     07-1320-cr
     United States v. Wilson


 1                       UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2009
 6
 7
 8      (Argued: November 5, 2009             Decided: June 30, 2010)
 9
10                              Docket No. 07-1320-cr
11
12   - - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                     Appellee,
17
18               - v.-
19
20   MICHAEL WHITTEN, PARIS BULLOCK, ANGEL
21   RODRIGUEZ, also known as Ice, JAMAL BROWN,           07-1320-cr
22   also known as Mal,
23
24                     Defendants,
25
26   RONELL WILSON, also known as Rated R,
27
28                     Defendant-Appellant.
29
30   - - - - - - - - - - - - - - - - - - - -x
31

32         Before:             JACOBS, Chief Judge, MINER, and
33                             LIVINGSTON, Circuit Judges.
34
35         Ronell Wilson murdered two undercover police detectives

36   who were posing as gun buyers.         Wilson appeals from a

37   judgment of conviction and a sentence of death entered on

38   March 29, 2007, in the United States District Court for the
1    Eastern District of New York (Garaufis, J.).   Wilson appeals

2    on twelve grounds (some with subparts), among them that: the

3    evidence was insufficient to support a finding under the

4    Violent Crimes in Aid of Racketeering statute, 18 U.S.C. §

5    1959, that Wilson acted to maintain or increase his position

6    in a racketeering enterprise; and the district court abused

7    its discretion in cutting off recross-examination that had

8    bearing on whether Wilson shot in perceived self-defense

9    because he thought his victims were about to rob him.    We

10   affirm as to those claims and therefore affirm the

11   convictions.

12       We likewise affirm the district court’s rejection of

13   Wilson’s arguments that: voir dire was unfairly biased and

14   constitutionally inadequate; testimony in the penalty phase

15   exceeded what is permissible under the Constitution and the

16   Federal Death Penalty Act, and required an additional

17   corrective charge; and a fellow inmate was acting as a

18   government agent in eliciting admissions from Wilson.

19       However, we vacate the death sentences, and remand,

20   because two arguments made to the jury by the prosecution--

21   both bearing on the critical issues of remorse, acceptance

22   of responsibility, and future dangerousness--impaired



                                  2
1    Wilson’s constitutional rights.    The government argued: [i]

2    that Wilson put the government to its proof of guilt rather

3    than plead guilty; and [ii] that Wilson’s allocution of

4    remorse should be discredited because he failed to testify

5    notwithstanding the fact that “ [t]he path for that witness

6    stand has never been blocked for Mr. Wilson.”    As to the

7    first argument, although a guilty plea may properly be

8    considered to support a sentence mitigation for acceptance

9    of responsibility, the Sixth Amendment is violated when

10   failure to plead guilty is treated as an aggravating

11   circumstance.   As to the second, it is a fair argument for

12   the prosecution to say that an allocution of remorse is

13   unsworn and uncrossed, but the Fifth Amendment is violated

14   when the defendant is denied a charge that limits the Fifth

15   Amendment waiver to that which is said in the allocution and

16   the jury is invited to consider more generally that the

17   defendant declined to testify.    These constitutional

18   violations were not harmless beyond a reasonable doubt.

19       Accordingly, we vacate the death sentences and remand

20   for further proceedings.

21       Judge Livingston dissents in part in a separate

22   opinion.


                                   3
 1                                 BEVERLY VAN NESS, New York, New
 2                                 York; BARRY J. FISHER, Saratoga
 3                                 Springs, New York, for
 4                                 Defendant-Appellant.
 5
 6                                 Benton J. Campbell, United
 7                                 States Attorney, Eastern
 8                                 District of New York, Brooklyn,
 9                                 New York; MORRIS J. FODEMAN,
10                                 DAVID BITKOWER (Peter A.
11                                 Norling, Jason A. Jones, Zainab
12                                 Ahmad, on the brief), Assistant
13                                 United States Attorneys, Eastern
14                                 District of New York, Brooklyn,
15                                 New York; Jeffrey B. Kahan (on
16                                 the brief), United States
17                                 Department of Justice Capital
18                                 Case Unit, Washington, D.C., for
19                                 Appellee.
20
21   DENNIS JACOBS, Chief Judge:
22
23       Ronell Wilson murdered two undercover police detectives

24   who were posing as gun buyers.     Wilson appeals from a

25   judgment of conviction and a sentence of death entered on

26   March 29, 2007, in the United States District Court for the

27   Eastern District of New York (Garaufis, J.).     Wilson appeals

28   on twelve grounds (some with subparts), among them that: the

29   evidence was insufficient to support a finding under the

30   Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18

31   U.S.C. § 1959, that Wilson acted to maintain or increase his

32   position in a racketeering enterprise; and the district

33   court abused its discretion in cutting off recross-


                                    4
1    examination that had bearing on whether Wilson shot in

2    perceived self-defense because he thought his victims were

3    about to rob him.   We affirm as to those claims and

4    therefore affirm the convictions.

5        We likewise affirm the district court’s rejection of

6    Wilson’s arguments that: voir dire was unfairly biased and

7    constitutionally inadequate; testimony in the penalty phase

8    exceeded what is permissible under the Constitution and the

9    Federal Death Penalty Act, and required an additional

10   corrective charge; and a fellow inmate was acting as a

11   government agent in eliciting admissions from Wilson.

12       However, we vacate the death sentences, and remand,

13   because two arguments made to the jury by the prosecution--

14   both bearing on the critical issues of remorse, acceptance

15   of responsibility, and future dangerousness--impaired

16   Wilson’s constitutional rights.     The government argued: [i]

17   that Wilson put the government to its proof of guilt rather

18   than plead guilty; and [ii] that Wilson’s allocution of

19   remorse should be discredited because he failed to testify

20   notwithstanding the fact that “ [t]he path for that witness

21   stand has never been blocked for Mr. Wilson.”     As to the

22   first argument, although a guilty plea may properly be



                                   5
1    considered to support a sentence mitigation for acceptance

2    of responsibility, the Sixth Amendment is violated when

3    failure to plead guilty is treated as an aggravating

4    circumstance.   As to the second, it is a fair argument for

5    the prosecution to say that an allocution of remorse is

6    unsworn and uncrossed, but the Fifth Amendment is violated

7    when the defendant is denied a charge that limits the Fifth

8    Amendment waiver to that which is said in the allocution and

9    the jury is invited to consider more generally that the

10   defendant declined to testify.       These constitutional

11   violations were not harmless beyond a reasonable doubt.

12       Accordingly, we vacate the death sentences and remand

13   for further proceedings. 1

14

15                                BACKGROUND

16       Wilson was convicted on five capital counts: two counts

17   of murder in aid of racketeering under VICAR (18 U.S.C. §

18   1959(a)(1)), two counts of causing a death through the use

19   of a firearm (18 U.S.C. § 924(j)), and one count of



          1
           There is no merit to Wilson’s argument that the case
     need be remanded to a different district court judge. See
     United States v. Demott, 513 F.3d 55, 59 (2d Cir. 2008) (per
     curiam).
                                      6
1    carjacking with death resulting (18 U.S.C. § 2119(3)).     He

2    was also convicted on five non-capital counts.   At a

3    separate penalty phase, the same jury unanimously voted to

4    sentence Wilson to death on all five capital counts.

5        Eight of the convictions (including all five capital

6    counts) stem from a March 10, 2003 robbery and murder of New

7    York Police Department detectives James Nemorin and Rodney

8    Andrews.   The other two counts (a robbery conspiracy and the

9    use of a firearm) stem from a May 2, 2002 aborted robbery.

10   Wilson was arrested on March 12, 2003, two days after the

11   murders.

12       At trial, the defense contended that the triggerman was

13   Jesse Jacobus, a fellow gang member who was with Wilson

14   during the murders and who testified against him at trial;

15   but Wilson does not appeal the jury’s finding that he,

16   Wilson (and not Jacobus), fired the shots.

17       The district court had jurisdiction to hear the case

18   under 18 U.S.C. § 3231.   This Court has jurisdiction over an

19   appeal from a final order of the district court under 28

20   U.S.C. § 1291.

21

22                                 A


                                   7
1        The Stapleton Crew was a violent gang that operated in

2    Staten Island from approximately 1999 until it was disbanded

3    by the arrest of the principals following the murders

4    committed by Wilson.     The gang was involved in robberies and

5    the sale of drugs.     The core members of this gang were

6    Michael Whitten, Paris Bullock, Omar Green, Hason Taylor,

7    and Rashun Cann; associated gang members included Mitchell

8    Diaz, Jacobus, and the appellant, Wilson. 2

9        The Stapleton Crew collectively owned several guns that

10   were available for the members’ use.     One week before the

11   murders, on March 3, 2003, Whitten and Green sold one of

12   these guns, a .357 caliber revolver, for $780.     The buyer in

13   that transaction was actually Detective Nemorin working

14   undercover.   He made no arrest at that time because he

15   wanted to further infiltrate the gun-sale operation and make

16   additional arrests later.     Accordingly, he arranged to

17   purchase another of the Stapleton Crew’s guns the following

18   week.




             2
            The government called Diaz and Jacobus as cooperating
     witnesses in the guilt phase of this case to testify about
     the criminal activities of the gang and the murders of the
     police officers. Both these men had pleaded guilty to
     felony murder in state court and would be sentenced to 15-25
     years to life in prison.
                                     8
1

2                                   B

3        Detective Andrews volunteered to accompany Detective

4    Nemorin as backup at the second transaction.   They were

5    accompanied at a distance by officers on foot and in nearby

6    cars; one of the putative gun buyers wore a fake beeper that

7    would broadcast audio to officers conducting surveillance.

8        In advance of the March 10 meeting, members of the

9    Stapleton Crew decided to rob the buyer of the $1,200 price

10   rather than deliver the gun.   The discussion among Wilson,

11   Diaz, Bullock, Whitten, and Green in Green’s apartment was

12   as follows:   Jacobus would assist Wilson; Wilson would be

13   armed with one of the communal guns, which (Wilson was told)

14   he might have to use; Green or Whitten raised the

15   possibility that Detective Nemorin might be a police officer

16   or a thief attempting to rob the Stapleton Crew; Wilson

17   committed to go through with the robbery anyway if Green and

18   Whitten wanted him to do so; Green and Whitten then approved

19   of the planned robbery.

20       On the night of March 10, 2003, Wilson and Jacobus got

21   into the back seat of the undercovers’ car (Wilson sat

22   behind the driver, Detective Nemorin).   Wilson directed the


                                    9
1    driver to another neighborhood in Staten Island, where

2    Wilson got out, met Diaz, and picked up the .44 caliber

3    pistol ultimately used in the murders.       Wilson and Diaz

4    discussed what both recognized to be an undercover police

5    presence in the area, although Diaz stated that he told

6    Wilson he did not believe the police were deployed on their

7    account.     Wilson, now armed, rejoined the others in the car,

8    and directed the driver to another neighborhood (where the

9    planned robbery would take place).

10          When they arrived, Wilson briefly stepped out of the

11   car.    When he got back in, Wilson shot Detective Andrews in

12   the head.     Wilson then pointed the gun at Detective Nemorin

13   and said, “Where’s the shit at?       Where’s the shit at?

14   Where’s the money?     Where’s the shit at?”    Jacobus testified

15   that Detective Nemorin “was pleading for his life” before

16   Wilson shot him in the head.

17          Wilson and Jacobus left the car with the victims’

18   bodies inside, walked quickly to the nearby apartment of

19   Wilson’s stepfather, entered with Wilson’s key, and stashed

20   the murder weapon in a closet.       Wilson and Jacobus then

21   returned to the car and pulled the bodies out to search them

22   for money.     Leaving the bodies in the street, they drove off



                                     10
1    in the bloodstained car.   As they drove away from the crime

2    scene, Jacobus asked Wilson why he shot the men; Wilson

3    responded, “I don’t give a fuck about nobody.”

4        Wilson and Jacobus parked the car near the Stapleton

5    Projects and began to search it for money.   Wilson found a

6    gun under the front passenger seat and said, “[t]hey was

7    going to get us before we got them.”   Jacobus testified that

8    Wilson had not previously suggested that the killings were

9    preemptive.   Wilson kept the gun he took from the car.

10       As Wilson and Jacobus walked back to the projects,

11   Wilson yelled something to a passing police car.    The police

12   car stopped and the officers got out; Wilson and Jacobus

13   ran, and the officers pursued; Jacobus was arrested a short

14   distance away.

15       Wilson escaped into the Stapleton Projects, and went to

16   Green’s apartment, where Green was with Diaz.    Diaz

17   testified that Wilson was asked what happened, and Wilson

18   responded that he, Wilson, had “popped” the buyers.     Diaz

19   recalled that Wilson said other things as well, but in a

20   ruling contested on this appeal, questioning of Diaz on that

21   issue was terminated.   Wilson left the apartment with Green

22   and Diaz.



                                   11
1        Wilson was arrested two days later in Brooklyn.    In his

2    pocket the arresting officers found (among other things) rap

3    lyrics he had written that arguably describe the murders.

4

5                                  C

6        In March 2003, Wilson was indicted in state court for

7    first-degree murder, and the district attorney filed notice

8    of intent to seek the death penalty.    In June 2004, the New

9    York Court of Appeals ruled that the state’s death penalty

10   statute violated the New York Constitution.

11       The federal government then took up the prosecution.

12   On November 17, 2004, a federal grand jury indicted Wilson,

13   Bullock, Whitten, and two other members of the Stapleton

14   Crew.   Wilson’s four co-defendants each pled guilty to

15   racketeering and narcotics charges, and have been imprisoned

16   for a term of years.

17       A notice of intent to seek the death penalty was filed

18   in federal court on August 2, 2005.    In September 2006, the

19   grand jury approved a superseding indictment that served as

20   the trial indictment, charging Wilson on five capital counts

21   (two charges of murder in aid of racketeering, two charges

22   of firearm murders during a robbery, and one charge of


                                   12
1    carjacking murder) as well as five non-capital counts (three

2    of which stem from the March 10, 2003 robbery and two from a

3    previous aborted robbery).

4        The government gave notice that it was seeking the

5    death penalty on the basis of six aggravating factors.        The

6    two statutory aggravating factors were [i] that he committed

7    the murders in the expectation of the receipt of something

8    of pecuniary value and [ii] that he intentionally killed

9    more than one person in a single criminal episode.        See 18

10   U.S.C. § 3592(c)(8), (c)(16).        The non-statutory aggravating

11   factors were [iii] that the victims were law enforcement

12   officers murdered during their official duties, [iv] that

13   Wilson faced contemporaneous convictions for serious acts of

14   violence, [v] that Wilson was a continuing danger to others,

15   and [vi] that the victims’ deaths impacted survivors.        See

16   18 U.S.C. § 3593(a)(2).   On appeal, Wilson argues that the

17   victim impact evidence should have been limited to family,

18   and that in any event he was prejudiced by the emotional

19   content of the victim impact testimony.

20       Approximately 600 potential jurors were assembled in

21   September 2006 and filled out a questionnaire.        Individual

22   voir dire of approximately 260 potential jurors began in



                                     13
1    October 2006 and ended on November 16, 2006, during which

2    time the parties submitted and objected to proposed written

3    questions for the court to pose.   After voir dire, the

4    defense moved to discharge all twelve seated jurors; the

5    motion was denied.   On appeal, Wilson argues that the voir

6    dire was biased to favor the prosecution and

7    unconstitutionally omitted a critical inquiry--the

8    willingness of the jury to consider childhood deprivation as

9    a mitigator.

10       At the guilt phase of trial, the government largely

11   proved the case set out above in connection with the March

12   10, 2003 double homicide.   Wilson argues on appeal that the

13   trial evidence did not sufficiently prove that he killed for

14   pecuniary gain or for position in the gang, an element of

15   murder in aid of a racketeering activity.   On December 20,

16   2006, the jury returned guilty verdicts on all ten counts

17   against Wilson.

18

19                                 D

20       At the penalty phase of the trial the government relied

21   on six aggravating factors to justify a sentence of death.

22   The two factors expressly listed in the statute had been the


                                   14
1    subject of evidence in the guilt phase: killing for

2    pecuniary gain and killing multiple people in a single

3    incident.   See 18 U.S.C. § 3592(c)(8), (c)(16).   Of the four

4    non-statutory factors, two had been the subject of evidence

5    in the guilt phase: killing law enforcement officers in the

6    course of duty and contemporaneous convictions for serious

7    acts of violence (the earlier aborted robbery).    The

8    government’s case at sentencing was therefore focused on two

9    (non-statutory) aggravating factors: victim impact and

10   future dangerousness.

11       The government’s victim impact evidence consisted of:

12   five witnesses who testified primarily about Detective

13   Andrews (his widow, sister-in-law, son, cousin, and a friend

14   in the police department); five witnesses who testified

15   primarily about Detective Nemorin (his widow, mother-in-law,

16   sister, former supervisor, and a friend in the police

17   department); 41 photos of the detectives as they were in

18   life; and an excerpt from a documentary film (sponsored by

19   one of the police witnesses) in which Detective Nemorin

20   discussed his job as an undercover police officer.       Wilson

21   objected to much of this evidence on a number of grounds.

22       To show future dangerousness, the government adduced



                                   15
1    Wilson’s record of increasingly serious offenses, starting

2    at age 11.   The offenses included robberies and assaults.

3    The victim of an assault committed when Wilson was 19 years

4    old required 300 stitches.    Between ages 15 and 17, Wilson

5    was confined to a maximum security juvenile facility for

6    robbery; at 17, he entered Rikers Island for one year.

7    Wilson murdered Detective Andrews and Detective Nemorin when

8    he was 20 years old.   The prosecution also cited a long

9    disciplinary record of prison offenses.    Moreover, the

10   prosecution established that Wilson was a member of the

11   Bloods gang, stayed a member while in prison, and had (on at

12   least two occasions) told fellow gang members to “pop off”

13   (i.e., attack the guards).

14       To testify about the Bloods’ structure and

15   organization, and how acts of violence move a member up

16   within the gang hierarchy, the government put on a

17   cooperating witness, Shabucalik Geralds, a former Bloods

18   member who was still to some extent affiliated with the gang

19   at the time he testified.    Geralds, who encountered Wilson

20   in prison while Wilson was detained following the murders,

21   also testified to statements made by Wilson.    The defense

22   argues on appeal that Geralds’s testimony about the Bloods



                                    16
1    was unreliable opinion testimony lacking a foundation of

2    personal knowledge and that Geralds was a government agent

3    when he elicited information from Wilson.

4        Wilson put on an expert witness to refute the idea that

5    he would be a danger in prison.    Donald Romine, a former

6    Bureau of Prisons supervisor, testified that prisons have

7    many effective controls in place to prevent violence, that

8    Wilson’s prison disciplinary record was unremarkable, and

9    that the Bloods gang does not present a particularly high

10   risk within the federal prison population.    On cross-

11   examination, the prosecution elicited testimony from Romine

12   about the internal workings of the Bloods, including that

13   acts of violence could lead to promotion within their ranks.

14       Wilson’s affirmative case in the sentencing phase

15   focused on mitigating factors relating to his Dickensian

16   upbringing.   His father was largely absent; his mother was a

17   drug addict; and he lived in poverty either with them or

18   with other relatives.   State child services intervened on

19   several occasions.   Wilson lived for a time with his

20   grandmother in a three-bedroom apartment in the Stapleton

21   Projects, along with twelve other people.    When Wilson was

22   six years old, he was hospitalized three times for



                                   17
1    psychiatric difficulties, including suicidal tendencies.

2    Prior to his hospitalizations, child services had taken him

3    away from his mother, and given him over to his aunt.

4    Wilson exhibited both sadness and aggression at school.       His

5    IQ has been tested in the high 70s.     The defense also called

6    members of Wilson’s family to testify about his loving

7    relationship with them, and how they would suffer if he is

8    executed.

9        The defense received permission for Wilson to read

10   aloud an allocution of remorse, both to support the

11   mitigating factors of remorse and acceptance of

12   responsibility and to counter the prosecution’s aggravating

13   factor of future dangerousness.   The defense argues on

14   appeal that the district court improperly limited the scope

15   of Wilson’s allocution of remorse and that the court’s

16   rulings and the prosecution’s improper arguments on

17   summation ultimately caused the jury to hold against him his

18   allocution of remorse, his exercise of the right to trial,

19   and the fact that he did not testify.

20       The jury unanimously voted to sentence Wilson to death

21   on each of the five capital counts.     The special verdict

22   form reports unanimous findings beyond a reasonable doubt



                                  18
1    that the prosecution established the two statutory

2    aggravating factors and each of the four non-statutory

3    aggravating factors.   Further, the jury unanimously found

4    that 14 mitigation factors were proven by a preponderance of

5    the evidence.   No juror found that Wilson was remorseful or

6    that he took responsibility for his actions.

7        The district court entered judgment on March 29, 2007.

8    Wilson appeals from that judgment.

9

10                             DISCUSSION

11       Two grounds of appeal would impact Wilson’s

12   convictions: whether the evidence was sufficient to support

13   a finding under the VICAR statute that Wilson committed the

14   murders to maintain or increase his position in the gang

15   (see Point I); and whether the district court abused its

16   discretion in curtailing recross-examination that had

17   bearing on whether Wilson shot the detectives out of

18   perceived self-preservation (see Point II).    We affirm as to

19   these claims and, therefore, affirm the convictions.

20       The remaining grounds of appeal challenge the sentence

21   of death.   These include whether the judge’s voir dire

22   inquiries were improperly biased (see Point III); whether


                                   19
1    testimony in the penalty phase exceeded what is permissible

2    under the Constitution and the Federal Death Penalty Act,

3    and required a corrective charge (see Point IV); and whether

4    a fellow inmate was acting as a government agent in

5    eliciting admissions from Wilson (see Point V).    We reject

6    those challenges.

7        However, we vacate the death sentences, and remand, on

8    the grounds that two arguments made by the prosecution, both

9    bearing on the critical issue of Wilson’s claimed remorse

10   and acceptance of responsibility, violated Wilson’s

11   constitutional rights (see Points VI and VII).    These

12   constitutional violations were not harmless beyond a

13   reasonable doubt (see Point VIII), and so we vacate and

14   remand.

15       Wilson further appeals his sentence of death on

16   additional grounds that we can reject without making new law

17   (see Point IX).

18

19                                I

20       Wilson contends that the evidence was insufficient to

21   support a jury finding that he had acted with any of the

22   motives required for conviction under the VICAR statute, and


                                  20
1    that his convictions on Counts One and Two of the indictment

2    must therefore be vacated.

3        The VICAR statute provides, in pertinent part:

 4            Whoever, as consideration for the receipt of, or
 5            as consideration for a promise or agreement to
 6            pay, anything of pecuniary value from an
 7            enterprise engaged in racketeering activity, or
 8            for the purpose of gaining entrance to or
 9            maintaining or increasing position in an
10            enterprise engaged in racketeering activity,
11            murders . . . any individual in violation of the
12            laws of any State or the United States . . . shall
13            be punished-- (1) . . . by death or life
14            imprisonment, or a fine under this title, or both.

15   18 U.S.C. § 1959(a).    The government undertook to show that

16   Wilson acted for pecuniary gain and “for the purpose of

17   . . . maintaining or increasing position” within the

18   Stapleton Crew.   Id.   Because we conclude that there was

19   sufficient evidence to support the finding that Wilson acted

20   for status and position we need not consider pecuniary gain.

21       To show that Wilson acted “for the purpose of . . .

22   maintaining or increasing position,” the prosecution must

23   show [i] “that [Wilson] had a position in the enterprise,”

24   and [ii] “that his general purpose” in murdering Detectives

25   Nemorin and Andrews “was to maintain or increase his

26   position in the enterprise.”    United States v. Concepcion,

27   983 F.2d 369, 381 (2d Cir. 1992).    “[M]aintaining or


                                    21
1    increasing position in the [racketeering] enterprise [need

2    not have been] defendant’s sole or principal motive.”     Id.

3    “[T]he motive [element is] satisfied if the jury could

4    properly infer that the defendant committed his violent

5    crime because he knew it was expected of him by reason of

6    his membership in the enterprise or that he committed it in

7    furtherance of that membership.”   Id.; see also United

8    States v. Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001)

9    (“[S]ection 1959 encompasses violent crimes intended to

10   preserve the defendant’s position in the enterprise or to

11   enhance his reputation and wealth within that enterprise.”

12   (emphasis omitted)).

13       There is evidence that Wilson murdered the two

14   detectives in order to improve his position within the

15   Stapleton Crew.   Jacobus made the connection between

16   violence by Crew members and status within the Crew.     He

17   testified that he himself committed crimes “to raise [his]

18   status” within the group, that Wilson enjoyed “a certain

19   status” due to his reputation for violence, and that violent

20   acts, especially the murder of police officers, would

21   enhance one’s “status” within the Stapleton Crew.    That such

22   conduct would enhance Wilson’s status is confirmed by


                                   22
1    evidence of the Crew’s violent character.    The gang’s

2    members regularly committed violent acts on behalf of the

3    Crew with fellow members.   Members were expected to adopt

4    each other’s grievances, and to react with violence toward

5    offending outsiders, including any member of the rival 456

6    gang.   The Crew possessed firearms for use by its members.

7    Photographs show members of the Stapleton Crew brandishing

8    firearms and displaying gang signs.    Rap lyrics written by a

9    member celebrate the Crew’s rivalry with the 456.    Finally,

10   as Diaz testified, Wilson went from the murders to the

11   apartment of one of the Crew’s leaders, reported to those

12   present that he had “popped” (i.e., shot) his victims, and

13   produced Detective Nemorin’s pistol.

14       In reviewing a conviction for sufficiency of

15   evidentiary support, “the trial evidence is viewed most

16   favorably for the Government” and “all reasonable inferences

17   a jury may have drawn favoring the Government must be

18   credited.”   United States v. Wexler, 522 F.3d 194, 206-07

19   (2d Cir. 2008).   We affirm “‘if any rational trier of fact

20   could have found the essential elements of [the] crime

21   beyond a reasonable doubt.’”    Id. at 207 (emphasis omitted)

22   (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).



                                    23
1        We conclude without difficulty that there is sufficient

2    evidence of Wilson’s “position in the enterprise.”

3    Concepcion, 983 F.2d at 381.    It is a closer question

4    whether Wilson’s “general purpose” in murdering Detectives

5    Nemorin and Andrews was “to maintain or increase his

6    position in the enterprise,” id., but we find sufficiency.

7        First, Jacobus testified that violent acts by members

8    of the Stapleton Crew enhance status within the group. 3

9    This testimony was reinforced by evidence that the Crew

10   encouraged and even glorified violence:    Members regularly



          3
            Wilson contends that Jacobus lacked first-hand
     knowledge of facts sufficient to provide a rational basis
     for his testimony on the status effects of violent acts by
     members of the Stapleton Crew, and that this testimony was
     therefore admitted in violation of Federal Rule of Evidence
     701. See United States v. Rea, 958 F.2d 1206, 1215 (2d Cir.
     1992) (“The rational-basis requirement [of F.R.E. 701] ‘is
     the familiar requirement of first-hand knowledge or
     observation.’” (quoting Fed. R. Evid. 701 Advisory Comm.
     Note on 1972 Proposed Rules)). We disagree. Jacobus
     testified generally to what an act of violence would do for
     a member’s status, not directly to what Wilson knew or
     believed. Cf. United States v. Kaplan, 490 F.3d 110 , 117-19
     (2d Cir. 2007); United States v. Garcia, 291 F.3d 127, 140-
     41 (2d Cir. 2002) . There is ample evidence of Jacobus’s
     many connections to the Stapleton Crew and relationships
     with its members. This foundational evidence supported a
     conclusion that Jacobus had sufficient knowledge about the
     Crew’s culture, hierarchy, and organization to testify to
     the status effects of violence. Admission of his testimony
     was not an abuse of discretion. Cf. Kaplan, 490 F.3d at
     117-19.

                                    24
1    organized and committed violent crimes and retaliatory acts

2    of violence; the Crew made available firearms for such

3    purposes; photographs and rap lyrics reflect group pride in

4    its violent character.

5        Second, there is evidence that the murders were

6    contemplated and implicitly authorized by the group’s

7    leaders.   Green directed Wilson to commit the robbery, and

8    it was decided that Wilson would carry the firearm, which

9    was provided by the Crew.    At the planning meeting in

10   Green’s apartment, which included the group’s leaders, it

11   was acknowledged that Wilson “might have to use” the gun

12   with which they were going to commit the robbery--i.e., that

13   Wilson might have to “shoot” one or more of the victims, and

14   that one or another of the victims “might be a cop or he may

15   be trying to rob” Wilson or Jacobus.    When Wilson was then

16   “asked whether he wanted to go ahead with” the robbery, he

17   deferred to Green and Whitten--two of the group’s leaders--

18   and it was decided that the robbery would proceed

19   notwithstanding the risks.

20       Third, Wilson’s actions after the murders suggest that

21   he was proud of the crimes and wanted others to be made

22   aware of them.   When asked immediately after the murders why



                                    25
1    he had killed the officers, Wilson responded with bravado,

2    “I don’t give a fuck about nobody”; and when Wilson was

3    returning to his apartment after the murders, he called out

4    to a police car, “[W]hat, are you looking for more

5    trouble?” 4   Furthermore, Wilson reported back to one of the

6    Crew’s leaders--Green--following the murders.     Finally,

7    given the modest expected yield from the robbery (the gun

8    transaction totaled $1,200 5 ), the jury may rationally have

9    concluded that Wilson had an additional, non-pecuniary

10   motive for committing such a crime.

11        Wilson argues that, in any event, maintenance or

12   increment in gang “status” is not a purpose that falls

13   within the category of qualifying statutory motives.       The

14   argument is premised on a distinction between “status,”

15   which Jacobus testified would be increased by violence, and

16   “position,” the word used in the VICAR statute.     That

17   distinction is not so clear as Wilson makes it out to be; in



          4
            Though testimony differed as to what was said, the
     jury was free to credit this version, which was reported by
     one of the police officers present, and we are bound to
     respect that conclusion. See Wexler, 522 F.3d at 206-07.
          5
            Some testimony suggests that the amount was $1,300,
     but the jury was free to credit testimony as to the lower
     amount, and we are bound to construe all evidence in favor
     of the Government. See Wexler, 522 F.3d at 206-07.
                                    26
1    ordinary usage the words are synonyms, and in the dictionary

2    they reference each other.     One definition of “status” is

3    “position or rank in relation to others.”        Webster’s Third

4    New International Dictionary Unabridged 2230 (Philip B. Gove

5    ed., Merriam-Webster 3d ed. 1986) (1961).        And “position” in

6    turn, means “social or official rank or status.”        Id. at

7    1769.   “Position” should not be construed so narrowly as to

8    distinguish it from “status.”        It does not matter, for

9    example, that the Stapleton Crew did not promote by grade in

10   a ramified hierarchy.

11       Wilson contends that, on this record, status was at

12   most a secondary or incidental motive for his crimes, and

13   that the evidence therefore does not sustain a conviction

14   under the VICAR statute.     See, e.g., United States v. Thai,

15   29 F.3d 785, 817-19 (2d Cir. 1994) (insufficient evidence to

16   sustain VICAR conviction because the only evidence of motive

17   suggested defendant had acted for pecuniary gain); United

18   States v. Jones, 291 F. Supp. 2d 78, 87-89 (D. Conn. 2003)

19   (insufficient evidence to sustain conviction where there was

20   little evidence that act was motivated by anything other

21   than personal animus).     Wilson argues that in fact the

22   primary motive was self-defense.        However, the only evidence



                                     27
1    bearing upon a self-defense theory is testimony by Jacobus

2    that, when he and Wilson returned to the detectives’ car

3    following the murders, Wilson found a gun under the driver’s

4    seat, and said “[t]hey was going to get us before we got

5    them.”   This statement says nothing about Wilson’s belief or

6    motivation at any point prior to the moment he found the

7    gun, after the deed was already done.     In any event, the

8    evidence discussed supports a jury finding that incremental

9    status was one of Wilson’s primary motives; that is enough.

10   See United States v. Farmer, 583 F.3d 131, 143-44 (2d Cir.

11   2009) (“The government was not required to prove that

12   [defendant’s] sole or principal motive was maintaining or

13   increasing his position, so long as it proved that

14   enhancement of status was among his purposes.” (internal

15   quotation marks and citation omitted)).

16       Finally, Wilson argues that there is no evidence the

17   murders increased Wilson’s status in fact.     This argument is

18   foreclosed by Farmer, 583 F.3d at 142 (“[T]he question is

19   not whether [defendant’s] position . . . was advanced in

20   fact by the murder he committed, but whether his purpose in

21   committing the murder was to benefit his position.”).

22       Accordingly, we hold that sufficient evidence supported



                                   28
1    Wilson’s convictions for murder in aid of racketeering in

2    violation of 18 U.S.C. § 1959, Counts One and Two of the

3    indictment.

4

5                                   II

6        Soon after the murders, Wilson returned to the

7    Stapleton apartment of Green.        According to the testimony of

8    Diaz --who was in the apartment with Green--Wilson announced

9    that he had “popped” the two victims.        Green did not

10   testify; but he was the subject of a Brady letter, according

11   to which Green “informed the government that Wilson actually

12   said that he killed the victims because ‘they were going to

13   rob us.’”     See generally Brady v. Maryland, 373 U.S. 83, 87-

14   88 (1963).    Green’s § 3500 material indicated that Wilson

15   also said the victims were pulling out their weapons.        See

16   United States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009)

17   (noting that 18 U.S.C. § 3500 “codif[ies] the government’s

18   disclosure obligations during criminal proceedings”).

19       For the first time, on recross-examination, the defense

20   asked Diaz if he had heard Wilson make the statements

21   attributed to him in the Brady letter and other related

22   statements.    The court sustained the prosecution’s repeated


                                     29
1    objections that the questions were outside the scope of

2    redirect.     The relevant passage in the government’s direct-

3    examination of Diaz is as follows:

4        PROSECUTION:     What did [Wilson] say?

 5       DIAZ:            I don’t remember his exact words, but he
 6                        said something to the [e]ffect that he
 7                        popped him.
 8
 9       PROSECUTION:     The word “pop” you used, is that a word
10                        that the defendant used?
11
12       DIAZ:            Yes.
13
14   Wilson concedes that “[d]efense counsel did not cross-

15   examine Diaz about what Wilson said on his return to Green’s

16   apartment.”    On this topic, cross-examination touched only

17   on whether Diaz had a clear memory of Wilson’s declaration

18   that he had “popped” the victims.      On redirect, the

19   government therefore rehabilitated Diaz’s memory of Wilson’s

20   admission:

21       PROSECUTION:     When the defendant said “I popped them,”
22                        what did you understand him to mean?
23
24       DIAZ:            That he shot them.
25
26       PROSECUTION:     Shot who?

27       DIAZ:            The victims.

28       PROSECUTION:     Human beings?    People?

29       DIAZ:            Yes.

                                      30
1    The government concluded Diaz’s redirect with the following

2    line of questioning:

 3       PROSECUTION:   Do you have any doubt, any doubt at all,
 4                      that when you got back to Omar Green’s
 5                      house, that [Wilson] came into the house
 6                      and said I popped them? Do you have any
 7                      doubt about that?
 8
 9       DEFENSE:       Objection to the leading form of the
10                      question, Your Honor.
11
12       COURT:         You may answer.
13
14       PROSECUTION:   Do you have any doubt about that, sir?

15       DIAZ:          No.

16   On recross, defense counsel turned to Wilson’s admission

17   that he had “popped” the victims:

18       DEFENSE:       [Wilson] said more than popped him, isn’t
19                      that correct?
20
21       DIAZ:          Yes.
22
23       DEFENSE:       He said something like they pulled out,
24                      did you hear that?
25
26       PROSECUTION:   Outside the scope, Your Honor.
27                      Objection.
28
29       COURT:         Sustained.
30
31       DEFENSE:       He said something like, they were trying
32                      to rob us?
33
34       PROSECUTION:   Objection.
35
36       COURT:         Sustained.
37

                                     31
 1       DEFENSE:       Do you remember hearing anything like
 2                      that?
 3
 4       PROSECUTION:   Objection, Judge.    Outside the scope.
 5
 6       COURT:         Sustained.
 7
 8       DEFENSE:       There were more words than popped him,
 9                      isn’t that correct, sir?
10
11       PROSECUTION:   Objection.    The same objection.
12
13       COURT:         You may answer.
14
15       DIAZ:          Yes.
16
17       DEFENSE:       You don’t remember those other words,
18                      isn’t that correct, sir?
19
20       PROSECUTION:   Objection.    That’s not what he said.
21
22       COURT:         Sustained.
23
24       DEFENSE:       While all this was going on, you were a
25                      nervous wreck, isn’t that correct, sir?
26
27       DIAZ:          Yes.
28
29       DEFENSE:       Thank you.
30
31
32       Wilson contends that this curtailment of Diaz’s recross

33   was error, that Diaz’s answers might have indicated that

34   Wilson acted out of a perceived need for self-preservation,

35   and that reasonable doubt thereby would have been raised

36   regarding Wilson’s “pecuniary” and “position” motives for

37   the murders.


                                     32
1        “Cross-examination should be limited to the subject

2    matter of the direct examination and matters affecting the

3    credibility of the witness.     The court may, in the exercise

4    of discretion, permit inquiry into additional matters as if

5    on direct examination.”    Fed. R. Evid. 611(b).   “The scope

6    and extent of cross-examination are generally within the

7    sound discretion of the trial court, and the decision to

8    restrict cross-examination will not be reversed absent an

9    abuse of discretion.”     United States v. Rosa, 11 F.3d 315,

10   335 (2d Cir. 1993).   In the exercise of discretion, a

11   district court should consider the need to “ascertain[ the]

12   truth,” “avoid needless consumption of time,” and “protect

13   witnesses from harassment or undue embarrassment.”     Fed. R.

14   Evid. 611(a); see also Delaware v. Van Arsdall, 475 U.S.

15   673, 679 (1986) (explaining that the district court has

16   “wide latitude . . . to impose reasonable limits on . . .

17   cross-examination based on concerns about, among other

18   things, . . . interrogation that is repetitive or only

19   marginally relevant”).    A good faith basis for proposed

20   questions is relevant to these considerations.     On the facts

21   of this case, we detect no abuse of discretion in the

22   district court’s control of Diaz’s recross-examination.


                                     33
1        The precluded questions were outside the scope of

2    Diaz’s redirect-examination.     As the transcript excerpts

3    show, the defense effort on recross was to place Wilson’s

4    admission in the context of other and additional statements,

5    whereas the government had returned to the subject on

6    redirect for the sole purpose of countering the defense’s

7    attack on the clarity of Diaz’s memory concerning that one

8    admission.   Even though the precluded questions were outside

9    the scope of redirect, the district court retained

10   discretion to permit them.     But Wilson failed to adduce his

11   good faith basis for the precluded questions or explain the

12   significance of Diaz’s potential answers, and did not

13   request a sidebar conference to argue any basis upon which

14   the district court should have permitted this line of

15   questioning.   See Jones v. Berry, 880 F.2d 670, 673 (2d Cir.

16   1989) (“[A] party whose prospective questioning is

17   threatened with curtailment should make all reasonable

18   efforts to alert the court to the relevance and importance

19   of the proposed questions.”).

20       No doubt, there was a good faith basis for Wilson’s

21   precluded questions; but the trial court was not made aware

22   of it.   The Brady disclosure (which, along with Green’s §


                                     34
1    3500 material, furnished the good faith basis) was copied to

2    and discussed with the district court on August 21, 2006.

3    However, more than three months intervened before Diaz’s

4    December 4, 2006 recross-examination.   Green himself did not

5    testify, and the district court had no occasion to review

6    the Brady disclosure (or Green’s § 3500 material) in

7    preparation for testimony by Diaz.   There is no reason to

8    believe that the good faith basis for the precluded

9    questions would have been fresh in the district court’s

10   mind, and there is no indication of any defense effort to

11   refresh.

12       Moreover, there is no reason to believe that the

13   district court would have understood the significance of

14   Diaz’s potential answers.   Defense counsel could have asked

15   the precluded questions on Diaz’s cross-examination, and the

16   judge could assume that the questions would have been asked

17   then if they were of great import.   Furthermore, the

18   precluded questions represented a wholly new departure.

19   Throughout the guilt phase, Wilson’s theory of the case was

20   that Jacobus pulled the trigger, not Wilson, whereas the

21   precluded questions were based on the idea that Wilson

22   pulled the trigger, albeit out of a perceived need for self-


                                   35
1    preservation.

2        Accordingly, we detect no abuse of discretion in the

3    district court’s control of Diaz’s recross-examination, and

4    we therefore find no error.

5        As we find no error in the guilt phase, we affirm

6    Wilson’s convictions.

7

8                                  III

9        The district court declined to include in its written

10   jury questionnaire the following question, proposed by

11   Wilson:

12             If Ronell Wilson is found guilty of murder for the
13             intentional killings of Detectives Nemorin and
14             Andrews, without any legal excuse or
15             justification, the defense might present evidence
16             at a sentencing phase of the trial about Ronell
17             Wilson’s childhood and background in support of a
18             sentence other than the death penalty. How
19             relevant is information like that to you when
20             making a decision about punishment for murder?

21   Wilson requested similar questions during oral voir dire,

22   but the district court declined to pursue the subject

23   uniformly, or at the level of particularity Wilson sought.

24   (A counterpart to this issue is Wilson’s Eighth Amendment




                                   36
1   argument--rejected in the margin 6 --that the prosecution’s

2   penalty phase summations improperly urged the jury to give



         6
           The Eighth Amendment forbids a capital sentencing
    regime in which the jury is “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 defendant proffers as a basis for a sentence less than
    death.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 247-48
    (2007) (internal quotation marks omitted). According to
    Wilson, the prosecution’s summations advised the jury that
    only defenses to the crime and the aggravating factors could
    be considered mitigating evidence, that a death sentence
    should be imposed irrespective of the mitigation because a
    sentence of life without parole was appropriate for certain
    less serious crimes, and that Wilson’s merciless conduct
    rendered him categorically ineligible for mercy. On review,
    we ask whether there is a “reasonable likelihood that the
    jurors believed themselves to be precluded from considering
    [the] mitigating evidence.” United States v. Fell, 531 F.3d
    197, 223 (2d Cir. 2008) (citing Ayers v. Belmontes, 549 U.S.
    7, 24 (2006)).

         We see no such likelihood. First, the government’s
    summations deprecated the weight of the mitigating evidence,
    explained why a life sentence is insufficient, and argued
    that the victim impact evidence militated against mercy; but
    the government’s summations did not urge the jury to ignore
    mitigation and repeatedly instructed the jury to consider
    every mitigating factor. Second, the final jury charge in
    the penalty phase instructed the jurors to consider the
    mitigating evidence broadly. Third, the jury heard several
    days of testimony concerning mitigation, and the prosecution
    extensively argued the weight of that evidence: “It is
    improbable the jurors believed that the parties were
    engaging in an exercise in futility” all that time. Ayers,
    549 U.S. at 16-17; see also Brown v. Payton, 544 U.S. 133,
    144 (2005); Boyde v. California, 494 U.S. 370, 383-84
    (1990); Fell, 531 F.3d at 222-23. Fourth, the verdict form
    evidences the jury’s active consideration of the mitigating
    evidence.
                                  37
1    little or no weight to Wilson’s mitigation evidence.)

2         Wilson assigns constitutional error to these refusals,

3    argues in addition that the propounding of specific

4    questions requested by the prosecution conferred unfair

5    advantage in identifying prospective jurors, and requests

6    that we vacate his death sentence and remand for re-

7    sentencing. 7

8         When a district court chooses to examine veniremen

9    itself, it “may ask” questions submitted by counsel “if [the

10   court] considers [the questions] proper.”    Fed. R. Crim. P.

11   24(a)(2)(B).    Refusal is reviewed for abuse of discretion.

12   United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002).

13   That discretion, however, is subject to constitutional

14   limits.    United States v. Kyles, 40 F.3d 519, 524 (2d Cir.

15   1994).    The trial court must ask a proposed voir dire

16   question if refusal would “render the defendant’s trial

17   fundamentally unfair.”    Mu’Min v. Virginia, 500 U.S. 415,

18   425-26 (1991); see also Morgan v. Illinois, 504 U.S. 719,




          7
            Even though the same jury sat throughout, the
     constitutional error Wilson alleges had bearing only on the
     sentencing phase, so the proper remedy would be vacatur of
     the death sentence. Morgan v. Illinois, 504 U.S. 719, 739
     (1992).
                                    38
1    730 & n.5 (1992). 8   Fundamental unfairness arises if voir

2    dire is not “adequate . . . to identify unqualified jurors.”

3    Morgan, 504 U.S. at 729.    In capital cases, a juror is

4    constitutionally unqualified if he has “views on capital

5    punishment” that would “prevent or substantially impair the

6    performance of his duties as a juror in accordance with his

7    instructions and his oath.”    Id. at 728 (internal quotation

8    marks omitted).    That category includes “those prospective

9    jurors who would always impose death following conviction.”

10   Id. at 733-34.    Thus, in Morgan, sole reliance on general

11   inquiries--as to willingness to “follow [the court’s]

12   instructions on the law even though you may not agree” and

13   ability to “be fair and impartial”--did not afford defense

14   counsel an opportunity to identify and challenge for cause

15   those jurors who would automatically impose the death

16   penalty. 9   Id. at 723-25 (internal quotation marks omitted).

          8
            Though these cases interpret the Fourteenth
     Amendment, the Supreme Court has indicated that the relevant
     protections in state and federal court are coextensive. See
     Morgan, 504 U.S. at 726-27; see also United States v.
     Tipton, 90 F.3d 861, 878-79 (4th Cir. 1996) (applying Morgan
     to a federal capital trial); United States v. McCullah, 76
     F.3d 1087, 1113-14 (10th Cir. 1996) (same).
          9
            Defendant-appellant in Morgan had requested in the
     trial court the following voir dire question: “If you found
     [defendant] guilty, would you automatically vote to impose
     the death penalty no matter what the facts are?” 504 U.S.
                                    39
1        Voir dire in this case proceeded in two stages.        First,

2    veniremen completed a 54-page questionnaire that included,

3    inter alia, questions about background, relevant media

4    exposure, opinions and biases, and ability to follow the law

5    and discharge a juror’s duty.        One question (proposed by the

6    government) asked whether “the fact that the victims were

7    killed while working undercover and posing as individuals

8    engaging in illegal conduct [would] affect your ability to

9    fairly and impartially evaluate the evidence in this case.”

10   Another asked whether

11              you hold any beliefs or opinions that would affect
12              your ability to evaluate . . . testimony [given
13              pursuant to a cooperation agreement with the
14              government] from . . . witnesses [who have lengthy
15              histories of narcotics trafficking and violent
16              criminal conduct and have pled guilty to some of
17              the most serious crimes in the indictment].

18   With respect to capital punishment, the questionnaire

19   advised:

20              Should a “penalty phase” be necessary, the
21              question for the jury to decide is whether the
22              defendant should be sentenced to death or to life
23              imprisonment without the possibility of release.
24              The jury makes this decision by weighing a variety
25              of factors.

26   The court proceeded to ask the following questions:




     at 723 (internal quotation marks omitted).
                                     40
1             Do you have any personal beliefs about what the
2             law is or should be regarding the death penalty
3             that would affect your ability to follow the
4             Court’s legal instructions?

 5            Would knowing that the defendant faced the death
 6            penalty as a possible punishment make you
 7            reluctant to impose a sentence of life without the
 8            possibility of release even if you thought the
 9            circumstances of the case warranted a non-death
10            sentence?

11       Second, the district court orally examined prospective

12   jurors in person.     At the outset of oral voir dire, the

13   district court read a statement to the venire:

14            The indictment charges, among other things, that
15            in March of 2003, the defendant murdered two
16            undercover police officers, Detectives James
17            Nemorin and Rodney Andrews, who were attempting to
18            purchase firearms from Wilson and other members of
19            the Stapleton Crew.

20   The court emphasized, as it had in the jury questionnaire:

21            Should a penalty phase be necessary, the question
22            for the jury to decide is whether the defendant
23            should be sentenced to death or to life
24            imprisonment without the possibility of release.
25            The jury makes this decision by weighing a variety
26            of factors.

27   Thereafter, the district court started questioning the

28   individual veniremen, outside the presence of the other

29   prospective jurors.     Counsel was not permitted to ask

30   questions, though both proffered inquiries for the court to

31   make.



                                     41
1        With two exceptions, each member of the petit jury

2    whose voir dire Wilson challenges 10 was asked some variation

3    of the following question concerning evidence of character

4    and background:    “[W]ould you be willing to consider

5    evidence about the convicted individual’s character and

6    background of this case and listen to argument from the

7    defense that the death penalty should not be imposed in this

8    case?”    And each challenged member of the petit jury (with

9    one exception) was asked some variation of the following

10   life-qualifying question: “Would you be able to meaningfully

11   consider life in prison instead of the death penalty as the

12   correct punishment for someone who commits a murder?” 11

13       What was done was constitutionally sufficient, and the

14   district court’s refusal of Wilson’s proffered questions was

15   not error.    Each juror was informed that (in the event of

16   conviction) the jury would determine the sentence based on

17   various factors, and most of them were informed that those

18   factors would include Wilson’s character and background.

19   And each juror confirmed, by questionnaire and in person,



          10
            Wilson concedes that the voir dire of three jurors
     was sufficient.
          11
            Juror 156 answered this question in substance in
     response to a different inquiry.
                                    42
1    that he could meaningfully consider life in prison as a

2    possible sentence.   Morgan requires nothing more.   See 504

3    U.S. at 729-39; see also United States v. Tipton, 90 F.3d

4    861, 878-79 (4th Cir. 1996) (finding Morgan satisfied where

5    district court asked questions sufficient to determine

6    whether any venireman would automatically vote for death).

7    “The district court was not required . . . to allow inquiry

8    into each juror’s views as to specific mitigating factors as

9    long as the voir dire was adequate to detect those in the

10   venire who would automatically vote for the death penalty.”

11   United States v. McCullah, 76 F.3d 1087, 1114 (10th Cir.

12   1996); see also id. at 1113-14.

13       Wilson argues that there is a great disparity between

14   the case-specific questioning allowed the prosecution and

15   what Wilson was allowed.   However, Morgan demands adequacy,

16   not parity.   It requires only that defendants be afforded an

17   opportunity to identify constitutionally biased jurors.

18       In any event, the record does not reflect the disparity

19   Wilson alleges.   He cites four alleged points of error: [i]

20   the district court asked whether juror impartiality would be

21   affected by the fact that the victims were undercover police

22   officers posing as individuals engaged in illegal conduct;



                                   43
1    [ii] the court asked whether jurors held any beliefs or

2    opinions affecting their ability to evaluate testimony from

3    cooperating witnesses; [iii] the court informed the venire

4    that the murders were multiple; and [iv] the court informed

5    the venire that the victims were police officers.

6        Wilson argues that the two questions afforded the

7    prosecution more case-specific information than the defense

8    was allowed, and that the reference to two victims, both

9    police detectives, highlighted two of the expected

10   aggravating factors, making each subsequent death-penalty

11   question more particularized and thus more helpful to the

12   government.    Viewed in the context of a lengthy

13   questionnaire and extensive oral examination, the two cited

14   questions are hardly sufficient to render the voir dire

15   meaningfully imbalanced, especially since the answers would

16   have been helpful to the defense as well as the prosecution.

17   As to disclosing that there were two victims, both of them

18   police officers, those facts were also built into questions

19   that the defense affirmatively sought, and cannot be deemed

20   prejudicial.

21       The district court did not abuse its discretion in

22   rejecting Wilson’s proposed written and oral voir dire



                                    44
1    questions.

2

3                                  IV

4        During the penalty phase, one of the four aggravating

5    factors that the prosecution undertook to prove was victim

6    impact.   The jury unanimously found that the government

7    proved beyond a reasonable doubt that “[d]efendant Ronell

8    Wilson caused loss, injury, and harm to the victims and the

9    victims’ families.”

10       To prove this aggravating factor, the prosecution

11   called ten witnesses: seven family members of the murdered

12   detectives (including in-laws); and three police officers

13   who testified that the murders caused them anguish and had a

14   profound influence on other officers who worked with

15   Detectives Andrews and Nemorin, and who admired them

16   personally and professionally.

17       Wilson challenges the victim impact evidence on three

18   grounds: [i] the testimony of non-family members (i.e., the

19   three police officers) was outside the constitutional and

20   statutory scope of admissible victim impact evidence in a




                                   45
1    capital case; 12 [ii] the testimony in the aggregate was

2    prejudicially emotional and the court failed to give proper

3    jury instructions to counteract this; and [iii] the jury

4    improperly inferred and took into account the witnesses’

5    views on sentencing.    We hold that all of the testimony was

6    correctly admitted and that the jury instructions were

7    proper.

8

9                                   A

10       The Constitution.    The Eighth Amendment does not erect

11   a per se bar to the admission of victim impact evidence in a

12   death penalty case.    Payne v. Tennessee, 501 U.S. 808, 827

13   (1991).   Evidence concerning the personal characteristics of

14   a victim and the effect of a murder on survivors “[i]s

15   simply another form or method of informing the sentencing

16   authority about the specific harm caused” by the defendant’s

17   crime in a capital case.    Id. at 825 (evidence of harm is

18   “evidence of a general type long considered by sentencing

19   authorities”).


          12
             Wilson’s objections on this point are preserved.
     After losing his in limine motion that sought to prohibit
     all non-family testimony, Wilson’s attempts to limit that
     testimony in specific ways did not amount to concession or
     waiver.
                                    46
1        At issue in Payne was testimony from a family member of

2    the victims; but while the holding of Payne is therefore

3    expressed in those terms, id. at 827, nothing in the Court’s

4    reasoning suggests that the principle is so limited.

5    Elsewhere in the opinion, the Court states that a fact-

6    finder should be allowed to measure the “specific harm” the

7    defendant caused by committing the murder, id. at 825, a

8    phrase broad enough to embrace the loss felt by friends or

9    co-workers who were close to the victim.     The opinion refers

10   repeatedly to the specific harm caused as encompassing loss

11   felt by “community” or “society.”   Id. at 822-23, 825; see

12   also id. at 830 (O’Connor, J., concurring).

13       We therefore hold that the Constitution allows evidence

14   from non-family members about their own grief and about the

15   loss felt by other non-family members.     Other circuits are

16   in accord.   See, e.g., United States v. Bolden, 545 F.3d

17   609, 626 (8th Cir. 2008); United States v. Fields, 516 F.3d

18   923, 946 (10th Cir. 2008); United States v. Barrett, 496

19   F.3d 1079, 1098-99 (10th Cir. 2007); United States v.

20   Nelson, 347 F.3d 701, 712-14 (8th Cir. 2003); United States

21   v. Bernard, 299 F.3d 467, 478 (5th Cir. 2002).

22


                                   47
1        The FDPA.    Wilson also argues that the Federal Death

2    Penalty Act (“FDPA”), 18 U.S.C. § 3591 et seq., limits

3    victim impact evidence to impact on family members.        The

4    FDPA governs whether and under what circumstances a sentence

5    of death may be imposed on a defendant, and includes the

6    requirement that the government prove one or more specified

7    aggravating factors beyond a reasonable doubt in order to

8    establish that a defendant is eligible for the death

9    penalty.   18 U.S.C. § 3592(c).    The government may also

10   present additional, non-statutory aggravating factors in

11   order to convince the jury that the defendant deserves a

12   death sentence, so long as the government gives notice of

13   which non-statutory factors are to be presented.     Id.

14       As the FDPA was enacted after Payne, Congress

15   specifically indicated that victim impact evidence could be

16   included as a non-statutory aggravating factor:

17              The factors for which notice is provided under
18              this subsection may include factors concerning the
19              effect of the offense on the victim and the
20              victim’s family, and may include oral testimony, a
21              victim impact statement that identifies the victim
22              of the offense and the extent and scope of the
23              injury and loss suffered by the victim and the
24              victim’s family, and any other relevant
25              information.
26
27   18 U.S.C. § 3593(a).   Wilson argues that this provision



                                   48
1    should be read to limit victim impact evidence to impact on

2    the family alone.     We read this passage as language of

3    inclusion, not exclusion.     It speaks to what “may [be]

4    include[d].”     Id.; see also 18 U.S.C. § 3592(c) (“The jury,

5    or if there is no jury, the court, may consider whether any

6    other aggravating factor for which notice has been given

7    exists.”).     The final phrase (“and any other relevant

8    information”), though ambiguous, is read most naturally as a

9    catch-all for what may be deemed “relevant” by the court.

10   Wilson’s reading assumes that unless the victim has family,

11   no one suffered loss other than the victim--so that a

12   distant cousin may testify, but not a fiancé or a partner or

13   a friend or a colleague.

14       Other circuits allow testimony from friends (including

15   friends who are co-workers) regarding the impact of a

16   victim’s death, rejecting challenges similar to Wilson’s.

17   Barrett, 496 F.3d at 1098 (allowing testimony from police

18   colleagues of victim, and rejecting argument that Congress

19   limited victim impact evidence in federal death penalty

20   cases to evidence “concerning the effect of the offense on

21   the victim and the victim’s family” (internal quotation

22   marks and citation omitted)); see also Fields, 516 F.3d at



                                     49
1    946 (allowing victim impact testimony from non-family

2    members); Nelson, 347 F.3d at 712-13 (same); Bernard, 299

3    F.3d at 478 (same).

4

5        Utilitarian Loss and Societal Harm.     Wilson argues in

6    the alternative that, even if non-family impacts are not

7    excluded categorically, the Constitution and FDPA prohibit

8    evidence of utilitarian losses to a workplace or evidence of

9    the victims’ professional accomplishments.     The police

10   officers here testified for the most part that: [i] the

11   victims had close relationships with their families; [ii]

12   the victims continue to be mourned by members of the New

13   York Police Department who worked with them, including the

14   witnesses themselves; and [iii] the victims were exemplary,

15   heroic policemen.     Wilson argues only the first type of this

16   testimony is admissible.     We disagree.

17       Wilson relies on the Tenth Circuit’s decision in

18   Fields, which distinguished between co-workers who were also

19   friends with the victim (who could testify) and “co-workers

20   per se” (who could not).     516 F.3d at 946-47.   The court

21   disapproved of co-worker testimony focused on “impersonal

22   utilitarian considerations” such as “the loss of [the



                                     50
1    victim’s] contribution to an office, unit, or team; the kind

2    of loss that businesses insure with ‘key man’ policies.”

3    Id. (holding nonetheless that the testimony at issue in the

4    case came from a co-worker who was a friend and therefore

5    was acceptable).   Whether or not we are persuaded by Fields,

6    the victims’ colleagues in this case testified to personal

7    loss, even though it concerned in part loss experienced in a

8    workplace that fosters intense loyalty and camaraderie.

9    They did not adduce the “impersonal utilitarian

10   considerations” that concerned the court in Fields and

11   therefore the colleagues’ testimony was properly admitted.

12       Wilson characterizes as utilitarian in character the

13   testimony describing Detectives Andrews and Nemorin as

14   heroic individuals who loved their work and inspired other

15   policemen.   Such testimony is permissible to show a

16   “victim’s uniqueness as an individual human being.”     See

17   Payne, 501 U.S. at 823 (internal quotation marks omitted).

18   As the Payne concurrence explains, the prosecution may,

19   consistent with the Constitution, show “all that is special

20   and unique about” the victim, including their “hopes,

21   dreams, and fears.”   Id. at 832 (O’Connor, J., concurring).

22       To demonstrate that victims in capital cases were



                                   51
1    special and unique human beings, courts have allowed

2    testimony concerning a victim’s professional life.     See,

3    e.g., Barrett, 496 F.3d at 1099 (allowing testimony about

4    “the personal and professional characteristics of [the

5    victim]”); Bernard, 299 F.3d at 479 (allowing testimony that

6    the victims were religious youth ministers in part

7    “[b]ecause religion played a vital role in [their] lives,

8    [and so] it would be impossible to describe their uniqueness

9    as individual human beings without reference to their faith”

10   (internal quotation marks omitted)); United States v.

11   McVeigh, 153 F.3d 1166, 1219 (10th Cir. 1998) (“Numerous

12   witnesses . . . testified about the professional and

13   personal histories of victims who perished in the bombing,

14   including reflections on the admirable qualities of the

15   deceased.”).

16       The police officers’ testimony that dealt with the

17   victims’ outstanding careers, including the excerpted

18   documentary videotape that showed Detective Nemorin

19   discussing his job, was therefore properly admitted.

20       Finally, Wilson contends that the testimony by the

21   police officers went beyond evidence of the “specific harm”

22   caused by the defendant, as allowed in Payne, and invoked a



                                  52
1    generalized community harm.   See Fields, 516 F.3d at 947

2    (noting its concern with “replacing a close-in focus on

3    persons closely or immediately connected to the victim with

4    a wide view encompassing generalized notions of social value

5    and loss”).   However, no prohibition on such evidence is

6    generally recognized.   See, e.g., United States v. Battle,

7    173 F.3d 1343, 1348 (11th Cir. 1999) (allowing testimony

8    about how much more difficult a prison was to administer

9    after the murder of a guard); Bernard, 299 F.3d at 479

10   (allowing testimony related to the victim’s proselytizing

11   due to its relevance to a “‘community’s loss at [the

12   victims’] demise’” (quoting South Carolina v. Gathers, 490

13   U.S. 805, 821 (1989) (O’Connor, J., dissenting), overruled

14   by Payne, 501 U.S. 808)).

15       In any event, once the testimony of the detectives’

16   heroism and professional accomplishments is properly

17   characterized as evidence of their uniqueness as human

18   beings, and therefore admissible, Wilson’s argument on

19   generalized societal harm comes down to a single sentence:

20   One police colleague testified that the murder of Detective

21   Andrews “robbed the City of New York of another layer of

22   security, and, more importantly, took away a father from his



                                   53
1    children.”     In that sentence, harm to the City is expressly

2    subordinated to the harm suffered by the victim’s children.

3    Moreover, the reference to societal harm does not appear to

4    go beyond the scope of what is deemed permissible; Payne

5    references harm to society or community, but teaches that

6    the Constitution allows only evidence that describes the

7    “specific harm” caused by the crime.      See Payne, 501 U.S. at

8    822, 823, 825; see also id. at 830 (O’Connor, J.,

9    concurring).

10       The victim impact testimony given by the victims’

11   police colleagues was admitted without error.

12

13                                   B

14       Due process is violated when victim impact evidence is

15   introduced that “is so unduly prejudicial that it renders

16   the trial fundamentally unfair.”      Payne, 501 U.S. at 825.

17   Similarly, the FDPA requires remand if “the sentence of

18   death was imposed under the influence of passion, prejudice,

19   or any other arbitrary factor.”      18 U.S.C. § 3595(c)(2)(A).

20   Wilson argues that his sentence was an arbitrary outcome

21   resulting from unduly prejudicial victim impact testimony.

22       Wilson concedes that he lodged no contemporaneous



                                     54
1    objection to the testimony.   We thus review for plain error.

2    See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

3    We conclude there was no error in the admission of the

4    testimony, or in the district court’s refusal to grant a

5    mistrial.

6        The family members of Detectives Andrews and Nemorin

7    delivered emotionally charged testimony.   The anguished

8    testimony of Detective Nemorin’s widow described how her

9    children visit the cemetery on Father’s Day and other

10   occasions, write letters to their father, and embrace his

11   headstone.   Even such testimony does not appear to exceed

12   (or approach) the margins of what has been allowed. 13   It


          13
            The victim impact testimony deemed admissible in
     Payne was delivered by a witness who was mother to one
     victim and grandmother to a second. She testified that her
     grandson, a small child at the time of trial, “cries for his
     mom. He doesn’t seem to understand why she doesn’t come
     home. And he cries for his sister Lacie. He comes to me
     many times during the week and asks me, Grandmama, do you
     miss my Lacie. And I tell him yes. He says, I’m worried
     about my Lacie.” Payne, 501 U.S. at 814-15 (internal
     quotation marks omitted); see Nelson, 347 F.3d at 713 (no
     undue prejudice where “[a] fair summation of [the
     witnesses’] collective testimony is that the witnesses
     provided emotional and, on occasion, tearful testimony about
     [the victim] and the impact of her murder on their lives”;
     this included testimony from the victim’s sister who began
     testifying but broke down and was unable to continue);
     United States v. Chanthadara, 230 F.3d 1237, 1274 (10th Cir.
     2000) (allowing young children to testify in tears about
     their murdered mother); McVeigh, 153 F.3d at 1219-22
                                   55
1    cannot be expected that victim impact testimony will be cool

2    and dispassionate.    Some deaths cause more suffering than

3    others.    The only way to ensure against victim impacts

4    caused by one’s murder of a well-loved human being is to

5    take care to murder no one at all.

6        Courts are reluctant to conclude that the jury was

7    unduly prejudiced by emotional testimony if the defendant

8    presented mitigating factors that the jury found proven and

9    if the trial court instructed the jury about not giving a

10   verdict based on emotion.    See McVeigh, 153 F.3d at 1222;

11   see also Nelson, 347 F.3d at 713 (discussing how the

12   presentation of mitigators reduces risk of jury prejudice

13   from victim impact evidence).        We presume that juries follow

14   instructions; and a jury diligent and dispassionate enough

15   to find mitigating factors is unlikely to have been

16   overmastered by emotion.    See Richardson v. Marsh, 481 U.S.

17   200, 206 (1987) (juries are presumed to follow

18   instructions).    Wilson’s jury found 14 mitigating factors,

19   one of them (peer pressure) a factor not even argued by the

20   defense.    We therefore go on to consider the instructions to



     (allowing intensely emotional testimony from numerous
     witnesses).


                                     56
1    the jury.

2         Consistent with the statutory prohibition, the jury was

3    charged not to rule on the basis of passion, prejudice, or

4    arbitrary factors.    See 18 U.S.C. § 3595(c)(2).   Before the

5    final five victim impact witnesses testified, Wilson

6    requested that the court instruct the jury not to be

7    overpowered by emotion.    The judge complied and told the

8    jury that:

 9               You are about to hear more testimony about the
10               impact of the murders on the victims’ family
11               members and colleagues. The law permits you to
12               hear this evidence. However, by its nature, it is
13               highly emotional. I instruct you not to let this
14               evidence overwhelm your ability to follow the law
15               as I will instruct you before deliberations. You
16               must decide the proper punishment without undue
17               passion or prejudice.
18
19   Before final deliberations, the court charged:

20               In engaging in the weighing process, you must
21               avoid any influence of passion, prejudice, or
22               undue sympathy. Your deliberations should be
23               based upon the evidence you have seen and heard
24               and the law on which I have instructed you.
25               Passion, prejudice, and arbitrary considerations
26               have no role to play in your efforts to reach a
27               just result in this case.
28
29   See 18 U.S.C. § 3595(c)(2).    These instructions were

30   sound. 14

           14
            Wilson challenges the sufficiency of these jury
     instructions on the ground that the first instruction should
     have been repeated immediately before deliberations. Since
                                    57
1        We conclude that the testimony was not overly

2    prejudicial and was admitted without error.

3

4                                  C

5        “[T]he admission of a victim’s family members’

6    characterizations and opinions about the crime, the

7    defendant, and the appropriate sentence violates the Eighth

8    Amendment.”   Payne, 501 U.S. at 830 n.2.   Wilson argues that

9    the jurors were improperly influenced because they could

10   infer that the victim impact witnesses wanted execution.

11   However, no evidence as to the witnesses’ preferred sentence

12   was actually admitted.   Because there was no evidence to

13   exclude, this claim necessarily fails. 15



     the charge given at the end effectively expressed what the
     defendant wanted conveyed, the district court did not err in
     refusing the repetition. See generally United States v.
     Desinor, 525 F.3d 193, 201 (2d Cir. 2008); cf. McVeigh, 153
     F.3d at 1222 & n.50 (allowing much more victim impact
     testimony while only giving a single instruction, similar to
     the second of the two instructions given here).
          15
            Wilson’s subsidiary argument--that the court erred
     by refusing an instruction that the jury ignore the victim
     impact witnesses’ opinion as to sentencing--fails for the
     same reason; as the witnesses presented no such views, there
     was nothing for the jury to disregard. In any event, the
     court captured the essence of this instruction when it
     charged the jury that the question whether to sentence the
     defendant to death or not “is a decision that the law leaves
     entirely to you.”
                                   58
1          The victim impact evidence presented in this case was

2    properly admitted, was not overly prejudicial, and was

3    considered in the light of jury instructions that were

4    properly framed.

5

6                                  V

7          Shabucalik Geralds, a gang associate of Wilson and a

8    former member of the Bloods, testified for the prosecution

9    about the Bloods (one of Wilson’s affiliations) and about an

10   admission made by Wilson when both men were confined in the

11   same prison unit.   Wilson argues that Geralds was a

12   government agent at the time Wilson confided to him that

13   his, Wilson’s, efforts on behalf of the Bloods entitled him

14   to senior status in the gang, and hence that the testimony

15   was inadmissible under the Supreme Court’s decision in

16   Massiah v. United States, 377 U.S. 201 (1964).   (Wilson’s

17   contention that Geralds and another witness gave testimony

18   about the Bloods that was inadmissible is rejected in the

19   margin. 16 )


           16
            Wilson also challenges Geralds’s competence to
     testify about the Bloods. Geralds had been a member of the
     Bloods for a short time, long in the past; however, much of
     his testimony was explicitly based on personal observation,
     and the rest could be readily inferred to have been learned
                                   59
1       Wilson had met Geralds through fellow Bloods members

2   Green and Whitten.   When Wilson encountered Geralds during

3   Wilson’s pre-trial detention, Geralds was subject to a

4   cooperation agreement in another case.   In their first

5   conversation in prison, Geralds testified, Geralds mentioned

6   that a high-ranking Blood known as the “Original Gangster

7   Staten Island” (or “OG SI”) was in the same prison.   Wilson

8   expressed the view that this OG SI was a government

9   informant, and added with a smile that Wilson himself should



    through personal observation during his long auxiliary
    affiliation with the Bloods after his membership lapsed.
    See United States v. Tocco, 135 F.3d 116, 128 (2d Cir. 1998)
    (evidence should not be excluded due to a witness’s lack of
    personal knowledge unless a court finds that no “reasonable
    trier of fact could believe the witness had personal
    knowledge” (internal quotation marks omitted)).

         Wilson also objected to some of the Bloods-related
    testimony elicited on cross-examination of defense expert
    Donald Romine, a former prison administrator. Romine
    testified on direct-examination that the prison system was
    capable of preventing Wilson from harming others. Romine
    was cross-examined as to whether members of the Bloods would
    be motivated to commit acts of violence in prison in order
    to raise their status. Romine was competent to testify
    about the nature of that threat, based on his long
    administrative experience at several prisons and in the
    Bureau of Prisons--experience that included examining
    prisoners’ records to determine their threat level.

         The district court did not abuse its discretion in
    allowing Geralds’s and Romine’s testimony regarding the
    Bloods. See United States v. Kaplan, 490 F.3d 110, 117 (2d
    Cir. 2007).
                                  60
1    be the OG SI because he had put in sufficient “work.”

2    Geralds clarified for the jury that “work” meant violence,

3    and that killing police officers would constitute this kind

4    of work.   Geralds also testified that in later

5    conversations, Wilson enlisted Geralds’s help in finding a

6    woman who would bear his child, and in checking out the gang

7    status of a fellow inmate.

8        Wilson objected on the ground that Geralds was acting

9    as a government agent when he elicited these admissions, and

10   that admission of Geralds’s testimony regarding his prison

11   conversations with Wilson therefore would violate Wilson’s

12   Sixth Amendment right to counsel.   Massiah, 377 U.S. at 205-

13   06 (holding that surreptitious interrogations after

14   defendant’s indictment conducted outside the presence of

15   counsel violated defendant’s right to counsel).   A jailhouse

16   informant is deemed to have conducted an interrogation in

17   violation of a defendant’s Sixth Amendment Massiah rights if

18   the informant was acting as a “government agent” who

19   “deliberately elicit[ed]” the incriminating information;

20   information is only excluded if it is obtained as a result

21   of the government’s intentional efforts.   United States v.

22   Stevens, 83 F.3d 60, 64 (2d Cir. 1996) (internal quotation



                                   61
1    marks omitted).

2        The district court denied Wilson’s objection after a

3    hearing:   “Based on Geralds’ testimony at this hearing, I

4    find that he did not act as a ‘government agent’ when he

5    spoke with Wilson, that he did not ‘deliberately elicit’ any

6    statements from Wilson, and that the Government made no

7    ‘intentional effort’” to obtain statements from Wilson

8    through Geralds.    United States v. Wilson, 493 F. Supp. 2d

9    514, 515 (E.D.N.Y. 2007) (quoting Stevens, 83 F.3d at 64).

10       “The standard of review for evaluating the district

11   court’s ruling on a suppression motion is clear error as to

12   the district court’s factual findings, viewing the evidence

13   in the light most favorable to the government, and de novo

14   as to questions of law.”    United States v. Rodriguez, 356

15   F.3d 254, 257 (2d Cir. 2004).        The sequence of events is as

16   follows, viewing the evidence in the light most favorable to

17   the government:    Geralds became a cooperator; in the course

18   of cooperation, before Geralds or the prosecutors knew that

19   Wilson and Geralds were in the same prison unit, Geralds

20   identified Wilson as a gang member known to him, and was

21   questioned by prosecutors about Wilson; Wilson learned that

22   Geralds was housed nearby and initiated contact with him;



                                     62
1    Geralds and Wilson had their conversation about Wilson’s

2    pretension to be the OG SI; Geralds reported this

3    conversation to prosecutors, who instructed Geralds to “not

4    get any information from Mr. Wilson”; in further

5    conversations, Geralds and Wilson discussed topics “from

6    girls to music [to] cars,” and Wilson asked for help in

7    finding a woman and in checking on the gang status of

8    another inmate.

9          Even assuming that Geralds deliberately elicited

10   information from Wilson in the first conversation (about OG

11   SI), Geralds was not a government agent at that time.     More

12   than a cooperation agreement is required to make an

13   informant a government agent with regard to a particular

14   defendant.    United States v. Birbal, 113 F.3d 342, 346 (2d

15   Cir. 1997).    An informant becomes a government agent vis-a-

16   vis a defendant when the informant is “instructed by the

17   police to get information about the particular defendant.”

18   Id.   This first prison conversation was initiated by Wilson,

19   and Geralds was under no government influence.     True, the

20   prosecutors had showed interest in Wilson in a meeting with

21   Geralds before this conversation--and before Wilson or the

22   prosecutors knew that Geralds would meet Wilson in prison--



                                    63
1    but evincing interest did not amount to an instruction

2    sufficient to make Geralds a government agent.   Cf. United

3    States v. Henry, 447 U.S. 264, 270-71 & n.8 (1980) (holding

4    that an informant was a government agent where the

5    investigators were aware that the informant “had access” to

6    the defendant and they “singled out” the defendant).

7        Further assuming arguendo that Geralds became a

8    government agent after he reported the OG SI conversation--

9    when the prosecutors knew that Geralds had access to Wilson

10   and had delivered information about him--Geralds’s testimony

11   still did not violate Wilson’s Sixth Amendment rights.

12   There is no evidence that Geralds did anything in the later

13   conversations with Wilson but follow the government’s

14   instructions to “merely listen[].”   See Kuhlmann v. Wilson,

15   477 U.S. 436, 459 (1986).

16       In any event, the only damaging admission to which

17   Geralds testified was Wilson’s claim to OG SI status in the

18   first conversation, at which point Geralds was not a

19   government agent.   Geralds’s testimony did not infringe

20   Wilson’s Sixth Amendment right to counsel.

21

22                                 VI


                                   64
1        During summation, the prosecution made the following

2    argument to the jury, of which the emphasized passage is

3    challenged:

 4             Ronell Wilson up until the very moment that he
 5             addressed you last week has done everything he
 6             could to escape responsibility for his crimes. He
 7             has an absolute right to go to trial, put the
 8             government to its burden of proof, to prove he
 9             committed these crimes, but he can’t have it both
10             ways. He can’t do that, then say I accept
11             responsibility. [Defense objection overruled.]
12             And [say “]I’m sorry, only after you prove I did
13             it.[”] That’s not acceptance of responsibility.
14             That is a manipulative criminal saying what he has
15             to, saying what he knows you want to hear when
16             it’s in his interest to say it.”
17
18   Def. App. at 868 (emphasis added).      Wilson argues that this

19   comment unconstitutionally burdened his Sixth Amendment

20   right to a jury trial.    We agree.17

21       Under the “unconstitutional conditions doctrine,” “the

22   government may not do indirectly what it cannot do

23   directly.”    United States v. Oliveras, 905 F.2d 623, 627-28

24   & n.7 (2d Cir. 1990) (per curiam).      The doctrine keeps the

25   prosecution from “trench[ing] on [a] defendant’s

26   constitutional rights and privileges.”      United States v.



          17
            Wilson also argues that he did in fact offer to
     plead guilty and that the prosecutors therefore
     impermissibly misled the jurors into thinking otherwise.
     Our constitutional holding obviates that dispute.
                                    65
1    Parker, 903 F.2d 91, 98 (2d Cir. 1990).   “The prosecution

2    cannot use the defendant’s exercise of specific fundamental

3    constitutional guarantees against him at trial.”   Burns v.

4    Gammon, 260 F.3d 892, 896 (8th Cir. 2001).   For that reason,

5    a statute cannot disallow the death penalty for those who

6    plead guilty but allow it for those who exercise their right

7    to a trial.   United States v. Jackson, 390 U.S. 570, 581

8    (1968).   By the same token, a capital-sentencing scheme

9    cannot allow the jury to draw an adverse inference from

10   constitutionally protected conduct such as a request for

11   trial by jury; if the government invites the jury to find

12   the existence of an aggravating factor based on “inferences

13   from conduct that is constitutionally protected . . . for

14   example . . . the request for trial by jury, . . . due

15   process of law would require that the jury’s decision to

16   impose death be set aside.”   Zant v. Stephens, 462 U.S. 862,

17   885 (1983).

18       We maintain “a distinction between increasing the

19   severity of a sentence for a defendant’s failure to

20   cooperate and refusing to grant leniency.”   United States v.

21   Stratton, 820 F.2d 562, 564 (2d Cir. 1987) (emphasis added).

22   Stratton itself illustrates the one-way ratchet:   It is


                                   66
1    permissible for a sentencing court to consider that, “if

2    [the defendant] were willing to assist us to bring the other

3    person to justice, I would find it very easy to be

4    reasonable and lenient,” id. (quoting Mallette v. Scully,

5    752 F.2d 26, 31 (2d Cir. 1984)), but it is unconstitutional

6    to impose consecutive rather than concurrent sentences

7    solely on account of the defendant’s failure to cooperate ,

8    id.   Similarly, the federal Sentencing Guidelines treat

9    acceptance of responsibility (usually via a plea) as a basis

10   for leniency, see U.S. Sentencing Guidelines Manual § 3E1.1

11   (2007), but do not provide a harsher sentence for failure to

12   plead .

13         This distinction is the “only rule that recognizes the

14   reality of the criminal justice system while protecting the

15   integrity of that system.”   Mallette, 752 F.2d at 30.

16   Sometimes the rule may be “difficult to apply,” or even

17   “somewhat illusory,” Stratton, 820 F.2d at 564 (internal

18   quotation marks omitted); but not in this case.   In purpose

19   and effect, the government used Wilson’s demand for trial to

20   evidence lack of remorse and refusal to accept

21   responsibility, characteristics offered to undermine

22   Wilson’s defenses to a sentence of death.   The government


                                   67
1    also emphasized Wilson’s lack of remorse as support for the

2    aggravating factor of future dangerousness.   See Def. App.

3    at 604 (“What else tells you about the incredible danger

4    that this man poses? . . . The fact that the defendant has

5    absolutely, absolutely no remorse whatsoever for his

6    actions.”).   In so doing, the prosecution contravened Zant,

7    462 U.S. at 885, and Jackson, 390 U.S. at 581, and crossed

8    the line drawn in Stratton, 820 F.2d at 564.18

9        “Whether [a sentencing] differential is a reward for

10   cooperation or a penalty for invoking a constitutional right

11   depends on the benchmark–-the ‘normal’ sentence that would

12   be meted out if constitutional rights were not salient.”

13   United States v. Klotz, 943 F.2d 707, 710 (7th Cir. 1991).

14   There is no doubt that the baseline sentence in this case is

15   life without parole, and that a verdict of death is an


          18
            As to Wilson’s Sixth Amendment right, the dissent
     argues that Stratton is not germane because the
     prosecution’s remark (about Wilson exercising his trial
     right) is located in the discussion of Wilson’s mitigating
     evidence, and thus did not argue for aggravation on this
     ground. We disagree. The nature of the penalty phase,
     structurally, is to determine whether the sentence of life
     should be raised to a sentence of death. Furthermore,
     Wilson’s decision to go to trial was used not only to
     undermine his proposed mitigator (acceptance of
     responsibility); it also was used to show depravity, which
     supported an inference of future dangerousness, a proposed
     aggravator.
                                   68
1    increase in severity.    To achieve a death penalty, the

2    government was required to prove the aggravating factors

3    justifying death beyond a reasonable doubt to a unanimous

4    jury.   See 18 U.S.C. §§ 3593(c), (e).    Wilson’s

5    constitutionally protected decision to go to trial was cited

6    as a reason to sentence him to death, and thus to “enhance”

7    what would otherwise be a life sentence.

8        The government relies heavily on United States v.

9    Mikos, 539 F.3d 706, 718 (7th Cir. 2008), which observes:

10   “If it is proper to take confessions, guilty pleas, and vows

11   to improve one’s life into account when deciding whether a

12   murderer should be put to death--and it is unquestionably

13   proper for the judge or jury to do so--then it must also be

14   proper for the prosecutor to remind the jury when none of

15   these events has occurred.”    (internal citation omitted).

16   Mikos then suggests that § 3E1.1 of the Sentencing

17   Guidelines “institutionalize[s]” this practice, and that “in

18   a capital case . . . what happens automatically as a result

19   of § 3E1.1 must be argued for.      The two are equally

20   appropriate.”   Id.   We are unpersuaded.    The quoted language

21   is arguably dicta, id. at 719 (“If error occurred in this

22   penalty proceeding, it was harmless.”); it conflicts with


                                    69
1    earlier Seventh Circuit precedent, see United States v.

2    Saunders, 973 F.2d 1354, 1362 (7th Cir. 1992) (“[U]nder the

3    so-called unconstitutional conditions doctrine . . . a

4    defendant may not be subjected to more severe punishment for

5    exercising his or her constitutional right to stand

6    trial.”); and it misconstrues Section 3E1.1 of the

7    Sentencing Guidelines, which does not contemplate increased

8    punishment for a failure to cooperate.19

9          For these reasons, we conclude that the government

10   unconstitutionally burdened Wilson’s Sixth Amendment right

11   to trial.20   Because Wilson’s Fifth Amendment rights were


          19
            See Mikos, 539 F.3d at 722 (Posner, J., concurring
     in part and dissenting in part) (“[T]here is a difference
     between a defendant’s arguing for leniency on the basis of
     his admitting to having committed the crime with which he is
     charged and the government’s asking the jury to draw an
     inference of heinousness from his failure to admit that.”).
     This distinction reflects the concerns that underlie this
     Court’s decision in Stratton.
          20
            The dissent accurately observes that United States
     v. Fell, 531 F.3d 197 (2d Cir. 2008) “goes largely
     unaddressed by the majority” in the discussion of Sixth
     Amendment error. Dissent at 9. The ground of distinction
     that renders Fell unhelpful here is that Fell’s willingness
     to plead was put in issue by him, so that the government’s
     argument was responsive. United States v. Fell, 531 F.3d
     197, 221 (2d Cir. 2008) (“We believe the[ government’s]
     arguments . . . were reasonable responses to Fell’s use of
     [his offer to plead guilty].”). Here, Wilson did not put in
     issue his decision to go to trial--he offered no proof
     (beyond his allocution) of his argument that he accepted
                                   70
1    also unconstitutionally burdened (see Point VII) we consider

2    harmlessness cumulatively (see Point VIII).

3

4                                 VII

5        At the start of the sentencing phase, defense counsel

6    advised the court that Wilson wanted to read to the jury a

7    statement of remorse in his own words, without taking the

8    witness stand.   On advice of counsel, the statement would

9    omit any “evidentiary” discussion of the crime itself.   The

10   government objected on the grounds that the statement was to

11   be unsworn and not subject to cross-examination.

12       Following a series of disputes concerning the

13   permissible scope of Wilson’s allocution,21 Wilson read this


     responsibility--and thus the government’s response
     unconstitutionally burdened that protected decision.
          21
            Wilson raises two arguments regarding the scope of
     his allocution. First, he contends that the district court
     abused its discretion by redacting the following: “It just
     hurted me to hear that young kid [Detective Andrews’s son,
     Christian] & his brother Justin will never have they father
     there to be the father most men refused to be like my own.
     I would never wish this for nobody because I know how
     painful it is.” Second, he argues that the prosecution
     unfairly exploited that ruling by citing to the jury
     Wilson’s failure to specify the conduct for which he was
     claiming remorse (i.e., murdering the two detectives).

          As to the first argument: Under the FDPA, the district
     court has the discretion to exclude evidence if the
                                   71
1    statement of remorse to the jury:

 2            Good afternoon. I, Ronell Wilson, wrote a
 3            statement that I want to read to you, the jury. I
 4            want you to understand my deepest sorrow towards
 5            the victim[s’] family and friends. I have seen
 6            the pain that I have caused the family and friends
 7            of the victims and to my own family and friends.
 8            I know that the wives and children and loved ones
 9            are also victims.
10
11            I would never wish this for anyone because I know
12            how painful it is. So I cannot be remorse[less]22
13            and show no sympathy to these men’s families and
14            friends.


     “probative value is outweighed by the danger of creating
     unfair prejudice, confusing the issues, or misleading the
     jury,” 18 U.S.C. § 3593(c), or if it is so unreliable that
     it “might render a trial fundamentally unfair,” United
     States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004) (internal
     quotation marks omitted). The district court therefore
     excluded from the allocution, inter alia, “any arguments
     raised by the [prosecution] (other than their argument that
     Wilson lacks remorse for murdering Detectives Andrews and
     Nemorin)” or any reference to “the testimony of any witness,
     including members of the victims’ families (who were sworn
     in and subject to cross-examination) . . . .” We review the
     district court’s decision limiting the scope of Wilson’s
     allocution for abuse of discretion. Fell, 531 F.3d at 219-
     20. Applying that standard, we find no error.

          The second argument overlooks the district court’s
     ruling explicitly allowing Wilson to allocute to his remorse
     for the specific crime of having murdered Detectives Andrews
     and Nemorin. Def. App. at 1315 (precluding Wilson from
     allocuting to “any arguments raised by the [prosecution]
     (other than their argument that Wilson lacks remorse for
     murdering Detectives Andrews and Nemorin.”) (emphasis
     added). Therefore, we find no error here, either.
         22
            The transcript shows the word as “remorseful,” but
     this appears to have been a typographical error.
                                  72
 1
 2             I am not good with words. I wish I could explain
 3             myself more better, but I am not truly--but I am
 4             truly sorry for the pain I have caused them all.
 5             I know that I have caused a great deal of pain to
 6             them all and I say it again and again, I am so
 7             sorry.
 8
 9             I am sorry that I caused so much pain throughout
10             my life to others, especially my family and the
11             families of the victims.
12
13             I know that the victims’ families may not accept
14             my apology but I pray that God will give them all
15             the comfort and strength that they need to move on
16             from this tragedy. I have the same prayer for my
17             family also.
18
19             Thank you.

20       Before summations, Wilson consented to an instruction

21   allowing the jury to consider that his statement of remorse

22   was neither sworn nor subject to cross-examination, and that

23   charge was ultimately given to the jury.   Wilson’s request

24   for the following no-adverse-inference instruction was

25   denied:

26             [Y]ou may draw no inference whatsoever from the
27             fact that the defendant has chosen not to testify
28             at the sentencing phase of this trial. He is
29             entitled to make that choice and there may be many
30             reasons for him having done so. The fact that he
31             did not testify is, quite simply, to play no part
32             whatsoever in your decision-making at this stage.
33
34       In its summation, the prosecution properly pointed out

35   that Wilson’s allocution was unsworn and uncrossed, but then


                                  73
1    went on to emphasize Wilson’s decision not to testify (the

2    problem wording is emphasized):

 3            I want to talk to you a minute about the statement
 4            itself. You may have noticed that when he made
 5            that statement, Ronell Wilson wasn’t sitting up
 6            there on the witness stand under oath, subject to
 7            cross-examination. He chose to do it from there
 8            (indicating). The path for that witness stand has
 9            never been blocked for Mr. Wilson, had that
10            opportunity too. He chose, like many other things
11            in this case, to do it that way.
12
13            You may ask yourselves well, what more would we
14            have if he took that stand, what would be the
15            difference? Well, we might have been able to ask
16            him when did you come up with this? How did you
17            come up with it? Why did you come up with it?
18            Why now? Why now of all times are you sorry? We
19            might be able to test the credibility of the
20            statement, the veracity of it. You might have
21            information that could help you decide if you need
22            to believe it. Ronell Wilson didn’t want that.
23            He wanted to say it from there, [“]take my word
24            for it now after all this, I’m sorry[”].
25
26   Def. App. at 868 (emphasis added).
27
28       After summation, defense counsel argued that the

29   prosecution had “suggest[ed that] he should have taken the

30   stand and been under oath. . . .     My concern is that the

31   jury shouldn’t come away with the misimpression that somehow

32   the defendant has the burden of taking the stand in a

33   capital case and be subjected to cross-examination.     That’s

34   just not the defendant’s burden.”    The defense requested a

35   curative instruction--to be inserted in the charge that

                                  74
1    explained how to evaluate the statement of remorse--that

2    “it’s not the burden of the defendant to take the stand or

3    to be subjected to cross-examination.”     The government

4    maintained that its argument was proper.    The court

5    instructed the jurors that, “[w]hen considering the

6    defendant’s statement of January 24, 2007, you may take into

7    account that the defendant made the statement without being

8    sworn in and without subjecting himself to cross-

9    examination.”   But the court gave neither of the requested

10   no-adverse-inference instructions.

11       Wilson concedes on appeal that it was within bounds for

12   the prosecution to comment in summation that the allocution

13   was not made under oath and was not subject to cross-

14   examination.    Wilson argues, however, that the allocution

15   did not effect a waiver of his Fifth Amendment right and

16   that the prosecution therefore violated that right by

17   telling the jury that “[t]he path to that witness stand has

18   never been blocked for Mr. Wilson.”   That approach accords

19   with the view of some courts, which have distinguished

20   between comments that focus on the fact that an allocution

21   was unsworn and uncrossed (deemed permissible) and comments

22   that emphasize the defendant’s failure to testify (deemed


                                    75
1    impermissible).     See, e.g., Depew v. Anderson, 311 F.3d 742,

2    750 (6th Cir. 2002); United States v. Martin Aguilar, No.

3    01-1367-cr (E.D.N.Y. Jan. 11, 2007); State v. Skatzes, No.

4    15848, 2003 WL 24196406, at *33 (Oh. App. Jan. 31, 2003).

5    We consider, however, that this permeable line is

6    ineffective for preserving the right; it is altogether too

7    likely that a jury will naturally (and sensibly) equate

8    testimony under oath subject to cross-examination with

9    testimony from the witness stand.     We adopt a different

10   approach, premised on waiver, a principle that inheres in

11   the uncontroversial rule that prosecutors can emphasize that

12   an allocution is unsworn and uncrossed.     We start with first

13   principles.

14       It is settled that prosecutors may not comment

15   adversely on a defendant’s invocation of his Fifth Amendment

16   privilege not to testify.    Griffin v. California, 380 U.S.

17   609, 615 (1965) (“[T]he Fifth Amendment . . . forbids either

18   comment by the prosecution on the accused’s silence or

19   instructions by the court that such silence is evidence of

20   guilt.”).     This protection extends to capital sentencing

21   proceedings.     See Estelle v. Smith, 451 U.S. 454, 462-63

22   (1981) (“We can discern no basis to distinguish between the


                                     76
1    guilt and penalty phases of respondent’s capital murder

2    trial so far as the protection of the Fifth Amendment

3    privilege is concerned.”).   To secure these protections,

4    “the Fifth Amendment requires that a criminal trial judge

5    must give a ‘no-adverse-inference’ jury instruction when

6    requested by a defendant to do so.”   Carter v. Kentucky, 450

7    U.S. 288, 300 (1981).

8        “The test governing whether a prosecutor’s statements

9    amount to an improper comment on the accused’s silence in

10   violation of the Fifth Amendment looks at the statements in

11   context and examines whether they naturally and necessarily

12   would be interpreted by the jury as a comment on the

13   defendant’s failure to testify.”   United States v. Knoll, 16

14   F.3d 1313, 1323 (2d Cir. 1994) (internal quotation marks

15   omitted).   However, a defendant’s conduct can result in a

16   limited waiver of his Fifth Amendment rights against self-

17   incrimination and against the drawing of an adverse

18   inference from his invocation of that right.   For example, a

19   defendant who testifies on direct cannot claim Fifth

20   Amendment immunity from cross-examination on matters that




                                   77
1    his own direct testimony put into dispute.23   Brown v.

2    United States, 356 U.S. 148, 155-56 (1958); see also

3    Harrison v. United States, 392 U.S. 219, 222 (1968) (“A

4    defendant who chooses to testify waives his privilege

5    against compulsory self-incrimination with respect to the

6    testimony he gives. . . .”); Lesko v. Lehman, 925 F.2d 1527,

7    1542 (3d Cir. 1991) (explaining that an adverse inference

8    may be drawn “when the defendant has testified as to some

9    facts concerning the crime charged, but has refused to

10   testify as to other facts within his knowledge”).   Limited

11   waiver accommodates the need of both sides for “the

12   opportunity to meet fairly the evidence and arguments of one

13   another.”   United States v. Robinson, 485 U.S. 25, 28, 33

14   (1988); see also id. at 28, 34 (holding that government’s



          23
             Wilson analogizes an unsworn, uncrossed allocution
     to a defendant’s use of his prior out-of-court statement and
     cites cases that refuse to find waiver in such
     circumstances. See, e.g., Horne v. Trickey, 895 F.2d 497,
     500-01 (8th Cir. 1990); Porter v. Estelle, 709 F.2d 944,
     958-59 (5th Cir. 1983). The analogy is inapt, because the
     type of allocution at issue here, read aloud to the jury by
     the defendant, is a close analog to testimony and does not
     sound like silence. Accord Booth v. State, 507 A.2d 1098,
     1114 (Md. 1986) (“[A]llocution is more like testimony than
     silence and for Fifth Amendment purposes is testimonial . .
     . .”), rev’d on other grounds, Booth v. Maryland, 482 U.S.
     496 (1987), overruled by, Payne v. Tennessee, 501 U.S. 808
     (1991).
                                   78
1    argument that defendant “could have taken the stand and

2    explained it to you, anything he wanted to,” was permissible

3    because it “fairly respond[ed] to an argument of the

4    defendant”).

5        Applying the principles of limited waiver articulated

6    in these cases, we hold that an unsworn, uncrossed

7    allocution constitutes a limited Fifth Amendment waiver that

8    allows the prosecution to argue for an adverse inference

9    from a defendant’s failure to testify as to that to which he

10   has allocuted.   Accord Booth v. State, 507 A.2d 1098, 1114

11   (Md. 1986) (explaining that the defendant’s allocution

12   constitutes, “at a minimum, a waiver of any privilege to

13   avoid comment by the prosecutor on the allocution”), rev’d

14   on other grounds, Booth v. Maryland, 482 U.S. 496 (1987),

15   overruled by, Payne v. Tennessee, 501 U.S. 808 (1991).

16   Thus, Wilson’s allocution constituted a limited waiver of

17   his right under Griffin to be free from adverse comment on

18   his failure to testify and of his right under Carter to a

19   blanket jury instruction prohibiting the jurors from

20   considering his silence.

21       Although Wilson’s allocution effected a limited waiver

22   of the Fifth Amendment rights he enjoyed under Griffin and


                                   79
1    Carter--the waiver was limited.    The prosecution attempted

2    conscientiously to focus solely on the subject matter of the

3    allocution and to maintain that context.     Even so, there is

4    something expansive about saying “[t]he path to that witness

5    stand has never been blocked for Mr. Wilson,” and a juror

6    could think that “never” is a period that extends back to

7    the guilt phase of the trial and extends as well to the full

8    penalty phase rather than just to the reading of the

9    allocution.   In any event, and despite his limited waiver,

10   Wilson remained entitled to a Carter no-adverse-inference

11   instruction upon request.

12       Neither request made by Wilson was wholly free from

13   defect.   The charge that Wilson requested pre-summation was

14   a fair statement of law at the time.    True, it did not take

15   into account the adverse inference that may be drawn from

16   the expression of remorse by allocution rather than by

17   testimony; but that is doctrine clarified in this opinion.

18   The instruction that Wilson sought post-summation would have

19   barred a permissible adverse inference from Wilson’s failure

20   to express remorse from the witness stand.

21       Nevertheless, the denial of any Carter instruction

22   risked transforming Wilson’s limited waiver into a complete


                                   80
1    one, particularly in view of some wording in the

2    government’s summation.   The district court should have

3    issued a variant of the Carter instruction that allowed the

4    jurors to consider Wilson’s failure to testify as to the

5    subject of his allocution, but that forbid them from

6    considering his failure to testify for any other purpose or

7    as to any other part of the defense’s case. 24

8        We next consider whether this error combined with the

9    Sixth Amendment error (see Point VI) requires us to vacate

10   the death sentences.

11

12                                VIII



          24
            As to the Fifth Amendment error, the dissent
     contends that our whole argument of harm rests on a mere
     three words reflecting an unfortunate choice of tense.
     Dissent at 12-13. A jurisprudence based on word-count would
     transform this area of law for the worse. In any event, the
     three words (“has never been”) are embedded in a pair of
     crucial, emphatic sentences, and drive the predicate: “The
     path for that witness stand has never been blocked for Mr.
     Wilson, had that opportunity too. He chose, like many other
     things in this case, to do it that way.” The dissent
     questions whether a jury would think (as we think) that
     “never” is a period that extends back “to the guilt phase .
     . . and extends as well to the full penalty phase.”
     Majority at 80. How far back, one wonders, does the dissent
     consider that “never” extends back? The word never is a
     humble Anglo-Saxon word, but it is emphatic. See Oxford
     English Dictionary (Draft rev. ed. June 2010) (“At no time
     or moment; on no occasion; not ever.”).
                                   81
1          Wilson has adequately preserved both his Sixth and

2    Fifth Amendment claims; harmless error review therefore

3    applies.    See Satterwhite v. Texas, 486 U.S. 249, 256

4    (1988).    Accordingly, we will vacate the sentences unless

5    the “prosecution can prove beyond a reasonable doubt that a

6    constitutional error did not contribute to the verdict.”

7    Id.   Because there are two errors, we consider whether

8    vacatur is required by these errors in the aggregate.      See

9    United States v. Rahman, 189 F.3d 88, 145 (2d Cir. 1999)

10   (per curiam) (“[T]he effect of multiple errors in a single

11   trial may cast such doubt on the fairness of the proceedings

12   that a new trial is warranted, even if no single error

13   requires reversal.”).

14         The prosecution cited two constitutional elections made

15   by Wilson--to go to trial and not to testify--as reasons to

16   reject two of Wilson’s offered mitigators: acceptance of

17   responsibility and remorse.   And the government then cited

18   the lack of remorse as evidence of an aggravating factor:

19   Wilson’s future dangerousness.      See Def. App. at 604 (“What

20   else tells you about the incredible danger that this man

21   poses? . . . The fact that the defendant has absolutely,

22   absolutely no remorse whatsoever for his actions.”); Def.


                                    82
1    App. at 885 (“Now, during jury selection, many of you talked

2    about wanting to believe that someone who committed murder

3    would wake up every day and feel sorry about it, feel some

4    remorse about what he had done.      Well, Ronell Wilson is not

5    that person.”).

6        Moreover, the focus on Wilson’s decision to elect a

7    trial had an uncontrollable resonance for the jury.      After

8    acknowledging Wilson’s “absolute right to go to trial,” the

9    government suggested that if Wilson had accepted

10   responsibility, he would not have “put the government to its

11   burden of proof, to prove he committed these crimes.”         Not

12   incidentally, however, the burden thus placed on the

13   prosecution to mount its case placed a counterpart burden on

14   the jurors to sit through it.

15       These arguments were potent--no juror found that Wilson

16   accepted responsibility or showed remorse, and every juror

17   found that Wilson presented a risk of future dangerousness.

18       On these facts, it is hard to see how the government

19   can prove that these errors were harmless.      Indeed, the

20   government’s emphasis on these arguments during summation

21   suggests they were not harmless beyond a reasonable doubt.

22   See Clemons v. Mississippi, 494 U.S. 738, 753 (1990) (the


                                     83
1    prosecution’s reliance on a particular issue bears on

2    whether error regarding that issue is harmless).   And the

3    district court acknowledged that lack of remorse and future

4    dangerousness (as evidenced, in part if not in whole, by a

5    lack of acceptance of responsibility) were among the most

6    influential factors that moved the jury to return a verdict

7    of death.   That insight accords with experience, intuition,

8    and research.25   The prosecution recognized as much in this

9    case. See Def. App. at 885 (“[D]uring jury selection . . .

10   [m]ost of you talked about acceptance of responsibility and


          25
            See, e.g., Riggins v. Nevada, 504 U.S. 127, 143
     (1992) (Kennedy, J., concurring) (“In a capital sentencing
     proceeding, assessments of character and remorse may carry
     great weight and, perhaps, be determinative. . . .”); United
     States v. Mikos, 539 F.3d 706, 724 (7th Cir. 2008) (Posner,
     J., concurring in part and dissenting in part) (citing
     studies and articles supporting this proposition); Michael
     A. Simons, Born Again on Death Row: Retribution, Remorse,
     and Religion, 43 Cath. Law 311, 322 (2004) (“The importance
     of a defendant’s remorse in capital sentencing is well
     documented. Empirical studies of capital juries have
     demonstrated that a defendant’s remorse (or lack of remorse)
     is one of the single most important factors in the jury’s
     sentencing decision.” (footnote omitted)); Theodore
     Eisenberg, Stephen P. Garvey, & Martin T. Wells, But was he
     sorry? The Role of Remorse in Capital Sentencing, 83
     Cornell L. Rev. 1599, 1633 (1998) (“In short, if [South
     Carolina] jurors believed that the defendant was sorry for
     what he had done, they tended to sentence him to life
     imprisonment, not death.”); William S. Geimer & Jonathan
     Amsterdam, Why Jurors Vote Life or Death: Operative Factors
     in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1,
     51-53 (1987-88).
                                   84
1    remorse and how important those things would be to you when

2    you decide what punishment would be appropriate.”).

3        The harm might have been mitigated if the jury could

4    have relied on a Carter instruction given in the guilt

5    phase.   However, the district court’s instructions in the

6    sentencing phase implied that the no-adverse-inference

7    principle articulated during the guilt phase affirmatively

8    did not apply to the sentencing phase:

 9             [I]t is my responsibility to instruct you as to
10             the law that governs this phase. . . . [I]t would
11             be a violation of your oaths as jurors to base
12             your sentencing decisions upon any view of the law
13             other than that given to you in these
14             instructions.
15
16             Some of the legal principles that you must apply
17             in this phase duplicate those you followed in
18             reaching your verdict as to the guilt of this
19             Defendant. Others are different. The
20             instructions I am giving you now are a complete
21             set of instructions about the law applicable to
22             the penalty phase.
23
24   That “complete set of instructions about the law applicable

25   to the penalty phase” omitted any no-adverse-inference

26   principle.

27       In light of these considerations, we cannot say beyond

28   a reasonable doubt that the effects of the two




                                   85
1    constitutional errors were harmless.26   Accordingly, we

2    vacate the death sentences (only) and remand to the district

3    court for a new sentencing phase.

4

5                                 IX

6        Applying well-established rules of law, we find that

7    Wilson’s arguments addressed in this Point are meritless.

8    However, in a death penalty case we are statutorily obliged

9    to address all arguments in writing, and we do so here.     18

10   U.S.C. § 3595(c).

11

12                                 A

13       Wilson asserts that in the penalty phase summations,

14   the prosecution castigated defense counsel for [i]

15   presenting the mitigating evidence, and [ii] shifting the

16   blame for the murders to the victims and others.     We will

17   reverse on the ground of prosecutorial misconduct only if


          26
            The dissent finds no Sixth Amendment violation, and
     punts as to whether there was a violation of the Fifth
     Amendment. We, therefore, do not join issue with the
     dissent on whether a Fifth Amendment error alone would be
     harmless. Our analysis concludes only that the two errors--
     each reinforcing and amplifying the other on the critical
     issues of remorse, acceptance of responsibility, and future
     dangerousness--cannot be found harmless beyond a reasonable
     doubt.
                                   86
1    that misconduct caused “substantial prejudice by so

2    infecting the trial with unfairness as to make the resulting

3    conviction a denial of due process.”   United States v.

4    Elias, 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation

5    marks omitted).   “In assessing whether prosecutorial

6    misconduct caused ‘substantial prejudice,’ this Court has

7    adopted a three-part test: the severity of the misconduct,

8    the measures adopted to cure the misconduct, and the

9    certainty of conviction absent the misconduct.”     Id.   Here,

10   misconduct (if any) could not be deemed severe.     See United

11   States v. Newton, 369 F.3d 659, 681 (2d Cir. 2004)

12   (cautioning against “disproportionate emphasis [on] isolated

13   incidents of alleged error”); Elias, 285 F.3d at 191 (“[T]he

14   severity of the misconduct is mitigated if the misconduct is

15   an aberration in an otherwise fair proceeding.”).     Moreover,

16   Wilson cannot show substantial prejudice:   The jury charge

17   directed broad consideration of mitigation factors, and the

18   challenged comments did not bolster the government’s

19   aggravating factors or undermine Wilson’s mitigating

20   factors.

21

22                                 B


                                   87
1        The district court instructed the jury that in order to

2    decide that Wilson constituted a future danger (a non-

3    statutory aggravating factor), it needed to find that “the

4    defendant is likely to commit criminal acts of violence in

5    the future that would constitute a continuing and serious

6    threat to the lives and safety of others.” (emphasis added).

7    Wilson argues that the district court erred in rejecting his

8    proposed jury instruction, which used both “likely” and

9    “probable” to describe future dangerousness.

10       Since the two words are synonymous, the court’s

11   instruction viewed as a whole, see United States v.

12   Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004), did not mislead

13   the jury as to the correct standard, see People v. Randall,

14   711 P.2d 689, 692 (Colo. 1985) (defining “likely” as

15   synonymous with “probable”); see also Fadiga v. Attorney

16   Gen. of the U.S., 488 F.3d 142, 154 (3d Cir. 2007) (“[T]he

17   proper inquiry is whether there is a ‘reasonable likelihood’

18   (or, synonymously, a ‘reasonable probability’). . . .”).

19   Wilson’s own proposed instruction used “likely” and

20   “probable” interchangeably.   Wilson’s related argument that

21   the prosecutor’s summation filled a supposed “void” as to

22   the probability standard also fails, because any possible



                                   88
1    prejudice from the prosecutor’s summation was cured by the

2    district court’s proper instruction.     See United States v.

3    Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam).

4

5                                    C

6        Wilson contends that the jury was left to think that

7    failure to deliver a unanimous verdict would allow the court

8    to impose some other, lesser sentence.     In support, Wilson

9    cites the district court’s refusal to charge that if the

10   jury deadlocked, Wilson would be sentenced to life without

11   the possibility of parole, coupled with two features of the

12   special voting form, which [i] solicited a unanimous vote as

13   to either death or life without the possibility of parole

14   and [ii] for three of the capital counts, directed a jury

15   that had not reached a unanimous vote on either sentencing

16   option to vote on whether “some other sentence authorized by

17   law shall be imposed.”     Wilson posits that a juror who would

18   vote against the death penalty if a life sentence without

19   the possibility of parole was the certain alternative might

20   vote for death to avoid creating a deadlock that would allow

21   Wilson’s future release.

22       A capital defendant is not entitled to a jury



                                     89
1    instruction on the effect of deadlock.     Jones v. United

2    States, 527 U.S. 373, 382 (1999) (“[T]he proposed

3    instruction has no bearing on the jury’s role in the

4    sentencing process.   Rather, it speaks to what happens in

5    the event that the jury is unable to fulfill its role--when

6    deliberations break down and the jury is unable to produce a

7    unanimous sentence recommendation. . . .     We have never

8    suggested, for example, that the Eighth Amendment requires a

9    jury be instructed as to the consequences of a breakdown in

10   the deliberative process.”).

11       To show that “the instructions and decision forms”

12   confused the jury, a defendant must demonstrate that “there

13   is a reasonable likelihood that the jury has applied the

14   challenged instruction in a way that violates the

15   Constitution.”   Id. at 389-90 (internal quotation marks

16   omitted).   The adverse effect that Wilson posits was

17   foreclosed by repeated instructions that Wilson would be

18   sentenced either to death or to life in prison without the

19   possibility of parole.   There is no “reasonable likelihood”

20   that the jury misunderstood the charge:     The jury

21   unanimously found proven the mitigating factor that Wilson

22   would stay in prison for the rest of his life if he were not



                                    90
1    sentenced to death.   See Boyde v. California, 494 U.S. 370,

2    380 (1990).

3

4                                D

5        In a capital case, a defendant may present to the jury

6    as a mitigating factor the fact that “[a]nother defendant or

7    defendants, equally culpable in the crime, will not be

8    punished by death.”   18 U.S.C. § 3592(a)(4).   The district

9    court allowed Wilson to stipulate that other members of the

10   Stapleton Crew who participated in the crime (Whitten,

11   Green, and Bullock) had not been sentenced to death.     Wilson

12   wanted the jury to learn that they had been sentenced to a

13   term of years, not life in prison.   When that request was

14   denied, Wilson withdrew this mitigating factor.

15       In the sentencing phase of a capital trial, this Court

16   gives deference to the district court’s decision on the

17   admissibility of evidence and will not overrule it so long

18   as it does not abuse its discretion by acting arbitrarily or

19   irrationally.   United States v. Pepin, 514 F.3d 193, 202 (2d

20   Cir. 2008).

21       The district court ruled that the stipulation provided

22   all the relevant information required by the statute, and


                                     91
1    that further evidence as to specific prison sentences would

2    have low probative value, would confuse the jury, and would

3    provoke or require trials within the trial concerning the

4    other defendants, their cooperation, and their roles in the

5    murders.   That decision was no abuse of discretion; the

6    reasons adduced by the court are either explicitly permitted

7    by the statute or have been accepted by this Court.     See 18

8    U.S.C. § 3953(c) (“[I]nformation may be excluded if its

9    probative value is outweighed by the danger of creating

10   unfair prejudice, confusing the issues, or misleading the

11   jury.”); Pepin, 514 F.3d at 206 (ruling that the district

12   court’s decision to exclude evidence of the defendant’s

13   prior crimes for fear that they would confuse the issues at

14   hand by requiring a “diversionary trial within a trial” was

15   not an abuse of discretion).

16       Even assuming that the jury would find the other

17   defendants “equally culpable in the crime”--though it was

18   Wilson who pulled the trigger--the probative value of

19   additional specific sentences was small.   The jury had

20   already learned, when two of Wilson’s fellow gang members

21   testified, that both Jacobus (who was with Wilson during the

22   murders) and Diaz (who provided the murder weapon) were



                                    92
1    sentenced to a minimum of 15-25 years imprisonment.      The

2    defense attorney in summation pointed out that Jacobus could

3    therefore be out of prison in twelve years.

4

5                                 E

6        Wilson argues that United States v. Whitley, 529 F.3d

7    150 (2d Cir. 2008), requires vacatur of his life sentence

8    for Count Six (use of a firearm during a crime of violence,

9    18 U.S.C. § 924(c)(1)(A)(iii)), as well as his life

10   sentences for Counts Seven and Eight (causing death through

11   the use of a firearm, 18 U.S.C. § 924(j)).    We hold that any

12   error here is harmless and so we affirm as to this issue.

13       Section 924(c)(1)(A) provides, in relevant part:

14            Except to the extent that a greater minimum
15            sentence is otherwise provided by this subsection
16            or by any other provision of law, any person who,
17            during and in relation to any crime of violence or
18            drug trafficking crime . . . for which the person
19            may be prosecuted . . . uses or carries a firearm,
20            or who, in furtherance of any such crime, possesses
21            a firearm, shall, in addition to the punishment
22            provided for such crime of violence or drug
23            trafficking crime--
24
25            (iii) if the firearm is discharged, be sentenced to
26            a term of imprisonment of not less than 10 years.
27
28   18 U.S.C. § 924(c)(1)(A)(iii) (emphasis added).    The

29   underlying predicate offense need not be a firearms offense:


                                  93
1    “[t]he ‘except’ clause includes minimum sentences for

2    predicate statutory offenses arising from the same criminal

3    transaction or operative set of facts.”      United States v.

4    Williams, 558 F.3d 166, 171 (2d Cir. 2009).      Section 924(j)

5    provides in turn that “[a] person who, in the course of a

6    violation of subsection (c), causes the death of a person

7    through the use of a firearm, shall . . . if the killing is

8    a murder . . . be punished by death or by imprisonment for

9    any term of years or for life.”      18 U.S.C. § 924(j)

10   (emphasis added).

11       Capital sentences imposed under § 924(j) (Counts Seven

12   and Eight) withstand Whitley.     Section 924(j) is triggered

13   by a “violation” of § 924(c).     See 18 U.S.C. § 924(j).      But

14   § 924(c) has both a substantive component (describing

15   criminal conduct) and a punishment component (setting out

16   the range of permissible sentences for criminals who engage

17   in that criminal conduct).   A plain reading of § 924(j),

18   therefore, indicates that a § 924(j) sentence is proper if

19   the defendant violates the substantive component of §

20   924(c); whether that defendant can be properly sentenced

21   under § 924(c) is of no moment.      Since Wilson’s § 924(c)

22   conviction stands, so do his sentences under § 924(j).         Any


                                     94
1    error specific to Count Six would be harmless, due to the

2    mandatory minimum sentences of life without the possibility

3    of parole already in place.   See United States v. Rivera,

4    282 F.3d 74, 78 (2d Cir. 2002).    Therefore, we affirm as to

5    this issue.

6

7                             CONCLUSION

8        For the foregoing reasons, we affirm the convictions,

9    vacate the death sentences (only), and remand for a new

10   sentencing phase consistent with this opinion.




                                   95
 1   DEBRA ANN LIVINGSTON, Circuit Judge, concurring in part and dissenting in part:

 2           The majority concludes that the jury’s five capital sentencing determinations must be set

 3   aside on two separate grounds, each involving the government’s response to Ronell Wilson’s claims,

 4   in mitigation, that he felt remorse for the murders of Detectives Andrews and Nemorin and that he

 5   accepted responsibility for his actions. First, the majority determines that about fifty allegedly errant

 6   words in the government’s summation during the penalty phase unconstitutionally burdened

 7   Wilson’s Sixth Amendment right to a jury trial.           Second, it concludes that Wilson’s Fifth

 8   Amendment rights were violated by three additional words in the summation, coupled with the trial

 9   court’s failure to give a “no adverse inference” instruction pursuant to Carter v. Kentucky, 450 U.S.

10   288 (1981), albeit one modified for the special circumstances of this case. Because I conclude that

11   there was no Sixth Amendment violation, and that any Fifth Amendment error that took place was

12   indisputably harmless, I respectfully dissent from Parts VI, VII, and VIII of the majority’s opinion,

13   and from the judgment vacating the death sentences. I join in the remainder of the majority’s

14   opinion.

15                                 I. The Penalty Phase of Wilson’s Trial

16           Proper assessment of the purported errors on which the majority relies requires a fuller

17   presentation of the background facts regarding Wilson’s sentencing hearing. The penalty phase of

18   Ronell Wilson’s trial, conducted before the same jury that convicted him of five capital crimes,

19   lasted for nine days, involved some forty witnesses, and encompassed nearly 1800 pages of trial

20   transcript. The Federal Death Penalty Act required the government to prove at least one threshold

21   culpability factor and one statutory aggravating factor beyond a reasonable doubt before Wilson was

22   eligible for the death penalty. 18 U.S.C. § 3593(c), (e). The government relied on trial evidence


                                                        1
 1   alone to prove four threshold culpability factors,1 two statutory aggravating factors, and two

 2   additional non-statutory aggravating factors.2 The government’s penalty phase evidence thus focused

 3   on its remaining non-statutory aggravating factors: that Wilson had caused loss, injury, and harm to

 4   the victims and their families; and that he represented a continuing danger to the lives and safety of

 5   other persons.

 6          The government called ten victim impact witnesses, among them Maryanne Andrews,

 7   Detective Andrews’s ex-wife; sixteen year old Christian Andrews, one of Detective Andrews’s two

 8   sons; Rose Nemorin, Detective Nemorin’s widow and the mother of his three children; and Detective

 9   Nemorin’s sister, Marie-Jean Nemorin. The government introduced an additional seventeen

10   witnesses and many exhibits attesting to Wilson’s violent past, which began early in childhood, as

11   well as his ongoing membership and leadership role in the Bloods and his continuing violent

12   behavior in custody after being arrested for the murders of Detectives Andrews and Nemorin.

13          The Federal Death Penalty Act provides that the defense may, if it wishes, ask the jury during


     1
       These four factors were: (1) that Wilson “intentionally killed [his] victim[s]”; (2) that he
     “intentionally inflicted serious bodily injury that resulted in the death of [his] victim[s]”; (3) that
     he “intentionally participated in an act, contemplating that the life of a person would be taken or
     intending that lethal force would be used in connection with a person, other than one of the
     participants in the offense, and the victim[s] died as a direct result of the act”; and (4) that he
     “intentionally and specifically engaged in an act of violence, knowing that the act created a grave
     risk of death to a person . . . such that participation in the act constituted a reckless disregard for
     human life and the victim[s] died as a direct result of the act.” 18 U.S.C. §§ 3951(a)(2)(A)-(D).
     2
       The two statutory aggravating factors relied on by the government were that Wilson committed
     the offenses for “pecuniary gain,” 18 U.S.C. § 3592(c)(8), and that he “intentionally killed . . .
     more than one person in a single criminal episode”, id. § 3592(c)(16). The two non-statutory
     aggravating factors for which the government relied on trial evidence were: (1) that Wilson
     murdered two law enforcement officers during the course of their official duties, and that this
     factor tended to support imposition of the death penalty; and (2) that he faced contemporaneous
     convictions for other serious acts of violence charged in the counts in the indictment on which he
     had been convicted.

                                                        2
 1   the penalty phase to find specific mitigating factors, which must be shown by a preponderance of the

 2   evidence. Id. § 3593(c). Wilson identified eighteen such factors for the jury to consider. Wilson

 3   presented thirteen witnesses during his defense case, including his mother, Cheryl Wilson; his father,

 4   Robert Earl Barnes; and his sister, Depetra Wilson. The defense also introduced numerous exhibits,

 5   including dozens of photographs of Wilson as a child and many documents depicting aspects of his

 6   troubled upbringing, which was the principal focus of the defense’s mitigation case. Other defense

 7   evidence purported to show that Wilson had adjusted to federal prison and would not be a danger

 8   in the future if spared the death penalty. Without taking the stand, Wilson himself read a prepared,

 9   unsworn statement to the jury that expressed remorse for his crimes.3

10             At the close of the evidence, the jurors were instructed that they were called upon “to make

11   a unique, individualized judgment about the appropriateness of imposing the death penalty.” Tr.


     3
         The full text of the statement reads as follows:

                       Good afternoon. I, Ronell Wilson, wrote a statement that I want to read to
               you, the jury. I want you to understand my deepest sorrow towards the victim’s
               family and friends. I have seen the pain that I have caused the family and friends
               of the victims and to my own family and friends. I know that the wives and
               children and loved ones are also victims.
                       I would never wish this for anyone because I know how painful it is. So I
               cannot be remorseful and show no sympathy to these men’s family and friends.
                       I am not good with words. I wish I could explain myself more better [sic],
               but I am not truly – but I am truly sorry for the pain I have caused them all. I
               know that I have caused a great deal of pain to them all and I say it again and
               again, I am so sorry.
                       I am sorry that I caused so much pain throughout my life to others,
               especially my family and the families of the victims.
                       I know that the victims’ families may not accept my apology but I pray
               that God will give them all the comfort and strength that they need to move on
               from this tragedy. I have the same prayer for my family also. Thank you.

     Tr. 1501.


                                                            3
 1   1743. Each juror was instructed to weigh the aggravating factors that all jurors had agreed on

 2   unanimously against any mitigating factors that the individual juror believed to be present. The

 3   jurors were then instructed to determine whether they unanimously concluded that the aggravating

 4   factors sufficiently outweighed any mitigating factors or, in the absence of mitigating circumstances,

 5   whether the aggravating factors by themselves justified a sentence of death. Id. at 1741. Wilson’s

 6   jury was specifically instructed that “no jury is ever required to impose the death penalty” and that

 7   the jury may decline to do so “without giving a reason for that decision.” Id. Urged by the court to

 8   give “careful and thorough consideration to all the evidence,” id. at 1724, the jurors deliberated for

 9   over a day and half.

10          The jury agreed unanimously that the government had established each of its four threshold

11   culpability factors and the six aggravating factors upon which it relied beyond a reasonable doubt.

12   The jurors also agreed unanimously that Wilson had established thirteen mitigating factors by a

13   preponderance of the evidence, and that one additional factor was present which the jury itself

14   identified.4 No juror concluded that Wilson had established, as he attempted, that he felt remorse


     4
       The jury unanimously found in mitigation that (1) Wilson was twenty years old on the date of
     the crimes, (2) if not sentenced to death, Wilson would be incarcerated “for the rest of his life in
     prison without possibility of release or parole,” (3) Wilson’s parents were substance abusers
     “which resulted in poor parenting, an unstable and chaotic living environment, and separation of
     his family,” (4) at age twenty-one months, Wilson was hospitalized for over two weeks after
     contracting bacterial meningitis, (5) Wilson was exposed to drugs and violence as a child and
     adolescent, (6) Wilson grew up in “poverty and deprivation,” (7) during his childhood, Wilson
     “was admitted to hospitals on at least four occasions for psychiatric care,” (8) throughout his
     childhood, Wilson was “prescribed medication by mental health professionals,” (9) Wilson had a
     history of depression, (10) Wilson performed “well below grade level in school,” (11) Wilson
     was placed in Special Education classes, (12) Wilson’s poor performance in school was “affected
     by negative influences in his home life,” and (13) Wilson had a “loving relationship with his
     family members, who [would] suffer grief and loss if he [were] executed.” Verdict Form at 13-
     14, App’x at 1392-93. The jury also unanimously identified as an additional mitigating factor
     that Wilson “was possibly subject to peer pressure.” Id. at 15. An additional eleven jurors

                                                       4
 1   for his crimes, that he had accepted responsibility for them, or that he had adjusted well to federal

 2   prison. The jury unanimously voted to sentence Wilson to death on each of the five capital counts.

 3                                 II. Wilson’s Sixth Amendment Claim

 4          Wilson presented as mitigating factors during the penalty phase that he “had take[n]

 5   responsibility for his actions” and that he “ha[d] remorse for the murder[s] of Detectives Andrews

 6   and Nemorin.” Verdict Form at 15, App’x at 1394. The principal evidence – indeed, the only

 7   evidence – that Wilson offered in support of these mitigating factors was the prepared, unsworn

 8   statement that he read to the jury without taking the stand. In it, Wilson claimed to be “truly sorry”

 9   for the pain he had caused, and he expressed his “deepest sorrow towards the victim’s [sic] family

10   and friends.” Tr. 1501. The majority concludes that the government unconstitutionally burdened

11   Wilson’s Sixth Amendment right to a jury trial in challenging the credibility of this allocution during

12   its summation. Respectfully, I disagree.

13          The government’s allegedly improper words came not in the principal part of its summation,

14   which addressed the evidence supporting each of the aggravating factors on which the government

15   relied, but in that portion of the summation discussing the mitigating factors that Wilson urged to

16   be present. The majority focuses solely on the language in italics, which reads in its broader context

17   as follows:

18                 Ronell Wilson takes responsibility for his actions. Ronell Wilson has
19          remorse for the murders of Detective Andrews and Nemorin. Did Ronnell Wilson
20          show remorse after he killed Detective Andrews and when he turned the gun on
21          Detective Nemorin, killed him as he begged for his life? . . . From the moment of



     concluded that “[d]uring his early childhood, Ronell Wilson was exposed to an unsafe and
     unsanitary home environment,” and three jurors found that Wilson’s “scores on standardized
     intelligence tests are below average.” Id. at 13-14.

                                                       5
 1           those murders up to the start of this trial, did you hear any evidence, is there any
 2           evidence in the record of remorse or acceptance of responsibility? There’s none.
 3                   Ronell Wilson up until the very moment that he addressed you last week has
 4           done everything he could to escape responsibility for his crimes.
 5                   He has an absolute right to go to trial, put the government to its burden of
 6           proof, to prove he committed these crimes, but he can’t have it both ways. He can’t
 7           do that, then say I accept responsibility. . . . And [say “]I’m sorry, only after you
 8           prove I did it.[”] That’s not acceptance of responsibility. That is a manipulative
 9           criminal saying what he has to, saying what he knows you want to hear when it’s in
10           his interest to say it.
11                   The timing of his statement alone should tell you it’s nothing more than a
12           self-interested selfish man trying to save his own skin.
13
14   Tr. 1637-38.

15           The majority contends that this language – which explicitly states that Wilson had an

16   “absolute right to go to trial” – nevertheless unlawfully burdened his Sixth Amendment right to jury

17   trial by using “Wilson’s constitutionally protected decision to go to trial . . . as a reason to sentence

18   him to death.”     (Maj. Op. at 69.)       This contention, however, simply mischaracterizes the

19   government’s summation. The government did not, as the majority contends, “cite[] as a reason to

20   sentence him to death” that Wilson had elected to go to trial. (Id.) Instead, the government

21   appropriately responded to Wilson’s mitigation evidence.

22           The challenged comments occurred in response to Wilson’s endeavor to persuade the jury

23   that he had accepted responsibility for his actions, and that in light of this mitigating factor – a factor

24   he placed before the jury – a sentence of death was not justified. The government did not, as the

25   majority contends, seek to “characterize . . . the request for trial by jury as an aggravating

26   circumstance,” Zant v. Stephens, 462 U.S. 862, 885 (1983) (citation omitted) – a reason “to sentence

27   [Wilson] to death.” (Maj. Op. at 69.) Instead, it sought only to draw into question the credibility

28   of Wilson’s late-in-coming expression of remorse, which Wilson proffered as a basis for concluding



                                                         6
 1   that the government’s evidence in aggravation did not justify the multiple death sentences for which

 2   he was eligible.5

 3          United States v. Stratton, 820 F.2d 562 (2d Cir. 1987), on which the majority relies, is

 4   therefore inapplicable. Stratton recognized a distinction between “increasing the severity of a

 5   sentence for a defendant’s failure to cooperate,” which is prohibited, and “refusing to grant

 6   leniency,” which is not. Stratton, 820 F.2d at 564. But Stratton would only be relevant here, to the

 7   extent relevant at all, if the government had urged the jury to consider Wilson’s exercise of his jury

 8   trial right as a reason to sentence him to death. Again, this is not what the government did. The

 9   prosecutor’s remarks came not in his discussion of aggravating factors, but in his examination of the

10   mitigating evidence put forward by Wilson, and in the context of explaining why this evidence

11   should not be credited.
     5
       The majority also appears to contend that the jury’s consideration of the future dangerousness
     aggravator was somehow tainted because Wilson’s lack of remorse was cited to show his future
     dangerousness. (Maj. Op. at 68 & n.18, 82.) This argument is made despite the fact that
     Wilson’s decision to go to trial was never cited as a reason to find this aggravating factor. The
     jury instructions permitted the jury to consider lack of remorse as evidence of future
     dangerousness; the defense did not object to this language below, the majority does not state that
     allowing this consideration was error in and of itself, and it would be perfectly logical for the jury
     to conclude that one who lacks remorse for multiple murders could be more likely to be a danger
     in the future. Moreover, even accepting (as I do not) the majority’s argument regarding “taint,”
     the majority concludes that this supposed Sixth Amendment error was not harmless only in light
     of the Fifth Amendment error it also cites: “Our analysis concludes only that the two errors –
     each reinforcing and amplifying the other on the critical issues of remorse, acceptance of
     responsibility, and future dangerousness – cannot be found harmless beyond a reasonable doubt.”
     (Maj. Op. at 87 n.26.) The prosecutor, however, cited neither Wilson’s decision to go to trial nor
     his decision not to testify as evidence of dangerousness. Furthermore, as explained infra, in light
     of Wilson’s waiver of his Fifth Amendment right as to the subject of his remorse (a waiver that
     the majority agrees took place) the jury was entitled to draw an adverse inference as to this
     subject from Wilson’s decision not to take the stand. Thus, even apart from the overwhelming
     evidence of future dangerousness that would render any supposed “taint” as to dangerousness
     indisputably harmless, the Fifth Amendment error on which the majority relies to conclude that
     its supposed Sixth Amendment error was not harmless in no way “reinforc[ed]” or “amplif[ied]”
     this supposed error.

                                                       7
 1           The prosecutor’s comment, to the effect that the allocution lacked credibility as a statement

 2   of remorse because it came only when Wilson faced punishment for his crimes, was entirely proper.

 3   It is both natural and irresistible for a jury, in evaluating the sincerity of a statement of contrition,

 4   to note when it comes only at the point a defendant is seeking to avoid the maximum penalty and

 5   when it is utterly devoid of corroboration. In an analogous situation, the Supreme Court has

 6   indicated that prosecutorial comment pointing these facts out to the jury impairs no constitutional

 7   rights. See Portuondo v. Agard, 529 U.S. 61, 67-68 (2000). In Portuondo, the Supreme Court

 8   determined that it did not unlawfully burden a defendant’s Sixth Amendment rights to be present and

 9   to confront the witnesses against him for a prosecutor to comment, in summation, on the opportunity

10   that the exercise of these rights provided the defendant to tailor his testimony in light of the

11   government’s case. The Court noted that “it is natural and irresistible for a jury, in evaluating the

12   relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact

13   that he heard the testimony of all those who preceded him.” Id. Prohibiting the prosecutor from

14   making this point, as the majority would do in this case, is unjustifiable: to do so “either prohibits

15   inviting the jury to do what the jury is perfectly entitled to do; or it requires the jury to do what is

16   practically impossible.” Id. at 68.

17           This case is thus substantially less difficult than United States v. Mikos, 539 F.3d 706 (7th

18   Cir. 2008), in which the Seventh Circuit determined that the government was entitled to rely on the

19   defendant’s supposedly remorse-free demeanor in court – in essence, on his decision to go to trial

20   and remain silent there – to prove an aggravating factor: that the defendant had no remorse for his

21   crimes. The majority criticizes Mikos, but the Seventh Circuit’s analysis is wholly apt to explain

22   why the remarks at issue here were proper:


                                                        8
 1           [The defendant] fought every charge every step of the way. That was his right, but
 2           in the process he showed no remorse, compared with a person who conceded some
 3           culpability . . . If it is proper to take confessions, guilty pleas, and vows to improve
 4           one’s life into account when deciding whether a murderer should be put to death –
 5           and it is unquestionably proper for a judge or jury to do so, see Williams v. Taylor,
 6           529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) – then it must also be proper
 7           for the prosecutor to remind the jury when none of these events has occurred.
 8
 9   Mikos, 539 F.3d at 718.

10           In truth, this case is quite akin to United States v. Fell, 531 F.3d 197 (2d Cir. 2008), which

11   goes largely unaddressed by the majority. The defendant in Fell introduced evidence during the

12   penalty phase of his capital trial that he had offered to plead guilty in exchange for a sentence of life

13   imprisonment without parole – evidence he said was relevant to establishing that he had accepted

14   responsibility for his actions. Sentenced to death, Fell challenged the government’s summation

15   comments to the effect that “if [Fell] wanted to plead guilty, he could have pled guilty”:

16                   Let’s move on to the next [mitigating] factor: Donald Fell offered to plead
17           guilty to kidnapping and murder[] . . . knowing that the law requires a sentence of life
18           imprisonment without the possibility of release and he has maintained that offer to
19           this day.
20                   Ladies and gentlemen, the judge instructed you. You know the law. Life
21           imprisonment without the possibility of release is the minimum sentence that Donald
22           Fell faces for kidnapping with death resulting. It’s the minimum sentence. When he
23           offered to make that plea, he knew the evidence against him was overwhelming. . . . .
24                   ....
25                   Ladies and gentlemen, we had to try to convict him. If he wanted to plead
26           guilty, he could have pled guilty. We had a guilt phase in this case, ladies and
27           gentlemen. We put on our case. We met our burden. We proved it. And now we
28           are here to decide what is the just sentence. The minimum sentence? Or the death
29           Sentence?
30




                                                        9
 1   Trial Tr. at 50, United States v. Fell, No. 01-12 (D. Vt. July 13, 2005). This Court determined that

 2   the government’s remarks constituted a reasonable response to Fell’s evidence in mitigation and that

 3   “[n]o error occurred.” Id. at 221.6

 4             Both Fell and Wilson exercised their constitutional right to go to trial. Both thereafter sought

 5   to persuade the jury that they had accepted responsibility, and that this was a factor in mitigation that

 6   the jury should take into account. Fell attempted to do so by showing that he was willing to accept

 7   punishment short of death, Wilson with his statement of contrition. The jury in each case could have

 8   considered this evidence and found it persuasive. At the same time, however, the government was

 9   entitled to point to reasons that jurors should not take this course. Cf. Portuondo, 529 U.S. at 68;

10   United States v. Robinson, 485 U.S. 25, 32 (1988) (noting that “where . . . [a] prosecutor’s reference

11   to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his

12   counsel,” the Fifth Amendment is not violated). It is thus wholly irrelevant that Fell is distinct from

13   this case, as Wilson and the majority contend, because Wilson, unlike Fell, introduced no evidence

14   that he had offered to plead. (Maj. Op. at 70 n.20.)




     6
         The prosecutor had also argued at the guilt phase in Fell that:

               [D]efense counsel . . . told you in his opening statement that Donald Fell accepted
               responsibility for what he did. But that’s not entirely true because as the judge
               told you on the first day of trial Donald Fell has pleaded not guilty. And because
               he pleaded not guilty a jury must find whether or not the Government can
               introduce evidence beyond a reasonable doubt to overcome the presumption of
               innocence that the law provides to Donald Fell.
               ....
               [D]efense counsel also said that Fell accepts responsibility for what he did. But
               he pleaded not guilty. And that’s why we’re here. . . .

     Fell, 531 F.3d at 220 n.13.

                                                         10
 1          In Fell’s case, the prosecutor legitimately argued that an offer to plead guilty in exchange for

 2   the minimum penalty authorized for one’s conduct does not demonstrate acceptance of

 3   responsibility. Fell, 531 F.3d at 221; see also Br. of Appellant at 79, Fell, 531 F.3d 197 (noting that

 4   the plea offer was introduced in an attempt to demonstrate acceptance of responsibility as a

 5   mitigating factor). It was in that context that the prosecutor stated, “we had to try to convict him.

 6   If he wanted to plead guilty, he could have pled guilty. We had a guilt phase in this case, ladies and

 7   gentlemen. We put on our case. We met our burden.” In Wilson’s case, the government argued that

 8   a statement of contrition that came at the last minute and was uncorroborated by any other evidence

 9   was not worthy of belief. It was in that context that the prosecutor said, “[Wilson] has an absolute

10   right to go to trial, put the government to its burden of proof, to prove he committed these crimes,

11   but he can’t have it both ways.” In neither case did the prosecution urge the jury to sentence the

12   defendant to death because he went to trial and in neither case were the defendant’s Sixth

13   Amendment rights violated. There was no error here, much less error requiring vacatur.

14                                    III. Wilson’s Fifth Amendment Claim

15          Although Wilson’s Fifth Amendment argument is marginally more substantial, it is doubtful

16   any error occurred and certain that if there was error, it was harmless. The issue here concerns the

17   Fifth Amendment consequences of Wilson’s election to offer his statement of remorse but not to

18   open himself up for cross examination with regard to it. The majority first concludes that the

19   introduction of such a statement effects at least “a limited Fifth Amendment waiver that allows the

20   prosecution to argue for an adverse inference from a defendant’s failure to testify as to that to which

21   he has allocuted.” (Maj. Op. at 79 (emphasis omitted).) The majority next determines that Carter

22   v. Kentucky, 450 U.S. 288 (1981), nevertheless entitles the defendant in such a situation to a


                                                       11
 1   modified adverse inference instruction directed at matters other than those to which the defendant

 2   allocuted, and that the failure to give such an instruction, coupled in this case with the prosecutor’s

 3   use of three errant words (essentially a wrong choice of verb tense) in referring to the defendant’s

 4   decision not to take the stand, requires vacatur. With regard to the second determination, I

 5   respectfully disagree.

 6          I, like the majority, “start with first principles.” (Maj. Op. at 76.) Wilson was entitled to the

 7   protections of the Fifth Amendment during the penalty phase of his trial, meaning that he had a right

 8   not to testify and that the government could not use his silence against him, at least “with regard to

 9   factual determinations respecting the circumstances and details of the crime.” Mitchell v. United

10   States, 526 U.S. 330, 328 (1999). The Supreme Court has not yet determined whether silence in this

11   setting properly “bears upon the determination of a lack of remorse.” Id. at 330. Because Wilson

12   did not remain silent at his sentencing proceeding, this open question need not be answered here.

13          I agree with the majority that Wilson’s decision to speak to the jury constituted a waiver of

14   his Fifth Amendment rights with regard to the subject matter of his allocution, and thus that the

15   prosecution was permitted, as the majority states, “to argue for an adverse inference from [the]

16   defendant’s failure to testify as to that to which he . . . allocuted.” (Maj. Op. at 79.) Given this

17   determination, the majority rightly finds wholly legitimate the government’s argument in summation

18   that if Wilson had taken the stand, the sincerity of his allocution could have been better assessed.

19   Indeed, because it accepts that Wilson waived his Fifth Amendment rights with regard to the

20   allocution, the majority finds Fifth Amendment fault today with but three words in the government’s

21   summation:




                                                       12
 1                   I want to talk to you a minute about the statement itself. You may have
 2          noticed that when he made that statement, Ronell Wilson wasn’t sitting up there on
 3          the witness stand under oath, subject to cross-examination. He chose to do it from
 4          there (indicating). The path for that witness stand has never been blocked for Mr.
 5          Wilson, had that opportunity, too. He chose, like many other things in this case, to
 6          do it that way.
 7                   You may ask yourselves well, what more would we have if he took that stand,
 8          what would be the difference? Well, we might have been able to ask him when did
 9          you come up with this? How did you come up with it? Why did you come up with
10          it? Why now? Why now of all times are you sorry? We might be able to test the
11          credibility of the statement, the veracity of it. You might have information that could
12          help you decide if you need to believe it. Ronell Wilson didn’t want that. He wanted
13          to say it from there, take my word for it now after all this, now I’m sorry.
14
15   Tr. 1638.

16          The subtlety of this error cannot go unremarked. For it is indeed the difference between “was

17   not” and “has never been” on which the majority relies. By the majority’s own holding today, the

18   government was fully entitled to argue that “[t]he path [to] that witness stand was not blocked,” and

19   that Wilson’s decision not to take the stand to testify to his remorse was a reason to doubt its

20   credibility. The majority contends, somewhat tepidly, that tense makes a difference, and that a juror

21   hearing “has never been” might think “that ‘never’ is a period that extends back to the guilt phase

22   . . . and extends as well to the full penalty phase.” (Maj. Op. at 80.) But the government made no

23   argument that the defendant’s decision not to take the stand was relevant to anything other than the

24   credibility of his allocution. So the only possible error must boil down to three errant words.

25          This is a slim reed indeed on which to hang a constitutional infirmity meriting the vacatur

26   of five capital sentences rendered by jurors who, between the trial and the penalty phase, devoted

27   over three weeks to hearing testimony in this case. The majority knows as much. Indeed, it

28   concedes that the prosecution “attempted conscientiously to focus solely on the subject matter of the

29   allocution.” (Maj. Op. at 80.) It states only – and again tepidly – that “[e]ven so, there is something


                                                       13
 1   expansive” about saying “has never been.” (Id.) It then hurriedly drops the subject, moving on to

 2   discuss the district court’s failure to give a modified Carter instruction – the real heart of the

 3   problem.

 4           Carter v. Kentucky held that a trial court has a constitutional obligation, upon request, to

 5   instruct a trial jury that no adverse inferences are to be drawn from a defendant’s election not to take

 6   the stand – in essence, that it may not treat the defendant’s silence as substantive evidence of his

 7   guilt. Carter, 450 U.S. at 305; see also Robinson, 485 U.S. at 32 (noting that the Fifth Amendment

 8   prohibits the judge and prosecutor from suggesting to the jury that silence may be treated as evidence

 9   of guilt). The Supreme Court has never expressly held that this obligation extends to the sentencing

10   phase of a criminal proceeding, much less that it applies in a situation in which the defendant has

11   waived his Fifth Amendment rights, at least with regard to the subject matter of an allocution he has

12   introduced. I will assume for now, with the majority, that Wilson was entitled to an instruction that

13   the jury should not draw any adverse inference from his decision to remain silent with regard to

14   matters other than his alleged feelings of remorse. And I will pass over, as the majority also does,

15   that Wilson never asked for such a “modified adverse inference” instruction – the only instruction

16   that could have been appropriate in the context of this case – and that it is not our normal practice

17   in such circumstances to afford relief. See United States v. Desinor, 525 F.3d 193, 198 (2d Cir.

18   2007) (noting that judgment will not be reversed based upon the denial of a requested instruction

19   where the instruction requested was not legally correct or was not supported by an adequate basis

20   in the record).

21           The majority concludes and I agree that harmless error analysis is appropriate in the context

22   of Carter error. See, e.g., United States v. Soto, 519 F.3d 927, 930-31 (9th Cir. 2008) (holding that


                                                       14
 1   failure to give Carter instruction is subject to harmless error analysis); United States v. Brand, 80

 2   F.3d 560, 568 (1st Cir. 1996) (same); Hunter v. Clark, 934 F.2d 856, 860 (7th Cir. 1991) (en banc)

 3   (same); United States v. Ramirez, 810 F.2d 1338, 1344 (5th Cir. 1987) (same). It is here, however,

 4   that we again part ways. Any error that resulted from the government’s errant three words (“has

 5   never been”) and the district court’s failure to give a modified Carter instruction (one that was never

 6   requested) was harmless beyond a reasonable doubt. See United States v. Hasting, 461 U.S. 499,

 7   508-09 (1983) (”[I]t is the duty of a reviewing court to consider the trial record as a whole and to

 8   ignore errors that are harmless”); see also Satterwhite v. Texas, 486 U.S. 249, 256 (1988). This case

 9   thus falls well short of presenting any circumstances that warrant vacatur of the jury’s work, even

10   assuming that error occurred.

11          First, as already noted, the government never argued that Wilson’s decision not to take the

12   stand should be used by the jury to make factual determinations favorable to the government with

13   regard to anything except for Wilson’s allocution – the matter that the majority concludes was

14   properly the subject of an adverse inference. This is significant because Carter itself recognized that

15   the instruction it requires is prophylactic. Carter, 450 U.S. at 305. In fact, it is a prophylactic

16   instruction “to protect the prophylactic rule that the prosecutor cannot ask a jury to draw an adverse

17   inference from the defendant’s failure to testify which in turn protects the defendant’s actual

18   constitutional right to refuse to testify.” Hunter, 934 F.2d at 864. It is thus “at least two steps

19   removed from the constitutional privilege,” and “[n]either giving nor withholding the instruction has

20   a certain, powerful, effect on the jury’s work.” Id. at 865-66 (Easterbrook, J., concurring).7 The


     7
      Indeed, as Judge Easterbrook noted, “[i]nforming the jurors about [the defendant’s decision to
     remain silent] may remind them of an inference they otherwise would not have drawn, so a
     defendant might oppose the giving of such an instruction.” Hunter, 934 F.2d at 865.

                                                       15
 1   Supreme Court in Carter determined that requiring such an instruction, upon request, guards against

 2   the danger that an unguided jury might use a defendant’s silence as evidence of his guilt. Carter,

 3   450 U.S. at 301. The failure to give such an instruction, however, does not mean that this injury has

 4   occurred. Even assuming, then, that a modified Carter instruction was appropriate here, the absence

 5   of any direct argument from the government that Wilson’s silence be used in an unlawful manner

 6   weighs strongly against the conclusion that the failure to give such an instruction was harmful.

 7          The jury’s own determinations, moreover, strongly suggest that it did not draw any inference

 8   adverse to Wilson with regard to matters other than his statement of remorse. As previously noted,

 9   the jury unanimously found that Wilson had established thirteen of the eighteen mitigating factors

10   he put forward and, indeed, it identified an additional mitigating factor not even cited by the defense.

11   The jury thus broadly accepted Wilson’s evidence of a troubled childhood and difficult time in

12   school – that he had grown up in poverty and deprivation, for instance, that his parents were

13   substance abusers, that he was exposed to drugs and violence as a child, that he performed well

14   below grade level in school and had a history of depression. Eleven jurors found, in addition, that

15   Wilson had been exposed to an unsafe and unsanitary home environment, and three found that his

16   scores on standardized tests were below average. Indeed, the jury unanimously rejected only his

17   claims that he accepted responsibility and felt remorse (the two mitigators about which he allocuted

18   and that were properly the subject of an adverse inference) and that he had adjusted well to federal

19   prison – a final claim in mitigation that was simply not credible, in light of the government’s

20   evidence of future dangerousness.

21          The evidence establishing the government’s aggravating factors, moreover, was

22   overwhelming. The district court itself said, in sentencing Wilson, that “Ronell Wilson’s guilt has


                                                       16
 1   been proved not merely beyond a reasonable doubt, but beyond all doubt.” Transcript of Sentencing

 2   Imposition, Mar. 29, 2007 (“Mar. 29 2007 Tr.”), at 29. Indeed, the evidence presented at trial proved

 3   four of the six aggravating factors before the penalty phase even began.8 The picture this evidence

 4   painted, moreover, was itself devastating to Wilson’s position that a death sentence could not be

 5   justified.

 6           Thus, the trial evidence showed that before these murders took place, Wilson discussed the

 7   possibility with his confederates that the man he intended to rob, Detective Nemorin, might be a

 8   police officer, and that Wilson might have to shoot him. On the day of the crimes, as he set his plan

 9   in motion, Wilson expressed concern that he was being followed, and that there were undercover

10   police vehicles in the vicinity. Minutes later, Wilson climbed into the back seat of the undercover

11   officers’ car, pulled out the .44 caliber revolver he was carrying, and shot without warning Detective

12   Andrews, who had accompanied Nemorin to meet with Wilson that day, in the back of the head.

13   Wilson then shot Nemorin, again in the head, as the detective pleaded for his life. At Wilson’s

14   direction, Wilson and his confederate, Jessie Jacobus, searched the bodies, looking for money, before

15   dumping them in the street and driving off in the undercover officers’ car. When Jacobus asked

16   Wilson why he had killed the men, Wilson said simply, “I don’t give a fuck about nobody.” Tr. 378.

17   The jury finally heard evidence that at the time of his arrest, two days after the executions of

18   Detectives Andrews and Nemorin, Wilson, whose nickname is “Rated R,” was carrying rap lyrics

19   he had written that celebrated violence and that could have been interpreted to refer to the crimes:

20           Come teast Rated U better have dat vest and Dat Golock/leave a 45 slogs in da back
     8
      The government relied on its evidence at trial to demonstrate that Wilson committed the
     murders for pecuniary gain, that he murdered more than one person in a single criminal episode,
     that he faced contemporaneous convictions for other serious acts of violence, and that he
     murdered law enforcement officers during the course of their official duties.

                                                      17
 1          of ya head cause u cause I’m getin dat Bread I ain’t goin stop to Im dead/When I
 2          getin dat money/ and when y say Rated don’t forget da “R.”
 3
 4   Gov’t Ex. 15.01.

 5          The district court stated in pronouncing sentence that “Wilson’s allocution was not

 6   convincing.” Mar. 29, 2007 Tr. at 33. It must have seemed weak, in light of the cold-blooded

 7   character of Wilson’s crimes, his behavior thereafter, as well as his many additional acts of violence,

 8   both before and after the murders of the detectives. During the penalty phase, the jury learned from

 9   three of his victims that Wilson, as a young teenager, had repeatedly assaulted other children – in one

10   case, attacking a 13-year old on a city bus and breaking his jaw in the course of robbing him. There

11   was evidence of a fight in Times Square with a man Wilson had attempted to extort when both were

12   prison inmates – a fight in which Wilson slashed the man in the face in front of a crowd, leaving a

13   wound that required 300 stitches to close. Additional evidence went to violence in custody – to

14   assaults on corrections officers, to fist fights with other inmates. There was evidence that Wilson

15   believed he deserved “OG status” within the Bloods – the highest status, reserved for those who have

16   committed the most acts of violence on behalf of the gang. There was evidence that Wilson used

17   his position in the Bloods to incite other inmates to commit violence. The jury found beyond a

18   reasonable doubt that Wilson represented a continuing danger to others, and that he was likely to

19   commit acts of violence again. The court at sentencing stated its conclusion that Wilson “is capable

20   of committing extreme acts of violence without warning or provocation,” Mar. 29, 2007 Tr. at 35,

21   and it characterized the proof in support of the jury’s future dangerousness finding as

22   “overwhelming,” id. at 34.

23          So, too, was the evidence that Wilson’s crimes resulted in loss to the victims, their families,



                                                       18
 1   and to others. The district court observed in pronouncing sentence:

 2          Those of us when we heard the Detectives’ family members testify will never forget
 3          Christian Andrews, Detective Andrews’ older son, recounting his daily chess games
 4          with his father, or their annual family trips to Universal Studios in Florida. Nor will
 5          we ever forget Marie-Jean Nemorin, Detective Nemorin’s sister, explaining how she
 6          gave her baby brother the nickname Tichou, which means little sweetheart[,] or Rose
 7          Nemorin, Detective Nemorin’s widow, describing how their three children now
 8          celebrate Father’s Day in a cemetery where they hug a cold wall instead of their
 9          father.
10
11   May 29, 2007 Tr. at 31-32. The judge further observed that “[w]hen Wilson murdered Detectives

12   Andrews and Nemorin, he took two police officers from this city, two fathers from their children,

13   two husbands from their wives, two brothers from their siblings, and two sons from their parents.”

14   Id. at 32. The jury found beyond a reasonable doubt that Wilson’s crimes had caused loss, injury,

15   and harm.

16          I have my doubts whether Carter v. Kentucky’s prophylactic rule properly applies in a

17   sentencing proceeding in which the defendant has chosen not to remain silent, but instead to speak.

18   Because the obligation to give a Carter instruction arises only “upon request,” I have further doubts

19   that it ever arose in this case, given that the instruction actually requested by the defendant would

20   have covered matters about which the defendant had waived his Fifth Amendment rights. That said,

21   I have no doubt about the harmlessness of the alleged Fifth Amendment error on which the majority

22   relies. I conclude without hesitation that neither the prosecutor’s three errant words (“has never

23   been”) nor the district court’s failure to give the modified Carter instruction that was never

24   requested, influenced this jury’s decision to any degree.

25          The Supreme Court has said that the severity of a death sentence “mandates careful scrutiny

26   in the review of any colorable claim of error.” Zant v. Stephens, 462 U.S. at 885. Chapman,



                                                      19
 1   however, requires at least a “reasonable possibility that the [error] complained of might have

 2   contributed to the [result]” before an error warrants reversal. Chapman v. California, 386 U.S. 18,

 3   23 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963) (internal quotation marks

 4   omitted). “[N]ot every imperfection in the deliberative process is sufficient, even in a capital case,”

 5   to set a judgment aside. Zant, 462 U.S. at 885. Indeed, if this were not the case, Congress’s decision

 6   in the Federal Death Penalty Act to give to juries the delicate and difficult decision as to when a

 7   capital sentence is justified would be wholly undone.

 8           The jury here heard evidence over the course of eighteen days. This evidence cast a strong

 9   light on the defendant: on his crimes, his character, the harms he has caused, and his case in

10   mitigation. The district court noted, in sentencing Wilson, that the jury here “[was] among the most

11   attentive and serious [it] had ever seen,” and that the jurors “listened carefully to every argument and

12   the witness testimony, and examined every piece of evidence introduced in this case.” Mar. 29, 2007

13   Tr. at 44.

14           I conclude that if there was Fifth Amendment error here – and I find it doubtful – such error

15   had no impact on the jury that sentenced Wilson. With regard to the Sixth Amendment, there is

16   simply no error to review. Having reached these conclusions, I believe the death sentences should

17   be affirmed. I respectfully dissent from Parts VI, VII, and VIII of the majority’s opinion and from

18   the judgment vacating the death sentences, while joining in the rest of the majority’s opinion.




                                                       20
