United States v. Chanthadara

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 1 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
No. 97-3229
BOUNTAEM CHANTHADARA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 94-10128-01)

Vicki Mandell-King, Assistant Federal Public Defender, Denver, Colorado, and
Gary Peterson, Oklahoma City, Oklahoma, (Michael G. Katz, Federal Public
Defender, Denver, Colorado, with them on the brief), for Defendant-Appellant.

Robert J. Erickson, Department of Justice, Washington, D.C. (Jackie N. Williams,
United States Attorney, Lanny D. Welch, Assistant United States Attorney, and D.
Blair Watson, Assistant United States Attorney, District of Kansas, with him on
the brief), for Plaintiff-Appellee.

Before SEYMOUR , Chief Judge, and ANDERSON and HENRY , Circuit Judges.

HENRY , Circuit Judge.

Boutaem Chanthadara was convicted of robbery (pursuant to the Hobbs
Act, 18 U.S.C. § 1951(a)) and use of a firearm in a crime of violence under

circumstances constituting first-degree murder (pursuant to 18 U.S.C. §

924(j)(1)). 1
For the first of these crimes, he has been sentenced to twenty years in

prison. For the second crime, Mr. Chanthadara has been sentenced to death.

Mr. Chanthadara’s case comes before us on direct appeal from his

convictions and sentences. We exercise jurisdiction under 18 U.S.C. §§ 3595(a)

and 3742(a) and 28 U.S.C. § 1291.

I. BACKGROUND

Mr. Chanthadara faces the death penalty for his involvement in a 1994

robbery of a restaurant in Wichita, Kansas. Viewed in the light most favorable to

the government, the evidence at trial established the following series of events.

Mr. Chanthadara and four codefendants – Phouc Nguyen, Khammouk

Namphengsone, Piyarath Kayarath, and Somlith Soukamneuth – gathered at Mr.

Namphengsone’s apartment during a party. The five decided to rob the Mandarin

Chinese Restaurant in hopes of getting cash and gold jewelry.

The five men left the party in two cars, one stolen and one borrowed. They

had two guns amongst them: Mr. Kayarath carried a 9mm pistol (the murder

1
The second superseding indictment charged a violation of 18 U.S.C. §
924(i)(1) (1994), which has since been redesignated as § 924(j)(1). This opinion
uses the new designation.

-2-
weapon) and Mr. Nguyen carried a .32 caliber revolver. When the five arrived at

the targeted restaurant, they noted that customers were still eating and decided to

wait until only the owners were present.

To pass time, the men continued on to a nearby shopping mall. In the mall

parking lot, Mr. Nguyen broke into several cars. When one of the car owners

confronted him, Mr. Nguyen punched him several times, and Mr. Kayarath hit him

on the head with the butt of the 9mm pistol.

Sufficient time having elapsed, the friends split up. Mr. Soukamneuth

waited in a nearby parking lot in the borrowed car with which they planned to

drive away from the robbery. The other four men drove the stolen car to the

restaurant. Approaching the restaurant, Mr. Nguyen donned a black ski mask.

The three others remained unmasked.

Mr. Mark Sun, the owner of the Mandarin Chinese Restaurant, testified that

he first became aware of the robbery when he heard a loud crash in the front. As

he went to investigate, a masked man, Mr. Nguyen, put a knife to his throat and

forced him to the cash register. He opened the register and emptied its contents.

Mrs. Barbara Sun (a co-owner of the restaurant), a waiter, and the Sun’s

two children were also present in the restaurant. Mr. Namphengsone bound Mr.

Sun and Mr. Wong with shoelaces behind the bar. The robbers ordered the

children to lay down. Mr. Kayarath guarded the four at gunpoint. Mr. Nguyen

-3-
grabbed Mrs. Sun by her hair and neck and dragged her upstairs to a safe, which

had been installed in the restaurant before the Suns bought it. Mr. Chanthadara

accompanied them, and Mr. Kayarath soon followed. The safe was locked and

empty, and the Suns did not know the combination. The robbers knew only that it

was locked.

Mr. Namphengsone remained downstairs guarding the four prisoners. The

only evidence about the sequence of events leading to Mrs. Sun’s death came

from Mr. Namphengsone, who testified that within minutes of having followed

Mr. Nguyen upstairs, Mr. Chanthadara returned downstairs to check on Mr.

Namphengsone. At that time, Mr. Chanthadara carried the 9mm pistol. Satisfied

with the situation downstairs, he returned upstairs.

Some time later, the three men returned from upstairs. Now, Mr. Nguyen

carried the .32 caliber pistol, Mr. Chanthadara carried the 9mm pistol, and Mr.

Kayarath was unarmed. Mr. Namphengsone heard Mr. Nguyen announce, “He

shot her.” Rec. vol. 40, at 2113.

Leaving the restaurant, Mr. Chanthadara tried to retrieve something from a

glass display case and tipped it over. His palm print was later matched to a palm

print on the broken glass of the case.

The four men met Mr. Soukamneuth, still waiting in the borrowed car. Mr.

Soukamneuth testified that Mr. Chanthadara held the 9mm pistol. He also

-4-
testified that, on the ride back to Mr. Namphengsone’s apartment, Mr. Nguyen,

Mr. Namphengsone, and Mr. Kayarath were all yelling at Mr. Chanthadara.

According to Mr. Soukamneuth, Mr. Chanthadara responded by putting the 9mm

to his own head and asking whether he should shoot himself. Mr. Soukamneuth

further stated that he did not know at the time why the other men were angry with

Mr. Chanthadara, but “later on” he determined it was because Mr. Chanthadara

“shot the lady.” Rec. vol. 40, at 2006-07. Finally, before reaching the apartment,

Mr. Chanthadara threw the 9mm pistol into a river.

Mr. Namphengsone initially told FBI investigators that he heard nothing

about anyone being hurt and that the 9mm pistol was taken back to his apartment,

not thrown off the bridge. He subsequently changed this story to correspond with

Mr. Soukamneuth’s. FBI investigators would later search the area, but the gun

was never recovered.

Mrs. Sun’s body was discovered upstairs in the restaurant in front of the

locked safe. She had been shot five times. Four of the gunshot wounds would

have been fatal by themselves. Mrs. Sun had also been beaten. Nearby was a

broken pool cue, which tested positive for traces of Mrs. Sun’s blood.

The FBI investigation into the murder initially centered on Arisack

Phongmany. From a photo spread, the victim of the parking lot assault (Mr.

Bryan Kiser) had identified Mr. Phongmany as one of the participants.

-5-
 The FBI soon determined that the same 9mm pistol had been used in a

drive-by shooting a few weeks before the robbery. Mr. Phongmany pleaded guilty

to the drive-by shooting and admitted to having used the 9mm pistol. Once

arrested for the drive-by shooting, Mr. Phongmany invoked his Miranda rights

and refused to speak to agents investigating the restaurant robbery and killing.

The FBI interviewed Mr. Namphengsone after identifying his fingerprint on

a table top at the restaurant. He expressed a willingness to cooperate. Based

upon his story, the United States Attorney charged Mr. Namphengsone, Mr.

Soukamneuth, Mr. Kayarath, Mr. Nguyen, and Mr. Chanthadara with robbery and

homicide.

Two of the defendants, Mr. Namphengsone and Mr. Soukamneuth, pleaded

guilty and testified for the government at trial. Mr. Namphengsone was sentenced

to twenty-two years in prison, and Mr. Soukamneuth was sentenced to twenty

years.

In contrast, Mr. Kayarath, Mr. Nguyen, and Mr. Chanthadara pleaded not

guilty and proceeded to trial. The government sought the death penalty against

the latter two men. After jury trials, Mr. Kayarath and Mr. Nguyen were

convicted on both the robbery and murder counts and sentenced to life in prison.

Mr. Chanthadara was also convicted on both counts. He was sentenced to twenty

years in prison on the robbery charge and to death on the homicide.

-6-
II. DISCUSSION

Mr. Chanthadara presents the following challenges to his convictions: (1)

prejudice by exposure of jurors to a newspaper article reporting the trial judge’s

characterization of his defense; (2) a Jencks Act violation; (3) a violation of his

rights under the Vienna Convention; (4) an unconstitutional jury selection plan;

(5) district court errors in the jury instruction on malice and in the court’s refusal

to instruct the jury on second-degree murder as a lesser included offense; (6) an

unconstitutional instruction on the Hobbs Act interstate commerce element; and

(7) violations of 18 U.S.C. § 201(c)(2) as a result of the government’s grant of

lenity in exchange for the testimony of accomplices.

Additionally, he raises the following challenges to his death sentence: (1)

district court errors in submitting certain aggravating factors to the jury; (2)

prejudice by exposure of jurors to newspaper articles during the penalty phase; (3)

erroneous exclusion of jurors for cause based on their death penalty views; and

(4) district court error in admission of emotionally charged victim impact

evidence during the penalty phase.

We first address the challenges to the guilt phase of Mr. Chanthadara’s

trial. Finding no prejudicial error, we affirm his convictions. As to Mr.

Chanthadara’s death sentence, we conclude there is a reasonable probability that

-7-
the jurors’ exposure to the trial judge’s comment referring to Mr. Chanthadara’s

defense as a “smoke screen” influenced the jury’s determination. Additionally,

under the standards set forth in Witherspoon v. Illinois , 391 U.S. 510 (1968), and

Wainwright v. Witt , 469 U.S. 412 (1985), we conclude that the district court erred

in excluding a venire member for cause based solely on her responses to a

questionnaire. Accordingly, we vacate Mr. Chanthadara’s death sentence on both

grounds. We remand the case for re-sentencing consistent with this opinion.

A. Challenges to the Conviction

1. Prejudice From Midtrial Publicity

Mr. Chanthadara’s defense theory was that Mr. Phongmany committed the

charged crimes. According to an FBI report, Mr. Kiser identified Mr. Phongmany

as “the subject with the handgun that assaulted him.” Rec. vol. 42 at 2502.

Investigators determined that the 9mm firearm used to kill Mrs. Sun had been

used in a drive-by shooting a few weeks prior to the robbery of the Mandarin

Chinese Restaurant. Mr. Phongmany pleaded guilty to having fired the same 9mm

firearm in the drive-by shooting incident. Agents investigating the robbery and

homicide arrested Mr. Phongmany, but he invoked his Miranda rights and refused

to answer questions.

Prior to Mr. Chanthadara’s trial, the government filed a motion in limine to

-8-
exclude all evidence relating to Mr. Phongmany and his links to the murder

weapon. When the defense was ready to present evidence on these issues, the

district court judge ordered them to call the seven relevant witnesses, outside the

jury’s presence, to determine admissibility. After the hearing, the judge ruled that

the evidence was admissible.

However, the judge commented that “I don’t for a minute believe it, that

this Arisack Phongmany committed the crime. I think it’s a smoke screen. I

mean, may as well just say what it is. It’s a smoke screen, but I don’t find . . .

that I have any right to make the judgment on that issue.” Rec. vol. 42, at 2477.

He described the proffered evidence as “what I consider to be a totally bogus

offer,” and “just a way to mislead the jury.” Id. at 2479. The jury was called

back to the courtroom and allowed to hear the evidence. When court adjourned,

the jurors were sent home, as they had not been sequestered.

The judge failed to consider the presence of journalists in the courtroom.

The following morning, a local newspaper ( The Wichita Eagle ) ran an article on

the judge’s comments. The headline read: “JUDGE IN MURDER CASE CALLS

DEFENSE STORY A ‘SMOKE SCREEN.’” Add’m to Alpt’s Br., doc. I. Before

the jurors were called in that morning, defense counsel requested that the judge

question them as to whether they had seen the article. The judge noted that the

jurors would have violated his instructions if they had seen the article, but he

-9-
granted the request.

In speaking to the jurors, the judge confirmed the article was accurate. He

said, “In the paper this morning there was an article regarding this case that

reflected some comments that I made outside your presence.” Rec. vol. 43, at

2718-19. Six of twelve jurors admitted to having seen the headline, but each of

them denied having read any further.

The judge gave a curative instruction stating “anything that I say or do is

not evidence and is not to be considered by you as reflecting my judgment on the

case or what your verdict should be.” Id. at 2719. He then individually

questioned the six jurors who admitted to having seen the headline as to whether

they understood the instruction and whether they thought their exposure to the

headline would in any way affect their ability to render a decision based solely on

the evidence admitted in court. Each of the six jurors confirmed that he or she

understood the instructions and assured the court he or she would not be affected

by exposure to the headline.

The defense moved for a mistrial, arguing the exposure destroyed any

credibility the defense might otherwise have enjoyed. The judge denied the

motion, and the trial continued through the presentation of a single remaining

witness. The court then dismissed the jury for deliberation. On the same day, it

returned a verdict of guilt. After the verdict was read, the judge again asked the

-10-
jurors, individually, whether “anything about what you saw in the headline

influence[d] your deliberations or your verdict in any way.” Rec. vol. 43 at 2785.

Each reassured him that it had not.

Mr. Chanthadara now argues the district court’s refusal to grant a mistrial

violated his Fifth Amendment due process rights, his Sixth Amendment rights to

counsel and a fair trial, and his rights under the Eighth Amendment. We review

for an abuse of discretion a trial court’s denial of a motion for a mistrial based on

juror bias. See United States v. Thompson , 908 F.2d 648, 650 (10th Cir. 1990).

“Under the abuse of discretion standard, a trial court’s decision will not be

disturbed unless the appellate court has a definite and firm conviction that the

lower court has made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Id. (quoting United States v. Ortiz , 804

F.2d 1161, 1164 n.2 (10th Cir. 1986)).

Here, it is uncontested that six of twelve jurors were exposed to external

information about the case in contravention of court instructions. “A rebuttable

presumption of prejudice arises whenever a jury is exposed to external

information in contravention of a district court’s instructions.” United States v.

Davis , 60 F.3d 1479, 1484-85 (10th Cir. 1995) (citations and internal quotation

marks omitted). This presumption is not conclusive. See id. However, it is the

government’s burden to establish that such contact was harmless. See id.

-11-
 In assessing harmlessness, we first examine the external information to

which the jurors were exposed. Next, we consider whether the prejudice caused

by that information was outweighed by the judge’s curative instructions, see

United States v. Filani , 74 F.3d 378, 386 (2d Cir. 1996) (considering the effect of

the court’s curative instructions but concluding that they could not cure

prejudice); United States v. Cisneros , 491 F.2d 1068, 1075-76 (5th Cir. 1974)

(same), or by the jurors’ assurances that they remained impartial, see United

States v. Angiulo , 897 F.2d 1169, 1186 (1st Cir. 1990) (relying on jurors’

statements of continued impartiality). Finally, we examine the record as a whole,

asking whether the evidence of the defendant’s guilt was overwhelming, such that

the jurors’ exposure to the external information was ultimately harmless.

In this case, the allegedly prejudicial information to which the jurors were

exposed was the trial judge’s assessment of Mr. Chanthadara’s defense. The

nature of that information – the presiding authority’s evaluation of evidence that

the jury was required to independently evaluate – raises serious concerns. The

Supreme Court has recognized that “[t]he influence of the trial judge on the jury

is necessarily and properly of great weight and his lightest word or intimation is

received with deference, and may prove controlling.” Quercia v. United States ,

289 U.S. 466, 470 (1933) (internal quotation marks omitted); see also United

States v. Williams , 809 F.2d 1072, 1086 (5th Cir. 1987) (“[A] trial judge has

-12-
enormous influence on the jury and therefore must act with a corresponding

responsibility.”); United States v. Brandom , 479 F.2d 830, 834 (8th Cir. 1973)

(“The trial court commands the attention and respect of the jury. Great care must

be exercised so as to avoid the appearance of advocacy for a particular party.”)

(internal quotation marks omitted); United States v. Marion , 477 F.2d 330, 332

(6th Cir. 1973) (“A jury composed of laymen will be greatly influenced by a

judge’s opinion of credibility.”); United States v. Womack , 454 F.2d 1337, 1343

(5th Cir. 1972) (“It is well known, as a matter of judicial notice, that juries are

highly sensitive to every utterance by the trial judge, the trial arbiter, and that

some comments may be so highly prejudicial that even a strong admonition by the

judge to the jury, that they are not bound by the judge’s views, will not cure the

error.”).

In light of their potential influence upon the jury, the law places certain

restrictions upon statements made by judges about evidence and arguments when

jurors are present. Although federal judges may comment on the evidence, they

“should not become an advocate and argue the case for either side.” Filani , 74

F.3d at 385. If a judge does express an opinion about the facts, he or she must

explain to the jurors that it is their responsibility to arrive at an independent

determination of those facts and that they owe absolutely no deference to the

judge’s assessment. See id. “The point should never be reached where it appears

-13-
to the jury that the judge believes the accused is guilty.” Id.

This circuit has applied these principles to conclude that a trial judge’s

statements deprived the defendant of a fair trial. In Davis v. United States , 227

F.2d 568 (10th Cir. 1955), the judge gave the jury the following instruction:

I feel also it is my duty to state to you that a lot of people don’t realize
what a heinous crime it is to fool with drugs and defendant might not
realize it when he did, but it is a crime. I think you should consider the
fact within your knowledge of the ease or the difficulty of proving a
transaction of the crime charged. I feel obligated to say to you that
under this evidence, I am of the opinion, beyond a reasonable doubt,
that the defendant did commit the act as charged, and I say that so that
in the event you come to the same conclusion, you will know that I am
of the same opinion, and at the time I say it, I don’t take away from you
at all your sole right as the judges of the facts, and if you don’t agree
with me it is your duty to follow your own conscience, and if you did,
I am inclined to believe it would put a reasonable doubt in my mind, but
I feel from my experience I have a duty in this kind of a case to so
express an opinion and I have done it , and at the same time I caution
you to use your own judgment and not put any greater weight on it than
it should have. If you have a reasonable doubt as to the guilt of this
defendant, it would be your duty to acquit him.

Id. at 569 (emphasis added). Noting that the judge’s power to comment on the

evidence “should be exercised cautiously and only in exceptional cases” and that

the crucial facts were disputed, we held that the defendant was entitled to a new

trial. Id. at 570.

We reached a similar conclusion in McBride v. United States , 314 F.2d 75,

76 (10th Cir. 1963). There, the judge concluded his instructions to the jury with

an assessment of the evidence:

-14-
 Now at this point I should like to say, as the third member or
thirteenth member of the jury, that this is a rather simple case.

The facts are clear in my mind that this little corporation was
organized but for one purpose, and that is to use the mails and to
defraud people, little people, out of money.

. . . I can’t help but believe that [the accused’s defense of good
faith is not true ] . . . .

Now I don’t know. He says that he did it in good faith and that
he was employed and that he worked as an employee, that he reported
these things in order that somebody might, the company might make
these loans. I can’t help but believe that the accused here knew well
when he started out that he was going to make a commission and
whether or not he ever saw those poor people or not made little or no
difference to him.

My views are that it’s pretty serious business when we permit the
people to use our mails and take advantage of our people.

Now what I have said to you is simply my views and you must
disregard it. I have nothing to say except that I can make the remarks
as I have; but you must disregard what I have said about this case.

You are the sole jurors of this case. You must pass upon this
evidence yourself, so I am asking you to disregard what I have said to
you with reference to my views. Disregard it completely. Do not
consider anything I have said to you.

Id. (emphasis added). Interpreting these comments as “a statement of the court

that the accused was guilty,” we reversed the conviction and remanded for a new

trial. Id. at 77.

Other circuits have taken a similar approach. See, e.g. , Filani , 74 F.3d at

385-87 (reversing conviction when the judge’s extensive cross-examination of the

-15-
defendant and his repeated interference with defense counsel’s cross-

examinations gave the jury “a powerful impression that the district court agreed

with the government that the defendant was guilty of the crime charged”); United

States v. Diharce-Estrade , 526 F.2d 637, 642 (5th Cir. 1976) (reversing conviction

after judge denied the defendant’s motion for judgment of acquittal in the

presence of the jury). But see United States v. Hester , 140 F.3d 753, 758 (8th Cir.

1998) (concluding that the trial judge’s sua sponte ruling on the admissibility of

coconspirator evidence before the jury, which included a statement that the

evidence was sufficient to find by a preponderance of the evidence that the

defendant was a member of the charged conspiracy, did not warrant a new trial);

United States v. Martin , 740 F.2d 1352, 1357 (6th Cir. 1984), appeal after

remand , 757 F.2d 770 (6th Cir. 1985) (concluding that judge’s remark at bench

conference that the defendant was guilty, overheard by one juror, did not

constitute plain error).

In the instant case, the judge’s statements resemble the statements of the

judges in Davis and McBride in important respects. The characterization of Mr.

Chanthadara’s defense as a “smoke screen” directly concerns the dispositive issue

before the jury, whether he committed the charged crimes. Significantly, the

headline to which the jurors were exposed could be reasonably interpreted as not

limited to a particular contention but to Mr. Chanthadara’s defense generally. Cf.

-16-
United States v. Hardwell , 80 F.3d 1471, 1493 (10th Cir. 1996) (holding the trial

court’s comments on the evidence were not prejudicial because “although they

may have attacked counsel’s integrity, they did not indicate a belief in the

defendants’ guilt”); Williams , 809 F.2d at 1092-93 (considering a newspaper

article’s “effect on [the defendant’s] legal defenses” and concluding the court

erred in failing to voir dire the jury regarding possible exposure because the

content of the article was such that it “place[d] the judge’s official imprimatur on

the credibility of [the government witness’s] testimony” and, therefore, “raise[d]

serious questions of possible prejudice”). The judge’s reference to the “defense

story [as a] ‘a smoke screen’” could be reasonably viewed by the jurors as

condemning a variety of arguments offered by Mr. Chanthadara. Cf. United

States v. Jaynes , 75 F.3d 1493, 1503 (10th Cir. 1996) (noting that, although

common law tradition allows the trial judge to comment on the evidence, “[t]he

court’s comments on the evidence should not mislead or be one-sided.”).

With regard to the effect of the curative instructions, however, there is a

difference between this case and Davis and McBride . In Davis , even though the

judge reminded the jurors that they had an obligation to reach an independent

determination as to the defendant’s guilt, he also told them in the same sentence

that it was his duty to state that he thought the defendant was guilty. See Davis ,

227 F.2d at 569. Moreover, in stating his opinion, the judge referred to his

-17-
experience, thus suggesting that the jurors should give weight to his views. See

id. Similarly, in McBride , the admonishment to the jury not to take the judge’s

views into account was substantially undercut by the boldness of those views, as

well as the fact that he prefaced his remarks by identifying himself as the

“thirteenth member of the jury.” McBride , 314 F.2d at 76.

In contrast, in this case, the court went to some lengths to cure any

prejudice resulting from the jurors’ exposure. As noted above, the court gave

thorough and immediate instructions informing the jury that its decision should be

based solely on the evidence presented at trial. Unlike the judges in Davis and

McBride , the judge here informed the jury that it should not interpret the article

as an expression of his opinion about the case. At issue, then, is whether these

curative measures effectively eradicated the prejudice presumed from the jurors’

external exposure.

Generally, we assume that jurors follow the judge’s instructions. See

United States v. Powell , 469 U.S. 57, 66 (1984) (“Jurors . . . take an oath to

follow the law as charged, and they are expected to follow it.”). Nevertheless, in

some instances, instructions are insufficient to cure the prejudice resulting from

extraneous information received by jurors. See, e.g. , United States v. Saenz , 134

F.3d 697, 713 (5th Cir. 1998) (stating that “[s]ome comments [by the trial judge]

may be so prejudicial that even good instructions will not cure the error”); Filani ,

-18-
74 F.3d at 386 (concluding that curative instructions to the jury stating that they

could decide what version to believe as sole judges of credibility did not cure the

prejudice resulting from the judge’s extensive questioning of witnesses);

Cisneros , 491 F.2d at 1075-76 (holding that the trial judge’s negative comments

on the credibility of a key witness “were simply too harmful to be cured by the

other instructions given to the jury”); United States v. Hoker , 483 F.2d 359, 368

(5th Cir. 1973) (holding that “[n]o amount of boiler plate instructions to the jury

— not to draw any inferences as to the judge’s feelings about the facts from his

asking questions, or that they are free to disregard factual comment by the judge,

or as to the presumption of innocence — could be expected to erase from a jury’s

mind the part taken in this trial by the district judge,” who extensively

cross-examined the defendant).

In our view, the district court’s curative instructions, although

commendably detailed and promptly given, were insufficient to overcome the

prejudice caused by its sweeping denunciation of Mr. Chanthadara’s defense.

When spoken by the official vested with the power of the United States

government and controlling the trial, the vivid, memorable “smoke screen”

characterization is the sort of comment that a reasonable juror, even though

properly instructed and acting in good faith, would find extremely difficult to

disregard.

-19-
 The assurances of the individual jurors that the judge’s statement would not

affect their deliberations do not alter this conclusion. Compare United States v.

Williams , 568 F.2d 464, 471 (5th Cir. 1978) (concluding that, when determining

jury bias, individual assurances in response to the judge’s voir dire regarding

exposure to publicity may be considered but are not controlling), and Waldorf v.

Shuta , 3 F.3d 705, 711 (3d Cir. 1993) (“Recognizing that the effect of exposure to

extrajudicial, collateral information on a juror’s deliberations may be substantial

even though it is not perceived by the juror himself and recognizing that a juror’s

good faith may not be sufficient to counter this effect, courts have concluded that

such assurances from jurors may not be adequate to eliminate the harm done by

exposure to prejudicial information, including news reports.”); with United States

v. Angiulo , 897 F.2d 1169, 1186 (1st Cir. 1990) (relying on juror’s statement of

continued impartiality when articles to which jurors were exposed were not

prejudicial), and United States v. Butler , 822 F.2d 1191, 1196 (D.C. Cir. 1987)

(concluding that a juror’s statement that an improper contact would have no

bearing was reliable when the contact was “innocuous”).

Nonetheless, the prejudice presumed, even if not cured by subsequent

instructions and juror assurances of impartiality, may be proven harmless if the

government can establish there was overwhelming evidence of the defendant’s

guilt. See Davis , 60 F.3d at 1485 (“[T]he most common means of demonstrating

-20-
the harmlessness of an extraneous contact is to show the existence of

overwhelming evidence of the defendant’s guilt.”) (internal quotation marks

omitted). 2
Accordingly, we must examine the record to determine whether the

evidence presented by the government comports with this high standard.

In one count, Mr. Chanthadara was charged with violating 18 U.S.C. §

924(j)(1), which requires proof that he “caused the death of the victim while

using a firearm to commit a crime of violence.” In this regard, it is significant

that he was also charged, pursuant to 18 U.S.C. § 2, with aiding and abetting the

commission of a § 924(j)(1) violation. Thus, the jury was not required to find

that Mr. Chanthadara himself killed Mrs. Sun. Instead, it could convict Mr.

Chanthadara under an aiding and abetting theory if someone else committed the

crime but he “1. [k]new that the crime charged was to be committed . . . 2.

[k]nowingly did some act for purpose of aiding . . . the commission of the crime;

and 3. [a]cted with the intention of causing the crime charged to be committed.”

2
In support of the contention that the evidence against Mr. Chanthadara
was overwhelming, the government points to the decision in Mr. Nguyen’s appeal
before this court, noting the evidence “unequivocally showed” that Chanthadara
“sho[t] Mrs. Sun during the course of a robbery.” See Aple’s Br. at 26 (quoting
United States v. Nguyen , 155 F.3d 1219, 1225 (10th Cir. 1998)). It is not helpful
that the evidence in Mr. Nguyen’s case “unequivocally” implicated Mr.
Chanthadara, for it was neither in the government’s nor Mr. Nguyen’s interest to
dispute such evidence. Further, we cannot rely on the Nguyen court’s assessment
of the evidence to establish Mr. Chanthadara’s guilt. To do so would at a
minimum violate Mr. Chanthadara’s Sixth Amendment right to confront the
witnesses against him in a fair trial.

-21-
Add’m to Aplt. Br., doc. J, at Jury Instr. 23.

Moreover, one is guilty under 18 U.S.C. § 924(j)(1) if, during the course of

a violation of § 924(c), he causes the death of a person through the use of a

firearm and if that killing constituted a murder as defined in 18 U.S.C. § 1111.

Mrs. Sun was killed during the course of a robbery. This killing constitutes a

felony murder under § 1111(a).

“We have interpreted § 1111(a) and the felony murder doctrine to mean that

a person who commits a dangerous felony, such as a robbery, ‘is guilty of murder

if a death occurs during the commission of [the] felony.’” Nguyen , 155 F.3d at

1225 (quoting Montoya v. United States Parole Comm’n , 908 F.2d 635, 638 (10th

Cir.1990)). “[B]ecause § 924(j) incorporates § 1111 and its felony murder

doctrine, a principal can violate § 924(j) even absent a specific intent to kill.”

United States v. Kayarath , 962 F. Supp. 1399, 1402 (D. Kan. 1997). Therefore,

“[i]t follows that aiding and abetting does not require such an intent and that, like

a principal, an aider and abettor can be liable for murder based upon his intent to

commit robbery if a co-participant in the robbery causes the death of the victim

through the use of a firearm.” Id. ; see also Nguyen , 155 F.3d at 1225 (concluding

that, to convict a defendant of aiding and abetting a § 924(j)(1) violation, the

government need only prove he “intended to commit the robbery and that a killing

occurred in the course of that robbery” and that

-22-
“no additional proof of state of mind is necessary”). Thus, pursuant to the

principles of aiding and abetting and the felony murder doctrine, we consider the

strength of the evidence establishing Mr. Chanthadara willfully participated in a

robbery during which a killing occurred.

Upon review of the record, we conclude that the government’s evidence

was overwhelming. Several witnesses recalled hearing Mr. Chanthadara discuss a

robbery during the party at Mr. Namphengsone’s duplex on the night the

Mandarin Chinese Restaurant robbery took place. One of these witnesses

specifically overheard Mr. Chanthadara arguing with Mr. Nguyen over who was

going to hold the gun. Another witness claimed to see Mr. Chanthadara handling

a gun at the party as well. Others testified they observed Mr. Chanthadara leave

the party with Mr. Nguyen, Mr. Namphengsone, and Mr. Kayarath just prior to the

robbery. The four men returned with a gun, a pile of money, and a cellular phone

that had not previously been seen at the party. Mr. Sun testified that

approximately $200 and a cellular phone were taken from the restaurant during

the robbery.

In addition to witness testimony, investigators located a palm print in the

restaurant following the robbery and identified it as Mr. Chanthadara’s. Cf. Jones

v. Hoffman , 86 F.3d 46, 47-48 (2d Cir. 1996) (concluding there was “ample

evidence” to support the conclusion that the defendant aided and abetted the

-23-
robbery, and therefore could be found liable for felony murder, where defendant

met his co-defendants at a party on the night of the robbery murder, all three were

armed, he accompanied his co-defendants after being explicitly advised of their

plans to rob someone and steal a car, and defendant’s palm print was found at

crime scene on the fender of a car near the victim’s body). At the very least, the

government established from all of this evidence that Mr. Chanthadara aided and

abetted a robbery during which a killing occurred. See, e.g. , Chaney v. Brown ,

730 F.2d 1334, 1350 (10th Cir. 1984) (holding that an error arising from

undisclosed evidence inferring defendant did not commit the murders was

harmless because, in light of aiding and abetting theory and felony murder

doctrine, the defendant’s conviction for first-degree murder was supported by

overwhelming circumstantial evidence establishing he participated at least as an

aider and abettor in the kidnapping, in the course of which the victim’s murder

occurred).

Mr. Chanthadara was also charged with violating 18 U.S.C. § 1951(a),

commonly known as the Hobbs Act. Section 1951(a) provides, in relevant part,

that “[w]hoever in any way or degree obstructs, delays, or affects commerce or

the movement of any article or commodity in commerce, by robbery” shall be

guilty of an offense against the United States. Mr. Chanthadara was additionally

charged under 18 U.S.C. § 2 with aiding and abetting a Hobbs Act violation.

-24-
 Because we have already concluded there existed overwhelming evidence

that Mr. Chanthadara aided and abetted the robbery, we must proceed to consider

whether there was overwhelming evidence that the robbery of the Mandarin

Chinese Restaurant affected interstate commerce “in any way or degree.” 18

U.S.C. § 1951(a). In Nguyen , we reiterated that a violation of the Hobbs Act

requires proof of only a de minimis effect on interstate commerce.

We have held that a depletion of assets potentially affecting interstate
commerce constitutes a sufficient nexus to interstate commerce under
the Hobbs Act. To establish this de minimis effect on interstate
commerce the government must show that the crime depleted the assets
of a business engaged in interstate commerce, thereby curtailing the
victim’s potential as a purchaser of goods.

Nguyen , 155 F.3d at 1228 (emphasis added); see also United States v. Zeigler , 19

F.3d 486, 495 (10th Cir. 1994) (“The Hobbs Act’s jurisdictional predicate can be

satisfied if a mere de minimis effect on interstate commerce is shown.”). We

further held that the jury could consider Mrs. Sun’s death and the money stolen

from her purse in assessing the effect on interstate commerce. See id. at 1227.

Mr. Chanthadara does not dispute that approximately seven percent of the

Mandarin restaurant’s total expenses was comprised of out-of-state food

purchases and that the restaurant’s revenues included those generated through the

use of interstate credit cards. He also does not dispute that, following the

robbery, the police ordered the restaurant to be closed for twenty-two days for

investigation. Both Mr. Sun and the FBI’s accounting expert testified that the

-25-
restaurant’s revenues and interstate purchases dropped markedly after the robbery,

causing the previously profitable business to close five months after it re-opened.

Mr. Chanthadara concedes “the lengthy police closure order and the decision of

some people to dine elsewhere may have had an eventual impact on the

restaurant’s level of out of state purchasing.” Aplt’s Br. at 78. Because the

government only needed to prove the robbery had a de minimis effect on

interstate commerce, we conclude there was overwhelming evidence establishing

this element of the crime. See United States v. Balsam , 203 F.3d 72, 89 (1st Cir.

2000) (erroneous instruction on Hobbs Act count was harmless where defendant

did not dispute overwhelming evidence establishing businesses at issue sold

goods that moved in interstate commerce).

Thus, the evidence supporting both of Mr. Chanthadara’s convictions was

overwhelming. Accordingly, the jurors’ exposure to the judge’s smoke screen

comment was harmless beyond a reasonable doubt as to Mr. Chanthadara’s

convictions. 3

2. Jencks Act

John Massey, a fingerprint expert employed by the FBI, identified the palm

3
In a subsequent section of this opinion, we will consider whether the
jurors’ exposure to the smoke screen article was harmless to Mr. Chanthadara at
sentencing.

-26-
print found on the broken glass from the display case in the restaurant as Mr.

Chanthadara’s. After Mr. Massey testified, the defense moved pursuant to the

Jencks Act for production of all transcripts in the government’s possession of Mr.

Massey’s prior expert testimony. The Assistant United States Attorney stated that

he had “no transcripts of [Mr. Massey’s] testimony in any other trial in any other

district during any of [Mr. Massey’s] tenure as an expert.” Rec. vol. 41, at 2348.

The district court denied the motion.

Under the Jencks Act, “[a]fter a witness called by the United States has

testified on direct examination, the court shall, on motion of the defendant, order

the United States to produce any statement . . . of the witness in the possession of

the United States which relates to the subject matter as to which the witness has

testified.” 18 U.S.C. § 3500(b). “Violations of the Jencks Act are subject to

harmless error analysis.” United States v. Woodlee , 136 F.3d 1399, 1412 (10th

Cir. 1998). “The hope is that these statements will afford the defense a basis for

effective cross-examination of government witnesses and the possible

impeachment of their testimony without overly burdening the government with a

duty to disclose all of its investigative material.” United States v. Johnson , 200

F.3d 529, 534 (7th Cir. 2000).

Mr. Chanthadara cites no authority for his contention that prior trial

testimony of an expert witness is Jencks material. Several circuits have held that

-27-
prior trial testimony is not within the scope of the Jencks Act because the witness

statements contained therein are a matter of public record rather than being

secreted within the government’s files. See United States v. Albanese , 195 F.3d

389, 393 (8th Cir. 1999) (“[The government witness] gave his prior testimony at a

public proceeding, so the government’s failure to turn over a transcript of prior

testimony violated neither [ Brady v. Maryland , 373 U.S. 83 (1963),] nor the

Jencks Act”); United States v. Jones , 160 F.3d 473, 479 n.5 (8th Cir. 1998)

(stating that matters of public record are “not within the scope of the Jencks

Act”); United States v. Chen , 131 F.3d 375, 378 (4th Cir. 1997) (holding

government’s failure to provide defendants with transcript copy of witness’s prior

testimony in juvenile proceeding did not violate Jencks Act because government

did not have custody of transcript of sealed juvenile proceedings); United States

v. Isgro , 974 F.2d 1091, 1095 (9th Cir.1992) (holding that “trial testimony is not

within the scope of the Jencks Act”); United States v. Hensel , 699 F.2d 18, 39-40

(1st Cir. 1983) (stating that “a transcript of a witness’s testimony in a prior trial

does not come within the language of the Jencks Act”); United States v. Lurz , 666

F.2d 69, 79 (4th Cir.1981) (concluding no Jencks violation by the government

where the defendant was unable to obtain a transcript of a government witness’s

prior testimony because the transcript was in the possession of the court reporter,

who is not an agent of the government); United States v. Harris , 542 F.2d 1283,

-28-
1293 (7th Cir.1976) (“[A] transcript of a witness’s testimony in a prior trial is not

within the Jencks Act.”); United States v. Munroe , 421 F.2d 644, 645 (5th Cir.

1970) (same) . In accordance with the reasoning of our sister circuits, we

similarly conclude transcripts of prior testimony are not Jencks material. As a

result, the district court did not err in finding Mr. Chanthadara was not entitled

under the Jencks Act to transcripts of all of Mr. Massey’s prior testimony.

3. Vienna Convention

Mr. Chanthadara is a Laotian national. Laos and the United States are both

parties to the Vienna Convention on Consular Relations, a treaty signed under the

authority of the United States. Article 36 of the Vienna Convention provides:

[I]f he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any
other manner. Any communication addressed to the consular post by
the person arrested, in prison, custody, or detention shall also be
forwarded by said authorities without delay. The aid authorities shall
inform the person concerned without delay of his rights under this sub-
paragraph.

Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 101

T.I.A.S. No. 6820.

Mr. Chanthadara argued in a post-trial motion that the failure to notify him

of his rights under this Article, and the failure to notify the Laotian consulate,

-29-
violated the Vienna Convention and therefore constituted reversible error.

Because he did not raise this issue until after his trial, we review for plain error.

See Fed. R. Crim. P. 52(b).

The government contends Mr. Chanthadara does not have standing to raise

this issue. It asserts the Vienna Convention gives rights and duties to the party

nations, but not the individuals affected. In support of its argument, the

government cites Breard v. Greene , 118 S. Ct. 1352 (1998), for the proposition

that “neither the text nor the history of the Vienna Convention clearly provides a

foreign nation a private right of action in the United States’ courts to set aside a

criminal conviction and sentence for a violation of consular notification

provisions.” Id. at 1356 (emphasis added). In Breard , the Supreme Court refused

to grant habeas relief when the Paraguayan government sought to stay the

execution of a Paraguayan national. The government also suggests the absence of

clear textual support in the Convention for an individual right establishes that no

such right exists.

Contrary to the government’s position, the Supreme Court in Breard

“treated the issue of whether the provision creates any judicially enforceable

rights as an open question, stating . . . that the Vienna Convention ‘arguably’

creates individual rights.” United States v. Lombera-Camorlinga , 206 F.3d 882,

885 (9th Cir. 2000) (en banc) (citing Breard , 118 S. Ct. at 1355). In our view, it

-30-
is neither appropriate nor necessary to decide this unresolved issue under the facts

presented here. See id. at 886 (“[A]ssuming that some judicial remedies are

available for the violation of Article 36, the exclusion in a criminal prosecution of

evidence obtained as the result of post-arrest interrogation is not among them.”);

United States v. Li , 206 F.3d 56, 60 (1st Cir. 2000) (“hold[ing] that irrespective

of whether or not the [Vienna Convention] create[s] individual rights to consular

notification, the appropriate remedies do not include suppression of evidence or

dismissal of the indictment”).

Even presuming the Vienna Convention creates individually enforceable

rights, Mr. Chanthadara has not demonstrated that denial of such rights caused

him prejudice. Mr. Chanthadara lived in the United States since he was six years

old. He has not lived in Laos since he was three. He speaks fluent English and

has indicated no link to Laos other than technical citizenship. As the district

court noted, Mr. Chanthadara never requested officials to contact the Laotian

consulate. See United States v. Ademaj , 170 F.3d 58, 67 (1st Cir.), cert. denied ,

120 S. Ct. 206 (1999) (rejecting Fifth Amendment due process claim, based on

violation of Vienna Convention, on plain error review because appellant had not

shown prejudice due to the alleged violation). Therefore, he cannot establish

plain error in the district court’s denial of his post-trial motion for acquittal on

this ground.

-31-
 4. The Kansas Jury-Selection System

Mr. Chanthadara asserts the jury-selection system in the District of Kansas

systematically excludes blacks and Hispanics from the jury pool in violation of

the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. §

1861-78. This court has recently rejected a nearly identical challenge to the same

jury-selection system. See United States v. Shinault , 147 F.3d 1266, 1270-73

(10th Cir.), cert. denied , 525 U.S. 988 (1998). We review the factual findings of

the district court for clear error, and the court’s legal determination of whether a

prima facie violation was established de novo. See id. at 1271.

The District of Kansas creates its Master Jury Wheel, from which potential

jurors will be randomly selected, from actual voter lists. Blacks account for 7.90

% of the over-seventeen population of the district. Yet in the Master Jury Wheel

blacks account for 4.67 %. Thus, there is an absolute disparity between the over-

seventeen black population and the black representation in the Jury Wheel of 3.23

%. Hispanics account for 2.74 % of the over-seventeen population in the district,

and for 1.14 % of the jury wheel. The absolute disparity between the over-

seventeen Hispanic population and Hispanic representation on the Jury Wheel is

1.60 %.

In order to establish a prima facie violation of the Sixth Amendment fair

cross-section requirement, the defendant must show:

-32-
 (1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the
jury-selection process.

Duren v. Missouri , 439 U.S. 357, 364 (1979). The government concedes, as it

did in Shinault , that the first requirement is met – blacks and Hispanics each are

distinctive groups in the community. As to the second requirement, the

government argues Mr. Chanthadara has not shown that blacks and Hispanics

were sufficiently under-represented to establish a prima facie violation.

“In this circuit, absolute disparity . . . is the starting place for all other

modes of comparison.” Shinault , 147 F.3d at 1273 (quotation omitted).

“Absolute disparity measures the difference between the percentage of the group

in the general population and its percentage in [the group qualified for jury

service].” Id. at 1272. Yet absolute disparities are of a limited value when

considering small populations. See id. at 1273 (noting that “even the complete

exclusion of the groups would result in absolute disparities of less than 6%”).

Comparative disparities present similar problems. They assess the

“decreased likelihood that members of an underrepresented group will be called

for jury service, in contrast to what their presence in the community suggests it

should be.” Id. at 1272. Comparative disparities are determined “by dividing the

absolute disparity of the group by that group’s percentage in the general

-33-
population.” Id. “While these numbers may be more indicative of a Sixth

Amendment violation, they too are distorted by the small population of the

different minority groups.” Id. The importance of the comparative disparity

figure, therefore, is directly proportional to the size of the group relative to the

larger community. We must consider both absolute and comparative disparities to

determine whether a violation has occurred.

The Shinault court determined that comparative disparities of 59.84, 50.09,

and 48.63 % failed to establish a prima facie violation where the groups in

question comprised 1.27, 5.11, and 2.92 % of the population, respectively. In the

present case, Mr. Chanthadara presents evidence that blacks, who account for 7.9

% of the district’s population, have a comparative disparity of 40.89 %, while

Hispanics, who make up 2.74 % of the district’s population, have a comparative

disparity of 58.39 %. These proportions of relative group size and comparative

disparity here do not establish a prima facie violation. But see LaRoche v. Perrin ,

718 F. 2d 500, 502-03 (1st Cir. 1983) (prima facie violation established where

comparative disparity was 68.22 % and group comprised 38.4 % of population),

overruled on other grounds by Barber v. Ponte , 772 F.2d 982 (1st Cir. 1985).

Finally, Mr. Chanthadara argues the further calculus of standard deviations,

not presented in Shinault , should establish a prima facie violation. Standard

deviations are not helpful in this case. Here, such calculations merely represent a

-34-
manipulation of the same numbers that we have held were not sufficient to

establish a prima facie violation of the Sixth Amendment. Shinault is controlling.

Therefore, the district court did not err in denying Mr. Chanthadara’s motion to

dismiss and quash the petit jury venire on this ground.

5. Jury Instructions

a. Second-Degree Murder Instruction

Mr. Chanthadara argues that the district court erred in refusing to give a

lesser included offense instruction for second-degree murder. His argument

requires us to determine whether, under federal law, second-degree murder is a

lesser included offense of felony murder, the crime with which Mr. Chanthadara

was charged. We engage in de novo review of that legal question. See United

States v. Duran , 127 F.3d 911, 914 (10th Cir. 1997).

This circuit has established a four-part test to determine whether a lesser

included offense instruction is warranted:

[A] lesser included offense instruction is to be given when [1]
there is a proper request for one; [2] the lesser included offense
consists of some, but not all, the elements of the offense charged; [3]
proof of the element or elements differentiating the lesser and greater
offenses is a matter in dispute; and [4] a jury could rationally convict
on the lesser offense and acquit on the greater offense.

United States v. Abeyta , 27 F.3d 470, 473 (10th Cir. 1994); see also United States

v. Beck , 447 U.S. 625, 635 (1980) (“In the federal courts, it has long been

-35-
‘beyond dispute that the defendant is entitled to an instruction on a lesser

included offense if the evidence would permit a jury rationally to find him guilty

of the lesser offense and acquit him of the greater.’” quoting Keeble v. United

States , 412 U.S. 205, 208 (1973)). As to the second inquiry, the Supreme Court

has held that “one offense is not ‘necessarily included’ in another unless the

elements of the lesser offense are a subset of the elements of the charged

offense.” Schmuck v. United States , 489 U.S. 705, 716 (1989). To be a “subset”

of the greater offense, “the lesser [offense] must be such that it is impossible to

commit the greater without first having committed the lesser.’” Id. at 719 (quoting

Giles v. United States , 144 F.2d 860, 861 (9th Cir. 1944) (internal quotation

marks omitted). Accordingly, when “the lesser offense requires an element not

required for the greater offense, no instruction is to be given.” Id. at 716.

In this case, count 2 of the indictment charged Mr. Chanthadara with use of

a firearm during a crime of violence under circumstances constituting first-degree

murder as defined in 18 U.S.C. § 1111(a). See Add’m to Aplt. Br., doc. A; 18

U.S.C. §§ 924(c)(1), 924(j)(1). The government chose to proceed under a felony

murder theory to first-degree murder under § 1111(a), which includes in the

definition of first-degree murder “every murder . . . committed in the perpetration

of . . . robbery.” Therefore, the jury was instructed that, in order to convict Mr.

Chanthadara on Count 2, it had to find the following elements beyond a

-36-
reasonable doubt: (1) the defendant robbed the restaurant, as charged in count

one; (2) the defendant knowingly used or carried a firearm during and in relation

to the robbery; (3) during the robbery, the defendant directly caused the death of

Mrs. Sun by use of the firearm; (4) the killing was murder, “that is, the unlawful

killing of a human being with malice aforethought.” See Aplt. Add’m at J, Guilt

Phase Jury Instruction No. 17.

In contrast to first-degree felony murder, second-degree murder requires the

government to prove: (1) the unlawful killing of a human being, and (2) malice

aforethought. See United States v. Pearson , 203 F.3d 1243, 1271 (10th Cir.

2000). Mr. Chanthadara thus argues that second-degree murder is a lesser

included offense of felony murder because it consists of some, but not all, of the

same elements.

Under a literal reading of the federal statute, “malice aforethought” is an

element of every type of murder. See 18 U.S.C. § 1111(a) (stating generally that

“murder is the unlawful killing of a human being with malice aforethought”).

However, the meaning of “malice aforethought” differs with respect to each kind

of murder. Because the malice aforethought required for second-degree murder is

different in kind, as opposed to degree, than the malice required for felony

murder, we cannot conclude that second-degree murder is necessarily subsumed

by felony murder.

-37-
 As to first degree felony murder, “to prove the ‘malice aforethought’

element . . . , the prosecution only need show commission of the specified

felony.” United States v. Pearson , 159 F.3d 480, 485 (10th Cir. 1998); see also

Pearson , 203 F.3d 1243, 1271 (10th Cir. 2000); Nguyen , 155 F.3d at 1225-26.

Because malice aforethought is proved by commission of the felony, there is no

actual intent requirement with respect to the homicide.

In contrast, the “malice aforethought” that must be established for second-

degree murder requires proof of malice with respect to the homicide. “Second-

degree murder’s malice aforethought element is satisfied by: (1) intent-to-kill

without the added ingredients of premeditation and deliberation; (2) intent to do

serious bodily injury; (3) a depraved-heart; or (4) commission of a felony when

the crime does not fall under the first-degree murder paragraph of § 1111(a).” See

Pearson , 203 F.3d at 1271. In light of this difference in the meaning of “malice

aforethought” in felony murder and second-degree murder, “the lesser offense

[second-degree murder] requires an element not required for the greater offense

[felony murder].” See Schmuck , 489 U.S. at 716.

The only case of which we are aware that specifically addresses whether

second-degree murder is a lesser included offense of felony murder under §

1111(a) is United States v. Chischilly , 30 F.3d 1144, 1159-60 (9th Cir. 1994).

Applying the elements test adopted in Schmuck , the Ninth Circuit concluded:

-38-
 Unlike second-degree murder, conviction for felony murder under 18
U.S.C. § 1111 requires the commission of an enumerated felony with
the requisite mens rea for the underlying offense. Obversely, second-
degree murder requires proof that defendant acted with malice
aforethought, whereas under a felony murder charge the commission of
the underlying offense substitutes for malice aforethought. Therefore,
the elements of second-degree murder are not a subset of the elements
of first-degree felony murder, for “each offense requires proof of an
element that the other does not.”

Id. (quoting Whalen v. United States , 445 U.S. 684, 693 n.7 (1980)).

Although our decision in Franks v. Alford , 820 F.2d 345 (10th Cir. 1987)

does not concern the federal murder statutes, its reasoning supports the Ninth

Circuit’s view in Chischilly . There, we held that, in downgrading a felony murder

conviction under state law, the Oklahoma Court of Criminal Appeals had

proceeded under the erroneous assumption that second-degree murder was a lesser

included offense of first-degree felony murder. Noting that second-degree murder

under Oklahoma law requires proof of depraved mind, we stated that “[second

degree] murder is not a lesser included offense of felony murder because it

requires proof of a mental state that felony murder does not.” Id. at 347.

That principle applies with force here. Just as under Oklahoma law,

second-degree murder under federal law requires proof of malice towards the

homicide whereas felony murder does not. The fact that the Oklahoma felony

murder statute states that the death may occur “regardless of malice” does not

make the reasoning of Franks inapplicable. Regardless of the differences in

-39-
wording between the Oklahoma felony murder statute and felony murder under 18

U.S.C. § 1111(a), both statutes “permit[] a conviction for murder when a death

occurs in connection with a defendant’s commission of an underlying felony[,]”

and “[t]he defendant’s state of mind with respect to the death is irrelevant.” Id. at

347.

For these reasons we hold that second-degree murder is not a lesser

included offense of felony murder under § 1111(a). See Chischilly , 30 F.3d at

1159-60; cf. Franks , 820 F.2d at 347. Accordingly, Mr. Chanthadara was not

entitled to an instruction on second-degree murder.

b. Malice Instruction

Mr. Chanthadara also challenges the court’s instruction on malice, arguing

that it set a lesser standard than required by the applicable law. In defining

“malice aforethought,” the court instructed the jury it would be present if there

was intent to kill or if the killing “results from the commission of a robbery.” See

Add’m to Aplt. Br., doc. J, Guilt Phase Jury Instruction No. 19. The district

court’s instruction comports with well-established Tenth Circuit law as well as

the common law of felony murder. See Pearson , 159 F.3d at 485 (“‘[M]alice

aforethought’ is a term of art which has several definitions, including, in the

felony murder context, proof of commission of the specified felony.”) (citing

-40-
Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law §§ 7.1(a), 7.5(e)-(h) (2d

ed. 1986)). Therefore, the jury instruction defining malice aforethought was not

erroneous. 4

c. Hobbs Act Instructions

Mr. Chanthadara further challenges his conviction on grounds that the jury

instructions on the interstate element required for a Hobbs Act violation were

erroneous. We review the legal correctness of these instructions de novo and

refusal to deliver a particular instruction for abuse of discretion. See United

States v. Voss , 82 F.3d 1521 (10th Cir. 1996).

Mr. Chanthadara first challenges the instruction stating that the element is

satisfied when interstate commerce is “actually or potentially delayed, obstructed,

4
The district court’s instruction defining the elements of first-degree
murder is not erroneous, but it is redundant when combined with the instruction
defining malice aforethought. According to instruction 17, the four requirements
for the government to sustain its burden on count two were: (1) commission of the
robbery; (2) knowing use of a firearm during the robbery; (3) causing the death of
Mrs. Sun during the robbery; and (4) doing so unlawfully with malice
aforethought. Then, instruction 19 describes a killing done with malice
aforethought as one resulting “from the commission of a robbery.” Add’m to
Aplt’s Br., doc. J. Combining these instructions, the fourth requirement for
conviction on the murder charge, “malice aforethought,” is no more than the
combination of the first and third requirements – a robbery and that the killing
happened in commission of the robbery. The redundancy did not prejudice Mr.
Chanthadara. It does, however, clarify why Mr. Chanthadara might have
erroneously believed he was entitle to a lesser included offense instruction on
second-degree murder.

-41-
or affected in any way or degree.” Add’m to Aplt’s Br., doc. J, Guilt Phase Jury

Instruction No. 11. He maintains that this instruction improperly allows a

conviction for a Hobbs Act violation for acts beyond Congress’ Commerce Clause

power to regulate.

We have expressly rejected this argument. See United States v. Bolton , 68

F.3d 396, 399 (10th Cir. 1995); Nguyen , 155 F.3d at 1226-27. Absent an

intervening change in the law, which is not present in this case, or en banc

review, we cannot review the judgment of another panel of this court. See In re

Smith , 10 F.3d 723, 724 (10th Cir. 1993).

Mr. Chanthadara further argues the reference to a “potential” effect on

interstate commerce in the instruction would be permissible only if the

government had pursued a conviction under an attempt theory, which it did not.

This argument is also precluded by Nguyen . See Nguyen 155 F.3d at 1228 n.3

(“Defendant’s argument that the use of the potential or probable language is

limited to extortion or attempt cases is invalid.”).

Mr. Chanthadara also challenges the court’s instructions allowing the jury

to consider the items of value taken from Mrs. Sun’s purse. He argues that these

personal items were not shown to be in the stream of interstate commerce. In

Nguyen , this court rejected the same argument regarding the same instructions.

See id. at 1227 (holding that the jury “could appropriately consider the money

-42-
stolen from Mrs. Sun’s purse for its impact on commerce” because it was “stolen

during the course of the robbery of the restaurant” and was taken “from the purse

that belonged to an owner and operator of a business engaged in interstate

commerce”). Mr. Chanthadara seeks to distinguish Nguyen on the ground that, in

that case, it was never established that the restaurant was owned by a corporation

and not by Mr. and Mrs. Sun. The distinction is specious, as it merely

talismanically invokes the corporate label while ignoring the fact that the

corporation is comprised solely of Mr. and Mrs. Sun.

Finally, Mr. Chanthadara argues the proven impact on interstate commerce

was so minimal that, absent a clearer instruction to the jury as to what constitutes

sufficient impact, the district court prejudicially reduced the burden on the

government to establish the interstate element for a Hobbs Act violation. Again,

this argument is precluded by our prior decisions in Bolton , 68 F.3d at 399, and

Nguyen , 155 F.3d at 1227-29. Accordingly, there was no error in the jury

instructions defining the elements of a Hobbs Act violation.

6. Singleton

Finally, citing United States v. Singleton , 144 F.3d 1343 (10th Cir. 1998),

Mr. Chanthadara claims his conviction should be reversed because the

prosecution violated 18 U.S.C. § 201(c)(2). On en banc review, this court has

-43-
since reversed Singleton , and we are bound by the en banc ruling that § 201 does

not prohibit a prosecutor, acting as an agent of the government, from making “a

concession normally granted by the government in exchange for testimony.” See

United States v. Singleton , 165 F.3d 1297, 1302 (10th Cir.) (en banc), cert.

denied , 119 S. Ct. 2371 (1999).

B. Challenges to the Death Sentence

1. Aggravating Factors

Mr. Chanthadara challenges three of the aggravating factors presented to

the jury for consideration in its decision between a sentence of life imprisonment

and death. Specifically, he challenges the non-statutory intent factor, as well as

the two statutory factors: the commission of the offense in a heinous, cruel, or

depraved manner and commission of the offense in consideration for, or

expectation of, pecuniary gain.

a. Non-statutory Intent Factor

As a non-statutory aggravating factor, the district court instructed the jury

to consider the intent with which Mr. Chanthadara entered into the act of

violence. Mr. Chanthadara objects to this instruction on the ground that it merely

duplicated one of the gateway factors required before a defendant is even eligible

-44-
for the death penalty and, as such, failed to narrow the field of defendants.

Our court has specifically rejected this argument. See United States v.

McCullah , 76 F.3d 1087, 1109 (10th Cir. 1996) (“While [the aggravating factors]

. . . may mirror the intent element found at the guilt phase, this is permissible.”);

cf. Lowenfield v. Phelps , 484 U.S. 231, 246 (1988) (holding “the fact that the

aggravating circumstance duplicated one of the elements of the crime does not

make [a death] sentence constitutionally infirm”). The Constitution requires that

a capital sentencing scheme “genuinely narrow the class of persons eligible for

the death penalty and [] reasonably justify the imposition of a more severe

sentence on the defendant compared to others found guilty of murder.” Zant v.

Stephens , 462 U.S. 862, 877 (1983). Here, the element of specific intent

adequately performs this constitutionally required narrowing. Therefore, the

duplication of a factor between the gateway factors and aggravating factors does

not undermine the constitutional validity of the sentence. See McCullah , 76 F.3d

at 1109.

b. Especially Heinous, Cruel, or Depraved Conduct

The district court instructed the jury to determine whether “the defendant

committed the offense in an especially heinous, cruel, or depraved manner in that

it involved torture or serious physical abuse to the victim.” 18 U.S.C. §

-45-
3592(c)(6); Add’m to Aplt’s Br., doc. N, Penalty Phase Instr. No. 12. Mr.

Chanthadara contends the court’s instruction was erroneous for the following

reasons.

First, he suggests the instruction improperly permitted the jury to consider

abuse inflicted on the victim after she lost consciousness or died. The heinous,

cruel, or depraved instruction reads, in part:

To establish that the defendant killed Barbara Sun in an especially
heinous, cruel, or depraved manner, the United States must prove that
defendant’s actions involved either torture or serious physical abuse to
Barbara Sun.

...

Serious physical abuse — unlike torture — may be inflicted either
before or after death and does not require that Barbara Sun be conscious
of the abuse at the time it was inflicted.

Add’m to Aplt’s Br., doc. N, Penalty Phase Jury Instruction No. 12. Mr.

Chanthadara does not suggest a constitutional problem with allowing the jury to

consider abuse to the victim after death as an aggravating factor, rather, he argues

the district court misinterpreted § 3592(c)(6).

Only the Fifth Circuit seems to have addressed the issue of whether §

3592(c)(6) applies to abuse occurring after loss of consciousness or death. In

United States v. Hall , 152 F.3d 381, 415 (5th Cir. 1998), abrogated on other

grounds in United States v. Martinez-Salazar , 120 S. Ct. 744 (2000), the Fifth

Circuit upheld § 3592(c)(6) instructions nearly identical to the one given in this

-46-
case. The Hall court concluded that the jury could consider conduct that occurred

after the victim lost consciousness because it indicated that “the killing was

committed in a depraved manner in that it provide[d] an indication that Hall

relished in the killing.” Hall , 152 F. 3d at 415 (citation omitted); cf. Richmond v.

Lewis , 506 U.S. 40, 51 (1992) (indicating that “gratuitous violence” factor of a

state’s “heinous and depraved” aggravating circumstance could constitutionally be

applied to defendant who ran over victim twice with car, regardless of whether he

knew the victim died after the first pass). Mr. Chanthadara directs us to no

authority suggesting an alternate construction of § 3592(c)(6), and therefore we

see no error in the district court’s instruction here.

Second, Mr. Chanthadara contends the instruction was erroneous because it

failed to instruct the jury that mental harm sufficient to establish torture must be

“prolonged.” Again, this argument is not a constitutional challenge but rather one

asserting the proper construction of § 3592(c)(6). Mr. Chanthadara argues the

“prolonged” language was necessary because 18 U.S.C. § 2340(2) requires mental

harm to be “prolonged” in order to constitute “torture.”

Mr. Chanthadara’s reliance on the definition of torture in § 2340(2) is

misplaced. The definition of “torture” in § 2340 is limited to the use of that word

in Chapter 113C, of which § 3592(c)(6) is not a part. Moreover, the definition

begins with the following language— “‘torture’ means an act committed by a

-47-
person acting under the color of law . . . .”—which further demonstrates its

misapplication in this context. 18 U.S.C. § 2340(1). Consequently, we find this

argument to be without merit.

Mr. Chanthadara next suggests the instruction was erroneous because it

failed to require that the abuse “significantly exceed” that necessary to cause

death. This seems to be an assertion that the factor without such limitation is

unconstitutionally vague—a standard that “fails adequately to inform juries what

they must find to impose the death penalty and as a result leaves them and

appellate courts with the kind of open-ended discretion which was held invalid in

Furman v. Georgia [, 408 U.S. 238 (1972)); United States v. Jones , 132 F.3d 232,

249, aff’d 527 U.S. 373 (1999) (citing Maynard v. Cartwright , 486 U.S. 356, 361-

62 (1988)).

“As long as an aggravating factor has a core meaning that criminal juries

should be capable of understanding, it will pass constitutional muster.” Jones v.

United States , 527 U.S. 373, 400 (1999). Moreover, “[a]ny vagueness in the

language [of a heinous, cruel, and depraved aggravating factor] . . . is cured by

the limitation in the statute that the offense involve torture or serious physical

abuse.” Jones , 132 F.3d at 249 (citing Walton v. Arizona , 497 U.S. 639, 654-55

(1990)); see also United States v. Webster , 162 F.3d 308, 354 (5th Cir.) (applying

Hall to conclude that the “especially heinous, cruel, or depraved” aggravating

-48-
factor is not impermissibly vague), cert. denied , 120 S. Ct. 83 (1999). The

instruction in question here informed the jury that it was required to find that the

defendant engaged in torture or serious physical abuse. Therefore, it was not

unconstitutionally vague.

Finally, Mr. Chanthadara contends that by allowing the jury to consider the

senselessness of the killing and the helplessness of the victim, the instruction lost

any narrowing function it otherwise had and, therefore, violated the Eighth

Amendment. Again, this argument is unpersuasive in light of the Fifth Circuit

holdings. The instruction upheld in Hall (which was virtually identical to that

upheld by the Fifth Circuit in Jones ) stated that “[p]ertinent factors in determining

whether a killing was especially heinous, cruel, or depraved include . . .

senselessness of the killing; and helplessness of the victim.” Hall , 152 F.3d at

414. Accordingly, we conclude the instruction on the heinous, cruel, or depraved

statutory aggravating factor was not erroneous.

c. Pecuniary Gain

The district court also instructed the jury to determine whether “the

defendant committed the offense as consideration for the receipt, or in the

expectation of the receipt, of anything of pecuniary gain.” 18 U.S.C. §

3592(c)(8). The district court gave an instruction on this aggravating factor as

-49-
follows:

To establish that defendant committed the offense in the
expectation of the receipt of anything of pecuniary value, the United
States must prove defendant committed the offense in the belief or
expectation that he would receive something of value. The words
“expectation of receipt” should be given their ordinary, everyday
meaning which includes obtaining or expecting to obtain something.
“Anything of pecuniary value” means anything in the form of money,
property, or anything else having some economic value, benefit or
advantage.

Add’m to Aplt’s Br., doc. N, Penalty Phase Jury Instr. No. 13.

Mr. Chanthadara objects to this instruction as failing to properly limit the

scope of the offense. With regard to felony murder, he argues application of this

aggravating factor is reserved to scenarios where the expectation of pecuniary

gain is from the actual killing and not the underlying felony. Here, he asserts, the

jury could not have found the aggravating factor because the evidence showed all

available property in the restaurant had already been seized before the homicide

occurred. Moreover, the government provided no evidence, aside from the

robbery itself, that Mr. Chanthadara or his accomplices expected further monetary

benefit as a result of the homicide. We review challenges to jury instructions de

novo and inquire whether, considering the instructions as a whole, the jury was

misled. See Voss , 82 F.3d at 1529.

With regard to the proper construction of 18 U.S.C. § 3592(c)(8), we agree

with Mr. Chanthadara that the statute requires that the pecuniary gain factor apply

-50-
where the gain was expected “as a result of the victim’s death.” Rec. vol. 47, at

3527-28. In instances of felony murder, if the jury were allowed to consider

whether the underlying felony alone was committed in expectation of pecuniary

gain, the pecuniary gain aggravator would be automatic where the underlying

felony is robbery. This is because pecuniary gain is implicit in the offense of

robbery.

Congress clearly expressed, through § 3592(c)(1), a list of twenty felony

offenses which automatically aggravate the death penalty whenever a death occurs

during their commission. Robbery is not listed among these felonies. That

exclusion suggests that the pecuniary gain aggravator applies when the murder

itself was committed as consideration for, or in expectation of, anything of

pecuniary value. See United States v. Glover , 43 F. Supp. 2d 1217, 1222 (D.

Kan. 1999) (noting government attorney’s argument that the “offense” to which §

3592(c)(8) refers is the “capital homicide” rather than the robbery); United States

v. Cuff , 38 F. Supp. 2d 282, 288 (S.D.N.Y. 1999) (“[Section 3592(c)(8)]

appear[s] to be directed at a murder . . . in which pecuniary gain can be expected

to follow as a direct result of the crime. A murder from which pecuniary gain

does not directly result would not appear to be within the reach of the statute.”)

(emphasis added); cf. Woratzeck v. Stewart , 97 F.3d 329, 334-35 (9th Cir. 1996)

(construing Arizona pecuniary gain aggravator as requiring proof “that the killing

-51-
was done with the expectation of pecuniary gain” and noting further that “[e]ven

if it is true that under many circumstances a person who kills in the course of a

robbery is motivated to do so for pecuniary reasons, that is not necessarily so”

and that “[a] defendant is free to argue that the killing was motivated by reasons

unrelated to pecuniary gain”); Webster , 162 F.3d at 325 (5th Cir. 1998) (“[Section

3592(c)(9)] requires a finding that ‘the defendant committed the offense after

substantial planning and premeditation to cause the death of a person,’. . .

obviously directing the premeditation to causing death and not to mere

commission of the offense when the two diverge.”).

The pecuniary gain instruction challenged here required the jury to

determine whether “the offense” was committed in expectation of pecuniary gain.

The instruction failed to specify the “offense” to which it referred was the

homicide, not the underlying robbery, and thereby failed to impose a necessary

limitation. Therefore, the instruction was erroneous. Cf. , Glover , 43 F. Supp. 2d

at 1222 (ordering government to “specifically indicate the nature of [the]

aggravator,” even after government attorney clarified that the “offense” to which

§ 3592(c)(8) referred was the “capital homicide” not the robbery).

Ordinarily, we would proceed to determine whether this error was harmless.

See Jones , 527 U.S. at 402 (citing Clemons v. Mississippi , 434 U.S. 738, 753-54

(1990)). However, in this case, in determining whether there is overwhelming

-52-
support in the record for Mr. Chanthadara’s death sentence, so as to deem any

error harmless, we must also consider certain prejudicial information that some of

the jurors encountered. See infra . Accordingly, we will conduct our harmless

error determination only after we consider the effect of that prejudicial

information.

2. Juror Exposure to Publicity During Penalty Phase

Prior to initiating the penalty phase, the judge sent the jurors home for a

few days. In the intervening time, The Wichita Eagle published a second article,

reiterating that the judge believed the defense’s evidence to be “a smoke screen.”

Add’m to Aplt’s Br., doc. K.

At the opening of the penalty phase, defense counsel requested the district

court to make specific inquiry about whether jurors had been exposed to the

second article. The judge asked the jury whether “anything happened since the

time you left here following your verdict last week and this morning which any of

you believe the lawyers and I ought to know about which would bear on your

ability to further judge this case fairly and impartially.” Rec. vol. 45, at 2922.

No juror responded, and the court inquired no further. The jury proceeded to hear

the penalty evidence and sentenced Mr. Chanthadara to death.

Mr. Chanthadara argues the failure of the court to make specific inquiry

-53-
about exposure to this additional publicity violated his Fifth Amendment due

process rights, his Sixth Amendment rights to counsel and a fair jury trial, and his

rights under the Eighth Amendment. We review a district court’s treatment of

allegations of jury bias for abuse of discretion. See Thompson , 908 F.2d at 650.

In determining whether the court’s failure to specifically voir dire the jury

regarding exposure to prejudicial publicity denied a defendant the right to a fair

trial, we generally consider whether (1) the nature of the news material is innately

prejudicial and (2) the material is likely to have reached the jury. See id. at 652;

see also Barry v. Bergen County Probation Dept. , 128 F.3d 152, 163 (3d Cir.

1997); Williams , 809 F.2d at 1092.

However, in light of the previous article published during the guilt phase,

application of this test is unnecessary. Although the overwhelming evidence that

Mr. Chanthadara aided and abetted in the charged offenses establishes that

reversal of the convictions is not warranted, the sentencing proceedings involved

additional evidence and additional elements that the prosecution was required to

prove. See Brooks v. Kemp , 762 F.2d 1383, 1402 n.27 (11th Cir.) (noting “that

overwhelming evidence of guilt should not contribute to a reviewing court’s

conclusion that [an error] did not affect the jury’s decision in the penalty phase”)

vacated on other grounds by Kemp v. Brooks , 106 S. Ct. 3325 (1986). The same

six jurors who were exposed to the judge’s “smoke screen” comment during the

-54-
guilt phase continued to serve during the sentencing proceedings, and they

eventually decided to impose the death penalty. Accordingly, we must determine

whether their exposure to the judge’s comment was harmless as to Mr.

Chanthadara’s sentence. Because we conclude the jurors’ exposure to the judge’s

smoke screen comment during the guilt phase was not harmless as to Mr.

Chanthadara’s sentence, we do not address the prejudicial effect of the second

article. 5

We reiterate that, “once a presumption of prejudice arises, the burden rests

heavily upon the Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to the defendant.”

Davis , 60 F.3d at 1485 (internal quotation marks omitted). An impartial jury is

central to the right to a fair trial, see McDonough Power Equip., Inc. v.

Greenwood , 464 U.S. 548, 554 (1984) and the lack thereof – which we find with

We point out that the second article may have caused additional prejudice
5

because it presented an opportunity for jurors other than the initial six to be
exposed to the judge’s smoke screen comment. Also, the second article was
republished a little over a week prior to sentencing, thereby bringing the smoke
screen comment fresh into the minds of the jurors as they entered the penalty
phase of Mr. Chanthadara’s trial. Moreover, if any of the jurors were exposed to
both articles, the judge’s smoke screen comment would be further emphasized in
their minds and thus more likely to influence their decision-making.
Nevertheless, the fact that the judge’s smoke screen comment was republished in
a second article just prior to commencement of the penalty phase only enhances,
but is not necessary to, our conclusion that the jurors’ exposure to the judge’s
smoke screen comment during the guilt phase prejudiced Mr. Chanthadara at
sentencing.

-55-
the instant error – is a constitutional violation.

Accordingly, we ask ourselves whether we can “declare a belief that [the

error] was harmless beyond a reasonable doubt.” Chapman v. California , 386

U.S. 18, 24 (1967). The Supreme Court has confirmed since Chapman that “[t]he

question . . . is not whether the legally admitted evidence was sufficient to

support the death sentence.” Satterwhite v. Texas , 486 U.S. 249, 258 (1988).

Nor is “[t]he operative question . . . whether we are convinced of defendant[’s]

guilt,” rather, it is “‘whether there is a reasonable probability that the [error]

complained of might have contributed to the [jury’s decision].’” United States v.

Torrez-Ortega , 184 F.3d 1128, 1135 (10th Cir. 1999) (quoting Chapman , 386 U.S.

at 23); see, e.g. , United States v. Begay , 937 F.2d 515, 525 (10th Cir. 1991)

(concluding the effect of a Confrontation Clause error was not harmless under

Chapman , even where “[t]he overall strength of the prosecution’s case was

substantial”). Moreover, to determine harmlessness we “should assess the

possibility of prejudice by reviewing the entire record, analyzing the substance of

the extrinsic evidence, and comparing it to that information of which the jurors

were properly aware.” United States v. Hornung , 848 F.2d 1040, 1045 (10th Cir.

1988) (citations and internal quotation marks omitted). Because “[a] verdict or

conclusion only weakly supported by the record is more likely to have been

affected by errors than one with overwhelming support,” we will consider the

-56-
strength of the evidence supporting the jury’s sentence of death. Strickland v.

Washington , 466 U.S. 668, 696 (1984).

In order to sentence Mr. Chanthadara to death, the jury needed to find at

least one of the two statutory aggravating factors presented in the instructions –

the pecuniary gain factor or the heinous, cruel, and depraved conduct factor.

Because the court’s instruction on the pecuniary gain factor was erroneous, we

will not consider this factor in assessing the weight of the evidence supporting the

jury’s decision to impose the death penalty. See Jones v. United States , 527 U.S.

373, 402 (1999) (stating that harmless-error review of a death sentence may be

performed by considering “whether absent an invalid factor, the jury would have

reached the same verdict” or by considering “whether the result would have been

the same had the invalid aggravating factor been precisely defined’).

As to the other aggravating factor, the court instructed the jury that “[t]o

establish that [Mr. Chanthadara] killed [Mrs.] Sun in an especially heinous, cruel,

or depraved manner, the United States must prove that [Mr. Chanthadara’s]

actions involved either torture or serious physical abuse to [Mrs.] Sun.” Add’m

to Aplt. Br., doc. N, Jury Instr. 12. The government presented no new evidence in

support of this factor, choosing instead to rely on the trial record. At trial,

however, there was scant direct evidence Mr. Chanthadara shot and killed Mrs.

Sun. Moreover, there was no direct evidence that he participated in the abuse

-57-
preceding her murder. Cf. , Mayes v. Gibson , No. 99-6047, 2000 WL 543400, at

*5 (10th Cir. May 4, 2000) (remanding for evidentiary hearing on habeas

petitioner’s ineffective assistance of counsel claim because the evidence that the

defendant committed the crime was “entirely circumstantial” and therefore could

not “fairly be described as overwhelming” so as to create a reasonable probability

that, absent the error, the jurors may not have imposed the death sentence).

Additionally, the murder weapon was never found, and no eyewitness to Mrs.

Sun’s murder testified. Finally, there was no physical evidence establishing Mr.

Chanthadara was upstairs when the murder occurred.

One witness, Mr. Namphengsone, testified that Mr. Chanthadara was one of

three robbers who took Mrs. Sun upstairs and that he carried the murder weapon

into the restaurant. Mr. Namphengsone recalled Mr. Nguyen stating, after the

three returned from upstairs, “He shot her.” Rec. vol. 40, at 2113. Mr.

Namphengsone also testified that, sometime after the robbery, he questioned Mr.

Chanthadara about what happened upstairs in the room where Mrs. Sun was

killed. According to Mr. Namphengsone, Mr. Chanthadara admitted to shooting

Mrs. Sun because she would not open the safe. See id. at 2134. Yet Mr.

Namphengsone’s testimony is inconsistent with the information he provided the

FBI prior to accepting a plea bargain from the government. When the FBI

inquired of Mr. Namphengsone whether he had ever “ask[ed] [Mr. Chanthadara]

-58-
if he did it,” Mr. Namphengsone told the FBI that Mr. Chanthadara never

answered any of his questions. Id. at 2203. Further, during his initial FBI

interview, he told agents he had not heard anything about anyone being hurt

during the robbery. See id. at 2160.

Another witness, Mr. Soukamneuth, placed the murder weapon in Mr.

Chanthadara’s possession when the four returned to the getaway car. Mr.

Soukamneuth also testified that, as they drove off from the restaurant, everyone

was angry and yelling at Mr. Chanthadara. He further recounted that Mr.

Chanthadara put a gun to his head and asked if anyone wanted him to shoot

himself.

Both Mr. Soukamneuth and Mr. Namphengsone testified that Mr.

Chanthadara threw the 9mm pistol out the window over a bridge on the drive back

from the crime scene. However, Mr. Namphengsone’s story changed after he

pleaded guilty – initially he told the FBI that the 9mm pistol was last seen in his

own apartment, not thrown from the car.

All of this evidence emanates from the testimony of two accomplices,

neither of whom witnessed the murder, but both of whom entered into plea

agreements with the government, had multiple prior convictions, and admitted to

being addicted to crack cocaine and to prior involvement in numerous other

robberies. See United States v. Gomez , 191 F.2d 1214, 1223-24 (10th Cir. 1999)

-59-
(Confrontation Clause violation not harmless where the only independent

corroborating evidence establishing the defendant’s guilt was “the testimony of . .

. a witness testifying pursuant to a plea agreement”); see also Brooks , 762 F.2d at

1402 n.27 (noting that reviewing courts should consider weaknesses in the

government’s evidence of guilt when determining whether an error may have

contributed to the jury’s imposition of a death sentence). Mr. Soukamneuth

admitted during cross examination that it would be fair to characterize him as a

“dishonest person.” Rec. vol. 40, at 2019. Additionally, as previously mentioned,

Mr. Namphengsone’s story contained multiple inconsistencies. See United States

v. Murray , 103 F.3d 310, 320 (3d Cir. 1997) (determining the evidence against the

defendant was not so overwhelming as to deem erroneous admission of evidence

harmless where the only eyewitness delayed reporting what he knew and had an

extensive history of drug use, and “[m]any of the government’s other witnesses

were similarly impeached on the basis of inconsistencies in their stories, their

interest in cooperating with the prosecution, and their own drug use”); Dudley v.

Duckworth , 854 F.2d 967, 972 (7th Cir. 1988) (reversing sentence because

evidence was “impressive but not overwhelming” where only two witnesses, with

sometimes conflicting testimony, implicated the defendant in the robbery and both

witnesses were admitted accomplices who plea bargained with the government).

The accomplice testimony aside, the government’s sole remaining evidence

-60-
establishing Mr. Chanthadara killed Mrs. Sun in an especially heinous, cruel, or

depraved manner is his alleged confession to Julia Newton. Ms. Newton testified

that, subsequent to telephone conversations with Mr. Namphengsone in which he

discussed the robbery with her, Mr. Chanthadara called her from jail and admitted

that he “pulled the trigger.” Rec. vol. 41, at 2274. However, Ms. Newton has had

an intimate relationship with an accomplice – Mr. Namphengsone – and admitted

that she “barely knew” Mr. Chanthadara prior to the robbery. Id. at 2278.

It was for the jury to weigh the credibility of Ms. Newton’s testimony.

That said, we cannot fairly characterize this evidence, even coupled with the

accomplice testimony, as so overwhelming as to render the prejudicial effect of

the judge’s smoke screen comment harmless beyond a reasonable doubt. See

Murray , 103 F.3d at 320; Dudley , 854 F.2d at 972; see also United States v.

Cunningham , 145 F.3d 1385, 1396-97 (D.C. Cir. 1998) (concluding that

constitutional error was not harmless under Chapman even where the government

presented the following evidence implicating the defendant in a murder occurring

during a robbery: a motive to kill the victim; a statement made by the defendant

with a gun in his hand on the day of the robbery that he “had to take care of

something;” a confession to a cellmate; and the defendant’s possession of the

firearm used during the robbery at the time of his arrest), cert. denied , 525 U.S.

1128 (1999).

-61-
 The Supreme Court has made it clear that, because the consequences of a

death verdict are so final and severe, “this qualitative difference between death

and other penalties calls for a greater degree of reliability when the death

sentence is imposed.” Lockett v. Ohio , 438 U.S. 586, 604 (1978). Consequently,

we are required to take “extraordinary measures to ensure that the prisoner

sentenced to be executed is afforded process that will guarantee, as much as is

humanly possible, that the sentence is not imposed out of . . . prejudice.” Eddings

v. Oklahoma , 455 U.S. 104, 117-18 (1976) (O’Connor, J., concurring). Thus,

incorporating our earlier analysis of the prejudicial nature of the judge’s

comment, we conclude that, due to the lack of overwhelming evidence supporting

the statutory aggravating factor, there is a “reasonable probability” the judge’s

smoke screen comment “‘might have contributed to the [the death sentence].’”

Torrez-Ortega , 184 F.3d at 1135 (quoting Chapman , 386 U.S. at 23). 6

6
We note that The Wichita Eagle published a third article, just prior to the
penalty phase of Mr. Chanthadara’s trial, which headlined, “DEATH SENTENCE
WOULD BE LANDMARK,” with a sub-headline stating, “If a jury sentences him
to death, man convicted in Mandarin killing could face years of appeals.” Add’m
to Aplt’s Br., doc. K. Mr. Chanthadara argues the court’s failure to specifically
inquire of the jurors whether any of them saw the article was reversible error.
Specifically, he contends this article prejudiced him during the penalty phase
because the jurors could have concluded from the article that their sentencing
decision was not final and that an appellate court would bear final responsibility
for any death sentence imposed in the case.
We recognize the Supreme Court’s holding that reducing a juror’s sense of
responsibility for a death sentence violates the Eighth Amendment. See Caldwell
v. Mississippi , 472 U.S. 320, 330-33 (1985). However, there is no need for us to

-62-
 3. Exclusion of Jurors for Cause Based on Death Penalty Views

Mr. Chanthadara challenges the district court’s removal for cause of nine

veniremen based on their views on the death penalty. Because the erroneous

exclusion of even one potential juror mandates reversal of a death sentence, our

analysis takes us no further than potential juror Joy Phillips. See Gray v.

Mississippi , 481 U.S. 648, 657-68 (1987) (erroneous exclusion of one potential

juror based on her views on the death penalty was reversible constitutional error);

see also O’Bryan v. Estelle , 714 F.2d 365, 371 (5th Cir. 1983) (“The courts have

required a death sentence to be set aside even if only one potential juror has been

excluded for opposing the death penalty on grounds broader than those set forth

in Witherspoon .”) (citing Davis v. Georgia , 97 S. Ct. 399 (1976).

a. Removal based solely on responses to a questionnaire .

Prior to trial, a pool of 170 potential jurors watched a video on federal jury

service and completed a questionnaire. Pretrial challenges were allowed based on

the questionnaire answers. Mrs. Phillips was one of eight jurors removed for

cause solely on the basis of her answers to the pre-voir dire questionnaire. Mr.

decide if the statements made in this article rise to the level of an Eighth
Amendment violation. Our reversal of Mr. Chanthadara’s sentence rests solely on
the jurors’ exposure to the judge’s smoke screen comment and the lack of
overwhelming evidence supporting the death sentence to make such exposure
harmless beyond a reasonable doubt.

-63-
Chanthadara argues removal of prospective jurors based on questionnaire answers

alone, without any voir dire, is per se constitutional error.

In reply, the government asserts, even though the district court did not

conduct face-to-face credibility assessments, the questionnaire clearly established

Mrs. Phillips had views about the death penalty that would prevent or

substantially impair her ability to apply the law in this case. The government

suggests the trial court is under no constitutional obligation to rehabilitate

prospective jurors who have indicated unalterable opposition to the death penalty.

This court has expressly sanctioned pre-voir dire excusal of jurors in non-

capital cases based on jury questionnaires. See United States v. Contreras , 108

F.3d 1255, 1269-70 (10th Cir. 1997). Other circuits have permitted the same.

See United States v. Paradies , 98 F.3d 1266, 1277-81 (11th Cir. 1996); United

States v. North , 910 F.2d 843, 909-10 (D.C. Cir.), withdrawn and superseded in

part on other grounds , 920 F.2d 940 (1990). Although potential jurors may be

removed before voir dire for hardship or bias, this practice is expressly permitted

by the Jury Select and Service Act, 28 U.S.C. § 1866(c). See Webster , 162 F.3d

at 347-48 (removal for lying on questionnaire); Paradies , 98 F.3d at 1280

(removal for hardship).

No case has considered whether questionnaire responses may be sufficient

to excuse jurors in capital cases, without voir dire, on the basis of their death

-64-
penalty views. Nonetheless, the Supreme Court has expressly warned against

oversimplifying the inquiry as to whether jurors can perform their duty

notwithstanding their views on the death penalty. “[D]eterminations of juror bias

cannot be reduced to question-and-answer sessions which obtain results in the

manner of a catechism.” Wainwright v. Witt , 469 U.S. 412, 424 (1985). Thus,

there is some support for Mr. Chanthadara’s assertion that voir dire is required

prior to excusing a juror for cause based on his views on capital punishment.

See, e.g. , id. at 429 (“The trial judge is of course applying some kind of legal

standard to what he sees and hears, but his predominant function in determining

juror bias involves credibility findings whose basis cannot be easily discerned

from an appellate record.”) (emphasis added); Moore v. Gibson , 195 F.3d 1152,

1168 (10th Cir. 1999) (“In making such a determination, the trial judge must

assess the credibility of the prospective juror , a task an appellate court cannot

easily do based upon a record.”) (emphasis added), petition for cert. filed , (March

24, 2000) (No. 99-8812); Darden v. Wainwright , 767 F.2d 752, 761 (11th Cir.

1985) (Clark, J.,dissenting) ( “A conscientious trial judge must be bent upon

determining if a prospective juror has such a mind set that he or she would refuse

to vote for the death penalty regardless of the evidence in the case. That is

fact-finding.”). Moreover, because the jurors are vested with greater discretion in

capital cases, the examination of prospective jurors must be more careful than in

-65-
non-capital cases. See, e.g. , Turner v. Murray , 476 U.S. 28, 35-36 (1986).

Nevertheless, we reserve for another day the question of whether a trial

court has an obligation to voir dire prospective jurors before removing them for

cause based on their views on the death penalty. We choose to do so because,

even if we assume the district court was not required to conduct voir dire before

removing her, Mrs. Phillips’s answers on the questionnaire do not support

removing her for cause under the standard announced in Witherspoon v. Illinois ,

391 U.S. 510, 518-23 (1968), and later clarified in Witt , 469 U.S. at 416-35.

b. Standard of review where the district court did not conduct
voir dire .

Although we have passed on deciding whether voir dire is required before

excluding a juror for cause based on death penalty views, we are left to ponder

what standard of review to apply to a district court’s decision to exclude a

prospective capital juror based solely on questionnaire answers. Ordinarily, we

review the district court’s decisions concerning the seating or excusing of jurors

for abuse of discretion. See United States v. Bedonie , 913 F.2d 782, 795 (10th

Cir.1990). However, the heightened deference we pay to these determinations is

based almost exclusively on the trial judge’s unique ability to observe demeanor

and assess credibility. See Witt , 469 U.S. at 426, 428 (noting that the trial court’s

determination of juror bias “is based upon determinations of demeanor and

-66-
credibility that are peculiarly within a trial judge’s province,” and, as such, “this

is why deference must be paid to the trial judge who sees and hears the jurors”);

see also United States v. Cerrato-Reyes , 176 F.3d 1253, 1260 (10th Cir. 1999)

(citing Witt and reviewing district court’s findings for clear error); Castro v.

Ward , 138 F.3d 810, 824 (10th Cir.) (“Because issues of credibility and demeanor

are crucial to the trial judge’s determination our review of that determination is

quite deferential.”), cert. denied sub nom. Castro v. Gibson , 525 U.S. 971 (1998);

United States v. Flores , 63 F.3d 1342, 1355 (5th Cir. 1995) (“We give

considerable deference to the court’s decision to excuse a juror [based on her

death penalty views], because such decisions are based in large part on its

face-to-face credibility assessment of the prospective jurors.”); Deputy v. Taylor ,

19 F.3d 1485, 1499 (3d Cir. 1994) (“The trial court is in the best position to

observe the demeanor of the prospective jurors.”); cf. Spivey v. Head , 207 F.3d

1263, 1275 (11th Cir. 2000) (“The assessments of jurors’ states of mind are based

upon determinations of demeanor and credibility that are peculiarly within a trial

judge’s province and are therefore entitled to deference on habeas review.”)

(internal quotation marks omitted); Mann v. Scott , 41 F. 3d 968, 982 (5th Cir.

1994) (“[S]uch credibility determinations are more appropriately resolved under

the watchful eye of the trial judge than by an appellate court staring at a cold

record, which is precisely why they are accorded a presumption of correctness

-67-
under § 2254(d).”); Maynard v. Dixon , 943 F.2d 407, 415 (4th Cir. 1991) (“The

Court has held that the question of juror bias is to be resolved by the trial judge’s

assessment of demeanor and credibility.”).

Thus, the discretion generally accorded the district court is based on its

ability to assess the credibility of prospective jurors upon observing their

demeanor in responding to questions. Accordingly, because the trial court here

was not in a position to observe Mrs. Phillips’s demeanor, it was in no better

position than an appellate court to assess her answers pursuant to the law

governing the removal of prospective jurors based on their death penalty views.

Thus, the court’s decision to remove the juror for cause based on her death

penalty views is entitled to no particular deference. Consequently, we review de

novo the court’s determination that Mrs. Phillips’s questionnaire responses alone

warranted excusing her for cause under the Witherspoon -Witt standard.

c. The Witherspoon-Witt standard .

Next, we turn to the appropriate standard for removing a prospective juror

for cause based on her views on capital punishment. The Sixth Amendment

guarantees an impartial jury. A jury composed “by excluding veniremen for cause

simply because they expressed general objections to the death penalty or voiced

conscientious or religious scruples against its infliction” violates the Sixth

-68-
Amendment guarantee of an impartial jury. See Witherspoon , 391 U.S. at 522. A

juror may be properly excluded for cause based on his death penalty views only if

those views would “prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.” Witt , 469 U.S. at 424

(internal quotation marks omitted). The burden of proving bias rests on the party

seeking to excuse the venire member for cause. See id. at 423.

“If a prospective juror’s emotional opposition is so severe that it compels

her to ignore the law or disables her from answering the statutory questions

without conscious distortion or bias, exclusion for cause is proper.” Mann , 41

F.3d at 981 (citing Adams v. Texas , 448 U.S. 38, 50 (1980)). “The crucial

inquiry is whether the venireman could follow the court’s instructions and obey

his oath, notwithstanding his views on capital punishment.” Dutton v. Brown ,

788 F.2d 669, 675 (10th Cir. 1986).

d. Ms. Phillips’s questionnaire responses did not support
excusal for cause .

The sixty-question questionnaire contained only four questions pertaining

to the death penalty. Question 56 asks, “What are your personal views about the

death penalty?” Question 57 asks, “Do you have religious, moral or personal

beliefs which influence your opinion regarding the death penalty?” and allows

room for an explanation. Question 58 asks, “Would these feelings regarding the

-69-
death penalty affect your ability to decide in the first part of the trial whether the

defendant is guilty or not guilty of the crimes charged?” and allows room for an

explanation. Question 59 asks the respondent to choose one or more of six

statements that most accurately reflect his or her view of the death penalty. These

are:

a. In a case in which the defendant is convicted and in which the death
penalty is requested, I would always vote to impose the death penalty,
regardless of the circumstances of the case and the law which the court
instructs must be applied by the jury.

b. I am strongly in favor of the death penalty, and would have a difficult
time voting not to impose it, regardless of the circumstances of the case
and the law which the court instructs must be applied by the jury.

c. I am generally in favor of the death penalty, but I would base a decision
whether to impose it on the circumstances of the case and the law which
the court instructs must be applied by the jury.

d. I am personally, morally, or religiously opposed to the death penalty,
but I would base a decision whether to impose it on the circumstances
of the case and the law which the court instructs must be applied by the
jury.

e. I am strongly opposed to the death penalty, and would have a difficult
time voting to impose it, regardless of the circumstances of the case and
the law which the court instructs must be applied by the jury.

f. I am personally, morally, or religiously opposed to the death penalty,
and would never vote to impose it regardless of the circumstances of the
case and the law which the court instructs must be applied by the jury.

-70-
Rec. vols. 29 & 30, Potential Juror Responses to Questionnaire. 7

Potential juror Ms. Phillips indicated in Question 56: “I believe the death

penalty is proper in some cases although I don’t think I would be able to vote for

the death penalty in a case.” Rec. vol. 30, Questionnaire of Juror Phillips, at 14.

In Question 57 she clarified that this was because she didn’t feel she would “ever

be 100% sure that [death] was the proper verdict.” Id. In Question 58, she

indicated her feelings regarding the death penalty would not affect her ability to

decide in the first part of the trial whether the defendant is guilty or not guilty.

Mrs. Phillips failed to select any of the available responses in Question 59. See

id. at 15. To Question 60, which simply asked if there is other information the

judge or lawyers might find useful, she responded, “I feel the death penalty is

proper in some cases but I don’t feel I could ever think there was enough

evidence to come to that conclusion even though I might feel the person has been

proven guilty.” Id.

After careful review, we conclude Mrs. Phillips’s responses do not

sufficiently indicate that her views on capital punishment would “substantially

impair . . . performance of [her] duties as a juror in accordance with [the court’s]

7
Although we do not wish to foreclose the possibility that some responses
to written questions would sufficiently support excusing a prospective juror for
cause, the ambiguity of the written questions at issue here exemplifies the danger
of relying solely on questionnaire answers in this delicate inquiry.

-71-
instructions and [her] oath.” Witt , 465 U.S. at 424. Rather, her statements appear

ambiguous and do not justify dismissal for cause.

Significantly, Mrs. Phillips refused to answer Question 59, which could

reasonably be interpreted as expressing that none of the available responses,

particularly “e” and “f,” accurately reflected her position on the death penalty.

She stated she did not know whether she could ever think there was enough

evidence to sentence a defendant to death. However, she was never informed that

the law would dictate what degree of proof was necessary to impose a death

sentence. More importantly, she was never asked, or required to answer, whether,

if the facts of the case and the evidence presented warranted imposition of the

death penalty under the law, she would at least consider imposing a death

sentence in light of her personal convictions. Thus, none of the questions which

Mrs. Phillips answered articulated the proper legal standard under Witt . See, e.g. ,

Darden v. Wainwright , 767 F.2d 752, 754 (11th Cir. 1985) (upholding exclusion

of prospective juror where “the trial judge did articulate an unquestionably correct

legal standard [under Witt ] on many . . . occasions during the voir dire”), aff’d ,

477 U.S. 168 (1986). Nothing in Mrs. Phillips’s responses on the record indicate

an intention to disregard or circumvent the law or the court’s instructions.

Additionally, she stated twice on the questionnaire that she believed “the death

penalty is proper in some cases.” Rec. vol. 30, Questionnaire of Juror Phillips, at

-72-
14-15; see Hance v. Zant , 696 F.2d 940, 955 (11th Cir. 1983) (concluding that a

potential juror’s statements that she “fe[lt] there are times when the death penalty

is warranted” but “[did] not believe that [she] with [her] conscience could vote to

impose the death penalty” demonstrated “uncertainty about [her] convictions and

ambiguity about [her] feelings” and, therefore, “did not indicate that [her] views

about capital punishment would substantially impair the performance of [her]

duties as [a] juror[] under oath”), overruled on other grounds by Brooks v. Kemp ,

762 F.2d 1383 (11th Cir. 1985).

The government argues excusing Mrs. Phillips for cause based on her

statements was proper under Castro v. Ward , 138 F.3d 810 (10th Cir. 1998).

There, the prospective juror was excluded after indicating that “she [did] not

know, no matter what [the] evidence [was] , whether she [could] give the death

penalty.” Id. at 824-25 (emphasis added). Castro is distinguishable on multiple

grounds. First, the juror’s statement in Castro could reasonably be interpreted as

stating that her views were such that she might have disregarded the evidence. As

discussed earlier, Mrs. Phillips statements are not so strong as to imply she would

have disregarded the evidence. Second, unlike the excused juror in Castro , Mrs.

Phillips indicated she felt the death penalty was proper under some circumstances.

Finally, the trial judge in Castro asked the juror numerous questions during voir

dire and, having the benefit of observing her demeanor, was entitled to resolve

-73-
any ambiguity in favor of the State. 8
See Moore , 195 F.3d at 1170; see also

United States v. Barnette , Nos. 98-5, 98-11, 2000 WL 524799, at *4 (4th Cir. May

2, 2000) (“[W]e defer[] to the discretion of the trial judge when certain jurors’

answers in the voir dire inquiry [are] ambiguous and arguably contradictory

because this inquiry turns in large part on assessments of demeanor and

credibility we cannot duplicate .”) (emphasis added); Truesdale v. Moore , 142

F.3d 749, 757 (4th Cir.) (“We generally review the determinations of the trial

judge, who had the benefit of first-hand exposure to the voir dire , with deference.

This deference means that where a venireman’s responses reveal some ambiguity

about his willingness or ability to impose the death penalty, we presume the

correctness of the trial court’s decision.”) (emphasis added), cert. denied , 525

U.S. 931 (1998); . Here, on the other hand, the court was not “aided by its

assessment of the juror’s credibility,” Moore , 195 F.3d at 1170, and, as such, we

hold it was not entitled to resolve any ambiguity in the government’s favor.

Perhaps further inquiry by the court would have established Mrs. Phillips

was not fit to sit on a death penalty jury. However, the court failed to “clarify[]

[prior to excusing her for cause] that [she] opposed the death penalty to a degree

which would have made it impossible for [her] to follow the law.” Mayes , 2000

WL 543400, at *7. Thus, the court erred in excluding Mrs. Phillips for cause.

8
No portion of the voir dire transcript is included in the Castro opinion.

-74-
“Where the court finds that even one juror was improperly excluded, the

defendant is entitled to a new sentencing, because the right to an impartial

adjudication is ‘so basic to a fair trial that [its] infraction can never be treated as

harmless error.’” Fuller v. Johnson , 114 F.3d 491, 500 (5th Cir. 1997) (quoting

Gray v. Mississippi , 481 U.S. 648, 668 (1987)).

4. Victim Impact Evidence

Mr. Chanthadara’s challenge relating to the victim impact evidence is

twofold. First, he asserts the district court erred in instructing the jury that it

could consider victim impact as a non-statutory aggravating factor capable of

offsetting the weight of any mitigating factors. Second, he argues the sheer

volume and prejudicial nature of victim impact evidence permitted at the

sentencing phase violated his Fifth Amendment due process right.

Title 18 U.S.C. § 3593(a)(2) permits the introduction of victim impact

evidence in federal criminal prosecutions. The Supreme Court has upheld the

constitutionality of victim impact evidence in capital sentencings. See Payne v.

Tennessee , 501 U.S. 808, 819-27 (1991).

As to Mr. Chanthadara’s first argument, he specifically contends that,

because all murders have victims, and all victims have families, a victim impact

-75-
aggravating factor does not narrow the class of offenses for which the death

penalty may be imposed, as required under the Eighth Amendment. This

argument is foreclosed by binding case law. The Supreme Court has recently

stated: “The Eighth Amendment . . . permits capital sentencing juries to consider

evidence relating to the victim’s personal characteristics and the emotional impact

of the murder on the victim’s family in deciding whether an eligible defendant

should receive a death sentence.” Jones , 527 U.S. at 395. In concluding the

victim impact aggravating factor at issue was not unconstitutionally overbroad,

the Court explained:

Of course, every murder will have an impact on the victim’s family and
friends . . . . Even though the concept[] of victim impact . . . may well
be relevant in every case, evidence of . . . victim impact in a particular
case is inherently individualized. . . . So long as . . . victim impact
factors are used to direct the jury to the individual circumstances of the
case, we do not think [the] principle [against bias or caprice in the
sentencing decision] will be disturbed.

Id. at 401.

Here, the victim impact aggravating factor asked whether “[Mr.]

Chanthadara caused permanent harm to the family of [Mrs.] Sun by her murder

which was committed in close proximity to her husband and two daughters.”

Add’m to Aplt’s Br., doc. O, at 5. This victim impact factor sufficiently

“direct[ed] the jury to the individual circumstances of the case.” Jones , 527 U.S.

at 401.

-76-
 Additionally, our own circuit has pronounced:

We are not convinced that sympathy for victims and/or their families
cannot be appropriately considered at the penalty phase to counteract
defendant’s mitigating evidence, provided it is based on evidence adduced at
trial and the evidence produced is not so unduly prejudicial as to render the
defendant's trial fundamentally unfair.

Smallwood v. Gibson , 191 F.3d 1257, 1273 (10th Cir. 1999), petition for cert.

filed (March 3, 2000) (No. 99-9445). Accordingly, we reject this challenge to the

admission of victim impact evidence. Victim impact evidence may be considered

as an aggravating factor.

Mr. Chanthadara’s second argument challenges the volume and nature of

the victim impact evidence admitted during the penalty phase. He contends the

evidence used to establish victim impact so infected the trial that it denied him

due process.

In Payne , Justice O’Connor explained:

The possibility that [victim impact] evidence may in some cases be
unduly inflammatory does not justify a prophylactic, constitutionally
based rule that this evidence may never be admitted. Trial courts
routinely exclude evidence that is unduly inflammatory; where
inflammatory evidence is improperly admitted, appellate courts
carefully review the record to determine whether the error was
prejudicial.

We do not hold today that victim impact evidence must be
admitted, or even that it should be admitted. We hold merely that if a
State decides to permit consideration of this evidence, the Eighth
Amendment erects no per se bar. If, in a particular case, a witness’
testimony or a prosecutor’s remark so infects the sentencing proceeding
as to render it fundamentally unfair, the defendant may seek appropriate

-77-
 relief under the Due Process Clause of the Fourteenth Amendment.

501 U.S. at 831 (citation omitted) (O’Connor, J., concurring). “To violate due

process, an error must be of sufficient significance that it denies the defendant the

right to a fair trial.” Barnette , 2000 WL 524799, at * 11 (citing Greer v. Miller ,

483 U.S. 756, 765 (1987)).

Here, the jury heard testimony from Mrs. Sun’s husband and two children,

ages seven and ten. Mr. Sun’s testimony was amplified with numerous colored

photographs of Mrs. Sun while she was alive. Both children ended their

testimony in tears. The jury was also allowed to take into the jury room physical

evidence of the impact of Ms. Sun’s death on her children. Among these items

were letters the children had written to their dead mother and a daily journal

which described one child’s loss.

We are unaware of any case before the Supreme Court or our circuit that

has vacated a sentence because the victim impact evidence presented was so

unduly inflammatory as to render the proceeding fundamentally unfair. See

Barnette , 2000 WL 524799, at * 11 (“No case has come to our attention in which

this court or the Supreme Court has vacated a sentence because victim impact

evidence violated the limits of due process.”). Moreover, courts have upheld the

admission of victim impact evidence similar to that introduced here. See, e.g. ,

Hall , 152 F.3d at 405 (upholding written statements from family members briefly

-78-
describing the victim’s character and her aspirations of becoming a doctor as well

as the pain they felt as a result of her senseless death, including a statement from

the victim’s father that he no longer had reason to live and had become a strong

drinker as a result of his father’s death); Black v. Collins , 962 F.2d 394, 408 (5th

Cir. 1992) (concluding victim impact statements that the victim was a

hard-working, devoted wife and mother were not so inflammatory as to deprive

the defendant of a fundamentally fair proceeding); Wiley v. Puckett , 969 F.2d 86,

105 (5th Cir. 1992) (allowing statement of the wife of the murder victim

describing his store, community work, and kindness); Williams v. Chrans , 945

F.2d 926, 946-47 (7th Cir. 1991) (affirming admission of written victim impact

statements because they were brief in light of the overwhelming amount of

aggravating evidence admitted, and the court instructed the jury to avoid passion

and sympathy in making its decision); see also Felder v. Johnson , 180 F.3d 206,

215 (5th Cir. 1999) (“[T]he potential impact of the [victim] testimony must be

considered in perspective with the facts of the crime itself.”).

In this instance, we cannot conclude that the victim impact evidence

presented was so prejudicial as to render the proceeding fundamentally unfair.

See Smallwood , 191 F.3d at 1273; see also Gretzler v. Stewart , 112 F.3d 992,

1009 (9th Cir.1997). Accordingly, we conclude the court did not err in admitting

the victim impact evidence.

-79-
 III. CONCLUSION

Mr. Chanthadara’s convictions are AFFIRMED. We hold that there is no

reversible error in the guilt phase of Mr. Chanthadara’s trial.

Mr. Chanthadara death sentence is VACATED. In light of the less than

overwhelming evidence supporting the aggravating factor necessary to impose the

death sentence, the jurors’ exposure to the trial judge’s comment referring to Mr.

Chanthadara’s defense as a smoke screen was not harmless. Furthermore, the

removal of at least one potential juror excused on the basis of questionnaire

answers regarding her death penalty views was reversible error.

Accordingly, the case is REMANDED for RE-SENTENCING in light of

this decision.

-80-