                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-6


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ALEJANDRO ENRIQUE RAMIREZ UMAÑA, a/k/a Wizard, a/k/a Lobo,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:08-cr-00134-RJC-2)


Argued:   January 28, 2014               Decided:   April 23, 2014


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by published opinion.     Judge Niemeyer wrote the
majority opinion, in which Judge Agee joined.   Judge Gregory
wrote a dissenting opinion.


ARGUED: Vincent James Brunkow, FEDERAL DEFENDERS OF SAN DIEGO,
INC., San Diego, California, for Appellant.     Adam Christopher
Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.   ON BRIEF:   Zandra L. Lopez, Janet C.
Tung, FEDERAL DEFENDERS OF SAN DIEGO, INC., San Diego,
California; Malcom Ray Hunter, Jr., Chapel Hill, North Carolina;
David Weiss, COPELEY JOHNSON & GRONINGER PLLC, Durham, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:

      Alejandro         Enrique    Ramirez        Umaña     shot   and    killed    two

brothers, Ruben and Manuel Salinas, at point-blank range in a

restaurant        in     Greensboro,       North      Carolina,     because        Umaña

perceived      that     the    brothers    had     insulted    Umaña’s    gang,     Mara

Salvatrucha, commonly known as MS-13.                  A jury convicted Umaña of

all   counts      for    which    he   was       charged,    including    two     counts

charging him with murder in aid of racketeering, in violation of

18    U.S.C.    §      1959(a)(1),     and    two    counts    charging     him     with

committing murder while using a firearm during and in relation

to a crime of violence, in violation of 18 U.S.C. § 924(c) and

(j)(1).     The convictions on those charges subjected Umaña to a

maximum sentence of death.

      Following the verdict of conviction, the same jury returned

a verdict that Umaña was death eligible on the four capital

counts, as provided in 18 U.S.C. §§ 3591-3596.                       The jury found

that two statutory aggravating factors applied:                      (1) that Umaña

had created a grave risk of death to one or more persons in

addition to each victim, and (2) that he had killed more than

one person in a single criminal episode.

      Finally, in the sentence selection phase of trial, the jury

imposed     the        death    penalty,     finding        that   four    additional

nonstatutory aggravating factors applied:                      (1) that Umaña had

killed the two brothers to protect and maintain the reputation


                                             2
of MS-13 and to advance his position in that gang; (2) that

Umaña had caused injury and loss to the brothers’ family and

friends;    (3)     that    Umaña    had   earlier    intentionally          committed

several    murders    in    Los     Angeles;   and   (4)    that    Umaña      posed    a

continuing and serious threat to the lives and safety of others,

as evidenced by his lack of remorse, his allegiance to MS-13,

his lack of rehabilitation, and his pattern of violence.                             The

jury also found several mitigating factors.                   After weighing the

aggravating and mitigating factors, the jury imposed the death

penalty.

       On appeal, Umaña challenges every phase of the proceedings

below.     After carefully considering each of Umaña’s arguments,

we reject them and affirm the convictions and sentence.


                                           I

       Umaña, who was born in El Salvador in the early 1980s,

illegally    entered       the    United   States    in    2004    to   live    in    Los

Angeles.     At the time, he had been a member of the MS-13 gang

for several years, having joined in 2001, while he lived in El

Salvador.

       MS-13 was formed in Los Angeles in the 1980s by immigrants

from     Central    America,      predominantly      El     Salvador.          To    gain

membership into MS-13, an individual must submit to a 13-second

beating.      The    gang    uses    violence   and       extortion     to   gain     and



                                           3
control territory, and for a member to build his reputation in

MS-13, he has to be ready to attack rival gang members or anyone

else   who     disrespects    the   gang.   MS-13     punishes   betrayal   by

putting the “green light” on the member, which constitutes an

order that he be targeted for death.

       While    Los   Angeles   continues   to   be   the   mecca   of   MS-13

activity, MS-13 has become a transnational organization, with

groups, or “cliques,” across the United States, in Canada, and

in Central America.


Umaña’s activities in Los Angeles

       During the sentence selection phase of Umaña’s trial, the

government introduced evidence implicating Umaña in several Los

Angeles shootings:           one on Fairfax Street on July 27, 2005,

where two persons were shot and killed, and one in Lemon Grove

Park on September 28, 2005, where a group of four persons were

shot at and one was killed and two were injured.

       On the occasion of the Fairfax Street murders, Umaña was in

the passenger seat of a car with several other MS-13 members.

The car pulled up alongside two males walking down the street,

and the two groups began flashing gang signs at one another.

The two males on the street were graffiti artists, or “taggers,”

and they made hand gestures that were perceived as challenging

MS-13.    Some or all of Umaña’s group exited the car to confront



                                       4
the   taggers.            There    were       conflicting          accounts       about       what

happened next.        Umaña’s fellow MS-13 members claimed that Umaña

shot the two taggers, but two civilian eye witnesses claimed

that the driver of the car shot them.

      On the occasion of the Lemon Grove Park murder, two men

approached      a    group    of       four    who     had     just       finished       playing

basketball and were sitting on bleachers in the park.                                  Without a

word, the two men took out guns and opened fire on the group.

One of the four basketball players was killed, while two others

were wounded.        The fourth, Freddie Gonzalez, who was apparently

the target of the attack, escaped uninjured.                            Several pieces of

evidence     linked        Umaña       to     this     murder.            First,        Gonzalez

identified      Umaña        in    a        photo     lineup        and       confirmed        the

identification        in      court,          although        he     admitted          to     some

uncertainty.         Also, Umaña admitted to driving the shooters to

the   basketball          court,   although          he   denied          being    a     shooter

himself.      Finally,        ballistics            matched    the      gun     used     in    the

Fairfax Street murders with the gun used in the Lemon Grove Park

murder, and there was no evidence that anyone but Umaña was

present at both crime scenes.


Umaña’s New York activities

      Umaña left Los Angeles and, by the summer of 2007, was

residing   in       New    York.        By     this    time,       he     had     built     up   a



                                               5
substantial reputation within MS-13.                              One witness recalled that

Umaña, who had taken on the moniker of “Wizard,” was treated by

his fellow gang members like he was “big time.”

       In the fall of 2007, an MS-13 leader in New York directed

Umaña to travel to Charlotte, North Carolina, as the Charlotte

MS-13       cliques         had    been        experiencing          significant      infighting.

Because      of    his       experience          and       exposure    to    gang    life       in   Los

Angeles,      Umaña         was        ordered    to       “set   them      straight”      in    North

Carolina.         This was confirmed by a Charlotte-based MS-13 member

who stated that it was expected that Umaña would “take control”

because he knew “how to run a gang.”


Umaña’s North Carolina activities

       When       he    arrived           in     North       Carolina,       Umaña    convened         a

meeting, during which he instructed the MS-13 members as to how

they    should         be    extorting          money,       selling     drugs,      and    stealing

cars.        He inspected the gang members’ guns; he emphasized to

them the importance of respect; and he told them to merge the

Charlotte cliques together.                        Over the course of the following

months, Umaña conducted numerous meetings with MS-13 members in

Charlotte.

       On     December            8,     2007,     Umaña       was     in    Greensboro,         North

Carolina, having dinner with several fellow MS-13 members at Las

Jarochitas, a Mexican food restaurant.                                Also at the restaurant



                                                       6
were Ruben and Manuel Salinas, regulars at Las Jarochitas, who

were eating and drinking with several other men.                       The Salinas

brothers were not affiliated with any gang.

       Umaña and his associates were sitting near the jukebox, and

they    began   selecting    songs.      This    upset   Manuel     Salinas,    who

liked to listen to “corrida,” a type of Mexican country music,

whenever he visited Las Jarochitas.               As one witness reported,

the two groups then began “arguing and kind of like pushing each

other.”    Perhaps fearing that the situation was getting out of

hand, Manuel Salinas tried to calm things down by buying the

MS-13 members a bucket of beers.                The MS-13 members, however,

rebuffed    the    peace     offering,       refusing    to     drink    or    even

acknowledge the beers.

       A concerned waitress asked the MS-13 members to leave the

restaurant.        As    they    were    filing     out,      the   groups     were

“exchanging words,” and Ruben Salinas told the MS-13 members

that he “wasn’t scared of them.”                The gang members responded

that Ruben Salinas should not “mess with them” because “they

were from . . . MS.”         Ruben retorted that the gang was “fake to

him.”

       All of the MS-13 members left the restaurant except for

Umaña, who stayed behind.          Upon realizing that Umaña was still

in   the   restaurant,      an   MS-13   member    named      Spider    came   back

inside.     When the waitress tried to pull Umaña to the door,


                                         7
Spider grabbed her and told her not to touch him.                                 It was at

this point that Umaña pulled out his gun and pointed it at Ruben

and Manuel, but he did not shoot right away.                           He held his gun

sideways, while Manuel and Ruben stood motionless.                               No one said

anything.    After some time elapsed, perhaps as much as a minute,

Umaña    fired    five     shots     at   the     brothers.       Ruben          received   a

gunshot wound to the chest, and Manuel was shot in the head.

Both were pronounced dead at the scene of the crime.                                A third

individual was shot in the shoulder and survived.

     Witnesses identified Umaña as the shooter, and Umaña does

not contest that he pulled the trigger.

     Immediately after the murders, Umaña’s group contacted a

fellow    MS-13     member,    who    had    been     serving     as    a    confidential

informant, to help them get back to Charlotte that night.                                The

informant    met     Umaña    and     the    other       gang   members      at     an   IHOP

restaurant       between    Charlotte       and    Greensboro.          Umaña       switched

cars and rode with the informant back to Charlotte.                               During the

ride, he was cocking and uncocking his gun and discussing its

bullets.     Their first stop was a nightclub and nearby taco stand

outside     of     Charlotte,        where       Umaña     told   the        confidential

informant to smell the gun, because it smelled like gunpowder

from being fired.            Umaña also told the informant that he was

going to “pee on [his] hands” to get rid of the gunpowder.

Several     other     MS-13    members          had   congregated           at     the   taco


                                             8
restaurant.      One      MS-13   member      later   recounted   Umaña’s

explanation for why he had committed the murders -- “[Umaña]

said they insulted the MS-13.           And he was doing it not only

because of him, because he was doing it because of us, too.”             Of

the third victim, Umaña lamented that he “didn’t kill that son

of a bitch.”   When asked about the prospect of being pulled over

by the police with the murder weapon, he responded, as recorded

on tape, that the officer would be on the wrong end of his gun,

as “she is always close by.”

     Charlotte police arrested Umaña at an MS-13 member’s house

on December 12, 2007.      The police found the murder weapon in the

sofa where Umaña was sitting.           Umaña later told other MS-13

members that the police were “lucky” because he had been “trying

to grab for his gun.”


Procedural history

     While Umaña was being held in custody by North Carolina

authorities, several Los Angeles police detectives interrogated

him about the shootings that had occurred in Los Angeles.           Umaña

denied committing those murders, although he did admit to being

present or nearby when they occurred.

     Two months later, a federal grand jury in Charlotte, in the

Western   District   of   North   Carolina,    indicted   Umaña   for   the

murders committed in Greensboro, which is in the Middle District



                                    9
of   North    Carolina.      Umaña    filed       a     motion    to    dismiss      the

indictment for improper venue, which the district court denied.

He also requested a hearing pursuant to Atkins v. Virginia, 536

U.S. 304 (2002), which forbids execution for mentally retarded

defendants.     The court granted the Atkins hearing and found that

Umaña had failed to prove his disability by a preponderance of

the evidence.

     While in prison awaiting trial, Umaña maintained contact

with MS-13 members.         He wrote lengthy letters expressing his

continuing loyalty to the gang and his hatred for his enemies.

His letters also gave orders to execute rivals and intimidate

potential     witnesses     against       him.         While    the    letters      were

encoded, the FBI broke the code.

      The case proceeded to trial.                On the first day of jury

selection, U.S. Marshals frisked Umaña and discovered that he

had tied a four-inch metal blade (in a paper sheath) to his

penis.       And when the confidential informant testified during

trial, Umaña flashed MS-13 gang signs with his hands and, as the

informant was leaving, said in Spanish, “[Y]our family’s going

to pay you mother--.”           This threat took place in front of the

jury.

      The    jury   convicted     Umaña    on    all    counts.        It   found    him

guilty   of    conspiring    to    conduct,      or     to     participate    in     the

conduct of, the affairs of an enterprise affecting interstate


                                          10
commerce      through     a      pattern    of     racketeering         activity,      in

violation of 18 U.S.C. § 1962(d) (prohibiting RICO conspiracy).

It    found    that     this   RICO    conspiracy       included    the       “willful,

deliberate and premeditated murder” of the Salinas brothers, in

violation of N.C. Gen. Stat. § 14-17.                  The jury also found Umaña

guilty of murdering the Salinas brothers in aid of racketeering,

in violation of 18 U.S.C. § 1959(a)(1).                  Finally, the jury found

Umaña   guilty     of    using    a   firearm     in   relation    to    a    crime    of

violence, resulting in the death of the Salinas brothers, in

violation of 18 U.S.C. § 924(c) and (j)(1).                   The jury also found

Umaña   guilty     of    several      lesser     offenses    not   at    issue     here,

including being an alien in possession of a firearm, robbery

affecting interstate commerce, and witness tampering.

      The government sought the death penalty for the § 1959 and

§ 924 counts.         Accordingly, the district court divided the trial

into three phases -- the first to determine guilt or innocence;

the   second     to     determine     Umaña’s      eligibility     for       the   death

penalty; and the third, if Umaña were found death eligible, to

select between the death penalty and life imprisonment without

the possibility of release.

      After finding Umaña guilty, the jury found him eligible for

the death penalty under the Federal Death Penalty Act, 18 U.S.C.

§§    3591-3596.         In    addition     to     finding    that,       during      the

commission of the crimes, Umaña was of sufficient age and had a


                                           11
sufficiently culpable state of mind, it found that two statutory

aggravating factors applied.                 First, it found that Umaña had

created a grave risk of death to one or more persons in addition

to each victim, and second, it found that he had killed more

than one person in a single criminal episode.

       After the jury found Umaña eligible for the death penalty,

the    court    proceeded      to   the     sentence       selection      phase,    during

which the government put on evidence to prove four additional

nonstatutory aggravating factors:                (1) that Umaña had killed the

Salinas brothers to protect and maintain the reputation of MS-13

and to advance his position therein; (2) that Umaña had caused

injury and loss to the Salinas brothers’ family and friends; (3)

that Umaña had intentionally committed several murders in Los

Angeles;       and   (4)   that     Umaña    posed     a    continuing      and    serious

threat to the lives and safety of others, as evidenced by his

lack    of     remorse,     his      allegiance        to       MS-13,    his     lack   of

rehabilitation, and his pattern of violence.                          The jury found the

existence of all four aggravating factors unanimously and beyond

a reasonable doubt.          They also considered the evidence presented

by Umaña in mitigation, which consisted primarily of (1) the

effects      that    Umaña’s    upbringing       had       on   his    culpability;      (2)

videos of his family and friends; and (3) testimony about safety

precautions that would be in place should Umaña be sentenced to

life imprisonment.          All or some of the jury members found that


                                            12
Umaña had proved various mitigating factors by a preponderance

of the evidence.        In particular, they found that the murder

occurred during an emotionally charged argument and that the

murder occurred as a result of Umaña’s indoctrination into the

ways and thinking of MS-13.           After weighing the aggravating and

mitigating circumstances, the jury sentenced Umaña to death.

     This     appeal   followed,      raising       numerous        challenges,         as

discussed herein.


                                       II

     Umaña    challenges     first    the    venue      of    his    trial     in   the

Western District of North Carolina.                He contends that “venue on

the capital counts [Counts 22-25] was proper only in the Middle

District of North Carolina [in Greensboro], where the killings

occurred     because   ‘murder’      was    the    only      essential       ‘conduct’

element of the charged offenses (violations of 18 U.S.C. § 1959

and §§ 924(c) & (j)(1)),” and that venue was not proper in the

Western District of North Carolina, where he was tried.                                 He

argues   that   committing     murder       “for    the      purpose    of     .    .    .

maintaining or increasing position in an enterprise engaged in

racketeering    activity,”    as     punished      by   §    1959,   has     only   one

conduct element -- that of committing murder -- and that the

element of maintaining or increasing position in a racketeering

enterprise is a mens rea element.                  He points out that under



                                       13
established venue jurisprudence, a mens rea element does not

contribute to determining the locus delicti of the crime, i.e.,

where it was committed for venue purposes.                   See United States v.

Jefferson, 674 F.3d 332, 366-68 & n.46 (4th Cir. 2012); United

States v. Oceanpro Indus., Ltd., 674 F.3d 323, 329 (4th Cir.

2012).    He further argues that venue was improper for the trial

of the two § 924 counts because those counts depended on the two

§ 1959 counts.

       The government contends that venue in the Western District

was    proper    because     the     murders    were     committed     by     Umaña      in

“connection         to    the      ‘racketeering         enterprise’         and        RICO

conspiracy,”        which    were    “continuing         offense[s]     centered         in

Charlotte,” in the Western District.                     It argues that just as

murder    was    an      essential    conduct        element,     so   too    was       the

racketeering activity with which the murders were necessarily

connected,      justifying      venue   in     either     the   Western      or    Middle

Districts.

       Both   the     Constitution      and    the    statutes     implementing          it

require that criminal trials be conducted where the crime was

“committed.”        See U.S. Const. art. III, § 2, cl. 3; U.S. Const.

amend. VI; 18 U.S.C. §§ 3235-3237; Fed. R. Crim. P. 18.                                 The

place where a crime is committed -- the locus delicti -- “must

be    determined      from   the    nature    of   the    crime   alleged         and   the

location of the act or acts constituting it.”                     United States v.


                                         14
Rodriguez-Moreno,            526     U.S.   275,    279     (1999)     (quoting     United

States v. Cabrales, 524 U.S. 1, 6-7 (1998)).                         Thus, to determine

venue,     we    must    first       “identify     the    conduct     constituting       the

offense” and then “discern the location of the commission of the

criminal acts.”              Id.      The location of the criminal acts is

determinative.           See Jefferson, 674 F.3d at 365; Oceanpro, 674

F.3d at 328; United States v. Bowens, 224 F.3d 302, 311 (4th

Cir. 2000).        Of course, if the criminal conduct spans multiple

districts, the crime may be tried in any district in which at

least      one    conduct      element      was     committed.         See    18    U.S.C.

§ 3237(a); Rodriguez-Moreno, 526 U.S. at 281.

      Counts 22 and 24 of the indictment charged Umaña with the

murders of Ruben Salinas and his brother, Manuel Salinas, in aid

of    racketeering            activity,       in        violation      of     18    U.S.C.

§ 1959(a)(1), and venue for trial of those offenses lay where

the   essential         conduct      elements      of    the   §    1959    offense     were

committed.

      In    order       to    establish      murder       in   aid     of    racketeering

activity under § 1959, the government must show:

      (1)       that   there   was   an            enterprise         engaged      in
                racketeering activity;

      (2)       that   the           enterprise’s        activities         affected
                interstate         commerce;

      (3)       that the defendant committed murder; and

      (4)       that the defendant, in committing murder, acted
                in response to payment or a promise of payment by


                                             15
             the enterprise or “for the purpose of gaining
             entrance to or maintaining or increasing position
             in an enterprise.”

18 U.S.C. § 1959(a)(1); see also United States v. Fiel, 35 F.3d

997, 1003 (4th Cir. 1994).

     Umaña argues that the only conduct element of the § 1959

offense was the murder itself.                   He characterizes the language

linking the murder to the racketeering enterprise -- i.e., “for

the purpose of . . . maintaining or increasing position in an

enterprise     engaged       in    racketeering       activity”          --     as   merely

descriptive    of     the    crime’s      requisite       mens    rea,       which   cannot

determine where the crime was committed for venue purposes.                              See

Oceanpro, 674 F.3d at 329.

     We decline to read that element so narrowly.                            We think that

“for the purpose of . . . maintaining or increasing position in

an   enterprise”       defines      a     motive    element        that       includes     a

requirement     that        the    defendant       have     interacted          with     the

enterprise     with    respect       to    his     purpose       of     bolstering       his

position in that enterprise.               Such activity could occur before

commission of a violent crime covered by the statute -- for

example, if a mafia boss instructed a member to commit murder or

else be cast out of the organization -- or after commission of a

violent crime -- for example, if the member returned to mafia

headquarters    to    boast       about   his    exploits        with    a    mind   toward

advancement.


                                           16
       Two reasons underlie our interpretation.                    First, we think

this      reading      avoids        the     illogical        --      and      possibly

unconstitutional       --     result      that   §    1959   would    criminalize       a

murder committed with a secret intent to join a gang where the

murderer     has    absolutely       no    prior     connection      with    the     gang

itself.      Congress made clear, when enacting § 1959, that the

offense was aimed at eliminating violent crime “committed as an

integral part of an organized crime operation.”                           S. Rep. No.

98-225, at 305 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3485

(emphasis added).           And a physical manifestation of purpose is

necessary to ensure that the act is actually carried out to

further the enterprise’s goals.

       Second, the statutory context suggests that the “for the

purpose of” prong requires a manifest quid pro quo between the

member    and   the    gang.        The    earlier,    parallel      portion    of    the

statute criminalizes violent crime conducted “as consideration

for    the   receipt    of”    or    “as    consideration      for    a     promise    or

agreement to pay . . . anything of pecuniary value.”                         18 U.S.C.

§ 1959(a).      This portion of the statute clearly indicates that

there must be a reciprocal arrangement between the enterprise

and the individual, and we believe it sensible to read the “for

the purpose of” language similarly.

       At bottom, we hold that § 1959(a)(1) includes as an element

an objective, physical act that links the defendant with the


                                            17
enterprise with respect to the underlying violent crime and that

this element is a conduct element supporting venue.

       In this case, Umaña’s actions in Charlotte were sufficient

to satisfy this conduct element.                         Umaña was sent to Charlotte

with   orders       to    shape      up   the       North      Carolina     cliques.         Upon

arriving in Charlotte, he instructed the local MS-13 members at

length about weapons and ammunition.                            He passed around his own

gun.     He discussed maintaining respect.                       One witness, who was at

the    initial      Charlotte         meeting,          testified      that       respect    “was

everything” to Umaña.                 And after killing the Salinas brothers

for    their       failure      to    respect           his    gang,      Umaña     immediately

returned     to     Charlotte,        where        he   boasted      to    his    fellow    MS-13

members about the murders.                  He told them that he had killed the

Salinas brothers because they had insulted MS-13 and that he had

killed      them    for       his    fellow     gang      members.          These     objective

manifestations of Umaña’s purpose to further his position in the

enterprise        were    sufficient          to    support       venue     in     the   Western

District of North Carolina for the § 1959 prosecution.

       In   Counts       23    and    25,     Umaña       was    charged      and    tried    for

violations of 18 U.S.C. § 924(c) and (j)(1).                               The indictment in

those counts alleged that Umaña used a firearm “during and in

relation      to    a    crime       of   violence,           that   is:         conspiracy    to

participate in a racketeering enterprise [18 U.S.C. § 1962] and

murder in aid of racketeering [18 U.S.C. § 1959],” resulting in


                                                18
the unlawful killing of Ruben and Manuel Salinas.                       Venue for

§ 924(c)      prosecutions    is   appropriate       wherever    the   underlying

crime of violence took place.                 Rodriguez-Moreno, 526 U.S. at

281.

        Umaña does not dispute that venue was proper in the Western

District of North Carolina for the underlying § 1962 prosecution

and, as we are holding, venue was also appropriate there for the

§ 1959 prosecution.          Thus, regardless of which predicate crime

of violence the jury relied on, venue for the § 924(c) counts

was appropriate in the Western District.


                                        III

        Umaña next contends that his convictions on Counts 22 and

24 for murder in aid of racketeering activity under 18 U.S.C.

§ 1959(a)(1)      punished     conduct        that    “is   a    quintessential,

noneconomic,      local      activity    that        lies   beyond     Congress’s

authority to regulate under the Commerce Clause,” much like the

activity regulated in the Violence Against Women Act, which the

Supreme Court struck down in United States v. Morrison, 529 U.S.

598 (2000).      Moreover, he asserts, requiring that the murder be

committed to maintain or further one’s status in “a street gang

fails    to   change   its    noneconomic       nature.”        And   because   his

convictions on Counts 23 and 25 under § 924(c) were predicated

on his § 1959 convictions, Umaña reasons that they too exceeded



                                        19
the   government’s       Commerce         Clause     authority.     Accordingly,       he

argues that his convictions on Counts 22 through 25 must be

reversed.

      Because    Umaña        failed      to     present    this   argument     to    the

district court, we review it for plain error.                      See United States

v. Forrest, 429 F.3d 73, 77 (4th Cir. 2005) (conducting a plain

error review of a Commerce Clause challenge that was not raised

before the district court).

      Article    I,      §     8,    of    the      U.S.   Constitution   authorizes

Congress to make laws as necessary to regulate commerce among

the States so long as it has a “‘rational basis’ . . . for . . .

concluding”      that        the    prohibited       activities,    “taken      in    the

aggregate, substantially affect interstate commerce.”                         Gonzalez

v. Raich, 545 U.S. 1, 22 (2005).

      Section 1959(a) punishes violent crimes, including murder,

committed “for the purpose of . . . maintaining or increasing

position    in   an     enterprise        engaged     in   racketeering   activity,”

with the term “enterprise” defined to include “any partnership,

corporation, association, or other legal entity . . . which is

engaged in, or the activities of which affect, interstate or

foreign commerce.”            18 U.S.C. § 1959(a), (b)(2).              The question

therefore is whether Congress could rationally have concluded

that intrastate acts of violence, such as murder, committed for

the   purpose    of   maintaining          or    increasing    one’s   status    in   an


                                               20
interstate racketeering enterprise, would substantially affect

the interstate activities of that enterprise.                 We conclude that

it could have.

     We find it wholly reasonable to believe that members of a

criminal enterprise might engage in violence to solidify their

status     in    the    organization     or   rise    in    the   ranks    of   its

leadership, and that by doing so, they would enhance the power

and reach of the racketeering enterprise itself.                      Indeed, the

circumstances          of    the   present    case    provide     a    convenient

illustration.          Because of Umaña’s substantial reputation in MS-

13, which he seems to have built up partly through acts of

violence        in     Los    Angeles,    MS-13      leadership       --   through

international telephone calls -- sent him from New York to North

Carolina to instruct the cliques there on how more effectively

to deal drugs, steal cars, and extort money.                      Congress could

rationally have concluded that proscribing reputation-enhancing

violence committed by members of a criminal enterprise would

disrupt    the       interstate    commerce   that    the    enterprise     itself

engages in.          Accord United States v. Crenshaw, 359 F.3d 977, 986

(8th Cir. 2004) (upholding the constitutionality of § 1959 under

the Commerce Clause, noting that “[i]t seems . . . clear that

criminal enterprises use violence or the threat of violence in

connection with their commercial activities”); see also United

States v. Nascimento, 491 F.3d 25, 43 (1st Cir. 2007) (“Given


                                         21
the      obvious   ties       between      organized      violence     and     racketeering

activity -- the former is a frequent concomitant of the latter -

-   we    defer    to       Congress’s      rational      judgment,     as    part    of   its

effort to crack down on racketeering enterprises, to enact a

statute that targeted organized violence”).                            Indeed, Congress

reached just such a conclusion when it observed that murders,

assaults, and other crimes proscribed by § 1959 constituted an

“integral      aspect        of     membership      in    an   enterprise       engaged     in

racketeering activity.”                  S. Rep. No. 98-225, at 304, reprinted

in 1984 U.S.C.C.A.N. at 3483.

         Moreover,      §    1959       includes    a    jurisdictional       element      that

limits      its    reach       to       activities       connected     with     enterprises

“engaged in” or whose activities “affect” interstate commerce,

thereby      justifying           its    constitutionality       under        the    Commerce

Clause.      18 U.S.C. § 1959(a), (b)(2); see also United States v.

Gibert, 677 F.3d 613, 624 (4th Cir. 2012).                           This jurisdictional

element distinguishes § 1959 from the Violence Against Women Act

struck down in Morrison.                   529 U.S. at 613.            In Morrison, the

Supreme      Court          explicitly       noted       the   lack     of     a     limiting

jurisdictional element that would have confined the statute to

those activities actually affecting interstate commerce.                                   Id.

(noting that the Gun-Free School Zones Act, which was struck

down in United States v. Lopez, 514 U.S. 549 (1995), and the

Violence Against Women Act at issue in Morrison “contain[ed] no


                                               22
jurisdictional element establishing that the federal cause of

action is in pursuance of Congress’ power to regulate interstate

commerce”).      But   §   1959   does    have     a   limiting   jurisdictional

element that confines its reach to crimes that affect interstate

commerce.

       Umaña argues further that the application of § 1959 to his

particular circumstances is unconstitutional because “the murder

here had no effect on interstate commerce, was non-commercial in

nature, and was unrelated to organized interstate trafficking

efforts in drugs or other contraband.”                 But such an argument is

of no consequence to the Commerce Clause analysis, which does

not focus on whether particular conduct under the statute had an

impact on interstate commerce, but rather on whether “the class

of acts proscribed had such an impact.”                     Gibert, 677 F.3d at

627;    see   also   Raich,   545    U.S.     at       17   (“[W]hen   a   general

regulatory statute bears a substantial relation to commerce, the

de minimis character of individual instances arising under that

statute is of no consequence” (quoting Lopez, 514 U.S. at 558)

(internal quotation marks omitted)); United States v. Gould, 568

F.3d 459, 475 (4th Cir. 2009); United States v. Williams, 342

F.3d 350, 355 (4th Cir. 2003).

       Accordingly, we find no error, let alone plain error, and

therefore we reject Umaña’s Commerce Clause challenge.




                                         23
                                           IV

     Umaña         contends     that     the       district       court       abused        its

discretion in refusing to excuse Jurors 286 and 119 on account

of their personal bias.                He argues that Juror 286 was biased

based     on   a    past     life   experience           with   respect       to    a    crime

committed against her brother and that Juror 119 was biased as

indicated      by     the    answers    she       gave    about   whether          she   could

meaningfully consider life imprisonment, in lieu of death, upon

a finding of guilt on the charges in this case.

     We    review      the    district     court’s        decisions      to    seat      these

jurors for abuse of discretion, Poynter v. Ratcliff, 874 F.2d

219, 222       (4th Cir. 1989), and we will find abuse only “where a

per se rule of disqualification applies” or “where the [trial]

court ‘demonstrate[d] a clear disregard for the actual bias’ of

the juror,” United States v. Fulks, 454 F.3d 410, 432 (4th Cir.

2006) (quoting United States v. Turner, 389 F.3d 111, 115 (4th

Cir. 2004)).


                                              A

     Juror      286    recounted       during      voir    dire   that    more       than   30

years earlier, her brother had been the victim of an attempted

murder; that the assailant received a short sentence; and that,

after release, the assailant committed murder and then suicide.

Based on this life experience and on Juror 286’s answers during



                                           24
voir   dire,   Umaña   argues   that   the   district   court   should   have

found that Juror 286 was actually biased or that, based solely

on her life experience, she was in any event impliedly biased.

       During voir dire, the prosecutor asked Juror 286 several

questions about her ability to dispense penalties impartially:

       Q:   And are you     able to keep an open mind until
            you’ve heard    the evidence to make [the decision
            between life     in prison and the death penalty]
            together with   the other jurors?

       A:   I would like to think so.         I mean, I don’t know
            anything about the case.

       Q:   And that’s the point. But you haven’t heard the
            evidence, so are you able to keep an open mind
            and consider both options at the conclusion of
            the evidence?

       A:   I think so.

                                *      *      *

       Q:   And given the information that you          shared about
            the tragedy with your brother . .           . , are you
            able to come into this courtroom            and consider
            only the facts and evidence that are         presented in
            this case in making your decision?

       A:   I hope that I can. I mean, I can’t forget those
            . . . experiences that I've had. . . .   I would
            hope, and I think that I would look at the facts
            of this case.

                                *      *      *

       Q:   All right.   And so as you sit here today . . .
            until you’ve heard all the facts in evidence in
            this case, you would be able to fairly consider
            both potential punishments; life imprisonment
            without parole and the death penalty?

       A:   Yes.


                                       25
Umaña’s     counsel   followed   up    on   Juror   286’s   answers   with   the

following inquiry:

      Q:     Does [your frustration with how your brother’s
             case was handled] come into play now, if you’re a
             juror in a case like this, that involves two
             charges of murder?

      A:     I don’t know if it would or not, to be honest. I
             do have strong feelings about it. You know, the
             sentence -- the sentence to me did not -- it was
             not justified, based on the circumstances and
             what happened.     And that person, because he
             didn’t have a sufficient sentence, I think,
             initially, went on to do additional murder and
             suicide.   And yeah, I do have a problem getting
             past that.

Then, after Umaña’s counsel explained to Juror 286 that, upon a

finding of guilt for murder, there would be only “two options on

the   table”    --    life   without   the    possibility    of   release    and

death -- he questioned her as follows:

      Q:     Knowing that, does your attitude about your
             frustration with the judicial system and the
             sentence that that assailant of your brother’s
             got, how -- can you tell us whether that would be
             an issue or affect you?

       A:    I think it’s a bit different than the situation
             with my brother. Because in that instance I just
             didn’t think that there was sufficient punishment
             that fit the crime. In this case you’re looking
             at the death penalty, or as you’re telling me,
             someone who would be in prison the rest of their
             life.   It’s different, and I hope that I would
             see that.

                                 *      *      *

      Q:     Are you saying then, that . . . you would
             consider equally, or give fair consideration to


                                       26
           both types of sentences?     In other words, that
           you would think that either death or life without
           parole   would   be   considered   as   sufficient
           sentences for those crimes?

      A:   I think depending on the circumstances and the
           evidence.

      Q:   . . . [W]ould you meaningfully consider both of
           these sentencing options in the sentencing phase
           of this trial?

      A:   Yes.    Yes.

                              *      *       *

      Q:   [D]o you think that the experience with what
           happened   to   your    brother’s  attacker   and
           everything, would have any impact on your ability
           to be a fair judge on the facts, as far as . . .
           guilty versus not guilty?

      A:   . . . I would hope it would not enter into my
           decision, but I still have that experience.

      Q:   . . . [T]he defendant has the right, as does the
           government, to have a jury of people who are fair
           and impartial and open-minded.   And I guess, do
           you feel that you are one of those people right
           for this case?

      A:   I don’t know if I can say 100 percent.              I really
           don’t.

At   that point,    the   district   judge   intervened   to    describe   to

Juror 286 the presumption of innocence and to explain that the

government bears the burden of proof.            The judge then asked the

following questions:

      Q:   Now, is there anything about your life experience
           that   keeps   you   from   understanding   those
           principles and agreeing to apply them in this
           case?



                                     27
     A:   I understand the principles entirely. And I hope
          that I could, you know, . . . do the job that’s
          requested. I just . . . have these things in my
          experience that I don’t know whether they would
          prevent me from doing the job correctly or not.

     Q:   Do you agree with those principles?

     A:   Yes, I do.

                            *     *     *

     Q:   And is there anything about your past experience
          that   would   prevent   you  from   meaningfully
          participating in that process [of determining the
          penalty options]?

     A:   No, I don’t think so.

     The judge then declined to excuse Juror 286.

     Based on Juror 286’s answers, Umaña argues that Juror 286

displayed actual bias because she “remained equivocal regarding

whether   the   circumstances   surrounding   the   attempt   on   her

brother’s life would affect her ability to keep an open mind and

be a fair and impartial juror during the guilt/innocence phase.”

Thus, he contends that there remained uncertainty after voir

dire “about whether she could actually apply [the presumption of

innocence and proof beyond a reasonable doubt] in light of her

past experiences.”     He suggests that United States v. Thompson,

744 F.2d 1065 (4th Cir. 1984), required a finding that Juror 286

was actually biased.

     In Thompson, one of the jurors notified the judge during

trial that a piece of evidence had “moved [him] quite heavily.”



                                  28
744 F.2d at 1067.       When the judge told the juror that he wanted

to make sure that the juror still had an open mind, the juror

responded, “I don’t think that I do. . . .            I am not sure that I

could be totally fair.          I would try to be as much as I could,

but I am just not sure I could be totally fair.”                Id. (emphasis

added).   After denying a motion for a mistrial, the judge asked

the   juror   if   he   could   keep   an   open   mind   and   maintain   the

presumption of innocence, and the juror responded, “I will try.

I am not sure, your Honor.”         Id. at 1067-68.       We found that the

trial court had abused its discretion by declining to excuse the

juror, and we held that “after [the juror] gave an equivocal

response to repeated questions about his ability to proceed with

an open mind . . . the trial court should have asked for an

affirmative response.”      Id.

      The circumstances in Thompson, however, were different in

kind and effect from those here.             In Thompson, the juror had

suggested that he was unable to be fair.            When asked whether he

had an open mind, the juror said, “I don’t think that I do.”                By

contrast, Juror 286 left the court with the opposite message,

suggesting that she “would like to think” that she could keep an

open mind.    Moreover, when the judge asked Juror 286 whether she

agreed with the basic constitutional principles relating to the

presumption of innocence and the government’s burden of proof,

she said that she did.          She also told the judge that her past


                                       29
experiences       would       not      prevent        her      from     “meaningfully

participating in [the sentencing] process.”                        To be sure, Juror

286 stated that she could not be 100% sure about how she would

conduct herself, but nonetheless she repeatedly stated that she

thought she could keep an open mind and “look at the facts of

this case.”

       We   similarly     distinguished        Thompson       in   United    States    v.

Hager, 721 F.3d 167 (4th Cir. 2013), where a juror expressed

some    equivocation      about     whether    he     could     be    impartial.       In

Hager, the judge interrogated the juror at length, asking, for

example,     whether    the    juror    could     “give       effect    to   those    two

instructions [regarding the presumption of innocence and burden

of proof],” and the juror answered, as did Juror 286 in this

case, “Yes,       I   would   try.”      721     F.3d    at     190-91.      The   court

followed up this inquiry by asking, “[I]s there any reason why

you    wouldn’t    succeed?”      to   which    the     juror      responded,   “No,   I

wouldn’t think [so].”          Id. at 191.          The Hager court found that

the judge had not abused his discretion by seating the juror,

distinguishing the circumstances from Thompson in this way:

       Although Juror 144 and the juror in Thompson both
       initially stated only that they would try to be fair,
       the district court here followed up by asking if there
       was any reason that the juror could not be fair. And
       each time that question was posed, Juror 144 said that
       there was not.      The district court in Thompson,
       however, failed to solicit such a response.




                                          30
 Id. at 192; see also United States v. Capers, 61 F.3d 1100,

1104-05 (4th Cir. 1995) (finding no abuse of discretion where a

trial judge refused to excuse a juror who stated that he “might

favor the government”).

       We conclude that the district judge in the present case did

not abuse his discretion by declining to find that Juror 286 was

actually biased.        A juror need not express unflinching certainty

for a trial judge to determine that she will be able to remain

impartial.     See, e.g., Hager, 721 F.3d at 191-92.                 Moreover, in

this case, the judge took care by repeatedly asking, in follow-

up questions, whether Juror 286 could be fair and impartial.

Juror 286 affirmed without qualification that she agreed with

the principles that defendants are presumed innocent and that

the    government    has   the    burden      of   proof,    and   she   repeatedly

affirmed that she would be able to consider equally the two

penalty options of life in prison and the death sentence.

       Umaña   argues    further    that      despite    the   answers    given   by

Juror 286, her life experiences alone should have prompted the

trial court to conclude that she was impliedly biased.

       “[T]he doctrine of implied bias is limited in application

to those extreme situations where the relationship between a

prospective juror and some aspect of the litigation is such that

it    is   highly   unlikely     that   the    average      person   could   remain

impartial in his deliberations under the circumstances.”                     Person


                                        31
v. Miller, 854 F.2d 656, 664 (4th Cir. 1988).               Implied bias

might arise where there is “a revelation that the juror is an

actual employee of the prosecuting agency, that the juror is a

close relative of one of the participants in the trial or the

criminal transaction, or that the juror was a witness or somehow

involved in the criminal transaction.”           Smith v. Phillips, 455

U.S. 209, 222 (1982) (O’Connor, J., concurring).

      We conclude that Juror 286’s experience 30 years ago was

sufficiently   remote   and   insufficiently     prejudicial   to   impute

bias to her.   We have held that “it is generally within a trial

court’s discretion to qualify a juror whose close relative was a

victim of a crime similar to that with which a defendant is

charged, [and so] such a circumstance is not, standing alone,

sufficiently ‘extreme’ to warrant a finding of implied bias.”

Fulks, 454 F.3d at 432-33 (citation omitted).          Likewise here, we

conclude that it was within the district court’s discretion to

qualify Juror 286.

      Umaña also argues that the views Juror 286 expressed about

law   enforcement   evidenced   actual   bias,    as   indicated    by   the

following exchange during voir dire:

      Q:   [A]re you going to treat civilians and law
           enforcement, you’re going to be able to evaluate
           their testimony and weigh it equally?

      A:   Um, I think so. But in all honesty, I do have to
           say that I do have a positive feeling towards
           them, police officers, detectives and so forth.


                                   32
                                *       *        *

     Q:      [S]o you would be able to judge fairly the
             testimony of a police officer, the same way you
             would a civilian witness in this case?

     A:      I have to answer again in all honesty that I hope
             that I would be able to. But also as I say, I do
             support and see law enforcement in a favorable
             light.

                                *       *        *

     Q:      [W]ould you follow that same instruction and use
             the same standard in evaluating the credibility
             of each type of witness?

     A:      I think so. I’ve never done it before, as I say.
             I just have to say that I would hope and I would
             think that I would.

Based   on   these   answers,       Umaña    contends    that   “Juror   286   was

equivocal about whether her beliefs about law enforcement would

interfere with her duty to treat all witnesses equally.”

     Because Umaña did not, during voir dire, object to Juror

286 on this ground, we review this issue under the plain error

standard.     See Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 732-34 (1993).

     Although “bias in favor of law enforcement officials [i]s

inappropriate,” United States v. Lancaster, 96 F.3d 734, 743

(4th Cir. 1996) (en banc), we conclude that the district court

did not err in failing to find actual bias based on Juror 286’s

statement     that    she   had        “positive        feelings”   about      law

enforcement, especially where she went on to affirm (albeit in


                                        33
her cautious fashion) that she would use the same standard in

evaluating every witness’s credibility. See Capers, 61 F.3d at

1105 (no abuse of discretion where juror said he “might” favor

the government).          A juror’s generally favorable impression of

law enforcement does not necessarily amount to bias any more

than does a juror’s personal association with law enforcement.

See    United    States    v.    Larouche,     896    F.2d    815,    830   (4th    Cir.

1990).       Based on our review of the record, we conclude that the

district court’s ruling was not in error.


                                           B

       Umaña contends that Juror 119 was also biased insofar as

she    did      not    confirm       during    voir     dire     that       she    would

“meaningfully consider life imprisonment upon a finding of guilt

of the charged offenses.”

       On     Juror      119’s       questionnaire,      she         gave    seemingly

contradictory answers with respect to whether she would consider

life    in    prison   for      an   individual      convicted       of   racketeering

offenses.        But she explained at voir dire that she had been

confused by the wording of the question.                     More importantly, she

expressed unhesitatingly that she would consider both life in

prison and the death sentence:

       Q:     [T]he question I have for you is whether you
              would consider those both -- those two options?

       A:     Oh, yes.


                                          34
    Q:      Or automatically choose one over the both?

    A:      No.    No.

    Q:      You would consider both?

    A:      I would consider both.

     Later in voir dire, Juror 119 did say that she would “lean

heavily     towards      the    death   penalty   for     .    .     .     intentional

killing.”         When    the    district     judge   followed           up   on    this

statement,    Juror      119    initially     expressed       some       equivocation,

stating that she was “not sure” whether she could keep an open

mind about the sentencing options.             The judge continued to probe

Juror 119:

     Q:   Let me ask you this question: I’m not asking you
     to tell me what your decision will be.      What I’m
     asking you is, are you willing in good faith, to go
     through the process of considering and weigh both
     options?

     A:     Yes.

     Q:   As part of that, would you be willing to consider
     and weigh the aggravating factors presented by the
     government and the mitigating factors presented by the
     defendant?

     A:     Yes.

     Q:   Would   you  be   able   to             follow       the        Court’s
     instructions on those points?

     A:     Yes.    I would have to.

The judge concluded that Juror 119 “could in good faith weigh

both options.”



                                         35
       We conclude that the judge did not abuse his discretion.

In making his judgment, he followed the instructions from Hager

precisely,       following    up    with       a    series       of   shorter,    simpler

questions when the juror manifested some initial equivocation.

The juror answered these questions unambiguously, making clear

that she was not “irrevocably committed to imposing the death

penalty.”       United States v. Caro, 597 F.3d 608, 615 (4th Cir.

2010).

       As we have previously noted, a juror’s mind need not be a

blank slate.       See United States v. Jones, 716 F.3d 851, 857 (4th

Cir. 2013) (“Because jurors will have opinions from their life

experiences, it would be impractical for the Sixth Amendment to

require that each juror’s mind be a tabula rasa”).                               “[I]f a

district court views juror assurances of continued impartiality

to   be    credible,    the   court      may       rely   upon    such    assurances   in

deciding whether a defendant has satisfied the burden of proving

actual prejudice.”         Id. (quoting United States v. Corrado, 304

F.3d 593, 603 (6th Cir. 2002)).                    The judge in the present case

acted within his discretion in crediting Juror 119’s assurances

that      she   could   follow     the   law        and   consider       all   sentencing

options.




                                           36
                                           V

        During the third phase of trial -- the sentence selection

phase, during         which   the   jury   decided      whether    to     impose    life

imprisonment without the possibility of release or the death

penalty      --   the   government       sought    to    prove     that    Umaña    had

committed several murders in Los Angeles in 2005.                       To that end,

it introduced into evidence the transcript of an interrogation

of Umaña, conducted by Los Angeles police detectives while he

was     in    state     custody     in     North     Carolina.            During     the

interrogation, Umaña placed himself at the two scenes of the Los

Angeles      murders,    although    he    denied       actually    committing      the

murders.        Even so, the evidence helped the government implicate

Umaña in the murders because no evidence indicated that anyone

but Umaña was present at the two locations, and the same gun was

used to commit all of the murders.

      Challenging       the    introduction        of    the   transcript,         Umaña

contends that the statements he made during the interview were

obtained in violation of his Miranda rights and, in any event,

were given involuntarily, in violation of the Fifth Amendment.

He bases his argument on the fact that during the interview, the

Los Angeles detectives repeatedly told him that his statements

would     not     “affect”    the   North       Carolina    case    and     that    his

statements would not “cost” him anything, when in fact they were

used against him in this case.


                                           37
      As to his Miranda claim, the record shows that after the

Los Angeles detectives read Umaña a Miranda warning in Spanish,

they followed up with questions to ensure that he understood,

again speaking to him in Spanish:

      Detective:             Do you understand what I’m saying?

      Umaña:                 Yes.

      Detective:             Do you want to talk about, uh, what we
                             want to talk about here of things that
                             happened in Los Angeles . . . freely?

      Umaña:                 I already told you, let’s see about it.

      Detective:             Okay.

      Umaña:                 Yes.

      Detective:             Yes?    Okay. . . .

      Umaña:                 You will be explaining more things.

The detective who conducted this interview later testified that

he thought that Umaña understood his right to remain silent and

intended to waive that right.                     The district court found the

officer to be credible and that Umaña’s response of “Yes,” plus

his subsequent willingness to answer questions, indicated that

he did indeed intend to waive his Miranda rights and speak with

the detectives.

      We agree.       “To effectuate a waiver of one’s Miranda rights,

a   suspect    need    not    utter    any    particular     words.”   Burket   v.

Angelone,      208    F.3d    172,     198    (4th    Cir.   2000).    A   suspect

impliedly waives his Miranda rights when he acknowledges that he


                                             38
understands the Miranda warning and then subsequently is willing

to answer questions.        See United States v. Frankson, 83 F.3d 79,

82 (4th Cir. 1996).          That is precisely what happened in this

case.

     Umaña    contends      that,    in    any   event,    his    statements      were

extracted    involuntarily,     in    violation       of   his    Fifth    Amendment

rights, because the Los Angeles detectives said that Umaña’s

statements would not “cost” him anything or “affect” him.                          He

identifies 10 such comments that occurred over the course of a

two-and-one-half hour interview.               For example, when asking about

the Fairfax Street murders, one detective stated:                    “Why don’t we

go ahead and clear up everything in the past that you’ve done in

Los Angeles.       It doesn’t cost you anything.”                And, referring to

the North Carolina investigation, a detective stated:                     “We don’t

. . . want to affect the case here at all.”

     To determine whether a statement or confession was obtained

involuntarily,       in   violation       of    the   Fifth   Amendment,        “[t]he

proper   inquiry      ‘is   whether       the    defendant’s       will   has    been

overborne     or    his   capacity    for       self-determination        critically

impaired.’”        United States v. Braxton, 112 F.3d 777, 780 (4th

Cir. 1997) (en banc) (quoting United States v. Pelton, 835 F.2d

1067, 1071 (4th Cir. 1987) (internal quotation marks omitted)).

To make this determination, we consider “the totality of the

circumstances, including the characteristics of the defendant,


                                          39
the    setting        of     the     interview,         and        the     details       of    the

interrogation.”            Pelton, 835 F.2d at 1071.

       We have consistently declined to hold categorically that a

suspect’s        statements        are     involuntary         simply        because      police

deceptively highlight the positive aspects of confession.                                      For

example, in United States v. Whitfield, 695 F.3d 288 (4th Cir.

2012), we refused to find a confession involuntary where the

police officers told the suspect that by talking to them he

“would      do   ‘nothing      but    help[]       [himself].’”             Id.    at    303    n.8

(alterations in original).                 Similarly, in Rose v. Lee, 252 F.3d

676 (4th Cir. 2001), we held that “the cryptic promise that

‘things would go easier’ on [the suspect] if he confessed [did

not] amount[] to unconstitutional coercion.”                               Id. at 686; see

also United States v. Rutledge, 900 F.2d 1127, 1128, 1131 (7th

Cir.    1990)     (finding         that    the     statement        “all     cooperation        is

helpful” was the sort of “minor fraud that the cases allow” and

did    not   make     subsequent          statements         involuntary).             “The    mere

existence        of   threats,       violence,          implied          promises,      improper

influence, or other coercive police activity . . . does not

automatically render a confession involuntary.”                                   Braxton, 112

F.3d   at    780.      Rather,       we     must      look    at    the    totality       of   the

circumstances         to     see    if     Umaña      was     not    acting       of    his    own

volition.




                                                 40
       Considering the entirety of the interrogation, we conclude

that     Umaña’s      statements          were      made       voluntarily.            While      the

detectives’         statements          may    have      been     misleading,         they      never

amounted to an outright promise that nothing Umaña said would

ever be used against him.                 Rather, they were akin to the cryptic

encouragement         we    allowed       in       Whitfield          and    Rose.       See     also

Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mislead

a suspect or lull him into a false sense of security that do not

rise to the level of compulsion or coercion to speak are not

within Miranda’s concerns”).

       Moreover,          Umaña’s       statements          and       behavior       during       the

interrogation belie any notion that he thought his statements

could not be used against him. When the detectives were pushing

him to confess to the Fairfax Street murders, he observed that

“later    on    you’re          going    to     come      to     me       with   another     case,”

obviously       indicating         that       he    knew       his    words      could     be    used

against    him.           And    despite        the      detectives’          suggestions        that

confessing would not “cost” him anything, Umaña never did so.

His most significant “confessions” were to admit to being in the

car    during       the    Fairfax       Street         murders       and    dropping      off   the

shooters       in    Lemon       Grove        Park.        But       he     never    admitted     to

committing any of the murders.                        To the contrary, throughout the

interrogation, Umaña’s statements were evasive and misleading.

For example, when an officer asked, “[W]ho fired at the two dead


                                                   41
persons?,” Umaña first responded, “I don’t know that,” and then,

“Look . . . perhaps my hands, perhaps someone else’s hands,

perhaps Negro’s hands, perhaps Chipie’s hands.”                   At one point,

he began rapping an MS-13 song to deflect the focus of the

interview.      Umaña had experience in prior police interrogations,

and in this case he was given a Miranda warning and acknowledged

that he understood it.           We have little doubt that Umaña knew

what    he    was   doing   as   he    played    a    cat-and-mouse    game    with

detectives.

       At bottom, we conclude that there simply was no evidence

that Umaña thought his statements would not be used against him,

and    we    decline   to   conclude    that    any   violation   of   his    Fifth

Amendment rights against self-incrimination occurred.




                                         42
                                             VI

       During the sentence selection phase of trial -- again in

connection with the Los Angeles murders -- the district court

allowed the government to introduce hearsay statements of MS-13

members accusing Umaña of committing the murders.                        Specifically,

the court allowed detectives to testify at trial about their

interviews with Luis Ramos, Luis Rivera, and Rene Arevalo.                             The

court also allowed the government to introduce the transcripts

of the interviews with Rivera and Arevalo.

       Umaña objected to the evidence on the grounds that it (1)

violated his right to confrontation under the Sixth Amendment

and    (2)    constituted       unreliable         hearsay.      The    district      court

overruled the objections, holding that the Confrontation Clause

does    not    apply     to     the    sentence      selection     phase       of   capital

sentencing         and   that    the    hearsay       statements       bore    sufficient

indicia      of    reliability        and   trustworthiness        to    be    admissible

during sentencing.            Umaña now contends that the district court

erred on both counts.            We address each, seriatim.


                                               A

       Umaña argues that “it is clear from the Sixth Amendment’s

text    and       history,    the     Eighth       Amendment,    and     the    statutory

requirements of the [Federal Death Penalty Act] that the right

to confrontation applies throughout the sentencing phase of a



                                             43
federal    death       penalty    case.”        Recognizing        that        the    Sixth

Amendment has traditionally not been applied during sentencing,

he argues that the death penalty is qualitatively different from

other    punishments      and    that   application         of    the    Confrontation

Clause would enhance reliability in the determination that death

is the appropriate punishment.

       Courts have long held that the right to confrontation does

not apply at sentencing, even in capital cases.                         In Williams v.

New York, 337 U.S. 241 (1949), a state judge imposed the death

penalty on a defendant based on (1) the evidence presented to

the jury at trial, (2) “additional information obtained through

the court’s Probation Department,” and (3) information obtained

“through other sources,” as authorized by state law.                                 Id. at

242-43    (internal       quotation     marks    omitted).              The     defendant

challenged the constitutionality of the sentence because it was

“based    upon    information     supplied      by    witnesses         with    whom       the

accused    had    not    been    confronted     and    as    to    whom       he     had   no

opportunity      for    cross-examination       or    rebuttal.”           Id.       at    243

(quoting People v. Williams, 298 N.Y. 803, 804 (1949)).                                     In

rejecting the challenge, the Supreme Court noted that in modern

sentencing, which seeks a punishment that fits the offender, not

just the crime, the sentencing judge should be able to consider

“the    fullest    information      possible     concerning         the       defendant’s

life and characteristics.”              Id. at 247.          If that information


                                           44
were   “restricted        to    that       given      in      open     court        by    witnesses

subject     to   cross-examination,”             it     would      become       “unavailable.”

Id. at 250.           The Court explained that “the type and extent of

this information [necessary to the ‘practice of individualizing

punishments’] make totally impractical if not impossible open

court testimony with cross-examination.”                               Id.     The Court also

explained that sentencing is a highly discretionary function,

which is distinct from finding guilt, where due process requires

that     the     factfinder         be    “hedged        in       by    strict       evidentiary

procedural       limitations.”             Id.     at      246.        The     Williams          Court

indicated that the standard is no different for capital cases,

stating, “We cannot accept the contention” that “we should draw

a constitutional distinction as to the procedure for obtaining

information where the death sentence is imposed.”                              Id. at 251.

       We    conclude     that      Williams       squarely            disposes          of   Umaña’s

argument       that    the     Sixth      Amendment         should          apply    to       capital

sentencing.

       Umaña maintains nonetheless that intervening case law has

eroded Williams, which he characterizes as containing “analysis

of a bygone era of untrammeled judicial discretion.”                                            But he

provides       no     authority          suggesting         that       Williams           has     been

overruled.          To the contrary, Williams remains good law.                                    The

Supreme     Court      recently      affirmed         its     viability        in        Alleyne    v.

United      States,     133    S.    Ct.    2151        (2013),        in    which        the    Court


                                              45
recited Williams’ holding that “the Sixth Amendment does not

govern”      “factfinding        used    to        guide    judicial        discretion    in

selecting a punishment ‘within limits fixed by law.’”                                Id. at

2161 n.2 (quoting Williams, 337 U.S. at 246).                          And we recently

held in United States v. Powell, 650 F.3d 388 (4th Cir. 2011),

that    “a       sentencing      court        [may]        consider     ‘any        relevant

information        before     it,       including          uncorroborated           hearsay,

provided        that   the    information            has    sufficient        indicia     of

reliability       to   support    its     accuracy.’”          Id.     at    392    (quoting

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)).

Indeed, in Powell, we specifically rejected the claim Umaña now

makes   that     intervening      case     law       undermined      Williams,       holding

that “[r]ecent Confrontation Clause decisions do not require us

to reconsider this settled distinction between trial evidence

and sentencing evidence in the hearsay context.”                        Id.

       Moreover, Umaña’s suggestion that evidence at sentencing be

restricted       by    the   Confrontation           Clause    would        frustrate    the

policy of presenting full information to sentencers.                                 As the

Williams     Court     pointed     out,    “Modern         concepts     individualizing

punishment have made it all the more necessary that a sentencing

judge     not     be    denied     an     opportunity         to      obtain       pertinent

information by a requirement of rigid adherence to restrictive

rules of evidence properly applicable to the trial.”                               337 U.S.

at 247.      Indeed, this policy has repeatedly been recognized as


                                              46
essential     to     sentencing        “reliability.”             See,    e.g.,              Gregg   v.

Georgia,      428     U.S.      153,    204       (1976)       (noting        in        the     Eighth

Amendment context, “We think it desirable for the jury to have

as much information before it as possible when it makes the

sentencing decision”); see also Woodson v. North Carolina, 428

U.S. 280, 303-05 (1976) (invalidating a North Carolina death

penalty      statute      for    failing      to     allow      defendants              to     put   on

evidence of their particular character and the circumstances of

their offense).           In United States v. Fields, 483 F.3d 313, 336

(5th Cir. 2007), the court explained:

      Where the [Supreme] Court discusses the need for
      reliability in the Eighth Amendment context, it is not
      talking about the appropriate sources for information
      introduced at sentencing or even, more generally,
      about the reliability of evidence.       It is instead
      focusing on (1) the need to delineate, ex ante, the
      particular offenses for which death is a proportionate
      punishment and (2) the need for the jury to be able to
      consider all factors (particularly mitigating, but
      also aggravating) relevant to choosing an appropriate
      punishment once the death penalty is in play.

We   agree    with     Fields.         A    policy       of    full    information              during

sentencing,         unrestricted        by    the        strict       rules        of     evidence,

enhances reliability by providing the sentencing jury with more

relevant evidence, whether presented by the government or the

defendant.           To    now     impose         the     rigorous       requirements                of

confrontation         would      not       only     be     a    setback        for            reliable

sentencing,          it      could         also      “endlessly          delay                criminal




                                              47
administration in a retrial of collateral issues.”                        Williams,

337 U.S. at 250.

      Finally,   Umaña    contends      that        the    Confrontation        Clause

should apply to every fact that the jury finds, even during the

sentence selection phase, because facts of guilt and punishment

are   “constitutionally        significant.”              He   argues    that    jury

factfinding of aggravating factors during the sentence selection

phase of trial “alters the legally prescribed range and does so

in a way that aggravates the penalty.”                (Quoting Alleyne, 133 S.

Ct. at 2161 n.2).        We find this argument unpersuasive.                    During

the   sentence   selection      phase    of    a    capital     trial,    the     jury

exercises discretion in selecting a life sentence or the death

penalty, and any facts that the jury might find during that

phase do not alter the range of sentences it can impose on the

defendant.    Under the Federal Death Penalty Act, the jury finds

the   facts   necessary   to    support       the   imposition      of   the     death

penalty in the guilt and eligibility phases of trial.                          See 18

U.S.C. §§ 3591-3596.        It is only during these phases that the

jury makes “constitutionally significant” factual findings.

      Only after finding Umaña death penalty eligible did the

jury in this case consider hearsay evidence to assist it in

exercising its discretion to select the appropriate sentence.

During the selection phase, a jury is not legally required to

find any facts.     And while it may do so, such facts are neither


                                        48
necessary nor sufficient to impose the death penalty -- they

merely guide the jury’s discretion in choosing a penalty.                      As

the Supreme Court has recently explained:

       Juries must find any facts that increase either the
       statutory   maximum or    minimum  because   the  Sixth
       Amendment applies where a finding of fact both alters
       the legally prescribed range and does so in a way that
       aggravates the penalty. Importantly, this is distinct
       from factfinding used to guide judicial discretion in
       selecting a punishment “within limits fixed by law.”
       Williams v. New York, 337 U.S. 241, 246 (1949). While
       such findings of fact may lead judges to select
       sentences that are more severe than the ones they
       would have selected without those facts, the Sixth
       Amendment does not govern that element of sentencing.

Alleyne, 133 S. Ct. at 2161 n.2 (emphasis added).

       Accordingly, we conclude that the Confrontation Clause does

not preclude the introduction of hearsay statements during the

sentence selection phase of capital sentencing.                  Accord Muhammad

v.    Sec’y,   Fla.   Dep’t   of   Corrections,     733   F.3d    1065,    1073-77

(11th Cir. 2013); Fields, 483 F.3d at 337-38.                      The district

court’s holding that the Confrontation Clause did not prevent

the    government     from    introducing     the   hearsay      statements     of

Umaña’s coconspirators during the selection phase of sentencing

is therefore affirmed.


                                       B

       Regardless     of   whether   the    Confrontation     Clause      applies,

Umaña challenges the admission of the hearsay testimony in this

case on the ground that it did not bear “sufficient indicia of


                                       49
reliability to support its probable accuracy.”                          Powell, 650 F.3d

at 394 (quoting U.S.S.G. § 6A1.3(a)).                       We review the district

court’s ruling in this regard for abuse of discretion.                                       See

United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009).

       With respect to the Fairfax Street murders, Umaña argues

that the hearsay statements of Ramos, Rivera, and Arevalo -- all

of    whom   accused       him    of    being     the    shooter       --    did    not     bear

sufficient        indicia    of        reliability.        He      argues         that     their

statements were not corroborated by independent evidence; that

any    similarities         in    their     statements          were        on    “undisputed

peripheral details”; that Rivera and Ramos spent a weekend in

jail    together      before       telling        the    same     stories;          that     the

statements were the product of police pressure; that they were

contradicted in some respects by neutral observers; and that

they were self-serving inasmuch as they exculpated the accusers,

see    Lee   v.   Illinois,       476     U.S.    530,    541    (1986)          (noting    that

“accomplices’        confessions          that     incriminate          defendants”          are

“presumptively unreliable”).

       While these are all legitimate arguments, we conclude that

the court had other evidence that rendered the hearsay testimony

sufficiently reliable to overcome any presumption and support

its    discretion     in    admitting       the    evidence.           First,       there    was

undisputed ballistics evidence indicating that the same gun was

used for both the Fairfax Street and Lemon Grove Park murders.


                                             50
Umaña admitted to being at the scene of both crimes, and there

is   no   evidence    that    anyone     else      was   present    at   both   murder

sites.     Moreover, there was strong evidence, as discussed below,

linking Umaña to the Lemon Grove Park murder.                      Umaña attempts to

explain     away    the    significance          of    the   ballistics    match    by

suggesting that MS-13 members sometimes share guns, but there

was no evidence that Umaña himself ever shared his gun.                              In

addition, there was not just one accusation against Umaña by the

declarants, but three.             To be sure Ramos’s accusation arose only

after he spent the weekend in jail with Rivera, but there is no

evidence    that     either    Rivera’s      or       Arevalo’s    accusations     were

tainted by collusion.          Finally, as the district court noted, the

statements themselves contained many other consistent details,

such as the “make and model of car involved, the presence of

crutches, the names of the other participants, the number of

victims, and the specific gang signs displayed by the victims.”

In light of all of these circumstances, we conclude that the

district    court    did     not    abuse    its      discretion    in   finding    the

hearsay accusations of Rivera, Ramos, and Arevalo regarding the

Fairfax Street murders sufficiently reliable to admit them into

evidence.

      With respect to the Lemon Grove Park murder, the government

introduced     Arevalo’s       hearsay       statement        accusing     Umaña     of

committing the crime.          As with the Fairfax Street murders, the


                                            51
ballistics      evidence      provided     support      for    the    reliability       of

Arevalo’s accusation.           Moreover, Freddie Gonzalez -- the target

of the Lemon Grove Park attack who escaped -- identified Umaña

in open court as the assailant.                   This evidence, we conclude,

provided       Arevalo’s      accusation        with    sufficient          indicia     of

reliability       to    warrant    its     admission      at    sentencing.            See

U.S.S.G. § 6A1.3(a).

       At   bottom,     we   conclude     that    the   district       court    did    not

abuse its discretion in admitting the hearsay evidence about the

Los    Angeles    murders     during      the    sentence      selection       phase   of

trial.


                                          VII

       Umaña    next    contends    that    the    district         court   abused     its

discretion       in    admitting    the    transcripts         of    the    detectives’

interviews of Rivera, Arevalo, and Umaña himself on the ground

that     the     transcripts       included       the    detectives’         statements

vouching for the credibility of several MS-13 members during the

interviews, which, he argues, amounted to improper government

vouching at trial.           He points out that during the course of the

interviews, the detectives told Rivera, for example, “I’m kind

of buying your story here,” and Arevalo, “You don’t seem like

the guy that did that.”             In the interview of Umaña himself, a




                                           52
detective stated that Ramos, Arevalo, and Rivera were “in jail

right now for something that he did.”

      Umaña did not make this objection at trial, and accordingly

we review it under the plain error standard.                    That standard

requires   Umaña   to   demonstrate    (1)    that    the    admission   of   the

evidence was error; (2) that the error was plain; and (3) that

it affected his substantial rights.                 Even then, we may only

exercise our discretion as to whether to notice the error if it

seriously affected the fairness, integrity, or public reputation

of the proceedings.      See Johnson v. United States, 520 U.S. 461,

466-67 (1997).

      While government vouching for the credibility of its own

witness is inappropriate, it is generally improper only when it

comes to the jury at trial from the prosecutor’s indication of

his personal belief about the credibility of a witness, although

it could also be improper for the prosecutor to solicit similar

vouching from government witnesses.           See United States v. Lewis,

10 F.3d 1086, 1089 (4th Cir. 1993).

      In this case we find no error, much less plain error.                     A

reasonable jury would not take the detectives’ comments during

the   interviews   as    vouching    for     the    trustworthiness      of   the

witness being interviewed, but rather as interrogation devices

designed   to   encourage   the     witness    to    talk.      Patronizing     a

witness with positive comments in order to uncover evidence of


                                      53
criminal      conduct,     when       introduced          by    the      prosecutor          in     a

transcript, can hardly be taken as a prosecutor’s opinion that

the   witness       was   trustworthy.                 And     admitting      several         such

isolated comments embedded in voluminous transcripts would not

in any event be plain error that affected Umaña’s substantial

rights.

      In a similar vein, Umaña challenges as vouching a question

by the prosecutor during trial to a detective who interviewed

Ramos,     Arevalo,       and   Rivera,           in    which       he   asked        what        was

“consistent among all of the individuals [he] interviewed.”                                        We

find that this question was not vouching at all, but a factual

inquiry to uncover statements common among the witnesses.

      For these reasons, we reject Umaña’s vouching claims.


                                             VIII

      Umaña     contends        that        the        district       court      abused           its

discretion     in    refusing        to    permit       him    --   during      the    sentence

selection      phase      --    to        introduce      evidence        of     the     murders

committed     by    his    RICO       coconspirators,            who     were    also        MS-13

members.      He argues that the evidence was relevant to show that

his own violent proclivities were not unique but rather were a

“product of social conformity.”

      The district court applied 18 U.S.C. § 3592(a)(8), which

provides for the admission of evidence in the sentence selection



                                              54
phase       relating      to    the     “defendant’s         background,           record,     or

character         or    any     other      circumstance          of    the    offense        that

mitigate[s]         against      imposition         of    the     death      sentence,”       and

concluded that evidence of other MS-13 murders was “irrelevant

to his character or the circumstances of his offenses.”                                       In

addition, the court concluded that such evidence would “confuse

and mislead the jury.”                See 18 U.S.C. § 3593(c) (authorizing the

judge to exclude evidence if “its probative value is outweighed

by    the    danger      of     creating      unfair       prejudice,         confusing      the

issues, or misleading the jury”).

      We     conclude         that   the    district       court       did   not    abuse    its

discretion.            It is difficult to imagine that giving the jury

evidence of unrelated murders by MS-13 members would contribute

to the individualized decision of whether to impose the death

penalty      on    Umaña.        Indeed,      it    might       even   work    against       him,

linking him with a number of other unrelated murders.                                Moreover,

whatever benefit Umaña might have obtained from introducing such

evidence      was      already       available      to    him    from     evidence     in     the

record.       For example, an MS-13 member testified that he had once

acted as a lookout while another MS-13 member “robbed two drunk

Hispanic guys,” and one of the victims “was shot dead” during

the     robbery.          Another          MS-13    member        testified        about     the

activities his clique engaged in:                        “Sell drugs, rob people, try

to kill people.”              A detective testified that MS-13’s motto was


                                               55
“Mata,     Violar,    Controla,”      which      translates     to    “Kill,   Rape,

Control.”     Finally, the jury had a copy of the indictment, which

listed many of the murders about which Umaña wanted to submit

evidence.

     The    district    court       was    appropriately      concerned     that   if

Umaña    tried   to    prove    these      murders     during    sentencing,       the

process would amount to mini-trials that would take days and

distract the jury.         In excluding this evidence, the court acted

well within its discretion.


                                           IX

     Umaña contends that during closing argument in the sentence

selection    phase    of   trial,     the       prosecutor    made    a   number   of

improper     statements        to    the       jury   that    were     sufficiently

prejudicial as to require reversal of the death penalty verdict.

See United States v. Scheetz, 293 F.3d 175, 185-86 (4th Cir.

2002).     But Umaña objected to only one of the statements when

made at trial, and therefore we will review the others for plain

error.     See United States v. Woods, 710 F.3d 195, 202 (4th Cir.

2013); United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995).


                                           A

     The statement that Umaña objected to was the prosecutor’s

comment to the jury about Umaña’s attempt to bring a concealed

shank (tied to his penis) into the courtroom.                        The prosecutor


                                           56
argued that Umaña tried to bring in the shank “to fight off

rivals. . . .           You know who the rivals were?              They’re the

Marshals.      Those are his rivals.          The judge is his rival.            I’m

his rival.         Anybody in this courtroom is a rival.               You’re his

rival.       He brought it on the first day of jury selection.”

(Emphasis added).          The court sustained Umaña’s objection, and

the prosecutor continued the closing argument thereafter making

a different point -- that Umaña’s rival was “justice.”

      Umaña contends that the prosecutor’s statement that “you’re

his   rival”    was    improper     because   it   encouraged    the    jurors   to

abandoned      their    role   as    “neutral      adjudicators”       and   become

“interested parties.”          See United States v. Manning, 23 F.3d

570, 574 (1st Cir. 1994); see also Caro, 597 F.3d at 626.                        We

agree.       The    prosecutor’s     statement     portraying    the    jurors   as

Umaña’s rivals was improper.             Indeed, the government concedes

that it was “ill-advised.”

      Nonetheless, we conclude that it was not so prejudicial as

to deprive Umaña of a fair sentencing trial.                    The comment was

isolated and did not constitute a pervasive theme throughout the

closing argument.        Moreover, its effect could only be minimal in

light of the fact that Umaña did indeed try to bring a shank to

the   jury     selection    proceeding,       which   likely    influenced       the

jurors more than did the prosecutor’s statement.                   In addition,

we think that, in light of Umaña’s attempt to bring the shank to


                                        57
the   jury    selection,    the     prosecutor’s          comments    were,    to    some

degree, invited.

      In     sum,   while   the    remark      was   inappropriate,       we    do    not

believe that it was so prejudicial as to call into question the

integrity of the jury’s death sentence.                        The jury found every

aggravating factor beyond a reasonable doubt, making it unlikely

that the isolated comment was material to its decision.


                                          B

      The    other   comments      made   during         the   government’s     closing

argument that Umaña challenges were not objected to when made,

and therefore we review them under the plain error standard.

      Umaña    contends     that   the    prosecutor           misleadingly    compared

him to other MS-13 members with the following comment:

      Let’s bring something back to the front here and
      that’s that this defendant is compared with other MS
      13 members according to what they would have you
      believe, because all those MS 13 members were framed
      and formed and created out of El Salvador.

                                   *      *          *

      So let’s compare him to the people around him and quit
      taking him out and separating him and looking at him
      as if he is only this way because of factors.     He’s
      here because of who he is. And he’s a killer.     He’s
      shown it over and over and over again.     And he’s a
      killer among killers. They talk about killing, yeah.
      But we haven’t had any evidence of it. And of all the
      people that were around him, he was the killer.     He
      rose to the top as the killer.

                                   *      *          *
      He’s the only killer.


                                          58
Umaña argues that it was improper for the prosecutor to refer to

him as the “only killer” in MS-13 when he was not permitted to

put on evidence to the contrary.

     First, as we            have already concluded, the district court

acted within its discretion in refusing to allow Umaña to submit

additional evidence regarding murders committed by other MS-13

members.     Moreover, Umaña misreads the statement, “He’s the only

killer.”     When taken in context, the government clearly could

not have meant that Umaña was the only member of MS-13 who had

committed murder.       Indeed, shortly before making that statement,

the prosecutor stated that Umaña was a “killer among killers.”

(Emphasis added).        Finally, there was ample evidence before the

jury that     other    MS-13    members       committed   murders,       as    we    have

already summarized.

     We conclude that the statement can reasonably be taken only

as   commenting       that    among    the     MS-13    members     in        the    RICO

conspiracy    charged    in     the   case,     Umaña   was   the   only       one    who

pulled the trigger in the Salinas brothers’ murders.                            If the

statement was error, it was not plain error, nor did it affect

Umaña’s substantial rights.


                                          C

     Umaña claims next that the prosecutor made the following

improper comment:


                                        59
       But you know what we heard today from one of their
       witnesses?    There are only 240 MS-13 members in
       prison. And I can promise you that if one of them was
       there for life and was behaving, we would have heard
       all about it.

Umaña    notes   that   the     district       court      had    earlier    denied    his

motion to obtain data from the Bureau of Prisons regarding the

behavior    of    incarcerated         MS-13        members.           Nonetheless,   he

obtained the evidence he wanted when he called as a witness a

retired warden for the Bureau of Prisons who testified that MS-

13 is not considered an especially serious security risk in the

prison     environment.           Understood             in     that     context,     the

prosecutor’s statement was just a critique of this testimony,

and we find nothing improper about it.


                                          D

       Next, Umaña objects to the prosecutor’s comment made during

closing     argument     that     “[y]ou       want       to    bring      El   Salvador

here. . . .           [Y]ou’d    better        be     ready      for     some    American

justice.”     He argues that the statement “invoked an us-versus-

them    theme”   that   did     nothing       more       than   encourage       “[r]acial

prejudice.”       The government argues that the comments were not

inappropriate in view of the fact that Umaña’s mitigation case

turned on his upbringing in El Salvador, and therefore it was

appropriate      to   “urg[e]    the    jury        to        hold   him   to    American

standards of justice.”



                                          60
       We   cannot     agree      that   the       comment     that    Umaña    should    be

“ready for some American justice” responds to Umaña’s mitigation

case    that     his       impoverished        El        Salvadoran     upbringing       was

responsible for his criminality.                    But the statement was isolated

in   only   a    small     part    of    the       prosecutor’s       closing    argument.

Moreover, any prejudice that the statement may have caused was

likely dwarfed by the racial prejudice Umaña himself incited in

letters he had written from prison evincing strong anti-American

rhetoric.        For   example,      one   letter         in   evidence    claimed     that

“2012 and 2013 . . . are when these little Americans are going

to be humiliated by all Hispanics from Central America, South

America,       and   Latin     America,        especially        by    prisoners,      drug

dealers, mafias, and gangbangers.”

       Finally,      the     district      court         instructed     the     jury   that

national origin could not play a part in its verdict, and each

juror certified in writing that it had not.

       As such, even if the error was plain, we conclude that it

did not affect Umaña’s substantial rights.


                                               E

       Next,      Umaña      challenges            the     following      prosecutorial

statement made during closing argument:

       [I]f you give him life, [he] is going to have his
       inmate bill of rights. . . . He took lives. Are you
       going to give him his bill of rights?     Manuel and
       Ruben didn’t have a bill of rights.


                                            61
                                *          *         *

       They cease to become living, breathing humans and
       became a corpse. Well, they’re a corpse. And they’re
       a corpse and you’re going to send him to the dining
       hall. Is that justice?

Umaña argues that this statement improperly compared the plight

of the victims with life in prison, thus making light of a term

of life imprisonment without the possibility of release.

       We do not believe that it was error, much less plain error,

for the prosecutor to have compared Umaña’s potential prison

sentence with the plight of the victims.                      In United States v.

Runyon, 707 F.3d 475, 513 (4th Cir. 2013), the prosecutor “made

a number of comments contrasting the criminal justice system’s

treatment of [the defendant] with [the defendant’s] treatment of

[the   victim].”    We    declined             to   find     such   comments     to   be

improper, noting that “it is, of course, perfectly permissible

for the prosecution to urge the jury not to show a capital

defendant mercy.”    Id.        In Runyon, we thought that “the whole

matter   represent[ed]    the       sort       of   thrust    and   parry   in    which

attorneys typically engage in the course of their last chance to

persuade a jury.”   Id.    We reach the same conclusion here.


                                           F

       Finally, Umaña challenges the prosecutor’s use of religious

imagery during the course of closing argument.                      When discussing




                                           62
Umaña’s letters, sent while he was in prison, the prosecutor

said:

        This [letter] is called -- it’s got a title. One more
        day with the beast. Do you remember who the beast is?
        It’s tattooed on his body.   It’s in his heart.  It’s
        the devil. It goes like this:

            “One more day has now begun and I thank the
            beast that we keep on standing here with a
            joint of weed and a fully loaded gun, ready
            and prepared to go out into the streets like
            I have always planned. . . .”

Umaña     argues    that,    in     these        comments,     the    prosecutor    was

“compar[ing] [him] to ‘the devil.’”

     To     be     sure,    we    have      condemned        “religiously       charged

arguments as confusing, unnecessary, and inflammatory.”                         Bennett

v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996).                       In this case,

however,     prejudice      could    hardly        have      occurred,    as    Umaña’s

conduct amply invited reference to the devil.                         When he was in

the courtroom, he “threw” MS-13’s gang sign --                       the horns of the

devil.      Moreover, he had tattoos of devilish figures on his

body.     And, of course, his prison letters -- including the one

that the prosecutor read immediately after she made the beast

comment -- contained vivid imagery evoking the devil.                          While it

might have been better not to make so explicit or direct an

allusion to the devil and its place in Umaña’s heart, we cannot

conclude that, in context, the comment so prejudiced Umaña as to

affect his substantial rights.




                                            63
       In sum, we conclude that the prosecutorial statements made

during closing argument either were not error or, if they were,

were not sufficiently prejudicial to require vacating the death

penalty verdict.

                                                X

       Umaña      next    challenges       the      district        court’s     decision        to

allow       the   government       to     prove      “future        dangerousness”         as    a

nonstatutory       aggravating          factor      during     the    sentence       selection

phase of the trial.              He argues that, in the prison context, the

jury can never make a prediction about future dangerousness on

any reliable basis.              He points to several empirical studies by

Mark    Cunningham,        his    defense      expert,        who    reported    a     lack      of

correlation        between       future    dangerousness            findings     and    actual

prison violence.

       We     have,       however,        previously          rejected        this     precise

argument, holding that whether a defendant would pose a danger

to others while in prison is a proper question for the jury.

See Hager, 721 F.3d at 200.                    As we said in Hager, “Perhaps we

might someday be presented with a case in which we are persuaded

that    the       evidence       presented          as   to    a     defendant’s        future

dangerousness            was     merely        speculative           or   that        it        was

constitutionally infirm.”                Id.     Like in Hager, we conclude that

this is not such a case.                    Indeed, there was ample evidence

presented in this case to allow the jury to find that Umaña was


                                               64
likely to commit criminal acts of violence in the future, even

in prison, and that he would constitute a continuing and serious

threat to the lives and safety of others.

      With    respect    to   this    aggravating         factor,      Umaña   also

challenges the structure of the verdict form because it allowed

the   jury   only   to   indicate    that    it   had    found   the    particular

subfactors and did not give the jury an opportunity to indicate

whether or not they had found the “overarching aggravator” of

future    dangerousness.       Umaña        argues      that   this     created   a

“presumption” of future dangerousness upon finding any one of

the subfactors. 1


      1
       The form that the district court submitted to the jury for
the purpose of finding the aggravating factor of future
dangerousness appears as follows:

      Do you, the jury, unanimously find that the government
      has proven beyond a reasonable doubt that the
      defendant is likely to commit criminal acts of
      violence in the future which would constitute a
      continuing and serious threat to the lives and safety
      of others, as evidenced by at least one or more of the
      following:

           a. The defendant has engaged in a continuing
      pattern   of   violence,   attempted   violence,  and
      threatened violence, including but not limited to the
      crimes   alleged   against  the   defendant   in  the
      Indictment.

             Yes: ______      No: ______

           b. The defendant poses a future danger to the
      lives and safety of other persons as demonstrated by
      his lack of rehabilitation after incarceration, his



                                       65
       We disagree with Umaña’s reading of the form.            To be sure,

we     think    that   the   form   would    have   been   clearer    had   the

introductory language ended after the first two lines and had

each      lettered      paragraph    thereafter      begun     with     future

dangerousness language.        But the form as used did not create any

presumption, as Umaña argues.               Rather, it presented the jury

with four specific factual circumstances of future dangerousness

on which the government presented evidence.                The form was not

designed to permit the jury to find future dangerousness except

by finding one or more of the specific facts evidencing future

dangerousness.         And, of course, the form permitted the jury to

find a fact evidencing future dangerousness only if they were

unanimous and the fact was proved beyond a reasonable doubt.




       pattern of criminal conduct, and his allegiance to and
       membership in MS-13?

               Yes: ______     No: ______

            c. The defendant has never expressed any remorse
       for killing Ruben Garcia Salinas as indicated by
       defendant’s statements to fellow gang-members during
       the course of and following the offenses alleged in
       the Indictment?

               Yes: ______     No: ______

            d. The defendant has demonstrated an allegiance
       to and active membership in MS-13, a violent criminal
       enterprise?

               Yes: ______     No: ______



                                       66
                                               XI

      Umaña argues that he should have been allowed to submit

evidence regarding the impact that his execution would have on

his   wife    and      child.       This       argument,      however,       is     squarely

foreclosed        by   our      decision        in     Hager,      721      F.3d     at        194

(“[A]llowing a capital defendant to argue execution impact as a

mitigator is improper”).


                                               XII

      Umaña next contends that his death sentence violated the

Eighth Amendment because he was only convicted of “second degree

murder.”      He points out that the verdict form in this case

reflected     a    finding      that      he    committed         murder,    but     not        an

additional     finding       that    he    did        so   with    “premeditation              and

deliberation.”         He therefore argues that the jury’s finding of

guilt was sufficient to “establish only a conviction for second

degree     murder.”          Moreover,         he    maintains      that     there        is     a

“national consensus . . . against death as a punishment for

second degree murder.”              He explains that because second degree

murder   is   “unpremeditated          malice         killing,”      it     is     “not    well

suited to capital punishment” because such murders cannot be

deterred by the death sentence.                      Finally, he asserts that only

nine States “authorize death for the second degree murders that

occurred here.”



                                               67
       The death-qualifying conduct that the jury found in this

case was (1) that Umaña murdered the Salinas brothers in aid of

racketeering for the purpose of maintaining or increasing his

position      in     a     racketeering        enterprise,          in    violation         of    §

1959(a)(1); (2) that he used a firearm in relation to a crime of

violence resulting in the deaths of the Salinas brothers and

that    the   killings          were    done    “with       malice       aforethought,”          in

violation of § 924(c) and (j)(1); and (3) that he killed the two

brothers      and    attempted         to   kill     another    person         “in    a    single

criminal episode.”              The jury also found that the other criteria

for    imposing      the    death      penalty,      as   contained        in    the       Federal

Death Penalty Act of 1994, were satisfied in this case.                                          The

question      raised       by     Umaña’s      challenge       is    whether         the    death

penalty, which is authorized by these statutes, is an excessive

or cruel and unusual punishment for the conduct found by the

jury, as prohibited by the Eighth Amendment.

       “[T]he Eighth Amendment’s protection against excessive or

cruel and unusual punishments flows from the basic ‘precept of

justice that punishment for [a] crime should be graduated and

proportioned to [the] offense.’”                     Kennedy v. Louisiana, 554 U.S.

407,    419   (2008)       (alterations         in    original)      (quoting          Weems      v.

United     States,         217     U.S.     349,      367     (1910)).               To     ensure

proportionality, “capital punishment must ‘be limited to those

offenders      who       commit    a   narrow       category    of       the    most       serious


                                               68
crimes     and    whose     extreme       culpability     makes       them   the   most

deserving of execution.’”               Id. at 420 (quoting Roper v. Simmons,

543 U.S. 551, 568 (2005)) (internal quotation marks omitted).

As such, States and the federal government must “limit the class

of murderers to which the death penalty may be applied.”                           Brown

v. Sanders, 546 U.S. 212, 216 (2006).                   This limiting function is

generally accomplished when “the trier of fact . . . convict[s]

the   defendant        of     murder          and    find[s]    one      ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty

phase.” Tuilaepa v. California, 512 U.S. 967, 972 (1994).                           The

Supreme        Court   has     also       recognized       several       “categorical

restrictions on the death penalty.”                  Graham v. Florida, 560 U.S.

48,   59   (2010).     In    so    doing,      the    Court    uses    the   following

approach:

      [It] first considers “objective indicia of society’s
      standards, as expressed in legislative enactments and
      state practice” to determine whether there is a
      national consensus against the sentencing practice at
      issue.   Next, guided by “the standards elaborated by
      controlling   precedents   and   by   the   Court’s   own
      understanding   and   interpretation    of   the   Eighth
      Amendment’s text, history, meaning, and purpose,” the
      Court must determine in the exercise of its own
      independent   judgment   whether    the   punishment   in
      question violates the Constitution.

Id. at 61 (quoting Roper, 543 U.S. at 563, and Kennedy, 554 U.S.

at 421).

      These Eighth Amendment principles do not suggest, as Umaña

urges,     a   categorical        ban    on   capital    punishment      for   “second


                                              69
degree    murders.”             To   the       contrary,        the    Supreme         Court    has

explicitly          approved     a   plethora          of     aggravating        factors       that

afford the jury “wide discretion” in crimes “where the victim

dies.”     Kennedy, 554 U.S. at 440.                   And there is no indication by

the Court that the States or the federal government must include

premeditation or deliberation as a required aggravating factor.

Indeed, the Court has repeatedly upheld death penalty schemes

that     did        not     require        a     finding        of     premeditation            and

deliberation.             For instance, in Arave v. Creech, 507 U.S. 463

(1993),       the    statute     under         which    the    defendant         was   convicted

defined “first degree murder” to include not only premeditated

murders but also murders where, for example, (1) the victim was

a   fellow     prison       inmate    or       law     enforcement         officer,      (2)    the

defendant was already serving a sentence for murder, (3) the

murder    occurred         during     a    prison       escape,       or    (4)    the    murder

occurred during the commission of specified felonies.                                     Id. at

475.     In     the       context     of        that     statute,       the       Court    found

sufficiently narrowing as an aggravating factor the fact that

the defendant was a “cold-blooded, pitiless slayer.”                                      Id. at

472-76.       Similarly, in Jurek v. Texas, 428 U.S. 262 (1976), the

Court    upheld       the    death    penalty          for     murder      that    had     to    be

deliberate          but   not   premeditated           and     where       the    jury    made    a

finding of future dangerousness.                         Id. at 269 (describing the

regime).        And in Tison v. Arizona, 481 U.S. 137 (1987), the


                                                 70
Court upheld the death penalty for a participant in a felony

murder who had not actually committed the murder.                              The Court

held       that   the        defendant’s     “substantial        participation      in     a

violent felony under circumstances likely to result in the loss

of innocent human life may justify the death penalty even absent

an ‘intent to kill.’”                   Id. at 154.        In short, there is no

suggestion        that       capital    punishment    is    appropriate        only      for

murders involving premeditation and deliberation.

       In the same vein, a survey of state statutes reveals a lack

of any national consensus that premeditation and deliberation

are    necessary        to    qualify    a   defendant     for   the   death    penalty.

Most state statutes that divide murder into degrees include in

“first degree murder” more than just premeditated murders.                               The

overwhelming        majority       include     felony      murders     and   make     them

punishable by death without any showing of premeditation. 2                              And


       2
       On our review of the 22 States that divide murders into
degrees, 17 make felony murder without premeditation a capital
crime.   See Ariz. Rev. Stat. Ann. § 13-1105; Ark. Code Ann.
§§ 5-10-101 to -102; Cal. Penal Code §§ 189, 190; Colo. Rev.
Stat. §§ 18-3-102, -1.3-1201; Del. Code Ann. tit. 11, § 636;
Idaho Code Ann. §§ 18-4003 to -4004; La. Rev. Stat. Ann. §
14:30; Miss. Code Ann. § 97-3-19; Neb. Rev. Stat. § 28-303; Nev.
Rev. Stat. § 200.030; N.H. Rev. Stat. § 630:1; N.C. Gen. Stat. §
14-17; Okla. Stat. tit. 21, §§ 701.7, 701.9; S.D. Codified Laws
§§ 22-16-4, -6-1; Tenn. Code § 39-13-202; Wash. Rev. Code
§§ 10.95.020-.030; Wyo. Stat. Ann. § 6-2-101.

     And in the 10 States that do not include degrees, all 10
provide for capital punishment for felony murder absent any
premeditation. See Ala. Code § 13A-6-2; Ga. Code Ann. § 16-5-1;



                                              71
there are numerous examples of other types of murder, for which

the penalty may be death, that do not require premeditation or

deliberation. 3   The principle that may be derived from these

state statutes is that capital murders are not defined solely by

premeditation and deliberation, but rather by elements that make

those murders particularly heinous.

     The federal statutes applicable in this case follow the

national consensus.   Section 1959 authorizes the death penalty

for murder that aids racketeering enterprises, and § 924(c) and

(j)(1) authorize the death penalty for committing murder with

malice aforethought, as defined in 18 U.S.C. § 1111(a), while

using a firearm during and in relation to a crime of violence.

The Federal Death Penalty Act further narrows the circumstances

where the death penalty may be imposed by requiring that the

jury find that the defendant had the requisite intentional mens

rea, 18 U.S.C. § 3591(a)(2), and that at least one statutory



Ind. Code §§ 35-42-1-1, 35-50-2-3; Ky. Rev. Stat. Ann.
§ 507.020; Mont. Code Ann. § 45-5-102; Ohio Rev. Code Ann.
§ 2903.01; Or. Rev. Stat. §§ 163.095, .105, 115; S.C. Code Ann.
§§ 16-3-10 to -20; Tex. Penal Code § 19.03; Utah Code Ann. § 76-
5-202.
     3
       E.g., Ariz. Rev. Stat. Ann. § 13-1105(A)(3) (classifying
as first degree murder the unpremeditated, intentional killing
of a police officer in the line of duty); Ark. Code Ann. § 5-10-
101 (making it a capital crime to cause the death of a child
less than 14 years of age while exercising extreme indifference
to human life); Nev. Rev. Stat. § 200.030(1)(c) (defining as
murder in the first degree murders committed to avoid arrest).



                               72
aggravating factor existed, id. § 3593(d).                     The jury found the

conditions     satisfied     in    this    case,    including      that    Umaña   had

engaged in multiple killings.             See id. § 3592(c)(16).

     In      light    of   the   flexibility       the   Supreme    Court     affords

lawmakers     in     determining   the     aggravating     factors    that     define

capital murders, Kennedy, 554 U.S. at 440, and because there is

no nationwide consensus requiring premeditation or deliberation

as required predicates for the imposition of the death penalty,

we conclude that §§ 1959(a)(1) and 924(c),(j)(1), in concert

with the Federal Death Penalty Act, impose sufficient narrowing

criteria to satisfy the Eighth Amendment.

     Umaña contends alternatively that even if the death penalty

is not categorically barred as a punishment for the crimes of

which   he    was    convicted,    it     was    nonetheless    excessive     in   the

particular circumstances of this case.                    This argument merits

minimal discussion.         The jury found that Umaña killed two people

in furtherance of a racketeering enterprise, and that he had

killed before and posed a danger in the future.                           We conclude

that the death penalty was proportional to the crimes for which

Umaña was convicted.


                                          XIII

     Finally, Umaña contends -- with respect to the claim he

made to the district court that he is mentally retarded and



                                           73
therefore   should    not   receive     the   death    penalty      --   that     the

government should have borne the burden of proof.                   He does not

challenge   the   merits    of   the    district      court’s    findings       with

respect to his claim of mental retardation.                 Rather, he argues

that since his interest in the issue is a “matter of life and

death,” see Atkins v. Virginia, 536 U.S. 304 (2002) (holding

that the death penalty is inappropriate for mentally retarded

defendants),   the    government    should     have    borne    the      burden   to

prove him competent and, because it did not carry the burden, he

should not have received the death penalty.

     We conclude that Umaña cannot now make this argument.                        He

argued below that he had the burden of proof on the issue, and

any error that he now claims was invited by him.                 In his motion

for a pretrial hearing on mental retardation, he stated:

     Because Defendant’s court-appointed neuropsychologist
     has obtained a full-scale IQ result of 66, it appears
     that there is a substantial possibility that Defendant
     will ultimately be able to carry his burden of
     establishing by a preponderance of the evidence that
     he is mentally retarded and thus ineligible for the
     death penalty.

(Emphasis added).       This statement by Umaña that he bore the

burden of proving mental retardation was not an errant mistake.

In two other motions requesting a hearing on mental retardation,

he included citations to various district court cases describing

the procedure for such hearings, which included the following

parenthetical:       “finding    that    question     of   mental     retardation


                                        74
should    be    resolved      by   the    judge          at    a    pretrial    hearing,       and

burden should be on defendant by preponderance of the evidence.”

Moreover, at the hearing itself, the district court stated at

the outset that the burden would be on Umaña to prove mental

retardation by a preponderance of the evidence, and Umaña did

not object.           He cannot now complain that the district court

followed       the    very    procedure       that       he     requested.          See    United

States v. Lespier, 725 F.3d 437, 449-51 (4th Cir. 2013).

       In any event, we conclude that Umaña correctly stated the

law in representing to the district court that he had to carry

the burden of proof on the issue.                             When a defendant seeks to

show     that    he    is     mentally        retarded,            he   is   putting      on    an

affirmative defense that would preclude execution, see Walker v.

True, 399 F.3d 315, 326 (4th Cir. 2005), and defendants may

constitutionally         be    made      to    bear       the       burden     of   proof      for

affirmative defenses, see Leland v. Oregon, 343 U.S. 790, 799

(1952) (holding, in the context of a capital case, that States

may require defendants to bear the burden of proving insanity

beyond a reasonable doubt); see also Patterson v. New York, 432

U.S.   197,      210    (1977)     (“Proof          of    the       non-existence         of   all

affirmative defenses has never been constitutionally required”).

       Umaña now argues that, as a matter of due process, the

government must bear the burden of proof on mental retardation,

citing United States v. Bush, 585 F.3d 806, 814 (4th Cir. 2009),


                                               75
where   we     held       that        the     involuntary       administration         of

antipsychotic       drugs   to    restore         a   defendant’s      competence     for

trial required the government to prove the relevant factors by

clear and convincing evidence.                See also Addington v. Texas, 441

U.S. 418, 431-33 (1979) (concluding that the government’s proof

must meet a “clear and convincing evidence” standard for civil

commitment).        These cases, however, are inapt comparisons.                      When

the   government      seeks      to    involuntarily         commit    or   medicate    a

defendant,   it      is   not    presenting           an   affirmative      defense   but

attempting     to    infringe         on    the   individual’s        constitutionally

protected liberty interests.                  See Sell v. United States, 539

U.S. 166, 177-79 (2003); Addington, 441 U.S. at 425.

      Umaña also argues that a finding of mental retardation was

an Apprendi element of his capital offense, which would alter

the prescribed range of sentences to which he was exposed and,

therefore, be the government’s responsibility to prove.                                See

Alleyne, 133 S. Ct. at 2160.                      But we rejected this precise

argument in Walker, where we stated:

      [T]he finding of mental retardation does not increase
      the penalty for the crime beyond the statutory maximum
      -- death.     Rather, a defendant facing the death
      penalty may avoid that penalty if he successfully
      raises and proves by a preponderance of the evidence
      that he is mentally retarded. The state does not have
      a corollary duty to prove that a defendant is “not
      retarded” in order to be entitled to the death
      penalty.   Accordingly, “an increase” in a defendant’s
      sentence is not predicated on the outcome of the
      mental retardation determination; only a decrease.


                                             76
399 F.3d at 326 (citations omitted).                    When a defendant raises

mental retardation as an issue, its resolution can only decrease

the sentence to which the defendant is exposed, and the Apprendi

line of cases is therefore not applicable.                   See In re Johnson,

334 F.3d 403, 405 (5th Cir. 2003) (“[N]either Ring and Apprendi

nor   Atkins     render      the     absence       of   mental    retardation    the

functional equivalent of an element of capital murder which the

state must prove beyond a reasonable doubt.                  As the state points

out, the absence of mental retardation is not an element of the

sentence   any   more     than      sanity    is   an   element   of    an   offense”

(citation omitted)).

      We accordingly reject Umaña’s argument that the government

had the burden of proving the absence of mental retardation in

order for him to receive the death penalty.


                                           XIV

      Umaña    has    presented      numerous       issues   in   challenging     his

conviction and sentence, each of which has been fully presented

in his fulsome brief and at oral arguments to the court.                        After

having carefully considered each of his arguments, as well as

the record in this case, we conclude that Umaña had a fair trial

and that the death penalty was justified by the jury’s factual

findings   and   by    law    and    was     not   imposed   under     the   improper




                                           77
influence of passion, prejudice, or any other arbitrary factor.

Accordingly, we affirm his conviction and sentence.

                                                       AFFIRMED




                               78
GREGORY, Circuit Judge, dissenting:

        The majority opinion denies Mr. Umaña the right to confront

his accusers in a jury proceeding to determine whether he lives

or dies. The right to confront one’s accusers is a right as old

as it is important. Cf. Acts 25:16 (“[I]t is not the Roman

custom     to    hand     over     anyone     before       they      have    faced       their

accusers...”). The Sixth Amendment guarantees a defendant the

right “to be confronted with the witnesses against him” “in all

criminal        prosecutions.”          U.S.       Const.       amend.      VI.     It     also

guarantees the right to an attorney, jury factfinding, notice of

the crimes of which a defendant is accused, and a trial in the

venue where the crime was committed. Id.

        The last four of these Sixth Amendment rights -- counsel,

jury, venue, and notice -- are not at issue today, nor are they

controversial.          During     Federal         Death       Penalty      Act     (“FDPA”)

proceedings, a defendant cannot be sentenced to death without

these    Sixth     Amendment       rights.        However,      under    the      majority’s

holding    today,        capital    defendants           are   denied       the   right     to

confront their accusers throughout certain stages of an FDPA

proceeding.       In    contravention        of    the    history     and    text     of   the

Confrontation          Clause,   and    in    spite       of    modern      Supreme      Court

jurisprudence       emphasizing        the    importance        of   the     Confrontation

Clause, the majority strips Umaña of the Sixth Amendment right




                                             79
most       important    for   ensuring     the    accuracy       of   trial    outcomes

during the most important proceeding of his life.

       This     is     an   important    constitutional          question     that    the

Supreme Court has not yet resolved, though three circuits have

wrestled with the issue. See Muhammad v. Sec’y, Fla. Dep’t of

Corr.,       733     F.3d     1065      (11th     Cir.        2013)   (finding        that

Confrontation        Clause    does     not     apply    to    capital   cases       after

guilty verdict); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.

2002) (same); United States v. Fields, 483 F.3d 313, 324–338

(5th Cir. 2007) (same); Proffitt v. Wainwright, 685 F.2d 1227,

1252–53 (11th Cir. 1982) (finding a right to cross examine the

author of a psychiatric report under the Sixth Amendment during

sentencing) modified, 706 F.2d 311 (expressly limiting case to

psychiatric reports). 1 This is an issue of first impression in

this circuit, though we have held that the Confrontation Clause

       1
       In addition, district courts have addressed this issue,
reaching conflicting results. Four district courts have found
that the Clause applies. See United States v. Stitt, 760 F.
Supp. 2d 570, 581-82 (E.D. Va. 2010); United States v. Sablan,
555 F. Supp. 2d 1205 (D. Colo. 2007); United States v. Mills,
446 F.Supp. 2d 1115, 1127–1129 (C.D. Cal. 2006); United States
v. Green, 372 F.Supp.2d 168, 175 (D. Mass. 2005). Another
district court found that the right applies, but this decision
was vacated. United States v. Jacques, 768 F.2d 684, 698–700 (D.
Vt. 2011) vacated by United States v. Jacques, 684 F.3d 324, 330
(2d Cir. 2012). Two district courts have found that the right
applies only during the eligibility phase of sentencing, which
is the second stage of FDPA trials. See United States v. Jordan,
357 F. Supp. 2d 889, 903 (E.D. Va. 2005); United States v.
Bodkins, CRIM.A. 4:04CR70083, 2005 WL 1118158 (W.D. Va. May 11,
2005).



                                           80
does   not     apply      in    non-capital            sentencing.    United       States   v.

Powell, 650 F.3d 388, 392–93 (4th Cir. 2011).

       “Death,      in         its     finality,          differs        more     from     life

imprisonment than a 100-year prison term differs from one of

only   a   year    or     two.       Because      of    that   qualitative        difference,

there is a corresponding difference in the need for reliability

in the determination that death is the appropriate punishment.”

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion).      I    would        refuse        to      strip     a   defendant       of     the

Confrontation Clause right -- a right whose “very mission . . .

is to advance the accuracy of the truth-determining process in

criminal trials” -- at a proceeding in which a jury must decide

whether a man lives or dies. United States v. Inadi, 475 U.S.

387,     396    (1986)         (internal          quotation      marks      and    citations

omitted). Accordingly, I dissent.

                                               I.

       I begin with some of the factual background that provides

the foundation for my reasoning. First, one must understand the

unique     structure      of     FDPA       trials,      which    illustrates       that    the

Confrontation       Clause           should    not      disappear     simply      because    a

defendant is accused of a crime at a later stage of his judicial

proceedings.       Second,           one   must     understand       the   nature     of    the

accusations        made    in        this     particular         case.     Mr.    Umaña     was




                                               81
sentenced to death largely based on unconfronted testimony that

was as damning as it was dubious.

      The FDPA requires three jury findings before a criminal

defendant can be killed by the federal government. First, the

defendant must be found guilty of a death-eligible crime. 18

U.S.C. § 3591. Second, a factfinder must decide whether one of

several      aggravating      factors    exists.     The     factors    that    make    a

defendant eligible for death are listed by statute. 18 U.S.C. §

3593(e).     Third,    if    such   an   aggravating       factor    is      found,   the

factfinder must finally decide whether all aggravating factors

outweigh all mitigating factors. Id. Unless the factfinder makes

the requisite findings in each of the three stages, death is not

within the permissible range of sentences.

      In     this     case,     the      district        judge   trifurcated           the

proceedings      so   that     each     of   the   above     steps     was    conducted

separately. J.A. 3224. In the second phase, the government only

sought to prove that Mr. Umaña met two statutory aggravating

factors: an attempt to kill more than one person in a single

criminal episode, and the knowing creation of a grave risk of

death   to    more    than    one   person.       J.A.   2631;   see    18    U.S.C.     §

3592(c)(5), (c)(16). In the third phase, the government sought

to   prove    four    more     aggravating        factors.    J.A.     3543–45.       Most

relevant in this case, and what ultimately became the keystone

of the government’s argument, was whether Mr. Umaña had been


                                             82
involved in other acts of violence not reflected in his criminal

record, specifically two separate incidents of murder in Los

Angeles. J.A. 3544. The primary evidence for these crimes was a

series      of    transcripts         of     police          interrogations         in    which

accomplices of Umaña who were with him during the first of two

Los   Angeles     murder   incidents             claim       that   Umaña   was     the   only

member   in      their   group       who    fired        a    weapon    that   killed       two

teenagers.       Umaña   had     no       opportunity          to   cross-examine         these

witnesses.

      The    FDPA     provides       a    set    of   safeguards        that   applies      to

evidence at capital sentencing, though constitutional safeguards

also apply. See Estelle v. Smith, 451 U.S. 454, 462–63 (1981).

While evidence presented need not comport with the entirety of

the Federal Rules of Evidence, information must nonetheless be

excluded “if its probative value is outweighed by the danger of

creating unfair prejudice, confusing the issues, or misleading

the   jury.”     18   U.S.C.     §       3593;    accord       Fed.    R.   Evid.    403.    In

addition, the FDPA explicitly provides for rights echoing those

of the Sixth Amendment. The FDPA requires that the government

attorney give notice of the specific aggravating factors that

will be used to justify a death sentence. Compare § 3593(a) with

U.S. Const. amend. VI (“[T]he accused shall enjoy the right . .

. to be informed of the nature and cause of the accusation.”).

The defendant is given the right to a jury. Compare § 3593(b)


                                                83
with U.S. Const. amend. VI (“[T]he accused shall enjoy the right

to a speedy and public trial, by an impartial jury.”). However,

the statute is silent on other Confrontation Clause rights. See

generally 18 U.S.C. §§ 3591-99. Importantly, the fact that the

FDPA is silent on certain constitutional rights does not mean

that    those    rights     do    not     exist     or   that     the     Act   is

unconstitutional. See United States v. Fulks, 454 F.3d 410, 437–

38 (4th Cir. 2006); United States v. Sampson, 486 F.3d 13, 22–23

(1st Cir. 2007).

       Finally, in addition to understanding the structure of FDPA

trials,   it    is    important   to    emphasize    that   the    unconfronted

testimony used against Umaña was as critical to the government’s

case as it was inherently suspect. In Bruton v. United States, a

co-defendant’s accusation against the defendant was introduced

as evidence by a separate witness. 391 U.S. 123, 124 (1968). In

finding a violation of the Confrontation Clause, the Court noted

that accusations from co-defendants facing punishment for the

same crime are not only “devastating to the defendant but their

credibility is inevitably suspect . . . given the recognized

motivation to shift blame onto others.” Id. at 136. A review of

the record in this case demonstrates both how “devastating” and

how “suspect” such accusations can be. Id.

       First,   the    accusations      were   devastating:     the     government

made the evidence of multiple previous murders the centerpiece


                                         84
of its case for the death sentence. Nearly every page of the

transcript of the government’s summation argument in the third

phase of the trial focuses on these unconfronted accusations of

murder. See, e.g., J.A. 3402 (“[Umaña] had killed before”); J.A.

3403 (“[Umaña] had earned those two letters on his forehead and

he earned them by killing”); J.A. 3404 (“[Umaña] . . . had

killed before. And he was going to kill again.”); J.A. 3405

(claiming to jury that Umaña thought “I’ve done this before. I

know what I have to do.”); J.A. 3406 (claiming to jury that

Umaña thought “I know they were dead because I know what dead

is.   I’ve   killed   before.”);   J.A.       3407   (“We   know   he’s   killed

before.”); J.A. 3408 (“Does that [previous murder] story sound

familiar? . . . Sure it sounds familiar because that’s exactly

what happened later in Greensboro.”); J.A. 3409 (arguing that

Umaña thought to himself, “I’m Wizard from MS-13. We need to go

out and we need to take care . . . of the people in [Lemon Grove

Park]. And that’s exactly what he did.”); J.A. 3411 (pointing to

“the two that you heard a lot of evidence on, the two additional

– the three additional murders”).

      The    record   also   reveals        that   the   accusations,     though

“devastating,” were “suspect.” Bruton, 391 U.S. at 136. For the

first Los Angeles murder incident, in which a group of MS-13

members exited a car to shoot two teenagers who had flashed

rival gang signs, there is conflicting eyewitness evidence on


                                       85
Umaña’s role. Two eyewitnesses with no role in the altercation

stated to police that the shooter was the driver of the car.

However, three of Umaña’s fellow gang-members who were in the

car with him claimed that Umaña was the shooter, but also stated

that Umaña was not the driver. Thus, for this murder allegation,

the only evidence linking Umaña to the crime was given by three

potential   co-defendants    with    a    strong   incentive   to   push    the

blame onto Umaña. Neutral eyewitnesses, meanwhile, suggest that

Umaña was not the shooter.

     The only other inculpatory evidence for these two murders

is from Umaña himself. Police officers from Los Angeles who were

investigating these murders interviewed Umaña in North Carolina

after Umaña had been arrested for the murder of the Salinas

brothers. These officers told Umaña that he might as well admit

to the Los Angeles murders because, given that he was facing a

mandatory life sentence for the North Carolina murders, it would

make no difference if he claimed responsibility for the prior

crimes.   After   denying   that    he   was   responsible   for    the   prior

murders     at    length,   Umaña        eventually   gave     in    to    the

interrogation, albeit with an equivocal, unclear statement:

     Officer: Did you shoot him? Tell me, tell me face to
     face. Did you shoot him?

     Umaña: Say that, that I did it. Right? I really didn’t
     do it, right?

     Officer: You did it?



                                     86
       Umaña: To say it like that.

       Officer: No. Not just to say it, but to say the truth
       . . .

       Umaña: To say the truth?...[laughs]

       Officer: You did it? Not out of meanness, but because
       you thought they were, were gang members.

       Umaña: Ah . . .

       Officer: Is that right?

       Umaña: Yes. . . . And that is[,] that is the point
       that mattered to him? [Laughs]?

J.A. 4382–83.

       Umaña was also linked to a third murder that occurred in

Lemon Grove Park. Two pieces of evidence link Umaña to this

crime. First, the same gun was used in this murder as was used

in the previous Los Angeles murders, at which Umaña was present.

This evidence is weak in light of expert testimony during trial

suggesting that MS-13 gang members share their firearms as a

matter of course. That said, Umaña admits to having been present

at both murders, which gives more weight to the fact that the

same    murder   weapon   was   used.    However,   while   “there   is   no

evidence that anyone else was present at both murder sites,”

Maj. Op. at 51, there were apparently one or two dozen people at

the scene of the second murder, and the identities of these

people are unknown. Thus, Umaña was present at both murders, but

it is speculation to conclude that no one else was as well.




                                    87
      In addition to this circumstantial evidence, there is weak

eye-witness evidence that implicates Umaña in the Lemon Grove

Park murder. The witness, a member of a rival gang, twice picked

Umaña out of a photo lineup. In 2005, the witness chose Umaña’s

picture out of a six-person photo lineup, but only concluded

that “I remember seeing this guy but I’m not sure if he is the

one that came that day to the park.” J.A. 4060. Three years

later, the witness again picked Umaña’s picture out of a lineup,

but   again   expressed     uncertainty,     noting     that    “I’m    not   100%

sure,” because “everything happened so fast.” J.A. 4057. The

witness clarified that “what I saw was the gun and after that I

began to run.” Id. This witness testified during sentencing,

where he noted that the shooting occurred after 9 p.m. on a

basketball court where the overhead lights had been turned off.

Thus, while Umaña has been linked to another Los Angeles murder,

the best evidence of this link is from a witness who saw the

shooter from twenty feet away at night with at best partial

lighting. Further, this witness admitted that he only saw a gun

before   taking    off    running    in    the   opposite      direction.     This

witness has never been able to make an identification nearing

100% certainty.

      Finally,    and    most   problematic,     the   government      introduced

evidence linking Umaña to murders in El Salvador, even though

this evidence had been ruled as inadmissible and even though


                                      88
Umaña had no chance to confront his accusers. At sentencing, the

government sought to introduce evidence that Umaña had committed

violent      crimes,       including          homicide,           in      El     Salvador.

Specifically, the government wanted to call an El Salvadoran

prosecutor        to    testify.       The      district          court        denied        the

government’s       motion,       concluding       that       the       evidence       “lacks

sufficient indicia of reliability” and that “its probative value

is outweighed by a danger of unfair prejudice.” J.A. 3232.

      Incredibly, in spite of the district court’s clear ruling,

the government introduced a transcript as evidence in which a

United States law enforcement officer is quoted as saying “I

know he’s done stuff in El Salvador,” J.A. 4301, “[w]e know . .

.   that   they    were   looking       for    you   for     homicide          also     in   El

Salvador,” J.A. 4316, and “[w]e know that he’s, he’s a violent,

violent guy. We know that he’s wanted in El Salvador . . . for

many violent crimes . . . I know he’s a shooter. I know he’s an

enforcer.     I    know   he’s     a    gangster,”         J.A.    4315.       Through        an

evidentiary back door left wide open, the government snuck in

testimony    that      “lacked    consistency        and    credibility,”          per       the

district     court,     but   had      enough    prejudicial           value     that        the

government made its entire case at sentencing about Umaña’s past

uncharged homicidal conduct.

      In sum, the evidence linking Umaña to previous murders was

as powerful as it was problematic. For both the Los Angeles and


                                          89
El   Salvador       murders,       there      was     not     enough       evidence      for

prosecutors to bring a case or sustain a conviction in stage one

of an FDPA trial. Unfazed, the government simply bided its time

until    the    third    stage     of   the    trial,       when,    per   the       district

court’s    ruling        and    the     majority      opinion        today,      important

constitutional          safeguards      disappear.          Umaña    filed       a    timely

objection at sentencing, arguing that his Sixth Amendment rights

were violated.

                                           II.

     Turning to the merits, an understanding of the history and

purpose of the Confrontation Clause, as well as an analysis of

the Supreme Court’s recent jurisprudence on the Confrontation

Clause     and     Sixth       Amendment       factfinding,          shows       that    the

government violated Umaña’s constitutional rights when he was

sentenced to death without a chance to confront his accusers.

District       courts    cannot    dodge      the   constitutional         guarantee       of

confrontation by splitting a capital trial into three segments

and waiting until the third segment to strip a defendant of his

Sixth    Amendment       rights.      Further,      because    the     Sixth     Amendment

right at issue here – the right of cross-examination – is “the

constitutionally         prescribed      method      of     assessing      reliability,”

Crawford v. Washington, 541 U.S. 36, 62 (2004), it is especially

offensive to the Constitution to deny a defendant this right




                                              90
during the very stage of the proceedings in which a jury must

decide whether he deserves to live or be killed.

      I begin with the text of the Sixth Amendment, but conclude

that the words themselves do not settle the matter. “In all

criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him.” U.S. Const.

amend. VI. Because the FDPA did not exist at the time of the

founding,     the   Sixth   Amendment    is       silent    on    the   distinction

between different stages of FDPA trials. While the right applies

to all criminal prosecutions, the text does not give guidance on

when a criminal prosecution ends.

      An analysis of the history leading to the Sixth Amendment

is more helpful. The historical developments that led to the

Confrontation Clause weigh in favor of its application at all

stages   of     FDPA   trials.    In     the       leading       case   on     modern

Confrontation Clause doctrine, the Supreme Court explained that

the   Confrontation    Clause    right      “is   most     naturally    read    as   a

reference to the right of confrontation at common law, admitting

only those exceptions established at the time of the founding.”

Crawford, 541 U.S. at 54. The FDPA sentencing regime did not

exist at the time of the founding, nor was there an analogous

system. Rather, at the time when the Confrontation Clause was

crafted, a death sentence flowed automatically from convictions

for certain capital felonies. See United States v. Fields, 483


                                       91
F.3d at 370 (Benavides, J., dissenting); see also 1 Stat. 112–19

(defining        a   series    of   federal       crimes    and   mandating       a   death

sentence upon conviction for certain capital crimes); Rory K.

Little, The Federal Death Penalty: History and Some Thoughts

About the Department of Justice's Role, 26 Fordham Urb. L.J.

347,       360-65    (1999).    Thus,   there      was     no   separate    hearing      to

determine whether death was appropriate. See Woodson, 428 U.S.

at 289 (1976). When capital trials are structured in this way,

no defendant receives a death sentence after a trial in which he

is denied the Confrontation Clause right, nor is any defendant

sentenced to death on the basis of unconfronted accusations of

prior crimes. “By the time the Bill of Rights was adopted,” “the

jury determined which homicide defendants would be subject to

capital punishment by making factual determinations.” Ring, 536

U.S.       599   (quoting      Walton   v.    Arizona,      497   U.S.     639,       710–11

(Stevens, J., dissenting)). These factual determinations could

only be made in proceedings in which the Confrontation Clause

applied in full force. Thus, at the time of the founding, there

was no exception to the Confrontation Clause right for capital

sentencing. 2


       2
       In non-capital sentencing, meanwhile, hearsay testimony
was often used and proceedings were more informal, suggesting a
distinction between capital and non-capital sentencing. John G.
Douglass, Confronting Death: Sixth Amendment Rights at Capital
Sentencing, 105 Colum. L. Rev. 1967, 2016–17 (2005).



                                             92
       Crawford lends further support to the idea that, based on

the purpose of the Confrontation Clause, the right to confront

adverse witnesses extends to every stage of an FDPA trial. In

discussing the history of the clause, the Supreme Court noted

that the common law right to confrontation developed in response

to   abuses   in    certain    infamous         trials     in   England.    In    these

notorious     cases,      defendants        were     convicted,     and     sometimes

executed, without the right to examine their accusers. Crawford,

541 U.S. at 43–45. One of “[t]he most notorious instances” of

such   abuses      occurred    in    the    treason        trial   for    Sir    Walter

Raleigh. Id. at 44. In concluding that a judge’s reliability

ruling cannot substitute for the right to confrontation, the

Court noted that “[i]t is not plausible that the Framers’ only

objection     to    the    trial    was     that     Raleigh’s     judges       did   not

properly weigh [reliability] factors before sentencing him to

death. Rather, the problem was that the judges refused to allow

Raleigh to confront [the key government witness] in court.” Id.

(emphasis     added).      Thus,     part       of   the    reasoning      motivating

Crawford was       the    desire    to    reject     any   interpretation        of   the

Confrontation Clause which would lead to the same abuses seen in

the Raleigh trial. Further, the Court emphasized that what made

that infamous case so odious was the lack of a confrontation

right before Raleigh was sentenced to death.




                                           93
      Mr.    Umaña      now   finds    himself       in    the       same    position     as

Raleigh, stripped of his right to confront face-to-face those

whose words would condemn him to die. Powerful accusations were

made against Umaña, and though these accusations were not the

basis for the initial guilty verdict, they ultimately helped

form the basis for his capital sentence. Further, like Raleigh,

Umaña lacked the opportunity to confront his accusers before the

death sentence was issued. The distinction between the cases is

that Sir Walter Raleigh was sentenced to death after a unitary

proceeding        in     which    guilt        and        penalty       were        decided

simultaneously.          In    Umaña’s     case,           meanwhile,         the       judge

trifurcated       the    trial   and     ensured      that       any        constitutional

protections had been severed by the time of stage three, in

which a jury weighs whether death is the appropriate sentence.

If   the    judicial     proceeding    that    led        to   Sir    Walter    Raleigh’s

execution is unconstitutional, as it no doubt is, then it is

unclear why the same situation would lead to a different result

merely because the court artificially cabins the proceeding in

which the constitutional abuse occurs.

      Recent Supreme Court case law on Sixth Amendment rights in

sentencing further buttresses this view. In Ring v. Arizona, the

Supreme Court considered whether the right to jury factfinding

applies     for   aggravating     factors      necessary         to     apply       a   death

sentence, which would be the equivalent of the second stage of


                                          94
an FDPA trial. 536 U.S. at 608–09. The Court held “that the

Sixth    Amendment           applies    to”    this      stage   of    death    sentencing:

defendants have the right to jury factfinding for such factors.

Id. at 609. Granted, Ring does not control here, since this case

concerns the introduction of unconfronted testimony in the third

stage of FDPA trials. The majority finds this distinction key,

arguing that once a defendant is found death-eligible in stage

two     of       an   FDPA    trial,       “the       jury    exercises    discretion         in

selecting a life sentence or the death penalty, and any facts

that the jury might find during that phase do not alter the

range of sentences it can impose.” Maj. Op. at 48–49. This is

incorrect. Under the FDPA, a jury cannot impose a death sentence

until it finds that “all the . . . aggravating factors found to

exist    sufficiently           outweigh       all     the    mitigating      factors.”       18

U.S.C.       §    3593(e).      Only    when      a    jury    finds   that     aggravating

factors      sufficiently           outweigh      the    mitigating       factors   may       it

impose a death sentence under the FDPA. Thus, while stage three

of    FDPA       trials      involves      some       jury    discretion,      juries   must

nonetheless make certain factual findings in this final stage

before a death sentence can be imposed.

      Put        another     way,    the    jury’s      burden    in   stage    three     –    a

finding that the aggravating factors sufficiently outweigh the

mitigating factors – “is not optional.” Green, 372 F. Supp. 2d

at 177. “Because we will never know exactly how each factor


                                               95
influences the jurors’ ultimate punishment determination, logic

dictates that all aggravating factors – together – be considered

legally    essential   to   the   punishment.”      Id.   As   in   Green,      “the

government’s     argument     that    non-statutory         factors    are      not

essential is disingenuous; if the government does not require

additional evidence to convince the jury to vote for death, why

is it invoking non-statutory factors at all?” Id. In this case,

the proof is in the pudding: the government pointed to the past

murders on nearly every page of the transcript of its closing

argument    at   sentencing.      Without   these    past      murders,    it    is

doubtful that the government could meet the burden necessary to

apply the death penalty under the FDPA. As such, the permissible

range of sentencing is increased in this stage, indicating that

Sixth Amendment rights do apply. See also Sablan, 555 F. Supp.

2d at 1221 (“[U]nder the structure of the FDPA, it is not the

finding    of    a   statutory     aggravating      factor      that      actually

increases the punishment. The fact that actually increases the

punishment is the existence of all the aggravating factors found

by the jury (taken together).”).

     The majority argues that Williams v. New York, 337 U.S. 241

(1949), a pre-Crawford, pre-Ring Supreme Court case, directly

disposes of the issue before us. That case is neither on point

nor persuasive, and in any event, its power is dubious in light

of more recent Supreme Court jurisprudence. In Williams, the


                                      96
Supreme Court upheld a death sentence that relied in part on a

probation report that implicated the defendant in prior crimes.

Id.    at   243.    The   Court   continues    to    cite     Williams     for     the

proposition        that   sentencing     decisions       contain   an    element   of

discretion and can rely on evidence that would not be admissible

at trial. See, e.g., Pepper v. United States, 131 S. Ct. 1229,

1235 (2011). We have cited to Williams for the similar concept

that sentencing courts “must have recourse to a much broader

array of information than we allow the trier of fact to consider

in determining a defendant’s guilt.” Powell, 650 F.3d at 391–92.

       Nonetheless, Williams is not controlling, because that case

is a pre-incorporation, pre-FDPA case concerning a state death

sentence. That is, Williams was not a Confrontation Clause case

at all, but rather a Due Process Clause case, and it considered

a state capital sentencing regime, not the federal one used for

Mr. Umaña. Williams, 337 U.S. at 252. Nothing in the holding of

Williams dictates that the Confrontation Clause does not apply

to    the   third    stage   of   FDPA    trials.    Rather,       the   holding   in

Williams merely means that it does not offend due process for a

state judge to rely on unconfronted hearsay in death sentencing.

This is different from a ruling that a far more specific clause

of the constitution permits a jury to rely on such evidence in a

proceeding to decide whether the death sentence can be applied.

Further,     the    decisions     cited   above     --    concerning     the   Sixth


                                          97
Amendment     right    to    factfinding    at    sentencing,   death   penalty

procedure, and the Confrontation Clause -- all suggest that even

if Williams is not dead letter, it should not be extended to

apply to FDPA proceedings on Sixth Amendment grounds.

       Even   though       Williams   is    not   on   point,   the     majority

nonetheless argues that its spirit is intact. That is, Williams

embodies the idea that the Confrontation Clause should not apply

because “modern concepts individualizing punishment have made it

all the more necessary that a sentencing judge not be denied an

opportunity to obtain pertinent information by a requirement of

rigid adherence to restrictive rules of evidence.” Id. at 247.

       This argument is internally consistent, but it elides a far

more important principle of capital sentencing, which is the

need for reliability. As the Supreme Court has noted, death is

such a weighty punishment and so different from a prison term

that   “there   is     a    corresponding    difference    in   the   need   for

reliability in the determination that death is the appropriate

punishment.” Woodson, 428 U.S. at 305 (plurality opinion). Thus,

greater access to information for the sentencing court is but

one principle of death sentence jurisprudence – a principle that

gives way to the more important principle that a death sentence

be based on accurate factfinding. Further, as discussed above,

the Supreme Court has explained that “the Confrontation Clause’s

very mission . . . is to advance the accuracy of the truth-


                                       98
determining process in criminal trials.” United States v. Inadi,

475 U.S. 387, 396 (1986) (internal quotation marks and citations

omitted).          Taken    together,      the      Supreme      Court’s       parallel

jurisprudence on the Confrontation Clause and on the need for

reliability in death sentences demonstrates why Umaña’s sentence

must be reversed. Death sentences must stand on reliable ground,

and the Confrontation Clause is “the constitutionally prescribed

method of assessing reliability.” Crawford, 541 U.S. at 62.

       Further, in striking the balance between the desire for

more evidence and the unquestionable need for reliability in

death sentences, it is important to note that the Confrontation

Clause right will not only enhance reliability – it will do so

at a small practical cost, contrary to the concerns voiced by

the    majority.      The    majority      frets    that   if    we    recognize      Mr.

Umaña’s Sixth Amendment rights through each stage of an FDPA

trial, we would “‘endlessly delay criminal administration in a

retrial       of    collateral     issues.’”       Maj.    Op.    at     48    (quoting

Williams, 337 U.S. at 250). To the contrary, the Confrontation

Clause applies only to testimonial evidence, and would only be

implicated in a narrow range of aggravating factors, suggesting

that   recognizing         Mr.   Umaña’s    Sixth    Amendment        right   will    not

“endlessly delay criminal administration of collateral issues.”

Maj.    Op.    at     48    (quoting    Williams,      337      U.S.    at    250).    As

recognized in Crawford, the Confrontation Clause only reaches


                                           99
“material      such   as    affidavits,       custodial       examinations,       prior

testimony that the defendant was unable to cross-examine, or

similar   pretrial      statements        that    declarants     would    reasonably

expect to be used prosecutorially.” Crawford, 541 U.S. at 51.

Even testimonial evidence continues to be admissible so long as

the defendant has a prior chance to cross-examine the witness

and the witness is unavailable. Id. at 51–52. Thus, the vast

majority of the evidence in Mr. Umaña’s case, and in most FDPA

trials, would be unaffected by recognizing Mr. Umaña’s Sixth

Amendment right. Only for a narrow range of aggravating factors,

related   to     uncharged        prior   crimes,     would    the     Confrontation

Clause be implicated, and even then only some of the time.

      In any case, given that the prosecution made Mr. Umaña’s

uncharged prior crimes the centerpiece of its capital case in

the   final     stage      of   his    FDPA      trial,   I   cannot     accept     the

majority’s      conclusion        that    the     unconfronted       evidence      used

against   Mr.    Umaña      was    a   mere     “collateral     issue[].”     To    the

contrary, the government’s entire case for the death penalty

relied on the accusation that Umaña “had killed before.” J.A.

3404. In sum, Mr. Umaña’s Sixth Amendment right to confrontation

provides enormous benefits in terms of reliability in capital

sentencing, and this benefit comes at a small cost – limiting

only very specific types of aggravating information.




                                          100
        The majority supports its ruling by pointing to “the policy

of presenting full information to sentencers,” Maj. Op. at 47,

but this reasoning creates an evidentiary loophole that turns

FDPA trials upside-down. Unquestionably, a sentencing court must

have access to information not relevant to guilt in order to

ensure that punishments are individualized. While this general

proposition    is     valid,     applying         it   blindly    in    this    case   is

problematic       because      it     lumps        together      evidence       like     a

defendant’s 4th grade report card with evidence of murder. In a

typical criminal trial, the most serious crime gets proven at a

guilt    trial,     where   the      full     panoply       of   constitutional        and

evidentiary rights apply. In the later sentencing stages, softer

evidence, both negative and positive, is introduced, to allow

for individualization of punishment. This structure makes sense:

the more serious an allegation, the more serious the protections

given to a defendant.

      Under the majority’s ruling, this structure is flipped. It

would have been outrageous for the government to convict Umaña

for   the   North    Carolina       murders       without    giving     him    his   Sixth

Amendment rights. Yet, the centerpiece of the government’s case

for the death sentence was a series of uncharged murders that

were in many ways more serious than the North Carolina incident.

The   third   stage    of   an      FDPA    trial      is   typically    reserved      for

evidence about the victims’ families or about the defendant’s


                                            101
elementary school performance or Boy Scout record. The jury must

weigh these soft, more subjective factors to fit the punishment

to the crime. The evidence we consider here is so much more

severe than a 4th grade report card that it is different in

kind, not degree. When a jury considers a Boy Scout record, the

truthfulness       and    reliability        of     the   evidence           is    a    secondary

matter    at    best.     The     more      difficult        task      for    this       type    of

information is fitting it into a cohesive, complete picture of

the defendant. The weight to be accorded to the evidence is the

predominant inquiry, and its reliability is a lesser concern. In

contrast, when a jury considers evidence of three additional

murders,    the    reliability         of    the     evidence       is    the      predominant

concern,   whereas       the    weight       to     accord      such     evidence        is    much

easier to discern. That is, it is easy to know how much weight

to    accord    evidence        of    past     murders        because         it       completely

overwhelms evidence like an elementary school report card, as

the   government’s        closing         argument    demonstrates.               Instead,      for

this type of evidence the most important inquiry is as to its

truth    and    reliability.         This    distinction         again        shows      why    the

district       court     committed          legal     error.        The       government         is

essentially exploiting the district court’s ruling to have a

second    murder       trial,   only       without     the      restrictions            that    the

Supreme    Court       mandated      in    Crawford       and    Ring.       The       majority’s

ruling today lets the tail wag the dog, and it will encourage


                                             102
strategic        posturing      by     prosecutors       to   punish    defendants       for

crimes that could never be found beyond a reasonable doubt by a

rational factfinder.

                                              III.

       The       majority    today       strips      a    defendant      of    his     Sixth

Amendment right to confront his accusers. Further, it denies

this right in a proceeding in which a jury must decide whether a

human being is fit to live. In this, the most momentous decision

a   jury     can     make,      the     majority         would    do    away    with     the

“constitutionally prescribed method of assessing reliability” of

evidence. Crawford, 541 U.S. at 62.

       Umaña is being sent to his death based on accusations by

self-interested accomplices – self-interested accomplices whose

testimony, at least in part, was contradicted by independent

witnesses. This illustrates the Supreme Court’s admonition that

accusations from co-defendants facing the same punishment are

“devastating to the defendant.” Bruton, 391 U.S. at 136. “The

unreliability of such evidence is intolerably compounded when

the alleged accomplice, as here, does not testify and cannot be

tested by cross-examination. It was against such threats to a

fair   trial       that   the    Confrontation           Clause   was   directed.”       Id.

Because      I    conclude      that    the    Confrontation       Clause      applies    at

every stage of an FDPA trial, not just the first two stages, and

because I conclude that it is both wrong and unconstitutional


                                              103
for   a   death   sentence   to   rest   on   unconfronted   accusatory

evidence, I dissent.




                                  104
