IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 17, 2008
No. 06-41680
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID LEE JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before SMITH, WIENER, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
David Jackson was sentenced to death for murder. He appeals, arguing
that (1) the district court refused to conduct a hearing to determine whether his
due process rights were violated by prosecutorial delay; (2) the Federal Death
Penalty Act (“FDPA”) is unconstitutional; (3) the district court improperly dis-
missed two jurors during voir dire; (4) the court allowed improper testimony;
(5) the court incorrectly excluded certain pieces of evidence; (6) the court uncon-
stitutionally restricted counsel’s ability to object; (7) the court erred by not al-
No. 06-41680
lowing Jackson to impeach a government witness with evidence of a prior con-
viction for sexual assault; (8) the court incorrectly allowed the government to
impeach one of Jackson’s witnesses with a non-final conviction; (9) Jackson
should have been allowed to allocute; (10) the jury should have been instructed
at sentencing that it could consider “residual doubts” about Jackson’s guilt;
(11) the verdict is inconsistent; and (12) the district court incorrectly denied a
motion for new trial. Finding no reversible error, we affirm.
I.
Jackson, a federal prisoner, began arguing with another inmate, Daryl
Brown, while a third inmate, Arzell Gulley, watched. A fight broke out, the de-
tails of which are disputed: Jackson claims that Brown pulled out a shank,1 but
the government contends that Brown was unarmed and only attempted to begin
a fistfight. In any case, the confrontation culminated with all three running
from the yard where the argument started and through one of the prison units
into a cell, where Jackson or Gulley allegedly held Brown as the other attacked
him with a shank. After approximately thirty seconds, Jackson and Gulley left
the cell walking in opposite directions. Brown, bleeding profusely, collapsed and
was soon pronounced dead.
Jackson was apprehended with Brown’s blood on his clothes and an injury
to his palm consistent with recent use of a shank. While held by security, he
tried to flush gambling paraphernalia down the toilet. When guards tried to
place another inmate in the special housing unit with him, he allegedly told offi-
cials that he would kill the inmate if the inmate were not removed, saying “if you
1
A shank is a homemade knife.
2
No. 06-41680
don’t believe me, look at the [security] tapes, I’ll kill again.”
A grand jury indicted Jackson and Gulley for murder and possession of a
dangerous weapon in prison. The district court granted a motion to sever their
trials, and Jackson was separately reindicted, convicted on both counts, and sen-
tenced to death.
At sentencing, the government presented evidence of Jackson’s other con-
victions, including multiple counts of armed robbery and various firearms charg-
es, and testimony about his poor disciplinary record in prison. An expert witness
for the government who had conducted psychiatric evaluations of Jackson testi-
fied that there was a high probability that he would commit violent crimes in the
future.
Jackson presented evidence of a poor home life growing up, low intelli-
gence, post-traumatic stress disorder, and institutionalization. He also noted
that the government had not sought the death penalty against Gulley, and he
submitted an apology he had written for his most recent armed robbery. Jack-
son also apologized to Brown’s family, though he blamed Brown for starting the
fight. Jackson explained, “I just wanted to stab [Brown]. I didn’t want to kill
him.”
II.
The district court’s factual findings are reviewed for clear error; its legal
conclusions, de novo. United States v. Avants, 367 F.3d 433, 441 (5th Cir. 2004).
We review for abuse of discretion the decision to exclude jurors, United States
v. Fields, 483 F.3d 313, 357 (5th Cir. 2007), cert. denied, 128 S. Ct. 1065 (2008);
evidentiary decisions, United States v. Marrero, 904 F.2d 251, 260 (5th Cir.
3
No. 06-41680
1990); rulings regarding trial orderliness, United States v. Redd, 355 F.3d 866,
876-77 (5th Cir. 2003); refusals to give requested jury instructions, United States
v. Arnold, 416 F.3d 349, 356 (5th Cir. 2005); and denials of new trials, United
States v. Rivera, 295 F.3d 461, 470 (5th Cir. 2002).
A.
Jackson raises Fifth and Sixth Amendment challenges to the lengthy de-
lays in his prosecution. The murder occurred in December 1999, but the govern-
ment did not charge Jackson until November 2003, and then only for possession
of a prohibited object, the shank used to stab Brown. That charge was dismissed
without prejudice in February 2004. In April 2005, the government charged
Jackson again, this time for capital murder and possession of a dangerous wea-
pon. He finally received a trial in October 2006 and was convicted a month later.
Jackson argues that the delays violated his Fifth Amendment right to due
process. In the alternative, he claims that the case should be remanded for a
hearing with discovery on the government’s motives for the delays.
A panel of this circuit recently addressed both arguments in Gulley’s ap-
peal, United States v. Gulley, 526 F.3d 809, 819-20 (5th Cir. 2008), cert. denied,
77 U.S.L.W. 3201 (U.S. Oct. 6, 2008). The Gulley panel noted that under Fifth
Circuit law, the defendant bears the burden of proving that the pre-indictment
delay caused “substantial, actual prejudice” and was “intentionally undertaken
by the government for the purpose of gaining some tactical advantage over the
accused . . . .” Id. at 820 (quoting United States v. Crouch, 84 F.3d 1497, 1514
(5th Cir. 1996) (en banc)). To demonstrate prejudice, “the defendant must offer
more than mere speculation of lost witnesses, faded memories or misplaced
4
No. 06-41680
documents; he must show an actual loss of evidence that would have aided the
defense and that cannot be obtained from other sources.” Id. (citation omitted).
The panel noted that district courts should usually “carry a motion to dis-
miss for pre-indictment delay with the case, and make the determination of
whether actual, substantial prejudice resulted from the improper delay in light
of what actually transpired at trial.” Id. (quoting Crouch, 84 F.3d at 1516). Be-
cause the defendant must prove both bad faith and prejudice, a court need not
hold a hearing on the government’s motives for the delay where the court has
determined that no prejudice resulted from it. Id.
The primary question, then, is whether the district court clearly erred in
ruling that Jackson “is unable to show that the delay has caused an actual, sub-
stantial prejudice to his defense at this point in time.” To demonstrate preju-
dice, Jackson argues that (1) there is a “potential witness who remains unfound”
that could have impeached a government witness; (2) there are missing video
tapes that might have exculpatory information; (3) there was a “summit” among
groups in prison that could have produced more witnesses for the defense; and
(4) his mother died, thereby depriving him of her testimony at sentencing.
The first three proffered examples of prejudice are nothing “more than
mere speculation of lost witnesses, faded memories or misplaced documents” and
do not demonstrate “an actual loss of evidence that would have aided the defense
and that cannot be obtained from other sources. ” Id. On appeal, Jackson pro-
vides no information about the “potential witness,” whom that witness could
have impeached, or how.2 Jackson also has yet to produce evidence that the vid
2
Jackson gives no citations to this information in the trial record. See FED. R. APP. P.
28(a)(9)(A) (noting need to include “contentions and the reason for them, with citations to the
(continued...)
5
No. 06-41680
eo tapes ever existed or that the “summit” actually occurred, nor has he ade-
quately explained why these pieces of evidence were important beyond non-
specific explanations that they “could easily have yielded more witnesses, more
connections, [and] more depth to the understanding of this incident.” “[B]ecause
actual, substantial prejudice to the defense at trial is required, a showing of
mere potential or possible trial prejudice does not suffice.” Crouch, 84 F.3d at
1523 (emphasis omitted).
The final proffered prejudice is more plausible. The fact that Jackson’s
mother died and thus could not testify is not as speculative as his other exam-
plesSSwe at least know who she is and that she existed. He has not explained,
however, what testimony she could have offered. Instead, in the motion to the
district court and his brief on appeal, he indicates only that his mother was “the
one witness whose testimony may have caused the jury to spare [his] life.” He
does not give any hint as to what her testimony would have been, let alone dem-
onstrate that other, available witnesses could not have provided the same infor-
mation.3
The district court therefore did not clearly err when it concluded that Jack-
2
(...continued)
authorities and parts of the record on which the appellant relies”).
3
Jackson’s mother presumably would have testified regarding Jackson’s background
and upbringing, but Jackson presented other witnesses on that same topic, including a child-
hood friend who had personally witnessed much of the abuse Jackson suffered. And although
Jackson suggests that his mother could have effectively pleaded for her son’s life, the district
court properly ruled that general pleas for mercy would not be permitted. See Kelly v. Ly-
naugh, 862 F.2d 1126, 1133 n.12 (5th Cir. 1988) (noting that stepfather’s request that jury
spare defendant’s life is not mitigating evidence required to be admitted under Eighth Amend-
ment); see also Jackson v. Dretke, 450 F.3d 614, 617-18 (5th Cir. 2006) (holding that state
court’s decision to exclude execution impact testimony by defendant’s family and friends did
not contradict Supreme Court governing law and was not unreasonable application of Supreme
Court precedent).
6
No. 06-41680
son was not prejudiced by the prosecution’s delay. There was no need for an evi-
dentiary hearing.
Jackson also argues that the delays violated his Sixth Amendment right
to a speedy trial, because he did not receive a trial until nearly three years after
his 2003 indictment. He concedes, however, that any delay caused by his own
requests for continuances should be discounted. According to Jackson, then, the
relevant delay for Sixth Amendment purposes runs from November 2003, the
date of his initial charge, to July 2005, the date of his first request for a continu-
ance.
The Sixth Amendment protects the right of “the accused . . . to a speedy
and public trial.” U.S. CONST. amend. VI. This protection attaches when “the
defendant has been formally indicted or actually restrained accompanying ar-
rest.” Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991). Additionally, the
period between a withdrawn indictment and a reindictment does not count for
Sixth Amendment purposes. Instead, “when no indictment is outstanding, only
the actual restraints imposed by arrest and holding to answer a criminal charge
. . . engage the particular protections of the speedy trial provision of the Sixth
Amendment.” United States v. Loud Hawk, 474 U.S. 302, 310-11 (1986) (cita-
tions and internal quotations omitted).
We evaluate speedy trial claims by considering four factorsSSthe length of
delay, the reason for the delay, the defendant’s assertion of the right, and the
prejudice to himSSin a two-step process. At the first step, we examine the length
of the delay, which is “to some extent a triggering mechanism. Until there is
some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.” Barker v. Wingo, 407 U.S. 514,
7
No. 06-41680
530 (1972). “A delay of less than one year will rarely qualify as ‘presumptively
prejudicial’ for purposes of triggering the Barker inquiry.” Cowart v. Hargett, 16
F.3d 642, 646 (5th Cir. 1994) (concluding that where prejudice could not be pre-
sumed, “we need not even consider the other factors in order to deny [defen-
dant]’s speedy trial claim”). If the delay raises a presumption of prejudice, we
move to the second step, at which “the length of the delay, the reason for the de-
lay, and defendant’s diligence in asserting his or her rights is weighed against
the prejudice to the defendant.” United States v. Bergfeld, 280 F.3d 486, 488
(5th Cir. 2002) (citation omitted).
Because Jackson did not suffer a prejudicial delay, his Sixth Amendment
claim fails to pass the threshold inquiry. We note that the government vigorous-
ly disputes that Jackson’s first indictment triggered his speedy trial right. We
need not resolve that disagreement, however, because even assuming the first
indictment is the correct triggering date, Jackson cannot demonstrate presump-
tively prejudicial delay.
The first indictment was withdrawn in February 2004, and from then until
the second indictment, Jackson was not subject to any “actual restraints imposed
by arrest and holding to answer a criminal charge,” Loud Hawk, 474 U.S. at 310,
in connection with Brown’s murder.4 Jackson has therefore suffered, at most,
six months of delay: three months from November 2003 through February 2004
and three months from April 2005 through July 2005. A six-month delay is too
short to raise a presumption of prejudice.5
4
He was held on unrelated matters, including an arrest for bank robbery.
5
See, e.g., United States v. Maizumi, 526 F.2d 848, 851 (5th Cir. 1976) (finding that a
delay of 10½ months was not presumptively prejudicial).
8
No. 06-41680
Further, as already discussed, the district court did not clearly err when
it concluded that Jackson suffered no prejudice during the entirety of the prose-
cutorial delay. The court therefore had no obligation to conduct an inquiry into
other Barker factorsSSincluding the reason for the delaySSand properly rejected
Jackson’s Sixth Amendment claim without holding an evidentiary hearing.
B.
Jackson makes at least two separate arguments that the FDPA is uncon-
stitutional.6 First, he submits that the death penalty is cruel and unusual in vio-
lation of the Eighth Amendment. Second, he contends that the Fifth and Sixth
Amendments require that any non-statutory aggravating factors used to support
the death sentence be alleged in the indictment. Neither claim is supported by
law.
Jackson concedes that “this Court must reject [the Eighth Amendment]
claim based on binding Fifth Circuit precedent . . . .” He is correct.7
The claim based on the Fifth and Sixth Amendments is similarly preclud-
6
Jackson appears to raise a third argument that the due process clause is violated
where aggravating factors are treated differently from elements of a crime. He neither ex-
plains that contention nor cites any law but instead attempts to incorporate arguments made
to the district court “by reference as if fully set out for this Court’s consideration.”
Argument by reference is not permitted; an appellant who requests “the adoption of pre-
viously filed legal and factual arguments . . . abandon[s those] arguments by failing to argue
them in the body of his brief.” Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (citing
FED. R. APP. P. 28(a)(4), now FED. R. APP. P. 28(a)(9), which requires a brief to contain “appel-
lant’s contentions and the reasons for them”). This argumentSSif it even is a separate ar-
gumentSSis waived.
7
See, e.g., United States v. Jones, 132 F.3d 232, 242 (5th Cir. 1998) (“We are bound by
Supreme Court precedent which forecloses any argument that the death penalty violates the
Constitution under all circumstances.”).
9
No. 06-41680
ed.8 “[I]t [is] neither constitutional nor statutory error for the non-statutory ag-
gravating factors to be omitted from the indictment.” United States v. Bourgeois,
423 F.3d 501, 507-08 (5th Cir. 2005).
In response, Jackson argues that Bourgeois is undermined by Cunning-
ham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), which addressed a Cali-
fornia sentencing system whereby most criminal offense statutes prescribed
three tiers of punishment; the sentencing judge was required to impose the mid-
dle term unless he found aggravating or mitigating circumstances by a prepon-
derance of the evidence. The Court invalidated the arrangement because, under
the Sixth Amendment, “[f]actfinding to elevate a sentence . . . falls within the
province of the jury employing a beyond-a-reasonable-doubt standard, not the
bailiwick of a judge determining where the preponderance of the evidence lies.”
549 U.S. at ___, 127 S. Ct. at 870. Jackson claims that “the statutory scheme in-
validated in Cunningham is indistinguishable from the FDPA fact-finding and
weighing procedures” and that “the FDPA is even more structured, and thus
more suspect.”
Jackson’s reliance on Cunningham is misplaced. The Sixth Amendment
deficiencies identified in the California plan are not present in the FDPA. First,
the factfinding in the present case was performed by a jury, not a judge. Second,
the FDPA requires aggravating factors to be proved beyond a reasonable doubt.
18 U.S.C. § 3593(c). Because Cunningham is not on point and does not under-
8
The government disputes whether this issue was raised in the district court. If it was
raised and preserved, we would review the legal question de novo; otherwise, we would review
only for plain error. United States v. Vontsteen, 950 F.2d 1086, 1089-90 (5th Cir. 1992) (en
banc). We need not decide whether the issue was adequately raised, however, because we af-
firm even under de novo review.
10
No. 06-41680
mine Bourgeois, which remains the controlling authority in this circuit, we reaf-
firm the constitutionality of the FDPA.
C.
Jackson argues that the court improperly excluded for cause two venire-
men, Janice Epps and Barbara Lee. According to Jackson, they were erroneous-
ly excluded based on objections to the death penalty that did not affect their abil-
ity to serve as jurors.
Under Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), “a sentence of
death cannot be carried out if the jury that imposed or recommended it was chos-
en by excluding veniremen for cause simply because they voiced general objec-
tions to the death penalty or expressed conscientious or religious scruples
against its infliction.” Nonetheless, potential jurors may be excused where they
have indicated either “(1) that they would automatically vote against the imposi-
tion of capital punishment without regard to any evidence that might be devel-
oped at the trial of the case before them, or (2) that their attitude toward the
death penalty would prevent them from making an impartial decision as to the
defendant’s guilt.” Id. at 522 n.21.
In Wainwright v. Witt, 469 U.S. 412, 424 (1985), the Court clarified that
the “standard is whether the juror’s views would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and
his oath . . . . [T]his standard . . . does not require that a juror’s bias be proved
with unmistakable clarity” (internal quotations omitted). The Court specified,
in Uttecht v. Brown, 127 S. Ct. 2218, 2224 (2007), that a trial court removing a
potential juror “makes a judgment based in part on the demeanor of the juror,
11
No. 06-41680
a judgment owed deference by reviewing courts.” Further, “when there is ambi-
guity in the prospective juror’s statements, ‘the trial court, aided as it undoubt-
edly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to resolve
[the question] in favor of the State.’” Id. at 2223 (quoting Witt, 469 U.S. at 434).
Jackson argues that Epps should not have been excused. Though he ac-
knowledges that “[a]fter stating her position over and over [she] finally just shut
down and said she wouldn’t vote for death,” he contends that her voir dire as a
whole demonstrated otherwise and that the prosecutor’s badgering led to the
statements used to justify her exclusion for cause.
We disagree. In Epps’s questionnaire, she answered that “I don’t believe
I have the right to say if someone should live or die.” Under questioning, she
admitted that she could accept the death penalty for those that kill children or
“for just no reason at all.” The court asked for additional questioning as to her
ability to follow juror instructions in cases where death might result, which led
to her statement that “I would have to vote against the death penalty,” and then
she was excused.
The court observed Epps’s demeanor and heard her answers. Those an-
swers were inconsistent for a time, which alone might have been ground to ex-
cuse her. Ultimately, however, she stated that she would not vote for death. In
light of the deference owed, the court did not abuse its discretion.9
It is just as evident that the district court did not err as to Lee. During
government questioning, she agreed that even if the evidence pointed in the dir-
ection of a death sentence, she might not be able to vote that way, “because I’m
9
See United States v. Bernard, 299 F.3d 467, 474-75 (5th Cir. 2002) (affirming dismissal
of potential juror who indicated on her questionnaire that she did “not feel [she] ha[d] the right
to judge whether a person lives or dies” and then wavered during questioning).
12
No. 06-41680
not sure if I can live with myself if I do.” Later, as with Epps, Lee vacillated
somewhat during questioning by the defense. Finally, under instruction to give
a yes or no answer, she was asked whether her feelings about the death penalty
would substantially impair her ability honestly to answer the questions present-
ed, and she said yes. The district court properly relied on that statement and ex-
cused her.
D.
Before the fight with Jackson began, Brown took off his shirt. Jackson ar-
gues that the court improperly allowed a government witness to speculate about
what Brown was thinking when he did that.
Jackson sought to demonstrate that he acted in self-defense and that
Brown initiated the confrontation by pulling a shank on him. The government
contends instead that Brown was unarmed and initiated only a fistfight, from
which he attempted to withdraw when Jackson drew his own shank.
The government presented Derric Wilson, a special investigator at the
prison, who testified that inmates typically remove their shirts before a fistfight,
because otherwise opponents may be able to “grab onto” their clothes. But in a
knife fight, Wilson said, “it has been my experience that inmates have typically
padded their clothing,” with some even going “so far as to improvise protective
vests out of newspapers and magazines and make improvised body armor.”
Jackson objected, saying that was “pure speculation as to what [was] in the mind
of an inmate when he takes his shirt off.”
Jackson urges that the court abused its discretion in permitting the testi-
mony, which he claims was inadmissible because it was an “unfounded opinion
based upon mere conjecture.” Alternatively, he contends that if witnesses can-
13
No. 06-41680
not testify as to what was in a defendant’s mind, they should not be able to say
what was in a potential victim’s mind.
Wilson’s testimony was rationally related to what he observed as a prison
official and was helpful for understanding prison fights. He indicated both that
he had not observed the yard fight between Brown and Jackson and that his tes-
timony was founded on unrelated investigations he had conducted.10 According-
ly, his testimony was not “mere conjecture” regarding what Brown was thinking,
but rather background information about prison fights that the jury could con-
sider or disregard.
Moreover, a district court may admit testimony about a potential victim’s
state of mind. “[I]n the ordinary circumstance[,]” we do not permit witnesses to
speculate about a “defendant’s state of mind or intent,” United States v. Chavis,
772 F.2d 100, 107 (5th Cir. 1985), because intent is one of the ultimate issues for
the jury. By contrast, the prejudice to a defendant is both less direct and less
substantial where a witness is testifying about what someone other than the de-
fendant thought. Therefore, even assuming arguendo that Wilson testified as
to Brown’s state of mind, the court did not abuse its discretion.
Jackson argues that even if the testimony was admissible, the court erred
when it allowed Wilson to testify as a lay witness under Federal Rule of Evi-
dence 701.11 He claims that some of Wilson’s testimony improperly crossed the
10
As Jackson’s brief acknowledges, “[t]he government made no effort to connect these
other unrelated incidents to either Jackson nor [sic] the deceased.”
11
Rule 701 provides,
If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are
(continued...)
14
No. 06-41680
line into expert testimony governed by Federal Rule of Evidence 702.12
Jackson did not raise this issue in the district court, so we review only for
plain error. To prove plain error, he must “show (1) there was error, (2) the error
was plain, (3) the error affected his ‘substantial rights,’ and (4) the error serious-
ly affected ‘the fairness, integrity or public reputation of judicial proceedings.’”
United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (quoting United States
v. Olano, 507 U.S. 725, 732, 734 (1993)).
The “distinction between lay and expert witness testimony is that lay tes-
timony results from a process of reasoning familiar in everyday life, while expert
testimony results from a process of reasoning which can be mastered only by
specialists in the field.” United States v. Sosa, 513 F.3d 194, 200 (5th Cir. 2008)
(citations and internal quotations omitted). To be considered expert, testimony
must involve more than “common sense or the officer’s past experience formed
from firsthand observation.” Id.
Wilson indicated that his testimony was based on his “investigat[ion of]
various assaults and fights with knives and fights with fists[.]” He represented
11
(...continued)
(a) rationally based on the perception of the witness, and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue,
and (c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
12
Rule 702 provides,
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness qual-
ified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and meth-
ods reliably to the facts of the case.
15
No. 06-41680
that he was “familiar with the clothing that inmates typically wear when they’re
fighting with knives” and “aware of how inmates go about fist-fighting[.]” Based
on those predicates, it appears that Wilson testified only as a lay witness draw-
ing from his “past experiences formed from firsthand observation” as an investi-
gative agent. Accordingly, any error in admitting his statements as lay rather
than expert testimony was not plain.
E.
To demonstrate that he acted in self-defense, Jackson tried to introduce
Brown’s prison disciplinary records into evidence. The district court barred the
evidence, ruling that it should be admitted only if Jackson could prove that he
had knowledge of the specific acts described by the records. Jackson contends
that that ruling was improper and deprived him of the ability to present a
complete defense.
Under Federal Rule of Evidence 404(a), character evidence is generally not
admissible “for the purpose of proving action in conformity therewith on a partic-
ular occasion . . . .” The rules make an exception, however, and permit the intro-
duction of “[e]vidence of a pertinent trait of character of the alleged victim of the
crime offered by an accused . . . .” FED. R. EVID. 404(a)(2). Federal Rule of Evi-
dence 405 provides that such a “trait of character” may always be demonstrated
to the jury by presenting evidence of the victim’s reputation. On the other hand,
testimony about “specific instances of conduct” may be used only if the “char-
acter or a trait of character of a person is an essential element of a charge, claim,
or defense . . . .” FED. R. EVID. 405 (emphasis added).
The district court was correct to limit Jackson’s ability to present Brown’s
disciplinary records. Brown’s propensity for violence is a pertinent trait of char-
16
No. 06-41680
acter, because it supports Jackson’s argument that Brown was the first aggress-
or. Accordingly, the court allowed extensive testimony on Brown’s reputation in
the prison community.
The disciplinary records that Jackson attempted to introduce, however, in-
volved specific instances of conduct. Under rule 405, such evidence is admissible
only if Brown’s violent character was “an essential element of [Jackson’s] de-
fense.” In Gulley, addressing the same issue, we held,
. . . Brown’s prior specific acts were not admissible to prove his
alleged propensity for violence. First, as recognized by the Seventh,
Eighth, and Ninth Circuits, the plain language of Rule 405(b) limits
the use of specific instances of conduct to prove essential elements
of a charge or defense. Second, Brown’s character was not an essen-
tial element of the self defense claim in the “strict sense” because a
self defense claim may be proven regardless of whether the victim
has a violent or passive character.
Gulley, 526 F.3d at 819 (internal citations and quotations omitted).
Jackson attempts to avoid Gulley by citing Holmes v. South Carolina, 547
U.S. 319, 321 (2006), which addressed the constitutionality of an “evidence rule
under which the defendant may not introduce proof of third-party guilt if the
prosecution has introduced forensic evidence that, if believed, strongly supports
a guilty verdict.” The Court noted that evidentiary rules are given wide latitude
unless they “infringe upon a weighty interest of the accused and are arbitrary
or disproportionate to the purposes they are designed to serve.” Id. at 324
(citation and internal quotations omitted). The Court concluded that the eviden-
tiary rule was unconstitutional, because it was “arbitrary in the sense that it
does not rationally serve the end that the . . . rule[ was] designed to further.” Id.
at 330-31 (internal quotations omitted).
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No. 06-41680
Jackson does not argue with any specificity why rules 404(a) and 405 are
“disproportionate” or “arbitrary,” “i.e., [that they are] rules that exclude[] impor-
tant defense evidence but that [do] not serve any legitimate interests.” Id. at
325. By limiting the admissibility of specific acts, rules 404 and 405 serve the
legitimate interest of ensuring that juries do not acquit or convict on impermis-
sibly prejudicial grounds, but those rules allow limited exceptions where more
context is necessary in the interest of justice.13 This careful balance is hardly
disproportionate or arbitrary, and Jackson provides no argument to the contrary
beyond assertion.
Jackson also claims that the government “opened the door” to the records.
Defense witness Darrell Evans, one of Jackson’s fellow inmates, testified that
Brown “always have big knives and it be hanging out of his pocket . . . .” On
cross-examination, the government expressed some skepticism and asked, “Are
you saying that if you’re walking around with a shank hanging out of your pock-
et, that a guard is not going to notice that?” Based on that question, Jackson
again sought to admit the disciplinary records, this time to rebut the impression
that “Brown did not possess shanks because the guards did not notice it.”
This argument is equally unavailing. First, the witness immediately clari-
13
As the advisory committee notes to rule 405 explain,
Of the three methods of proving character provided by [rule 405], evi-
dence of specific instances of conduct is the most convincing. At the same time
it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and
to consume time. Consequently the rule confines the use of evidence of this kind
to cases in which character is, in the strict sense, in issue and hence deserving
of a searching inquiry. When character is used circumstantially and hence occu-
pies a lesser status in the case, proof may be only by reputation and opinion.
These latter methods are also available when character is in issue.
FED. R. EVID. 405 advisory committee’s note.
18
No. 06-41680
fied his testimony by explaining that the knives would hang out of Brown’s pock-
ets only when he was sitting down in his cell, not walking around in plain view
of the guards. Second, the court correctly noted that the disciplinary records
would not be even arguably relevant unless they demonstrated that the guards
had in fact caught Brown with a shank.
Of the records even remotely related to violence,14 only two came from the
prison; one documents an incident in which Brown threw hot coffee on a guard,
and the other reports that he threatened to stab a guard. The remaining records
came from other prisons, and even there, only two involved shanks. Any rela-
tionship between the subject of cross-examination and the proffered evidence
was tenuous at best, and the court did not abuse its discretion in excluding it.
F.
Jackson avers that the district court violated his Sixth Amendment right
to counsel when it allowed only the lawyer that had conducted the direct examin-
ation of a witness to object during that witness’s cross-examination. Because
Jackson did not object to that ruling and so did not preserve the issue for ap-
peal,15 we review only for plain error.
“‘Plain’ is synonymous with ‘clear’ or ‘obvious,’ and at a minimum, contem-
14
The majority of the records describe simple acts of mischief (e.g., falsely triggering fire
sprinklers) or insubordination (e.g., refusing to follow instructions from prison officials).
15
The issue arose when one of Jackson’s lawyers, Mr. Barlow, objected during the cross-
examination of a witness that Jackson’s other lawyer, Mr. Morrow, had directly examined. Af-
ter questioning was complete and the jury had been excused, the judge ordered, “I don’t want
one of you objecting and then the other one. That was Mr. Morrow’s witness. Mr. Barlow,
don’t object if he’s the person responsible for the witness.” Jackson’s counsel responded by
saying only “Yes, your honor.”
19
No. 06-41680
plates an error which was clear under current law at the time of trial. . . . Under
plain error, if a defendant’s theory requires the extension of precedent, any po-
tential error could not have been plain.” United States v. Garcia-Rodriguez, 415
F.3d 452, 455 (5th Cir. 2005) (citing United States v. Hull, 160 F.3d 265, 271-72
(5th Cir. 1998)) (internal quotations omitted).
Any error here is not plain. Although Jackson correctly notes that federal
law allows him to have two attorneys, he can point to no caselaw that requires
both of them to be permitted to object at the same time; instead, Jackson argues
for an extension of our existing Sixth Amendment jurisprudence. The govern-
ment, meanwhile, admits that it can find no authority on the issue; it cites gen-
eral precedent acknowledging the discretion a district court is afforded to control
the trial.16 Because this is a question of first impression and the law was not ob-
vious at the time of trial, any error was not plain.
G.
Jackson argues that the district court erred when it forbade him from im-
peaching government witness Victor Richards with evidence that Richards is a
registered sex offender. Richards, an inmate, testified that Jackson and Gulley
chased Brown into a cell and stabbed him. In the 1980’s, Richards was convicted
of sexual assault, sentenced to two years of probation, and required to register
as a sex offender.
Federal Rule of Evidence 609 establishes two relevant restrictions relevant
16
The government cites, for example, United States v. Pace, 10 F.3d 1106, 1114 (5th
Cir. 1993) (stating that the court of appeals “ must determine whether the trial court imposed
unreasonable limits on cross-examination such that a reasonable jury might have received a
significantly different impression of a witness’ credibility had defense counsel pursued his pro-
posed line of cross-examination”) (citation and internal quotations omitted).
20
No. 06-41680
regarding impeachment by prior criminal convictions. First, under rule 609-
(a)(1), the impeachment evidence is subject to Federal Rule of Evidence 403,
which says that even relevant evidence “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . .” FED. R. EVID. 403. Second, under rule
609(b), evidence of a conviction may not be used “if a period of more than ten
years has elapsed since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is the later date
. . . .” FED. R. EVID. 609(b).
The district court excluded the evidence on both grounds, finding that the
conviction was too old and unfairly prejudicial. On appeal, Jackson raises three
arguments: First, the conviction’s probative value is significant; second, because
Richards is still required to register as a sex offender, he has not yet been “re-
lease[d] . . . from the confinement imposed”; and third, excluding the impeach-
ment evidence violated Jackson’s Sixth Amendment right to cross-examine.
Jackson argues the evidence was probative because Richards was “a regis-
tered sex offender, a result of his felony conviction[, and so] he likely may also
be untruthful.” Further, because he was subject to an ongoing legal obligation
to register as a sex offender, he might have “potential bias . . . to testify for the
government, thereby staying in the ‘good graces’ of those who could prosecute
him should he ever fail to comply with his registration requirements.”
As Jackson admits, however, registration as a sex offender is a “scarlet let-
ter.” So although the jury might have considered Richards more likely to be un-
truthful if it had known of his conviction, there is a significant danger that it
would have instead improperly discounted his testimony because of personal re-
vulsion for sex offenses. Moreover, there was ample reason for the jury to find
21
No. 06-41680
Richards untrustworthy without introducing the prejudicial evidenceSSthe jury
already knew that (1) Richards had been convicted of several other crimes (in-
cluding burglary and theft); (2) he was currently in prison for a 1999 bank rob-
bery; (3) the government would attempt to get his bank robbery sentence re-
duced in exchange for his testimony; and (4) he had a history of mental issues
and drug abuse. Given the potentially severe prejudice that could have resulted
from admitting the conviction and its mostly cumulative probative value, the dis-
trict court did not abuse its discretion.17
The court also did not commit constitutional error. Evidentiary rules gen-
erally are upheld unless they “infringe upon a weighty interest of the accused
and are arbitrary or disproportionate to the purposes they are designed to serve”
(citation and internal quotations omitted). Holmes, 547 U.S. at 324. “[W]ell-es-
tablished rules of evidence permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair prejudice, confusion
of the issues, or potential to mislead the jury. See, e.g., FED. R. EVID. 403.” Id.
at 326 (emphasis added). The decision to exclude the evidence because of its pre-
judicial value was therefore constitutionally permissible.
H.
Defense witness Shannon Agofsky testified that Brown had a knife and
said he was going to assault Jackson. The government impeached Agofsky un-
der Federal Rule of Evidence 609 with evidence that Agofsky had been convicted
of two counts of capital murder. Agofsky’s case has an unusual procedural his-
17
Because we affirm the decision to exclude the evidence as unfairly prejudicial under
rule 403, we need not address its ruling that the conviction was too old to be admissible under
rule 609(b).
22
No. 06-41680
tory, however, that leads Jackson to question whether Agofsky was improperly
impeached with non-final convictions.
Agofsky’s convictions for capital murder were the result of a single killing.
In July 2006, in United States v. Agofsky, 458 F.3d 369 (5th Cir. 2006), we held
that the Double Jeopardy Clause forbade convicting Agofsky of both counts, be-
cause the charges amounted to the same offense.18 Id. at 371-72. We nonethe-
less concluded that one of the two death sentences could stand. Id. at 372-73.
Accordingly, we vacated the convictions “to prevent double jeopardy” and re-
manded with instruction to impose, “at the Government’s election, a guilty ver-
dict and death sentence for either Federal Murder or Murder by a Federal Pris-
oner.” Id. at 375.
Agofsky petitioned for writ of certiorari; because of the pending petition,
the Fifth Circuit stayed the mandate in August 2006. After the Court denied
certiorari in January 2007, Agofsky v. United States, 127 S. Ct. 1149 (2007), the
Fifth Circuit lifted the stay of the mandate, which finally issued in February
2007. Agofsky testified at Jackson’s trial in October 2006SSafter the Agofsky
panel had rendered its opinion but before the Court denied certiorari and the
mandate issued.
On appeal, Jackson argues that Agofsky should not have been impeached
with either conviction. The question now is whether, at the time of the impeach-
ment, Agofsky had two convictions (per the original district court verdict), zero
convictions (per the panel order vacating the convictions), or one conviction (per
the instruction that the district court reimpose one of the two original convic-
18
He was convicted of both premeditated, first degree murder and premeditated, first
degree murder by a federal prisoner serving a term of life imprisonment.
23
No. 06-41680
tions on remand). We conclude that he was correctly impeached with both con-
victions.
This court’s decisions are “not final until we issue a mandate.” Charpen-
tier v. Ortco Contractors, 480 F.3d 710, 713 (5th Cir. 2007). In Charpentier, we
rejected the argument that an award ceased to exist “on the date we issued our
opinion [vacating the award].” Id. Similarly, Agofsky’s convictions did not cease
to exist when the panel opinion vacating them was entered. Because the man-
date had not yet issued, the original district court judgment remained in effect;
Agofsky was still convicted of both crimes at the time of his testimony.19
Further, under rule 609(e), “[t]he pendency of an appeal therefrom does
not render evidence of a conviction inadmissible.” Accordingly, neither the
stayed mandate in this court nor the pending certiorari petition20 affected the ad-
missibility of Agofsky’s convictions.21 We note, however, that the rules permitted
19
The existence of the convictions did not automatically make them admissible. Rule
609(a)(1) states that convictions for crimes that do not involve acts of dishonesty are admissible
subject to rule 403, which allows the district court to exclude evidence where the “probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .” FED. R. EVID. 609(a)(1). Because Jackson did not raise a rule 403
challenge at trial or on appeal, we do not review the district court’s decision on the matter.
20
In Agofsky’s case, the Supreme Court was acting as an “appellate” court. See U.S.
CONST. art. III, § 2. Agofsky’s certiorari petition is therefore included in rule 609(e)’s reference
to “pendency of an appeal.”
21
Jackson argues that the “obvious purpose” of rule 609(e) is to respect the “presump-
tion of correctness which ought to attend judicial proceedings” and that that purpose is not
served by respecting a conviction that a court of appeals has reversed while certiorari is pend-
ing. That argument is unavailing under the peculiar circumstances of this case.
Agofsky’s conviction was not reversed on the meritsSSindeed, the district court was
ordered to re-enter the conviction on one count. Further, rule 609(e) is pellucid, and we must
follow it. “It is well established that when the statute’s language is plain, the sole function of
the courtsSSat least where the disposition required by the text is not absurdSSis to enforce it
(continued...)
24
No. 06-41680
Jackson to present information about Agofsky’s appeal to ameliorate the im-
peachment. FED. R. EVID. 609(e) (“Evidence of the pendency of an appeal is ad-
missible.”). Jackson declined to do so despite being reminded of the option by the
district court.
I.
Jackson argues that, as a matter of constitutional right, he should have
been allowed to submit a statement of allocution to the jury.22 The district court
denied Jackson’s request to allocute, citing United States v. Hall, 152 F.3d 381,
396 (5th Cir. 1998) (“We conclude that a criminal defendant in a capital case
does not possess a constitutional right to make an unsworn statement of remorse
before the jury that is not subject to cross-examination.”), abrogated on other
grounds by United States v. Martinez-Salazar, 528 U.S. 304 (2000).
Jackson’s brief does not even mention Hall, let alone attempt to distin-
guish it. This panel may not overrule the decision of a prior panel. Teague v.
City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999). Accordingly, we follow
Hall and uphold the district court’s order.
J.
21
(...continued)
according to its terms.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (internal quotations
and citations omitted); see also, e.g., Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir. 1980) (“[W]e
start with [the statute’s] plain words without pausing to consider whether a statute differently
framed would yield results more consonant with fairness and reason.”).
22
A statement of allocution is “[a]n unsworn statement from a convicted defendant to
the sentencing judge or jury in which the defendant can ask for mercy, explain his or her con-
duct, apologize for the crime, or say anything else in an effort to lessen the impending sen-
tence.” BLACK’S LAW DICTIONARY 83 (8th ed. 2004).
25
No. 06-41680
Jackson contends that the district court violated his Eighth Amendment
rights when it failed to instruct the jury at sentencing that if it had “residual
doubts” about his guilt, it should not sentence him to death. Binding Supreme
Court precedent, however, forecloses this argument.
In Franklin v. Lynaugh, 487 U.S. 164, 174 (1988), Justice White, writing
for four Justices, first noted that “[t]his Court’s prior decisions, as we understand
them, fail to recognize a constitutional right to have [residual] doubts considered
as a mitigating factor.”23 Even if the Eighth Amendment guaranteed such a
right, mere denial of a jury instruction did not impair the right, because the
“trial court placed no limitation whatsoever on [defendant]’s opportunity to press
the ‘residual doubts’ question with the sentencing jury.” Id. The Court also re-
jected the argument that jurors needed to be told they could consider residual
doubt. Accordingly, “even if petitioner had some constitutional right to seek jury
consideration of ‘residual doubts’ about his guilt during his sentencing hearingSS
a questionable propositionSSthe rejection of petitioner’s proffered jury
instructions did not impair this ‘right.’” Id. at 175 (emphasis added). Justice
O’Connor, for herself and Justice Blackmun, went further and wrote that “the
Eighth Amendment does not require [consideration of residual doubt by the
sentencing body].” Id. at 187.
The Fifth Circuit has also addressed the issue. Although there is a “dif-
ference between rules relating to what mitigating evidence the jury may consider
23
The Court recently reiterated this aspect of Franklin in Oregon v. Guzek, 546 U.S.
517, 525 (2006). The Guzek Court, noting that “Franklin did not resolve whether the Eighth
Amendment affords capital defendants such a right [to consideration of residual doubt],” con-
cluded that “we once again face a situation where we need not resolve whether such a right ex-
ists . . . .” Id.
26
No. 06-41680
and rules relating to instructing the jury how to consider such evidence,” a crim-
inal defendant is “not constitutionally entitled to instruct the jury to consider . . .
residual doubt . . . .” Smith v. Black, 904 F.2d 950, 968-69 (5th Cir. 1990), vacat-
ed on other grounds, 503 U.S. 930 (1992).
We find no error in the denial of Jackson’s request for a jury instruction
on residual doubt. First, neither the Supreme Court nor the Fifth Circuit has
held that a defendant is entitled to such an instruction.24 Second, even if we as-
sume some right to consideration of residual doubt, the “trial court placed no
limitation whatsoever on [Jackson]’s opportunity to press the ‘residual doubts’
question with the sentencing jury.” Jackson was able to argue self-defense at
sentencing, and the court explicitly instructed the jury that it could consider
“[a]ny other[ factors] you may find from the evidence” and “anything else about
the commission of the crime . . . that would mitigate against imposition of the
death penalty.” Following Franklin and Smith, we therefore conclude that any
right to consideration of residual doubt was not impaired.
K.
As part of rendering its sentencing verdict, the jury completed a special
verdict form that included an extensive sixty-item list of potential mitigating fac-
tors. Only one of those factors was found by all twelve jurors,25 and fifty of them
received zero support.
24
The lengthy list of cases that Jackson cites suggest, at most, that a defendant is per-
mitted to argue residual doubt. None stands for the proposition that the Eighth Amendment
compels a jury instruction on residual doubt.
25
Factor #15: “[Jackson] had no positive role model in his life as a child and this factor
is mitigating.”
27
No. 06-41680
Jackson argues that the verdict is inconsistent with the evidence present-
ed at trial. He claims that in one case, the verdict contradicted an explicit gov-
ernment stipulation. Elsewhere, he claims that the jury failed to find factors
that had been demonstrated at trial “beyond all doubt.” He concludes that “[n]o
rational juror could have viewed the evidence and then answered the questions
regarding the mitigating factors in such a manner without violating his oath as
a juror.”
As an initial matter, we have expressed doubt that a special verdict on
mitigating factors is reviewable.26 “Assuming, arguendo, that we possess the au-
thority to review the jurors’ special findings regarding mitigating factors, we
must accept the jurors’ factual determinations unless no reasonable juror could
have arrived at the conclusion reached by the juror in question.” Hall, 152 F.3d
at 413. Further, verdict inconsistencies are generally tolerated. See Agofsky,
458 F.3d at 375.27
26
See United States v. Hall, 152 F.3d 381, 413 (5th Cir. 1998) (“[W]e question whether
the jurors’ failure to find a particular mitigating factor constitutes a proper subject of review
for this court.”), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304
(2000); see also United States v. Bernard, 299 F.3d 467, 485 (5th Cir. 2002) (“This court has
previously expressed doubt regarding its authority to review jury findings relating to miti-
gating factors. [United States v.] Hall questions whether a jury’s failure to find the existence
of a mitigating factor is subject to appellate review, since the FDPA does not require the jury
to make special findings of the existence of, or degree of jury unanimity upon, mitigating fac-
tors.”) (internal citation omitted).
27
As explained in United States v. Powell, 469 U.S. 57, 67 (1984),
[W]ith few exceptions [involving crooked members of the venire panel or im-
proper outside influences on the jury during trial], once the jury has heard the
evidence and the case has been submitted, the litigants must accept the jury’s
collective judgment. Courts have always resisted inquiring into a jury’s thought
processes; through this deference the jury brings to the criminal process, in addi-
tion to the collective judgment of the community, an element of needed finality.
(continued...)
28
No. 06-41680
Jackson’s strongest claim that the verdict is inconsistent involves Gulley.
The government stipulated that Gulley did not receive the death penalty, but on
the special verdict form, only one juror found that to be a proven mitigating fac-
tor. Jackson argues that in making that finding, “[e]leven of the twelve jurors
found an uncontroverted, stipulated, written in stone fact, not to be a fact.”
Jackson’s argument overstates his case. The special verdict form asked
whether the jury found that “[a]n equally culpable defendant, Arzell Gulley, did
not receive a sentence of death as a result of the offense” (emphasis added). The
government stipulated only that Gulley did not receive a sentence of death; the
jury, meanwhile, could have rationally concluded that he was not equally culpa-
ble. Jackson testified that Gulley “didn’t help me kill the man” and in fact yelled
“[l]et’s get out of here” after the first stab. Thus, the jury’s finding is neither in-
consistent with the government’s stipulation nor irrational.
The other findings that Jackson cites as inconsistent all relate to factors
that the government did not stipulate to be true, e.g., Jackson’s head injury as
a baby, low I.Q. score, possible retardation,28 bad home life, good behavior in
prison, and diligence in teaching himself to read. Jackson argues that “the evi-
dence overwhelmingly established those factors without controversion by the
government.”
(...continued)
(Internal citations omitted.) The case Jackson cites repeatedly as contrary persuasive authori-
ty, Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006), was vacated by the en banc court, Getsy v.
Mitchell, 495 F.3d 295, 300, 309 (6th Cir. 2007) (en banc) (noting that “[p]erhaps some day the
Supreme Court will hold that . . . inconsistent verdicts . . . are unconstitutional[, b]ut this is
not the law of the land today . . .”), cert. denied, 128 S. Ct. 1475 (2008).
28
Jackson alludes to Atkins v. Virginia, 536 U.S. 304 (2002) (barring executions of the
mentally retarded), but he does not make an Atkins claim.
29
No. 06-41680
This mitigation evidence, however, could rationally be called into question.
Much of it was provided by Jackson’s childhood and current girlfriend, whom the
jury was free to disbelieve,29 and the government used cross-examination to cast
doubt on the reliability of Jackson’s expert witnesses. Likewise, despite Jack-
son’s claims to good behavior and educational achievement, the jury, upon learn-
ing that he ran a gambling operation in prison, reasonably could have concluded
that his rehabilitation was not going well.
Further, and more fundamentally, the jury was not required to find that
a factor was mitigating, even if it believed the factor’s factual predicate to be
true. All the law requires is that jurors be aware that they can consider a factor
to be mitigating. See Bernard, 299 F.3d at 485-86. For example, no juror found
that Jackson “experienced persistent falling when trying to walk until he was
5 years old and this factor is mitigating.” In reaching that conclusion, the jurors
could have believed Jackson experienced problems walking but that the factor
did not weigh against a sentence of death.
The jury did not merely rubber-stamp the prosecution’s request for a death
sentence. Four jurors found that Jackson’s father was abusive and that the
abuse was mitigating. Every juror found it mitigating that Jackson had no posi-
tive role model. Six found it mitigating that he was in prison for a non-violent
offense. Ten found it mitigating that he was not actively looking to kill someone.
Nine found it mitigating that he was the first aggressor. Eight found it miti-
gating that there are prisoners with worse records who are not sentenced to
29
See, e.g., Hall, 152 F.3d at 413 (“In support of his claim that he experienced an up-
bringing that militated against the imposition of the death penalty, Hall offered only the testi-
mony of two of his family members, which the jury was free to believe or disbelieve.”) (emphasis
added).
30
No. 06-41680
death.
In short, the jurors appear to have properly and conscientiously carried out
their duties. We cannot conclude that their findings are beyond the bounds of
reason or are inconsistent with the government’s stipulations.
L.
Jackson argues that the court erred in denying him a new trial or at least
a hearing regarding his new trial motion. He contends the jury erroneously be-
lieved that even if he were sentenced to life without parole, it was still possible
he could be released before the end of his lifeSSdespite the district court’s explicit
instruction to the contrary. To support this contention, Jackson offered an affi-
davit of an investigator who contacted jurors after the trial. The affidavit stated
that a number of them believed that Jackson could be released early, as had hap-
pened with a cooperating witness who testified at trial.
A juror’s affidavit “may not be received on a matter about which the juror
would be precluded from testifying.” A juror may testify regarding only three
aspects of the events surrounding deliberations: “(1) whether extraneous prejudi-
cial information was improperly brought to the jury’s attention, (2) whether any
outside influence was improperly brought to bear upon any juror, or (3) whether
there was a mistake in entering the verdict onto the verdict form.” FED. R. EVID.
606(b) (emphasis added).
In United States v. Jones, 132 F.3d 232, 245-46 (5th Cir. 1998), a death
penalty case like Jackson’s, we unambiguously stated that “[r]ule 606(b) has con-
sistently been used to bar testimony when the jury misunderstood instructions”
and that “‘outside influence’ refers to a factor originating outside of normal court-
31
No. 06-41680
room proceedings which influences jury deliberations, such as a statement made
by a bailiff to the jury or a threat against a juror” (emphasis added). Jones is on
point,30 and the proffered affidavit should not be received. The affidavit does not
provide evidence that “extraneous prejudicial information was improperly
brought to the jury’s attention” or that “any outside influence was improperly
brought to bear upon any juror.” At most, it indicates that some jurors appar-
ently misunderstood what Jackson concedes was the court’s explicit instruction.
Any misunderstanding was seemingly caused by the testimony of a government
witness, which came as a valid part of his direct examination during “normal
courtroom proceedings.”
Because the investigator’s affidavit was inadmissible, and Jackson pre-
sented no other evidence of jury confusion, the district court was well within its
discretion to deny a new trial. Moreover, given that Jackson had not proffered
any admissible evidence, the court properly denied the motion to hold an evi-
dentiary hearing.31
30
To avoid the impact of Jones, Jackson mischaracterizes the order denying a new trial
as a misstatement of the law. He seizes on the court’s statement that “because the jury charge
did not directly address or even allude to the possibility of future sentence reductions, the jury
cannot be accused of explicitly disregarding the court’s instructions . . . .” He argues that the
court incorrectly focused on the correctness of its instructions rather than the jury’s violation
of them.
Jackson overlooks the final sentences in the paragraph, in which the court properly ex-
plained it was concerned only with influences external to the trial: “Moreover, so long as any
misunderstanding regarding the jury charge was not the result of an improper outside source
or extraneous influence, the district court need not grant a new trial” (citing Jones, 132 F.3d
at 245-46). The court then explained that Jackson had failed to offer any evidence that showed
that the jury’s erroneous understanding of what life without parole meant had originated out-
side of the trial.
31
See, e.g., Tanner v. United States, 483 U.S. 107, 127 (1987) (“[T]he District Court did
(continued...)
32
No. 06-41680
For the reasons stated, we AFFIRM the conviction and sentence.
31
(...continued)
not err in deciding, based on the inadmissibility of juror testimony and the clear insufficiency
of the nonjuror evidence offered by petitioners, that an additional post-verdict evidentiary
hearing was unnecessary.”).
33