[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 25, 2004
THOMAS K. KAHN
No. 03-10673
CLERK
________________________
D. C. Docket No. 00-00436-CR-J-25-TJC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARL T. WALDON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 25, 2004)
Before TJOFLAT, RONEY and FAY Circuit Judges.
PER CURIAM:
Defendant Karl Waldon, a former law enforcement officer for the
Jacksonville Sheriff’s Office, appeals his conviction for his involvement in a crime
spree that culminated in the robbery and murder of convenience store owner Sami
Safar. Waldon asks for reversal of his conviction based upon perceived grand jury
irregularities, and also submits that reversible error occurred when the trial judge
failed to suppress his own grand jury testimony and when the court death qualified
the jury. Finally, W aldon claims that when the jury, at sentencing, failed to
recommend either death or life imprisonment, the language of the Federal Death
Penalty Act (“FDPA”) precluded the trial judge from giving him a life sentence.
We reject each of Waldon’s claims and affirm his conviction and sentence.
I.
Karl T. Waldon was a sworn deputy sheriff of the Jacksonville Sheriff’s
Office (“JSO”), serving as a member of the SWAT team from 1994 to 1997. In
April 1997, Waldon began serving as a narcotics detective for JSO. In November
of that same year, Officers Aric Sinclair and Jason Pough were also assigned to the
narcotics unit. Sinclair and Pough brought with them to their new unit a penchant
for stealing money from drug dealers, including a local dealer named Daryl
Crowden. These illicit activities flourished when they were placed in Waldon’s
division, and Waldon soon joined in. The three absconded drugs and money from
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criminals for their own use, often reselling the drugs through other dealers for
profit, and eventually began burglarizing houses and hotel rooms of known drug
dealers. Crowden soon became the trio’s partner in crime, informing the officers
of potential hits and purchasing the drugs they stole.
The Safar Murder:
In 1998, Sinclair took a job doing off-duty security work for South Trust
Bank. After noticing that two bank customers, convenience store owner Sami
Safar and his nephew Hassam Tahhan, routinely withdrew large amounts of cash
for their business, Sinclair concocted a plan with Crowden to rob the men. On
May 15, Crowden and Jeffrey Reed arrived at the bank while Tahhan was inside.
When Tahhan returned to his car with a money bag containing approximately
$50,000, Reed pointed a gun at him, grabbed the bag and fled with Crowden.
Crowden then gave Sinclair $20,000 of the stolen money.
Upon learning of the Tahhan robbery, Waldon told fellow officer Reginald
Bones that he “would like to get a hit like that.” Waldon approached Sinclair, who
provided him with a description of Safar’s vehicle but refused to assist him in
another robbery because “the heat [was] on” from the first robbery. Pough also
refused to help, so Waldon recruited Officer Bones and recovering drug addict and
convicted felon Kenneth McLaughlin to assist in pulling off the heist. According
3
to the plan, Bones would drive over to the bank and notify Waldon when he saw
Safar’s truck. Waldon would then pull over Safar as if conducting a routine traffic
stop, and Bones and M cLaughlin would rush in, pepper spray the driver, steal his
money and flee. Bones, however, backed out on the day of the robbery and
Waldon was forced to reschedule the heist for the following week. In the
meantime, Waldon’s brother-in-law, James Swift, asked Waldon for a loan.
Waldon told him that he could make the loan if Swift could help him to collect
some money supposedly owed to him by a drug dealer.
On July 3, 1998, Waldon, in his squad car, and McLaughlin and Swift in a
Maxima, arrived at a location near the bank. Swift was instructed to alert Waldon
when Safar left the bank. Waldon’s new plan was to pull over Safar, create a
reason to arrest him, and take him away – at which point Swift and McLaughlin
would take the money from Safar’s car. The plan was proceeding accordingly.
However, when Waldon arrested Safar, he refused to part with his money. Waldon
called McLaughlin and Swift on a cell phone and told them to follow his squad car.
The three continued to talk as they drove, and Waldon became very anxious
because “the person had seen his face.” The men finally stopped in a parking lot to
decide what to do, and Waldon decided that Safar had to be “taken out.”
McLaughlin objected and the three began yelling at each other, at which point
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Waldon decided to relocate to another parking lot.
At the second parking lot, W aldon stepped out of his car with a black rope in
his hand and yelled at Swift and McLaughlin to get out of their car. At first they
refused, but then reluctantly approached Waldon’s car. Waldon opened the back
door and Safar, still handcuffed behind his back, began begging for his life. With
McLaughlin blocking Safar’s exit, Waldon followed Safar into the back seat, put
the rope around his neck and choked him. Safar fell between the seat and the cage
of the squad car and Waldon ordered McLaughlin to get into the back seat and
finish “choking him out.” Safar uttered his last breath as McLaughlin climbed into
the back seat and reached for the rope. After McLaughlin informed Waldon that
Safar was dead, Waldon frantically drove around the city with Swift in his patrol
car and McLaughlin following in the Maxima. Eventually, Safar’s body was
transferred to the Maxima and subsequently dumped by McLaughlin in a secluded
area. The three later met at Swift’s apartment to divvy out the money and clean up
their tracks.
Waldon’s Grand Jury Testimony:
In late 1999, two drug dealers were arrested and began cooperating with
federal authorities regarding potential corruption in the JSO. The two dealers soon
fingered Crowden, who agreed to cooperate and recorded several conversations
5
with Sinclair. Sinclair eventually learned that he was the subject of a federal grand
jury investigation and that Waldon and Crowden were also being questioned.
Consequently, on February 15, 2000, Waldon was served with a federal
grand jury subpoena, accompanied by a letter explaining that he was the subject of
the investigation. Waldon appeared on February 16 and, under oath, lied about
(among other things) the reason he had visited Sinclair at the bank and whether he
recognized photos of Safar and Safar’s truck.
Bones was later subpoenaed to testify before the grand jury but was not
asked, nor did he volunteer, any information about the Safar incident. However,
after his testimony he told a JSO detective that McLaughlin had information about
Waldon. Law enforcement officers questioned McLaughlin three times in late
May 2000, and, on the third occasion, he told them about the robbery and murder
of Safar. Waldon soon learned of McLaughlin’s cooperation, and told Pough “they
[are going to] find Kenny [McLaughlin] somewhere with his head cut off.” Soon
after, Pough decided to cooperate with authorities.
In December 2000, Waldon, Sinclair and Swift were charged by federal
indictment. On August 21, 2002, the government, to some extent utilizing “read-
back” testimony from the previous grand jury, secured a second superseding
indictment against Waldon, now containing a “Notice of Special Findings”
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indicating the aggravating factor which it intended to prove at sentencing that
would merit the death penalty.1 After a jury trial, W aldon was convicted on all
counts. At sentencing, however, the jury rejected the government’s theory that
Waldon murdered Safar for “pecuniary gain,” one of the aggravating factors that
would justify the death penalty for a felony murder conviction, and the district
court judge sentenced W aldon to life imprisonment.
II.
Waldon contends that the district court erred when it denied his motion to
dismiss the second superseding indictment, which, he argues, was secured in
violation of the Fifth Amendment’s grand jury clause. We review Waldon's
challenge to the district court's denial of his motion to dismiss the indictment under
the abuse of discretion standard. United States v. Pielago, 135 F.3d 703, 707 (11th
Cir. 1998). He raises a variety of “factors” he believes “cumulatively” amounted
to a defective indictment: the grand jury proceedings that produced the second
superseding indictment were (apparently) limited to agents re-reading previous
grand jury testimony of material witnesses2; the government concealed from the
1
This notice was required by the recently-amended Federal Death Penalty Act, which
itself was amended in response to the Supreme Court’s decision in Ring v. Arizona that the Sixth
Amendment's jury trial guarantee requires that the death penalty aggravating factor
determination be entrusted to the jury. 536 U.S. 584, 609 (2002).
2
Waldon reaches this conclusion based on a report in the local newspaper that exhibits
and materials were taken into the grand jury room, “but there was no parade of witnesses that
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grand jury substantial, material exculpatory evidence; and the pretrial publicity
accompanying this case prejudiced the grand jury. The flaw in Waldon’s
argument, however, is that none of these “factors,” taken on their own, are legal
errors. Therefore, these factors taken together do not “cumulatively” become
errors merely because they occurred contemporaneously.
First, Waldon can point to no authority for his position that an indictment
cannot be based on read-backs and hearsay witnesses. To the contrary, this Court
has explicitly found that relying on such testimony does not merit dismissal of the
indictment upon which the testimony was based. United States v. Brown, 872 F.2d
385, 387-88 (11th Cir. 1989). Though some courts have expressed criticism in
relying solely on hearsay testimony, Waldon simply cannot overcome this Court’s
ruling in Brown, which involved virtually the exact scenario we are presented with
here – read-back testimony of an investigating agent rather than direct testimony
from the witnesses themselves. Our Court found that this did not result in the
fundamental unfairness that would merit dismissal of the indictment. Id.
Waldon’s second “factor” is equally unsupported by current jurisprudence,
and, indeed, has been flatly rejected by the Supreme Court. He claims that the
government’s failure to present exculpatory evidence to the grand jury tainted the
greeted the first grand jury when it met.”
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second superseding indictment. Again this is simply not a legal error. The
government is under no duty to bring exculpatory evidence to the grand jury’s
attention. United States v. Williams, 504 U.S. 36, 51-55 (1992). In Williams,
Justice Scalia reasoned:
Imposing upon the prosecutor a legal obligation to
present exculpatory evidence in his possession would be
incompatible with this system. If a "balanced" assessment
of the entire matter is the objective, surely the first thing
to be done--rather than requiring the prosecutor to say
what he knows in defense of the target of the
investigation--is to entitle the target to tender his own
defense. To require the former while denying (as we do)
the latter would be quite absurd. It would also be quite
pointless, since it would merely invite the target to
circumnavigate the system by delivering his exculpatory
evidence to the prosecutor, whereupon it would have to
be passed on to the grand jury--unless the prosecutor is
willing to take the chance that a court will not deem the
evidence important enough to qualify for mandatory
disclosure.
Id. at 52. We are undoubtedly bound by these words. Simply bundling this
perceived inequity with others does not permit this Court to make a ruling contrary
to the Supreme Court’s ruling in Williams.
Finally, Waldon argues that pretrial publicity prejudiced the grand jury.
This case was undoubtedly the subject of much press in the Jacksonville area.
Again, however, publicity is generally not a basis for dismissal of an indictment.
United States v. Washington, 705 F.2d 489, 499 (D.C. Cir. 1983); In re Grand
9
Jury, 508 F. Supp. 1210, 1213 (S.D. Ala. 1980) ("(i)t does not appear that any
indictment has thus far been dismissed on th(e) ground" that it was "induced by
prejudicial publicity".) (citing 8 Moore's Federal Practice P 6.03(4), at 6-61 (2d ed.
1979)). To the extent that this Court has not addressed the issue directly, we do so
today. This argument misconstrues the role of the grand jury, which is an
"investigative and accusatorial [body] unimpeded by the evidentiary and
procedural restrictions applicable to a criminal trial." United States v. Calandra,
414 U.S. 338, 349 (1974). Since the concern over adverse publicity is its effect on
the fairness of the ensuing trial, and not its effect on the grand jury, the trial court
did not err in failing to dismiss the indictment on this ground.
In sum, because no individual errors underlying the district court’s failure to
dismiss the indictment have been demonstrated, no cumulative errors can exist.
See United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001) (“If there are no
errors or a single error, there can be no cumulative error.”). Accordingly, we
affirm the district court’s denial of Waldon’s motion.
III.
Waldon next submits that, because the government failed to offer any
evidence to prove the aggravating factor which would merit the death penalty
under the FDPA, the jury should not have been death qualified from the start. The
10
government, he claims, failed to offer any evidence that he murdered Safar for
pecuniary gain. The government admits that, at least according to the jury's
findings, it did fail to establish, as a matter of fact, that Waldon murdered Safar to
separate him from his money. It acknowledges that the jury rejected its factual
theory, and found only that Safar was killed by Waldon because "he saw Waldon's
face." This challenge, the government asserts, is a factual challenge to the
sufficiency of the evidence, and not one that would have precluded the district
court from death qualifying the jury at the outset.
There is a significant disagreement between the parties as to the proper
standard of review applied to Waldon's assertion that the jury should not have been
death qualified. Citing Johnson, the government claims that, because Waldon did
not raise this argument when the government filed its notice of the aggravating
factor it intended to prove, our standard of review is plain error. Johnson v. United
States, 520 U.S. 461, 466-67 (1997). Waldon insists that because the government
did not have the evidence to prove the aggravating factor, then, as a matter of law,
the jury should not have been death qualified. He submits he did not know, and
could not have known, of this argument, however, until after the evidence came in.
On this point, we agree with Waldon. We cannot hold him to the plain error
standard of review when he did not know until the penalty phase that the
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government would fail in its effort to prove the aggravating factor. Thus, we will
review the district court’s death qualification of the jury de novo.
The FDPA sets out a very specific procedure that must be followed by the
government when it seeks the death penalty against a federal defendant. Section
3593, subsection (a), requires the government to sign and file with the court a
notice: (1) stating that the government believes a sentence of death is justified and
that the government will seek such sentence; and (2) setting forth the aggravating
factor that the government, if the defendant is convicted, proposes to prove as
justifying a sentence of death. 18 U.S.C. § 3593(a). Subsection (b) then provides
that, after the defendant is found, or pleads, guilty, a separate sentencing hearing
shall be conducted to determine the punishment to be imposed. Id. at (b).
The government complied with this procedure. It filed a pretrial notice that
it intended to seek the death penalty against Waldon, and indicated in that notice
that it intended to prove that Waldon murdered Safar for pecuniary gain – one of
the aggravating factors justifying the death sentence under the FDPA. After
Waldon was found guilty, the district court held a sentencing hearing, with the jury
present, and the government put on evidence in an attempt to prove the aggravating
factor. At the end of this presentation of evidence, Waldon's counsel asked
essentially for a judgment of acquittal on the death penalty, arguing that the
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government failed to offer a shred of evidence to show that Waldon murdered
Safar to separate him from his money and thus, as a matter of law, Waldon could
not be subjected to the death penalty. The district court took the motion under
advisement and let the issue go to the jury. The jury found Waldon not guilty of
the sole statutory aggravating factor.
Waldon cites Reed v. State, 496 So. 2d 213 (Fla. 1st DCA 1986) in support
of his argument, which involved a defendant charged with (and ultimately
convicted of) first-degree felony murder and robbery. Prior to trial on the charges,
defendant in Reed moved, pursuant to Enmund v. Florida, to preclude death
qualification of the jury.3 Id. at 214. The State argued that, while it could not
represent how the evidence would support consideration of the death penalty
before trial, it should not be precluded "from seeing what might develop during
trial." Id. At the end of its case-in-chief, however, the State conceded that
Enmund dictated and the death penalty was not available. Id. Florida's First
District Court of Appeal reversed Reed's conviction and remanded for a new trial,
finding that, because the State could not point to any facts, prior to trial, that it felt
3
The Supreme Court in Enmund held that the Eighth Amendment does not permit
imposition of the death penalty on one who aids and abets a felony in the course of which a
murder is committed by others but who does not himself kill, attempt to kill, or intend that a
killing take place or that lethal force will be employed. Enmund v. Florida, 458 U.S. 782
(1982).
13
could support imposing the death penalty (after nineteen months and two separate
trials of Reed's accomplice), it was error to death qualify the jury. Id.
Though, at first blush, Reed appears to support Waldon’s position, his
argument fails because we are bound by the Supreme Court’s decision in
Buchanan v. Kentucky, 483 U.S. 402 (1987). In that case, which posed the
question whether a defendant’s Sixth Amendment rights were violated when the
state was permitted to death qualify the jury in defendant’s joint trial where the
death penalty was sought against his co-defendant, but not against him, the Court
flatly rejected the notion that trial by a death qualified jury deprives a defendant of
his Sixth Amendment right to an impartial jury. Id. at 415. Justice Blackmun
rejected defendant’s argument and reasoned:
[I]f petitioner’s position – that, because a “death-
qualified” jury is conviction prone and likely to mete out
harsher sentences, it should be used only in the capital
case – were accepted, its logic would lead to an
anomalous result: if, as in [co-defendant]’s case, a capital
defendant also is charged with noncapital offenses,
according to petitioner there would have to be one trial
for those offenses and another for the capital offense.
Id. at 419. As such, Buchanan entirely forecloses Waldon’s argument.
Even if we were to consider Reed, as Waldon would have us do, we believe
it must be read in conjunction with the First D.C.A.’s later decision in Smith v.
State. In Smith, that court held that an inquiry into the motives of the state behind
14
seeking the death penalty can be made by the trial court judge only: (1) when the
defendant has properly requested an inquiry after trial and, more importantly, (2)
when the facts indicate evidence of bad faith. 568 So. 2d 965, 968-69 (Fla. 1st
DCA 1990). Taking the facts in the light most favorable to the government, there
was evidence introduced that could have been the basis of a finding that Waldon
murdered Safar for pecuniary gain. The mere fact that the jury did not so conclude
is no indication of bad faith on the part of the prosecution.
IV.
As noted above, the government went before the grand jury on two separate
occasions. Prior to the issuance of the first indictment, Waldon was subpoenaed to
testify to the grand jury, where he was identified as a "subject" of the investigation
of various crimes. 4 It is this testimony that is the subject of Waldon's next issue on
appeal. He claims that the district court erred in denying his motion to suppress
this testimony. We review the district court's denial of Waldon's motion to
4
Waldon takes issue with this apparent "target of the investigation" versus a mere
"subject" distinction, and claims that, because he was actually a target, he was more than just a
witness when he testified. We find the distinction irrelevant here. Because the grand jury was
conducting a legitimate investigation in which it believed Waldon had information as a subject,
there was nothing improper about issuing a subpoena for his testimony. As such, we reject
Waldon's Sixth Amendment ineffective assistance claim on this issue out-of-hand, because the
Sixth Amendment right to counsel simply does not attach until the initiation of formal adversary
proceedings. United States v. Gouveia, 467 U.S. 180, 189 (1984). Whether Waldon was a
"subject" or "target" of the investigation at the time he testified, he simply had no constitutional
right to counsel.
15
suppress de novo. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.
2002).
Waldon claims that his Fifth Amendment rights were violated because, akin
to Garrity and its progeny, his testimony was compelled. Garrity v. New Jersey,
385 U.S. 493 (1967). He asserts that he reasonably believed he would lose his job
as a JSO officer if he invoked his Fifth Amendment privilege before the grand jury.
The trial court rejected this argument, finding that "even if the defendant
subjectively believed that he was required to testify, his belief was not objectively
reasonable."
Before a police officer's testimony will be considered "coerced" within the
meaning of Garrity, he must show that he subjectively believed that he would lose
his job if he refused to answer questions and that his belief was objectively
reasonable. United States v. Vangetes, 287 F.3d 1315, 1322 (11th Cir. 2002). A
subjective belief is not objectively reasonable unless it derived from actions of the
governmental unit. Id. at 1323. The government argues that W aldon has failed to
identify any law or regulation that required him to testify under threat of sanctions.
Indeed, it appears that the regulations he relies upon reflect only a general
expectation that police officers will cooperate and testify. W aldon argues that his
belief that he would lose his job was objectively reasonable because, taking the
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“totality of the circumstances” – including the Jacksonville Municipal Code
requirement that the city reserves the right to discipline employees exercising their
Fifth Amendment privilege and the Sheriff’s “virtually unfettered discretion” to
discipline employees – the likely effect of him not testifying was termination.
We agree with the district court that W aldon's belief was not objectively
reasonable. However, the point does not need to be belabored because Waldon
undisputedly lied to the grand jury, and Garrity does not protect false testimony.
United States v. Veal, 153 F.3d 1233, 1240-41 (11th Cir. 1998); United States v.
Olmeda, 839 F.2d 1433, 1436-37 (11th Cir. 1988). Similarly, there is no "perjury
trap" when uncooperative witnesses lie in response to questions related to
legitimate investigations. United States v. Regan, 103 F.3d 1072, 1079 (2d Cir.
1997). For these reasons, we affirm the district court’s denial of Waldon’s motion
to suppress.
V.
Finally, Waldon argues that, because the jury did not "recommend" either
death or life imprisonment, the plain language of 18 U.S.C. § 3594 prohibited the
district court from sentencing him to any sentence but a "lesser sentence." The
district court's interpretation of the penalty portion of the Federal Death Penalty
Act is reviewed de novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.
17
1999).
The statute reads as follows:
Upon a recommendation under section 3593(e) that the
defendant should be sentenced to death or life
imprisonment without possibility of release, the court
shall sentence the defendant accordingly. Otherwise, the
court shall impose any lesser sentence that is authorized
by law.
18 U.S.C. § 3594. Waldon submits that the latter provision mandates a lesser
sentence because the jury here did not "recommend" either death or life
imprisonment.
Waldon's argument misapprehends the reach of the FDPA. The jury rejected
the government's theory on the aggravating factor and found him “not guilty,” and
thus rejected application of the FDPA altogether. Upon doing so, as the district
court accurately concluded, the FDPA ceased to apply, and the Sentencing
Guidelines dictated Waldon’s sentence. The Fifth Circuit affirmed a similar
finding in evaluating the death penalty procedures of 21 U.S.C. § 848 – procedures
akin to those set forth in the FDPA. United States v. Flores, 63 F.3d 1342, 1367
(5th Cir. 1995). Affirming the district court’s refusal to instruct the jury that its
only alternative, if it did not recommend the death penalty, was life imprisonment
without parole, the court found:
Under § 848(e), if the jury had not recommended a death
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sentence, the district court could have sentenced Garza to
"any term of imprisonment, which shall not be less than
20 years, and which may be up to life imprisonment."
The district court would then have been required to
follow the Sentencing Guidelines to arrive at an
appropriate sentence.
Id. We adopt the same logic here. When the jury found Waldon “not guilty” of
killing Safar for pecuniary gain, the district court correctly applied the Sentencing
Guidelines when it sentenced Waldon to life imprisonment.
VI.
For the reasons set forth above, we AFFIRM W aldon’s conviction and
sentence.
AFFIRMED.
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