Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-5
CARLOS DAVID CARO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, Chief District Judge.
(1:06-cr-00001-JPJ)
Argued: October 30, 2009
Decided: March 17, 2010
Before GREGORY, SHEDD, and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the
majority opinion, in which Judge Shedd concurred. Judge
Gregory wrote a dissenting opinion.
COUNSEL
ARGUED: Denise Charlotte Barrett, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Baltimore, Maryland, for
2 UNITED STATES v. CARO
Appellant. David E. Hollar, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Sarah S. Gannett, Assistant Federal Public Defender,
FEDERAL COMMUNITY DEFENDER’S OFFICE, Phila-
delphia, Pennsylvania, for Appellant. Julia Campbell Dudley,
United States Attorney, Anthony P. Giorno, Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
This appeal arises from a death sentence imposed under the
Federal Death Penalty Act (the "FDPA"), 18 U.S.C. §§ 3591-
98, following a conviction for murder in violation of 18
U.S.C. § 1111. Appellant Carlos David Caro challenges the
district court’s voir dire; denial of motions under Brady v.
Maryland, 373 U.S. 83 (1963), and Federal Rules of Criminal
Procedure 16(a)(1)(E) and 17(c); refusal to give Caro’s pro-
posed mercy instruction; and various decisions concerning
admissibility. Caro also argues that the jury instruction and
government’s argument about lack of remorse violated his
Fifth Amendment privilege against self-incrimination, that the
government’s closing argument violated the Due Process
Clause, and that 18 U.S.C. § 3592(c)(10) and (12) violate the
Eighth Amendment. For the reasons stated below, we affirm.
I. Background
At about 6:40 p.m. on December 17, 2003, a prison guard
discovered inmate Roberto Sandoval strangled to death inside
his cell in the Special Housing Unit (the "SHU") at United
States Penitentiary Lee ("USP Lee") in Jonesville, Virginia.
He lay dead with a towel knotted around his neck. His cell-
mate Caro had been the only other person inside the locked
UNITED STATES v. CARO 3
cell. Caro later explained, "[Sandoval] called me mother
fucker, that whore, that’s why I fucked him up." J.A. 781.
A.
Caro comes from a poor neighborhood in Falfurrias, Texas,
where he lived with his siblings and an abusive, alcoholic
father. While still young, Caro began helping his uncles trans-
port illegal drugs into the United States. He was later con-
victed of possession of marijuana with intent to distribute in
April 1988, conspiracy to possess over one hundred kilograms
of marijuana with intent to distribute in January 1994, and
possession of cocaine with intent to distribute in November
2001.1 Following his third conviction, Caro was sentenced to
thirty years imprisonment.
In prison, Caro became a leader in the Texas Syndicate, a
violent prison gang. In that role, Caro was involved in two
violent incidents prior to Sandoval’s murder. In the summer
of 2002 at Federal Correctional Institute Oakdale ("FCI Oak-
dale"), a prison official asked Caro to maintain the peace
because members of another gang were scheduled to arrive.
Caro responded that "the Texas Syndicate were going to do
what they had to do." J.A. 908. Soon after, Caro and fellow
Texas Syndicate members violently attacked the new arrivals.
Taking responsibility, Caro commented: "I don’t give a fuck
if they send me to the United States Penitentiary. My brothers
follow orders. They know what they’re getting into. It doesn’t
even matter if we’re prosecuted. I have 30 years to do. I cer-
tainly don’t care about myself." J.A. 911.
Following the FCI Oakdale incident, the Bureau of Prisons
(the "BOP") transferred Caro to USP Lee, a more secure facil-
ity. There, in August 2003, Caro and another inmate violently
1
These convictions were for violations of Title II or III of the Compre-
hensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.
§§ 801-971.
4 UNITED STATES v. CARO
attacked fellow Texas Syndicate member Ricardo Benavidez.
Using "shanks," i.e., homemade knives, they stabbed Bena-
videz twenty-nine times. Five other Texas Syndicate members
stood nearby with identical shanks.2 In November 2003, after
pleading guilty to conspiracy to commit homicide, Caro was
sentenced to another twenty-seven years imprisonment. He
was then transferred to the SHU at USP Lee.
Sandoval’s murder occurred only weeks later. Sandoval
was placed in Caro’s cell at around 9:00 p.m. on December
16, 2003. The next day, Sandoval and Caro were served
breakfast in their cell at 6:10 a.m. They later took one hour
of recreation outside and were last observed by prison staff at
6:17 p.m.3 Soon after, inmate Sean Bullock, whose cell faced
Caro’s, noticed Caro standing behind Sandoval and appar-
ently choking him. Bullock watched them fall to the ground
and assumed they were tussling. At about 6:40 p.m., a prison
guard came to deliver mail. Caro yelled to him several times,
"Come get this piece of shit out of here," and pointed at San-
doval lying by the door. J.A. 676. Peering inside the cell, the
guard observed Sandoval lying motionless with blood on him
and a towel knotted around his neck. Blood was also splat-
tered against the wall.
Other guards quickly arrived and handcuffed Caro. When
asked whether Sandoval was still breathing, Caro responded:
"No. At this time he’s stinking up the room, get him out." J.A.
684. Caro later received Miranda warnings and was inter-
viewed. He denied that Sandoval’s murder had any connec-
tion to the Texas Syndicate. Instead, Caro explained that he
had eaten Sandoval’s breakfast that morning; that Sandoval
had awakened, cursed him, and threatened to eat Caro’s
2
In January 2004, Caro sent a letter to one Gomez requesting that Caro,
Benavidez, and others who had been involved remain in good standing
within the Texas Syndicate.
3
Inmates housed in the SHU at USP Lee spend twenty-three hours per
day in their cell and are allowed one hour of recreation outside per day.
UNITED STATES v. CARO 5
breakfast the next morning; and that Caro, using a towel tied
with one overhand knot, had later strangled Sandoval for four
or five minutes until he stopped breathing.
The next day Caro taunted a prison guard, grinning and
calling out, "When [are] you . . . going [to] assign [me] a new
cellie?" J.A. 601. Several days later, again grinning, Caro
requested fellow inmate Ortiz for his next "cellie." J.A. 680.
Caro later mentioned Sandoval in two telephone conversa-
tions and a letter. The letter stated, "I killed a guy two weeks
ago . . . [f]or being a fool." J.A. 790. Caro told his wife,
laughing, "[Sandoval] called me a mother fucker." J.A. 782.
Caro also assured her, "But I’m all right." J.A. 783. Finally,
Caro told another Texas Syndicate member Roel Rivas, "I
also have a death," and explained, "It’s because they gave me
a cell mate and he disrespected me, so I took him down." J.A.
785. When Rivas proposed claiming self-defense, Caro said,
"That is what I’m going to do . . . . That is what I’m going
for." J.A. 786-87.
B.
On January 3, 2006, Caro was charged in an indictment
with first-degree murder in violation of 18 U.S.C. § 1111 for
the killing of Sandoval. Soon after, pursuant to § 3593(a), the
government filed a notice of intent to seek the death penalty
under the FDPA. This statute established a procedure
whereby a jury can decide whether to impose the death pen-
alty after considering aggravating and mitigating factors prop-
erly alleged and proved during a sentencing hearing.4 The
4
The FDPA provides that a defendant convicted of any offense listed in
§ 3591 "shall be sentenced to death" if the sentencing body determines
that "imposition of a sentence of death is justified" after considering the
factors listed in § 3592. 18 U.S.C. § 3591. Specifically, the sentencing
body must consider "whether all the aggravating factor or factors found to
exist sufficiently outweigh all the mitigating factor or factors found to
6 UNITED STATES v. CARO
FDPA requires consideration of specific aggravating factors
("statutory aggravating factors") but also allows the govern-
ment to allege other aggravating factors ("non-statutory
aggravating factors").
Following a jury trial, Caro was convicted of premeditated
murder in violation of § 1111. The same jury decided Caro’s
sentence under the FDPA. His sentencing hearing was divided
into two phases, an "eligibility" phase and a "selection" phase.
The first phase involved determining whether Caro had com-
mitted a capital offense under § 3591 and whether the govern-
ment had proved at least one statutory aggravating factor
beyond a reasonable doubt, together making Caro eligible for
the death penalty. The second phase involved determining the
mitigating and non-statutory aggravating factors and selecting
either a death sentence or life imprisonment.
During the eligibility phase, the jury decided that Caro was
eligible for the death penalty because § 3591 covered his
offense of premeditated murder under § 1111, and two statu-
tory aggravating factors had been proved beyond a reasonable
doubt. These factors were (1) that Caro was previously con-
exist to justify a sentence of death, or, in the absence of a mitigating fac-
tor, whether the aggravating factor or factors alone are sufficient to justify
a sentence of death." 18 U.S.C. § 3593(e).
Regarding the sentencing factors, § 3592(a) lists eight mitigating factors
that must be considered, including a catch-all factor covering any relevant
mitigating circumstance. Conversely, § 3592(c) lists sixteen aggravating
factors that must be considered for a homicide offense, assuming notice
has been given, and adds that "any other aggravating factor for which
notice has been given" may be considered. 18 U.S.C. § 3592(c). A defen-
dant has the "burden of establishing the existence of any mitigating factor
. . . by a preponderance of the information," whereas the government has
the "burden of establishing the existence of any aggravating factor . . .
beyond a reasonable doubt." 18 U.S.C. § 3593(c). Because a death sen-
tence cannot be imposed unless at least one statutory aggravating factor
has been proved, statutory aggravating factors are determined before any
alleged mitigating or non-statutory aggravating factors are considered.
UNITED STATES v. CARO 7
victed of two offenses involving distribution of illegal drugs
committed on different occasions and punishable by impris-
onment for over one year, 18 U.S.C. § 3592(c)(10), and (2)
that Caro was previously convicted of a federal drug offense
punishable by five or more years, 18 U.S.C. § 3592(c)(12).
During the selection phase, the jury heard information and
argument about the existence of mitigating factors, the exis-
tence of non-statutory aggravating factors, and whether aggra-
vating factors sufficiently outweighed mitigating factors to
justify a death sentence.5 The government had alleged three
non-statutory aggravating factors: (1) the impact of Caro’s
offense on Sandoval’s friends and family; (2) Caro’s future
dangerousness to other people, including inmates; and (3) that
Caro "has not expressed remorse for his violent acts, includ-
ing (but not limited to) the murder of Sandoval, the stabbing
of Benavidez and the gang-based assault in Oakdale." J.A. 57.
After closing arguments, the jury found that each alleged
non-statutory aggravating factor had been proved beyond a
reasonable doubt. The jury also found unanimously that
twelve mitigating factors had been proved.6 Some jurors
5
We use the term "information" rather than "evidence" to conform to the
FDPA’s language and because here the Federal Rules of Evidence are
inapplicable. See 18 U.S.C. § 3593(c) (allowing presentation of most
information relevant to sentencing factors and providing that
"[i]nformation is admissible regardless of its admissibility under the rules
governing admission of evidence at criminal trials except that information
may be excluded if its probative value is outweighed by the danger of cre-
ating unfair prejudice, confusing the issues, or misleading the jury").
6
The jury found that Caro (1) was exposed to domestic violence grow-
ing up, (2) was not encouraged in school, (3) came from an impoverished
community, (4) was well-behaved growing up, (5) failed to reach high
school after needing special education, (6) was shy and respectful com-
pared to his brothers, (7) was brought into illegal drug trafficking by his
uncles, (8) never abused his wife or daughter, (9) was not violent or
aggressive until his thirty-year prison sentence, (10) has never attacked
prison staff, (11) has never tried to escape, and (12) has been securely
detained since December 18, 2003.
8 UNITED STATES v. CARO
found that four other mitigating factors had also been proved.7
After considering whether the aggravating factors sufficiently
outweighed the mitigating factors, the jury imposed the death
penalty. This appeal followed.
Caro now challenges (1) the district court’s voir dire pro-
cess; (2) the denial of motions under Brady and Federal Rules
of Criminal Procedure 16(a)(1)(E) and 17(c); (3) the constitu-
tionality of § 3592(c)(10) and (12), the statutory aggravating
factors that made Caro eligible for the death penalty; (4) the
government’s closing argument during the selection phase;
(5) the district court’s jury instruction and the government’s
argument concerning lack of remorse; (6) the rejection of
Caro’s proposed mercy instruction; and (7) decisions about
whether to admit testimony offered under Federal Rule of
Evidence 608(a), certain information about Sandoval, and
Caro’s offer to plead guilty. We consider each matter in turn.
II. Voir Dire
We begin by considering Caro’s challenge to the voir dire
conducted by the district court. We review voir dire for abuse
of discretion. See Ristaino v. Ross, 424 U.S. 589, 594 (1976);
United States v. Brown, 799 F.2d 134, 135-36 (4th Cir. 1986).
A.
Prior to Caro’s trial, the district court summoned one hun-
dred fifty prospective jurors to the courthouse in groups of
fifty. The government and Caro proposed questions for them,
but the court determined what questions would be asked. Voir
dire then occurred in two phases. First, prospective jurors
completed written questionnaires. Second, the court divided
7
One juror voted that Caro’s father had a corrupting influence, five
voted that Caro’s execution would grieve his family, eight voted that
Caro’s life benefited his family, and nine voted that during a life sentence
Caro would be "incarcerated in a secure federal institution." J.A. 1460.
UNITED STATES v. CARO 9
them into groups of ten and questioned them orally. When a
prospective juror’s response was unsatisfactory, the court
recalled him individually and asked follow-up questions.
To inform prospective jurors about the case, the written
questionnaire stated, "The defendant, Carlos David Caro, is
accused of murdering Roberto Sandoval in the United States
Prison." J.A. 156. It continued, "Are your feelings about the
death penalty such that you would always vote for a sentence
of death as a punishment for someone convicted of a death
penalty eligible offense, regardless of the facts and circum-
stances?" J.A. 161-62 (emphasis omitted). When prospective
jurors convened for oral voir dire, the district court explained,
"The defendant is charged with the first degree murder of
Roberto Sandoval while both of them were inmates at the
United States Penitentiary." J.A. 464.
For the oral voir dire, Caro proposed two questions that the
district court declined to ask. Question fourteen of his pro-
posed questions read: "Do you feel that anyone convicted of
intentional and pre-meditated murder deserves to get the death
penalty? If not, what kind of case does or does not deserve the
death penalty?" J.A. 429. Instead, the court asked the follow-
ing questions or some close variation: "[W]ould you automat-
ically vote to impose the death penalty? . . . . In other words,
would you consider life in prison without possibility of
release, depending on the circumstances?" J.A. 502-03. The
court also informed the parties: "I will consider in appropriate
circumstances additional questions along the line that the
defendant has suggested if I find it appropriate." J.A. 458. The
court thus asked two seated jurors whether they could con-
sider a life sentence for someone convicted of pre-meditated
murder.
Question twenty-two of Caro’s proposed questions read:
"Do you believe that factors in a defendant’s background,
such as mental health issues, family background, childhood
abuse or neglect, or a history of drug or alcohol abuse would
10 UNITED STATES v. CARO
be important factors for a juror to consider in determining
whether to impose the death penalty . . . ?" J.A. 430. The
court declined to ask this proposed question, and instead
explained: "If the case . . . goes to the penalty phase, then the
jury would hear evidence in aggravation and mitigation; that
is, evidence about circumstances that favor the death penalty,
and circumstances that suggest that the death penalty would
not be appropriate." J.A. 484.
B.
To enforce the Sixth Amendment’s guarantee of an impar-
tial jury, district courts must conduct "adequate voir dire" to
enable them "to remove prospective jurors who will not be
able impartially to follow the court’s instructions and evaluate
the evidence." Rosales-Lopez v. United States, 451 U.S. 182,
188 (1981) (emphasis omitted). Because "[a]ny juror who
would impose death regardless of the facts and circumstances
of conviction cannot follow the dictates of law," the Supreme
Court has held that "[a] defendant on trial for his life must be
permitted on voir dire to ascertain whether his prospective
jurors function under such misconception." Morgan v. Illi-
nois, 504 U.S. 719, 735-36 (1992). However, "federal judges
[are] accorded ample discretion in determining how best to
conduct the voir dire." Rosales-Lopez, 451 U.S. at 189; see
United States v. Barber, 80 F.3d 964, 967 (4th Cir. 1996)
(noting that voir dire "must be committed to the good judg-
ment of the trial judge whose immediate perceptions deter-
mine what questions are appropriate for ferreting out relevant
prejudices" (internal quotations omitted)).
Caro contends that the district court failed to satisfy Mor-
gan because, although prospective jurors were asked whether
they would automatically impose a life or death sentence for
"a death penalty eligible offense" or "first degree murder,"
they were not asked this question regarding "intentional and
pre-meditated murder." In other words, Caro believes the voir
dire was inadequate because prospective jurors were never
UNITED STATES v. CARO 11
told that "death penalty eligible offense" or "first degree mur-
der" meant "intentional and pre-meditated murder." Caro also
contends that, because prospective jurors were never told that
information regarding Caro’s personal background could be
considered mitigating, the court’s voir dire could not weed out
prospective jurors who would refuse to consider any mitigat-
ing information about his troubled personal background.8
United States v. Tipton, 90 F.3d 861 (4th Cir. 1996),
addressed similar issues. There, the district court asked pro-
spective jurors, "Do you have strong feelings in favor of the
death penalty?" Id. at 878. To those who failed to answer "no"
unequivocally, the court then asked whether "[they] would
always vote to impose the death penalty in every case where
a defendant is found guilty of a capital offense." Id. We found
this questioning satisfactory.
We explained that Morgan established "the right, grounded
in the Sixth Amendment, to a voir dire adequate to assure a
defendant a jury all of whose members are able impartially to
follow the court’s instructions and evaluate the evidence," that
is, "the right to an inquiry sufficient to ensure——within the
limits of reason and practicality——a jury none of whose
members would unwaveringly impose death after a finding of
guilt and hence would uniformly reject any and all evidence
of mitigating factors, no matter how instructed on the law."
8
Caro also claims that the district court erred by not questioning pro-
spective jurors individually. Because he never raised this issue below, we
review for plain error. See United States v. Rolle, 204 F.3d 133, 138 (4th
Cir. 2000). We conclude that the court did not err because the Constitution
does not require individual questioning of prospective jurors. See Mu’Min
v. Virginia, 500 U.S. 415, 431-32 (1991) (finding no error where a trial
court denied a motion for individual questioning, questioned prospective
jurors in small groups, and asked follow-up questions of prospective jurors
who showed possible bias); United States v. Bakker, 925 F.2d 728, 734
(4th Cir. 1991) ("[I]t is well established that a trial judge may question
prospective jurors collectively rather than individually. . . . This is espe-
cially true where . . . the trial court provides for individual questioning of
a juror whose initial responses prove less than satisfactory . . . .").
12 UNITED STATES v. CARO
Tipton, 90 F.3d at 878 (internal quotations omitted). We then
added: "Just how an inquiry adequate for this specific purpose
should be conducted is committed to the discretion of the dis-
trict courts." Id. However, we also pointed out, "Obviously,
the most direct way to get at the possibility that a prospective
juror would always impose death following conviction is to
put that very ‘reverse-Witherspoon’ question directly to him,"
i.e., to ask whether the person would be irrevocably commit-
ted to voting for the death penalty regardless of the facts and
circumstances.9 Id.
Here, the district court asked, "Are your feelings about the
death penalty such that you would always vote for a sentence
of death as a punishment for someone convicted of a death
penalty eligible offense, regardless of the facts and circum-
stances?" J.A. 161-62 (emphasis omitted). This is precisely
the type of "reverse-Witherspoon" question that Tipton
approved. Because this question, standing alone, adequately
enabled the district court to weed out prospective jurors irrev-
ocably committed to imposing the death penalty, the district
court’s decision not to adopt Caro’s proposed question four-
teen was not an abuse of discretion. See also Oken v. Corco-
ran, 220 F.3d 259, 266 n.4 (4th Cir. 2000) ("We . . . reject the
suggestion that the trial court was required to ask potential
jurors whether they would automatically impose the death
penalty in rape-murder cases because . . . Morgan does not
require crime-specific voir dire questions.").
For the same reason, the district court’s failure to adopt
Caro’s proposed question twenty-two about mitigation also
was not an abuse of discretion. The above "reverse-
9
Tipton was referring to Witherspoon v. Illinois, 391 U.S. 510 (1968),
where the Supreme Court found that excluding a juror who was "irrevoca-
bly committed to . . . vote against the death penalty regardless of the facts
and circumstances" does not violate the Sixth Amendment. Id. at 523.
Thus, a "reverse-Witherspoon" question asks prospective jurors whether
they are irrevocably committed to voting for the death penalty.
UNITED STATES v. CARO 13
Witherspoon" question adequately enabled the district court to
weed out prospective jurors who would not consider mitigat-
ing evidence relating to Caro’s personal background. The
mere conjecture that more detailed questioning would have
elicited information useful to Caro does not suggest that the
district court erred. See Tipton, 90 F.3d at 878 (affirming the
district court’s decision not to make "inquiries into the pro-
spective jurors’ willingness to consider factors such as a
defendant’s ‘deprived, poor background,’ ‘emotional, physi-
cal abuse,’ ‘young age,’ ‘limited intelligence,’ and ‘brain dis-
function’"). "The undoubted fact that such detailed
questioning might have been somehow helpful to [Caro] in
exercising peremptory challenges does not suffice to show
abuse of the district court’s broad discretion in conducting the
requisite inquiry." Id. at 879.
III. Discovery
Next we review the district court’s denial of Caro’s
motions under Brady and Federal Rules of Criminal Proce-
dure 16(a)(1)(E) and 17(c). Because no factual findings were
made, we review the Brady decision de novo.10 See United
States v. Mejia, 82 F.3d 1032, 1036 (11th Cir. 1990) (review-
ing a Brady decision de novo); United States v. Kennedy, 890
F.2d 1056, 1058 (9th Cir. 1989) (same). We review the deci-
sion under Rule 16(a)(1)(E) for abuse of discretion. United
States v. Afrifa, No. 95-5753, 1996 WL 370180, at *1 (4th
Cir. July 3, 1996); see United States v. Fletcher, 74 F.3d 49,
54 (4th Cir. 1996) (noting that Rule 16 "plac[es] the decision
regarding pre-trial disclosure of witness lists within the sound
discretion of the trial court"). And we also review the decision
under Rule 17(c) for abuse of discretion. United States v.
Fowler, 932 F.2d 306, 311 (4th Cir. 1991).
10
We reviewed for clear error in United States v. Trevino, 89 F.3d 187,
190 (4th Cir. 1996), but there the district court had reviewed the requested
material in camera before denying the defendant’s motion to compel. The
court’s findings were thus factual rather than purely legal.
14 UNITED STATES v. CARO
A.
Under 18 U.S.C. § 3593(c) the government alleged a non-
statutory aggravating factor of future dangerousness. In
response, Caro hired risk-assessment expert Mark Cunning-
ham to testify that Caro would be unlikely to endanger anyone
during a life sentence because the BOP would adequately
secure Caro in the Control Unit at the Administrative Maxi-
mum United States Penitentiary in Florence, Colorado
("Florence ADMAX"), the BOP’s most secure facility,11 until
concluding that Caro was no longer dangerous. In turn, the
government planned to have former warden of Florence
ADMAX Gregory Hershberger testify that Florence ADMAX
could not fully secure Caro and that the BOP would likely
transfer him to another facility about three years after his
arrival.
To inform Cunningham’s testimony, Caro requested infor-
mation from BOP records relating to whether inmates like
Caro are housed at Florence ADMAX, how well Florence
ADMAX prevents violence, and when inmates like Caro nor-
mally are transferred from Florence ADMAX to other facili-
ties with less security. Specifically, Caro requested the
following:
A. Data showing median length of stay, range of
length of stay and standard deviation of the distribu-
tion of length of stay at Florence ADMAX for all
inmates since it was opened in 1994 to the present
time;
11
Called the "Alcatraz of the Rockies," Florence ADMAX houses the
BOP’s most dangerous inmates. See Dan Eggen, New Home is "Alcatraz
of the Rockies," Wash. Post, May 5, 2006, at A6. Guinness World Records
has dubbed Florence ADMAX the most secure prison in the world. Guin-
ness World Records 2001 53 (Mint Publishers, Inc. 2001); see Scarver v.
Litscher, 434 F.3d 972, 974 (7th Cir. 2006) (calling Florence ADMAX
"the most secure prison in the federal system").
UNITED STATES v. CARO 15
B. Data showing how many inmates who were
admitted to Florence ADMAX in 1994 or 1995 con-
tinue to be confined there, broken down by offense
conduct that caused them to be transferred to Flor-
ence ADMAX;
C. Movement sheets from the central inmate file on
every inmate who has killed another inmate within
the Bureau of Prisons, ("BOP"), within the last 20
years;
D. Investigative reports on all inmate homicides
within the BOP within the last 20 years including
any "after action reports" indicating any operational
or institutional changes in response to each killing
and any final memoranda from Special Investigative
Services to the Warden of each institution regarding
each killing;
E. Regarding each inmate involved in an inmate kill-
ing within the BOP within the last 20 years, the
respective inmate’s "Chronological Disciplinary
Record" and Inmate History ADM-REL and/or
movement Sheets within the Bureau of Prisons;
F. Records on any assaultive conduct by an inmate
in the "Control Unit" at Florence ADMAX from
November 1994 to present date, showing the inmate
involved, inmate number of the inmate involved,
date of occurrence and description of the conduct,
and the staff member victim of each assault;
G. Names, prison numbers, assignment rationale and
tenures of all inmates in the Control Unit at Florence
ADMAX since opening in 1994 to present date
showing date assigned, the reason assigned and date
exiting the Control Unit to lesser security or release
from BOP;
16 UNITED STATES v. CARO
H. Disciplinary Incident Reports on all inmates in
the Control Unit at Florence ADMAX from 1994 to
present date showing inmate name, number, date of
offense and details of disciplinary incident; and
I. Correctional Services Significant Incidents Data
on levels and frequency of violence at each security
level at Florence ADMAX by year from 2001
through 2006.
J.A. 396-97.
After the government denied this request, Caro filed vari-
ous motions. Two motions requested subpoenas duces tecum
under Rule 17(c) compelling the BOP’s director and Florence
ADMAX’s warden to produce the information. Another
motion requested a court order compelling the government to
produce the information under Rule 16(a)(1)(E). The final
motion requested a court order compelling the government to
produce the information under Brady.
Following an evidentiary hearing,12 a magistrate judge con-
cluded that Rule 16(a)(1)(E) and Brady did require the gov-
ernment to produce the information that Caro had requested.
The court emphasized that, "despite . . . [its] inquiries at the
November 3 hearing, the government ha[d] produced no evi-
dence through affidavit or otherwise as to its argument that
production of the documents and information requested would
be burdensome to the BOP." J.A. 290.
The government objected to this order. On November 20,
2006, the district court denied all four motions. It reasoned
that the information requested was immaterial to Caro’s
12
During this hearing, the government represented that "it d[id] not
intend to use any of the documents sought in the Discovery Motions in its
case-in-chief during either the guilt or the penalty phase of this case." J.A.
289.
UNITED STATES v. CARO 17
defense. See United States v. Caro, 461 F. Supp. 2d 478, 481
(W.D. Va. 2006). However, the court commented:
I point out, however, that I do so in light of the gov-
ernment’s representation that it does not intend to
introduce any of the requested data in its own case.
Otherwise, Rule 16 might very well require its prior
disclosure to the defendant. Accordingly, absent
proper disclosure, the government may not rely on
specific instances of inmate violence (other than the
defendant’s own) in seeking to prove his future dan-
gerousness.
Id. at 481-82. Although Caro’s requested information was
withheld, Cunningham visited Florence ADMAX, spoke with
BOP personnel, and received information not covered by
Caro’s initial request, including Caro’s inmate file and Flor-
ence ADMAX’s official policies.
During Caro’s sentencing hearing, the government, antici-
pating Cunningham’s testimony, offered evidence that Flor-
ence ADMAX could not fully secure Caro. This evidence
included descriptions of specific instances of violence by
inmates other than Caro. For example, Daniel Olsen, a code
breaker for the government, testified about an inmate at Flor-
ence ADMAX who sent a coded message ordering a homi-
cide. Former warden Hershberger testified that inmates killed
two guards at the United States Penitentiary in Marion, Illi-
nois, the predecessor to Florence ADMAX. He also testified
that Florence ADMAX inmates lashed out against prison
staff, using any weapons they could find. Finally, Hershberger
asserted that "no system that the Bureau of Prisons has been
able to devise to control the inmates is completely failsafe."
J.A. 1341. He indicated that the BOP could not guarantee that
someone like Caro would never make a weapon or send a
coded message to fellow gang members.
Hershberger further described the "step down" program at
Florence ADMAX designed to channel inmates back into
18 UNITED STATES v. CARO
general prison populations at other facilities. Hershberger
stated that this could be done in three years; Cunningham tes-
tified that the average was five years. Hershberger further
explained that inmates sentenced to death are housed at Fed-
eral Correctional Complex Terre Haute, which has very high
security, and are never transferred to other facilities.
By contrast, Cunningham testified that Caro would not
likely endanger anyone while serving a life sentence because,
given his personal characteristics, the BOP would probably
house him at Florence ADMAX until he stopped being dan-
gerous. Cunningham admitted, however, that "for the next
five to ten years [Caro] would pose a significant risk if at
large in a U.S. penitentiary." J.A. 1268.
On cross-examination, the government questioned Cun-
ningham using the affidavit he submitted for Caro’s discovery
motions. This affidavit listed forty-seven inmates who com-
mitted homicide in prison and argued that Caro needed more
information about these inmates to prepare his defense. The
government asked whether Cunningham knew those inmates’
current locations. Defense counsel objected, saying the gov-
ernment had withheld this information, but the district court
overruled the objection. Using the Inmate Locator on the
BOP’s public website, the government then showed that, for
example, Bruce Pierce had committed homicide in prison and
been transferred away from Florence ADMAX. Cunningham
admitted this but chafed:
The critical issue is what happened to him between
the time he was guilty of the killing, and . . . now
that he’s at Lewisburg[,] . . . where did he go for
how long, why did they decide to put him in Lewis-
burg, at what level of Lewisburg is he in with what
disciplinary history. So just to put his name up and
show where he is is misleading, at best, in the face
of the data that I requested from you that would have
fully informed this issue for me and for the jury.
UNITED STATES v. CARO 19
J.A. 1298. The government then made the same point for
another inmate, David Fleming, and implied that other
inmates listed in Cunningham’s affidavit also had been trans-
ferred away from Florence ADMAX.
During their closing arguments, both sides debated whether
the BOP would adequately secure Caro during a life sentence.
The jury ultimately found unanimously that the government
had proved Caro’s future dangerousness beyond a reasonable
doubt; only nine jurors found that during a life sentence Caro
would be "incarcerated in a secure federal institution." J.A.
1460. Caro now challenges the district court’s denial of his
motions under Brady and Rules 17(c) and 16(a)(1)(E). See
Caro, 461 F. Supp. 2d at 481.
B.
We first review the district court’s denial of Caro’s motion
under Brady. In Brady, the Supreme Court announced that the
Due Process Clause requires the government to disclose "evi-
dence favorable to an accused upon request . . . where the evi-
dence is material either to guilt or to punishment." 373 U.S.
at 87. Favorable evidence is material "if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent." United States v. Bagley, 473 U.S. 667, 682 (1985). "A
‘reasonable probability’ is a probability sufficient to under-
mine confidence in the outcome." Id. We have often noted
that Brady requests cannot be used as discovery devices. As
the Supreme Court remarked, "There is no general constitu-
tional right to discovery in a criminal case, and Brady did not
create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
The district court denied Caro’s motion under Brady
because Caro failed to establish that the information requested
would be favorable to him. We agree. Because Caro can only
speculate as to what the requested information might reveal,
he cannot satisfy Brady’s requirement of showing that the
20 UNITED STATES v. CARO
requested evidence would be "favorable to [the] accused."
Brady, 373 U.S. at 87; see United States v. Agurs, 427 U.S.
97, 109-10 (1976) ("The mere possibility that an item of
undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not estab-
lish ‘materiality’ in the constitutional sense.").
C.
We next review the denial of Caro’s motions requesting
Rule 17(c) subpoenas. Rule 17(c) "implements the Sixth
Amendment guarantee that an accused have compulsory pro-
cess to secure evidence in his favor." In re Martin Marietta
Corp., 856 F.2d 619, 621 (4th Cir. 1988). Rule 17(c) lets a
defendant subpoena information, but provides that "the court
may quash or modify the subpoena if compliance would be
unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2). The
Supreme Court has held that a Rule 17(c) subpoena is "unrea-
sonable or oppressive" unless the party requesting it demon-
strates:
(1) that the documents are evidentiary and relevent
[sic]; (2) that they are not otherwise procurable rea-
sonably in advance of trial by exercise of due dili-
gence; (3) that the party cannot properly prepare for
trial without such production and inspection in
advance of trial and that the failure to obtain such
inspection may tend unreasonably to delay the trial;
and (4) that the application is made in good faith and
is not intended as a general "fishing expedition."
United States v. Nixon, 418 U.S. 683, 699-700 (1974).
Accordingly, a defendant seeking a Rule 17(c) subpoena
"must clear three hurdles: (1) relevancy; (2) admissibility; (3)
specificity." Id. at 700. We have emphasized that "Rule 17(c)
. . . is not a discovery device." Fowler, 932 F.2d at 311 (citing
Bowman Dairy Co. v. United States, 341 U.S. 214, 220
(1951)).
UNITED STATES v. CARO 21
The district court denied Caro’s motions for Rule 17(c)
subpoenas because "a Rule 17 subpoena duces tecum cannot
substitute for the limited discovery otherwise permitted in
criminal cases and the hope of obtaining favorable evidence
does not justify the issuance of such a subpoena." Caro, 461
F. Supp. 2d at 481. This decision was not an abuse of discre-
tion. Caro can only speculate as to what the requested infor-
mation would have shown. Moreover, his requested Rule
17(c) subpoenas cast a wide net that betokens a "general ‘fish-
ing expedition,’" Nixon, 418 U.S. at 700, and they merely
duplicate Caro’s discovery motion under Rule 16(a)(1)(E).
D.
Finally, we consider the district court’s denial of Caro’s
motion under Rule 16(a)(1)(E). Rule 16 differs from Brady,
which rests upon due process considerations, and provides the
minimum amount of pretrial discovery granted in criminal
cases. See United States v. Baker, 453 F.3d 419, 424 (7th Cir.
2006) ("Rule 16 . . . is broader than Brady."); United States
v. Conder, 423 F.2d 904, 911 (6th Cir. 1970) ("We are . . . of
the view that the disclosure required by Rule 16 is much
broader than that required by the due process standards of
Brady."). Setting out the discovery to which defendants are
entitled, section (a)(1)(E) provides:
Upon a defendant’s request, the government must
permit the defendant to inspect and to copy or photo-
graph books, papers, documents, data, photographs,
tangible objects, buildings or places, or copies or
portions of any of these items, if the item is within
the government’s possession, custody, or control
and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its
case-in-chief at trial; or
22 UNITED STATES v. CARO
(iii) the item was obtained from or belongs to the
defendant.
Fed. R. Crim. P. 16(a)(1)(E). The government does not dis-
pute that the information requested by Caro is "within the
government’s possession, custody, or control,"13 and Caro
does not assert that subsection (ii) or (iii) applies.14 Id. There-
fore, we focus on subsection (i).
Under subsection (i), the government must make available
to the defendant any requested items that are "material to pre-
paring the defense." Fed. R. Crim. P. 16(a)(1)(E)(i). For the
defendant to show materiality under this rule, "[t]here must be
some indication that the pretrial disclosure of the disputed
evidence would have enabled the defendant significantly to
alter the quantum of proof in his favor." United States v. Ross,
511 F.2d 757, 763 (5th Cir. 1975), cert. denied, 423 U.S. 836.15
13
We note that certain discovery requests that Caro made may fall out-
side Rule 16 because they apparently call for data processing. For exam-
ple, Caro requested "[d]ata showing median length of stay, range of length
of stay and standard deviation of the distribution of length of stay at Flor-
ence ADMAX." J.A. 396. Assuming that here Caro requests statistical
analysis, the government would not have been obliged to comply under
Rule 16, which requires only that "the government must permit the defen-
dant to inspect and to copy or photograph" requested items. Fed. R. Crim.
P. 16(a)(1)(E). However, the government never raised this argument.
14
When asked during oral argument whether Caro asserted any claim
arising from the government having violated the district court’s order that
it "may not rely on specific instances of inmate violence (other than the
defendant’s own) in seeking to prove his future dangerousness," Caro, 461
F. Supp. 2d at 482, counsel for Caro stated that she noted the govern-
ment’s misconduct merely to bolster her argument about subsection (i).
Regardless of whether subsection (ii) would apply, we cannot grant relief
that Caro plainly failed to request.
15
Although we have not adopted this Ross standard in any published
opinion, we have in two unpublished opinions. See United States v. Farah,
No. 06-4712, 2007 WL 2309749, at *4 (4th Cir. Aug. 14, 2007); United
States v. Kirk, No. 88-5095, 1989 WL 64139, at *2 (4th Cir. June 2, 1989).
Numerous other circuits also follow Ross. See Baker, 453 F.3d at 425;
UNITED STATES v. CARO 23
"[E]vidence is material as long as there is a strong indication
that it will play an important role in uncovering admissible
evidence, aiding witness preparation, corroborating testimony,
or assisting impeachment or rebuttal." United States v. Lloyd,
992 F.2d 348, 351 (D.C. Cir. 1993) (citations and internal
quotations omitted).
The district court denied Caro’s motion upon finding no
indication that the information requested by Caro would sup-
port Cunningham’s testimony. The information was relevant
to future dangerousness and might have allowed Cunningham
to formulate scientifically more reliable opinions about Caro
and to test various government allegations, e.g., that gang
membership made Caro more dangerous. However, Caro
presented no facts whatsoever indicating that the information
would have actually helped prove his defense. See United
States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)
("Neither a general description of the information sought nor
conclusory allegations of materiality suffice; a defendant must
present facts which would tend to show that the Government
is in possession of information helpful to the defense."). No
one can say, for example, whether Cunningham’s more reli-
able opinions would have actually favored Caro or whether
Cunningham would have found any government allegations
unsupported. For this reason, the district court did not abuse
its discretion by finding that the requested information was
not "material to preparing the defense." Fed. R. Crim. P.
16(a)(1)(E)(i).
United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003); United
States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998); United States v. Ste-
vens, 985 F.2d 1175, 1180 (2d Cir. 1993); United States v. Marshall, 532
F.2d 1279, 1285 (9th Cir. 1976); United States v. Scott, No. 92-6272, 1993
WL 411596, at *3 (10th Cir. Oct. 8, 1993); see also United States v. RMI
Co., 599 F.2d 1183, 1188 (3d Cir. 1979) (noting the Ross standard in
another context). Like our sister circuits, we believe Ross provides an ade-
quate formula for applying Rule 16. Having said that, we stress that "ma-
teriality" in Rule 16(a)(1)(E)(i) differs from "materiality" under Brady,
which is grounded in the Due Process Clause.
24 UNITED STATES v. CARO
IV. Statutory Aggravating Factors
We next consider Caro’s constitutional challenge to 18
U.S.C. § 3592(c)(10) and (12), the statutory aggravating fac-
tors that made him eligible for the death penalty. Caro pre-
served this challenge below by unsuccessfully moving to
strike. "We review de novo a properly preserved constitu-
tional claim." United States v. Hall, 551 F.3d 257, 266 (4th
Cir. 2009).
As we have noted, the government had to establish at least
one statutory aggravating factor to make Caro eligible for the
death penalty. Moreover, the jury had to consider all aggra-
vating and mitigating factors in determining whether impos-
ing a death sentence was justified. For homicide defendants,
the FDPA enumerates sixteen statutory aggravating factors.
See 18 U.S.C. § 3592(c). During the eligibility phase of
Caro’s sentencing hearing, the jury found that the following
two had been proved beyond a reasonable doubt:
(10) Conviction for two felony drug offenses.—The
defendant has previously been convicted of 2 or
more State or Federal offenses punishable by a term
of imprisonment of more than one year, committed
on different occasions, involving the distribution of
a controlled substance.
**
(12) Conviction for serious Federal drug
offenses.—The defendant had previously been con-
victed of violating title II or III of the Comprehen-
sive Drug Abuse Prevention and Control Act of 1970
for which a sentence of 5 or more years may be
imposed or had previously been convicted of engag-
ing in a continuing criminal enterprise.
18 U.S.C. § 3592(c)(10), (12). Both aggravating factors were
based on Caro’s previous convictions for nonviolent drug
UNITED STATES v. CARO 25
offenses. Caro had stipulated to being convicted of possession
with intent to distribute marijuana in 1988, conspiracy to pos-
sess with intent to distribute marijuana in 1994, and posses-
sion with intent to distribute cocaine in 2001. He had
stipulated that these offenses met § 3592(c)(10) and (12).
Having unsuccessfully moved to strike, Caro now argues that
these two statutory aggravating factors violate the Eighth
Amendment because they are not "rationally relate[d] to the
question who should live or die." Appellant’s Br. at 130.
The Eighth Amendment requires that a capital sentencing
scheme must limit "[c]apital punishment . . . to those offend-
ers who commit a narrow category of the most serious crimes
and whose extreme culpability makes them the most deserv-
ing of execution." Roper v. Simmons, 543 U.S. 551, 568
(2005) (internal quotations omitted). The FDPA establishes
various safeguards intended to meet this standard. Among
them are the following:
• § 3591 authorizes the death penalty only for cer-
tain crimes;
• § 3593(e) requires that at least one statutory
aggravating factor be established before a death
sentence may be considered;
• § 3592(a) mandates consideration of mitigating
factors when selecting a death sentence; and
• § 3595(c) calls for reconsidering any death sen-
tence influenced by arbitrary factors, resulting
from insufficient evidence, or involving legal
error not harmless beyond a reasonable doubt.
Regarding the second safeguard, i.e., that at least one statu-
tory aggravating factor must be established before a death
sentence may be considered, the Supreme Court has said that
"each statutory aggravating circumstance must satisfy a con-
26 UNITED STATES v. CARO
stitutional standard derived from the principles of Furman,"
Zant v. Stephens, 462 U.S. 862, 876 (1983), which reversed
death sentences because Georgia had "permit[ted] this unique
penalty to be so wantonly and so freakishly imposed," Fur-
man v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., con-
curring). See Gregg v. Georgia, 428 U.S. 153, 189 (1976)
("[W]here discretion is afforded a sentencing body on a mat-
ter so grave as the determination of whether a human life
should be taken or spared, that discretion must be suitably
directed and limited so as to minimize the risk of wholly arbi-
trary and capricious action"); Gardner v. Florida, 430 U.S.
349, 358 (1977) ("It is of vital importance to the defendant
and to the community that any decision to impose the death
sentence be, and appear to be, based on reason rather than
caprice or emotion."). Specifically, the Court articulated two
requirements: "an aggravating circumstance [1] must genu-
inely narrow the class of persons eligible for the death penalty
and [2] must reasonably justify the imposition of a more
severe sentence on the defendant compared to others found
guilty of murder." Zant, 462 U.S. at 877. See, e.g., id. at 879
(approving the aggravating factors of having "escaped from
lawful confinement" and having "a prior record of conviction
for a capital felony" because they "adequately differentiate
this case in an objective, evenhanded, and substantively ratio-
nal way from . . . murder cases in which the death penalty
may not be imposed"); Godfrey v. Georgia, 446 U.S. 420, 433
(1980) (reversing a death sentence because the narrowing fac-
tor did not reflect "a consciousness materially more
‘depraved’ than that of any person guilty of murder").
Caro argues that § 3592(c)(10) and (12) do not satisfy these
two requirements. We find his argument unpersuasive.
Regarding the first requirement, the Supreme Court explained
that "the [aggravating] circumstance may not apply to every
defendant convicted of [the offense]; it must apply only to a
subclass of defendants." Tuilaepa v. California, 512 U.S. 967,
972 (1994). Section 3592(c)(10) and (12) clearly meet this
forgiving standard. Although some drug offenses are quite
UNITED STATES v. CARO 27
common, not all homicide defendants have prior convictions
that satisfy § 3592(c)(10) or (12). Furthermore, these aggra-
vating factors differ markedly from ones the Supreme Court
has invalidated for not genuinely narrowing the class of
defendants eligible for the death penalty. See Godfrey, 446
U.S. at 428-29 (reviewing the factor, "that the offense was
outrageously or wantonly vile, horrible and inhuman," and
concluding that "[a] person of ordinary sensibility could fairly
characterize almost every murder as outrageously or wantonly
vile, horrible and inhuman" (internal quotations omitted));
Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988) (review-
ing the factor, "especially heinous, atrocious, or cruel," and
concluding that "an ordinary person could honestly believe
that every unjustified, intentional taking of human life is espe-
cially heinous" (internal quotations omitted)).
Regarding the second requirement, one can hardly dispute
the congressional wisdom that recidivism justifies harsher
sentencing. Defendants with significant criminal histories
demonstrate unwillingness or inability to follow the law. This
justifies imposing harsher sentences to provide increased ret-
ribution and deterrence. Prior convictions are thus properly
and routinely considered in federal sentencing. See
Almendarez-Torres v. United States, 523 U.S. 224, 230
(1998) ("[P]rior commission of a serious crime . . . is as typi-
cal a sentencing factor as one might imagine."). Moreover, the
felony drug offenses described by § 3592(c)(10) and (12) are
serious indeed, however common may be their commission.
See City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000)
("There is no doubt that traffic in illegal narcotics creates
social harms of the first magnitude."). Although Caro’s prior
convictions satisfying § 3592(c)(10) and (12) might be con-
sidered "nonviolent" by themselves, illegal drugs have long
and justifiably been associated with violence. See United
States v. Green, 436 F.3d 449, 459 (4th Cir. 2006) (noting that
Congress "made the policy determination that recidivism for
drug dealing, without more, is especially dangerous"); United
States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) ("Guns are
28 UNITED STATES v. CARO
tools of the drug trade."). Therefore, we find that these statu-
tory aggravating factors reasonably justify imposing a more
severe sentence on Caro compared to others.
For the reasons stated above, we conclude that
§ 3592(c)(10) and (12) do not violate the Eighth Amendment.16
In so concluding, we follow the only other circuit to have con-
sidered this issue. See United States v. Bolden, 545 F.3d 609,
616-17 (8th Cir. 2008) (upholding § 3592(c)(10)).
V. Closing Argument
We next consider Caro’s challenge to the government’s
closing argument during the selection phase. Caro asserts that
various remarks by the government violated the Fifth Amend-
ment’s Due Process Clause. In assessing alleged prosecutorial
misconduct, we ask "whether the [misconduct] so infected the
16
The dissent presupposes that each statutory aggravating factor stand-
ing alone must narrow the class of persons eligible for the death penalty
to include only those who deserve a death sentence. Specifically, the dis-
sent invokes the "pyramid" metaphor Zant adopted to describe Georgia’s
capital sentencing scheme, "with the death penalty applying only to those
few cases which are contained in the space just beneath the apex," 462
U.S. at 871 (internal quotations omitted), and concludes that "the question
raised by Caro’s appeal is whether the two [statutory] aggravating factors
found by the jury are constitutionally sufficient to move him from the base
to the apex . . . ." Dis. Op. at 56. Existing Supreme Court precedent does
not impose such a requirement. A capital sentencing scheme as a whole
must limit "[c]apital punishment . . . to those offenders who commit a nar-
row category of the most serious crimes and whose extreme culpability
makes them the most deserving of execution." Roper, 543 U.S. at 568
(internal quotations omitted). However, it does not follow that a statutory
aggravating factor alone must satisfy that requirement. (Indeed, the FDPA
contains various safeguards intended to satisfy that requirement when
taken together.) Instead, the Supreme Court stated that a statutory aggra-
vating factor need only "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 mur-
der." Zant, 462 U.S. at 877. For the reasons stated above, § 3592(c)(10)
and (12) plainly satisfy this standard.
UNITED STATES v. CARO 29
trial with unfairness as to make the resulting conviction a
denial of due process." Darden v. Wainwright, 477 U.S. 168,
181 (1986) (internal quotations omitted). To prove reversible
error, the defendant must show (1) "that the prosecutor’s
remarks or conduct were improper" and (2) "that such
remarks or conduct prejudicially affected his substantial rights
so as to deprive him of a fair trial." United States v. Scheetz,
293 F.3d 175, 185 (4th Cir. 2002).
A.
The government’s closing argument during the selection
phase stressed that only a death sentence could "control"
Caro. Particularly, the government indicated that a death sen-
tence should be imposed because the BOP would not secure
Caro adequately to prevent future violence. The government
argued, "[E]very time the Bureau of Prisons has attempted to
control Carlos Caro, to, to bring whatever pressure they had
to bear, whatever security they had to bear on him, . . . he has
defeated those attempts." J.A. 1395. It added, "[C]an he be
controlled in the Bureau of Prisons? I suspect the answer to
that question is no. . . . The reason he can’t be controlled is
because the system is not failsafe." J.A. 1399. Responding to
Cunningham’s testimony that during a life sentence Caro
would be incapacitated at Florence ADMAX until the BOP
found him no longer dangerous, the government remarked:
"[W]hat about this classification system that the BOP has?
The question is can we rely on the BOP to send Caro to a
place where he won’t kill? . . . [W]e know that the system for
classification is not failsafe." J.A. 1401-02.
The government later asserted, "There is simply nothing the
Bureau of Prisons can do to deter [Caro]," but explained,
"There is one thing that we can do." J.A. 1404. The govern-
ment continued, "[W]hat is the way that we can deter Carlos
Caro? When I say we, this is something I can’t do, the judge
can’t do it, because the question of the death penalty, ladies
30 UNITED STATES v. CARO
and gentlemen, is left exclusively to you, the jury. It’s your
decision." J.A. 1404. The government concluded:
So, ladies and gentlemen, we now come to you.
You’re it. I’m the United States Attorney, powerless
to control Caro. United States District Judge, federal
judge, powerless to do it. The law allows one last
option, and that is you. And only you. Judge Jones
will do what you say. You go back there and find a
unanimous verdict for life, that’s what he will
impose. You find death, that’s what he’ll do. The
authority and the responsibility for the control of
Carlos David Caro is in your hands. We have done
all we can do. And so we come to you.
J.A. 1438-39.
B.
Caro’s principal challenge here relates to the government’s
argument that only a death sentence could control Caro.17
Although we find this argument troubling for the reasons dis-
cussed below, we cannot conclude that Caro suffered such
prejudice as to warrant reversal.
17
Caro makes other challenges that are unpersuasive, but only one mer-
its discussion. He challenges the government’s argument that a life sen-
tence would send bad messages. The government stated that a life
sentence would tell the Texas Syndicate, "[Y]ou can kill and it’s okay,"
J.A. 1436; would tell prison staff and inmates, "It’s open season because
in this community there’s no punishment for murder," J.A. 1436; and
would tell Sandoval’s parents "that their son’s life was meaningless," J.A.
1435. Because the decision whether to impose the death penalty should
involve "an individualized determination on the basis of the character of
the individual and the circumstances of the crime," Zant, 462 U.S. at 879
(emphasis omitted), the government’s comments about messages sent to
anyone other than Caro might have been improper. Regardless whether we
found them improper, however, these comments did not prejudice Caro
enough to violate the Due Process Clause because they were isolated and
unlikely to mislead the jury. See Scheetz, 293 F.3d at 175.
UNITED STATES v. CARO 31
The FDPA created an analytical framework for considering
the death penalty clearly designed to minimize arbitrariness.
The Supreme Court explained that the decision whether to
select the death penalty should involve "an individualized
determination on the basis of the character of the individual
and the circumstances of the crime." Zant, 462 U.S. at 879
(emphasis omitted). The suggestion that the BOP would not
secure Caro adequately to prevent future violence implicates
policy and resource considerations that are quite different. See
Tucker v. Kemp, 762 F.2d 1496, 1508 (11th Cir. 1985) (en
banc) ("Neither the future diligence of an appellate court nor
the possibility of future incompetence of corrections and
parole personnel should be invoked to alter the jury’s percep-
tion of its role at capital sentencing."). Moreover, calling upon
the jury to "control" Caro gives them a role more akin to law
enforcement than to impartial arbitration between the defen-
dant and government. See United States v. Young, 470 U.S. 1,
18 (1985) ("The prosecutor was . . . in error to try to exhort
the jury to ‘do its job’; that kind of pressure . . . has no place
in the administration of criminal justice.").
Our concerns notwithstanding, on these facts we cannot
find such prejudice as to warrant reversal. We reach that con-
clusion based on various factors we have found relevant when
assessing prejudice:
(1) the degree to which the prosecutor’s remarks had
a tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the defendant; (4) whether the comments were delib-
erately placed before the jury to divert attention to
extraneous matters; (5) whether the prosecutor’s
remarks were invited by improper conduct of
defense counsel; and (6) whether curative instruc-
tions were given to the jury.
32 UNITED STATES v. CARO
Scheetz, 293 F.3d at 186.
The government’s comments about the jury’s role were iso-
lated and not extensive. More significantly, regarding the gov-
ernment’s comments about whether the BOP would
adequately secure Caro to prevent future dangerousness,
Caro’s own argument opened the door. Caro’s expert Cun-
ningham acknowledged that Caro remained dangerous, but
testified that Caro would not endanger anyone because the
BOP would incapacitate him at Florence ADMAX.18 This
plainly invited the government to respond that, actually, the
BOP would not secure Caro adequately to prevent future vio-
lence.
Furthermore, the district court’s instructions counterbal-
anced any improper comments. The court stated that the jury
should "make a unique, individualized judgment about the
justification for and appropriateness of the death penalty
. . . ." Trial Tr. 105, Doc. 687, June 19, 2004. The court also
cautioned, "I remind you that the statements, questions, and
arguments of counsel are not evidence." Trial Tr. 102.
Finally, each alleged non-statutory aggravating factor was
well supported by the record. Most notably, Caro’s previous
violent conduct, his statements evincing indifference to pun-
ishment, and Cunningham’s own admission about Caro’s
future dangerousness certainly sufficed to establish the non-
statutory aggravating factor of future dangerousness. There-
fore, we cannot say that the government’s closing argument
"prejudicially affected [Caro’s] substantial rights so as to
deprive him of a fair trial." Scheetz, 293 F.3d at 185.
18
Cunningham admitted, "[I]n the general population of a U.S. peniten-
tiary, there is a very high risk that Mr. Caro would seriously injure some-
one else." J.A. 1267.
UNITED STATES v. CARO 33
VI. Lack of Remorse
We next consider Caro’s Fifth Amendment claim regarding
lack of remorse. Caro argues that the government and district
court violated his Fifth Amendment privilege against self-
incrimination by having the jury consider Caro’s failure to
speak words of remorse. The government admits referring to
Caro’s silence during closing argument but contends that the
Fifth Amendment permitted using silence to prove the non-
statutory aggravating factor of lack of remorse. "We review
de novo a properly preserved constitutional claim." Hall, 551
F.3d at 266. Given the court’s cautionary instruction and
overwhelming information showing Caro’s lack of remorse,
we conclude that any error would have been harmless under
18 U.S.C. § 3595(c)(2).
A.
The government’s notice of intent to seek the death penalty
under the FDPA asserted a non-statutory aggravating factor of
lack of remorse. Cases in which the government has properly
established this non-statutory aggravating factor have gener-
ally involved affirmative words or conduct. See, e.g., United
States v. Basham, 561 F.3d 302, 334 (4th Cir. 2009) (deeming
evidence of drug use and sexual encounters during a crime
spree highly probative of lack of remorse); Emmett v. Kelly,
474 F.3d 154, 170 (4th Cir. 2007) (holding that a statement,
made in response to police questioning about a murder, that
the victim "was ‘an asshole’ who ‘wouldn’t loan me no
money’" showed lack of remorse). Here, however, the gov-
ernment alleged that "Carlos David Caro has not expressed
remorse for his violent acts, including (but not limited to) the
murder of Sandoval, the stabbing of Benavidez and the gang-
based assault in Oakdale." J.A. 57 (emphasis added).
Caro objected and moved to strike the government’s allega-
tion, arguing that "[e]vidence of lack of remorse must be more
than mere silence on the part of the defendant and must not
34 UNITED STATES v. CARO
implicate his constitutional right to remain silent." J.A. 75.
Caro also objected to the district court’s proposed jury
instruction, which referred to the government’s allegation but
cautioned, "[M]ere silence, alone, by the defendant should not
be considered as proof of lack of remorse." J.A. 1449. Caro
proposed the following alternative:
The government has alleged as a non-statutory
aggravating factor that Carlos David Caro has not
expressed remorse for the killing of Roberto Sando-
val. . . . To find this aggravating factor, the govern-
ment must prove beyond a reasonable doubt that
Carlos David Caro, by his words or his actions, indi-
cated a pervading and continuing lack of remorse for
the killing of Roberto Sandoval. Mere silence on his
part or the absence of an affirmative expression of
remorse on his part may never be the basis of a lack
of remorse because Carlos David Caro has a Consti-
tutional right to remain silent which cannot be used
against him for any purpose.
J.A. 459. The district court declined to give this proposed
instruction. The court also overruled Caro’s objection and
denied his motion to strike, reasoning that the government
intended to prove Caro’s lack of remorse "by his actions and
statements, not by mere silence." United States v. Caro, No.
06-1, 2006 WL 1594185, at *7 (W.D. Va. June 2, 2006).
The government’s closing argument during the selection
phase addressed this issue. The government pointed out
Caro’s failure to apologize:
We talk about lack of remorse as being an aggrava-
tor. You know, a lot of times we do things, and you
sit around and you say, "Gee, boy, I shouldn’t have
done that. I’m sorry I did that." All of us do things
like that. We, many times we apologize to our family
members, our friends, and say "Gee, what was I
UNITED STATES v. CARO 35
thinking? I didn’t mean to do that." Have we seen
any remorse at all from Carlos Caro with regard to
any of the bad stuff that he’s ever done? No.
J.A. 1397. The government also mentioned Caro’s callous
remarks following Sandoval’s death; Cunningham’s testi-
mony, "Well, I’m assuming Carlos Caro has no remorse," J.A.
1398; and Caro’s January 2004 letter to Gomez showing more
concern about Caro’s standing among Texas Syndicate mem-
bers than about Benavidez’s suffering. The government also
mentioned Caro’s failure to apologize to Gomez for killing
Sandoval.
At the close of argument, the district court gave the follow-
ing jury instruction:
C, lack of remorse. The Government has alleged that
Carlos David Caro has not expressed remorse for his
violent acts, including the murder of Roberto Sando-
val, the stabbing and attempted murder of Ricardo
Benavidez, and the gang based assault at Oakdale.
Remember that the defendant has a constitutional
right to remain silent, and mere silence, alone, by the
defendant should not be considered as proof of lack
of remorse.
J.A. 1448-49. The court later cautioned: "The defendant did
not testify. The law gives him that right. . . . Accordingly, the
fact that the defendant did not testify must not be considered
by you in any way, or even discussed in arriving at your deci-
sion." Trial Tr. 115-16.
The verdict form stated: "Do you, the jury, unanimously
find that the government has proven beyond a reasonable
doubt that the defendant has not expressed remorse for killing
Roberto Sandoval?" J.A. 1459. Beside this question, the
foreperson checked a blank labeled "Yes." J.A. 1459.
36 UNITED STATES v. CARO
B.
The Fifth Amendment privilege against self-incrimination
guarantees every criminal defendant "the right ‘to remain
silent unless he chooses to speak in the unfettered exercise of
his own will, and to suffer no penalty for such silence.’"
Estelle v. Smith, 451 U.S. 454, 468 (1981) (quoting Malloy v.
Hogan, 378 U.S. 1, 8 (1964)). Thus it "forbids either com-
ment by the prosecution on the accused’s silence or instruc-
tions by the court that such silence is evidence of guilt."
Griffin v. California, 380 U.S. 609, 615 (1965); see Miranda
v. Arizona, 384 U.S. 436, 468 n.37 (1966) (noting that a pros-
ecutor may not "use at trial the fact that [a defendant] stood
mute or claimed his privilege in the face of accusation").
The Supreme Court has recognized that the Fifth Amend-
ment applies during sentencing hearings. See Mitchell v.
United States, 526 U.S. 314, 327 (1999); see also Estelle, 451
U.S. at 463 (applying the Fifth Amendment to capital sentenc-
ing). In Mitchell, the defendant pleaded guilty to distributing
cocaine but during her plea colloquy refused to admit the
quantity involved. Following a sentencing hearing where her
codefendants testified about how much cocaine the defendant
usually distributed each week, the district court found that she
had distributed enough kilograms to mandate a minimum sen-
tence of ten years. In making this finding, the court expressly
considered the defendant’s refusal to testify. Finding error, the
Supreme Court concluded that "[b]y holding petitioner’s
silence against her in determining the facts of the offense at
the sentencing hearing, the District Court imposed an imper-
missible burden on the exercise of the constitutional right
against compelled self-incrimination." Mitchell, 526 U.S. at
330.
Importantly, Mitchell avoided the issue of whether a defen-
dant’s silence may be considered regarding a non-statutory
aggravating factor of lack of remorse. The Court stated:
"Whether silence bears upon the determination of a lack of
UNITED STATES v. CARO 37
remorse . . . is a separate question. It is not before us, and we
express no view on it." Id. Furthermore, our sister circuits are
divided over whether the Fifth Amendment prohibits using
silence to show lack of remorse inviting a harsher sentence.
Compare United States v. Mikos, 539 F.3d 706, 718 (7th Cir.
2008) (holding that during a capital sentencing a defendant’s
silence may be considered regarding lack of remorse), with
Lesko v. Lehman, 925 F.2d 1527, 1544-45 (3d Cir. 1991)
(holding that during a capital sentencing a defendant’s failure
to apologize may not be considered regarding lack of
remorse), United States v. Roman, 371 F. Supp. 2d 36, 50
(D.P.R. 2005) (holding that during a capital sentencing lack
of remorse may not be proved using "information that has a
substantial possibility of encroaching on the defendants’ con-
stitutional right to remain silent"), and United States v. Coo-
per, 91 F. Supp. 2d 90, 112-13 (D.D.C. 2000) (barring the
inference of lack of remorse from a defendant’s "unwilling-
ness to acknowledge in his post-arrest statements that he is
blameworthy for the crimes to which he admitted" (internal
quotations omitted)). Despite Mitchell having reserved the
question of whether silence bears upon lack of remorse, that
decision may resolve the question we face today when read in
conjunction with Estelle.19
19
The government maintains that we should follow two Seventh Circuit
decisions. In Burr v. Pollard, the court reasoned that "silence can be con-
sistent not only with exercising one’s constitutional right, but also with a
lack of remorse . . . [which] is properly considered at sentencing because
it speaks to traditional penological interests such as rehabilitation . . . and
deterrence . . . ." 546 F.3d 828, 832 (7th Cir. 2008). This rationale over-
looks the implications of remaining silent. Because remorse implies con-
sciousness of guilt, speaking words of remorse for conduct prevents a
defendant from later denying that conduct. Likewise, choosing to deny
guilt prevents a defendant from speaking words of remorse for the charged
offense. Exercising one’s Fifth Amendment right to remain silent therefore
entails failure to speak words of remorse. Accordingly, penalizing a capi-
tal defendant for failure to articulate remorse burdens his Fifth Amend-
ment privilege against self-incrimination.
In United States v. Mikos, the court later reasoned that sentencing courts
routinely consider silence in determining failure to accept responsibility
38 UNITED STATES v. CARO
Sentencing involves findings about (1) circumstances of
criminal conduct and (2) characteristics of the defendant. See
18 U.S.C. § 3553(a)(1) (requiring a sentencing court to con-
sider "the nature and circumstances of the offense and the his-
tory and characteristics of the defendant"); Zant, 462 U.S. at
879 (requiring that a selection decision during capital sentenc-
ing be "an individualized determination on the basis of the
character of the individual and the circumstances of the
crime" (emphasis omitted)). Following Griffin and its prog-
eny, Mitchell held that a defendant’s silence cannot be consid-
ered "in determining the facts of the offense at the sentencing
hearing," 526 U.S. at 330, but the Court avoided mentioning
whether silence could be considered regarding the defendant’s
character. For this reason, the government argues that Mitch-
ell permits considering silence regarding the non-statutory
aggravating factor of lack of remorse, which relates to charac-
ter.
This argument, however, is in tension with Estelle. There,
the Supreme Court found that the Fifth Amendment prohib-
ited using a defendant’s unwarned statements to prove the
non-statutory aggravating factor of future dangerousness. See
Estelle, 451 U.S. at 468. Future dangerousness and lack of
remorse are similar factors that pertain to character rather than
to circumstances of criminal conduct.20 Accordingly, at least
under Section 3E1.1 of the United States Sentencing Guidelines, providing
a sentencing discount for acceptance of responsibility. 539 F.3d at 718.
But we previously held that withholding a sentencing discount under sec-
tion 3E1.1, unlike a sentence enhancement, does not penalize the defen-
dant for remaining silent. See United States v. Gordon, 895 F.2d 932, 936-
37 (4th Cir. 1990) ("[F]or section 3E1.1 of the guidelines to apply, a
defendant must first accept responsibility for all of his criminal conduct.
. . . However, a defendant is not penalized for failing to accept responsibil-
ity. Rather, acceptance of responsibility is a mitigating factor available
under appropriate circumstances." (citations omitted)).
20
The government originally alleged lack of remorse as one of three
considerations supporting the non-statutory aggravating factor of future
dangerousness. The record does not make clear when lack of remorse
became its own non-statutory aggravating factor, but the jury instruction
treats them separately.
UNITED STATES v. CARO 39
for the purpose of capital sentencing, Estelle belies any sup-
posed distinction created by Mitchell between circumstances
of criminal conduct and characteristics of the defendant. See
also Mitchell, 526 U.S. at 340 (Scalia, J., dissenting) (finding
"no logical basis for drawing such a line within the sentencing
phase" (emphasis omitted)). Estelle might have been distin-
guishable as involving unwarned statements rather than
silence, but Mitchell itself forecloses that argument. See
Mitchell, 526 U.S. at 329 ("Although Estelle was a capital
case, its reasoning applies with full force here, where the
Government seeks to use petitioner’s silence . . . ."). Thus,
Estelle and Mitchell together suggest that the Fifth Amend-
ment may well prohibit considering a defendant’s silence
regarding the non-statutory aggravating factor of lack of
remorse.21
Although we recognize Estelle and Mitchell’s guidance, we
ultimately find that any error would have been harmless. See
18 U.S.C. § 3595(c)(2) ("The court of appeals shall not
reverse or vacate a sentence of death on account of any error
which can be harmless, including any erroneous special find-
ing of an aggravating factor, where the Government estab-
lishes beyond a reasonable doubt that the error was
harmless."). Any prejudice Caro suffered was greatly miti-
gated by the district court’s cautionary jury instruction. The
court stated, "Remember that the defendant has a constitu-
tional right to remain silent, and mere silence, alone, by the
defendant should not be considered as proof of lack of
remorse." J.A. 1449. This indicated that silence could never
be considered regarding the non-statutory aggravating factor
21
Furthermore, Mitchell reasoned that "[t]he Government retains the
burden of proving facts relevant to the crime at the sentencing phase and
cannot enlist the defendant in this process at the expense of the self-
incrimination privilege." 526 U.S. at 330. This reasoning applies a fortiori
to the non-statutory aggravating factor of lack of remorse. See 18 U.S.C.
§ 3593(c) ("The burden of establishing the existence of any aggravating
factor is on the government, and is not satisfied unless the existence of
such a factor is established beyond a reasonable doubt.").
40 UNITED STATES v. CARO
of lack of remorse, and "we presume that a properly instructed
jury has acted in a manner consistent with the instruction[ ]."
United States v. Alerre, 430 F.3d 681, 692 (4th Cir. 2005); see
also Richardson v. Marsh, 481 U.S. 200, 206 (1987) (recog-
nizing "the almost invariable assumption of the law that jurors
follow their instructions").
Furthermore, Caro’s affirmative conduct displaying lack of
remorse was significant and telling. Just after killing Sando-
val, Caro yelled, "Come get this piece of shit out of here."
J.A. 676. When asked whether Sandoval was breathing, Caro
replied: "No. At this time he’s stinking up the room, get him
out." J.A. 684. He also explained, "[Sandoval] called me a
mother fucker, that whore, that’s why I fucked him up." J.A.
781. And Caro boasted, "I killed a guy two weeks ago . . .
[f]or being a fool." J.A. 790. In short, Caro exhibited lack of
remorse quite clearly until deciding to plead not guilty and
claim self-defense. Even without considering Caro’s silence,
the jury could not reasonably have reached another conclusion
regarding lack of remorse.
VII. Mercy Instruction
Next we review the district court’s failure to give Caro’s
proposed jury instruction about mercy. See United States v.
Caro, 483 F. Supp. 2d 513, 517-18 (W.D. Va. 2007). "We
review the district court’s decision to give or refuse to give a
jury instruction for abuse of discretion." United States v. Pas-
saro, 577 F.3d 207, 221 (4th Cir. 2009). "A district court
commits reversible error in refusing to provide a proffered
jury instruction only when the instruction (1) was correct; (2)
was not substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so important,
that failure to give the requested instruction seriously
impaired the defendant’s ability to conduct his defense." Id.
(internal quotation omitted). "Moreover, we do not view a sin-
gle instruction in isolation; rather we consider whether taken
as a whole and in the context of the entire charge, the instruc-
UNITED STATES v. CARO 41
tions accurately and fairly state the controlling law." Id.
(internal quotations omitted).
A.
Caro requested the following jury instruction, indicating
that mercy alone could justify a life sentence:
[W]hatever findings you make with respect to the
aggravating and mitigating factors, you are never
required to impose a sentence of death. For example,
there may be something about this case or about Car-
los David Caro that one or more of you are not able
to identify as a special mitigating factor, but that
nevertheless creates a reasonable doubt about the
need for Carlos David Caro’s death. In such a case,
the jury should render a decision against a death sen-
tence. Moreover, even when a sentence of death is
fully supported by the evidence, Congress has never-
theless given each of you the discretion to temper
justice with mercy. Any one of you is free to decide
that a death sentence should not be imposed in this
case for any reason that you see fit. You will not
have to explain the reason. Indeed, I am specifically
required by law to advise you that you have this
broad discretion.
J.A. 461.
The district court rejected Caro’s proposal. It found the
"proposed mercy instruction . . . improper because it would
have told the jury that it could base its determination on fac-
tors not specified in the FDPA." Caro, 483 F. Supp. 2d at
517-18. The court explained that, although the jury could
exercise mercy while weighing sentencing factors, it could
not find a death sentence "justified" under 18 U.S.C. § 3591
and thereafter fail to recommend a death sentence. Id. at 518.
42 UNITED STATES v. CARO
Instead of Caro’s proposed instruction, the district court
gave the following jury instruction:
Whatever findings you make with respect to aggra-
vating and mitigating factors, the result of the weigh-
ing process is never decided in advance. For that
reason, a jury is never required to impose a sentence
of death. At this last stage of your deliberation . . .
it is up to you to decide whether, for any proper rea-
son established by the evidence, you choose not to
impose such a sentence on the defendant.
What constitutes sufficient justification for [a] sen-
tence of death in this case is exclusively left to you.
Your role is to be the conscience of the community
in making a moral judgment about the worth of an
individual life balanced against the societal value of
what the Government contends is deserved punish-
ment for the defendant’s offense. Whatever aggra-
vating and mitigating factors are found, a jury is
never required to conclude the weighing process in
favor of a sentence of death, but your decision must
be a reasoned one, free from the influence of pas-
sion, prejudice, or arbitrary consideration.
J.A. 1442-43, 1451.
B.
Caro challenges the district court’s failure to give his pro-
posed mercy instruction. The issue turns on how the decision
whether to select the death penalty rather than a life sentence
should be made according to 18 U.S.C. §§ 3591 and 3593(e).
Section 3591 provides that an eligible defendant "shall be sen-
tenced to death if, after consideration of the factors set forth
in section 3592 . . .[,] it is determined that imposition of a sen-
tence of death is justified." 18 U.S.C. § 3591. Section 3593(e)
elaborates as follows:
UNITED STATES v. CARO 43
[T]he jury . . . shall consider whether all the aggra-
vating factor or factors found to exist sufficiently
outweigh all the mitigating factor or factors found to
exist to justify a sentence of death, or, in the absence
of a mitigating factor, whether the aggravating factor
or factors alone are sufficient to justify a sentence of
death. Based upon this consideration, the jury by
unanimous vote . . . shall recommend whether the
defendant should be sentenced to death, to life
imprisonment without possibility of release or some
other lesser sentence.
18 U.S.C. § 3593(e). Caro argues that § 3593(e)’s two-
sentence structure creates a two-step process whereby (1) the
death penalty might be found justified, with aggravating fac-
tors sufficiently outweighing mitigating factors, but (2) the
jury might nonetheless impose a lesser sentence out of mercy.
Conversely, the district court interpreted §§ 3591 and 3593(e)
together to mean that, once the death penalty has been found
justified because aggravating factors sufficiently outweigh
mitigating factors, the death penalty must be imposed.
We find Caro’s interpretation unpersuasive. First, the open-
ing clause of § 3593(e)’s second sentence, namely, "Based on
this consideration," refers back to the preceding sentence and
thereby implies that when selecting a sentence the jury may
consider only whether the death penalty is justified. 18 U.S.C.
§ 3593(e) (emphasis added). Second, § 3591 states plainly
that an eligible defendant "shall be sentenced to death if . . .
it is determined that imposition of a sentence of death is justi-
fied," 18 U.S.C. § 3591, and we are obliged to read §§ 3591
and 3593(e) in harmony, see Smith v. United States, 508 U.S.
223, 233 (1993) ("Just as a single word cannot be read in iso-
lation, nor can a single provision of a statute."); King v. St.
Vincent’s Hosp., 502 U.S. 215, 221 (1991) (noting "the cardi-
nal rule that a statute is to be read as a whole since the mean-
ing of statutory language, plain or not, depends on context"
(citations omitted)). See United States v. Allen, 247 F.3d 741,
44 UNITED STATES v. CARO
780-81 (8th Cir. 2001) (interpreting § 3593(e) the same way
based on § 3591), vacated on other grounds, 536 U.S. 953
(2002). Because Caro’s proposed instruction was legally
incorrect, the district court’s refusal to give that instruction
was not an abuse of discretion.
VIII. Admissibility
Next we review decisions about whether to admit testimony
offered under Federal Rule of Evidence 608(a), certain infor-
mation about Sandoval, and Caro’s offer to plead guilty. "We
review evidentiary rulings of the district court for abuse of
discretion." Basham, 561 F.3d at 325.
Decisions to admit or exclude information during an FDPA
sentencing hearing are not governed by normal rules of evi-
dence. Instead, the FDPA provides that a "defendant may
present any information relevant to a mitigating factor" and
that "[i]nformation is admissible regardless of its admissibility
under the rules governing admission of evidence at criminal
trials except that information may be excluded if its probative
value is outweighed by the danger of creating unfair preju-
dice, confusing the issues, or misleading the jury." 18 U.S.C.
§ 3593(c). We still review for abuse of discretion. See United
States v. Johnson, 223 F.3d 665, 674 (7th Cir. 2000).
A.
First we review the admission of certain testimony during
Caro’s murder trial. Sean Bullock occupied the cell directly
across from Caro’s cell when Sandoval was killed. During
trial, Bullock testified about that event as follows: "Well, I’m
standing in my door . . . and I seen out of my rear view some-
one like being choked. I looked . . . and I seen Caro standing
behind the guy." J.A. 707. Bullock also noted seeing "an
orange towel" around Sandoval’s neck. J.A. 707. Finally, Bul-
lock described several occasions where he assisted prison
guards by providing information about other inmates. Cross-
UNITED STATES v. CARO 45
examination showed that Bullock used aliases, had prior con-
victions, and testified with much greater detail than his earlier
statements. In response, the government tried to rehabilitate
Bullock by calling prison guard Gregory Bondurant. After
explaining that Bullock had been a confidential informant,
Bondurant testified: "In my opinion [Bullock] was truthful in
the dealings he had with me." J.A. 779. Caro objected to
Bondurant’s testimony but never objected to Bullock’s testi-
mony.
Caro now challenges the district court’s admission of
Bondurant’s testimony. Federal Rule of Evidence 608(a) pro-
vides:
The credibility of a witness may be attacked or sup-
ported by evidence in the form of opinion or reputa-
tion, but subject to these limitations: (1) the evidence
may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character
is admissible only after the character of the witness
for truthfulness has been attacked . . . .
Fed. R. Evid. 608(a). However, Rule 608(b) provides in part:
"Specific instances of the conduct of a witness, for the pur-
pose of attacking or supporting the witness’ character for
truthfulness, . . . may not be proved by extrinsic evidence."
Fed. R. Evid. 608(b).
Because Bullock’s character for truthfulness was clearly
attacked during cross-examination, no one contests that
Bondurant’s opinion testimony about Bullock’s character was
admissible under Rule 608(a). Caro asserts, however, that
Bondurant’s testimony that Bullock had been a confidential
informant violated Rule 608(b). The district court did not
abuse its discretion by rejecting this argument. Bondurant was
allowed to provide a foundation for his opinion testimony by
explaining his relationship with Bullock, see United States v.
Murray, 103 F.3d 310, 322 (3d Cir. 1997) (holding that "testi-
46 UNITED STATES v. CARO
mony that . . . Brown [had been] a confidential informant on
‘numerous occasions’ . . . was necessary to establish . . . a
basis on which to offer . . . opinion as to Brown’s character
for truthfulness"), and Bondurant’s statement that Bullock had
been a confidential informant did nothing more.22
B.
We next review the exclusion of certain information about
Sandoval. Caro has suggested that Sandoval might have tar-
geted him and intentionally provoked a scuffle. Anticipating
this argument, the government moved in limine to exclude
evidence that Sandoval was placed in the SHU after being
found carrying a shank. The district court denied the motion,
reasoning that such evidence could be relevant to Sandoval’s
alleged "motive for being placed in the prison’s Special Hous-
ing Unit where he would likely be celled together with
[Caro]." J.A. 550. Notwithstanding, the court warned that
Caro "might not be able to lay a proper foundation for the rel-
evancy of this evidence." J.A. 550-51. Caro waited until the
sentencing hearing to offer information about why Sandoval
was placed in the SHU. The district court excluded this infor-
mation, however, because Caro had laid no foundation for its
relevance.
Because this decision was made during the sentencing hear-
ing, we apply 18 U.S.C. § 3593(c) rather than normal rules of
evidence. Although usually more generous than normal evi-
dentiary rules, § 3593(c) likewise requires that information be
relevant to some mitigating or aggravating factor. We agree
that Caro never laid any foundation for his theory that Sando-
val was following a plan to gain access to Caro. Caro points
to nothing in the record to support this theory, and we could
22
Caro argues that testimony giving details about Bullock’s assistance
to prison officials violated Rule 608(b). Such testimony, however, came
not from Bondurant but from Bullock himself. And Caro never objected
to Bullock’s testimony.
UNITED STATES v. CARO 47
find nothing. Moreover, the information offered does not
appear relevant to any sentencing factor. We thus conclude
that the district court’s exclusion of that information was not
an abuse of discretion.
C.
Finally, we review the exclusion of Caro’s offer to plead
guilty. Hoping to rebut the alleged non-statutory factor of lack
of remorse, Caro sought to present at sentencing a letter he
had written to the government offering to plead guilty. Caro
explained, "[W]e would like . . . for the jury to know that Mr.
Caro was willing to accept responsibility for his conduct, and
accept a life sentence." J.A. 1313. The government objected
under Federal Rule of Evidence 410.23 The district court then
excluded the letter as irrelevant and "for the reasons stated by
the Government." J.A. 1314.
Caro contends that the district court erred for two separate
reasons. First, he argues that the letter was admissible under
§ 3593(c) because it supported the mitigating factor of accep-
tance of responsibility. See 18 U.S.C. § 3593(c) ("The defen-
dant may present any information relevant to a mitigating
factor."). He claims to have proceeded to trial only because
the government rejected his offer. Second, Caro argues that
his due process "right of fair rebuttal" required admitting the
letter to rebut the alleged non-statutory aggravating factor of
lack of remorse. See Skipper v. South Carolina, 476 U.S. 1,
5 n.1 (1986) ("Where the prosecution specifically relies on a
prediction of future dangerousness in asking for the death
penalty . . . the defendant [must] be afforded an opportunity
to introduce evidence on this point . . . [given] the elemental
23
Rule 410 provides that, with two exceptions, "any statement made in
the course of plea discussions with an attorney for the prosecuting author-
ity which do not result in a plea of guilty or which result in a plea of guilty
later withdrawn" is "not . . . admissible against the defendant who made
the plea or was a participant in the plea discussions." Fed. R. Evid. 410(4).
48 UNITED STATES v. CARO
due process requirement that a defendant not be sentenced to
death on the basis of information which he had no opportunity
to deny or explain." (internal quotations omitted)).
The government responds by arguing that a failed plea
negotiation does not show acceptance of responsibility or
rebut alleged lack of remorse. Caro’s letter offering to plead
guilty requested a promise not to seek the death penalty.
Because Caro’s letter was calculated to persuade the govern-
ment not to seek the death penalty, rather than expressing
unqualified remorse, we cannot agree with Caro’s argument
that the letter shows acceptance of responsibility. Therefore,
we cannot say that the district court abused its discretion or
violated due process by excluding it as irrelevant.24 See Owens
v. Guida, 549 F.3d 399, 420 (6th Cir. 2008) (indicating that
a conditional plea offer does not show acceptance of responsi-
bility).
IX. Cumulative Error
Finally, Caro argues that cumulative error warrants rever-
sal. See Chambers v. Mississippi, 410 U.S. 284, 302-03
(1973) (finding that exclusion of critical evidence coupled
with inability to cross-examine violated due process by deny-
ing a fair trial). "Pursuant to the cumulative error doctrine, the
cumulative effect of two or more individually harmless errors
24
In addition, Caro challenges the district court’s denial of his motion
for allocution (unsworn testimony without cross-examination) prior to sen-
tencing. Caro moved for allocution under Federal Rule of Criminal Proce-
dure 32, the Due Process Clause of the Fifth Amendment, and the Sixth
Amendment. We have said that neither Rule 32 nor the Constitution pro-
vides a "right to make an unsworn statement of remorse before the jury
which was not subject to cross examination" during a capital sentencing.
United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000). Accordingly,
the decision of whether to allow the allocution fell within the district
court’s discretion. Because the court could reasonably have concluded that
such information would be unduly prejudicial, confusing, or misleading
under § 3593(c), we see no abuse of discretion.
UNITED STATES v. CARO 49
has the potential to prejudice a defendant to the same extent
as a single reversible error." Basham, 561 F.3d at 330 (inter-
nal quotations omitted). "To satisfy this requirement, such
errors must so fatally infect the trial that they violated the
trial’s fundamental fairness." Id. (internal quotations omitted).
Although we recognized several possible errors, they were
not widespread or prejudicial enough to have fatally infected
Caro’s trial or sentencing hearing. The proceeding below
adhered to fundamental fairness. Each aggravating factor
determined by the jury was well supported by the record.
Finally, we cannot see how cumulative error could have
caused the jury to weigh sentencing factors any differently.
For the reasons explained above, we
AFFIRM.
UNITED STATES v. CARO 51
Volume 2 of 2
52 UNITED STATES v. CARO
GREGORY, Circuit Judge, dissenting:
Today the majority blesses with constitutional imprimatur
a death sentence that could only have been imposed after the
jury found that Carlos Caro had previously been convicted of
relatively minor, nonviolent drug offenses. If his sentence is
ultimately carried out, Caro might well be the first, and as yet
only, defendant executed after a jury found him death-eligible
solely due to this type of nonviolent conduct. To reach this
result, the majority applies the wrong test for deciding
whether eligibility factors sufficiently narrow the class of
defendants who can be executed and renders an important
step in capital jurisprudence virtually useless. In doing so, my
colleagues uphold statutory provisions that distinguish those
who live from those who die in a wholly arbitrary and capri-
cious way. I respectfully dissent.1
I.
At the outset, it is important to be clear about what conduct
the eligibility factors in 18 U.S.C. §§ 3592(c)(10) and (12)
cover and how those subsections apply to Caro. Subsection
ten provides that a convicted murderer is eligible for death if
that defendant "has previously been convicted of 2 or more
State or Federal offenses punishable by a term of imprison-
ment of more than one year, committed on different occa-
sions, involving the distribution of a controlled substance."
§ 3592(c)(10). Subsection twelve makes a convicted murderer
death-eligible if "[t]he defendant had previously been con-
victed of violating title II or III of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 for which a sen-
tence of 5 or more years may be imposed." § 3592(c)(12).
Titles II and III, as amended, prescribe five-or-more years in
prison for, among other things, simple possession of "a mix-
1
My dissent is limited to the judgment and the majority’s holding in
Part IV that the eligibility factors in this case pass Eighth Amendment
scrutiny. I concur with the rest of the Court’s analysis.
UNITED STATES v. CARO 53
ture or substance which contains cocaine base," 21 U.S.C.
§ 844(a), and distribution of controlled substances, including
possession with intent to distribute, § 841.
It is clear from the statute’s structure that Congress
intended to target relatively minor drug offenders for death-
eligibility, and not simply the worst of the worst. Congress
could have crafted eligibility factors that covered the worst
offenders — those, for example, who operate through vio-
lence and intimidation, drug kingpins, and those who target
children and schools — in fact, Congress did so in other parts
of the FDPA. See 18 U.S.C. § 3591(b)(1) (authorizing death
for a defendant who was part of a "continuing criminal enter-
prise" to distribute drugs), § 3591(b)(2) (authorizing death for
the leader of a drug conspiracy who kills or attempts to kill
a public officer, juror, or witness to further the conspiracy),
§ 3592(c)(13) (authorizing death for murder defendants who
were part of a continuing enterprise to distribute drugs to
minors). But in subsections ten and twelve, Congress opted to
target offenders at the bottom of the drug-offender ladder:
individuals convicted of crimes carrying prison sentences as
low as one year; street-level distributors, drug mules, and
even some possessors.
Caro was precisely this kind of low-level, nonviolent
offender. He was a drug mule, recruited by his father and
uncles at a young age to smuggle drugs across the border
from Mexico, who in the process was twice convicted of pos-
session with intent to distribute marijuana and once of posses-
sion with intent to distribute cocaine. Caro was by no means
a high-ranking member of a drug conspiracy and by all
accounts was never violent before going to prison. Under the
FDPA, however, Caro’s drug history is sufficient to make him
eligible for death in the absence of any other aggravating fac-
tor relating to his character or crime. This is unacceptable
under the Eighth Amendment and the majority is wrong to
find otherwise.
54 UNITED STATES v. CARO
II.
The majority first errs by fundamentally misconstruing the
nature and purpose of statutory eligibility factors in the death
penalty schema. It claims that eligibility factors are constitu-
tional so long as they do not apply to every murder defendant
and so long as they are supported by some conceivable legis-
lative goal. Maj. Op. at 26-28. By substituting rational basis
review for the appropriate Eighth Amendment analysis, the
majority glosses over the very serious way in which the eligi-
bility factors challenged by Caro fail to narrow the class of
death-eligible offenders in the way required by the Constitu-
tion.
Under the Eighth Amendment, only the government’s inter-
est in deterring and punishing violence implicates its interest
in imposing the death penalty. Consequently, to perform their
constitutionally required narrowing function, eligibility fac-
tors must limit the jury’s focus to the defendant’s violent con-
duct. Because the factors challenged here plainly do not do so,
they cannot be the basis for Caro’s death sentence.
A.
By now it is axiomatic in capital jurisprudence that "where
discretion is afforded a sentencing body on a matter so grave
as the determination of whether a human life should be taken
or spared, that discretion must be suitably directed and limited
so as to minimize the risk of wholly arbitrary and capricious
action." Godfrey v. Georgia, 446 U.S. 420, 427-28 (1980)
(plurality) (quoting Gregg v. Georgia, 428 U.S. 153, 189
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)).
Statutory eligibility factors "play a constitutionally necessary
function" in this process by "circumscrib[ing] the class of per-
sons eligible for the death penalty." Zant v. Stephens, 462
U.S. 862, 878 (1983).
In order for eligibility factors to serve this constitutional
function, they must "adequately differentiate . . . in an objec-
UNITED STATES v. CARO 55
tive, even-handed, and substantively rational way" those
whom a jury may consider for death and those whom it may
not. Id. at 879; see Arave v. Creech, 507 U.S. 463, 474 (1993)
(aggravating factors must distinguish defendant sentenced to
death from others convicted of murder in a "principled" way);
Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (eligibility
factors are "a means of genuinely narrowing the class of
death-eligible persons"); Godfrey, 446 U.S. at 433 (invalidat-
ing death sentence based upon eligibility factor where "[t]here
is no principled way to distinguish this case, in which the
death penalty was imposed, from the many cases in which it
was not").
The Supreme Court has helped illustrate the narrowing pro-
cess, and statutory eligibility factors’ role within it, by
describing it as a pyramid. See Zant, 462 U.S. at 870-71; Wal-
ton v. Arizona, 497 U.S. 639, 716-18 (1990) (Stevens, J., dis-
senting). At the first point above the base of this pyramid lies
the specific category of crimes for which the legislature, and
subsequently the jury, may prescribe death. Zant, 462 U.S. at
871. As the law stands today, this category is limited to mur-
der or other crimes that result in the death of the victim. Ken-
nedy v. Louisiana, 128 S. Ct. 2641, 2665 (2008) ("Difficulties
in administering the penalty to ensure against its arbitrary and
capricious application require adherence to a rule reserving its
use . . . for crimes that take the life of the victim."). At the
pyramid’s apex is the particular crime for which a jury ulti-
mately sentences a defendant to die. Zant, 462 U.S. at 871. In
order to move from the base to the apex, however, a defen-
dant must pass through the eligibility plane.
In that eligibility plane, a jury must decide whether legisla-
tively prescribed factors exist that separate murderers gener-
ally from death-eligible murderers. Id. Importantly, where a
jury convicts a defendant of murder but does not convict him
of special circumstances or aggravating factors in conjunction
with that murder, then that defendant does not move from the
base to the apex and therefore cannot be constitutionally exe-
56 UNITED STATES v. CARO
cuted. Id. at 878 (aggravating factors, which move the defen-
dant from the base to the second plane, are "constitutionally
necessary"); see Arave, 507 U.S. at 474 (aggravating factors
are constitutionally infirm if they apply "to every defendant
eligible for the death penalty" (emphasis in original)).
B.
Properly framed, the question raised by Caro’s appeal is
whether the two aggravating factors found by the jury are
constitutionally sufficient to move him from the base to the
apex, or whether the aggravators so fail to distinguish him
from other defendants that they are not constitutionally signif-
icant. See Zant, 462 U.S. at 879. The factors here fail to suffi-
ciently distinguish Caro from the general offender population
because they do not involve violence.
A review of Supreme Court jurisprudence illustrates why
only the nature or extent of a defendant’s violent conduct can
be a basis for moving him up the death penalty pyramid. We
know, for instance, that because the death penalty is a punish-
ment different in-kind in its severity and finality from other
punishments, it is warranted only to the extent that it punishes
conduct that is itself fundamentally distinct from other crimes
— hence the aphorism "death is different." Lockett v. Ohio,
438 U.S. 586, 604 (1978); Gregg, 428 U.S. at 187 (joint opin-
ion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia,
408 U.S. 238, 287-88 (Brennan, J., concurring), 306 (Stewart,
J., concurring) (1972). How the death penalty is imposed must
be tailored to the unique penological goals that justify the
state’s extraordinary power to take human life in the first
instance.
When the state renounces a defendant’s humanity by put-
ting him to death, Furman, 408 U.S. at 306 (Stewart, J., con-
curring), it does so only to deter potential defendants from
renouncing that humanity in others and to express appropriate
moral outrage at the disrespect the condemned defendant has
UNITED STATES v. CARO 57
shown towards human life by extinguishing it, e.g., Kennedy,
128 S. Ct. at 2661-62; Gregg, 428 U.S. at 483 (joint opinion
of Stewart, Powell, and Stevens, JJ.). Only violence — specif-
ically that which results in another’s death — implicates the
state’s interest in imposing capital punishment in the first
instance. Kennedy, 128 S. Ct. at 2661-62. It follows that if the
state’s interest in imposing death is implicated initially by
violence, then the constitutionally required narrowing func-
tion used to select the most deserving to receive that sentence
must focus on the relative severity of that violent crime or
past conduct. In other words, for the state’s interest to be suf-
ficient to impose death — to move from the base at which the
interest is first implicated to the apex where the interest is suf-
ficiently acute — the condemned’s conduct must be suffi-
ciently aggravated by concurrent or past violence. Eligibility
factors must focus on this interest in order to narrow the
jury’s discretion in a genuine and "substantively rational
way." Zant, 462 U.S. at 879.
This is clear when considering those aggravators that dis-
tinguish offenders by the nature of their specific offense, as
opposed to the factors here that focus on the defendant’s past
conduct or behavior. The former must show that the defendant
used violence in a particularly horrible way that is not typical
even to murder. See id. at 877; Godfrey, 446 U.S. at 433. The
resulting eligibility factors distinguish murderers based on
whether their violent acts were committed for particularly
abhorrent reasons, e.g., § 3592(c)(8) (murder committed for
pecuniary gain), whether those acts were committed in a par-
ticularly horrible way, e.g., § 3592(c)(6) ("especially heinous,
cruel, or depraved" conduct), § 3592(c)(5) (grave risk of dan-
ger to multiple victims), or whether those acts targeted indi-
viduals who deserve added protection from violence, e.g.,
§ 3592 (c)(11) (vulnerable victims), § 3592(c)(14)(D) (law
enforcement officials and police officers). Each of these cate-
gories distinguish defendants on the basis of their violent con-
duct, and not external factors — like whether the defendant
unrelatedly had a bag of cocaine in his car at the time of the
58 UNITED STATES v. CARO
murder or whether the defendant was contemporaneously
delinquent in filing his tax returns — that have no bearing on
the defendant’s culpability for capital punishment purposes.
The same logic applies to aggravators that distinguish
death-eligible defendants based on their prior conduct. Prior-
conduct eligibility factors must show that a murder defendant
is more violent than other murder defendants in order to jus-
tify imposing death on that defendant. Otherwise, that eligibil-
ity cannot be said to distinguish defendants in a "substantively
rational" way. Zant, 462 U.S. at 879.
This rule is most consistent with how the states and federal
government generally use prior-conduct factors to distinguish
defendants. The most common prior-conduct aggravators in
death penalty statutes are prior convictions for murder or
other violent felonies.2 Indeed, the other aggravators in the
FDPA that relate to a defendant’s history and character all
involve prior convictions for violent crimes. 18 U.S.C.
§ 3592(c)(2) (prior conviction for violent felony involving a
firearm), (3) (prior conviction for crime that resulted in death
of another person), (4) (prior conviction of serious offense
resulting in death or serious bodily injury). Except when it
comes to drug offenses, the states and federal government
agree that prior, nonviolent conduct is insufficient to make a
murder defendant death-eligible. It is this rule, not its excep-
tion embraced by the majority today, which comports with the
Eighth Amendment.
C.
Rather than revamp the entire capital-sentencing structure
developed by the Supreme Court over the last four decades,
I would find that Caro’s death sentence violates the Eighth
2
See The Death Penalty Information Center, Aggravating Factors for
Capital Punishment by State (2009), http://www.deathpenaltyinfo.org/
aggravating-factors-capital-punishment-state.
UNITED STATES v. CARO 59
Amendment because the eligibility factors under which the
jury sentenced him fail to narrow the class of offenders eligi-
ble for death in a "principled" or "substantively rational" way.
See Arave, 507 U.S. at 474; Zant, 462 U.S. at 879. Caro was
a low-level drug mule, convicted of possession with intent to
distribute marijuana and cocaine. These convictions do not
distinguish him from other murderers in a constitutionally-
significant way because they do not implicate the state’s qual-
itatively different interest in taking human life to deter future
violence or impose retribution for escalating violence result-
ing in murder. See Kennedy, 128 S. Ct. at 2661-62; Gregg,
428 U.S. at 483 (joint opinion of Stewart, Powell, and Ste-
vens, JJ.). The government’s interest in punishing minor drug
offenders is different in-kind from its interest in punishing the
most violent and heinous murderers and therefore does not
usefully distinguish Caro from other murderers. The same
would be true were Caro or any other defendant made death-
eligible for tax evasion, wire fraud, or driving while under the
influence; none of this prior, nonviolent conduct would impli-
cate the government’s interest in the death penalty and there-
fore would not constitutionally narrow the class of death-
eligible offenders.
The majority disagrees. Instead of holding that any eligibil-
ity factor relating to a defendant’s history or prior conduct
must involve violence, the majority subjects the factors at
issue here to rational basis review. Maj. Op. at 26-28. But
rational basis scrutiny has no bearing on whether or not a stat-
utory provision complies with the Eighth Amendment. As the
Supreme Court recently explained:
[R]ational-basis scrutiny is a mode of analysis we
have used when evaluating laws under constitutional
commands that are themselves prohibitions on irra-
tional laws. In those cases, "rational basis" is not just
the standard of scrutiny, but the very substance of
the constitutional guarantee. Obviously, the same
test could not be used to evaluate the extent to which
60 UNITED STATES v. CARO
a legislature may regulate a specific, enumerated
right, be it the freedom of speech, the guarantee
against double jeopardy, the right to counsel, or the
right to keep and bear arms.
District of Columbia v. Heller, 128 S. Ct. 2783, 2818 n.27
(2008) (internal citations omitted). Rational basis, therefore,
cannot be used to evaluate whether a statutory provision com-
plies with the specific proscription against cruel and unusual
punishment.3
In holding otherwise, the majority effectively avoids the
Eighth Amendment problem by pretending that Eighth
Amendment standards do not apply. Rather than require the
government to show that the FDPA suitably narrows a jury’s
discretion in a way that advances capital punishment’s legiti-
mate goals, the majority demands that Caro rebut every rea-
3
The majority apparently confuses the Eighth Amendment’s require-
ment to review death sentences for arbitrariness with rational basis review.
Maj. Op. at 28. This is a clear mistake.
Rational basis is a term of art; a method by which courts review almost
all state action to ensure that there is at least some conceivable, non-
discriminatory or rational purpose for that action. See United States v.
Carolene Products Co., 304 U.S. 144, 152-53 (1938). The Eighth Amend-
ment’s arbitrary-and-capricious review is quite different. When reviewing
a death sentence under the Eighth Amendment, a court looks to whether
the sentence was imposed under conditions that create a substantial risk
that the decision to execute a defendant was reached arbitrarily and capri-
ciously. Gregg, 428 U.S. at 189 (joint opinion of Stewart, Powell, and Ste-
vens, JJ.). Essentially, rational basis review is the opposite of arbitrary-
and-capricious review. The former assumes that the government is acting
appropriately and will accept almost any explanation to support that
assumption. See Carolene Products, 304 U.S. at 153. The latter places the
burden on the state to show that where it decides to take a human being’s
life, it has reached that decision in the most scrupulous and principled way
possible. See Kennedy, 128 S. Ct. at 2665 ("In most cases justice is not
better served by terminating the life of the perpetrator rather than confin-
ing him"); Gregg, 428 U.S. at 189 (joint opinion of Stewart, Powell, and
Stevens, JJ.).
UNITED STATES v. CARO 61
son for these eligibility factors that is conceivably related to
a legislative goal, no matter how attenuated from the limited
interests that justify the state’s executing a human being. The
majority recognizes the Eighth Amendment requirement that
eligibility factors genuinely and substantively narrow death-
eligible defendants, but it robs this requirement of meaning by
declaring that any factor is sufficient so long as there is some
plausible legislative consideration behind it. This renders the
Eighth Amendment rhetoric without content.4
In practice, the rule proposed by the majority today trans-
forms the pyramid created by the Supreme Court into a rhom-
bus, in which eligibility factors serve no narrowing function
whatever. Though it concedes that the eligibility factors here
do not involve violence, the majority insists that they survive
its limited, deferential review because drug offenses are "as-
sociated with violence." Maj. Op. at 27. It is hardly clear what
it means to be associated with violence, but whatever it does
mean, the associated-with-violence test cannot be a genuinely
narrowing construct in practice. Among the many factors con-
sidered by those in the psychiatric and public-health fields to
be "associated with violence" are: fire-setting, truancy, family
conflict, recent humiliation, history of bullying or being bul-
4
The majority’s unabashed embrace of this position is startling. It
admits, as it must, that in order to comply with the Eighth Amendment,
statutory aggravating factors must "genuinely narrow the class of persons
eligible for the death penalty," but in the same paragraph chastises me for
"presuppos[ing] that each statutory aggravating factor standing alone must
narrow the class of persons eligible for the death penalty to include only
those who deserve a death sentence." Maj. Op. at 28 n.16 (internal cita-
tions and quotation marks omitted). The logical inconsistency in this state-
ment is obvious. If the Supreme Court says that aggravating factors must
genuinely narrow the class of offenders eligible for the death penalty, it
is hardly a great presupposition to conclude that the factors, themselves,
must narrow in accordance with the Eighth Amendment. The majority can
insist all it wants that the aggravating factors here "plainly" satisfy the ad
hoc standard it invents today, but it cannot pretend that its standard is
derived from the Eighth Amendment or flows from the decisions of the
Supreme Court.
62 UNITED STATES v. CARO
lied, poverty, unstructured time, and community disorganiza-
tion.5 How can the majority reasonably argue that any of the
above factors could serve as statutory eligibility factors? If the
majority admits, which it must, that eligibility factors must
perform at least some narrowing function, surely its
associated-with-violence test must fail.
Likewise, the majority claims that the eligibility factors
before us today are justified by the government’s interest in
punishing recidivists. Who could doubt, the majority asks,
that Congress could reasonably decide that repeat offenders
deserve harsher treatment than first-timers? Maj. Op. at
27-28. This very question, though, conflates the government’s
general interest in deterring socially detrimental conduct with
its interest in deterring death-eligible conduct. Recidivism in
the abstract of course justifies escalating punishment. But the
"death is different" principle underlying all capital jurispru-
dence illustrates that conduct must be different in kind, not
just degree in order to trigger the government’s interest in put-
ting a defendant to death. See, e.g., Lockett, 438 U.S. at 604.
This is precisely why we are charged with analyzing death
penalty claims under the Eighth Amendment and not general-
ized rational basis review. Nonviolent drug recidivists, like all
other nonviolent, repeat offenders do not meet that Eighth
Amendment criterion.
5
New York State Office of Mental Health, Violence Prevention: Risk
Factors, http://www.omh.state.ny.us/omhweb/sv/risk.htm. See Erica
Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge of Chaos: Pre-
dicting Violent Behavior in a Post-Daubert World, 24 Cardozo L. Rev.
1845, 1867-68 (2003) (listing mental illness, family dysfunction, poverty,
and living in high crime or urban areas as potential risk factors for vio-
lence and then explaining that the presence of a risk factor does little to
predict whether or not an individual with that risk factor will actually be
violent in the future).
UNITED STATES v. CARO 63
III.
Because the majority applies a test that in no way narrows
the class of death-eligible offenders, the result is a sentence
reached without properly distinguishing Caro from all other
murderers. But of all the non-violent offenses the government
could have chosen to distinguish death-eligible defendants,
drug offenses create perhaps the greatest risk that a defendant
will be executed arbitrarily.
A.
It has long been settled that a death penalty provision that
applies to a vast offender population but is applied inconsis-
tently or sparingly violates the proscription against cruel and
unusual punishment. E.g., Godfrey, 446 U.S. at 433 (plural-
ity); Furman, 408 U.S. at 249 (Douglas, J., concurring), 276
(Brennan, J., concurring), 309 (Stewart, J., concurring), 312
(White, J., concurring), 366 (Marshall, J., concurring). This is
so largely because when the government selects so few
offenders from such a large pool for execution, it cannot fur-
ther its legitimate penological interests; instead it merely
inflicts gratuitous pain and suffering. See Gregg, 428 U.S. at
183 (joint opinion of Stewart, Powell, and Stevens, JJ.); see
also Baze v. Rees, 128 S. Ct. 1520, 1551 (2008) (Stevens, J.,
concurring).
According to a Department of Justice report, 54 percent of
federal inmates in 2007 were in prison for nonviolent drug
offenses6 — by far the highest percentage of offenders in any
category.7 That same report also found that nearly 20 percent
6
The Report does not explicitly state that the drug offenders are nonvio-
lent; however, the report does distinguish miscellaneous, violent offenders
from drug offenders and organizes the statistics by most serious offenses,
illustrating that the drug offenders were very likely nonviolent.
7
Heather C. West & William J. Sabol, Prisoners in 2007 App. 12
(2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p07.pdf.
64 UNITED STATES v. CARO
of inmates in state prison were also there for drug crimes,8 of
which 60 percent were low-level and nonviolent.9
Of all the nonviolent offenses Congress could have made
death eligible, it is clear, then, that it targeted the class of
offenses with the largest number of offenders. And when
these reports are viewed in conjunction with the 8.6 million
people who reported using crack cocaine as of 2007,10 and the
number of persons convicted of applicable drug offenses who
are no longer in prison, the eligibility factors used to make
Caro death-eligible potentially apply to several million peo-
ple. This makes subsections ten and twelve functionally
catchall provisions, which a prosecutor can choose to use or
not use arbitrarily and in a way that leads to "standardless sen-
tencing discretion." See Godfrey, 446 U.S. at 428 (internal
quotation marks and alterations omitted).
Even if they could theoretically be applied reasonably,
courts and juries use the factors so rarely that they gravely
risk doing so arbitrarily in practice. The government cites to
one case in which an appellate court previously upheld a
death sentence under subsection (c)(10). See United States v.
Bolden, 545 F.3d 609, 617 (8th Cir. 2008). I am aware of only
one other case in which a defendant was sentenced to die after
a jury found him death-eligible under the provisions chal-
lenged by Caro. See United States v. Higgs, 353 F.3d 281, 295
(4th Cir. 2003). In both Bolden and Higgs, however, the jury
also found that the defendants were eligible under other provi-
sions, and not just because of prior nonviolent drug offenses.
8
Id. at App. 11.
9
Marc Mauer & Ryan S. King, A 25 Year Quagmire: The War on
Drugs and its Impact on American Society 2 (2007), available at
http://www.sentencingproject.org/doc/publications/dp_25yearquagmire.
pdf.
10
National Institute of Drug Abuse, NIDA InfoFacts: Crack and
Cocaine 4 (2009), http://www.drugabuse.gov/pdf/infofacts/ Cocaine09.
pdf.
UNITED STATES v. CARO 65
That, to the best of my knowledge, makes Caro the only
defendant who was deemed death eligible only under one or
both of these FDPA provisions.
The result is the same when considering any analogous
state law provisions. By my count, only two states, Louisiana
and New Hampshire, have provisions that arguably apply as
broadly as the FDPA’s;11 yet I am aware of no case in which
either of those states’ courts considered a death sentence for
an offender who was selected for death eligibility because of
a prior nonviolent drug conviction.
The government, therefore, cannot claim that executing
Caro will further its legitimate interests in deterrence or retri-
bution. See Kennedy, 128 S. Ct. at 2649-50. Low-level drug
offenders are so rarely selected for death and ultimately exe-
cuted for their prior offenses alone that the FDPA cannot be
said to deter them from murder. See Furman, 408 U.S. at 311
(White, J., concurring). Likewise, murderers are so infre-
quently and inconsistently selected to die on the bases
asserted here that it is "very doubtful that any existing general
need for retribution would be measurably satisfied" by Caro’s
execution. Id. Executing Caro would therefore be "the point-
less and needless execution of life with only marginal contri-
butions to any discernible social or public purposes." Id. It
11
N. H. Rev. Stat. Ann. § 630:1 (2009); La. Code Crim. Proc. Ann. art.
905.4(A)(11) (2009). The one case of which I am aware in which the Lou-
isiana Supreme Court interpreted its provision, it did so only in the context
of a capital defendant who killed during the course of a drug deal and not
a defendant who was made death-eligible for a past offense. See Louisiana
v. Neal, 796 So. 2d 649, 661 (La. 2001).
Furthermore, Florida authorizes a defendant’s prior drug conviction,
carrying a sentence of more than one year, to be used as a statutory aggra-
vator, but only if the defendant’s underlying capital conviction was for
drug trafficking. Fla. Stat. Ann. § 921.142(6)(b) (LexisNexis 2009). This
provision is almost surely unconstitutional in light of the Supreme Court’s
decision in Kennedy. See 128 S. Ct. at 2665.
66 UNITED STATES v. CARO
would consequently be irreconcilable with the Eighth Amend-
ment.
B.
The inherent arbitrariness in subsections ten and twelve is
exacerbated by the way in which they can work to prevent a
jury from giving meaningful consideration to relevant, miti-
gating evidence. Our justice system, reflecting broader con-
cerns of society at-large, takes an often ambivalent view of
minor drug offenders; one that recognizes their criminality but
simultaneously accepts their own victimhood. Because drug
offenses can so often be part-and-parcel of otherwise mitigat-
ing circumstances, making these offenses eligibility factors
limits a defendant’s ability to present mitigating evidence and
increases the likelihood of an arbitrary sentence.
Not only must a capital defendant be allowed to present
mitigating evidence at his sentencing, but the jury must be
able to give meaningful effect to that evidence. Abdul-Kabir
v. Quarterman, 550 U.S. 233, 262 (2007); Penry v. Lynaugh,
492 U.S. 302, 319 (1989), overruled on other grounds, Atkins
v. Virginia, 536 U.S. 304 (2002). Courts must closely scruti-
nize evidence that can be used as a "two-edged sword" against
a capital defendant, i.e., mitigating evidence that a jury might
also consider aggravating, to ensure that juries can give
appropriately mitigating weight to that evidence. Abdul-
Kabir, 550 U.S. at 255; Roper v. Simmons, 543 U.S. 551, 573
(2005) (abolishing death penalty for juveniles, in part because
juries might inappropriately consider youth an aggravating,
rather than a mitigating factor); Atkins, 536 U.S. at 320 (creat-
ing a bright-line rule barring execution of mentally retarded,
in part because of the risk that juries would consider evidence
of mental retardation aggravating, not mitigating).
A defendant’s history of drug abuse is classic mitigating
evidence, which the Supreme Court has held a jury must be
able to consider and give effect to when sentencing a defen-
UNITED STATES v. CARO 67
dant. E.g., Cone v. Bell, 129 S. Ct. 1769, 1784 (2009). Like-
wise, evidence that a defendant was induced into criminal
behavior at a young age by close relatives is precisely the type
of "troubled childhood" evidence to which jurors must be
allowed to give meaningful, mitigating effect. See Abdul-
Kabir, 550 U.S. at 262. Indeed, the FDPA itself acknowledges
specifically that juveniles induced into drug trafficking by
adults are victims who are presumably less blameworthy for
their conduct. See § 3592(d)(7) (making it an aggravating fac-
tor to use minors in drug trafficking).
Jurors in Caro’s case could not be expected to give mean-
ingful effect to Caro’s drug use and troubled background
because they were forced to consider both as the reasons he
should be death-eligible in the first place. The record reveals
that Caro was a cocaine addict12 and that he dropped out of
school to become a drug mule at his father and uncles’ behest.
Caro’s attorneys were therefore faced with a modern Sophie’s
Choice: either forcefully present this evidence, thereby
emphasizing to the jurors the basis for which they selected
Caro for death-eligibility, or hardly mention the evidence at
all to avoid further aggravating Caro’s crime in the jurors’
eyes.
It is rare, indeed, that an attorney’s decision not to present
or emphasize mitigating evidence can truly be characterized
as a strategic choice. But here it is not surprising that Caro’s
lawyers opted to focus on Caro’s future dangerousness to the
jury, rather than his drug addiction or his early introduction
to drug smuggling by his father and uncles. Even if his law-
yers had emphasized it, at best, the jury could not be expected
to give any meaningful effect to the same evidence that aggra-
vated Caro’s crime to death-eligible murder. At worst the evi-
dence would have only reinforced their initial finding that
Caro was worthy of the ultimate punishment. Caro’s sentence
12
It does not appear in the record whether Caro was addicted to cocaine
powder or cocaine base.
68 UNITED STATES v. CARO
quite possibly was "imposed in spite of factors which may
[have] call[ed] for a less severe penalty," Lockett, 438 U.S. at
605, because the FDPA prevented the jury from considering
relevant, mitigating evidence. The risk that the resulting sen-
tence was imposed arbitrarily "is unacceptable and incompati-
ble with the commands of the Eighth and Fourteenth
Amendments." Id.
IV.
Today’s decision comes on the heels of an interesting
report regarding the state of capital punishment in this coun-
try, and particularly in our circuit. According to the report, the
number of death sentences handed down nationally over the
past year has decreased to the lowest level since the Supreme
Court reinstated capital punishment in 1976.13 This is particu-
larly true in Virginia, which traditionally uses the death pen-
alty more than all-but-one other state in the union.14
Among the reasons suggested for this phenomenon are the
response to recent Supreme Court decisions prohibiting exe-
cutions for certain offender classes, jurors’ concerns about
executing innocent people, and legislative and prosecutorial
concerns about overusing the death penalty in the current eco-
nomic climate.15 Ironically, one of the reasons given for the
reduction of death sentences in Virginia is that prosecutors are
increasingly not seeking death for drug-related murders —
apparently because they do not view these offenders as the
worst of the worst.16 This reduction in prosecutors’ pursuing
death sentences and juries’ imposing them has not correlated
13
Robert Barnes & Maria Glod, Number of Death Sentences Falls to a
Historic Low, Wash. Post, Dec. 18, 2009, available at
http://www.washingtonpost.com/wp-dyn/content/article/2009/12/17/
AR2009121704299.html.
14
Id.
15
Id.
16
Id.
UNITED STATES v. CARO 69
with a similar reduction in executions, nor has it hampered the
states’ ability to execute the most heinous offenders.17
All of which suggests that the decades-long dialogue
between courts and the political branches about capital pun-
ishment is finally starting to achieve a constitutionally-
necessary equilibrium; one that accommodates the govern-
ment’s interest in punishing murderers and the Constitution’s
command that the government not do so arbitrarily. As the
judiciary has tried to implement the Eighth Amendment’s pro-
scription against cruel and unusual punishment by requiring
that death sentences be imposed only after a process that
selects, in a non-arbitrary way, the worst-of-the-worst offend-
ers, the political branches have responded by recalibrating
their notion of which offenders are death eligible and pro-
ceeding accordingly. The apparent upshot is that those
charged with the awesome power of seeking and imposing
death have sought to limit that power to those most deserving,
and in so doing, have made the death penalty more effective
and efficient, even as they have limited the class of offenders
to whom it may be applied.18
This decision threatens to undermine that constitutionally
necessary equilibrium. Carlos Caro’s death sentence was
imposed because he had previously committed relatively
minor, nonviolent drug crimes. Of all similarly situated defen-
dants, it appears that only Caro now faces the prospect of
17
See id.
18
Despite the dramatic reduction in death sentences in Virginia, the last
person executed in the Commonwealth was put to death within six years
of his sentence and conviction. Josh White & Maria Glod, Muhammad
Executed for Sniper Killing, Wash. Post, Nov. 11, 2009, available at
http://www.washingtonpost.com/wp-dyn/content/article/2009/11/10/
AR2009111001396.html. Conversely, since the Supreme Court reinstated
capital punishment, the average condemned inmate has spent over a
decade on death row before the sentence has been implemented. See The
Death Penalty Information Center, Time on Death Row,
http://www.deathpenaltyinfo.org/time-death-row.
70 UNITED STATES v. CARO
being executed after being chosen because of factors so com-
pletely divorced from the state’s legitimate penological inter-
ests in taking human life. Whatever Caro’s prior conduct says
about his character, under the Eighth Amendment, it cannot
serve as the sole reason for his death eligibility as compared
to other defendants. Even the government’s attorney had to
allow at oral argument that Caro’s sentence seemed "anachro-
nistic" in light of evolving death penalty jurisprudence. Yet
the majority disagrees.
Justice Stewart spoke in Furman of the way in which some
"death sentences are cruel and unusual in the same way that
being struck by lightning is cruel and unusual." 408 U.S. at
309 (Stewart, J., concurring). Thirty-eight years later, I can
think of no more apt way to describe Caro’s sentence. The
FDPA provisions that prescribe such a random and unprinci-
pled sentence do not withstand Eighth Amendment scrutiny.
Had the majority applied that level of scrutiny, I have little
doubt that it would have reached the same conclusion. I
respectfully dissent.