                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0151p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    Nos. 02-1386/1461/1570
          v.
                                                ,
                                                 >
                                                -
                      Defendant-Appellant. -
 MARVIN CHARLES GABRION, II,
                                               N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
              No. 99-00076—Robert Holmes Bell, District Judge.
                               Argued: June 6, 2012
                        Decided and Filed: May 28, 2013
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,
 GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE,
             WHITE, STRANCH, and DONALD, Circuit Judges.
                               _________________
                                   COUNSEL
ARGUED: Barry J. Fisher, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Albany, New York, for Appellant. Timothy P. VerHey, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Kevin
McNally, Margaret O’Donnell, McNALLY & O’DONNELL, Frankfort, Kentucky, Judy
Clarke, CLARKE & RICE, San Diego, California, for Appellant. Joseph C. Wyderko,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Donald A. Davis,
Jennifer L. McManus, Timohty P. VerHey, UNITED STATES ATTORNEY’S OFFICE,
Grand Rapids, Michigan, for Appellee.
         KETHLEDGE, J., delivered the opinion of the court, in which BATCHELDER,
C.J., and BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
and DONALD, JJ., joined. CLAY, J. (pp. 35–37), delivered a separate opinion
concurring in the judgment only, in which COLE, J., joined. MOORE, J. (pp. 38–65),
delivered a separate dissenting opinion, in which MARTIN, WHITE, and STRANCH,
JJ., joined.




                                         1
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 2


                                 _________________
                                     OPINION
                                 _________________

       KETHLEDGE, Circuit Judge. Marvin Gabrion was scheduled to be tried in
Michigan state court for a rape charge on June 5, 1997. But that trial never happened.
Two days before the trial was set to begin, Gabrion abducted Rachel Timmerman—the
19-year-old woman he allegedly raped—and took her to a remote location in the
Manistee National Forest, bound and gagged her and weighed her down with concrete
blocks, put her in an old metal boat, and then threw her overboard, alive, into a shallow,
weedy lake, where she drowned. Gabrion also abducted and killed Timmerman’s infant
daughter.

       Timmerman’s murder was a federal offense because it occurred in a National
Forest. See 18 U.S.C. § 1111(b). A federal jury later convicted Gabrion of murder and
recommended that he be sentenced to death.             The district court sentenced him
accordingly.    Gabrion now challenges his conviction and sentence on numerous
grounds. We reject all of his arguments, and affirm.

                                            I.

                                           A.

       On the morning of August 7, 1996, Rachel Timmerman arrived at her mother’s
trailer home in Newaygo County, Michigan, hysterical and bleeding from a laceration
on her nose. She said that a man named Marvin Gabrion had raped her the night before.
Timmerman was then 19 years old and had given birth to a baby girl, Shannon Verhage,
just six weeks earlier. Rachel told her mother that she was afraid to press charges
because Gabrion had said that, if she did, he would kill both her and her baby. But that
afternoon Rachel reported the rape to the Newaygo County Sheriff. Two months later,
the county prosecutor charged Gabrion with the rape. For the next three months,
however, the police were unable to find him.
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 3


       On January 20, 1997, the Sheriff’s deputies found and arrested Gabrion. They
gave him an arrest warrant that named three witnesses for the rape charge: Timmerman
herself; Wayne Davis, an associate of Gabrion’s who had been with him the night of the
rape; and Gabrion’s teenaged nephew, Mikey Gabrion. Marvin Gabrion was jailed after
his arrest, but was released after a friend (to whom Gabrion said he was jailed for DUI)
posted bond for him on February 3, 1997.

       Timmerman herself was in jail for a minor drug charge when Gabrion was
released, but another witness, Davis, was free for the time being. Within days of
Gabrion’s release, Gabrion made his way to Davis’s residence in White Cloud,
Michigan. Davis himself was set to report to jail on February 13 for a 90-day term
resulting from a DUI charge. His friend Darlene Lazo had agreed to drive Davis to jail
that morning. The afternoon before Davis was scheduled to report, Lazo encountered
Gabrion at Davis’s home, working on a car. When Lazo arrived the next morning to
give Davis a ride to jail, he was missing. Left behind, on a kitchen chair, was an army
jacket that Davis always wore. His personal effects in the house likewise seemed
untouched, except that his stereo equipment was missing. Davis was never seen alive
again. A few weeks after Davis’s disappearance, Gabrion tried to sell Davis’s stereo
equipment at a local consignment shop, with the serial numbers ground off.

       On May 5 Timmerman was released from jail.               Twice that month she
encountered Gabrion and called the Sheriff’s office in a panic afterwards, saying that she
thought he would kill her. Meanwhile, a young friend of Gabrion’s, John Weeks,
repeatedly called Timmerman to ask her on a date. Rachel did not know that Weeks was
calling at Gabrion’s direction. Finally, on June 3—two days before Gabrion’s rape trial
was set to begin—Rachel told her father that a boy had invited her to dinner that night,
and that she would be home in a couple of hours. She said she was bringing her baby
along because the boy had specifically asked her to. Rachel’s father never saw either of
them alive again.

       The day after Timmerman’s disappearance, several other people saw her with
Gabrion and another man in the vicinity of Oxford Lake, which lies partly in the
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 4


Manistee National Forest. In early June—almost certainly on June 4—Bonnie Robinson
was driving away from her farm in the vicinity of Oxford Lake. As she approached a
one-lane bridge, she encountered an old pickup truck driving fast the other way, towards
the lake. Inside the truck were two men with a large blond woman (a description
matching Rachel) sitting between them. The driver “seemed to be very angry about
something.” A metal boat was sticking out of the truck’s bed.

       Kathy Kirk similarly testified that she and her mother had parked at Oxford Lake,
near the mud ramp, when an old pickup truck with a boat sticking out the back pulled
up alongside them. Gabrion was driving and a young blond woman (whose photo Kirk
later saw on the news) was sitting between him and another man (who was almost
certainly Weeks). Twice the blond woman looked up at Kirk, and then looked down
again. Soon Kirk and her mother drove off.

       Finally, again on June 4, Pearl and Bob Hall were driving along a narrow two-
track road towards Oxford Lake. As they got near the lake, an old pickup truck with a
boat sticking out came fast the other way. This time Gabrion was driving alone, looking
“like he was really mad. He was just glaring.” Hall had to pull off into the bushes to
avoid a collision. As Gabrion drove past, “it sounded like there was stuff in the boat to
make it rattle.” When the Halls got down to the lake, they saw marks in the mud ramp
where someone had recently dragged out a boat.

       One evening later that same week, Gabrion and John Weeks approached several
campers at a nearby campground. Gabrion introduced himself as Lance (an alias he
frequently used) and asked whether he could store his boat at the other campers’ site,
explaining that his own site was too crowded to keep it there. They agreed. One of the
campers, Dan Basset, said that Gabrion was “skittish, nervous, didn’t talk much.” Basset
also said that Gabrion “always wore gloves[,]” even though it was warm out. Basset
later came upon Gabrion’s campsite while looking for firewood. Gabrion was standing
by the fire, with gloves on. The campsite was nowhere near the area where Gabrion had
said it was, and had plenty of room to store a boat.
Nos. 02-1386/1461/1570     United States v. Gabrion                              Page 5


       Around 3:30 a.m. on June 6—two days after Gabrion was seen with Timmerman
near Oxford Lake—one of Gabrion’s neighbors in town, Trevor Zylstra, awoke to the
sound of “a very loud bang[.]” Zylstra looked out the window and saw Gabrion
dragging a metal boat on his gravel driveway. Once Gabrion got the boat to the side of
the garage, Zylstra saw him remove two life vests, three concrete blocks, and a length
of chain. Then Gabrion pulled the boat into the garage and ground off the boat’s
registration numbers.

       Almost a month later—on July 5, 1997—Douglas Sortor and his son-in-law
Nathan prepared to launch a small fishing boat at the same ramp that Gabrion had
visited. They saw an object floating about 100 yards offshore. They looked at the object
through binoculars and thought it appeared to be a human torso. They decided to
investigate. The weeds between the ramp and the object were too thick to row through,
so Sortor rowed to the South and then circled back towards the object. As they came
close, they saw feet protruding from the water. Sortor said they hoped it was “a dummy”
of some kind. Then the odor hit them and they realized the object was a human body.
It was Rachel’s. The body was face-up with a concrete block attached to the front, near
the waist. The body was fully clothed. Rachel’s left leg and waist were tightly bound
with a shiny metal chain and two padlocks. A second concrete block was also attached
to the body through the chain. Rachel’s wrists were handcuffed tightly behind her back.
Her eyes and mouth were bound with duct tape; her nose had been left uncovered. The
water in that area was about 3 feet deep, with 82 feet of soft muck beneath. About one-
third of the body was covered in muck. The body had surfaced as a result of bacterial
gassing.

       Gabrion’s whereabouts at that time were unknown, but the police promptly began
investigating him as a suspect. They executed a search warrant at his residence and
found two keys that matched the padlocks on Rachel’s body. They also found concrete
blocks that were stained with the same tar and paint materials as the blocks attached to
Rachel’s body. Gabrion’s nephew, Mikey, led Sheriff’s deputies to a campsite that his
uncle frequently used. The site was north of Oxford Lake, down a two-track in a dense,
Nos. 02-1386/1461/1570       United States v. Gabrion                               Page 6


remote area. Gabrion’s tent was still pitched there. Scattered about they found bolt
cutters, another length of shiny chain, duct tape, a woman’s hair clip, and silicone
nipples for a baby bottle.

       Meanwhile, the FBI in upstate New York were already investigating Gabrion in
connection with the theft of social-security benefits belonging to a mentally disabled
man from Grand Rapids, Michigan, named Robert Allen. Allen had disappeared in 1995
and was never seen again. Shortly after his disappearance a man who identified himself
as Allen—but whom a post-office employee later identified as Gabrion—opened a post
office box in Sherman, New York and directed that Allen’s benefit check be sent there
each month. Gabrion also signed over one of Allen’s checks as payment for rent in early
1996. In October 1997, the Detroit FBI got word that Gabrion was headed to Sherman
to collect Allen’s check for that month. An FBI SWAT team staked out the Sherman
post office on October 14. When Gabrion arrived, the agents arrested him. He was
carrying a Virginia driver’s license in the name of Ronald Lee Strevels at the time.

       The body of Timmerman’s 11-month old daughter, Shannon Verhage, has never
been found. But it is virtually undisputed that Gabrion killed her. While awaiting trial
for Rachel’s murder, Gabrion gave another prisoner a map of Oxford Lake, on which he
had written, “body of 3, 1 found.” While incarcerated, Gabrion also told two inmates
that he “killed the baby because there was nowhere else to put it.”

                                            B.

       The government indicted Gabrion for violating 18 U.S.C. § 1111, which prohibits
murder “[w]ithin the special maritime and territorial jurisdiction of the United States[.]”
The government also notified Gabrion that it would seek the death penalty.

       Gabrion went to trial on February 25, 2002. On March 5, the jury found him
guilty of first-degree murder. The trial then entered the penalty phase. (That is the
phase during which the government and defendant submit evidence as to circumstances
of the offense or aspects of the defendant’s background that “aggravate” for or
“mitigate” against the death penalty.)
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 7


       A total of 58 witnesses testified in support of the government’s allegations during
the penalty phase of the trial. Some of the testimony concerned the depraved manner of
the murder itself—including the terror that Timmerman must have felt as Gabrion rowed
her 100 yards out onto the water, the boat rocking as she lay inside it, blinded, bound,
gagged, and weighed down with concrete blocks. Other testimony concerned the
likelihood that Gabrion killed Timmerman’s baby, Shannon Verhage. Still other
testimony concerned Gabrion’s character and future dangerousness. Some of that
testimony pointed to Gabrion’s likely role in the disappearance (and presumably murder)
of three other people. One was Wayne Davis, the only witness to Timmerman’s rape
(other than Gabrion’s nephew and Timmerman herself), who was last seen with Gabrion
before Davis disappeared, and whose stereo equipment Gabrion tried to sell several
weeks later. Another was John Weeks, who was likely the only witness to Timmerman’s
murder, and who himself disappeared about 18 days later—never to be seen again—after
telling his girlfriend that he was going on a “dope run” to Texas with Gabrion. (Gabrion
later told Weeks’s girlfriend that he had dropped off Weeks with some friends in
Arizona.) The third was Robert Allen, the mentally disabled man who crossed Gabrion’s
path in Grand Rapids and then vanished in 1995, just before Gabrion assumed his
identity and began stealing his disability checks.

       Numerous other witnesses testified to Gabrion’s propensity for violence. Two
witnesses described how each of their homes had been set afire shortly after a
disagreement with Gabrion. Another witness described how Gabrion began shooting
a bolt-action rifle towards his house after he told Gabrion to leave a party there. (The
investigating police officer found Gabrion passed out in a trailer with the rifle hanging
above him on the wall and spent casings on the hood of his pickup truck outside.)
Another witness described how Gabrion trained a rifle on her and her two-year old child
as she walked to her car one day, and then climbed into his car and followed them for
miles. Another woman testified as to how Gabrion sexually assaulted her in her home.
Another witness testified that Gabrion beat and kicked him, punched his wife in the
face, and then punched his teenaged son, after the witness interrupted a card game to
retrieve heart medicine for the witness’s uncle. Another witness testified that Gabrion
Nos. 02-1386/1461/1570       United States v. Gabrion                                 Page 8


said he could “snipe” everyone in the neighborhood from his second-story window.
One night this same witness heard a gunshot, looked out the window and saw a red
muzzle flash from Gabrion’s window just before the crack of a second shot. This
witness found a bullet embedded in his home afterwards.

        Other testimony showed that Gabrion had been a busy inmate while awaiting
trial. He carved a fake gun from soap, painted it black, and planned to use it in an
escape attempt. In separate phone calls, he impersonated a state senator and court
officials in an attempt to transfer to another jail. He obtained hypodermic needles, razor
blades, and a claw made from a metal shower ring, among other contraband. Gabrion
also placed dozens of calls to Shannon Verhage’s paternal grandmother, accusing her
of killing Rachel and Shannon. And Gabrion wrote numerous letters to Rachel’s father,
saying he knew where the baby was and asking for a photo of her. In desperation,
apparently, Rachel’s father eventually sent him one, which Gabrion then used for sexual
gratification.

        After the prosecution finished with its proofs, Gabrion offered mitigation
evidence. Dr. Douglas Sharre asserted that Gabrion had been in “multiple motor
vehicle accidents” that allegedly damaged Gabrion’s brain. Dr. Newton Jackson
testified that Gabrion had been subject to “negative influences” as a child, including
violence and alcohol abuse by his parents. Dr. Jackson also testified that Gabrion
displayed “some histrionic personality features where there is exaggeration and the
desire to be the center of attention.” (Gabrion testified three times at trial.) Dr. Jackson
said “[t]here’s also antisocial features where he has a history of arrests and heedless
disregard for his own safety and that of others, a lack of empathy for others.” Dr.
Jackson said that Gabrion also displayed narcissistic features, and that his relationships
with other people largely took “the form of using other people to satisfy his own
desires.” But Dr. Jackson said that “I don’t view Mr. Gabrion as mentally ill” and that
Gabrion was engaged in “some malingering[,]” i.e., faking his symptoms.

        The government presented evidence in rebuttal. It first called the driver in one
of Gabrion’s alleged car accidents, who testified that Gabrion had faked his injuries.
Nos. 02-1386/1461/1570     United States v. Gabrion                           Page 9


A neurologist testified that he had reviewed Gabrion’s medical records and found no
evidence of any brain injury. A clinical neuropsychologist, Dr. Thomas Ryan, offered
the same conclusion. Dr. Ryan also tested Gabrion and believed that Gabrion was
faking his impairments. He explained the results of one test as follows:

       A:      [O]n one particular malingering test, which is what we
               call a forced choice measure, meaning that the person is
               forced to choose between one of two items, Mr. Gabrion
               was shown a series of 50 common objects. As soon as
               that was through, I then showed him another plate of
               cards, one of which was the item he had just seen, one
               was one he had never seen. So basically he was forced
               to choose which one he had just seen. Now, blindly
               guessing would give you a score of approximately 25
               out of 50.
                                        . . .
       A:      And there were three trials with the same exact figures
               on each trial. That is called the test of memory
               malingering. On trial one he got a score of 32, and the
               authors of that test suggest that anything below a score
               of 45 indicates malingering, particularly on trial two,
               because this person who developed the test developed it
               on individuals with very severe injuries, people who
               have had aneurysms burst, people who’ve had severe
               brain injuries, people who have been in coma for three
               months. So brain-injured individuals generally get a
               score of about 44 or 45.
       Q:      Are you saying you gave this test three times?
       A:      No–yes, I administered–there’s three administrations.
       Q:      What did he get for each test?
       A:      On trial one he got a score of 32.
       Q:      What about trial two?
       A:      On trial two he got a score of 26, so he did worse.
       Q:      How about trial three?
       A:      Now, again, these are the same stimulus items, so on
               trial two he got worse. He performed more poorly. And
               then on the retention trial he got a score of 21. So this
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 10


               indicates to me that he knew the right answer, but was
               intentionally giving me the wrong answer.
       Q:      Is that also true–I’m not going to go into the next test,
               but is that also true of the other tests that you gave him?
       A:      Yes.

Dr. Gregory Saathoff, a clinical psychologist, likewise testified that Gabrion was
malingering. He also said that Gabrion displayed anger towards women.

       The jury returned its penalty verdict on March 16, 2002.              They found
unanimously that the government had proved two statutory aggravating factors beyond
a reasonable doubt: first, that Gabrion committed the murder in an especially heinous,
cruel, and depraved manner; and second, that he committed the murder after substantial
planning and premeditation. In addition, the jury unanimously found four nonstatutory
aggravating factors beyond a reasonable doubt: that Gabrion presented a future danger,
that Timmerman’s death caused a loss to her family and society, that Gabrion caused
the death or disappearance of Shannon Verhage, and that Gabrion obstructed justice by
murdering Rachel. One or more jurors also found the following mitigating factors by
a preponderance of the evidence: that Gabrion had an impoverished and abusive
childhood, that he had a lack of parental guidance, that his upbringing contributed to
his criminal conduct, that he did not have a record of disciplinary infractions in school,
that he engaged in substance abuse, that he had personality disorders, and that the loss
of Gabrion’s life would be significant to his family. The jury also found that the
aggravating factors sufficiently outweighed the mitigating ones to justify a sentence of
death. The district court sentenced Gabrion accordingly. See generally 18 U.S.C.
§ 3593(a).

       Gabrion appealed. Among other challenges, Gabrion argued (and here we mean
that literally—for Gabrion came up with the argument himself) that the federal
government lacked jurisdiction over Timmerman’s murder. A divided panel of this
court rejected this argument in a separate opinion. See 517 F.3d 839. Thereafter, the
panel addressed Gabrion’s remaining claims and unanimously rejected 20 of them.
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 11


Over a dissent, however, two members of the panel vacated Gabrion’s death sentence
on two grounds. See 648 F.3d 307. We granted the government’s petition to vacate the
latter decision and rehear the case en banc.

                                           II.

       We begin with the three issues that were the focus of briefing and argument
during our rehearing en banc.

                                           A.

       Gabrion argues that the murder’s location in Michigan—a State that lacks the
death penalty—should have counted as a mitigating factor as that term is used under
both the Eighth Amendment and the Federal Death Penalty Act. The district court
disagreed, and excluded from the penalty phase of Gabrion’s trial any evidence or
argument to the effect that the murder’s location in Michigan was somehow mitigating.

                                           1.

       We consider the Eighth Amendment question first. Gabrion’s briefs are not
clear as to why the murder’s location in a non-death penalty state is mitigating, other
than to say that it would be “arbitrary” to execute him based upon the “geographic
happenstance” that he murdered Rachel Timmerman in a National Forest. Gabrion Br.
at 119–20. But it is clear that the murder’s location in Michigan is unlike any fact that
the Supreme Court has ever recognized as mitigating. It is true, of course, that “the
sentencer may not be precluded from considering, and may not refuse to consider, any
constitutionally relevant mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269,
276 (1998). But the question is what counts as “constitutionally relevant mitigating
evidence.” Id.

       A capital defendant’s “punishment must be tailored to his personal
responsibility and moral guilt.” Enmund v. Florida, 458 U.S. 782, 801 (1982).
Accordingly, the two seminal cases that require the admission of mitigation evidence—
Lockett v. Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 112
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 12


(1982)—are based upon “the principle that punishment should be directly related to the
personal culpability of the criminal defendant.” Penry v. Lynaugh, 492 U.S. 302, 319
(1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).

       It comes as no surprise, therefore, that most of the evidence the Supreme Court
has deemed mitigating was evidence relevant to the defendant’s personal culpability for
his crime. That evidence includes, for example, evidence that the defendant was
intoxicated at the time of his crime, Parker v. Dugger, 498 U.S. 308, 314 (1991);
evidence that the defendant drove the getaway vehicle but did not participate in the
murders themselves, Enmund, 458 U.S. at 786, 801; evidence of the defendant’s
“youth” and abusive “family history[,]” Eddings, 455 U.S. at 115; evidence of the
defendant’s low IQ, Smith v. Texas, 543 U.S. 37, 44 (2004); evidence that the
defendant suffered from depression, Brewer v. Quarterman, 550 U.S. 286, 289 (2007);
evidence that the defendant suffered from borderline personality disorder, Bobby v. Van
Hook, 558 U.S. 4, 10–11 (2009); evidence that the defendant was “shuttled from foster
home to foster home[,]” Wiggins v. Smith, 539 U.S. 510, 525 (2003); and evidence that
the defendant was sexually abused as a child, id. at 528. The admission of much of this
evidence reflects “the belief, long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged background, or to emotional and
mental problems, may be less culpable than defendants who have no such excuse.’”
Penry, 492 U.S. at 319 (quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring)). Thus, to the extent relevant to the defendant’s culpability,
mitigation evidence includes evidence about the defendant’s background and the
circumstances of his crime. See Penry, 492 U.S. at 327–28.

       In addition to evidence concerning the defendant’s culpability, evidence of the
defendant’s character can be mitigating. That evidence includes evidence that the
defendant would be a well-behaved prisoner if not executed, Skipper v. South Carolina,
476 U.S. 1, 4–5 (1986); evidence of the defendant’s military service, Porter v.
McCollum, 558 U.S. 30, 39–40 (2009); and evidence of the defendant’s religious
conversion while in prison, Wong v. Belmontes, 558 U.S. 15, 20–21 (2009). Viewed
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 13


as a whole, therefore, mitigation evidence encompasses both culpability and character,
all to the extent relevant to the defendant’s “personal responsibility and moral guilt.”
Enmund, 458 U.S. at 801. In summary: mitigation evidence is evidence relevant to “a
reasoned moral response to the defendant’s background, character, and crime.” Penry,
492 U.S. at 319 (emphasis omitted); see also United States v. Johnson, 223 F.3d 665,
675 (7th Cir. 2000) (“A mitigating factor is a factor arguing against sentencing this
defendant to death; it is not an argument against the death penalty in general”)
(emphasis in original).

       That Michigan lacks a death penalty has nothing to do with these things. It has
nothing to do with Gabrion’s background or character. It has nothing to do with the
reasons why he chose to kill Rachel Timmerman. It has nothing to do with the utter
depravity of the manner in which he killed her. And above all it has nothing to do with
his culpability for that offense or with any other consideration the Supreme Court has
ever flagged as mitigating. Gabrion does not even argue the contrary.

       Gabrion does assert that “[t]he simple fact that 227 feet was the difference
between a life sentence and a potential death sentence may have been viewed as
mitigating by one or more jurors.” Gabrion Br. at 120. But mitigation under the Eighth
Amendment is not a matter of geographic coordinates. That Gabrion would not have
been subject to the death penalty if only he had rowed his boat 228 feet to the north,
beyond the boundary of the Manistee National Forest, before throwing Rachel
Timmerman overboard, is not mitigating—for the same reasons that Michigan’s lack
of a death penalty is not mitigating. (See the preceding paragraph.) Nor does the
boundary’s proximity become mitigating based on Gabrion’s speculation about what
a single juror might have thought about it. Mitigation evidence, as shown above, is not
an empty concept to be filled by whatever a lawyer or court thinks might persuade a
single juror in a particular case. It is true that the Supreme Court has said that
mitigation evidence includes evidence that “the sentencer could reasonably find
. . . warrants a sentence less than death.” Tennard v. Dretke, 542 U.S. 274, 285 (2004)
(quotation marks omitted). But the key word there is “reasonably”; and read in the
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 14


context of the rest of the Supreme Court’s mitigation-evidence caselaw, and Penry in
particular, that passage simply refers to evidence relevant to “a reasoned moral response
to the defendant’s background, character, and crime.” Penry, 492 U.S. at 319.
Otherwise, for example, the Eighth Amendment would compel admission of evidence
regarding the positions of the planets and moons at the time of the defendant’s
offense—so long as he can show that at least one juror is a firm believer in astrology.
To read the Tennard passage (and others like it) in the manner that Gabrion suggests
would be to transform mitigation from a moral concept to a predictive one, and make
a caricature of the law. We decline the suggestion.

       The dissent is mistaken, therefore, when it suggests that mitigation, for purposes
of the Eighth Amendment, is not a moral concept. Of course it is, as the plain terms of
the Supreme Court’s precedents make clear. See, e.g., Penry, 492 U.S. at 319; Enmund,
458 U.S. at 801. But that does not mean (as the dissent seems to fear) that judges must
act as moral filters in determining whether evidence is mitigating for purposes of the
Eighth Amendment. The Supreme Court has spared us that task, by itself identifying
certain categories of evidence—broadly stated, culpability and character—that are
morally significant and thus mitigating under the Eighth Amendment. Our task,
therefore, is not ourselves to determine the moral significance of a particular fact, but
rather to determine whether the fact falls within one of the morally significant bins that
the Supreme Court has already identified. The geographic coordinates of Rachel
Timmerman’s murder fail that test.

       The dissent’s response is that the location of Timmerman’s murder is a
“circumstance of the offense.” That is true enough—so was the moonphase that
day—but the dissent is mistaken to read those words in complete isolation from the
Supreme Court’s statements as to why circumstances of the offense can be mitigating.
On this point the Court has been reasonably clear: “it is precisely because the
punishment should be directly related to the personal culpability of the defendant that
the jury must be allowed to consider and give effect to mitigating evidence relevant to
a defendant’s character or record or the circumstances of the offense.” Penry, 492 U.S.
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 15


at 327–28 (emphasis added). And even in Tennard—upon which the dissent mistakenly
relies here—the Court said that mitigation evidence does not include evidence of “the
circumstances of the crime [that] is unlikely to have any tendency to mitigate the
defendant’s culpability.” 542 U.S. at 286 (emphasis added).

       The dissent’s reliance on Tennard is misplaced for another reason. There,
Tennard sought to admit evidence of his low IQ, which is a type of evidence that the
Supreme Court has identified as mitigating. See Smith v. Texas, 543 U.S. 37, 44 (2004).
The definition of mitigating, therefore, was not the issue in Tennard. The issue, rather,
was the definition of relevance: the Fifth Circuit had upheld the exclusion of Tennard’s
evidence on grounds that it did not have a strong tendency (as opposed to any tendency,
which is the usual relevance standard) to mitigate Tennard’s culpability for his crime.
The Supreme Court reversed, stating that the Fifth Circuit’s test “is inconsistent with
the standard we have adopted for relevance in the capital sentencing context.” 542 U.S.
at 287. So the Court reiterated that standard: “the ‘meaning of relevance is no different
in the context of mitigating evidence introduced in a capital sentencing proceeding’
than in any other context[.]” Id. at 284 (quoting McKoy v. North Carolina, 494 U.S.
433, 440–41 (1990)). That means the Eighth Amendment requires admission of
evidence with “any tendency,” not some stronger tendency, “to mitigate the defendant’s
culpability.” 494 U.S. at 286. And here—unlike Tennard’s low IQ—Gabrion’s
decision to throw Rachel Timmerman overboard where he did, rather than 228 feet to
the north, had no tendency to mitigate his culpability for that crime.

       That Michigan lacks a death penalty is irrelevant to a reasoned moral response
to Gabrion’s background, character, and crime. Evidence concerning that fact—or any
corollary ones—is not mitigation evidence under the Eighth Amendment. Accord
United States v. Higgs, 353 F.3d 281, 328 (4th Cir. 2003) (federal defendant’s
ineligibility for death penalty under Maryland law was not mitigating).
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 16


                                           2.

       The same conclusion holds under the Federal Death Penalty Act. The Act lists
seven types of mitigating factors, plus a catch-all, that the jury “shall consider” in
determining whether to recommend a death sentence. See 18 U.S.C. § 3592(a). Five
of the factors measure the defendant’s culpability, to wit: “[i]mpaired capacity[,]”
§ 3592(a)(1); “unusual and substantial duress,” § 3592(a)(2); “the defendant’s
participation was relatively minor,” § 3592(a)(3); “[t]he defendant committed the
offense under severe mental or emotional disturbance[,]” § 3592(a)(6); and “[t]he
victim consented to the criminal conduct that resulted in the victim’s death[,]”
§ 3592(a)(7). Another factor asks whether “[a]nother defendant or defendants, equally
culpable in the crime, will not be punished by death.” Id. § 3592(a)(4). This factor
does not measure the defendant’s culpability itself, but instead considers—as a moral
data point—whether that same level of culpability, for another participant in the same
criminal event, was thought to warrant a sentence of death. Hence this factor likewise
addresses whether the defendant’s culpability warrants death. Another factor concerns
the defendant’s background: “The defendant did not have a significant prior history of
other criminal conduct.” Id. § 3592(a)(5). The remaining factor is the catch-all: rather
than describe a specific type of mitigation evidence, as the other factors do, this factor
simply tracks the Supreme Court’s definition of mitigation evidence.              See id.
§ 3592(a)(8) (requiring consideration of “[o]ther factors in the defendant’s background,
record, or character or any other circumstance of the offense that mitigate against
imposition of the death sentence”).

       That Michigan lacks a death penalty does not fall within any of these statutory
mitigation factors. See Johnson, 223 F.3d at 675 (§ 3592(a) includes “only factors
specific to the defendant”). Gabrion again does not even dispute the point. But he does
contend that the statute’s enumeration of mitigating factors is not exclusive. See
§ 3592(a) (stating that the term “mitigating factors . . . includ[es]” the enumerated
factors). That is true enough; the statute does not purport to catalogue every
conceivable circumstance that might diminish a defendant’s culpability or otherwise
Nos. 02-1386/1461/1570        United States v. Gabrion                              Page 17


mitigate against a sentence of death. But neither do we have any reason to think that
the term “mitigating factors,” as used in the statute, encompasses facts having nothing
to do with “a reasoned moral response to the defendant’s background, character, and
crime.” Penry, 492 U.S. at 319 (emphasis omitted). Every indication in the statute is
to the contrary: all of the examples of mitigating evidence listed in § 3592(a) concern
the defendant’s background, culpability, or crime. The same is true for all 16 examples
of aggravating factors set forth in § 3592(c). That Michigan lacks a death penalty is
different in kind from any factor recognized as relevant to sentencing under § 3592(a)
or (c).

          Whatever the precise contours of the term “mitigating factor” as used in
§ 3592(a), the murder’s location in Michigan falls beyond them. That one defendant
commits a murder on federal land in Michigan is not a mitigating factor—any more
than another defendant’s commission of a murder on federal land in Ohio (a death-
penalty state) is an aggravating one.             Gabrion’s statutory argument, like his
constitutional one, is meritless.

                                             3.

          Gabrion also makes what is known as a “residual doubt” argument. An element
of Gabrion’s offense in this case was that he murdered Rachel Timmerman within a
National Forest. See 18 U.S.C. § 1111(b). Whether Gabrion killed Timmerman inside
the Forest (as opposed to killing her outside the Forest and then moving her body
inside) was an issue extensively litigated during the guilt phase of Gabrion’s trial. The
jury eventually found beyond a reasonable doubt that Gabrion killed Timmerman inside
the Forest. Gabrion now says that, under the Eighth Amendment and the Federal Death
Penalty Act, he was entitled to argue to the jury during the penalty phase of his trial that
they should consider—as a putative mitigating factor—any “residual doubt” about a
fact they had already found beyond a reasonable doubt, i.e., that he killed Timmerman
inside the Forest.

          A plurality of the Supreme Court has said that it is “quite doubtful” that there
exists any constitutional right to argue “residual doubt” as a mitigating factor. Oregon
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 18


v. Guzek, 546 U.S. 517, 525 (2006) (internal quotation marks omitted). Two other
justices have rejected the right’s existence altogether. See id. at 528–30 (Scalia, J.,
concurring). We are likewise doubtful that a (by-definition) unreasonable doubt
regarding an issue litigated during the guilt phase of the trial can be part of “a reasoned
moral response to the defendant’s background, character, and crime.” Penry, 492 U.S.
at 319 (emphasis in original).

        But we need not decide that issue here. Under the Federal Death Penalty Act,
“[t]he court of appeals shall not reverse or vacate a sentence of death on account of any
error which can be harmless . . . where the Government establishes beyond a reasonable
doubt that the error was harmless.” 18 U.S.C. § 3595(c)(2)(C). We can make such a
determination here, because—unlike in Davis v. Coyle, 475 F.3d 761, 774–75 (6th Cir.
2007)—the record contains evidence concerning the factor (i.e., the murder’s location)
that Gabrion says was improperly excluded from the sentencing phase of his trial.

        On this record, the exclusion of Gabrion’s residual-doubt argument was so
palpably harmless as to render an opinion on the merits of the exclusion nearly
advisory. The government’s case for aggravation was overwhelming: Gabrion killed
Timmerman in an undisputedly horrific manner, killed her infant daughter, likely killed
three other people who either witnessed his crimes or whose death was otherwise useful
to him, and terrorized countless people who crossed his path. And unlike most residual-
doubt cases—where the doubt concerns whether the defendant actually committed the
murder—here the supposed doubt concerns only a technical jurisdictional issue that,
though significant legally, is much less so morally. The exclusion of Gabrion’s
residual-doubt argument was harmless beyond a reasonable doubt.

                                            B.

        Gabrion next claims that the district court was biased in favor of pro-death
penalty jurors during the process of selecting his jury (i.e., voir dire). During that
process, the court interviewed 101 potential jurors (i.e., venirepersons).          Those
interviews generally followed the same template: the court first spoke to the potential
juror, explaining that Gabrion was presumed innocent, that the government bore the
Nos. 02-1386/1461/1570       United States v. Gabrion                               Page 19


burden of proving Gabrion’s guilt, and that, if the jury found that the government had
not carried its burden, the case was over. Then the court would explain to the potential
juror that, if the jury found Gabrion guilty beyond a reasonable doubt, the case would
proceed to the sentencing phase, which for practical purposes would be like a new trial.
That Gabrion would have been found guilty of premeditated murder was not a sufficient
basis for the jury to recommend a death sentence. Instead, the court would explain, the
government bore the burden of proving beyond a reasonable doubt any aggravating
factors that the government thought favored a death sentence. The court would further
explain that Gabrion was entitled to prove, merely by a preponderance of the evidence,
any mitigating factors he thought applicable. The jurors would then weigh the
aggravating factors against the mitigating ones, and could recommend death only if they
found unanimously that the aggravators outweighed the mitigators. At that point in the
voir dire, the court would typically ask the venireperson whether she could follow those
instructions. Then the prosecution and defense lawyers would each have a turn
questioning the potential juror. The court frequently asked its own follow-up questions
after the lawyers were done. Once all the questioning was done, the court might excuse
the juror on its own initiative, or either side could move to excuse the juror for cause.
If a lawyer so moved, the court would hear argument from each side and then sustain
or overrule the objection to the juror, explaining the reason for its decision as it did so.

        In total, the court excused 25 potential jurors on its own initiative, mostly for
reasons of personal hardship. Neither party objected to any of those exclusions.
Gabrion challenged a total of 16 jurors for cause, of whom the court excused 11. The
government challenged a total of 14 jurors for cause, of whom the court again excused
11. Eventually the venire pool was narrowed to 56 potential jurors. Each side was then
permitted to strike 20 potential jurors peremptorily. Gabrion used all 20 of his strikes,
removing the five venirepersons he had unsuccessfully challenged for cause, plus
15 other jurors. The government struck 18 potential jurors, including the ones it had
unsuccessfully challenged for cause. Neither party objected to any of the 12 jurors who
actually sat on Gabrion’s jury.
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 20


       But Gabrion says the process was unfair nonetheless. Specifically, he claims
that the district court improperly excluded four generally anti-death penalty
venirepersons (Abrahams, Donahey, Hemmeke, and Groves) whom the government
challenged for cause. Gabrion also claims that the court’s jury-selection process was
generally “lopsided” in favor of jurors who supported the death penalty. We consider
these claims in turn.

                                            1.

       “It is well settled that the Sixth and Fourteenth Amendments guarantee a
defendant on trial for his life the right to an impartial jury.” Ross v. Oklahoma,
487 U.S. 81, 85 (1988). Gabrion cannot plausibly argue that this right was violated
here, since he did not object to a single one of the jurors who sat in his case. But
Gabrion does say that a related right was violated, namely, his right to an impartial jury
“drawn from a venire that has not been tilted in favor of capital punishment by selective
prosecutorial challenges for cause.” Uttecht v. Brown, 551 U.S. 1, 9 (2007). Gabrion
says his venire was tilted this way because of the district court’s exclusion of the four
venirepersons recited above.

       A capital defendant’s right to an impartial jury is “balance[d]” against the
government’s “strong interest in having jurors who are able to apply capital punishment
within the framework [the] law prescribes.” Id. The Supreme Court strikes that
balance with the following standard: The court may exclude a juror for cause based
upon his views on capital punishment if “the juror’s views[,]” either in favor of the
death penalty or against, “would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt,
469 U.S. 412, 424 (1985) (internal quotation marks omitted).

       We review the district court’s application of that standard with considerable
deference. “Deference to the trial court is appropriate because it is in a position to
assess the demeanor of the venire, and of the individuals who compose it, a factor of
critical importance in assessing the attitude and qualifications of potential jurors.”
Uttecht, 551 U.S. at 9. (In contrast, the transcript we review captures only the dire part
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 21


of voir dire.) In many instances, the court’s decision whether to exclude a juror also
depends on its assessment of the juror’s credibility, which lies “peculiarly within a trial
judge’s province.” Witt, 469 U.S. at 428. We are also mindful of “the expertise
developed by trial judges” with respect to the jury-selection process in general. United
States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005) (internal quotation marks omitted).
Accordingly, in reviewing the district court’s decision whether to exclude a particular
juror, “the question is not whether [we] might disagree with the trial court’s findings,
but whether those findings are fairly supported by the record.” Witt, 469 U.S. at 434;
see also Bowling v. Parker, 344 F.3d 487, 519 (6th Cir. 2003) (same).

        We begin with the exclusion of venireman Abrahams. After the district court
explained to him the weighing process involved in the sentencing phase of the trial, and
asked whether he could follow “the instructions of this Court” in that process,
Abrahams replied that “I’m more unsure of if [sic] I could outweigh the sentence of life
imprisonment over death or vice versa.” The prosecutor then asked Abrahams whether
his “moral values” would “interefere with your determination of what an appropriate
sentence would be[.]” Abrahams replied that “I believe that it’s a possibility,” adding
that “it’s just on my mind and it could be something that sidetracks my judgment.” In
response to questioning by Gabrion’s counsel, however, Abrahams said, “[a]t this point,
yes, I do believe that I could” consider whether a death sentence would be appropriate.

        The court explored the apparent contradiction between these answers, saying,
“I’m sorry, I heard two different things. I want to see if I can get this straight.” The
court then asked Abrahams a leading question in favor of finding him qualified:

        Q:      And could you then impose either sentence if you felt
                the government had prevailed beyond a reasonable doubt
                with aggravating circumstances?

But Abraham’s answer cut in favor of exclusion:

        A:      It’s – I’m not sure. That’s what I’m trying to express,
                that I don’t know for sure that I could go through the
                whole trial and, for instance, them prove him guilty and
                then go through the second part of the trial for
Nos. 02-1386/1461/1570       United States v. Gabrion                              Page 22


                sentencing, that I could say life imprisonment or death.
                I honestly don’t know. That’s the point that I was trying
                to get across. Very unsure of what I could say yes or no
                to, either way.

        The court then excused Abrahams for cause, reasoning:

                [N]ormally I would say if he says I’ll consider both of
                them, that’s normally all right. But if it’s preceded with
                I don’t know if I could do it and then I ask him, Could
                you, and he says, I don’t know, I think it’s grounds for
                excusal. It’s a close question, but I think it’s grounds for
                excusal because of his hesitancy and the honesty with
                which he’s approached it.

        Thus, the court itself sought to rehabilitate Abrahams after he gave conflicting
answers regarding his ability to follow the court’s instructions. But Abrahams resisted
the rehabilitation. The court was within its discretion to exclude him.

        Venireman Donahey likewise resisted efforts at his rehabilitation. Donahey
stated on his jury questionnaire that “I think the death penalty is wrong[,]” but then told
the court that he “would follow what the law would tell me to do on that.” In response
to an open-ended question by the prosecutor, however, Donahey said: “And to take life
because they took someone else’s life, you know, somewhere down inside me, it just
doesn’t seem right[.]” He added, in response to a leading question from the prosecutor,
that his views about the death penalty “might” interfere with his “ability to make a
judgment as to sentencing[.]” Gabrion’s counsel then sought to rehabilitate Donahey
with a long explanation of the sentencing process, after which came the following
exchange:

        Q:      Now, given this, would you be able to consider all of
                these factors in making a determination of sentence,
                aggravating factors, mitigating factors, bring your own
                values, and consider the imposition of one of these two
                sentences?
        A:      I believe it would be very difficult. I would hope that I
                could, you know. But until I’m actually in that position,
                it’s very difficult to say.
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 23


       Q:      Well, we understand it’s difficult. We understand it’s –
       A:      Well, you want a yes or no question to something –
       Q:      No, no. Can you consider it is the question.
       A:      Yes, I could consider it.
       Q:      I have no further questions at the moment.

       The district court excused Donahey for cause, explaining:

       Q:      Well, he said he didn’t know [whether he could consider
               the death penalty], he didn’t know to one of the
               questions he asked, and I think he should be excused.
               Number one, he indicates he has a strong moral view
               against the death penalty; and number two, when asked,
               he equivocated on whether or not he could in fact
               consider it. He would try hard, but he was unable to say
               that he would be able to do it. So I think he needs to be
               – he should be excused for that reason in this matter.

       Donahey’s exclusion presents a closer question than Abrahams’s did. The first
reason cited by the court—that “he indicates he has a strong moral view against the
death penalty”—is not a ground for exclusion. Witt, 469 U.S. at 424. But the court did
not rely on that reason alone, finding that Donahey “equivocated” as to whether he
could consider the death penalty. That finding is plainly correct. The court’s final
reason—that Donahey “was unable to say that he would be able to” consider the death
penalty—is at least nominally refuted by Donahey’s answer that he “could consider it.”
But that answer came in response to a leading question, after Gabrion’s counsel had
pressed him on the point; and the answer came on the heels of another
equivocation—that it “would be very difficult” to consider a death sentence.
Donahey’s statements, viewed as a whole, were ambiguous; and “when there is
ambiguity in the prospective juror’s statements, the trial court, aided as it undoubtedly
is by its assessment of the venireman’s demeanor, is entitled to resolve it in favor of
the” government. Uttecht, 551 U.S. at 7 (internal quotation marks and alterations
omitted). The court was within its discretion to exclude Donahey.
Nos. 02-1386/1461/1570       United States v. Gabrion                            Page 24


       Venireman Hemmeke expressed stronger opposition to the death penalty than
Donahey did, checking a box on the juror questionnaire that said, “I could never,
regardless of the facts and circumstances, return a verdict which imposed the death
penalty.” But his answers as a whole were incoherent. The court began the questioning
as follows:

       Q:      Okay. What did you mean by that [response on the questionnaire]?
       A:      I feel that if he is guilty, that it’s more punishing to have
               him stay in jail in a – cooped up in a little cell than what
               it would be to be put to death.
       Q:      Oh. You think, then, that it’s more cruel –
       A:      To keep them –
       Q:      – to sentence to life in prison than it is to take life?
       A:      Yes.
       Q:      That’s why you would have difficulty imposing death?
       A:      Yes.

       The court then asked Hemmeke whether he could follow the court’s instructions
“on aggravating and mitigating circumstances and weighing those circumstances[.]”
Hemmeke responded:

       A:      I – hearing what they might say, I might change it. But
               I’m pretty set in the no death penalty.
       Q:      Wait a minute. No death penalty because that’s lenient
               and life in prison is worse, right?
       A:      Yeah, yeah.

       In response to questioning by the prosecutor, however, Hemmeke said: “If the
facts are there, everything fits together, and it was a very gruesome, ugly murder, then
I would maybe do it, maybe go with the death sentence.” Hemmeke also said—in
response to a leading question from defense counsel—that “yeah[,]” he could consider
a death sentence.
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 25


       The court struck Hemmeke for cause, saying “I’m terribly upset by this man’s
fuzzy thinking in which he thinks somehow that life in prison is more egregious than
death[.]” The court added that “I’m not satisfied that this gentleman’s thought process
can hang together for purposes of making the decision it needs to”; that “[m]y reason
for excusing him is really I don’t think he can follow instructions”; and that “I
ultimately think that the defendant may be prejudiced by him.” We have no basis to
second-guess any of these findings.

       That leaves the exclusion of venireman Groves, who was the “water resources
director” for a local employer. The prosecution had actually contacted Groves about
Gabrion’s case well before voir dire, asking him about the meaning of the term
“navigable waters” under Michigan law. Groves said during voir dire that he could set
that contact aside if necessary, but that he also had “a co-worker whose wife apparently
went to school with [Gabrion], and I’ve been told things about [Gabrion].” Groves
described those things as “very unflattering[.]” When asked by the court whether he
would “be able to set that aside in this case[,]” Groves answered, “I’d like to think I
could.” Groves also said that “I think I would reserve the death penalty for an
individual like Osama bin Laden where we have someone that’s a mass murderer type.”
When later asked by defense counsel whether he could follow the court’s instructions
in a sentencing phase, Groves answered: “I suppose I could, yes.”

       The court excluded Groves for three reasons: “The first is he was apparently
contacted by the government . . . and I think that just raises a specter here that I think
is inappropriate.” Even more troubling for the court, however, was a second reason:

       I think this is really potentially very damning of Mr. Gabrion, he
       apparently talks to somebody he works with whose wife apparently
       went to school with Mr. Gabrion and she fills his ear with things about
       Mr. Gabrion. And I say, can you disregard that? And he looks at me
       and he says, Yeah, I think I can. I’m not convinced he’s very sincere.

Third, the court said that “when very artfully led though a serious of questions, he says,
yeah, I could consider” the death penalty, but that Groves “winc[ed] and bob[bed] and
Nos. 02-1386/1461/1570        United States v. Gabrion                               Page 26


weave[d] a little bit” when he said that. Each of these reasons was sufficient for
Groves’s exclusion.

                                              2.

        Gabrion is unclear about the constitutional basis for his claim that the district
court’s jury-selection process was generally “lopsided” in favor of pro-death penalty
jurors. He says in passing that this claim is based upon the Equal Protection and Due
Process clauses, but does not develop that argument enough for us to consider it here.
Nor is it clear from the caselaw that the Sixth Amendment supports a jury-selection
claim that is not based on either the exclusion of a particular anti-death penalty juror
or the inclusion (on the actual petit jury) of an “automatic death penalty” juror. See
Morgan v. Illinois, 504 U.S. 719, 728 (1992). But we will assume without deciding that
Gabrion can show a violation of the Sixth Amendment if he simply demonstrates that
his jury selection process favored pro-death penalty jurors generally.

        The factual basis for Gabrion’s claim, such as it is, is twofold. First, he says that
“the trial court attempted to rehabilitate potential defense cause excusals [i.e., pro-death
penalty jurors], but did not take the same approach to potential government cause
excusals [i.e., anti-death penalty ones].” Gabrion Suppl. Br. at 14. The record belies
that assertion.     Take the example of venireperson Branch, who stated on his
questionnaire that he was “really against the death penalty.” In response to another
question—whether there was “anything about this case that would prevent” him from
following his oath if selected as a juror—Branch responded, yes: “The death penalty.”
But the district court did not leave matters there and excuse Branch for cause. Instead,
the court explained the trial process to Branch at length and then asked whether, as a
part of that process, Branch could consider the death penalty. Branch said that he
could. But Branch then backtracked in response to the prosecutor’s questions, saying
that he was “not certain” whether he could consider the death penalty. So the court
rehabilitated him again:

        Q:        . . . I want to make sure that you’re on the page here.
                  The predicate here was if the facts warranted it, in other
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 27


               words, if the facts were such that would warrant that,
               could you? And I heard you say I might not. What did
               you mean by that?
                                           ...
       A:      It’s hard to say without me being a juror or in the
               circumstances where I have to decide. I might say it’s a
               possibility of a yes or a no.
       Q:      Right. And that’s based—I want to make sure—that’s
               based upon the facts, not on what your philosophy is?
       A:      Religion or nothing, no, just the facts.
       Q:      Okay. Thank you, sir. Thank you.

       The government then moved to excuse Branch for cause. The court refused,
explaining: “this witness says it depends on the facts, and I think that’s sufficient. I’m
troubled by the fact that he previously stated, No way. But he obviously has done some
thinking about this, and I think he’s appropriate.”

       Likewise, there were two other anti-death penalty veniremen—Wing and
Fix—who at first equivocated regarding their ability to consider the death penalty, but
then gave rehabilitative answers to follow-up questions from the court. Indeed,
Gabrion’s counsel cited Fix’s “response to your [i.e., the district court’s] question” in
opposing the government’s motion to excuse Fix for cause. The court “agree[d]” with
Gabrion’s counsel on that point, and overruled the government’s objections to both Fix
and Wing. Moreover, as noted above, the court asked venireman Abrahams a leading
question in favor of rehabilitation, but Abrahams declined to follow the court’s lead.
Thus, Gabrion’s assertion that the court rehabilitated only pro-death penalty
venirepersons is simply false.

       Gabrion also says the district court was biased because it excluded four
generally anti-death penalty venirepersons (Abrahams, Donahey, Hemmeke, and
Groves, already discussed above) while retaining three generally pro-death penalty ones
(Harrington, Wehler, and Erickson) whom Gabrion challenged for cause (and later
struck peremptorily). It is true, of course, that the court excluded the one set of
Nos. 02-1386/1461/1570      United States v. Gabrion                                Page 28


venirepersons while retaining the other. But the argument’s premise is wrong. Jurors
are not commodities. They are individuals, whose answers during voir dire differ in
various ways, some subtle and some not. Here, the district court took account of those
differences and excluded Abrahams, Donahey, Hemmeke, and Groves for the reasons
already mentioned. And it retained pro-death penalty jurors Harrington, Wehler, and
Erickson on grounds similar to the grounds on which it retained anti-death penalty
jurors Branch, Fix, and Wing—namely, that on balance each of them credibly stated
that he could follow the court’s instructions in choosing a sentence in the case. See,
e.g., 2 Jury Trial Tr. at 335 (stating that Branch “is, in my opinion, a flip of the Wehler
guy”); Id. at. 536 (stating that Harrington “is not unlike this morning’s Mr. [] Branch
who said he could never impose the death penalty . . . and come to find out, he said he
could be fair”).

        The district court did a commendable job, not an unconstitutional one, of
selecting a jury in this case. Gabrion’s arguments to the contrary are meritless.

                                            C.

        Gabrion next argues that the district court gave the jury erroneous instructions
with regard to the findings necessary to its recommendation that the court sentence
Gabrion to death. In order for Gabrion to be eligible for the death penalty, the jury had
to find two things beyond a reasonable doubt: first, that Gabrion killed Rachel
Timmerman “intentionally[,]” 18 U.S.C. § 3591(a)(2)(A); and second, that the
government proved “at least one of the statutory aggravating factors set forth at
§ 3592.” Jones v. United States, 527 U.S. 373, 376–77 (1999). “Once [Gabrion]
became death eligible, the jury had to decide whether he should receive a death
sentence.” Id. at 377. Specifically, the jury was required to

        consider whether all the aggravating factor or factors found to exist
        sufficiently outweigh all the mitigating factor or factors found to exist
        to justify a sentence of death . . . . Based upon this consideration, the
        jury by unanimous vote . . . shall recommend whether the defendant
        should be sentenced to death[.]
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 29


18 U.S.C. § 3593(e). If the jury recommends death, the district court is required to
impose that sentence. See 18 U.S.C. § 3591(a)(2).

        Here, the jury found beyond a reasonable doubt that Gabrion killed Timmerman
intentionally and that two statutory aggravating factors were present. The jury also
determined, unanimously, that the government’s aggravating factors sufficiently
outweighed the mitigating ones to justify a sentence of death. But Gabrion argues that
the jury was required to make the latter determination—i.e., the “outweighs”
one—beyond a reasonable doubt. The district court did not instruct the jury to that
effect, so Gabrion says we must vacate his sentence.

        As support for his argument, Gabrion cites the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466, 489 (2000). There, the Court held that, “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490. Gabrion says that the jury’s “outweighs” determination
is a “fact” that increases his maximum sentence from life to death, and thus must be
proved beyond a reasonable doubt.

        The problem with this argument is that Apprendi does not apply to every
“determination” that increases a defendant’s maximum sentence. Instead it applies only
to findings of “fact” that have that effect. Id. In Apprendi itself, for example, the Court
held that a jury was required to find beyond a reasonable doubt that the “defendant in
committing the crime acted with a purpose to intimidate an individual or group of
individuals because of race[.]” Id. at 468–69. In Blakely v. Washington, 542 U.S. 296,
300 (2004), the same was true about a finding that the defendant acted with “deliberate
cruelty[.]” In United States v. Booker, 543 U.S. 220, 233, 235 (2005), the same was
true about a finding that the defendant possessed more than 500 grams of crack. Even
in United States v. Gaudin, 515 U.S. 506, 509 (1995)—a case often cited as the high-
water mark for what counts as a “fact” for purposes of Apprendi—the necessary finding
was simply that the defendant’s statement was likely to have a particular effect on its
recipient.
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 30


       These sorts of findings—that a particular statement might influence its recipient,
or that the defendant acted with a particular state of mind, or possessed a particular
quantity of drugs, or was himself the triggerman, rather than just an accomplice—are
different in kind from the “outweighs” determination required by § 3593(e). Apprendi
findings are binary—whether a particular fact existed or not. Section 3593(e), in
contrast, requires the jury to “consider” whether one type of “factor” “sufficiently
outweigh[s]” another so as to “justify” a particular sentence. Those terms—consider,
justify, outweigh—reflect a process of assigning weights to competing interests, and
then determining, based upon some criterion, which of those interests predominates.
The result is one of judgment, of shades of gray; like saying that Beethoven was a better
composer than Brahms. Here, the judgment is moral—for the root of “justify” is “just.”
What § 3593(e) requires, therefore, is not a finding of fact, but a moral judgment.

       In that respect § 3593(e) is no different from 18 U.S.C. § 3553, which likewise
requires the decisionmaker to “consider” various “factors” and then determine—as a
prerequisite to imposing a particular sentence—that the sentence is “sufficient, but not
greater than necessary” to comply with the purposes set forth in § 3553(a)(2). That
determination is just as necessary to the selection of a sentence under § 3553(a) as the
“outweighs” determination is to the selection of a sentence under § 3593(e). The two
determinations are therefore indistinguishable for purposes of Apprendi; and yet no one
contends that a jury must find beyond a reasonable doubt that a particular sentence is
“sufficient, but not greater than necessary” under § 3553(a)(2).

       What § 3593(e) requires, in summary, is not a finding of fact in support of a
particular sentence. What § 3593(e) requires is a determination of the sentence itself,
within a range for which the defendant is already eligible. That makes this case
different from any in which the Supreme Court has applied Apprendi. Here, Gabrion
was already “death eligible” once the jury found beyond a reasonable doubt that he
intentionally killed Rachel Timmerman and that two statutory aggravating factors were
present. Jones, 527 U.S. at 377. At that point the jury did not need to find any
additional facts in order to recommend that Gabrion be sentenced to death. It only
Nos. 02-1386/1461/1570        United States v. Gabrion                            Page 31


needed to decide, pursuant to the weighing of factors described in the statute, that such
a sentence was “just[].” 18 U.S.C. §§ 3591(a), 3593(e). And in making that moral
judgment, the jury did not need to be instructed as if it were making a finding of fact.

       Every circuit to have addressed the argument that Gabrion makes here—six
circuits so far—has rejected it. See United States v. Runyon, 707 F.3d 475, 516 (4th
Cir. 2013); United States v. Fields, 516 F.3d 923, 950 (10th Cir. 2008); United States
v. Mitchell, 502 F.3d 931, 993–94 (9th Cir. 2007); United States v. Sampson, 486 F.3d
13, 31 (1st Cir. 2007); United States v. Fields, 483 F.3d 313, 345–46 (5th Cir. 2007);
Purkey, 428 F.3d at 749. Today we become the seventh. Gabrion’s argument is
meritless.

                                            III.

                                            A.

       Gabrion also presents three arguments that he says the original panel in his
appeal overlooked.

                                            1.

       Gabrion’s first such argument is that we should order a determination of his
competency for purposes of his appeal. By way of background, the district court
appointed no fewer than three mental-health experts to examine Gabrion, each of whom
concluded that he was both competent and malingering. (To malinger is to manipulate;
and persons with Histrionic or Antisocial personalties tend to be highly manipulative.
See American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV-TR), 713 (4th ed. 2000); see also id. at 702 (Antisocials “may
repeatedly lie, use an alias, con others, or malinger”).) We agree with the original panel
that the district court was correct to find that Gabrion was competent to stand trial. See
648 F.3d at 318–20.        And Gabrion’s argument that we should order a new
determination of his competency for purposes of his appeal is, in substance, simply a
rehash of his argument that he was incompetent in the district court. Overlooked or not,
this argument is meritless.
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 32


                                           2.

        Gabrion says the original panel also overlooked his argument that the district
court should not have excluded him from the courtroom during a portion of the trial’s
penalty phase. The exclusion in question occurred after Gabrion punched his lawyer
in the face in the presence of the jury. The district court sent Gabrion upstairs to the
courthouse lockup, where for the remainder of that afternoon he watched the trial on
closed-circuit television. The next morning the U.S. Marshal reported that Gabrion had
been “very unruly in the cell block throughout the afternoon, banging on the cell,
yelling, that sort of behavior all afternoon[.]” Gabrion’s counsel reported the same
thing. The court left Gabrion upstairs for a total of 24 witnesses.

        The Confrontation Clause and Federal Rule of Criminal Procedure 43 ordinarily
require a district court to warn a disruptive defendant before removing him from the
courtroom. See Gray v. Moore, 520 F.3d 616, 624 (6th Cir. 2008); Fed. R. Crim. P.
43(c)(1)(C). Here, Gabrion got plenty of warning. For example, Gabrion repeatedly
interrupted the court during a hearing three days before trial. The court warned him:
“Mr. Gabrion, I will remove you and I will penalize you if you continue to interrupt me
or anyone else during this trial very specifically. I mean that. Do you understand that?”
The court later added, “I’m giving you fair warning and I want you to hear me very
clearly. I will not tolerate interruptions or noise during the trial.” So lack of warning
is not an issue here.

        Gabrion contends, however, that the court should have returned Gabrion to the
courtroom sooner than the court actually did. Specifically, Gabrion suggests that the
court should have put him in shackles and returned him to the courtroom almost
immediately after the punch, albeit with a stern warning, apparently, that additional
outbursts would lead to his removal. The argument defies common sense. Setting aside
the whole question whether Gabrion could have been physically restrained, the court
had every reason to think that Gabrion would continue to be verbally disruptive if he
were promptly to return. And Gabrion admits that a district court can exclude a
defendant who is verbally disruptive. See Gabrion Pet’n for Reh’g at 3.
Nos. 02-1386/1461/1570        United States v. Gabrion                             Page 33


          Gabrion was verbally disruptive throughout almost the entire trial. To cite one
of dozens of examples, during the prosecution’s opening statement during the penalty
phase, Gabrion interjected for all to hear: “Why do you just let him stand up there and
lie like that and never do anything about it? It’s bullshit. . . . Fucking liar asshole.”
The court had no reason to think Gabrion would behave any better just after punching
his counsel and carrying on upstairs all afternoon. The district court did not abuse its
discretion by excluding Gabrion for the period it did. See Illinois v. Allen, 397 U.S.
337, 343 (1970) (“trial judges confronted with disruptive, contumacious, stubbornly
defiant defendants must be given sufficient discretion to meet the circumstances of each
case”).

                                             3.

          Finally, Gabrion says the original panel overlooked his argument that
Dr. Saathoff’s testimony in rebuttal violated Gabrion’s Fifth and Sixth Amendment
rights to the extent that Dr. Saathoff testified about Gabrion’s contempt for women. We
do not think the panel overlooked this argument. Gabrion concedes that Dr. Saathoff
could testify about subjects raised by Gabrion’s experts in mitigation. See Gabrion
2009 Suppl. Br. at 38–39. But Gabrion asserts that Dr. Saathoff’s testimony about
Gabrion’s misogyny exceeded the scope of his experts’ testimony in mitigation, thereby
allegedly violating Gabrion’s rights under the Fifth and Sixth Amendments.

          The original panel correctly determined that the factual premise of this argument
is incorrect: “Dr. Saathoff’s testimony as a whole was a fair rebuttal of Gabrion’s
mitigation evidence and did not unfairly prejudice Gabrion.” 648 F.3d at 341. For
example, Dr. Jackson—one of Gabrion’s experts—testified at length about “Gabrion’s
psychological makeup[,]” an open-ended subject of which Gabrion’s misogyny was
certainly a part. Gabrion’s mitigation evidence also downplayed the extent of his future
dangerousness to women. See Id. Thus, whatever the contours of the Fifth and Sixth
Amendment rights that Gabrion asserts here, Dr. Saathoff’s testimony did not violate
them—for reasons already stated in the original panel opinion.
Nos. 02-1386/1461/1570     United States v. Gabrion                            Page 34


                                           B.

       Gabrion also presents more than a dozen other arguments that the original panel
unanimously rejected. See, e.g., Gabrion Br. at 78 (the district court abused its
discretion “by removing a juror who was allegedly sleeping”). We have reviewed
those arguments, but do not think it worthwhile to address them again here. It is
enough for our purposes to state that we reject all of Gabrion’s remaining arguments.

                                  *    *        *

       After 11 days of testimony and two days of careful deliberation, the 12 jurors
who sat on this case decided unanimously that Marvin Gabrion deserved a sentence of
death for what he did to Rachel Timmerman. We have no basis to set aside that moral
judgment. The district court’s judgment is affirmed.
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 35


                    _____________________________________

                     CONCURRENCE IN THE JUDGMENT
                    _____________________________________

       CLAY, Circuit Judge, concurring only in the judgment. Both the majority and
the dissent offer wide-ranging opinions that delve into the minute detail of the
important issues implicated by this case. It is the breadth of those opinions, however,
that prevents me from fully embracing either opinion’s analysis. Therefore, I concur
only in the judgment of the majority.

       The central concern throughout the appeal of this case has had to do with the
location of Rachel Timmerman’s murder, just 227 feet inside the boundaries of the
Manistee National Forest in western Michigan. During the penalty phase of his trial,
Defendant sought to raise two arguments with respect to the location of the murder.
First, he sought to argue that because the murder occurred on federal property in
Michigan, a non-death penalty state, the jury should be able to consider as a mitigation
factor that had the murder occurred on non-federal property in Michigan, he would not
be eligible to receive the death penalty. Second, Defendant contends that he should
have been able to make a so-called residual doubt argument that despite the jury’s
finding beyond a reasonable doubt at trial that the murder was committed on federal
property, it may actually not have been committed on federal property. The issue for
us as an appellate court is to decide whether the district court erred in excluding such
arguments from the penalty phase.

       Any attempts to recast the issue more broadly would seem to be inappropriate
and ill-conceived. Specifically, I am sympathetic to the dissent’s suggestion that the
majority has altered the standard for what constitutes relevant mitigating evidence. See
Dissent at 40. While I do not see the majority’s alteration as the “transform[ation]” that
the dissent does, id., I do not think that the majority’s references to the jury’s moral
judgment are necessary to resolve this case. See Maj. Op. at 12–15. To be sure,
morality and the jury’s “moral response” are part of death penalty deliberations, Penry
v. Lynuagh, 492 U.S. 302, 319 (1989), overruled on other grounds by Atkins v.
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 36


Virginia, 536 U.S. 304 (2002), but, as demonstrated below, I think this case can be
more narrowly resolved by deciding whether either of Defendant’s arguments fit into
the categories of “culpability and character” that the Supreme Court has identified to
be relevantly considered by a jury in imposing the death penalty. See Maj. Op. at 13.

       As to Michigan’s status as a non-death penalty state, such an argument seeks to
inject extraneous factors into the jury’s consideration of Defendant’s sentence. While
the jury, especially in capital cases, is entitled to “take[] a wide range of factors into
account,” Lockett v. Ohio, 438 U.S. 586, 602 (1978), jurors must be guided in their
“individualized assessment of the appropriateness of the death penalty” to a given
defendant, Penry, 492 U.S. at 319; see also Gregg v. Georgia, 428 U.S. 153, 192–93
(1976) (“The idea that a jury should be given guidance in its decisionmaking is also
hardly a novel proposition.”). An argument about Michigan’s decision, as a state, not
to impose the death penalty has nothing to do with a federal jury’s determination of the
appropriateness of applying the federal death penalty statute with respect to Defendant.
The district court’s refusal to allow such an argument during the penalty phase of the
trial does not appear to constitute error.

       With respect to the residual doubt argument, it must first be stated that the same
jury had already found beyond a reasonable doubt that Defendant murdered
Timmerman on federal property when it found Defendant guilty during the guilt phase
of the trial. This finding, as demonstrated by the concurrence in Gabrion I, was well-
supported by the evidence. United States v. Gabrion, 517 F.3d 839, 82–74 (6th Cir.
2008) (Moore, J., concurring in the judgment). This case does not require us to answer
the question whether it would have been error had the district court allowed a residual
doubt argument on the issue of the location of the murder to be presented during the
penalty phase of the trial; and I decline to address that issue. We need only decide
whether the district court’s refusal to allow such an argument was error under the
circumstances of this case. In this case, the issue of the location of Timmerman’s
murder had already been decided definitively and unassailably by the same jury.
Notwithstanding the wide berth that the Supreme Court has traditionally given
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 37


defendants seeking to introduce mitigation evidence during the penalty phase of a death
penalty trial, see, e.g., Tennard v. Dretke, 542 U.S. 274 (2004); Lockett, 438 U.S. 586,
the district court was within its discretion under the facts of this case not to permit re-
argument on this point during the penalty-phase, cf. Oregon v. Guzek, 546 U.S. 517,
526 (2006); Lockhart v. McCree, 476 U.S. 162, 205 (1986) (Marshall, J., dissenting).

        In sum, Defendant has come forward with no assignments of error, including his
arguments with respect to the voir dire, which suggest that the district court’s handling
of this case was improper so as to mandate reversal. Therefore, I concur in the
judgment that Defendant’s conviction and sentence be affirmed, but not in the majority
opinion or its analysis.
Nos. 02-1386/1461/1570         United States v. Gabrion                           Page 38


                                  ___________________

                                       DISSENT
                                  ___________________

       KAREN NELSON MOORE, Circuit Judge, dissenting. During the guilt phase
of Marvin Gabrion’s trial, the jury was required to make a determination on an
extremely complicated and hotly contested element of the offense—whether Gabrion
committed the murder in the Manistee National Forest or in the State of Michigan.
Their answer not only resolved an interesting academic issue of federal jurisdiction, but
also exposed Gabrion to a sentence of death. Given the direct connection between this
determination and the resultant penalty phase, Gabrion sought to introduce as mitigation
both a residual-doubt argument and evidence of the location of the crime. The district
court denied this request, and the penalty phase proceeded with no mention of this
circumstance of the offense. At the end of the penalty phase, Gabrion sought to have
the jury instructed in accordance with Apprendi v. New Jersey, 530 U.S. 466
(2000)—that in order to sentence Gabrion to death, the jury would have to find beyond
a reasonable doubt that the aggravators outweighed the mitigators. The district court
denied this request as well.

       The majority concludes that neither of these determinations constituted errors.
Because I believe that the district court erred in making each of these determinations,
as well as in excluding certain jurors during voir dire, and that Gabrion’s constitutional
rights were violated as a result, I cannot agree. I would vacate Gabrion’s sentence and
remand for a new penalty hearing. I therefore respectfully dissent.

                          I. PENALTY-PHASE ERRORS

A. Michigan’s Lack of a Death Penalty as Mitigating Evidence

       Gabrion articulates three theories in support of his contention that the district
court erred by precluding him from presenting evidence of the location of the crime
during the penalty phase of his trial, one arising under the Eighth Amendment and two
based on the Federal Death Penalty Act (“FDPA”). Although I believe that each of
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 39


these theories requires admission of this evidence, I am most troubled by the majority’s
decision to eviscerate the decades-old relevance standard established by the Supreme
Court in order to achieve the majority’s desired result.

        Replacing constitutionality with morality as the benchmark of relevance narrows
the scope of evidence that a defendant may present as mitigation during the penalty
phase of his trial. Given the importance of this constitutional right, I cannot support
transforming the standard in such a way that precludes a defendant from presenting
constitutionally relevant evidence simply because a panel of judges cannot see its moral
relevance. Whatever the majority thinks of Gabrion’s moral culpability or the horrific
nature of the crimes he committed, these opinions cannot displace the constitutional
relevance of the evidence Gabrion seeks to present. I would allow Gabrion to present
evidence of the location of the crime—an element of the offense—based on the
constitutional standard employed by the Supreme Court, and alternatively, under the
FDPA.

        1. Eighth Amendment

        A defendant has an Eighth Amendment right to present all evidence at the
penalty phase of a capital trial that is relevant to “any aspect of a defendant’s character
or record and any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). The
Supreme Court has made clear that this is an expansive right:

                 When we addressed directly the relevance standard applicable
        to mitigating evidence in capital cases . . . , we spoke in the most
        expansive terms. We established that the meaning of relevance is no
        different in the context of mitigating evidence introduced in a capital
        sentencing proceeding than in any other context, and thus the general
        evidentiary standard—any tendency to make the existence of any fact
        that is of consequence to the determination of the action more probable
        or less probable than it would be without the evidence—applies.

Tennard v. Dretke, 542 U.S. 274, 284 (2004) (internal quotation marks omitted).
Nos. 02-1386/1461/1570           United States v. Gabrion                                      Page 40


         Rather than apply the Supreme Court’s conception of relevance, the majority
fashions its own standard—“mitigation evidence encompasses both culpability and
character, all to the extent relevant to the defendant’s personal responsibility and moral
guilt.”1 Maj. Op. at 13 (internal quotation marks omitted). However, this standard
addresses only a part of what would be admissible under the relevance standard
outlined by the Supreme Court. Critically, this new standard allows the majority to
avoid engaging in any analysis concerning whether the evidence Gabrion seeks to
present is a circumstance of the offense, a consideration included expressly in the
Supreme Court’s relevance standard. See Gregg v. Georgia, 428 U.S. 153, 189 (1976)
(“We have long recognized that for the determination of sentences, justice generally
requires that there be taken into account the circumstances of the offense together with
the character and propensities of the offender.”) (internal quotation marks and
alterations omitted). That the evidence at issue here was an element of the offense only
underscores the consequences of the majority’s decision to transform the standard.
Under the Supreme Court’s standard, evidence related to an element of the offense is
unequivocally relevant, yet under the novel standard employed by the majority, a court
may skirt the inquiry most relevant to its admission.

         Additionally, the Supreme Court has indicated that evidence may “ha[ve]
nothing to do with his culpability for [the] offense,” yet be admissible nonetheless.
Maj. Op. at 13. As explained by Justice Stevens, “a jury must be allowed to give
weight to any aspect of a defendant’s character or history that may provide a basis for
a sentence other than death, even if such evidence does not tend to reduce the
defendant’s culpability for his crime.” Wong v. Belmontes, 558 U.S. 15, 28 (2009)
(Stevens, J., concurring) (internal quotation marks omitted); see also Brewer v.
Quarterman, 550 U.S. 286, 289 (2007) (acknowledging that mitigation includes more
than that which addresses culpability: “we have long recognized that a sentencing jury
must be able to give a reasoned moral response to a defendant’s mitigating
evidence—particularly that evidence which tends to diminish his culpability”) (internal

         1
         The majority references the correct standard at one point in its opinion, yet bases its analysis
wholly on the moral-culpability and character-of-the-defendant factors.
Nos. 02-1386/1461/1570            United States v. Gabrion                                          Page 41


quotation marks omitted). The fact that “most of the evidence the Supreme Court has
deemed mitigating was evidence relevant to the defendant’s personal culpability for his
crime” does not eliminate the broad constitutional protections for those defendants who
wish to present evidence unrelated to their moral culpability. Maj. Op. at 12.

         Notably, the majority opinion is devoid of any examples of the Supreme Court
having excluded mitigation evidence on the basis that it did not meet the constitutional
minimum, let alone any evidence similar to that which Gabrion seeks to introduce.2
Instead, the cases cited by the majority reflect the inclusive nature of the Eighth
Amendment standard. A review of post-Furman cases that consider mitigation
evidence reveals that the Supreme Court consistently employs iterations of the
expansive relevance standard. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 248
(2007) (“In those cases, we emphasized the severity of imposing a death sentence and
that the sentencer in capital cases must be permitted to consider any relevant mitigating
factor.”) (internal quotation marks omitted); Tennard, 542 U.S. at 285 (explaining that
a jurisdiction “cannot bar the consideration of evidence if the sentencer could
reasonably find that it warrants a sentence less than death”) (internal quotation marks
and alteration omitted); Payne v. Tennessee, 501 U.S. 808, 822 (1991) (“[V]irtually no
limits are placed on the relevant mitigating evidence a capital defendant may introduce
concerning his own circumstances.”); Lockett, 438 U.S. at 604 (“[T]he Eighth and
Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the




         2
           The Seventh Circuit’s opinion in United States v. Johnson, 223 F.3d 665 (7th Cir. 2000), is not
instructive. Gabrion did not seek to introduce evidence that the death penalty is immoral. He sought to
introduce evidence relating to an element of the offense of which he was convicted. In other words,
Gabrion sought to proffer evidence supporting an argument “against sentencing this defendant to death.”
Id. at 675. Additionally, insofar as the majority assumes Gabrion’s evidence can be presented only in
generalities, the Supreme Court has explained that although “[i]t might seem, then, that [certain types of
evidence] apply to every eligible defendant[,] . . . that cannot be correct.” Jones v. United States, 527 U.S.
373, 401 (1999). As applied to the context of victim-impact statements, the Supreme Court stated that
“[e]ven though the concepts of victim impact and victim vulnerability may well be relevant in every case,
evidence of victim vulnerability and victim impact in a particular case is inherently individualized.” Id.
The same is true of the evidence Gabrion sought to present relating to the location of the offense.
Nos. 02-1386/1461/1570            United States v. Gabrion                                          Page 42


defendant proffers as a basis for a sentence less than death.”) (internal footnote
omitted).3

         The Supreme Court has continued to apply such an expansive standard with
good reason. Without an opportunity to present mitigation evidence—the means by
which the jury considers the individual defendant and the circumstances of his
offense—the death penalty would be unconstitutional. Woodson v. North Carolina, 428
U.S. 280, 304 (1976) (“[I]n capital cases the fundamental respect for humanity
underlying the Eighth Amendment requires consideration of the character and record
of the individual offender and the circumstances of the particular offense as a
constitutionally indispensable part of the process of inflicting the penalty of death.”)
(citation omitted) (emphasis added); see also Kansas v. Marsh, 548 U.S. 163, 171
(2006) (“This Court noted that, as a requirement of individualized sentencing, a jury
must have the opportunity to consider all evidence relevant to mitigation.”).4


         3
           The majority’s citations to cases that discuss the moral culpability of the defendant are
unpersuasive. As an initial matter, it is unsurprising that the Supreme Court has made statements regarding
the significance of moral culpability in mitigation; it is, after all, one of the categories that the Supreme
Court itself has outlined. What the majority here continues to disregard, however, is that “circumstances
of the offense” is also a category incorporated by the Supreme Court. In fact, Penry v. Lynaugh, 492 U.S.
302 (1989), a case cited by the majority, expressly includes this category: “[T]he Eighth and Fourteenth
Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the circumstances of the offense.” Id. at 317
(internal quotation marks omitted).
          Moreover, I must point out that the majority’s reliance on Tennard and Enmund v. Florida,
458 U.S. 782 (1982), for the proposition that mitigation is only a moral concept is misplaced. In Enmund,
the Supreme Court discussed the personal culpability of the defendant in the context of the imposition of
the death penalty on a non-triggerman, not as a general matter. 458 U.S. at 797–801. With respect to
Tennard, the majority omits the surrounding text of the sentence that it quotes. When read in context, the
paragraph clearly establishes the inclusive nature of the mitigation standard. It does not prohibit admission
of the circumstances of the crime, as the majority’s selective quotation insinuates. The entirety of the cited
paragraph states as follows:
                  We have never denied that gravity has a place in the relevance analysis, insofar
         as evidence of a trivial feature of the defendant’s character or the circumstances of the
         crime is unlikely to have any tendency to mitigate the defendant’s culpability.
         However, to say that only those features and circumstances that a panel of federal
         appellate judges deems to be severe (let alone uniquely severe) could have such a
         tendency is incorrect. Rather, the question is simply whether the evidence is of such a
         character that it might serve as a basis for a sentence less than death.
Tennard, 542 U.S. at 286–87 (internal quotation marks and citations omitted) (emphasis added).
         4
           The result of the majority’s analysis is to exclude from the penalty phase evidence that was
presented during the guilt phase. However, the bifurcated nature of a capital trial was not established in
order to restrict the jury’s consideration of evidence related to the circumstances of the offense. Rather,
it was created in order to enable the jury to consider more information about the defendant than that which
Nos. 02-1386/1461/1570            United States v. Gabrion                                        Page 43


         Under the correct standard, the evidence that Gabrion sought to introduce is
unquestionably relevant. When the location of the crime is what makes a defendant
eligible for the death penalty in the first place, the location becomes a “circumstance
of the offense” that could justify a sentence less than death. Indeed, in this case, the
location of the body was an element of the offense.5 A juror may have been less
inclined to impose the death penalty for a crime committed in Michigan if he knew that
the United States’s ability to prosecute the crime and impose a sentence of death was
determined by a distance roughly the length of a hockey rink. Certainly, not every juror
would be softened by the knowledge that Michigan is a non-death-penalty state and that
Gabrion was eligible for the death penalty only because his crime was committed on
federal lands within Michigan—a conclusion that itself was extremely complicated and
hotly contested. But the fact that some jurors reasonably may be inclined not to impose
the death penalty as a result of such information makes the excluded information
mitigating.

         Moreover, the Supreme Court has rebuked attempts by the courts to narrow the
scope of mitigating evidence, making clear that it is not a judge’s role to weigh in on
the moral relevance of evidence. In Tennard, for example, the Supreme Court rejected
the Fifth Circuit’s constitutional-relevance screening test and its nexus requirement,
reasoning that these additional hurdles have “no basis in our precedents and, indeed,


would be admissible when determining the question of guilt: “When a human life is at stake and when the
jury must have information prejudicial to the question of guilt but relevant to the question of penalty in
order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the
constitutional deficiencies identified in Furman.” Gregg, 428 U.S. at 191–92.
         5
           The majority’s comparison of an element of the offense to the “moonphase that day” underscores
its unwillingness to engage in a meaningful analysis of the third category the Supreme Court has outlined
as mitigation—circumstances of the offense. The majority’s comparison of the location of the body to the
moonphase that day is apt in one respect, however. During the guilt phase, the jury, too, was likely to have
regarded the disputes over where Timmerman died and whether she was asphyxiated or drowned as no
more relevant to the question of Gabrion’s guilt than the moonphase that day. Jurors convinced beyond
a reasonable doubt that a defendant has murdered in cold blood are highly unlikely to then find the
defendant not guilty based on doubts as to the location of the murder or the manner of death. In the face
of overwhelming evidence that Gabrion murdered Timmerman, the jurors likely spent little time focusing
on the seemingly irrelevant question whether the murder took place on federal lands or the degree to which
they were convinced of that morally irrelevant fact. But, having rendered a guilty verdict, and then turning
to the question whether Gabrion should receive the death penalty, some jurors might have viewed the
morally irrelevant issue of the location of the murder as having new significance, far more relevant than
the moonphase that day, had they been informed that the location was the single factor that made the
murder a federal crime, thereby exposing Gabrion to the death penalty, which would not have been an
option had the murder been committed 227 feet to the north.
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 44


[are] inconsistent with the standard we have adopted for relevance in the capital
sentencing context.” 542 U.S. at 287. The Court further identified the role of a federal
appellate court regarding mitigation evidence: “to say that only those features and
circumstances that a panel of federal appellate judges deems to be severe . . . could have
such a tendency is incorrect. Rather, the question is simply whether the evidence is of
such a character that it might serve as a basis for a sentence less than death.” Id.
(internal quotation marks omitted).

       Accordingly, we are not charged with excluding evidence that is not morally
relevant. Rather, we must uphold a defendant’s right to present evidence that is
constitutionally relevant. That the majority considers Gabrion’s evidence morally
unpersuasive is of no matter. Courts determine whether evidence is constitutionally
relevant, much of which addresses moral culpability, and that evidence is relied upon
by the jury to make a reasoned moral judgment.             If evidence meets the low
constitutional bar established by Supreme Court—which it unequivocally does
here—then it must be allowed in. The majority deprives Gabrion of his Eighth
Amendment right to present constitutionally relevant mitigation evidence.

       2. Federal Death Penalty Act

       Gabrion’s constitutional right to present mitigation evidence is distinct from his
statutory right to present mitigation evidence under the FDPA. Under § 3592(a), “the
finder of fact shall consider any mitigating factor,” including a list of seven specific
factors and an eighth category requiring consideration of “[o]ther factors in the
defendant’s background, record, or character or any other circumstance of the offense
that mitigate against imposition of the death sentence.” 18 U.S.C. § 3592(a). The
parties debate whether these eight categories are exhaustive, how broadly to read this
eighth category if they are, and most importantly, whether the information about
Michigan qualifies under any of these readings. The majority ultimately concludes that
it does not, relying on the unfounded assumption that Congress limited the protections
in § 3592(a) to the constitutional minimum. Because I believe the FDPA allows a
defendant to introduce evidence beyond the constitutional minimum, I cannot agree.
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 45


        As an initial matter, I remain confounded as to how evidence relating to an
element of the offense does not qualify as a “circumstance of the offense” under
§ 3592(a)(8). The majority once again refuses to engage in this analysis, choosing
instead to rely upon unsupported assertions, namely that § 3592(a) is based in the same
moral principles as the majority’s novel relevance standard. Even assuming, though,
that an element of the offense is somehow outside the scope of § 3592(a)(8), the
expansive nature of § 3592(a) as a whole requires permitting Gabrion to present this
evidence. By its own language, the § 3592(a) list is non-exhaustive and merely
illustrative. The first indication of § 3592(a)’s expansive nature is reflected in the
initial preface, where Congress stated that the jury “shall consider any mitigating
factor.” Id. (emphasis added). Congress subsequently used the open-ended word
“including” when listing the enumerated examples of mitigating factors. Id. The
majority does not account for this open-ended language in any meaningful way,
focusing instead on reiterating its constitutional argument by pointing to the similarities
between the language of the eighth factor and the constitutional standard set forth by
the Supreme Court.

        The government’s only argument in response is that the existence of the eighth
category would be “superfluous” if the words “any mitigating factor” are given broader
meaning, but the government fails to explain how this list is any different from other
illustrative lists. As explained by the Fifth Circuit when rejecting a similar argument
relating to aggravating factors under the FDPA, “‘[i]t is “a cardinal principle of
statutory construction” that “a statute ought, upon the whole, to be so construed that,
if it can be prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.”’” United States v. Robinson, 367 F.3d 278, 293 (5th Cir. 2004) (quoting
TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001)). The merits panel correctly concluded
that purely as a matter of statutory interpretation, defense counsel is entitled to argue
any point that “could conceivably make a juror question the appropriateness in the case
of imposing a sentence of death.” United States v. Gabrion, 648 F.3d 307, 326 (6th Cir.
2011), reh’g en banc granted, op. vacated (6th Cir. Nov. 17, 2011). The government
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 46


does not even try to argue that this evidence could not even “conceivably” bear on a
juror’s decision of whether death was justified under this standard.

        Perhaps the strongest evidence in support of an expansive reading of § 3592(a)
is found in the interpretations of other FDPA provisions. Specifically, our sister circuits
have consistently interpreted §§ 3592(b), (c), and (d) and 3593(a), the aggravating-
factor provisions, as expansive.        These interpretations are instructive, as the
aggravating-factor provisions employ the same terms that are at issue in the mitigating-
factor provision. Each provision relating to non-statutory aggravating factors in § 3592
states as follows: “The jury, or if there is no jury, the court, may consider whether any
other aggravating factor for which notice has been given exists.” § 3592(b), (c), and
(d) (emphasis added). Additionally, § 3593(a) prescribes that “[t]he factors for which
notice is provided under this subsection may include factors concerning the effect of the
offense on the victim and the victim’s family . . . and any other relevant information.”
Id. § 3593(a) (emphasis added).

        Certain circuits base their interpretations on the plain language of the terms at
issue. For example, the Fourth Circuit has explained that “the text of [§ 3593(a)] is
illustrative rather than exhaustive, identifying some kinds of aggravating factors and
evidence that the prosecution’s notice to the defendant ‘may include’ and concluding
with a catchall permitting the prosecution to present ‘any other relevant information.’”
United States v. Runyon, 707 F.3d 475, 501 (4th Cir. 2013) (quoting § 3592(c)). Given
this language, the court determined that Runyon, in arguing for a more restrictive
interpretation, was “creating restrictions . . . out of whole cloth.” Id. Likewise, the
First Circuit indicated that “[t]he FDPA broadly provides that the government may
present any information relevant to an aggravating factor for which notice has been
provided.” United States v. Sampson, 486 F.3d 13, 44 (1st Cir. 2007) (internal
quotation marks and alteration omitted). Finally, the Tenth Circuit explained that “the
use of the phrases ‘may include’ and ‘any other relevant information’ clearly suggests
that Congress intended to permit the admission of any other relevant evidence,
including, as authorized by Payne, evidence giving the jury a glimpse of the victim’s
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 47


personality and the life he led.” United States v. Barrett, 496 F.3d 1079, 1099 (10th
Cir. 2007).

       Even more notable, though, are the circuits that have expressly compared the
terms found in the mitigation provision with those in the non-statutory-aggravators
provision in order to establish the FDPA’s expansiveness. For example, the Fifth
Circuit asserted that the breadth of the non-statutory-aggravators provision is supported
by that of the mitigation provision: “The statute provides that the jury may consider
such determinations in reaching its decision to recommend death, just as it permits the
jury to consider any mitigating factors not specified in the statute.” Robinson, 367 F.3d
at 293.       In support of this assertion, the court compared the language in
§ 3592(a)—“‘the finder of fact shall consider any mitigating factor, including the
following’ eight specified factors”—with the language in § 3592(c)—“‘the jury . . . may
consider whether any other aggravating factor for which notice has been given exists.’”
Id. at 293 n.23 (quoting § 3592(a), (c)).

       Additionally, the Second Circuit referred expressly to § 3592(c) in interpreting
§ 3593(a), the provision allowing victim-impact statements to be presented as a non-
statutory aggravating factor, as expansive:

       We read [§ 3593(a)] as language of inclusion, not exclusion. It speaks
       to what “may be included.” . . . see also 18 U.S.C. § 3592(c) (“The jury,
       or if there is no jury, the court, may consider whether any other
       aggravating factor for which notice has been given exists.”). The final
       phrase (“and any other relevant information”), though ambiguous, is
       read most naturally as a catch-all for what may be deemed “relevant” by
       the court.

United States v. Whitten, 610 F.3d 168, 188 (2d Cir. 2010) (internal citations and
alterations omitted). In a different case, the Second Circuit again touched on the
expansiveness of both aggravating and mitigating factors: “the Supreme Court has also
made clear that in order to achieve such ‘heightened reliability[]’ [in imposing the death
sentence,] more evidence, not less, should be admitted on the presence or absence of
aggravating and mitigating factors.” United States v. Fell, 360 F.3d 135, 143 (2d Cir.
2004) (citing Gregg, 428 U.S. at 203–04).
Nos. 02-1386/1461/1570       United States v. Gabrion                             Page 48


        Against this backdrop, § 3592(a) must be read as inclusive. I therefore cannot
agree with the majority’s interpretation of this provision, or with its refusal to address
the “circumstance of the offense” language in § 3592(a)(8). For these reasons, I believe
the district court erred in denying Gabrion’s request to admit evidence relating to the
location of the offense.

        3. Residual Doubt

        Even assuming there is no constitutional right to present a residual-doubt
argument, Gabrion should have been allowed to raise this argument under the FDPA.
It cannot be disputed that the FDPA allows a defendant to proffer evidence of certain
types of residual doubt. For example, a defendant may present evidence that he “was
under unusual and substantial duress, regardless of whether the duress was of such a
degree as to constitute a defense to the charge.” 18 U.S.C. § 3592(a)(2). Similarly, the
FDPA permits evidence that “[t]he defendant’s capacity to appreciate the wrongfulness
of the defendant’s conduct or to conform conduct to the requirements of law was
significantly impaired, regardless of whether the capacity was so impaired as to
constitute a defense to the charge,” and that “the defendant’s participation was
relatively minor, regardless of whether the participation was so minor as to constitute
a defense to the charge.” Id. § 3592(a)(1), (3). The FDPA also allows the defendant
to present evidence that “[t]he defendant committed the offense under severe mental or
emotional disturbance.” Id. § 3592(a)(6).

        Each of these subsections thus allows a reevaluation by the jury during the
penalty phase of the same evidence presented during the guilt phase. And, given that
the penalty phase is under way, this is undoubtedly evidence that the jury found
unpersuasive concerning one of the elements of the offense during the guilt phase. Cf.
Oregon v. Guzek, 546 U.S. 517, 523 (2006) (explaining that a capital defendant did not
have a constitutional right to present new alibi evidence at a resentencing for a prior
conviction, but “to the extent it is evidence he introduced at [the time of the original
trial], he is free to introduce it now, albeit in transcript form”).
Nos. 02-1386/1461/1570            United States v. Gabrion                                           Page 49


         The majority’s conclusion that Gabrion is barred from presenting evidence of
the location of the offense—first because it “was an issue extensively litigated during
the guilt phase of Gabrion’s trial” and second because the jury had already “found
beyond a reasonable doubt that Gabrion killed Timmerman inside the
Forest”—therefore cannot be extended to the FDPA, as the principle that all relitigation
is precluded under the FDPA would not comport with the plain language of the statute.
Maj. Op. at 17. The FDPA expressly permits relitigation of elements of an offense, and
I cannot see any logic in an arbitrary determination that evidence concerning the
location of the offense is one that must be precluded. The district court should have
allowed Gabrion to present residual-doubt evidence under the FDPA.

         Finally, even if the FDPA does not require the court to instruct the jury on this
evidence, Gabrion’s counsel should not have been forbidden from presenting this
argument in closing arguments, an issue left unaddressed by the majority.6 Lockhart
v. McCree, 476 U.S. 162, 181 (1986) (“Such residual doubt has been recognized as an
extremely effective argument for defendants in capital cases.”) (internal quotation
marks omitted); Moore v. Mitchell, 708 F.3d 760, 788 (6th Cir. 2013) (recognizing
residual doubt as a mitigation theory); Webb v. Mitchell, 586 F.3d 383, 394–95 (6th Cir.
2009) (discussing residual-doubt theory raised at mitigation), cert. denied, 130 S. Ct.
2110 (2010); Hawkins v. Coyle, 547 F.3d 540, 548 (6th Cir. 2008) (noting that arguing
residual doubt at mitigation was a “strategy endorsed” by the Supreme Court and the
Ohio Supreme Court at the time of defendant’s trial in 1989), cert. denied, 130 S. Ct.
553 (2009); Scott v. Mitchell, 209 F.3d 854, 881–82 (6th Cir. 2000) (decision by
counsel to pursue residual-doubt theory at mitigation not “objectively unreasonable”),
cert. denied, 531 U.S. 1021 (2000). If such theories are deemed positions pursued by
reasonable counsel, it is difficult to call them now wholly irrelevant to mitigation.




         6
          I agree with Gabrion that the government’s suggestion that Gabrion’s counsel could have made
this argument anyway is absurd in light of the district court’s ruling specifically prohibiting this testimony.
See Supplemental Appellee Br. on Reh’g at 21–22; Supplemental Reply Br. on Reh’g at 12.
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 50


B. Balancing Factors “Beyond a Reasonable Doubt”

       The only relevant question on this issue is whether the jury must determine that
the aggravating factors substantially outweigh the mitigating factors in order for
Gabrion to be sentenced to death. Because I believe that the answer to that question is
“yes,” that determination must be made beyond a reasonable doubt.

       1. Apprendi and the FDPA

       Under Apprendi, “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt.” 530 U.S. at 490. The Supreme Court made clear in Apprendi that
the state’s use of the term “sentence enhancement” had no bearing on the inquiry. Id.
at 476. When “a defendant faces punishment beyond that provided by statute when an
offense is committed under certain circumstances but not others,” those circumstances
that lead to the increase in the authorized penalty must be submitted to a jury and
proven beyond a reasonable doubt. Id. at 484.

       The rule is no different in death-penalty cases. “The dispositive question . . .
is one not of form, but of effect.” Ring v. Arizona, 536 U.S. 584, 602 (2002) (internal
quotation marks omitted). If a finding leads to “an increase in a defendant’s authorized
punishment,” that finding must be found by a jury beyond a reasonable doubt—“no
matter how the State labels it.” Id. For example, because Arizona’s enumerated
aggravating factors are necessary for the imposition of the death penalty, they “operate
as ‘the functional equivalent of an element of a greater offense,’ [and] the Sixth
Amendment requires that they be found by a jury.” Id. at 609 (quoting Apprendi,
530 U.S. at 494 n.19) (internal citation omitted).

       Two years after Ring, the Supreme Court—for a third time—rejected a state’s
attempt to find a linguistic loophole. In Blakely v. Washington, 542 U.S. 296 (2004),
the state argued that the “statutory maximum” for the crime in question was ten years,
and technically under the statute it was. Id. at 303. But the Supreme Court ignored the
state’s labels—because the statute permitted the ten-year maximum only if there were
Nos. 02-1386/1461/1570           United States v. Gabrion                                      Page 51


sufficient reasons to justify the “exceptional sentence,” the true maximum for the
defendant for Apprendi purposes was not ten years. Id. at 304–05. “Whether the
judge’s authority to impose an enhanced sentence depends on finding a specified fact
(as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as
here), it remains the case that the jury’s verdict alone does not authorize the sentence.”
Id. at 305. The first question is therefore not a constitutional question but simply a
statutory one: What does the FDPA require in order to sentence someone to death?

         Although it is true that the FDPA forbids the imposition of the death penalty
unless at least one aggravating factor listed in § 3592 is unanimously found to exist
beyond a reasonable doubt, the death penalty is authorized only if the jury (under the
statute) then decides that “all the aggravating factor or factors found to exist sufficiently
outweigh all the mitigating factor or factors found to exist to justify a sentence of
death.” 18 U.S.C. § 3593(e).7 Before this determination is made, a sentence of death
is simply not an option. Even when there are no mitigating factors, the death penalty
is still not authorized (again, under the statute) unless the jury finds that “the
aggravating factor or factors alone are sufficient to justify a sentence of death.” Id.
Under the plain terms of the FDPA, the district court could not impose the death penalty
solely on the grounds that the jury found an aggravating factor and the requisite intent.
Blakely, 542 U.S. at 305. The statutorily authorized sentence increases to death only
after the jury determines that the aggravating factors sufficiently outweigh the
mitigating factors to justify the sentence of death, and not a moment before.

         The language of § 3591 further supports this interpretation. According to its
terms, a defendant found guilty of an underlying offense “shall be sentenced to death
if, after consideration of the factors set forth in section 3592 in the course of a hearing
held pursuant to section 3593, it is determined that imposition of a sentence of death is
justified.” 18 U.S.C. § 3591(a). Section 3591 thus instructs us in two meaningful ways.
First, § 3591 directs us to § 3593 as a whole rather than to any specific subsection.

         7
           Everyone agrees that § 3593(e) itself states no burden of persuasion on this issue. Some state
statutes, however, do explicitly provide that the jury must find that the aggravators must outweigh the
mitigators beyond a reasonable doubt. Gabrion, 648 F.3d at 326 (6th Cir. 2011).
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 52


Second, § 3591 provides that a court cannot sentence a defendant to death until the jury
determines that death is justified—i.e., after the jury weighs the aggravators and any
mitigators pursuant to § 3593(e).

       This makes the balancing of factors a “fact” for sentencing purposes under the
FDPA. We were clearly instructed in Blakely that “the relevant ‘statutory maximum’
is not the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” 542 U.S at 303–04. Here,
without the balancing, the maximum sentence the judge can impose under the statute
is life in prison. Because the death penalty could not be imposed by a judge under the
FDPA but for the balancing by the jury—and the majority does not offer a colorable
argument otherwise—whether the court calls the jury’s balancing a “finding of fact,”
a “mixed question of law and fact,” or “Mary-Jane” is irrelevant. “When a judge
inflicts punishment that the jury’s verdict alone does not allow, the jury has not found
all the facts which the law makes essential to the punishment, and the judge exceeds his
proper authority.” Id. at 304 (internal quotation marks and citation omitted).

       At the very heart of Apprendi was a rejection of labels as a means of analyzing
constitutional rights. 530 U.S. at 476 (“Merely using the label ‘sentence enhancement’
to describe [one of the procedural safeguards] surely does not provide a principled basis
for treating them differently.”). Because the clear language of the FDPA requires the
jury to conduct this balancing before a defendant can be sentenced to death, the merits
panel correctly held that “a jury’s finding that the aggravating factors outweigh the
mitigating factors is an element of the death penalty and must be found beyond a
reasonable doubt, the same standard constitutionally required for all other findings of
fact and mixed questions of law and fact.” Gabrion, 648 F.3d at 325.

       2. “Death-Eligibility”

       Rather than adhere to the Supreme Court’s directive to look beyond labels, the
majority throws yet another label into the mix. Specifically, the majority contends that
a defendant becomes “death-eligible” the moment that the jury finds a statutory
aggravating factor beyond a reasonable doubt. Maj. Op. at 29, 31. Once “death-
Nos. 02-1386/1461/1570           United States v. Gabrion                                       Page 53


eligibility” attaches, the majority reasons, the jury need not make any additional
findings of fact in order for the defendant to receive a sentence of death. Because this
argument relies on unsupported assumptions and logical leaps, I cannot agree.

         As an initial matter, I find the majority’s analysis as to when “death-eligibility”
would attach to be unsatisfactory. In my view, choosing a point at which a defendant
becomes so-called “death-eligible” under the FDPA other than at the completion of a
§ 3593 hearing is nothing short of arbitrary. The majority’s brief analysis makes no
effort to explain why a defendant would become “death-eligible” upon the jury’s
finding an aggravating factor. Instead, the majority cites Jones v. United States, 527
U.S. 373 (1999), a pre-Apprendi case that does not squarely address the issue, which
in turn cites § 3593(e) for a general proposition.8 Id. at 376–77. But § 3593(e) does
not include the term “death-eligible,” nor does it prescribe that “a death sentence may
not legally be imposed unless at least one aggravating factor is found to exist beyond
a reasonable doubt,” as did the Arizona scheme in Ring. Ring, 536 U.S. at 597 (internal
quotation marks and alteration omitted). Under the FDPA, finding an aggravating
factor beyond a reasonable doubt is one of many prerequisites to imposing the death
penalty; it is not the point of no return.

         I must also note that contrary to the majority’s suggestion, “death-eligibility”
is not the cornerstone of Apprendi. Rather, “death-eligibility” is an ambiguous term,
used in a variety of ways depending on the jurisdiction. The majority makes no attempt
to define this term or explain its importance. This is troubling, given that federal courts
typically use this term as it relates to the FDPA to describe whether a defendant could
ever receive a sentence of death based on his purported conduct, often at the indictment
stage. See, e.g., United States v. Parks, 700 F.3d 775, 778 (6th Cir. 2012) (“In enacting
the FDPA, Congress increased the number of death-eligible offenses in toto.”); United


         8
           The six circuit courts to have addressed this issue thus far mirror the majority’s approach and
are also lacking in any statutory analysis. See Runyon, 707 F.3d at 516; United States v. Fields, 516 F.3d
923, 950 (10th Cir. 2008); United States v. Mitchell, 502 F.3d 931, 993–94 (9th Cir. 2007), cert. denied,
553 U.S. 1094 (2008); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007); United States v. Fields,
483 F.3d 313, 345–46 (5th Cir. 2007), cert. denied, 552 U.S. 1144 (2008); United States v. Purkey, 428
F.3d 738, 750 (8th Cir. 2005).
Nos. 02-1386/1461/1570       United States v. Gabrion                               Page 54


States v. Lawrence, 555 F.3d 254, 264 (6th Cir. 2009) (“Third, if the jury finds both a
death-eligible offense and one or more of the statutory aggravating factors, the jury
considers whether the statutory aggravating factor or factors found to exist, together
with any non-statutory aggravating factors found to exist upon proof beyond a
reasonable doubt, sufficiently outweigh the mitigating factor or factors found to exist,
so as to justify a sentence of death.”). Moreover, there is nothing to support the theory
that a jury ceases to find facts once “death-eligibility” attaches. The majority’s
application of an undefined placeholder avoids engaging in a meaningful Apprendi
analysis and raises more questions than it answers.

        3. Weighing Evidence

        Additionally, I cannot agree with the majority’s contention that weighing
aggravators and mitigators is qualitatively different than finding facts for the purposes
of Apprendi.      Because the jury must weigh the aggravating factors against the
mitigating factors under § 3593(e), the majority surmises, this determination cannot
constitute a finding of fact. Maj. Op. at 30. According to the majority, the type of
decision that has been deemed a finding of fact under Apprendi, such as whether a
defendant was the triggerman, is binary, thus requiring only a response to a simple yes-
or-no question.

        This reasoning, however, misapprehends the function of the jury. Asking a jury
to weigh evidence, in this case evidence that aggravates against evidence that mitigates,
is not unique to the penalty phase of a capital trial. Rather, it is the sole task of a jury
at every stage of every proceeding. Indeed, juries are frequently tasked with reaching
subjective conclusions of great import beyond a reasonable doubt. See United States
v. Gaudin, 515 U.S. 506, 514–15 (1995) (holding jury’s responsibility often includes
applying law to facts when drawing ultimate conclusions such as guilt, but that such
conclusions must still be reached beyond a reasonable doubt).

        When a jury determines whether a homicide was committed in self-defense, for
example, it weighs the evidence presented at trial.          Imagine a trial where the
government presents testimony from eyewitnesses who describe a confrontation
Nos. 02-1386/1461/1570       United States v. Gabrion                             Page 55


between the defendant and the victim. All agree that the defendant shot the victim, and
all give the same general account of the victim’s actions preceding the shooting. The
defendant takes the stand and testifies that he thought the victim was about to shoot him
and therefore shot the victim first, in self-defense. During deliberations, the jury’s
focus would not be on the type of binary yes-or-no fact finding contemplated by the
majority. Rather, the jury would be required to engage in a balancing of the objective
facts with personal and moral judgment to determine if it was reasonable for the
defendant to think that the force he used was necessary to defend himself against an
immediate threat. See Sixth Circuit Criminal Pattern Jury Instructions § 6.06 (2009).
Jurors must deliberate on similar issues when considering a coercion/duress defense.
See id. § 6.05 (2009). These judgments are not binary yes-or-no decisions that depend
on which version of the facts a jury believes. Rather, they entail value-laden balancing
of the sort involved when a jury is asked to recommend life or death. See Brown v.
Sanders, 546 U.S. 212, 216–17 (2006) (“[W]e have held that in all capital cases the
sentencer must be allowed to weigh the facts and circumstances that arguably justify
a death sentence against the defendant’s mitigating evidence.”). “While the question
of innocence or guilt of the offense is essentially a question of fact, the choice between
life imprisonment and capital punishment is both a question of underlying fact and a
matter of reasoned moral judgment.” Sawyer v. Whitley, 505 U.S. 333, 370 (1992)
(Stevens, J., concurring).

       Moreover, the comparison is not altered, as the majority suggests, by the formal
nature of the penalty phase, in which the jury weighs only those facts that it has already
specifically found as a special finding. Rather, the formality of the penalty phase serves
as a safeguard against determinations made arbitrarily or for an impermissible reason,
thus ensuring the constitutionality of the ultimate decision. Woodson, 428 U.S. at 305
(“[T]he penalty of death is qualitatively different from a sentence of imprisonment,
however long. . . . Because of that qualitative difference, there is a corresponding
difference in the need for reliability in the determination that death is the appropriate
punishment in a specific case.”); see also Franklin v. Lynaugh, 487 U.S. 164, 179
(1988) (“Given the awesome power that a sentencing jury must exercise in a capital
Nos. 02-1386/1461/1570      United States v. Gabrion                             Page 56


case, it may be advisable for a State to provide the jury with some framework for
discharging these responsibilities.”); Lockett, 438 U.S. at 604 (“We are satisfied that
this qualitative difference between death and other penalties calls for a greater degree
of reliability when the death sentence is imposed.”); Gregg, 428 U.S. at 192–93 (“The
idea that a jury should be given guidance in its decisionmaking is also hardly a novel
proposition.”).

       As explained in Gregg, “[w]here the sentencing authority is required to specify
the factors it relied upon in reaching its decision, the further safeguard of meaningful
appellate review is available to ensure that death sentences are not imposed capriciously
or in a freakish manner.” 428 U.S. at 195. Without such safeguards, “[a] system could
have standards so vague that they would fail adequately to channel the sentencing
decision patterns of juries with the result that a pattern of arbitrary and capricious
sentencing like that found unconstitutional in Furman could occur.” Id. at 195 n.46.
Much like the requirement that a jury make an individualized determination, the formal
nature of the penalty phase under the FDPA preserves the constitutionality of the death
penalty.

       As with any decision that requires weighing factors—even factors that each
objectively exist beyond a reasonable doubt—the proper weight itself can be difficult
to decide. Is it really so surprising that some would weigh factors and answer
“absolutely” and others would say “I think so?” And when the decision on the line is
whether to take the life of another human, is it really too much to ask that the jury’s
answer be “yes, beyond a reasonable doubt,” and not just “yes, I’m pretty sure?” See
Ring, 536 U.S. at 589 (“Capital defendants, no less than noncapital defendants, we
conclude, are entitled to a jury determination of any fact on which the legislature
conditions an increase in their maximum punishment.”).

       4. Sentencing Under 18 U.S.C. § 3553(a)

       The majority also compares § 3593(e) with § 3553(a), implying that today’s
decision may have an impact on sentencing under § 3553(a). As an initial matter, our
ruling today cannot be incorrect merely because it may reveal potential problems with
Nos. 02-1386/1461/1570      United States v. Gabrion                              Page 57


how courts have interpreted § 3553(a) to date. Our duty is to decide the case and
controversy before us, not future cases or controversies that have not been presented to
us. But more importantly, today’s analysis is not likely to impact how courts apply
§ 3553(a) during noncapital sentencing, as § 3553(a) is distinguishable from § 3593(e)
for purposes of Apprendi. The parsimony provision instructs the judge to impose a
sentence no “greater than necessary” to achieve the remaining sentencing objectives
listed in the statute. Unlike the weighing in § 3593(e), such a finding does not increase
the statutory maximum; indeed, in many ways § 3553(a) is Congress restating the
principle that the statutory maximum is the “maximum [the court] may impose without
any additional findings.” Blakely, 542 U.S at 303–04.

       Furthermore, even if we could call it a factfinding, “[j]udicial factfinding in the
course of selecting a sentence within the authorized range does not implicate the
indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth
Amendments.” Harris v. United States, 536 U.S. 545, 558 (2002). “[N]othing in [our]
history suggests that it is impermissible for judges to exercise discretion—taking into
consideration various factors relating both to offense and offender—in imposing a
judgment within the range prescribed by statute.” Apprendi, 530 U.S. at 481. The
parsimony provision does not expand or contract the range prescribed by statute, but
merely codifies these principles to reflect Congress’s position on the extent of
discretion federal district judges should have when imposing sentences within the
permissible range. Given these critical distinctions, I cannot agree with the majority’s
conclusion that § 3553(a) and § 3593(e) are indistinguishable for the purposes of
Apprendi.

                                   II. VOIR DIRE

       Gabrion argues that his Sixth and Fourteenth Amendment rights to an impartial
jury were violated by the district court’s biased exclusions of jurors for cause.
Specifically, Gabrion outlines three ways in which these rights were violated: (1) the
district court erred by excluding four jurors who leaned against the death penalty,
(2) the district court erred by not having excluded three jurors who leaned in favor of
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 58


the death penalty, and (3) the district court’s exclusion and inclusion of these jurors
resulted in a venire tilted toward capital punishment. The majority deems each of these
arguments meritless in light of the broad discretion afforded to the district court when
selecting a jury. Because I believe that the district court improperly excluded two
jurors, which resulted in a venire tilted in favor of capital punishment, I cannot agree.

A. Exclusion of Anti-Death-Penalty Jurors

        Gabrion argues that his death sentence is unconstitutional based on the
exclusion of four death-qualified jurors who were improperly excluded from the venire:
Abrahams, Donahey, Hemmeke, and Groves. The majority rejects this argument,
highlighting the discretion a district court holds in selecting a jury. The voir-dire
transcript demonstrates, however, that both Abrahams and Donahey each clearly stated
multiple times that despite their personal misgivings about the death penalty, they
would be able to follow the instructions of the district court and follow their oaths. This
is all the law requires.

        The government faces a significant burden when it wishes to remove a juror for
cause, for its “power to exclude for cause jurors from capital juries does not extend
beyond its interest in removing those jurors who would frustrate the State’s legitimate
interest in administering constitutional capital sentencing schemes by not following
their oaths.” Gray v. Mississippi, 481 U.S. 648, 658 (1987). When the government
seeks to exclude a juror for bias, it “must demonstrate, through questioning, that the
potential juror lacks impartiality. It is then the trial judge’s duty to determine whether
the challenge is proper.” Morgan v. Illinois, 504 U.S. 719, 733 (1992) (internal
quotation marks and emphasis omitted). Quite simply, I do not believe the government
established a lack of impartiality here.

        When a juror is excluded improperly for cause on the basis that she opposes the
death penalty, the sentence of death is rendered unconstitutional. Adams v. Texas, 448
U.S. 38, 51 (1980) (“Accordingly, the Constitution disentitles the State to execute a
sentence of death imposed by a jury from which such prospective jurors have been
excluded.”). Because I believe that the district court erred in excluding Abrahams and
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 59


Donahey, both of whom stated clearly that they could put their personal beliefs to the
side in order to follow the instructions of the court, I would vacate Gabrion’s sentence.

        1. Abrahams

        The district court explained its reasoning for excluding Abrahams as follows:
“Well, I think there are two issues here. He can consider both. . . . Would he—not
would he, could he impose either one? And when it says could he impose either one,
on the government’s question and on my question he said I don’t know. Now he says
he’ll consider it.” 2 Jury Trial 562:19–24. The district court then reasoned that
although “normally I would say if he says I’ll consider both of them, that’s normally
all right. But if it’s preceded with I don’t know if I could do it and then I ask him,
Could you, and he says I don’t know, I think it’s grounds for excusal.” Id. at 563:2–6.
The district court coined this a “close question,” but ultimately determined “it’s grounds
for excusal because of his hesitancy and the honesty with which he’s approached it.”
Id. at 563:6–8.

        As an initial matter, “[i]t is important to remember that not all who oppose the
death penalty are subject to removal for cause in capital cases; those who firmly believe
that the death penalty is unjust may nevertheless serve as jurors in capital cases so long
as they state clearly that they are willing to temporarily set aside their own beliefs in
deference to the rule of law.” Lockhart v. McCree, 476 U.S. 162, 176 (1986). “[I]t
cannot be assumed that a juror who describes himself as having conscientious or
religious scruples against the infliction of the death penalty or against its infliction in
a proper case thereby affirms that he could never vote in favor of it or that he would not
consider doing so in the case before him.” Witherspoon v. Illinois, 391 U.S. 510, 515
n.9 (1968) (internal quotation marks and citation omitted); see also id. at 529 (Douglas,
J., concurring) (“Those with scruples against capital punishment can try the case
according to the law and the evidence, because the law does not contain the inexorable
command of an eye for an eye.”) (internal quotation marks omitted).

        Taken in context, Abrahams’s hesitancy clearly relates to how he would weigh
the aggravators and mitigators in order to reach an ultimate decision, not to whether he
Nos. 02-1386/1461/1570      United States v. Gabrion                                  Page 60


would be able to engage in such a task. And it is clear that the former does not reflect
the sort of partiality that requires excusal for cause. Abrahams’s hesitancy is first seen
during the initial line of questioning:

       THE COURT: Could you do that if the instructions of this Court and
       the law dictated that?
       JUROR ABRAHAMS: Um, I believe on my questionnaire that I said
       that I would be fair in a judgment of the death sentence. But in the past
       couple of weeks I’m not really unclear, but I’m more unsure of if I could
       outweigh the sentence of life imprisonment over death or vice versa.
       It’s just something that I’ve never had to deal with or—excuse me, so
       it’s—
       THE COURT: Right. That can be appreciated. I think the inquiry at
       this point is if you made up your mind or if you would follow the facts
       and follow the law—
       JUROR ABRAHAMS: Yes.
       THE COURT: —and be able to fairly, impartially impose either one of
       them if the evidence and the law dictated that.
       JUROR ABRAHAMS: Yes, sir.

2 Jury Trial 554:3–19. Gabrion’s attorney then asked Abrahams similar questions:

       MR. STEBBINS: . . . Now, do you think you can consider these options
       at that point, listen to this evidence and fairly consider whether the death
       sentence is appropriate or a life sentence is appropriate?
       JUROR ABRAHAMS: At this point, yes, I do believe that I could.
       MR. STEBBINS: You could consider that?
       JUROR ABRAHAMS: I could consider it, yes.
       MR. STEBBINS: And you don’t think anything in your thoughts
       you’ve had, these concerns you’ve had over the last couple of weeks
       will prevent you from making that determination?
       JUROR ABRAHAMS: I don’t think it would prevent me, no, sir. It’s
       just a consideration that I wish to be heard. That’s all I had.

Id. at 560:6–20. When the district court reconvened its questioning, Abrahams did not
waffle as to his ability to impose a death sentence, as described by the majority. Rather,
Nos. 02-1386/1461/1570            United States v. Gabrion                                        Page 61


Abrahams stated clearly for a third time that imposing the death sentence is something
he “could seriously consider if the facts and circumstances were such that it was open
for consideration.” Id. at 561:6–9. Abrahams then repeated his earlier hesitancy as to
which he would choose:

         That’s what I’m trying to express, that I don’t know for sure that I could
         go through the whole trial and, for instance, them prove him guilty and
         then go through the second part of the trial for sentencing, that I could
         say life imprisonment or death. I honestly don’t know. That’s the point
         that I was trying to get across. Very unsure of what I could say yes or
         no to, either way.

Id. at 561:15–22.9 Here, Abrahams is not stating that a personal viewpoint would
preclude him from finding that death is justified. Rather, he is expressing that he has
no preconceived notion of how he would react to this unique process, and “neither
nervousness, emotional involvement, nor inability to deny or confirm any effect
whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to
follow the court’s instructions and obey their oaths, regardless of their feelings about
the death penalty.” Adams, 448 U.S. at 50.

         Concerning the statements to which the majority directs us—Abrahams’s
admission that his moral values would be on his mind while deliberating as to life or
death—the Supreme Court has stated that the government cannot “exclude jurors whose
only fault was to take their responsibilities with special seriousness or to acknowledge
honestly that they might or might not be affected.” Id. at 50–51. If a juror states
consistently that he would be able to apply the law to the facts notwithstanding his
moral beliefs, he cannot be excluded for cause. Abrahams did not resist rehabilitation,
as suggested by the majority; he simply continued to express hesitancy as to the great
responsibility he would be undertaking as a juror, which has never been sufficient to
require exclusion. The majority’s stated reasons for upholding the district court’s


         9
             It is important to note that unlike with juror Groves, whose exclusion Gabrion also challenges,
the district court did not make note of any nonverbal indications that Abrahams would be unable to
consider imposing a sentence of death. When giving his reasoning regarding Groves, the district court
stated “I think in the context of his saying, Yes, I could consider it, and he winces and bobs and weaves
a little bit when he does that, I think he’s really not qualified.” 2 Jury Trial 385:4–7.
Nos. 02-1386/1461/1570      United States v. Gabrion                                Page 62


exclusion of Abrahams are thus contrary to binding authority and the plain language of
the voir-dire transcript.

        2. Donahey

        The majority employs a similar approach with respect to Donahey, claiming that
he equivocated and rendered ambiguous answers. However, I cannot agree. Donahey
opposed the imposition of the death penalty on a personal level, yet was adamant in
stating that he would temporarily yield these beliefs to fulfill his duty as a juror. When
initially questioned by the court as to his moral views regarding the death penalty,
Donahey responded as follows:

        THE COURT: No, I understand. And so the question comes down to
        whether you could impose it or whether you would find yourself unable
        to.
        JUROR DONAHEY: Okay. So I interpreted that as whether—I mean,
        if it was up to me.
        THE COURT: Oh, okay.
        JUROR DONAHEY: You know what I’m saying? That’s the way I
        interpreted it. So you’re saying that if all the factors came out in the
        mitigating, because the law says it’s a possibility, could somebody find
        it. And I suppose, as personally distasteful as it would be, I would have
        to go with it.
        THE COURT: Which means?
        JUROR DONAHEY: I would follow what the law would tell me to do
        on that.

1 Jury Trial 93:18—94:7. Donahey thus falls squarely within the category of jurors
described in Lockhart as being death-qualified—those who personally oppose the death
penalty yet affirm their ability to put their views to the side in order to adhere to their
oath as a juror. 476 U.S. at 176.

        The majority insists, however, that Donahey equivocated, pointing to a
statement where he describes his personal views on the death penalty, as is made
evident when placed in context:
Nos. 02-1386/1461/1570           United States v. Gabrion                                      Page 63


         MR. DAVIS: In answering the question that was put to you by the
         questionnaire, you said that the death penalty was morally wrong.
         JUROR DONAHEY: Um-hum.
         MR. DAVIS: Could you explain that?
         JUROR DONAHEY: Well, as I expressed, if we’re trying to have a
         society that says, you know, killing is wrong, yet we invoke that as a
         punishment, there seems to be something contradictory there. I mean,
         our laws and stuff are reflective of our morals, and then there’s a
         contradiction there. And then particularly in the recent past there seems
         to be with now DNA testing more and more verdicts that have been
         overturned. People that have been sentenced to die were cleared
         eventually. And to take life because they took someone else’s life, you
         know, somewhere down inside me, it just doesn’t seem right, you know.
                 So maybe when I say morally, maybe I could have expressed it
         a little better. But I wasn’t looking at—you know, I was filling
         something out, you know, basically to get it done with and not writing
         some kind of, you know, paper on it, you know.

1 Jury Trial 94:16–95:11.10 Later in the same colloquy, Donahey responded to a
question that his views on the death penalty might interfere with his ability to make a
judgment. Id. at 95:16–20. Donahey expanded on this answer in response to a question
by Gabrion’s attorney, stating that the decision “would be very difficult” but that he
“could consider” the death penalty. Id. at 98:24–99:8.

         The majority and the district court both contend that Donahey equivocated as
to whether he could consider imposing a sentence of death. Id. at 100:21–24. My
review of the voir-dire testimony, however, reveals no evidence of this purported
equivocation. Donahey expressed that he personally opposed the death penalty, but
stated that as a juror he would follow the instructions of the court, “as personally




         10
             It is clear from the transcript that Donahey was confused by the wording of this question on
the questionnaire. In both passages, Donahey explains his initial confusion when he filled out the
questionnaire, as he thought it was asking about his personal beliefs. Once the judge clarified that the
critical issue is whether he could follow his oath despite those beliefs, Donahey stated clearly that he
would be able to follow instructions and place his personal beliefs aside. The selective quotations cited
by the majority do not reflect this dynamic of Donahey’s voir dire.
Nos. 02-1386/1461/1570           United States v. Gabrion                                        Page 64


distasteful as it would be.” Id. at 94:2–3.11 Moreover, as evidenced by the above-
quoted testimony, the district court’s statement that Donahey “was unable to say that
he would be able to” consider the death penalty is plainly incorrect. Id. at 101:1–2.

         Additionally, I find it contradictory for the majority to disregard Donahey’s
statement that he would be able to consider imposing the death sentence because “that
answer came in response to a leading question,” yet rely heavily on “a leading question
from the prosecutor, that his views about the death penalty ‘might’ interfere with his
‘ability to make a judgment as to sentencing.’” Maj. Op. at 22–24. Finally, I am
unclear as to why any purported ambiguity in Donahey’s testimony should play a role
in the analysis, given that this was not a reason proffered by the district court for
excluding Donahey. The majority does not explain why this should be considered by
this court, nor does it explain how Donahey’s testimony was in fact ambiguous.
Ultimately, Donahey was improperly excluded by the district court as a result of his
personal opposition to the death penalty.

         3. Groves

         Although I agree with the majority that the first two reasons given by the district
court were sufficient to exclude Groves, I do not agree with the district court’s
insinuation that Groves could have been excluded based on his view that the death
penalty should be reserved for extreme cases, such as those involving mass murders.
2 Jury Trial 385:1–2. The Supreme Court has stated expressly that jurors “cannot be
excluded for cause simply because they indicate that there are some kinds of cases in
which they would refuse to recommend capital punishment.” Witherspoon, 391 U.S.
at 522 n.21; see also Gregg, 428 U.S. at 182 (“Rather, the reluctance of juries in many
cases to impose the sentence may well reflect the humane feeling that this most


         11
            Comparing Donahey’s statements with those made by Hemmeke, another juror whose exclusion
Gabrion challenges, is instructive. Unlike Donahey, Hemmeke responded on his questionnaire that he
“could never, regardless of the facts and circumstances, return a verdict which imposed the death penalty.”
2 Jury Trial 509:24–510:1. Further contrary to Donahey, Hemmeke answered the district court’s initial
inquiry as to whether he could consider imposing a sentence of death by stating, “I’m pretty set in the no
death penalty.” Id. at 511:1. These kinds of statements, that go to one’s ability to consider imposing the
death penalty, differ vastly from those made by Donahey, who established that although he personally
opposed capital punishment, he would put those views aside for the purposes of deliberations.
Nos. 02-1386/1461/1570      United States v. Gabrion                               Page 65


irrevocable of sanctions should be reserved for a small number of extreme cases.”).
This is because “a prospective juror cannot be expected to say in advance of trial
whether he would in fact vote for the extreme penalty in the case before him.” Id.

B. Venire Tilted in Favor of Capital Punishment

        Contrary to the majority’s assertion, Gabrion has identified a constitutional basis
for his claim that the jury-selection process was lopsided: “a criminal defendant has the
right to an impartial jury drawn from a venire that has not been tilted in favor of capital
punishment by selective prosecutorial challenges for cause.” Uttecht v. Brown, 551
U.S. 1, 9 (2007). Because the district court improperly excluded jurors based on their
personal beliefs on the death penalty, I believe the venire in Gabrion’s case was tilted
in favor of capital punishment. I would vacate Gabrion’s death sentence on this ground
for the reasons stated above.

                                 III. CONCLUSION

        For all of these reasons, I respectfully dissent. I would vacate Gabrion’s
sentence of death and remand for a new penalty hearing.
