United States v. Fields

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED April 2, 2007
IN THE UNITED STATES COURT OF APPEALS March 29, 2007
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 04-50393
______________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHERMAN LAMONT FIELDS,

Defendant - Appellant.
______________________

Appeal from the United States District Court
for the Western District of Texas
No. 6:01-CR-164-1
_____________________

Before: KING, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge, writing for the Court except as to Parts

II.A.1-3

SMITH, Circuit Judge, writing for the Court in Parts II.A.1-31

This is a direct appeal in a federal death penalty case.

Sherman Fields challenges his seven convictions and his death

sentence, claiming more than twenty different errors. For the

reasons below, we reject all of Fields’s claims of error and,

accordingly, affirm his convictions and sentences.

I. BACKGROUND

1
The writings for the Court are unanimous, except as to
Part II.A.1, authored by Judge Smith and joined only by Judge King.
 The evidence presented at trial reveals the following: Fields

was arrested on federal firearms charges in September 2001. He was

held in federal custody at the McClennan County Detention Center in

Waco, Texas. In November 2001, Fields bribed a correctional

officer—paying him $5000 in exchange for a key to the detention

center’s fire escape door. Using the key, Fields escaped.

After fleeing federal custody, Fields met up with a friend.

Through this friend, Fields obtained a car and a .32 caliber

revolver. That evening, Fields visited his ex-girlfriend, Suncerey

Coleman, at Hillcrest Hospital in Waco, where she was attending to

her newborn baby. Fields was angry with Coleman for seeing other

men. After Fields and Coleman conversed for some time, Fields

convinced her to leave the hospital with him. They drove to

Downsville, Texas, a small town just outside of Waco. The two had

sexual intercourse,2 and then Fields shot Coleman twice in the

head. After that, he dragged her dead body from the road into some

underbrush to hide it.

Several days later, Fields approached a Hillcrest Hospital

employee, Tammy Edwards, while Edwards was exiting her car.

Brandishing a handgun and grabbing her by the throat, Fields

demanded that Edwards get back in the car. Although Edwards was

able to struggle free, Fields managed to wrestle away her car keys.

Fields drove away in Edwards’s car.

2
It is unclear whether the sex was consensual.

2
 Coleman’s body was found on November 21, more than two weeks

after her death. Three days later, police rearrested Fields. The

Government charged Fields by a seven-count indictment with

(1) conspiring to escape from federal custody, (2) escaping from

federal custody, (3) using and carrying a firearm during and in

relation to escape, resulting in intentional murder, (4) car-

jacking, (5) using and carrying a firearm during and in relation to

carjacking, (6) felon in possession of a firearm, (7) using and

carrying a Ruger .22 caliber firearm during and in relation to

escape.

At trial, Fields asked to represent himself. The district

court advised against such a course of action. After Fields

insisted, the court instructed his two previously-appointed

attorneys to act as standby counsel. Following several days of

evidence, the jury convicted Fields on all counts.

The Government sought a death sentence on the murder count

pursuant to 18 U.S.C. § 924(j)(1).3 At his separate trial on

sentencing,4 Fields waived his right to proceed pro se and was

represented by counsel. Fields objected on Confrontation Clause

grounds to the admission of certain out-of-court statements to

3
As to the noncapital counts, the district court sentenced Fields
to 715 months of imprisonment.
4
This was a typical one-part sentencing proceeding. The court did
not hold separate hearings on death eligibility and selection, as some
courts have recently done in “trifurcated” capital trials. See, e.g.,
United States v. Johnson, 378 F. Supp. 2d 1051 (N.D. Iowa 2005).

3
establish that Fields committed prior violent crimes. After

hearing additional evidence, the jury recommended the death pen-

alty. Following this recommendation, the court sentenced Fields to

death. Fields appealed, challenging his convictions and his death

sentence.

II. DISCUSSION

While Fields raises a variety of potential trial errors, his

more substantial claims concern the sentencing phase of trial. At

the expense of a chronological account of the trial proceedings, we

begin by addressing the sentencing issues before turning to the

potential trial errors.

A. CLAIMS OF SENTENCING ERROR

1. CONFRONTATION

Fields maintains that the district court erred by admitting

testimonial hearsay at his capital sentencing proceeding in viola-

tion of Crawford v. Washington, 541 U.S. 36 (2004). Fields pre-

served this purely legal claim of error at sentencing, so our re-

view is de novo.

a. The Nature of the Confrontation Clause Challenge

Fields challenges, on the basis of the Confrontation Clause,

the introduction at sentencing of several hearsay statements of

five types: (1) statements made about him by his mother and juven-

ile probation officers in various records introduced into evidence

by a Juvenile Probation Department official; (2) statements made

4
about him by corrections officers in prison records introduced into

evidence by state prison officials; (3) statements made by officers

in police reports introduced into evidence by someone other than

the officer who had made the report; (4) a detective’s description,

based on the investigating officer’s report, of the drive-by shoot-

ing that led to Fields’s 1992 conviction of attempted murder; and

(5) statements made by witnesses to police officers while the of-

ficers were investigating various past crimes in which Fields may

have been involved but for which he was never charged (the state-

ments being described in the officers’ testimony).

None of the challenged statements was presented as part of the

government’s effort to establish the statutory aggravating factors

that trigger death-eligibility under the Federal Death Penalty Act

(“FDPA”). See 18 U.S.C. § 3592(c). Indeed, the statements are not

in any way relevant to the eligibility-triggering factors included

in the government’s Notice of Intent To Seek a Sentence of Death.

Those factors are (1) that Coleman’s death occurred during Fields’s

commission of (or immediate flight from the commission of) an es-

cape in violation of 18 U.S.C. § 751; (2) that Fields had been con-

victed of a federal or state offense punishable by imprisonment for

more than one year, involving the use, attempted use, or threatened

use of a firearm; and (3) that he had committed the offense after

substantial planning and preparation to cause the death of

5
another.5 Rather, all of the challenged statements were introduced

as part of the government’s effort to establish Fields’s past

violent conduct and future dangerousness, both of which are non-

statutory aggravating factors that were included in the govern-

ment’s notice.6

The establishment of nonstatutory aggravating factors is nei-

ther necessary nor sufficient to authorize imposition of the death

penalty. Nonstatutory aggravating factors may be considered by the

jury in selecting an appropriate sentence once a defendant is found

eligible for the death penalty, but they are not, and cannot be,

used to determine that eligibility, as the Supreme Court has

explained:

[S]tatutory aggravating circumstances play a constitu-
tionally necessary function at the stage of legislative
definition: they circumscribe the class of persons eli-
gible for the death penalty. But the Constitution does
not require the jury to ignore other possible aggravating
factors in the process of selecting, from among that
class, those defendants who will actually be sentenced to
death.

Zant v. Stephens, 462 U.S. 862, 878 (1983).

Because they relate only to nonstatutory aggravating factors,

5
The jury found two of the three aggravating factors beyond a rea-
sonable doubt (all but “substantial planning and preparation”). Indeed,
Fields stipulated to the prior felony conviction involving the use of
a firearm.
6
See 18 U.S.C. § 3593(d); see also United States v. Jones, 132
F.3d 232, 240 (5th Cir. 1998) (stating that “[a]fter finding the exis-
tence of at least one statutory aggravating factor [under the FDPA], the
jury may consider the existence of nonstatutory aggravating factors for
which notice has been given by the government”), aff’d, 527 U.S. 373
(1999).

6
the hearsay statements challenged by Fields are relevant only to

the jury’s selection of an appropriate punishment from within an

authorized range and not to the establishment of his eligibility

for the death penalty. After reviewing the applicable caselaw and

considering the particular importance of “individualized sentenc-

ing” in capital cases, we conclude that the Confrontation Clause

does not operate to bar the admission of testimony relevant only to

a capital sentencing authority’s selection decision.7

b. Constitutional Rights at Capital Sentencing:
Williams v. New York

Constitutional rights traditionally have been more circum-

scribed at sentencing, even capital sentencing, than during the

guilt phase. In Williams v. New York, 337 U.S. 241 (1949), a state

judge sentenced a defendant to death on the basis of information

obtained pursuant to a statutory presentence investigation and re-

layed to the judge outside the courtroom. At the sentencing hear-

ing, the judge explained why he believed the death penalty was

appropriate:

[The judge] stated that the pre-sentence investigation
revealed many material facts concerning appellant’s back-
ground which though relevant to the question of punish-
ment could not properly have been brought to the atten-
tion of the jury in its consideration of the question of

7
Because the Confrontation Clause does not apply to the testimony
challenged in this case, it is unnecessary to determine whether the rel-
evant statements are testimonial under Crawford and Davis v. Washington,
126 S. Ct. 2266 (2006). Furthermore, as discussed in more detail infra,
we decline to decide the applicability of the Confrontation Clause to
the presentation of evidence at sentencing that is relevant only to
death eligibility or to both eligibility and selection.

7
 guilt. He referred to the experience appellant “had had
on thirty other burglaries in and about the same vicin-
ity” where the murder had been committed. The appellant
had not been convicted of these burglaries although the
judge had information that he had confessed to some and
had been identified as the perpetrator of some of the
others. The judge also referred to certain activities of
appellant as shown by the probation report that indicated
appellant possessed “a morbid sexuality” and classified
him as a “menace to society.”

Id. at 244.

The defendant challenged his sentence on due process grounds,

stating that his constitutional rights had been violated because

“the sentence of death was based upon information supplied by wit-

nesses with whom the accused had not been confronted and as to whom

he had no opportunity for cross-examination or rebuttal.” Id. at

243. The Supreme Court rejected the challenge, holding that a

judge, consistent with due process, could sentence a defendant on

the basis of information untested in open court. “[P]ossession of

the fullest information possible concerning the defendant’s life

and characteristics” was “essential” to a judge’s selection of an

appropriate sentence, and therefore

we do not think the Federal Constitution restricts the
view of the sentencing judge to the information received
in open court. The due-process clause should not be
treated as a device for freezing the evidential procedure
of sentencing in the mold of trial procedure. So to
treat the due-process clause would hinder if not preclude
all courts state and federal from making progressive ef-
forts to improve the administration of criminal justice.

Id. at 247, 251. The Court was urged to “draw a constitutional

distinction as to the procedure for obtaining information where the

8
death sentence is imposed,” but it explicitly refused to do so.

Id. at 251.

Williams is a due process, rather than Sixth Amendment, case

and therefore does not dictate the result of Fields’s Confrontation

Clause challenge. We conclude, however, that Williams’s distinc-

tion between guilt and sentencing proceedings and its emphasis on

the sentencing authority’s access to a wide body of information in

the interest of individualized punishment is relevant to our

Confrontation Clause inquiry. Included in the notion that infor-

mation influencing a sentencing decision need not be introduced in

open court is the idea that defendants have no confrontation right

at that phase and therefore that testimonial hearsay is not per se

inadmissible. Indeed, the Court referred to the rights to confront

and cross-examine as “salutary and time-tested protections” includ-

ed within the due process guarantee but available only “where the

question for consideration is the guilt of the defendant.” Id.

at 245.8

c. Continuing Relevance of Williams

If we adhere to the logic of Williams, Fields’s Confrontation

Clause challenge must fail. The dissent, however, posits that Wil-

liams is irrelevant to the issue at hand because it is not expli-

8
The Court analyzed the relevant issues in Williams under the rub-
ric of due process because the case involved a challenge to a capital
sentence imposed by a state court. The Sixth Amendment was not incor-
porated against the states until Pointer v. Texas, 380 U.S. 400 (1965).

9
citly a Sixth Amendment case and because the Williams Court “sup-

posed that there was no ‘constitutional distinction’ between capi-

tal sentencing and ordinary sentencing.” Now that later decisions

have suggested that “death is different,” the dissent takes the

position that Williams has nothing to offer on the question of the

admissibility of evidence at capital sentencing. We disagree.

i. Williams’s Status as a Due Process Case Does
Not Preclude Its Relevance

Although it did not do so under the guise of the Sixth Amend-

ment, the Williams Court plainly discussed the right of confronta-

tion. Furthermore, even in the wake of the Supreme Court’s incor-

poration of the Sixth Amendment against the states and its applica-

tion of some, but not all, Sixth Amendment rights at sentencing,

see infra, Williams has never been overruled.9 In fact, the Court

9
Even the post-incorporation case Specht v. Patterson, 386 U.S.
605, 610 (1967), which held that due process requires that a defendant
“be present with counsel, have an opportunity to be heard, to be con-
fronted with witnesses against him, have the right to cross-examine, and
to offer evidence of his own” where the sentencing proceeding ef-
fectively adds a new charge requiring additional fact-finding and lead-
ing to additional punishment, explicitly declined to overrule Williams.
See Specht, 386 U.S. at 608. Although a stronger argument can be made
that the death-eligibility phase of a capital sentencing proceeding is
similar to a proceeding qualifying for enhanced due process protections
under Specht, there is a constitutionally significant distinction
between statutory aggravating factors necessary to establish death-
eligibility and nonstatutory aggravating factors that may be considered
only after a defendant has been determined to be death eligible. See
United States v. Bourgeois, 423 F.3d 501, 507 (5th Cir. 2005) (holding
that failure to charge nonstatutory aggravating factors in indictment
is not constitutional error because under the FDPA “only statutory
factors expose a criminal defendant to the death penalty”) (relying on
Jones v. United States, 527 U.S. 373, 377 (1999)). Accordingly, Specht
is not applicable to this case because the evidence Fields challenges
(continued...)

10
continues to cite Williams for the proposition that there are no

per se constitutional prohibitions on the introduction of hearsay

at sentencing.10

These decisions discuss Williams, and the constitutional limi-

tations on the scope and type of information a sentencer may con-

sider, under the umbrella of due process rather than the Sixth

Amendment. This circumstance may be significant: In ruling that

the enactment of the Sentencing Guidelines did not transform ordi-

nary sentencing into a separate criminal proceeding, requiring, un-

der Specht v. Patterson, 386 U.S. 605 (1967), that a defendant be

accorded the full panoply of trial rights, the Eighth Circuit stat-

ed the following:

We recognize that Williams v. New York, Williams v. Okla-
homa, and Specht all considered the application of the
right to confront witnesses under the rubric of the Due
Process Clause of the Fourteenth Amendment, [but] . . .
we note that Specht was decided after the Sixth Amend-
ment’s Confrontation Clause was found applicable to the
States via the Fourteenth Amendment. Pointer v. Texas,
380 U.S. 400 . . . (1965). That the Supreme Court anal-
yzed the right of confrontation both before and after
Pointer as an issue of due process suggests that due pro-
cess, not the Confrontation Clause, provides the relevant
framework for testing the use of hearsay testimony at a

9
(...continued)
relates only to nonstatutory aggravating factors.
10
See, e.g., United States v. Tucker, 404 U.S. 403, 446-47 (1972)
(citing, inter alia, Williams for the proposition that in selecting a
sentence, “a judge may appropriately conduct an inquiry broad in scope,
largely unlimited either as to the kind of information he may consider,
or the source from which it may come”) (emphasis added); see also Witte
v. United States, 515 U.S. 389, 397-98 (1995); Wisconsin v. Mitchell,
508 U.S. 476, 485 (1983).

11
 sentencing proceeding. Other courts have relied on a due
process analysis rather than the Confrontation Clause
when considering the right of confrontation at sentenc-
ing. See, e.g., United States v. Berzon, 941 F.2d 8,
16-21 (1st Cir. 1991); United States v. Castellanos, 904
F.2d 1490, 1495-96 (11th Cir. 1990); United States v.
Carmona, 873 F.2d 569, 574-75 (2d Cir. 1989); United
States v. Richards, 784 F. Supp. 1373, 1377-78 (N.D. Ind.
1992).

United States v. Wise, 976 F.2d 393, 398 n.2 (8th Cir. 1992) (en

banc) (emphasis added). More recently, in holding that Crawford

does not apply at sentencing, the Seventh Circuit has stated that

“the relevant provision at sentencing is the Due Process Clause,

not the confrontation clause; Williams shows that witnesses pro-

viding information to the court after guilt is established are not

accusers within the meaning of the confrontation clause.” United

States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 126

S. Ct. 671 (2005).11

ii. Gardner v. Florida

Perhaps more importantly, Gardner v. Florida, 430 U.S. 349

(1977), a post-incorporation decision regarding procedural require-

ments at capital sentencing, establishes that Williams remains rel-

evant in the capital sentencing context. In Gardner, a plurality

held that a defendant cannot be sentenced to death on the basis of

11
Roche is a noncapital case. The Seventh Circuit, however, had
ruled, on the basis of Williams, that “the Supreme Court has held that
the Confrontation Clause does not apply to capital sentencing. It ap-
plies through the finding of guilt, but not to sentencing, even when
that sentence is death.” Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.
2002).

12
information undisclosed to a defendant and contained in a presen-

tence investigation report because, to satisfy due process, a capi-

tal defendant must be given a chance to rebut or explain adverse

information introduced at sentencing. Id. at 362. At first blush,

this ruling appears to call the core holding of Williams into

doubt. Any characterization of Gardner as a Williams-killer and a

harbinger of the application of the confrontation right at capital

sentencing would be misplaced, however, for at least two reasons.

First, Gardner, like Williams, is a due process case. Asked

to examine what rights defendants have under the Due Process Clause

with regard to the presentation of evidence at capital sentencing,

the Court noted that defendants were entitled to effective as-

sistance of counsel during sentencing, id. at 358, but made no

mention of a right of confrontation, lending further credence to

the notion that the categorization of Williams as a pre-incorpora-

tion due process case does not vitiate its relevance to the issue

with which we are faced.

Second, Gardner explicitly declined to overrule Williams and

instead distinguished it, stating that “the holding of Williams is

not directly applicable to this case.” Id. at 356. “[I]n Williams

the material facts concerning the defendant’s background which were

contained in the presentence report were described in detail by the

trial judge in open court,” affording the defendant the opportunity

“to challenge the accuracy or materiality” of said facts. Id. The

13
Gardner plurality held only that a defendant’s due process rights

are abridged where he is given no similar “opportunity to deny or

explain” adverse evidence, id. at 362, and the plurality was care-

ful to note that “[t]he fact that due process applies [at capital

sentencing proceedings] does not, of course, implicate the entire

panoply of criminal trial procedural rights,” id. at 358 n.9.

The dissent notes that the Gardner plurality also distin-

guishes Williams on the ground that “[t]he trial judge in Williams

was not asked to ‘“afford appellant a chance to refute or discredit

any of [the statements at issue] by cross-examination or other-

wise.”’ Id. at 356 (quoting Williams). As the Second Circuit has

stated, however, Williams “does not turn on any concept of waiver

by failure to object. It rests, rather, on the broad ground that

due process does not preclude reliance on out-of-court information

in imposing sentence.” United States v. Fatico, 579 F.2d 707, 712

n.11 (2d Cir. 1978).

More importantly, despite making note of the Williams defen-

dant’s failure to object at sentencing to the denial of an opportu-

nity to challenge the veracity of the relevant information through,

inter alia, cross-examination, Gardner nowhere suggests that cross-

examination of hearsay declarants in particular is necessary to

satisfy due process. Gardner instead focuses solely on whether in-

formation has been disclosed to the defendant so that he can “deny

or explain” it by any means.

14
 Gardner offers no basis for assuming that cross-examination of

a witness presenting hearsay evidence, for example, would not be

sufficient to satisfy constitutional concerns, a fact that Profes-

sor John Douglass, whose work is cited frequently by the dissent,

fully acknowledges: “The Court has never said that the right to

‘deny or explain’ sentencing information includes the confrontation

rights that Williams rejected: the right to see, hear, and cross-

examine the sources of that information.”12

For the same reason, Smith v. Estelle, 602 F.2d 694 (5th Cir.

1979), neither compels nor implies the rejection of the principles

underlying Williams and the extension of the confrontation right to

capital sentencing. There, we held that a defendant’s due process

rights were violated by the state’s calling a psychiatrist as a

surprise witness at a capital sentencing proceeding. Reasoning

from Gardner, we stated that “[s]urprise can be as effective as

secrecy in preventing effective cross-examination, in denying

‘opportunity for (defense) counsel to challenge the accuracy or

materiality of’ evidence.” Id. at 699 (quoting Gardner). We never

hinted, however, that providing a defendant the opportunity to

12
John G. Douglass, Confronting Death: Sixth Amendment Rights at
Capital Sentencing, 105 COLUM. L. REV. 1967, 1980 (2005). Indeed, the
Williams Court’s reference, picked up by the Gardner Court, to the de-
fendant’s failure to challenge the relevant information “by cross-
examination or otherwise” arguably suggests that cross-examination in
general, and thus cross-examination of a hearsay declarant in particu-
lar, should not be deemed the only effective means of denying or ex-
plaining adverse information at sentencing.

15
question, with advance preparation, a witness presenting hearsay

evidence would not satisfy due process.13

The decision in Del Vecchio v. Ill. Dep’t of Corr., 31 F.3d

1363, 1387 (7th Cir. 1994), offers support for the proposition that

the due process guarantee of an opportunity to “deny or explain”

evidence does not undercut Williams’s sanction of the use of out-

of-court statements at capital sentencing. In Del Vecchio, the

court was faced with a capital defendant’s challenge, on Confronta-

tion Clause grounds, to the in-court testimony of two psychiatrists

“that they had perused medical reports from other psychiatrists who

had examined Del Vecchio, and that the conclusions reached in those

reports supported their opinions” that the defendant was a socio-

path. The court held that Illinois’s statute permitting the admis-

sion of such hearsay at capital sentencing adequately protected the

defendant’s constitutional rights by “providing that [defendants]

‘shall be given a fair opportunity to rebut any information re-

ceived at the hearing.’” Id. at 1388. The defendant had in fact

been given that opportunity, because “[h]e had access to the con-

tested hearsay reports; he could have cross-examined Drs. Rogers

and Cavanaugh about the reports; he could have called his own

experts.” Id.

Based on the above, we find wholly unpersuasive the Eleventh

13
This logic applies equally to the generic reference to “the
benefit of cross examination” in Barefoot v. Estelle, 463 U.S. 880, 898-
99 (1983).

16
Circuit’s extension (in reliance on Gardner and Smith) of the Sixth

Amendment confrontation right through the entirety of the capital

sentencing process, and we note that that circuit is the only one

to have taken that step.14 The Seventh Circuit has ruled, pursuant

to Williams, that the Confrontation Clause does not apply at capi-

tal sentencing,15 and the Fourth Circuit has expressed doubt that

it does.16

d. “Death is Different”

Expanding the scope of our inquiry beyond Gardner, the Supreme

Court’s more general “death is different” jurisprudence does not

call into doubt either the relevance or the persuasiveness of Wil-

liams on the question presented in the instant case. An examina-

tion of Court precedent regarding the Sixth and Eighth Amendments

indicates that “at least with regard to the rights listed in the

Sixth Amendment, the Court’s rules for capital sentencing are es-

sentially the same as for noncapital sentencing . . . . When it

14
See Profitt v. Wainwright, 685 F.2d 1227, 1252-55 (11th Cir.
1982); United States v. Brown, 441 F.3d 1330, 1361 n.12 (11th Cir.
2006), cert. denied, 127 S. Ct. 1149 (2007).
15
See Szabo, 313 F.3d at 398 (stating additionally that on collat-
eral review it was “not entitled” to question the holding of Williams
in light of more recent developments in capital sentencing).
16
See United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003)
(stating that under plain error standard of review “[i]t is far from
clear that the Confrontation Clause applies to a capital sentencing
proceeding”) (citing United States v. Terry, 916 F.2d 157, 160-61 (4th
Cir. 1990), for the proposition that “United States courts have a long
history of using reliable hearsay for sentencing” and a “trial court may
properly consider uncorroborated hearsay evidence that the defendant has
had an opportunity to rebut or explain”).

17
comes to Sixth Amendment rights at sentencing, it seems, death is

not so different after all.” Douglass, Confronting Death, 105

COLUM. L. REV. at 1993.

i. Application of Sixth Amendment Rights at
Sentencing

Since Williams was decided, certain Sixth Amendment rights

have been applied incrementally to the sentencing process, capital

and noncapital. Now criminal defendants have a right to counsel

throughout sentencing.17 Likewise, they have a right to a jury

finding, beyond a reasonable doubt, of any facts necessary to ex-

pose a defendant to a higher maximum penalty, including death, re-

gardless of whether those facts are labeled “sentencing factors”

rather than elements of the offense.18

17
See Mempa v. Rhay, 389 U.S. 128, 134, 137 (1967) (stating that
the right is applicable at sentencing in general); Strickland v.
Washington, 466 U.S. 668, 686-87 (1984) (holding that the right applies
at capital sentencing in particular).
18
See Apprendi v. New Jersey, 530 U.S. 466, 482-83 (2000); Ring v.
Arizona, 536 U.S. 534, 609 (2002). In Schriro v. Summerlin, 542 U.S.
348, 354 (2004), the Court explained that Ring stands for the
proposition that “because Arizona's statutory aggravators restricted (as
a matter of state law) the class of death-eligible defendants, those
aggravators effectively were elements for federal constitutional
purposes, and so were subject to the procedural requirements the
Constitution attaches to trial of elements.” Accordingly, there is a
stronger argument to be made for the attachment of the confrontation
right where the government is attempting to establish eligibility-
triggering factors: Though labeled as “sentencing factors,” those
factors are more appropriately considered as elements of a capital
offense. This logic applies equally to the establishment of any
sentencing factors necessary to expose a defendant to a higher maximum
penalty in the noncapital context.

As discussed supra, Fields’s Confrontation Clause challenge relates
only to evidence that the government introduced relevant to the jury’s
(continued...)
18
 When it comes to the ultimate selection of an appropriate pun-

ishment out of a range of available options, however, there is no

constitutional right to jury sentencing in a noncapital or capital

case.19 And with regard to the confrontation right, caselaw defin-

itively maintains the Williams principle in the noncapital context

and establishes that the right does not apply at sentencing. In

particular, the Confrontation Clause does not operate to bar the

introduction of testimonial hearsay at noncapital sentencing.20

(...continued)
ultimate selection decision. The applicability of the Confrontation
Clause to the establishment of eligibility-triggering factors is there-
fore not a question squarely presented by this case, and we decline to
resolve it definitively.
19
See McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986) (holding
that “there is no Sixth Amendment right to jury sentencing”); Cabana v.
Bullock, 474 U.S. 376, 385 (1986) (observing that “[t]he decision
whether a particular punishment . . . is appropriate in any given case
is not one that we have ever required to be made by a jury”); Spaziano
v. Florida, 468 U.S. 447, 460 (1984) (reasoning that “there certainly
is nothing in the safeguards necessitated by the Court’s recognition of
the qualitative difference of the death penalty that requires that the
sentence be imposed by a jury”).
20
See Tucker, 404 U.S. at 446-47; Witte, 515 U.S. at 397-98; Mit-
chell, 508 U.S. at 485; see also, e.g., Hall, 152 F.3d at 405; United
States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006); United States v.
Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990) (reasoning that “[a]
court may rely on uncorroborated hearsay testimony” at noncapital
sentencing); Roche, 415 F.3d at 618 (observing that the Confrontation
Clause, and therefore Crawford, do not apply at sentencing); United
States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (explaining that
“[n]othing in Crawford requires us to alter our previous conclusion that
there is no Sixth Amendment Confrontation Clause right at sentencing”);
United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005) (noting that
“[n]either Crawford nor Booker . . . addressed the applicability of the
right of confrontation to the sentencing context or the admissibility
of hearsay testimony at sentencing proceedings,” and therefore “[t]hese
cases . . . provide no basis to question prior Supreme Court decisions
that expressly approved the consideration of out-of-court statements at
(continued...)

19
 Here we are asked to decide whether the confrontation right

applies with full force throughout capital sentencing, despite the

fact that it is nonexistent at ordinary sentencing. Given that, as

shown above, no other Sixth Amendment right has been applied (vel

non) differently at capital sentencing from how it is applied at

noncapital sentencing, there is little reason to establish di-

vergent rules with regard to the confrontation right when the

sentencing authority is selecting a sentence from within an

authorized range.

On the basis of the Supreme Court’s consistent treatment of

Sixth Amendment rights across capital and noncapital cases alone,

we find unpersuasive the dissent’s textual argument for why the

Confrontation Clause should extend through the entirety of the

capital sentencing process, in light of the fact that the jury

right extends only as far as the eligibility determination. The

dissent contends that

[t]he Jury Clause has a unique second limitation that
does not apply to the Right to Counsel or the Confronta-
tion Clause: only a jury “trial” is required. A jury is
only required at trial, whereas both the Right to Counsel
and the Confrontation Clause apply more broadly to the
whole “criminal prosecution,” and thus to sentencing.

(Internal quotations and citations omitted.) This textual argument

proves too much, for it would apply equally at noncapital sentenc-

20
(...continued)
sentencing”); United States v. Chau, 426 F.3d 1318 (11th Cir. 2005)
(confirming that “there is no precedent from this Court or from the
Supreme Court establishing that the Confrontation Clause prohibits the
admission of hearsay evidence at sentencing proceedings”).

20
ing, where it has already been established that the right of

confrontation is nonexistent.21

The dissent’s argument in favor of the application of the Con-

frontation Clause throughout capital sentencing based on the in-

terplay of the right to counsel and the right of confrontation fal-

ters on similar grounds. The dissent states that “[t]he Sixth

Amendment extends the rights both to counsel and to confrontation

in ‘all criminal prosecutions,’ suggesting that where one right ap-

plies, the other does too.” The dissent further asserts that

“[r]equiring confrontation in the FDPA’s trial-like sentencing re-

gime is particularly appropriate given the interdependence of ad-

versarial rights . . . . [A] meaningful Right to Counsel at

capital sentencing depends on confrontation rights.” But if, as

the dissent suggests, the right to counsel and the right of

confrontation are adversarial tools that move in lock step, that

again begs the question: Why is the confrontation right admittedly

nonexistent at noncapital sentencing, even though the right to

counsel plainly applies throughout such proceedings?

To address this dilemma, the dissent emphasizes that capital

21
Furthermore, caselaw from other circuits calls into question the
dissent’s textual interpretation of the Sixth Amendment. “As a textual
matter, the sixth amendment, which refers to ‘criminal prosecutions,’
arguably applies only at trial,” thus suggesting that the words “prose-
cution” and “trial” are in fact interchangeable. United States v. Kiku-
mura, 918 F.2d 1084, 1102 (3d Cir. 1990). “A sentencing hearing . . .
is not a ‘criminal prosecution’ within the meaning of the Sixth
Amendment because its sole purpose is to determine only the appropriate
punishment for the offense, not the accused’s guilt.” United States v.
Francis, 39 F.3d 803, 810 (7th Cir. 1994).

21
sentencing is “more adversarial” than is noncapital sentencing:

“The Confrontation Clause should apply fully because FDPA sen-

tencing, unlike noncapital sentencing, involves a trial-like adver-

sarial proceeding.” For this proposition the dissent relies on

Bullington v. Missouri, 451 U.S. 430, 438-39 & n.10 (1981), by

stating that “[t]he Supreme Court applies certain ‘trial rights’ to

adversarial sentencing hearings that bear the ‘hallmarks of the

trial on guilt or innocence.’”

Bullington, however, is a Fifth Amendment double jeopardy

case, and the Court in Spaziano stated as follows:

The fact that a capital sentencing is like a trial in the
respects significant to the Double Jeopardy Clause . . .
does not mean that it is like a trial in respects signif-
icant to the Sixth Amendment’s guarantee of a jury trial.
The Court’s concern in Bullington was with the risk that
the State, with all its resources, would wear a defendant
down, thereby leading to an erroneously imposed death
penalty. There is no similar danger involved in denying
a defendant a jury trial on the sentencing issue of life
or death. The sentencer, whether judge or jury, has a
constitutional obligation to evaluate the unique circum-
stances of the individual defendant and the sentencer’s
decision for life is final. More important, despite its
unique aspects, a capital sentencing proceeding involves
the same fundamental issue involved in any other sentenc-
ing proceedingSSa determination of the appropriate pun-
ishment to be imposed on an individual . . . . The Sixth
Amendment never has been thought to guarantee a right to
a jury determination of that issue.

Spaziano, 468 U.S. at 459 (emphasis added) (internal citations

omitted). The Court’s analysis indicates that despite the “unique

aspects” of a capital sentencing proceeding, it is not, with re-

spect to the ultimate issue to be decided (the selection of an ap-

22
propriate punishment), any more “trial-like” than is ordinary sen-

tencing, where the Confrontation Clause has been held inap-

plicable.22

22
In support of its argument regarding the adversarial nature of
capital sentencing proceedings, the dissent makes note of the heightened
procedural requirements applied, as a matter of statutory rather than
constitutional imperative, in sentencing hearings under the FDPA. In
particular, the dissent emphasizes that the Act requires jury sen-
tencing, even though the Sixth Amendment does not. The dissent then
cites Robinson v. Polk, 438 F.3d 350, 359 (4th Cir.), cert. denied, 127
S. Ct. 514 (2006), for the proposition that the Confrontation Clause
“applies equally to sentencing proceedings tried to a jury.” Robinson
reaches that conclusion based on Morgan v. Illinois, 504 U.S. 719, 727-
28 (1992).

Morgan, however, holds only that due process mandates that in
trials in which a jury is not constitutionally required, if one is
provided, it “must stand impartial and indifferent to the extent
commanded by the Sixth Amendment.” Id. at 727. Thus, a jury demanded
by statute rather than the Constitution must still, for example, be free
from racial bias. Morgan says nothing, though, about the manner in
which evidence must be presented at sentencing in general, or in front
of a sentencing judge or jury in particular. Accordingly, Robinson is
unpersuasive.

The dissent’s citation of United States v. Cardenas, 9 F.3d 1139,
1154-56 (5th Cir. 1993) (en banc), does not boost its argument on this
score. The dissent states that Cardenas recognizes “that the Confron-
tation Clause may provide greater rights in cases tried before juries
than in bench trials.” Like Morgan, however, Cardenas says nothing
about the application of the clause at sentencing, whether the
proceeding is before a jury or a judge. Instead, it stands only for the
unremarkable proposition that the clause applies during the guilt phase
of a trial to prevent the use of incriminating out-of-court statements
made by a co-defendant who has not been cross-examined, and it suggests
that barring the admission of such statements is perhaps less crucial
when the question of guilt or innocence is being determined by a judge,
given that a judge is capable of “disregarding inadmissible
extrajudicial statements implicating a defendant.” Id. at 1154.

There is a constitutionally significant distinction between a trial
of the elements of an offense and the selection of an appropriate
penalty from an available range once guilt has been determined, and
neither this Court nor the Supreme Court has indicated that the
permissible, though not constitutionally required, use of jury
sentencing renders necessary the application of the Confrontation Clause
(continued...)
23
 Further to justify its proposed anomalous divergent treatment

of capital and noncapital sentencing with regard to the Confronta-

tion Clause, the dissent also relies on the history of capital mur-

der trials, stating that “[a]t the time the Confrontation Clause

was written, a capital trial was a single, unified proceeding at

which both guilt and sentence were decided. The Framers knew noth-

ing of capital sentencing proceedings separate from trial.” If one

was convicted of a capital felony, one was automatically sentenced

to death. According to the dissent, the trial became a “de facto

sentencing proceeding” in which the jury would render a verdict in

favor of a lesser crime if it did not think the death penalty was

warranted. The dissent asserts that

[t]he critical point is this: because these de facto
capital sentencing proceedings took the form of full
criminal trials, the defendant possessed full trial
rights of confrontation. However, the notion that
capital sentencing might be conducted ‘outside of an
adversarial trial’ is strictly a ‘post-constitutional’
phenomenon.

(...continued)
to the selection decision. Furthermore, even if one were to accept the
notion that because the FDPA employs jury sentencing, the Confrontation
Clause should apply throughout federal capital sentencing proceedings,
the notion that jury sentencing implicates greater constitutional rights
does nothing to support the broader position advocated by the dissent:
That is, that the clause applies to all capital sentencing proceedings,
regardless of whether a jurisdiction chooses to employ jury sentencing.

Finally, several states, including Texas, allow jury sentencing in
noncapital cases. See TEX. CODE CRIM. P. ANN. art. 37.07 § 2(b); ARK. CODE.
ANN. § 16-90-107(b)(1); KY. REV. STAT. ANN. § 532.055(2); MO. ANN. S TAT.
§ 557.036; VA. CODE ANN. § 19.2-295. As we have noted at length, however,
the Confrontation Clause does not apply at noncapital sentencing. The
dissent does not explain why jury sentencing should result in the at-
tachment of the confrontation right at capital sentencing even though
that link-up does not exist at noncapital sentencing.

24
 The dissent goes on to state that at the time of the Founding,

“cases suggest that judges conducted noncapital sentencing in in-

formal proceedings featuring testimonial hearsay.” Therefore, ac-

cording to the dissent, “[h]istory supports constraining con-

frontation rights in noncapital sentencing, but capital sentencing

has a different history that suggests the Confrontation Clause

should apply.”

This logic is flawed. The Framers did not know of an insti-

tution analogous to our capital sentencing procedure, because there

was no mechanism in the trials that operated as so-called “de facto

sentencing proceedings” for the exercise of discretion even after

a jury determined that a defendant was eligible for the death pen-

alty by convicting him of a capital felony. A sentencing author-

ity’s ability to select a lesser punishment in a capital case in

spite of death-eligibility is indeed a “post-constitutional” phe-

nomenon, and nothing in the history related by the dissent explains

why the presumption should not be as follows: Now that capital

sentencing includes such discretion, the exercise of it should be

treated in the same manner in which the Framers understood dis-

cretionary sentencing in the noncapital context to be treated with

respect to the use of testimonial hearsay.

Neither the text of the Sixth Amendment nor the history of

murder trials supports the extension of the Confrontation Clause to

testimony relevant only to penalty selection in a capital case.

25
Furthermore, the manner in which the Supreme Court has proceeded in

applying (vel non) Sixth Amendment rights during sentencing pro-

ceedings suggests there is no distinction between capital and ordi-

nary sentencing for Sixth Amendment purposes, and accordingly the

Court provides no indication that the reasoning of Williams has

been abandoned in the capital context.

ii. The Eighth Amendment

The Court’s Eighth Amendment jurisprudence likewise does not

dictate that capital sentencing should be treated differently from

ordinary sentencing with regard to the application of the Confron-

tation Clause. Rather, the Court’s emphasis on individualized sen-

tencing in its Eighth Amendment decisions lends support to the

animating principle behind Williams: When it comes to sentencing,

the more information available for consideration by the sentencing

authority, the more confidence we can have in the appropriateness

of the sentence.

The dissent asserts that

[t]he stringent “trial-like” procedures that govern capi-
tal sentencing derive from the Supreme Court’s unique
concern with reliability in death penalty cases. “In
capital proceedings generally, th[e] Court has demanded
that factfinding procedures aspire to a heightened stan-
dard of reliability. This especial concern is a natural
consequence of the knowledge that execution is the most
irremediable and unfathomable of penalties; that death is
different.” Ford v. Wainwright, 477 U.S. 399, 411 (1986)
(internal citations omitted). Confrontation is essential
to reliability.

Notably absent from the passage the dissent pulls from Ford is the

26
citation the Court uses to support the notion that capital “fact-

finding procedures aspire to a heightened standard of reliability.”

The Ford Court pointed to Spaziano, wherein it had opined that

[t]he absence of a lesser included offense instruction
increases the risk that the jury will convict, not be-
cause it is persuaded that the defendant is guilty of
capital murder, but simply to avoid setting the defendant
free. In Beck [v. Alabama, 447 U.S. 625 (1980)], the
Court found that risk unacceptable and inconsistent with
the reliability this Court has demanded in capital pro-
ceedings. The goal of the Beck rule, in other words, is
to eliminate the distortion of the factfinding process
that is created when the jury is forced into an all-
or-nothing choice between capital murder and innocence.
Requiring that the jury be instructed on lesser included
offenses for which the defendant may not be convicted,
however, would simply introduce another type of distor-
tion into the factfinding process. We reaffirm our
commitment to the demands of reliability in decisions in-
volving death and to the defendant’s right to the benefit
of a lesser included offense instruction that may reduce
the risk of unwarranted capital convictions.

Spaziano, 468 U.S. at 455-56.

Importantly, as Spaziano indicates, where the 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 evi-

dence. 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. Reliable death sentences, under the Eighth Amendment, are

27
those that result from a sentencing scheme that guards against ar-

bitrariness by streamlining discretion at the eligibility stage,

and then allows for the exercise of wide-ranging discretion at the

selection stage.

In chastising a defendant for failing to recognize the “dif-

fering constitutional treatment” accorded to the eligibility and

selection phases of capital sentencing, the Court has stated that

“[i]t is in regard to the eligibility phase that we have stressed

the need for channeling and limiting the jury’s discretion to en-

sure that the death penalty is a proportionate punishment and

therefore not arbitrary or capricious in its imposition.” Buchanan

v. Angelone, 522 U.S. 269, 275 (1998). With regard to the selec-

tion decision, the Court in Woodson v. North Carolina, 428 U.S.

280, 305 (1976), stated that “[b]ecause of [the] qualitative dif-

ference [between death and imprisonment], there is a corresponding

difference in the need for reliability in the determination that

death is the appropriate punishment in a specific case.”

The Court explained that the need for greater reliability in

the selection of an appropriate punishment entails not stricter ev-

identiary rules, but the assurance of “individualized sentencing”

once a defendant is eligible for the death penalty:

Consideration of both the offender and the offense in or-
der to arrive at a just and appropriate sentence has been
viewed as a progressive and humanizing development. See
Williams v. New York, 337 U.S., at 247-249 . . .; Furman
v. Georgia, 408 U.S., at 402-403 . . . (Burger, C.J.,
dissenting). While the prevailing practice of individu-

28
 alizing sentencing determinations generally reflects sim-
ply enlightened policy rather than a constitutional im-
perative, we believe that in capital cases the fundamen-
tal respect for humanity underlying the Eighth Amendment,
see Trop v. Dulles, 356 U.S., at 100 . . . (plurality
opinion), requires consideration of the character and
record of the individual offender and the circumstances
of the particular offense as a constitutionally indis-
pensable part of the process of inflicting the penalty of
death.

Id. at 304. Likewise, in Gregg v. Georgia, 428 U.S. 153, 203

(1976), the Court rejected a constitutional challenge to “the wide

scope of evidence and argument allowed at presentence hearings.”

We think that the Georgia court wisely has chosen not to
impose unnecessary restrictions on the evidence that can
be offered at such a hearing and to approve open and
far-ranging argument. So long as the evidence introduced
and the arguments made at the presentence hearing do not
prejudice a defendant, it is preferable not to impose re-
strictions. We think it desirable for the jury to have
as much information before it as possible when it makes
the sentencing decision.

Id. at 203-04.

All of this is not to suggest that evidentiary reliability is

unimportant at capital sentencing. Rather, the salient point is

that the particular reliability concern that distinguishes capital

sentencing from ordinary sentencing under the Eighth Amendment is

not evidentiary reliability.

Evidentiary reliability surely is important at capital sen-

tencing, just as it is at noncapital sentencing.23 The Supreme

23
Compare, e.g., United States v. Jones, 132 F.3d 232, 241 (5th
Cir. 1998), aff’d, 527 U.S. 373 (1999) (stating that under the FDPA,
“the defendant and the government may introduce any relevant information
(continued...)

29
Court’s Eighth Amendment jurisprudence, however, does not make evi-

dentiary reliability any more important at capital sentencing than

it is at noncapital sentencing, where the Confrontation Clause does

not apply.

A defendant in any sentencing proceeding must be given the op-

portunity to “deny or explain” the evidence against him, and

Crawford does not suggest that confrontation is the only mechanism

through which the reliability of testimony can be assessed. Cf.

Whorton v. Bockting, 127 S. Ct. 1173, 1183 (2007). Rather, Craw-

ford stands for the proposition that, where the clause applies,

confrontation is the only permissible method of assessing reliabil-

ity:

To be sure, the Clause’s ultimate goal is to ensure re-
liability of evidence, but it is a procedural rather than
a substantive guarantee. It commands, not that evidence
be reliable, but that reliability be assessed in a par-
ticular manner: by testing in the crucible of cross-
examination.

Crawford, 541 U.S. at 61.

Our conclusionSSthat the Confrontation Clause is inapplicable

to the presentation of testimony relevant only to the sentencing

23
(...continued)
during the sentencing hearing limited by the caveat that such
information be relevant, reliable, and its probative value must outweigh
the danger of unfair prejudice”) with U.S.S.G. § 6A.1.3 (providing that
“[i]n resolving any dispute concerning a factor important to the
sentencing determination, the court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy”).

30
authority’s selection decisionSSdoes not doom defendants to being

sentenced to death on the basis of unreliable hearsay evidence.

“Although the Confrontation Clause does not apply at sentencing

proceedings, this is not to say that there are no constitutional

limitations on the use of hearsay evidence at such proceedings. A

defendant may not be sentenced on the basis of ‘misinformation of

constitutional magnitude.’” Wise, 976 F.2d at 402 (citing Tucker,

404 U.S. at 447). Accordingly, “[d]ue process requires that some

minimal indicia of reliability accompany a hearsay statement,”

United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993), and “a

significant possibility of misinformation justifies the sentencing

court in requiring the Government to verify the [hearsay] informa-

tion,” Fatico, 579 F.2d at 712-13.

The FDPA in particular sets up a procedural framework at capi-

tal sentencing that adequately balances (1) the requisite access to

a wide range of information to achieve individualized sentences and

(2) the need to protect defendants from being sentenced on the ba-

sis of “misinformation of a constitutional magnitude.” Though the

FDPA states that the Federal Rules of Evidence do not apply at cap-

ital sentencing, it also provides that a defendant may rebut any

information received at a hearing and must be given a fair oppor-

tunity to present argument as to the adequacy of the information

presented to establish the existence of any aggravating or miti-

gating factor. 18 U.S.C. § 3593(c). Additionally, under the FDPA

31
a sentencing judge may exclude information if its probative value

is outweighed by the danger of creating unfair prejudice, confusing

the issues, or misleading the jury.

e. Conclusion

Based on the foregoing, the principles underlying Williams are

relevant, persuasive, and ultimately fatal to Fields’s Confronta-

tion Clause challenge. Given the particular importance of indi-

vidualized sentences in capital cases, we will not “freez[e] the

evidential procedure of sentencing in the mold of trial procedure,”

Williams, 337 U.S. at 251, where, as here, challenged testimony is

relevant only to a sentencing authority’s selection decision. The

district court did not err in admitting the challenged statements.

2. ALLEN CHARGE

About five hours after sentencing deliberations began, the

jury sent a note asking “[i]f we cannot come to a unanimous vote on

either death or life imprisonment without possibility of release,

what options does the court have for punishment?” The court re-

sponded, without objection, “[y]ou are instructed on page 16 of the

Punishment Phase Charge of the Court as follows: ‘If you are un-

able to unanimously agree on either punishment option, the Court

will impose punishment, which cannot be a sentence of death.’ Be-

yond that, I am unable to answer your question.”

Forty minutes later the jury sent a note stating that “[w]e

cannot come to a unanimous agreement.” The court responded with

32
the supplemental instruction “[p]lease continue your delibera-

tions.” Id. Approximately one hour later the jury returned a un-

animous sentence of death.

Fields claims the supplemental instruction, to which he did

not have the opportunity to object in the district court, impermis-

sibly coerced a verdict of death. We review for abuse of discre-

tion supplemental instructions telling a jury to continue deliber-

ating. See United States v. Straach, 987 F.2d 232, 243 & n.13 (5th

Cir. 1989).

In Allen v. United States, 164 U.S. 492, 501 (1896), the

Court stated that “[t]he very object of the jury system is to se-

cure unanimity by a comparison of views, and by arguments among the

jurors themselves.” If a jury is having difficulty reaching a un-

animous verdict, it is permissible to instruct it

that in a large proportion of cases absolute certainty
could not be expected; that, although the verdict must be
the verdict of each individual juror, and not a mere ac-
quiescence in the conclusion of his fellows, yet they
should examine the question submitted with candor, and
with a proper regard and deference to the opinions of
each other; that it was their duty to decide the case if
they could conscientiously do so; that they should lis-
ten, with a disposition to be convinced, to each other's
arguments; that, if much the larger number were for con-
viction, a dissenting juror should consider whether his
doubt was a reasonable one which made no impression upon
the minds of so many men, equally honest, equally intel-
ligent with himself. If, on the other hand, the majority
were for acquittal, the minority ought to ask themselves
whether they might not reasonably doubt the correctness
of a judgment which was not concurred in by the majority.

Id. Any similar supplemental instruction that urges members of a

33
deadlocked jury to forego their differences is now known as an “Al-

len charge,” or “the dynamite charge, the third degree instruction,

the shotgun instruction, or the nitroglycerin charge.” United

States v. Bailey, 468 F.2d 652, 666 (5th Cir. 1972). This “stan-

dard supplemental instruction has been well-received by the na-

tion’s trial court judges. The charge is used precisely because it

works, because it can blast a verdict out of a jury otherwise un-

able to agree that a person is guilty.” Id.

Fields contends that the instruction “[p]lease continue your

deliberations” is impermissible because it contained none of the

protective language of the traditional Allen charge, telling jurors

not to forego their conscientiously-held views. The government

contends, to the contrary, that the supplemental instruction is

permissible because it contains none of the “dynamite” language of

the traditional Allen charge, urging minority jurors to reconsider

their views. In the absence of “dynamite” language, the government

asserts, protective language is unnecessary.

We “scrutinize the Allen charge for compliance with two re-

quirements: (1) the semantic deviation from approved Allen charges

cannot be so prejudicial to the defendant as to require reversal,

and (2) the circumstances surrounding the giving of an approved Al-

len charge must not be coercive.” United States v. Lindell, 881

F.2d 1313, 1321 (5th Cir. 1989) (internal citations and quotations

omitted). Our decision in Straach forecloses Fields’s argument

34
that the variation on the Allen charge was unfairly prejudicial and

coercive.

In Straach we considered the following charge given to a dead-

locked jury: “‘Considering the length of the trial and the amount

of the evidence to be considered, the Court requests that you con-

tinue your deliberations in an effort to reach a verdict on all

counts.’” 987 F.2d at 243. Finding no abuse of discretion, we

stated that

[t]he note did not coerce the minority jury members into
agreement with the majority, or set a time limit on de-
liberations. The note expressed no opinion as to what
kind of verdict the court preferred . . . . Of course,
the phrase “considering the length of the trial and the
amount of the evidence to be considered” might have been
read by a juror to mean that the result should be obvious
to all jurors upon due consideration of the evidence.
However, it remains difficult to construe the note as co-
ercive or as favoring a particular verdict, insofar as it
simply urged that “an effort” be made to reach a unani-
mous verdict. Thus, even if the note’s language deviated
in some respects from that of previously approved Allen
charges, it was acceptable.

Id. (emphasis added). The instruction here, similar to the one in

Straach, is arguably even less problematic than the one upheld

there, because the instant instruction contains no language in any

way suggesting that “the result should be obvious.”

Fields’s attempt to distinguish Straach on the ground that the

supplemental instruction in this case told jurors to “keep deliber-

ating,” without any language indicating that only “an effort” need

be made, is unpersuasive. Without setting any time limit on delib-

erations or indicating that a verdict must be reached, the idea

35
that only “an effort” is required is implicit in the simple in-

struction to “continue deliberations,” particularly considering

that the jury had been deliberating for only six hours when the in-

struction was given.

Finally, contrary to Fields’s suggestion, the fact that the

jury handed down a unanimous sentence of death approximately one

hour after receiving the supplemental instruction does not indicate

that the instruction was coercive. In Montoya v. Scott, 65 F.3d

405, 409-10 (5th Cir. 1995), we found no coercion even where the

jury returned its verdict within forty minutes of receiving the

challenged supplemental instruction. On the basis of Straach, the

district court did not abuse its discretion in instructing the jury

to continue its deliberations.

3. GOVERNMENT’S CLOSING ARGUMENT

In the government’s closing argument at sentencing, the prose-

cutor employed a televisual “picture in picture” metaphor, telling

the jury to imagine that Fields’s activities before, during, and

after Coleman’s murder were playing on one screen, while Coleman’s

activities before and at the time of her murder were playing on the

other. Fields did not object to the manner or content of the pro-

secutor’s discussion. He asserts, for the first time on appeal,

that the district court violated his due process and Eighth Amend-

ment rights by allowing the government to use this metaphor. Addi-

tionally, he argues that the government’s use of the metaphor re-

36
sulted in a sentence based in part on “passion, prejudice, or other

arbitrary factor,” in violation of 18 U.S.C. § 3595(c)(2)(A).

“As a general rule, constitutional and other legal questions

are reviewed de novo.” United States v. Delgado-Nunez, 295 F.3d

494, 496 (5th Cir. 2002) (internal citations and quotations omit-

ted). Claims of error not preserved at trial, however, are re-

viewed for plain error only. FED. R. CRIM. P. 52(b).

Fields claims that comparative worth arguments that encourage

the jury to compare the value of the victim’s life with the de-

fendant’s are impermissible under Payne v. Tennessee, 501 U.S. 808

(1991). In Payne, however, the Court held only that the Eighth

Amendment does not erect a per se bar to victim impact evidence and

that such evidence is admissible unless it is “so unduly prejudi-

cial that it renders the trial fundamentally unfair.” Id. at 825.

With regard to comparative worth arguments, the Court stated

only that the “concern . . . that the admission of victim impact

evidence permits a jury to find that defendants whose victims were

assets to their community are more deserving of punishment than

those whose victims are perceived to be less worthy” is largely un-

warranted, because victim impact evidence is rarely offered for

such a purpose. Id. at 823.

Thus, to the extent that the Court expressed disapproval of

comparative worth arguments, it did so only with regard to victim-

to-victim comparisons, not victim-to-defendant comparisons. In-

37
deed, in Humphries v. Ozmint, 397 F.3d 206, 224 n.8 (4th Cir.),

cert. denied, 126 S. Ct. 128 (2005), the court noted that Payne

does not foreclose victim-defendant comparisons; it suggested that

“[a] victim-to-victim comparison is more pernicious than a victim-

to-defendant comparison because, not only does it invite a com-

mentary on collateral evidence not properly before the jury (the

worthiness of other members (victims) of society), it does not

counteract the defendant’s mitigating evidence, which was one of

the main goals of Payne.”

Given that victim impact evidence and evidence of a defen-

dant’s character (both positive and negative) are admissible at

capital sentencing, it is difficult to discern how the prosecutor’s

use of the picture-in-picture metaphor violated Fields’s constitu-

tional and/or statutory rights. The purpose of the metaphor, aside

from establishing a chronology of events, was to highlight the non-

statutory aggravating factors the government was trying (and is

permitted) to establish: that Coleman was the mother of a newborn

who needed her attention and that Fields is a consistently violent

man who cruelly took her life away. Accordingly, there is no er-

ror, let alone plain error, in allowing the government to present

its closing argument as it did.

4. EXPERT TESTIMONY ON FUTURE DANGEROUSNESS

Fields claims that introducing certain expert psychiatric tes-

timony on the issue of future dangerousness constituted error.

38
 a. Statutory Challenge

Fields contends that the district court committed statutory

error in admitting the expert testimony of a forensic psychiatrist,

Dr. Coons, during the punishment phase of trial. Our review is for

abuse of discretion. See Hall, 152 F.3d at 402.

i. Background

Prior to Dr. Coons testifying, Fields moved to examine him

outside the presence of the jury to make a challenge pursuant to

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The

court granted Fields’s motion to examine Dr. Coons regarding the

reliability of predicting future dangerousness. However, the court

ultimately overruled Fields’s objections and allowed the Government

to call Dr. Coons to testify.

After Dr. Coons testified regarding his education and exper-

ience, the prosecutor posed a hypothetical, which consisted of the

facts of the instant capital murder and some of Fields’s background

and criminal history. Based upon this hypothetical, the prosecutor

asked Dr. Coons whether such an individual would constitute a

future danger to others, including persons in a correctional

facility. Dr. Coons responded that there was a “probability of

future violence.”

ii. Analysis

On appeal, Fields makes clear that he is not arguing that

psychiatric predictions of future dangerousness during the pun-

39
ishment phase are inadmissible per se. Instead, he states that the

“question is whether the evidence before the trial court on this

record reflected a showing of reliability sufficient to support the

admission as expert opinion of Dr. Coons’s admittedly subjective

and nonscientific prediction about Fields’s future dangerousness.”

(1) Daubert Does Not Apply

We first address the argument that standards governing the

admissibility of expert evidence at trial should also govern,

either strictly or loosely, at capital sentencing. Federal Rule of

Evidence 702 provides that expert evidence is admissible if, inter

alia, it “is the product of reliable principles and methods” that

are applied “reliably to the facts of the case.” In Daubert, the

Supreme Court held that Rule 702 superseded the requirement of

general acceptance for admission of scientific expert testimony.

See 509 U.S. 579. “Under Daubert, the district court conducts a

‘preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether

that reasoning or methodology properly can be applied to the facts

in issue.’” United States v. Norris, 217 F.3d 262, 269 (5th Cir.

2000) (quoting Daubert, 509 U.S. at 592-93) (also citing FED. R.

EVID. 702). Daubert “provides an illustrative list of factors that

may aid a court in evaluating reliability.” Mathis v. Exxon, 302

40
F.3d 448, 460 (5th Cir. 2002).24

The amicus curiae in this case, the American Psychological

Association, urges that we formally adopt the Daubert reliability

factors for determining the admissibility of expert evidence in

federal death penalty sentencing hearings. Similarly, Fields

argues that a district court must apply Daubert or conduct a quasi-

Daubert inquiry when deciding whether to admit proffered expert

testimony at the punishment phase of a federal capital murder

trial. Fields contends that although the Daubert test “may not

apply by its own terms under the FDPA, . . . the same principles

necessarily inform the inquiry whether proffered evidence meets the

applicable statutory requirements, as well as the overarching

constitutional command of ‘heightened reliability.’” We reject

both positions.

No Circuit that we are aware of has applied Daubert to

sentencing.25 Moreover, as Fields acknowledges, the FDPA provides

24
Those factors are “(1) whether the expert’s theory can be or has
been tested; (2) whether the theory has been subject to peer review and
publication; (3) the known or potential rate of error of a technique or
theory when applied; (4) the existence and maintenance of standards and
controls; and (5) the degree to which the technique or theory has been
generally accepted in the scientific community.” Mathis, 302 F.3d
at 460.
25
See United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000)
(“We need not address whether Daubert applies to sentencing hearings,
because, even assuming that it does, we find the evidence meets its
standard for admissibility.”); see also Flores v. Johnson, 210 F.3d 456,
464–70 (5th Cir. 2000) (specially concurring, Garza, J.) (questioning
the constitutionality of admitting an expert’s testimony regarding
(continued...)

41
that evidence may be admitted “regardless of its admissibility

under the rules governing admission of evidence at criminal

trials.” 18 U.S.C. § 3593(c) (emphasis added). The FDPA by its

terms does not fully implement the Federal Rules of Evidence at the

punishment phase. Since Daubert’s holding was based on the Federal

Rules of Evidence, it is not directly applicable.

That does not entirely answer the question as to whether some

quasi-Daubert inquiry is required to satisfy the FDPA. Fields ar-

gues that other parts of the FDPA should inform our inquiry, spe-

cifically pointing to section 3593(c) that provides that Dr.

Coons’s testimony may be excluded if Fields has shown that its

“probative value is outweighed by the danger of creating unfair

prejudice, confusing the issues, or misleading the jury.”26 We are

somewhat sympathetic to the argument, but ultimately cannot read a

provision into the FDPA that evaluating the probative value of ex-

pert testimony for sentencing purposes requires a form of Daubert

hearing. Fields cannot point us to where such a requirement ap-

pears, even implicitly, in the text, history or logic of the FDPA.

His statutory argument is unavailing and is better couched as a

25
(...continued)
future dangerousness after Daubert); cf. Tigner v. Cockrell, 264 F.3d
521, 526–27 (5th Cir. 2001) (declining an invitation to hold that
Daubert required the exclusion of expert future dangerousness testimony
because it would constitute a new rule on collateral review).
26
The language of section 3593(c) is very similar to Rule 403 of
the Federal Rules of Evidence except that Rule 403 provides that
evidence may be excluded if the probative value is substantially
outweighed by, among other things, the danger of unfair prejudice.

42
constitutional claim based in the Eighth and Fifth Amendments. Un-

fortunately for Fields, that constitutional argument is foreclosed

and it is beyond our power to revisit it. See Part II.A.2.b.

(2) Barefoot v. Estelle’s Logic Undermines
Fields’s General Reliability Argument

Fields also argues more generally under section 3593(c) that,

if Dr. Coons’s testimony is shown to be unreliable, the “evidence

cannot assist the jury as it is plainly not ‘probative’ of any-

thing.” We are not persuaded by this argument.

“The Federal Death Penalty Act . . . erects very low barriers

to the admission of evidence at capital sentencing hearings. Since

the need to regulate the scope of testimony is less at the penalty

phase than at the guilt phase of trial, parties may present

evidence ‘as to any matter relevant to the sentence.’”27 United

States v. Lee, 274 F.3d 485, 494 (8th Cir. 2001) (quoting 18 U.S.C.

§ 3593(c)). As noted above, the sole statutory restriction is that

evidence may be excluded if it is more prejudicial than probative.

The seminal case regarding whether expert testimony is

reliable and should be allowed with respect to future dangerousness

predictions during the punishment phase of a capital murder trial

is Barefoot v. Estelle, 463 U.S. 880 (1983). Although Barefoot

involved a constitutional challenge on collateral review and thus

27
To say the scope of valid sentencing evidence is broader does not
necessarily signify that the form testimony may take should be looser.
“The FDPA expressly supplants only the rules of evidence, not constitu-
tional standards.” United States v. Johnson, 239 F. Supp. 2d 924, 946
(N.D. Iowa 2003).

43
is not technically controlling, the Supreme Court’s reasoning cer-

tainly must inform our analysis of this related issue. Ultimately,

Barefoot’s sweeping logic requires us to reject Fields’s general

reliability argument.

In Barefoot, the petitioner argued that the testimony of two

psychiatrists regarding his future dangerousness during the pun-

ishment phase of his state capital murder trial was unconstitu-

tional. Barefoot broadly argued that psychiatrists (1) were in-

competent to predict future dangerousness to an acceptable degree

of reliability and (2) should not be permitted to testify regarding

future dangerousness in response to a hypothetical or without

examining the defendant. Id. at 896. He also argued that his

death sentence should be set aside because the testimony was un-

reliable under the particular circumstances of his case. The

Supreme Court rejected all his arguments. Id.

With respect to the argument that no psychiatrist should

testify as to the future dangerousness of a defendant, the Supreme

Court explained that such a rule “is contrary to our cases.” Id.

Because predicting future dangerousness “is a constitutionally

acceptable criterion for imposing the death penalty,” and it is

“not impossible for even a lay person sensibly to arrive at that

conclusion, it makes little sense, if any, to submit that psychia-

trists, out of the entire universe of persons who might have an

opinion on the issue, would know so little about the subject that

44
they should not be permitted to testify.” Id. at 896–97 (citing

Jurek v. Texas, 428 U.S. 262 (1976)); see also Estelle v. Smith,

451 U.S. at 473 (reiterating the validity of Jurek and in “no sense

disapproving the use of psychiatric testimony bearing on the issue

of future dangerousness”).

Additionally, the Court reasoned that, to accept Barefoot’s

argument that expert testimony predicting future dangerousness “is

far too unreliable to be admissible would immediately call into

question those other contexts in which predictions of future

behavior are constantly made.” Barefoot, 463 U.S. at 898; see,

e.g., O’Connor v. Donaldson, 422 U.S. 563 (1975) (explaining that

expert psychiatrists and psychologists interpret facts that de-

termine whether an individual is dangerous to himself or others and

in need of civil commitment). The Court further explained that

expert testimony regarding future dangerousness “may be countered

not only as erroneous in a particular case but also as generally so

unreliable that it should be ignored.” Barefoot, 463 U.S. at 898.

Similarly, the Barefoot Court refused to accept the American

Psychiatric Association’s position in its amicus brief that such

expert testimony should be barred as unreliable because it was in

error “most of the time.” Id. at 901. Noting that it had re-

jected the same view in Estelle v. Smith, the Court was “not

persuaded that such testimony is almost entirely unreliable and

that the fact-finder and the adversary system will not be competent

45
to uncover, recognize, and take due account of its shortcomings.”

Id. at 899.

The Supreme Court also rejected Barefoot’s argument that

future dangerousness testimony should be based upon personal ex-

amination rather than hypotheticals. The Court recognized that

expert testimony, including responses to hypotheticals, was rou-

tinely admitted if it assisted the factfinder. Id. at 903. It

further observed that neither the extant Federal Rules of Evidence

nor state law lent support to the argument that the use of hypo-

theticals was unconstitutional. Id. at 904–05.

Finally, Barefoot asserted that the use of hypotheticals in

his case violated due process of law. Id. at 904. The Supreme

Court summarily found no constitutional violation. The Supreme

Court stated that “to agree with petitioner’s basic position would

seriously undermine and in effect overrule Jurek,” and it was not

inclined to do so. Id. at 906 (emphasis added).28

As previously set forth, although we recognize that Barefoot

involved a constitutional challenge, its reasoning informs us in

assessing the instant case. Indeed, Fields’s statutory argument is

28
A recent opinion by Justice Stevens confirmed the breadth and
continuing viability of Barefoot. See United States v. Scheffer, 523
U.S. 303, 334 (1998) (Stevens, J., dissenting) (“There is no legal
requirement that expert testimony must satisfy a particular degree of
reliability to be admissible. Expert testimony about a defendant’s
‘future dangerousness’ to determine his eligibility for the death
penalty, even if wrong ‘most of the time,’ is routinely admitted.”)
(emphasis added). No member of the Scheffer Court disagreed.

46
laced with references to the heightened reliability requirement

under the Eighth Amendment. In addition, the Barefoot Court’s

pragmatic concerns about rejecting future dangerousness testimony

apply equally here. Furthermore, the arguments urged todaySSthough

framed formally in statutory termsSSare similar in substance to the

ones rejected in Barefoot. For example, the amicus in Barefoot,

like the amicus here, argued that the future dangerousness methods

in issue could be in error most of the time. Likewise, both Fields

and Barefoot challenged the experts’ testimony based upon the fail-

ure to personally examine the defendant and the use of hypotheti-

cals. The logic of Barefoot meets these challenges.

In the instant case, Dr. Coons’s testimony was probative

because Fields’s jury was required to make an assessment of future

dangerousness and because the jury could benefit from the opinion

of a psychological expert on that matter. Moreover, as Barefoot

noted, the adversarial system reduces any prejudicial unreliability

in future dangerousness expert testimony because it can expose the

flaws in such testimony. For these reasons, we reject the claim

that Dr. Coons’s testimony was so unreliable that the district

court abused its discretion29 by admitting it.30

29
Since our review is deferential, we need not address whether a
district court could opt to exclude future dangerousness testimony on
reliability grounds. We hold only that it was not an abuse of
discretion to admit such testimony.
30
Fields makes three final arguments which require little dis-
cussion. His claims that the testimony at issue (1) invaded the
(continued...)

47
 b. Constitutional Challenge

Fields also claims that the admission of Dr. Coons’s testimony

regarding future dangerousness during the punishment phase violated

his rights under the Eighth and Fifth Amendments. Barefoot fore-

closes this claim. As to Fields’s argument that Barefoot should be

revisited, it is the Supreme Court’s prerogative, not ours, to con-

sider revisiting its precedent. See, e.g., Rodriguez de Quijas v.

Shearson/Am. Express, 490 U.S. 477, 484 (1989).

5. PROOF BEYOND A REASONABLE DOUBT AND THE WEIGHING PROCESS

In Fields’s final claim of sentencing error, he seeks to

extend the Supreme Court’s decision in Ring v. Arizona, 536 U.S.

584 (2002). Specifically, he argues that the FDPA violates the

Sixth Amendment, as construed in Ring, because it does not require

the jury to apply the reasonable doubt standard in deciding whether

the aggravating factors outweigh the mitigators.

In Ring, the Supreme Court applied Apprendi v. New Jersey to

capital cases. It reiterated, “If [Congress] makes an increase in

a defendant’s authorized punishment contingent on [a] finding of a

30
(...continued)
province of the jury or (2) would be “unfairly prejudicial” even if
reliable have no merit. Additionally, we reject Fields’s complaint that
the court abused its discretion by not articulating on the record its
balance of probative value and unfair prejudice under section 3593(c).
Assuming arguendo that such an articulation would be required in the
context of section 3593(c), Fields’s “failure to request specifically
an on-the-record articulation . . . is fatal to his appeal on this
point.” United States v. Fox, 69 F.3d 15, 20 (5th Cir. 1995) (Rule
404(b)).

48
fact, that fact—no matter how [Congress] labels it—must be found by

a jury beyond a reasonable doubt.” 536 U.S. at 602 (citing Appren-

di v. New Jersey, 530 U.S. 466, 482–83 (2000)). Contrary to

Fields’s contention, this rule does not require the jury to apply

the reasonable doubt standard during the weighing process.

The Apprendi/Ring rule does not extend to the ultimate de-

cision whether to impose the death penalty. Capital defendants

have no constitutional right to a jury at sentencing. See Proffitt

v. Florida, 428 U.S. 242, 252 (1976) (plurality opinion). Indeed,

the Supreme Court has explicitly held that judges may do the

weighing of aggravating and mitigating circumstances consistent

with the Constitution. See Clemons v. Mississippi, 494 U.S. 738,

745 (1990). The Court’s Apprendi line of cases reveals that the

reasonable doubt standard is appurtenant to the right to jury

trial.31 Since the Constitution does not require a jury to do the

31
This was recently explained, in the context of the United States
Sentencing Guidelines, by the en banc Third Circuit:

None of the facts relevant to enhancements or departures
under the Guidelines can increase the maximum punishment to
which the defendant is exposed. The Due Process Clause thus
affords no right to have these facts proved beyond a
reasonable doubt. Harris [v. United States], 536 U.S. [545,]
558 [(2002)] (“Judicial factfinding in the course of
selecting a sentence within the authorized range does not
implicate the . . . reasonable-doubt component[] of the Fifth
. . . Amendment[].”). This holding accords with the
decisions of each of our sister circuits that has addressed
this issue.

United States v. Grier, 475 F.3d 556, 566 (3d Cir. 2007) (en banc)
(some citations omitted, some brackets and ellipses in original).

49
weighing, we cannot conclude that the showing required must be

proof beyond a reasonable doubt.

Moreover, the Apprendi/Ring rule should not apply here because

the jury’s decision that the aggravating factors outweigh the

mitigating factors is not a finding of fact. Instead, it is a

“highly subjective,” “largely moral judgment” “regarding the pun-

ishment that a particular person deserves . . . .” Caldwell v.

Mississippi, 472 U.S. 320, 340 n.7 (1985). In death cases, “the

sentence imposed at the penalty stage . . . reflect[s] a reasoned

moral response to the defendant’s background, character, and

crime.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (emphasis in

original). The Apprendi/Ring rule applies by its terms only to

findings of fact, not to moral judgments. See Ring, 536 U.S. at

602.

The Supreme Court’s reasoning in Kansas v. Marsh, 126 S. Ct.

2516 (2006), supports our conclusion. In Marsh, the Court con-

strued a previous decision, Walton v. Arizona, 497 U.S. 639 (1990),

as holding “that a state death penalty statute may place the burden

on the defendant to prove that mitigating circumstances outweigh

aggravating circumstances.” Marsh, 126 S. Ct. at 2524. Addition-

ally, in a concurring opinion in Marsh, Justice Scalia recognized

that the Constitution does not require a reasonable doubt standard

as to the weighing process: “[T]he State could, as Marsh freely

admits, [adopt a] scheme requiring the State to prove by a mere

50
preponderance of the evidence that the aggravators outweigh the

mitigators.” Id. at 2532 n.2. No member of the Marsh Court dis-

agreed. Accordingly, we hold that the Sixth Amendment does not

require a jury to be instructed that it must find that the

aggravating factors outweigh the mitigating factors beyond a

reasonable doubt.

B. CLAIMS OF TRIAL ERROR

We first address Fields’s arguments that the district court

committed error that requires reversal of his convictions.

Ultimately, we affirm each conviction.

1. FAILURE TO CONSULT PUBLIC DEFENDER ON APPOINTED COUNSEL

Fields’s first guilt-phase claim is that the district court

erred by failing to secure the advice of the Federal Public

Defender (“FPD”) before appointing him capital counsel. The

appointment of counsel to represent indigent defendants in capital

cases is governed by 18 U.S.C. § 3005. It provides that those

charged with federal capital offenses are entitled to two lawyers,

one of whom “shall be learned in the law applicable to capital

cases.” Section 3005 further requires: “In assigning counsel under

this section, the court shall consider the recommendation of the

Federal Public Defender organization, or, if no such organization

exists in the district, of the Administrative Office of the United

States Courts.”

a. Background

51
 After Fields was charged with a capital offense, his attorney,

Scott Peterson, filed a motion pursuant to section 3005 asking the

court to appoint a second attorney learned in the law of capital

cases. Attorney Peterson advised the court that Rob Swanton had

agreed to be co-counsel. The court stated that Swanton was “more

than acceptable” because he was “an excellent, excellent attorney.”

Two days later, the court entered an order formally appointing

Swanton as lead counsel. It found, “Mr. Swanton is learned in the

law applicable to capital cases and is qualified to appear as

counsel because of his distinguished prior experience in the trial

of death-penalty cases.” Fields made no objection either to the

court’s decision to appoint Swanton or to its failure to consult

the FPD before so deciding.

After trial, Fields moved to supplement the appellate record

with the affidavit of Lucien Campbell, the Federal Public Defender

for the Western District of Texas. In the affidavit, Campbell

stated that the district court did not request his recommendation

for the appointment of counsel. The court granted the motion to

supplement and acknowledged on the record that it did not confer

with the FPD. It also stated, “Scott Peterson and Rob Swanton were

appointed to represent Mr. Fields because of their years of ex-

perience in the criminal defense field, including numerous capital

cases. Additionally, Mr. Peterson was the Defendant’s attorney of

record on the original federal gun case for which he was in jail at

the time of his escape.”

52
 b. Standard of Review

Fields contends that we should review de novo even though he

raises the court’s noncompliance with section 3005 for the first

time on appeal. However, a contemporaneous objection ordinarily is

required to preserve error. See United States v. Olano, 507 U.S.

725, 731 (1993). None of Fields’s arguments provides justification

for us to deviate from that general rule. Section 3005 came into

play, at the earliest, only after the Government charged Fields

with a capital offense. By that time, Fields already was repre-

sented by counsel, Attorney Peterson. Fields had ample opportunity

to object below through his attorney on the grounds he now asserts.

Since he failed to do so, we review his claim for plain error.

Fields can only prevail if he shows “that (1) there is an error,

and that the error (2) is plain, (3) affects substantial rights,

and (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” See United States v. Garza,

429 F.3d 165, 169 (5th Cir. 2005), cert. denied, 126 S. Ct. 1444

(2006).

c. Analysis

Assuming arguendo that Fields’s claim would succeed on the

first two prongs of plain-error review, it fails on the third

prong. Fields cannot show prejudice. He acknowledges that the

purpose of securing the FPD’s recommendation is to ensure the high-

quality representation necessary in capital cases. See United

53
States v. Shepherd, 576 F.2d 719, 728–29 (7th Cir. 1978). He does

not argue, however, that the district court erred in determining

that Swanton was an “excellent” attorney who was learned in the law

of capital defense (indeed “distinguished”) or that the court

incorrectly found that both his attorneys, Swanton and Peterson,

had each tried numerous capital cases through years of experience

in the field of criminal defense. Thus, Fields cannot show that

the error affected his substantial rights.32

Unable to show actual prejudice, Fields argues that no such

showing should be required due to the “fundamentally structural

character of the error.” The Supreme Court has indicated that the

structural error doctrine applies only in a “very limited class of

cases.” Neder v. United States, 527 U.S. 1, 8 (1999). Only errors

that “undermin[e] the fairness of a criminal proceeding as a whole

. . . require[] reversal without regard to the mistake’s effect on

the proceeding.” See United States v. Dominguez-Benitez, 542 U.S.

32
Insofar as Fields suggests that either Swanton or Peterson may
have been inadequate because neither had tried a case under the Federal
Death Penalty Act, that argument is without merit. Section 3005 makes
no state/federal distinction, and the guide to Federal Death Penalty
cases promulgated by the Judicial Conference expressly rejects such a
distinction. See Guide to Judiciary Policies and Procedures, App. I-1
(1999) (“Ordinarily, ‘learned counsel’ should have distinguished prior
experience in the trial, appeal, or postconviction review of federal
death penalty cases, or distinguished prior experience in state death
penalty trials, appeals, or post-conviction review.”) (emphasis in
original). Indeed, as a practical matter, state courts often are the
only place that attorneys can gain significant capital experience. See
id. at I-10 (“Because violent felony offenses, particularly homicides,
rarely are prosecuted in the federal courts, there is little opportunity
for federal court practitioners to learn even the fundamentals relevant
to the guilt phase defense of a federal death penalty case.”).

54
74, 81 (2004). The statutory error asserted here is not so fun-

damental. Additionally, there is no “strong support” in the oper-

able statute to suggest an “implied repeal” of Federal Rule of

Criminal Procedure 52, which requires us to disregard errors that

do not affect substantial rights. See Zedner v. United States, 126

S. Ct. 1976, 1989 (2006).

In support of his argument that the error here is structural,

Fields cites a line of Fourth Circuit cases. See, e.g., United

States v. Williams, 544 F.2d 1215, 1218 (4th Cir. 1976) (holding

that failure to appoint second counsel under section 3005 “gives

rise to an irrebuttable presumption of prejudice”). This line of

cases is inapposite. They all involve district courts’ failures to

appoint any second counsel. Such an error is considerably more

serious than what occurred here. Moreover, the Third Circuit has

explicitly rejected the Fourth Circuit’s presumed-prejudice

approach to a court’s failure to appoint second counsel. See

United States v. Casseus, 282 F.3d 253, 256 n.1 (3d Cir. 2003).

Without taking sides in this Circuit split, we decline to extend

the Fourth Circuit’s approach in the way Fields suggests. Ac-

cordingly, we reject Fields’s claim that failing to consult the FPD

before appointing capital counsel is structural error or that

prejudice must be presumed. Since Fields cannot show prejudice,

his claim fails.

55
 2. CONFLICT OF INTEREST/WAIVER OF RIGHT TO COUNSEL

Fields makes two related arguments surrounding his trial

attorney’s alleged conflict of interest. He argues, first, that

the district court’s refusal to appoint unconflicted substitute

counsel rendered his waiver of counsel involuntary.33 Second, he

contends that the district court neglected its “duty to inquire”

about an apparent conflict of interest. See Cuyler v. Sullivan,

446 U.S. 335, 347–48 (1980). The Government acknowledges that our

review of these issues is de novo. See United States v. Jones, 421

F.3d 359, 362–63 (5th Cir. 2005).

a. Background

As the trial date approached, Fields filed a request asking

the trial court to appoint new counsel. He represented that “if

the Court d[id] not allow him new trial counsel, that he intend[ed]

to represent himself.” Fields had threatened several times to

invoke his right to represent himself but ultimately withdrew those

motions. The district court held an ex parte hearing on Fields’s

latest motion.

At the hearing, Fields’s lawyers informed the court that they

had tried in vain to persuade Fields that going pro se would be a

grave mistake. Additionally, Fields’s lead attorney, Swanton,

advised the court of “one other issue that’s come up” concerning

33
Otherwise, Fields’s waiver of counsel appears to have been
knowing and intelligent. In any event, Fields makes no argument to the
contrary.

56
his co-counsel, Peterson:

Back in 1987 . . .[,] there is a small entry in
[Fields’s] juvenile record that indicates Mr. Peterson[,]
when he was working for the McLennan County district
attorney’s office[,] either authorized prosecution of Mr.
Fields for a—if I remember it correctly, it was a burg-
lary of a habitation case. I’m not sure that Mr. Peter-
son was actually directly involved in the prosecution.
Frankly, Mr. Peterson cannot remember being involved in
that, and it simply may be that somebody from the police
or probation department called somebody at the D.A.’s
office and asked for permission to file a petition. We
have talked to Mr. Fields about that and while we don’t
really perceive it as a conflict, Mr. Peterson has cer-
tainly worked diligently on this case and that has never
been an issue through the two years of representation.
We talked to Mr. Fields about that and let him know that
somebody somewhere down the line may see that as a per-
ceived conflict of interest and that if he had any
concerns about that, he should talk with the Court about
it.
. . . .
We’d certainly be happy to offer information or testimony
from Mr. Peterson if you thought that was necessary as to
what he thinks his involvement was in that prosecution
and put something on the record in that regard.

The entry to which Swanton referred states, “On 3-20-87 Scott

Peterson, Assistant District Attorney, authorized the filing of a

delinquency action against Sherman.” Fields’s juvenile record does

not reflect any further involvement in the action by Peterson.

After Swanton’s representation, the court allowed Fields to

speak about his request to replace his attorneys. Fields expressed

generalized “suspicio[n]s” that his attorneys were in league with

the Government. He voiced disagreement with his attorneys’ stra-

tegy, indicating that they were pursuing mitigation for the penalty

phase “when I repeatedly profess my innocence.” “Their strategy

guarantees me the death penalty.”

57
 At a subsequent hearing, Fields expressed generically, “[M]y

attorneys and I have a major conflict of interest . . . .” Fields

never mentioned any specific concern that Peterson had authorized

delinquency proceedings against him as a twelve-year-old. The

district court did not seek further information concerning the

purported conflict. Ultimately, the court denied Fields’s request

for new counsel and permitted him to proceed pro se.

b. Analysis

i. Voluntariness of Waiver

(1) The Waiver Was Voluntary If There Was No
Conflict of Interest

A court violates the Sixth Amendment if it allows a defendant

to represent himself without first obtaining a valid waiver of

counsel. See, e.g., United States v. Medina, 161 F.3d 867, 870

(5th Cir. 1998). A defendant cannot be forced to choose between

conflicted counsel and no counsel at all, and any waiver of counsel

that results from those circumstances is not valid. See Dunn v.

Johnson, 162 F.3d 302, 307 (5th Cir. 1998).

However, indigent defendants have no right to appointed coun-

sel of their choice. See, e.g., United States v. Breeland, 53 F.3d

100, 106 n.11 (5th Cir. 1995). Rather, “[a] defendant’s refusal

without good cause to proceed with able appointed counsel consti-

tutes a voluntary waiver of that right.” Richardson v. Lucas, 741

F.2d 753, 757 (5th Cir. 1984). “The question [of voluntariness]

therefore boils down to whether [Fields] demonstrated good cause

58
for the substitution of assigned counsel.” McKee v. Harris, 649

F.2d 927, 931 (2d Cir. 1981). One form of good cause for new

counselSSthe only one relevant hereSSis to show that counsel labored

under a conflict of interest. See, e.g., United States v. Young,

482 F.2d 993, 995 (5th Cir. 1973).

(2) Insignificant or Insubstantial Conflicts
Do Not Warrant Substitute Counsel

A district court need not appoint substitute counsel on

conflict-of-interest grounds if it is “satisfied that any conflict

does not risk compromising the defendant’s representation.” United

States v. Solomon, 42 Fed. App’x 88, 91 (10th Cir. 2002) (unpub-

lished).34 As the Eighth Circuit has held, a defendant is only

entitled to substitute counsel if the court finds significant

interference with an existing attorney’s “ability to provide

zealous representation.” See United States v. Boone, 437 F.3d 829,

839 (8th Cir.), cert. denied, 127 S. Ct. 172 (2006). This follows

logically from the proposition that defendants are not entitled to

appointed counsel of their choice. That rule would be rendered a

nullity if insubstantial complaints entitled defendants to

substitute counsel.

34
See Holloway v. Arkansas, 435 U.S. 475, 484 (1978) (stating that
courts need not appoint new counsel where the risk that a conflict will
materialize is “remote”); see also United States v. Exson, 328 F.3d 456,
460 (6th Cir. 2003) (“The proper focus . . . is on the quality of the
advocacy.”); Dunn, 162 F.3d at 307 (stating that a defendant’s waiver
of counsel is voluntary unless existing counsel is “constitutionally
inadequate”) (emphasis added).

59
 Indeed, the only precedent we have found touching the specific

issue sub judice, Dunn v. Johnson, indicates that the conflict

asserted must be significant to warrant substitute counsel. See

162 F.3d at 307. Dunn argued that his waiver of counsel was

involuntary because his appointed attorneys had a conflict of

interest. In support of this claim, Dunn asserted that, prior to

his trial, he had filed a malpractice suit against his attorneys.

We did not recognize this as a significant enough conflict of

interest to render Dunn’s waiver involuntary, pointing out that the

“malpractice suit . . . had been dismissed as frivolous three years

before his second trial.” Id.35

(3) The Conflict Alleged Was Not Serious
Enough to Entitle Fields to New Counsel

Applying these principles to the case at bar, the supposed

conflict of interest was not sufficiently substantial such that

Fields was entitled to substitute counsel. Importantly, this is

not a case where a defendant’s attorney previously was actively

involved in prosecuting the defendant. The record indicates that

Attorney Peterson did nothing more than sign off summarily on a

request to initiate delinquency proceedings against Fields. More-

over, the juvenile adjudication occurred fifteen years before

35
Compare United States v. Creel, 158 F.App’x 627, 628 (5th Cir.
2004) (unpublished) (defendant’s “disagreements with counsel” did not
“constitute[] good cause for him to receive a new attorney”) with Young,
482 F.2d at 995 (“A showing that appellant’s appointed attorney had
disclosed confidential defense matters to the prosecutor which would
damage the defense would have amounted to ‘good cause’ for not
proceeding to trial with the same counsel.”).

60
Fields’s capital trial. Also, it is important that Fields’s

counsel did not “perceive it as a conflict.” District courts

reasonably may rely on defense counsel’s assessment regarding the

potential for conflict. See Holloway v. Arkansas, 435 U.S. 475,

485 (1978) (stating that the appointed attorney “is in the best

position professionally and ethically to determine when a conflict

of interest exists or will probably develop in the course of a

trial”).

Our conclusion is bolstered by Hernandez v. Johnson, 108 F.3d

554, 558–61 (5th Cir. 1997), where we addressed a similar alleged

conflict of interest. In Hernandez, the defendant claimed that his

lawyer had a conflict of interest because he previously had served

“as the elected district attorney” when some of the defendant’s

prior convictions were obtained. Id. at 558. During that service,

Hernandez’s attorney had “signed a motion requesting psychiatric

evaluation of appellant . . ., signed a motion to dismiss a related

indictment after Hernandez pled guilty, and . . . approved Her-

nandez’s plea bargain.” Id. at 558–59. We held that the attor-

ney’s previous involvement in Hernandez’s prosecution was not

“personal or substantial enough to give rise automatically to an

actual conflict,” reasoning that he was only “tenuously and

nominally connected to the prior cases against Hernandez” and that

the attorney’s service for the state “ended nine years before.”

Id. at 560. Likewise, Peterson’s involvement was nominal and

61
tenuous, rather than personal or substantial.

Fields speculates, however, that Peterson may have “continued

under a duty to the State of Texas not to undermine the finality

and integrity of the prosecution he authorized against Fields.”

Since Peterson would have a duty in capital sentencing proceedings

to attack Fields’s past convictions, Fields reasons, this created

a conflict of interest. There are at least three problems with

this argument. First, we rejected a similar argument in Hernandez,

a death-penalty case. Second, Fields cites no authority for the

expansive duty he claims Peterson may have owed to Texas, whose

service Peterson left long before Fields’s trial. See Spreitzer v.

Peters, 114 F.3d 1435, 1452 (7th Cir. 1997) (rejecting a conflict-

of-interest claim where the attorney’s “supposedly conflicting

loyalty” to the Government was “extremely speculative and remote”).

Third, Fields has given no indication that there was any good faith

basis for attacking the juvenile adjudication at issue. Under the

circumstances, Peterson did not labor under a conflict of interest

substantial enough to significantly threaten his ability to provide

Fields with effective representation. That being so, Fields’s

waiver of counsel was voluntary.36

ii. Duty to Inquire

36
For the first time in his reply brief, Fields argues that he ac-
cused his attorneys of misconduct, which gave rise to a conflict of in-
terest. We will not consider this argument. Since it was not raised
in Fields’s opening brief, the misconduct-accusation claim is
effectively waived. See United States v. Jackson, 426 F.3d 301, 304 n.2
(5th Cir. 2005).

62
 We now turn to Fields’s argument that the district court

failed to inquire into the conflict at issue. His argument fails

for two reasons.

(1) Under the Circumstances, the Court
Adequately Inquired

First, the court adequately investigated the potential con-

flict. It held an ex parte hearing on Fields’s motion for substi-

tute counsel. At that hearing, the court listened to Fields’s lead

attorney speak about the conflict. The attorney described the

nature of the prior prosecution, the approximate date on which it

took place, and the extent of Peterson’s involvement in it. The

court also heard Fields’s counsel’s opinion that the “issue” was

not really a conflict and had not affected the quality of Fields’s

representation. Afterward, the court gave Fields the opportunity

to discuss the alleged conflict, which he declined to do.

Fields complains that the court did not affirmatively question

the parties involved. Yet, the purpose of the duty to inquire is

to assure that the court is apprised adequately of “the nature of

a conflict” and its potential impact on counsel’s capacity to

represent the defendant. See United States v. Humphrey, 287 F.3d

422, 437 (6th Cir.), overruled on other grounds by United States v.

Leachman, 309 F.3d 377 (6th Cir. 2002). Here, that purpose was

satisfied because discussions the court heard on the record ap-

prised it sufficiently of the relevant facts. See Holleman v.

Cotton, 301 F.3d 737, 744 (7th Cir. 2002) (noting, while addressing

63
a duty-to-inquire issue, “the presumption that attorneys make

truthful representations to the court”); United States v. Hurn, 952

F.2d 190, 195 (8th Cir. 1991) (“A district court may give substan-

tial weight to defense counsel's representations regarding

conflicts of interest.”). Those facts showed that the conflict was

insubstantial.

Where a conflict appears serious and the existing information

available to the court is limited, “probing and specific questions”

indeed may be required. See WAYNE R. LAFAVE ET AL., 3 CRIMINAL PROCEDURE

§ 11.9(b) (3d ed. 2000). But that is not the case here. The duty

to inquire is not so formalistic as to require affirmative

questioning when such is rendered unnecessary because the parties

have volunteered all the relevant information for a court to

determine that no substantial conflict exists. “[T]he trial court

did not have a duty to inquire any further.” See Dunn, 162 F.3d at

307.

(2) Any Failure to Inquire Further Did Not
Affect the Voluntariness of Fields’s Waiver

Second, even if the court should have made a greater inquiry,

Fields has made no showing, as distinguished from mere speculation,

that the district court would have learned anything material from

that inquiry. See United States v. Fish, 34 F.3d 488, 493 (7th

Cir. 1994) (examining whether “the alleged failure of the court to

delve deeper into the alleged conflict resulted in its lacking any

material information to make the conflict determination”). A fail-

64
ure to inquire would not, in and of itself, be Sixth Amendment

error warranting reversal. See Mickens v. Taylor, 535 U.S. 162

(2002). Moreover, without showing that the court failed to elicit

information that would have revealed a substantial conflict, Fields

cannot show that any failure to inquire affected the voluntariness

of his waiver of counsel. Fields’s unsupported hypothesizing that

he might not have waived counsel had the court explained to him

“the kinds of conflicts tolerated by law” is not sufficient.

Finally, we note that Fields’s (1) suspicions that his at-

torneys were in cahoots with the Government and (2) generic asser-

tions of a conflict of interest did not impose upon the court a

duty to inquire further. The Supreme Court has stated that merely

a “vague, unspecified possibility of conflict” does not trigger a

duty to inquire. See Mickens, 535 U.S. at 168–69. Fields’s

nebulous statements raised nothing more than a vague, unspecified

possibility of conflict.37

Indeed, Fields’s previous requests for new counsel reflect

that he misunderstood the term “conflict of interest.” He used the

term to signify a “conflict” between his own view of appropriate

37
Fields also suggests that the district court failed to inves-
tigate the reasons for his dissatisfaction with his attorneys before
denying his request for new counsel. The record shows otherwise. As
stated above, the court invited Fields to explain his qualms with his
present counsel. Fields’s explanation simply did not provide good cause
for new counsel.

65
trial strategy and that of his counsel.38 Mere disagreement about

strategic litigation decisions is not a conflict of interest. See,

e.g., United States v. Corona-Garcia, 210 F.3d 973, 977 n.2 (9th

Cir. 2000). In context, then, Fields’s unspecified assertions of

a conflict appear even more benign.

In conclusion, Fields’s claims surrounding Peterson’s alleged

conflict of interest fail.

3. JURY INSTRUCTION ON SIGNIFICANCE OF THE INDICTMENT

Fields argues that the district court erred in instructing the

jury venire about the significance of the grand jury’s decision to

indict him. The court instructed the jury venire that the grand

jury’s finding of probable cause meant the grand jury believed

“more likely than not” that Fields had committed the offense.

Fields points out that the probable cause standard is lower than

the preponderance standard. See, e.g., United States v. Watson,

273 F.3d 599, 602 (5th Cir. 2001). The Government argues, inter

alia, that any error did not prejudice Fields.

Because Fields did not object to the instruction below, his

claim is reviewed for plain error. See United States v. Saldana,

427 F.3d 298, 304 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005),

and cert. denied, 126 S. Ct. 1097 (2006). He bears the burden of

38
For example, in late 2003 Fields wrote to the court: “Defense
counsel informed me of their strategy and I disagreed therefore rose a
conflict. . . . There is a serious conflict of interest and if my
Attorneys would have informed me of their strategy sooner, this motion
would have reached you sooner.”

66
showing that the error affected his substantial rights. See, e.g.,

Garza, 429 F.3d at 169. Fields cannot carry this burden. The jury

venire was repeatedly instructed that the grand jury’s indictment

could not be considered as evidence. Additionally, the court

instructed that Fields maintained the presumption of innocence. It

advised that the Government bore the burden of proving guilt beyond

a reasonable doubt and gave a correct definition of that standard

of proof. The petit jury never was instructed to apply the pre-

ponderance standard.

In sum, although the court incorrectly advised the jury venire

about the grand jury’s finding, it correctly instructed the petit

jury about its own task and correctly required that it perform that

task independently from the indictment. “Jurors are presumed to

follow their instructions, and there is no reason to assume that

they did not do so in this instance.” Woods v. Johnson, 75 F.3d

1017, 1036 n.29 (5th Cir. 1996) (internal citation omitted). Thus,

Fields cannot show that the error affected his substantial rights.

4. PHOTOGRAPHS OF MURDER VICTIM

Fields’s fourth claim of trial error is that the district

court erroneously admitted into evidence thirty-two photographs of

the victim’s body. Fields contends that the photos were extraordi-

narily prejudicial and had minimal, if any, probative value.

a. Rule 403 and Standard of Review

The governing law and our limited standard of review bear

67
emphasis. Federal Rule of Evidence 403 provides that “evidence may

be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice.” One purpose of Rule 403 is to

prevent evidence from “inducing decision on a purely emotional

basis.” FED. R. EVID. 403 (Advisory Committee Notes). However, to

warrant exclusion, the danger of unfair prejudiceSSon this ground

or any otherSSmust substantially outweigh the probative value of

the evidence. Accordingly, we have recognized that Rule 403’s

scope is narrow. “[T]he application of Rule 403 must be cautious

and sparing. Its major function is limited to excluding matter of

scant or cumulative probative force, dragged in by the heels for

the sake of its prejudicial effect.” United States v. Pace, 10

F.3d 1106, 1116 (5th Cir. 1993).

In light of these principles, we will not lightly second-guess

a district court’s decision to admit relevant evidence over a Rule

403 objection. Although reviewing courts use a great variety of

verbal formulae to express this fact, all agree that we must afford

an especially high level of deference to district courts in such

circumstances. Thus, a district court’s decision on Rule 403

grounds is disturbed “rarely” and only when there has been “a clear

abuse of discretion.” United States v. Maggitt, 784 F.2d 590, 597

(5th Cir. 1986); see United States v. Caldwell, 820 F.2d 1395, 1404

(5th Cir. 1987).

b. The Photographs

68
 We have independently examined the photos at issue. They fall

into two broad categories: nineteen photos taken at the crime scene

and thirteen taken in connection with the autopsy.

Many of the crime scene photos show the victim’s body from

various angles and from various degrees of proximity. In the

photos, the body is in an advanced state of decomposition and has

been subject to animal predation. The skin is discolored and has

sloughed off the bones. The body is surrounded by thick brush and

garbage. Other crime scene photos illustrate how the responding

officers processed the body. Exhibit 34P, for example, shows that

the hands were covered by paper bags. Several others show that the

corpse was placed in a body bag.

Of the thirteen autopsy photos, nine show the victim’s skull.

Some of these photos show the gunshot wounds; others show the

incision the medical examiner made to retrieve the bullets. The

four remaining photos show the body, removed from the crime scene,

before the autopsy. The most disturbing of these present the

victim’s decayed and misshapen corpse completely nude, the clothes

apparently having been removed to facilitate the autopsy.

The crime scene and autopsy photos were presented through two

witnesses, an officer who helped process the crime scene and the

medical examiner who performed the autopsy.

c. Analysis

Many of the photos are, as the defendant posits, shocking.

However, our caselaw indicates that admitting gruesome photographs

69
of the victim’s body in a murder case ordinarily does not rise to

an abuse of discretion where those photos have nontrivial probative

value. See, e.g., United States v. Hall, 152 F.3d 381, 401 (5th

Cir. 1998), abrogated on other grounds by United States v. Mar-

tinez-Salazar, 528 U.S. 304 (2000). As explained below, the photos

here did have real probative value. This fact gave the court a

reasonable basis for admitting them.

The photos showing the victim’s body decomposing were highly

probative. One of Fields’s key themes at trial was that the Gov-

ernment had little physical evidence linking him to the crime. In

his opening statement, for example, Fields argued that it was “not

possible” to “commit a murder in the time and manner in which the

government witnesses allege and not leave any physical evidence.”

Similarly, at closing, Fields argued, “I asked you all to pay

attention to the physical evidence . . . . Whatever evidence that

they retrieved from the body or the crime scene doesn’t match me.”

Fields also highlighted the lack of DNA evidence: “Is there any

positive DNA testing . . .? No. There isn’t.”

The crime scene photos were necessary to rebut Fields’s

arguments. They helped explain why little physical evidence was

found: because it had been carried away by animals or worn away by

70
the elements. In this age of the supposed “CSI effect,”39 explain-

ing to the jury why the Government had little in the way of

physical or scientific evidence was arguably critical to the

Government’s case.

The photos had additional relevance. The crime scene photos

indicated that the body had been dragged to where it was found,

thereby corroborating witnesses who testified that Fields told them

he had dragged the body. In addition, the wide shots, showing

brush and trash surrounding the body, helped explain to the jury

why the body was not found until weeks after the murder. Finally,

the autopsy photos helped the jury understand the medical exam-

iner’s testimony. Since some photos showed two gunshot wounds,

they supported the Government’s (and medical examiner’s) theory

about cause of death. This was necessary to corroborate the

Government’s confession evidence: Government witnesses testified

that Fields told them he shot the victim.

Fields argues, however, that some of the points made by the

photos were not in dispute. In Hall, another case involving

photographs of a victim’s corpse, we noted: “The fact to which the

39
“The ‘CSI effect’ is a term that legal authorities and the mass
media have coined to describe a supposed influence that watching the
television show CSI: Crime Scene Investigation has on juror behavior.
Some have claimed that jurors who see the high-quality forensic evidence
presented on CSI raise their standards in real trials, in which actual
evidence is typically more flawed and uncertain.” Tom R. Tyler, Viewing
CSI and the Threshold of Guilt: Managing Truth and Justice in Reality
and Fiction, 115 YALE L.J. 1050, 1050 (Mar. 2006). Professor Tyler’s
article explains that the existence of a “CSI effect” is plausible but
has not been proven empirically.

71
evidence is directed need not be in dispute.” 152 F.3d at 401.

The reason that a criminal defendant cannot typically
avoid the introduction of other evidence of a particular
element of the offense by stipulation is that the gov-
ernment must be given the opportunity “to present to the
jury a picture of the events relied upon. To substitute
for such a picture a naked admission might have the
effect to rob the evidence of much of its fair and
legitimate weight.”

Id. (quoting Old Chief v. United States, 519 U.S. 172 (1997)).

Here, the Government’s point that the body had decomposed too much

for any physical evidence to be found was made more effectively

with images than it would have been with vague generalizations

about the difficulty in processing weeks-old crime scenes.

Fields also contends that admitting thirty-two photos was

unduly cumulative. This argument has four flaws that, taken to-

gether, show that it must fail. First, many of the photos had

different relevance from other photos. Only a few of the photos,

for example, showed with clarity that the victim’s fingers had been

eaten away such that recovering trace evidence from under the

fingernails would be impossible. Additionally, only a few showed

clearly the gunshot wounds in the victim’s skull. While not every

photo had probative value strictly independent from any other

evidence presented, some of the photos clearly supported points

distinct from points made by others.

Second, Rule 403 does not ban per se all duplicative evidence.

It is not required that each piece of evidence admitted have an

entirely unique theory of relevancy. Indeed, Rule 403 provides

72
that courts should only exclude relevant evidence if the need to

avoid cumulative presentation “substantially” outweighs the proba-

tive value of the evidence.

Third, Fields’s arguments run up against our deferential stan-

dard of review. His brief points out at length that this specific

photo or that specific photo was used to make points that might

also have been made with other evidence or with another specific

photo. This is precisely the sort of strict scrutinizing that we

cannot do when reviewing a trial court’s Rule 403 balancing

decision.

Lastly, the marginal prejudice that any duplicative photo may

have added in this case is minimal. The greatest risk of unfair

prejudice resulted from the gruesome scenes depicted in the photos.

As we determined above, those scenes were fairly in evidence. It

is difficult to see how additional photos showing the same thing

significantly harmed Fields. Indeed, Fields himself speculates

that showing an inflammatory scene repeatedly may actually diminish

its emotional impact. Accordingly, the district court did not

clearly abuse its discretion in admitting the thirty-two photos of

the victim’s body.

5. USE OF THE STUN BELT

Fields’s next claim is that the district court abused its

discretion by requiring him to wear a stun belt at trial. Since

Fields failed to object to the stun belt below, our review is only

73
for plain error. Fields contends (1) that the trial court failed

to find explicitly that the stun belt was necessary or to exercise

its discretion independently from the recommendation of the

Marshals Service and (2) that the decision to use a stun belt was

substantively unjustified in light of his good behavior during

previous court appearances and due to the heightened prejudice

restraints may cause a pro se litigant. We hold that the district

court committed no reversible error.

As to Fields’s first argument, we have held that a court “may

rely heavily on the U.S. Marshal’s advice when deciding whether

defendants should be shackled during trial.” United States v.

Ellender, 947 F.2d 748, 760 (5th Cir. 1990). Moreover, a district

court’s failure to assign reasons for physically restraining a

defendant—though erroneous—is not “reversible error” where those

reasons “are readily apparent to us from the record.” United

States v. Hope, 102 F.3d 114, 118 (5th Cir. 1996). Here, the

Marshals Service testified that Fields (1) had a violent criminal

history, (2) had been “aggressive, volatile, and lewd” while in

custody, and (3) had a “history of escape and escape attempts.”

The district court’s reasons for restraining Fields are readily

apparent.

Turning to Fields’s second argument, the district court did

not abuse its discretion in deciding to restrain Fields with a stun

belt. Physical restraint may be justified where there is “a danger

74
of escape or injury to the jury, counsel, or other trial partici-

pants.” See, e.g., United States v. Joseph, 333 F.3d 587, 591 (5th

Cir. 2003). Fields posed just such dangers. That Fields had not

previously misbehaved in court does not eliminate the import of

Fields’s previous prison escape attempts and history of violence.

A trial court need not wait until an obviously dangerous defendant

actually injures trial participants or tries to escape from the

courtroom before restraining him. In addition, the district court

appropriately took steps to minimize any risk of prejudice. Fields

was allowed to conceal the stun belt under street clothes.

Moreover, the court took into account the special problems that

physical restraints might pose under Fields’s decision to proceed

pro se. It provided that both sides would remain seated before the

jury. These steps ensured that the jury would neither see the stun

belt nor surmise that Fields was being treated differently from the

prosecutors. For these reasons, the court did not abuse its

discretion.

6. JUROR EXCLUSION

Fields claims that the district court erred by excluding Juror

Barnett due to his opposition to the death penalty. We review such

claims for abuse of discretion, affording “considerable deference”

to the trial court. See United States v. Bernard, 299 F.3d 467,

474 (5th Cir. 2002).

The court did not abuse its discretion in striking Barnett.

75
A court may strike jurors for cause if their views on capital

punishment would “prevent or substantially impair” the performance

of their duties “in accordance with the instruction and oath.”

United States v. Webster, 162 F.3d 308, 340 (5th Cir. 1998).

Barnett stated that he “could never, regardless of the facts and

circumstances, return a verdict which resulted in the death pen-

alty.” Similarly he stated at voir dire, “I don’t believe that

I would return a verdict of the death sentence in any case”

(emphasis added). Statements like those made by Barnett provide a

more than adequate basis for exclusion. See, e.g., Bernard, 299

F.3d at 474. Contrary to Fields’s arguments, the court need not

have explored Barnett’s positions any further given that Barnett

“resoundingly” indicated his refusal to ever apply the death pen-

alty. See United States v. Flores, 63 F.3d 1342, 1354 (5th Cir.

1995).

7. PROSECUTORIAL MISCONDUCT

Fields’s next claim of trial error is that the Government

committed numerous acts of prosecutorial misconduct that, individu-

ally and collectively, denied Fields due process.

a. Standard of Review

We apply a “two-step analysis” to claims of prosecutorial

misconduct. United States v. Insaulgarat, 378 F.3d 456, 461 (5th

Cir. 2004). First, we assess whether “the prosecutor made an

improper remark.” Id. If so, then we ask whether the defendant

76
was prejudiced. We have made clear that the prejudice step of the

inquiry sets a high bar:

Improper prosecutorial comments constitute reversible
error only where the defendant’s right to a fair trial is
substantially affected. A criminal conviction is not to
be lightly overturned on the basis of a prosecutor’s
comments standing alone. The determinative question is
whether the prosecutor’s remarks cast serious doubt on
the correctness of the jury’s verdict.

United States v. Holmes, 406 F.3d 337, 356 (5th Cir.) (internal

citations omitted), cert. denied, 126 S. Ct. 375 (2005).

We generally look to three factors in deciding whether any

misconduct casts serious doubt on the verdict: “(1) the magnitude

of the prejudicial effect of the prosecutor’s remarks, (2) the ef-

ficacy of any cautionary instruction by the judge, and (3) the

strength of the evidence supporting the conviction.” United States

v. Mares, 402 F.3d 511, 515 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).

Furthermore, in assessing prejudice, occurrences of prosecuto-

rial misconduct ordinarily must be viewed individually. See United

States v. Wicker, 933 F.2d 284, 292 (5th Cir. 1991); United States

v. Iredia, 866 F.3d 144, 118 (5th Cir. 1989). “There may be in-

stances where improper statements, which are not individually pre-

judicial enough to require reversal, could cumulate to affect the

defendant’s substantial rights. However, such instances are rare

in this circuit.” Wicker, 933 F.2d at 292. We examine the cumu-

lative error doctrine in Section 9 infra.

77
 b. Analysis

i. Eliciting Inadmissible Evidence

Fields argues, first, that the prosecutors committed miscon-

duct by taking advantage of Fields’s pro se status and repeatedly

soliciting evidence of prior bad acts. See FED. R. EVID. 404(b)

(“Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith.”).

As an initial matter, we have some difficulty with the

allegation that the Government took advantage of Fields. While it

is true that the prosecutor is an officer of the court, ours ulti-

mately is an adversarial system. As such, it is the defendant’s

attorney, not the prosecutor, who primarily is charged with pro-

tecting the defendant’s rights. That is why courts universally

recognize that representing oneself in criminal proceedings is

“foolish[],” Mayberry v. Pennsylvania, 400 U.S. 455, 463 (1971),

which in turn is why defendants must be advised of the dangers of

self-representation before they can validly waive counsel, see

Faretta v. California, 422 U.S. 806, 835 (1975).

Where those dangers have been hazarded voluntarily, “[w]e

reject the notion that the prosecutor . . . must abide by some

special rules . . . .” See State v. Hoff, 644 P.2d 763, 812 (Wash.

App. 1982). Having waived his right to counsel, Fields cannot now

demand that the prosecutors should have effectively served as his

78
lawyers by ensuring that there was no valid objection to their own

evidence. See id. Thus, without affording Fields’s misconduct

claim any special treatment because he represented himself, we turn

to its merits.

The incident highlighted by Fields is the Government’s

redirect examination of Kevin Burton, who testified that Fields had

bragged to him about killing the victim. The Government elicited

that Fields was “known to shoot people” and had tried to rob

Burton. On re-redirect, the Government continued with the theme—

eliciting that Fields was a “dangerous person” known for “shooting

and robbing” crack dealers. Ultimately, the Government drew an

objection from Fields, which was sustained. The court subsequently

gave a curative instruction.

Fields argues that the Government’s actions in examining Bur-

ton amount not only to an evidentiary violation but to prosecuto-

rial misconduct. Viewing the Government’s redirect examinations in

context, we disagree. On cross-examination of Burton, Fields ap-

peared to suggest that Burton had recently fabricated Fields’s

supposed confession. He asked Burton why he failed to report

Fields’s admission until well after it occurred. The Government’s

proffer of Fields’s attempted robbery of Burton was used to support

Burton’s response; according to Burton, he did not come forward

earlier because he was afraid of Fields. Fields’s prior violent

conduct toward Burton established that this was a plausible ex-

79
planation. Prior misconduct is only inadmissible under Rule 404(b)

if used for character propensity purposes. Thus, the Government’s

initial redirect was proper.

The court did sustain an evidentiary objection on re-redirect

as the Government continued to elicit more misconduct evidence.

However, the foregoing establishes that the Government had a rea-

sonable basis for pursuing evidence that Fields had committed

violent acts, and the court gave curative instructions after

sustaining the objection. Under the circumstances, any marginal

improper questioning of Burton falls woefully below the severity of

what would be required to reverse Fields’s conviction.40

ii. Goading Fields with Objections

Fields also complains that the prosecutors schemed to provoke

and upset him with frequent objections. A defendant proceeding pro

se is expected to follow ordinary procedural rules. See Faretta,

422 U.S. at 834 n.46. Here, the prosecutors’ objections to

Fields’s failure to do so were proper and, in fact, usually were

sustained. Since the Government’s objections were clearly valid,

we see no need to complicate matters with inquiry into the prose-

cutors’ motives for objecting. In short, there was no improper

40
Fields also gestures to other instances where the Government
allegedly elicited inadmissible prior bad acts evidence. His briefing
on this issue is nothing more than “see also” citations and descriptive
parentheticals. Since each allegation of misconduct must be viewed
individually and since context is critical, see Insaulgarat, 378 F.3d
at 461, these matters are inadequately briefed. Consequently, we will
not consider them. See United States v. Williams, 400 F.3d 277, 283
(5th Cir. 2005).

80
conduct.

iii. Improper Sidebar Remark

Next, Fields argues that the prosecutors made an improper

sidebar remark in their redirect examination of Edward Outley, the

man who provided Fields with a gun on the night of his escape. In

cross-examining Outley, Fields attempted to show that Outley had

recently fabricated his testimony. Among other things, Fields

asked Outley whether he told the grand jury about the gun. When

Outley said yes, Fields showed him a single page of his grand jury

testimony. At prompting from Fields, Outley stated that the

document contained no testimony about a gun. The jury was thereby

left with the misimpression that Outley, in fact, had omitted any

mention of the gun before the grand jury. However, Outley had told

the grand jury about the gun—just not on the single page of

testimony highlighted by Fields. After the Government confirmed

this, the prosecutors asked Outley whether he “just fell for

[Fields’s] con [and] forgot that [he] had told [the Grand Jury] all

about it . . . .” When Outley answered in the affirmative, the

prosecutors remarked that “[a] lot of people have fallen for that

con.”

Fields argues that prosecutors may not engage in name-calling.

However, “[t]he use of colorful pejoratives is not improper.”

United States v. Shoff, 151 F.3d 889, 893 (8th Cir. 1998); see

United States v. Malatesta, 583 F.2d 748, 759 (5th Cir. 1978)

81
(“Unflattering characterizations of a defendant do not require a

new trial when such descriptions are supported by the evidence.”).

In this case, it appears that Fields deliberately tried to mislead

the jury. In context, referring to Fields’s actions as a “con” was

not out-of-bounds. See United States v. Windom, 510 F.2d 989, 994

(5th Cir. 1975) (no mistrial was warranted where prosecutor called

the defendant a “con artist”); United States v. Caballero, 277 F.3d

1235, 1249–50 (10th Cir. 2002) (no prosecutorial misconduct where

defense questioning invited prosecutors to elicit testimony char-

acterizing him as a “con man”); Shoff, 151 F.3d at 893 (no

prosecutorial misconduct where prosecutor labeled the defendant a

“con man” in opening statements). Thus, the prosecutor did not

make an improper remark.

iv. Improper Closing Argument

Finally, Fields complains that the prosecutors made several

improper remarks at closing argument. Since Fields did not object

below to the remarks, we review for plain error. See United States

v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999).

Most significantly, the prosecutors called Fields a “psycho-

path.” Assuming arguendo that this remark was clearly or obviously

improper, it did not affect Fields’s substantial rights. Undoubt-

edly, the “psychopath” remark had some risk of inflaming the jury.

However, the district court instructed the jury that it must decide

the case based on the evidence and that “statements . . . or argu-

82
ments made by the lawyers are not evidence” and are “not binding

upon you.” Additionally, though Fields argues the murder case

against him was not airtight,41 the Government produced strong

evidence of Fields’s guilt. For example, four witnesses testified

that Fields admitted murdering the victim. Those confessions were

corroborated by physical evidence showing cause of death and the

killer’s attempt to hide the body. In light of this evidence,

Fields has not shown that the prosecutors’ remark casts serious

doubt on the verdict.

Fields’s remaining claims of improper closing argument also

fail because he cannot show prejudice. Fields complains that the

prosecutors offered their personal opinion on the case when they

stated they were “sure” Fields planned on having sex with the

victim with or without her consent. Fields also contends that the

prosecutors injected impermissible character evidence into the

jury’s deliberations when they argued that Fields’s courtroom

manner showed that Fields “can’t stand to not be in control.”

Fields failed to object to these comments below.

We again assume for the sake of argument that these two re-

marks were improper. Neither statement is so grave, however, that

it risked prejudicing substantially the jury’s deliberations. In

light of the court’s instructions and the strength of the evidence

41
Fields does not point to any “holes” in the prosecution’s case
on the other counts. Indeed, as to the escape count, Fields admitted
his guilt before the jury.

83
against Fields, Fields has not shown that either remark casts doubt

on the correctness of the jury’s verdict.

8. MANAGEMENT OF STANDBY COUNSEL

Fields complains that the district court’s management of his

standby counsel violated his due process rights. He argues that

the court failed to “safeguard the orderly process of trial.” See

United States v. Nivica, 887 F.2d 1110, 1122 (1st Cir. 1989).

According to Fields, the court’s inconsistent directions about the

role of standby counsel were fundamentally unfair and compromised

the integrity of the verdict. Significantly, Fields does not claim

that standby counsel’s participation at trial intruded upon his

Sixth Amendment right to self-representation.

a. Standard of Review

In the circumstances of this case, our review of this claim is

limited. Trial courts must make difficult “judgment calls” when

trying to reconcile the role of standby counsel with a defendant’s

desire to represent himself. See McKaskle v. Wiggins, 465 U.S.

168, 177 n.8 (1984). Since trial courts clearly are in the best

position to make those calls, the Supreme Court has instructed us

to accord “deference” to their decisions. Id. We will review for

abuse of discretion. See United States v. Lawrence, 161 F.3d 250,

253 (4th Cir. 1998). Here, Fields failed to object below to the

court’s standby-counsel orders. Thus, our deferential review is

restricted even further by the plain-error doctrine. See United

84
States v. Thompson, 130 F.3d 676, 685 n.14 (5th Cir. 1997).

b. Analysis

Fields’s claim fails the first prong of plain error review:

the district court did not abuse its discretion. The court’s

actions appear to us as nothing more than a reasonable attempt to

deal with a trial that turned chaotic due to Fields’s insistence on

self-representation. See United States v. Einfeldt, 138 F.3d 373,

378 (8th Cir. 1998).

After Fields decided to represent himself, the court explained

the role of standby counsel. They would serve as Fields’s “legal

reference material.” However, Fields was responsible for making

statements to the Court and framing questions to witnesses.

Accordingly, Fields’s standby counsel were instructed that they

could not “represent him through him.” The crux of Fields’s

complaint now appears to be that the court, while initially

requiring that standby counsel play this very limited role,

thereafter allowed them to participate more and more, rendering the

rules for standby counsel incomprehensible and compromising the

orderly process of trial.

It is necessary to put this complaint in perspective.

Fields’s attempt at self-representation was, as he acknowledges,

“predictably catastrophic.” Not surprisingly, Fields lacked the

legal ability to abide by the elementary rules of courtroom

procedure. Fields’s questions frequently were argumentative, e.g.:

85
“Mr. Davis, being a government witness, it’s your job to make

excuses for the lack of evidence; am I correct?”. Often they were

improper, e.g.: “Ms. Hilliard, do you know why [the victim’s] baby

was born premature? . . . Isn’t it true that [she] drunk liquor

and vinegar in an attempt to abort--” and “Are you aware that the

witness that was just up here said--”. Many times Fields’s ques-

tions were not questions at all. While cross-examining a fellow

inmate who testified that Fields confessed to him, Fields said,

“Man, I don’t know you from the man in the moon.” He told another

witness,“You been watching too many Westerns.”

The court sustained Government objection after Government

objection. For example, during Fields’s cross-examination of a

witness named Shaylakea Scroggins, the court sustained hearsay

objections to four consecutive questions, along with many others.

Eventually, the progress of trial became so frustrated by improper

questioning that the court dismissed the jurors to determine which

of Fields’s questions would be acceptable.

This context shows that Fields’s complaint about the court’s

allegedly inconsistent management of standby counsel has no merit.

The record indicates that the court had to permit an expanded role

for standby counsel later in the trial precisely to ensure that the

trial continued in an orderly fashion. Cf. Dunn, 162 F.3d at 307

(stating that an accused has a right to appear pro se only if “he

is able and willing to abide by rules of procedure and courtroom

86
protocol”). Fields was allowed to confer frequently with standby

counsel to develop his questions because he proved unable to

formulate appropriate questions on his own. Standby counsel was

allowed to make arguments for Fields outside the jury’s hearing

because Fields demonstrated that he could not protect his own

interests. The disorderly situation caused by Fields’s self-

representation provided the court adequate justification for any

inconsistency (if there was inconsistency) in its directives con-

cerning standby counsel. There was no abuse of discretion and no

violation of due process.

9. CUMULATIVE ERROR

Fields’s final guilt-phase claim is that his convictions must

be set aside for cumulative error. Having determined above that

none of his claims warrant reversal individually, we decline to

employ the unusual remedy of reversing for cumulative error.42 Many

of Fields’s claims do not amount to error at all. See Section

II.B.2., 4., 5., 6., 7., & 8. supra. The remainder do not justify

reversal under the cumulative error doctrine because they did not

42
Fields also argues that the trial errors cumulatively infected
his sentencing by creating an unacceptable risk that the jury imposed
a death sentence “under the influence of passion, prejudice, or any
other arbitrary factor.” 18 U.S.C. § 3595(c)(2)(A). Having rejected
nearly all of Fields’s claims of trial error, we find that any errors
that may have occurred do not cumulatively warrant reversing his
sentence, especially in light of the district court’s instruction that
the jury must avoid the influence of “passion, prejudice or sympathy”
and base its sentence upon the evidence. We also decline Fields’s
invitation to exercise our supervisory authority to reverse his
sentence.

87
“so fatally infect the trial that they violated the trial’s fun-

damental fairness.” United States v. Bell, 367 F.3d 452, 471 (5th

Cir. 2004). Accordingly, Fields’s convictions are affirmed.

III. CONCLUSION

For the reasons above, we AFFIRM Fields’s convictions and

sentence.

88
BENAVIDES, Circuit Judge, dissenting from Part II.A.1 and dissent-
ing, in part, from the judgment.

The value of confrontation is never more vivid than when the

state puts a defendant to death based on testimony he had no

opportunity to challenge. This was appreciated more than two-

thousand years ago, when the Roman Governor Festus declared, “It is

not the manner of the Romans to deliver any man up to die before

the accused has met his accusers face to face.” Coy v. Iowa, 487

U.S. 1012, 1015 (1988) (quoting Acts 25:16). Today, the majority

announces that when it comes to putting defendants to death, “We

are no Romans.”

Sherman Lamont Fields was sentenced to death based on adverse

testimony he never had an opportunity to confront. That is all

I need to know to find that the Confrontation Clause has been

offended. The majority places undue emphasis on the artificial

distinction between eligibility and selection factors at capital

sentencing, and completely neglects to consider recent developments

in the Sixth Amendment as to confrontation and sentencing.

When a jury cannot practically hand down a death sentence

without finding certain facts, testimony as to those facts must be

tested through confrontation. I would find that confrontation

rights extend to FDPA capital sentencing, that those rights were

violated below, and that resentencing is required.

89
 I. The Confrontation Clause Applies at Capital Sentencing

Confrontation Clause analysis today bears little resemblance

to its former self. It has changed significantly in the past few

years. See Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006);

Crawford, 541 U.S. 36 (2004). One of the few areas undergoing a

similarly drastic transformation is criminal sentencing. See

United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washing-

ton, 542 U.S. 961 (2004). It should come as no surprise, then,

that when courts are now asked to articulate how these two

reconceptualized areas of law intersect—especially with regard to

capital sentencing—disagreement abounds.

The persuasive authorities, and our Sister Circuits in par-

ticular, are divided on the issue sub judice.43 A recent panel of

43
Compare Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir.
1982) (holding that “the right to cross-examine adverse witnesses
applies to capital sentencing hearings”); United States v. Mills, 446
F. Supp. 2d 1115, 1135 (C.D. Cal. 2006) (“Crawford v. Washington's
protections apply to any proof of any aggravating factor during the
penalty phase of a capital proceeding under the FDPA.”); Russeau v.
State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005) (reversing a death
sentence under Crawford because the trial court admitted testimonial
hearsay at the punishment phase), cert. denied, 126 S. Ct. 2982 (2006),
and cert. denied, 126 S. Ct. 2982 (2006); State v. Bell, 603 S.E.2d 93,
115–16 (N.C. 2004) (applying Crawford to hold that the introduction of
testimonial hearsay at the sentencing phase of a capital trial violated
the Confrontation Clause); and Rodriguez v. State, 753 So. 2d 29, 43–44
(Fla. 2000) (holding that “the Sixth Amendment right of confrontation
applies to all three phases of the capital trial” and that “the
admission of . . . hearsay statements of co-defendants in the penalty
phase violated the Confrontation Clause”) with Szabo v. Walls, 313 F.3d
392, 398 (7th Cir. 2002) (holding that the Confrontation Clause “applies
through the finding of guilt, but not to sentencing, even when that
sentence is the death penalty”); State v. McGill, 140 P.3d 930, 940-42
(Ariz. 2006) (Crawford does not apply to penalty phase of capital
(continued...)

90
this Court recently presumed that the Confrontation Clause applies

at capital sentencing, but did so without explicitly holding so.

Coble v. Dretke, 444 F.3d 345, 353-54 (5th Cir. 2006). After a

thorough consideration of constitutional text, history, structure,

and precedent, I would find that the Confrontation Clause applies

with full force to capital sentencing under the Federal Death

Penalty Act (“FDPA”).

A. Williams v. New York Is Not Controlling

No Supreme Court opinion has directly addressed whether the

Confrontation Clause applies to capital sentencing. Even if one

had, it would surely have been called into question by the Supreme

Court’s recent Confrontation Clause and sentencing cases. It is

therefore somewhat surprising that the majority relies so heavily

on Williams v. New York, a due process case decided nearly sixty

years ago that has been repeatedly limited by subsequent cases.

43
(...continued)
trial); State v. Stephenson, 195 S.W.3d 574, 590-91 (Tenn. 2006) (same);
United States v. Johnson, 378 F. Supp. 2d 1051, 1062 (N.D. Iowa 2005)
(holding that Crawford does not apply to sentence-selection phase of
capital sentencing); and People v. Simms, 659 N.E.2d 922, 930 (Ill.
1995) (rejecting Proffitt).

In a footnote in Proffitt, the Eleventh Circuit stated, “Our
decision that the right of cross-examination of adverse witnesses is
extended to capital sentencing proceedings is necessarily limited to the
facts of the case before us, involving psychiatric reports.” 706 F.2d
311, 312 (11th Cir. 1983) (on petition for rehearing). However, both
the Eleventh Circuit and this Court have since recognized that Proffitt
stands for the general proposition that “the constitutional right to
cross-examine witnesses applies to capital sentencing hearings.” United
States v. Brown, 441 F.3d 1330, 1361 n.12 (11th Cir. 2006), cert.
denied, 127 S. Ct. 1149 (2007); see United States v. Hall, 152 F.3d 381
(5th Cir. 1998).

91
 Williams was a capital case that held the Due Process Clause

did not “render[] a sentence void merely because a judge gets

additional out-of-court information to assist him in [sentencing].”

337 U.S. 241, 252 (1949). In United States v. Hall, this Court

addressed Williams in light of a Confrontation Clause challenge to

FDPA sentencing. 152 F.3d 381, 405–06 (5th Cir. 1998). In Hall, we

assumed without deciding “that the Confrontation Clause applies to

the sentencing phase of a capital trial with the same force with

which it applies during the guilt phase.” Id. In so doing, we

noted this as an undecided issue and expressed doubt that Williams

resolved it:

[I]t is significant that in Williams the Court addressed
a due process challenge under the Fourteenth Amendment.
The Court did not hold that the Sixth Amendment right to
confrontation applied to the states via the Fourteenth
Amendment’s Due Process Clause until over fifteen years
after Williams was decided. It is thus quite question-
able whether Williams is controlling with respect to the
determination of whether the Sixth Amendment right to
confrontation extends to capital sentencing hearings.

Id. at n.13 (internal citations omitted); see also note 48, infra.

Williams’s authority on this basis is frequently doubted.44

44
See United States v. Silverman, 976 F.2d 1502, 1525–26 (6th Cir.
1992) (Merritt, C.J., dissenting) (“In Williams, . . . the question was
whether the Due Process Clause—not the Confrontation Clause—allowed the
trial judge to use general hearsay information in the sentencing
process.”); United States v. Wise, 976 F.2d 393, 408 (8th Cir. 1992)
(Arnold, C.J., concurring in part and dissenting in part) (“Williams
. . . is not a Confrontation Clause case at all. It is a due-process
case from a state court, decided before the Confrontation Clause was
held applicable to the states.”); Proffitt v. Wainwright, 685 F.2d 1227,
1253 (11th Cir. 1982) (stating that, notwithstanding Williams, whether
(continued...)

92
 While there was severe doubt as to Williams’s vitality a

decade ago, the Supreme Court’s overhaul of the Confrontation

Clause, see Crawford, 541 U.S. 36, and the “sea change in the body

of sentencing law” since then have made Williams even less

informative to the question we face today. See United States v.

Pineiro, 377 F.3d 464, 468-69 (5th Cir. 2004), vacated, 543 U.S.

1101 (2005). While Williams may have some enduring value with

regard to the introduction of nontestimonial hearsay at sentencing,

testimonial hearsay requires separate treatment.45

44
(...continued)
“the right to cross-examine adverse witnesses extends to capital
sentencing proceedings has not been specifically addressed by the
Supreme Court.”); see also Maynard v. Dixon, 943 F.2d 407, 414 n.5 (4th
Cir. 1991) (discussing Williams but noting as unresolved the
“fundamental question of whether the sixth amendment right of
confrontation applies to all aspects of the sentencing phase [of a
capital trial]”); United States v. Kikumura, 918 F.2d 1084, 1103 n.19
(3d Cir. 1990) (“We hope . . . that the Supreme Court in the near future
will decide whether confrontation clause principles are applicable at
sentencing hearings.”); Alan C. Michaels, Trial Rights at Sentencing,
81 N. C. L. REV. 1771, 1837 (2003) (“[Williams] was decided on due process
grounds alone, however, and was decided sixteen years before the
Confrontation Clause was incorporated against the states.”); Note, An
Argument for Confrontation Under the Federal Sentencing Guidelines, 105
HARV. L. REV. 1880, 1890 (1992) (hereinafter “An Argument for
Confrontation”) (criticizing Courts of Appeals for failing to notice
that “Williams was not a Confrontation Clause case”).
45
The majority reasons that because the Supreme Court has
previously analyzed hearsay admissibility at sentencing under the Due
Process Clause, that somehow means the Due Process Clause—not the
Confrontation Clause—is ordained as the relevant framework for such
challenges. This reads far too much into Williams and United States v.
Specht, 386 U.S. 605 (1967). In neither case did the appellant so much
as mention the Confrontation Clause in its briefs and, accordingly, the
Court did not consider it. The Court’s failure to address unraised
arguments hardly provides grounds for an implied holding. This mistake
might explain the majority’s repeated disregard for the distinction
(continued...)

93
B. Crawford and Apprendi Render Williams Inapplicable

Williams was based on two antiquated premises that have since

been rejected by the Supreme Court:46 (1) the Confrontation Clause

is just a constitutional rule against hearsay, inextricable from

the rules of evidence, and (2) the capital trial and sentencing are

fundamentally different procedures that give rise to entirely dif-

ferent evidentiary concerns.

1. The Confrontation Clause Distinguished from the
Rules of Evidence

Crawford explicitly rejected the former premise, holding that

the Confrontation Clause was not dependent on “the vagaries of the

rules of evidence.” 541 U.S. at 61. The Confrontation Clause and

the rules of evidence offer entirely separate protections.

Conforming to evidentiary rules regarding hearsay will not satisfy

the Confrontation Clause. Id. at 61-62. Likewise, if a hearsay

statement is not testimonial, the Confrontation Clause offers no

protection. Davis, 126 S. Ct. at 2273.

With that understanding, Williams applies only to non-

testimonial hearsay. That “the rules of evidence applicable to the

manner in which a judge may obtain information to guide him in the

45
(...continued)
between nontestimonial and testimonial hearsay, inasmuch as that is a
distinction only relevant to a Confrontation Clause inquiry.
46
See Michael S. Pardo, Confrontation Clause Implications of
Constitutional Sentencing Options, 18 FED. SENT. R. 230 (April, 2006)
(describing these premises and their inapplicability given recent
cases).

94
imposition of sentence,” Williams, 337 U.S. at 244, are more

relaxed than evidentiary rules at trial says nothing about the

content of the Confrontation Clause. Even if the rules of evidence

have no application at sentencing in light of the FDPA’s “blanket

exception to the hearsay rule,” United States v. Robinson, 367 F.3d

278, 292 (5th Cir. 2004), that does nothing to preclude Confronta-

tion Clause protections.

The majority falters by treating the rules of evidence in

lockstep with the Confrontation Clause. It repeatedly fails to

appreciate the distinction between testimonial and nontestimonial

hearsay. For instance, at one point it states that “[i]ncluded in

the notion that information influencing a sentencing decision need

not be introduced in open court is the idea that defendants have no

confrontation right at that phase of a trial.” Of course, that is

only true if the “information” happens to be testimony, but any

other form of information introduced outside of open court—

including nontestimonial hearsay—raises no Confrontation Clause

issues whatsoever.47 All of the majority’s concerns about depriving

the sentencing authority of a broad range of evidence are mis-

placed, since extending the Confrontation Clause to sentencing does

not preclude the relaxation of the rules of evidence. It is lim-

ited to testimonial evidence, as that alone implicates the Confron-

47
That is not to say that there are no concerns—since due process
and statutory restrictions may still serve to exclude such evidence—just
that they are not Confrontation Clause concerns.

95
tation Clause.

The majority’s reliance on Williams is a sort of pre-Crawford

relic surfacing a few years too late to be defensible. While

Williams may still render the rules of evidence non-binding at

sentencing, it has no bearing on the Confrontation Clause as

recently extracted from those rules by Crawford and Davis.

2. The Convergence of Trial and Capital Sentencing

Second, the notion that capital sentencing proceedings are

fundamentally different from trials no longer prevails. That con-

ception has been eroded by both the longstanding Furman v. Georgia,

408 U.S. 238 (1972), line of cases, and the more recent Apprendi v.

New Jersey, 530 U.S. 466 (2000), line. Ultimately, Williams pro-

vides little guidance because “[t]he bases of the Williams decision

. . . have been eroded as applied to capital cases.” United States

v. Taveras, 424 F. Supp. 2d 446, 457 (E.D.N.Y. 2006).

Williams supposed that there was no “constitutional distinc-

tion” between capital sentencing and ordinary sentencing. 337 U.S.

at 252. Williams’s critical backdrop was a sentencing scheme

characterized by informal procedures and extraordinary discretion,

one in which “no federal constitutional objection would have been

possible” even if a judge gave “no reason at all” for a death

sentence. Id. These premises no longer hold true. As explored

further below, the death penalty invokes unique sentencing con-

cerns. See United States v. Brown, 441 F.3d 1330, 1361 n.12 (11th

96
Cir. 2006) (explaining that the Confrontation Clause applies at

capital sentencing because “death is different”), cert. denied, 127

S. Ct. 1149 (2007). The Constitution requires more stringent

substantive and procedural protections before that penalty may be

imposed. See, e.g., Furman, 408 U.S. 238.

Moreover, the more recent Apprendi/Ring/Blakely/Booker line of

cases casts doubt on the majority’s repeated assumption that Wil-

liams plainly controls at ordinary sentencing. 530 U.S. 466

(2000); 536 U.S. 584 (2002); 542 U.S. 296 (2004); 543 U.S. 220

(2005). While that statement would have been less troubling a

decade ago,48 I for one cannot turn a blind eye to the complexities

the Crawford and Apprendi cases have layered onto this issue.

I agree that the Confrontation Clause typically will not apply

at noncapital sentencing, so long as the sentencing facts apply to

an indeterminate scheme and a judge has broad discretion in

imposing the sentence. Only to that extent is Williams’s applica-

tion plain. But the Supreme Court recently recognized that even

noncapital sentencing is not always so different from trial pro-

48
The majority offers many permutations of this view: “caselaw
definitively maintains the Williams principle in the noncapital
context,” “the confrontation right [is] admittedly nonexistent at
noncapital sentencing,” “it has already been established that the right
of confrontation is nonexistent.”

While Williams has some application, its holding is limited to the
rules of evidence as recently extracted from the Confrontation Clause,
as explained above. It cannot be read for any broader holding than
that.

97
ceedings, and if the sentencing facts “increase the prescribed

range of penalties to which a criminal defendant is exposed” such

that the sentencing fact is the “equivalent of an element of a

greater offense than the one covered by the jury’s guilty verdict,”

Apprendi, 530 U.S. at 490, 494, then the Confrontation Clause

should apply and Williams does not control even in the noncapital

context.

Insofar as the sentencing fact is the equivalent of an element

of the offense, Confrontation Clause protections logically apply at

sentencing. See United States v. Mills, 446 F. Supp. 2d 1115 (C.D.

Cal. 2006); United States v. Gray, 362 F. Supp. 2d 714, 725 (S.D.

W. Va. 2005); see also Michael S. Pardo, Confrontation Clause

Implications of Constitutional Sentencing Options, 18 FED. SENT. R.

230 (April, 2006). Even the Seventh Circuit, the only circuit to

agree with the majority’s holding here, recognizes that “the

Confrontation Clause applies during those portions of a sentencing

proceeding that can lead to an increase in the maximum lawful

punishment.” See Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002)

(citing United States v. Specht, 386 U.S. 605 (1967)).

The majority is quick to point out that the contested

testimony in this case applied only to selection factors, as op-

posed to eligibility factors. It finds that “[t]he establishment

of nonstatutory aggravating factors is neither necessary nor suf-

ficient to authorize imposition of the death penalty.” But that

98
artificial categorical approach to sentencing ignores the stark

reality of this case; because the jury unanimously found seven

mitigating factors in Fields’s favor—and a number of other miti-

gating factors were found without unanimity—it is without doubt

that the death penalty would not have been imposed but for the

establishment of aggravating factors at the selection phase. To

state that those factors were not necessary to impose the death

penalty requires the majority to turn a blind eye to the practical

realities of capital sentencing.

While the majority attempts to describe the selection phase of

FDPA sentencing as purely discretionary, a jury that finds a

defendant death eligible “has not found all the facts which the law

makes essential to the punishment.” Blakely v. Washington, 542

U.S. 296, 303-04 (2004). The selection phase of the FDPA gives

jurors significant discretion, but that discretion is curbed by

requiring that the jury first ascertain the presence of mitigating

factors. Assuming that mitigating factors exist, as several did

here, the jurors must also find beyond a reasonable doubt that

aggravating factors exist sufficient to outweigh the mitigating

factors. While the actual weighing of the factors is not a

“finding of fact,” the existence of such factors is a “constitu-

tionally significant factfinding” to which the Confrontation Clause

99
must attach.49

This is especially evident when, as here, the jurors found

many mitigating factors that, on any plausible account, were only

outweighed by aggravating factors that existed beyond those re-

49
Perhaps my disagreement with the majority is based in how to
classify the selection phase of FDPA sentencing. The Supreme Court has
made clear that the aggravating factors required at the eligibility
phase of FDPA sentencing are the equivalent of elements of the offense,
and the Confrontation Clause would presumably attach at that phase since
it is akin to a trial on the elements of the offense. See Ring v.
Arizona, 536 U.S. 584, 609 (2002). This case concerns the selection
phase of FDPA sentencing, where the jury must find any additional
aggravating factors beyond a reasonable doubt, find mitigating factors
by a preponderance of the evidence, and then must determine “whether all
the aggravating factor or factors found to exist sufficiently outweigh
all the mitigating factor or factors found to exist to justify a
sentence of death.” 18 U.S.C. § 3593(e).

I think the majority offers a distorted description of the
selection process as merely providing the jury the “ability to select
a lesser punishment in a capital case in spite of death-eligibility,”
as if it were nothing more than a mercy hearing. It is not nearly so
discretionary, as it contemplates particularized additional findings
from the jury regarding the existence of aggravating and mitigating
factors. See John G. Douglass, Confronting Death: Sixth Amendment
Rights at Capital Sentencing, 105 COLUM. L. REV. 1967, 1974-75 (2005) (“A
defendant's right to cross-examine a crucial witness should not turn
upon a legislature's designation of eligibility factors and selection
factors, an often artificial distinction that bears little relationship
to the real issues affecting the choice between life and death.”).

But selection phase findings cannot be easily labeled as elements
of the offense either, as the eligibility factors were found to be in
Ring. Instead, we are faced with a hybrid finding that one court
recently aptly labeled as “constitutionally significant factfinding.”
Mills, 446 F. Supp. 2d 1115, 1134. I agree with that court’s finding
that such constitutionally significant factfinding is more similar to
eligibility findings than purely discretionary ones and thereby requires
Confrontation Clause protections. Id. at 1134–35.

The FDPA’s complicated and rigorous factfinding requirements also
distinguishes it from typical noncapital sentencing, answering the
majority’s queries as to how my approach can be reconciled with the
general rule that confrontation does not apply at sentencing. The FDPA
simply requires more than the typical sentencing finding.

100
quired for an eligibility finding. In short, when a jury cannot

practically hand down a death sentence without finding certain

facts, testimony regarding those facts must be tested through

confrontation.50 If the government thinks it necessary to prove

nonstatutory aggravating factors, then it should be required to do

so with the Confrontation Clause in tact.

C. The Sixth Amendment’s Text

Because Williams is inapplicable and no Supreme Court opinion

is directly controlling, I turn to the Constitution’s text. The

Confrontation Clause applies in “all criminal prosecutions.” U.S.

CONST. amend. VI. “If ‘plain meaning’ is the criterion, this is an

easy case. Surely no one would contend that sentencing is not a

part, and a vital one, of a ‘criminal prosecution.’” Wise, 976

F.2d at 407 (Arnold, C.J., concurring in part and dissenting in

part); cf. Robertson v. United States, 417 F.3d 440, 447 (5th Cir.

1969) (en banc) (holding that the Confrontation Clause did not

50
I use the word “practically” because it is admittedly conceivable
here—albeit highly improbable given the seven mitigating factors the
jury unanimously found—that the jury would have imposed the death
penalty without finding any aggravating factors beyond those
establishing death eligibility. That chance cannot demean the practical
significance of the additional aggravating factors that were raised
against Fields without the protections of the Confrontation Clause. To
place significant reliance on that possibility would be to exalt form
over effect, as repeatedly warned against in the Court’s recent
sentencing cases. If the prosecution believes the aggravating factors
establishing death eligibility are alone sufficient to outweigh the
mitigating factors, it is at liberty to proceed without proving the
“unnecessary” additional aggravating factors and avoid the issues
addressed here.

101
apply to proceedings before a draft board because such proceedings

“are not stages in a criminal prosecution”).

This reading of the Sixth Amendment’s text accords with the

Supreme Court’s Right to Counsel jurisprudence. The Supreme Court

has held that sentencing is a critical stage of a criminal pro-

ceeding during which the Sixth Amendment’s right to counsel ap-

plies. See Mempa v. Rhay, 389 U.S. 128 (1967). The Sixth Amend-

ment extends the rights both to counsel and to confrontation in

“all criminal prosecutions,” suggesting that where one right

applies, the other does too.51 See United States v. Petty, 982 F.2d

1365, 1370–71 (9th Cir. 1993) (Noonan, J., dissenting); cf. JOHN H.

LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 291 (2003) (hereinafter

“LANGBEIN, ORIGINS”) (“Cross-examining prosecution witnesses was the

primary task for which the judges admitted defense counsel to the

felony trial.”) The Sixth Amendment’s text, read in light of Mempa

v. Rhay, suggests that the Confrontation Clause should apply.

Finding the Confrontation Clause inapplicable at sentencing forces

the same phrase, “criminal prosecutions,” to mean two different

things depending on which clause it modifies. We should at least

51
In full, the Sixth Amendment provides, “In all criminal prose-
cutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the state and district wherein the crime shall
have been committed, which district shall have been previously ascer-
tained by law, and to be informed of the nature and cause of the accu-
sation; to be confronted with the witnesses against him; to have compul-
sory process for obtaining witnesses in his favor, and to have the as-
sistance of counsel for his defense.”

102
be wary of giving the text such a counterintuitive reading.

That jury sentencing is not required in capital cases does not

undercut this reading. See Spaziano v. Florida, 468 U.S. 447

(1984). The Jury Clause has a unique second limitation that does

not apply to the Right to Counsel or the Confrontation Clause: only

a jury “trial” is required. See U.S. CONST. amend. VI. A jury is

only required at trial, whereas both the Right to Counsel and the

Confrontation Clause “apply more broadly to the whole ‘criminal

prosecution,’ and thus to sentencing.” John G. Douglass, Confront-

ing Death: Sixth Amendment Rights at Capital Sentencing, 105 COLUM.

L. REV. 1967, 2009 (2005) (hereinafter “Confronting Death”); see An

Argument for Confrontation, supra note 44, at n.70.

Standing alone, the majority points out that this textual

argument may prove too much, for it would apply equally at

noncapital sentencing. “It is well established in this circuit

that a criminal defendant’s Sixth Amendment right of confrontation

is sharply circumscribed in non-capital sentencing proceedings.”52

Hall, 152 F.3d 405. It is not the textual reading alone, however,

which supports holding that the Confrontation Clause must apply to

capital sentencing under the FDPA. As already mentioned, Crawford

and Apprendi might lead to treating capital and noncapital cases

52
Notably, we did not rely on Williams in holding that a
defendant’s rights under the Confrontation Clause are “severely
restricted” in noncapital, Guideline sentencing proceedings. See United
States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990).

103
differently, notes 49–50, supra, but four other considerations con-

firm that capital sentencing is unique when it comes to the Con-

frontation Clause: constitutional history, the trial-like nature of

FDPA sentencing, the Supreme Court’s death-is-different jurispru-

dence, and precedent specifically invoking a right of confrontation

in post-Furman capital sentencing cases.

D. History of Confrontation at Capital Sentencing

Setting aside for the moment the modern Supreme Court’s

insistence that death is different, history distinguishes capital

sentencing from ordinary sentencing when it comes to confrontation

rights. See Confronting Death, supra, at 1974. At the time the

Confrontation Clause was written, a capital trial was a single,

unified proceeding at which both guilt and sentence were decided.

The Framers knew nothing of capital sentencing proceedings separate

from trial. See Wise, 976 F.2d 393, 407 (Arnold, C.J., concurring

in part and dissenting in part). As Blackstone wrote, once a

defendant was convicted of a capital crime, “the court must pro-

nounce that judgment which the law has annexed to the crime

. . . .” 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *376. For

capital felonies, the common law made death the exclusive and

mandatory sentence. See Woodson v. North Carolina, 428 U.S. 280,

289 (1976).

Nonetheless, a form of capital sentencing existed at the

Founding. Proceedings that purported to be trials often functioned

104
as de facto sentencing hearings:

The jury’s power to mitigate sanctions profoundly af-
fected the purpose of the criminal trial for those many
offenses in which the jury might return a partial ver-
dict. Only a small fraction of eighteenth-century
criminal trials were genuinely contested inquiries into
guilt or innocence. In many cases, perhaps most, the
accused had been caught in the act or with the stolen
goods or otherwise had no credible defense. To the
extent that trial had a function in such cases beyond
formalizing the inevitable conclusion of guilt, it was to
decide the sanction.

LANGBEIN, ORIGINS, supra, at 59. To avoid meting out death for theft,

juries would “bring in larceny to be under the value of a twelve-

pence, when it [was] really of much greater value.” 4 W. BLACKSTONE,

supra, *239. Additionally, the “murkiness” of the common law’s

distinction between manslaughter and murder empowered the trial

jury with de facto sentencing discretion in homicide cases. See

Welsh S. White, Fact-Finding and the Death Penalty: the Scope of a

Capital Defendant’s Right to Jury Trial, 65 NOTRE DAME L. REV. 1, 7—11

(1989); Thomas A. Green, The Jury and the English Law of Homicide,

1200-1600, 74 MICH. L. REV. 413, 424–25 (1976). The Supreme Court

has recognized the Colonial jury’s practice of preventing death

sentences by rendering factually dubious verdicts. See Woodson,

428 U.S. at 289–91.

The critical point is this: because these de facto capital

sentencing proceedings took the form of full criminal trials, the

defendant possessed full trial rights of confrontation. However,

105
the notion that capital sentencing might be conducted “outside of

an adversarial trial” is strictly a “post-constitutional” phenome-

non. Confronting Death, supra, at 2016.

The majority reads this history selectively, treating the

“sentencing authority’s [newfound] ability to select a lesser

punishment in a capital case in spite of death-eligibility” as just

an added layer of protection for the defendant. The majority

paints the selection phase of capital sentencing as little more

than a mercy hearing, where a defendant condemned to the gallows

should be grateful just to have a chance to plead his case, no

matter how limited the forum.

This picture does not accurately depict the FDPA’s sentencing

procedures. The selection phase requires very specific factual and

evaluative findings before the death penalty can be imposed. See

note 49, supra. Defendants maintained confrontation rights when

the critically important question of “life or death”53 was posed to

juries historically, and today we take that right away from them.

Another important point is that noncapital sentencing has a

different history. Early English and American cases suggest that

judges conducted noncapital sentencing in informal proceedings

featuring testimonial hearsay. Id. at 2016 & nn.282–83. In Rex v.

Sharpness, for example, the court allowed the prosecutor to read an

53
“Life or death?” has a distinctly different tone and importance
than, “death eligible, or not death eligible?”

106
aggravating affidavit before sentencing the defendant to one month

of imprisonment on the crime of “suffering a prisoner to escape.”

99 ENG. REP. 1066, 1066 (K.B. 1786). Similarly, State v. Smith held

that the defendant could present a sentencing court with mitigating

affidavits to show that he deserved a reduced sentence for assault

and battery. 2 S.C.L. (2 Bay) 62,62 (1796).

History supports constraining confrontation rights in

noncapital sentencing, but capital sentencing has a different his-

tory that suggests the Confrontation Clause should apply.

E. “Trial-like” Proceedings and Sixth Amendment Structure

The Confrontation Clause should apply fully because FDPA

sentencing, unlike noncapital sentencing, involves a trial-like

adversarial proceeding. The Supreme Court applies certain “trial

rights” to adversarial sentencing hearings that bear the “hallmarks

of the trial on guilt or innocence.” Bullington v. Missouri, 451

U.S. 430, 438–39 & n.10 (1981) (relying on trial-like format of

Missouri’s capital sentencing hearing—which provided for opening

statements, formal testimony, jury instructions, proof beyond a

reasonable doubt of aggravating factors, final arguments, and a

formal jury verdict—in holding that the Double Jeopardy Clause

applied to the proceeding); see Morgan v. Illinois, 504 U.S. 719

(1992).

Strickland v. Washington, for example, refused to distinguish

Florida’s capital sentencing from trial where effective assistance

107
of counsel was concerned. The Court reasoned that Florida’s death

penalty statute created a sentencing proceeding “like a trial in

its adversarial format and in the existence of standards for

decision.” Strickland, 466 U.S. 668, 686–87 (1984). Thus, the

Court held that the Right to Counsel must apply fully to “ensure

that the adversarial testing process works to produce a just result

under the standards governing decision.” Id. at 687.

This jurisprudence reflects structural reasoning and suggests

that adversarial rights are “interdependent.”54 See Confronting

Death, supra, at 1975. The adversarial system is indeed a system,

and its elements may not function effectively alone.

The FDPA, like many death penalty statutes, supplies adver-

sarial sentencing hearings that resemble trials. See Thompson v.

Oklahoma, 487 U.S. 815, 856 (O’Connor, J., concurring in the jud-

gment) (“As a practical matter we have virtually required that the

death penalty be imposed only when a guilty verdict has been

followed by separate trial-like sentencing proceedings, and we have

extended many of the procedural restrictions applicable during

criminal trials into these proceedings.”) The FDPA provides for

54
This does not imply that Confrontation Clause error is
“structural error” in the technical sense of that phrase. “Confrontation
Clause errors, like other trial errors, are subject to harmless-error
analysis.” Hall, 152 F.3d at 406.

108
jury sentencing.55 18 U.S.C. § 3593(b). In addition, hearings

under the FDPA bear other hallmarks of a criminal trial. Both

sides are represented by counsel and present evidence; the Court

instructs the jury; the Government, and then defense counsel, pre-

sents closing argument; the Government must prove aggravating fac-

tors beyond a reasonable doubt; the jury returns a formal verdict,

and its verdict must be unanimous. See id.

Requiring confrontation in the FDPA’s trial-like sentencing

regime is particularly appropriate given the interdependence of

adversarial rights. See Edmund M. Morgan, The Jury and the Exclu-

sionary Rules of Evidence, 4 U. CHI. L. REV. 247, 255 (1936) (arguing

55
See Robinson v. Polk, 438 F.3d 350, 359 (4th Cir.) (holding that
the Confrontation Clause “appl[ies] equally to sentencing proceedings
tried to a jury”), cert. denied, 127 S. Ct. 514 (2006); Chaffin v. Styn-
chombe, 412 U.S. 17, 28 n.15 (1973) (explaining that “the institution
of jury sentencing is unlike judicial sentencing in a number of funda-
mental ways”); Mark Silverstein, Confrontation at Capital Sentencing
Hearings: Illinois Violates the Federal Constitution by Permitting
Juries to Sentence Defendants to Death on the Basis of Ordinarily
Inadmissible Hearsay, 22 LOY. U. CHI. L. J. 65, 74, 122 (1990)
(hereinafter “Confrontation at Capital Sentencing Hearings”) (arguing
that Williams “discussed only judicial sentencing” and that the Supreme
Court “has never indicated that it would extend Williams . . . to a
sentencing jury”); cf. United States v. Cardenas, 9 F.3d 1139, 1154–56
(5th Cir. 1993) (en banc) (recognizing that the Confrontation Clause may
provide greater rights in cases tried before juries than in bench
trials).

A distinction between judge and jury when it comes to confrontation
in capital sentencing may be justified by “the law’s traditional view
that a jury cannot be trusted to make a final determination affecting
substantial rights on the basis of the uncross-examined statements of
out-of-court declarants.” Confrontation at Capital Sentencing Hearings,
supra, at 124–25. This skepticism did not extend to judges, who could
discount the probative value of hearsay evidence and traditionally
admitted it only “for what it’s worth.” See Kenneth Culp Davis, Hearsay
in Nonjury Cases, 83 HARV. L. REV. 1362, 1264–65 (1970).

109
that the right to “cross-examine is an essential element” of any

adversarial system). If capital sentencing purports to provide a

full-fledged adversarial proceeding, then a true adversarial pro-

ceeding it must give. See Christopher K. Tahbaz, Note, Fairness to

the End: The Right to Confront Adverse Witnesses in Capital Sen-

tencing Proceedings, 89 COLUM. L. REV. 1345, 1368 (1989) (“Because

the right of confrontation is fundamental to the adversarial

process, it should be extended to capital sentencing procedures”);

cf. Morgan, 504 U.S. at 727 (holding that “if a jury is to be pro-

vided the defendant [at capital sentencing], regardless of whether

the Sixth Amendment requires it, the jury must stand impartial and

indifferent to the extent commanded by the Sixth Amendment”).

In particular, a meaningful Right to Counsel at capital sen-

tencing depends on confrontation rights. The Confrontation Clause

should apply to protect the Right to Counsel in death penalty pro-

ceedings. See Herring v. New York, 422 U.S. 853, 857 (1975)

(“[T]he right to assistance of counsel has been understood to mean

that there can be no restrictions upon the function of counsel in

defending a criminal prosecution in accord with the traditions of

the adversary factfinding process that has been constitutionalized

in the Sixth and Fourteenth Amendments.”).

Professor Douglass explains:

Sixth Amendment rights support each other. Without coun-
sel, the right of cross-examination may be an exercise in
futility. Without the right to cross-examine the state’s

110
 witnesses or to present favorable evidence, the right to
counsel may be an empty formalism.

Confronting Death, supra, at 2010. Douglass wonders what use the

Right to Counsel would be at capital sentencing if Government

witnesses were permitted “to answer the prosecutor’s questions and

then walk away before the defense counsel had an opportunity to

probe.” Id. at 1982; see also Petty, 982 F.2d at 1371 (Noonan, J.,

dissenting) (“What is the point of having counsel if counsel cannot

exercise an essential function of counsel—the cross-examination of

the witnesses against counsel’s client?”).56

The Confrontation Clause should apply at capital sentencing

to ensure (1) that the “trial-like” “adversarial testing process”

provided under the FDPA “works to produce a just result” and

(2) that the Right to Counsel, in particular, functions effectively

in capital cases. See Strickland, 466 U.S. at 687.

F. Death is Different

The Eleventh Circuit applied the Confrontation Clause on the

ground that the death penalty demands special procedures to assure

reliability. See Proffitt, 685 F.2d at 1253–54. There is ex-

tensive and persuasive support for this position.

56
While courts routinely avoid this obvious unfairness by allowing
cross-examination of witnesses that do appear, the unfairness of using
testimonial hearsay to establish deathworthiness, while perhaps less
apparent, is no less real. With life or death on the line, the Govern-
ment can now avoid defense cross-examination with the expedient of using
out-of-court testimony.

111
 The stringent, “trial-like” procedures that govern capital

sentencing derive from the Supreme Court’s unique concern with

reliability in death penalty cases. “In capital proceedings

generally, th[e] Court has demanded that factfinding procedures

aspire to a heightened standard of reliability. This especial

concern is a natural consequence of the knowledge that execution is

the most irremediable and unfathomable of penalties; that death is

different.” Ford v. Wainwright, 477 U.S. 399, 411 (1986) (internal

citations omitted).

Confrontation is essential to reliability. Courts have re-

peatedly recognized cross-examination as “the greatest legal engine

ever invented for the discovery of truth.” E.g., White v. Illi-

nois, 502 U.S. 346, 356 (1992). “‘Cross-examination is the princi-

pal means by which the believability of a witness and the truth of

this testimony are tested.’” Wilkerson v. Cain, 233 F.3d 886, 890

(5th Cir. 2000) (quoting Davis v. Alaska, 415 U.S. 308, 316

(1974)). The Supreme Court in Crawford maintained that “the

[Confrontation] Clause’s ultimate goal is to ensure reliability of

evidence.” 541 U.S. at 61. The Confrontation Clause should apply

to capital sentencing because those proceedings must aspire to

greater reliability than ordinary sentencing.

The majority resists this logic. Citing Gregg v. Georgia,57

57
428 U.S. 153, 203–04 (1976) (plurality opinion).

112
it contends that allowing testimonial hearsay is necessary because

the capital “sentencing authority must consult a broader range of

considerations in deciding just punishment than a trial jury in

deciding guilt.” Thus, a sentencing jury may properly consider

victim impact evidence, see Payne v. Tennessee, 501 U.S. 808

(1992), and a sentencing judge in a capital case can take into

account “the elements of racial hatred” involved in a murder.

Barclay v. Florida, 463 U.S. 939, 949 (1983). But the majority’s

argument is twice flawed.

First, applying the Confrontation Clause is consistent with

this line of cases because it does not restrict the type of facts

that may be proven at capital sentencing. Rather, it only affects

the way that they may be proven. “Where a hearsay declarant is

available to testify, Crawford merely requires the government to

present that information in a different, albeit less convenient,

form: through the live testimony of the witness with direct

knowledge of the facts.” Confronting Death, supra, at 2027; see

Porter v. State, 578 S.W.2d 742, 748 (Tex. Crim. App. 1979) (“While

the facts contained in the documents in question may have been

relevant to the punishment, the manner in which the State sought to

prove those facts denied appellant his constitutional rights of

confrontation and cross-examination.”).

Second, it is far from clear that applying the Confrontation

Clause would result in “less evidence.” In some cases, excluding

113
testimonial hearsay may result in the loss of relevant information.

When witnesses are available to testify, however, the jury will

have the benefit of additional information developed on cross-

examination. Therefore, applying the Confrontation Clause at cap-

ital sentencing is consistent with Gregg and reflects the Court’s

emphasis on increased reliability.

The majority’s rule does not necessarily allow more informa-

tion to come into capital sentencing, it merely admits one-sided

evidence without any meaningful challenge.

G. Cases Suggesting Confrontation Clause Rights

A number of cases that specifically invoke a right of con-

frontation in capital sentencing bolster this position. Although

none definitively establish a full right of confrontation, these

post-Furman cases provide far better guidance than Williams v. New

York.

In Gardner v. Florida, the Supreme Court reversed a death sen-

tence which was based in part on secret information not disclosed

to the defense. 430 U.S. 349 (1977). The Gardner plurality cast

doubt on the authority of Williams. It emphasized how capital

sentencing had changed in the intervening years and stated that the

“passage of time justifies a re-examination of capital-sentencing

procedures.” Id. at 356–57. Accordingly, Gardner limited

Williams, stressing that the case had addressed a “‘narrow

114
contention . . . relat[ing] to the rules of evidence applicable’”

to sentencing. Id. at 355 (brackets in original).58 Gardner then

distinguished Williams on several grounds, noting as significant

that the trial judge in Williams was not asked to “‘afford ap-

pellant a chance to refute or discredit any of [the statements at

issue] by cross-examination or otherwise.’” Id. at 356 (quoting

Williams, 337 U.S. at 244) (emphasis added). Reasoning that

“debate between adversaries is often essential to the truth-seeking

function,” the Court then held that due process mandated that the

defense be able to “deny or explain” evidence used in capital

sentencing. Id. at 360–62.

Two years later, in Estelle v. Smith, this Court considered

the scope of Gardner. 602 F.2d 694 (5th Cir. 1979), aff’d by Smith

v. Estelle, 451 U.S. 454 (1981). In Smith, the prosecution omitted

from its witness list the name of a psychiatrist whose testimony on

the issue of future dangerousness was crucial to its case at the

penalty phase. This Court held that allowing a surprise witness

58
The majority relies on Gardner’s posture as a due process case—as
it relied on the posture of Williams and Specht—to insinuate that due
process is the appropriate avenue for raising these challenges. But
just because the Court found that Due Process Clause protections were
violated does not foreclose the possibility that other rights were
violated as well. Moreover, since the Court recognized that Williams’s
holding directly foreclosed the application of the rules of evidence at
sentencing, 430 U.S. at 355, it is hardly surprising that the Court
would not apply the Confrontation Clause at a time when it was swallowed
up by evidentiary rules. Had the Confrontation Clause been given force
independent of those rules—as it has today—one might expect that Gardner
could have been a Sixth Amendment case.

115
violated the principles of Gardner in part because it undermined

the defendant’s “right to effective cross-examination.” Id. at 698

n.3. The Smith Court’s notation of a right to effectively cross

examine was not an isolated slip of the pen. Smith refers to the

need for effective cross-examination in capital sentencing four

separate times. Connecting its holding to the Supreme Court’s

death-is-different jurisprudence, Smith opined that testimony not

effectively cross-examined “carries no assurance of reliability

whatever.” Id. at 701. The Eleventh Circuit relied in part on our

Smith decision to hold that the Confrontation Clause applies to

capital sentencing. See Proffitt, 685 F.3d at 1254–55 (“The

reasoning in Smith clearly supports the view that the right to

cross-examine adverse witnesses applies to capital sentencing pro-

ceedings, at least where necessary to ensure the reliability of the

witnesses’ testimony.”).

Contrary to the panel opinion, the ability to cross-examine a

witness who presents hearsay testimony does not satisfy Smith’s

requirements. That is a very thin view of what constitutes a

“right to effective cross-examination.” 602 F.2d at 698 n.3.

Cross-examination would serve very little purpose if a defendant is

allowed to cross-examine, not the accuser, but a person who reads

the accuser’s statement. The state could effectively insulate all

of its adverse testimony by having witnesses write their statements

out and then putting an officer on the stand to read them. While

116
that officer may then be questioned, his answers may logistically

be confined to confirming or denying what a piece of paper says,

leaving the substantive accusation and its source’s credibility and

motive completely untested. That is essentially what the state did

in this case with Detective January.

Finally, the Supreme Court’s reasoning in Barefoot v. Estelle

presupposes the existence of confrontation rights at capital

sentencing. See 463 U.S. 880, 902–03 (1983). Barefoot held that

the Due Process Clause did not require psychiatric future-danger-

ousness testimony to be excluded from capital sentencing.

Acknowledging the problems with such testimony, the Court stated

that the defendant would have “the benefit of cross examination” to

expose its flaws. Id. at 898–99.

Text, history, structure and precedent favor applying the

Confrontation Clause with full force to capital sentencing. While

Williams may still guide application of the rules of evidence at

capital sentencing, the Confrontation Clause has been given new

force, and it is unfortunate that the majority takes that force

away at a time when it is most needed. It is clear to me, and

I would hold that when a jury cannot plausibly hand down a death

sentence without finding certain facts, those facts can only be

found with the Confrontation Clause’s protections.

117
 II. Testimonial Statements Wrongfully Admitted

Having found that the Confrontation Clause has some appli-

cation to capital sentencing, I would turn to the challenged state-

ments to determine whether their admission violated Fields’s

confrontation rights. In Crawford, the Supreme Court held that the

Confrontation Clause bars “admission of testimonial statements of

a witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for cross-

examination.” 541 U.S. 36, 53–54 (2004). Crawford did not draw

finely the line between testimonial and nontestimonial statements.

It did note, however, that “[s]tatements taken by police officers

in the course of interrogations” would qualify “under any defini-

tion” of testimonial. Id. at 52.

Recently, the Court began marking the bounds of this Crawford

subcategory: Statements made in the course of police interrogation

“are testimonial when the circumstances objectively indicate that

there is no . . . ongoing emergency, and that the primary purpose

of the interrogation is to establish or prove past events poten-

tially relevant to later criminal prosecution.” Davis, 126 S. Ct.

at 2273–74.59 This rule suffices to resolve two of Fields’s

Crawford challenges.

59
The Court in Davis made clear that it was not marking the outer
bounds of testimonial statements or even of the subcategory of
statements made in response to police interrogation. See 126 S. Ct. at
2274 n.1.

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A. Hearsay Witnesses to the King Shooting

Fields argues that he was denied confrontation rights when,

over his objection, police officers were permitted to relate out-

of-court statements to establish that Fields committed prior

violent crimes. These challenges are reviewed de novo. See United

States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005).

1. Detective January’s Testimony

At Fields’s sentencing hearing, the Government called Steve

January, a Waco Police Department detective. January testified

about a shooting he investigated in 2000. When the prosecution

asked whether January “talked to witnesses” after responding to the

incident, Fields objected under the Confrontation Clause. After

the district court overruled the objection, January testified based

on “a cumulation of stories from different persons” and the state-

ments of “at least five people” who the responding officers ac-

tually interviewed. According to January, these stories and state-

ments implicated Fields in the shooting of a man named Ladon King.

January testified that some of the witnesses he had interviewed saw

the defendant shoot at King.

Based on January’s investigation at the crime scene, the Gov-

ernment sought to paint “a picture in [the jury’s] mind” about what

Fields was doing during this shoot-out. January testified that his

investigation showed that Fields and an accomplice cornered King in

the courtyard of an apartment complex. He further testified that

119
“Fields had driven a vehicle around and [began] firing a weapon

through the southeast corner.” Fields’s accomplice was firing from

an opposite corner, and King “was kind of caught in a cross-fire.”

According to January, King was hit and sustained serious injuries

that required surgery. Specifically, he had suffered “a punctured

lung.”

January also testified about his interview of King, which took

place in the intensive care unit of a hospital the day after the

shooting. Although King was lucid enough to be interviewed, “he

couldn’t speak words very well without grimacing in pain.”

According to January, he showed King a photo lineup to see if King

could pick out the men who shot him. January said King whispered

that Fields fired the shot that hit him in the upper torso: “[King]

pulled me close . . . and told me that [Fields is] the one that

shot [him].”

2. Application of Davis/Hammon

Under the Supreme Court’s recent decisions in Davis v. Wash-

ington and Hammon v. Indiana,60 the statements related by January

at Fields’s sentencing were testimonial hearsay.61 Both the eye-

witness statements and King’s statements from the intensive care

60
The Hammon case was decided jointly with Davis in a single
opinion. Discussions of either case are referenced with a citation to
Davis, the lead-captioned case.
61
The Government does not argue that the statements were
nontestimonial.

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unit bear substantial similarity to the testimonial statements in

the Hammon case. For instance, all of the statements related by

January were given in response to police questioning. See Davis,

126 S. Ct. at 2278. As in Hammon, all deliberately narrated past

criminal events. See id. The declarants here, like in Hammon,

were interviewed away from the defendant, Fields.

Additionally, the statements at issue are substantially dif-

ferent from those the Supreme Court found nontestimonial in Davis.

In Davis, the Court found nontestimonial statements given to a 911

operator for the purpose of resolving a present emergency. See id.

at 2276. January’s testimony indicated that he was not addressing

an “emergency in progress” but instead was conducting a criminal

investigation. See id. As to the crime scene investigation,

January testified that he responded after the victim of the

shooting “had left that location by private vehicle.” January

never testified that he or any other responding officer heard

gunfire. Compare id. at 2278 (“[T]he interrogating officer [in

Hammon] testified that he heard no arguments or crashing and saw no

one throw or break anything.”) Moreover, in conjunction with

interviewing witnesses, January and the other responding officers

looked for physical evidence, ultimately collecting “a number of

shell casings” and a bullet.

As to King’s identification of Fields, that was given to

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January from a hospital room a day after the incident. See id. at

2276 (noting that the statements found testimonial in Crawford

“took place hours after the events [the declarant] described”).

These circumstances show January was conducting a criminal

investigation, as he himself testified repeatedly. He “was not

seeking to determine ‘what is happening,’ but rather ‘what

happened.’” Id. at 2278.

Furthermore, under Davis/Hammon, it is not critical that the

interrogations occurred in an arguably informal setting. The

majority in Davis/Hammon pointedly rejected the dissent’s approach,

which would have limited testimonial statements to those given

under circumstances “sufficiently formal to resemble the Marian

examinations.”62 Id. at 2284 (Thomas, J., dissenting). Instead,

the majority held, “It imports sufficient formality . . . that lies

to [police] officers are criminal offenses.” Id. at 2278 n.5.

The objective circumstances indicate that the primary purpose

of the police questioning at issue was to “nail down the truth

about past criminal events.” Id. at 2278. Thus, the statements

given in response were testimonial. The Government did not es-

62
“Pretrial examinations became routine under two statutes passed
during the reign of Queen Mary in the 16th century. These Marian bail
and committal statutes required justices of the peace to examine
suspects and witnesses in felony cases and to certify the results to the
court. . . . Whatever the original purpose . . ., they came to be used
as evidence in some cases . . . .” Crawford, 541 U.S. at 43 (internal
citations omitted).

122
tablish that the declarants were unavailable, and Fields had no

opportunity to cross-examine them. Therefore, the introduction of

the testimonial statements violated the Confrontation Clause. See

Crawford, 541 U.S. at 53–54.

3. The Crawford Violation Was Not Harmless

The Government contends that any Crawford error is harmless.

“Confrontation Clause errors . . . are subject to harmless-error

analysis.” See Hall, 152 F.3d at 406. Since constitutional error

is at issue, “[t]he burden of proof is on the Government to show

that the error was harmless by proving beyond a reasonable doubt

that the error did not contribute to the sentence received.”

United States v. Garza, 448 F.3d 294, 301 (5th Cir. 2006). In this

case, the Government cannot meet that “arduous burden.” United

States v. Pineiro, 410 F.3d 282, 284–87 (5th Cir. 2005).

January’s testimony was significant evidence. It was the only

evidence showing that Fields participated in the King shooting.

The Government discussed the incident at closing as part of its

contention that Fields previously had “participated in attempted

murders and other serious acts of violence,” which it had alleged

as a nonstatutory aggravating factor: “You also heard that [Fields]

was released in July of 2000 . . . and after that in approximately

September he and [an accomplice] shot at Ladon King.” After

listing several other incidents (some of which also were proven

123
with unconfronted testimony63), the Government stated: “Those are

the other attempted murders and other serious acts of violence,

some of them, you heard the evidence on many, but those are the

ones I want you to think about.”

In addition, the Government used the King shooting in its

rebuttal closing argument to counteract the defense’s case for

impaired capacity. It argued that Fields had control over himself

despite his tragic background: “He made choices along his whole

life.” As an example, the Government pointed to the King shooting,

stating that Fields “chose . . . to go to an apartment complex with

kids and people and have a shoot-out with another drug dealer.”

More broadly, the Government’s case that Fields had a track record

of serious violence was central to its case at sentencing.

Fields’s participation in the attack January described provided

substantial support for that theme.

The record indicates that the jury considered its sentencing

decision to be a difficult one. After deliberating for six hours,

the jurors sent the district court a note inquiring what sentence

would be imposed if they could not agree. Later, the jury sent

another note stating flatly, “We cannot come to a unanimous

agreement.” Only after the court instructed the jury to continue

deliberating did it return a death verdict.

63
See, e.g., Sub-parts B. & C., infra.

124
 Courts often have been unwilling to find error harmless where

the record, as in this case, affirmatively shows that the jurors

struggled with their verdict. “The fact that a jury initially was

deadlocked and reached a verdict only after receiving an Allen

charge may support an inference that the case was close.” United

States v. Jean-Baptiste, 166 F.3d 102, 109 (2d Cir. 2002); see also

Powell v. Collins, 332 F.3d 376 (6th Cir. 2003) (finding prejudice

in part because, “at one point in its sentencing deliberations, the

jury informed the court that it was ‘at a stalemate’ and could not

agree whether to impose a death sentence”); United States v.

Varoudakis, 233 F.3d 113, 127 (1st Cir. 2000) (jurors’ note stating

that they were “at an impasse” in their deliberations “reveal[ed]

uncertainty about [the defendant’s] guilt” and “weigh[ed] against

a finding of harmless error”); Medina v. Barnes, 71 F.3d 363, 369

(10th Cir. 1995) (holding that the jurors’ statement “at one point

during their deliberations . . . that they might be unable to reach

a unanimous verdict” was a circumstance suggesting error was

prejudicial). Reluctance to find harmless error despite a jury

note indicating an impasse is especially appropriate here, on

direct review, where the Government’s burden of proof is at its

apex.

There are other indications that the sentencing issue was

close. The jurors unanimously found a number of substantial miti-

gating factors, including that Fields (1) suffered physical abuse

125
during his formative years, (2) suffered emotional abuse during his

formative years, (3) suffered from parental neglect during his

formative years, (4) was exposed to the violent deaths of family

members, loved ones, and friends during his formative years,

(5) lived most of his life without having a significant father

figure, (6) is the product of an impoverished background which

impaired or hampered his integration into the social and economic

mainstream of society, and (7) spent significant periods of his

life in solitary confinement.

Some jurors found other significant mitigating factors.

Eleven jurors found, for example, that Fields’s behavioral problems

may decrease over time and that a death sentence would cause

emotional injury, harm, and loss to Fields’s family. Two jurors

found that Fields committed his crime “under unusual and substan-

tial duress.” One found that Fields had recently responded well to

a structured environment and likely would adapt to prison life if

he were sentenced to life imprisonment.

The Government maintains nonetheless that any error was harm-

less beyond a reasonable doubt. It points to nontestimonial

sentencing evidence showing that Fields was involved in numerous

other violent and criminal incidents beyond the King shooting.

While some of those extra incidents are significant, they do not

eliminate reasonable doubts that the erroneously admitted testimony

repeatedly stressed by the government regarding the King shooting

126
tipped the scales for at least one of the jurors, thereby enabling

a death sentence.

The Government’s proof of Fields’s involvement in the King

shooting—which occurred much closer in time to Fields’s trial than

his previous attempted murder—may have added significant weight to

the death side of the scale. The Government has not shown beyond

a reasonable doubt that the verdict would have been the same absent

this added weight. Given that the Government emphasized the King

shooting at closing, that the jury struggled to reach a verdict,

and that it found significant mitigating factors, the testimonial

hearsay related by January was not harmless. I would vacate

Fields’s death sentence.

B. Additional Crawford Claims

Apart from the testimonial hearsay related to the King shoot-

ing, the government repeatedly relied on testimony to make its case

for a death sentence. As just one example, a Killeen police of-

ficer, Daniel Tichenor, was allowed to testify based on witness

reports that Fields was involved in an armed robbery, despite

Fields’s objection that he should be allowed to confront the

witnesses themselves. Tichenor testified that two alleged victims

of an armed robbery contacted the police department in December

2000. According to Tichenor, “They indicated to the patrol

officers that responded that they were robbed at gunpoint by two

subjects,” one of whom “they identified as . . . Sherman Fields.”

127
 Tichenor testified to the details of the alleged crime based

on what the victims said: “They indicated that they were in a car

driving along with . . . Fields” and an accomplice. “While driving

down the street, [Fields’s accomplice] pulled out a gun, demanded

money from both and the jewelry that both the two victims had with

them. [He] fired a shot inside the car. Both subjects ended up

giving their jewelry and money to Mr. Fields and [his accomplice]

. . . .” Tichenor also testified that Fields’s accomplice told

Tichenor that he and Fields had driven from Waco to Killeen that

day to buy $4500 in crack cocaine. Tichenor further stated that

Fields’s accomplice admitted to firing a shot in the car in order

to scare them.

The statements related by Tichenor are testimonial for the

same reasons that the statements related by January are testimo-

nial. The investigating police officers responded to do an after-

the-fact criminal investigation. They were not addressing an

ongoing emergency. The declarants described past criminal conduct

to persons they knew were police officers. Finally, the record

implies that the statements at issue were given in direct response

to questioning.

This testimony, like Officer January’s, very well could have

been the difference between life and death for Fields. Beyond

Officer January’s and Tichenor’s testimony, the list goes on and

128
on.64

III. Conclusion

Sherman Lamont Fields was sentenced to death based on tes-

timony that he was never able to confront. That is precisely the

evil that the Confrontation Clause was meant to protect against.

That troubling fact cannot be remedied by categorizing the tes-

timony as speaking to selection as opposed to eligibility factors.

The jury’s difficulty in agreeing on a sentence and the number of

mitigating factors found highlight how artificial that distinction

can be.

I would find that the Confrontation Clause applies to capital

sentencing as it is structured under the FDPA and remand this case

for resentencing.

64
Fields also argues that his confrontation rights were violated
by the Government’s introduction of Fields’s (1) McLennan County Jail
records, (2) Federal Medical Center records, (3) juvenile delinquency
file, and (4) Texas Department of Criminal Justice records. These
documents contained unfavorable statements from probation officers,
corrections officers, psychologists, and other declarants who did not
testify at Fields’s trial. In all, the exhibits contain hundreds of
pages, which Fields argues are “replete with hearsay statements.”

There is no need to evaluate Fields’s claims, because the uncon-
fronted testimony he has already shown would be enough to warrant resen-
tencing. But certainly these additional claims—which the district court
never evaluated because it found the Confrontation Clause did not apply—
are cause for additional concern.

129