jury could consider any "other fac-
tors," (J.A. at 2751), there was no space on the special verdict
form to record any such factor. The district court, however,
clearly explained this omission to the jury:
52 UNITED STATES v. BASHAM
[W]hen I was going through these statutory mitigat-
ing factors, I listed six. The sixth was kind of a
catchall factor that is not listed on this verdict form.
The sixth one that I read to you said, any other fac-
tors in Brandon Basham’s background, record, char-
acter, or any other circumstance of the offense that
mitigates the sentence of life against the imposition
of the death sentence. Since that is overall, I have not
listed it on the finding form because it would be
impossible to list an infinite number of mitigating
factors. But I want to remind you that you are not
limited to this list of mitigating factors. If any indi-
vidual juror can think of a factor that is mitigating
that has been proven in this case, you may consider
that factor in the weighing process, regardless of
whether it is in this list or not, and regardless of
whether any other juror found that mitigating factor
to exist.
(J.A. at 2769.)
The Eighth Amendment requires that the jury "not be pre-
cluded from considering as a mitigating factor, any aspect of
a defendant’s character or record or any of the circumstances
of the offense that the defendant proffers as a basis for a sen-
tence less than death." Lockett v. Ohio, 438 U.S. 586, 604
(1978) (plurality). That is, "the jury [must] be able to ‘con-
sider and give effect to [a defendant’s mitigating] evidence in
imposing sentence.’" Penry v. Johnson, 532 U.S. 782, 797
(2001) ("Penry II") (quoting Penry v. Lynbaugh, 492 U.S.
302, 319 (1989) ("Penry I"), abrogated on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002)). Only if this standard
is met can a court be sure that the jury "has treated the defen-
dant as a uniquely individual human bein[g] and has made a
reliable determination that death is the appropriate sentence."
Penry I, 492 U.S. at 319 (internal quotation marks omitted).
"Neither the FDPA nor [the Constitution] require a capital
jury to give mitigating effect or weight to any particular evi-
UNITED STATES v. BASHAM 53
dence." United States v. Paul, 217 F.3d 989, 999 (8th Cir.
2000); see also Higgs, 353 F.3d at 327 (noting that "the Con-
stitution only requires that the jury be allowed to consider evi-
dence that is proffered as mitigating . . . [t]here is no
constitutional requirement that the jury find a mitigating fac-
tor"). Thus, "[t]here is only a constitutional violation if there
exists a reasonable likelihood that the jurors believed them-
selves precluded from considering relevant mitigating evi-
dence." Id. See Boyde v. California, 494 U.S. 370, 380 (1990)
(setting forth "reasonable likelihood" test). A jury need only
"be able to consider in some manner all of a defendant’s rele-
vant mitigating evidence," and need not "be able to give effect
to mitigating evidence in every conceivable manner in which
the evidence might be relevant." Johnson v. Texas, 509 U.S.
350, 372 (1993). The government’s capital sentencing proce-
dures "may shape and structure the jury’s consideration of
mitigation so long as it does not preclude the jury from giving
effect to any relevant mitigating evidence." Buchanan v.
Angelone, 522 U.S. 269, 276 (1998).
Basham contends that, although the district court’s oral jury
instruction may have properly informed the jurors that they
could consider any "other factors" in mitigation, the absence
of such a mitigator from the special verdict form created a
reasonable likelihood that jurors, in fact, believed they were
precluded from considering "other factors" in mitigation.
We disagree.17 In Jones v. United States, 527 U.S. 373, 393
(1999), the Court rejected a similar argument, concluding that
a district court’s "explicit instruction" could overcome any
ambiguity or confusion caused by a verdict form. Likewise,
17
We also note that at least two courts have held—under the
FDPA—that jurors do not have to be permitted to even record mitigating
factors on a special verdict form. United States v. Paul, 217 F.3d 989, 999
n.6 (8th Cir. 2000); United States v. Hall, 152 F.3d 381, 413 (5th Cir.
1998) abrogated on other grounds by United States v. Martinez-Salazar,
528 U.S. 304 (2000).
54 UNITED STATES v. BASHAM
in this case the district court explicitly instructed that "other
factors" (J.A. at 2751) could be considered as a statutory miti-
gator, and even summarized its mitigation instruction to reit-
erate that "any mitigating factors," even those unmentioned
by the parties or absent from the special verdict form, could
be considered by a juror. (J.A. at 2755.)
Basham primarily relies upon the Court’s decision in Mills
v. Maryland, 486 U.S. 367 (1988). In Mills, the state trial
judge issued an instruction that, when read in conjunction
with the verdict form, arguably required the jury to find miti-
gating circumstances unanimously before they could be con-
sidered in determining if a death sentence was appropriate.
The Court set aside the death sentence, finding a "substantial
probability that reasonable jurors, upon receiving the judge’s
instructions in this case, and in attempting to complete the
verdict form as instructed, well may have thought they were
precluded from considering any mitigating evidence unless all
12 jurors agreed on the existence of a particular such circum-
stance." Id. at 384. We have since explained that Mills covers
claims beyond the unanimity requirement, that is, claims that
ambiguous verdict forms may create "confusion precluding
the jury from considering mitigating evidence." Burch v. Cor-
coran, 273 F.3d 577, 587 (4th Cir. 2001).
Mills is inapplicable to the present case; the district court,
correctly and concisely, instructed the jury that it was free to
consider any factor in mitigation, including factors not specif-
ically raised. That was in addition to the district court’s recita-
tion of five other statutory mitigating factors and thirty non-
statutory mitigating factors. And, when explaining the special
verdict form, the district court reiterated, in clear language,
that a juror could consider any mitigating factor it desired,
even if it did not appear on the form. This case is a far cry
from Mills, in which the jury instructions suggested no miti-
gating factors could be considered unless the jury unani-
mously so found. Indeed, the underlying current in this line of
Supreme Court precedent is confusion in the oral jury instruc-
UNITED STATES v. BASHAM 55
tion itself. See, e.g., Penry II, 532 U.S. at 798 (in reversing
death sentence, Court noted the mitigating instruction was a
"confusing instruction" that made it "logically and ethically
impossible for a juror to follow both sets of instructions").
Basham’s argument also runs into the "strong policy
against retrials . . . where the claimed error amounts to no
more than speculation." Boyde, 494 U.S. at 380. "[A] capital
sentencing proceeding is not inconsistent with the Eighth
Amendment if there is only a possibility [that the jury applied
a challenged instruction in a way that prevented the consider-
ation of mitigating evidence]." Id. We conclude there is no
such possibility in this case, and the omission of the "other
factors" mitigator from a special verdict form listing thirty-six
statutory and non-statutory mitigating factors does not raise a
"reasonable likelihood" that mitigating evidence was withheld
from the jury.
VII. Section 3595
Section 3595 of the FDPA states that "[t]he court of
appeals . . . shall consider whether the sentence of death was
imposed under the influence of passion, prejudice, or any
other arbitrary factor." 18 U.S.C.A. § 3595(c)(1). Accord-
ingly, we are "obliged" to review the entire record indepen-
dently even if the defendant does not raise the issue. Fulks,
454 F.3d at 421 n.4.
Courts, including our own, have looked at several factors
in determining if a death sentence was imposed under an
improper influence, such as the following: whether the jury
was instructed not to rely on an arbitrary factor, Fields, 483
F.3d at 362 n.42, whether sufficient evidence supported the
aggravating factors, Barnette, 211 F.3d at 820-21; Paul, 217
F.3d at 1017, whether the jury’s verdict indicates that it con-
sidered the evidence dispassionately, Sampson, 486 F.3d at
51-52, and whether the trial was conducted fairly, Fulks, 454
F.3d at 421 n.4. We will vacate a death sentence when an
56 UNITED STATES v. BASHAM
arbitrary factor "most likely" influenced the sentence. United
States v. Agofsky, 458 F.3d 369, 373 (5th Cir. 2006); United
States v. Johnson, 223 F.3d 665, 676 (7th Cir. 2000).
With these factors in mind, we conclude that Basham’s sen-
tence was not rendered under the influence of passion, preju-
dice, or another arbitrary factor. First, and most importantly,
the jury’s verdict indicates that it followed its instructions and
weighed the evidence dispassionately: it rejected one of the
Government’s aggravators (future dangerousness), and at
least one juror found nineteen of Basham’s thirty-six statutory
and non-statutory mitigators. See Sampson, 486 F.3d at 52
(finding no arbitrariness when "the jurors failed to find other
aggravating factors . . . [and] the jurors found several mitigat-
ing factors"). This verdict "suggest[s] that the jury considered
the evidence in a thorough, even-handed, and dispassionate
manner." Id.
In addition, the district court properly instructed the jury to
not rely on arbitrary factors, and the Government had signifi-
cant evidence supporting several of its aggravators, that:
Basham was an escapee, killed Burns, committed acts of vio-
lence towards James Hawkins, Carl Jordan, and Officer
Davis, and impacted Donovan’s family. See Paul, 217 F.3d at
1005 ("In light of the substantial evidence supporting the
aggravating factors found by the jury, we cannot say that the
sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor.").
Basham’s chief argument on this issue is that, given the
misconduct of Cynthia Wilson (the jury foreperson), it is
naive to believe that this jury was capable of following
instructions or weighing the evidence. Certainly, Cynthia Wil-
son was not a model juror in any way, shape, or form, and we
applaud the district court’s decision to sanction her for her
behavior. But the jury’s actual verdict, which is the best evi-
dence of the jury’s internal thought process, illustrates that the
jury did carefully consider the evidence presented both in
UNITED STATES v. BASHAM 57
aggravation and mitigation of Basham’s crimes. See Paul, 217
F.3d at 1004-05 (finding no arbitrariness when jury followed
"exactly the process [it] was to complete").
Accordingly, we conclude that Basham’s sentence was per-
missible under § 3595.
VIII. Conclusion
"[T]he Constitution entitles a criminal defendant to a fair
trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986). Brandon Basham’s capital trial may not have
been a perfect one, but a review of the proceedings below and
the district court’s cautious and thorough handling of them
convinces us that he did receive a fair one. The judgment of
the district court is
AFFIRMED.