United States v. Alejandro Umana

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-6

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALEJANDRO ENRIQUE RAMIREZ UMAÑA, a/k/a Wizard, a/k/a Lobo,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:08-cr-00134-RJC-2)

Argued: January 28, 2014 Decided: April 23, 2014

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Agee joined. Judge Gregory
wrote a dissenting opinion.

ARGUED: Vincent James Brunkow, FEDERAL DEFENDERS OF SAN DIEGO,
INC., San Diego, California, for Appellant. Adam Christopher
Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Zandra L. Lopez, Janet C.
Tung, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego,
California; Malcom Ray Hunter, Jr., Chapel Hill, North Carolina;
David Weiss, COPELEY JOHNSON & GRONINGER PLLC, Durham, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:

Alejandro Enrique Ramirez Umaña shot and killed two

brothers, Ruben and Manuel Salinas, at point-blank range in a

restaurant in Greensboro, North Carolina, because Umaña

perceived that the brothers had insulted Umaña’s gang, Mara

Salvatrucha, commonly known as MS-13. A jury convicted Umaña of

all counts for which he was charged, including two counts

charging him with murder in aid of racketeering, in violation of

18 U.S.C. § 1959(a)(1), and two counts charging him with

committing murder while using a firearm during and in relation

to a crime of violence, in violation of 18 U.S.C. § 924(c) and

(j)(1). The convictions on those charges subjected Umaña to a

maximum sentence of death.

Following the verdict of conviction, the same jury returned

a verdict that Umaña was death eligible on the four capital

counts, as provided in 18 U.S.C. §§ 3591-3596. The jury found

that two statutory aggravating factors applied: (1) that Umaña

had created a grave risk of death to one or more persons in

addition to each victim, and (2) that he had killed more than

one person in a single criminal episode.

Finally, in the sentence selection phase of trial, the jury

imposed the death penalty, finding that four additional

nonstatutory aggravating factors applied: (1) that Umaña had

killed the two brothers to protect and maintain the reputation

2
of MS-13 and to advance his position in that gang; (2) that

Umaña had caused injury and loss to the brothers’ family and

friends; (3) that Umaña had earlier intentionally committed

several murders in Los Angeles; and (4) that Umaña posed a

continuing and serious threat to the lives and safety of others,

as evidenced by his lack of remorse, his allegiance to MS-13,

his lack of rehabilitation, and his pattern of violence. The

jury also found several mitigating factors. After weighing the

aggravating and mitigating factors, the jury imposed the death

penalty.

On appeal, Umaña challenges every phase of the proceedings

below. After carefully considering each of Umaña’s arguments,

we reject them and affirm the convictions and sentence.

I

Umaña, who was born in El Salvador in the early 1980s,

illegally entered the United States in 2004 to live in Los

Angeles. At the time, he had been a member of the MS-13 gang

for several years, having joined in 2001, while he lived in El

Salvador.

MS-13 was formed in Los Angeles in the 1980s by immigrants

from Central America, predominantly El Salvador. To gain

membership into MS-13, an individual must submit to a 13-second

beating. The gang uses violence and extortion to gain and

3
control territory, and for a member to build his reputation in

MS-13, he has to be ready to attack rival gang members or anyone

else who disrespects the gang. MS-13 punishes betrayal by

putting the “green light” on the member, which constitutes an

order that he be targeted for death.

While Los Angeles continues to be the mecca of MS-13

activity, MS-13 has become a transnational organization, with

groups, or “cliques,” across the United States, in Canada, and

in Central America.

Umaña’s activities in Los Angeles

During the sentence selection phase of Umaña’s trial, the

government introduced evidence implicating Umaña in several Los

Angeles shootings: one on Fairfax Street on July 27, 2005,

where two persons were shot and killed, and one in Lemon Grove

Park on September 28, 2005, where a group of four persons were

shot at and one was killed and two were injured.

On the occasion of the Fairfax Street murders, Umaña was in

the passenger seat of a car with several other MS-13 members.

The car pulled up alongside two males walking down the street,

and the two groups began flashing gang signs at one another.

The two males on the street were graffiti artists, or “taggers,”

and they made hand gestures that were perceived as challenging

MS-13. Some or all of Umaña’s group exited the car to confront

4
the taggers. There were conflicting accounts about what

happened next. Umaña’s fellow MS-13 members claimed that Umaña

shot the two taggers, but two civilian eye witnesses claimed

that the driver of the car shot them.

On the occasion of the Lemon Grove Park murder, two men

approached a group of four who had just finished playing

basketball and were sitting on bleachers in the park. Without a

word, the two men took out guns and opened fire on the group.

One of the four basketball players was killed, while two others

were wounded. The fourth, Freddie Gonzalez, who was apparently

the target of the attack, escaped uninjured. Several pieces of

evidence linked Umaña to this murder. First, Gonzalez

identified Umaña in a photo lineup and confirmed the

identification in court, although he admitted to some

uncertainty. Also, Umaña admitted to driving the shooters to

the basketball court, although he denied being a shooter

himself. Finally, ballistics matched the gun used in the

Fairfax Street murders with the gun used in the Lemon Grove Park

murder, and there was no evidence that anyone but Umaña was

present at both crime scenes.

Umaña’s New York activities

Umaña left Los Angeles and, by the summer of 2007, was

residing in New York. By this time, he had built up a

5
substantial reputation within MS-13. One witness recalled that

Umaña, who had taken on the moniker of “Wizard,” was treated by

his fellow gang members like he was “big time.”

In the fall of 2007, an MS-13 leader in New York directed

Umaña to travel to Charlotte, North Carolina, as the Charlotte

MS-13 cliques had been experiencing significant infighting.

Because of his experience and exposure to gang life in Los

Angeles, Umaña was ordered to “set them straight” in North

Carolina. This was confirmed by a Charlotte-based MS-13 member

who stated that it was expected that Umaña would “take control”

because he knew “how to run a gang.”

Umaña’s North Carolina activities

When he arrived in North Carolina, Umaña convened a

meeting, during which he instructed the MS-13 members as to how

they should be extorting money, selling drugs, and stealing

cars. He inspected the gang members’ guns; he emphasized to

them the importance of respect; and he told them to merge the

Charlotte cliques together. Over the course of the following

months, Umaña conducted numerous meetings with MS-13 members in

Charlotte.

On December 8, 2007, Umaña was in Greensboro, North

Carolina, having dinner with several fellow MS-13 members at Las

Jarochitas, a Mexican food restaurant. Also at the restaurant

6
were Ruben and Manuel Salinas, regulars at Las Jarochitas, who

were eating and drinking with several other men. The Salinas

brothers were not affiliated with any gang.

Umaña and his associates were sitting near the jukebox, and

they began selecting songs. This upset Manuel Salinas, who

liked to listen to “corrida,” a type of Mexican country music,

whenever he visited Las Jarochitas. As one witness reported,

the two groups then began “arguing and kind of like pushing each

other.” Perhaps fearing that the situation was getting out of

hand, Manuel Salinas tried to calm things down by buying the

MS-13 members a bucket of beers. The MS-13 members, however,

rebuffed the peace offering, refusing to drink or even

acknowledge the beers.

A concerned waitress asked the MS-13 members to leave the

restaurant. As they were filing out, the groups were

“exchanging words,” and Ruben Salinas told the MS-13 members

that he “wasn’t scared of them.” The gang members responded

that Ruben Salinas should not “mess with them” because “they

were from . . . MS.” Ruben retorted that the gang was “fake to

him.”

All of the MS-13 members left the restaurant except for

Umaña, who stayed behind. Upon realizing that Umaña was still

in the restaurant, an MS-13 member named Spider came back

inside. When the waitress tried to pull Umaña to the door,

7
Spider grabbed her and told her not to touch him. It was at

this point that Umaña pulled out his gun and pointed it at Ruben

and Manuel, but he did not shoot right away. He held his gun

sideways, while Manuel and Ruben stood motionless. No one said

anything. After some time elapsed, perhaps as much as a minute,

Umaña fired five shots at the brothers. Ruben received a

gunshot wound to the chest, and Manuel was shot in the head.

Both were pronounced dead at the scene of the crime. A third

individual was shot in the shoulder and survived.

Witnesses identified Umaña as the shooter, and Umaña does

not contest that he pulled the trigger.

Immediately after the murders, Umaña’s group contacted a

fellow MS-13 member, who had been serving as a confidential

informant, to help them get back to Charlotte that night. The

informant met Umaña and the other gang members at an IHOP

restaurant between Charlotte and Greensboro. Umaña switched

cars and rode with the informant back to Charlotte. During the

ride, he was cocking and uncocking his gun and discussing its

bullets. Their first stop was a nightclub and nearby taco stand

outside of Charlotte, where Umaña told the confidential

informant to smell the gun, because it smelled like gunpowder

from being fired. Umaña also told the informant that he was

going to “pee on [his] hands” to get rid of the gunpowder.

Several other MS-13 members had congregated at the taco

8
restaurant. One MS-13 member later recounted Umaña’s

explanation for why he had committed the murders -- “[Umaña]

said they insulted the MS-13. And he was doing it not only

because of him, because he was doing it because of us, too.” Of

the third victim, Umaña lamented that he “didn’t kill that son

of a bitch.” When asked about the prospect of being pulled over

by the police with the murder weapon, he responded, as recorded

on tape, that the officer would be on the wrong end of his gun,

as “she is always close by.”

Charlotte police arrested Umaña at an MS-13 member’s house

on December 12, 2007. The police found the murder weapon in the

sofa where Umaña was sitting. Umaña later told other MS-13

members that the police were “lucky” because he had been “trying

to grab for his gun.”

Procedural history

While Umaña was being held in custody by North Carolina

authorities, several Los Angeles police detectives interrogated

him about the shootings that had occurred in Los Angeles. Umaña

denied committing those murders, although he did admit to being

present or nearby when they occurred.

Two months later, a federal grand jury in Charlotte, in the

Western District of North Carolina, indicted Umaña for the

murders committed in Greensboro, which is in the Middle District

9
of North Carolina. Umaña filed a motion to dismiss the

indictment for improper venue, which the district court denied.

He also requested a hearing pursuant to Atkins v. Virginia, 536

U.S. 304 (2002), which forbids execution for mentally retarded

defendants. The court granted the Atkins hearing and found that

Umaña had failed to prove his disability by a preponderance of

the evidence.

While in prison awaiting trial, Umaña maintained contact

with MS-13 members. He wrote lengthy letters expressing his

continuing loyalty to the gang and his hatred for his enemies.

His letters also gave orders to execute rivals and intimidate

potential witnesses against him. While the letters were

encoded, the FBI broke the code.

The case proceeded to trial. On the first day of jury

selection, U.S. Marshals frisked Umaña and discovered that he

had tied a four-inch metal blade (in a paper sheath) to his

penis. And when the confidential informant testified during

trial, Umaña flashed MS-13 gang signs with his hands and, as the

informant was leaving, said in Spanish, “[Y]our family’s going

to pay you mother--.” This threat took place in front of the

jury.

The jury convicted Umaña on all counts. It found him

guilty of conspiring to conduct, or to participate in the

conduct of, the affairs of an enterprise affecting interstate

10
commerce through a pattern of racketeering activity, in

violation of 18 U.S.C. § 1962(d) (prohibiting RICO conspiracy).

It found that this RICO conspiracy included the “willful,

deliberate and premeditated murder” of the Salinas brothers, in

violation of N.C. Gen. Stat. § 14-17. The jury also found Umaña

guilty of murdering the Salinas brothers in aid of racketeering,

in violation of 18 U.S.C. § 1959(a)(1). Finally, the jury found

Umaña guilty of using a firearm in relation to a crime of

violence, resulting in the death of the Salinas brothers, in

violation of 18 U.S.C. § 924(c) and (j)(1). The jury also found

Umaña guilty of several lesser offenses not at issue here,

including being an alien in possession of a firearm, robbery

affecting interstate commerce, and witness tampering.

The government sought the death penalty for the § 1959 and

§ 924 counts. Accordingly, the district court divided the trial

into three phases -- the first to determine guilt or innocence;

the second to determine Umaña’s eligibility for the death

penalty; and the third, if Umaña were found death eligible, to

select between the death penalty and life imprisonment without

the possibility of release.

After finding Umaña guilty, the jury found him eligible for

the death penalty under the Federal Death Penalty Act, 18 U.S.C.

§§ 3591-3596. In addition to finding that, during the

commission of the crimes, Umaña was of sufficient age and had a

11
sufficiently culpable state of mind, it found that two statutory

aggravating factors applied. First, it found that Umaña had

created a grave risk of death to one or more persons in addition

to each victim, and second, it found that he had killed more

than one person in a single criminal episode.

After the jury found Umaña eligible for the death penalty,

the court proceeded to the sentence selection phase, during

which the government put on evidence to prove four additional

nonstatutory aggravating factors: (1) that Umaña had killed the

Salinas brothers to protect and maintain the reputation of MS-13

and to advance his position therein; (2) that Umaña had caused

injury and loss to the Salinas brothers’ family and friends; (3)

that Umaña had intentionally committed several murders in Los

Angeles; and (4) that Umaña posed a continuing and serious

threat to the lives and safety of others, as evidenced by his

lack of remorse, his allegiance to MS-13, his lack of

rehabilitation, and his pattern of violence. The jury found the

existence of all four aggravating factors unanimously and beyond

a reasonable doubt. They also considered the evidence presented

by Umaña in mitigation, which consisted primarily of (1) the

effects that Umaña’s upbringing had on his culpability; (2)

videos of his family and friends; and (3) testimony about safety

precautions that would be in place should Umaña be sentenced to

life imprisonment. All or some of the jury members found that

12
Umaña had proved various mitigating factors by a preponderance

of the evidence. In particular, they found that the murder

occurred during an emotionally charged argument and that the

murder occurred as a result of Umaña’s indoctrination into the

ways and thinking of MS-13. After weighing the aggravating and

mitigating circumstances, the jury sentenced Umaña to death.

This appeal followed, raising numerous challenges, as

discussed herein.

II

Umaña challenges first the venue of his trial in the

Western District of North Carolina. He contends that “venue on

the capital counts [Counts 22-25] was proper only in the Middle

District of North Carolina [in Greensboro], where the killings

occurred because ‘murder’ was the only essential ‘conduct’

element of the charged offenses (violations of 18 U.S.C. § 1959

and §§ 924(c) & (j)(1)),” and that venue was not proper in the

Western District of North Carolina, where he was tried. He

argues that committing murder “for the purpose of . . .

maintaining or increasing position in an enterprise engaged in

racketeering activity,” as punished by § 1959, has only one

conduct element -- that of committing murder -- and that the

element of maintaining or increasing position in a racketeering

enterprise is a mens rea element. He points out that under

13
established venue jurisprudence, a mens rea element does not

contribute to determining the locus delicti of the crime, i.e.,

where it was committed for venue purposes. See United States v.

Jefferson, 674 F.3d 332, 366-68 & n.46 (4th Cir. 2012); United

States v. Oceanpro Indus., Ltd., 674 F.3d 323, 329 (4th Cir.

2012). He further argues that venue was improper for the trial

of the two § 924 counts because those counts depended on the two

§ 1959 counts.

The government contends that venue in the Western District

was proper because the murders were committed by Umaña in

“connection to the ‘racketeering enterprise’ and RICO

conspiracy,” which were “continuing offense[s] centered in

Charlotte,” in the Western District. It argues that just as

murder was an essential conduct element, so too was the

racketeering activity with which the murders were necessarily

connected, justifying venue in either the Western or Middle

Districts.

Both the Constitution and the statutes implementing it

require that criminal trials be conducted where the crime was

“committed.” See U.S. Const. art. III, § 2, cl. 3; U.S. Const.

amend. VI; 18 U.S.C. §§ 3235-3237; Fed. R. Crim. P. 18. The

place where a crime is committed -- the locus delicti -- “must

be determined from the nature of the crime alleged and the

location of the act or acts constituting it.” United States v.

14
Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (quoting United

States v. Cabrales, 524 U.S. 1, 6-7 (1998)). Thus, to determine

venue, we must first “identify the conduct constituting the

offense” and then “discern the location of the commission of the

criminal acts.” Id. The location of the criminal acts is

determinative. See Jefferson, 674 F.3d at 365; Oceanpro, 674

F.3d at 328; United States v. Bowens, 224 F.3d 302, 311 (4th

Cir. 2000). Of course, if the criminal conduct spans multiple

districts, the crime may be tried in any district in which at

least one conduct element was committed. See 18 U.S.C.

§ 3237(a); Rodriguez-Moreno, 526 U.S. at 281.

Counts 22 and 24 of the indictment charged Umaña with the

murders of Ruben Salinas and his brother, Manuel Salinas, in aid

of racketeering activity, in violation of 18 U.S.C.

§ 1959(a)(1), and venue for trial of those offenses lay where

the essential conduct elements of the § 1959 offense were

committed.

In order to establish murder in aid of racketeering

activity under § 1959, the government must show:

(1) that there was an enterprise engaged in
racketeering activity;

(2) that the enterprise’s activities affected
interstate commerce;

(3) that the defendant committed murder; and

(4) that the defendant, in committing murder, acted
in response to payment or a promise of payment by

15
 the enterprise or “for the purpose of gaining
entrance to or maintaining or increasing position
in an enterprise.”

18 U.S.C. § 1959(a)(1); see also United States v. Fiel, 35 F.3d

997, 1003 (4th Cir. 1994).

Umaña argues that the only conduct element of the § 1959

offense was the murder itself. He characterizes the language

linking the murder to the racketeering enterprise -- i.e., “for

the purpose of . . . maintaining or increasing position in an

enterprise engaged in racketeering activity” -- as merely

descriptive of the crime’s requisite mens rea, which cannot

determine where the crime was committed for venue purposes. See

Oceanpro, 674 F.3d at 329.

We decline to read that element so narrowly. We think that

“for the purpose of . . . maintaining or increasing position in

an enterprise” defines a motive element that includes a

requirement that the defendant have interacted with the

enterprise with respect to his purpose of bolstering his

position in that enterprise. Such activity could occur before

commission of a violent crime covered by the statute -- for

example, if a mafia boss instructed a member to commit murder or

else be cast out of the organization -- or after commission of a

violent crime -- for example, if the member returned to mafia

headquarters to boast about his exploits with a mind toward

advancement.

16
 Two reasons underlie our interpretation. First, we think

this reading avoids the illogical -- and possibly

unconstitutional -- result that § 1959 would criminalize a

murder committed with a secret intent to join a gang where the

murderer has absolutely no prior connection with the gang

itself. Congress made clear, when enacting § 1959, that the

offense was aimed at eliminating violent crime “committed as an

integral part of an organized crime operation.” S. Rep. No.

98-225, at 305 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3485

(emphasis added). And a physical manifestation of purpose is

necessary to ensure that the act is actually carried out to

further the enterprise’s goals.

Second, the statutory context suggests that the “for the

purpose of” prong requires a manifest quid pro quo between the

member and the gang. The earlier, parallel portion of the

statute criminalizes violent crime conducted “as consideration

for the receipt of” or “as consideration for a promise or

agreement to pay . . . anything of pecuniary value.” 18 U.S.C.

§ 1959(a). This portion of the statute clearly indicates that

there must be a reciprocal arrangement between the enterprise

and the individual, and we believe it sensible to read the “for

the purpose of” language similarly.

At bottom, we hold that § 1959(a)(1) includes as an element

an objective, physical act that links the defendant with the

17
enterprise with respect to the underlying violent crime and that

this element is a conduct element supporting venue.

In this case, Umaña’s actions in Charlotte were sufficient

to satisfy this conduct element. Umaña was sent to Charlotte

with orders to shape up the North Carolina cliques. Upon

arriving in Charlotte, he instructed the local MS-13 members at

length about weapons and ammunition. He passed around his own

gun. He discussed maintaining respect. One witness, who was at

the initial Charlotte meeting, testified that respect “was

everything” to Umaña. And after killing the Salinas brothers

for their failure to respect his gang, Umaña immediately

returned to Charlotte, where he boasted to his fellow MS-13

members about the murders. He told them that he had killed the

Salinas brothers because they had insulted MS-13 and that he had

killed them for his fellow gang members. These objective

manifestations of Umaña’s purpose to further his position in the

enterprise were sufficient to support venue in the Western

District of North Carolina for the § 1959 prosecution.

In Counts 23 and 25, Umaña was charged and tried for

violations of 18 U.S.C. § 924(c) and (j)(1). The indictment in

those counts alleged that Umaña used a firearm “during and in

relation to a crime of violence, that is: conspiracy to

participate in a racketeering enterprise [18 U.S.C. § 1962] and

murder in aid of racketeering [18 U.S.C. § 1959],” resulting in

18
the unlawful killing of Ruben and Manuel Salinas. Venue for

§ 924(c) prosecutions is appropriate wherever the underlying

crime of violence took place. Rodriguez-Moreno, 526 U.S. at

281.

Umaña does not dispute that venue was proper in the Western

District of North Carolina for the underlying § 1962 prosecution

and, as we are holding, venue was also appropriate there for the

§ 1959 prosecution. Thus, regardless of which predicate crime

of violence the jury relied on, venue for the § 924(c) counts

was appropriate in the Western District.

III

Umaña next contends that his convictions on Counts 22 and

24 for murder in aid of racketeering activity under 18 U.S.C.

§ 1959(a)(1) punished conduct that “is a quintessential,

noneconomic, local activity that lies beyond Congress’s

authority to regulate under the Commerce Clause,” much like the

activity regulated in the Violence Against Women Act, which the

Supreme Court struck down in United States v. Morrison, 529 U.S.

598 (2000). Moreover, he asserts, requiring that the murder be

committed to maintain or further one’s status in “a street gang

fails to change its noneconomic nature.” And because his

convictions on Counts 23 and 25 under § 924(c) were predicated

on his § 1959 convictions, Umaña reasons that they too exceeded

19
the government’s Commerce Clause authority. Accordingly, he

argues that his convictions on Counts 22 through 25 must be

reversed.

Because Umaña failed to present this argument to the

district court, we review it for plain error. See United States

v. Forrest, 429 F.3d 73, 77 (4th Cir. 2005) (conducting a plain

error review of a Commerce Clause challenge that was not raised

before the district court).

Article I, § 8, of the U.S. Constitution authorizes

Congress to make laws as necessary to regulate commerce among

the States so long as it has a “‘rational basis’ . . . for . . .

concluding” that the prohibited activities, “taken in the

aggregate, substantially affect interstate commerce.” Gonzalez

v. Raich, 545 U.S. 1, 22 (2005).

Section 1959(a) punishes violent crimes, including murder,

committed “for the purpose of . . . maintaining or increasing

position in an enterprise engaged in racketeering activity,”

with the term “enterprise” defined to include “any partnership,

corporation, association, or other legal entity . . . which is

engaged in, or the activities of which affect, interstate or

foreign commerce.” 18 U.S.C. § 1959(a), (b)(2). The question

therefore is whether Congress could rationally have concluded

that intrastate acts of violence, such as murder, committed for

the purpose of maintaining or increasing one’s status in an

20
interstate racketeering enterprise, would substantially affect

the interstate activities of that enterprise. We conclude that

it could have.

We find it wholly reasonable to believe that members of a

criminal enterprise might engage in violence to solidify their

status in the organization or rise in the ranks of its

leadership, and that by doing so, they would enhance the power

and reach of the racketeering enterprise itself. Indeed, the

circumstances of the present case provide a convenient

illustration. Because of Umaña’s substantial reputation in MS-

13, which he seems to have built up partly through acts of

violence in Los Angeles, MS-13 leadership -- through

international telephone calls -- sent him from New York to North

Carolina to instruct the cliques there on how more effectively

to deal drugs, steal cars, and extort money. Congress could

rationally have concluded that proscribing reputation-enhancing

violence committed by members of a criminal enterprise would

disrupt the interstate commerce that the enterprise itself

engages in. Accord United States v. Crenshaw, 359 F.3d 977, 986

(8th Cir. 2004) (upholding the constitutionality of § 1959 under

the Commerce Clause, noting that “[i]t seems . . . clear that

criminal enterprises use violence or the threat of violence in

connection with their commercial activities”); see also United

States v. Nascimento, 491 F.3d 25, 43 (1st Cir. 2007) (“Given

21
the obvious ties between organized violence and racketeering

activity -- the former is a frequent concomitant of the latter -

- we defer to Congress’s rational judgment, as part of its

effort to crack down on racketeering enterprises, to enact a

statute that targeted organized violence”). Indeed, Congress

reached just such a conclusion when it observed that murders,

assaults, and other crimes proscribed by § 1959 constituted an

“integral aspect of membership in an enterprise engaged in

racketeering activity.” S. Rep. No. 98-225, at 304, reprinted

in 1984 U.S.C.C.A.N. at 3483.

Moreover, § 1959 includes a jurisdictional element that

limits its reach to activities connected with enterprises

“engaged in” or whose activities “affect” interstate commerce,

thereby justifying its constitutionality under the Commerce

Clause. 18 U.S.C. § 1959(a), (b)(2); see also United States v.

Gibert, 677 F.3d 613, 624 (4th Cir. 2012). This jurisdictional

element distinguishes § 1959 from the Violence Against Women Act

struck down in Morrison. 529 U.S. at 613. In Morrison, the

Supreme Court explicitly noted the lack of a limiting

jurisdictional element that would have confined the statute to

those activities actually affecting interstate commerce. Id.

(noting that the Gun-Free School Zones Act, which was struck

down in United States v. Lopez, 514 U.S. 549 (1995), and the

Violence Against Women Act at issue in Morrison “contain[ed] no

22
jurisdictional element establishing that the federal cause of

action is in pursuance of Congress’ power to regulate interstate

commerce”). But § 1959 does have a limiting jurisdictional

element that confines its reach to crimes that affect interstate

commerce.

Umaña argues further that the application of § 1959 to his

particular circumstances is unconstitutional because “the murder

here had no effect on interstate commerce, was non-commercial in

nature, and was unrelated to organized interstate trafficking

efforts in drugs or other contraband.” But such an argument is

of no consequence to the Commerce Clause analysis, which does

not focus on whether particular conduct under the statute had an

impact on interstate commerce, but rather on whether “the class

of acts proscribed had such an impact.” Gibert, 677 F.3d at

627; see also Raich, 545 U.S. at 17 (“[W]hen a general

regulatory statute bears a substantial relation to commerce, the

de minimis character of individual instances arising under that

statute is of no consequence” (quoting Lopez, 514 U.S. at 558)

(internal quotation marks omitted)); United States v. Gould, 568

F.3d 459, 475 (4th Cir. 2009); United States v. Williams, 342

F.3d 350, 355 (4th Cir. 2003).

Accordingly, we find no error, let alone plain error, and

therefore we reject Umaña’s Commerce Clause challenge.

23
 IV

Umaña contends that the district court abused its

discretion in refusing to excuse Jurors 286 and 119 on account

of their personal bias. He argues that Juror 286 was biased

based on a past life experience with respect to a crime

committed against her brother and that Juror 119 was biased as

indicated by the answers she gave about whether she could

meaningfully consider life imprisonment, in lieu of death, upon

a finding of guilt on the charges in this case.

We review the district court’s decisions to seat these

jurors for abuse of discretion, Poynter v. Ratcliff, 874 F.2d

219, 222 (4th Cir. 1989), and we will find abuse only “where a

per se rule of disqualification applies” or “where the [trial]

court ‘demonstrate[d] a clear disregard for the actual bias’ of

the juror,” United States v. Fulks, 454 F.3d 410, 432 (4th Cir.

2006) (quoting United States v. Turner, 389 F.3d 111, 115 (4th

Cir. 2004)).

A

Juror 286 recounted during voir dire that more than 30

years earlier, her brother had been the victim of an attempted

murder; that the assailant received a short sentence; and that,

after release, the assailant committed murder and then suicide.

Based on this life experience and on Juror 286’s answers during

24
voir dire, Umaña argues that the district court should have

found that Juror 286 was actually biased or that, based solely

on her life experience, she was in any event impliedly biased.

During voir dire, the prosecutor asked Juror 286 several

questions about her ability to dispense penalties impartially:

Q: And are you able to keep an open mind until
you’ve heard the evidence to make [the decision
between life in prison and the death penalty]
together with the other jurors?

A: I would like to think so. I mean, I don’t know
anything about the case.

Q: And that’s the point. But you haven’t heard the
evidence, so are you able to keep an open mind
and consider both options at the conclusion of
the evidence?

A: I think so.

* * *

Q: And given the information that you shared about
the tragedy with your brother . . . , are you
able to come into this courtroom and consider
only the facts and evidence that are presented in
this case in making your decision?

A: I hope that I can. I mean, I can’t forget those
. . . experiences that I've had. . . . I would
hope, and I think that I would look at the facts
of this case.

* * *

Q: All right. And so as you sit here today . . .
until you’ve heard all the facts in evidence in
this case, you would be able to fairly consider
both potential punishments; life imprisonment
without parole and the death penalty?

A: Yes.

25
Umaña’s counsel followed up on Juror 286’s answers with the

following inquiry:

Q: Does [your frustration with how your brother’s
case was handled] come into play now, if you’re a
juror in a case like this, that involves two
charges of murder?

A: I don’t know if it would or not, to be honest. I
do have strong feelings about it. You know, the
sentence -- the sentence to me did not -- it was
not justified, based on the circumstances and
what happened. And that person, because he
didn’t have a sufficient sentence, I think,
initially, went on to do additional murder and
suicide. And yeah, I do have a problem getting
past that.

Then, after Umaña’s counsel explained to Juror 286 that, upon a

finding of guilt for murder, there would be only “two options on

the table” -- life without the possibility of release and

death -- he questioned her as follows:

Q: Knowing that, does your attitude about your
frustration with the judicial system and the
sentence that that assailant of your brother’s
got, how -- can you tell us whether that would be
an issue or affect you?

A: I think it’s a bit different than the situation
with my brother. Because in that instance I just
didn’t think that there was sufficient punishment
that fit the crime. In this case you’re looking
at the death penalty, or as you’re telling me,
someone who would be in prison the rest of their
life. It’s different, and I hope that I would
see that.

* * *

Q: Are you saying then, that . . . you would
consider equally, or give fair consideration to

26
 both types of sentences? In other words, that
you would think that either death or life without
parole would be considered as sufficient
sentences for those crimes?

A: I think depending on the circumstances and the
evidence.

Q: . . . [W]ould you meaningfully consider both of
these sentencing options in the sentencing phase
of this trial?

A: Yes. Yes.

* * *

Q: [D]o you think that the experience with what
happened to your brother’s attacker and
everything, would have any impact on your ability
to be a fair judge on the facts, as far as . . .
guilty versus not guilty?

A: . . . I would hope it would not enter into my
decision, but I still have that experience.

Q: . . . [T]he defendant has the right, as does the
government, to have a jury of people who are fair
and impartial and open-minded. And I guess, do
you feel that you are one of those people right
for this case?

A: I don’t know if I can say 100 percent. I really
don’t.

At that point, the district judge intervened to describe to

Juror 286 the presumption of innocence and to explain that the

government bears the burden of proof. The judge then asked the

following questions:

Q: Now, is there anything about your life experience
that keeps you from understanding those
principles and agreeing to apply them in this
case?

27
 A: I understand the principles entirely. And I hope
that I could, you know, . . . do the job that’s
requested. I just . . . have these things in my
experience that I don’t know whether they would
prevent me from doing the job correctly or not.

Q: Do you agree with those principles?

A: Yes, I do.

* * *

Q: And is there anything about your past experience
that would prevent you from meaningfully
participating in that process [of determining the
penalty options]?

A: No, I don’t think so.

The judge then declined to excuse Juror 286.

Based on Juror 286’s answers, Umaña argues that Juror 286

displayed actual bias because she “remained equivocal regarding

whether the circumstances surrounding the attempt on her

brother’s life would affect her ability to keep an open mind and

be a fair and impartial juror during the guilt/innocence phase.”

Thus, he contends that there remained uncertainty after voir

dire “about whether she could actually apply [the presumption of

innocence and proof beyond a reasonable doubt] in light of her

past experiences.” He suggests that United States v. Thompson,

744 F.2d 1065 (4th Cir. 1984), required a finding that Juror 286

was actually biased.

In Thompson, one of the jurors notified the judge during

trial that a piece of evidence had “moved [him] quite heavily.”

28
744 F.2d at 1067. When the judge told the juror that he wanted

to make sure that the juror still had an open mind, the juror

responded, “I don’t think that I do. . . . I am not sure that I

could be totally fair. I would try to be as much as I could,

but I am just not sure I could be totally fair.” Id. (emphasis

added). After denying a motion for a mistrial, the judge asked

the juror if he could keep an open mind and maintain the

presumption of innocence, and the juror responded, “I will try.

I am not sure, your Honor.” Id. at 1067-68. We found that the

trial court had abused its discretion by declining to excuse the

juror, and we held that “after [the juror] gave an equivocal

response to repeated questions about his ability to proceed with

an open mind . . . the trial court should have asked for an

affirmative response.” Id.

The circumstances in Thompson, however, were different in

kind and effect from those here. In Thompson, the juror had

suggested that he was unable to be fair. When asked whether he

had an open mind, the juror said, “I don’t think that I do.” By

contrast, Juror 286 left the court with the opposite message,

suggesting that she “would like to think” that she could keep an

open mind. Moreover, when the judge asked Juror 286 whether she

agreed with the basic constitutional principles relating to the

presumption of innocence and the government’s burden of proof,

she said that she did. She also told the judge that her past

29
experiences would not prevent her from “meaningfully

participating in [the sentencing] process.” To be sure, Juror

286 stated that she could not be 100% sure about how she would

conduct herself, but nonetheless she repeatedly stated that she

thought she could keep an open mind and “look at the facts of

this case.”

We similarly distinguished Thompson in United States v.

Hager, 721 F.3d 167 (4th Cir. 2013), where a juror expressed

some equivocation about whether he could be impartial. In

Hager, the judge interrogated the juror at length, asking, for

example, whether the juror could “give effect to those two

instructions [regarding the presumption of innocence and burden

of proof],” and the juror answered, as did Juror 286 in this

case, “Yes, I would try.” 721 F.3d at 190-91. The court

followed up this inquiry by asking, “[I]s there any reason why

you wouldn’t succeed?” to which the juror responded, “No, I

wouldn’t think [so].” Id. at 191. The Hager court found that

the judge had not abused his discretion by seating the juror,

distinguishing the circumstances from Thompson in this way:

Although Juror 144 and the juror in Thompson both
initially stated only that they would try to be fair,
the district court here followed up by asking if there
was any reason that the juror could not be fair. And
each time that question was posed, Juror 144 said that
there was not. The district court in Thompson,
however, failed to solicit such a response.

30
 Id. at 192; see also United States v. Capers, 61 F.3d 1100,

1104-05 (4th Cir. 1995) (finding no abuse of discretion where a

trial judge refused to excuse a juror who stated that he “might

favor the government”).

We conclude that the district judge in the present case did

not abuse his discretion by declining to find that Juror 286 was

actually biased. A juror need not express unflinching certainty

for a trial judge to determine that she will be able to remain

impartial. See, e.g., Hager, 721 F.3d at 191-92. Moreover, in

this case, the judge took care by repeatedly asking, in follow-

up questions, whether Juror 286 could be fair and impartial.

Juror 286 affirmed without qualification that she agreed with

the principles that defendants are presumed innocent and that

the government has the burden of proof, and she repeatedly

affirmed that she would be able to consider equally the two

penalty options of life in prison and the death sentence.

Umaña argues further that despite the answers given by

Juror 286, her life experiences alone should have prompted the

trial court to conclude that she was impliedly biased.

“[T]he doctrine of implied bias is limited in application

to those extreme situations where the relationship between a

prospective juror and some aspect of the litigation is such that

it is highly unlikely that the average person could remain

impartial in his deliberations under the circumstances.” Person

31
v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). Implied bias

might arise where there is “a revelation that the juror is an

actual employee of the prosecuting agency, that the juror is a

close relative of one of the participants in the trial or the

criminal transaction, or that the juror was a witness or somehow

involved in the criminal transaction.” Smith v. Phillips, 455

U.S. 209, 222 (1982) (O’Connor, J., concurring).

We conclude that Juror 286’s experience 30 years ago was

sufficiently remote and insufficiently prejudicial to impute

bias to her. We have held that “it is generally within a trial

court’s discretion to qualify a juror whose close relative was a

victim of a crime similar to that with which a defendant is

charged, [and so] such a circumstance is not, standing alone,

sufficiently ‘extreme’ to warrant a finding of implied bias.”

Fulks, 454 F.3d at 432-33 (citation omitted). Likewise here, we

conclude that it was within the district court’s discretion to

qualify Juror 286.

Umaña also argues that the views Juror 286 expressed about

law enforcement evidenced actual bias, as indicated by the

following exchange during voir dire:

Q: [A]re you going to treat civilians and law
enforcement, you’re going to be able to evaluate
their testimony and weigh it equally?

A: Um, I think so. But in all honesty, I do have to
say that I do have a positive feeling towards
them, police officers, detectives and so forth.

32
 * * *

Q: [S]o you would be able to judge fairly the
testimony of a police officer, the same way you
would a civilian witness in this case?

A: I have to answer again in all honesty that I hope
that I would be able to. But also as I say, I do
support and see law enforcement in a favorable
light.

* * *

Q: [W]ould you follow that same instruction and use
the same standard in evaluating the credibility
of each type of witness?

A: I think so. I’ve never done it before, as I say.
I just have to say that I would hope and I would
think that I would.

Based on these answers, Umaña contends that “Juror 286 was

equivocal about whether her beliefs about law enforcement would

interfere with her duty to treat all witnesses equally.”

Because Umaña did not, during voir dire, object to Juror

286 on this ground, we review this issue under the plain error

standard. See Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 732-34 (1993).

Although “bias in favor of law enforcement officials [i]s

inappropriate,” United States v. Lancaster, 96 F.3d 734, 743

(4th Cir. 1996) (en banc), we conclude that the district court

did not err in failing to find actual bias based on Juror 286’s

statement that she had “positive feelings” about law

enforcement, especially where she went on to affirm (albeit in

33
her cautious fashion) that she would use the same standard in

evaluating every witness’s credibility. See Capers, 61 F.3d at

1105 (no abuse of discretion where juror said he “might” favor

the government). A juror’s generally favorable impression of

law enforcement does not necessarily amount to bias any more

than does a juror’s personal association with law enforcement.

See United States v. Larouche, 896 F.2d 815, 830 (4th Cir.

1990). Based on our review of the record, we conclude that the

district court’s ruling was not in error.

B

Umaña contends that Juror 119 was also biased insofar as

she did not confirm during voir dire that she would

“meaningfully consider life imprisonment upon a finding of guilt

of the charged offenses.”

On Juror 119’s questionnaire, she gave seemingly

contradictory answers with respect to whether she would consider

life in prison for an individual convicted of racketeering

offenses. But she explained at voir dire that she had been

confused by the wording of the question. More importantly, she

expressed unhesitatingly that she would consider both life in

prison and the death sentence:

Q: [T]he question I have for you is whether you
would consider those both -- those two options?

A: Oh, yes.

34
 Q: Or automatically choose one over the both?

A: No. No.

Q: You would consider both?

A: I would consider both.

Later in voir dire, Juror 119 did say that she would “lean

heavily towards the death penalty for . . . intentional

killing.” When the district judge followed up on this

statement, Juror 119 initially expressed some equivocation,

stating that she was “not sure” whether she could keep an open

mind about the sentencing options. The judge continued to probe

Juror 119:

Q: Let me ask you this question: I’m not asking you
to tell me what your decision will be. What I’m
asking you is, are you willing in good faith, to go
through the process of considering and weigh both
options?

A: Yes.

Q: As part of that, would you be willing to consider
and weigh the aggravating factors presented by the
government and the mitigating factors presented by the
defendant?

A: Yes.

Q: Would you be able to follow the Court’s
instructions on those points?

A: Yes. I would have to.

The judge concluded that Juror 119 “could in good faith weigh

both options.”

35
 We conclude that the judge did not abuse his discretion.

In making his judgment, he followed the instructions from Hager

precisely, following up with a series of shorter, simpler

questions when the juror manifested some initial equivocation.

The juror answered these questions unambiguously, making clear

that she was not “irrevocably committed to imposing the death

penalty.” United States v. Caro, 597 F.3d 608, 615 (4th Cir.

2010).

As we have previously noted, a juror’s mind need not be a

blank slate. See United States v. Jones, 716 F.3d 851, 857 (4th

Cir. 2013) (“Because jurors will have opinions from their life

experiences, it would be impractical for the Sixth Amendment to

require that each juror’s mind be a tabula rasa”). “[I]f a

district court views juror assurances of continued impartiality

to be credible, the court may rely upon such assurances in

deciding whether a defendant has satisfied the burden of proving

actual prejudice.” Id. (quoting United States v. Corrado, 304

F.3d 593, 603 (6th Cir. 2002)). The judge in the present case

acted within his discretion in crediting Juror 119’s assurances

that she could follow the law and consider all sentencing

options.

36
 V

During the third phase of trial -- the sentence selection

phase, during which the jury decided whether to impose life

imprisonment without the possibility of release or the death

penalty -- the government sought to prove that Umaña had

committed several murders in Los Angeles in 2005. To that end,

it introduced into evidence the transcript of an interrogation

of Umaña, conducted by Los Angeles police detectives while he

was in state custody in North Carolina. During the

interrogation, Umaña placed himself at the two scenes of the Los

Angeles murders, although he denied actually committing the

murders. Even so, the evidence helped the government implicate

Umaña in the murders because no evidence indicated that anyone

but Umaña was present at the two locations, and the same gun was

used to commit all of the murders.

Challenging the introduction of the transcript, Umaña

contends that the statements he made during the interview were

obtained in violation of his Miranda rights and, in any event,

were given involuntarily, in violation of the Fifth Amendment.

He bases his argument on the fact that during the interview, the

Los Angeles detectives repeatedly told him that his statements

would not “affect” the North Carolina case and that his

statements would not “cost” him anything, when in fact they were

used against him in this case.

37
 As to his Miranda claim, the record shows that after the

Los Angeles detectives read Umaña a Miranda warning in Spanish,

they followed up with questions to ensure that he understood,

again speaking to him in Spanish:

Detective: Do you understand what I’m saying?

Umaña: Yes.

Detective: Do you want to talk about, uh, what we
want to talk about here of things that
happened in Los Angeles . . . freely?

Umaña: I already told you, let’s see about it.

Detective: Okay.

Umaña: Yes.

Detective: Yes? Okay. . . .

Umaña: You will be explaining more things.

The detective who conducted this interview later testified that

he thought that Umaña understood his right to remain silent and

intended to waive that right. The district court found the

officer to be credible and that Umaña’s response of “Yes,” plus

his subsequent willingness to answer questions, indicated that

he did indeed intend to waive his Miranda rights and speak with

the detectives.

We agree. “To effectuate a waiver of one’s Miranda rights,

a suspect need not utter any particular words.” Burket v.

Angelone, 208 F.3d 172, 198 (4th Cir. 2000). A suspect

impliedly waives his Miranda rights when he acknowledges that he

38
understands the Miranda warning and then subsequently is willing

to answer questions. See United States v. Frankson, 83 F.3d 79,

82 (4th Cir. 1996). That is precisely what happened in this

case.

Umaña contends that, in any event, his statements were

extracted involuntarily, in violation of his Fifth Amendment

rights, because the Los Angeles detectives said that Umaña’s

statements would not “cost” him anything or “affect” him. He

identifies 10 such comments that occurred over the course of a

two-and-one-half hour interview. For example, when asking about

the Fairfax Street murders, one detective stated: “Why don’t we

go ahead and clear up everything in the past that you’ve done in

Los Angeles. It doesn’t cost you anything.” And, referring to

the North Carolina investigation, a detective stated: “We don’t

. . . want to affect the case here at all.”

To determine whether a statement or confession was obtained

involuntarily, in violation of the Fifth Amendment, “[t]he

proper inquiry ‘is whether the defendant’s will has been

overborne or his capacity for self-determination critically

impaired.’” United States v. Braxton, 112 F.3d 777, 780 (4th

Cir. 1997) (en banc) (quoting United States v. Pelton, 835 F.2d

1067, 1071 (4th Cir. 1987) (internal quotation marks omitted)).

To make this determination, we consider “the totality of the

circumstances, including the characteristics of the defendant,

39
the setting of the interview, and the details of the

interrogation.” Pelton, 835 F.2d at 1071.

We have consistently declined to hold categorically that a

suspect’s statements are involuntary simply because police

deceptively highlight the positive aspects of confession. For

example, in United States v. Whitfield, 695 F.3d 288 (4th Cir.

2012), we refused to find a confession involuntary where the

police officers told the suspect that by talking to them he

“would do ‘nothing but help[] [himself].’” Id. at 303 n.8

(alterations in original). Similarly, in Rose v. Lee, 252 F.3d

676 (4th Cir. 2001), we held that “the cryptic promise that

‘things would go easier’ on [the suspect] if he confessed [did

not] amount[] to unconstitutional coercion.” Id. at 686; see

also United States v. Rutledge, 900 F.2d 1127, 1128, 1131 (7th

Cir. 1990) (finding that the statement “all cooperation is

helpful” was the sort of “minor fraud that the cases allow” and

did not make subsequent statements involuntary). “The mere

existence of threats, violence, implied promises, improper

influence, or other coercive police activity . . . does not

automatically render a confession involuntary.” Braxton, 112

F.3d at 780. Rather, we must look at the totality of the

circumstances to see if Umaña was not acting of his own

volition.

40
 Considering the entirety of the interrogation, we conclude

that Umaña’s statements were made voluntarily. While the

detectives’ statements may have been misleading, they never

amounted to an outright promise that nothing Umaña said would

ever be used against him. Rather, they were akin to the cryptic

encouragement we allowed in Whitfield and Rose. See also

Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mislead

a suspect or lull him into a false sense of security that do not

rise to the level of compulsion or coercion to speak are not

within Miranda’s concerns”).

Moreover, Umaña’s statements and behavior during the

interrogation belie any notion that he thought his statements

could not be used against him. When the detectives were pushing

him to confess to the Fairfax Street murders, he observed that

“later on you’re going to come to me with another case,”

obviously indicating that he knew his words could be used

against him. And despite the detectives’ suggestions that

confessing would not “cost” him anything, Umaña never did so.

His most significant “confessions” were to admit to being in the

car during the Fairfax Street murders and dropping off the

shooters in Lemon Grove Park. But he never admitted to

committing any of the murders. To the contrary, throughout the

interrogation, Umaña’s statements were evasive and misleading.

For example, when an officer asked, “[W]ho fired at the two dead

41
persons?,” Umaña first responded, “I don’t know that,” and then,

“Look . . . perhaps my hands, perhaps someone else’s hands,

perhaps Negro’s hands, perhaps Chipie’s hands.” At one point,

he began rapping an MS-13 song to deflect the focus of the

interview. Umaña had experience in prior police interrogations,

and in this case he was given a Miranda warning and acknowledged

that he understood it. We have little doubt that Umaña knew

what he was doing as he played a cat-and-mouse game with

detectives.

At bottom, we conclude that there simply was no evidence

that Umaña thought his statements would not be used against him,

and we decline to conclude that any violation of his Fifth

Amendment rights against self-incrimination occurred.

42
 VI

During the sentence selection phase of trial -- again in

connection with the Los Angeles murders -- the district court

allowed the government to introduce hearsay statements of MS-13

members accusing Umaña of committing the murders. Specifically,

the court allowed detectives to testify at trial about their

interviews with Luis Ramos, Luis Rivera, and Rene Arevalo. The

court also allowed the government to introduce the transcripts

of the interviews with Rivera and Arevalo.

Umaña objected to the evidence on the grounds that it (1)

violated his right to confrontation under the Sixth Amendment

and (2) constituted unreliable hearsay. The district court

overruled the objections, holding that the Confrontation Clause

does not apply to the sentence selection phase of capital

sentencing and that the hearsay statements bore sufficient

indicia of reliability and trustworthiness to be admissible

during sentencing. Umaña now contends that the district court

erred on both counts. We address each, seriatim.

A

Umaña argues that “it is clear from the Sixth Amendment’s

text and history, the Eighth Amendment, and the statutory

requirements of the [Federal Death Penalty Act] that the right

to confrontation applies throughout the sentencing phase of a

43
federal death penalty case.” Recognizing that the Sixth

Amendment has traditionally not been applied during sentencing,

he argues that the death penalty is qualitatively different from

other punishments and that application of the Confrontation

Clause would enhance reliability in the determination that death

is the appropriate punishment.

Courts have long held that the right to confrontation does

not apply at sentencing, even in capital cases. In Williams v.

New York, 337 U.S. 241 (1949), a state judge imposed the death

penalty on a defendant based on (1) the evidence presented to

the jury at trial, (2) “additional information obtained through

the court’s Probation Department,” and (3) information obtained

“through other sources,” as authorized by state law. Id. at

242-43 (internal quotation marks omitted). The defendant

challenged the constitutionality of the sentence because it was

“based upon information supplied by witnesses with whom the

accused had not been confronted and as to whom he had no

opportunity for cross-examination or rebuttal.” Id. at 243

(quoting People v. Williams, 298 N.Y. 803, 804 (1949)). In

rejecting the challenge, the Supreme Court noted that in modern

sentencing, which seeks a punishment that fits the offender, not

just the crime, the sentencing judge should be able to consider

“the fullest information possible concerning the defendant’s

life and characteristics.” Id. at 247. If that information

44
were “restricted to that given in open court by witnesses

subject to cross-examination,” it would become “unavailable.”

Id. at 250. The Court explained that “the type and extent of

this information [necessary to the ‘practice of individualizing

punishments’] make totally impractical if not impossible open

court testimony with cross-examination.” Id. The Court also

explained that sentencing is a highly discretionary function,

which is distinct from finding guilt, where due process requires

that the factfinder be “hedged in by strict evidentiary

procedural limitations.” Id. at 246. The Williams Court

indicated that the standard is no different for capital cases,

stating, “We cannot accept the contention” that “we should draw

a constitutional distinction as to the procedure for obtaining

information where the death sentence is imposed.” Id. at 251.

We conclude that Williams squarely disposes of Umaña’s

argument that the Sixth Amendment should apply to capital

sentencing.

Umaña maintains nonetheless that intervening case law has

eroded Williams, which he characterizes as containing “analysis

of a bygone era of untrammeled judicial discretion.” But he

provides no authority suggesting that Williams has been

overruled. To the contrary, Williams remains good law. The

Supreme Court recently affirmed its viability in Alleyne v.

United States, 133 S. Ct. 2151 (2013), in which the Court

45
recited Williams’ holding that “the Sixth Amendment does not

govern” “factfinding used to guide judicial discretion in

selecting a punishment ‘within limits fixed by law.’” Id. at

2161 n.2 (quoting Williams, 337 U.S. at 246). And we recently

held in United States v. Powell, 650 F.3d 388 (4th Cir. 2011),

that “a sentencing court [may] consider ‘any relevant

information before it, including uncorroborated hearsay,

provided that the information has sufficient indicia of

reliability to support its accuracy.’” Id. at 392 (quoting

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)).

Indeed, in Powell, we specifically rejected the claim Umaña now

makes that intervening case law undermined Williams, holding

that “[r]ecent Confrontation Clause decisions do not require us

to reconsider this settled distinction between trial evidence

and sentencing evidence in the hearsay context.” Id.

Moreover, Umaña’s suggestion that evidence at sentencing be

restricted by the Confrontation Clause would frustrate the

policy of presenting full information to sentencers. As the

Williams Court pointed out, “Modern concepts individualizing

punishment have made it all the more necessary that a sentencing

judge not be denied an opportunity to obtain pertinent

information by a requirement of rigid adherence to restrictive

rules of evidence properly applicable to the trial.” 337 U.S.

at 247. Indeed, this policy has repeatedly been recognized as

46
essential to sentencing “reliability.” See, e.g., Gregg v.

Georgia, 428 U.S. 153, 204 (1976) (noting in the Eighth

Amendment context, “We think it desirable for the jury to have

as much information before it as possible when it makes the

sentencing decision”); see also Woodson v. North Carolina, 428

U.S. 280, 303-05 (1976) (invalidating a North Carolina death

penalty statute for failing to allow defendants to put on

evidence of their particular character and the circumstances of

their offense). In United States v. Fields, 483 F.3d 313, 336

(5th Cir. 2007), the court explained:

Where the [Supreme] Court discusses the need for
reliability in the Eighth Amendment context, it is not
talking about the appropriate sources for information
introduced at sentencing or even, more generally,
about the reliability of evidence. It is instead
focusing on (1) the need to delineate, ex ante, the
particular offenses for which death is a proportionate
punishment and (2) the need for the jury to be able to
consider all factors (particularly mitigating, but
also aggravating) relevant to choosing an appropriate
punishment once the death penalty is in play.

We agree with Fields. A policy of full information during

sentencing, unrestricted by the strict rules of evidence,

enhances reliability by providing the sentencing jury with more

relevant evidence, whether presented by the government or the

defendant. To now impose the rigorous requirements of

confrontation would not only be a setback for reliable

sentencing, it could also “endlessly delay criminal

47
administration in a retrial of collateral issues.” Williams,

337 U.S. at 250.

Finally, Umaña contends that the Confrontation Clause

should apply to every fact that the jury finds, even during the

sentence selection phase, because facts of guilt and punishment

are “constitutionally significant.” He argues that jury

factfinding of aggravating factors during the sentence selection

phase of trial “alters the legally prescribed range and does so

in a way that aggravates the penalty.” (Quoting Alleyne, 133 S.

Ct. at 2161 n.2). We find this argument unpersuasive. During

the sentence selection phase of a capital trial, the jury

exercises discretion in selecting a life sentence or the death

penalty, and any facts that the jury might find during that

phase do not alter the range of sentences it can impose on the

defendant. Under the Federal Death Penalty Act, the jury finds

the facts necessary to support the imposition of the death

penalty in the guilt and eligibility phases of trial. See 18

U.S.C. §§ 3591-3596. It is only during these phases that the

jury makes “constitutionally significant” factual findings.

Only after finding Umaña death penalty eligible did the

jury in this case consider hearsay evidence to assist it in

exercising its discretion to select the appropriate sentence.

During the selection phase, a jury is not legally required to

find any facts. And while it may do so, such facts are neither

48
necessary nor sufficient to impose the death penalty -- they

merely guide the jury’s discretion in choosing a penalty. As

the Supreme Court has recently explained:

Juries must find any facts that increase either the
statutory maximum or minimum because the Sixth
Amendment applies where a finding of fact both alters
the legally prescribed range and does so in a way that
aggravates the penalty. Importantly, this is distinct
from factfinding used to guide judicial discretion in
selecting a punishment “within limits fixed by law.”
Williams v. New York, 337 U.S. 241, 246 (1949). While
such findings of fact may lead judges to select
sentences that are more severe than the ones they
would have selected without those facts, the Sixth
Amendment does not govern that element of sentencing.

Alleyne, 133 S. Ct. at 2161 n.2 (emphasis added).

Accordingly, we conclude that the Confrontation Clause does

not preclude the introduction of hearsay statements during the

sentence selection phase of capital sentencing. Accord Muhammad

v. Sec’y, Fla. Dep’t of Corrections, 733 F.3d 1065, 1073-77

(11th Cir. 2013); Fields, 483 F.3d at 337-38. The district

court’s holding that the Confrontation Clause did not prevent

the government from introducing the hearsay statements of

Umaña’s coconspirators during the selection phase of sentencing

is therefore affirmed.

B

Regardless of whether the Confrontation Clause applies,

Umaña challenges the admission of the hearsay testimony in this

case on the ground that it did not bear “sufficient indicia of

49
reliability to support its probable accuracy.” Powell, 650 F.3d

at 394 (quoting U.S.S.G. § 6A1.3(a)). We review the district

court’s ruling in this regard for abuse of discretion. See

United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009).

With respect to the Fairfax Street murders, Umaña argues

that the hearsay statements of Ramos, Rivera, and Arevalo -- all

of whom accused him of being the shooter -- did not bear

sufficient indicia of reliability. He argues that their

statements were not corroborated by independent evidence; that

any similarities in their statements were on “undisputed

peripheral details”; that Rivera and Ramos spent a weekend in

jail together before telling the same stories; that the

statements were the product of police pressure; that they were

contradicted in some respects by neutral observers; and that

they were self-serving inasmuch as they exculpated the accusers,

see Lee v. Illinois, 476 U.S. 530, 541 (1986) (noting that

“accomplices’ confessions that incriminate defendants” are

“presumptively unreliable”).

While these are all legitimate arguments, we conclude that

the court had other evidence that rendered the hearsay testimony

sufficiently reliable to overcome any presumption and support

its discretion in admitting the evidence. First, there was

undisputed ballistics evidence indicating that the same gun was

used for both the Fairfax Street and Lemon Grove Park murders.

50
Umaña admitted to being at the scene of both crimes, and there

is no evidence that anyone else was present at both murder

sites. Moreover, there was strong evidence, as discussed below,

linking Umaña to the Lemon Grove Park murder. Umaña attempts to

explain away the significance of the ballistics match by

suggesting that MS-13 members sometimes share guns, but there

was no evidence that Umaña himself ever shared his gun. In

addition, there was not just one accusation against Umaña by the

declarants, but three. To be sure Ramos’s accusation arose only

after he spent the weekend in jail with Rivera, but there is no

evidence that either Rivera’s or Arevalo’s accusations were

tainted by collusion. Finally, as the district court noted, the

statements themselves contained many other consistent details,

such as the “make and model of car involved, the presence of

crutches, the names of the other participants, the number of

victims, and the specific gang signs displayed by the victims.”

In light of all of these circumstances, we conclude that the

district court did not abuse its discretion in finding the

hearsay accusations of Rivera, Ramos, and Arevalo regarding the

Fairfax Street murders sufficiently reliable to admit them into

evidence.

With respect to the Lemon Grove Park murder, the government

introduced Arevalo’s hearsay statement accusing Umaña of

committing the crime. As with the Fairfax Street murders, the

51
ballistics evidence provided support for the reliability of

Arevalo’s accusation. Moreover, Freddie Gonzalez -- the target

of the Lemon Grove Park attack who escaped -- identified Umaña

in open court as the assailant. This evidence, we conclude,

provided Arevalo’s accusation with sufficient indicia of

reliability to warrant its admission at sentencing. See

U.S.S.G. § 6A1.3(a).

At bottom, we conclude that the district court did not

abuse its discretion in admitting the hearsay evidence about the

Los Angeles murders during the sentence selection phase of

trial.

VII

Umaña next contends that the district court abused its

discretion in admitting the transcripts of the detectives’

interviews of Rivera, Arevalo, and Umaña himself on the ground

that the transcripts included the detectives’ statements

vouching for the credibility of several MS-13 members during the

interviews, which, he argues, amounted to improper government

vouching at trial. He points out that during the course of the

interviews, the detectives told Rivera, for example, “I’m kind

of buying your story here,” and Arevalo, “You don’t seem like

the guy that did that.” In the interview of Umaña himself, a

52
detective stated that Ramos, Arevalo, and Rivera were “in jail

right now for something that he did.”

Umaña did not make this objection at trial, and accordingly

we review it under the plain error standard. That standard

requires Umaña to demonstrate (1) that the admission of the

evidence was error; (2) that the error was plain; and (3) that

it affected his substantial rights. Even then, we may only

exercise our discretion as to whether to notice the error if it

seriously affected the fairness, integrity, or public reputation

of the proceedings. See Johnson v. United States, 520 U.S. 461,

466-67 (1997).

While government vouching for the credibility of its own

witness is inappropriate, it is generally improper only when it

comes to the jury at trial from the prosecutor’s indication of

his personal belief about the credibility of a witness, although

it could also be improper for the prosecutor to solicit similar

vouching from government witnesses. See United States v. Lewis,

10 F.3d 1086, 1089 (4th Cir. 1993).

In this case we find no error, much less plain error. A

reasonable jury would not take the detectives’ comments during

the interviews as vouching for the trustworthiness of the

witness being interviewed, but rather as interrogation devices

designed to encourage the witness to talk. Patronizing a

witness with positive comments in order to uncover evidence of

53
criminal conduct, when introduced by the prosecutor in a

transcript, can hardly be taken as a prosecutor’s opinion that

the witness was trustworthy. And admitting several such

isolated comments embedded in voluminous transcripts would not

in any event be plain error that affected Umaña’s substantial

rights.

In a similar vein, Umaña challenges as vouching a question

by the prosecutor during trial to a detective who interviewed

Ramos, Arevalo, and Rivera, in which he asked what was

“consistent among all of the individuals [he] interviewed.” We

find that this question was not vouching at all, but a factual

inquiry to uncover statements common among the witnesses.

For these reasons, we reject Umaña’s vouching claims.

VIII

Umaña contends that the district court abused its

discretion in refusing to permit him -- during the sentence

selection phase -- to introduce evidence of the murders

committed by his RICO coconspirators, who were also MS-13

members. He argues that the evidence was relevant to show that

his own violent proclivities were not unique but rather were a

“product of social conformity.”

The district court applied 18 U.S.C. § 3592(a)(8), which

provides for the admission of evidence in the sentence selection

54
phase relating to the “defendant’s background, record, or

character or any other circumstance of the offense that

mitigate[s] against imposition of the death sentence,” and

concluded that evidence of other MS-13 murders was “irrelevant

to his character or the circumstances of his offenses.” In

addition, the court concluded that such evidence would “confuse

and mislead the jury.” See 18 U.S.C. § 3593(c) (authorizing the

judge to exclude evidence if “its probative value is outweighed

by the danger of creating unfair prejudice, confusing the

issues, or misleading the jury”).

We conclude that the district court did not abuse its

discretion. It is difficult to imagine that giving the jury

evidence of unrelated murders by MS-13 members would contribute

to the individualized decision of whether to impose the death

penalty on Umaña. Indeed, it might even work against him,

linking him with a number of other unrelated murders. Moreover,

whatever benefit Umaña might have obtained from introducing such

evidence was already available to him from evidence in the

record. For example, an MS-13 member testified that he had once

acted as a lookout while another MS-13 member “robbed two drunk

Hispanic guys,” and one of the victims “was shot dead” during

the robbery. Another MS-13 member testified about the

activities his clique engaged in: “Sell drugs, rob people, try

to kill people.” A detective testified that MS-13’s motto was

55
“Mata, Violar, Controla,” which translates to “Kill, Rape,

Control.” Finally, the jury had a copy of the indictment, which

listed many of the murders about which Umaña wanted to submit

evidence.

The district court was appropriately concerned that if

Umaña tried to prove these murders during sentencing, the

process would amount to mini-trials that would take days and

distract the jury. In excluding this evidence, the court acted

well within its discretion.

IX

Umaña contends that during closing argument in the sentence

selection phase of trial, the prosecutor made a number of

improper statements to the jury that were sufficiently

prejudicial as to require reversal of the death penalty verdict.

See United States v. Scheetz, 293 F.3d 175, 185-86 (4th Cir.

2002). But Umaña objected to only one of the statements when

made at trial, and therefore we will review the others for plain

error. See United States v. Woods, 710 F.3d 195, 202 (4th Cir.

2013); United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).

A

The statement that Umaña objected to was the prosecutor’s

comment to the jury about Umaña’s attempt to bring a concealed

shank (tied to his penis) into the courtroom. The prosecutor

56
argued that Umaña tried to bring in the shank “to fight off

rivals. . . . You know who the rivals were? They’re the

Marshals. Those are his rivals. The judge is his rival. I’m

his rival. Anybody in this courtroom is a rival. You’re his

rival. He brought it on the first day of jury selection.”

(Emphasis added). The court sustained Umaña’s objection, and

the prosecutor continued the closing argument thereafter making

a different point -- that Umaña’s rival was “justice.”

Umaña contends that the prosecutor’s statement that “you’re

his rival” was improper because it encouraged the jurors to

abandoned their role as “neutral adjudicators” and become

“interested parties.” See United States v. Manning, 23 F.3d

570, 574 (1st Cir. 1994); see also Caro, 597 F.3d at 626. We

agree. The prosecutor’s statement portraying the jurors as

Umaña’s rivals was improper. Indeed, the government concedes

that it was “ill-advised.”

Nonetheless, we conclude that it was not so prejudicial as

to deprive Umaña of a fair sentencing trial. The comment was

isolated and did not constitute a pervasive theme throughout the

closing argument. Moreover, its effect could only be minimal in

light of the fact that Umaña did indeed try to bring a shank to

the jury selection proceeding, which likely influenced the

jurors more than did the prosecutor’s statement. In addition,

we think that, in light of Umaña’s attempt to bring the shank to

57
the jury selection, the prosecutor’s comments were, to some

degree, invited.

In sum, while the remark was inappropriate, we do not

believe that it was so prejudicial as to call into question the

integrity of the jury’s death sentence. The jury found every

aggravating factor beyond a reasonable doubt, making it unlikely

that the isolated comment was material to its decision.

B

The other comments made during the government’s closing

argument that Umaña challenges were not objected to when made,

and therefore we review them under the plain error standard.

Umaña contends that the prosecutor misleadingly compared

him to other MS-13 members with the following comment:

Let’s bring something back to the front here and
that’s that this defendant is compared with other MS
13 members according to what they would have you
believe, because all those MS 13 members were framed
and formed and created out of El Salvador.

* * *

So let’s compare him to the people around him and quit
taking him out and separating him and looking at him
as if he is only this way because of factors. He’s
here because of who he is. And he’s a killer. He’s
shown it over and over and over again. And he’s a
killer among killers. They talk about killing, yeah.
But we haven’t had any evidence of it. And of all the
people that were around him, he was the killer. He
rose to the top as the killer.

* * *
He’s the only killer.

58
Umaña argues that it was improper for the prosecutor to refer to

him as the “only killer” in MS-13 when he was not permitted to

put on evidence to the contrary.

First, as we have already concluded, the district court

acted within its discretion in refusing to allow Umaña to submit

additional evidence regarding murders committed by other MS-13

members. Moreover, Umaña misreads the statement, “He’s the only

killer.” When taken in context, the government clearly could

not have meant that Umaña was the only member of MS-13 who had

committed murder. Indeed, shortly before making that statement,

the prosecutor stated that Umaña was a “killer among killers.”

(Emphasis added). Finally, there was ample evidence before the

jury that other MS-13 members committed murders, as we have

already summarized.

We conclude that the statement can reasonably be taken only

as commenting that among the MS-13 members in the RICO

conspiracy charged in the case, Umaña was the only one who

pulled the trigger in the Salinas brothers’ murders. If the

statement was error, it was not plain error, nor did it affect

Umaña’s substantial rights.

C

Umaña claims next that the prosecutor made the following

improper comment:

59
 But you know what we heard today from one of their
witnesses? There are only 240 MS-13 members in
prison. And I can promise you that if one of them was
there for life and was behaving, we would have heard
all about it.

Umaña notes that the district court had earlier denied his

motion to obtain data from the Bureau of Prisons regarding the

behavior of incarcerated MS-13 members. Nonetheless, he

obtained the evidence he wanted when he called as a witness a

retired warden for the Bureau of Prisons who testified that MS-

13 is not considered an especially serious security risk in the

prison environment. Understood in that context, the

prosecutor’s statement was just a critique of this testimony,

and we find nothing improper about it.

D

Next, Umaña objects to the prosecutor’s comment made during

closing argument that “[y]ou want to bring El Salvador

here. . . . [Y]ou’d better be ready for some American

justice.” He argues that the statement “invoked an us-versus-

them theme” that did nothing more than encourage “[r]acial

prejudice.” The government argues that the comments were not

inappropriate in view of the fact that Umaña’s mitigation case

turned on his upbringing in El Salvador, and therefore it was

appropriate to “urg[e] the jury to hold him to American

standards of justice.”

60
 We cannot agree that the comment that Umaña should be

“ready for some American justice” responds to Umaña’s mitigation

case that his impoverished El Salvadoran upbringing was

responsible for his criminality. But the statement was isolated

in only a small part of the prosecutor’s closing argument.

Moreover, any prejudice that the statement may have caused was

likely dwarfed by the racial prejudice Umaña himself incited in

letters he had written from prison evincing strong anti-American

rhetoric. For example, one letter in evidence claimed that

“2012 and 2013 . . . are when these little Americans are going

to be humiliated by all Hispanics from Central America, South

America, and Latin America, especially by prisoners, drug

dealers, mafias, and gangbangers.”

Finally, the district court instructed the jury that

national origin could not play a part in its verdict, and each

juror certified in writing that it had not.

As such, even if the error was plain, we conclude that it

did not affect Umaña’s substantial rights.

E

Next, Umaña challenges the following prosecutorial

statement made during closing argument:

[I]f you give him life, [he] is going to have his
inmate bill of rights. . . . He took lives. Are you
going to give him his bill of rights? Manuel and
Ruben didn’t have a bill of rights.

61
 * * *

They cease to become living, breathing humans and
became a corpse. Well, they’re a corpse. And they’re
a corpse and you’re going to send him to the dining
hall. Is that justice?

Umaña argues that this statement improperly compared the plight

of the victims with life in prison, thus making light of a term

of life imprisonment without the possibility of release.

We do not believe that it was error, much less plain error,

for the prosecutor to have compared Umaña’s potential prison

sentence with the plight of the victims. In United States v.

Runyon, 707 F.3d 475, 513 (4th Cir. 2013), the prosecutor “made

a number of comments contrasting the criminal justice system’s

treatment of [the defendant] with [the defendant’s] treatment of

[the victim].” We declined to find such comments to be

improper, noting that “it is, of course, perfectly permissible

for the prosecution to urge the jury not to show a capital

defendant mercy.” Id. In Runyon, we thought that “the whole

matter represent[ed] the sort of thrust and parry in which

attorneys typically engage in the course of their last chance to

persuade a jury.” Id. We reach the same conclusion here.

F

Finally, Umaña challenges the prosecutor’s use of religious

imagery during the course of closing argument. When discussing

62
Umaña’s letters, sent while he was in prison, the prosecutor

said:

This [letter] is called -- it’s got a title. One more
day with the beast. Do you remember who the beast is?
It’s tattooed on his body. It’s in his heart. It’s
the devil. It goes like this:

“One more day has now begun and I thank the
beast that we keep on standing here with a
joint of weed and a fully loaded gun, ready
and prepared to go out into the streets like
I have always planned. . . .”

Umaña argues that, in these comments, the prosecutor was

“compar[ing] [him] to ‘the devil.’”

To be sure, we have condemned “religiously charged

arguments as confusing, unnecessary, and inflammatory.” Bennett

v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996). In this case,

however, prejudice could hardly have occurred, as Umaña’s

conduct amply invited reference to the devil. When he was in

the courtroom, he “threw” MS-13’s gang sign -- the horns of the

devil. Moreover, he had tattoos of devilish figures on his

body. And, of course, his prison letters -- including the one

that the prosecutor read immediately after she made the beast

comment -- contained vivid imagery evoking the devil. While it

might have been better not to make so explicit or direct an

allusion to the devil and its place in Umaña’s heart, we cannot

conclude that, in context, the comment so prejudiced Umaña as to

affect his substantial rights.

63
 In sum, we conclude that the prosecutorial statements made

during closing argument either were not error or, if they were,

were not sufficiently prejudicial to require vacating the death

penalty verdict.

X

Umaña next challenges the district court’s decision to

allow the government to prove “future dangerousness” as a

nonstatutory aggravating factor during the sentence selection

phase of the trial. He argues that, in the prison context, the

jury can never make a prediction about future dangerousness on

any reliable basis. He points to several empirical studies by

Mark Cunningham, his defense expert, who reported a lack of

correlation between future dangerousness findings and actual

prison violence.

We have, however, previously rejected this precise

argument, holding that whether a defendant would pose a danger

to others while in prison is a proper question for the jury.

See Hager, 721 F.3d at 200. As we said in Hager, “Perhaps we

might someday be presented with a case in which we are persuaded

that the evidence presented as to a defendant’s future

dangerousness was merely speculative or that it was

constitutionally infirm.” Id. Like in Hager, we conclude that

this is not such a case. Indeed, there was ample evidence

presented in this case to allow the jury to find that Umaña was

64
likely to commit criminal acts of violence in the future, even

in prison, and that he would constitute a continuing and serious

threat to the lives and safety of others.

With respect to this aggravating factor, Umaña also

challenges the structure of the verdict form because it allowed

the jury only to indicate that it had found the particular

subfactors and did not give the jury an opportunity to indicate

whether or not they had found the “overarching aggravator” of

future dangerousness. Umaña argues that this created a

“presumption” of future dangerousness upon finding any one of

the subfactors. 1

1
The form that the district court submitted to the jury for
the purpose of finding the aggravating factor of future
dangerousness appears as follows:

Do you, the jury, unanimously find that the government
has proven beyond a reasonable doubt that the
defendant is likely to commit criminal acts of
violence in the future which would constitute a
continuing and serious threat to the lives and safety
of others, as evidenced by at least one or more of the
following:

a. The defendant has engaged in a continuing
pattern of violence, attempted violence, and
threatened violence, including but not limited to the
crimes alleged against the defendant in the
Indictment.

Yes: ______ No: ______

b. The defendant poses a future danger to the
lives and safety of other persons as demonstrated by
his lack of rehabilitation after incarceration, his

65
 We disagree with Umaña’s reading of the form. To be sure,

we think that the form would have been clearer had the

introductory language ended after the first two lines and had

each lettered paragraph thereafter begun with future

dangerousness language. But the form as used did not create any

presumption, as Umaña argues. Rather, it presented the jury

with four specific factual circumstances of future dangerousness

on which the government presented evidence. The form was not

designed to permit the jury to find future dangerousness except

by finding one or more of the specific facts evidencing future

dangerousness. And, of course, the form permitted the jury to

find a fact evidencing future dangerousness only if they were

unanimous and the fact was proved beyond a reasonable doubt.

pattern of criminal conduct, and his allegiance to and
membership in MS-13?

Yes: ______ No: ______

c. The defendant has never expressed any remorse
for killing Ruben Garcia Salinas as indicated by
defendant’s statements to fellow gang-members during
the course of and following the offenses alleged in
the Indictment?

Yes: ______ No: ______

d. The defendant has demonstrated an allegiance
to and active membership in MS-13, a violent criminal
enterprise?

Yes: ______ No: ______

66
 XI

Umaña argues that he should have been allowed to submit

evidence regarding the impact that his execution would have on

his wife and child. This argument, however, is squarely

foreclosed by our decision in Hager, 721 F.3d at 194

(“[A]llowing a capital defendant to argue execution impact as a

mitigator is improper”).

XII

Umaña next contends that his death sentence violated the

Eighth Amendment because he was only convicted of “second degree

murder.” He points out that the verdict form in this case

reflected a finding that he committed murder, but not an

additional finding that he did so with “premeditation and

deliberation.” He therefore argues that the jury’s finding of

guilt was sufficient to “establish only a conviction for second

degree murder.” Moreover, he maintains that there is a

“national consensus . . . against death as a punishment for

second degree murder.” He explains that because second degree

murder is “unpremeditated malice killing,” it is “not well

suited to capital punishment” because such murders cannot be

deterred by the death sentence. Finally, he asserts that only

nine States “authorize death for the second degree murders that

occurred here.”

67
 The death-qualifying conduct that the jury found in this

case was (1) that Umaña murdered the Salinas brothers in aid of

racketeering for the purpose of maintaining or increasing his

position in a racketeering enterprise, in violation of §

1959(a)(1); (2) that he used a firearm in relation to a crime of

violence resulting in the deaths of the Salinas brothers and

that the killings were done “with malice aforethought,” in

violation of § 924(c) and (j)(1); and (3) that he killed the two

brothers and attempted to kill another person “in a single

criminal episode.” The jury also found that the other criteria

for imposing the death penalty, as contained in the Federal

Death Penalty Act of 1994, were satisfied in this case. The

question raised by Umaña’s challenge is whether the death

penalty, which is authorized by these statutes, is an excessive

or cruel and unusual punishment for the conduct found by the

jury, as prohibited by the Eighth Amendment.

“[T]he Eighth Amendment’s protection against excessive or

cruel and unusual punishments flows from the basic ‘precept of

justice that punishment for [a] crime should be graduated and

proportioned to [the] offense.’” Kennedy v. Louisiana, 554 U.S.

407, 419 (2008) (alterations in original) (quoting Weems v.

United States, 217 U.S. 349, 367 (1910)). To ensure

proportionality, “capital punishment must ‘be limited to those

offenders who commit a narrow category of the most serious

68
crimes and whose extreme culpability makes them the most

deserving of execution.’” Id. at 420 (quoting Roper v. Simmons,

543 U.S. 551, 568 (2005)) (internal quotation marks omitted).

As such, States and the federal government must “limit the class

of murderers to which the death penalty may be applied.” Brown

v. Sanders, 546 U.S. 212, 216 (2006). This limiting function is

generally accomplished when “the trier of fact . . . convict[s]

the defendant of murder and find[s] one ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty

phase.” Tuilaepa v. California, 512 U.S. 967, 972 (1994). The

Supreme Court has also recognized several “categorical

restrictions on the death penalty.” Graham v. Florida, 560 U.S.

48, 59 (2010). In so doing, the Court uses the following

approach:

[It] first considers “objective indicia of society’s
standards, as expressed in legislative enactments and
state practice” to determine whether there is a
national consensus against the sentencing practice at
issue. Next, guided by “the standards elaborated by
controlling precedents and by the Court’s own
understanding and interpretation of the Eighth
Amendment’s text, history, meaning, and purpose,” the
Court must determine in the exercise of its own
independent judgment whether the punishment in
question violates the Constitution.

Id. at 61 (quoting Roper, 543 U.S. at 563, and Kennedy, 554 U.S.

at 421).

These Eighth Amendment principles do not suggest, as Umaña

urges, a categorical ban on capital punishment for “second

69
degree murders.” To the contrary, the Supreme Court has

explicitly approved a plethora of aggravating factors that

afford the jury “wide discretion” in crimes “where the victim

dies.” Kennedy, 554 U.S. at 440. And there is no indication by

the Court that the States or the federal government must include

premeditation or deliberation as a required aggravating factor.

Indeed, the Court has repeatedly upheld death penalty schemes

that did not require a finding of premeditation and

deliberation. For instance, in Arave v. Creech, 507 U.S. 463

(1993), the statute under which the defendant was convicted

defined “first degree murder” to include not only premeditated

murders but also murders where, for example, (1) the victim was

a fellow prison inmate or law enforcement officer, (2) the

defendant was already serving a sentence for murder, (3) the

murder occurred during a prison escape, or (4) the murder

occurred during the commission of specified felonies. Id. at

475. In the context of that statute, the Court found

sufficiently narrowing as an aggravating factor the fact that

the defendant was a “cold-blooded, pitiless slayer.” Id. at

472-76. Similarly, in Jurek v. Texas, 428 U.S. 262 (1976), the

Court upheld the death penalty for murder that had to be

deliberate but not premeditated and where the jury made a

finding of future dangerousness. Id. at 269 (describing the

regime). And in Tison v. Arizona, 481 U.S. 137 (1987), the

70
Court upheld the death penalty for a participant in a felony

murder who had not actually committed the murder. The Court

held that the defendant’s “substantial participation in a

violent felony under circumstances likely to result in the loss

of innocent human life may justify the death penalty even absent

an ‘intent to kill.’” Id. at 154. In short, there is no

suggestion that capital punishment is appropriate only for

murders involving premeditation and deliberation.

In the same vein, a survey of state statutes reveals a lack

of any national consensus that premeditation and deliberation

are necessary to qualify a defendant for the death penalty.

Most state statutes that divide murder into degrees include in

“first degree murder” more than just premeditated murders. The

overwhelming majority include felony murders and make them

punishable by death without any showing of premeditation. 2 And

2
On our review of the 22 States that divide murders into
degrees, 17 make felony murder without premeditation a capital
crime. See Ariz. Rev. Stat. Ann. § 13-1105; Ark. Code Ann.
§§ 5-10-101 to -102; Cal. Penal Code §§ 189, 190; Colo. Rev.
Stat. §§ 18-3-102, -1.3-1201; Del. Code Ann. tit. 11, § 636;
Idaho Code Ann. §§ 18-4003 to -4004; La. Rev. Stat. Ann. §
14:30; Miss. Code Ann. § 97-3-19; Neb. Rev. Stat. § 28-303; Nev.
Rev. Stat. § 200.030; N.H. Rev. Stat. § 630:1; N.C. Gen. Stat. §
14-17; Okla. Stat. tit. 21, §§ 701.7, 701.9; S.D. Codified Laws
§§ 22-16-4, -6-1; Tenn. Code § 39-13-202; Wash. Rev. Code
§§ 10.95.020-.030; Wyo. Stat. Ann. § 6-2-101.

And in the 10 States that do not include degrees, all 10
provide for capital punishment for felony murder absent any
premeditation. See Ala. Code § 13A-6-2; Ga. Code Ann. § 16-5-1;

71
there are numerous examples of other types of murder, for which

the penalty may be death, that do not require premeditation or

deliberation. 3 The principle that may be derived from these

state statutes is that capital murders are not defined solely by

premeditation and deliberation, but rather by elements that make

those murders particularly heinous.

The federal statutes applicable in this case follow the

national consensus. Section 1959 authorizes the death penalty

for murder that aids racketeering enterprises, and § 924(c) and

(j)(1) authorize the death penalty for committing murder with

malice aforethought, as defined in 18 U.S.C. § 1111(a), while

using a firearm during and in relation to a crime of violence.

The Federal Death Penalty Act further narrows the circumstances

where the death penalty may be imposed by requiring that the

jury find that the defendant had the requisite intentional mens

rea, 18 U.S.C. § 3591(a)(2), and that at least one statutory

Ind. Code §§ 35-42-1-1, 35-50-2-3; Ky. Rev. Stat. Ann.
§ 507.020; Mont. Code Ann. § 45-5-102; Ohio Rev. Code Ann.
§ 2903.01; Or. Rev. Stat. §§ 163.095, .105, 115; S.C. Code Ann.
§§ 16-3-10 to -20; Tex. Penal Code § 19.03; Utah Code Ann. § 76-
5-202.
3
E.g., Ariz. Rev. Stat. Ann. § 13-1105(A)(3) (classifying
as first degree murder the unpremeditated, intentional killing
of a police officer in the line of duty); Ark. Code Ann. § 5-10-
101 (making it a capital crime to cause the death of a child
less than 14 years of age while exercising extreme indifference
to human life); Nev. Rev. Stat. § 200.030(1)(c) (defining as
murder in the first degree murders committed to avoid arrest).

72
aggravating factor existed, id. § 3593(d). The jury found the

conditions satisfied in this case, including that Umaña had

engaged in multiple killings. See id. § 3592(c)(16).

In light of the flexibility the Supreme Court affords

lawmakers in determining the aggravating factors that define

capital murders, Kennedy, 554 U.S. at 440, and because there is

no nationwide consensus requiring premeditation or deliberation

as required predicates for the imposition of the death penalty,

we conclude that §§ 1959(a)(1) and 924(c),(j)(1), in concert

with the Federal Death Penalty Act, impose sufficient narrowing

criteria to satisfy the Eighth Amendment.

Umaña contends alternatively that even if the death penalty

is not categorically barred as a punishment for the crimes of

which he was convicted, it was nonetheless excessive in the

particular circumstances of this case. This argument merits

minimal discussion. The jury found that Umaña killed two people

in furtherance of a racketeering enterprise, and that he had

killed before and posed a danger in the future. We conclude

that the death penalty was proportional to the crimes for which

Umaña was convicted.

XIII

Finally, Umaña contends -- with respect to the claim he

made to the district court that he is mentally retarded and

73
therefore should not receive the death penalty -- that the

government should have borne the burden of proof. He does not

challenge the merits of the district court’s findings with

respect to his claim of mental retardation. Rather, he argues

that since his interest in the issue is a “matter of life and

death,” see Atkins v. Virginia, 536 U.S. 304 (2002) (holding

that the death penalty is inappropriate for mentally retarded

defendants), the government should have borne the burden to

prove him competent and, because it did not carry the burden, he

should not have received the death penalty.

We conclude that Umaña cannot now make this argument. He

argued below that he had the burden of proof on the issue, and

any error that he now claims was invited by him. In his motion

for a pretrial hearing on mental retardation, he stated:

Because Defendant’s court-appointed neuropsychologist
has obtained a full-scale IQ result of 66, it appears
that there is a substantial possibility that Defendant
will ultimately be able to carry his burden of
establishing by a preponderance of the evidence that
he is mentally retarded and thus ineligible for the
death penalty.

(Emphasis added). This statement by Umaña that he bore the

burden of proving mental retardation was not an errant mistake.

In two other motions requesting a hearing on mental retardation,

he included citations to various district court cases describing

the procedure for such hearings, which included the following

parenthetical: “finding that question of mental retardation

74
should be resolved by the judge at a pretrial hearing, and

burden should be on defendant by preponderance of the evidence.”

Moreover, at the hearing itself, the district court stated at

the outset that the burden would be on Umaña to prove mental

retardation by a preponderance of the evidence, and Umaña did

not object. He cannot now complain that the district court

followed the very procedure that he requested. See United

States v. Lespier, 725 F.3d 437, 449-51 (4th Cir. 2013).

In any event, we conclude that Umaña correctly stated the

law in representing to the district court that he had to carry

the burden of proof on the issue. When a defendant seeks to

show that he is mentally retarded, he is putting on an

affirmative defense that would preclude execution, see Walker v.

True, 399 F.3d 315, 326 (4th Cir. 2005), and defendants may

constitutionally be made to bear the burden of proof for

affirmative defenses, see Leland v. Oregon, 343 U.S. 790, 799

(1952) (holding, in the context of a capital case, that States

may require defendants to bear the burden of proving insanity

beyond a reasonable doubt); see also Patterson v. New York, 432

U.S. 197, 210 (1977) (“Proof of the non-existence of all

affirmative defenses has never been constitutionally required”).

Umaña now argues that, as a matter of due process, the

government must bear the burden of proof on mental retardation,

citing United States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009),

75
where we held that the involuntary administration of

antipsychotic drugs to restore a defendant’s competence for

trial required the government to prove the relevant factors by

clear and convincing evidence. See also Addington v. Texas, 441

U.S. 418, 431-33 (1979) (concluding that the government’s proof

must meet a “clear and convincing evidence” standard for civil

commitment). These cases, however, are inapt comparisons. When

the government seeks to involuntarily commit or medicate a

defendant, it is not presenting an affirmative defense but

attempting to infringe on the individual’s constitutionally

protected liberty interests. See Sell v. United States, 539

U.S. 166, 177-79 (2003); Addington, 441 U.S. at 425.

Umaña also argues that a finding of mental retardation was

an Apprendi element of his capital offense, which would alter

the prescribed range of sentences to which he was exposed and,

therefore, be the government’s responsibility to prove. See

Alleyne, 133 S. Ct. at 2160. But we rejected this precise

argument in Walker, where we stated:

[T]he finding of mental retardation does not increase
the penalty for the crime beyond the statutory maximum
-- death. Rather, a defendant facing the death
penalty may avoid that penalty if he successfully
raises and proves by a preponderance of the evidence
that he is mentally retarded. The state does not have
a corollary duty to prove that a defendant is “not
retarded” in order to be entitled to the death
penalty. Accordingly, “an increase” in a defendant’s
sentence is not predicated on the outcome of the
mental retardation determination; only a decrease.

76
399 F.3d at 326 (citations omitted). When a defendant raises

mental retardation as an issue, its resolution can only decrease

the sentence to which the defendant is exposed, and the Apprendi

line of cases is therefore not applicable. See In re Johnson,

334 F.3d 403, 405 (5th Cir. 2003) (“[N]either Ring and Apprendi

nor Atkins render the absence of mental retardation the

functional equivalent of an element of capital murder which the

state must prove beyond a reasonable doubt. As the state points

out, the absence of mental retardation is not an element of the

sentence any more than sanity is an element of an offense”

(citation omitted)).

We accordingly reject Umaña’s argument that the government

had the burden of proving the absence of mental retardation in

order for him to receive the death penalty.

XIV

Umaña has presented numerous issues in challenging his

conviction and sentence, each of which has been fully presented

in his fulsome brief and at oral arguments to the court. After

having carefully considered each of his arguments, as well as

the record in this case, we conclude that Umaña had a fair trial

and that the death penalty was justified by the jury’s factual

findings and by law and was not imposed under the improper

77
influence of passion, prejudice, or any other arbitrary factor.

Accordingly, we affirm his conviction and sentence.

AFFIRMED

78
GREGORY, Circuit Judge, dissenting:

The majority opinion denies Mr. Umaña the right to confront

his accusers in a jury proceeding to determine whether he lives

or dies. The right to confront one’s accusers is a right as old

as it is important. Cf. Acts 25:16 (“[I]t is not the Roman

custom to hand over anyone before they have faced their

accusers...”). The Sixth Amendment guarantees a defendant the

right “to be confronted with the witnesses against him” “in all

criminal prosecutions.” U.S. Const. amend. VI. It also

guarantees the right to an attorney, jury factfinding, notice of

the crimes of which a defendant is accused, and a trial in the

venue where the crime was committed. Id.

The last four of these Sixth Amendment rights -- counsel,

jury, venue, and notice -- are not at issue today, nor are they

controversial. During Federal Death Penalty Act (“FDPA”)

proceedings, a defendant cannot be sentenced to death without

these Sixth Amendment rights. However, under the majority’s

holding today, capital defendants are denied the right to

confront their accusers throughout certain stages of an FDPA

proceeding. In contravention of the history and text of the

Confrontation Clause, and in spite of modern Supreme Court

jurisprudence emphasizing the importance of the Confrontation

Clause, the majority strips Umaña of the Sixth Amendment right

79
most important for ensuring the accuracy of trial outcomes

during the most important proceeding of his life.

This is an important constitutional question that the

Supreme Court has not yet resolved, though three circuits have

wrestled with the issue. See Muhammad v. Sec’y, Fla. Dep’t of

Corr., 733 F.3d 1065 (11th Cir. 2013) (finding that

Confrontation Clause does not apply to capital cases after

guilty verdict); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.

2002) (same); United States v. Fields, 483 F.3d 313, 324–338

(5th Cir. 2007) (same); Proffitt v. Wainwright, 685 F.2d 1227,

1252–53 (11th Cir. 1982) (finding a right to cross examine the

author of a psychiatric report under the Sixth Amendment during

sentencing) modified, 706 F.2d 311 (expressly limiting case to

psychiatric reports). 1 This is an issue of first impression in

this circuit, though we have held that the Confrontation Clause

1
In addition, district courts have addressed this issue,
reaching conflicting results. Four district courts have found
that the Clause applies. See United States v. Stitt, 760 F.
Supp. 2d 570, 581-82 (E.D. Va. 2010); United States v. Sablan,
555 F. Supp. 2d 1205 (D. Colo. 2007); United States v. Mills,
446 F.Supp. 2d 1115, 1127–1129 (C.D. Cal. 2006); United States
v. Green, 372 F.Supp.2d 168, 175 (D. Mass. 2005). Another
district court found that the right applies, but this decision
was vacated. United States v. Jacques, 768 F.2d 684, 698–700 (D.
Vt. 2011) vacated by United States v. Jacques, 684 F.3d 324, 330
(2d Cir. 2012). Two district courts have found that the right
applies only during the eligibility phase of sentencing, which
is the second stage of FDPA trials. See United States v. Jordan,
357 F. Supp. 2d 889, 903 (E.D. Va. 2005); United States v.
Bodkins, CRIM.A. 4:04CR70083, 2005 WL 1118158 (W.D. Va. May 11,
2005).

80
does not apply in non-capital sentencing. United States v.

Powell, 650 F.3d 388, 392–93 (4th Cir. 2011).

“Death, in its finality, differs more from life

imprisonment than a 100-year prison term differs from one of

only a year or two. Because of that qualitative difference,

there is a corresponding difference in the need for reliability

in the determination that death is the appropriate punishment.”

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion). I would refuse to strip a defendant of the

Confrontation Clause right -- a right whose “very mission . . .

is to advance the accuracy of the truth-determining process in

criminal trials” -- at a proceeding in which a jury must decide

whether a man lives or dies. United States v. Inadi, 475 U.S.

387, 396 (1986) (internal quotation marks and citations

omitted). Accordingly, I dissent.

I.

I begin with some of the factual background that provides

the foundation for my reasoning. First, one must understand the

unique structure of FDPA trials, which illustrates that the

Confrontation Clause should not disappear simply because a

defendant is accused of a crime at a later stage of his judicial

proceedings. Second, one must understand the nature of the

accusations made in this particular case. Mr. Umaña was

81
sentenced to death largely based on unconfronted testimony that

was as damning as it was dubious.

The FDPA requires three jury findings before a criminal

defendant can be killed by the federal government. First, the

defendant must be found guilty of a death-eligible crime. 18

U.S.C. § 3591. Second, a factfinder must decide whether one of

several aggravating factors exists. The factors that make a

defendant eligible for death are listed by statute. 18 U.S.C. §

3593(e). Third, if such an aggravating factor is found, the

factfinder must finally decide whether all aggravating factors

outweigh all mitigating factors. Id. Unless the factfinder makes

the requisite findings in each of the three stages, death is not

within the permissible range of sentences.

In this case, the district judge trifurcated the

proceedings so that each of the above steps was conducted

separately. J.A. 3224. In the second phase, the government only

sought to prove that Mr. Umaña met two statutory aggravating

factors: an attempt to kill more than one person in a single

criminal episode, and the knowing creation of a grave risk of

death to more than one person. J.A. 2631; see 18 U.S.C. §

3592(c)(5), (c)(16). In the third phase, the government sought

to prove four more aggravating factors. J.A. 3543–45. Most

relevant in this case, and what ultimately became the keystone

of the government’s argument, was whether Mr. Umaña had been

82
involved in other acts of violence not reflected in his criminal

record, specifically two separate incidents of murder in Los

Angeles. J.A. 3544. The primary evidence for these crimes was a

series of transcripts of police interrogations in which

accomplices of Umaña who were with him during the first of two

Los Angeles murder incidents claim that Umaña was the only

member in their group who fired a weapon that killed two

teenagers. Umaña had no opportunity to cross-examine these

witnesses.

The FDPA provides a set of safeguards that applies to

evidence at capital sentencing, though constitutional safeguards

also apply. See Estelle v. Smith, 451 U.S. 454, 462–63 (1981).

While evidence presented need not comport with the entirety of

the Federal Rules of Evidence, information must nonetheless 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; accord Fed. R. Evid. 403. In

addition, the FDPA explicitly provides for rights echoing those

of the Sixth Amendment. The FDPA requires that the government

attorney give notice of the specific aggravating factors that

will be used to justify a death sentence. Compare § 3593(a) with

U.S. Const. amend. VI (“[T]he accused shall enjoy the right . .

. to be informed of the nature and cause of the accusation.”).

The defendant is given the right to a jury. Compare § 3593(b)

83
with U.S. Const. amend. VI (“[T]he accused shall enjoy the right

to a speedy and public trial, by an impartial jury.”). However,

the statute is silent on other Confrontation Clause rights. See

generally 18 U.S.C. §§ 3591-99. Importantly, the fact that the

FDPA is silent on certain constitutional rights does not mean

that those rights do not exist or that the Act is

unconstitutional. See United States v. Fulks, 454 F.3d 410, 437–

38 (4th Cir. 2006); United States v. Sampson, 486 F.3d 13, 22–23

(1st Cir. 2007).

Finally, in addition to understanding the structure of FDPA

trials, it is important to emphasize that the unconfronted

testimony used against Umaña was as critical to the government’s

case as it was inherently suspect. In Bruton v. United States, a

co-defendant’s accusation against the defendant was introduced

as evidence by a separate witness. 391 U.S. 123, 124 (1968). In

finding a violation of the Confrontation Clause, the Court noted

that accusations from co-defendants facing punishment for the

same crime are not only “devastating to the defendant but their

credibility is inevitably suspect . . . given the recognized

motivation to shift blame onto others.” Id. at 136. A review of

the record in this case demonstrates both how “devastating” and

how “suspect” such accusations can be. Id.

First, the accusations were devastating: the government

made the evidence of multiple previous murders the centerpiece

84
of its case for the death sentence. Nearly every page of the

transcript of the government’s summation argument in the third

phase of the trial focuses on these unconfronted accusations of

murder. See, e.g., J.A. 3402 (“[Umaña] had killed before”); J.A.

3403 (“[Umaña] had earned those two letters on his forehead and

he earned them by killing”); J.A. 3404 (“[Umaña] . . . had

killed before. And he was going to kill again.”); J.A. 3405

(claiming to jury that Umaña thought “I’ve done this before. I

know what I have to do.”); J.A. 3406 (claiming to jury that

Umaña thought “I know they were dead because I know what dead

is. I’ve killed before.”); J.A. 3407 (“We know he’s killed

before.”); J.A. 3408 (“Does that [previous murder] story sound

familiar? . . . Sure it sounds familiar because that’s exactly

what happened later in Greensboro.”); J.A. 3409 (arguing that

Umaña thought to himself, “I’m Wizard from MS-13. We need to go

out and we need to take care . . . of the people in [Lemon Grove

Park]. And that’s exactly what he did.”); J.A. 3411 (pointing to

“the two that you heard a lot of evidence on, the two additional

– the three additional murders”).

The record also reveals that the accusations, though

“devastating,” were “suspect.” Bruton, 391 U.S. at 136. For the

first Los Angeles murder incident, in which a group of MS-13

members exited a car to shoot two teenagers who had flashed

rival gang signs, there is conflicting eyewitness evidence on

85
Umaña’s role. Two eyewitnesses with no role in the altercation

stated to police that the shooter was the driver of the car.

However, three of Umaña’s fellow gang-members who were in the

car with him claimed that Umaña was the shooter, but also stated

that Umaña was not the driver. Thus, for this murder allegation,

the only evidence linking Umaña to the crime was given by three

potential co-defendants with a strong incentive to push the

blame onto Umaña. Neutral eyewitnesses, meanwhile, suggest that

Umaña was not the shooter.

The only other inculpatory evidence for these two murders

is from Umaña himself. Police officers from Los Angeles who were

investigating these murders interviewed Umaña in North Carolina

after Umaña had been arrested for the murder of the Salinas

brothers. These officers told Umaña that he might as well admit

to the Los Angeles murders because, given that he was facing a

mandatory life sentence for the North Carolina murders, it would

make no difference if he claimed responsibility for the prior

crimes. After denying that he was responsible for the prior

murders at length, Umaña eventually gave in to the

interrogation, albeit with an equivocal, unclear statement:

Officer: Did you shoot him? Tell me, tell me face to
face. Did you shoot him?

Umaña: Say that, that I did it. Right? I really didn’t
do it, right?

Officer: You did it?

86
 Umaña: To say it like that.

Officer: No. Not just to say it, but to say the truth
. . .

Umaña: To say the truth?...[laughs]

Officer: You did it? Not out of meanness, but because
you thought they were, were gang members.

Umaña: Ah . . .

Officer: Is that right?

Umaña: Yes. . . . And that is[,] that is the point
that mattered to him? [Laughs]?

J.A. 4382–83.

Umaña was also linked to a third murder that occurred in

Lemon Grove Park. Two pieces of evidence link Umaña to this

crime. First, the same gun was used in this murder as was used

in the previous Los Angeles murders, at which Umaña was present.

This evidence is weak in light of expert testimony during trial

suggesting that MS-13 gang members share their firearms as a

matter of course. That said, Umaña admits to having been present

at both murders, which gives more weight to the fact that the

same murder weapon was used. However, while “there is no

evidence that anyone else was present at both murder sites,”

Maj. Op. at 51, there were apparently one or two dozen people at

the scene of the second murder, and the identities of these

people are unknown. Thus, Umaña was present at both murders, but

it is speculation to conclude that no one else was as well.

87
 In addition to this circumstantial evidence, there is weak

eye-witness evidence that implicates Umaña in the Lemon Grove

Park murder. The witness, a member of a rival gang, twice picked

Umaña out of a photo lineup. In 2005, the witness chose Umaña’s

picture out of a six-person photo lineup, but only concluded

that “I remember seeing this guy but I’m not sure if he is the

one that came that day to the park.” J.A. 4060. Three years

later, the witness again picked Umaña’s picture out of a lineup,

but again expressed uncertainty, noting that “I’m not 100%

sure,” because “everything happened so fast.” J.A. 4057. The

witness clarified that “what I saw was the gun and after that I

began to run.” Id. This witness testified during sentencing,

where he noted that the shooting occurred after 9 p.m. on a

basketball court where the overhead lights had been turned off.

Thus, while Umaña has been linked to another Los Angeles murder,

the best evidence of this link is from a witness who saw the

shooter from twenty feet away at night with at best partial

lighting. Further, this witness admitted that he only saw a gun

before taking off running in the opposite direction. This

witness has never been able to make an identification nearing

100% certainty.

Finally, and most problematic, the government introduced

evidence linking Umaña to murders in El Salvador, even though

this evidence had been ruled as inadmissible and even though

88
Umaña had no chance to confront his accusers. At sentencing, the

government sought to introduce evidence that Umaña had committed

violent crimes, including homicide, in El Salvador.

Specifically, the government wanted to call an El Salvadoran

prosecutor to testify. The district court denied the

government’s motion, concluding that the evidence “lacks

sufficient indicia of reliability” and that “its probative value

is outweighed by a danger of unfair prejudice.” J.A. 3232.

Incredibly, in spite of the district court’s clear ruling,

the government introduced a transcript as evidence in which a

United States law enforcement officer is quoted as saying “I

know he’s done stuff in El Salvador,” J.A. 4301, “[w]e know . .

. that they were looking for you for homicide also in El

Salvador,” J.A. 4316, and “[w]e know that he’s, he’s a violent,

violent guy. We know that he’s wanted in El Salvador . . . for

many violent crimes . . . I know he’s a shooter. I know he’s an

enforcer. I know he’s a gangster,” J.A. 4315. Through an

evidentiary back door left wide open, the government snuck in

testimony that “lacked consistency and credibility,” per the

district court, but had enough prejudicial value that the

government made its entire case at sentencing about Umaña’s past

uncharged homicidal conduct.

In sum, the evidence linking Umaña to previous murders was

as powerful as it was problematic. For both the Los Angeles and

89
El Salvador murders, there was not enough evidence for

prosecutors to bring a case or sustain a conviction in stage one

of an FDPA trial. Unfazed, the government simply bided its time

until the third stage of the trial, when, per the district

court’s ruling and the majority opinion today, important

constitutional safeguards disappear. Umaña filed a timely

objection at sentencing, arguing that his Sixth Amendment rights

were violated.

II.

Turning to the merits, an understanding of the history and

purpose of the Confrontation Clause, as well as an analysis of

the Supreme Court’s recent jurisprudence on the Confrontation

Clause and Sixth Amendment factfinding, shows that the

government violated Umaña’s constitutional rights when he was

sentenced to death without a chance to confront his accusers.

District courts cannot dodge the constitutional guarantee of

confrontation by splitting a capital trial into three segments

and waiting until the third segment to strip a defendant of his

Sixth Amendment rights. Further, because the Sixth Amendment

right at issue here – the right of cross-examination – is “the

constitutionally prescribed method of assessing reliability,”

Crawford v. Washington, 541 U.S. 36, 62 (2004), it is especially

offensive to the Constitution to deny a defendant this right

90
during the very stage of the proceedings in which a jury must

decide whether he deserves to live or be killed.

I begin with the text of the Sixth Amendment, but conclude

that the words themselves do not settle the matter. “In all

criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him.” U.S. Const.

amend. VI. Because the FDPA did not exist at the time of the

founding, the Sixth Amendment is silent on the distinction

between different stages of FDPA trials. While the right applies

to all criminal prosecutions, the text does not give guidance on

when a criminal prosecution ends.

An analysis of the history leading to the Sixth Amendment

is more helpful. The historical developments that led to the

Confrontation Clause weigh in favor of its application at all

stages of FDPA trials. In the leading case on modern

Confrontation Clause doctrine, the Supreme Court explained that

the Confrontation Clause right “is most naturally read as a

reference to the right of confrontation at common law, admitting

only those exceptions established at the time of the founding.”

Crawford, 541 U.S. at 54. The FDPA sentencing regime did not

exist at the time of the founding, nor was there an analogous

system. Rather, at the time when the Confrontation Clause was

crafted, a death sentence flowed automatically from convictions

for certain capital felonies. See United States v. Fields, 483

91
F.3d at 370 (Benavides, J., dissenting); see also 1 Stat. 112–19

(defining a series of federal crimes and mandating a death

sentence upon conviction for certain capital crimes); Rory K.

Little, The Federal Death Penalty: History and Some Thoughts

About the Department of Justice's Role, 26 Fordham Urb. L.J.

347, 360-65 (1999). Thus, there was no separate hearing to

determine whether death was appropriate. See Woodson, 428 U.S.

at 289 (1976). When capital trials are structured in this way,

no defendant receives a death sentence after a trial in which he

is denied the Confrontation Clause right, nor is any defendant

sentenced to death on the basis of unconfronted accusations of

prior crimes. “By the time the Bill of Rights was adopted,” “the

jury determined which homicide defendants would be subject to

capital punishment by making factual determinations.” Ring, 536

U.S. 599 (quoting Walton v. Arizona, 497 U.S. 639, 710–11

(Stevens, J., dissenting)). These factual determinations could

only be made in proceedings in which the Confrontation Clause

applied in full force. Thus, at the time of the founding, there

was no exception to the Confrontation Clause right for capital

sentencing. 2

2
In non-capital sentencing, meanwhile, hearsay testimony
was often used and proceedings were more informal, suggesting a
distinction between capital and non-capital sentencing. John G.
Douglass, Confronting Death: Sixth Amendment Rights at Capital
Sentencing, 105 Colum. L. Rev. 1967, 2016–17 (2005).

92
 Crawford lends further support to the idea that, based on

the purpose of the Confrontation Clause, the right to confront

adverse witnesses extends to every stage of an FDPA trial. In

discussing the history of the clause, the Supreme Court noted

that the common law right to confrontation developed in response

to abuses in certain infamous trials in England. In these

notorious cases, defendants were convicted, and sometimes

executed, without the right to examine their accusers. Crawford,

541 U.S. at 43–45. One of “[t]he most notorious instances” of

such abuses occurred in the treason trial for Sir Walter

Raleigh. Id. at 44. In concluding that a judge’s reliability

ruling cannot substitute for the right to confrontation, the

Court noted that “[i]t is not plausible that the Framers’ only

objection to the trial was that Raleigh’s judges did not

properly weigh [reliability] factors before sentencing him to

death. Rather, the problem was that the judges refused to allow

Raleigh to confront [the key government witness] in court.” Id.

(emphasis added). Thus, part of the reasoning motivating

Crawford was the desire to reject any interpretation of the

Confrontation Clause which would lead to the same abuses seen in

the Raleigh trial. Further, the Court emphasized that what made

that infamous case so odious was the lack of a confrontation

right before Raleigh was sentenced to death.

93
 Mr. Umaña now finds himself in the same position as

Raleigh, stripped of his right to confront face-to-face those

whose words would condemn him to die. Powerful accusations were

made against Umaña, and though these accusations were not the

basis for the initial guilty verdict, they ultimately helped

form the basis for his capital sentence. Further, like Raleigh,

Umaña lacked the opportunity to confront his accusers before the

death sentence was issued. The distinction between the cases is

that Sir Walter Raleigh was sentenced to death after a unitary

proceeding in which guilt and penalty were decided

simultaneously. In Umaña’s case, meanwhile, the judge

trifurcated the trial and ensured that any constitutional

protections had been severed by the time of stage three, in

which a jury weighs whether death is the appropriate sentence.

If the judicial proceeding that led to Sir Walter Raleigh’s

execution is unconstitutional, as it no doubt is, then it is

unclear why the same situation would lead to a different result

merely because the court artificially cabins the proceeding in

which the constitutional abuse occurs.

Recent Supreme Court case law on Sixth Amendment rights in

sentencing further buttresses this view. In Ring v. Arizona, the

Supreme Court considered whether the right to jury factfinding

applies for aggravating factors necessary to apply a death

sentence, which would be the equivalent of the second stage of

94
an FDPA trial. 536 U.S. at 608–09. The Court held “that the

Sixth Amendment applies to” this stage of death sentencing:

defendants have the right to jury factfinding for such factors.

Id. at 609. Granted, Ring does not control here, since this case

concerns the introduction of unconfronted testimony in the third

stage of FDPA trials. The majority finds this distinction key,

arguing that once a defendant is found death-eligible in stage

two of an FDPA trial, “the jury exercises discretion in

selecting a life sentence or the death penalty, and any facts

that the jury might find during that phase do not alter the

range of sentences it can impose.” Maj. Op. at 48–49. This is

incorrect. Under the FDPA, a jury cannot impose a death sentence

until it finds that “all the . . . aggravating factors found to

exist sufficiently outweigh all the mitigating factors.” 18

U.S.C. § 3593(e). Only when a jury finds that aggravating

factors sufficiently outweigh the mitigating factors may it

impose a death sentence under the FDPA. Thus, while stage three

of FDPA trials involves some jury discretion, juries must

nonetheless make certain factual findings in this final stage

before a death sentence can be imposed.

Put another way, the jury’s burden in stage three – a

finding that the aggravating factors sufficiently outweigh the

mitigating factors – “is not optional.” Green, 372 F. Supp. 2d

at 177. “Because we will never know exactly how each factor

95
influences the jurors’ ultimate punishment determination, logic

dictates that all aggravating factors – together – be considered

legally essential to the punishment.” Id. As in Green, “the

government’s argument that non-statutory factors are not

essential is disingenuous; if the government does not require

additional evidence to convince the jury to vote for death, why

is it invoking non-statutory factors at all?” Id. In this case,

the proof is in the pudding: the government pointed to the past

murders on nearly every page of the transcript of its closing

argument at sentencing. Without these past murders, it is

doubtful that the government could meet the burden necessary to

apply the death penalty under the FDPA. As such, the permissible

range of sentencing is increased in this stage, indicating that

Sixth Amendment rights do apply. See also Sablan, 555 F. Supp.

2d at 1221 (“[U]nder the structure of the FDPA, it is not the

finding of a statutory aggravating factor that actually

increases the punishment. The fact that actually increases the

punishment is the existence of all the aggravating factors found

by the jury (taken together).”).

The majority argues that Williams v. New York, 337 U.S. 241

(1949), a pre-Crawford, pre-Ring Supreme Court case, directly

disposes of the issue before us. That case is neither on point

nor persuasive, and in any event, its power is dubious in light

of more recent Supreme Court jurisprudence. In Williams, the

96
Supreme Court upheld a death sentence that relied in part on a

probation report that implicated the defendant in prior crimes.

Id. at 243. The Court continues to cite Williams for the

proposition that sentencing decisions contain an element of

discretion and can rely on evidence that would not be admissible

at trial. See, e.g., Pepper v. United States, 131 S. Ct. 1229,

1235 (2011). We have cited to Williams for the similar concept

that sentencing courts “must have recourse to a much broader

array of information than we allow the trier of fact to consider

in determining a defendant’s guilt.” Powell, 650 F.3d at 391–92.

Nonetheless, Williams is not controlling, because that case

is a pre-incorporation, pre-FDPA case concerning a state death

sentence. That is, Williams was not a Confrontation Clause case

at all, but rather a Due Process Clause case, and it considered

a state capital sentencing regime, not the federal one used for

Mr. Umaña. Williams, 337 U.S. at 252. Nothing in the holding of

Williams dictates that the Confrontation Clause does not apply

to the third stage of FDPA trials. Rather, the holding in

Williams merely means that it does not offend due process for a

state judge to rely on unconfronted hearsay in death sentencing.

This is different from a ruling that a far more specific clause

of the constitution permits a jury to rely on such evidence in a

proceeding to decide whether the death sentence can be applied.

Further, the decisions cited above -- concerning the Sixth

97
Amendment right to factfinding at sentencing, death penalty

procedure, and the Confrontation Clause -- all suggest that even

if Williams is not dead letter, it should not be extended to

apply to FDPA proceedings on Sixth Amendment grounds.

Even though Williams is not on point, the majority

nonetheless argues that its spirit is intact. That is, Williams

embodies the idea that the Confrontation Clause should not apply

because “modern concepts individualizing punishment have made it

all the more necessary that a sentencing judge not be denied an

opportunity to obtain pertinent information by a requirement of

rigid adherence to restrictive rules of evidence.” Id. at 247.

This argument is internally consistent, but it elides a far

more important principle of capital sentencing, which is the

need for reliability. As the Supreme Court has noted, death is

such a weighty punishment and so different from a prison term

that “there is a corresponding difference in the need for

reliability in the determination that death is the appropriate

punishment.” Woodson, 428 U.S. at 305 (plurality opinion). Thus,

greater access to information for the sentencing court is but

one principle of death sentence jurisprudence – a principle that

gives way to the more important principle that a death sentence

be based on accurate factfinding. Further, as discussed above,

the Supreme Court has explained that “the Confrontation Clause’s

very mission . . . is to advance the accuracy of the truth-

98
determining process in criminal trials.” United States v. Inadi,

475 U.S. 387, 396 (1986) (internal quotation marks and citations

omitted). Taken together, the Supreme Court’s parallel

jurisprudence on the Confrontation Clause and on the need for

reliability in death sentences demonstrates why Umaña’s sentence

must be reversed. Death sentences must stand on reliable ground,

and the Confrontation Clause is “the constitutionally prescribed

method of assessing reliability.” Crawford, 541 U.S. at 62.

Further, in striking the balance between the desire for

more evidence and the unquestionable need for reliability in

death sentences, it is important to note that the Confrontation

Clause right will not only enhance reliability – it will do so

at a small practical cost, contrary to the concerns voiced by

the majority. The majority frets that if we recognize Mr.

Umaña’s Sixth Amendment rights through each stage of an FDPA

trial, we would “‘endlessly delay criminal administration in a

retrial of collateral issues.’” Maj. Op. at 48 (quoting

Williams, 337 U.S. at 250). To the contrary, the Confrontation

Clause applies only to testimonial evidence, and would only be

implicated in a narrow range of aggravating factors, suggesting

that recognizing Mr. Umaña’s Sixth Amendment right will not

“endlessly delay criminal administration of collateral issues.”

Maj. Op. at 48 (quoting Williams, 337 U.S. at 250). As

recognized in Crawford, the Confrontation Clause only reaches

99
“material such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine, or

similar pretrial statements that declarants would reasonably

expect to be used prosecutorially.” Crawford, 541 U.S. at 51.

Even testimonial evidence continues to be admissible so long as

the defendant has a prior chance to cross-examine the witness

and the witness is unavailable. Id. at 51–52. Thus, the vast

majority of the evidence in Mr. Umaña’s case, and in most FDPA

trials, would be unaffected by recognizing Mr. Umaña’s Sixth

Amendment right. Only for a narrow range of aggravating factors,

related to uncharged prior crimes, would the Confrontation

Clause be implicated, and even then only some of the time.

In any case, given that the prosecution made Mr. Umaña’s

uncharged prior crimes the centerpiece of its capital case in

the final stage of his FDPA trial, I cannot accept the

majority’s conclusion that the unconfronted evidence used

against Mr. Umaña was a mere “collateral issue[].” To the

contrary, the government’s entire case for the death penalty

relied on the accusation that Umaña “had killed before.” J.A.

3404. In sum, Mr. Umaña’s Sixth Amendment right to confrontation

provides enormous benefits in terms of reliability in capital

sentencing, and this benefit comes at a small cost – limiting

only very specific types of aggravating information.

100
 The majority supports its ruling by pointing to “the policy

of presenting full information to sentencers,” Maj. Op. at 47,

but this reasoning creates an evidentiary loophole that turns

FDPA trials upside-down. Unquestionably, a sentencing court must

have access to information not relevant to guilt in order to

ensure that punishments are individualized. While this general

proposition is valid, applying it blindly in this case is

problematic because it lumps together evidence like a

defendant’s 4th grade report card with evidence of murder. In a

typical criminal trial, the most serious crime gets proven at a

guilt trial, where the full panoply of constitutional and

evidentiary rights apply. In the later sentencing stages, softer

evidence, both negative and positive, is introduced, to allow

for individualization of punishment. This structure makes sense:

the more serious an allegation, the more serious the protections

given to a defendant.

Under the majority’s ruling, this structure is flipped. It

would have been outrageous for the government to convict Umaña

for the North Carolina murders without giving him his Sixth

Amendment rights. Yet, the centerpiece of the government’s case

for the death sentence was a series of uncharged murders that

were in many ways more serious than the North Carolina incident.

The third stage of an FDPA trial is typically reserved for

evidence about the victims’ families or about the defendant’s

101
elementary school performance or Boy Scout record. The jury must

weigh these soft, more subjective factors to fit the punishment

to the crime. The evidence we consider here is so much more

severe than a 4th grade report card that it is different in

kind, not degree. When a jury considers a Boy Scout record, the

truthfulness and reliability of the evidence is a secondary

matter at best. The more difficult task for this type of

information is fitting it into a cohesive, complete picture of

the defendant. The weight to be accorded to the evidence is the

predominant inquiry, and its reliability is a lesser concern. In

contrast, when a jury considers evidence of three additional

murders, the reliability of the evidence is the predominant

concern, whereas the weight to accord such evidence is much

easier to discern. That is, it is easy to know how much weight

to accord evidence of past murders because it completely

overwhelms evidence like an elementary school report card, as

the government’s closing argument demonstrates. Instead, for

this type of evidence the most important inquiry is as to its

truth and reliability. This distinction again shows why the

district court committed legal error. The government is

essentially exploiting the district court’s ruling to have a

second murder trial, only without the restrictions that the

Supreme Court mandated in Crawford and Ring. The majority’s

ruling today lets the tail wag the dog, and it will encourage

102
strategic posturing by prosecutors to punish defendants for

crimes that could never be found beyond a reasonable doubt by a

rational factfinder.

III.

The majority today strips a defendant of his Sixth

Amendment right to confront his accusers. Further, it denies

this right in a proceeding in which a jury must decide whether a

human being is fit to live. In this, the most momentous decision

a jury can make, the majority would do away with the

“constitutionally prescribed method of assessing reliability” of

evidence. Crawford, 541 U.S. at 62.

Umaña is being sent to his death based on accusations by

self-interested accomplices – self-interested accomplices whose

testimony, at least in part, was contradicted by independent

witnesses. This illustrates the Supreme Court’s admonition that

accusations from co-defendants facing the same punishment are

“devastating to the defendant.” Bruton, 391 U.S. at 136. “The

unreliability of such evidence is intolerably compounded when

the alleged accomplice, as here, does not testify and cannot be

tested by cross-examination. It was against such threats to a

fair trial that the Confrontation Clause was directed.” Id.

Because I conclude that the Confrontation Clause applies at

every stage of an FDPA trial, not just the first two stages, and

because I conclude that it is both wrong and unconstitutional

103
for a death sentence to rest on unconfronted accusatory

evidence, I dissent.

104