United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1925
___________
German C. Sinisterra, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
United States of America, *
*
Appellee. *
___________
Submitted: December 15, 2009
Filed: April 1, 2010
___________
Before RILEY,1 Chief Judge, WOLLMAN, and MELLOY, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
German Sinisterra was convicted of murder, drug trafficking, traveling in
interstate commerce with the intent to commit a murder for hire, and criminal
forfeiture, and was sentenced to death. After his convictions and sentence were
affirmed on appeal, United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002), Sinisterra
moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Sinisterra
argued, among other things, that he had been denied his Sixth Amendment right to
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
effective assistance of counsel during the penalty phase of his trial. The district court
denied the motion without holding an evidentiary hearing, and Sinisterra appeals. We
affirm in part, reverse in part, and remand for an evidentiary hearing.
I. Background
Sinisterra worked as a drug courier for Edwin Hinestroza, who ran a cocaine
distribution ring in the Kansas City, Missouri, area. Cocaine shipments came from La
Oficina, a drug cartel, in Colombia, South America, via Mexico. Sinisterra
transported cocaine from Houston, Texas, to Kansas City.
Hinestroza lived in Kansas City with Monica Osma, the sister of the murder
victim, Julian Colon. In late 1998, $240,000 of drug proceeds was stolen from the
apartment that Hinestroza and Osma shared. According to Osma, the apartment was
robbed and she was injured during the robbery. Shortly after the alleged robbery,
Hinestroza, his associate, and two men claiming to represent La Oficina questioned
Osma about the incident. They did not believe her account and issued a death threat,
meaning that La Oficina would not be satisfied unless someone was killed.
Two days after the meeting with Osma, Hinestroza asked Colon and Héberth
Andres Borja-Molina to meet him at a hotel, where they were confronted by
Hinestroza, Sinisterra, and two other men. Colon and Borja-Molina went with the
men to another house in Kansas City, where they were bound with duct tape and
beaten. The men demanded to know where the missing $240,000 was. The beatings
and demands continued until Borja-Molina overheard Hinestroza order the men to
“shoot him [Colon] in the head” and then heard “shoot the other one, too.” Borja-
Molina heard the sound of a gunshot and ringing in his ears. Pretending to be dead,
Borja-Molina was placed with Colon’s body in the trunk of a vehicle. The vehicle
was driven to a park, where it and the bodies were abandoned. After he was arrested,
Sinisterra admitted that he had shot Colon and that Hinestroza had employed him to
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participate in the beatings and shootings, promising to pay him $1,000 for his
participation.
Sinisterra was charged with (1) conspiracy to distribute five or more kilograms
of cocaine; (2) aiding and abetting the use of a firearm in relation to a drug-trafficking
crime and committing a murder in the perpetration of a drug-trafficking crime; (3)
knowingly traveling in interstate commerce with the intent that a murder for hire be
committed; and (4) criminal forfeiture. Attorney Fred Duchardt was appointed to
represent Sinisterra. He asked Jennifer Herndon to serve as co-counsel. Both
Duchardt and Herndon had previously handled capital cases. Duchardt hired Daniel
Grothaus, a private investigator, to serve as both the fact investigator and the
mitigation specialist. Grothaus was highly regarded as a fact investigator, and
Duchardt gave him the dual role to obtain a higher pay rate. Herndon disagreed with
the decision to forego hiring a mitigation specialist.
According to his affidavit, Grothaus has been working as a defense investigator
in capital cases since 1988. Grothaus spent the majority of his time investigating
issues related to the guilt phase of Sinisterra’s trial, although he interviewed some of
Sinisterra’s friends and family members in Houston for mitigation purposes. Those
interviews provided information about Sinisterra’s relationships and his role as a
husband, father, and friend. Grothaus did not investigate Sinisterra’s background or
social history and did not gather any records of his life history. Herndon, who was in
charge of the penalty phase of trial, undertook most of the mitigation investigation
herself. Grothaus was not asked to develop mitigation themes, to prepare
demonstrative evidence for the penalty phase, or to assist in drafting the mitigating
factors to be considered by the jurors.
Defense counsel decided to present mitigation evidence through live witnesses
at the penalty phase of trial. Because Sinisterra was born and raised in Buenaventura,
Colombia, Herndon traveled to Colombia to meet with Sinisterra’s mother, other
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family members, and friends. According to Herndon, the interviews she conducted
were preliminary interviews to get acquainted with the family and friends and to
develop rapport; she did not delve into issues of abuse or family discord. She
recorded her interviews, but did not intend to introduce the recordings at trial. She
made no attempt to gather records in Colombia, nor did she ask Sinisterra’s family
members who lived there to do so. The potential Colombian witnesses were required
to secure visas or humanitarian parole to gain entry into the United States. According
to Duchardt, although all appropriate steps were taken to assist potential witnesses in
timely applying for the visas, the applications were denied and thus Sinisterra’s
relatives were unable to enter this country.
Following the guilt phase of Sinisterra’s trial, the jury convicted him of the
crimes described above. During the penalty phase of the trial, Sinisterra introduced
ten witnesses in support of mitigation: his wife, his mother-in-law, his nine-year-old
daughter, his daughter’s mother, two friends, a former employer, two corrections
officers, and a probation officer. The videotaped interviews, which were redacted and
shown to the jury, constituted the only evidence regarding Sinisterra’s childhood in
Colombia. No evidence of Sinisterra’s mental health or capacity was presented.
During closing arguments, the government asked the jury to send a message to
Sinisterra and other drug traffickers like him and to act as the conscience of the
community. The government also told the jurors that the mitigation evidence was a
“smoke screen” and compared it to the dark ink an octopus ejects to evade danger.
The prosecutor framed the murder as being cold and premeditated, telling the jury that
defense counsel wanted its sympathy but that it would be wrong to base the sentence
on how Sinisterra’s children felt. Neither Duchardt nor Herndon objected to the
government’s closing argument.
The jury returned a death-sentence verdict on the murder and murder-for-hire
counts. It found three statutory aggravating factors: (1) the murder was committed
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with the expectation of pecuniary gain; (2) the murder included substantial planning
and premeditation; and (3) Sinisterra intentionally attempted to kill more than one
person. The jury also determined that Sinisterra was likely to commit criminal acts
of violence in the future and was a continuing threat to society. The jury found no
statutory mitigating factors, but found a number of non-statutory mitigating factors,
concluding that Sinisterra loved and supported his family and friends.
Following the affirmance of his conviction and sentence, Sinisterra brought the
present action, alleging that his counsel were ineffective for failing to investigate and
present mitigation evidence and for failing to object to the government’s inappropriate
remarks during its closing argument. The motion included a section describing
Sinisterra’s childhood. It stated that Sinisterra’s parents were illiterate and that his
father may have been mentally retarded. As a child, Sinisterra had witnessed his
father chase his mother around the house with a machete. After his father abandoned
the family, Sinisterra’s mother often beat him with a horsewhip. The motion further
asserted that four teenagers gang-raped Sinisterra when he was seven and that he later
ran away, living homeless in the streets of Cali, Colombia. Sinisterra also spent time
in juvenile correctional facilities. He returned to his family when he was twelve or
thirteen, only to be sexually abused by his older brother. Sinisterra never learned to
read or write, and he suffered at least two head injuries. The motion noted that two
of Sinisterra’s three brothers had been murdered, one in 1986 and one in 1994.
Herndon and Grothaus submitted affidavits, stating that they were unaware of the
information regarding Sinisterra’s childhood.
Sinisterra’s habeas counsel arranged for Sinisterra to be examined by a Spanish-
speaking neuropsychologist, who opined that Sinisterra had a low range of intellectual
abilities. The neuropsychologist determined that Sinisterra is probably not mentally
retarded, but that he likely suffered brain damage and was at risk for poor judgment
and impulsivity. The report included much of the same background information as
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the § 2255 motion, attributing the facts to interviews with Sinisterra, his mother, and
his sister.
In response to the government’s request, the district court directed Duchardt to
submit an affidavit regarding Sinisterra’s allegations of ineffective assistance of
counsel. Duchardt defended his decision to hire Grothaus as the fact investigator and
mitigation specialist. He further attested that he “reviewed the details in the amended
petition concerning Mr. Sinisterra’s background” and acknowledged that he was
aware of the information before trial. Duchardt recounted the results of Sinisterra’s
pre-trial mental health evaluation by a Spanish-speaking psychiatrist and stated that,
in light of the psychiatrist’s finding that Sinisterra had “no mental problems,” he
decided to not pursue the matter further. Moreover, after reviewing the
neuropsychologist’s report appended to Sinisterra’s § 2255 motion, Duchardt stated
that he likely would not have used that evidence at trial.
Both trial attorneys responded to Sinisterra’s claim that their failure to object
to the prosecutor’s closing argument constituted ineffective assistance. Duchardt
explained that he did not object during penalty phase closing argument because it was
Herndon’s responsibility to do so. Moreover, he did not find the arguments at issue
in this appeal to be improper. Herndon explained that she was not aware of the case
law prohibiting the prosecutor from asking the jury to “send a message” and that she
had no strategic reason for failing to object.
The district court denied Sinisterra’s § 2255 motion without holding an
evidentiary hearing. The district court concluded that counsel adequately investigated
and presented mitigation evidence, including evidence of Sinisterra’s mental health
and capacity. The district court similarly rejected Sinisterra’s argument that defense
counsel were ineffective for failing to hire a mitigation specialist who could present
forensic testimony at trial. It determined that the prosecutor’s closing argument did
not constitute an impermissible emotional appeal but rather presented the facts to the
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jury so that it could weigh the aggravating and mitigating factors. The district court
concluded that because the argument was not improper, counsel were not ineffective
for failing to object. The district court denied Sinisterra’s request for a certificate of
appealability.
We subsequently certified the following issues for review: (1) whether counsel
were ineffective for failing to conduct a thorough mitigation investigation and present
available mitigation evidence to the jury; (2) whether counsel were ineffective for
failing to investigate and present mental health evidence; (3) whether counsel were
ineffective for failing to retain and utilize a qualified mitigation expert; and (4)
whether trial and appellate counsel were ineffective for failing to object to
prosecutorial misconduct during closing argument. We answer only the fourth of
these issues directly at this stage of the case, concluding that it is necessary to remand
the remaining issues for further development in the district court, as outlined in the
following discussion.
II. Failure To Investigate and Present Mitigation Evidence
Sinisterra contends that the district court abused its discretion in denying an
evidentiary hearing on his § 2255 claims that his trial counsel were ineffective for
failing to investigate and present mitigation evidence. A § 2255 movant is entitled to
an evidentiary hearing unless “the motion and the files and records of the case
conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255. “No hearing
is required where the claim is inadequate on its face or if the record affirmatively
refutes the factual assertions upon which it is based.” Watson v. United States, 493
F.3d 960, 963 (8th Cir. 2007) (internal quotations and citation omitted). Accordingly,
to determine whether the district court abused its discretion in denying an evidentiary
hearing, we must consider the validity of the movant’s claims for relief. Anjulo-
Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008). We review de novo the
district court’s rejection of the substantive claims. Id.
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To establish his claim of ineffective assistance of counsel, Sinisterra must prove
that his attorneys’ performance was deficient and that the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Deficient performance is that which falls below the “range of competence demanded
of attorneys in criminal cases.” Id. at 687 (internal quotations and citation omitted).
The standard is an objective one, viewed in light of professional norms prevailing
when the representation took place. Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009)
(per curiam); Strickland, 466 U.S. at 686. We must consider “whether counsel’s
assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at
688. To establish prejudice, Sinisterra must establish a “reasonable probability that
a competent attorney, aware of the available mitigating evidence would have
introduced it at sentencing, and that had the jury been confronted with this mitigating
evidence, there is a reasonable probability that it would have returned with a different
sentence.” Wong v. Belmontes, 130 S. Ct. 383, 386 (2009) (per curiam) (quoting
Wiggins v. Smith, 539 U.S. 510, 535, 536 (2003)) (internal quotations and alterations
omitted).
We conclude that Sinisterra’s claim of ineffective assistance of counsel for
failing to investigate and present mitigation evidence merits further review.
Sinisterra’s counsel had an obligation to conduct a thorough background investigation
and to exercise reasonable, professional judgment in determining the mitigation
evidence to present during the penalty phase of Sinisterra’s trial. Williams v. Taylor,
529 U.S. 362, 396 (2000); Simmons v. Luebbers, 299 F.3d 929, 938-39 (8th Cir.
2002). Sinisterra argues that counsel failed to meet those obligations, and the record
does not affirmatively refute the factual assertions upon which Sinisterra’s claim is
based.
The record does not conclusively show that Sinisterra’s attorneys acted within
the range of competence demanded of attorneys in criminal cases. Sinisterra’s § 2255
motion set forth facts pertaining to his life in Colombia, including rape, physical and
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sexual abuse, homelessness, privation, and head injuries. No testimony or other
evidence about these factual allegations was presented at trial. Herndon and Grothaus
stated that they did not know this information about Sinisterra’s upbringing, but
Duchardt stated that he was “aware of all of this information prior to the start of the
trial.” The record thus leaves unanswered a number of questions related to his
attorneys’ performance, including whether Duchardt exercised reasonable professional
judgment in refraining from presenting information of which he had knowledge and
whether Herndon’s mitigation investigation was constitutionally deficient for failing
to discover that information. Moreover, the district court has not determined whether
Sinisterra’s factual assertions are credible or whether Sinisterra can present evidence
to support them.
The record does not affirmatively refute Sinisterra’s claim that he suffered
prejudice as a result of the alleged ineffective assistance of counsel. The factual
allegations set forth in the § 2255 motion differ in kind and substance from the
evidence contained in the recorded interviews presented at trial. The district court’s
order denying relief did not address the allegations, concluding instead that the
recordings sufficiently conveyed the evidence of Sinisterra’s childhood.2 The
recorded interviews expressed that Sinisterra was a good worker and a good person,
who did not attend school because his family was poor. His sister explained that there
were eight children in the family and that two of Sinisterra’s three brothers died
violent deaths. The recorded interviews did not mention the alleged rape, physical and
sexual abuse, homelessness, or head injuries. If deemed credible and supported by
evidence, these factual assertions might present “the kind of troubled history [the
2
The order adopted and relied upon the government’s erroneous contention that
the recordings had an impact on the jury’s findings as “demonstrated in the jurors
finding as a non-statutory mitigating factor that Sinisterra’s ‘lack of guidance and
support as an adolescent made him an easy target of violent drug culture.’” D. Ct.
Order of Dec. 14, 2007, at 19. The jury returned that finding in Hinestroza’s case, not
Sinisterra’s, and Hinestroza was sentenced to life imprisonment.
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Supreme Court] has declared relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535 (recounting petitioner’s troubled history, which included
privation, abuse, physical torment, sexual molestation, rape, homelessness, and
diminished capacity). Compare Porter v. McCollum, 130 S. Ct. 447, 454 (2009) (per
curiam) (concluding that defendant was prejudiced by counsel’s failure to present
evidence that might have influenced the jury’s appraisal of Porter’s moral culpability,
including evidence of his heroic military service, his struggles upon his return from
war, his childhood history of physical abuse, and his brain abnormality, difficulty
reading and writing, and limited schooling), with Belmontes, 130 S. Ct. at 387-88
(concluding that additional evidence of the defendant’s background and humanizing
features would have offered an insignificant benefit because the sentencing jury was
well acquainted with those topics), and Van Hook, 130 S. Ct. at 19-20 (concluding
that the defendant failed to show prejudice because the additional relevant evidence
provided only minor details). Without a complete record, we cannot determine
whether Sinisterra was prejudiced by counsels’ alleged failure to investigate and
present mitigation evidence. Thus, we conclude that the case must be remanded for
an evidentiary hearing.
Also to be developed on remand is whether counsel were ineffective for failing
to investigate and present evidence of Sinisterra’s mental health and capacity.
Standing alone, this claim may not have warranted remand, because Duchardt gave
as a reason for his decision to forego pursuing or presenting mental health evidence
his determination that no further investigation was necessary after a Spanish-speaking
psychiatrist evaluated Sinisterra and reported “no mental problems.” This claim of
error, however, is interwoven with the overarching claim of failure to investigate and
present mitigation evidence. No evidence of Sinisterra’s mental health or capacity
was presented during the penalty phase of his trial.3 In light of the fact we are
3
With respect to Sinisterra’s mental capacity, the district court’s order relied
upon the government’s erroneous contention that evidence of Sinisterra’s mental
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remanding for an evidentiary hearing, we conclude that Sinisterra should be permitted
to inquire into his trial attorneys’ investigation of and their decision to forego any
penalty-phase presentation of his mental health and capacity.
Sinisterra also claims that counsel were ineffective for failing to hire a
mitigation expert. He relies on the 2003 revised version of the American Bar
Association (ABA) Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases, which prescribe the appointment of two attorneys, an
investigator, and a mitigation specialist. The Supreme Court recently has reminded
us that the ABA guidelines may serve as “‘guides’ to what reasonableness entails, but
only to the extent they describe the professional norms prevailing when the
representation took place.” Van Hook, 130 S. Ct. at 16. The ABA standards in effect
at the time of Sinisterra’s trial contemplated that the attorneys would complete the
mitigation investigation, hiring a mitigation specialist or other expert to assist in the
investigation and presentation of mitigation evidence if necessary. See ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases 4.1, pp. 4-5, and 11.4.1, pp. 13-16 (1989). At oral argument,
Sinisterra’s appellate habeas counsel conceded that if the trial attorneys had conducted
a proper mitigation investigation, the need for a mitigation specialist would have been
obviated. We agree that the substance of Sinisterra’s claim is whether counsel
capacity had been presented to the jury. The order stated that “Dr. Wheelock testified
about his finding that Sinisterra had a low IQ during the trial. The jury had an
opportunity to hear this testimony and consider it during the trial and penalty phase.”
D. Ct. Order of Dec. 14, 2007, at 20. Dr. Wheelock, however, testified at a pretrial
hearing that Sinisterra had a performance scale IQ of 75, and the jury never heard that
evidence. During the guilt phase, Dr. Wheelock had testified that Sinisterra was not
fluent in English and that his English-language comprehension level was less than a
first-grade level. The district court sustained the government’s objection to Dr.
Wheelock’s testimony regarding Sinisterra’s intelligence, deciding that that testimony
“goes to his mental capacity,” and advising defense counsel that the evidence would
be admitted if the trial proceeded to the penalty phase.
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adequately investigated and presented mitigation evidence, including mental health
and capacity evidence, and that an affirmative answer to that question will moot the
question whether they should have retained a mitigation specialist.
III. Failure To Object to Prosecutor’s Closing Argument
Sinisterra contends that his trial counsel were ineffective for failing to object
to the prosecutor’s improper closing argument and for failing to appeal his sentence
based on the prosecutor’s misconduct in making the closing argument set forth below.
To establish this ineffective assistance claim, Sinisterra must demonstrate that
counsels’ performance was deficient and that there is a reasonable probability that, but
for counsels’ failure to object or failure to appeal, the result of the proceeding would
have been different. Middleton v. Roper, 455 F.3d 838, 849 (8th Cir. 2006) (quoting
Bucklew v. Luebbers, 436 F.3d 1010, 1021 (8th Cir. 2006)); see also Strickland, 466
U.S. at 687. In deciding whether counsels’ performance fell below the minimum
standards of professional competence, we must first determine whether the
prosecutor’s conduct warranted an objection.
A. Prosecutor’s Arguments
Sinisterra categorizes two types of improper argument. He contends that the
prosecutor encouraged the jury to disregard the proffered mitigation evidence,
precluding the jury from fairly considering the mitigation evidence in violation of the
Eighth Amendment. He further argues that the prosecutor improperly linked
Sinisterra to the broader drug problems in the United States, denying him an
individualized sentencing determination, in violation of the Eighth Amendment.
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1. Remarks Regarding Mitigation Evidence
Sinisterra contends that the prosecutor’s closing argument disparaged his
mitigation evidence, barring the jury from considering the impact his execution would
have on his children. As recounted above, the prosecutor had argued that Sinisterra’s
mitigation evidence was a smoke screen, similar to an octopus’s beclouding the
surrounding water, and that it would be wrong to base Sinisterra’s sentence on how
his children felt. “[S]entencing juries must be able to give meaningful consideration
and effect to all mitigating evidence that might provide a basis for refusing to impose
the death penalty on a particular individual, notwithstanding the severity of his crime
or his potential to commit similar offenses in the future.” Abdul-Kabir v. Quarterman,
550 U.S. 233, 246 (2007). To ensure the reliability of the determination that death
was the appropriate punishment, a prosecutor may not argue that such consideration
is forbidden. Id. at 259 n.21. “[A]s long as the jurors are not told to ignore or
disregard mitigators, a prosecutor may argue, based on the circumstances of the case,
that they are entitled to little or no weight.” United States v. Johnson, 495 F.3d 951,
978 (8th Cir. 2007).
The prosecutor’s closing argument did not direct the jury to disregard the
mitigation evidence that Sinisterra’s execution would have a negative effect on his
children. The prosecutor’s smoke screen/octopus argument was just that: the
prosecutor’s characterization of Sinisterra’s evidence. “[I]t is unrealistic to suggest
that such empty cliches seriously affected the jury’s deliberations.” United States v.
Procopio, 88 F.3d 21, 32 (1st Cir. 1996) (holding that the prosecutor’s closing
argument characterizing the defense arguments as “illusions” and “a smoke screen”
were “more wind than rain” and did not affect the jury’s deliberations). When the
prosecutor stated that “[i]t would be wrong to base your verdict on how [Sinisterra’s
children] feel,” he had been comparing aggravating circumstances evidence to
mitigation evidence and had framed the murder as “cold, premeditated.” Taken in its
context, the remark went to the weight of the evidence and did not instruct the jury to
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ignore the evidence of the impact a death sentence would have on Sinisterra’s
children. Moreover, the remark was made only once, and the district court properly
instructed the jury as to how to weigh the evidence. Accordingly, we conclude that
the remarks did not have the effect of diverting the jury from its role in weighing
Sinisterra’s mitigation evidence.
2. Conscience of the Community and Related Remarks
Sinisterra’s next claim of error relates to the prosecutor’s remarks that the jury
could act as the conscience of the community and “send a message to all other drug
dealers that this community will not tolerate [crimes like Sinisterra’s].” The
prosecutor introduced these themes during closing argument and expanded on them
in rebuttal, stating:
Ladies and gentlemen, decent people, decent citizens, fear for their lives
because of drug traffickers like German Sinisterra. We cannot forget
that he was a member of a very efficient but unforgiving cocaine
distribution organization and American society is a much different place
than it was 50 years ago because of the German Sinisterras of the world.
It is time to turn the tables on drug traffickers like this defendant. Finish
the message that you began with your verdict of guilt in this case. Tell
this defendant and those like him that murder will not be tolerated
especially murder committed to further drug trafficking schemes. There
is no worse crime. As you sit there you are not just twelve people. You
are . . . the conscience of the community and you have a unique
opportunity to make a difference. You have a unique opportunity to
send a message. Don’t squander that opportunity. Have the courage to
do the right thing.
...
German Sinisterra believes by his actions that murdering couriers over
a drug debt is just part of doing business. Tell him he’s wrong and tell
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the other drug traffickers of the world if they come to Kansas City they
are going to be dealt with in the most severe way, they are going to
receive a sentence of death.
The prosecutor’s arguments linking Sinisterra to the broader drug problems of
the United States, telling the jury to act as the conscience of the community, and
asking the jury to send a message with its verdict were improper. Such arguments
impinge upon the jury’s duty to make an individualized determination that death is the
appropriate punishment for the defendant. Weaver v. Bowersox, 438 F.3d 832, 841
(8th Cir. 2006). Prosecutors may not encumber an individual defendant with the
responsibility for the nation’s drug problems, in addition to the defendant’s personal
crimes and misdeeds. United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992).
Similarly, the prosecution puts too significant a burden on a single defendant when
it instructs the jury to act as the conscience of the community and send a message
from one case to another. Bowersox, 438 F.3d at 841 (citing Sublett v. Dormire, 217
F.3d 598, 600-01 (8th Cir. 2000), and Johnson, 968 F.2d at 770-71)). The Eighth
Amendment “requires consideration of the character and record of the individual
offender and the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death.” Woodson v.
North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion). The prosecutor’s
arguments had the capacity to divert the jury from its essential role and thus should
not have been made.
B. Deficient Performance for Failing To Object
We turn then to the question whether counsels’ performance was deficient for
failing to object. Herndon, who was responsible for making the penalty phase
objections, concedes that her failure to object was not a strategy-based decision, but
was instead the result of her lack of awareness that such arguments were improper.
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We conclude that our case law was sufficiently developed at the time of
Sinisterra’s trial to put a reasonably competent attorney on notice that the prosecutor’s
arguments were improper. In United States v. Lee, 743 F.2d 1240, 1252-53 (8th Cir.
1984), we concluded that the prosecutor’s arguments that the jury would send a
message to other drug smugglers and its guilty verdicts would have an impact on the
drug trade amounted to an improper emotional appeal calculated to persuade the jury
on facts other than those before it. We also cautioned against conscience of the
community arguments, concluding that any error in the prosecutor’s advancement of
that argument was cured by defense counsel’s contemporaneous objection and the trial
court’s prompt cautionary instruction. Id. at 1253 n.5. Similarly, in Johnson, we held
that the prosecutor appealed to the jury to be the conscience of the community in an
improper and inflammatory manner by urging the jury to “stand as a bulwark against
the continuation of what Mr. Johnson is doing on the street, putting this poison on the
streets.” 968 F.2d at 770.
C. Lack of Prejudice
Although the prosecutor’s send a message/conscience of the community
comments went beyond the pale and defense counsel offered no good reason for her
failure to object, Sinisterra has not shown that there is a reasonable probability that,
but for Herndon’s failure to object, the result of the proceeding would have been
different. On direct appeal, we concluded that the jury instructions “specifically rebut
the defendants’ argument that the jury did not understand its role as the decision-
maker of the sentence.” Ortiz, 315 F.3d at 903. Knowing that it was responsible for
imposing punishment, the jury found that Sinisterra committed murder after
substantial planning and premeditation and with the expectation of pecuniary gain.
The jury also determined that Sinisterra, in concert with others, intentionally
attempted to kill more than one person.
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Substantial evidence supported the jury’s findings, including Sinisterra’s
confession that he shot Colon. With the $1,000 payment for his involvement in the
beatings and shootings, he planned on spending the evening drinking alcohol. On
direct appeal, we concluded that “there was ample evidence that Mr. Sinisterra
intentionally attempted to kill multiple persons.” Id. at 901. We reviewed the
evidence that supported a finding of future dangerousness and determined that the
government had established that Sinisterra lacked remorse and acted as an enforcer
for Hinestroza. The record showed that Sinisterra used physical force and threats of
violence to collect drug debts and enforce discipline. One witness testified that
Sinisterra offered to “pop” a guy for $2,000. In light of the evidence against him,
Sinisterra has failed to show that, had counsel objected, he would not have received
the death sentence.
Having found no prejudice, we conclude that Sinisterra’s claim that counsel
were ineffective for failing to appeal the prosecutorial misconduct alleged in his §
2255 motion is without merit.
Conclusion
We affirm the district court’s judgment that counsels’ failure to object to the
prosecutor’s closing argument did not deny Sinisterra his Sixth Amendment right to
counsel. We reverse the district court’s judgment that Sinisterra’s remaining
ineffective assistance of counsel claims could be decided without an evidentiary
hearing. The case is remanded with instructions to hold an evidentiary hearing to
determine whether counsel were ineffective for failing to investigate and present
mitigation evidence, including evidence of Sinisterra’s mental health and capacity.
We deny Sinisterra’s motion to supplement the record.
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