United States v. Gabrion

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0201p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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Nos. 02-1386/1461/1570
v.
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Defendant-Appellant. -
MARVIN CHARLES GABRION, II,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 99-00076—Robert Holmes Bell, District Judge.
Argued: October 13, 2010
Decided and Filed: August 3, 2011
Before: BATCHELDER, Chief Judge; MERRITT and MOORE, Circuit Judges.

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COUNSEL
ARGUED: Margaret O’Donnell, Frankfort, Kentucky, for Appellant. Timothy P.
VerHey, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Margaret O’Donnell, Frankfort, Kentucky, Kevin M. McNally,
McNALLY & O’DONNELL, Frankfort, Kentucky, Judy Clarke, CLARKE & RICE, San
Diego, California, for Appellant. Timothy P. VerHey, Joan E. Meyer, ASSISTANT
UNITED STATES ATTORNEYS, Grand Rapids, Michigan, for Appellee.
MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined.
BATCHELDER, C. J. (pp. 58-74), delivered a separate opinion concurring in part and
dissenting in part.

1
Nos. 02-1386/1461/1570 United States v. Gabrion Page 2

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OPINION
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MERRITT, Circuit Judge. We first heard this case and rendered a 2-1decision
on March 14, 2008, concluding that murder in a National Forest falls within federal
subject matter jurisdiction, United States v. Gabrion, 517 F.3d 839 (2008). The parties
then filed supplemental briefs in December 2009 and February 2010; and, after a second
oral argument, we are now prepared to decide the other issues on the merits.

This case is a direct appeal pursuant to 18 U.S.C. § 3595 in a federal death
penalty murder case tried in federal court in Grand Rapids, Michigan, for a murder
committed in the Manistee National Forest. The defendant, Marvin Gabrion, was
sentenced to death by the jury. Although the defendant raises issues on appeal relating
to the guilt and sentencing phases of the trial, we find that three issues, all arising in
connection with the sentencing phase, are the most difficult. The first arises from the
need to determine the nature of Gabrion’s severe mental and emotional disabilities in
order to determine his competence to stand trial at the sentencing phase of the case after
he had physically attacked his lawyer in open court in front of the jury. The second
arises from the ruling of the District Court that Gabrion, in an effort to mitigate his
punishment to life imprisonment, could not use the fact that Michigan, where the murder
occurred, had abolished the death penalty. His counsel wanted to offer in mitigation and
argue to the jury that in our legal system Gabrion’s trial would have had to take place
in state court where life imprisonment was the maximum punishment, instead of in the
federal court, if the victim’s body had been found outside the Manistee National Forest,
just 227 feet away from where it was found inside the National Forest. His counsel
wanted the jury to choose life imprisonment, rather than the death penalty, because the
State of Michigan had abolished the death penalty and had not executed anyone for more
than 160 years. The third issue arises from the failure of the District Court to advise the
jury that it must find that the “aggravators outweigh the mitigators beyond a reasonable
doubt” in order to impose the death penalty. The District Court left undefined the
Nos. 02-1386/1461/1570 United States v. Gabrion Page 3

measure of persuasion or the degree of certitude required of each juror concerning the
ultimate question of fact resolved by the weighing process.

The State of Michigan accused Marvin Gabrion of raping Rachel Timmerman
in August 1996. There is no doubt that he murdered her and her infant daughter in June
1997 while awaiting trial for raping her. The jury verdict at the guilt phase of Gabrion’s
murder trial accepted the government’s detailed evidence that Gabrion bound Rachel
Timmerman with chains during the first week of June 1997, took her while alive in a
small boat, and dumped her into Oxford Lake with cinder blocks to weigh her down.
Her bloated, drowned body was found on July 5, 1997, after it had been in the lake for
several weeks. The lake was a shallow swamp filled with vegetation so that the body
would stay where it was dumped from the boat and would not be carried to another
location by a current or wind. The body was within the Manistee National Forest, 227
feet south of the boundary. Timmerman’s eyes and mouth were covered with duct tape
wrapped around her head. In addition to overwhelming circumstantial evidence, three
witnesses testified that Gabrion had made statements to them incriminating himself in
Timmerman’s murder.

At the sentencing phase of the case after the guilty verdict, the jury found the
existence of a number of aggravating factors: a likelihood that Gabrion would harm
others in the future; the brutal, depraved, and premeditated nature of his crime; the
murder of Timmerman’s infant daughter; and obstruction of justice in order to avoid
apprehension for rape. The jurors also found as mitigating factors that he was abused
as a child and that he had a significant Antisocial Personality Disorder.

The testimony and the psychiatric literature lead to a conclusion that Gabrion
suffered from an extreme Antisocial Personality Disorder in the nature of severe
psychopathic madness; but we agree with the District Court that this did not render him
incompetent to stand trial. He knew what he was doing throughout. We conclude,
however, that the District Court did err in two respects — by failing to give a proper
reasonable doubt instruction and by refusing to allow Gabrion’s counsel to argue for
mercy in mitigation of the death penalty on the ground that Gabrion could not have
Nos. 02-1386/1461/1570 United States v. Gabrion Page 4

received the death penalty if the body had been found 227 feet away, outside the
National Forest. Counsel was prevented from trying to convince the jury in mitigation
that the administration of the death penalty in this instance was random and based on
chance. The District Court’s ruling in this respect was in error under 18 U.S.C.
§ 3592(a), which reads: “Mitigating factors — In determining whether a sentence of
death is to be imposed on a defendant, the finder of fact shall consider any mitigating
factor . . . .” (Emphasis added.) We will first analyze the competence, mitigation, and
reasonable doubt problems. We will then analyze the remaining issues. The result is
that the case will be remanded for a retrial of the sentencing phase of the case. The
issues will be discussed in the order set out in the footnote below.1 The statute provides
that on appeal: “The Court of Appeals shall address all substantive and procedural
issues raised on the appeal of a sentence of death . . . .” 18 U.S.C. § 3595(c)(1).

1
I. Gabrion’s Mental Disabilities and His Competence to Stand Trial
II. Whether Michigan’s Abolition of the Death Penalty Is a “Mitigating factor” That the
Jury May Consider
III. The Failure to Give a Reasonable Doubt Instruction in Weighing Aggravators and
Mitigators
IV. The Failure of the Indictment to Allege Statutory Aggravating Factors
V. Proof of Subject Matter Jurisdiction
VI. Gabrion’s Request to Proceed Without Counsel
VII. Whether Gabrion’s Physical Assault of his Counsel in Court Required the Withdrawal
of his Trial Counsel or a Mistrial
VIII. Whether the In Camera Conferences between the District Judge and Gabrion’s Defense
Counsel Outside of Gabrion’s Presence Violated Gabrion’s Rights
IX. The District Court’s Decision Not to Disclose a Report Suggesting That a Government
Witness May Have Been Biased Against Gabrion
X. The Removal of a Juror Who Was Allegedly Sleeping
XI. Admission of Videotaped Testimony of Coleman and Westcomb
XII. Examination of Gabrion by Government Psychiatrist and Testimony in Rebuttal
Concerning Gabrion’s Mental Health Evidence as Mitigation
XIII. Unresolved Ethics Complaint Filed Against Government Witness, Dr. Ryan
XIV. The Death Qualification of the Jury
XV. Constitutionality of the Act’s Penalty Phase Evidentiary Standard
XVI. Constitutionality of Other Acts Information Admitted During Penalty Phase Supporting
“Future Dangerousness” as a Non-Statutory Aggravating Factor
XVII. Propriety of Remarks by Prosecutor During Closing Argument
XVIII. Testimony of Victim’s Mother Requesting the Death Penalty
XIX. Allegations of Jury Bias Based on Post-Trial Juror Comment to Newspaper
XX. Alleged Brady Violation Concerning Competency Challenge to Government Witness
XXI. Jury Instructions in the Penalty Phase
Nos. 02-1386/1461/1570 United States v. Gabrion Page 5

I. Gabrion’s Mental Disabilities and His Competence to Stand Trial

The actual murder trial began on February 25, 2002, and ended on March 16,
2002. Beginning with pretrial matters three years before and throughout the trial,
Gabrion consistently disrupted the proceedings in many ways. At oral argument before
us on appeal, appellate counsel focused her argument primarily on the contention that
Gabrion was incompetent to stand trial — particularly during the sentencing phase after
he hit his lawyer in the face with his fist in front of the jury. The claim that Gabrion lost
competence in the sentencing phase of the trial when he punched his lawyer in the face
is belied by the testimony of Dr. Gregory Saathoff. He is a professor of clinical
psychology at the University of Virginia. He testified on March 15, 2002, after
Gabrion’s attack on his lawyer. Saathoff testified in detail that Gabrion’s behavior at
trial was part of Gabrion’s deviant personality characterized by a recurring pattern of
deception and in this instance his effort to fake incompetence.2 This evaluation after the
attack was consistent with the evaluations of seven other mental health experts before
the attack. For example, the first evaluation was given by Dr. Emily Fallis of the Federal
Medical Center in Fort Worth in May 2000. She found Gabrion to be a “sociopath,” a
man with an “Antisocial Personalty Disorder [that] include[d] inability to follow rules

2
Dr. Saathoff illustrated this deception in the following testimony:
Q. Now, did you also ask him what day it was and what year it was?
A. Yes, I did.
Q. And what month did he say it was?
A. He stated that he thought it was February.
Q. In fact it was March?
A. Correct.
Q. Did he tell you what year he thought it was?
A. Yes, he did.
Q. And what year did he tell you he thought it was?
A. He stated that he thought it was the year 2003.
Q. And in fact it was this year, 2002?
A. That’s true.
Q. Did you have occasion to determine through your review of other materials Mr.
Gabrion’s ability when it suits his purpose to know exactly what time of day it is?
A. Yes, sir.
Q. How do you do that?
A. I asked to review the recent records from the Kent County Jail to see if there were
any writings of Mr. Gabrion, certain requests that he sent in to the medical department
or to others asking for various things, which is common in these types of settings. And
in order to be processed, these need the name of the individual, the date, and of course
the request. And on each of them the correct year was given, 2002; the correct month,
March; and what appeared to be the correct date.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 6

and laws; lying and manipulating others; impulsivity; irritability and aggressiveness; and
consistent irresponsibility.” (Vol. VII, JA 2277.) Gabrion’s behavior fits the checklist
for severe psychopathy in the psychiatric literature that includes the following
characteristics:

1. Glibness / superficial charm
2. Grandiose sense of self-worth
3. Need for stimulation
4. Pathological lying
5. Conning/manipulative
6. Lack of remorse or guilt
7. Shallow affect
8. Callous / lack of empathy
9. Parasitic lifestyle
10. Poor behavioral controls
11. Promiscuous sexual behavior
12. Lack of realistic, long-term goals
13. Impulsivity
14. Irresponsibility
15. Criminal versatility

Kent A. Kiehl, “A Cognitive Neuroscience Perspective on Psychopathy: Evidence for
Paralimbic System Dysfunction,” Elsevier 107, 109 (2006), available at
www.sciencedirect.com by searching for author.

From the early pretrial proceedings, Gabrion sought to represent himself without
a lawyer. He began to inundate the magistrate judge with letters and writings saying that
his lawyers were “Satanic” and trying to frame him. He refused to cooperate with his
appointed lawyers by providing information. He harassed them. For example, he called
the office of one of his lawyers more than 80 times on a single day while continuing to
inundate court staff with letters and phone calls. He continues this process on appeal by
sending voluminous writings and letters to this court. On occasion, he called the district
judge an “evil Hitler” and said in court that the judge was having sex with a 14-year-old
girl and had gotten a 13-year-old girl pregnant. He insulted the jury. He came to court
dirty with black marks over his forehead and the letters “AZZA” on his forehead. On
some occasions during the trial, Gabrion’s conduct became so unruly that the court had
to expel him from the courtroom and allow him to return restrained at the wrists and
Nos. 02-1386/1461/1570 United States v. Gabrion Page 7

legs. As a precaution, Gabrion had to sit between two marshals when he was allowed
to return to the courtroom after striking his lawyer in the face. Typically he made
observations to the courtroom audience like the following: “I am sorry to be forced to
be represented by evil shysters in a kangaroo court in a prostitute evil nation that
murders its babies by abortion. And I’ll be quiet because I am being forced to just as if
I were in Nazi Germany.” These are but a few examples of many instances of similar
behavior during the course of the trial.

Gabrion’s appellate counsel argues that the only solution to the problem of
Gabrion’s efforts to disrupt the proceedings from the beginning of the proceedings in
1999, including his attack on his lawyer in March 2002, to the present time is to order
a new competency hearing. Counsel concludes that the District Court “committed
reversible error and denied Gabrion due process by refusing to hold a competency
hearing” during the sentencing phase of the case. We do not agree because the
psychiatric and mental health records in the case convince us, as they did the District
Court, that Gabrion knew what he was doing. He was “malingering” — defined in
psychiatric literature as “the intentional production of false or grossly exaggerated
physical or psychological symptoms motivated by external incentives,” as explained in
the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). He was faking
incompetence in order to disrupt the trial.3

3
There is an extensive record consisting of evaluations, reports, and testimony of 9 mental health
experts. Gabrion was first evaluated by Emily Fallis of the Federal Medical Center in Fort Worth in May
2000; by Dr. Cathy Frank, Director of Forensic Psychiatry at Henry Ford Hospital in Detroit in June 2001;
and by Dr. Richard DeMier and others of the Federal Medical Center in Springfield, Missouri, during the
months of September and October 2001. He was also evaluated by Dr. Thomas Ryan, a board certified
clinical professor of psychiatric medicine at the University of Virginia on February 20-21, 2002; by Dr.
Gregory Saathoff, a professor of clinical psychology at the University of Virginia, on March 8, 2002; by
Martin Waalkes, a psychologist at Hope Network Rehabilitation Services, who testified on March 13, two
days after the attack; by Dr. David Griesemer, Chairman of the Department of Neurology at the University
of South Carolina in Charleston, who testified on March 14, 2002; by Dr. Newton Jackson, a forensic
psychologist for the State of Michigan, who testified March 14, 2002; and by Dr. Douglas Scharre, a
neurologist at the Ohio State Medical School, who testified on March 13, 2002.
Only one of the nine experts, Dr. Scharre, testified that Gabrion was not malingering, not
consciously faking insanity in an effort to disrupt the proceedings. Dr. Scharre testified at the request of
defense counsel, although he did not interview or meet Gabrion. The other defense expert, Dr. Jackson,
testified that during his interviews Gabrion appeared to be “deliberately not telling the truth” and “intended
to deceive” in order to create the “impression” of a completely unorganized mind.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 8

Malingering, faking incompetence, trying to deceive the court, pathological lying
and murder are signs of a mental illness that thankfully affects only a small part of the
population; but it is not the same as the mental illness that gives rise to “incompetence
to stand trial.” Incompetence is described as a mental illness causing the defendant to
be “unable to understand the nature and consequences of the proceedings against him
or to assist properly in his defense.” 18 U.S.C. § 4241(a). The District Court must order
a competency hearing only when it has “reasonable cause” to believe the defendant is
incompetent. Id. Given the outcome of all of Gabrion’s previous evaluations and the
persistent finding of his malingering, no such reasonable cause existed. The deliberate
refusal of an actor to assist counsel in order to appear crazy — like playing the role of
an idiot in a play — makes the actor incompetent on the stage but not in a real court of
law. Gabrion retained his memory and sought to create the appearance of idiocy,
imbecility, and loss of memory.

II. Whether Michigan’s Abolition of the Death Penalty
Is a “Mitigating Factor” That the Jury May Consider

Very early in this case, the District Court thought that Michigan’s policy against
the death penalty was an important factor that should be taken into account by the
Department of Justice. The court engaged government counsel in an extended
discussion of the subject, only part of which is quoted below:

MR. VERHEY: . . . They’ve [the capital punishment decision makers in
the Justice Department] told us that they do not factor into their
consideration the fact that a case might come from a state that does not
recognize the death penalty as opposed to a state that does.
THE COURT: Well, I’m not — I don’t want to argue with you, but I
want to pose this question. Shouldn’t it make a difference? The people
of the State of Michigan are ultimately sitting on the jury. The people of
the State of Michigan are ultimately the ones of which this judge and the
prosecution team and the defense team are comprised. Under a system
of federalism, aren’t the state’s public policy considerations of some
significance to the Department of Justice?

The point of view first described by the District Judge in this colloquy at the beginning
of the case (“the people of Michigan are ultimately sitting on the jury”) takes into
Nos. 02-1386/1461/1570 United States v. Gabrion Page 9

account that a large portion of the population is presumably somewhat skeptical about
the death penalty. Michigan’s abolition of the death penalty, adopted by the Michigan
state legislature in 1846,4 presumably reflects the will of the people, and the “jury trial
is meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S. 296,
306 (2004). That is the reason the Sixth Amendment requires that the jury must be
drawn from “the State and district wherein the crime shall have been committed.”
Constitutionally, the question of imposing the death penalty must be localized. It must
be vested in a local jury so that the punishment will reflect the values of the people of
Michigan in order “to maintain a link between contemporary community values and the
penal system.” Gregg v. Georgia, 428 U.S. 153, 181 (1976).

The District Court later ruled that Michigan’s longstanding policy against the
death penalty could not be mentioned or admitted as a mitigating factor, or discussed
with the jury in final argument during the penalty phase of the trial. It could not be
referred to as a reason for sparing Gabrion’s life. Failing to consider the specific
language of the statute allowing “any mitigating factor,” the court reasoned without
further discussion that the Michigan policy did not fit within any of eight mitigating
factors listed in the Federal Death Penalty. This ruling is inconsistent with the language
of the Act requiring the factfinder to consider “any mitigating factor” and “any
information relevant to a mitigating factor.” 18 U.S.C. § 3592(a); id. § 3593(c).

4
In 1963, Michigan included its ban on the death penalty in its state constitution, becoming the
only state to do so. See Mich. Const. art. IV, § 46; Eric A. Tirschwell & Theodore Hertzberg, Politics and
Prosecution: A Historical Perspective on Shifting Federal Standards for Pursuing the Death Penalty in
Non-Death Penalty States, 12 U. Pa. J. Const. L. 57, 70 (2009) (noting that “[o]f over sixty legislative
attempts and four petition drives to revive capital punishment in Michigan, none has proven successful”);
Eugene G. Wanger, Historical Reflections on Michigan’s Abolition of the Death Penalty, 13 T.M. Cooley
L. Rev. 755 (1996).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 10

The Act provides as follows:

§ 3592. Mitigating and aggravating factors to be considered in
determining whether a sentence of death is justified

(a) Mitigating factors. — In determining whether a sentence of
death is to be imposed on a defendant, the finder of fact shall consider
any mitigating factor, including the following:
(1) Impaired capacity. . . .
(2) Duress. . . .
(3) Minor participation. . . .
(4) Equally culpable defendants. . . .
(5) No prior criminal record. . . .
(6) Disturbance. . . .
(7) Victim’s consent. . . .
(8) Other factors. — Other factors in the defendant’s
background, record, or character or any other circumstance of the offense
that mitigate against imposition of the death sentence.
Id. § 3592(a) (emphasis added). Thus, the statute requires (“shall”) consideration of
“any mitigating factor, including” a non-exclusive list of eight factors. The statute then
sets out a large number of aggravators for different capital crimes. It also has an open-
ended aggravator provision similar to the “any mitigating factor” language. See id.
§ 3592 (“The jury, or if there is no jury, the court, may consider whether any other
aggravating factor for which notice has been given exists.”). Like mitigators, the
aggravator list is expandable, and as we shall point out in Section XV the government
expanded the aggravators beyond those listed to include Gabrion’s “future
dangerousness.” Section 3593(c) provides more broad language regarding mitigating
factors: “[I]nformation may be presented as to any matter relevant to the sentence,
including any mitigating or aggravating factors . . . . The defendant may present any
information relevant to a mitigating factor . . . . [T]he defendant . . . shall be given fair
opportunity to present argument . . . as to the appropriateness in the case of imposing a
sentence of death.” Section 3593(d) then requires that “a finding with respect to any
aggravating factor must be unanimous” but “a finding with respect to a mitigating factor
may be made by 1 or more members of the jury.” Based on that rule, one juror could
block the death penalty.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 11

There are no cases so far that have ruled in a federal death case on the question
of permitting evidence or argument concerning a given state jurisdiction’s policy against
the death penalty. There are a few cases, however, that discuss the meaning of the “any
mitigating factor” language in the Act. United States v. Davis, 132 F. Supp. 2d 455, 464
(E.D. La. 2001), has been repeatedly cited both by other District Courts following this
approach and by Gabrion in the instant matter. The proffered mitigating evidence in
Davis was a “residual doubt” argument, defined by the court as “a lingering uncertainty
about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’
and ‘absolute certainty.’ ” Davis, 132 F. Supp. 2d at 456. The court’s opinion contained
the following crucial paragraph:

The most notable aspect of the statute is the introductory statement. The
finder of fact (1) “shall” consider (2) “any mitigating factor, (3) including
the following.” First, the jury “shall” or must consider the mitigating
factors; it is obligatory, not discretionary. Second, the fact finder must
consider “any” mitigating factor. There is no qualification or limitation
other than the factor “mitigate” against a sentence of death. Third,
“[i]ncluding the following” means the subsequent list is not exclusive,
but is instead illustrative. The eight identified factors are examples of
specific factors that, if supported by the evidence, mitigate against the
death penalty. Most significantly for the issue here, subhead (8) which
refers to other factors “in the defendant’s background, record, or
character or any other circumstance of the offense” is a sub category of
“any mitigating factor” rather than being the outer boundaries of what
may be considered as mitigating. What 18 U.S.C.A. § 3592 allows is
substantially broader than what the Supreme Court has declared to be the
minimal requirements under the Constitution. According to the Supreme
Court, the Eighth Amendment demands consideration only for those
mitigating factors that concern the defendant’s “character or record and
any of the circumstances of the offense ...” Lockett v. Ohio, 438 U.S.
586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Under the statute, on
the other hand, the Supreme Court’s constitutional minimum is simply
subhead (8) of a non-exclusive list. The statute demands the fact finder
consider “any mitigating” factor . . . period.

Id. at 464.5

5
The language of Davis has been followed in at least three other death cases: In United States
v. Sampson, 335 F. Supp. 2d 166 (D. Mass. 2004), the proffered mitigating argument was that “it would
not be fair to sentence [the defendant] to death when others who were guilty of equally or more awful
crimes had not been executed.” Id. at 194. The court characterized this argument as a “proportionality”
Nos. 02-1386/1461/1570 United States v. Gabrion Page 12

The question is whether the fact of the location of the body so close to a line that
forbids the death penalty allows counsel to try to convince one or more jurors that
imposing the death penalty in these circumstances would treat life or death in a random
and arbitrary way based on chance. The phrase “any mitigating factor” plainly includes
information about Michigan’s policy against the death penalty and an argument based
on the absence of proportionality in punishment when life or death is made to turn on
chance and the lives of other equally guilty psychopaths are spared. The case was not
brought to serve a special national interest like treason or terrorism different from the
normal state interest in punishing murder. The jury should be given the opportunity to
consider whether one or more of them would choose a life sentence rather than the death
penalty when the same jury considering the same defendant’s proper punishment for the
same crime but prosecuted in Michigan state court could not impose the death penalty.

These arguments are all “mitigating” because they could conceivably make a
juror question “the appropriateness in the case of imposing a sentence of death.”
18 U.S.C. § 3593(c). It is possible that their arguments would not be very appealing to
jurors in this case, but that is not the question. The question is whether counsel should
be foreclosed from even making them.

At the sentencing phase of a death case the question is not a semi-technical
question like a sentencing enhancement issue under the U.S. Sentencing Guidelines. The
death penalty is never a “mandatory minimum.” In such a case each juror must call on
individual judgment drawn from a lifetime of experience and learning and must decide
whether to impose the death penalty or a life sentence. The broad, multi-dimensional
question of the death penalty is also the reason the error in this case cannot be said to be

argument and, adverting to the expansive reading of § 3592(a)’s introductory paragraph from Davis
described above, concluded that this evidence was not barred as a matter of law from introduction. Id. at
194-96. In United States v. Bodkins, No. CRIM.A.4:04CR70083, 2005 WL 1118158 (W.D. Va. May 11,
2005), the District Court allowed as mitigating factors (1) that the defendant, if he received a life sentence
instead of death, would never be released (on the theory that this information would mitigate by
“assuag[ing] the jury’s fear of the defendants’ future dangerousness”) and (2) a residual doubt argument
substantially similar to the one made in Davis, mentioned above. Id. at *8-9. In United States v. Moonda,
No. 1:06 CR 395, 2007 WL 2071924 (N.D. Ohio July 13, 2007), a brief order citing Sampson and Davis,
the court allowed as mitigating evidence the presentation of “information to the jury regarding future
confinement conditions in the Bureau of Prisons,” to rebut the “popular public perception that federal
prisons are like country clubs.” Id. at *1 (internal quotation marks omitted).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 13

“harmless” under the doctrine of “harmless error.” (18 U.S.C. § 3595(c) provides: “The
court of appeals shall not reverse or vacate a sentence of death on account of any error
which can be harmless, including any erroneous special finding of an aggravating factor,
where the Government establishes beyond a reasonable doubt that the error was
harmless.”) We have no way of knowing beyond a reasonable doubt what one or more
jurors would have done after listening to a lawyer arguing for life by effectively using
Michigan’s longstanding policy to buttress the argument, even with respect to a
murderer as vile as Gabrion. Accordingly, we reverse on this issue for a new penalty
phase of the trial.

In response to our decision on this point, our dissenting colleague argues that our
opinion is “an endorsement of jury nullification of federal law.” Unless the death
penalty is mandatory under federal law, which of course it is not, mitigation of capital
punishment by finding that historic practices and cultural inclinations in the local area
outweigh other aggravating factors in the case is not jury nullification. Jury nullification
and jury deliberation which arrives at a verdict of life imprisonment, are not the same.
The latter is based on Socratic debate and choice after considering more complete
information. Normally, deliberation based on more complete information is considered
preferable to less informed decision making. That is the reason for the statutory
insistence on jury consideration of “any mitigating factor” and “any information relevant
to a mitigating factor.” Congress did not want death imposed without full consideration
of the alternative. A juror would not “nullify” any provision of the federal statute if she
voted against the death penalty because she learned that its imposition is only possible
because of the total happenstance of where the victim’s body was found, and would be
inconsistent with other murder cases in Michigan since 1846. In Gregg v. Georgia, 428
U.S. 153, 205 (1976), the Supreme Court recognized that “past practice among juries
faced with similar factual situations” is valuable information in the capital sentencing
process. Our dissenting colleague appears to be the first judge to suggest that allowing
a jury to consider such information is unlawful jury nullification because it may
encourage the jury to consider life imprisonment.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 14

In addition to our colleague’s “jury nullification of federal law” argument, the
dissent also argues that there is a difference of opinion among the circuits on the issue
of whether historic practices in a state fall within the language “any mitigating factor”
or “any information relevant to a mitigating factor.” No circuit has held that such
information is inadmissible in litigation. This circuit-split argument culminates in the
dissent’s argument that “the case most closely analogous to Gabrion’s is United States
v. Higgs, 353 F.3d 281, 289 (4th Cir. 2003).” The dissent’s problem is that the Higgs
case, like the others she cites, does not raise the same question we have here. In Higgs
the Court is clear that the question before it was a constitutional one — what the Eighth
Amendment requires concerning the admissibility of mitigating evidence:

We review de novo Higgs’s claim that the district court violated
the Eighth Amendment by refusing to submit to the jury, as a mitigating
circumstance, that Higgs would not have been eligible for the death
penalty if the murders had occurred within the jurisdiction of the State of
Maryland. Higgs sought to introduce expert testimony that under
Maryland law, the death penalty may only be imposed on the
“triggerman” in cases such as this and to argue that, because the murders
took place in an area where Maryland had an easement over federal
property, he could not have known that he was on federal land when he
committed the murders.

We do not reach any constitutional claim here because the statute itself is clear, and no
party claims that a constitutional argument should be decided first. We find no conflict
with any other circuit on the issue before us under sections 3592(a) and 3593(c).

III. The Failure to Give A Reasonable Doubt Instruction in Weighing
Aggravators and Mitigators

Gabrion argues that the District Court’s penalty phase jury instruction concerning
the manner in which the jury was to weigh the aggravating and mitigating factors
violated his due process rights. Specifically, he argues that the jury should have been
instructed that in order to impose death they need to find “beyond a reasonable doubt”
the element of the death sentence that the aggravating factors outweigh the mitigating
factors. The District Court did not advise the jury that it should apply any particular
measure of persuasion or degree of belief to this ultimate question of fact. This ultimate
Nos. 02-1386/1461/1570 United States v. Gabrion Page 15

question on which life imprisonment or capital punishment turns was left to the jury to
answer intuitively. We believe this was error because a much greater degree of certainty
is required when the life of a person is at stake. We, therefore, hold that a jury’s finding
that the aggravating factors outweigh the mitigating factors is an element of the death
penalty and must be found beyond a reasonable doubt, the same standard constitutionally
required for all other findings of fact and mixed questions of law and fact. On the
general question, see the broad language of United States v. Gaudin, 515 U.S. 506, 510-
12 (1995) (criminal convictions must “rest upon a jury determination that the defendant
is guilty of every element of the crime with which he is charged, beyond a reasonable
doubt,” including issues of “materiality” and “mixed questions of law and fact”).

Under the Federal Death Penalty Act, a death-eligible defendant “shall be
sentenced to death if, after consideration of the factors set forth in section 3592 . . . it is
determined that imposition of a sentence of death is justified.” 18 U.S.C. § 3591. This
determination is committed to the jury, who is tasked with weighing aggravating and
mitigating factors; though the Act styles this determination as a “recommendation,” it
is one that the judge is obliged to follow. 18 U.S.C. § 3594. Section 3593(e) states as
follows to the degree or intensity of belief required by the jury:

[T]he jury . . . shall consider whether all the aggravating factor or factors
found to exist sufficiently outweigh all the mitigating factor or factors
found to exist to justify a sentence of death, or, in the absence of a
mitigating factor, whether the aggravating factor or factors alone are
sufficient to justify a sentence of death. Based upon this 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.

(Emphasis added.) Thus the statute itself leaves up in the air the measure of persuasion
and the jury’s requisite degree of belief on the ultimate element of the offense
concerning the comparison between aggravators and mitigators. In the instant case,
mere “sufficiency” in the mind of a juror is all that the instructions to the jury, which
mirrored the provision quoted above, implied. The instructions were based on the
Nos. 02-1386/1461/1570 United States v. Gabrion Page 16

premise that there was no need for the jury to have in mind any particular degree of
certainty.

We disagree with this premise. The sentencing phase of the case is part of a
criminal proceeding that may result in a verdict of death. As discussed above, the Act
plainly requires as a necessary precondition to a capital defendant’s receiving the
sentence of death that the government prove and the jury find that aggravators outweigh
the mitigators. Normally, in the run-of-the-mill criminal case, the government is charged
with “pro[ving] beyond a reasonable doubt . . . every fact necessary to constitute the
crime” with which a defendant is charged. In re Winship, 397 U.S. 358, 364 (1970).
This requirement insures “the moral force of the criminal law.” Id. It has been “adhered
to by virtually all common-law jurisdictions.” Sullivan v. Louisiana, 508 U.S. 275, 278
(1993). This should be particularly true in death cases. Professor Linda Carter has
outlined the basic reasons for this requirement:

As the Court stated in a case reaffirming the principle that all mitigating
evidence must be considered, regardless whether the jurors were
unanimous in finding a particular mitigating circumstance:
The decision to exercise the power of the State to execute
a defendant is unlike any other decision citizens and
public officials are called upon to make. Evolving
standards of societal decency have imposed a
correspondingly high requirement of reliability on the
determination that death is the appropriate penalty in a
particular case.
The nature of the decision itself, life or death, thus speaks forcefully for
using a heightened standard of beyond a reasonable doubt.

A Beyond a Reasonable Doubt Standard in Death Penalty Proceedings: A Neglected
Element of Fairness, 52 Ohio. L.J. 195, 220 (1991) (quoting Mills v. Maryland, 486 U.S.
367, 383-84 (1988)). See also Note, “Variable Verbalistics, The Measure of Persuasion
in Tennessee,” 11 Vand. L. Rev. 1413 (1958) (jury instructions on measure of persuasion
needed must be clear and understandable).

Likewise, a number of state supreme courts in death penalty cases have
thoroughly analyzed the question of the measure of persuasion and concluded that the
Nos. 02-1386/1461/1570 United States v. Gabrion Page 17

“beyond a reasonable doubt” standard is necessary “to communicate to the jurors the
degree of certainty that they must possess that any mitigating factors do not outweigh
the proven statutory aggravating factors before arriving at the ultimate judgment that
death is the appropriate penalty.” People v. Tenneson, 788 P.2d 786, 792-94 (Col. 1990)
(collecting cases).

Recent trends in federal constitutional law confirm our application of the basic
rule of Winship to the weighing process. The Supreme Court in Ring v. Arizona applied
the reasoning of Apprendi v. New Jersey, 530 U.S. 466 (2000) — which first announced
the recognition that facts increasing a maximum sentence must be proven to a jury
beyond a reasonable doubt, regardless of whether a criminal statute purports to make
those facts sentencing considerations rather than elements of an offense — to the penalty
phase of a capital prosecution, and held that the Sixth Amendment requires that
aggravating factors required for the imposition of a death sentence must be found by a
jury, not a judge. 536 U.S. 584, 609 (2002). The Court in Ring did not have the issue
of weighing before it, id. at 597, n.4, but we think its reasoning is helpful in resolving
this issue. The Government attempts to limit Ring’s import by arguing that the Act’s
requirement that the jury find the presence of aggravating factors beyond a reasonable
doubt is enough to satisfy constitutional requirements. They insist that under the Act a
defendant is “death eligible” once the jury finds the presence of aggravators, and thus
that the outcome of the weighing process, rather than increasing that eligibility, simply
fixes the punishment within the eligible range, and so it is freed from all constitutional
requirement otherwise applicable to jury findings. This is an empty formalism of the
sort the Supreme Court explicitly rejected in Ring. See Ring, 536 U.S. at 602 (“The
dispositive question . . . is one not of form, but of effect.”) (quoting Apprendi, 530 U.S.
at 494). It is plain from the Act that, even after the jury finds the presence of aggravators
beyond a reasonable doubt, more needs to be proven before the defendant may be
sentenced to death: a defendant is not truly “eligible” for the death penalty — that is,
that the death penalty cannot legally be imposed on him — unless and until the jury
Nos. 02-1386/1461/1570 United States v. Gabrion Page 18

makes the determination that the aggravators outweigh the mitigators.6 He is no more
“eligible” for the death penalty before that determination is made than he was when he
was indicted; the range of penalties to which he is exposed does not include the death
penalty until the jury makes that required factual finding of this element of the offense.
“All facts essential to the imposition of the level of punishment that the defendant
receives — whether the statute calls them elements of the offense, sentencing factors,
or Mary Jane — must be found by the jury beyond a reasonable doubt.” Ring, 536 U.S.
at 610 (Scalia, J., joined by Thomas, J., concurring). That requirement surely applies to
the jury’s determination of whether the Government has proven a defendant worthy of
society’s ultimate punishment, in spite of features of his case that may militate in favor
of a life sentence.

The refusal of some of our sister circuits in death cases to impose the ordinary
measure of persuasion applicable to criminal cases on the weighing of aggravators and
mitigators is based on their theory that this weighing does not resolve a question of fact,
but is instead a “process” designed to arrive at a moral, as opposed to factual, judgment.
See United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007) (holding that “the requisite
weighing constitutes a process, not a fact to be found” and that “[t]he outcome of the
weighing process is not an objective truth that is susceptible to (further) proof by either
party”); United States v. Fields, 483 F.3d 313, 346 (5th Cir. 2007) (holding that the
jury’s decision that the aggravating factors outweigh the mitigating factors is “not a
finding of fact” but a “highly subjective, largely moral judgment”) (internal quotation
marks and citations omitted).7 We depart from the reasoning of these cases at two
related points. First, it has never been the case that the constitutional requirement of

6
Indeed, the Act provides that, even where no mitigators are found to exist, the jury must still
make the additional finding of “whether the aggravating factor or factors alone are sufficient to justify a
sentence of death.” 18 U.S.C. § 3593(e).
7
The Fifth Circuit’s reasoning in Fields was adopted wholesale by the Tenth Circuit in United
States v. Fields, 516 F.3d 923, 950 (10th Cir. 2008), a case concerning an unrelated defendant. In addition,
other courts have reached analogous conclusions on this issue, but in cases where the issue has not been
squarely presented as it is before us. See United States v. Mitchell, 502 F.3d 931, 993-94 (9th Cir. 2007)
(refusing a reasonable doubt instruction for weighing under the Act but applying plain error review);
United States v. Purkey, 428 F.3d 738, 749-50 (8th Cir. 2005) (refusing to characterize weighing under
the Act as the determination of a “fact” in the context of a Fifth Amendment indictment clause challenge).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 19

proof beyond a reasonable doubt applies only when the jury is tasked with the
determination of “objective truth[s] . . . susceptible to . . . proof” or “raw facts.” In
United States v. Gaudin, 515 U.S. 506 (1995), the Supreme Court explicitly rejected the
notion of the criminal jury as a “mere factfinder,” and held that the requirement of proof
beyond a reasonable doubt extends to its resolution of mixed questions of law and fact.
Id. at 513-14. As referred to above, the Court in Gaudin held that “the jury’s
constitutional responsibility is not merely to determine the facts, but to apply the law to
those facts and draw the ultimate conclusion of guilt or innocence.” Id. at 514. Surely
that responsibility is all the more acute where the ultimate conclusion is not just guilt or
innocence, but life or death.

Second, these courts misapprehend the nature of jury determinations when they
consider the idea of a “process” to be at odds with the question of ultimate fact that the
process resolves. In both civil and criminal cases at common law, we have long had
many standards that require the jury to weigh factors that lead to an ultimate conclusion
that the law regards as an ultimate finding of fact, even when that “fact” may have legal
or moral, as well as “objective,” aspects. These include: questions of negligence (where
the jury is invited to “weigh[] interests” in evaluating whether a defendant’s conduct
meets that of a “reasonable man,” see Restatement (Second) of Torts § 283 & cmt. e
(1965)), punitive damages (where the jury is invited to weigh factors such as the
character and intent of the defendant’s act, the extent of the harm, and the wealth of the
defendant in making the basically moral determination of whether his conduct was
“outrageous,” see id. § 908), insanity (where the jury is asked whether a defendant could
appreciate the moral wrongfulness of his conduct at the time of his alleged offense, see
Model Penal Code § 4.01 (1962)), tortious interference with contract (where the jury is
tasked with weighing factors such as the defendant’s intent in determining whether an
alleged interference is “improper,” see Restatement (Second) of Torts § 766, 8c cmt. j
(1979)), and many other mixed issues of law and fact in tort and criminal law. That
these various weighing determinations involve a process in which the jury weighs factors
does not mean that they do not result in the finding of a fact. These determinations
require varying degrees of certitude, i.e., burdens of proof, depending on the policy or
Nos. 02-1386/1461/1570 United States v. Gabrion Page 20

attitude of the law in balancing the culpability of the defendants versus the nature of the
punishment. But our society has decided on only one degree of certitude appropriate in
criminal cases: beyond a reasonable doubt. Weighing aggravators versus mitigators in
death cases is just one of many — as well as the most drastic — of the “processes” that
lead to an ultimate finding of fact.

Finally, the Act’s harmless-error provision notwithstanding, the law is clear that
a court’s error in refusing to deliver a reasonable doubt instruction to a jury in a criminal
case is a structural error not susceptible to harmless error analysis. See Sullivan v.
Louisiana, 508 U.S. 275, 281 (1993) (refusing to apply harmless error analysis where
trial court erred in describing burden of proof in a criminal case, reasoning that “a
misdescription of the burden of proof . . . vitiates all the jury’s findings”). Accordingly,
our determination that Gabrion was entitled to a reasonable doubt instruction as to the
weighing of aggravating and mitigating factors requires the reversal of his death
sentence.

IV. The Failure of the Indictment to Allege Statutory Aggravating Factors

Gabrion argues that his indictment was fatally deficient under the Fifth
Amendment because it did not allege any of the statutory aggravating factors that were
legally necessary to render him eligible for the death penalty.8 But one year before the
trial, the government advised Gabrion of all the aggravating factors it would prove in a
notice that it would seek the death penalty. Assuming for the sake of argument that the
Fifth Amendment requires indictments under the Federal Death Penalty Act to allege

8
Gabrion also argues in passing that the indictment was constitutionally deficient because it did
not allege any of the mens rea factors based on intentionality enumerated in § 3591(a)(2) of the Federal
Death Penalty Act. Gabrion is correct that the indictment must include one of these mens rea factors
because they are necessary under the Act to impose a sentence of death. See 18 U.S.C. § 3591(a)(2);
United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005) (en banc) (holding that the Fifth Amendment
requires the indictment in prosecutions under the Act to include a mens rea factor). Gabrion is mistaken,
however, that his indictment omitted a mens rea factor. Both the original and superceding indictment
charged Gabrion of “willfully” killing Rachel Timmerman; this is equivalent to the Act’s mens rea
requirement that the defendant “intentionally kill[] the victim,” 18 U.S.C. § 3591(a)(2)(A).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 21

statutory aggravating factors,9 we nonetheless find that error to be harmless here. “The
court of appeals shall not reverse or vacate a sentence of death on account of any error
which can be harmless, including any erroneous special finding of an aggravating factor,
where the Government establishes beyond a reasonable doubt that the error was
harmless.” 18 U.S.C. § 3595(c)(2)(C). Gabrion has not set out how he was harmed by
the absence of statutory aggravating factors in the indictment. Nor does he tell us how
stating the aggravating factors in the indictment is a per se requirement not subject to the
Act’s harmless-error provision.

To determine whether the absence was harmless error, we look to the two
primary functions of the indictment: (1) to provide notice of the crime, allowing the
defendant to prepare a defense; and (2) to bring the public through a grand jury into the
charging decision. See United States v. Robinson, 367 F.3d 278, 287 (5th Cir. 2004)
(citing Russell v. United States, 369 U.S. 749, 763-64 (1967), and Stirone v. United
States, 361 U.S. 212, 218 (1967)). As to the first function, Gabrion had notice of the
aggravating factors one year in advance of trial—more than sufficient time to prepare
a defense. As to the second function, no rational grand jury could fail to find that the
prosecution lacked probable cause on any of the aggravating factors, because the
evidence of probable cause on those factors was strong. See Robinson, 367 F.3d at 298.
Moreover, the fact that Gabrion’s sentencing jury later unanimously found all of the
aggravating factors is, “at a minimum, persuasive evidence of how a grand jury would
find.” Id. at 288–89. Any error was, therefore, harmless.

We can summarize the situation here no better than Blackstone, who said the
following regarding why courts should not reverse otherwise-proper convictions simply
because the prosecution proceeded by information rather than by indictment: “The same
notice was given, the same process was issued, the same pleas were allowed, the same

9
Neither the Supreme Court nor this circuit has addressed this precise question, but we note that
each of our sister circuits that has confronted this issue has held, on reasoning that is substantially similar
by each, that the Fifth Amendment does require the indictment to allege at least one statutory aggravating
factor. See, e.g., United States v. Brown, 441 F.3d 1330, 1367 (11th Cir. 2006); United States v. Allen, 406
F.3d 940, 943–44 (8th Cir. 2005) (en banc); United States v. Robinson, 367 F.3d 278, 284 (5th Cir. 2004);
United States v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003); United States v. Quinones, 313 F.3d 49, 53 (2d
Cir. 2002).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 22

trial by jury was had, the same judgment was given by the same judges, as if the
prosecution had originally been by indictment.” 4 William Blackstone, Commentaries
*305 (cited in Hurtado v. California, 110 U.S. 516, 538 (1884) (holding that the
Indictment Clause of the Fifth Amendment is not incorporated against the states via the
Due Process Clause)). The same, too, with Gabrion.

V. Proof of Subject Matter Jurisdiction

First, Gabrion raises a federal subject matter jurisdiction argument based upon
and combined with a factual argument that the evidence was insufficient to prove that
Gabrion murdered Timmerman at a location at Oxford Lake owned by the federal
government. He also raises a second argument that the “patchworked” character of
federal ownership of parcels in the Manistee National Forest renders any murder
conviction or finding of jurisdiction there a violation of due process, equal protection,
and the Eighth Amendment. Judge Moore has addressed these same federal criminal
jurisdiction arguments in her previous, separate opinion on subject matter jurisdiction
in United States v. Gabrion, 517 F.3d 839, 866-76 (6th Cir. 2008) (Judges Batchelder
and Moore found general, federal criminal subject matter jurisdiction in national forests,
and Judge Merritt dissented on a separate ground that 16 U.S.C. § 480 does not
criminalize murder in the national forests). Given the current posture of the case and
given our previously separately stated views on subject matter jurisdiction, all members
of the panel join Judge Moore’s opinion, cited above, in parts III, IV and V, which
addresses these issues.

VI. Gabrion’s Request to Proceed Without Counsel

In Faretta v. California, the Supreme Court observed that the Sixth Amendment
creates a right to self-representation. 422 U.S. 806, 818–32 (1975). However, the right
to self-representation “is not absolute.” Martinez v. Court of Appeal of Cal., 528 U.S.
152, 161 (2000) (holding that defendants have no right to self-representation on appeal).
“Even at the trial level . . . the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own
Nos. 02-1386/1461/1570 United States v. Gabrion Page 23

lawyer.” Id. at 162. In Faretta itself, the Court noted that “[t]he right of
self-representation is not a license to abuse the dignity of the courtroom. Neither is it
a license not to comply with relevant rules of procedural and substantive law.” 422 U.S.
at 834 n.46. For this reason, “the trial judge may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist misconduct.” Id.; cf.
Illinois v. Allen, 397 U.S. 337, 342–43 (1970) (holding that a defendant can forfeit his
Sixth Amendment right to be present in trial if he insists on being “so disorderly,
disruptive, and disrespectful of the court that his trial cannot be carried on with him in
the courtroom”).

In Section I above, we set out Gabrion’s attempts to disrupt the trial. His attempt
to represent himself was part of that effort. Gabrion unequivocally asserted his right to
self-representation in a motion filed with the District Court in October 2001. In that
motion, he called his appointed counsel “evil,” “corrupt,” and “liars,” and he accused
them of stealing $1800 from him. Only two months earlier, during a hearing on whether
Gabrion should undergo a competency evaluation, Gabrion interrupted the proceedings
and was ejected from the courtroom immediately after the following exchange:

DEFENDANT GABRION: Sir, the victim’s family and the public
deserve to know the truth from me.
THE COURT: Sir, I haven’t addressed you yet. You’ll be quiet if you
would, please.
[To the government:] You may proceed.
[THE GOVERNMENT:] Thank you.
DEFENDANT GABRION: [My appointed counsel] has destroyed
evidence that Charles Cass murdered Rachel Timmerman.
THE COURT: Sir, sir, either you’re quiet today or you go upstairs and
sit in the cell. The choice is yours.
DEFENDANT GABRION: My choice is to fire [my appointed counsel]
for being satanic and destroying evidence that Charles Cass murdered
Rachel Timmerman.
THE COURT: One more question, one more outburst –
DEFENDANT GABRION: I have no possibility of getting a fair judge –
THE COURT: Take him upstairs.
DEFENDANT GABRION: – where the judge had sex with a 14-year-
old girl last week and got another 13-year-old pregnant that I know of
that I can take these people to right now. I got zero possibility. You’re
Nos. 02-1386/1461/1570 United States v. Gabrion Page 24

nothing but an evil Hitler. Shit. And why don’t you tell the FBI to go
arrest that perverted bastard.

The District Court denied Gabrion’s motion to proceed pro se in a four-page opinion.
The opinion asserted that Gabrion’s “disruptive behavior in this Court, his abusive and
obscene language in motions and letters, and his failure to heed the advice of counsel on
commonsense issues concerning his pretrial behavior, convince this Court that [Gabrion]
will not be willing or able to follow the ‘ground rules’ of trial procedure.” One month
later, Gabrion filed a motion for reconsideration, in which he apologized and promised
to conform his conduct to the rules of the courtroom. Later that same day, however, at
a hearing on a motion to suppress, Gabrion consistently interrupted the proceedings.
The District Court denied that motion and indicated its “grave doubts regarding
[Gabrion’s] ability to conform himself” to minimum standards of courtroom behavior.

Given the totality of Gabrion’s disruptive behavior, the District Court did not err
in precluding Gabrion from representing himself. Gabrion’s behavior not only fell
below the accepted minimum for courtrooms; it was of such a character that would be
unacceptable in any corner of a civil society. The District Court had every reason to
believe this conduct would continue — and on a more prominent stage — if Gabrion
were given the opportunity to represent himself. Considering how Gabrion interrupted
courtroom proceedings several times only hours after promising to conform, the District
Court was entitled to view that promise as empty and simply more manipulative rhetoric.

It may be a better practice for trial courts to give the benefit of the doubt to
misbehaving defendants who invoke their right to self-representation and then revoke
that right if they disrupt the case. But the District Court did not need to do so with
Gabrion.10 At the time he moved to represent himself, he had been persistently
disruptive and deeply disrespectful in court. He had filed numerous bizarre motions and
letters. He had committed forty major infractions while incarcerated at Calhoun County

10
The Supreme Court’s recent opinion in Indiana v. Edwards, 554 U.S. 164, 177-78 (2008),
provides trial courts with another potential option for dealing with psychopathic defendants like Gabrion
who assert a desire to represent themselves. In that case, the Court held that a defendant may meet the
standard to be competent to stand trial with the assistance of counsel yet be incompetent to represent
himself. Id.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 25

Jail. Given his unbroken pattern of misconduct both inside and outside of the courtroom,
the only possible inference was that his serious misbehavior would continue if he
represented himself. Under such circumstances, we do not require the District Court to
undertake the empty and time-consuming formality of granting his right to self-
representation only to revoke it days later. To do so would be to facilitate the same type
of disruptive and abusive conduct the Court condemned in Faretta. Accordingly, the
District Court properly denied Gabrion’s motion to proceed pro se.

VII. Whether Gabrion’s Physical Assault of his Counsel in Court Required the
Withdrawal of his Trial Counsel or a Mistrial

Gabrion argues that the District Court should have granted his trial counsel’s
motion to withdraw and motion for a mistrial after Gabrion physically assaulted one of
his attorneys, David Stebbins, in front of the jury. The attack occurred during the first
day of the penalty proceedings. Shortly after Gabrion punched Stebbins in the head,
Stebbins made oral motions for a mistrial and to withdraw as counsel. The District
Court denied the motions. Stebbins later renewed those motions, and this time Paul
Mitchell, Gabrion’s other trial counsel, also sought to withdraw. The District Court
again denied the motions, reasoning that there was no good cause for withdrawal, that
Gabrion was trying to manipulate the proceedings, that Stebbins and Mitchell were
conscientious and diligent, and that the same problems would almost certainly occur in
a new trial. For the reasons below, we find that the District Court did not abuse its
discretion in denying both motions.

A. The Motion to Withdraw as Gabrion’s Trial Counsel

“When reviewing a District Court’s denial of a motion to withdraw or substitute
counsel, we generally must consider: (1) the timeliness of the motion, (2) the adequacy
of the court’s inquiry into the matter, (3) the extent of the conflict between the attorney
and client and whether it was so great that it resulted in a total lack of communication
preventing an adequate defense, and (4) the balancing of these factors with the public’s
interest in the prompt and efficient administration of justice.” United States v. Mack,
Nos. 02-1386/1461/1570 United States v. Gabrion Page 26

258 F.3d 548, 556 (6th Cir. 2001). “We review the district court’s denial for abuse of
discretion.” Id. at 555–56.

The District Court adequately considered the matter in its written opinion.
Although it is undeniable that a conflict existed between Gabrion and his trial counsel
after the physical assault, that conflict did not cause a total lack of communication: the
District Court found in its opinion that Gabrion communicated with his counsel after the
assault. (J.A. 560.) The fourth factor from the Mack case is perhaps the most
persuasive. If the District Court had granted the motion to withdraw, it would have had
two conceivable options: appoint substitute counsel for Gabrion, or hold that Gabrion
forfeited his right to counsel and had to represent himself for the remainder of the
proceedings.11 The former option would have delayed the sentencing phase for months
as substitute counsel caught up to speed, thereby significantly detracting from the
prompt and efficient administration of justice. The latter option would have undermined
the public interest by permitting a psychopathic defendant to manipulate the proceedings
so that he would represent himself, rather than be represented by trained and
conscientious counsel. Among the conceivable options presented by Gabrion’s conduct,
we believe the District Court chose the correct one. Accordingly, we hold that the
District Court did not abuse its discretion by denying counsel’s motion to withdraw.

B. The Motion for a Mistrial

“A defendant may move for a mistrial where there is a legitimate claim of
seriously prejudicial error such that the defendant is unable to obtain a fair trial.” United
States v. Phibbs, 999 F.2d 1053, 1066 (6th Cir. 1993) (internal quotation marks omitted).
“The denial of a mistrial is generally within the discretion of the trial court, and our
review of the court’s ruling is confined to whether the trial court abused its discretion.”
Id. (internal quotation marks omitted).

11
Although neither the Supreme Court nor the Sixth Circuit has directly held that an indigent
defendant can forfeit his right to counsel by his extremely serious misconduct, at least two other circuits
have so held, e.g., United States v. Leggett, 162 F.3d 237, 250-51 (3d Cir. 1998); United States v. McLeod,
53 F.3d 322, 325 (11th Cir. 1995). We express no opinion here as to whether the right to counsel may ever
be forfeited by misconduct, and if so, whether Gabrion would have forfeited it in this particular case.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 27

Other circuits have refused to permit mistrials when the prejudicial event was a
defendant’s own unprovoked outburst in court. E.g., United States v. Harris, 2 F.3d
1452, 1456 (7th Cir. 1993); United States v. West, 877 F.2d 281, 288 (4th Cir. 1989);
United States v. Aviles, 274 F.2d 179, 193 (2d Cir. 1960). As these cases recognize,
“[t]o allow a defendant by his own misconduct to terminate his trial even temporarily
would be to allow him to profit from his own wrong.” Harris, 2 F.3d at 1456. Such a
precedent also could have negative effects on future trials: “it would provide an easy
device for defendants to provoke mistrials whenever they might choose to do so.”
Aviles, 274 F.2d at 193; accord West, 877 F.2d at 288 (reasoning that permitting
mistrials in this situation would “encourage future misconduct by defendants”).

To grant a mistrial would be to allow a manipulative defendant like Gabrion to
delay his own sentencing through dangerous misconduct. It would also set a bad
precedent that could be abused by future manipulative defendants. Moreover, the actual
prejudice to Gabrion from the jury witnessing this assault may have been less than one
would expect, as the assault was consistent with defense counsel’s mitigation strategy
of presenting Gabrion as the victim of a mental disease. We therefore hold that the
District Court did not abuse its discretion by denying Gabrion’s motion for a mistrial.

VIII. Whether the In Camera Conferences between the District Judge
and Gabrion’s Defense Counsel Outside of Gabrion’s Presence
Violated Gabrion’s Rights

Gabrion argues on appeal that the District Court committed reversible error by
conducting five in camera conferences outside of his presence over the course of the
trial. The only people present at these conferences were the district judge, Gabrion’s
defense counsel, a court reporter, and sometimes a law clerk. All of the five conferences
occurred on the record. All but the first conference lasted ten minutes or less, and the
first conference lasted just less than twenty minutes. At the time of trial, Gabrion was
not aware of any of these conferences. Gabrion argues that these conferences violated
his constitutional right to due process and his right to be present for every stage of trial
under Federal Rule of Criminal Procedure 43.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 28

A little background on the conferences is helpful. Three of them dealt with
ethical problems stemming from Gabrion’s desire to testify. At the first conference,
defense counsel discussed with the district judge how best to balance Gabrion’s right to
testify in his defense during the guilt phase of the trial with defense counsel’s fear of
being accused of suborning perjury. Defense counsel explained that Gabrion insisted
on testifying, but defense counsel believed that Gabrion would lie on the stand. The
district judge proposed that Gabrion either could submit questions to his counsel in
advance or could testify in narrative form pursuant to specific choreographing. After the
conference, the district judge met with Gabrion on the record and admonished him that,
although he had a right to testify, his testimony must be truthful and would likely create
serious strategic risks arising from cross-examination. Gabrion testified regardless. At
the second conference, defense counsel and the district judge reflected briefly on
whether they had properly balanced Gabrion’s right to testify with defense counsel’s
ethical duties. The fifth conference also involved Gabrion’s desire to testify, but this
time at the penalty phase of the trial.

The other two conferences dealt with Gabrion’s disruptive courtroom behavior
and the legal question of the extent to which Gabrion had a right to control trial strategy.
One occurred the morning after Gabrion punched defense counsel Stebbins, at the
beginning of the penalty phase of the trial. The district judge had ordered that Gabrion
must either view the proceedings remotely or be shackled, wear a stun belt, and sit
between two U.S. Marshals. Gabrion’s defense counsel agreed that this degree of
restraint was appropriate, but they told the district judge that they had advised Gabrion
to stay out of court, so that the jury would not see him in restraints. The other
conference occurred later in the penalty-phase proceedings. Gabrion had insisted to his
trial counsel that they cross-examine the government’s victim-impact witnesses to
accuse those witnesses of murdering Rachel Timmerman. Gabrion’s trial counsel wisely
believed that accusing the victim’s family of being her true killers, after the same jury
had already adjudicated Gabrion guilty of her murder, would be terrible strategy, but
they sought confirmation from the district judge that they could choose not to follow
Gabrion’s strategic wishes. At this conference, the district judge agreed. Then, both the
Nos. 02-1386/1461/1570 United States v. Gabrion Page 29

district judge and defense counsel discussed the challenge of balancing Gabrion’s right
to be present in the courtroom with the risk that his serially disruptive behavior would
require repeatedly ejecting him in front of the jury and would subject him to great
prejudice. The district judge concluded the conference by emphasizing “how diligently
[defense counsel] are working . . . . and are representing him as well as they can under
the circumstances.”

A. The Due Process Right to Presence at Proceedings

“[A] defendant has a due process right to be present at a proceeding ‘whenever
his presence has a relation, reasonably substantial, to the fulness of his opportunity to
defend against the charge . . . . [T]he presence of a defendant is a condition of due
process to the extent that a fair and just hearing would be thwarted by his absence, and
to that extent only.’” United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting
Snyder v. Massachusetts, 291 U.S. 97 (1934)). The exclusion of a defendant “should be
considered in light of the whole record.” Id. at 527. In Gagnon, the Supreme Court held
that the four defendants did not have a due process right to be present at an in camera
discussion between the trial judge, a defense counsel, and a juror regarding that juror’s
concerns that one of the defendants was drawing sketches of the jury members. Id. The
Court emphasized that the defendants “could have done nothing had they been at the
conference, nor would they have gained anything by attending.” Id. It was merely “a
short interlude in a complex trial.” Id.

Even though Gabrion was absent from five brief conferences, rather than just
one, we believe that his right to due process was not denied. His absence from the
conferences did not have a reasonably substantial relation to his opportunity to defend
himself. As his only argument that these conferences prejudiced him, Gabrion contends
that his testimony was “devastating” for his case, and that he might have decided not to
testify had he observed at the conferences the strong opinions voiced by both his defense
counsel and the district judge that he should not testify. But Gabrion’s defense counsel
stated on the record that they had already thoroughly warned him of these dangers. And
the district judge also warned Gabrion on the record immediately after the first
Nos. 02-1386/1461/1570 United States v. Gabrion Page 30

conference and before Gabrion testified during the guilt phase. Both Gabrion’s defense
counsel and the district judge separately warned him of the risks of testifying, yet he
testified regardless. It is exceedingly doubtful that Gabrion would not have testified had
he observed his defense counsel and the district judge discuss this matter together.
Moreover, Gabrion acknowledges on appeal that he “did not trust his counsel,” and he
does not attempt to explain why further warnings from people he did not trust would
have dissuaded him from testifying. Like the defendants in Gagnon, Gabrion would not
have gained anything by attending these conferences.

In addition, Gabrion’s absence from the conferences did not thwart a fair and just
hearing; on the contrary, the conferences demonstrated the admirable efforts of defense
counsel and the district judge to protect Gabrion’s rights and to facilitate a fair hearing
for Gabrion despite his disruptive antics. Gabrion argues on appeal that these
conferences “kept him in the dark about his own defense” and that his defense counsel
were “disloyal.” Quite the opposite. During the conferences, the district judge and
defense counsel consistently emphasized the importance of Gabrion’s right to testify and
his right to be present in the courtroom, but they had to carefully balance those rights
against the likelihood that Gabrion would commit perjury and the prejudice he would
cause himself by remaining in front of the jury. They chose to perform this balancing
on the record. They walked an ethical tightrope—created by Gabrion’s willingness to
lie on the stand and his disruptive behavior in court—while still seeking to protect his
rights and minimize harm to his case. Rather than being disloyal, defense counsel
showed great dedication to Gabrion, even after he punched one of them in the face.
Gabrion received a fair and just hearing regardless of his preclusion from the
conferences. Accordingly, his right to due process was not denied.

B. The Right to Presence at Trial under Federal Rule of Criminal Procedure 43

Subject to several exceptions, Federal Rule of Criminal Procedure 43 provides
that “the defendant must be present at . . . every trial stage.” Fed. R. Crim. Pro. 43(a)(2).
Although Rule 43 stems from the Constitution, it “includes common-law rights and is
broader than the protection provided in the Fifth and Sixth Amendments.” United States
Nos. 02-1386/1461/1570 United States v. Gabrion Page 31

v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999). In camera conferences are a stage of the
trial within the meaning of Rule 43. United States v. Brown, 571 F.2d 980, 986 (6th Cir.
1978) (citing United States v. Gay, 522 F.2d 429, 435 (6th Cir. 1975)). However,
harmless error analysis applies to violations of Rule 43, so reversal is required only if
the defendant was prejudiced by the error. Brown, 571 F.2d at 987.

Even assuming that Gabrion had a right to attend the conferences under Rule 43,
in spite of the likelihood of disruptive conduct and his attacks on his lawyer, he was not
prejudiced by his absence. As discussed more thoroughly above, Gabrion cannot
credibly argue that he would not have testified had he attended the conferences. He has
no other claims of prejudice, so he would not have gained anything by attending the
conferences. Any violation of Rule 43 from Gabrion’s absence from the in camera
conferences was therefore harmless error. Accordingly, we will not reverse the District
Court on this claim.

IX. The District Court’s Decision Not to Disclose a Report Suggesting That a
Government Witness May Have Been Biased Against Gabrion

Gabrion argues that the District Court erred by not disclosing to defense counsel
a report by the Department of Justice’s Office of Professional Responsibility. The report
concluded that Chrystal Roach, a Michigan county prosecutor who temporarily served
as a Special Assistant U.S. Attorney for pre-trial proceedings against Gabrion, violated
federal regulations by making improper public comments about Gabrion’s case several
weeks after the initial indictment. The report suggested that Roach may have had a
vendetta against Gabrion; Roach lost her federal appointment due to her public
statements. The prosecution called her as a witness during the guilt phase of the trial
over two years later. She testified briefly on peripheral issues. The government
submitted the report to the District Court, which decided not to disclose it to defense
counsel.

Gabrion argues that this report would have been effective impeachment material
and that he therefore was entitled to receive it under Brady v. Maryland, 373 U.S. 83
(1963). He also argues that the District Court’s decision not to disclose the report
Nos. 02-1386/1461/1570 United States v. Gabrion Page 32

violated his right under the Confrontation Clause to demonstrate the bias of a
government witness. He requests a new trial. For the reasons below, we find that both
arguments lack merit.

A. Whether the Ethical Report Was Brady Material Requiring Reversal

Pursuant to Brady, the government must give to a defendant evidence in its
possession that is both favorable to the defendant and material to his guilt or punishment.
Schledwitz v. United States, 169 F.3d 1003, 1011 (6th Cir. 1999). “[I]t is well-settled
that this disclosure obligation includes evidence that could be used to impeach the
credibility of a witness.” Id. (citing Giglio v. United States, 405 U.S. 150, 154–55
(1972)). However, a defendant is entitled to a new trial for recently discovered Brady
evidence only when the evidence is material. Id. Materiality requires “a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. at 1012 (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)). A reasonable probability does not mean a mathematical
probability of 51 percent or more; rather, it is simply “a probability sufficient to
undermine confidence in the outcome,” id. “Because materiality under Brady presents
a mixed question of law and fact, our standard of review is de novo.” United States v.
Phillip, 948 F.2d 241, 250 (6th Cir. 1991) (internal citations omitted).

Although the report may have been helpful to impeach Roach and therefore was
exculpatory and should have been disclosed, we confidently believe that its absence did
not affect the result of the guilt phase of the trial. The evidence that Gabrion had
murdered Rachel Timmerman was simply overwhelming. Three witnesses testified that
Gabrion had made statements to them incriminating himself in her murder. Others
testified that they saw Gabrion near Oxford Lake shortly before her body was found
there. Several expert witnesses testified that materials found on her corpse matched
materials from Gabrion’s home. Significantly, none of these witnesses was Chrystal
Roach. Roach testified only as to peripheral and uncontested facts: the progress of
Gabrion’s rape trial in state court, and a letter the district attorney’s office received,
purportedly from Rachel Timmerman, retracting her rape allegations. Roach’s testimony
Nos. 02-1386/1461/1570 United States v. Gabrion Page 33

was far from critical in establishing Gabrion’s guilt. Cf. Schledwitz, 169 F.3d at
1016–17 (vacating defendant’s conviction where the withheld impeachment information
involved a “key” witness). There is almost no chance that the result of the guilt-phase
proceedings would have been different had Gabrion received the report. Accordingly,
the report was not material, and Gabrion is not entitled to a new trial on these grounds.

B. Whether Gabrion’s Confrontation Clause Right to the Opportunity for Cross-
Examination Was Denied

Gabrion similarly argues that the District Court denied him his constitutional
right to cross-examine Roach with the Department of Justice report. The Sixth
Amendment right to confrontation secures for defendants the ability to impeach
prosecution witnesses for bias. Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986).
In Van Arsdall, the Supreme Court held that the defendant’s right to confrontation was
violated when the trial court “prohibited all inquiry” into the possibility that a witness
was biased. Id. But it also held that the denial of this right is subject to harmless error
analysis. Id. at 684. Whether the error is harmless beyond a reasonable doubt depends
on the following factors: “the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Id.

We first note that it is not at all obvious that Gabrion’s constitutional right to
impeach Chrystal Roach for her bias was denied. Although the District Court chose not
to disclose the Department of Justice report to Gabrion, Gabrion does not allege that the
District Court prevented him from using other materials—including her public
statements that gave rise to the report—to impeach Roach for her bias. His case is thus
unlike Van Arsdall, where the trial court completely shut down any inquiry into bias.
In any event, we need not decide whether his right to cross-examination was denied,
because any such denial would plainly constitute harmless error. As discussed above,
the prosecution’s case against Gabrion at the guilt phase of the trial was overwhelming,
Nos. 02-1386/1461/1570 United States v. Gabrion Page 34

and Roach’s testimony pertained to peripheral matters and uncontroverted facts. We
therefore hold that Gabrion is not entitled to a new trial on these grounds.

X. The Removal of a Juror Who Was Allegedly Sleeping

Under Federal Rules of Criminal Procedure 24(c), a trial court may, in the
exercise of its sound discretion, substitute an alternate juror for a regular juror who has
become unable or disqualified to perform his duties. The trial court’s exercise of its
discretion in this regard is not to be disturbed absent a showing of bias or prejudice to
the defendant. According to Rule 24(c), the trial court is authorized “to replace jurors
who, prior to the time the jury retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties.” Under what circumstances and on what
grounds is the trial judge justified in taking such action? The Third Circuit answered this
question in the following manner:

[T]he trial judge, in his sound discretion, may remove a juror and replace
him with an alternate juror whenever facts are presented which convince
the trial judge that the juror’s ability to perform his duty as a juror is
impaired.

United States v. Cameron, 464 F.2d 333, 335 (3rd Cir. 1972). We agree with this
analysis and hold that the trial court’s exercise of this discretion is not to be disturbed
absent a showing of bias or prejudice to the defendant. See, e.g., United States v.
Domenech, 476 F.2d 1229, 1232 (2nd Cir. 1973); United States v. Maxwell, 383 F.2d
437, 443 (2nd Cir. 1967).

In the instant case, the government requested on two occasions that a juror be
removed for nodding off during the trial. Defense counsel did not think she was sleeping
and did not want her removed. The judge agreed that he saw that her eyes had been
closed, but said she would not be removed and replaced at that time. However, he
explained to the attorneys that if he excused her at all he would do it privately so as not
to embarrass her. The government attorney agreed verbally on the record to this plan
and defense counsel did not say anything further at that time about the issue. Tr. at
1606-07.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 35

At the conclusion of the evidence and after the judge had instructed the jury, the
judge told the jury that four of them were alternates and that he would be excusing the
four from deliberations. He then read off four numbers, including Number 84, the
allegedly sleeping juror. As soon as the jury left the room to begin deliberations, defense
counsel told the judge that he had not read the correct numbers in excusing the four
jurors. The judge responded “Yes, I took out No.84. She was the one who . . . had been
snoozing. She was allegedly snoozing. I found she was. She continued, and today I
found her again glassy-eyed and inattentive. So I’m pulling her off as a person. The
other three . . . were definitely alternates. So I pulled her off and I put No. 112 who was
an alternate in her spot. Okay?” Defense counsel responded, “Okay,” and proceeded
to ask the judge who would be the next alternate seated if another juror needed to drop
out. Tr. at 1769-1770.

While the record does not reflect that the judge made a clear finding that juror
No. 84 had been sleeping before removing her, he alerted the attorneys to what he
planned to do if he needed to remove her and he carried out this plan. Defense counsel
had an opportunity to object when told of the proposed plan and then again after juror
No. 84 was actually replaced. He did not, so we review for plain error.

Our review is limited to considering whether there was a deprivation of
Gabrion’s Fifth Amendment due process rights or his Sixth Amendment right to an
impartial jury. Gabrion has failed to demonstrate that the court’s action in removing a
juror and denying the request for a new trial deprived him of his right to an impartial jury
and, more generally, to a fair trial.

XI. Admission of Videotaped Testimony of Coleman and Westcomb

Gabrion contends that his right to confront witnesses against him was violated
because two government witnesses, Kathryn Westcomb and Linda Coleman, testified by
videotaped deposition at trial. Coleman testified that she saw Gabrion at Oxford Lake
in June 1987 in an older model blue pickup truck with a boat in the back. He was
accompanied by two men and a heavy-set girl with sandy blonde hair, which Coleman,
over objection by defense, identified as looking like a photo of Rachel Timmerman. On
Nos. 02-1386/1461/1570 United States v. Gabrion Page 36

cross-examination, Coleman stated that she did not call the police after seeing Gabrion’s
photo as a suspect, and she conceded that she refused to testify before the grand jury.
Westcomb testified that in the Spring of 1997, her son Lloyd, who suffers from
schizophrenia, told her about a conversation he allegedly had with Gabrion in which
Gabrion told Lloyd that he had gotten rid of his girlfriend permanently in a bottomless
lake with chains and cement blocks. She stated on cross-examination that she did not
tell the police about this conversation with her son until three months after Rachel
Timmerman’s body was found.

Under the Confrontation Clause of the United States Constitution, testimonial,
out-of-court statements offered against accused to establish the truth of matter asserted
may be admitted only where (1) the declarant is unavailable and (2) where the defendant
has had prior opportunity to cross-examine the declarant. Crawford v. Washington, 541
U.S. 36, 68 (2004). Here, Gabrion was present with counsel at both depositions and his
counsel extensively cross-examined both witnesses. His argument hinges on the
“unavailability” prong of the Sixth Amendment. We review the admission of deposition
testimony at trial in place of a live witness for abuse of discretion. United States v.
Campbell, 845 F.2d 1374, 1377 (6th Cir. 1988).

When the question is one of the health of the witness, there must be “the requisite
finding of necessity” which is “case specific” in order to dispense with confrontation in
open court. Maryland v. Craig, 497 U.S. 836, 855 (1990). When the government is
claiming witness unavailability due to illness, the specific inquiry must focus on both the
severity and duration of the illness. The court must inquire as to the specific symptoms
of the illness to determine whether the witness is physically able to come to the
courthouse and testify, and the court must determine whether there is the probability that
the illness will last long enough “so that, with proper regard to the importance of the
testimony, the trial cannot be postponed.” Burns v. Clusen, 798 F.2d 931, 937-38 (7th
Cir. 1986).

Here, counsel for the government read a letter into the trial record from the
doctor for both Ms. Coleman and Ms. Westcomb in which he explained that both women
Nos. 02-1386/1461/1570 United States v. Gabrion Page 37

suffer from “advanced chronic lung disease” and “unstable heart disease.” Tr. at 1130.
The letter went on to say, “It is my professional opinion [that] neither of these women
could tolerate cross-examination in open court without seriously jeopardizing their
health and safety. It would not be a surprise to me if they were put into an unusual [sic]
stressful circumstance for them to either have a heart attack or simply stop breathing.
It is therefor my strong opinion that they not be forced to testify in open court . . . .” Id.
Ms. Westcomb was wheeled into her deposition on a gurney and Ms. Coleman had an
oxygen tank available for her use during the deposition. Tr. at 1134.

The government made a sufficient showing regarding the unavailability of both
women through its in-court representations and correspondence from their physician.
The doctor’s letter was specific as to the nature of each woman’s illness and very clear
in his opinion that the women’s health would be jeopardized if they were forced to
testify at the trial. Gabrion relies on Stoner v. Sowders, 997 F.2d 209 (6th Cir. 1993),
to argue that the witnesses were not “unavailable” for trial. In Stoner, the two elderly
witnesses came to a police station near the courthouse the day before the trial to give
depositions. Id. at 211-12. The Court there held their unavailability to be a “legal
fiction” and a Confrontation Clause violation. Id. at 212. Here, the depositions were
taken in Ms. Westcomb’s case several months before trial and in Ms. Coleman’s case
several weeks before trial. The chronic nature and severity of their health problems was
specifically explained to the court. In fact, Ms. Westcomb’s health was so poor that she
died while the trial was in progress.

Because Gabrion was able to, and did, cross-examine both witnesses at their
depositions, and because the government sufficiently demonstrated their unavailability
to testify at trial, no Confrontation Clause violation occurred. The District Court did not
abuse its discretion in admitting the videotaped depositions of Ms. Westcomb and Ms.
Coleman.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 38

XII. Examination of Gabrion by Government Psychiatrist and Testimony in
Rebuttal Concerning Gabrion’s Mental Health Evidence as Mitigation

Gabrion contends that he was prejudiced when the prosecution was permitted to
call expert witness Dr. Gregory Saathoff to testify in rebuttal during the penalty phase
of the trial because Gabrion did not have adequate notice of Dr. Saathoff’s testimony.
Specifically, Gabrion argues that the examination itself was untimely because it was not
conducted until March 8, 2002, between the conclusion of the guilt phase and two days
before the start of the penalty phase. Gabrion also contends that the production of Dr.
Saathoff’s testimony on March 13, 2002, two days into the penalty phase of the trial, was
untimely. Gabrion also argues that Dr. Saathoff’s rebuttal testimony was prejudicial and
outside of the scope of the testimony Gabrion provided.

As to the timeliness of the examination and the production of the report, the
government filed a discovery request for mental health evidence and for a psychological
examination on January 18, 2002 — a little over a month before the guilt phase of the
trial commenced and in response to defendant’s notice indicating he might raise mental
health issues at both the trial and penalty phases. On February 4, 2002, defendant filed
an amended notice of his intention to introduce mental health testimony through five
doctors. In response to Gabrion’s notice that he intended to utilize five mental health
experts, the government sought four additional examinations of Gabrion by mental
health experts. The District Court granted the request only as to Dr. Saathoff and
indicated that it would “strictly limit” Dr. Saathoff’s rebuttal testimony to that evidence
to which the door was opened by Gabrion first. Dr. Saathoff examined Gabrion on
March 8, 2002, the first day that Gabrion was available due to the necessity that he
prepare for and attend the guilt phase of the trial.

We find that Dr. Saathoff’s examination and report were timely. Once the
District Court had ruled that Dr. Saathoff could examine Gabrion, an examination took
place on one of the first dates that Gabrion was available, which was during the break
between the guilt and penalty phases of the trial. Defense counsel received Dr.
Saathoff’s report on March 13, five days after the examination. During the break
Nos. 02-1386/1461/1570 United States v. Gabrion Page 39

between the guilt and penalty phases defense counsel was also submitting supplemental
reports and records. There is no indication in the record that the government delayed in
its request to examine Gabrion or that Gabrion was caught off guard by the contents of
Dr. Saathoff’s report. Defense counsel had adequate time to prepare to cross-examine
Dr. Saathoff on the contents of his report.

As to Gabrion’s argument that Dr. Saathoff’s rebuttal testimony was prejudicial
and outside the scope of the case-in-chief testimony because it highlighted Gabrion’s
history of violence toward women and animals, we disagree. Gabrion presented
numerous mitigation witnesses, including four mental health experts. While the
mitigation evidence was designed to demonstrate Gabrion’s poor upbringing, lack of
appreciation for the wrongfulness of his conduct, and the existence of mental health
issues due to injuries sustained in car accidents, the mitigation evidence also downplayed
Gabrion’s future dangerousness, especially toward women. Instead, Gabrion was
described simply as “nerdish” and not a discipline problem. The government sought to
rebut the rather mild image presented during the penalty phase and show instead a man
with a violent and cruel nature who could be a threat to prison staff and other inmates.
Dr. Saathoff also opined that Gabrion was a malingerer to rebut the findings of two of
Gabrion’s mental health experts. Even if some isolated remarks by Dr. Saathoff went
beyond the scope of Gabrion’s mitigation testimony, Dr. Saathoff’s testimony as a whole
was a fair rebuttal of Gabrion’s mitigation evidence and did not unfairly prejudice
Gabrion.

XIII. Unresolved Ethics Complaint Filed Against
Government Witness, Dr. Ryan

Gabrion contends that the government withheld evidence of an ethics complaint
filed against Dr. Thomas Ryan, a rebuttal expert for the government in the penalty phase,
that would have impeached his testimony. Gabrion also contends that his Sixth
Amendment right to confrontation was violated by the District Court’s refusal to allow
defense counsel to cross-examine Dr. Ryan about the ethics complaint. The complaint
was a letter filed by a psychologist with the American Psychological Association
Nos. 02-1386/1461/1570 United States v. Gabrion Page 40

regarding Dr. Ryan’s consulting work in an unrelated capital case. The substance of the
complaint was that Dr. Ryan filed an expert report in a Maryland capital case diagnosing
the defendant as a dangerous psychopath without conducting a clinical interview of the
defendant. Instead, Dr. Ryan had used records to score the defendant on the “Hare’s
Psychopathy Checklist.” At the time, the methodology conformed to professional
standards and had been used in multiple capital cases. However, in light of objections
by the defendant in the Maryland case to the use of the Hare Checklist, Dr. Ryan
withdrew his report.

At the time of Gabrion’s trial in the District Court, the American Psychological
Association had not commenced a formal ethics investigation against Dr. Ryan
concerning the complaint by a fellow psychologist. The Association had requested a
response from Dr. Ryan, which was received by the Association in October 2001.
Although defense counsel did not have the actual complaint or Dr. Ryan’s response, it
was aware of the substance of the documents and the fact that the American
Psychological Association had not yet adjudicated the issue. Accordingly, the District
Court found that, at most, there was a professional dispute between two psychologists
in a collateral matter that was not probative of Dr. Ryan’s truthfulness. The District
Court also correctly found that examination by defense counsel of Dr. Ryan about an
unsubstantiated and unadjudicated matter was not proper and would only confuse the
jury, especially as the Hare Psychopathy Checklist had not been administered to
Gabrion. We agree with the District Court’s decision and reasoning for not allowing the
use of the unsubstantiated and unadjudicated ethics complaint and find no error on this
issue.

XIV. The Death Qualification of the Jury

Gabrion argues that the District Court erred by engaging in a lopsided jury
selection process in which prospective jurors who expressed pro-death penalty views
were empaneled, while their anti-death penalty counterparts with equally strong
opposing views were struck for cause. In essence, Gabrion’s argument is that the
Nos. 02-1386/1461/1570 United States v. Gabrion Page 41

District Court’s systematically uneven treatment of prospective jurors violated his
constitutional right to an unbiased jury under the Sixth Amendment.12

“A criminal defendant has the right to an impartial jury drawn from a venire that
has not been tilted in favor of capital punishment by selective prosecutorial challenges
for cause.” Uttecht v. Brown, 551 U.S. 1, 9 (2007) (citing Witherspoon v. Illinois, 391
U.S. 510, 521 (1968)). “[A] juror who is substantially impaired in his or her ability to
impose the death penalty under the [statutory death-penalty] framework can be excused
for cause; but if the juror is not substantially impaired, removal for cause is
impermissible.” Id. (citing Wainwright v. Witt, 469 U.S. 412, 424 (1985)). Although
Uttecht, Witt, and Witherspoon involved challenges to anti-death penalty jurors, the rule
of substantial impairment applies equally to prospective jurors whose attitudes rest at the
opposite end of the ideological spectrum. See Morgan v. Illinois, 504 U.S. 719, 728–29
(1992) (applying Witt to reverse a death sentence due to the empaneling of a single pro-
death penalty juror).

If jurors who initially express some doubts about the death penalty are excused
for cause but jurors who initially express a preference or inclination in favor of the death
penalty in murder cases are accepted, as occurred in the instant case, the jury cannot be
“a representative cross-section of the community.” The Supreme Court has recently
made jury sentencing a constitutional requirement. Ring v. Arizona, 536 U.S. 584
(2002). Juries have plenary power to choose between life and death in these cases. Thus
the way the jury is selected may become the most important determinant of the
sentencing outcome. Both the people who have no scruples about the use of the death
penalty and those who have serious doubts are part of “the people” whose “will” the jury
is designed to represent in our legal system. “[A] jury that must choose between life
imprisonment and capital punishment can do little more — and must do nothing less —

12
Gabrion also argues that the lopsided selection structure violated his guarantees to due process
and equal protection of the law under the Fifth Amendment. However, he only presents one page of legal
argument to this effect in his brief, and the only two federal cases he cites—Ward v. Village of
Monroeville, 409 U.S. 57, 62 (1972), and In re Murchison, 349 U.S. 133, 136 (1955)—found due process
violations where the trial judge suffered from an obvious conflict of interest, which Gabrion does not
allege existed in this case. Because this aspect of his argument is underdeveloped, we do not consider it
here.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 42

than express the conscience of the community on the ultimate question of life or death.”
Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). The “community” is deeply divided
on the death penalty. See David Garland, Peculiar Institution: America’s Death Penalty
In An Age of Abolition, 36-55 (2010). If strenuously pro-death penalty jurors are going
to be permitted, jurors who lean against the death penalty should not be removed for
cause. Otherwise, such a lopsided jury can hardly express the “will of the people.”

In light of these principles, Gabrion’s argument has some force. In written
responses to questionnaires and orally during voir dire, three prospective jurors
expressed strong personal views in favor of death sentences for all convicted
murderers,13 and three prospective jurors expressed equally strong personal views
against the death penalty.14 All six prospective jurors made statements that
unmistakably suggested that their deeply held personal views—either for or against the
death penalty, respectively—would prevent them from faithfully applying the nuanced
statutory system of weighing aggravators and mitigators during the penalty phase. But
when pushed by the district judge or counsel, all six equivocated and stated that they
could temporarily put aside their personal beliefs, listen to evidence, or weigh the
statutory aggravators and mitigators. The responses of the six jurors presented near-

13
The three prospective jurors with strong pro-death penalty attitudes were Alan Wehler, Terry
Herrington, and Roy Erickson. During voir dire, Wehler said that for “premeditated murder or something
like that, yeah, I do believe in an eye for an eye.” (JA 2508.) But in his questionnaire, Wehler said that
he would judge the evidence fairly and impartially. Terry Herrington stated that he was in favor of the
death penalty “in every case where someone voluntarily kills another . . . except an act of war.” (JA 944.)
In other words, “if it was intentional, you know, an eye for an eye.” (JA 948.) But in his questionnaire,
Herrington said that he would weigh aggravators and mitigators and would follow the court’s instructions.
Erickson stated in his questionnaire that “the death penalty is appropriate for all crimes involving murder.”
(JA 969.) Similarly, he said in voir dire that once “the aggravating circumstances are proven, that’s it.”
(JA 971.) But Erickson also said in voir dire that he would listen to evidence and would consider life
imprisonment. (JA 968–70.)
14
The three prospective jurors with strong anti-death penalty attitudes were Timothy Donahey,
Eric Hemmeke, and Shelly Abrahams. In his questionnaire, Donahey checked a box stating that he could
never impose the death penalty. At voir dire, Donahey admitted that his personal views “might” influence
his sentencing decision. (JA 862–63.) But when asked whether he could impose the death penalty if the
law so required, Donahey clearly responded: “Yes, I could consider it.” (JA 864.) Hemmeke also
checked the box on the questionnaire stating that he could never impose the death penalty. Hemmeke said
at voir dire that he was “pretty set in the no death penalty.” (JA 938.) But Hemmeke made clear that if
the facts were there and the murder were gruesome, he could maybe go with the death penalty. (JA 939.)
Abrahams stated in his questionnaire that the death penalty was appropriate for certain crimes, but in voir
dire he expressed a change of heart and said that his moral values could possibly interfere with his choice
of sentence. (JA 953–55.) But he also pellucidly stated that he could weigh the aggravators and mitigators
as required by the law. (JA 956.)
Nos. 02-1386/1461/1570 United States v. Gabrion Page 43

perfect symmetry on both ends of the ideological spectrum: three pro death-penalty (but
equivocating) jurors, and three anti-death penalty (but equivocating) jurors.

But while the revealed attitudes of the prospective jurors were symmetrical, the
District Court’s treatment of them was not. The District Court struck all three of the
anti-death penalty jurors for cause over Gabrion’s objection, but it empaneled all three
of the pro-death penalty jurors despite Gabrion’s motion to strike for cause. The District
Court reasoned that two of the anti-death penalty jurors equivocated, and that the other
one was guilty of “fuzzy thinking.” Regarding their three pro-death penalty
counterparts, the District Court was silent on the equivocation of one and attributed the
inconsistent responses of the two others to their lack of a college education.

We are troubled by the appearance of uneven treatment in how the District Court
handled the pro-death penalty and anti-death penalty jurors during the jury selection
process.15 Of course, the determination of whether a prospective juror’s attitude
regarding the death penalty will substantially impair him from applying the statutory
penalty-phase framework involves some inferences that cannot be made from a bare
transcript alone. “[T]he trial court makes a judgment based in part on the demeanor of
the juror, a judgment owed deference by reviewing courts.” Uttecht, 551 U.S. at 9. But
when the transcript suggests systematically uneven treatment of equivocating pro- and
anti-death penalty jurors, it is increasingly unlikely that the sole culprit is differences in
the demeanor of those jurors. We need not definitively resolve the issue in this case,
however, because any error affected only the penalty phase of the trial,16 and we are

15
Our concern is amplified by the fact that the prospective jurors were all drawn from a state that
has abolished the death penalty by legislative and state constitutional enactment. No Supreme Court
opinion has yet considered whether the standard death-qualification rules apply with equal strength under
such circumstances, or instead whether those rules give way to the fundamental constitutional values of
federalism and of a defendant’s right to a jury that is a fair cross-section of the community. United States
v. Fell, 571 F.3d 264, 283-86 (2d Cir. 2009) (Calabresi, J., dissenting from denial of rehearing en banc).
A strong argument exists that the latter should occur, thereby making it harder for the government to strike
for cause anti-death penalty jurors in prosecutions in states that have abolished the death penalty. Id.
Although we do not reach that issue here, we note the irony of the District Court’s empaneling an
emphatically pro-death penalty jury in an anti-death penalty state.
16
Regarding the guilt phase of capital trials, the Supreme Court has suggested that errors in death
qualification do not require reversal. See Lockhart v. McCree, 476 U.S. 162, 183 (1986) (“reject[ing]” the
contention that Witherspoon has “broad applicability outside the special context of capital sentencing”).
Moreover, any error would be harmless with respect to the guilt phase due to the overwhelming evidence,
Nos. 02-1386/1461/1570 United States v. Gabrion Page 44

already reversing the District Court and remanding for a new penalty phase on the
independent ground of improperly excluding relevant mitigating evidence.

XV. Constitutionality of the Act’s Penalty Phase Evidentiary Standard

Gabrion next asserts that the Federal Death Penalty Act is facially
unconstitutional, because it provides that the Federal Rules of Evidence (“the Rules”)
do not apply to material presented by the parties during the penalty phase of a death
penalty trial. This issue is one of first impression in this Circuit, but every other circuit
which has confronted it has rejected this argument and upheld the Act. See United States
v. Fulks, 454 F.3d 410, 437 (4th Cir. 2006); United States v. Lee, 374 F.3d 637, 648–49
(8th Cir. 2004); United States v. Fell, 360 F.3d 135, 140–46 (2d Cir. 2004); United
States v. Jones, 132 F.3d 232, 241–42 (5th Cir. 1998). We join those circuits, reject
Gabrion’s argument, and decline to find the Act unconstitutional on this basis.

The Act provides in relevant part that during the penalty phase of a death penalty
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). Gabrion’s principal
argument is that this evidentiary standard’s constitutionality is foreclosed by the
Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002). Ring invalidated
Arizona’s death penalty statute—which provided that, after a capital defendant was
found guilty by a jury, the trial judge himself would find aggravating factors required for
the imposition of the death penalty sentence—as unconstitutional under the Sixth
Amendment right to a trial by jury. Ring, 536 U.S. at 588-89. The core holding of Ring
is that where a death penalty statute requires aggravating facts to be found before the
death penalty is imposed, those facts must be found by a jury, not by a judge. Id. at 609.
Gabrion asks us to extend this reasoning one step further and hold that those aggravating
facts must, as a constitutional matter, be proven to the jury using evidence admissible

detailed elsewhere in this opinion, of Gabrion’s guilt.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 45

under the Rules. He is apparently raising this constitutional argument for the first time
on appeal, and so our review is for plain error. Fed. R. Crim. P. 52(b); United States v.
Murphy, 241 F.3d 447, 450–51 (6th Cir. 2001).

Gabrion’s argument consciously takes as its inspiration a decision of the District
Court in United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), rev’d, 360 F.3d 135
(2d Cir. 2004), which found the relevant provision of the Act unconstitutional under the
Due Process Clause of the Fifth Amendment and the Confrontation Clause of the Sixth
Amendment. That decision was reversed in a thorough and well-reasoned opinion of the
Second Circuit, and we largely follow their analysis in disposing of Gabrion’s argument
in the instant matter.

We begin by noting that the Federal Rules of Evidence are not a collection of
constitutional rules: the limitations on the introduction of evidence presented by the
Rules are not coextensive with the limitations required by the Constitution. See Dowling
v. United States, 493 U.S. 342, 352–54 (1990) (finding, in the admission of evidence at
trial, an error under the Rules, but declining to find a constitutional error); Fell, 360 F.3d
at 144–45 (following this reading of Dowling and other cases and concluding that “[the
Rules] establish neither the floor nor the ceiling of constitutionally permissible
evidence”). Where a given evidentiary rule is not inconsistent with a constitutional
principle, Congress retains “the ultimate authority to modify or set [it] aside.” Dickerson
v. United States, 530 U.S. 428, 437 (2000).

In the Federal Death Penalty Act, Congress enacted an evidentiary standard
governing the penalty phase of capital prosecutions that provided that the Rules do not
apply, and left only one limitation on the admission of “information” (notably, the
relevant provision does not even speak of “evidence”): 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). Gabrion on appeal
argues that the constitutional principle with which this provision is inconsistent (and
therefore outside of Congress’s authority to enact) is the one announced in Ring: that
Nos. 02-1386/1461/1570 United States v. Gabrion Page 46

aggravating factors, the proof of which is part of the business of the penalty phase, must
be proven to a jury beyond a reasonable doubt. The link between Ring, which concerned
primarily the identity of the trier of fact and not the standards limiting the material
introduced before it, and Gabrion’s present argument is reliability: Gabrion argues that,
since Ring required proof of aggravating factors to be made to a jury and not to a judge,
that proof should be reliable, and reliability would best be guaranteed by Rules, which
govern other matters proven before juries in federal court.

Concerns about reliability are obviously at their apogee when the determination
is literally one of life and death, as is the case in capital sentencing proceedings. See,
e.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978) (stating that “[the] qualitative difference
between death and other penalties calls for a greater degree of reliability when the death
sentence is imposed”). The problem with Gabrion’s argument is his contention that, in
the capital sentencing context, the Rules are the only means of assuring reliability, so
much so that their application is constitutionally required. On the contrary, the unique
context of the penalty phase—the ultimate object of which is not the determination of
the objective fact of the defendant’s guilt or innocence but the much more abstract,
irreducibly moral determination of whether an individual, already adjudicated guilty,
deserves mercy or death—presents distinct reliability concerns that could be plausibly
thought to merit a different, much broader set of limitations on what information may
be considered. The Supreme Court has long recognized this to be the case. See, e.g.,
Gregg v. Georgia, 428 U.S. 153, 204 (1976) (“We think it desirable for the jury to have
as much information before it as possible when it makes the sentencing decision.”);
Williams v. New York, 337 U.S. 241, 246 (1949) (noting the “sound practical reasons”
for having “different evidentiary rules govern[] trial and sentencing procedures”). What
may distract a jury in the guilt phase from its narrow determination of guilt or
innocence—a defendant’s good or bad character, as demonstrated through prior acts, for
example—may be vital to its determination of whether the particular guilty defendant
before it deserves society’s ultimate punishment. Accordingly, Congress’s decision to
relax the evidentiary standard for this specific purpose is no constitutional defect.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 47

Gabrion also contends that the Act may only be deemed constitutional if we
create a new “federal capital murder” offense that would treat the aggravating factors as
elements of the offense, as, he argues, is required by Ring. He continues that we should
not create such an offense, citing principles of constitutional avoidance, separation of
powers, and the longstanding proscription against the creation of common law crimes.
A similar argument was raised and rejected by the Eighth Circuit in United States v. Lee,
374 F.3d 637, 648–49 (8th Cir. 2004), and we reject it here as well. We do not need to
construe the Act as creating a new offense not already specified; as stated above, the Act
complies with Ring by requiring aggravating facts to be found by a jury, not by a judge.

XVI. Constitutionality of Other Acts Information Admitted During Penalty
Phase Supporting “Future Dangerousness” as a Non-Statutory Aggravating Factor
Gabrion next challenges the admission during the penalty phase of information
concerning unadjudicated criminal conduct and other “bad acts” unrelated to the charged
murder of Rachel Timmerman. During the penalty phase of Gabrion’s trial, the
Government introduced, primarily through testimony, information concerning a wide
array of acts committed by Gabrion demonstrating his future dangerousness, which the
Government sought to prove was an aggravating factor tending to make the death
penalty a more appropriate sentence. Uncharged conduct allegedly committed by
Gabrion discussed during the penalty phase included: acts of animal cruelty, prior acts
of assault and sexual misconduct, and even three uncharged homicides concerning
individuals whose disappearance the Government sought to link to Gabrion.17 Finding
no error in the admission of this information, we reject this argument.

17
In his brief on appeal, Gabrion treats these last allegations concerning the uncharged homicides
as a separate claim of error. Because the legal question involved is essentially identical to that governing
his claim concerning the other uncharged acts, we treat the two claims of error together.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 48

A. Standard of Review

The procedural posture of this issue is somewhat complicated. In the their death
penalty notice, the Government gave notice, pursuant to the relevant provision of the
Act, of their intention to prove as a so-called “non-statutory” aggravating factor that
Gabrion was “likely to commit criminal acts of violence in the future which would be
a continuing and serious threat to the lives and safety of others.” See 18 U.S.C.
§ 3592(c) (authorizing the consideration of “any other [i.e., other than the enumerated
statutory aggravating factors] aggravating factor for which notice has been given”).
Gabrion then made a comprehensive motion to dismiss the death penalty notice, and
challenged the constitutionality of this future dangerousness aggravating factor with a
variety of arguments, including that it was unconstitutionally vague and that it was
irrelevant to the sentencing decision. He further asked the District Court, in the
alternative, to limit information concerning this factor to that which concerned Gabrion’s
future dangerousness in a prison setting. The court denied Gabrion’s motion in all
respects.

Now on appeal, Gabrion challenges specific pieces of information introduced
during the penalty phase concerning a wide array of uncharged “bad acts,” largely on the
basis that Gabrion was never criminally convicted of those acts. The relationship
between this argument and his arguments made in his motion to dismiss the death
penalty notice made before the District Court is, to say the least, unclear. Nonetheless,
even were we to construe Gabrion’s arguments now on appeal as being sufficiently
similar to the ones made in his prior motion such that they were potentially preserved for
appellate review, his failure, candidly admitted by appellate counsel in their brief on
appeal, to renew them contemporaneously to the information’s introduction during the
penalty phase limits our review to plain error. Cf. United States v. Kelly, 204 F.3d 652,
655 (6th Cir. 2000) (reaching a similar conclusion in the analogous context of a
defendant whose motion in limine to exclude evidence was not renewed
contemporaneously to that evidence’s admission at trial).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 49

B. Unadjudicated Prior Acts and Future Dangerousness

Gabrion on appeal does not appear to contest the proposition that future
dangerousness is sufficiently relevant to the decision making of the penalty phase jury
to qualify as a non-statutory aggravating factor under 18 U.S.C. § 3292(c). Instead,
Gabrion’s core argument appears to be that information concerning unadjudicated prior
acts of convicted capital defendants should not be admissible during the penalty phase
of a capital trial to prove future dangerousness, solely by virtue of the fact that those acts
were unadjudicated. Much like his claim arguing for the application of the Federal Rules
of Evidence during the penalty phase, the primary reason Gabrion offers for imposing
this limitation, which he would have us elevate to a constitutional requirement, is
reliability: he argues that reliability would be best guaranteed by limiting the acts
concerning which information may be presented to acts for which the capital defendant
has already been tried and convicted.

But, as already discussed, the penalty phase presents a different context for
addressing reliability than the guilt phase, which requires the jury to make a
determination of considerably narrower scope. The Act’s loose evidentiary standard and
its broad definition of aggravating factors (balanced with, as Section II of this opinion
demonstrates, a correspondingly broad definition of mitigating factors) represent a
preference by Congress for maximizing the information about a capital defendant
available to the jury during the penalty phase, a policy decision that is consistent with
Supreme Court precedent in this area, as demonstrated by cases already cited above
rejecting Gabrion’s argument about the Rules of Evidence. See, e.g., Gregg v. Georgia,
428 U.S. 153, 204 (1976); Williams v. New York, 337 U.S. 241, 246 (1949).

We are hesitant, especially under the limited review under the circumstances of
this case, to craft a constitutional rule limiting the introduction of other acts information
to acts for which the defendant has been adjudicated criminally guilty. We join every
other circuit that has decided the issue in holding that there is no such constitutional
barrier. See United States v. Lujan, 603 F.3d 850 (10th Cir. 2010) (allowing introduction
Nos. 02-1386/1461/1570 United States v. Gabrion Page 50

of unadjudicated homicides during penalty phase); United States v. Basham, 561 F.3d
302, 331–32 (4th Cir. 2009) (unadjudicated sexual misconduct); United States v. Corley,
519 F.3d 716, 723–25 (7th Cir. 2008) (unadjudicated homicide); United States v. Lee,
274 F.3d 485, 494 (8th Cir. 2001) (unadjudicated assaults, burglary, and arson).

Accordingly, the District Court did not plainly err in admitting information
concerning unadjudicated acts committed by Gabrion.

C. Limitation of Future Dangerousness Evidence to Dangerousness in the
Prison Setting
Finally, Gabrion argues that we should follow the limitation imposed by some
District Courts and restrict the introduction of future dangerousness information to the
danger the defendant would present under life without the possibility of parole, the only
other possible result of a capital sentencing hearing under the Act. See, e.g., United
States v. Peoples, 74 F. Supp. 2d 930, 932–33 (W.D. Mo. 1999) (finding that
“dangerousness should not be measured in the same manner as if a defendant were to be
‘uncaged’” and declining to permit the introduction of unadjudicated burglaries during
penalty phase). However, we need not decide this issue here, as Gabrion does not
indicate which of the unadjudicated acts alleged would be relevant only outside the
prison context, and it is unclear to us which acts would fall outside of this limitation,
were we to impose it.

XVII. Propriety of Remarks by Prosecutor During Closing Argument

Gabrion next challenges the propriety of remarks made by the prosecution during
the closing argument of the penalty phase. During closing argument, the prosecution
argued that Gabrion “owe[d] a debt he can never repay” to Rachel Timmerman’s family,
and that the mitigating factors proferred by the defense “don’t balance the ledger book.”
The prosecution also pointed out that Gabrion had not expressed remorse for the murder.
Gabrion on appeal argues that these remarks were improper and were designed to incite
an improperly retaliatory or vengeance-based sentencing decision from the jury. Finding
no impropriety in the prosecutor’s remarks, we reject this argument.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 51

We analyze claims of prosecutorial misconduct based on improper statements
under a two-part test: we ask first whether the remarks were improper, and then whether
they were flagrant and warrant reversal. United States v. Carroll, 26 F.3d 1380,
1387–88 (6th Cir. 1994). This claim can be resolved under the first part of the Carroll
test, as the remarks were simply not improper. Despite Gabrion’s apparent suggestions
to the contrary, the prosecution never argued that the jury had a “duty” to impose death,
or that Gabrion owed the victim’s family a debt he could only repay with his life. The
“ledger book” reference was a proper way of articulating the Government’s position that,
under the weighing of aggravating and mitigating factors set up by the Act, the balance
tipped in the Government’s favor. The comment about Gabrion’s “debt” did not suggest
that Gabrion owed the victim’s family his life; indeed, the prosecution was making the
very point that the debt could not ever be repaid, no matter the result of their sentencing
deliberations. This is fair argumentation from victim impact evidence, allowed by the
Supreme Court in Tennessee v. Payne, 501 U.S. 808, 827 (1991).

Similarly, the remark about Defendant’s lack of expressed remorse does not fall
outside the bounds of acceptable argumentation. In the principal case Gabrion cites for
this claim of error, the Third Circuit found that a capital sentencing jury’s determination
had been impermissibly tainted by the prosecution’s stating during closing argument that
the defendant “didn’t even have the common decency to say I’m sorry for what I did.”
Lesko v. Lehman, 925 F.2d 1527, 1540 (3d Cir. 1991). The court held this remark to be
an improper comment on the defendant’s assertion of his Fifth Amendment privilege
against self-incrimination. Id. at 1544-45. But here, the Fifth Amendment privilege is
not in issue; Gabrion waived it, by both testifying at trial and delivering an allocution.
The Government’s factually accurate reference to Gabrion’s lack of expressed remorse
during these two appearances was not an improper attempt to penalize him for exercising
his constitutional right, but rather an appropriate argument concerning Gabrion’s
character.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 52

XVIII. Testimony of Victim’s Mother Requesting the Death Penalty

Gabrion contends that his due process rights were violated when the victim’s
mother, Velda Robinson, was asked “How do you want us to know how you’re going
to remember Rachel?” and responded “By him being the first to die in the state of
Michigan.” The defense contemporaneously objected to this remark, and the court
sustained the objection, ordering the response stricken. Gabrion now contends on appeal
that it was reversible error and a denial of due process.

Assuming — without deciding — that an error arose in relation to this isolated
remark, and that such an error was not cured by the District Court’s striking of it from
the record, we are confident that any such error would be harmless beyond a reasonable
doubt, the standard for error analysis provided for in the Act. 18 U.S.C. § 3595(c)(2).
Ms. Robinson was only one of several of Rachel Timmerman’s family members called
to prove the Government’s victim-impact aggravator, and that aggravator was only one
of four that the jury found to be present beyond a reasonable doubt. In light of these
circumstances, it is clear that this remark did not substantially influence the sentencing
jury’s determination in this case. Cf. Hain v. Gibson, 287 F.3d 1224, 1239–40 (10th Cir.
2002) (finding any error in the admission of similar victim impact evidence harmless
beyond a reasonable doubt where jury had also found other aggravating factors to be
present). Moreover, as to the penalty of death, we are already vacating the death penalty
and remanding for a new sentencing hearing.

XIX. Allegations of Jury Bias Based on Post-Trial Juror Comment to
Newspaper
Gabrion next contends that the District Court abused its discretion in refusing his
post-trial request for a hearing pursuant to Remmer v. United States, 347 U.S. 227
(1954), after the jury foreperson was quoted in a post-trial argument in the Grand Rapids
Press as saying of Gabrion: “I read your paper religiously. I knew he was off the wall
[before the trial].” Finding no abuse of discretion, we reject Gabrion’s argument.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 53

The District Court is obligated to conduct a Remmer hearing whenever the
defense raises “a colorable claim of extraneous influence” on a juror. United States v.
Owens, 426 F.3d 800, 805 (6th Cir. 2005) (giving as examples of extraneous influences:
prior business dealings with the defendant, applying to work for the local district
attorney, conducting an out-of-court experiment, and discussing the trial with an
employee). As the District Court recognized in rejecting Gabrion’s argument below, this
is not the classic Remmer situation, where a juror has engaged in unauthorized
extraneous communications during trial. Instead, the extraneous communications here
occurred pre-trial, consisted entirely in the foreperson’s reading of media accounts of
Gabrion’s pre-trial behavior, and were fully disclosed during voir dire, where the
foreperson indicated that he was capable of setting aside what he had gleaned from
media reports and would decide the case based entirely on information presented in the
courtroom.

Preexisting knowledge concerning a case, or even some preexisting opinion as
to the merits, does not give rise to a presumption against jury impartiality. DeLisle v.
Rivers, 161 F.3d 370, 382 (6th Cir. 1998). We decline to hold that contact with media
coverage that a juror has disclosed during voir dire rises to the level of extraneous
communications requiring a Remmer hearing. As the District Court realized, to reach
the opposite result would make it impossible for a District Court to seat any juror with
any pre-trial knowledge concerning a case, for fear of the verdict’s being disturbed by
a post-trial hearing on the effect of that pre-trial knowledge on deliberations. Further,
it is unclear what purpose a Remmer hearing would serve in this context, given that the
relevant communications had already been disclosed during voir dire, and that the juror
would be barred from testifying about their effect on deliberations by Federal Rule of
Evidence 606(b) (limiting juror testimony about extraneous influences to “whether
extraneous prejudicial information was improperly brought to the juror’s attention” or
“whether any outside influence was improperly brought to bear upon any juror”). The
District Court did not abuse its discretion in rejecting Gabrion’s request for a Remmer
hearing.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 54

XX. Alleged Brady Violation Concerning Competency Challenge to
Government Witness
Gabrion contends that the District Court erred in rejecting his motion for a new
trial on the basis of newly discovered evidence, or, in the alternative, a violation of
Brady v. Maryland, 373 U.S. 83 (1963). The relevant evidence — the discovery of
which Gabrion argues should grant him a new trial — is the fact that Lloyd Westcomb,
a Government witness, submitted to a competency evaluation in a state court proceeding
related to a criminal charge against him pending during Gabrion’s trial. Because the fact
of the competency evaluation was plainly not material in light of the information
disclosed by Westcomb during his testimony, we reject Gabrion’s argument.

This Circuit employs a four-part test in deciding whether newly discovered
evidence merits a new trial: (1) the new evidence must be discovered after trial, (2) the
evidence could not have been discovered earlier with due diligence, (3) the evidence
must be material and not merely cumulative or impeaching, and (4) the evidence would
likely produce an acquittal if the case were retried. United States v. Barlow, 693 F.2d
954, 966 (6th Cir. 1982). There are plausible arguments that this evidence fails all four
prongs of the Barlow test, but materiality is the point at which its failure is most obvious.
During his testimony, Westcomb disclosed both the pending charge against him, and the
fact that he had been diagnosed as a paranoid schizophrenic. Even assuming that the fact
of his submitting to a competency evaluation pursuant to that charge would have been
admissible impeachment evidence (the District Court did not think it was), it is difficult
to see what added, as opposed to cumulative, value it would have presented as
impeachment in light of these two disclosures. Gabrion’s alternative Brady argument
fails for the same reason. Impeachment evidence purportedly withheld in violation of
Brady must meet a materiality threshold to merit the granting of a new trial. United
States v. Bagley, 473 U.S. 667, 682 (1985) (defining materiality as evidence the non-
disclosure of which is “sufficient to undermine confidence in the outcome”). Given the
evidence’s cumulative nature (not to mention the significant other evidence supporting
the jury’s verdict in this case), we have no difficulty accepting the District Court’s
Nos. 02-1386/1461/1570 United States v. Gabrion Page 55

conclusion that there was nothing about Westcomb’s competency evaluation that would
undermine confidence in the jury’s verdict.

XXI. Jury Instructions in the Penalty Phase

The standard of review for jury instructions is whether, viewed as a whole, they
fairly and adequately submit the issues and applicable law to the jury. A District Court’s
refusal to deliver a requested instruction is reversible error only if the proposed
instruction is (1) a correct statement of the law, (2) not substantially covered by an actual
jury charge, and (3) so important that failure to give it substantially impairs the
defendant’s defense. United States v. Blanchard, 618 F.3d 562, 573 (6th Cir. 2010).
Gabrion argues that the District Court erred in failing to give the following requested
instructions: (1) that his courtroom behavior during the sentencing phase of the trial
could serve as a separate mitigating factor, and (2) that the Bureau of Prisons had the
power to restrict Gabrion’s interaction with and communication with individuals both
inside and outside the prison, thereby mitigating the government’s argument that
Gabrion’s future dangerousness weighed in favor of the death penalty instead of life
imprisonment.

A. Refusal to Instruct Jury about Gabrion’s Courtroom Behavior

Gabrion contends that the District Court erred when it refused to instruct the jury
during the penalty phase that it could consider Gabrion’s courtroom behavior as an
indication of his inability to control his conduct and therefore serve as a separate
mitigating factor to be weighed against the aggravating factors.18 Gabrion also argues
that the refusal to give such an instruction served as an “explicit or implicit” bar on
addressing the issue in closing arguments.

To the extent that Gabrion’s courtroom behavior served as some type of
mitigating factor, it was adequately covered when the District Court related the

18
The requested instruction was that, “Marvin Gabrion’s in-court behavior is an indication of his
inability to control his conduct.” (Proposed Instructions at 7, J.A. at 652).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 56

mitigating factors to the jury, including that defendant suffers from “severe personality
disorders,” “traumatic brain injuries which have led to neurological impairments,” and
“brain dysfunction which has impaired his ability to control his conduct . . . .” J.A. at
2025. Gabrion’s courtroom behavior was not a mitigating factor separate from those
listed above, and the District Court was correct to not give the proposed instruction. And,
in addition, the jury was instructed that they could consider “anything else” that would
mitigate against the imposition of the death penalty, even if not specifically mentioned
by the defense. J.A. at 2025-26.

Nor did the failure to give the requested instruction impair or foreclose any
arguments by defense counsel during closing or otherwise. Defense counsel did argue
on many occasions during the penalty phase that Gabrion’s mental problems, brain
injuries, and the resulting inability to control himself mitigated his sentence. The fact
that the jury did not receive a specific instruction about Gabrion’s courtroom behavior
in no way precluded the jury from considering it along with the other mitigating
evidence they heard.

B. Instruction Concerning Bureau of Prisons’ Regulations

Gabrion contends that the District Court erred when it failed to give a requested
instruction regarding Bureau of Prisons’ regulations regarding dangerous inmates and
the administrative regulations available to it to control Gabrion. By requesting this
instruction, Gabrion wanted to show the jury that he could be securely held in prison
despite the government’s argument that his future dangerousness was so severe that he
should be executed because it would be difficult to keep inmates, female prison guards,
and others on the prison staff safe from Gabrion, as well as difficult to prevent him from
sending threatening communications to persons outside the prison. Gabrion argues that
the instruction is necessary because the government objected to testimony by one of
Gabrion’s witnesses in the penalty phase, Mark Cunningham, concerning Bureau of
Prisons’ regulations and how the Bureau controls inmates considered to be a risk to the
safety of other inmates and prison staff. Despite the objection, however, Cunningham
Nos. 02-1386/1461/1570 United States v. Gabrion Page 57

was allowed to testify as to the different security levels for inmates, as well as the
monitoring of inmate communications, confinement, and visitation for those inmates
considered dangerous.

Gabrion’s defense was not impaired by the refusal to give this instruction. First,
the District Court gave the jury an instruction that encompassed Gabrion’s concerns
when it instructed the jury that it could consider as one of the mitigating factors the fact
that “the defendant will not be a danger in the future if he is confined in a highly
structured and secure federal prison.” (J.A. at 2025). Second, Gabrion elicited
testimony from Cunningham outlining the restrictions available to the Bureau of Prisons
to secure a dangerous inmate. Had the District Court given this instruction, it is likely
that the government would have requested a countervailing instruction telling the jury
that no prison is totally secure and confinement in a maximum security federal prison
is not a guarantee that Gabrion will never threaten or harm anyone in the future. By
allowing Cunningham to testify and by instructing the jury that they could consider as
a mitigating factor that Gabrion would not be a danger if housed in a secure federal
prison, Gabrion’s concerns were addressed, and the District Court did not abuse its
discretion in declining to give the requested instruction.

Accordingly, the jury verdict at the guilt phase of the trial is affirmed and the
verdict of death at the sentencing phase is reversed. The case is remanded to the District
Court for a new trial on the sentencing phase of the case pursuant to 18 U.S.C. § 3595.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 58

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________

ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in
part. I would affirm the district court in its entirety — both conviction and sentence.
Therefore, I concur generally in the portions of the majority’s decision that affirm the
judgment of the district court without necessarily joining the majority’s reasoning or
discussion. I agree that we need not reach the issue contained in Section XIV but I do
not join in the associated dicta. I respectfully dissent from those portions of the
majority’s decision that reverse the district court, specifically Sections II and III.

In Section II, the majority conducts a de novo review1 of Gabrion’s claim that the
district court misinterpreted or misapplied certain provisions of the Federal Death
Penalty Act of 1994 (FDPA), 18 U.S.C. §§ 3591 - 3598. By reading the word “any” in
§ 3592(a) (“any mitigating factor”) and § 3593(c) (“any information relevant to a
mitigating factor”) as unqualified and unlimited, the majority holds that these provisions
mandate that a capital defendant may offer to the jury any “mitigating” evidence or
argument, i.e., any evidence or argument that could conceivably make a juror question
the appropriateness of the death penalty. Reading “any” as unlimited necessarily
requires the inclusion within these two provisions of Michigan’s policy against the death
penalty. The majority therefore concludes that the district court erred by excluding
reference to Michigan law.

In Section III, the majority considers Gabrion’s claim that the district court
violated his constitutional right to due process by misinstructing the jury on the burden
of proof in the weighing of aggravating and mitigating factors, and again conducts a de

1
Absent the statutory claim, we would review a challenge to the district court’s exclusion of
evidence for an abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); United States
v. Lujan, 603 F.3d 850, 853 (10th Cir. 2010) (“We review a district court’s order excluding evidence from
the penalty phase of a capital case under 18 U.S.C. § 3593(c) for an abuse of discretion.”); United States
v. Pepin, 514 F.3d 193, 202 (2d Cir. 2008).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 59

novo review.2 The district court instructed the jury that it need only find that the
aggravating factors “sufficiently outweigh” the mitigating factors, which is language
quoted directly from the statute. See § 3593(e). The majority finds the statutory
language unacceptably vague, and therefore constitutionally infirm, and holds that a
sentencing court must instruct the penalty-phase jury that it may impose the death
penalty only if it finds beyond a reasonable doubt that the aggravating factors outweigh
the mitigating factors.

I must respectfully disagree with both of these holdings. I would hold that a
reasonable reading of §§ 3592(a) and 3593(c) allows a sentencing court to impose some
limits on the evidence or argument the defendant may offer in mitigation, and that the
district court properly did so in this case. Similarly, I would hold that the Constitution
does not dictate the manner in which death-penalty aggravating and mitigating factors
are to be weighed, and therefore the district court could not and did not violate the
Constitution in the way it instructed the jury. I would affirm the district court.

I.

Prior to the sentencing phase, the government moved the district court in limine
to prohibit Gabrion’s counsel from arguing, as a mitigating factor, that the Michigan
state constitution prohibits the death penalty. See Mich. Const. Art. IV, § 46 (“No law
shall be enacted providing for the death penalty.”). Gabrion’s counsel conceded that
Michigan’s prohibition, taken alone, would not be a direct mitigating factor, and
explained that he actually intended to argue that the imposition of the death penalty in
this case would be arbitrary, given the totality of the circumstances:

[I]n this case there is the potential for argument that it would be arbitrary,
potentially arbitrary for this Michigan case with a Michigan victim, a
Michigan defendant, in this somewhat accidental finding of the body on

2
Absent a claim of constitutional violation, we would review a challenge to the district court’s
jury instructions for an abuse of discretion. United States v. Svoboda, 633 F.3d 479, 483 (6th Cir. 2011);
see also Boyle v. United States, 556 U.S. --, 129 S. Ct. 2237, 2244 (2009) (“A trial judge has considerable
discretion in choosing the language of an instruction so long as the substance of the relevant point is
adequately expressed.”).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 60

federal property, it’s an argument that we may like to make [to the jury]
to say this [death penalty] is an arbitrary decision. The location of the
body is somewhat happenstance and could be a factor that [the
sentencing jury] could consider. Were this body found 200 feet [in] the
other direction, this [case] would be in Michigan [court] and there would
be no death penalty possible. It’s an arbitrary factor that we feel we
should be permitted to argue.

The government replied, inter alia, that this was an inappropriate political argument and
“an invitation for this jury to cast aside what federal law provides for.” The district court
granted the motion and barred the argument, holding that it was not a mitigating factor
under § 3592(a):

The mitigating factors as set forth in 3592(a) of 18 United States
Code talks about specific ones: the participation in the crime, the
impairment of capacity, duress, et cetera, et cetera; equally culpable
defendants, which is what someone said here a little while ago; and
victim’s consent. And then it says: ‘Any other factor in the defendant’s
background, record[,] or character[,] or any other circumstances of the
offense that mitigate against imposition of [a] death sentence.’
Now, the jury has found beyond a reasonable doubt, and had to
find because that was one of the four essential elements of the particular
offense that was before the jury last week concerning guilt, has found
beyond a reasonable doubt that the crime occurred within federal
territory or on federal property. This cannot be relitigated. It’s already
been litigated. It’s not a specific factor that can be litigated, and to make
mention of it would be relitigating it saying, Well, look, if it happened
two, three hundred feet away, it wouldn’t be.
This issue, of course, presents itself in a multitude of
circumstances before this [c]ourt. In virtually every one[,] this [c]ourt
and the [c]ourt of [a]ppeals has given clear markings that it’s not a
subject to be discussed. For instance, there are certain drug violations,
particularly as pertains to crack cocaine, where there are some rather
heavy sentences for crack cocaine distributors [under federal law]
compared with, say, Michigan law. And this [c]ourt would never permit
nor could this [c]ourt [] by law permit a defense counsel to get up and say
[to the jury], You know, under state law this has a penalty of X and Y,
but here we are in federal court and it has a much higher penalty, so
therefore, you ought to do this, jury.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 61

This isn’t for — that isn’t material to the case. That isn’t material
to the defendant’s background, record[,] or character. That isn’t material
to the circumstances of the case, nor does it mitigate one way or the
other, and it is not a proper subject matter. It would in fact permit the
jury to speculate and it would in fact insert an extraneous matter into the
process.

Thus, the district court “preclud[ed] defense argument concerning the lack of a death
penalty under the law of the State of Michigan as mitigating factor.”

At the close of evidence and argument, the district court instructed the jury to
consider 12 specific mitigating factors and “anything else about the commission of the
crime or about Marvin Gabrion’s background or character that would mitigate against
the imposition of the death penalty . . . whether or not specifically argued by defense
counsel, but which are supported by the evidence.” After almost seven hours of
deliberation, the jury imposed the death penalty.

On appeal, Gabrion claims a violation of both a constitutional3 and a statutory4
right to present mitigating evidence and argument to the sentencing jury — on theories

3
See Appellant Br. at 118 (Dec. 12, 2005) (Assigned Error 28: “The failure to allow the jury to
consider as a mitigating circumstance the fact that Michigan is not a death penalty jurisdiction when there
remained residual doubt about federal jurisdiction violated the Eighth Amendment.”); Appellant Reply Br.
at 42 (Dec. 12, 2005) (Assigned Error 28: “The district court violated the Eighth Amendment by not
allowing the jury to consider the fact that Michigan is not a death penalty jurisdiction when an arbitrary
227 feet was all that made this a capital prosecution.”); Supp. Appellant Br. at 45 (Dec. 14, 2009)
(Supplemental Argument 10: “Failure to allow the jury to consider as a mitigating circumstance that fact
that Michigan is not a death penalty jurisdiction was reversible [constitutional] error.”).
4
See Appellant Br. at 120 (Dec. 12, 2005) (“This [absence of the death penalty under Michigan
law] clearly was a fact that the jury under 18 U.S.C. § 3592(a)(8) and Lockett should have been allowed
to consider.”); Appellant Reply Br. at 42-43 (Dec. 12, 2005) (“This is an important factor related to this
crime and a ‘circumstance of the offense, and, as such, pursuant to the ‘catch-all’ provision of 18 U.S.C.
§ 3592(a)(8), the jury should have been instructed to consider the fact that Michigan is not a death penalty
jurisdiction.”); Supp. Appellant Reply Br. at 28-29 (Mar. 22, 2010) (Supplemental Reply Argument 7:
“Michigan as a non-death state,” reiterating that “[t]his is an important factor related to this crime and a
‘circumstance of the offense, and, as such, pursuant to the ‘catch-all’ provision of 18 U.S.C. § 3592(a)(8),
the jury should have been instructed to consider the fact that Michigan is not a death penalty jurisdiction.”).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 62

of residual doubt,5 arbitrariness,6 and disproportionality to the sentences meted out for
other equally culpable defendants.7 There is no need to dwell on the constitutional
claim, as it is untenable.8 The majority does not even address it and therefore,
presumably, rejects it by implication. But the majority does accept the statutory claim.

5
See Appellant Br. at 118-19 (Dec. 12, 2005) (alleging a “lingering doubt as to whether the
offense was committed within the exclusive maritime and territorial jurisdiction of the United States”);
Appellant Reply Br. at 42 (Dec. 12, 2005) (asserting that “there remained residual doubt about federal
jurisdiction”); Supp. Appellant Br. at 45 (Dec. 14, 2009) (asserting that “there remained residual doubt
about federal jurisdiction”).
6
See Appellant Br. at 119 (Dec. 12, 2005) (alleging that “an arbitrary 227 feet made the difference
between life and death” based on a “geographical happenstance that had this offense occurred outside the
exclusive maritime and territorial jurisdiction of the United States [and therefore in Michigan jurisdiction],
no death penalty could be imposed under the constitution of the State of Michigan”); Appellant Reply Br.
at 43 (Dec. 12, 2005) (arguing that “had the body been discovered 228 feet north of where it was[,]
execution would not have been a penalty [that] jurors could have considered [so] [t]his is the ultimate
‘arbitrary’ factor barring the death penalty under federal law”).
7
See Appellant Br. at 120 (Dec. 12, 2005) (referring in a parenthetical to a case concerning
“equally or more culpable defendants [who] would not face the death penalty”).
8
In Lockett v. Ohio, 438 U.S. 586, 604 (1978), a plurality of the Court announced that “the Eighth
and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a
mitigating factor, [1] any aspect of a defendant’s character or record and [2] any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death.” The Lockett plurality
reiterated: “Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Id.
at 604 n.12. The Court adopted this statement as a holding in Eddings v. Oklahoma, 455 U.S. 104, 110
(1982); accord Kordenbrock v. Scroggy, 919 F.2d 1091, 1102 (6th Cir. 1990) (en banc).
The fact that Michigan law does not allow for the death penalty is not an aspect of Gabrion’s
character or personal record, nor is it a circumstance of the offense (i.e., the planning and murdering of
Rachel Timmerman and her daughter). Gabrion argues that he has a constitutional right to present
mitigating evidence and argument to the sentencing jury on theories of residual doubt about federal
jurisdiction, arbitrariness due to the location of the body, and disproportionality to other equally culpable
defendants. But these arguments lack constitutional bases.
In Franklin v. Lynaugh, 487 U.S. 164, 174 (1988), a plurality of the Court said: “Our edict [in
Lockett and Eddings] in no way mandates reconsideration by capital juries, in the sentencing phase, of their
‘residual doubts’ over a defendant’s guilt. Such lingering doubts are not over any aspect of petitioner’s
‘character,’ ‘record,’ or a ‘circumstance of the offense.’” This reasoning is even more compelling when
applied to residual doubt about jurisdiction.
In Oregon v. Guzek, 546 U.S. 517, 526 (2006), the Court considered (and rejected) the “residual
doubt” theory in a different way and its reasoning can be applied to the arbitrariness argument that Gabrion
proposes here. To analogize Guzek: Sentencing traditionally concerns how, not where, the defendant
committed the crime, but the evidence and argument at issue here — the location of the body — concern
only where, not how, he did so. The jury decided this issue — where Gabrion committed the crime —
during the guilt phase. This evidence and argument would thereby attack a previously determined matter
and the law typically discourages collateral attacks of this kind. See id.
In Pulley v. Harris, 465 U.S. 37, 50 (1984), the Court held that comparative proportionality
review is not constitutionally required. “Any capital sentencing scheme may occasionally produce
aberrational outcomes.” Id. at 54.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 63

The majority finds that the district court erred by “fail[ing] to consider the
specific language of the statute allowing ‘any mitigating factor,’” in the FDPA,
§§ 3592(a) and 3593(c), and relies on United States v. Davis, 132 F. Supp. 2d 455 (E.D.
La. 2001), for the proposition that the phrase “any mitigating factor” contains “no
qualification or limitation,” and therefore the defendant is entitled to present or argue
“any mitigating factor . . . period.” Id. at 464 (ellipses in original; internal quotation
marks omitted). The majority then defines mitigating factors as anything that “could
conceivably make a juror question” the appropriateness of imposing the death penalty
in a given case. By this reading of “any” and “mitigating”, the majority concludes that
“[t]he phrase ‘any mitigating factor’ plainly includes information about Michigan’s
policy against the death penalty.”

But such a broad view is not universally held. At least one member of the
Supreme Court would reject this view. See Graham v. Collins, 506 U.S. 461, 490 (1993)
(Thomas, J., concurring) (“By requiring that sentencers be allowed to ‘consider’ all
‘relevant’ mitigating circumstances, we cannot mean . . . that circumstances are
necessarily relevant for constitutional purposes if they have any conceivable mitigating
value.”). We appear to have rejected such a broad view in this Circuit as well. In Owens
v. Guida, 549 F.3d 399, 419-20 (6th Cir. 2008), we rejected the defendant’s contention
that the proposed mitigating evidence9 was “automatically relevant” and admissible
simply because she “wishe[d] to present” it. The Owens dissent argued that because the
evidence could have persuaded the jury to spare the defendant’s life, it clearly “fall[s]
within the meaning of ‘any relevant mitigating evidence,’” id. at 431 (Merritt, J.,
dissenting), but the majority expressly rejected that argument, id. at 422. The Seventh
Circuit has also rejected such a broad view. “A mitigating factor is a factor arguing
against sentencing this defendant to death; it is not an argument against the death penalty

9
Owens sought to admit evidence in mitigation that the prosecutor had offered her a conditional
plea agreement for a life sentence (later withdrawn), and that she had offered to plead guilty. Owens, 549
F.3d at 403.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 64

in general.” United States v. Johnson, 223 F.3d 665, 675 (7th Cir. 2000).10 “This is
apparent from the fact that the list of mitigating factors in the [FDPA] does not include
the harshness or ugliness or (some would say) the immorality of the death penalty, but
only factors specific to the defendant. See 18 U.S.C. § 3592(a), and in particular
subsection (a)(8) . . . .” Id.

The counter-argument, which stems from Davis as well, is that the FDPA is
“substantially broader than what the Supreme Court has declared to be the minimal
requirements under the Constitution.” Davis, 132 F. Supp. 2d at 464. That is, by using
the phrase “including the following” in § 3592(a), Congress made the list illustrative not
exclusive, and included the Supreme Court’s constitutional minimum (codified as
subsection § 3592(a)(8) in the non-exclusive list) as merely one sub-category of “any
mitigating factor,” of which there are others yet unarticulated. Id. This view renders
Graham and Owens inapposite, inasmuch as both were predicated on Lockett and
Eddings (i.e., the constitutional minimum), and directly refutes the reasoning of Johnson.

There are certainly courts that subscribe to this “broad view” of admissibility
(i.e., the Davis view) — at least five district courts at last count.11 But there are also
courts that do not. The most thorough critique of Davis’s broad view is presented in
United States v. Taylor, 583 F. Supp. 2d 923, 933 (E.D. Tenn. 2008), an FDPA case in
which the defendant sought to admit evidence about other federal capital cases in which
other murderers were not sentenced to death, in an effort to persuade the sentencing jury

10
Accord Schmitt v. Kelly, 189 F. App’x 257, 264 n.5 (4th Cir. 2006) (quoting Johnson); United
States v. Caro, 483 F. Supp. 2d 513, 520 (W.D. Va. 2007); United States v. Edelin, 180 F. Supp. 2d 73,
76 (D.D.C. 2001).
11
See, e.g., United States v. Moonda, No. 1:06-cr-00395, 2007 WL 2071924 at *1 (N.D. Ohio
July 13, 2007); United States v. Bodkins, No. 4:04-cr-70083, 2005 WL 1118158 at *8-9 (W.D. Va. May
11, 2005); United States v. Honken, 378 F. Supp. 2d 1040, 1041 (N.D. Iowa 2004); United States v.
Sampson, 335 F. Supp. 2d 166, 193-98 (D. Mass. 2004) (adopting the broad view of admissibility, but
nonetheless excluding the proffered evidence because it would mislead jury and confuse the issues); United
States v. Bin Laden, 156 F. Supp. 2d 359, 370 (S.D.N.Y. 2001).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 65

that sentencing him to death would be disproportionate by comparison.12 The defendant
“argue[d] [that] the FDPA is broader than the Constitution in its consideration of
mitigating factors,” id. at 934, and the district court acknowledged that other district
courts had accepted that broad view of admissibility, id. (quoting at length United States
v. Sampson, 335 F. Supp. 2d 166, 194-95 (D. Mass. 2004) (quoting Davis, 132 F. Supp.
2d at 463-64)). But the district court in Taylor also recognized that “the Seventh Circuit
[has] construed the statute more narrowly,” id. (citing Johnson, 223 F.3d at 675), and
proceeded to “engage in statutory construction,” id.:

Applying the traditional tools of statutory construction, the [c]ourt
concludes the Seventh Circuit’s interpretation is more persuasive. The
[c]ourt begins by considering the language of the statute as a whole. One
provision of a statute is not considered in isolation or in a vacuum.
Rather, courts must consider a statutory provision’s phraseology in light
of the overall structure and purpose of the legislation. Thus, the [c]ourt
must make every effort to interpret provisions so that other provisions in
the statute are not rendered inconsistent, superfluous, or meaningless.
First, the statutory construction canon ejusdem generis applies
here: ‘Where a statute lists specific things followed by a more general
one, the canon of ejusdem generis provides guidance. Under ejusdem
generis, we attribute the same characteristic of discreteness shared by all
the preceding items to the term in question.’ Applying this canon shows
that the first seven factors are similar to the eighth factor. Although the
list of seven specific factors is illustrative, not exhaustive, the description
of ‘Other factors’ does not allow for factors of an entirely different nature
from the illustrated factors. All the illustrated factors concern the
defendant or the circumstances of the offense, including the culpability,
participation, and punishment of other defendants. Applying ejusdem
generis, it is evident that the characteristics of the enumerated mitigating
factors are similar to the description of ‘Other factors’ as those
concerning a defendant’s background, record, or character[,] or any other
circumstance of the offense that mitigate against imposition of the death
sentence.

12
The specific evidence that the defendant sought to admit was “the testimony of Kevin McNally
regarding the dispositions of other potential capital cases and how they compare to the instant case.”
Taylor, 583 F. Supp. 2d at 927. McNally is an attorney with the Federal Death Penalty Resource Counsel
Project. Id. at 927 n.2. McNally is also appellant Gabrion’s present counsel of record in this case and the
signatory on the briefs submitted in this appeal.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 66

Second, Defendant’s reading of the statute would render the
inclusion of ‘Other factors’ superfluous. ‘Other factors’ is a catch-all
provision. If the statute permitted other factors beyond what is contained
in ‘Other factors,’ the statute would contain a broader description than
what is contained in ‘Other factors.’ Under Defendant’s reading, the
statute contains an implied ‘other factors’ in addition to the ‘Other
factors’ actually listed, thus rendering ‘Other factors’ superfluous.
Third, the [c]ourt finds misplaced the emphasis on the word ‘any’
in ‘any mitigating factors.’ Contrary to Defendant’s assertion, the
FDPA’s use of the word ‘any’ does not indicate [that] Congress intended
to greatly expand the definition of mitigating factors over that required
by the Constitution. The statutory language of ‘any mitigating factor,’
18 U.S.C. § 3592(a), is the same as the Constitutional requirement of
‘any relevant mitigating factor’ [in Lockett and Eddings]. The FDPA’s
exclusion of the word ‘relevant’ has no bearing because elsewhere the
statute makes clear non-relevant information is inadmissible. 18 U.S.C.
§ 3593(c).
Based on these considerations, the [c]ourt concludes [that] the
mitigating factors required by the FDPA are not as broad as Defendant
contends, but are rather in line with the seven enumerated factors and the
description of ‘Other factors’ contained in the statute.

Id. at 934-35 (citations and quotation marks omitted). The Taylor district court therefore
concluded that “such testimony [wa]s inadmissible and is not proper for presenting to
a jury.”13 Id. at 933.

Circuit courts have rejected Davis’s broad view as well. In United States v.
Sampson, 486 F.3d 13, 44-45 (1st Cir. 2007), the defendant sought to admit evidence
“that numerous other federal defendants convicted of multiple murders had not been
sentenced to death”14 and argued that the “trial court may not restrict the presentation
of relevant evidence offered in mitigation of a possible death sentence” (i.e., the broad
view). The First Circuit disagreed, saying: “This argument cannot be literally true; if
it were, a capital defendant would have an unrestricted license to introduce the most

13
This case is presently pending on appeal in the Sixth Circuit as United States v. Taylor, No. 09-
5517.
14
This is the same evidence — i.e., testimony by Kevin McNally — that the defendant sought
to introduce in Taylor, 583 F. Supp. 2d at 933, discussed supra note 12.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 67

confusing or misleading evidence as long as it was marginally relevant. We reject so
absolutist a view.” Id. at 45; accord United States v. Purkey, 428 F.3d 738, 756 (8th Cir.
2005) (“The [FDPA] erects very low barriers to the admission of evidence at capital
sentencing hearings . . . [b]ut this does not mean that the defense has carte blanche to
introduce any and all evidence that it wishes.”); see also United States v. Mitchell, 502
F.3d 931, 991 (9th Cir. 2007) (limiting relevant mitigating evidence to “evidence which
tends logically to prove or disprove some fact or circumstance which a fact-finder could
reasonably deem to have mitigating value” (quotation marks omitted)).

In United States v. Caro, 597 F.3d 608, 634-35 (4th Cir. 2010), the defendant
sought to admit “a letter he had written to the government offering to plead guilty” but
the district court excluded the letter as irrelevant. Caro argued that “the letter was
admissible under § 3593(c) because it supported the mitigating factor of acceptance of
responsibility,” but the Fourth Circuit rejected this argument and held that the district
court had not abused its discretion by excluding it. Id. at 635.

In the district court, Caro had sought a jury instruction on “residual doubt” as a
mitigating factor and cited Davis, 132 F. Supp. 2d at 467-68, for authority. United States
v. Caro, 483 F. Supp. 2d 513, 518 n.7 (W.D. Va. 2007). The Caro district court
expressly rejected this argument:

Under the system envisioned by the Davis court, therefore, a capital
defendant is found guilty twice: first in the guilt phase and then if the
defendant desires, the jury can revisit his guilt in the sentencing phase.
The Supreme Court has never required this two-stage guilt determination
and Congress did not so provide in the FDPA. Hence, the Davis
argument lacks sufficient support.

Id. The court went on to explain:

Because the [Supreme] Court has never found that a defendant
has a constitutional right to a residual doubt instruction, any entitlement
to this instruction must come from the applicable capital statute. The
FDPA provides that ‘in determining whether a sentence of death is to be
imposed on a defendant, the finder of fact shall consider any mitigating
factor.’ 18 U.S.C.A. § 3592(a). The statute then lists seven mitigating
Nos. 02-1386/1461/1570 United States v. Gabrion Page 68

factors. While it is true that this list is not meant to be exhaustive, the
absence of residual doubt as a statutory mitigating factor is instructive.
The government argued that Congress at the time the FDPA was enacted,
was aware of the holding in Franklin that residual doubt is not a
constitutionally required mitigating circumstance and, had it elected to
do so, could have included language in the statute expressly authorizing
the consideration of residual doubt.

Id. at 519-20 (certain citations, editorial marks, and quotation marks omitted).

Therefore, the district court in Caro concluded, “the words of the FDPA
suggest[] that residual doubt is not a proper mitigating factor.” Id. at 520. Caro also
sought a jury instruction on “life without the possibility of parole” as a mitigating factor
and the district court rejected that as well, quoting Johnson, 223 F.3d at 675 (“A
mitigating factor is a factor arguing against sentencing this defendant to death; it is not
an argument against the death penalty in general.”), concluding that “this factor is wholly
irrelevant to these considerations.” Id. Caro did not appeal these issues.

The case most closely analogous case to Gabrion’s is United States v. Higgs, 353
F.3d 281, 289 (4th Cir. 2003), which concerned the kidnapping and murder of three
women in the Patuxent National Wildlife Refuge, located in Prince George’s County,
Maryland. Higgs and his accomplice enticed the women to this secluded location with
the premeditated purpose of murdering them. Id. at 290. Higgs drove the women in his
car, supplied the murder weapon, and orchestrated the murder, but his accomplice
actually shot and killed them while Higgs waited in the car. Id. Although located in
Maryland, the Patuxent National Wildlife Refuge is federal property under federal
jurisdiction, id., so the federal prosecutor charged Higgs under federal statute, tried the
case in federal court, and sought the death penalty, id. at 294. The jury returned guilty
verdicts on all charges. Id.

At sentencing, Higgs’s counsel sought to argue “to the jury, as a mitigating
circumstance, that Higgs would not have been eligible for the death penalty if the
murders had occurred within the jurisdiction of the State of Maryland” because, “under
Maryland law, the death penalty may only be imposed on the ‘triggerman’ in cases such
Nos. 02-1386/1461/1570 United States v. Gabrion Page 69

as this,” id. at 328 — suggesting that a death sentence would be disproportionate to the
sentences of other similarly situated defendants in Maryland. Higgs’s counsel also
sought to argue that “because the murders took place in an area where Maryland had an
easement over federal property, [Higgs] could not have known that he was on federal
land when he committed the murders,” id. — suggesting residual doubt or that
imposition of the death penalty would be arbitrary under the circumstances.15 The
district court excluded this evidence and associated argument. Id. On appeal, the Fourth
Circuit affirmed, explaining:

Section 3592(a) provides that ‘in determining whether a sentence
of death is to be imposed on a defendant, the finder of fact shall consider
any mitigating factor.’ In addition to seven enumerated factors, the
statute requires consideration of ‘other factors in the defendant’s
background, record, or character or any other circumstances of the
offense that mitigate against imposition of the death sentence.’ Higgs
asserts that his unknowing presence within federal jurisdiction, as
opposed to the jurisdiction of the State of Maryland where he would have
been ineligible for a death sentence, is a circumstance of the offense that
mitigates against imposition of the death sentence. We disagree.
...
An assertion that the death penalty is improper in one jurisdiction
because it is not allowed in another is, at bottom, a reflection of the
debate surrounding the propriety of the death penalty, which is a matter
of policy for the legislative branch. As such, it was not error to refuse to
submit it as a mitigating factor in this case.

Id. (citations and editorial marks omitted).

Higgs committed a murder on federal property in Maryland. Gabrion committed
a murder on federal property in Michigan. Higgs would not have been subject to the
death penalty under Maryland law. Gabrion would not have been subject to the death
penalty under Michigan law. Both sought to argue this disparity to their respective

15
This was, in fact, his specific argument to the Fourth Circuit. See Brief of Appellant, United
States v. Higgs, No. 01-3, 2002 WL 33958104 at 143 (4th Cir. Aug. 21, 2002) (“The fact that these
murders occurred on a state easement over federal property as opposed to property owned by the state of
Maryland and under Maryland’s jurisdiction is a circumstance of the offense and a totally arbitrary factor
that exposed Higgs to the death penalty.”).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 70

sentencing juries and both district courts refused to permit the argument. It is not easy
to distinguish the two cases — or the two defendants’ arguments. Both suggest residual
doubt, arbitrariness, and disproportionality based on the disparity between state and
federal law.

The Fourth Circuit held that Maryland law was not a circumstance of the offense
or even a mitigating factor. Higgs, 353 F.3d at 328; cf. Taylor, 583 F. Supp. 2d at 943
(“France’s policy on capital punishment does not make [a capital] [d]efendant [in the
United States] more or less deserving of a death sentencing.”). This same analysis is
appropriate in the present case.

Gabrion’s counsel sought to argue to the jury, as a mitigating circumstance, that
Gabrion would not have been eligible for the death penalty if the murder had occurred
228 feet to the north, i.e., within the jurisdiction of the State of Michigan, because
Michigan does not have the death penalty. The majority holds that the FDPA,
§§ 3592(a) and 3593(c), required the district court to admit this evidence and argument
without limitation, and relies on the “broad view” (i.e., the Davis view) of admissibility.
But, as the foregoing discussion demonstrates, it appears that the greater weight of
authority is against Davis’s broad view. And I note additional obstacles.

The inflexibility of such an absolute proposition appears to render it limitless.16
After today, Michigan’s law against the death penalty is a mitigating factor. But suppose
Michigan had, not a law, but merely pending legislation to abolish the death penalty —
must a court admit that as a mitigating factor? What about a pending Supreme Court
case or a campaign promise? The Pope condemns the death penalty — is that a
mitigating factor to be argued to the sentencing jury? Read generously, this broad view
of admissibility entitles a capital defendant’s counsel to present evidence or argument
no matter how tenuous, tangential, or even speculative. The only limit is counsel’s own

16
In fact, § 3593(c) contains a stated limitation: “information may be excluded if its probative
value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the
jury.” But this limitation does not fit — nor is it anywhere to be found in — the Davis view or the
majority’s rendition of it.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 71

creativity — or lack of creativity. And if counsel may present such argument, no matter
how ineffective or unappealing to jurors, will there come a day when we hold counsel
ineffective for failing to do so?

Furthermore, this particular argument — about Michigan law — appears to be
an endorsement of jury nullification of federal law.17 Cf. Hall v. Washington, 106 F.3d
742, 750 (7th Cir. 1997); New Mexico v. Clark, 990 P.2d 793, 806 (N.M. 1999). We
have held that courts are not to endorse jury nullification. See, e.g., United States v.
Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988) (“A jury’s ‘right’ to reach any verdict it
wishes does not, however, infringe on the duty of the court to instruct the jury only as
to the correct law applicable to the particular case.”); see also United States v. Powell,
955 F.2d 1206, 1213 (9th Cir. 1992). In fact, “it is the duty of juries in criminal cases
to take the law from the court, and apply that law to the facts as they find them to be
from the evidence.” Merced v. McGrath, 426 F.3d 1076, 1079 (9th Cir. 2005) (citing
Sparf v. United States, 156 U.S. 51, 102 (1895)); accord United States v. Avery, 717 F.2d
1020, 1027 (6th Cir. 1983). Gabrion’s counsel would urge the jurors to disregard federal
law in favor of Michigan law and decline to impose the death penalty because it would
be unavailable under Michigan law. The majority holds that the court must allow this.
And yet, if a juror at voir dire expressed this intention, the prosecution could have that
juror removed for cause. See Wainwright v. Witt, 469 U.S. 412, 426 (1985) (jurors may
be removed for cause at the voir dire stage of a capital trial if they express an inability
or unwillingness “to faithfully and impartially apply the law”).

17
There are those who hold a different view of the argument that deference must be given to local
policy preferences and “contemporary community values.” See, e.g., John Brigham, Unusual Punishment:
The Federal Death Penalty in the United States, 16 Wash. U.J.L. & Pol’y 195, 214 (2004) (praising “the
authority of the United States to apply its criminal law in the face of local opposition as a matter of
principle, else we would have no federal civil rights law” (quotation marks omitted)); Rory K. Little, The
Federal Death Penalty: History and Some Thoughts About the Department of Justice’s Role, 26 Fordham
Urb. L.J. 347, 475 (1999) (recognizing “the past courageous role of some U.S. Attorneys in enforcing
federal civil rights laws in the face of local antipathy”); United States v. Fell, 571 F.3d 264, 270 (2d Cir.
2009) (Raggi, J., concurring in the denial of en banc rehearing) (arguing that this proposition would “be
rejected out of hand if the [issue] were opposition to the sorts of civil rights, environmental, or gun
trafficking requirements that are enforced through federal criminal law in ways not always mirrored in state
legislation”).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 72

Finally, this approach will create an inconsistency in the application of the FDPA
when Congress’s intent was to ensure uniformity. See Rory K. Little, The Federal Death
Penalty: History and Some Thoughts About the Department of Justice’s Role,
26 Fordham Urb. L.J. 347, 434 (1999) (“While one might possibly argue in favor of a
federal death penalty regime that lacks national uniformity — one that would permit
similar federal crimes and defendants to receive life or death dependant on the district
and regionalized, cultural differences — that does not appear to be the statute Congress
has enacted nor is it the stated policy of the Attorney General.”); see also United States
v. Acosta-Martinez, 252 F.3d 13, 20 (1st Cir. 2001) (“There is little reason to think that
the federal interest in defining the punishment for federal crimes would have been
considered by Congress to be a matter for local veto power.”). If Congress had intended
to treat the non-death-penalty jurisdictions18 differently under the FDPA, it certainly
could have done so. But it did not.

For the foregoing reasons, I cannot join the majority’s adoption of the Davis
broad view of admissibility. I would read § 3592(a) and § 3593(c) as having the same
limits as the Lockett and Eddings line of cases. See United States v. Rodriguez, 581 F.3d
775, 815 (8th Cir. 2009) (“The Justices’ reasons for declining to recognize a
constitutional rule apply with equal force [to] the FDPA.”). I would hold that these
provisions allow a sentencing court to limit the evidence or argument to be offered in
mitigation, and that the district court properly did so in this case.

18
There are currently 18 jurisdictions without the death penalty: Alaska, Hawaii, Illinois, Iowa,
Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode
Island, Vermont, West Virginia, Wisconsin, Puerto Rico, and the District of Columbia. At last count, there
were eight federal death-row inmates from these non-death-penalty jurisdictions: Carlos Caro (West
Virginia), Donald Fell (Vermont), Marvin Gabrion (Michigan), Dustin Honken (Iowa), Angela Johnson
(Iowa), Ronald Mikos (Illinois), Alfonso Rodriguez (North Dakota), and Gary Sampson (Massachusetts).
See http://www.deathpenaltyinfo.org/federal-death-row-prisoners.
Nos. 02-1386/1461/1570 United States v. Gabrion Page 73

II.

At sentencing, Gabrion asked for a jury instruction concerning the weighing of
aggravating and mitigating factors, which would have required the jury “to decide
whether you are unanimously persuaded beyond a reasonable doubt that the aggravating
factors proved so outweigh any mitigating factors that justice cannot be served absent
a sentence of death.” The court declined and instead instructed the jury that it need only
find that the aggravating factors “sufficiently outweigh” the mitigating factors, which
is language quoted directly from the statute. See § 3593(e).

On appeal, Gabrion claims that this instruction denied him due process, in
violation of the Fifth and Eighth Amendments to the Constitution. The majority agrees
and holds that a sentencing court must instruct the penalty-phase jury that it may not
impose the death penalty unless it finds beyond a reasonable doubt that the aggravating
factors outweigh the mitigating factors. The majority recognizes that this is a unique
view among the Circuits19 and, undeterred, offers a thorough rebuttal of those other
circuits’ reasoning. And the majority is, of course, entitled to engage in that exercise.
But we are not at liberty to rebut the Supreme Court — we are bound by its decisions.

In Kansas v. Marsh, 548 U.S. 163, 165-66 (2006), the Court was asked to
consider the constitutionality of a statute that required the imposition of the death penalty
“when the sentencing jury determines that aggravating evidence and mitigating evidence
are in equipoise” — that is, when the aggravating factors do not “outweigh” the
mitigating factors at all, but are in equal balance. In reaching its conclusion — that the
scheme is constitutional — the Court explained that it has “never held that a specific
method for balancing mitigating and aggravating factors in a capital sentencing
proceeding is constitutionally required.” Id. at 175 (quoting Franklin v. Lynaugh, 487

19
Five Circuits have rejected this view. United States v. Fields, 516 F.3d 923, 950 (10th Cir.
2008); United States v. Mitchell, 502 F.3d 931, 993 (9th Cir. 2007); United States v. Sampson, 486 F.3d
13, 31 (1st Cir. 2007); United States v. Fields, 483 F.3d 313, 345-46 (5th Cir. 2007); United States v.
Purkey, 428 F.3d 738, 748 (8th Cir. 2005).
Nos. 02-1386/1461/1570 United States v. Gabrion Page 74

U.S. 164, 179 (1988) (plurality opinion) (citing Zant v. Stephens, 462 U.S. 862, 875–76
n. 13 (1983))).20

Consequently, I must respectfully dissent from the majority’s holding today. I
would hold that because the Constitution does not dictate the manner in which death-
penalty aggravating and mitigating factors are to be weighed, the district court did not
violate the Constitution by instructing the jury in accordance with the language of the
statute.

III.

In summary, I would conclude that the district court was not obliged to admit
evidence or argument concerning Michigan’s abolition of the death penalty; nor was it
required to instruct the jurors that, in order to impose the death penalty, they must find
“beyond a reasonable doubt” that the aggravating factors outweighed the mitigating
factors. Therefore, I respectfully dissent from these two portions of the majority’s
decision. I otherwise concur in the majority’s judgment.

20
Indeed, the Constitution would allow “a scheme requiring the State to prove by a mere
preponderance of the evidence that the aggravators outweigh the mitigators.” Marsh, 548 U.S. at 187 n.2
(Scalia, J., concurring).