                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2800
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                              Wesley Paul Coonce, Jr.

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
             for the Western District of Missouri - Southern Division
                                 ____________

                            Submitted: January 15, 2019
                               Filed: July 25, 2019
                                 ____________

Before LOKEN, GRASZ, and STRAS, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.

       Wesley Paul Coonce, Jr. appeals the district court’s1 judgment sentencing him
to death for his role in the murder of Victor Castro-Rodriguez (“Castro”). We affirm.



      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                   I. Background

       Coonce and Castro were inmates in a locked ward that housed mental health
patients at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri
(“FMC Springfield”). Coonce was serving a life sentence for kidnapping and
carjacking, while Castro was committed due to his mental health and had no projected
release date.

       Prison officials found Castro dead in his cell on January 26, 2010. The
responding staff found Castro unconscious, with his hands tied behind his back with
medical tape, feet bound at his ankles with shoelaces, and a brown cloth wrapped
around his neck. Medical staff tried to resuscitate him to no avail. Dr. Carl Stacy, the
government’s expert pathologist, testified that Castro died from asphyxiation due to
a compressed larynx. He opined that the strangulation occurred from a “larger
object,” not hands, because of blunt force trauma to the neck and the lack of any
broken hyoid rings. He also noted blunt force trauma to the chin and injuries to the
upper chest, lower neck, and back of the head. He estimated Castro died within three
to five minutes.

      Physical evidence supported the conclusion that Coonce and another inmate,
Charles Hall, had killed Castro by standing on his neck. Both Coonce’s right boot
and Hall’s shoes tested positive for a substance containing Castro’s DNA. Coonce
had two pairs of shoes in his cell that were missing their shoelaces. Coonce also
showed Federal Bureau of Investigation (“FBI”) Agent Rick McLain where he had
placed his hand on the wall to balance while standing on Castro’s neck.

       A camera provided additional circumstantial evidence that Coonce and Hall
killed Castro. The prison did not have cameras that could see inside Castro’s cell or
the door to his cell at the time of the murder. Nevertheless, a camera showed the only
people that approached Castro’s cell during the time of the murder were Coonce and

                                          -2-
Hall. After a few minutes, Coonce left the cell for about a minute to talk to another
inmate. He rejoined Hall in Castro’s cell, and both of them were there for about nine
additional minutes. Coonce left again, made a throat-slashing sign to another inmate
and then returned to the cell. Both Coonce and Hall left the cell a couple minutes
later.

       Coonce repeatedly claimed responsibility for Castro’s murder. His first
admissions came shortly after FMC Springfield officials discovered Castro’s body.
He particularly described that he tied up Castro’s hands and feet and stomped on
Castro’s neck. He explained Castro was a snitch. That same night, he told an
investigating FBI agent that he kicked Castro in the neck and stood on his throat until
he stopped breathing. Coonce also claimed both he and another person, which other
evidence showed to be Hall, stood on Castro’s neck until Castro stopped breathing.
Coonce explained that interactions with other inmates had upset him and that he
decided to retaliate against Castro for previously telling prison staff about a minor
offense. The next day, he told a Bureau of Prisons (“BOP”) psychologist that he
killed a man and that it was by his choice. He told the FBI in a subsequent interview
that he had no regrets about killing Castro. Coonce also bragged about the murder
to inmates and admitted it in letters and calls to friends and family.

       In July 2011, a grand jury indicted Coonce on one count of murder in the first
degree within the special maritime and territorial jurisdiction of the United States, in
violation of 18 U.S.C. §§ 1111 and 2, and one count of murder by a federal prisoner
serving a life sentence, in violation of 18 U.S.C. § 1118. The indictment included
special findings of the statutory factors under 18 U.S.C. § 3591 and aggravating
factors under 18 U.S.C. § 3592(c) that made the charged offenses eligible for the
death penalty.




                                          -3-
      Coonce filed a motion for a separate trial from co-defendant Hall. The district
court denied the motion. It concluded that redacting statements with Bruton2 risks
and properly instructing the jury would resolve any potential prejudice.

       During pre-trial disclosures, the government asked for discovery on Coonce’s
mental health evidence and for an Atkins3 hearing on whether Coonce was “mentally
retarded.”4 Coonce responded that “the defense will not be asserting Mr. Coonce is
mentally retarded” and “no Atkins hearing is necessary.”

       After an eight-day trial in April and May of 2014, the jury found Coonce guilty
on both counts in the indictment. The district court then retained the same jury for
the capital sentencing proceeding, where the jury would decide whether to impose the
death penalty.

      The government alleged Coonce was eligible for the death penalty based on his
crime satisfying the required mental state for the death penalty and based on his
conduct satisfying eight aggravating factors.5 Four of the aggravating factors were
from the Federal Death Penalty Act of 1994 (“FDPA”): (1) causing death during the


      2
       Bruton v. United States, 391 U.S. 123, 135–37 (1968) (concluding there is a
Confrontation Clause violation when one co-defendant’s prior statements implicate
another co-defendant’s guilt but the first co-defendant does not testify at trial).
      3
       Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding the Eighth Amendment
bans imposition of the death penalty on the mentally retarded).
      4
       We recognize the use of the term “mentally retarded” may be offensive to
some. However, this terminology reflects the statutory language. See 18 U.S.C.
§ 3596(c) (“A sentence of death shall not be carried out upon a person who is
mentally retarded.”)
      5
        The government withdrew reliance on a ninth factor before the start of the
capital sentencing proceeding.

                                         -4-
commission of another crime; (2) having two or more prior convictions for violent
felonies; (3) committing murder “in an especially heinous, cruel, or depraved manner
in that it involved torture or serious physical abuse;” and (4) committing murder
“after substantial planning and premeditation.” 18 U.S.C. § 3592(c)(1), (c)(4), (c)(6),
(c)(9). The other four aggravating factors were “non-statutory” as they are not listed
in the FDPA: (1) future dangerousness, (2) conduct suggesting a grave indifference
to human life, (3) lack of remorse about Castro’s death, and (4) obstructing justice by
retaliating against Castro for reporting misconduct.

       Coonce alleged that thirty-three mitigating factors weighed against the death
penalty being an appropriate punishment for him, twenty-six of which were submitted
to the jury. The first ten of these factors focused extensively on his chaotic and
abusive childhood. Two factors sought to rebut the government’s factors. They
alleged Coonce showed remorse for Castro’s death and that he would have help from
loving family and foster family relationships. Six factors focused on his mental state
and on injuries that may have caused traumatic brain injuries. Three factors alleged
he had a lesser role in the murder. One of these factors suggested he killed Castro out
of a desire to escape abuse from other inmates due to the sexual offenses in his
history. Another noted Coonce’s repeated attempts at suicide. Two factors alleged
he had improved in the two years prior to trial. Finally, one catch-all factor allowed
the jury to acknowledge “other reasons that weigh against the imposition of a
sentence of death for Defendant Coonce.”

       After hearing all of the penalty phase evidence, the jury unanimously decided
the death penalty should be imposed on Coonce. They found the government proved
all eight aggravating factors. The entire jury found one mitigating factor: “Defendant
Coonce’s childhood was marked by chaos, abuse (both physical and sexual), as well
as neglect and abandonment.” Individual jurors found other mitigating factors.
Eleven jurors found “[t]he chaotic and abusive life that Defendant Coonce endured
as a young child increased his risk for emotional and mental disturbances in his adult

                                         -5-
life.” Eight jurors found “[d]efendant Coonce has suffered from mental and
emotional impairments from a very young age.” One juror found “[d]efendant
Coonce’s mother, Linda Coonce, was addicted to illegal drugs and alcohol.” In light
of those findings, all of the jurors weighed the aggravating factors against the
mitigating factors and agreed the death penalty was appropriate.

      The district court imposed the death penalty as determined by the jury. Coonce
timely appealed.

                                    II. Analysis

       The FDPA requires this court to perform three tasks on review: (1) “address all
substantive and procedural issues raised on appeal,” (2) “consider whether the
sentence of death was imposed under the influence of passion, prejudice, or any other
arbitrary factor,” and (3) assess “whether the evidence supports the special finding
of the existence of an aggravating factor . . . under section 3592.” 18 U.S.C.
§ 3595(c)(1). The court may “not reverse or vacate a sentence of death on account
of any error which can be harmless,” and the government bears the burden of proving
beyond a reasonable doubt that the error was harmless. Id. § 3595(c)(2).

      Coonce raises sixteen arguments on appeal. We address them in order.

                       A. Eligibility for the Death Penalty

        Coonce first argues that he meets the “mentally retarded” exception to the
FDPA and is not eligible for the death penalty. The FDPA states “[a] sentence of
death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C.
§ 3596(c). “[C]linical definitions of mental retardation require not only [1]
subaverage intellectual functioning, but also [2] significant limitations in adaptive
skills . . . that [3] became manifest before age 18.” Atkins v. Virginia, 536 U.S. 304,

                                         -6-
318 (2002). Both the Supreme Court and this court have repeatedly noted the
consensus that mental retardation must, as a definitional matter, onset before age
eighteen. See, e.g., id.; Ortiz v. United States, 664 F.3d 1151, 1158 (8th Cir. 2011).
Coonce conceded below, and concedes on appeal, that his intellectual deficits were
onset at age twenty. Thus, his argument relies on changing the prevailing
understanding of the statutory exception to encompass an age of onset after eighteen.

       In response to the government’s request for discovery of mental health
evidence, Coonce stated he would not be asserting that he is “mentally retarded” and
that no Atkins hearing was necessary. Then, on day fourteen of the capital sentencing
proceeding, Coonce filed a motion requesting an order barring the government from
seeking the death penalty, arguing that the Supreme Court’s decision against a firm
IQ score cutoff in Hall v. Florida, 134 S. Ct. 1986 (2014) also supported eliminating
the firm age cutoff in the definition of intellectual disability. The motion conceded
Coonce did not meet the medical community’s definition of age of onset but argued
for a fluid definition anyway.

       We assume, without deciding, Coonce preserved his argument and we hold the
age of onset requirement remains before the age of eighteen. Coonce’s main
argument to evade the precedent construing the FDPA is to assert that the age of
onset requirement is not rigid or will change in the near future. This argument
disregards “a ‘fundamental canon of statutory construction’ that words generally
should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress
enacted the statute.’” New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (ellipses
in original) (quoting Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074
(2018)). Both the American Psychiatric Association (“APA”) and the American
Association on Intellectual and Developmental Disabilities (“AAIDD”) agreed at the
time Congress enacted the FDPA’s “mentally retarded” exception that the impairment




                                          -7-
must onset by definition before eighteen.6 Thus, as a matter of statutory construction,
Coonce’s argument is meritless.

       Coonce cites two other sources to persuade us to interpret the FDPA as having
his preferred age of onset requirement: the text of the Rehabilitation Act of 1973, and
a rule promulgated by the Social Security Administration (“SSA”). We find neither
persuasive.

       The Rehabilitation Act evidence is unhelpful because it involves a policy
context that compels no legal conclusion. Coonce is correct that Congress amended
the Rehabilitation Act of 1973 to expand eligibility for disability benefits from those
with a disability onset before eighteen to those with a disability onset before twenty-
two. Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, Pub. L. 95-602, 92 Stat. 2955, 3004–05 (1978). He does not
explain how this policy choice defining eligibility for benefits for physical and mental
disabilities constitutes a medical judgment about mental disability. Because
developmental disability is inherently a legal term, not a medical one, see Tennessee

      6
       In fact, both the APA and the AAIDD agreed on this definition at the time the
original “mentally retarded” exception was enacted, Anti-Drug Abuse Act of 1988,
Pub. L. 100-690, 102 Stat 4181, 4390 (1988), and at the time the FDPA was enacted
with the same exception. Compare Am. Assn. on Mental Deficiency, Classification
in Mental Retardation 1 (Grossman ed. 1983) (defining mental retardation as
occurring during “the period of time between conception and the 18th birthday”), and
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 36
(Third Ed. 1980) (defining “onset before the age of 18” as an “essential feature”),
with Am. Ass’n on Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Supports 1 (9th ed. 1992) (defining mental retardation
as occurring “before age 18”), and Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders 39 (Fourth Ed. 1994) (“The onset must occur before age
18 years.”), and Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 29 (Third Ed. Rev. 1987) (defining “onset before the age of 18” as an
“essential feature”).

                                          -8-
Prot. & Advocacy, Inc. v. Wells, 371 F.3d 342, 349 n.5 (6th Cir. 2004), Congress
could redefine the term when it wanted as a matter of policy. We see no indication
in the FDPA that Congress intended to adopt its policy judgments in other areas in
lieu of the definition that prevailed at the time, especially when it did not specify that
same policy judgment here.

       Coonce is correct that the Social Security Administration defines intellectual
disability as onset before age twenty-two. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.05. The SSA’s rule is unhelpful because it cites no basis at all for its definition.
There is no discussion in the Federal Register of why that rule was adopted. See
Federal Old-Age, Survivors, and Disability Insurance; Listing of
Impairments—Mental Disorders, 50 Fed. Reg. 35038, 35049–50 (Aug. 28, 1985).
Thirty-one years later, the SSA did posit a reason for its age of onset: that it obtained
that definition from the American Psychological Association (as opposed to the
American Psychiatric Association). See Revised Medical Criteria for Evaluating
Mental Disorders, 81 Fed. Reg. 66138, 66155 n.16 (Sept. 26, 2016). This explanation
is implausible on its face because it cites a 1996 manual to justify a 1985 definition.
See id.7 This does not necessarily harm the SSA’s rule because the agency could
adopt a minority view with its rulemaking authority even when the APA and AAIDD
do not agree. This does harm Coonce’s argument, though, because this court does not
promulgate administrative rules and because Coonce still lacks evidence of experts
defining the age of onset as before age twenty-two at the time Congress adopted the
FDPA. Neither this court nor any professional association or administrative body has
been delegated the legislative authority to redefine a term adopted by Congress.



      7
       A review of the underlying manual also shows that it was attempting to change
the prevailing definition in 1996, further undermining any value it would offer to
show the meaning of the term “mentally retarded” at the time Congress passed the
FDPA. See Am. Psychological Ass’n, Manual of Diagnosis and Prof’l Practice in
Mental Retardation 36–37 (John W. Jacobson and James A. Mulick, eds., 1996).

                                           -9-
       Coonce alternatively raises this argument as an Eighth Amendment challenge.
He tells us about recent changes in the debate over defining disabilities, describing
how the APA has recently changed its definition for the age of onset from before
eighteen to “during the developmental period,” defined as “during childhood or
adolescence.” In Coonce’s view, this change leaves open the question of whether the
APA still believes the developmental period is before eighteen. He also tells us about
literature suggesting the AAIDD, which still defines the age of onset as before
eighteen, will eventually shift to a more vague standard. Both of these arguments are
predictions that medical experts will agree with Coonce’s view in the future. Such
evidence is not sufficient for us to divine any current Eighth Amendment limitation
on the statute.8

       Because we agree with the district court that the age of onset is eighteen, we
affirm its decision not to hold an Atkins hearing and not to consider whether Coonce
satisfies the other factors for intellectual disability, regardless of whether he waived
his arguments here.

      B. Evidence Regarding Coonce’s Refusal to Submit to IQ Testing

       Coonce next argues that admitting evidence at trial of his refusal to submit to
an IQ test violated his Fifth Amendment due process rights by analogizing to the right
to remain silent recognized in Miranda v. Arizona, 384 U.S. 436 (1966). It is true the
magistrate judge at his initial appearance gave a Miranda warning. The refusal to
take an IQ test occurred at a competency examination over a year later. There is no
indication in the record the competency examination was still subject to the same
Miranda protections. The doctor at the competency examination only generally
advised Coonce that statements are not confidential and that Coonce was free not to
tell anything he wanted kept confidential. This warning is closer to the officer’s


      8
          We find no merit to his Fifth Amendment claim on the same ground.

                                         -10-
advice in South Dakota v. Neville, 459 U.S. 553 (1983), about declining a blood
alcohol test than a full Miranda warning because it warns of consequences without
giving any substantive protections. And Coonce does not cite any authority stating
a competency examination must be under Miranda protections. Accordingly, we do
not agree the district court committed any Miranda error here.

       In conjunction with his Miranda argument, Coonce also argues there was
prosecutorial misconduct in closing arguments when the government suggested that
IQ testing is unreliable, by contrasting it to the reliability of a blood test. “To obtain
reversal for prosecutorial misconduct [in capital sentencing closing arguments], a
defendant must show the prosecutor’s remarks were improper, and that such remarks
prejudiced the defendant’s rights in obtaining a fair trial.” United States v.
Rodriguez, 581 F.3d 775, 798 (8th Cir. 2009). The government’s arguments about
the unreliability of IQ testing may have been somewhat aggressive, as they suggested
such testing is never very reliable by comparing it to the precision of a blood test. We
see no basis to conclude their arguments crossed the line into misconduct.

            C. Jury Instruction on Brain Damage Mitigating Factor

       Coonce next argues he was prejudiced by the denial of a requested jury
instruction on his brain damage mitigating factor. He requested an instruction that
said “if any of you find the factual existence of a mitigating factor you may not ignore
that factor or give it zero weight.” His argument and instruction both rely on the false
premise that juries assess mitigating factors only for factual accuracy rather than for
value as a mitigator. We are aware of no statute or case law that “require[s] a capital
jury to give mitigating effect or weight to any particular evidence,” and “[t]here is
only a constitutional violation if there exists a reasonable likelihood that the jurors
believed themselves precluded from considering relevant mitigating evidence.”
United States v. Paul, 217 F.3d 989, 999–1000 (8th Cir. 2000). In Paul, the jury
declined to find the mitigating factor that Paul’s co-defendant received only a life

                                          -11-
sentence even though that statement was factually true. See id. This court found it
sufficient that the jurors were allowed to consider the evidence regarding his co-
defendant’s life sentence before several jurors declined to find the mitigating factor.
Id. at 1000. In fact, this court has repeatedly said a jury may give mitigating evidence
no weight as long as they actually considered it. See Rodriguez, 581 F.3d at 799;
United States v. Johnson, 495 F.3d 951, 966 (8th Cir. 2007). Coonce’s argument is
a form-over-function argument because his ultimate complaint is that he wanted the
jury to write down what they found factually true before evaluating the weight. There
is no reason to believe the jury would have weighed the factors any differently if they
had recorded factual accuracy separately from weight. Thus, because the jury
considered the relevant mitigating evidence, the district court did not err in refusing
an instruction requiring factual findings.

       Coonce’s further argument that the government impermissibly minimized the
value of his mental damage at closing is an attempt to expand existing case law
banning a “nexus” requirement for mental damage mitigation. It is true that the
government cannot argue the defendant needs to prove a nexus between the
mitigating factors and the crime at issue. See Abdul-Kabir v. Quarterman, 550 U.S.
233, 245–46 (2007). Here, the government conceded Coonce’s mental damage from
incidents earlier in his life but argued the damage should not be a mitigating factor
because he may have been at fault in those incidents. This is not a nexus argument
but rather an attempt to devalue the mitigating factor. Coonce tries to argue at a high
level of generality that this was an invitation for the jury to screen out a mitigating
factor. His argument relies on his minimization of the government’s concession of
mental damage and maximization of the government’s argument about the lack of
weight the jury should give mental damage when deciding whether the death penalty
was proper. None of the precedent forbidding a nexus requirement forbids the
argument that was made here. Because the government conceded mental damage, it
was not precluded from making arguments about weight as long as it avoided the
impermissible nexus arguments.

                                         -12-
           D. Coonce’s Incriminating Statements to Dr. Park Dietz

      Coonce next argues he should not have been compelled to discuss the relevant
crime during his examination by the government’s psychiatrist, Dr. Park Dietz. The
Fifth Amendment generally protects defendants against the government’s use of
compelled statements to a psychiatrist. Kansas v. Cheever, 571 U.S. 87, 93 (2013).
When a defendant introduces psychiatric evidence for a mental-status defense,
though, the prosecution may then present its own psychiatric evidence in rebuttal. Id.
at 93–94. The Federal Rules of Criminal Procedure implement several protections
to support the Fifth Amendment restrictions here. The rules limit the government
from seeing any results or reports of its compelled examination until the defendant
is found guilty and confirms his intent to offer expert evidence on his mental
condition at sentencing. Fed. R. Crim. P. 12.2(c)(2). The rules also prohibit the
government from using any statement made by the defendant in the course of the
government’s examination, or any opinion based on such a statement, unless the
defendant has introduced evidence on that particular issue. Id. 12.2(c)(4). The rules
even prohibit using fruits of any statement by the defendant unless in rebuttal. See
id. These protections limit the admissibility, not the scope, of the interview.

      The district court’s order on the scope of the interview complied with Fed. R.
Crim. P. 12.2. It permitted a recorded interview by counsel firewalled apart from the
government. It also required advance notice before any portion of the interview was
usable in court. Coonce also does not dispute that he put his mental state during the
crime at issue. Thus, the district court’s order properly addressed the permissive
scope while delaying any ruling on admissibility.

       Coonce’s argument that his statements should not have been admitted is
foreclosed by the doctrine of invited error. Coonce objected to allowing offense-
specific questions during Dietz’s examination of Coonce but did not object to
admitting those answers into evidence. In fact, counsel represented they had agreed

                                        -13-
on what the government could offer into evidence. When counsel affirmatively
approves of an evidentiary ruling, the invited error doctrine generally estops any
argument that the ruling was errant. United States v. Jewell, 614 F.3d 911, 920 (8th
Cir. 2010). We are not persuaded by Coonce’s argument that any objection would
have been futile because the district court only ruled on the scope of the examination,
not admissibility. Thus, we conclude any error in admitting the evidence was invited,
and we will not reverse on that basis.

              E. Footprint Evidence and Forensic Blood Evidence

       Coonce next argues that a police officer’s testimony about whether a footprint
on Castro’s chest matched Coonce’s footprint violated the Federal Rules of Evidence.
Although the evidence was admitted at trial, Coonce is only appealing his capital
sentencing proceeding, and those proceedings do not follow the rules of evidence.
“Information is admissible regardless of its admissibility under the rules governing
admission of evidence at criminal trials except that information may 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(c). We review a
district court’s decision to admit evidence during the sentencing hearing under an
abuse of discretion standard. United States v. Purkey, 428 F.3d 738, 756 (8th Cir.
2005). The footprint evidence had little prejudice because showing that Coonce
stomped on Castro’s chest would add almost nothing to satisfying the aggravating
factors at issue beyond the other conduct already in the record. Thus, we affirm the
district court’s decision to admit this evidence during the capital sentencing
proceeding.

        Coonce’s argument about admitting evidence that Castro’s blood was on
Coonce’s shoe has little probative value to sentencing. The FBI’s expert testified at
trial that the initial presumptive test on Coonce’s right boot and on Hall’s right shoe
found blood, while the confirmatory test on both was inconclusive. This evidence

                                         -14-
appears relevant to guilt, but Coonce does not appeal his murder conviction. Coonce
also does not cite any point of the sentencing proceeding where the evidence was
referenced. Presuming the evidence was even used in the sentencing proceeding, we
see no abuse of discretion in its admission of this guilt evidence because we do not
believe its probative value was outweighed by the danger of unfair prejudice.

                 F. Jury Instruction on Future Dangerousness

       Coonce next argues the district court inappropriately summarized the
government’s evidence in its future dangerousness instruction. “[A] death penalty
phase jury must have ‘clear and objective standards that provide specific and detailed
guidance.’” United States v. Ortiz, 315 F.3d 873, 903 (8th Cir. 2002) (quoting Lewis
v. Jeffers, 497 U.S. 764, 774 (1990)). Coonce argues that stating the allegations
supporting future dangerousness amounts to improper “marshaling the evidence,”
citing United States v. Mundy, 539 F.3d 154, 158–59 (2d Cir. 2008). Regardless of
whether marshaling of evidence is generally proper, some summary of the allegations
supporting future dangerousness is necessary in capital sentencing proceedings in
order to prevent an open-ended inquiry on the jury’s perception of future
dangerousness rather than an inquiry on the government’s evidence. See Ortiz, 315
F.3d at 903. We are also not convinced that the district court’s vague references here,
such as “a continuing pattern of violent conduct,” amount to a summation of evidence
rather than a summation of the bare allegations.

       Coonce’s further argument that the district court made a mistake in its
deviation from the model instruction on future dangerousness is correct, but any error
was not plain. “A district court has ‘wide discretion’ in formulating a jury
instruction.” United States v. Frank, 354 F.3d 910, 921 (8th Cir. 2004) (quoting
United States v. Darden, 70 F.3d 1507, 1541 (8th Cir. 1995)). “If the instructions,
taken as a whole, fairly and adequately submitted the issues to the jury, we will
affirm.” Id. (quoting United States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001)).

                                         -15-
Because Coonce’s only objection below was giving this instruction without his
proposed additional instruction, he raises this particular objection for the first time
on appeal. We review unpreserved errors for plain error. Jones v. United States, 527
U.S. 373, 388–89 (1999). Under plain error review, “relief is not warranted unless
there has been (1) error, (2) that is plain, and (3) affects substantial rights.” Id.

      The district court gave the following instruction:

      The first non-statutory aggravating factor alleged by the Government for
      each count is that Defendant Coonce presents a future danger to others
      based upon the probability that Defendant Coonce would commit
      criminal acts of violence that would constitute a continuing threat to the
      lives and safety of others. Defendant Coonce has engaged in a
      continuing pattern of violent conduct, has threatened others with
      violence, has demonstrated lack of remorse, and/or has demonstrated a
      low rehabilitative potential.

Penalty Phase Jury Instrs., 17, ECF No. 807. The Eighth Circuit Model Jury
Instructions relevantly state: “The [first] non-statutory factor alleged by the
government is that . . . [The defendant] would be a danger in the future to the lives
and safety of other persons, as evidenced by [describe pertinent facts].” Model Death
Penalty Jury Instructions, Eighth Circuit, No. 12.08 (brackets in original).

       The district court’s deviation from the model instruction here is unfortunate,
but not reversible error. The district court’s edit changed a statement of the
government’s allegation into an apparent statement of fact, replacing the phrase “as
evidenced by” with a sentence break. By removing “as evidenced by,” the instruction
read in isolation could imply that the jury should assume it was proven Coonce had
engaged in a pattern of violent and threatening conduct. In context, though, a
reasonable juror could still infer that the second sentence was part of the
government’s allegations, especially since the instructions otherwise fairly reflected


                                         -16-
that it was the government’s burden to establish the aggravating factors. The
paragraph preceding this disputed instruction even describes the subsequent
paragraphs as the government’s allegations. Thus, while the district court’s edit is not
a best practice for jury instructions, we cannot say it amounts to a plain error in
context.

       Giving this aggravating-factor instruction without Coonce’s proposed
mitigating-factor instruction was also within the district court’s discretion. Coonce
proposed a jury instruction that said, as a mitigating factor, that “[t]he Federal Bureau
of Prisons is capable of imposing conditions of confinement that will control
Wesley’s future behavior.” The district court admitted evidence about whether the
BOP could control Coonce, but did not instruct the jury on how to handle that
evidence. Nonetheless, we do not find its decision to be an abuse of discretion
because Coonce was entitled to rebut allegations of future dangerousness in prison.
See United States v. Johnson, 223 F.3d 665, 674 (7th Cir. 2000). The district court
need not — and should not — instruct juries that sufficient control in prison is a
mitigating factor. We are not certain this evidence is individualized enough to qualify
as a mitigating factor because some BOP evidence is common to many BOP
defendants. See Zant v. Stephens, 462 U.S. 862, 878–79 (1983) (requiring an
individualized determination). Also, as our sister circuit has observed, allowing
control in prison as a mitigating factor is illogical because it results in rewarding the
most dangerous defendants for their dangerousness simply because they (unlike less
dangerous defendants) would be placed in maximum security. See Johnson, 223 F.3d
at 674–75. The district court correctly exercised its discretion when it refused to
instruct the jury that Coonce’s rebuttal evidence was a mitigating factor.

   G. Admitting BOP Administration and Costs for Future Dangerousness

     Coonce next argues the district court erred by admitting evidence of the BOP’s
administrative policies and costs as part of the government’s case on future

                                          -17-
dangerousness. Our review is once again for an abuse of discretion. Purkey, 428
F.3d at 756. In support of his appeal, Coonce cites a Fourth Circuit case that
undermines most of his argument. The Fourth Circuit expressed that it was troubled
by remarks from the government during a death penalty hearing that the BOP could
not adequately control the defendant. United States v. Caro, 597 F.3d 608, 626 (4th
Cir. 2010). The Fourth Circuit found no reversible error for four reasons: (1) the
challenged “comments about the jury’s role were isolated and not extensive,” (2) the
defendant invited the argument by presenting evidence about how the BOP would
control him, (3) the district court’s instructions about individualized judgment and
about attorney arguments not being evidence “counterbalanced any improper
comments” during the argument, and (4) the non-statutory aggravating factors (and
future dangerousness in particular) were otherwise well-supported by the record. Id.
We think the Fourth Circuit’s analysis applies equally well in this case. Coonce
introduced evidence about whether the BOP could control him, inviting rebuttal. The
district court also gave the same standard instructions as the court in Caro. The
future dangerousness factor was also well-supported by evidence of numerous
assaults in Coonce’s past. Thus, because we agree with the analysis in Caro, we
conclude Coonce did not suffer prejudicial error.

        The one novel issue faced here but not in Caro is whether the government
permissibly used Coonce’s mental illness to show the BOP could not control him.
The Supreme Court has suggested that mental illness cannot be used against a
defendant as an aggravating factor. See Zant, 462 U.S. at 885. The government’s
argument shows the problem it was facing here: mental illness questions and evidence
were needed to rebut some of Coonce’s evidence. For example, mental illness could
make Coonce ineligible for certain programs and placements his experts said would
control him in the BOP. As another example, Coonce’s expert, Stacey Wood,
testified about how Coonce’s brain injuries might mitigate his role in the offense, but
she has previously written articles admitting the same injuries could also make him
“increasingly aggressive, agitated, and dangerous.” Coonce is correct that the

                                         -18-
government’s use of mental health evidence could imply future dangerousness, but
the government is also correct that it only used mental health in cross-examinations
and rebuttals to counter Coonce’s evidence. We cannot see how the district court
erred in admitting this evidence because the government did not advance mental
health issues as an aggravating factor in its case in chief, and excluding such evidence
here risked barring any fair rebuttal. Thus, we affirm the district court’s evidentiary
ruling on mental health rebuttal evidence.

                               H. Right to be Present

       Coonce next argues that his court-imposed absence during certain instructions
to the jury violated his right to be present. Under the Federal Rules of Criminal
Procedure, “the defendant must be present at . . . every trial stage.” Fed. R. Crim. P.
43. The Fifth and Sixth Amendments also protect that right, but Rule 43 incorporates
the most expansive common law understanding of the right, making it broader than
the constitutional right. United States v. Martin, 777 F.3d 984, 990 (8th Cir. 2015).
“[C]ommunications between judge and jury in the absence of the defendant and his
counsel are presumptively prejudicial.” United States v. Koskela, 86 F.3d 122, 125
(8th Cir. 1996) (emphasis added).

       The issue in this case arises from the district court’s removal of the defendants
before instructing the jury on protestors outside the courthouse and on confidentiality
of juror information. At the beginning of the day, the district court told counsel it was
sealing the names of the jurors and that the defendants were not allowed to write
down the names of the jurors. It also told counsel it intended to tell the jury about the
protestors and allow them the option of staying inside and having lunch delivered
during the break from trial. It stated the defendants would not be present for that
discussion, and Coonce’s counsel objected. At the lunch break, the district court had
the jury exit solely so the marshals could remove the defendants. It had the jury
immediately return. Then, it told them about the protesters and the precautions the

                                          -19-
district court was taking, adding it was sealing the jury’s names and addresses to
protect them. The district court then recessed for lunch.

       We conclude this discussion with the jury was a ministerial act and not a “trial
stage” for purposes of Fed. R. Crim. P. 43. The discussion with the jury and counsel
without the defendants was proper for seeking honest answers from the jury about any
safety concerns they had. Regardless of whether a significant protest actually
occurred, the district court is entitled to ensure its jury is free from external pressures.
There is also no presumption of prejudice from excluding defendants from ministerial
acts, especially when counsel remains present. Accordingly, we see no error here.

                     I. BOP Records of Coonce’s Misconduct

       Coonce next argues the admission of his BOP records violated the
Confrontation Clause of the United States Constitution’s Sixth Amendment.9 This
court reviews Confrontation Clause objections to the admission of evidence de novo.
United States v. Dale, 614 F.3d 942, 955 (8th Cir. 2010). This court has previously
held “the confrontation clause does not apply in sentencing proceedings” but left
open the question of whether it applies in capital sentencing proceedings. See
Johnson, 495 F.3d at 976 n.23 (quoting United States v. Wallace, 408 F.3d 1046,
1048 (8th Cir. 2005)). Numerous circuits have found that the Confrontation Clause
does not apply in capital sentencing proceedings, citing the Supreme Court’s decision
in Williams v. New York, 337 U.S. 241 (1949). See, e.g., United States v. Umana, 750
F.3d 320, 346 (4th Cir. 2014); United States v. Fields, 483 F.3d 313, 327–28 (5th Cir.
2007).




       9
      “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI.

                                           -20-
        While Coonce advances arguments about whether Williams is still good law,
it is not our role to decide the continuing validity of a Supreme Court decision even
if it appears suspect. As the Supreme Court has stated, “[i]f a precedent of this Court
has direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Williams did
address the scope of the Confrontation Clause in capital sentencing proceedings, and
the case provides useful guidance to this court. See Williams, 337 U.S. at 250–52.
This court en banc has also previously applied Williams as controlling on
confrontation rights in non-capital sentencing proceedings. See United States v. Wise,
976 F.2d 393, 398 & n.2 (8th Cir. 1992) (en banc). The district court was as bound
by Williams as we are.

       Coonce’s related argument that the BOP records were too unreliable to admit
is also unpersuasive. Neither party cites a case from this circuit stating that the
“indicia of reliability” standard for typical sentencing proceedings also applies to
capital sentencing proceedings, although the Fifth Circuit has said as much. See
Fields, 483 F.3d at 337–38. We see no reason to depart from that standard in capital
sentencing proceedings either. Accordingly, we review the decision this evidence
had sufficient indicia of reliability for abuse of discretion. Purkey, 428 F.3d at 756.

      Coonce does not explain why the BOP’s adversarial administrative process
would lack indicia of reliability, and it appears his challenge is to unadjudicated
conduct in BOP reports. In particular, he points to a report where a prisoner alleged
Coonce attempted sexual assault when the adjudication only led to a conviction for
punching that person. In the analogous situation of police reports, we have been
suspicious of their reliability: “While police reports may be demonstrably reliable
evidence of the fact that an arrest was made they are significantly less reliable
evidence of whether the allegations of criminal conduct they contain are true.”

                                         -21-
United States v. Johnson, 710 F.3d 784, 789 (8th Cir. 2013) (quoting United States
v. Bell, 785 F.2d 640, 644 (8th Cir. 1986)). We assess reliability “case-by-case.” Id.

       We are convinced the BOP reports were sufficiently reliable here for two
reasons. First, the government also introduced the evidence showing that some of the
charges did not lead to adjudications against Coonce. Second, any excessive charges
from other inmates in the reports were consistent with Coonce’s description of
unreasonably hostile treatment by other inmates. Thus, we do not believe the district
court abused its discretion in admitting BOP reports in this case.

      J. Using Coonce’s Prior Offense for Multiple Aggravating Factors

       Coonce next argues the government’s repetitive use of his 2002 conviction for
kidnapping and the related rape was unfairly prejudicial. However, he cites no
authority barring this type of repetitive use. “Where the evidence is at most ‘an extra
helping of what the jury had heard before,’ the evidence is merely cumulative and its
admission does not result in reversible error.” United States v. Ramos-Caraballo, 375
F.3d 797, 803 (8th Cir. 2004) (quoting United States v. Simonelli, 237 F.3d 19, 29
(1st Cir. 2001)). “There could be circumstances, however, where that ‘extra helping’
of evidence ‘can be so prejudicial as to warrant a new trial.’” Id. at 804 (quoting
same). Ramos-Caraballo was under the standard rules of evidence, not the FDPA,
but we assess for unfair prejudice under either rule. 18 U.S.C. § 3593(c). We review
for abuse of discretion. Purkey, 428 F.3d at 756.

      As both parties acknowledge, the government used multiple witnesses to
recount the kidnapping and rape in order to satisfy different aggravating factors. The
only case Coonce cites where a court erred by admitting new but cumulative evidence
was a Third Circuit case on child pornography. See United States v. Cunningham,
694 F.3d 372, 391 (3d Cir. 2012). The Third Circuit’s analysis is not on point here
because the Third Circuit was addressing a trial where the government introduced

                                         -22-
multiple child pornography video clips to establish guilt of a child pornography
offense. See id. The evidence at issue here is testimony, not video evidence, and it
is being introduced to establish character for sentencing, not to bias a jury’s
determination on guilt. Coonce cites no case where we have ever required excluding
cumulative evidence of past crimes in a capital sentencing proceeding, and we are not
convinced that allowing multiple forms of evidence was unfairly prejudicial here.
Thus, we conclude the district court did not abuse its discretion by admitting different
versions of Coonce’s prior kidnapping and rape offenses.

       Coonce’s other objection about using the same offense for multiple aggravating
factors is foreclosed by precedent. We have stated there is no constitutional infirmity
in duplicative factors because the jury weighs factors; it does not tally them for
numbers. See Purkey, 428 F.3d at 762. As a result, the jury can account for the
duplication in its weighing of the factors. See id. So, even assuming Coonce is
correct that any of the factors were duplicative rather than merely similar, Purkey
forecloses Coonce’s argument for error based on duplication.

              K. Future Dangerousness as an Aggravating Factor

       Coonce makes three primary arguments about why future dangerousness is not
a valid aggravating factor. First, he argues that a probability-based factor like future
dangerousness is not capable of proof beyond a reasonable doubt. Second, he argues
that future dangerousness for a person under a sentence of life imprisonment should
be narrowed to future dangerousness in prison. Third, he argues that an unreliable
prediction cannot impose unalterable consequences like the death penalty. This court
reviews challenges to the validity of an aggravating factor de novo. United States v.
Allen, 247 F.3d 741, 786 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953
(2002).




                                         -23-
        Coonce’s first argument is foreclosed by precedent. As he concedes, a plurality
opinion in Jurek states that probability-based factors are permissible. See Jurek v.
Texas, 428 U.S. 262, 274–76 (1976) (joint opinion of Stewart, Powell, and Stevens,
JJ.); see also id. at 278–79 (White, J., concurring in the judgment, joined by Burger,
C.J., and Rehnquist, J.). The government argues that Jurek forecloses this challenge
because this particular argument was presented to the court in Jurek. We see no
explicit response to that argument in the plurality opinion in Jurek. Nevertheless, we
agree the question is implicitly foreclosed by Jurek. If a probability-based factor is
constitutionally permissible in a criminal case, as Jurek states, then such a factor
necessarily must be provable beyond a reasonable doubt. Because Jurek prevents us
from questioning the premise, it also prevents us from questioning the conclusion.

       Coonce’s second argument is an argument we have previously rejected. See
Allen. 247 F.3d at 788–89, vacated on other grounds, 536 U.S. 953 (2002). In Allen,
this court noted the possibility of escape and danger to other inmates and prison
officials, and it also noted that the jury could appropriately assess the evidence of
future dangerousness when it also knew the defendant was serving a life sentence
without the possibility of parole. See id. Seven Supreme Court justices have
similarly suggested a reversible error would exist with this factor only when the jury
was prevented from learning that the defendant had no possibility of parole. See
Simmons v. South Carolina, 512 U.S. 154, 166 n.5 (1994) (opinion of Blackmun, J.,
joined by Stevens, Souter, and Ginsburg, JJ.); see also id. at 178 (O’Connor, J.,
concurring in the judgment, joined by Rehnquist, C.J., and Kennedy, J.). Although
we are not bound by Allen due to its being vacated, we see no reason the district court
erred, as the jury in this case knew about Coonce’s existing prison sentence when
assessing his future dangerousness.

       Coonce’s third argument has a false premise. Under Jurek, the prediction of
future dangerousness is reliable. Jurek, 428 U.S. at 275–76, 278–79. Coonce cites
two cases about life sentences for juveniles to support his argument: Montgomery v.

                                         -24-
Louisiana, 136 S. Ct. 718 (2016); and Miller v. Alabama, 567 U.S. 460 (2012).
Neither of these cases says anything about appropriate considerations for adult
offenders like Coonce. The opinion in Montgomery even distinguishes cases
concerning factors making the death penalty more likely for a particular offender
from factors imposing an unconstitutionally excessive penalty on a category of
offenders. Montgomery, 136 S. Ct. at 735–36. Coonce’s argument presumes his own
conclusions about future dangerousness and is unsupported by the authority he cites.
The district court did not err in submitting future dangerousness to the jury.

                                L. Voir Dire on Bias

       Coonce next argues that the district court improperly restricted voir dire on
areas of bias that he claims were critical to his case. In particular, he argues the
district court improperly restricted inquiry into (1) connections to officials at FMC
Springfield, (2) sexual abuse, and (3) and attitudes toward mental health evidence and
related expert testimony.

        “The Sixth Amendment guarantees ‘the criminally accused a fair trial by a
panel of impartial, indifferent jurors.’” Ortiz, 315 F.3d at 888 (quoting Irvin v. Dowd,
366 U.S. 717, 722 (1961)). Voir dire helps protect this right. Id. Similarly, in a
death penalty case, due process entitles a defendant to an impartial jury. See Morgan
v. Illinois, 504 U.S. 719, 729–32 (1992).10 “Trial judges have broad discretion in
determining how best to conduct voir dire, though this discretion is not without
boundaries.” Ortiz, 315 F.3d at 888. While we have supervisory power in federal
death penalty cases that extends beyond enforcing constitutional limits, Mu’Min v.
Virginia, 500 U.S. 415, 422 (1991), we will reverse only for abuse of discretion


      10
        Morgan concerned the Due Process Clause of the Fourteenth Amendment, not
the Fifth Amendment, but Coonce argues and the government does not contest that
the same standard applies to death penalty cases under either clause.

                                         -25-
“[b]ecause the trial judge is in the best position to analyze the demeanor and
credibility of a venireman,” Ortiz, 315 F.3d at 888.

       The district court’s inquiry regarding friends and relatives of jurors working
at FMC Springfield was not an abuse of discretion. The government agreed to a
modified version of the question Coonce wanted, and it is unclear why the district
court rejected it. Several questions covered many related issues, though, as the
district court asked about spouses or significant others who were correctional officers,
asked about family or friends in the mental health and medical fields, and asked about
whether the jurors had ever applied for a job with a governmental agency. There is
some potential for gaps in the responses, such as friends or family other than spouses
working as correctional officers, or family or friends working at FMC Springfield in
an administrative capacity. Because the existing questions covered such a large
potential swath of people working at FMC Springfield, though, we cannot say the
failure to ask a more exacting question was an abuse of discretion.

       The district court adequately inquired about juror attitudes regarding sexual
abuse. Coonce argues the inquiries as to juror experience with crime were
insufficient, citing a district court case where a juror did not respond to a general
question about being a victim of crime because the juror did not perceive an
unreported sexual assault as responsive to the question. See United States v. Fell,
No. 2:01CR12, 2014 WL 3697810 at *6–7 (D. Vt., July 24, 2014). Regardless of
whether that juror in Fell was an outlier or within the mainstream of jury
understanding, a similar omission could not have occurred during voir dire in this
case. The district court orally asked about attitudes toward possible evidence of the
defendant’s past rape or sexual assault. The district court also received responses on
point from prospective jurors about personal knowledge of sexual abuse. Thus,
Coonce could not show any potential prejudice even if he could demonstrate there
was an error.



                                         -26-
       Finally, the district court adequately inquired regarding juror attitudes toward
mental health issues. Coonce argues the district court should have asked prospective
jurors more targeted questions about attitudes toward mental health defenses. He
points to a Ninth Circuit case that references other authority stating that a defendant
is entitled to voir dire about attitudes toward an insanity defense. United States v.
Jones, 722 F.2d 528, 529–30 (9th Cir. 1983). No such defense was at issue here.
Instead, Coonce claimed mental health issues as a mitigating factor in a death penalty
hearing. The main mental health questions Coonce wanted in the questionnaire were
asked at voir dire, and it was only the wording of some of the questions that changed
in the final result. In particular, the district court asked potential jurors whether they
or immediate family or close friends had experience with mental illness or mental
impairment, and it asked whether they had any negative attitudes toward mental
health professionals. We are not persuaded that all mental health evidence carries the
same stigma as the insanity defense, and we believe these questions adequately
inquired as to biases here. Thus, even if we were to agree with the Ninth Circuit on
the insanity defense requiring a voir dire question, we would see no abuse of
discretion in the district court’s voir dire on mental health issues.

                       M. Lack of Individualized Voir Dire

       Coonce next argues the district court should have conducted individualized
voir dire privately and away from other prospective jurors. The Supreme Court has
once observed that the “psychological impact” of answering before other potential
jurors can diminish candor. Irvin, 366 U.S. at 728. It has also observed that when
discussing voir dire practices, “[t]he fact that a particular rule may be thought to be
the ‘better’ view does not mean that it is incorporated into the Fourteenth
Amendment.” Mu’Min, 500 U.S. at 430–31. Without a constitutional violation here,
which we do not find, Coonce’s argument is only a request to use our supervisory
power. Coonce cites no circuit court that has used its supervisory power to require
district courts to conduct individualized voir dire. The record here also shows

                                          -27-
multiple candid answers by potential jurors in the voir dire, suggesting that group voir
dire was adequate in this case. Facing no constitutional violation or problematic
record, we decline Coonce’s invitation to adopt his perception of best practices for
our district courts.

                  N. Separate Capital Sentencing Proceedings

       Coonce next argues the district court abused its discretion by denying him a
separate capital sentencing proceeding from Hall. In Kansas v. Carr, the Supreme
Court reversed a decision of the Kansas Supreme Court finding that the Eighth
Amendment required separate sentencing proceedings. 136 S. Ct. 633, 646 (2016).
The Court emphasized: “[t]o forbid joinder in capital-sentencing proceedings would,
perversely, increase the odds of ‘wanto[n] and freakis[h]’ imposition of death
sentences.” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 206–207 (1976) (joint
opinion of Stewart, Powell, and Stevens, JJ.)). Coonce suggests some factual
distinctions, but none are a basis for disregarding the broad holding in Carr. He does
not demonstrate possible prejudice from the jury failing to separately consider him
and Hall or from instructions which commingled evidence and law not applicable to
him with otherwise proper law and evidence. See id. at 645. The sentencing verdict
forms also separately treated the two co-defendants. Thus, we see no error in the
district court’s refusal to sever the capital sentencing proceedings.

                        O. Standard for Weighing Factors

      Coonce next argues that a jury must weigh factors in capital sentencing
proceedings using a beyond a reasonable doubt standard. We have stated that the
weighing component of the FDPA is not an elemental fact. Purkey, 428 F.3d at 750.
Purkey only addressed whether a grand jury needed to charge the weighing
component in an indictment, but our conclusion that weighing is not an element also



                                         -28-
means that a capital sentencing jury does not need to perform the weighing beyond
a reasonable doubt. The district court correctly followed our precedent.

                           P. Arbitrariness Arguments

       Coonce finally argues he was arbitrarily sentenced based on geography because
the Western District of Missouri has more death penalty cases than the average
district court. This argument is fundamentally a policy argument, not a legal one.
The statute governing our review requires this court to assess whether “the sentence
of death was imposed under the influence of passion, prejudice, or any other arbitrary
factor.” 18 U.S.C. § 3595(c)(1). The implication in this statute is that the court must
assess whether the jury decided the sentence should be imposed based on any of those
factors. Coonce makes no attempt to argue the jury here sentenced him based on
geography.

       Even if the statute were not narrowed to the jury, Coonce makes no showing
that he personally received a sentence of death based on geography. While he cites
generalized statistics about other districts and defendants, he does not show that his
particular chance of receiving the death penalty changed because of the district. He
infers from those generalized statistics that his sentence is arbitrary. But even if we
agreed with his inference, which we do not, it is equally plausible that his sentence
is deserved but some other cases in the district involved arbitrary use of the death
penalty. Coonce offers no basis to reach an inference in his favor aside from his
presumption that imposition of the death penalty is always improper.

       Coonce’s alternative argument that the FDPA itself is arbitrary has no legal
merit. This court has previously rejected the arguments he advances. Allen, 247 F.3d
at 760–61, vacated on other grounds, 536 U.S. 953 (2002) (stating that “the FDPA
adequately narrows the class of persons eligible for the death penalty and sufficiently
channels a jury’s sentencing discretion” and that “proportionality review is not

                                         -29-
required in order for the FDPA to pass constitutional muster”). Even if we
reconsidered that view, Coonce makes no showing that he personally received a
sentence of death based on some arbitrariness inherent in the FDPA. This alternative
argument is nothing more than a list of grievances about the FDPA with no causal
connection to Coonce’s case.

                                  III. Conclusion

       After addressing each of Coonce’s arguments on appeal, we are satisfied that
the district court’s rulings on voir dire, jury instructions, evidence, presence of the
defendant, and the aggravating and mitigating factors were correct. We also hold that
Coonce does not satisfy the age of onset requirement for the “mentally retarded”
exception to the death penalty.

       Our other review tasks under the FDPA show no reason for reversal here. We
found no merit to Coonce’s constitutional challenge to the FDPA and see no other
indication that passion, prejudice, or any other arbitrary factor resulted in his death
sentence. See 18 U.S.C. § 3595(c)(1). In addition, our review of the record shows
sufficient evidence to find a statutory aggravating factor. See id. Accordingly, we
affirm the judgment of the district court.
                        ______________________________




                                         -30-
