United States v. Brandon Council ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL COUNCIL,
Defendant - Appellant.
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MENTAL HEALTH PROFESSIONALS,
Amicus Supporting Appellant,
GOVERNOR HENRY MCMASTER,
Amicus Supporting Appellee.
No. 21-8
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON MICHAEL COUNCIL,
Defendant - Appellant.
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---------------------------------------------------
MENTAL HEALTH PROFESSIONALS,
Amicus Supporting Appellant,
GOVERNOR HENRY MCMASTER,
Amicus Supporting Appellee.
Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:17-cr-00866-RBH-1)
Argued: May 3, 2023 Decided: August 9, 2023
Before WILKINSON, AGEE, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Heytens wrote the opinion, in which Judge
Wilkinson and Judge Agee joined.
ARGUED: Barry Joseph Fisher, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Albany, New York, for Appellant. Ann Adams, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jaclyn L. Tarlton, Raleigh, North
Carolina; Jerome C. Del Pino, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Albany, New York, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa
H. Miller, Deputy Assistant Attorney General, Joshua K. Handell, Appellate Section,
Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Adair Ford Boroughs, United States Attorney, Kathleen Stoughton, Appellate Chief,
Columbia, South Carolina, Everett E. McMillian, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee. Maya M. Eckstein, Trevor S. Cox, William P. Sowers, HUNTON ANDREWS
KURTH LLP, Richmond, Virginia, for Amicus Mental Health Professionals. Thomas A.
Limehouse, Jr., Chief Legal Counsel, Wm. Grayson Lambert, Senior Legal Counsel, Erica
W. Shedd, Deputy Legal Counsel, OFFICE OF THE GOVERNOR OF SOUTH
CAROLINA, Columbia, South Carolina, for Amicus Governor Henry McMaster.
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TOBY HEYTENS, Circuit Judge:
The Federal Death Penalty Act requires us to “address all substantive and procedural
issues raised on the appeal of a sentence of death” and “state in writing the reasons for
[our] disposition.” 18 U.S.C. § 3595(c)(1) & (3). Fulfilling that responsibility, we explain
why we affirm Brandon Council’s convictions and sentences.
I.
On August 21, 2017, Council robbed the CresCom Bank in Conway, South
Carolina. During the robbery, Council fatally shot bank teller Donna Major and bank
manager Kathryn Skeen. Council was arrested three days later.
The next month, a federal grand jury returned a three-count indictment. One count—
which accused Council of possessing a firearm after being convicted of a felony—was
dismissed on the government’s motion. The other counts, of which Council was ultimately
convicted, charged: (1) bank robbery resulting in death, in violation of 18 U.S.C. § 2113(a)
& (e) (Count One); and (2) using and carrying a firearm during and in relation to a crime
of violence in a manner causing death, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) & (j)(1)
(Count Two). Both counts carried a possible death sentence. See §§ 2113(e) (Count One),
924(j)(1) (Count Two). Council pleaded not guilty.
In March 2018, the government filed a notice of intent to seek the death penalty.
See 18 U.S.C. § 3593(a) (requiring the government to file such notice within “a reasonable
time before the trial or before acceptance by the court of a plea of guilty”). As required by
federal law, the notice identified various “aggravating . . . factors that the government . . .
propose[d] to prove as justifying a sentence of death.” § 3593(a)(2).
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The guilt-phase portion of Council’s trial was held over four days in September
2019. Council presented no evidence or witnesses during that phase. The jury found
Council guilty on both charges. After a six-day penalty-phase trial, the jury unanimously
recommended a sentence of death on each count, and the district court entered judgment
consistent with the jury’s verdict. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3595.
II.
Council raises four challenges to the district court’s handling of the guilt phase. We
conclude none warrants upsetting the court’s judgment.
A.
“A criminal prosecution may not proceed unless the defendant is competent.”
United States v. Tucker, 60 F.4th 879, 883 (4th Cir. 2023). Indeed, “[i]t would be a
violation of due process to convict a defendant when he is legally incompetent.” United
States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007). “For constitutional purposes, the test
[for competency] is whether the defendant has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and has a rational as well as
factual understanding of the proceedings against him.” Tucker, 60 F.4th at 883 (quotation
marks omitted).
Council disputes the adequacy of the procedures the district court used in assessing
his competency. Specifically, Council asserts the court improperly delegated its duty to
determine his competency by allowing defense-selected experts to examine him, declining
to secure a report assessing Council’s competency, and failing to conduct an appropriate
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competency hearing. We review such a “procedural competency claim” for abuse of
discretion, Banks, 482 F.3d at 742 (quotation marks omitted), while reviewing any
embedded questions of statutory interpretation de novo, see United States v. Jones,
60 F.4th 230, 232 (4th Cir. 2023). 1
The Insanity Defense Reform Act establishes a process for determining whether a
federal criminal defendant is competent to stand trial. The Act says a district court “shall
order” a competency hearing whenever “there is reasonable cause to believe that [a]
defendant may presently be suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly in his defense.”
18 U.S.C. § 4241(a). The Act also says that “[p]rior to the date of the hearing, the court
may order that a psychiatric or psychological examination of the defendant be conducted,
and that a psychiatric or psychological report be filed with the court, pursuant to the
provisions of section 4247(b) and (c).” § 4241(b). Finally, the Act instructs that a
competency “hearing shall be conducted pursuant to the provisions of section 4247(d),”
§ 4241(c), which, in turn, establishes various procedural protections. 2
1
Council makes no substantive argument against the district court’s bottom-line
finding that he was “competent to proceed.” JA 4782. As a result, any such claim is
forfeited. See, e.g., Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).
2
Council notes the Due Process Clause independently “require[s] procedural
protections to ensure that questions of a defendant’s competency are adequately
investigated and reliably adjudicated by the district court.” Council Br. 44. Because
Council “develops no separate argument on that point,” Tucker, 60 F.4th at 889 n.2,
however, we do not consider whether the Constitution sometimes requires more than the
statute. See Grayson O, 856 F.3d at 316.
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The district court fulfilled its obligations under Sections 4241 and 4247. The court
raised the issue of competency on its own initiative several times, including before and
during a pretrial conference held roughly a year and a half before trial. At that time, defense
counsel vigorously opposed any court-ordered examination of Council’s competency as
“unwarranted and potentially prejudicial” because it could place information in the
government’s hands that could increase the risk of a death sentence. JA 196. Seeking to
avoid such an examination, one of Council’s attorneys declared under penalty of perjury
that Council “ha[d] been appropriately cooperative with counsel” and “has present ability
to consult with counsel to a reasonable degree of rational understanding, and has a rational
and factual understanding of the proceedings against him.” JA 215. “To make doubly sure”
Council was “competent,” the declaration further advised that defense counsel “had a board
certified forensic psychologist . . . conduct a competency evaluation.” Id. Crediting that
declaration, and given the government’s lack of any contrary argument, the district court
found it did “not have reasonable cause under 18 U.S.C. § 4241(a) to doubt [Council]’s
mental competency.” JA 219.
Fast forward a year and some months. After the government rested its guilt-phase
case and the district court advised Council of his right to testify, Council’s attorneys
requested a recess because Council had unexpectedly told them he wanted to take the stand.
The court adjourned proceedings for the day, and, that evening, defense counsel moved for
a competency evaluation and a continuance. The motion asserted Council was “presently
suffering from a mental disease or defect rendering him unable to assist properly and
rationally in his defense,” JA 2176, and noted that under Section 4241(a), a competency
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“hearing is mandatory” whenever there is reasonable cause to doubt a defendant’s
competency. JA 2177. The motion did not ask the district court to exercise its power under
Section 4241(b) to order a psychiatric or psychological evaluation, much less argue the
court had to do so. Instead, the motion stated Council’s attorneys had already “contacted
an expert” who had agreed “to conduct” a competency examination the next day and asked
for a continuance “so that the expert would be able to conduct the evaluation and provide
vital information regarding Mr. Council’s ability to proceed.” JA 2181–82.
The next day was a Friday, and the jury did not hear any testimony that day. Instead,
the district court held three relevant hearings: one with all parties present; a second ex parte
hearing attended only by Council and his attorneys; and a third again attended by all parties.
During the initial hearing, defense counsel reiterated their request for time to have Council
evaluated by the doctor referenced in their motion and suggested that, apart from that
evaluation, no “further testing [was] needed” at that point. JA 4748.
After government counsel was excused, Council’s attorneys recounted statements
and interactions with their client they believed suggested a “possibl[e] . . . break with
reality.” JA 4771. Defense counsel also reiterated their request for time to permit Council
to be evaluated by their chosen expert, once again making no suggestion the district court
should or must exercise its power to order its own evaluation. The district court sought to
directly engage Council, who was seated, unresponsive to the court’s questions, and crying.
After permitting the government’s attorneys to return, the district court made a
“find[ing] that there’s reasonable cause to order an examination” of Council’s competency.
JA 4754. The parties and the court discussed various medical professionals who might
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conduct the competency evaluation, without clear resolution. Without objection from either
party, the court dismissed the jury until the following Monday afternoon and instructed
both sides to “let me know when you talk to whoever you talk to” about performing an
evaluation. JA 4765.
That same day, Council’s attorneys sent two emails to the court and government
counsel. The first identified two medical professionals who would be seeing Council, one
that same day (Friday) and the other on Sunday. The second email objected to having
Council examined by a doctor suggested by the government and the court during that day’s
hearing.
As required by 18 U.S.C. § 4241(a), the district court “convene[d] a competency
hearing” the following Monday. JA 4781. During the hearing, defense counsel advised that
Council had been “seen by a forensic psychologist and forensic psychiatrist,” both of whom
“opined to a reasonable degree of medical certainty that Mr. Council is competent to
proceed.” JA 4781. Defense counsel also provided “statements by those two individuals
along with their CVs,” and said: “We now no longer believe that Mr. Council is
incompetent, to the contrary, we believe that he is competent to proceed in this case.” Id.The district court asked to hear from the government, which advised it did not have any
additional information to offer. “Based on what’s been presented,” the district court found
Council “competent to proceed.” JA 4782.
Nothing about the district court’s handling of this delicate matter reflects a legal
error or an abuse of discretion. At times, Council’s argument appears to be that once a
district court finds reasonable cause to doubt a defendant’s competency, the court must
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always order an examination by a court-appointed expert and insist the expert file a report
satisfying the standards of 18 U.S.C. § 4247(c). That argument cannot be squared with the
text of Section 4241(b), which—in distinct contrast to other provisions of the Insanity
Defense Reform Act—conspicuously uses “may” rather than “shall.” Compare 18 U.S.C.
§ 4241(b) with § 4241(a), (c), (d), (e), (f ), and § 4247(b), (c), (d), (e). Because “the word
‘may’ clearly connotes discretion,” Biden v. Texas, 142 S. Ct. 2528, 2541 (2022)
(quotation marks omitted), we see no warrant for imposing any sort of categorical
requirement. 3
To be sure, Section 4241(b) would have authorized the district court to designate
other experts to examine Council or order the filing of a formal report had it decided to do
so. But the court was tasked with the difficult job of balancing multiple aspects of the
Constitution’s fair trial guarantee, which includes not only the right to be tried only if
competent but also the rights to have the effective assistance of counsel and to refuse to
provide information that could compromise one’s own defense. See, e.g., Strickland v.
Washington, 466 U.S. 668, 684–85 (1984) (“The Constitution guarantees a fair trial
through the Due Process Clauses, but it defines the basic elements of a fair trial largely
through the several provisions of the Sixth Amendment, including the Counsel Clause.”).
Even if we accept Council’s current premise—that obtaining an independent examination
that results in the filing of a detailed report is generally preferable to relying on a private
3
When asked at oral argument, Council was also unable to cite a decision imposing
such a requirement. See Oral Arg. 5:17–6:34.
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evaluation by defense-chosen experts—we cannot say the district court exceeded its
discretion in proceeding as it did here. See Banks, 482 F.3d at 742–43 (emphasizing district
courts are “in a superior position” to evaluate “procedural competency claim[s]” (quotation
marks omitted)).
We likewise hold the district court did not exceed its discretion while conducting
the competency hearing. At that hearing, Council was “represented by counsel,” as required
by 18 U.S.C. § 4247(d). Council was also afforded the other procedural rights guaranteed
by Section 4247(d), including “an opportunity to testify, to present evidence, to subpoena
witnesses on his behalf, and to confront and cross-examine witnesses who appear at the
hearing.” Id. Indeed, Council does not contest that fact.
Instead, Council insists the district court erred in not requiring additional
information so it could make its own “independent [and] informed determination” of
Council’s competency. Council Br. 85–86. But Council identifies no statutory text
supporting that argument, and the primary authority Council cites—Pate v. Robinson,
383 U.S. 375 (1966)—imposes no such requirement. The Supreme Court’s holding in Pate
was about whether a defendant is entitled to a competency hearing, not the nature and
characteristics of such a hearing. See id. at 377 (“We have concluded that Robinson was
constitutionally entitled to a hearing on the issue of his competence to stand trial.”). In
addition, the circumstances of Pate differ from those here in several respects. In Pate,
defense counsel insisted “throughout the proceedings” that the defendant’s “present sanity
was very much in issue” and offered four witnesses who “expressed the opinion that [the
defendant] was insane.” Id. at 383–384. That is a far cry from the situation the district court
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confronted here—one where there was a competency hearing at which defense counsel
insisted their client was “competent to proceed.” JA 4781.
B.
Council’s second argument is the district court should have granted his July 2019
motion for a 90-day continuance so his defense team could further investigate mitigation
evidence. To prevail on that challenge, Council must “show, first, that the district court
abused its discretion in denying the continuance motion, and second, that the ruling
specifically prejudiced” his defense. United States v. Hedgepeth, 418 F.3d 411, 423 (4th
Cir. 2005) (quotation marks omitted). Here, we need not reach the prejudice issue because
we hold the district court did not abuse its “broad discretion.” Morris v. Slappy, 461 U.S.
1, 11 (1983).
In reviewing the record, we remain mindful of the mammoth task facing capital
defense attorneys. Because “execution is the most irremediable and unfathomable of
penalties,” the Supreme Court “has demanded that factfinding procedures aspire to a
heightened standard of reliability” in capital cases. Ford v. Wainwright, 477 U.S. 399, 411
(1986). In particular, the Court has stressed that penalty-phase investigations “should
comprise efforts to discover all reasonably available mitigating evidence and evidence to
rebut any aggravating evidence that may be introduced by the prosecutor.” Wiggins v.
Smith, 539 U.S. 510, 524 (2003) (quotation marks omitted). As relevant here, these
investigative efforts extend to evidence about a defendant’s time at a juvenile detention
facility. See Andrus v. Texas, 140 S. Ct. 1875, 1877–78 (2020) (per curiam).
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But the question before us is not what we might have done had we been sitting as
the court of first instance. As the Supreme Court has long recognized, “[t]rial judges
necessarily require a great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors at the same place at the
same time, and this burden counsels against continuances except for compelling reasons.”
Morris, 461 U.S. at 11. For that reason, “[t]he denial of a continuance” violates a
defendant’s rights “only when there has been an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.” Hedgepeth, 418 F.3d at 423(quotation marks omitted). Applying that deferential standard here, we cannot say the
district court abused its discretion in denying Council’s July 2019 motion.
Before the challenged denial, Council sought, and received, four continuances of
the trial date. The first three requests came via joint motions while the government decided
whether to pursue the death penalty. Council made his fourth request for a continuance in
October 2018—more than six months after the government noticed its intent to seek the
death penalty and just over three months before the then-scheduled trial date. In that
motion, Council sought a nine-month delay, while the government opposed any delay
longer than three months. The district court granted an eight-month continuance “out of an
abundance of caution,” JA 1051, and continued the trial until September 2019.
On July 11, 2019— about two months before trial was scheduled to start—Council
sought another three-month continuance, which is the request at issue here. In that motion,
Council acknowledged “that 2000 summonses” had already “been sent to potential jurors,
most of whom ha[d] completed and returned standard juror questionnaires.” JA 1432. The
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motion argued, however, that defense counsel had “encountered unusual obstacles in
completing” their mitigation investigation, including an inability to locate and question
several potential penalty-phase witnesses despite having issued more than 100 subpoenas.
JA 1431.
After a hearing, the district court denied the motion for a fifth continuance. The
court began by stating Council had “not shown that a further delay is necessary for a just
determination of the case” and that “the defense has had . . . sufficient time to . . . prepare
a defense and still has time over a couple of months certainly.” JA 1913. The court noted
it had granted “what I believe to be a generous continuance previously,” emphasizing “the
jury summons have already gone out” and “[s]everal hundred people will be coming in in
a little over a month to complete the supplemental case questionnaires.” JA 1914. The court
also observed that “[m]any people, witnesses, jurors, . . . victims’ families, [and] this Court
ha[ve] made plans regarding the schedule of this case” and it “note[d] the government’s
arguments that the victims have rights as well.” Id. Finally, the court emphasized it was
“very satisfied that these defense lawyers have been fulfilling their duties of preparation
and investigation” and that it had “appointed Mr. Council four lawyers, not two” and
ensured “they have adequate resources, substantial resources available to them.” JA 1914–
15; see 18 U.S.C. § 3005 (requiring a district court to appoint two lawyers to represent a
capital defendant).
Council’s lead argument on this point is that the district court inappropriately
“prioritiz[ed]” the victims’ families’ “desire for the swiftest trial” over his own “right to
prepare a defense.” Council Br. 90. We respectfully disagree. Although the district court
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referenced the victims and their families at two points during its explanation, the court
began its remarks by emphasizing its conclusion that Council had failed to show “that a
further delay is necessary for a just determination of the case.” JA 1913; see JA 1914–15.
Viewing the district court’s remarks as a whole, we see no indication it shortchanged
Council’s legitimate interests or placed undue emphasis on any one factor.
Nor do any of Council’s other arguments establish the district court abused its
discretion. That this case went to trial faster than most other federal death penalty cases
does not show the district court exceeded its “broad discretion” in denying this particular
motion. Morris, 461 U.S. at 11. And Council’s arguments about his need for more time,
and the preferability of alternatives to denying his motion outright, ask us to second-guess
the district court’s case-specific judgments in “areas where the district court’s comparative
expertise is at its zenith and ours its nadir.” Tucker, 60 F.4th at 888. We thus hold the
district court made no reversible error in denying Council’s fifth continuance motion.
C.
Council’s third guilt-phase challenge involves the district court’s procedures for
questioning potential jurors about racial bias. Council asserts the court should have asked—
or allowed him to ask—more precise questions about prospective jurors’ racial attitudes
instead of “generic” questions about whether they could “self-identify as racially unfair.”
Council Br. 118 (quotation marks omitted). Here too, we perceive no reversible error.
The Sixth Amendment guarantees the right to trial “by an impartial jury.”
U.S. Const. amend. VI. “Because of the range of discretion entrusted to a jury in a capital
sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain
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undetected.” Turner v. Murray, 476 U.S. 28, 35 (1986) (plurality opinion). For that reason,
“a capital defendant accused of an interracial crime is entitled to have prospective jurors
informed of the race of the victim and questioned on the issue of racial bias.” Id. at 36–37.
At the same time, “the trial judge retains discretion as to the form and number of
questions on the subject” of racial bias. Turner, 476 U.S at 37. In addition, “the adequacy
of voir dire is not easily subject to appellate review” because we cannot “easily second-
guess the conclusions of the decision-maker who heard and observed the witnesses.”
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion). For that
reason—as Council acknowledges—we review the district court’s handling of this issue
for abuse of discretion. See United States v. Tsarnaev, 142 S. Ct. 1024, 1034 (2022) (“A
court of appeals reviews the district court’s questioning of prospective jurors only for abuse
of discretion.”).
The district court followed a three-part process for gathering information about
prospective jurors. All prospective jurors filled out the court’s standard questionnaire,
which was mailed with the summons. Prospective jurors then completed “a supplemental
in-court questionnaire specific to this case.” Council Br. 116. Finally, the court conducted
multiple days of individualized voir dire, during which both the court and the parties asked
questions.
Although the district court’s standard questionnaire did not ask about racial
attitudes, the issue was addressed in the supplemental questionnaire and with some
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individual jurors during voir dire. The supplemental questionnaire contained six questions
under the heading “Racial Attitudes.” JA 2100 (formatting omitted). The questions were:
• Have you, or any member of your immediate family ever been a member
of a private club, professional, fraternal or social organization that limits
or restricts membership on the basis of race, ethnic origin or religion? If
you answered “Yes,” please explain.
• Do you ever socialize with people of different races, or belong or
participate in any clubs, groups or organizations with members from
diverse racial backgrounds? If you answered “Yes,” please explain.
• Is there any racial group you feel uncomfortable being around? If you
answered “Yes,” please explain.
• Have you, or a member of your family or household, or close friend ever
had a conflict, physical confrontation or any type of very bad experience
involving a person of a different race? If you answered “Yes,” please
explain.
• Can you be fair and impartial in a case involving an African-American
defendant and a Caucasian victim(s)? If you answered “No,” please
explain.
• The Defendant, Brandon Council, is African-American. The victims,
Donna Major and Kathryn “Katie” Skeen, are white/Caucasian. Will
these facts prejudice you against the Defendant, Brandon Council, or
affect your ability to render a fair and impartial verdict?
JA 2100–01. Each of these questions was the same as, or similar to, one proposed by
Council or the government. The supplemental questionnaire concluded by asking whether
“there [are] any particular questions contained in this questionnaire, or any other issues that
you want to bring to the attention and discuss privately with the Court or attorneys[.]”
JA 2111.
Council’s primary argument is that the district court should also have asked some
variation of six other questions he proposed including in the supplemental questionnaire.
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As Council puts it, those questions “would have inquired, in complementary ways, whether
jurors believed that Black people . . . are more prone to violence” than non-Black people.
Council Reply Br. 39; see id. at 39 n.27. The rejected questions on which Council now
focuses are:
• Do you believe certain racial groups are more predisposed to commit
crimes of violence than others? Please explain your answer.
• Do you believe Blacks are more predisposed to commit violence than
Whites are? If you answered “Yes,” please explain.
• Do you think that people who record, produce, write or are otherwise
involved in “rap” or “hip hop” music are prone to violence or criminal
activities?
• Do you believe that regularly listening to “rap” and “hip hop” music or
watching videos and movies about the music industry or the drug culture
can lead people to commit crimes of violence?
• Do you believe certain types of male dress and hair style, such as wearing
low hung pants or “dreadlocks,” are indicators of a criminal lifestyle?
• In this case, the defendant is an African American man and the victims
were both White women. Do you feel that this fact would in any way,
even slightly, affect how you would view this case or the actions of the
defendant?
Council Br. 116–17 (citing JA 1352, 1360–61, 1371).
There is force to Council’s argument that—in a case involving “a dark-skinned
dreadlocked Black man with an affinity for flashy cars and movies about rap-music
gangsters, who had killed two church-going White women”—it would have been wise to
ask prospective jurors if they believe Black people are prone to violence. Council Reply
Br. 45. After all, “a juror who believes” Black people “are violence prone . . . might well
be influenced by that belief in deciding whether [the defendant’s] crime involved the
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aggravating factors specified” by the government. Turner, 476 U.S. at 35 (plurality
opinion).
But the question before us is not whether we would have asked one or more of
Council’s proposed questions had we been sitting as the trial judge. Rather, it is whether
the district court abused its discretion in concluding the steps it took were appropriate to
guard Council’s Sixth Amendment right to an impartial jury.
We hold the district court did not abuse its discretion. The court’s supplemental
questionnaire posed six questions that were directly about race, and the Supreme Court has
emphasized that even when a defendant is constitutionally entitled to have prospective
jurors “questioned on the issue of racial bias,” “the trial judge retains discretion as to the
form and number of questions on the subject.” Turner, 476 U.S. at 37. Indeed, as Council
acknowledges, one of the questions the district court asked here is almost identical to the
one the defendant requested in Turner. Compare Turner, 476 U.S. at 30–31, with JA 2101.
True, some of Council’s proposed questions were more tailored to this case than the
ones posed by the district court. Although these questions might have better homed in on
a potential juror’s biases, it is also possible these “more pointed questions could well [have]
exacerbate[d] whatever prejudice might exist without substantially aiding in exposing it.”
Peña-Rodriguez v. Colorado, 580 U.S. 206, 224–25 (2017). Given that balancing these
concerns is a fundamentally fact and context-specific task, trial courts possess “broad
discretion” and “great latitude in deciding what questions should be asked on voir dire.”
Tsarnaev, 142 S. Ct. at 1034 (first quote); Mu’Min v. Virginia, 500 U.S. 415, 424 (1991)
(second quote).
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We also must consider the district court’s jury selection process in its entirety rather
than artificially limiting ourselves to the supplemental questionnaire. See Tsarnaev,
142 S. Ct. at 1035. Although it did not have to do so, see Fed. R. Crim. P. 24(a), the district
court allowed defense counsel to question prospective jurors, thus giving Council a chance
to explore matters he believed were not adequately captured by the supplemental
questionnaire or the court’s questions. See Tsarnaev, 142 S. Ct. at 1035 (“[B]oth parties
had the opportunity to ask additional questions and probe for bias.”). Despite this
opportunity, Council’s attorneys asked only one prospective juror about racial attitudes
during their allotted time. By contrast, after reviewing the answers on their supplemental
questionnaires, the court subjected nine prospective jurors to follow-up questions about
their attitudes towards persons of other races.
Council offers several explanations for his attorneys’ failure to ask potential jurors
more questions about race, but none carries the day. For example, Council asserts the
district court “announc[ed] that voir dire would be confined to death-penalty inquiries and
follow-ups to questionnaire answers” rather than matters the court had refused to include
in the supplemental questionnaire. Council Br. 120 (citing JA 2680–81). The cited
transcript pages do not support that assertion. Instead, the court said its own oral
questioning would be confined to such matters, while clarifying that “[t]he lawyers
certainly are free to spend their limited time asking some of their [proposed] questions if
they’re appropriate.” JA 2681.
Council insists the district court would not have permitted him to ask the questions
he now asserts should have been included in the supplemental questionnaire, noting the
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court previewed that “some of ” the parties’ proposed questions had been “not appropriate.”
JA 2681; see Council Reply Br. 50. But Council had proposed 25 questions about racial
attitudes for inclusion in the supplemental questionnaire and a set of 27 questions (some
involving race, some not) for the district court to ask during the court-conducted voir dire.
We thus have no way of knowing which questions the district court would have considered
inappropriate for Council’s attorneys to ask during voir dire. And we will not reverse a
district court’s judgment based on assumptions about how the court would have ruled had
a party attempted to ask a question it never tried to ask.
Finally, Council asserts that asking more probing questions about racial attitudes
during his own voir dire time “would not have been a realistic alternative” both because of
the time limits and because “[t]he sensitive nature of the questions about racial attitudes
required that they be posed by the court, not by the defense.” Council Reply Br. 50. That
does not adequately explain, however, why Council’s attorneys used almost none of their
own time to pose questions about race.
The process of selecting an impartial jury is delicate and involves complex tradeoffs.
Council forcefully argues the district court should have proceeded differently here. But the
record shows the district court was not blind to the risk of the “familiar and recurring evil”
of racial bias, Peña-Rodriguez, 580 U.S. at 224, and we cannot say the means it chose to
address that risk exceeded the bounds of its discretion.
D.
Council’s final guilt-phase argument is that the government violated the rule of
Batson v. Kentucky, 476 U.S. 79 (1986), by using peremptory strikes to remove Black
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potential jurors. We cannot assess whether Council could have mounted a winning Batson
challenge—a finding that would have brought an “automatic reversal” of his convictions
and sentences, Weaver v. Massachusetts, 582 U.S. 286, 301 (2017)—because we conclude
his trial counsel affirmatively waived any such claim.
After completing the voir dire process, the district court held a hearing during which
each side was allotted 22 peremptory strikes (20 for the main jury and two for the
alternates). When each side finished using its strikes, the court asked: “Any objection
regarding the method of the selection of the jury?” JA 4076–77. Both sides said no. The
court called forward 16 people, told them they had “been selected as jurors,” gave a set of
preliminary instructions, and said a member of the court’s staff would assist the jurors
“with regard to hotel accommodations and arrangements like that.” JA 4077, 4079.
The court then asked if there was “[a]nything from the lawyers before I allow them
to be taken back in there.” JA 4079. At that point, defense counsel asked for “a couple of
minutes,” which the court granted. Id. After a pause, defense counsel said, “I need to
approach, Your Honor,” and the court responded: “Okay. Any objection to me taking these
people in there?” Id. Both sides said no, and the jurors who had just been selected left the
room, leaving the potential jurors who had not been selected in the courtroom.
The court directed the lawyers to approach the bench. Because the following
exchange is critical to our holding, we quote it in full:
THE COURT: What’s the problem?
[DEFENSE] ATTORNEY NETTLES: I would ask the rest of the panel not
be—
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THE COURT: I’m just going to let them go.
ATTORNEY NETTLES: Well, we would like to analyze the strikes for any
issues in regard to the exercise of peremptory strikes if the Court would give
us a little bit of time to do that, I would ask that you not release the jury at
this time.
THE COURT: Well, I asked if there were any objections.
ATTORNEY NETTLES: I was talking about the procedure—I thought you
were talking about the method, 1 through 20 and the alternate. I didn’t think
you were talking about Batson issues or anything like that.
THE COURT: Yes, yes. Well, I need to bring them back out then, you’re
telling me—
ATTORNEY NETTLES: I’m just telling you we need to go look at it. I
thought you were going to bring them out and do that, but not swear them. I
didn’t know it had anything to do—I just thought it had to do with the
exercise of peremptories in that fashion, that was all I thought it was.
THE COURT: Okay. Well, that’s not the way I’ve always done it.
ATTORNEY NETTLES: I haven’t even had a chance to look at it yet.
THE COURT: Okay. Well, we need to bring them back out then. Bring them
back out.
(Brief pause.)
THE COURT: Let me ask you something. Lawyers, come here just a second.
So what you’re telling me is that you want time to review any potential
Batson issues.
ATTORNEY NETTLES: That’s all. That’s all we’re doing.
THE COURT: I understand that, but you should have told me before I—
because this is the procedure I’ve always followed. And when I ask the
question, you know, any objection regarding the method of selection of a
jury, that’s when the lawyers alert me to any Batson issues they want to raise.
ATTORNEY NETTLES: I’m sorry, I did not—
THE COURT: That’s the way I’ve always done it. Now, you all want me to
ask these people to take a seat back out there.
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ATTORNEY NETTLES: I don’t think you need to do that.
[DEFENSE] ATTORNEY BRYANT: I don’t think you need to do that,
Judge. All we need is just a couple of minutes just to review and then we can
report right back to you, Your Honor.
THE COURT: Okay. All right.
ATTORNEY BRYANT: That’s all we’re asking for.
THE COURT: Okay.
ATTORNEY NETTLES: Thank you.
(Sidebar discussion ended.)
(Brief pause.)
ATTORNEY BRYANT: May we approach, Your Honor?
THE COURT: Yes.
(Sidebar as follows:)
ATTORNEY NETTLES: We are fine. We have no objection to the selection
process.
THE COURT: Okay. Very good. Thank you. Yes, sir.
ATTORNEY BRYANT: Thank you.
(Sidebar discussion ended.)
THE COURT: All right. Let me ask the lawyers to come here just a second.
(Sidebar as follows:)
THE COURT: Any objection to me going ahead and thanking these people
for being a part of the process and letting them go?
[GOVERNMENT] ATTORNEY SHOEMAKE: None from the government.
ATTORNEY NETTLES: No, sir.
JA 4080–83. The court then dismissed the potential jurors who had not been selected, and
counsel and the court began discussing various matters of trial logistics.
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As this exchange shows, Council’s trial attorneys did not merely forfeit a Batson
claim—they waived it. See United States v. Olano, 507 U.S. 725, 733 (1993) (explaining
the difference between forfeiture and waiver). “A party who identifies an issue, and then
explicitly withdraws it, has waived the issue.” United States v. Robinson, 744 F.3d 293,
298 (4th Cir. 2014) (quotation marks omitted). That is exactly what happened here.
Defense counsel specifically identified “potential Batson issues,” JA 4081, before
withdrawing the issue by telling the court: “We are fine. We have no objection to the
selection process.” JA 4081–82. Having scrutinized the transcript, we can “say with
confidence” that defense counsel “meant to relinquish” any Batson challenge. United
States v. Boyd, 5 F.4th 550, 555 (4th Cir. 2021). 4
Council argues we should overlook the waiver and “treat [the issue] as preserved”
because the district court “deprived [him] of a fair and meaningful opportunity to harness
and present the evidence needed to litigate the Batson claim.” Council Br. 149. In
particular, Council asserts the district court “indicated the defense would have [had] to
litigate any Batson claim on the spot, and in front of the entire venire.” Id. at 134.
To be sure, the record shows the district court was caught off guard when defense
counsel raised “potential Batson issues,” JA 4081, after previously advising they had no
4
The waiver here was made by Council’s attorneys rather than Council himself. But
Council does not argue Batson issues fall within the rare category of rights that only
defendants themselves can waive, and this Court has enforced other waivers of trial rights
made by defense attorneys. See, e.g., United States v. Ivey, 60 F.4th 99, 115–16 (4th Cir.
2023). We thus do not consider the merits of Council’s Batson claim at this point. See note
5, infra.
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“objection[s] regarding the method of the selection of the jury,” JA 4076–77. But even at
that point, defense counsel requested “just a couple of minutes just to review” the matter
and never requested a formal recess. JA 4082. After the district court granted that request—
which, defense counsel advised, was “all we’re asking for”—it was defense counsel who
cut short the break after what the trial transcript describes as a “[b]rief pause.” Id. Far from
lacking “an opportunity to object,” Fed. R. Crim. P. 51(b), the record shows Council’s trial
attorneys made a decision—albeit a quick one—to forgo a Batson challenge.
The consequences of this waiver are serious. “[W]hen a claim is waived, it is not
reviewable on appeal, even for plain error.” Robinson, 744 F.3d at 298; accord Allen v. Lee,
366 F.3d 319, 328 (4th Cir. 2004) (en banc) (stating a defendant who “expressly
relinquished his right to a remedy at trial by, in effect, consenting to be tried by the jury as
constituted” cannot later “rescind that consent”). For that reason, we cannot consider—and
express no opinion about—Council’s current arguments that “the government used its
peremptory strikes quite disproportionately against Black veniremembers” or that “[t]he
record reveals no plausible race-neutral reason for most of those strikes that did not apply
equally to White venirepersons the government left on the jury.” Council Br. 133–34;
see id. at 140–48. Nor has Council identified any authority for remanding to the district
court for additional proceedings while the case is still on direct appeal. We have no warrant
to disturb a district court’s judgment based on a claim abandoned at trial. 5
5
Council does not ask us to reverse the district court’s judgment on a theory that his
trial attorneys’ waiver of a Batson claim was ineffective assistance of counsel. At any rate,
“a defendant may raise an ineffective assistance claim for the first time on direct appeal
(Continued)
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III.
Council also makes various challenges related to the penalty phase of his trial. He
argues the death penalty is unconstitutional. But the Supreme Court has said “[t]he
Constitution allows capital punishment,” Bucklew v. Precythe, 139 S. Ct. 1112, 1122
(2019), and we have no authority to say otherwise. Nor does Council identify any other
basis for disturbing his sentence.
A.
The Federal Death Penalty Act prescribes a three-step process for deciding whether
to recommend a sentence of death. First, a capital jury must find one of what the special
verdict form here described as “threshold intent factors” listed in 18 U.S.C. § 3591(a)(2).
JA 2306. Second, the jury must find at least one of what the special verdict form called
“statutory” or “non-statutory” aggravating factors. JA 2307–08; see 18 U.S.C.
§ 3593(e)(2). Third and finally, the jury must “consider whether all the [statutory or non-
statutory] aggravating factor or factors found to exist sufficiently outweigh all the
mitigating factor or factors found to exist to justify a sentence of death.” § 3593(e).
Council makes no arguments challenging the process at step one. At step two, the
jury unanimously found six aggravating factors: two statutory and four non-statutory.
Council offers two sets of arguments for why these findings were erroneous. For one thing,
Council contends two of the factors were inherently contradictory, and unsupported by the
only where the ineffectiveness conclusively appears from the record,” United States v.
Ojedokun, 16 F.4th 1091, 1115 (4th Cir. 2021) (quotation marks omitted), and Council
does not contend that standard is satisfied here.
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evidence. For another, Council asserts the jury was allowed “to triple-count the supposedly
‘unnecessary’ nature of the murders” and that this multiple counting violated his rights
under the Fifth and Eighth Amendments. Council Br. 161. These errors, Council concludes,
erroneously inflated the number of aggravating factors at issue, and thus prejudiced him at
step three.
We review challenges to the validity of an aggravating factor de novo. United States
v. Higgs, 353 F.3d 281, 315, 320 (4th Cir. 2003). As always, we review a jury verdict for
sufficiency of the evidence by asking “if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80
(1942); see 18 U.S.C. § 3595(c)(2)(B) (instructing us to decide whether “the admissible
evidence and information adduced” “support[s] the special finding of the existence of [an]
. . . aggravating factor”). 6
1.
Council’s “inherent conflict” and insufficiency of the evidence arguments focus on
one statutory factor and one non-statutory factor. The statutory factor—captioned
“Pecuniary Gain” on the special verdict form, JA 2307, 2321—asked whether:
The defendant committed the offense as consideration for the receipt, or in
the expectation of the receipt, of anything of pecuniary value.
6
The government contends some of Council’s arguments are properly reviewed only
for plain error because they were never presented to the district court. See U.S. Br. 104–05.
Because we conclude these arguments fail either way, we do not resolve the preservation
issue.
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18 U.S.C. § 3592(c)(8). The non-statutory aggravating factor was captioned “Targeting
Innocent Victims.” JA 2308, 2322. It asked whether:
[T]he defendant displayed particular cruelty and callous disregard for human
life by shooting both victims, who were unknown to him, multiple times at
close range without warning and without provocation or resistance from the
victims, in spite of the fact that such violence was not necessary to
successfully complete the robbery of the CresCom bank[.]
JA 2308, 2322. (Because the latter factor focuses on Council’s conduct rather than the
character of his victims, it seems “gratuitous killing” may have been a more accurate
shorthand. Council and the government both use “innocent victims,” however, so we do
the same.)
We conclude there is no inherent conflict between these factors and the evidence
was sufficient to support the jury’s finding on each of them. For the sake of argument, we
assume Council is right that the jury could only find the pecuniary gain factor satisfied “if
Council’s ‘motivation for the murders’—not just for the robbery—was to enable him to
steal money from the bank.” Council Br. 162; accord United States v. Barnette, 390 F.3d
775, 805–07 (4th Cir. 2004) (doing the same), cert. granted and judgment vacated on other
grounds, 546 U.S. 803 (2005). But there is no inconsistency between saying Council killed
his victims “in the expectation” it would help him complete the robbery, 18 U.S.C.
§ 3592(c)(8) (emphasis added), while also saying “such violence” was “not necessary” to
complete the robbery and that it “displayed particular cruelty and callous disregard for
human life.” JA 2308, 2322 (emphasis added).
The evidence here adequately supported both findings. During a recorded interview
with FBI agents, Council said he killed his victims to prevent them from “pushing that
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button or whatever they do to alert the authorities” “[b]ecause that’s the only way I knew
that I could get away” from the bank without being apprehended or killed. JA 374, 377. A
jury could reasonably conclude that, in so stating, Council admitted killing his victims to
facilitate a robbery committed for pecuniary gain. See JA 6004 (government lawyer noting
Council “said that he was worried they might hit the alarm so he killed them”). At the same
time, the jury could also have reasonably found that—under all the circumstances—it was
unnecessary for Council to kill his victims to facilitate an escape and that the way he did
so showed a callous disregard for human life.
The decisions Council relies on do not compel a different result. In United States v.
Barnette, 390 F.3d 775 (4th Cir. 2004), this Court rejected a sufficiency challenge to the
pecuniary gain factor in a carjacking prosecution where the defendant stated that—even
though he had other options for escape—he killed the victim because “I just thought he
[was] going to stop me.” Id. at 808. That statement is not meaningfully different from what
Council said here.
The Fifth Circuit’s decision in United States v. Bernard, 299 F.3d 467 (5th Cir.
2002), provides some support for Council’s position, but we conclude it is ultimately
distinguishable. To begin, despite determining it had been error to submit the pecuniary
gain factor to the jury, the Bernard court ultimately affirmed the defendant’s death sentence
after concluding the error was harmless. See id. at 483–84. But see Council Br. 171
(asserting that “inflat[ing] the number of aggravating factors weigh[ing] in favor of death”
is necessarily prejudicial). True, the Bernard court stated “[t]he motivation for the
murders” in that case “was unrelated to pecuniary gain” because the defendant “sought to
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prevent the [victims] from reporting their crimes to the police” rather than expecting a
“pecuniary gain . . . to flow directly from the homicide.” 299 F.3d at 483–84. But the Fifth
Circuit also emphasized its insufficiency holding was based on “the facts presented by
th[at] case,” id. at 484, which included neither the sort of admission in the defendant’s
“own words” present here, nor the tight temporal proximity between the taking of property
and the victim’s murder. Finally, to the extent there is any tension between the Fifth
Circuit’s broad language in Bernard and this Court’s holding in Barnette, we are required
to follow the latter.
2.
We also are unpersuaded by Council’s “triple counting” claim. Council’s argument
on this point focuses on three factors. The first is the innocent victims factor discussed
earlier. The second is a statutory aggravating factor the parties and special verdict form call
“multiple killings.” It asked whether “the defendant intentionally killed . . . more than one
person in a single criminal episode.” 18 U.S.C. § 3592(c)(16). The third is a non-statutory
aggravating factor the parties describe as “escalating violence.” As put to the jury, that
factor asked whether Council “engaged in a continuing and escalating pattern of criminal
activity . . . culminating with the armed robbery of the CresCom bank.” JA 2308, 2322.
Council asserts these three factors “invited jurors to redundantly count [his] purported
awareness that the murders were ‘unnecessary,’” which violated his rights under the Fifth
and Eighth Amendments. Council Br. 161.
That argument has several problems. For one thing, neither the Supreme Court nor
this one has ever “held that aggravating factors could be duplicative so as to render them
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constitutionally invalid” or “passed on the ‘double counting’ theory” Council advances.
Jones v. United States, 527 U.S. 373, 398 (1999). And we need not address the theory’s
validity today because we conclude the aggravating factors Council identifies focused on
discrete aspects of his wrongful conduct. The innocent victims factor addressed how
Council killed his victims, and that it was unnecessary to do so to complete the robbery.
The multiple killings factor recognized two people lost their lives. And the escalating
violence factor involved Council’s conduct over a longer time, requiring jurors to consider
events leading up to the CresCom robbery (including previous robberies he committed in
which no one had been killed). We thus conclude there was no triple counting—
impermissible or otherwise.
B.
Council’s next challenge to his sentence involves victim impact testimony. Council
asserts it was error for the district court to allow the presentation of evidence to become
“lifetime retrospective[s] about each victim,” which included “detailing their value to their
professional, church, and local communities.” Council Br. 173. Here too, we see no
reversible error.
Before trial, Council filed a motion asserting the government’s non-statutory victim
impact aggravating factor was “unconstitutionally vague and overbroad.” JA 494. 7
“Alternatively,” Council asked the district court to require “the government [to] provide a
more definite statement as to the specific victim impact evidence the government intends
7
Council does not renew that claim on appeal.
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to offer in the event a penalty phase is necessary.” JA 497. The court denied Council’s
motion to strike the victim impact aggravating factor, noting “the Supreme Court has
rejected similar vagueness and overbreadth challenges.” JA 1061. The court also denied
Council’s request for a more definite statement, citing this Court’s observation that the
Federal Death Penalty Act and the Constitution “require that the defendant receive
adequate notice of the aggravating factor, . . . not notice of the specific evidence that will
be used to support it.” JA 1062 (quoting Higgs, 353 F.3d at 325).
A month before trial, Council renewed his request for “an informative outline of
testimony and exhibits in support of the ‘victim impact’ non-statutory aggravating factor.”
JA 1835. At a hearing held a week later, the government provided “a bit of an overview of
what [it thought] our victim impact case looks like as it stands,” including the number of
witnesses and the nature of their relationship with the victims and the number and types of
exhibits. JA 2048. When defense counsel requested additional information, the court
responded the government had “done a very good job giving you an outline, probably much
more than what you’re entitled to.” JA 2054. In its written order, the district court said it
found the government’s “proposed presentation reasonable” and granted “the
Government’s request to the extent that the Government abides by the description given at
the” hearing. JA 1982. The court also stated that “the Government’s proposed witnesses
(family members and friends/coworkers) are proper” sources for victim impact testimony
and emphasized that the government had acknowledged “the limitations on victim impact
testimony.” JA 1982 n.9.
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Although Council continued to raise concerns about the nature and scope of the
anticipated victim impact testimony before the sentencing phase began, the defense raised
only one objection during the first day of penalty-phase testimony. That objection was
prompted by government counsel’s statement “I know this is very difficult for you” at the
end of the first witness’s testimony. JA 4924. After the witness was excused, defense
counsel asked to approach and raised concerns about the statement. JA 4925. Government
counsel responded, “That’s fine,” and the district court stated its view that the remark had
been an “honest” mistake. Id. Defense counsel concurred with the court’s observation, and
the court directed counsel on each side to be mindful going forward. See id. The
government called its second and final witness of the day, during which the defense raised
no objections.
That same day, Council filed a motion asking the district court to take three actions.
The first was “order the government to submit an informative outline of victim impact
evidence.” JA 2214. The second was “order that the government may not introduce
evidence about the impact of the victims’ deaths on the workplace or the community.” Id.And the third asked the court to “conduct a review of victim impact evidence proposed in
the government’s informative outline and appropriately limit the evidence.” Id.The district court addressed the matter before resuming testimony the next day.
After defense counsel expressed concern about “jumping up in front of the jury sounding
insensitive and wanting to make objections,” the court remarked, “you all have had no
hesitation signaling that you all need to come up here at sidebar and speak to me.” JA 4941.
The court reminded defense counsel that the government had previously revealed “the
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witnesses [they were] going to call,” and stated that “[b]efore we get any further victim
impact testimony I’ll ask [the government] to meet with the defense[ and] say these are the
exhibits.” JA 4942.
Defense counsel also took issue with “the testimony” and “the things that [the
witnesses are] saying,” prompting the court to say it would give a limiting instruction.
JA 4943. And when defense counsel lamented the risk of “appear[ing] insensitive” by
objecting to, and thereby interrupting, forthcoming witnesses’ testimony, the district court
responded that “there was no contemporaneous objection” during the earlier testimony and
“you all can signal and come here to sidebar at any time.” JA 4944. Once the jurors
reentered the courtroom, the court cautioned:
To the extent there was any testimony yesterday regarding the effect on the
community as a whole or the banking community as a whole or CresCom
Bank as a whole as a result of these victims’ deaths, you should disregard it.
You can only consider the impacts of the victims’ deaths on family, friends
and coworkers.
JA 4949. After that instruction, defense counsel made no further objections to the victim
impact testimony.
There is a significant mismatch between the arguments Council made before the
district court and the ones he advances now. As laid out above, Council’s overriding
argument before the district court was that the government should have been required to
provide a more detailed outline of the victim impact testimony before the testimony was
offered. But Council all but abandons that argument before this Court—perhaps
recognizing it is not supported by either the text of the Federal Death Penalty Act or this
Court’s precedent. See Higgs, 353 F.3d at 325. Instead, Council focuses on the substance
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of the victim impact evidence, asserting it “transgressed almost every boundary . . . set by
the Supreme Court.” Council Br. 178.
Because Council did not lodge a contemporaneous objection to most of the
testimony with which he now takes issue, there is an argument this claim should be
reviewed only for plain error. See Fed. R. Crim. P. 52(b). The government does not ask us
to apply that standard, however, so we will assume for the sake of argument Council’s
claim is preserved. At the same time, we reject Council’s position that de novo review is
appropriate simply because some of the government’s evidence—or the presentation as a
whole—“implicates constitutional rights.” Council Br. 174. Instead, as this Court has held,
a district court’s decision “to admit certain evidence” involving victim impact is reviewed
only “for abuse of discretion.” United States v. Runyon, 707 F.3d 475, 499 (4th Cir. 2013).
We hold the district court committed no abuse of discretion. “The Eighth
Amendment . . . permits capital sentencing juries to consider evidence relating to [a]
victim’s personal characteristics and the emotional impact of the murder on the victim’s
family in deciding whether an eligible defendant should receive a death sentence.” Jones,
527 U.S. at 395. The government may admit “victim impact evidence and prosecutorial
argument on that subject” because it “may legitimately conclude that evidence . . . is
relevant to the jury’s decision as to whether or not the death penalty should be imposed.”
Payne v. Tennessee, 501 U.S. 808, 827 (1991).
Council highlights witness testimony made after the curative instruction that one of
the victims “did a lot of charities to raise moneys for people in the community.” JA 4961.
Because “juries are presumed to follow their instructions,” Richardson v. Marsh, 481 U.S.
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200, 211 (1987), however, we must assume the jury understood it could “only consider the
impacts of the victims’ deaths on family, friends and coworkers” rather than the broader
community. JA 4949.
Council also cites the number of victim impact witnesses and the percentage of the
government’s sentencing case taken up by such witnesses; Council contrasts these figures
to those of other capital cases to conclude the government’s presentation was excessive.
But Council cites no authority suggesting the number or percentages here present an
independent constitutional problem. Indeed, this Court recently affirmed a death sentence
in a case involving “victim-impact testimony from twenty-three witnesses”—far more than
the number presented here. United States v. Roof, 10 F.4th 314, 366 (4th Cir. 2021).
Council asserts some of the “emotional stories and exhibits of distant memories did
not reflect the specific, current loss” the Supreme Court “contemplated” when it held the
Constitution permitted victim impact testimony in Payne v. Tennessee, 501 U.S. 808(1991). Council Br. 182. But Payne did not freeze this area of law in amber, and this Court
has since issued multiple decisions about the permissible scope of victim impact testimony,
including United States v. Barnette, 390 F.3d 775, 797–801 (4th Cir. 2004); United States
v. Fulks, 454 F.3d 410, 436 (4th Cir. 2006); United States v. Runyon, 707 F.3d 475, 499–
502 (4th Cir. 2013) and United States v. Roof, 10 F.4th 314, 376–78 (4th Cir. 2021). Having
examined the testimony here against the standards applied in those decisions, we see no
abuse of discretion in the district court’s handling of this sensitive issue, particularly given
the lack of objections by the defense.
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C.
Council next argues the district court failed to instruct the jury as required by
18 U.S.C. § 3593(f ). As relevant here, that provision states:
[T]he court, prior to the return of a finding under subsection (e), shall instruct
the jury that, in considering whether a sentence of death is justified, it shall
not consider the race, color, religious beliefs, national origin, or sex of the
defendant or of any victim and that the jury is not to recommend a sentence
of death unless it has concluded that it would recommend a sentence of death
for the crime in question no matter what the race, color, religious beliefs,
national origin, or sex of the defendant or of any victim may be.
Id.We review a “challenged instruction holistically to determine whether it adequately
informed the jury of the law, without misleading or confusing the jury.” United States v.
Simmons, 11 F.4th 239, 264 (4th Cir. 2021) (quotation marks omitted). “[W]e do not view
a single instruction in isolation; rather we consider whether taken as a whole and in the
context of the entire charge, the instructions accurately and fairly state the controlling law.”
United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (quotation marks omitted).
The district court instructed the jury as required by Section 3593(f ). 8 The court
mentioned the jury’s obligations under that provision in: (1) its oral instructions on the
opening day of the penalty phase; (2) its final oral instructions, when discussing the process
of weighing any aggravating and mitigating factors; (3) its final oral instructions, when
discussing a certification the jury would have to make on the special verdict form; (4) its
8
The government asserts Council did not preserve an objection to the district court’s
instructions (rather than an argument the court erred by not also giving his proposed
instruction). Because we conclude the district court committed no reversible error in any
event, we need not resolve that question.
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final written instructions, when discussing the certification; and (5) on the special verdict
form itself.
Council asserts Section 3593(f ) imposes two requirements: telling the jury it may
“not consider” race or any other prohibited characteristic and saying it may not recommend
a death sentence unless the jurors conclude they would do so “no matter what” the specific
characteristics “of the defendant or any victim may be.” 18 U.S.C. § 3593(f ). Even
assuming these requirements are as distinct as Council contends—but see United States v.
Lawrence, 735 F.3d 385, 403 (6th Cir. 2013)—the district court touched on both in its
initial oral instructions, its final written instructions, and on the special verdict form itself.
For that reason, the district court committed no abuse of discretion in concluding its
instructions “taken as a whole and in the context of the entire charge . . . accurately and
fairly state[d] the controlling law.” Passaro, 577 F.3d at 221.
Still, Council argues the district court erred in failing to give one of his proposed
instructions. That lengthy instruction would have quoted the statutory language,
characterized Congress’s reasons for enacting Section 3593(f ), and described and quoted
the certification the jurors would have to make on the special verdict form. It also would
have instructed the jurors to engage in a “race-switching” exercise, Council Br. 206,
directing the jurors—when considering “the evidence and testimony of various witnesses
and parties”—to “imagin[e] . . . that everyone’s backgrounds were reversed from what they
actually are.” JA 1672.
“We review the district court’s decision to . . . refuse to give a jury instruction for
abuse of discretion.” Passaro, 577 F.3d at 221. Such a refusal is “reversible error . . . only”
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if the proffered 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.We see no abuse of discretion here. Whether or not portions of Council’s proposed
instruction would be wise as a matter of policy, they are not rooted in the text of the statute.
As written, Section 3593(f) does not require the jury to mentally reverse the racial or other
characteristics of anyone, much less witnesses who are neither the victim nor the defendant.
Instead, the statute requires jurors to conclude (and certify) that they would have
recommended a death sentence “no matter what” the characteristics of the victim or the
defendant were. 18 U.S.C. § 3593(f). As we have already explained, that principle was
“substantially covered by the court’s charge to the jury.” Passaro, 577 F.3d at 221.
D.
We also conclude the district court did not abuse its discretion in rejecting Council’s
efforts to challenge the validity of his death sentence via a second—and untimely—motion
under Federal Rule of Criminal Procedure 33.
Council filed his first Rule 33 motion shortly after he was sentenced. The district
court denied that motion, and Council appealed to this Court.
More than a year and a half later—and while his appeal was still pending—Council
filed a second Rule 33 motion. The district court denied that motion on three grounds,
including that it was untimely. Reviewing that decision for abuse of discretion, see United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006), we affirm.
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Rule 33(b)(2) provides any motion “grounded on any reason other than newly
discovered evidence must be filed within 14 days after the verdict or finding of guilty.”
Council did not file his motion “within 14 days” after the jury recommended a death
sentence or the court imposed it. Nor was Council’s motion based on “newly discovered
evidence.” To the contrary, as the motion explained, it was based on “a new statute” enacted
by the South Carolina legislature. JA 6170. 9
Seeking to avoid this problem, Council asserts the district court abused its discretion
in rejecting his claim that he could show “excusable neglect” for the late filing. See Fed.
R. Crim. P. 45(b)(1)(B) (providing that, subject to one exception, a district court may
extend an already expired deadline at the request of a party who shows “good cause” and
that “the party failed to act because of excusable neglect”). But at least one of Council’s
current arguments—that the Federal Death Penalty Act makes an unconstitutional
delegation of legislative authority by incorporating state law execution practices—was
plainly available when Council filed his first Rule 33 motion. Nor did the district court
abuse its discretion in concluding Council had not established excusable neglect for failing
to bring his remaining claims sooner.
9
Even if Council’s motion had been based on “newly discovered evidence” under
Rule 33, the district court would have lacked the authority to grant the motion. True, the
outer time limit for filing that sort of motion is “3 years after the verdict or finding of
guilty” and Council satisfied that requirement. Fed. R. Crim. P. 33(b)(1). The problem is
that same provision declares that “[i]f an appeal is pending”—which one was by the time
Council filed the relevant Rule 33 motion—a district court “may not grant” such a motion
“until the appellate court remands the case.” Id.40
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Our holding does not leave Council without a mechanism for raising constitutional
challenges to his method of execution, should it proceed. As the government notes, this
Court has stated that “challenges to the execution of a federal sentence”—including those
“based on a perceived constitutional violation”—“are properly brought under 28 U.S.C.A.
§ 2241.” United States v. Little, 392 F.3d 671, 679 (4th Cir. 2004); accord In re Vial,
115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en banc) (“[A]ttacks on the execution of a
sentence are properly raised in a § 2241 petition.”). 10
* * *
Having scrutinized the record and considered Council’s challenges under the
applicable standards of review, we conclude the district court committed no reversible
error. The judgment of the district court is
AFFIRMED.
10
Council also contends he will be placed in solitary confinement for an indefinite
period while awaiting execution and that this violates the Eighth Amendment’s prohibition
on “cruel and unusual punishments.” But nothing in the district court’s judgment
establishes the conditions of Council’s confinement, and a challenge to the conditions of a
prisoner’s confinement “does not go to the validity of a conviction or sentence.” Nance v.
Ward, 142 S. Ct. 2214, 2222 (2022).
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