                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                                   REVISED MAY, 17, 2004
                                                                                     April 14, 2004

                                           In the                               Charles R. Fulbruge III
                                                                                        Clerk
                     United States Court of Appeals
                                   for the Fifth Circuit
                                       _______________

                                         m 02-10717
                                       _______________




                                 UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                          VERSUS

                                  JULIUS OMAR ROBINSON,
         ALSO KNOWN AS FACE, ALSO KNOWN AS SCAR, ALSO KNOWN AS SCARFACE,

                                                          Defendant-Appellant.



                                  _________________________

                         Appeal from the United States District Court
                             for the Northern District of Texas

                                  _________________________




Before HIGGINBOTHAM, SMITH, and WIENER,           most salient of which is that he was deprived
  Circuit Judges.                                 of the Fifth Amendment right to stand trial
                                                  only on crimes set forth in an indictment issued
JERRY E. SMITH, Circuit Judge:                    by a grand jury. The government concedes
                                                  that the indictment is constitutionally deficient
   Julius Robinson challenges his conviction      inasmuch as it fails specifically to charge the
and death sentence on several grounds, the        aggravating factors that render Robinson
eligible for the death penalty. The government           son challenges neither the sufficiency nor the
contends, however, that the error is harmless.           admissibility of the evidence.

                                                                               B.
    Robinson also avers that the Federal Death              The murder of Johnny Lee Shelton is a case
Penalty Act (“FDPA”), 18 U.S.C. § 3591 et                of mistaken identity. Shelton was similar in
seq., is facially unconstitutional in three re-          appearance to a man named “Big Friday,”
spects, that the district court abused its discre-       whom Robinson blamed for a hijacking in a
tion in admitting evidence under the co-con-             McDonald’s restaurant parking lot several
spirator exception to the hearsay rule, and that         months before. On the night he was murdered,
his death sentence is predicated on improper             Shelton and a friend, Jerell Gardner, spent the
aggravating factors. Agreeing with the gov-              evening at a Dallas night club, where they
ernment that the error in the indictment is sus-         were spotted by two of Robinson’s associates
ceptible to harmless error review, that on the           who mistook Shelton for Big Friday and called
facts of this case the error is harmless, and that       Robinson to tell him what they had seen.
none of Robinson’s other claims has merit, we
affirm.                                                      Robinson quickly arrived at the club,
                                                         whereupon he and two other men sat in a near-
                         I.                              by parking lot, waiting for the man they
                        A.                               thought was Big Friday to leave. They spotted
   Proving true to his Hollywood namesake,               Shelton and Gardner leaving the club in a car
Robinson, also known by names such as “Scar-             similar to the one Big Friday drove, and fol-
face,” entangled himself in a sadistic world of          lowed t hem onto a local highway. As they
narcotics and violence in which he personally            caught up to the car, Robinson yelled “that’s
committed at least two senseless murders. In             him,” leaned out the window, and opened fire
December 1998, RobinsonSSa wholesale drug                with an AK-47 assault rifle. One of Robin-
dealer then operating in five statesSSkilled a           son’s companions, L.J. Britt, also known as
man he mistakenly believed responsible for an            “Capone,” did the same. Although most of the
armed hijacking that cost him $30,000. In                bullets missed their mark, Shelton was struck
May 1999, angered by a fraudulent drug                   in the stomach and later died.1
transaction in which he paid $17,000 for a
block of wood covered in sheetrock, Robinson                                   C.
retaliated by killing a man whose only connec-              Juan Reyes was shot to death at close range
tion to the fraud was that he was the brother-           on the driveway in front of his home. He and
in-law of the fraudulent seller.                         two companions, Isaac Rodriguez and Nicho-
                                                         las Marques, arrived there on the day of the
   For these murders and his complicity in an
ongoing criminal enterprise resulting in the
murder of a third man, Robinson was convict-                1
                                                             Those facts form part of the basis for Robin-
ed and sentenced to death on three separate              son’s conviction and death sentence on counts 3
counts, to life imprisonment on two others,              and 7, which charged violations of 21 U.S.C. § 848
and to a consecutive 300-month sentence on               and 18 U.S.C. § 924(j), respectively. The jury
another. With one limited exception, Robin-              unanimously recommended a death sentence on
                                                         both counts.

                                                     2
murder, not suspecting that in a car parked               convicted of possessing three firearms in fur-
across the street were three menSSincluding               therance of a drug trafficking crime: a 9mm
Robinson and Angelo HarrisSSwho were upset                UZI pistol, a .357 caliber Smith & Wesson pis-
that they had been sold a $17,000 block of                tol, and an SKS 7.62x39 semi-automatic
wood instead of narcotics. Robinson and                   assault rifle.4 Finally, he was convicted on
Harris approached Reyes carrying automatic                several other drug and weapons charges that
weapons, said something to himSSthe record                the district court treated as lesser included of-
is unclear whether it was a demand for mon-               fenses and for which no independent sentence
eySSthen shot him in the foot. Rodriguez,                 was imposed.
who had been standing nearby, turned to flee
and was shot three times, in the back and leg.                                     E.
                                                             The jury’s sentencing recommendation was
    Reyes fell to the ground and lay there as             based in part on (in addition to the aforemen-
Robinson and Harris shot him at least nine                tioned convictions) Robinson’s criminal his-
times. An autopsy revealed fragments of con-              tory. The jury learned of an incident in 1995
crete in several of Reyes wounds, suggesting              in which Robinson fired several shots from a
he was shot from a distance of less than five             handgun at a woman who had failed to pay
feet, causing the bullets to pass through his             him $120 for crack cocaine. This was used to
body, ricochet off the pavement, and re-enter             show that Robinson had a violent record be-
his back. Before leaving, Robinson and Harris             fore the events charged in the indictment. The
also fired several shots at Marques, who was              jury also was told of an incident, described in
still seated behind the wheel in the car in which         more detail in part IV, in which Robinson, act-
he, Reyes and Rodriguez had just arrived.                 ing from his jail cell after his arrest in this case,
Marques managed to drive around the corner                arranged to have a government informant
to safety, but his car was riddled with bullets.2         murdered. This was used to show that Robin-
                                                          son had a propensity to commit future acts of
                     D.                                   violence.
   Robinson also was convicted for involve-
ment in a broad conspiracy that led to the mur-
der of Rudolfo Resendez at the hands of Britt
and Hendrick Tunstall. While engaged in this                 3
                                                              (...continued)
conspiracy, Robinson and other conspirators               inson’s conviction on count 3 and his conviction
possessed more than five kilograms of cocaine             and life sentences on counts 12 and 15, which
and various firearms.3 Robinson was further               charged violations of 21 U.S.C. §§ 848 and
                                                          841(a)(1) and 18 U.S.C. § 924(j), respectively.
                                                          The jurySShaving separately recommended a death
   2
     Those facts form part of the basis for Rob-          sentence for the portions of count 3 relating to the
inson’s conviction and death sentence on counts 3         Shelton and Reyes murdersSSunanimously
and 11, which charged violations of 21 U.S.C.             recommended a life sentence on the portion of
§ 848 and 18 U.S.C. § 924(j), respectively. The           count 3 related to Resendez and two other life
jury unanimously recommended a death sentence             sentences on counts 12 and 15.
on both counts.
                                                             4
                                                               Those facts form the basis of Robinson’s con-
   3
       Those facts form part of the basis for Rob-        viction and 300-month sentence on count 17, which
                                     (continued...)       charges a violation of 18 U.S.C. § 924(c)(1)(A).

                                                      3
                         II.                             fendant eligible for death, it is “the functional
    As we have noted, the government con-                equivalent of an element of a greater offense”
cedes the indictment is constitutionally defi-           and therefore must be proven to a jury beyond
cient because it fails to allege the statutory ag-       a reasonable doubt. Ring, 536 U.S. at 609
gravating factors that make Robinson eligible            (quoting Apprendi v. New Jersey, 530 U.S.
for the death penalty. The government argues,            466, 494 n.19 (2000)). As a new rule of con-
however, that the error is harmless. Robinson            stitutional criminal procedure, that holding ap-
responds by pointing to a line of cases that             plies to all cases pending on direct review, in-
stand for the proposition that a conviction un-          cluding Robinson’s. Griffith v. Kentucky, 479
der an indictment constructively amended at              U.S. 314, 322 (1987).
trial is per se reversible error.
                                                            Ring’s Sixth Amendment holding applies
                     A.                                  with equal force in the context of a Fifth
   The conceded error arose only after the Su-           Amendment Indictment Clause challenge, even
preme Court announced Ring v. Arizona, 536               though the Supreme Court has yet to hold as
U.S. 584 (2002). Before Ring, our analysis of            much in a capital case.5 As a result, the gov-
the use of sentencing factors in a capital case          ernment is required to charge, by indictment,
was controlled by Walton v. Arizona, 497 U.S.            the statutory aggravating factors it intends to
639, 648 (1990), wherein the Court deter-                prove to render a defendant eligible for the
mined that aggravating factors are not inde-             deat h penalty, and its failure to do so in this
pendent offenses, but only standards used to             case is constitutional error.6
help a jury decide between death and life
imprisonment.                                               5
                                                              See, e.g., Jones v. United States, 526 U.S.
                                                         227, 243 n.6 (1999) (holding that “any fact . . .
    The FDPA, 18 U.S.C. § 3593(d), imposes
                                                         that increases the maximum penalty for a crime
its own obligation on prosecutors to submit
                                                         must be charged in an indictment”); Apprendi, 530
aggravating factors to the unanimous review              U.S. at 476 (same); United States v. Cotton, 535
of a petit jury but, consistent with Walton, it          U.S. 625, 627 (2002) (same). See also Sattazahn
does not impose a concomitant obligation to              v. Pennsylvania, 537 U.S. 101, 111 (2003)
have a grand jury first charge those factors in          (opinion of Scalia, J.) (“We can think of no prin-
an indictment. Rather, the statute requires on-          cipled reason to distinguish, in this context, be-
ly that the government file a notice stating its         tween what constitutes an offense for purposes of
intention to seek the death penalty and setting          the Sixth Amendment’s jury-trial guarantee and . . .
forth the aggravating factors on which it pro-           the Fifth Amendment’s Double Jeopardy Clause.”).
poses to justify the death sentence. 18 U.S.C.              6
§ 3593(a). Here, the government filed such a                  This holding is in accord with that of the other
notice setting forth several aggravating factors         two circuits to have considered the issue. See
                                                         United States v. Allen, 357 F.3d 745, 748 (8th Cir.
it had not presented to a grand jury.
                                                         2004) (holding, in an FDPA case, that “ag-
                                                         gravating factors essential to qualify a particular
   Nineteen days after Robinson was sen-                 defendant as death eligible . . . must be alleged in
tenced using those factors, Ring was issued,             the indictment”); United States v. Higgs, 353 F.3d
expressly overruling Walton. The Court held              281, 298 (4th Cir. 2003) (same). At oral argu-
that where an aggravating factor renders a de-           ment, the government represented that it became
                                                                                                (continued...)

                                                     4
                       B.                                 have interpreted Cotton also to require the
   We must consider whether Apprendi er-                  application of harmless error review where an
rorSShere the failure of an indictment specifi-           indictment is defective and the defendant pre-
cally to charge aggravating factors regarded as           serves the error by proper objection. United
elements because they increase the maximum                States v. Baptiste, 309 F.3d 274, 277 (5th
available punishmentSSis susceptible to harm-             Cir.) (per curiam) (on petition for rehearing),
less error review. Cf. Apprendi, 530 U.S. at              cert. denied, 538 U.S. 947 (2003); United
490. The Supreme Court has not yet decided                States v. Matthews, 312 F.3d 652, 665 (5th
that question. Robinson points to a pre-Ap-               Cir.), cert. denied, 538 U.S. 938 (2003).
prendi case, Stirone v. United States, 361 U.S.           Several other circuits likewise have concluded
212 (1967), to argue that the error is per se re-         that where a defendant preserves an Apprendi
versible.                                                 indictment error, the claim is reviewed for
                                                          harmless error.7
    Although Stirone deals with the marginally
different problem of constructive amendments                  The conclusion that this type of error is sus-
to an indictment, it contains strong language             ceptible to harmless error review follows from
that informs our understanding of the gravity             two considerations. First is Neder v. United
of the error in this case. In particular, Stirone         States, 527 U.S. 1, 8 (1999), in which the
specifies the “rule that a court cannot permit a          Court noted that harmless error review applies
defendant to be tried on charges that are not             in all but a limited class of cases involving
made in the indictment against him” and adds              “structural errors.” Such cases “contain a
that “[d]eprivation of such a basic right is far          ‘defect affecting the framework within which
too serious to be treated as nothing more than            the trial proceeds, rather than simply an error
a variance and then dismissed as harmless                 in the trial process itself.’” Id. (citation omit-
error.” Id. at 217.                                       ted). The Court illustrated the point by pro-
                                                          viding a list of cases in which a structural error
   Stirone notwithstanding, the error here is             was found; notably, the Court failed either to
susceptible to harmless error review. In Cot-             cite Stirone or to mention a defective indict-
ton, 535 U.S. at 631, the Court resolved an               ment as being a structural error. Id.
analytically similar issue when it held that a de-
fective indictment does not deprive the court                Second, although Cotton dealt only with
of jurisdiction and that plain error review
applies if the defendant fails to object. We


   6                                                         7
    (...continued)                                             Two circuits have reached this conclusion in
the policy of the Department of Justice, post-Ring,       FDPA cases. See Allen, 357 F.3d at 752; Higgs,
to seek, in all pending FDPA cases, superseding           353 F.3d at 306. Three others have done so in
indictments setting forth the aggravating factors         non-capital cases. See United States v. Moji-
that render the defendant eligible for the death          ca-Baez, 229 F.3d 292, 311 (1st Cir. 2001); Unit-
penalty. One of Robinson’s co-defendants, Britt,          ed States v. Prentiss, 256 F.3d 971, 984 (10th Cir.
was tried on the basis of one such superseding            2001) (en banc) (per curiam); United States v.
indictment, but the option was unavailable for Rob-       Anderson, 289 F.3d 1321, 1327 (11th Cir.), cert.
inson, who was convicted and sentenced pre-Ring.          denied, 537 U.S. 1195 (2003).

                                                      5
plain error8 and expressly reserved the ques-               of citizens that acts as a check on prosecutorial
tion whether a defect in an indictment is struc-            power,” it also recognizes “that is surely no
tural error,9 the Court’s analysis suggests                 less true of the Sixth Amendment right to a
strongly that such a defect is not the sort of              petit jury, which, unlike the grand jury, must
structural error that necessarily escapes harm-             find guilt beyond a reasonable doubt.” Cotton,
less error review.                                          535 U.S. at 634.

    In applying the plain error test of United                 We need not diminish the importance of the
States v. Olano, 507 U.S. 725 (1993), the                   Fifth Amendment right to a grand jury indict-
Court in Cotton, 535 U.S. at 631-32, was                    ment to conclude that the error at issue in
called on to consider whether the error affect-             NederSSthe failure to include an element of the
ed substantial rights and whether it seriously              crime in petit jury instructionsSSis difficult to
affected the fairness, integrity, or public repu-           distinguish from the present one, and we find
tation of the judicial proceedings. Rather than             no compelling reason to carve out an excep-
determine whether the defendant’s substantial               tion to Neder’s harmless error rule for such an
rights were affectedSSan inquiry consisting of              analytically similar claim.10 As a result, the
determining whether the error affected the out-             absence of an indictment on the aggravating
come of the proceedingsSSi.e., whether the                  factors used to justify a death sentence is not
error harmed the defendantSSthe Court held                  structural error and is susceptible to harmless
that “even assuming respondents’ substantial                error review.11 See Baptiste, 309 F.3d at 277.
rights were affected, the error did not seriously
affect the fairness, integrity, or public reputa-
                                                               10
tion of judicial proceedings.” Id. at 632-33.                     See also Prentiss, 256 F.3d at 984 (“[A]
                                                            defendant’s right to have a petit jury find each ele-
                                                            ment of the charged offense beyond a reasonable
   Given that conclusion, it is difficult to ac-
                                                            doubt is no less important than a defendant’s right
cept that the same error simultaneously could
                                                            to have each element of the same offense presented
be the sort of “structural error” discussed in              to the grand jury. If denial of the former right is
Neder, one that necessarily “deprive[s] defen-              subject to harmless error analysis, we believe
dants of basic protections without which . . .              denial of the latter right must be as well.”).
no criminal punishment may be regarded as
fundamentally fair.” Neder, 527 U.S. at 8-9.                   11
                                                                  Robinson also argues for per se reversal by
In addition, although Cotton acknowledges                   pointing to United States v. Fletcher, 121 F.3d 187
that “the Fifth Amendment grand jury right                  (5th Cir. 1997). Reliance on Fletcher is mis-
serves a vital function in providing for a body             placed. As we explained in United States v. Lon-
                                                            goria, 298 F.3d 367, 373-74 & n.9 (5th Cir.) (en
                                                            banc) (per curiam), cert. denied, 537 U.S. 1038
                                                            (2002), Fletcher applied an analytical framework
   8
     And indeed, the Court specifically distin-             that the court “must change” post-Cotton. Rather
guished Stirone on the ground that defendant had            than regarding the defendant as having been im-
preserved error by objecting. Cotton, 535 U.S.              properly sentenced under a valid conviction, as the
at 632.                                                     court did in Fletcher, the correct approach in such
                                                            cases is to treat the defendant as having been
   9
     Id. (acknowledging defendant’s argument that           properly sentenced pursuant to an invalid convic-
indictment errors are “structural errors,” but decid-       tion, and to determine only whether the use of an
ing it need not resolve that claim).                                                               (continued...)

                                                        6
                        C.                                 and (2) setting forth the aggravating factor
   To decide whether the error is harmless on              or factors that the government, if the defen-
the facts of this case, we use the test an-                dant is convicted, proposes to prove as
nounced in Chapman v. California, 386 U.S.                 justifying a sentence of death.
18 (1967), because it is constitutional error.
See Neder, 527 U.S. at 15. The question is              18 U.S.C. § 3593(a). The government com-
whether the error affects substantial rights.           plied by filing notice four months before trial,
FED. R. CRIM. P. 52(a). That is to say, we in-          and Robinson does not contend that the con-
quire whether it appears “beyond a reasonable           tent or timing of the notice left him unable to
doubt that the error complained of did not              prepare a defense.
contribute to the verdict obtained.” Chapman,
386 U.S. at 23. “An otherwise valid convic-                More difficult is the question whether Rob-
tion will not be set aside if the reviewing court       inson was harmed by losing the right to have
may confidently say, on the whole record, that          the public determine whether there existed
the constitutional error was harmless beyond a          probable cause to charge the aggravating fac-
reasonable doubt.” Delaware v. Van Arsdall,             tors used to sentence him to death. The courts
475 U.S. 673, 681 (1986).                               have long recognized the significant value the
                                                        public adds to our system of justice through its
    Relevant to the inquiry in the present case,        involvement in grand jury proceedings.12 Once
the two primary functions of an indictment are          a trial takes place, however, there is little a
that it (1) provides notice of the crime for            court of appeals can do to restore to a defen-
which the defendant has been charged, allow-            dant that which was lost: the right not to face
ing him the opportunity to prepare a defense,           a prosecution initiated solely at the govern-
see Russell v. United States, 369 U.S. 749,             ment’s behest. United States v. Mechanik,
763-64 (1967); and (2) interposes the public            475 U.S. 66, 71 (1986).13
into the charging decision, such that a defen-
dant is not subject to jeopardy for a crime
alleged only by the prosecution, see Stirone,              12
                                                              See, e.g.,Wood v. Georgia, 370 U.S. 375,
361 U.S. at 218. Robinson received adequate             390 (1962) (“Historically, this body has been
independent notice of the intention to pursue           regarded as a primary security to the innocent
a death sentence using the aggravating factors          against hasty, malicious and oppressive
that were ultimately presented to the jury. The         persecution; it serves the invaluable function in our
FDPA requires the government                            society of standing between the accuser and the
                                                        accused, whether the latter be an individual,
   a reaso nable time before the trial . . . [to]       minority group, or other, to determine whether a
   sign and file with the court, and serve on           charge is founded upon reason or was dictated by
   the defendant, a noticeSS (1) stating that           an intimidating power or by malice and personal ill
   the government believes that the circum-             will.”)
   stances of the offense are such that . . . the          13
                                                             “[T]here is no simple way after the verdict to
   government will seek the sentence of death;          restore the defendant to the position in which he
                                                        would have been had the indictment been dismissed
                                                        before trial. He will already have suffered
   11
    (...continued)                                      whatever inconvenience, expense, and opprobrium
incomplete indictment requires reversal. Id.                                                   (continued...)

                                                    7
   As a result, meaningful enforcement of this             fense in question. Matthews, 312 F.3d at 665.
right always will depend, in the main, on the
vigilance of the trial court and on its willing-               The government asks us to embrace a cate-
ness to require that a defective indictment be             gorical rule premised on Mechanik, to the ef-
amended before trial.14 The error in this case             fect that the petit jury’s unanimous finding that
lasted as long as it has only because the district         the aggravating factors applied to Robinson
court properly relied on the then-binding                  beyond a reasonable doubt conclusively estab-
Walton decision. On appeal, our inquiry fo-                lishes that the grand jurySSwhich operates ex
cuses solely on the question whether, on the               parte, by majority vote, and without eviden-
basis of the evidence that would have been                 tiary restrictionsSSwould have found probable
available to the grand jury, any rational grand            cause to charge the aggravating factors as
jury presented with a proper indictment would              well.
have charged that Robinson committed the of-
                                                              In Mechanik, 475 U.S. at 70, the Court
                                                           provided substantial support for the govern-
   13
    (...continued)                                         ment’s rule, inasmuch as it stated that although
that a proper indictment may have spared him.”             a procedural error before the grand jury
Id.
                                                              had the theoretical potential to affect the
   14
      In this respect, our view apparently differs            grand jury’s determination whether to in-
from that of the Eighth Circuit in Allen. Though it           dict these particular defendants for the of-
ostensibly agreed that the harmless error rule                fenses with which they were charged . . .[,]
applies, that court also expressed its concern that
                                                              [t]he petit jury’s subsequent guilty verdict
application of the harmless error doctrine would
                                                              means not only that there was probable
invite intentional government action to evade the
Fifth Amendment’s Indictment Clause, because it               cause to believe that the defendants were
would render “indictment by information in all                guilty as charged, but also that they are in
cases . . . constitutionally harmless error.” Allen,          fact guilty as charged beyond a reasonable
357 F.3d at 755.                                              doubt. Measured by the petit jury’s ver-
                                                              dict, then, any error in the grand jury pro-
    To the contrary, an equally competent district            ceeding connected with the charging deci-
court would catch such a glaringly obvious error as           sion was harmless beyond a reasonable
the failure to indict any defendant at all, so we do          doubt.
not subscribe to this doomsday prophesy. The
Eighth Circuit’s rebuttal to our positionSSthat            At oral argument, Robinson responded by ar-
“there will be instances where errors occur or ob-         guing that the logic of MechanikSSwhich es-
jections are not timely made,” id. at 756SSis un-          sentially posits that the citizens on the grand
persuasive. The same can be said of any instance
                                                           jury are interchangeable with those on the petit
in which harmless or plain error review applies,
and it hardly describes a world in which the Fifth
                                                           jurySShas less force in a capital case, where
Amendment has no meaning. Harmless error is                the petit jury is subject to death qualification.15
used only where objections are made but “errors
occur,” see FED. R. CRIM. P. 52(a); the failure to
object timely causes the plain error doctrine to be           15
                                                                 Robinson has not substantiated this claim
invoked, see FED R. CRIM. P. 52(b); Cotton, 535            with anything more than the conventional wisdom
U.S. at 631.                                                                                     (continued...)

                                                       8
    No categorical rule is needed to convince                else in range.17 The record also shows that in
us that any rational grand jury would find                   the course of killing Reyes, Robinson and his
probable cause to charge Robinson with at                    co-assailant managed to shoot Rodriguez three
least one of the statutory aggravating factors               times and to fire enough times at Marques’s
omitted from his indictment.16 In addition to                car fleeing the scene to leave it riddled with
the petit jury’s unanimous findingsSSwhich we                bullets. All this took place in a residential
consider to be, at a minimum, persuasive                     neighborhood in close proximity to at least
evidence of how a grand jury would findSSthe                 two adolescent eyewitnesses playing on a
evidence overwhelmingly shows that there ex-                 nearby porch, and across the street from a
isted probable cause to charge Robinson with                 barbecue attended by at least ten people.
the aggravating factors used in his sentencing.
                                                                No rational grand jury would fail to find
   All three death sentences involved the ag-                that this evidence constituted anything less
gravating factor that in the killings of Shelton             than probable cause to believe that, in the
and Reyes, Robinson “knowingly created a                     course of committing each murder, Robinson
grave risk of death to one or more persons in                created a grave risk of death to someone other
addition to . . . the victim.” Cf. 18 U.S.C.                 than the victim. As a result, and beyond a rea-
§ 3592(c)(5). Robinson killed Shelton by fir-                sonable doubt, the failure to charge those fac-
ing an AK-47 assault rifle from the window of                tors in an indictment did not contribute to
a moving vehicle on a public highway, directly               Robinson’s conviction or death sentence.18 Cf.
endangering Shelton’s passenger and anyone
                                                                17
                                                                   That evidence came in the form of testimony
   15
     (...continued)                                          by Jason Gehring, the man driving the assailants’
that a death-qualified jury is more apt to convict           truck as they pursued Shelton. Gehring stated that
than is a random jury, a finding the Supreme Court           Shelton’s car accelerated rapidly moments before
has repeatedly disavowed in cases involving far              the shooting star ted and that Gehring could see a
greater evidence than we have before us. See                 large number of bullets ricocheting off the road and
Lockhart v. McCree, 476 U.S. 162, 168-73 (1986)              adjoining concrete wall. This created an obvious
(criticizing studies that purported to show a con-           risk of death to other motorists who could have
nection between death qualification and guilty ver-          been hit by a stray bullet or involved in an accident
dicts, before concluding that even a “somewhat               with Shelton’s fast-moving vehicle.
more ‘conviction-prone’” jury would not violate the
                                                                18
Sixth Amendment); Witherspoon v. Illinois, 391                    Although it suffices that the grand jury would
U.S. 510, 517-18 (1968) (finding the evidence of             have charged one statutory aggravating factor,
the effect of death qualification to be “too tentative       there also is overwhelming evidence to support the
and fragmentary” to support the view that such               remaining factors. For example, the Reyes and
jurors are more apt to convict).                             Shelton murders were committed after substantial
                                                             planning and premeditation, a factor also used to
   16
      We agree with the Fourth and Eighth Circuits           impose the death penalty on counts 3, 7, and 11.
that it is only the statutory aggravating factors that       Cf. 18 U.S.C. § 3592(c)(9). Witnesses testified
trigger the Fifth Amendment’s Indictment Clause,             that Robinson had repeated discussions over
because they are the only factors that render the            several weeks about getting even with Big Friday,
defendant eligible for death. See Higgs, 353 F.3d            the man he thought responsible for the hijacking.
at 298; Allen, 357 F.3d at 749; 18 U.S.C.                    This was further evidenced by the fact that
§ 3593(e)(2).                                                                                       (continued...)

                                                         9
Chapman, 386 U.S. at 23.                                    possible, so as to avoid not only the conclusion
                                                            that it is unconstitutional but also grave doubts
                     III.                                   upon that score.” Rust v. Sullivan, 500 U.S.
   Robinson challenges the constitutionality of             173, 191 (1991) (internal quotations omitted).
the FDPA on three grounds. First, he argues                 “This canon is followed out of respect for
that the statute is facially unconstitutional               Congress, which we assume legislates in the
under the Fifth Amendment’s Indictment                      light of constitutional limitations.” Id.; see
Clause because it does not require prosecutors              also United States v. Bird, 124 F.3d 667,
to charge aggravating factors in an indictment;             678-79 (5th Cir. 1997).
second, he reasons that the FDPA violates the
Fifth Amendment’s guarantee of due process                                         A.
of law; and he contends that the FDPA vio-                      “A facial challenge to a legislative Act is, of
lates the Eighth Amendment’s ban on cruel                   course, the most difficult challenge to mount
and unusual punishment. None of these claims                successfully, since the challenger must estab-
has merit.                                                  lish that no set of circumstances exists under
                                                            which the Act would be valid.” United States
   The constitutionality of a federal statute is            v. Salerno, 481 U.S. 739, 745 (1987). “The
a question of law reviewed de novo. United                  fact that [a statute] might operate unconstitu-
States v. Ho, 311 F.3d 589, 601 (5th Cir.                   tionally under some conceivable set of cir-
2002). “A statute must be construed, if fairly              cumstances is insufficient to render it wholly
                                                            invalid, since we have not recognized an
                                                            ‘overbreadth’ doctrine outside the limited con-
   18
                                                            text of the First Amendment.” Id.
    (...continued)
Robinson’s associates knew to call him as soon as
they thought they saw Big Friday, and by                       The FDPA is not facially unconstitutional
Robinson’s immediate response to that phone call.           under the Indictment Clause. Although Robin-
The Reyes murder occurred only after Robinson’s             son is correct to point out that nothing in the
co-assailant drove from Oklahoma to Dallas to               FDPA requires prosecutors to charge aggra-
participate in the shooting, and witnesses testified        vating factors in an indictment, he fails to note
that the pair waited outside Reyes’s house for up to        that there is nothing in that law inhibiting such
twenty minutes before the victim arrived.                   a charge. The government can easily comply
                                                            with both its constitutional obligations (by first
    In addition, the evidence that Robinson riddled         going to the grand jury) and its statutory
Reyes’s body with bullets after he was on the               obligations (by later filing a § 3593(a) notice
ground provides probable cause to believe that the          of intention to seek the death penalty). As a
murder was committed in an especially heinous,              result, the statute is not facially unconstitu-
cruel, or depraved manner, as used to support the
                                                            tional.
death sentence for count 11. Cf. 18 U.S.C.
§ 3592(c)(6). Finally, the evidence that Robinson
and his co-assailant fired on two other people at                                B.
Reyes’s home points overwhelmingly in favor of a              Robinson’s due process claim fails, as well.
finding that Robinson attempted to kill more than           He argues, citing United States v. Quinones,
one person in a single criminal episode, as used to         205 F. Supp. 2d 256 (S.D.N.Y.), reversed,
support the death sentence for count 11. Cf. 18             313 F.3d 49 (2d Cir. 2002), cert. denied, 124
U.S.C. § 3592(c)(16).

                                                       10
S. Ct. 807 (2003), that the FDPA violates the              opportunity to pursue relief in the form of a
substantive and procedural components of the               petition for a writ of certiorari and petition for
Due Process Clause. The substantive due pro-               a writ of habeas corpus.
cess claim is premised on the idea that all cap-
ital defendants share a liberty interest in not                                   C.
being executed for crimes they did not commit.                 Robinson asks us to invalidate the FDPA
This shared liberty interest, it is argued, enti-          on the ground that the death penalty is cruel
tles a guilty defendant facially to invalidate a           and unusual punishment, in violation of the
law that could be used in some other case to               Eighth Amendment. He recognizes that this
execute an innocent man.                                   claim is foreclosed by Gregg v. Georgia, 428
                                                           U.S. 153 (1976), but he argues that societal
    This argument has no merit. Whatever the               standards of decency have evolved to the point
risk that another person will be wrongfully                at which imposing the death penalty against an
convicted, Robinson has not even attempted to              adult murderer has become an intolerably cruel
show, on appeal, that his conviction is errone-            act. Cf. Trop v. Dulles, 356 U.S. 86, 101
ous, and he has presented no evidence to sug-              (1958). We note, however, that it is uncertain
gest that the FDPA is unconstitutional as ap-              whether this court is even empowered to rec-
plied to his case. So, he cannot invalidate the            ognize such an evolution in the law, or must
statute on the ground that it might conceivably            instead reserve that question for the Supreme
be applied to reach an unconstitutional result             Court.19 Even assuming we had such a power,
in some other defendant’s case. Salerno, 481               Robinson presents no evidence of an evolution
U.S. at 745.                                               in societal standards of decency, and we see no
                                                           reason to believe that there has emerged a
   Robinson does not elaborate on the specific             national consensus against capital punishment
manner in which he believes the FDPA de-                   for defendants who commit crimes that are as
prives him of procedural due process. We pre-              depraved as Robinson’s. The FDPA is not fa-
sume, however, from his frequent citations to              cially unconstitutional under any of these
the district court opinion in Quinones, that he            theories.
agrees with that court that the problem is that
execution “arbitrarily eliminate[s] any pos-                                    IV.
sibility of exoneration after a certain point in              Robinson challenges, as hearsay, the admis-
time.” Quinones, 205 F. Supp. 2d at 265.                   sion of certain testimony at his sentencing
                                                           hearing. The government counters that the
   On that theory, all executions would violate
the Due Process Clause, because they render
the defendant unable further to challenge his                 19
                                                                 Recently, the Supreme Court granted certi-
conviction. That argument is belied by the
                                                           orari in Roper v. Simmons, No. 03-633, in which
plain text of the Fifth Amendment, which un-               the first question it certified for review is as fol-
ambiguously provides that some measure of                  lows: “Once this court holds that a particular pun-
process is sufficient to permit imposition of the          ishment is not ‘cruel and unusual,’ and thus barred
death penalty, and there is nothing arbitrary in           by the Eighth and Fourteenth Amendments, can a
choosing, for the execution, a point in time               lower court reach a contrary decision based on its
after a full and fair trial, direct appeal, and the        own analysis of evolving standards?” Roper, 124
                                                           S. Ct. 1171 (2004).

                                                      11
district court properly admitted the evidence as           objection was made to a portion of the testi-
the testimony of a co-conspirator under rule               mony of Michael Williams, also known as
801(d)(2)(E) of the Federal Rules of Evidence,             “One Love,” a government informant whose
and on the ground that the FDPA explicitly                 testimony was used to prove the non-statutory
provides that the rules of evidence do not ap-             aggravating factor that Robinson posed a fu-
ply at sentencing hearings. See 18 U.S.C.                  ture danger to the lives and safety of other per-
§ 3593(c); see generally 5 STEPHEN A. SALTZ-               sons, as evidenced by a lack of remorse during
BURG, MICHAEL M. MARTIN & DANIEL J.                        or soon after the murder of Reyes.
CAPRA, FEDERAL RULES OF EVIDENCE MAN-
UAL § 1101.02[2], at 1101-5; 1101.03)[6][d]                    At the sentencing hearing, Williams testified
(LexisNexis 2003).                                         to the effect that, after aiding the investigation
                                                           of Robinson, he was approached by three men,
   We “review the admission of hearsay evi-                one of whom was armed with a .38 caliber
dence under the non-hearsay definition of Rule             firearm, who then kidnaped, assaulted, and
801(d)(2)(E) for abuse of discretion.” United              threatened him with death. Over Robinson’s
States v. Solis, 299 F.3d 420, 443 (5th Cir.)              objection, Williams testified that one of these
(internal quotations omitted), cert. denied, 537           men, Kendall Pitts, also known as “Cracker,”
U.S. 1060, and cert. denied, 537 U.S. 1094                 told him the men were going to kill him be-
(2002). “Under our precedent, the proponent                cause he had “snitched” on a gang leader.21
of admittance under Rule 801(d)(2)(E) must                 This testimony easily fits the first three prongs
prove by a preponderance of the evidence (1)               of the rule 801(d)(2)(E) exception, because
the existence of a conspiracy, (2) the statement           the government made a competent showing
was made by a co-conspirator of the party, (3)             that Robinson initiated a conspiracy to have
the statement was made during the course of                Williams murdered, that the declarant Pitts
the conspiracy, and (4) the statement was                  was involved in this conspiracy, and that the
made in furtherance of the conspiracy.” Id.                statement was made while Pitts carried out the
                                                           conspiracy. Cf. Solis, 299 F.3d at 443.
   The evidence was admissible as a co-con-
spirator’s statement, so we need not consider                  As to the fourth requirement, “[t]his Court
whether the FDPA’s blanket exception to the                has consistently held that the in furtherance
hearsay rule is constitutional under Ring. 20              requirement is not to be construed too strictly
See generally 5 SALTZBURG ET AL., supra,                   lest the purpose of the exception be defeated.”
§ 801.03[10]; cf. U.S. CONST. amend. VI. The               United States v. Phillips, 219 F.3d 404,
                                                           418-19 (5th Cir. 2000). It is sufficient, in this
                                                           respect, that Pitts’s declarationSSwhich was
   20
      The constitutionality of rule 801(d)(2)(E) is
well established. See United States v. Inadi, 475
                                                              21
U.S. 387, 395 (1986); Bourjaily v. United States,                The government separately linked this tes-
483 U.S. 171, 182 (1987). As applied to the pre-           timony to Robinson by introducing an audiotape of
sent case, this conclusion is not called into doubt        a phone conversation in which Robinson was
by Crawford v. Washington, 124 S. Ct. 1354,                heard, from jail, instructing a relative to “go hard”
1374 (2004), because the statement challenged as           on Williams, and through testimony showing that
hearsay was made during the course of the conspir-         outside sources wasted little time in informing
acy and is non-testimonial in nature.                      Robinson of the attempt on Williams’s life.

                                                      12
not only a threat but an explanation of why the         petrator intentionally killed or attempted to kill
threat was legitimateSSput Williams under his           more than one person in a single episode. We
immediate control as the three men forced him           see no reason to second-guess Congress’s
to go along to the location where they intend-          judgment that murders bearing those attributes
ed to kill him. The district court did not abuse        are deserving of enhanced punishment, and
its discretion in admitting this testimony.             under Jones their use is none the worse in
                                                        tandem.
                     V.
   Robinson makes two challenges to the ag-
gravating factors used against him. First, he                                  B.
argues that two of the statutory aggravating                Robinson argues that the jury arrived at its
factors used to support his death sentence un-          recommendation of death by impermissibly
der count 11SSfor the murder of Juan Rey-               weighing aggravating factors that were not
esSSare unconstitutionally duplicative. Sec-            specified by the statute. These “non-statutory
ond, he posits that the FDPA does not au-               aggravating factors” are considerations that
thorize the use of non-statutory aggravating            the prosecution specified in its § 3593(a) no-
factors. Both points are meritless.                     tice of intent to seek the death penalty as ad-
                                                        ditional reasons that Robinson should be put to
                       A.                               death.22 The statute provides that the jury may
   There is no legal basis for Robinson’s claim         consider such determinations in reaching its
that two of the aggravating factors specified           decision to recommend death, just as it permits
by Congress were used in such a way as to be            the jury to consider any mitigating factors not
unconstitutionally duplicative. Although our            specified in the statute.23
caselaw once framed the issue in those terms,
the Supreme Court recently admonished that it              Robinson’s tortured reading of the statute
does not support that theory of review. See             would have us declare that § 3591(a) contra-
Jones v. United States, 527 U.S. 373, 398               dicts, and implicitly invalidates, the provision
(1999). Rejecting the idea that a similarity
between two factors could make their com-
bined use invalid, the Court explained that it             22
                                                              The government’s notice indicated that it
had only held that “the weighing process may            sought to prove that Robinson had committed a
be impermissibly skewed if the sentencing jury          previous violent act and had exhibited a lack of re-
considers an invalid factor.” Id. (citing               morse that was suggestive of propensity to commit
Stringer v. Black, 503 U.S. 222, 232 (1992)).           a future violent act. The jury unanimously found
                                                        beyond a reasonable doubt that those factors
                                                        applied to Robinson, and presumably weighed them
   Both factors challenged by Robinson are              in reaching the recommendation that he be
                                                        sentenced to death.
legitimate. Congress determined, in § 3592-
(c)(5), that a murderer is deserving of greater            23
                                                              Compare 18 U.S.C. § 3592(a) (stating that
condemnation if he knowingly created a grave            “the finder of fact shall consider any mitigating
risk of death to one or more persons in addi-           factor, including the following” eight specified
tion to the victim; and, in § 3592(c)(16), that         factors); with § 3592(c) (stating that “the jury . . .
greater condemnation is warranted if the per-           may consider whether any other aggravating factor
                                                        for which notice has been given exists”).

                                                   13
authorizing the use of non-statutory aggravat-
ing factors merely because § 3591(a) refers to
consideration of the factors “set forth” in
§ 3592(c). “It is ‘a cardinal principle of statu-
tory construction’ that ‘a statute ought, upon
the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall
be superfluous, void, or insignificant.’” TRW,
Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(quoting Duncan v. Walker, 533 U.S. 167,
174 (2001)) (internal quotations omitted).
When the statute is read as a coherent whole,
the two provisions are not in tension, because
§ 3592 adequately “sets forth” the non-statu-
tory aggravating factors by providing that the
jury may consider them.

   For the foregoing reasons, the conviction
and sentence are AFFIRMED. The govern-
ment’s motion to supplement the record on
appeal is DENIED.




                                                    14
