                                                                                       PUBLISH


                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT
                                                                                    FILED
                            ------------------------------------------- U.S. COURT OF APPEALS
                                          No. 97-9027                     ELEVENTH CIRCUIT
                           --------------------------------------------        04/28/99
                                D.C. Docket No. 1:95-cr-528                THOMAS K. KAHN
                                                                                    CLERK



UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,

      versus


ANTHONY GEORGE BATTLE,

                                                                       Defendant-Appellant.




                 ----------------------------------------------------------------

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

                 ----------------------------------------------------------------
                                       (April 28, 1999)


Before HATCHETT, Chief Judge, EDMONDSON and BLACK, Circuit Judges.




EDMONDSON, Circuit Judge:
      Defendant, Anthony George Battle, appeals his conviction and sentence of

death for violating 18 U.S.C. § 1118 as a federal inmate serving a life sentence who

murdered a correctional officer. Because we find no error, we affirm.



                                    Background



      In 1987, Battle entered the Marine base at Camp Lejeune, North Carolina, and

sexually assaulted and murdered his wife, a serving Marine. He was convicted of

first-degree felony murder in violation of 18 U.S.C. § 1111(a), aggravated sexual

abuse in violation of 18 U.S.C. § 2241(a), and second-degree murder in violation of

18 U.S.C. § 1111. He was sentenced to life in prison.

      Battle was moved around some and eventually transferred to the United States

Penitentiary-Atlanta (“USP-A”) in 1993. On 21 December 1994, a correctional

officer at USP-A, D’Antonio Washington, was found lying on the floor in Cellhouse

C with blood spurting out of his head. When prison employees rushed to the scene,

they found Battle standing next to a nearby vending machine. His clothing was

splattered with blood. A hammer with fresh blood, which was later determined to be

Officer Washington’s blood, was found behind the vending machine. Richard Boone,

an inmate allowed to carry tools, had loaned the hammer to Battle to fix something in

his cell. (Medical examiners later testified that Officer Washington was felled by

three great blows to the head with a hammer.)

                                         2
      On the day of Washington’s death, Battle made an incriminating statement,

which was eventually suppressed; but he later confessed again to a correctional

officer. Later, federal agents interrogated Battle; and he told them he was “frustrated”

at USP-A and that he was “tired of being bossed around.” Battle said that he took the

hammer and decided to attack the first correctional officer he saw. Battle was charged

with Officer Washington’s murder.

      In December 1995, Battle filed a notice to rely upon an insanity defense. The

Government filed notice of its intention to seek the death penalty in July 1996.1 In

December 1996, the district court judged Battle competent to stand trial.

      After 21 December 1994, but before trial, Battle had committed three separate

incidents of violence, prompting serious safety concerns about the trial. The district

court conducted a hearing, considered different restraints, and consulted with the

United States Marshals. The district court then determined, in the light of Battle’s

specific history of violence, definite precautions were needed. Battle stood trial

wearing leg shackles and a black velcro belt to restrain his hands. The tables for both

parties were draped, however, to hide the shackles; and Battle was given a black

sweater to camouflage the black velcro belt.

          At trial Battle testified in his own defense and admitted to killing Officer

Washington. Battle also testified about delusions and hallucinations, which formed



      1
       The Government amended this notice after the verdict to include additional
specific incidents of violence suggesting future dangerousness.
                                           3
the basis for his insanity defense. Battle was convicted of murder under section 1118,

and the jury recommended a sentence of death. Battle filed a motion for a Judgment

of Acquittal and New Trial. The district court denied the motion, and Battle

appealed.2

                                      Discussion



                         I. Restraints in Presence of the Jury




      2
        On appeal, Battle raises thirteen separate issues: (1) the Government
violated Miranda through improper custodial interrogations; (2) the court denied
Battle a fair trial by forcing him to appear before the jury in shackles and arm
restraints and for, part of the time, in a prison jumpsuit; (3) the court improperly
excluded evidence pertaining to provocation and denied Battle a voluntary
manslaughter charge; (4) the court denied Battle the ability to call an expert
witness in surrebuttal to rebut the Government’s expert testimony about the results
of a psychological test; (5) the court improperly excused two jurors who were
opposed to the death penalty but who could have carried out their duties; (6) the
court failed to conduct a sufficient inquiry of jurors on the extent of their pro-death
penalty views; (7) the Government was improperly allowed to amend its notice of
intent to seek the death penalty on the eve of sentencing; (8) the court erroneously
allowed prison officials to testify as to the deterrent effect of the death penalty; (9)
the Government’s closing argument was improper; (10) the court improperly
submitted statutory aggravating factors 18 U.S.C. § 3591(a)(2)(A),(B) and (D) as
well as 18 U.S.C. § 3592(c)(6) to the jury; (11) the court failed to instruct the jury
on all potential mitigating circumstances; (12) the death penalty statute’s
delegation of the mode of execution to the state violates the Constitution; and (13)
electrocution is a cruel and unusual mode of punishment. Upon careful review, we
conclude that issues 1, 3, 4, 5, 6, 9, 10, 11, and 13 lack serious merit and will not
be discussed.
                                           4
      Battle contends that the district court’s requirement that he appear wearing leg

shackles and arm restraints in court during the trial -- particularly when a less

conspicuous “stun apparatus” was available -- was inherently prejudicial. Battle also

contends the district court at the least should have granted his wish not to be present

in court.3 We disagree. The district court’s decisions were careful and informed

judgments permitted by the Constitution.

      About the restraints, in Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987), we

set out some guides for shackling a defendant in court. There, the court held the

shackling of a defendant during the sentencing stage of trial unconstitutionally

prejudicial where: (1) the defendant was not allowed a hearing to challenge the

propriety of the shackles, and (2) the State did not consider alternative restraints. See

id. at 1451-52.



      3
        Battle also claims he was prejudiced by appearing at the voir dire of
prospective jurors while he was wearing his orange prison jumpsuit and was
restrained. The reason Battle appeared in the jumpsuit was that he refused to wear
the civilian clothes which had earlier been provided to him and which the trial
court expected him to wear. He wore the jumpsuit for part of one day only at the
beginning of a trial in which the guilt-or-innocence phase took altogether about
thirteen days. In addition, given the nature of the charge against Battle and the
limited nature of his defense, jurors knew from the start of the trial that he had
been convicted of another crime and was, therefore, a prisoner already. In the light
of the circumstances, the trial court did not commit reversible error in declining to
grant defense counsel’s motion for a mistrial. Moreover, the mistrial motion --
which was based on the prison clothing and the restraints -- was made not when
Battle first appeared in court in the jumpsuit, but after the voir dire process was
underway at the end of the pertinent day.
                                           5
       In United States v. Brazel, 102 F.3d 1120 (11th Cir. 1997), we again considered

the shackling issue; this time, it was in the context of the guilt-innocence stage of trial.

After hearing from both sides, listening to the United States Marshals, gauging the

dangerousness of the defendants’ behavior, and considering alternative solutions, the

district court in Brazel concluded the best course of action was to shackle the

defendants and put cloth around the table so the shackles would not be visible to the

jurors. See id. at 1156-58. This decision -- which is one “within the sound discretion

of the trial court”, United States v. Theriault, 531 F.2d 281, 284 (5th Cir. 1976) -- was

upheld. See Brazel, 102 F.3d at 1158.

       Our case is like Brazel. First, some kind of restraint was doubtlessly needed.

Battle had committed not only two brutal homicides, but -- since the last homicide --

three separate attacks on correctional officers. He had attacked without warning. In

two instances he attacked using a concealed, sharpened instrument. The district court

judge in this case rightfully feared for the safety of her courtroom; but as in Brazel,

the trial court conducted a hearing at which both attorneys were heard, considered

alternative means (including the hidden stun apparatus)4, and then took reasonable

steps to hide the chosen restraints from the jury: among other things, cloth was draped

from the table to hide the leg shackles, and Battle was given a black sweater to




       On the stun apparatus, the trial court was worried that the reaction time
       4

would be too slow and that, if the apparatus was actually used to stun Battle, a
mistrial would have to be granted.
                                             6
disguise the black arm restraints. We cannot say the district court abused its

discretion.

      Second, for Battle’s related claim that he waived his right to be present in court,

we are confident that the district court handled this issue without reversible error.5 At

any rate, no prejudice arose given the precautions taken to disguise the safety

restraints from the jury.



                            II. Amendment of Notice of Intent



      Battle claims that it was improper for the trial court, on the eve of the

sentencing proceedings, to allow the Government to amend its 18 U.S.C. § 3593(a)

notice of intent to seek the death penalty. Battle claims that in doing so, the district


      5
        First, a waiver by a capital defendant of his right to be present is an
exceedingly important waiver of rights and would have, at a minimum, been
carefully scrutinized on appeal if the district court allowed it. See United States v.
Gordon, 829 F.2d 119, 125 (D.C. Cir. 1987) (stating that every reasonable
presumption against waiver of the right to be present will be applied and holding
no voluntary waiver had occurred). This risk of error is particularly real where, as
here, the defendant is also arguing some sort of diminished-capacity defense.
When a defendant contends he cannot be held responsible for committing an act
like murder, he might also be creating an implicit issue about whether he can be
held responsible for waiving a constitutional right. Second, some authority exists
to the effect that a custodial defendant has no right to refuse to be present. See,
e.g., Diaz v. United States, 223 U.S. 442, 455 (1912) (“[Our courts] have regarded
an accused who is in custody and one who is charged with a capital offense as
incapable of waiving the right [to be present.]”). Battle points us to no case
demonstrating how his rights were violated.
                                           7
court violated section 3593(a) as well as the Fifth, Sixth, and Eighth Amendments to

the Constitution. The Government counters that it only amended the notice to include

specific evidence supporting an aggravating factor -- future dangerousness -- already

in the original notice.

      We agree with the Government; nothing in the federal statute or Constitution

prevents such an amendment. Section 3593(a) requires the Government to submit

notice of, among other things, the “aggravating factor or factors” it intends to rely on

as grounds for the death penalty. 18 U.S.C. § 3593(a)(2). If the Government wants

to add additional aggravating factors to its list, “[t]he court may permit the attorney

for the government to amend the notice upon a showing of good cause.” Id. The term

“aggravating factor” in the statute refers to section 3592 and its statutory and non-

statutory aggravating factors.     Notice of factors -- which include things like

heinousness of the killing, see id. § 3592(c)(6), or vulnerability of the victim, see id.

§ 3592(c)(11) -- is different from notice of specific evidence. See id. § 3592(b)-(d);

see also United States v. Nguyen, 928 F. Supp. 1525, 1545-46 (D. Kan. 1996)

(holding Government’s notice of intent permissible even though “it list[ed] only the

aggravating circumstances and provide[d] no detail about the evidence the

government intend[ed] to offer in support”).

      The Government is not required to provide specific evidence in its notice of

intent. So, when it seeks to amend that notice to add only specific evidence -- and not

new “factors”, it does not need to show good cause; if anything, the Government is


                                           8
helping the defendant some by forewarning him of the evidence to be used against

him.

       Assuming, for the sake of argument, that good cause is needed even when the

Government seeks just to notify the defendant of additional evidence, the Government

met that burden. At least one of the instances of violence added to the notice occurred

after the filing of the original notice and certainly had a bearing on the factor of future

dangerousness. Also, about lack of prejudice, the Government gave Battle thirty-

days’ notice of its intent to rely on these other acts of violence and gave him a list of

witnesses. Good cause was shown. See United States v. Pretlow, 770 F. Supp. 239,

242 (D.N.J. 1991) (applying related statute and determining good cause shown where

(1) new factors have plausible connection to facts, (2) no deliberate delay by

Government, and (3) no prejudice to defendant).



                              III. Prison Guard Testimony



       Battle argues that the district court erred in permitting three prison guards to

testify on the effects of Officer Washington’s death on the particular prison and, also,

the impact a death sentence would have at the prison. We have set out all the pertinent

testimony in an appendix to this opinion, but Officer Layfield’s testimony was

representative of the officers’ testimony:




                                             9
Q.     If the sentence that the jury renders [in this case] is a life without

parole sentence, how do you think that would affect the inmates in the

institution?

A.     The inmates already have an attitude. Once they receive a lengthy

sentence or life imprisonment, that’s all that can happen to them. So, I

believe the situation would worsen. Without the death penalty, all

prisoners, they believe there is nothing that can happen to them.

....

Q.         Did you see a change among the inmates after [Officer

Washington] was killed?

A. Of course, yes Ma’am.

Q. What kind of change?

A.     When you went to enforce policy, they would be walking around

saying things like, “hammer time,” or, “Don’t forget I got 20 years. I’ll

be here every day with you.” Basically it was threats toward staff

members.

....

Q. How do you think rendering a death penalty verdict sentence would

impact the institution, the inmates, and the correctional officers?


                                     10
      A.       I believe the staff at the penitentiary already act in a very

      professional manner. I believe the inmates would think several times

      before they continue with the same attitude that they have.



      This testimony, Battle contends, was victim impact testimony introduced in

violation of Booth v. Maryland, 482 U.S. 496, 508-509 (1987), overruled in part by

Payne v. Tennessee, 501 U.S. 808 (1991). In addition, Battle says the law of this

circuit does not permit “deterrence” evidence and to hold otherwise would open the

floodgates: every future capital case would include a trial on whether or not the death

penalty deters criminal conduct. Moreover, if this evidence is permissible, Battle

argues, the Government deliberately misled him about the nature of the testimony and

allowed him no time to find, and to respond with, witnesses of his own.

      We cannot say the district court erred here. The guards’ victim impact

testimony was relevant and permissible. The heart of their testimony was to describe

the harm caused at the Atlanta prison by the murder of a correctional officer who was

killed just because he was a correctional officer.6



      6
       Briefly stated, the guards’ testimony told the jury that the harm caused by
Battle’s killing Officer Washington was not simply to take a life, but also to
embolden other prisoners, to increase the harassment of guards by prisoners, and to
increase the stresses on the prison staff (making them feel less safe) in the peculiar
environment of a prison in which many inmates are already serving life sentences
or long sentences.
                                          11
      These prison guard witnesses are not family members of the slain officer; these

are prison officials specifically contemplated and protected by the pertinent statute.

Furthermore, their testimony, unlike the victim impact testimony in Booth, was

neither “inflammatory” nor “emotionally charged.” The testimony in question here

(a handful of questions for each of the three guards) consisted of short, matter-of-fact

descriptions of the effect Officer Washington’s murder had and the effect the sentence

in this case would have on the prison population and guards at this particular prison

(USP-A); no prison official described Battle as a beast who must be killed (as was the

case in Booth); no official conveyed hatred toward Battle or the viciousness of his

crimes (as was the case in Booth); in short, no prison official could have been said to

have inflamed the jury.7

      For Battle’s death-as-a-deterrent argument, his reliance on Lockett-type cases

like Martin v. Wainwright, 770 F.2d 918 (11th Cir. 1985), to show that deterrence

evidence is inadmissible is misplaced. The evidence in this case was not about

deterrence as deterrence is normally discussed in our cases. Cf. id., 770 F.2d at 935

(discussing trial court evidence “consist[ing] of the testimony of law professor Hans



      7
        By the way, footnote ten in Booth, to the extent this portion of Booth
survived Payne, says the Court does not disapprove of all victim impact testimony:
“Similar types of information may well be admissible because they relate directly
to the circumstances of the crime.” Booth, 482 U.S. at 507 n.10. Here we might
have such information: spotlighting the vulnerability of prison guards, like Officer
Washington, to fatal attacks like the one in this case, where the victim was selected
simply because he was a guard.
                                          12
Zeisel of the University of Chicago, who sought to tell the jury that (1) in general, the

death penalty has no proven deterrent effect, and (2) in particular, the death penalty

does not deter the mentally ill.”); see also Malone v. Vasquez, 138 F.3d 711, 714 (8th

Cir. 1998) (discussing the sentencing stage testimony of “Professor James Gilsinan

that the death penalty is not an effective deterrent.”). The evidence in this case was

not about the power of the death penalty to deter future crimes in some general or

abstract sense. No studies were shown; no data was introduced; no professors spoke.

The parties presented no evidence “designed to persuade the sentencer that the

legislature erred, in whole or in part, when it enacted a death penalty statute.” Martin,

770 F.2d at 936.

      This case was one where three prison officers briefly discussed a crime

committed against a fellow officer (just because he was an officer) and the harmful

ripple effects the crime had had on USP-A. Whether or not the death penalty deters

murder as a general matter is a legislative judgment: not a question for juries. But, the

harmful effects of a murder of a correctional officer (on account of his official

capacity) at the specific prison in which he worked is a different and more narrow

matter. This kind of specific and particularized testimony about the nature of the

actual act being prosecuted and about its consequences for the prison’s staff is not

barred by the law. If deterrence was touched on in a local context, that circumstance




                                           13
does not alter the substance of the testimony.8 The testimony was, at root, about harm

to the Atlanta prison staff -- how the murder of a coworker and the resulting sentence

for his killer would affect them -- and not much about actually deterring murders in

the future.

      Moreover, even if the prison-guard testimony here reached the impermissible

point (which we think it did not), it was not reversible error. “Admission of [victim

impact] evidence will only be deemed unconstitutional if it is so unduly prejudicial

that it renders the sentence fundamentally unfair.” Gretzler v. Stewart, 112 F.3d 992,

1009 (9th Cir. 1997). The evidence was not unduly prejudicial in this case because the

testimony was a small portion of a week-long sentencing hearing where the

Government proved many statutory aggravators.

      On the notice question, Battle is right to say that the Government was

misleading about the nature of the guards’ testimony. The pretrial letter from the

prosecutor to Battle’s counsel described the three officers as “personal friends of

Officer Washington’s who may testify at the sentencing hearing regarding what kind

of person Officer Washington was.”


      8
       Battle’s cases are also inapposite because they speak to a different question
of whether a defendant’s proffered testimony on lack of deterrence constitutes
relevant mitigating evidence about a defendant’s character or circumstances of the
offense which, under Lockett, must constitutionally be considered by the trier of
fact. Those cases did not decide whether deterrence testimony is altogether
impermissible.
                                         14
       The first time Battle’s counsel heard anything to the contrary was in a

conference in the judge’s chambers on the first day of the sentencing proceedings.

While that is short notice to find and to prepare rebuttal witnesses, the burden was on

defense counsel -- if he thought he might find and use such witnesses -- to move for

a continuance. If not at that very moment, then later in court when the nature of the

testimony was clear, defense counsel needed to do more than object to the guards’

evidence; counsel -- if he seriously thought more time would help him -- needed to

move to delay the proceedings. See O’Donnell v. Georgia Osteopathic Hosp., Inc.,

748 F.2d 1543, 1549 (11th Cir. 1984) (“[T]he remedy for coping with surprise is not

to seek reversal after an unfavorable verdict, but a request for continuance at the time

the surprise occurs.”) (quoting Szeliga v. General Motors Corp., 728 F.2d 566, 568

(1st Cir. 1984)).

       Having determined that the district court did not err in allowing this testimony

under the circumstances and that the short notice was not met with a motion for a

continuance, we conclude that the district court did not commit reversible error.

                    IV. Constitutionality of the Statutory Scheme



       Section 3596 provides “A person who has been sentenced to death pursuant to

this chapter . . . . [shall be put to death] in the manner prescribed by the law of the


                                          15
State in which the sentence is imposed.” 18 U.S.C. § 3596(a). In Georgia, the mode

of execution is electrocution. See O.C.G.A. § 17-10-38(a).

      This provision is a constitutional delegation of federal power. See J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (holding

congressional delegations of power permissible as long as Congress “lay[s] down by

legislative act an intelligible principle to which the person or body authorized to

[exercise the authority] is directed to conform”); see also United States v. Tipton, 90

F.3d 861, 901-903 (4th Cir. 1996) (holding a federal death penalty statute did not

violate anti-delegation doctrine even though, at that time, it provided no mode of

execution).

      AFFIRMED.




                                          16
                                    APPENDIX



                                  Officer Schealey



Q.      Officer Schealey . . . did you see an effect on the inmates at USP Atlanta

following [Officer Washington’s] death?

A.     Yes.

Q.     And what kind of effect was that?

A.     Everybody is walking around smiling now, and if an officer tells an inmate to

do something, he would said, ”He need to leave me alone, or I’ll get a hammer after

you.” You see people walking around saying, “hammer time, hammer time.”

Q.     Do you think the murder of Officer Washington would have improved inmate

Battle’s status within the prison among inmates?

....

A. Yes. Everybody been talking about the incident ever since it happened. So, they

talk about the inmate also.

Q.     And they would refer to Mr. Battle himself?

A.     Yes.

....


                                           17
Q.    How would the effect of the death penalty being rendered as a verdict in this

case or as a sentence in this case affect the correctional officers at USP Atlanta and

BOP?

A.   Well, it would just let us know if the inmate want to assault a staff member or

kill a staff member, he know he going to get a death penalty trial.

Q.   How would you think it would affect the inmates?

A.     It would have them thinking twice before they assault an officer or a staff

member.

Q.   And in the event that a life sentence were imposed, how do you think that would

affect correctional officers?

A.   It would have a hard setting on the staff members because we know an inmate

doing 99 years, and he know if he kill an officer, what is he going to get? Another 99

years, but what is that to him? And it have an impact on the officers. We got to

realize we got to work in this kind of environment, and if an inmate is going to assault

us, he’s not going to get but just another 99 years plus the 99 he already have.



                                   Officer Layfield




                                          18
Q.       If the sentence that the jury renders [in this case] is a life without parole

sentence, how do you think that would affect the inmates in the institution?

A.     The inmates already have an attitude. Once they receive a lengthy sentence or

life imprisonment, that’s all that can happen to them. So, I believe the situation would

worsen. Without the death penalty, all prisoners, they believe there is nothing else

that can happen to them.

Q.       Are there a lot of people doing life sentences at USP Atlanta or lengthy

sentences that are essentially a life sentence?

A.     Yes, Ma’am.

Q. Did you see a change among the inmates after [Officer Washington] was killed?

A. Of course, yes, Ma’am.

Q. What kind of change?

A.     When you went to enforce policy, they would be walking around saying things

like, “hammer time,” or, “Don’t forget I got 20 years. I’ll be here every day with

you.” Basically it was threats toward staff members.

....

Q.     How do you think rendering a death penalty verdict sentence would impact the

institution, the inmates, and the correctional officers?




                                          19
A.   I believe the staff at the penitentiary already act in a very professional manner.

I believe the inmates would think several times before they continue with the same

attitude that they have.



                                  Officer Hawkins



Q.     What kind of reaction did you get from [the inmates] in regard to [Officer

Washington’s] murder?

A. At that particular time I believe I was working in the special housing unit, which

is where inmates are housed that have committed infractions against the Bureau of

Prisons, and some inmates would like taunt us about him being killed. If they didn’t

like something we were telling them to do, they would say something like better watch

it. I’m going to get that hammer. There were very cruel, ugly things about his death

that they would throw back up in our face.

Q.   If the jury were to impose the death penalty in this case, do you have an opinion

about what impact that would have on . . . the operation of USP Atlanta in terms of

the staff and the security issues that you have there?




                                          20
A.     I believe that this would send a very clear signal to the inmates and staff

members as well that you cannot commit this type of infraction. You cannot kill a

staff member and just absolutely nothing be done about it.

Q.    Do you have an opinion about what impact the imposition of a life sentence

would have on . . . the issue of security, and the relationship to the staff, and dealing

with the inmates at the institution?

A.    If a person is already serving a life sentence, what is giving them another life

sentence going to do? You can kill a staff member, and nothing is going to happen

except you are going to remain in jail. You are going to do that anyway. Most of the

inmates we have housed there are never getting out of there. So, they figure, well, if

I kill a staff member and all I have to do is stay in jail, what’s to prevent me from

doing it again? Nothing.




                                           21
