United States v. Montgomery

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-1780
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Lisa M. Montgomery, *
*
Appellant. *
___________

Submitted: September 22, 2010
Filed: April 5, 2011
___________

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
___________

WOLLMAN, Circuit Judge.

A federal jury convicted Lisa Montgomery of kidnapping resulting in death, in
violation of 18 U.S.C. § 1201(a), and recommended that she be sentenced to death.
The district court1 imposed the death sentence, and Montgomery appeals. With
respect to the guilt phase of her trial, Montgomery argues that the government failed
to prove that death resulted from kidnapping and that the district court erred in
excluding certain evidence. Montgomery also alleges that a number of errors infected

1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
the penalty phase, including the exclusion of expert evidence, prosecutorial
misconduct, failure to properly instruct the jury, and submission to the jury of an
unproven aggravating factor. We affirm.

I. Background

A. The Crime

Montgomery and Bobbie Jo Stinnett met at a dog show in April 2004. Both
women were involved in the breeding of rat terriers and were acquainted through
online message boards dedicated to their mutual interest. Stinnett maintained a
website to promote Happy Haven Farms, her dog breeding business located in her
home in Skidmore, Missouri. The website included pictures of Stinnett and her dogs.
After she became pregnant in spring 2004, Stinnett shared the news with her online
community, which included Montgomery. Stinnett was eight months pregnant in
December 2004.

In spring 2004, Montgomery began telling her friends, family, and online
community that she was pregnant. More than a decade earlier, however, she had
undergone tubal fulguration, a sterilization procedure that involved occluding her
fallopian tubes by cauterization. Montgomery was thus incapable of becoming
pregnant. Nonetheless, Montgomery reported testing positive for pregnancy, began
wearing maternity clothes, and began behaving as if she were pregnant. Unaware of
the permanent sterilization, Montgomery’s husband, Kevin Montgomery (Kevin), and
her children believed that she was expecting. Some of Montgomery’s acquaintances
believed that she was pregnant and showed signs of pregnancy, but others did not.
Those who knew that Montgomery had been sterilized—including her former husband
and his wife—accused Montgomery of deceiving her family. She responded that she
would prove them wrong.

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 Using the alias Darlene Fischer, Montgomery contacted Stinnett on December
15, 2004, via instant message. Stinnett had a litter of puppies for sale, and
Montgomery expressed interest in purchasing one. The women agreed to meet the
next day. Although Montgomery lived in Melvern, Kansas, she told Stinnett that she
was from Fairfax, Missouri, a town near Skidmore. That night, Stinnett told her
husband and her mother, Becky Harper, that a woman from Fairfax was going to stop
by and look at the puppies.

On December 16, Montgomery drove from Melvern to Skidmore and arrived
at Stinnett’s home around 12:30 p.m. Montgomery carried a sharp kitchen knife and
a white cord in her jacket pocket. The women brought the puppies outside and played
with them. At 2:30 p.m., Stinnett received a phone call from Harper and confirmed
that she would give Harper a ride home from work at 3:30 p.m.

Some time after the phone call ended, Montgomery attacked Stinnett and used
the cord to strangle her until she was unconscious. Montgomery then used the kitchen
knife to cut into Stinnett’s abdomen, causing Stinnett to regain consciousness. A
struggle ensued, and Montgomery strangled Stinnett a second time, killing her.
Montgomery extracted the fetus from Stinnett’s body, cut the umbilical cord, and left
with the baby. Montgomery entered her car and drove away from the Stinnett home,
holding the baby in her arms and pinching the umbilical cord.

Harper called Stinnett shortly after 3:30 p.m. When no one answered, Harper
walked the two blocks to Stinnett’s home. The front door was open, and Harper went
inside, calling for her daughter. She reached the dining room and found Stinnett’s
body lying there, covered in blood. Harper called 911 and told the operator that her
daughter was eight months pregnant and in need of medical assistance. Harper said
that it looked like Stinnett’s stomach had exploded.

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 Meanwhile, after driving a short distance from Stinnett’s home, Montgomery
stopped to clamp the umbilical cord and to suction any mucus from the baby’s mouth.
The baby cried, but other than a cut above her eye, she was uninjured. After cleaning
the baby with wipes, Montgomery retrieved the car seat she had stored in the trunk of
her car and placed the baby in the seat. She drove to Topeka, Kansas, and called her
husband, telling him that she had gone into labor while Christmas shopping and that
she had given birth at a women’s clinic in Topeka. She asked him to meet her at a
parking lot near the clinic, which he did. They returned to Melvern together, with
Montgomery’s daughter and son driving her car home.

The Montgomerys called friends and relatives to announce the birth of their
daughter, Abigail. They slept in the living room, next to the baby’s bassinet. The
next day, they ran errands and went out for breakfast, introducing Abigail to the
people they met. Shortly after they returned home, law enforcement officials knocked
on their door. Kevin answered the door and invited the officers into the home.
Montgomery was sitting on the couch, holding the baby.

Sergeant Investigator Randy Strong explained that they were investigating the
murder of Bobbie Jo Stinnett. He asked about the baby, and Montgomery said that
she had given birth at a women’s clinic in Topeka. She asked Kevin to retrieve the
discharge papers from his truck. Kevin searched the truck, but he could not find the
papers.

Strong then asked to speak to Montgomery outside the home. Montgomery
allowed a law enforcement officer to hold the baby and accompanied Strong.
Montgomery explained that her family was having some financial problems, so,
unbeknownst to her husband, she had given birth at home, with the help of two
friends. When asked the names of the friends, Montgomery responded that they had
not been with her at the house but were available by phone in case she had trouble
delivering the baby. Montgomery said that she had given birth in the kitchen and had

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disposed of the placenta in a nearby creek. At Montgomery’s request, the officers
moved their questioning to the sheriff’s office. Shortly thereafter, Montgomery
confessed to killing Stinnett, removing the fetus from Stinnett’s womb, and abducting
the child.

After the baby was returned to her father, she was named Victoria Jo Stinnett.

B. Montgomery’s Personal History

For years, Montgomery was physically and sexually abused by her stepfather.
When she was sixteen, her mother and stepfather divorced. Some family members
believed that Montgomery’s mother blamed her for the abuse and for the divorce, but
her mother denied ever doing so. From childhood on, Montgomery had endured a
tumultuous relationship with her mother.

Montgomery married Carl Boman, her step-brother, when she turned eighteen
in August 1986. She had her first child in January 1987, and three more in the three
years that followed. In 1990, Montgomery underwent the sterilization procedure
described above. The procedure was successful, and a pretrial hysterosalpingogram
confirmed that the sterilization rendered Montgomery unable to become pregnant.
Montgomery claimed that her mother and Boman forced her to undergo the
sterilization procedure.

In the years following the sterilization procedure, Montgomery claimed that she
had four more pregnancies. In 1994, while separated from Boman, Montgomery had
an affair and claimed that she was pregnant. Montgomery and Boman later
reconciled, and she ceased making the claim. She and Boman divorced in 1998. In
2000, before she and Kevin were married, she told him that she was pregnant and
intended to have an abortion. Kevin gave her forty dollars, and the pregnancy was not
mentioned again. In 2002, Montgomery told her friends and family that she was

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pregnant again. Although she said that she was receiving prenatal care from her
physician, she would not allow Kevin to attend the appointments. Her physician
testified that he had treated Montgomery for ankle pain and a cold, but he did not
provide her any prenatal care, despite Montgomery’s claims to the contrary. When
the alleged due date passed, Montgomery told Kevin that the baby had died and that
she had donated its body to science. As described above, Montgomery claimed in
spring 2004 that she was pregnant and that she was due in December.

Throughout the fall of 2004, Montgomery was involved in a custody dispute
with Boman. He knew that Montgomery was unable to become pregnant and that she
was again claiming that she was pregnant. He and his wife sent emails to
Montgomery, telling her that they planned to expose her deception and use it against
her in the custody proceedings. Montgomery said that she would prove them wrong.
On December 10, 2004, days before the kidnapping, Boman filed a motion for change
of custody of the two minor children who lived with Montgomery.

C. Procedural History and Trial

Montgomery was charged with kidnapping resulting in death, in violation of 18
U.S.C. § 1201(a)(1). The superseding indictment alleged:

[Montgomery] willfully and unlawfully kidnapped, abducted, carried
away, and held Victoria Jo Stinnett, for the purpose and benefit of
claiming Victoria Jo Stinnett as her child, and willfully transported
Victoria Jo Stinnett in interstate commerce from Skidmore, Missouri,
across the state line to Melvern, Kansas, the actions of the defendant
resulting in the death of Bobbie Jo Stinnett.

The superseding indictment further alleged statutory aggravating factors, including
that Montgomery killed Stinnett in an especially heinous, cruel, and depraved manner,

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in that it involved serious physical abuse to Stinnett. See § 3592(c)(6).2 Thereafter,
the government filed its notice of intent to seek the death penalty. See § 3593.

Montgomery moved to prohibit the government from seeking the death penalty,
contending that the government could not prove that the kidnapping of a person
resulted in Stinnett’s death. A magistrate judge3 recommended that Montgomery’s
motion be denied. The district court adopted the report and denied the motion.

Montgomery filed her notice of intent to assert the defense of insanity and to
present expert evidence relating to mental disease or defect. See Fed. R. Crim.
P. 12.2. Defense counsel engaged Vilayanur Ramachandran, M.D., and William
Logan, M.D., to evaluate Montgomery. Both Drs. Ramachandran and Logan
diagnosed Montgomery with depression, borderline personality disorder, post-
traumatic stress disorder, and pseudocyesis. The government’s expert, Park Dietz,
M.D., agreed that Montgomery suffered from depression, borderline personality
disorder, and post-traumatic stress disorder but did not diagnose her as suffering from
pseudocyesis.

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) defines
pseudocyesis as “a false belief of being pregnant that is associated with objective signs
of pregnancy, which may include abdominal enlargement, . . . reduced menstrual flow,
amenorrhea, subjective sensation of fetal movement, nausea, breast engorgement and
secretions, and labor pains at the expected date of delivery.” Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders, 511 (4th ed. text revision
2000). The DSM-IV classifies pseudocyesis as a somatoform disorder. Id. “The
common feature of Somatoform Disorders is the presence of physical symptoms that

2
The Federal Death Penalty Act is found at 18 U.S.C. §§ 3591, et seq.
3
The Honorable John T. Maughmer, United States Magistrate Judge for the
Western District of Missouri.

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suggest a general medical condition, . . . and are not fully explained by a general
medical condition, by the direct effects of a substance, or by another mental disorder.”
Id. at 485.

Before trial, defense counsel asked Ruben Gur, Ph.D., to opine whether
Montgomery suffered from any mental abnormality, injury, or illness. Dr. Gur was
prepared to testify that Montgomery’s brain had structural and functional
abnormalities consistent with the diagnosis of pseudocyesis. To reach this conclusion,
Dr. Gur relied upon neuropsychological testing, magnetic resonance imaging (MRI),
and positron emission tomography (PET).4 The government challenged Dr. Gur’s
proffered testimony in a pretrial motion pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rules of Evidence 702 and
403, arguing that Dr. Gur’s principles and methods were unreliable. The government
sought to exclude Dr. Gur’s analysis of Montgomery’s MRI and PET scan. The
government also asserted that its experts could not properly examine the underlying
data because Dr. Gur had failed to produce the data from which his conclusions were
drawn.

After hearing two days of expert testimony, the district court concluded that
Montgomery’s MRI results were not abnormal and thus did not show “any mental
condition or circumstance that would be relevant to matters at issue in this case.” The
court indicated that it would allow some PET evidence. Although concerned about
the reliability of Dr. Gur’s PET analysis, the court determined that it would permit
Dr. Gur to testify (1) that Montgomery’s PET scan showed abnormalities in the
somatomotor region of the brain and (2) that abnormalities in the somatomotor region
are consistent with a diagnosis of pseudocyesis. The government requested that

4
The government’s expert explained that MRI “provides quantitative analysis
on brain anatomy, brain structure,” while “PET provides quantitative results on brain
physiology, brain function.”

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certain data be produced so that its experts could reproduce Dr. Gur’s analysis, and
the district court ordered that Montgomery produce the data.

During Montgomery’s interviews with defense and government experts, she
claimed that her brother, Tommy Kleiner, had accompanied her to Stinnett’s home on
December 16, 2004. Defense counsel arranged for Montgomery to undergo a
polygraph examination. The polygraph examiner opined that Montgomery’s
statements that Kleiner had been with her at Stinnett’s home “were not indicative of
deception.” The district court granted the government’s motion to exclude any
evidence regarding the polygraph examination.

After the jury had been selected and before opening statements, the district
court ruled that Dr. Gur’s testimony regarding his PET scan analysis would be
excluded, finding that the evidence had minimal probative value because the
abnormalities were consistent with many disorders, including pseudocyesis. The
district court noted that the government’s experts were unable to replicate Dr. Gur’s
calculations and that although Dr. Gur had produced the data that formed the basis of
his opinion, he had failed to produce the original data from the PET scan centers. The
district court concluded that the dispute over Dr. Gur’s calculations would confuse the
jury and distract it from the relevant and significant issues.

The jury heard eleven days of testimony related to the offense charged in the
indictment and Montgomery’s insanity plea. Dr. Ramachandran testified that
pseudocyesis is a somatoform disorder in which the patient develops the delusion that
she is pregnant. To be diagnosed with pseudocyesis, an individual must have an
intense desire to become pregnant. Dr. Ramachandran explained that the desire gives
rise to hormonal changes that result in physical changes consistent with pregnancy,
including abdominal enlargement, breast enlargement, nipple pigmentation, and the
cessation of menstruation. A person suffering from pseudocyesis might also crave
strange foods, have nausea, feel fetal quickening, and have contractions.

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 Dr. Ramachandran testified that Montgomery suffered from severe
pseudocyesis delusion and that she was in a dissociative state when she murdered
Stinnett and delivered the baby. According to Dr. Ramachandran, Montgomery’s
childhood sexual abuse and post-traumatic stress disorder predisposed her to
pseudocyesis. He testified that Montgomery sustained her pregnancy delusion with
Internet research on cesarean sections, home birth, and hormones to assist in delivery.
Montgomery’s purchases of maternity clothes, a home birthing kit, and items for a
baby nursery were consistent with pseudocyesis.

Dr. Ramachandran further testified that inconsistent stories were not evidence
of malingering,5 but of Montgomery’s delusional state. He explained that malingering
involves a consistent story because “it’s a planned volition and a lie” and that a
delusional state involves “constantly chang[ing] the story to accommodate the
delusion and then forgetting what you said earlier.” Because Montgomery’s
delusional state fluctuated, her story also fluctuated. Dr. Ramachandran stated that
Montgomery’s symptoms of pregnancy, her extensive internet research on home
birthing, and her minimal research on cesarean-section delivery supported his opinion
that she was not malingering. Dr. Ramachandran opined that Montgomery was
suffering from a severe mental disease or defect when she committed the crime and
that she was unable to appreciate the nature and quality of her acts.

The government’s expert, Dr. Dietz, testified that there are two different
phenomena that have been called pseudocyesis. The first is a condition in which a
woman sincerely believes that she is pregnant, but she is not mentally ill and does not
have delusions. The belief usually ends when the woman is confronted with evidence
that she is not pregnant. The second involves mental illness—usually

5
DSM-IV states that the essential feature of malingering is “the intentional
production of false or grossly exaggerated physical or psychological symptoms,
motivated by external incentives such as . . . evading criminal prosecution.”
Diagnostic and Statistical Manual of Mental Disorders at 739.

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schizophrenia—and the delusion of pregnancy. Dr. Dietz testified that the delusion
is a firmly held conviction and that patients continue to believe they are pregnant,
even after being confronted with evidence that they are not. Dr. Dietz explained that
pseudocyesis is a psychosomatic condition that is classified as a somatoform disorder
to “reflect its historical origin as hysterical conversion, . . . in which conflicts in the
mind are converted into a bodily symptom.”

Dr. Dietz opined that Montgomery did not suffer from pseudocyesis at the time
of the offense because she did not hold a sincere belief that she was pregnant. When
asked what evidence indicated that Montgomery did not believe she was pregnant, Dr.
Dietz replied that Montgomery was well aware that she had undergone permanent
sterilization, despite her statements that the procedure had been reversed. With her
previous pregnancies, she sought prenatal care, had her husband attend the
appointments, and gave birth in the hospital. But with this alleged pregnancy,
Montgomery did not seek medical confirmation of the pregnancy or prenatal care.
After Kevin made arrangements to attend an appointment with her, Montgomery told
him that she had cancelled the appointment. She also reported that she had tested
positive for pregnancy and had shown the test to Kevin, while Kevin maintained that
he had not seen the test results. When she filled out an insurance application in
September 2004, she indicated that she was not pregnant. Finally, Dr. Dietz took into
account Montgomery’s previous false claims of pregnancy, including one in which
she said that she had donated a stillborn infant to science and forged a letter from the
purported research institution.

Dr. Dietz further opined that Montgomery was not delusional. He testified that
“[a] delusion of pregnancy would be consistent, she would tell the same story, she
would happily reveal it. . . . No one could talk her out of it.” Montgomery, however,
gave contradictory accounts regarding the sex of the fetus, whether she was carrying
twins or a single fetus, and the manner in which she would deliver. Before admitting
that she had killed Stinnett and abducted the baby, Montgomery gave multiple

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narratives for the birth, first stating that she had given birth in a women’s clinic, then
at home with the help of two friends, and, finally, alone. After she had confessed and
was in custody, she changed her story again, this time claiming that her brother was
with her at Stinnett’s home. And after it was determined that Kleiner could not have
been with her at the time of the kidnapping, Montgomery claimed to have amnesia
before and during Stinnett’s murder. She also gave inconsistent reports on how many
pregnancies she had experienced. In two Bureau of Prison medical forms, she claimed
four, but during psychological exams she was vague, sometimes reporting three
additional pregnancies. Dr. Dietz concluded that Montgomery malingered the 2004
pregnancy: “In other words, . . . she knew she was not pregnant but told people that
she was.”

Dr. Dietz ultimately testified that:

[I]t’s my opinion, with reasonable medical certainty, that at the time of
the charged offenses the defendant did not suffer from any mental
disease or defect, that affected her ability to appreciate the nature and
quality of wrongfulness of her acts.

...

[I]t is my opinion with reasonable medical certainty that the defendant
was entirely capable of appreciating that she was engaged in a lengthy
and elaborate plan designed to kill Bobbie Jo Stinnett at a stage of
advanced pregnancy, to successfully conduct a Cesarean section on her
first attempt and to kidnap a healthy [i]nfant she could present to the
world as her own.

The jury found Montgomery guilty beyond a reasonable doubt of kidnapping
resulting in death, and the case proceeded to the penalty phase. Over the course of
two days, the jury heard testimony from Montgomery’s friends, family, coworkers,
Dr. Logan, and Ruth Kuncel, Ph.D.

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 Montgomery asserted the following mitigating factors, among others, to support
her case for life imprisonment: her capacity to appreciate the wrongfulness of her
conduct or to conform her conduct to the requirements of the law was significantly
impaired; she committed the offense under severe mental and emotional disturbance;
she had reared and supported four good children, to whom she had offered advice,
nurturance, and emotional support and would continue to do so if she was sentenced
to life imprisonment. Drs. Logan and Kuncel opined that, at the time of the offense,
Montgomery’s ability to appreciate the wrongfulness of her actions was substantially
impaired and that she suffered from a severe mental or emotional disturbance.
Throughout both phases of trial, various witnesses had testified that Montgomery was
a good and loving mother, that she and her children got along well, and that they had
a harmonious relationship. Over defense counsel’s objections, the prosecutor asked
Montgomery’s daughter whether Montgomery had ever apologized for the suffering
she caused the family. During closing arguments, the prosecutor expounded on the
theme that Montgomery was not a good mother and that a good mother would not
force her children to testify in this high profile trial.

Montgomery requested that the jury be instructed that it is never required to
return a sentence of death. As discussed more fully below, the district court rejected
Montgomery’s proposed language and instructed the jury that if it unanimously
concluded that the death penalty was the appropriate sentence, it must record its
“determination that a sentence of death shall be imposed.”

The jury returned a death-penalty verdict. It unanimously found that the
government had proved beyond a reasonable doubt all statutory and non-statutory
aggravating factors, including that Montgomery committed the offense “in an
especially heinous or depraved manner in that the killing involved serious physical
abuse to Bobbie Jo Stinnett.” Thereafter, the district court sentenced Montgomery to
death.

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 II. Discussion

A. Prosecution under 18 U.S.C. § 1201(a)

In her motion to prohibit the government from seeking the death penalty,
Montgomery argued that, under federal criminal law, Victoria Jo Stinnett was not
considered a person until removed from her mother’s womb. Accordingly, because
Stinnett died before Victoria Jo attained legal personhood by being born, the
kidnapping of a person could not be the cause of Stinnett’s death.

On appeal, Montgomery renews her argument that Stinnett’s death did not
result from kidnapping. She argues that the crime was not a kidnapping resulting in
death, but a death resulting in kidnapping. Although she frames her argument as a
challenge to the sufficiency of the evidence, it presents the following question:
whether death results from kidnapping if the death precedes the completion of the
kidnapping of a person.

Title 18 of United States Code § 1201(a) provides that “[w]hoever unlawfully
seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for
ransom or reward or otherwise any person” and willfully transports the person in
interstate commerce shall be punished by imprisonment, “and if the death of any
person results, shall be punished by death or life imprisonment.” Montgomery
concedes that she had completed the crime of kidnapping after she removed the infant
from the womb, held Victoria Jo for purposes of claiming the infant as her own, and
transported the infant from Missouri to Kansas. But she argues that because Stinnett
died with her fetus in utero, there was no kidnapping of a person resulting in death.

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 1. Definition of Person Under 18 U.S.C. § 1201(a)

In Roe v. Wade, the Supreme Court held that the word “person” as used in the
Fourteenth Amendment did not include fetuses. 410 U.S. 113, 158 (1973). The Court
reviewed the use of the word throughout the Constitution and concluded that “in
nearly all [such] instances, the use of the word is such that it has application only
postnatally. None indicates, with any assurance, that it has any possible pre-natal
application.” Id. at 157. The government argues that Roe is limited to its context and
that Congress has enacted legislation defining person to include the unborn.

Congress has defined the word “person” to include any infant who is born alive.
In 2002, Congress enacted 1 U.S.C. § 8, which states that “[i]n determining the
meaning of any Act of Congress, . . . the word[] ‘person’ . . . shall include every infant
member of the species homo sapiens who is born alive at any stage of development.”
§ 8(a). The statute states that an infant is “born alive” after “complete expulsion or
extraction from his or her mother . . . [and] who after such expulsion or extraction
breathes or has a beating heart, pulsation of the umbilical cord, or definite movement
of voluntary muscles.” § 8(b). Under a literal reading of the statute, the term
“person” does not include fetuses.

Congress did not, as the government suggests, expand the term “person” to
include the unborn in its enactment of the Unborn Victims of Violence Act of 2004.
18 U.S.C. § 1841. The statute recognizes unborn children as a class of victims not
previously protected under federal law and criminalizes the killing or injuring of
unborn children during the commission of certain federal offenses. See H.R. 108-420,
108th Cong. (2004). The statute defines unborn child as “a child in utero” and defines
that term as “a member of the species homo sapiens, at any stage of development, who
is carried in the womb.” § 1841(d). The statute thus defines the term “unborn child”
and limits its definition to § 1841. See id. The term “person” is not defined in the
statute.

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 2. Death Resulted from the Kidnapping

That the term “person” does not necessarily include fetuses does not preclude
a finding that Stinnett’s death resulted from the kidnapping. The plain language of the
statute reflects congressional judgment that the punishment for committing the crime
of kidnapping should be more severe if the crime, as actually perpetrated, includes
conduct that results in the death of any person. We have interpreted the term “results”
broadly, stating that the statute requires “only that ‘the death of any person results’ in
the course of the kidnapping.” United States v. Barraza, 576 F.3d 798, 807 (8th Cir.
2009) (quoting 18 U.S.C. § 1201(a)).

A comparison to felony murder is instructive. Felony murder is the unlawful
killing of a human being “committed in the perpetration of, or attempt to perpetrate,
any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated
sexual abuse or sexual abuse, child abuse, burglary, or robbery.” 18 U.S.C. § 1111(a).
The federal statute is similar to the common law felony-murder rule, which requires
that a killing occur “in the commission or attempted commission of” certain felonies.
See 2 Wayne R. Lafave, Substantive Criminal Law § 14.5 (2d ed. 2003). Common
law felony murder requires a temporal and causal connection between the death and
the felony, but the death and the felony need not occur in a particular sequence. Id.
Accordingly, the death may precede the felony and nonetheless constitute a killing
that occurred “in the commission or attempted commission of” the felony. See, e.g.,
State v. Jacques, 14 P.3d 409, 422 (Kan. 2000) (“When applying the felony-murder
rule, . . . the felony and the victim’s death do not need to occur simultaneously, nor
does the felony need to occur before the death.”); People v. Jones, 408 N.E.2d 79, 83
(Ill. App. Ct. 1980) (The acts causing death “need not coincide with the felony as to
time of occurrence but may occur before or after the felony.”), rev’d in part, 435
N.E.2d 1143 (Ill. 1981). Similarly, we conclude that a death may precede the
completion of the crime of kidnapping, but nonetheless result from the kidnapping.

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 Stinnett’s death occurred during the kidnapping and resulted from the acts
required to complete the kidnapping. Montgomery asks us to view Stinnett’s death
and Victoria Jo’s kidnapping as entirely distinct crimes, with the death preceding the
kidnapping. To do so, we would have to disregard that the death and kidnapping
occurred almost simultaneously and that Montgomery incapacitated a pregnant
woman so that she could extract the fetus and complete the kidnapping of a person.
Montgomery could not deliver the infant without subduing Stinnett, and thus she
rendered Stinnett unconscious by strangulation. When Montgomery began the
cesarean-section delivery of the infant, her incising of Stinnett’s abdomen caused
Stinnett to rouse and Montgomery to strangle her a second time. Stinnett’s death
resulted from the second strangulation and allowed Montgomery to deliver the baby
and complete the crime of kidnapping. Montgomery was thus properly charged with
kidnapping resulting in death.

B. Brain Imaging Evidence

Montgomery intended to introduce expert evidence that a PET scan and MRI
showed that her brain had structural and functional abnormalities consistent with the
diagnosis of pseudocyesis. Montgomery contends that the district court erred in
excluding the evidence at both the guilt and the penalty phases of the trial. She argues
that the evidence met the admissibility standards set forth in Federal Rule of Evidence
702 and the Federal Death Penalty Act. She contends that the evidence was highly
probative because it provided support for the pseudocyesis diagnosis, bolstered Dr.
Ramachandran’s opinion, and rebutted Dr. Dietz’s contrary opinion. Montgomery
argues that the error cannot be deemed harmless, given the critical nature of the
evidence. Moreover, she says, the PET evidence should not have been excluded
because of her failure to timely comply with the district court’s order to produce
certain data from the PET scan centers.

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 1. PET Evidence

Dr. Gur supervised a PET scan of Montgomery’s brain. PET scanners measure
the level of activity in different areas of the brain. The results of Montgomery’s scan
revealed elevated activity throughout the limbic system, particularly in the right limbic
regions, which are “important for emotion processing and memory formation.” The
limbic system also detects danger and regulates aggression. Montgomery’s PET
results also showed increased activity in the somatomotor region, including the
hypothalamus. According to Dr. Gur, the somatomotor region “collects the body
sensation. It tells the brain whether you are hot or cold, whether you are hungry or
thirsty. It informs the brain of your sex drive, all those sensations that come from the
body.” Moreover, heightened activity in the hypothalamus has been shown to produce
pseudopregnancy in rats. When asked whether it was significant that pseudocyesis
“is what is called a somatoform disorder,” Dr. Gur replied, “That’s exactly what my
thought was when I saw these findings.”

Based on the PET results, Dr. Gur opined that Montgomery suffered from
functional abnormalities consistent with the diagnosis of pseudocyesis. Dr. Gur
testified that the purpose of the PET scan was not to diagnose Montgomery with
pseudocyesis or any other condition, but to identify any brain abnormalities that might
underlie her extreme behavior. Dr. Gur hesitated to say that Montgomery’s brain
abnormalities caused her to commit the crime. He testified that her brain
abnormalities contributed to her actions and that “the brain she has may explain at
least part of what happened.”

Alan Evans, Ph.D., conceded that Montgomery’s PET results were “not
inconsistent with” the diagnosis of pseudocyesis, but he testified that no causal
connection existed between Montgomery’s brain functioning and the diagnosis.
According to Dr. Evans, Montgomery’s PET profile could be consistent with
numerous neurological states, both normal and pathological, and thus “it is not
particularly relevant or important to say it’s consistent with pseudocyesis. It’s
-18-
consistent with many, many, many things.” Likewise, Helen Mayberg, Ph.D.,
explained that a treating physician would not request a PET scan to determine whether
the patient had pseudocyesis because its results would not be helpful in making the
diagnosis. Although the PET scan indicates brain activity, no PET scan pattern
indicates pseudocyesis, and PET results cannot be used to predict behavior. Dr.
Mayberg testified that the reliance on the study of hypothalamic activity in rats was
misguided. When asked whether PET results could be used to identify or diagnose
psychiatric disorders, Dr. Mayberg replied unequivocally, “no.”

Drs. Evans and Mayberg also took issue with Dr. Gur’s methodology. They
claimed that Dr. Gur had calculated the data from the normative population differently
than he had calculated Montgomery’s data. They were able to duplicate Dr. Gur’s
calculations only if they employed one method for Montgomery and a different
method for the control group. They also expressed concerns over testing conditions
and scanner resolution.

Following the Daubert hearing, the district court indicated that it would admit
PET evidence regarding abnormalities in the somatomotor region of Montgomery’s
brain. Although skeptical of its reliability, it found that the PET evidence was
relevant to the extent that Drs. Ramachandran and Logan would testify that the results
showed abnormalities in the area of the brain where they would expect to find
abnormalities in a person suffering from pseudocyesis. It found baseless “Dr. Gur’s
opinions about impulse control or aggression and what he identifies as abnormalities
in the brain having any causal effect.” It also found that Montgomery had failed to
show that the results from a PET scan administered in 2007 would reveal the brain’s
condition in 2004.

As set forth earlier, prior to opening statements the district court decided to
exclude the PET evidence regarding somatomotor abnormalities. It stated that the
evidence had minimal probative value, that the dispute over Dr. Gur’s calculations
would confuse the jury, that the government’s experts were able to duplicate Dr. Gur’s
-19-
results only when they used an invalid methodology, and that the original data from
the PET scan center for the control group was unavailable and thus not produced to
the government’s experts. At the close of the guilt phase evidence and again at the
close of the penalty phase evidence, the district court denied Montgomery’s renewed
requests to present evidence related to the PET scan.6

We review the district court’s interpretation and application of the Federal
Rules of Evidence de novo and its evidentiary rulings for abuse of discretion. United
States v. Street, 531 F.3d 703, 708 (8th Cir. 2008). “We may affirm on any ground
supported by the record, even if that ground was not relied on by the district court.”
United States v. Purkey, 428 F.3d 738, 752 (8th Cir. 2005). Moreover, even if the
evidence was erroneously excluded, the defendant is not entitled to a new trial if its
exclusion was harmless. United States v. Bistrup, 449 F.3d 873, 882 (8th Cir. 2006).
“An error is harmless if it does not affect substantial rights of the defendant . . . and
did not influence or had only a slight influence on the verdict.” Id. (internal citations
omitted).

6
In its post-trial order denying Montgomery’s motion for a new trial, the district
court addressed the PET evidence:

[T]he government’s experts showed conclusively that Dr. Gur’s
principles and methods were not subjected to adequate peer review or
publication and that Dr. Gur’s application of his principles and methods
to the facts was unreliable, and thus would have misled and confused the
jury rather than assisted it. Finally, the evidence was of extremely low
probative value as it provided only minimal support for the sweeping
conclusion that PET scans of Defendant’s brain showed patterns
consistent with the rare diagnosis of pseudocyesis without ruling out
compatibility with a multitude of other more common conditions and
circumstances.

D. Ct. Order of Mar. 12, 2008, at 2-3.
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 During the guilt phase of trial, Federal Rule of Evidence 702 governs the
admission of expert testimony and requires the district court to serve as a gatekeeper
to “ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Daubert, 509 U.S. at 589. Accordingly, an expert may testify
in the form of an opinion or otherwise “if scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue” and “if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.” Fed. R. Evid.
702.

Dr. Gur’s testimony that Montgomery’s PET scan showed abnormalities in the
limbic and somatomotor regions of her brain was sufficiently reliable to be admitted.
The experts agreed that PET scanners reliably measure brain activity, and we have
previously noted that “[t]here is also no question that the PET scan is scientifically
reliable for measuring brain function.” Hose v. Chi. Nw. Transp. Co., 70 F.3d 968,
973 (8th Cir. 1995). The government experts did not dispute Dr. Gur’s testimony that
the limbic system regulates emotion processing and that the midbrain, including the
hypothalamus, regulates core functions like sleep and sex drive.7

That Montgomery’s PET scan showed abnormalities in areas regulating
emotion processing and core functions had minimal probative value. The
abnormalities would have been significant only if they had assisted Montgomery in
establishing her insanity defense, which was based on Dr. Ramachandran’s opinion
that Montgomery suffered from pseudocyesis, that pseudocyesis involves the delusion

7
The district court did not determine whether Dr. Gur used a valid normalization
method or an invalid one, as Dr. Mayberg and Dr. Evans claimed. We decline to do
so here. Suffice it to say that had the evidence been admitted, the jury could have
considered the dispute, as well as the concerns over testing conditions and scanner
resolution, and weighed the evidence accordingly.

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that one is pregnant, and that she was in a delusional or dissociative state when she
kidnapped Victoria Jo and killed Stinnett. The PET scan was not used as a diagnostic
aid for pseudocyesis, and as conceded by Dr. Gur, the abnormalities do not predict
behavior and they did not cause Montgomery to commit the crime. Accordingly, any
error in excluding the evidence that Montgomery’s PET scan showed abnormalities
in the limbic and somatomotor regions of the brain was harmless.

Dr. Gur’s opinion that Montgomery’s PET results showed abnormalities
consistent with a diagnosis of pseudocyesis is another matter. Dr. Gur’s opinion does
not meet Rule 702’s reliability requirement because it was “at most a working
hypothesis, not admissible scientific ‘knowledge.’” See Tamraz v. Lincoln Elec. Co.,
620 F.3d 665, 670 (6th Cir. 2010) (citing Fed. R. Evid. 702). Although Rule 702’s
inquiry is “a flexible one,” it requires that the principles underlying the proposed
submission be scientifically valid. Daubert, 509 U.S. at 594-95. Scientific knowledge
requires “more than subjective belief or unsupported speculation.” Id. at 590.

Montgomery failed to show that Dr. Gur’s opinion was based on scientifically
valid principles. Dr. Gur opined that Montgomery’s “increased hypothalamic and
related activation is potentially a source of vulnerability to pseudocyesis (by history).”
At the Daubert hearing, he cited the scientific study involving rats as evidence of the
correlation between increased activity in the hypothalamus and pseudocyesis. Dr.
Mayberg, however, described that study in detail. When rats copulate, their
hypothalamus gives a pulse of hormone that causes the pituitary to release other
hormones, setting the stage for fertilization. The rats may experience a state of
pseudopregnancy within two weeks of copulation. Dr. Mayberg explained that the
increased hypothalamic activity is temporary and that the hypothalamus does not have
a persistent state of activity in the rat experiments. Accordingly, Dr. Mayberg
concluded that, even assuming a correlation between a rat and a human hypothalamus,
the study was not applicable because (1) Montgomery had been incarcerated for more
than two years and thus had not engaged in sexual intercourse and (2) she was not in
a state of pseudopregnancy at the time of her PET scan. Dr. Gur made only a passing
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reference to the study and did not rebut Dr. Mayberg’s testimony, other than stating
that PET results remain constant unless the patient suffers a major illness or brain
injury.

The remaining support offered for Dr. Gur’s opinion was the fact that the
hypothalamus is located in the somatomotor area of the brain and that pseudocyesis
is a somatoform disorder. That similarity, however, is irrelevant in the absence of a
showing that somatoform disorders are accompanied by abnormalities in the
somatomotor region of the brain. Dr. Gur testified that certain areas of the brain affect
certain functions, but he was unable to substantiate the opinion that Montgomery’s
abnormalities were consistent with the diagnosis of pseudocyesis. The district court
expected that the defense psychiatrists would testify that Montgomery’s PET results
revealed abnormalities consistent with her diagnosis of pseudocyesis, but their expert
reports did not clearly state or substantiate that opinion.

Pseudocyesis is an extremely rare disorder. As such, it is unlikely that
individuals with the disorder will undergo PET scans or that scientists will be able to
discern a signature PET scan pattern to diagnose the disorder. Other than his mention
of the study on rats, there was no evidence offered to show the scientific reliability of
Dr. Gur’s opinion. Similarly, no evidence was offered that individuals suffering from
other somatoform disorders have somatomotor abnormalities similar to
Montgomery’s. As stated above, the PET evidence that showed increased activity in
the limbic and somatomotor regions of Montgomery’s brain and the evidence that
those areas are associated with certain functions was reliable and should have been
admitted. The opinion that the abnormalities were consistent with pseudocyesis,
however, did not rise to the level of scientific knowledge.

A hypothesis without support, like the one posited here, is no more than a
subjective belief or an exercise in speculation. “[I]t thus is not knowledge, nor is it
based upon sufficient facts or data or the product of reliable principles and methods
applied reliably to the facts of the case.” Tamraz, 620 F.3d at 670 (quoting Fed. R.

-23-
Evid. 702) (internal quotations and alterations omitted). The district court thus did not
abuse its discretion in excluding Dr. Gur’s opinion during the guilt phase of trial.

Montgomery also contends that the exclusion of Dr. Gur’s opinion at the
penalty phase of the trial amounted to reversible error. We review the district court’s
evidentiary rulings for an abuse of discretion, and we determine de novo the question
of whether Montgomery’s constitutional rights have been violated. Purkey, 428 F.3d
at 756-57. “Even if we conclude that the district court erred, we cannot reverse or
vacate a federal death sentence on account of an error that is harmless beyond a
reasonable doubt.” Id. at 757.

During the penalty phase of a capital trial, “[i]nformation is admissible
regardless of its admissibility under the rules governing admission of evidence 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. § 3593(c). “Since the need to regulate the scope of
testimony is less at the penalty phase than at the guilt phase of trial, parties may
present evidence ‘as to any matter relevant to the sentence.’” United States v. Lee,
274 F.3d 485, 494 (8th Cir. 2001) (quoting 18 U.S.C. § 3593(c)); see also Williams
v. New York, 337 U.S. 241, 247 (1949) (The factfinder at the penalty phase should
“not be denied an opportunity to obtain pertinent information by a requirement of
rigid adherence to restrictive rules of evidence properly applicable to the trial.”);
Gregg v. Georgia, 428 U.S. 153, 204 (1976) (At the penalty phase, “it [is] desirable
for the jury to have as much information before it as possible when it makes the
sentencing decision.”).

Under the Federal Death Penalty Act’s low threshold for admissibility, Dr.
Gur’s interpretation of the PET scan was arguably admissible.8 Whether its exclusion

8
Montgomery complied with the expert disclosure requirements under the
Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 16(b)(1)(C) (requiring the
defendant to provide a description of any expert “witness’s opinions, the bases and
reasons for those opinions, and the witness’s qualifications”). Accordingly, to the
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constituted reversible error is another question. We conclude that any error in
excluding the proposed testimony was harmless beyond a reasonable doubt. The jury
heard extensive testimony from Drs. Ramachandran, Logan, and Kuncel, as well as
from Montgomery’s treating psychiatrist, about Montgomery’s background and
psychiatric diagnoses. Dr. Gur’s testimony would have informed the jury that
Montgomery’s brain had certain functional abnormalities, would have offered his
minimally probative and scientifically unreliable opinion that the abnormalities were
consistent with the pseudocyesis diagnosis, and would have expressed his opinion that
“the brain she has may explain at least part of what happened” and that the
abnormalities contributed to her actions. Nevertheless, we conclude that what we said
in Purkey is of equal force in this case: “[A]lthough we recognize that a jury may be
more likely to believe that someone suffers from a problem if its cause is explained,
we nevertheless harbor no doubt that considering the minimal probative value of the
evidence and the overwhelming evidence and jury findings of serious aggravating
factors, its exclusion was harmless.” 428 F.3d at 758.

2. MRI Evidence

According to Dr. Gur’s report, Montgomery’s MRI revealed structural
abnormalities, including reduced brain volume in the right parietal lobes and right
medial gray matter. Right parietal dysfunction, according to the report, “manifests
itself behaviorally in loss of sense of self, difficulties in emotion processing,
attentional neglect and depressed or flat affect.”

At the Daubert hearing, the experts interpreted a graph in Dr. Gur’s report that
charted the deviation of Montgomery’s MRI results from normal. Montgomery’s
parietal and medial gray matter regions were less than one standard deviation from
normal. Dr. Evans explained that Montgomery’s results were within the normal range
and that approximately fifty percent of the population would have comparable results.

extent the district court based its decision to exclude the PET evidence on
Montgomery’s alleged discovery violation, the sanction was unwarranted.
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Montgomery’s ventrical measurements were one standard deviation from normal, and
Dr. Evans stated that approximately thirty percent of the population would have
similar results. Drs. Evans and Mayberg testified that Montgomery’s deviations were
not statistically significant because none of her measurements deviated more than one
standard deviation from the mean. Dr. Mayberg also testified that to infer statistical
analysis from numbers within the normal range “and extrapolate about complex
behavior that doesn’t have a known brain organization is basically having an opinion
that far exceeds both the data we have here and what is known in the literature.”

Dr. Gur testified that, even if the deviations were not statistically significant,
they were nonetheless clinically significant. Dr. Gur compared Montgomery’s right
parietal and medial gray matter to her left-side counterparts. Based on his “eyeball”
comparison, he determined that Montgomery’s right parietal and medial gray matter
appeared abnormally low. Dr. Evans testified, however, that Dr. Gur had failed to
show that Montgomery’s left-right difference was abnormal.

The district court did not abuse its discretion in excluding the MRI evidence
from both the guilt and the penalty phases of the trial. It found unreliable the
methodology underlying Dr. Gur’s opinion that the results were clinically significant.
Moreover, it found that the MRI results had no scientifically recognized significance.
Accordingly, the district court concluded that the results were irrelevant to
Montgomery’s insanity defense and the mitigating factors she pleaded. The district
court thus exercised its authority “to exclude, as irrelevant, evidence not bearing on
the defendant’s character, prior record, or the circumstances of [her] offense.” Lockett
v. Ohio, 438 U.S. 586, 604 n.12 (1978) (plurality opinion).

C. Polygraph Examination Evidence

As set forth above, Montgomery confessed that she acted alone in killing
Stinnett and in kidnapping the infant. In early 2007, however, Montgomery claimed
that her brother, Tommy Kleiner, had accompanied her on December 16, 2004. She
reiterated the allegations during interviews with psychiatrists for the government and
-26-
for the defense. Accordingly, her attorneys commissioned a polygraph examination
to test the veracity of the allegations.

According to the polygraph report, the purpose of the examination was to
determine the truthfulness of Montgomery’s assertions that her brother accompanied
her to Skidmore and that he was present when Stinnett was killed. During the
examination, Montgomery was asked the following questions: (1) “On that day, was
Tommy with you at the house?” (2) “Was Tommy present in the house on that day?”
Montgomery answered “yes” to both questions. The polygraph examiner opined that
Montgomery did not show a “consistent and strong physiological reaction when
responding” to the relevant questions and concluded that her answers were “not
indicative of deception.” The government was not notified of the polygraph
examination and did not take part in it.

After Montgomery’s allegations regarding her brother came to light, the
government investigated whether Kleiner was involved in the crime. It discovered
that Kleiner had been meeting with his probation officer in Lyndon, Kansas, at the
time of Stinnett’s murder. Kleiner’s probation officer and probation records
confirmed the meeting. Lyndon is approximately three hours away from Skidmore.

Montgomery’s counsel shared the results of the polygraph examination with the
government. Thereafter, the government moved to exclude any testimony related to
the examination or its results, arguing that the questions were flawed, that the results
were unreliable, and that any evidence related to the polygraph examination should
be excluded under Federal Rules of Evidence 702 and 403. Montgomery sought to
use the evidence to impeach the government’s expert’s opinion that Montgomery’s
allegations against Kleiner were “intentional and knowing fabrications and not the
product of an unsound mind.” The district court granted the motion to exclude.

Montgomery contends that the exclusion of the polygraph evidence amounted
to reversible error. We review evidentiary rulings for abuse of discretion. United
States v. Gianakos, 415 F.3d 912, 924 (8th Cir. 2005); United States v. Jordan, 150
-27-
F.3d 895, 899 (8th Cir. 1998). Although there is no per se ban on the use of polygraph
evidence in this circuit, “[o]ur cases make clear that polygraph evidence is
disfavored.” United States v. Gill, 513 F.3d 836, 846 (8th Cir. 2008) (gathering
cases). To be admissible, polygraph evidence must be relevant, and its probative
value must not be “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.”9 Fed. R. Evid. 403; see also Fed. R.
Evid. 401.

Results from a unilateral polygraph examinations have little probative value.
See United States v. Sherlin, 67 F.3d 1208, 1217 (6th Cir. 1995) (concluding that the
defendant’s “privately commissioned polygraph test, which was unknown to the
government until after its completion, is of extremely dubious probative value”). The
defendant has no adverse interest at stake because a polygraph examination
administered without notice to and participation by the government “carries no
negative consequences, and probably won’t see the light of day if a defendant flunks.”
United States v. Ross, 412 F.3d 771, 773 (7th Cir. 2005). Applying the balancing test
set forth in Federal Rule of Evidence 403, courts have routinely deemed inadmissible
evidence related to unilateral polygraph examinations. See, e.g., id.; United States v.
Thomas, 167 F.3d 299, 308-09 (6th Cir. 1999); United States v. Gilliard, 133 F.3d
809, 815-16 (11th Cir. 1998); Sherlin, 67 F.3d at 1217; see also United States v.
Williams, 95 F.3d 723, 729-30 (8th Cir. 1996) (affirming the district court’s exclusion
of polygraph evidence on the basis that the evidence would be more prejudicial than
probative).

The district court did not abuse its discretion in excluding the polygraph
evidence under Federal Rule of Evidence 403. Montgomery’s polygraph evidence
had minimal probative value. The test was administered without the government’s

9
Polygraph evidence must also be reliable. Fed. R. Evid. 702; Daubert, 509
U.S. 579. As the Supreme Court has noted, “there is simply no consensus that
polygraph evidence is reliable.” United States v. Scheffer, 523 U.S. 303, 309 (1998).
Because we affirm the district court’s evidentiary ruling on the basis of Rule 403, we
need not engage in the Rule 702 analysis.
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knowledge and without the possibility that Montgomery might suffer negative
consequences from a failed examination. The questions were vague, with the results
establishing only that Montgomery did not show a “consistent and strong
physiological reaction” when responding to questions regarding whether Kleiner was
“with [her] at the house” and “present in the house on that day.” Moreover, the
admission of the proposed evidence would have necessitated collateral proceedings
regarding the validity of a unilateral polygraph examination. Accordingly, the
polygraph evidence was properly excluded.

For the same reasons, we conclude that the district court did not abuse its
discretion in excluding the polygraph test results at the penalty phase of the trial.

D. Sufficiency of Evidence To Support Aggravating Factor

At the close of the penalty phase evidence, Montgomery moved to dismiss the
statutory aggravating factor that she “committed the offense in an especially heinous
or depraved manner in that it involved serious physical abuse to the victim, Bobbie
Jo Stinnett.” Montgomery argued that the evidence showed that she used only the
force necessary to commit the offense and thus the evidence was insufficient to submit
the factor to the jury. The motion was denied, and the jury returned a unanimous
verdict that the aggravating factor had been proved.

Montgomery renews her challenge on appeal, arguing that she could not
complete the kidnapping resulting in death without strangling Stinnett and performing
a cesarean-section delivery of the infant.10 Montgomery claims that she did not cause

10
Montgomery’s reply brief argues that the cesarean-section removal of the
infant from Stinnett’s womb is irrelevant to whether the offense involved serious
physical abuse to Stinnett. She contends that our review is limited to the evidence
regarding Stinnett’s strangulation. This argument is contrary to the argument in her
opening brief, and it fails on the merits. In determining whether the offense involved
serious physical abuse to the victim, the jury must consider the physical abuse the
victim endured. The physical abuse inflicted here included ligature strangulation, the
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or intend to cause more suffering than required to complete the offense and that the
government thus failed to prove that she committed the offense in a heinous or
depraved manner in that it involved serious physical abuse to Stinnett.

Montgomery’s claim of error is based on her offense conduct, but the statute
focuses on the harm inflicted on the victim. The aggravating factor is met if “[t]he
defendant committed the offense in an especially heinous, cruel, or depraved manner
in that it involved torture or serious physical abuse to the victim.” 18 U.S.C.
§ 3592(c)(6). Most federal offenses that carry the death-penalty punishment could be
fairly characterized as heinous, cruel, or depraved. See Godfrey v. Georgia, 446 U.S.
420, 428-29 (1980) (“A person of ordinary sensibility could fairly characterize almost
every murder as ‘outrageously or wantonly vile, horrible and inhuman.’”).
Accordingly, the statute limits the application of the aggravating factor to offenses that
involve “torture or serious physical abuse to the victim.” § 3592(c)(6). The limiting
construction, along with the jury instructions defining the statute’s terms, provides “a
meaningful basis for distinguishing the few cases in which [the death penalty] is
imposed from the many cases in which it is not.” Godfrey, 446 U.S. at 428 (quoting
Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J. concurring)).

We conclude that the evidence was sufficient to submit the aggravating factor
to the jury and that a rational trier of fact could have found the aggravating
circumstance to exist beyond a reasonable doubt. See United States v. Ortiz, 315 F.3d
873, 902 (8th Cir. 2002) (standard of review). To constitute serious physical abuse
for purposes of § 3592(c)(6), the defendant must have inflicted “suffering or
mutilation above and beyond that necessary to cause death.” United States v. Agofsky,
458 F.3d 369, 374 (5th Cir. 2006). The jury instruction stated as much, defining
serious physical abuse as “significant or considerable amount of injury or damage to

puncturing of Stinnett’s abdomen with a kitchen knife, the subsequent struggle, the
cutting of Stinnett’s abdomen, and the removal of her eight-month-old fetus. As
stated above, the kidnapping is inextricably intertwined with Stinnett’s death. The
jury properly considered the physical abuse Stinnett endured throughout the offense
conduct.
-30-
the victim’s body” and requiring that the defendant “intended the abuse in addition to
the killing.”

Overwhelming evidence supported the jury’s verdict. Montgomery mutilated
Stinnett’s body to remove the infant from Stinnett’s womb. Montgomery confessed
to using a rope to strangle Stinnett until she was unconscious. Montgomery then
punctured Stinnett’s abdomen with a kitchen knife. The medical examiner testified
that this likely caused Stinnett to rouse and that the two women struggled after
Stinnett regained consciousness. The blood caked between Stinnett’s toes indicated
that she had lost a significant amount of blood before and during the struggle. The
autopsy revealed that there were two ligature strangulations, and the medical examiner
opined that it was the second strangulation that resulted in Stinnett’s death.
Montgomery confessed to using a kitchen knife to make an incision along Stinnett’s
abdomen. The autopsy revealed that the incision was jagged. After reaching into
Stinnett’s body and removing the fetus, Montgomery left Stinnett’s mutilated body
on the floor. The dining room was covered in blood, and Harper described her
daughter’s body as looking like her stomach had exploded. The evidence thus
supported the determination that Montgomery committed the offense in an especially
heinous or depraved manner in that it involved serious physical abuse to Stinnett.

E. Prosecutorial Misconduct

During the penalty phase of the trial, the government asked Montgomery’s
oldest daughter whether Montgomery had “ever apologized for what she did to Bobbie
Jo Stinnett and Victoria Jo Stinnett as she counseled you and emotionally support[ed]
you.” After defense counsel’s objection was overruled, the prosecutor rephrased the
question to ask whether Montgomery “ever apologize[d] for what she put you and
your siblings through.” The daughter responded that her mother did not remember
committing the crime.

During penalty phase closing argument, the prosecutor argued, “Deception,
manipulation is a way of life and they want you to give her credit and say she’s a good
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wife, a good mother. She never apologized for her actions.” Defense counsel’s
objection to the argument was overruled, and the prosecutor set forth the following
argument in rebuttal:

And then after all of that she drags those kids into court here to testify in
this high profile case in front of all these people and puts them through
this again and victimizes them again in front of the whole world.

...

She drug these kids in here to testify on her behalf. Don’t you think
that’s painful for them. She’s a good mom? Most of us, if we had
children [and] we were involved in a situation we would want them a
thousand miles away from this. We wouldn’t make them come to court
and testify.

Montgomery alleges that the government’s questions and closing remarks
constituted prosecutorial misconduct. “To obtain a reversal based on prosecutorial
misconduct to which there was proper objection, a defendant must show that (1) the
prosecutor’s remarks or conduct were improper, and (2) the remarks or conduct
affected the defendant’s substantial rights so as to deprive him of a fair trial.” United
States v. New, 491 F.3d 369, 377 (8th Cir. 2007). If the remarks were improper, we
examine the cumulative effect of the misconduct, the strength of the properly admitted
evidence, and any curative actions taken by the district court. Id.

The government contends that the questions and closing remarks were proper
rebuttal to certain mitigating factors and to defense evidence that Montgomery was
a good mother. The Federal Death Penalty Act provides that “[t]he government and
the defendant shall be permitted to rebut any information received at the hearing, and
shall be given fair opportunity to present argument as to the adequacy of the
information to establish the existence of any aggravating or mitigating factor.” 18
U.S.C. § 3593(c); see also United States v. Allen, 247 F.3d 741, 773 (8th Cir. 2001)
(“The government must be able to put on a fair rebuttal to a defendant’s mitigation
evidence during sentencing.”), vacated on other grounds, 536 U.S. 953 (2002). We

-32-
have defined rebuttal evidence as that which is “offered to explain, repel, counteract,
or disprove evidence of the adverse party.” United States v. Harris, 557 F.3d 938, 942
(8th Cir. 2009) (quoting Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992)).
Accordingly, “rebuttal evidence must be reasonably tailored to the evidence it seeks
to refute.” United States v. Jackson, 327 F.3d 273, 306 (4th Cir. 2003) (quoting
United States v. Stitt, 250 F.3d 878, 897 (4th Cir. 2001)). We conclude that the
questions and general remarks about Montgomery’s parenting were proper rebuttal,
but that the prosecutor’s argument that Montgomery victimized her children by calling
them as witnesses went beyond the pale.

It was not improper for the prosecutor to ask Montgomery’s daughter whether
Montgomery had “ever apologize[d] for what she put you and your siblings through.”
As stated above, Montgomery pleaded that she offered advice, nurturance, and
emotional support to her children and that she would continue to do so if she was
sentenced to life imprisonment. The question posed to Montgomery’s daughter called
for an answer that would explain the emotional support Montgomery had offered to
her children since her incarceration. The daughter responded that Montgomery did
not remember what she had done, and thus the jury learned that whatever support
Montgomery provided did not include an apology for the pain caused to her family.
This evidence tended to disprove and rebut Montgomery’s mitigating factors and
mitigating evidence. Similarly, the prosecutor’s remark in closing argument that
Montgomery “never apologized [to her family] for her actions” was permissible.

The prosecutor’s general remarks regarding whether Montgomery was a good
mother were proper rebuttal argument. Montgomery contends that she never claimed
that she was a good mother, but rather that she had reared good children. The record,
however, shows that defense counsel elicited testimony about Montgomery’s
relationship with her children and that some witnesses testified that she was a good
mother. Moreover, although the mitigating factors, testimony and exhibits, and
defense counsel’s arguments focused on evidence that the children were well behaved
and lovable, the plain import of the evidence and argument was that Montgomery was

-33-
a good mother because she reared good children, whom she had supported financially
and emotionally.

The prosecutor’s remarks criticizing the decision to have Montgomery’s
children testify is another matter. The Sixth Amendment confers the right of the
accused “to have compulsory process for obtaining witnesses in his favor.” U.S.
Const. amend VI. Although its terms grant only the right to compel witnesses to
appear through the use of subpoena power, the compulsory process clause has been
interpreted to include the right to offer testimony. “The right to compel a witness’
presence in the courtroom could not protect the integrity of the adversary process if
it did not embrace the right to have the witness’ testimony heard by the trier of fact.”
Taylor v. Illinois, 484 U.S. 400, 409 (1988). The Supreme Court has described the
Sixth Amendment right to offer testimony and compel witness attendance as, “in plain
terms the right to present a defense.” Id. (quoting Washington v. Texas, 388 U.S. 14,
19 (1967)).

“The prosecution cannot use the defendant’s exercise of specific fundamental
constitutional guarantees against him at trial.” Burns v. Gammon, 260 F.3d 892, 896
(8th Cir. 2001) (citing Griffin v. California, 380 U.S. 609, 615 (1965) (prosecutor is
prohibited from using defendant’s exercise of the constitutional right to remain silent
against defendant in case-in-chief) and comparing Portuondo v. Agard, 529 U.S. 61,
73 (2000) (prosecutor’s closing argument that defendant had the opportunity to hear
other witnesses testify and tailor his testimony accordingly did not unlawfully burden
his right to be present at trial, to confront witnesses against him, or to testify on his
own behalf because comments were directed at defendant’s status as witness whose
credibility was subject to attack)). Montgomery had the right to have her children
testify at her trial. It was thus improper for the prosecutor to argue that Montgomery
forced her children to testify and “victimize[d] them again in front of the whole
world.”

We conclude that, however improper they may have been, the remarks did not
deprive Montgomery of a fair trial. They were made in support of the argument that
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Montgomery was not a good mother and that she had failed to establish that she had
supported and nurtured her children The cumulative effect of the argument was
marginal, particularly in light of the substantial evidence supporting the aggravating
factors. Moreover, the offending remarks were brief and were made in the context of
an otherwise proper argument. We therefore reject Montgomery’s contention that
they warrant reversal.

F. Penalty Phase Jury Instructions

Montgomery argues that the district court erred in failing to instruct the jury
that it is never required to impose a sentence of death. Montgomery recognizes that
her argument is foreclosed by our prior panel decision in United States v. Allen, 247
F.3d 741, 780-82 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002), but
seeks to preserve her argument for en banc or Supreme Court review.

Over Montgomery’s objection, the district court instructed the jury as follows.
Penalty Phase Instruction No. 1 stated:

This decision is left exclusively to you, the jury. If you determine that
the defendant should be sentenced to death, or to life imprisonment
without possibility of release, the court is required to impose that
sentence.

...

If you unanimously find that the aggravating factor or factors, which you
all found to exist, sufficiently outweigh any mitigating factor or factors,
which any one of you found to exist to justify imposition of a sentence
of death, . . . and that death is therefore the appropriate sentence in this
case, the law provides that the defendant must be sentenced to death.

Penalty Phase Instruction No. 11 stated:

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 If you unanimously conclude that the aggravating factor or factors found
to exist sufficiently outweigh any mitigating factor or factors which any
of you found to exist to justify a sentence of death, and that therefore
death is the appropriate sentence in this case, you must record your
determination that a sentence of death shall be imposed [on the special
verdict form].

Montgomery argues that it was error for the instruction to use the mandatory
language, “must be sentenced to death,” and that the district court should have used
her proposed permissive language, “may be sentenced to death.” She also argues that
the jury should have been instructed that it is never required to return a sentence of
death.

The Federal Death Penalty Act states that a defendant who has been found
guilty of an enumerated offense for which a sentence of death is provided “shall be
sentenced to death if, after consideration of the factors set forth in section 3592
[delineating possible aggravating and mitigating factors] in the course of a hearing
held pursuant to section 3593, it is determined that imposition of a sentence of death
is justified.” 18 U.S.C. § 3591(a). Section 3593(e) requires the jury to consider
whether the aggravating factors outweigh the mitigating factors to justify a sentence
of death. Based upon that consideration, the jury by unanimous vote “shall
recommend whether the defendant should be sentenced to death, to life imprisonment
without possibility of release or some other lesser sentence.” § 3593(e). We have
interpreted the statutory language to mean that “once a jury makes a final, unanimous
determination that a sentence of death is justified, then the FDPA requires its
imposition.” Allen, 247 F.3d at 780. Because Montgomery’s requested instructions
were contrary to our case law interpreting the Federal Death Penalty Act, the district
court did not err in giving to the jury the penalty phase instructions recited above.
E.g., United States v. Rodriguez, 581 F.3d 775, 812-14 (8th Cir. 2009); Purkey, 428
F.3d at 762-63; United States v. Nelson, 347 F.3d 701, 712 (8th Cir. 2003); Ortiz, 315
F.3d at 900-01.

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 III. Conclusion

Montgomery argues that the cumulative effect of the alleged errors warrant a
new trial. “We may reverse where the case as a whole presents an image of unfairness
that has resulted in the deprivation of a defendant’s constitutional rights, even though
none of the claimed errors is itself sufficient to require reversal.” United States v.
Samples, 456 F.3d 875, 887 (8th Cir. 2006) (quoting United States v. Riddle, 193 F.3d
995, 998 (8th Cir. 1999)). Having determined that any error was harmless, we
conclude that Montgomery suffered no substantial prejudice and that the cumulative
effect of the alleged errors did not deprive her of her constitutional rights.

The conviction and sentence are affirmed.
______________________________

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