OCTOBER TERM, 1998
Syllabus
JONES
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 97-9361. Argued February 22, 1999-Decided June 21, 1999
Petitioner was sentenced to death for the crime of kidnaping
resulting in the victim's death. Petitioner's sentence was imposed
pursuant to the Federal Death Penalty Act of 1994, 18 U. S. C. §
3591
et seq. At the sentencing hearing, the District Court
instructed the jury and provided it with four decision forms on
which to record its sentencing recommendation. The court refused
petitioner's request to instruct the jury as to the consequences of
jury deadlock. The jury unanimously recommended that petitioner be
sentenced to death. The District Court imposed sentence in
accordance with the jury's recommendation, and the Fifth Circuit
affirmed.
Held: The judgment is affirmed.
132
F.3d 232, affirmed.
JUSTICE THOMAS delivered the opinion of the Court with respect
to Parts I, II, and III -B, concluding:
1. The Eighth Amendment does not require that a jury be
instructed as to the consequences of their failure to agree. Pp.
379-384.
(a) As petitioner argues, the Federal Death Penalty Act requires
judge sentencing when the jury, after retiring for deliberations,
reports itself as unable to reach a unanimous verdict. In such a
case, the sentencing duty falls upon the District Court pursuant to
18 U. S. C. § 3594. Pp. 379-381.
(b) The Eighth Amendment, however, does not require that a jury
be instructed as to the consequences of a breakdown in the
deliberative process. Such an instruction has no bearing on the
jury's role in the sentencing process. Moreover, the jury system's
very object is to secure unanimity, and the Government has a strong
interest in having the jury express the conscience of the community
on the ultimate life or death question. A charge of the sort
petitioner suggests might well undermine this strong governmental
interest. In addition, Congress chose not to require such an
instruction be given. The Court declines to invoke its supervisory
powers over the federal courts and require that such an instruction
be given in every capital case in these circumstances. Pp.
381-384.
2. There is no reasonable likelihood that the jury was led to
believe that petitioner would receive a court-imposed sentence less
than life
374
Syllabus
imprisonment in the event they could not recommend unanimously a
sentence of death or life imprisonment without the possibility of
release. Pp. 384-395.
(a) Petitioner claims that the instruction pertaining to the
jury's sentencing recommendation, in combination with the Decision
Forms, led to confusion warranting reversal of his sentence under
the Due Process Clause, the Eighth Amendment, and the Act. Because
petitioner did not voice the objections that he now raises before
the jury retired, see Fed. Rule Crim. Proc. 30, his claim of error
is subject to a limited appellate review for plain error,
e. g.,
Johnson v.
United States, 520 U. S. 461,465-466.
Pp. 384-389.
(b) Under that review, relief is not warranted unless there has
been (1) error, (2) that is plain, and (3) affects substantial
rights. Petitioner's argument falls short of satisfying even the
first requirement, for no error occurred. The proper standard for
reviewing claims that allegedly ambiguous instructions caused jury
confusion is whether there is a reasonable likelihood that the jury
applied the challenged instruction in a way that violates the
Constitution. There is no such likelihood here. The District Court
gave no explicit instructions on the consequences of nonunanimity;
and the passages that petitioner argues led to jury confusion, when
viewed in the context of the entire instructions, lack any
ambiguity. Nor did the Decision Forms or their accompanying
instructions create a reasonable likelihood of confusion over the
effect of nonunanimity. The District Court's explicit instruction
that the jury had to be unanimous and its exhortation to the jury
to discuss the punishment and to attempt to reach agreement make it
doubtful that the jury thought it was compelled to recommend a
lesser sentence in the event of a disagreement. Even assuming,
arguendo, that a plain error occurred, petitioner cannot
show that it affected his substantial rights. The District Court
admonished the jury not to concern itself with the effect of a
lesser sentence recommendation. Moreover, assuming that the jurors
were confused over the consequences of deadlock, petitioner cannot
show the confusion necessarily worked to his detriment. It is just
as likely that the jurors, loathe to recommend a lesser sentence,
would have compromised on a life imprisonment sentence as on a
death sentence. Cf.
Romano v.
Oklahoma, 512 U. S. 1, 14. Pp.
389-395.
3. Assuming,
arguendo, that the District Court erred in
allowing the jury to consider nonstatutory aggravating factors that
were vague, overbroad, or duplicative in violation of the Eighth
Amendment, such error was harmless beyond a reasonable doubt. An
appellate court may conduct harmless-error review by considering
either whether absent an invalid factor, the jury would have
reached the same verdict or whether the result would have been the
same had the invalid aggravat-
375
ing factor been precisely defined. See
Clemons v.
Mississippi, 494 U. S. 738, 753-754. The Fifth Circuit
performed the first sort of analysis, and its explanation appears
sufficient. Even if its analysis was too perfunctory, it is plain,
under the alternative mode of harmless-error analysis, that the
error indeed was harmless. Had the nonstatutory aggravating factors
been precisely defined in writing, the jury would have reached the
same recommendation as it did. The Government's argument to the
jury cured the factors of any infirmity as written. Pp.
402-405.
THOMAS, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and III-B, in
which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined, and an opinion with respect to Part III-A, in which
REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined. GINSBURG,
J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ.,
joined, and in which BREYER, J., joined as to Parts I, II, III, and
V,
post, p. 405.
Timothy Crooks argued the cause for petitioner. With him
on the briefs was
Timothy W Floyd.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the brief were Solicitor General Waxman,
Assistant Attorney General Robinson, Matthew D. Roberts, and Sean
Connelly.
*
JUSTICE THOMAS delivered the opinion of the Court, except as to
Part III -A. t
Petitioner was sentenced to death for committing a kidnaping
resulting in death to the victim. His sentence was imposed under
the Federal Death Penalty Act of 1994, 18 U. S. C. § 3591
et
seq. (1994 ed. and Supp. III). We are presented with three
questions: whether petitioner was entitled to an instruction as to
the effect of jury deadlock; whether there is a reasonable
likelihood that the jury was led to believe that petitioner would
receive a court-imposed sentence
* Kent S.
Scheidegger and
Charles L.
Hobson filed a brief for the Criminal Justice Legal Foundation
as
amicus curiae urging affirmance. tJUSTICE SCALIA joins
all but Part III-A of the opinion.
376
less than life imprisonment in the event that they could not
reach a unanimous sentence recommendation; and whether the
submission to the jury of two allegedly duplicative, vague, and
overbroad nonstatutory aggravating factors was harmless error. We
answer "no" to the first two questions. As for the third, we are of
the view that there was no error in allowing the jury to consider
the challenged factors. Assuming error,
arguendo, we think
it clear that such error was harmless.
I
Petitioner Louis Jones, Jr., kidnaped Private Tracie Joy McBride
at gunpoint from the Goodfellow Air Force Base in San Angelo,
Texas. He brought her to his house and sexually assaulted her. Soon
thereafter, petitioner drove Private McBride to a bridge just
outside of San Angelo, where he repeatedly struck her in the head
with a tire iron until she died. Petitioner administered blows of
such severe force that, when the victim's body was found, the
medical examiners observed that large pieces of her skull had been
driven into her cranial cavity or were missing.
The Government charged petitioner with,
inter alia,
kidnaping with death resulting to the victim, in violation of 18 U.
S. C. § 1201(a)(2), an offense punishable by life imprisonment or
death. Exercising its discretion under the Federal Death Penalty
Act of 1994, 18 U. S. C. § 3591
et seq., the Government
decided to seek the latter sentencing option. Petitioner was tried
in the District Court for the Northern District of Texas and found
guilty by the jury.
The District Court then conducted a separate sentencing hearing
pursuant to § 3593. As an initial matter, the sentencing jury was
required to find that petitioner had the requisite intent, see §
3591(a)(2); it concluded that petitioner intentionally killed his
victim and intentionally inflicted serious bodily injury resulting
in her death. Even on a finding of intent, however, a defendant is
not death eligible unless the sentencing jury also finds that the
Government
377
has proved beyond a reasonable doubt at least one of the
statutory aggravating factors set forth at § 3592. See § 3593(e).
Because petitioner was charged with committing a homicide, the
Government had to prove 1 of the 16 statutory aggravating factors
set forth at 18 U. S. C. § 3592(c) (1994 ed. and Supp. III)
(different statutory aggravating factors for other crimes
punishable by death are set forth at §§ 3592(b), (d)). The jury
unanimously found that two such factors had been proved beyond a
reasonable doubt-it agreed that petitioner caused the death of his
victim during the commission of another crime, see § 3592(c)(1),
and that he committed the offense in an especially heinous, cruel,
and depraved manner, see § 3592(c)(6).1
Once petitioner became death eligible, the jury had to decide
whether he should receive a death sentence. In making the selection
decision, the Act requires that the sentencing jury consider all of
the aggravating and mitigating factors and determine whether the
former outweigh the latter (or, if there are no mitigating factors,
whether the aggravating factors alone are sufficient to warrant a
death sentence). §§ 3591(a), 3592, 3593(e). The Act, however,
requires more exacting proof of aggravating factors than mitigating
onesalthough a jury must unanimously agree that the Government
established the existence of an aggravating factor beyond a
reasonable doubt, § 3593(c), the jury may consider a mitigating
factor in its weighing process so long as one juror finds that the
defendant established its existence by preponderance of the
evidence, §§ 3593(c), (d). In addition to the
1 As phrased on the Special Findings Form returned by the jury,
the statutory aggravating factors read:
"2(A). The defendant LOUIS JONES caused the death of Tracie Joy
McBride, or injury resulting in the death of Tracie Joy McBride,
which occurred during the commission of the offense of
Kidnapping."
"2(C). The defendant LOUIS JONES committed the offense in
an especially heinous, cruel, and depraved manner in that it
involved torture or serious physical abuse to Tracie Joy McBride."
App.51-52.
378
two statutory aggravators that established petitioner's death
eligibility, the jury also unanimously found two aggravators of the
nonstatutory variety 2 had been proved: One set forth victim impact
evidence and the other victim vulnerability evidence.3 As for
mitigating factors, at least one juror found 10 of the 11 that
petitioner proposed and seven jurors wrote in a factor petitioner
had not raised on the Special Findings Form.4
2 The term "nonstatutory aggravating factor" is used to refer to
any aggravating factor that is not specifically described in 18 U.
S. C. § 3592. Section 3592(c) provides that the jury may consider
"whether any other aggravating factor for which notice has been
given exists." Pursuant to § 3593(a), when the Government decides
to seek the death penalty, it must provide notice of the
aggravating factors that it proposes to prove as justifying a
sentence of death.
3 As phrased on the Special Findings Form, the nonstatutory
aggravating factors read:
"3(B). Tracie Joy McBride's young age, her slight stature, her
background, and her unfamiliarity with San Angelo, Texas.
"3(C). Tracie Joy McBride's personal characteristics and
the effect of the instant offense on Tracie Joy McBride's family
constitute an aggravating factor of the offense." App.53.
4 The mitigating factors that the jury found as set forth on the
Special Findings Form (along with the number of jurors that found
for each factor in brackets) are as follows:
"1. That the defendant Louis Jones did not have a significant
prior criminal record." [6]
"2. That the defendant Louis Jones' capacity to appreciate the
wrongfulness of the defendant's conduct or to conform to the
requirements of law was significantly impaired, regardless of
whether the capacity was so impaired as to constitute a defense to
the charge." [2]
"3. That the defendant Louis Jones committed the offense under
severe mental or emotional disturbance." [1]
"4. That the defendant Louis Jones was subjected to physical,
sexual, and emotional abuse as a child (and was deprived of
sufficient parental protection that he needed)." [4]
"5. That the defendant Louis Jones served his country well in
Desert Storm, Grenada, and for 22 years in the United States Army."
[8]
"6. That the defendant Louis Jones is likely to be a
well-behaved inmate." [3]
379
After weighing the aggravating and mitigating factors, the jury
unanimously recommended that petitioner be sentenced to death. App.
57-58. The District Court imposed sentence in accordance with the
jury's recommendation pursuant to § 3594. The United States Court
of Appeals for the Fifth Circuit affirmed the sentence.
132 F.3d
232 (1998). We granted certiorari, 525 U. S. 809 (1998), and
now affirm.
II A
We first decide the question whether petitioner was entitled to
an instruction as to the consequences of jury deadlock. Petitioner
requested, in relevant part, the following instruction:
"In the event, after due deliberation and reflection, the jury
is unable to agree on a unanimous decision as to the sentence to be
imposed, you should so advise me and I will impose a sentence of
life imprisonment without possibility of release ....
"In the event you are unable to agree on [a sentence of] Life
Without Possibility of Release or Death, but you are unanimous that
the sentence should not be less than Life Without Possibility of
Release, you should report that vote to the Court and the Court
will sentence the defendant to Life Without the Possibility of
Release." App.14-15.
"7. That the defendant Louis Jones is remorseful for the crime
he committed." [4]
"8. That the defendant Louis Jones' daughter will be harmed by
the emotional trauma of her father's execution." [9]
"9. That the defendant Louis Jones was under unusual and
substantial internally generated duress and stress at the time of
the offense." [3]
"10. That the defendant Louis Jones suffered from numerous
neurologicalor psychological disorders at the time of the offense."
[1]
Id., at 54-56.
Seven jurors added petitioner's ex-wife as a mitigating factor
without further elaboration.
Id., at 56.
380
In petitioner's view, the Eighth Amendment requires that the
jurors be instructed as to the effect of their inability to agree.
He alternatively argues that we should invoke our supervisory power
over the federal courts and require that such an instruction be
given.
Before we turn to petitioner's Eighth Amendment argument, a
question of statutory interpretation calls for our attention. The
Fifth Circuit held that the District Court did not err in refusing
petitioner's requested instruction because it was not substantively
correct. See 132 F. 3d, at 242-243. According to the Court of
Appeals, § 3593(b)(2)(C), which provides that a new jury shall be
impaneled for a new sentencing hearing if the guilt phase jury is
discharged for "good cause," requires the District Court to impanel
a second jury and hold a second sentencing hearing in the event of
jury deadlock.
Id., at 243. The Government interprets the
statute the same way (although its reading is more nuanced) and
urges that the judgment below be affirmed on this ground.
Petitioner, however, reads the Act differently. In his view,
whenever the jury reaches a result other than a unanimous verdict
recommending a death sentence or life imprisonment without the
possibility of release, the duty of sentencing falls upon the
district court pursuant to § 3594, which reads:
"Upon a recommendation under section 3593(e) that the defendant
should be sentenced to death or life imprisonment without
possibility of release, the court shall sentence the defendant
accordingly. Otherwise, the court shall impose any lesser sentence
that is authorized by law. Notwithstanding any other law, if the
maximum term of imprisonment for the offense is life imprisonment,
the court may impose a sentence of life imprisonment without
possibility of release."
381
Petitioner's argument is based on his construction of the term
"[o]therwise." He argues that this term means that when the jury,
after retiring for deliberations, reports itself as unable to reach
a unanimous verdict, the sentencing determination passes to the
court.
As the dissent also concludes,
post, at 417-418,
petitioner's view of the statute is the better one. The phrase
"good cause" in § 3593(b)(2)(C) plainly encompasses events such as
juror disqualification, but cannot be read so expansively as to
include the jury's failure to reach a unanimous decision.
Nevertheless, the Eighth Amendment does not require that the jurors
be instructed as to the consequences of their failure to agree.
To be sure, we have said that the Eighth Amendment requires that
a sentence of death not be imposed arbitrarily. See,
e. g.,
Buchanan v.
Angelone, 522 U. S. 269, 275
(1998). In order for a capital sentencing scheme to pass
constitutional muster, it must perform a narrowing function with
respect to the class of persons eligible for the death penalty and
must also ensure that capital sentencing decisions rest upon an
individualized inquiry.
Ibid. The instruction that
petitioner requested has no bearing on what we have called the
"eligibility phase" of the capital sentencing process. As for what
we have called the "selection phase," our cases have held that in
order to satisfy the requirement that capital sentencing decisions
rest upon an individualized inquiry, a scheme must allow a "broad
inquiry" into all "constitutionally relevant mitigating evidence."
Id., at 276. Petitioner does not argue, nor could he, that
the District Court's failure to give the requested instruction
prevented the jury from considering such evidence.
In theory, the District Court's failure to instruct the jury as
to the consequences of deadlock could give rise to an Eighth
Amendment problem of a different sort: We also have held that a
jury cannot be "affirmatively misled regarding its
382
role in the sentencing process."
Romano v.
Oklahoma,
512 U. S. 1, 9 (1994). In no way, however, was the jury
affirmatively misled by the District Court's refusal to give
petitioner's proposed instruction. The truth of the matter is that
the proposed instruction has no bearing on the jury's role in the
sentencing process. Rather, it speaks to what happens in the event
that the jury is unable to fulfill its role-when deliberations
break down and the jury is unable to produce a unanimous sentence
recommendation. Petitioner's argument, although less than clear,
appears to be that a death sentence is arbitrary within the meaning
of the Eighth Amendment if the jury is not given any bit of
information that might possibly influence an individual juror's
voting behavior. That contention has no merit. We have never
suggested, for example, that the Eighth Amendment requires a jury
be instructed as to the consequences of a breakdown in the
deliberative process. On the contrary, we have long been of the
view that "[t]he very object of the jury system is to secure
unanimity by a comparison of views, and by arguments among the
jurors themselves."
Allen v.
United States, 164 U. S. 492, 501
(1896).5 We further have recognized that in a capital sentencing
proceeding, the Government has "a strong interest in having the
jury express the conscience of the community on the ultimate
question of life or death."
Lowenfield v.
Phelps,
484 U. S. 231,
238 (1988) (citation and internal quotation marks omitted). We are
of the view that a charge to the jury of the sort proposed by
petitioner might well have the effect of undermining this strong
governmental interest.6
5 We have thus approved of the use of a supplemental charge to
encourage a jury reporting itself as deadlocked to engage in
further deliberations, see
Allen v.
United States,
164 U. S., at 501, even capital sentencing juries, see
Lowenfield v.
Phelps, 484 U. S. 231, 237-241
(1988).
6 It is not insignificant that the Courts of Appeals to have
addressed this question, as far as we are aware, are uniform in
rejecting the argument that the Constitution requires an
instruction as to the consequences of a jury's inability to agree.
See,
e. g., Coe v.
Bell, 161 F.3d
320, 339-340
383
We similarly decline to exercise our supervisory powers to
require that an instruction on the consequences of deadlock be
given in every capital case. In drafting the Act, Congress chose
not to require such an instruction. Cf. § 3593(f) (district court
"shall instruct the jury that, in considering whether a sentence of
death is justified, it shall not consider the race, color,
religious beliefs, national origin, or sex of the defendant or of
any victim and that the jury is not to recommend a sentence of
death unless it has concluded that it would recommend a sentence of
death for the crime in question no matter what the race, color,
religious beliefs, national origin, or sex of the defendant or of
any victim may be"). Petitioner does point us to a decision from
the New Jersey Supreme Court requiring, in an exercise of that
court's supervisory authority, that the jury be informed of the
sentencing consequences of nonunanimity. See
New Jersey v.
Ramseur, 106 N. J. 123, 304-315, 524 A. 2d 188, 280-286
(1987). Of course, New Jersey's practice has no more relevance to
our decision than the power to persuade. Several other States have
declined to require a similar instruction. See,
e. g., North
Carolina v.
McCarver, 341 N. C. 364, 394, 462 S. E. 2d
25, 42 (1995);
Brogie v.
Oklahoma, 695 P. 2d 538,547
(Okla. Crim. App. 1985);
Calhoun v.
Maryland, 297 Md.
563, 593-595, 468 A. 2d 45, 58-60 (1983);
Coulter v.
Alabama, 438 So. 2d 336, 346 (Ala. Crim. App. 1982);
Justus v.
Virginia, 220 Va. 971, 979, 266 S. E. 2d
87, 92-93 (1980). We find the reasoning of the Virginia Supreme
Court in
Justus far more persuasive than that of the New
Jersey Supreme Court, especially in light of the strong
governmental interest that we have recognized in having the jury
render a unanimous sentence recommendation:
(CA6 1998);
Green v.
French, 143 F.3d
865,890
(CA4 1998);
United States v.
Chandler, 996 F.2d
1073, 1088-1089 (CAll 1993);
Evans v.
Thompson,
881 F.2d
117, 123-124
(CA4 1989). Indeed, the Fifth Circuit, in
the alternative, reached the same conclusion in this very case. See
132 F.3d
232, 245 (1998).
384
"The court properly refused an instruction offered by the
defendant which would have told the jury that if it could not reach
agreement as to the appropriate punishment, the court would dismiss
it and impose a life sentence. While this was a correct statement
of law it concerned a procedural matter and was not one which
should have been the subject of an instruction. It would have been
an open invitation for the jury to avoid its responsibility and to
disagree." Id., at 979, 266 S. E. 2d, at 92.
In light of the legitimate reasons for not instructing the jury
as to the consequences of deadlock, and in light of congressional
silence, we will not exercise our supervisory powers to require
that an instruction of the sort petitioner sought be given in every
case. Cf.
Shannon v.
United States, 512 U. S. 573,
587 (1994).
B
Petitioner further argues that the jury was led to believe that
if it could not reach a unanimous sentence recommendation he would
receive a judge-imposed sentence less severe than life
imprisonment, and his proposed instruction as to the consequences
of deadlock was necessary to correct the jury's erroneous
impression. Moreover, he contends that the alleged confusion
independently warrants reversal of his sentence under the Due
Process Clause, the Eighth Amendment, and the Act itself. He
grounds his due process claim in the assertion that sentences may
not be based on materially untrue assumptions, his Eighth Amendment
claim in his contention that the jury is entitled to accurate
sentencing information, and his statutory claim in an argument that
jury confusion over the available sentencing options constitutes an
"arbitrary factor" under § 3595(c)(2)(A).
To put petitioner's claim in the proper context, we must briefly
review the jury instructions and sentencing proce-
385
dures used at trial. After instructing the jury on the
aggravating and mitigating factors and explaining the process of
weighing those factors, the District Court gave the following
instructions pertaining to the jury's sentencing
recommendation:
"Based upon this consideration, you the jury, by unanimous vote,
shall recommend whether the defendant should be sentenced to death,
sentenced to life imprisonment without the possibility of release,
or sentenced to some other lesser sentence.
"If you unanimously conclude that the aggravating factors found
to exist sufficiently outweigh any mitigating factor or factors
found to exist, or in the absence of any mitigating factors, that
the aggravating factors are themselves sufficient to justify a
sentence of death, you may recommend a sentence of death. Keep in
mind, however, that regardless of your findings with respect to
aggravating and mitigating factors, you are never required to
recommend a death sentence.
"If you recommend the imposition of a death sentence, the court
is required to impose that sentence. If you recommend a sentence of
life without the possibility of release, the court is required to
impose that sentence. If you recommend that some other lesser
sentence be imposed, the court is required to impose a sentence
that is authorized by the law. In deciding what recommendation to
make, you are not to be concerned with the question of what
sentence the defendant might receive in the event you determine not
to recommend a death sentence or a sentence of life without the
possibility of release. That is a matter for the court to decide in
the event you conclude that a sentence of death or life without the
possibility of release should not be recommended." App.43-44.
386
The District Court also provided the jury with four decision
forms on which to record its recommendation.7 In its instructions
explaining those forms, the District Court told the jury that its
choice of form depended on its recommendation:
"The forms are self-explanatory: Decision Form A should be used
if you determine that a sentence of death should not be imposed
because the government failed to prove beyond a reasonable doubt
the existence of the required intent on the part of the defendant
or a required aggravating factor. Decision Form B should be used if
you unanimously recommend that a sentence of death should be
imposed. Decision Form C or Decision Form D should be used if you
determine that a sentence of death should not be imposed because:
(1) you do not unanimously find that the aggravating factor or
factors found to exist sufficiently outweigh any mitigating factor
or factors found to exist; (2) you do not unanimously find that the
aggravating factor or factors found to exist are
7 The decision forms read as follows:
"DECISION FORM A
"We the jury have determined that a sentence of death should not
be imposed because the government has failed to prove beyond a
reasonable doubt the existence of the required intent on the part
of the defendant or a required aggravating factor."
"DECISION FORM B
"Based upon consideration of whether the aggravating factor or
factors found to exist sufficiently outweigh any mitigating factor
or factors found to exist, or in the absence of any mitigating
factors, whether the aggravating factor or factors are themselves
sufficient to justify a sentence of death, we recommend, by
unanimous vote, that a sentence of death be imposed."
"DECISION FORM C
"We the jury recommend, by unanimous verdict, a sentence of life
imprisonment without the possibility of release."
"DECISION FORM D
"We the jury recommend some other lesser sentence." App.
57-59.
387
themselves sufficient to justify a sentence of death where no
mitigating factor has been found to exist; or (3) regardless of
your findings with respect to aggravating and mitigating factors
you are not unanimous in recommending that a sentence of death
should be imposed. Decision Form C should be used if you
unanimously recommend that a sentence of imprisonment for life
without the possibility of release should be imposed.
"Decision Form D should be used if you recommend that some other
lesser sentence should be imposed." Id., at 47-48.
Petitioner maintains that the instructions in combination with
the decision forms led the jury to believe that if it failed to
recommend unanimously a sentence of death or life imprisonment
without the possibility of release, then it would be required to
use Decision Form D and the court would impose a sentence less than
life imprisonment.8 The scope of our review is shaped by whether
petitioner properly raised and preserved an objection to the
instructions at trial. A party generally may not assign error to a
jury instruction if he fails to object before the jury retires or
to "stat[e] distinctly the matter to which that party objects and
the grounds of the objection." Fed. Rule Crim. Proc. 30. These
timeliness and specificity requirements apply during the sentencing
phase as well as the trial. See 18 U. S. C. § 3595(c)(2)(C); see
also Fed. Rules Crim. Proc. 1, 54(a). They enable a trial court to
correct any instructional mis-
8 Petitioner does not argue that the District Court's
instructions on the lesser sentence option, standing alone,
constituted reversible error although the parties agree that, after
the jury found petitioner guilty of kidnaping resulting in death,
the only possible sentences were death and a life sentence. See
Brief for Petitioner 18-19; Brief for United States 13, n. 2; see
also 18 U. S. C. § 1201. Petitioner made such an argument below;
the Fifth Circuit, however, concluded that the instructions as to
the lesser sentence option did not rise to the level of plain
error. 132 F. 3d, at 246-248.
388
takes before the jury retires and in that way help to avoid the
burdens of an unnecessary retrial. While an objection in a directed
verdict motion before the jury retires can preserve a claim of
error,
Leary v.
United States, 395 U. S. 6, 32 (1969),
objections raised after the jury has completed its deliberations do
not. See
Singer v.
United States, 380 U. S. 24, 38 (1965);
Lopez v.
United States, 373 U. S. 427, 436
(1963); cf.
United States v.
Socony- Vacuum Oil Co.,
310 U. S. 150,
238-239 (1940). Nor does a request for an instruction before the
jury retires preserve an objection to the instruction actually
given by the court. Otherwise, district judges would have to
speculate on what sorts of objections might be implied through a
request for an instruction and issue rulings on "implied"
objections that a defendant never intends to raise. Such a rule
would contradict Rule 30's mandate that a party state distinctly
his grounds for objection.
Petitioner did not voice the objections to the instructions and
decision forms that he now raises before the jury retired. See App.
16-33. While Rule 30 could be read literally to bar any review of
petitioner's claim of error, our decisions instead have held that
an appellate court may conduct a limited review for plain error.
Fed. Rule Crim. Proc. 52(b);
Johnson v.
United
States, 520 U. S.
461, 465-466 (1997);
United States v.
Olano,
507 U. S. 725,
731-732 (1993);
Lopez, supra, at 436-437;
Namet v.
United States, 373 U. S. 179, 190-191
(1963). Petitioner, however, contends that the Federal Death
Penalty Act creates an exception. He relies on language in the Act
providing that an appellate court shall remand a case where it
finds that "the sentence of death was imposed under the influence
of passion, prejudice, or any other arbitrary factor." §
3595(c)(2)(A). According to petitioner, the alleged jury confusion
over the available sentencing options is an arbitrary factor and
thus warrants resentencing even if he did not properly preserve the
objection.
This argument rests on an untenable reading of the Act.
The statute does not explicitly announce an exception to
389
plain-error review, and a congressional intent to create such an
exception cannot be inferred from the overall scheme. Statutory
language must be read in context and a phrase "gathers meaning from
the words around it."
Jarecki v. G.
D. Searle &
Co., 367 U. S.
303, 307 (1961); see also
Gustafson v.
Alloyd
Co., 513 U. S.
561, 575 (1995). Here, the same subsection that petitioner
relies upon further provides that reversal is warranted where "the
proceedings involved any other legal error requiring reversal of
the sentence that was properly preserved for appeal under the rules
of criminal procedure." § 3595(c)(2)(C). This language makes clear
that Congress sought to impose a timely objection requirement at
sentencing and did not intend to equate the phrase "arbitrary
factor" with legal error. Petitioner's broad interpretation of §
3595(c)(2)(A) would drain § 3595(c)(2)(C) of any independent
meaning.
We review the instructions, then, for plain error. Under that
review, relief is not warranted unless there has been (1) error,
(2) that is plain, and (3) affects substantial rights.
Johnson,
supra, at 467;
Olano, supra, at 732. Appellate review
under the plain-error doctrine, of course, is circumscribed and we
exercise our power under Rule 52(b) sparingly. See
United
States v.
Young, 470 U. S. 1, 15 (1985);
United States v.
Frady, 456 U. S. 152, 163, and
n. 14 (1982); cf.
Henderson v.
Kibbe, 431 U. S. 145, 154 (1977)
("It is the rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made
in the trial court"). An appellate court should exercise its
discretion to correct plain error only if it "seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings."
Olano, supra, at 732 (internal quotation marks
omitted);
Young, supra, at 15;
United States v.
Atkinson, 297 U. S. 157, 160 (1936).
Petitioner's argument-which depends on the premise that the
instructions and decision forms led the jury to believe that it did
not have to recommend unanimously a lesser
390
sentence-falls short of satisfying even the first requirement of
the plain-error doctrine, for we cannot see that any error
occurred. We have considered similar claims that allegedly
ambiguous instructions caused jury confusion. See,
e.
g., Victor v.
Nebraska, 511 U. S. 1 (1994);
Estelle v.
McGuire, 502 U. S. 62 (1991);
Boyde v.
California, 494 U. S. 370 (1990). The
proper standard for reviewing such claims is "'whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way' that violates the Constitution."
Estelle,
supra, at 72 (quoting
Boyde, supra, at 380); see also
Victor, supra, at 6 (applying reasonable likelihood standard
to direct review of state criminal conviction).9
There is no reasonable likelihood that the jury applied the
instructions incorrectly. The District Court did not expressly
inform the jury that it would impose a lesser sentence in case of
deadlock. It simply told the jury that, if it recommended a lesser
sentence, the court would impose a sentence "authorized by the
law." App. 44. Nor did the District Court expressly require the
jury to select Decision Form D if it could not reach agreement.
Instead, it exhorted the jury "to discuss the issue of punishment
with one
9 Petitioner concedes that the
Boyde standard applies to
the extent that he is advancing a constitutional claim, but relying
on our prior decision in
Andres v.
United States,
333 U. S. 740,
752 (1948), he contends that a more lenient standard applies to the
extent that he seeks relief under the statute directly. Our
decisions in
Boyde and
Estelle, however, foreclose
that reading of
Andres. In
Boyde we noted that our
prior decisions, including
Andres, had been "less than
clear" in articulating a single workable standard for evaluating
claims that an instruction prevented the jury's consideration of
constitutionally relevant evidence. 494 U. S., at 378. In order to
supply "a single formulation for this Court and other courts to
employ in deciding this kind of federal question," we announced the
"reasonable likelihood" standard.
Id., at 379. We made this
same point later in
Estelle, noting that "[i]n
Boyde
... we made it a point to settle on a single standard of review
for jury instructions-the 'reasonable likelihood' standard-after
considering the many different phrasings that had previously been
used by this Court." 502 U. S., at 72-73, n. 4.
391
another in an effort to reach agreement, if you can do so."
Id., at 46.
Notwithstanding the absence of an explicit instruction on the
consequences of nonunanimity, petitioner identifies several
passages which, he believes, support the inference that the jury
was confused on this point. He trains on that portion of the
instructions telling the jurors that the court would decide the
sentence if they did not recommend a sentence of death or life
without the possibility of release. Petitioner argues that this
statement, coupled with two earlier references to a "lesser
sentence" option, caused the jurors to infer that the District
Court would impose a lesser sentence if they could not unanimously
agree on a sentence of death or life without the possibility of
release. He maintains that this inference is strengthened by a
later instruction: "In order to bring back a verdict recommending
the punishment of death or life without the possibility of release,
all twelve of you must unanimously vote in favor of such specific
penalty."
Id., at 45. According to petitioner, the failure
to mention the "lesser sentence" option in this statement strongly
implied that, in contradistinction to the first two options, the
"lesser sentence" option did not require jury unanimity.
Petitioner parses these passages too finely. Our decisions
repeatedly have cautioned that instructions must be evaluated not
in isolation but in the context of the entire charge. See,
e.
g., Bryan v.
United States, 524 U. S. 184, 199
(1998);
United States v.
Park, 421 U. S. 658, 674
(1975);
Cupp v.
Naughten, 414 U. S. 141, 147
(1973);
Boyd v.
United States, 271 U. S. 104, 107
(1926). We agree with the Fifth Circuit that when these passages
are viewed in the context of the entire instructions, they lack
ambiguity and cannot be given the reading that petitioner advances.
See 132 F. 3d, at 244. We previously have held that instructions
that might be ambiguous in the abstract can be cured when read in
conjunction with other instructions.
Bryan, supra, at 199;
Victor,
392
supra, at 14-15;
Estelle, supra, at 74-75.
Petitioner's claim is far weaker than those we evaluated in
Bryan, Victor, and
Estelle because the jury in this
case received an explicit instruction that it had to be unanimous.
Just prior to its admonition that the jury should not concern
itself with the ultimate sentence if it does not recommend death or
life without the possibility of release, the trial court expressly
instructed the jury in unambiguous language that any sentencing
recommendation had to be by a unanimous vote. Specifically, it
stated that "you the jury, by unanimous vote, shall recommend
whether the defendant should be sentenced to death, sentenced to
life imprisonment without the possibility of release, or sentenced
to some other lesser sentence." App.43. Other instructions, by
contrast, specified when the jury did not have to act unanimously.
For example, the District Court explicitly told the jury that its
findings on the mitigating circumstances, unlike those on the
aggravating circumstances, did not have to be unanimous.1o To be
sure, the District Court could have used the phrase "unanimously"
more frequently. But when read alongside an unambiguous charge that
any sentencing recommendation be unanimous and other instructions
explicitly identifying when the jury need not be unanimous, the
passages identified by petitioner do not create a reasonable
likelihood that the jury believed that deadlock would cause the
District Court to impose a lesser sentence.
10 The relevant portion of the instruction read: "You will also
recall that I previously told you that all twelve of you had to
unanimously agree that a particular aggravating circumstance was
proved beyond a reasonable doubt before you consider it. Quite the
opposite is true with regard to mitigating factors. A finding with
respect to a mitigating factor may be made by anyone or more of the
members of the jury, and any member who finds by a preponderance of
the evidence the existence of a mitigating factor may consider such
factor established for his or her weighing of aggravating and
mitigating factors regardless of the number of other jurors who
agree that such mitigating factor has been established." App.
43.
393
Petitioner also relies on alleged ambiguities in the decision
forms and the explanatory instructions. He stresses the fact that
Decision Form D (lesser sentence recommendation), unlike Decision
Forms B (death sentence) and C (life without the possibility of
release), did not contain the phrase "by unanimous vote" and
required only the fore person's signature. These features of
Decision Form D, according to petitioner, led the jury to conclude
that nonunanimity would result in a lesser sentence. According to
petitioner, the instructions accompanying Decision Form D, unlike
those respecting Decision Forms Band C, did not mention unanimity,
thereby increasing the likelihood of confusion.
With respect to this aspect of petitioner's argument, we agree
with the Fifth Circuit that "[a]lthough the verdict forms standing
alone could have persuaded a jury to conclude that unanimity was
not required for the lesser sentence option, any confusion created
by the verdict forms was clarified when considered in light of the
entire jury instruction." 132 F. 3d, at 245. The District Court's
explicit instruction that the jury had to be unanimous and its
exhortation to the jury to discuss the punishment and attempt to
reach agreement, App. 46, make it doubtful that the jury thought it
was compelled to employ Decision Form D in the event of
disagreement.
Petitioner also places too much weight on the fact that Decision
Form D required only the foreperson's signature. Although it only
contained a space for the foreperson's signature, Form D, like the
others, used the phrase "We the jury recommend ... ," thereby
signaling that Form D represented the jury's recommendation.
Id., at 59. Moreover, elsewhere, the jury foreperson alone
signed the jury forms to indicate the jury's unanimous agreement.
Specifically, only the jury foreperson signed the special findings
form on which the jury was required to indicate its unanimous
agreement that an aggravating factor had been proved beyond a
reasonable doubt.
Id., at 51-53. In these circumstances, we
do
394
not think that the decision forms or accompanying instructions
created a reasonable likelihood of confusion over the effect of
nonunanimity.ll
Even assuming,
arguendo, that an error occurred (and that
it was plain), petitioner cannot show that it affected his
substantial rights. Any confusion among the jurors over the effect
of a lesser sentence recommendation was allayed by the District
Court's admonition that the jury should not concern itself with the
effect of such a recommendation. See
supra, at 390 (quoting
App. 44). The jurors are presumed to have followed these
instructions. See
Shannon, 512 U. S., at 585;
Richardson v.
Marsh, 481 U. S. 200, 206
(1987). Even if the jurors had some lingering doubts about the
effect of deadlock, therefore, the instructions made clear that
they should set aside their concerns and either report that they
were unable to reach agreement or recommend a lesser sentence if
they believed that this was the only option.
Moreover, even assuming that the jurors were confused over the
consequences of deadlock, petitioner cannot show the confusion
necessarily worked to his detriment. It is just as likely that the
jurors, loath to recommend a lesser sentence, would have
compromised on a sentence of life imprisonment as on a death
sentence. Where the effect of an al-
11 Petitioner also urges us to take cognizance of two affidavits
prepared after the jury had returned its sentencing recommendation.
One affidavit, attached to petitioner's new trial motion, was
executed by an investigator for the federal public defender after a
juror had contacted the public defender's office.
Id., at
66-68. The other affidavit, attached to petitioner's motion to
reconsider the District Court's order denying his motion for a new
trial, was executed by one of the jurors.
Id., at 78-80. The
Fifth Circuit ruled that petitioner could not rely on these
affidavits to undermine the jury's sentencing recommendation. 132
F. 3d, at 245-246. Petitioner did not raise this independent
determination in any of his questions presented, and we do not
believe that the issue is fairly included within them. We therefore
decline review of this ruling by the Fifth Circuit. See this
Court's Rule 14.1(a);
Berkemer v.
McCarty, 468 U. S. 420, 443, n. 38
(1984).
395
leged error is so uncertain, a defendant cannot meet his burden
of showing that the error actually affected his substantial rights.
Cf.
Romano, 512 U. S., at 14. In
Romano, we
considered a similar argument, namely, that jurors had disregarded
a trial judge's instructions and given undue weight to certain
evidence. In rejecting that argument, we noted that, even assuming
that the jury disregarded the trial judge's instructions, "[i]t
seems equally plausible that the evidence could have made the
jurors more inclined to impose a death sentence, or it could have
made them less inclined to do so."
Ibid. Any speculation on
the effect of a lesser sentence recommendation, like the evidence
in
Romano, would have had such an indeterminate effect on
the outcome of the proceeding that we cannot conclude that any
alleged error in the District Court's instructions affected
petitioner's substantial rights. See
Park, 421 U. S., at
676;
Lopez, 373 U. S., at 436-437.
III A
Apart from the claimed instructional error, petitioner argues
that the nonstatutory aggravating factors found and considered by
the jury, see n. 2,
supra, were vague, overbroad, and
duplicative in violation of the Eighth Amendment, and that the
District Court's error in allowing the jury to consider them was
not harmless beyond a reasonable doubt.
The Eighth Amendment, as the Court of Appeals correctly
recognized, see 132 F. 3d, at 250, permits capital sentencing
juries to consider evidence relating to the victim's personal
characteristics and the emotional impact of the murder on the
victim's family in deciding whether an eligible defendant should
receive a death sentence. See
Payne v.
Tennessee,
501 U. S. 808,
827 (1991) ("A State may legitimately conclude that evidence about
the victim and about the impact of the murder on the victim's
family is relevant to the jury's decision as to whether or not the
death penalty should be im-
396
Opinion of THOMAS, J.
posed. There is no reason to treat such evidence differently
than other relevant evidence is treated"). Petitioner does not
dispute that, as a general matter, such evidence is appropriate for
the sentencing jury's consideration. See Reply Brief for Petitioner
15. His objection is that the two nonstatutory aggravating factors
were duplicative, vague, and overbroad so as to render their use in
this case unconstitutional, a point with which the Fifth Circuit
agreed, 132 F. 3d, at 250-251, although it ultimately ruled in the
Government's favor on the ground that the alleged error was
harmless beyond a reasonable doubt,
id., at 251-252.
The Government here renews its argument that the nonstatutory
aggravators in this case were constitutionally valid. At oral
argument, however, it was suggested that this case comes to us on
the assumption that the nonstatutory aggravating factors were
invalid because the Government did not cross-appeal on the
question. Tr. of Oral Arg. 25. As the prevailing party, the
Government is entitled to defend the judgment on any ground that it
properly raised below. See,
e. g., El Paso Natural
Gas Co. v.
Neztsosie, 526 U. S. 473, 479 (1999);
Northwest Airlines, Inc. v.
County of Kent, 510 U. S. 355, 364 (1994)
("A prevailing party need not cross-petition to defend a judgment
on any ground properly raised below, so long as that party seeks to
preserve, and not to change, the judgment"). It further was
suggested that because we granted certiorari on the Government's
rephrasing of petitioner's questions and because the third
question-"whether the court of appeals correctly held that the
submission of invalid nonstatutory aggravating factors was harmless
beyond a reasonable doubt"-presumes error, we must assume the
nonstatutory aggravating factors were erroneous. Tr. of Oral Arg.
25-27. We are not convinced that the reformulated question presumes
error. The question whether the nonstatutory aggravating factors
were constitutional is fairly included within the third question
pre-
397
sented-we might answer "no" to the question "[w]hether the Court
of Appeals correctly held that the submission of invalid
nonstatutory aggravating factors was harmless beyond a reasonable
doubt," 525 U. S. 809 (1998), by explaining that the Fifth Circuit
was incorrect in holding that there was error. Without a doubt, the
Government would have done better to call our attention to the fact
that it planned to argue that the nonstatutory aggravating factors
were valid at the petitioning stage. But it did not affirmatively
concede that the nonstatutory aggravators were invalid, see Brief
in Opposition 18-22, and absent such a concession, we think that
the Government's argument is properly presented.12
12 The dissent would treat this aspect of the Government's
argument as waived.
Post, at 420-421, n. 24. As JUSTICE
GINSBURG explained, for a unanimous Court, in
Caterpillar
Inc. v.
Lewis, 519 U. S. 61 (1996):
"Under this Court's Rule 15.2, a nonjurisdictional argument not
raised in a respondent's brief in opposition to a petition for a
writ of certiorari
'may be deemed waived.'''
Id., at
75, n. 13 (emphasis added). But we have not done so when the issue
not raised in the brief in opposition was "predicate to an
intelligent resolution of the question presented."
Ohio v.
Robinette, 519
U. S. 33, 38 (1996) (internal quotation marks omitted); see
also
Caterpillar, 519 U. S., at 75, n. 13. In those
instances, we have treated the issue not raised in opposition as
fairly included within the question presented. This is certainly
such a case. Assessing the error (including whether there was error
at all) is essential to an intelligent resolution of whether any
such error was harmless. Moreover, here, as in
Caterpillar,
"[t]he parties addressed the issue in their briefs and at oral
argument."
Ibid. By contrast, in the cases that the dissent
looks to for support for its position, there were good reasons to
decline to exercise our discretion. In
Roberts v.
Galen
of Va., Inc., 525
U. S. 249, 253-254 (1999)
(per curiam), the "claims [we
declined to consider did] not appear to have been sufficiently
developed below for us to assess them," and in
South Central
Bell Telephone Co. v.
Alabama, 526 U. S. 160, 171
(1999), the argument respondent raised for the first time in its
merits brief was "so far-reaching an argument" that "[w]e would
normally expect notice [of it]," especially when, unlike this case,
the respondent's argument did not appear to have been raised or
considered below.
398
Opinion of THOMAS, J.
We first address petitioner's contention that the two
nonstatutory aggravating factors were impermissibly duplicative.
The Fifth Circuit reasoned that "[t]he plain meaning of the term
'personal characteristics,' used in [nonstatutory aggravator]
3(C), necessarily includes 'young age, slight stature,
background, and unfamiliarity,' which the jury was asked to
consider in 3(B)." 132 F. 3d, at 250. The problem, the court
thought, was that this duplication led to "double counting" of
aggravating factors. Following a Tenth Circuit decision,
United
States v.
McCullah, 76 F.3d
1087, 1111 (1996), the Fifth Circuit was of the view that in a
weighing scheme, "double counting" has a tendency to skew the
process so as to give rise to the risk of an arbitrary, and thus
unconstitutional, death sentence. 132 F. 3d, at 251. In the Fifth
Circuit's words, there may be a thumb on the scale in favor of
death "[i]f the jury has been asked to weigh the same aggravating
factor twice."
Ibid.
We have never before held that aggravating factors could be
duplicative so as to render them constitutionally invalid, nor have
we passed on the "double counting" theory that the Tenth Circuit
advanced in
McCullah 13 and the Fifth Circuit appears to
have followed here. What we have said is that the weighing process
may be impermissibly skewed if the sentencing jury considers an
invalid factor. See
Stringer v.
Black, 503 U. S. 222, 232
(1992). Petitioner's argument (and the reasoning of the Fifth and
Tenth Circuits) would have us reach a quite different
proposition-that if two aggravating factors are "duplicative," then
the weighing process necessarily is skewed, and the factors are
therefore invalid.
Even accepting, for the sake of argument, petitioner's "double
counting" theory, there are nevertheless several
13 The Tenth Circuit, in a decision subsequent to
McCullah, has emphasized that factors do not impermissibly
overlap unless one "necessarily subsumes" the other.
Cooks
v.
Ward, 165 F.3d
1283, 1289 (1998).
399
problems with the Fifth Circuit's application of the theory in
this case. The phrase "personal characteristics" as used in factor
3(C) does not obviously include the specific personal
characteristics listed in 3(B)-"young age, her slight stature, her
background, and her unfamiliarity with San Angelo"especially in
light of the fact that
3(C) went on to refer to the impact
of the crime on the victim's family. In the context of considering
the effect of the crime on the victim's family, it would be more
natural to understand "personal characteristics" to refer to those
aspects of the victim's character and personality that her family
would miss the most. More important, to the extent that there was
any ambiguity arising from how the factors were drafted, the
Government's argument to the jury made clear that 3(B) and
3(C) went to entirely different areas of aggravation-the
former clearly went to victim vulnerability while the latter
captured the victim's individual uniqueness and the effect of the
crime on her family. See,
e. g., 25 Record 2733-2734
("[Y]ou can consider [the victim's] young age, her slight stature,
her background, her unfamiliarity with the San Angelo area .... She
is barely five feet tall [and] weighs approximately 100 pounds.
[She is] the ideal victim");
id., at 2734 ("[Y]ou can
consider [the victim's] personal characteristics and the effects of
the instant offense on her family .... You heard about this young
woman, you heard about her from her mother, you heard about her
from her friends that knew her. She was special, she was unique,
she was loving, she was caring, she had a lot to offer this
world"). As such, even if the phrase "personal characteristics" as
used in factor
3(C) was understood to include the
specific personal characteristics listed in 3(B), the factors as a
whole were not duplicativeat best, certain evidence was relevant to
two different aggravating factors. Moreover, any risk that the
weighing process would be skewed was eliminated by the District
Court's instruction that the jury "should not simply count the
number of aggravating and mitigating factors and reach a deci-
400
Opinion of THOMAS, J.
sion based on which number is greater [but rather] should
consider the weight and value of each factor." App.45.
2
We also are of the view that the Fifth Circuit incorrectly
concluded that factors 3(B) and
3(C) were unconstitutionally
vague. In that court's view, the nonstatutory aggravating factors
challenged here "fail[ed] to guide the jury's discretion, or [to]
distinguish this murder from any other murder." 132 F. 3d, at 251.
The Court of Appeals, relying on our decision in
Maynard v.
Cartwright, 486 U. S. 356, 361-362
(1988), also was of the opinion that "[t]he use of the terms
'background,' 'personal characteristics,' and 'unfamiliarity'
without further definition or instruction left the jury with ...
open-ended discretion." 132 F. 3d, at 251 (internal quotation marks
omitted).
Ensuring that a sentence of death is not so infected with bias
or caprice is our "controlling objective when we examine
eligibility and selection factors for vagueness."
Tuilaepa
v.
California, 512 U. S. 967, 973
(1994). Our vagueness review, however, is "quite deferential."
Ibid. As long as an aggravating factor has a core meaning
that criminal juries should be capable of understanding, it will
pass constitutional muster.
Ibid. Assessed under this
deferential standard, the factors challenged here surely are not
vague. The jury should have had no difficulty understanding that
factor 3(B) was designed to ask it to consider whether the victim
was especially vulnerable to petitioner's attack. Nor should it
have had difficulty comprehending that factor
3(C) asked it
to consider the victim's personal traits and the effect of the
crime on her family.14 Even if the factors as written
14 Petitioner argues that the term "personal characteristics"
was so vague that the jury may have thought it could consider the
victim's race and the petitioner's race under factor
3(e).
In light of the remainder of the factor and the Government's
argument with respect to the factor, we fail to see that
possibility. In any event, in accordance with the Death
401
were somewhat vague, the Fifth Circuit was wrong to conclude
that the factors were not given further definition, see 132 F. 3d,
at 251; as we have explained, the Government's argument made
absolutely clear what each nonstatutory factor meant. 15
3
Finally, we turn to petitioner's contention that the challenged
nonstatutory factors were overbroad. An aggravating factor can be
overbroad if the sentencing jury "fairly could conclude that an
aggravating circumstance applies to
every defendant eligible
for the death penalty."
Arave v.
Creech, 507 U. S. 463, 474
(1993). We have not, however, specifically considered what it means
for a factor to be overbroad when it is important only for
selection purposes and especially when it sets forth victim
vulnerability or victim impact evidence. Of course, every murder
will have an impact on the victim's family and friends and victims
are often chosen because of their vulnerability. It might seem,
then, that the factors 3(B) and
3(C) apply to every eligible
defendant and thus fall within the Eighth Amendment's proscription
against overbroad factors. But that cannot be correct; if it were,
we would not have decided
Payne as we did. Even though the
concepts of victim impact and victim vulnerability may well
be relevant in every case,
evidence of victim vulnerability
and victim impact in a particular case is inherently
individualized. And such evidence is surely relevant to the
selection phase decision, given that the sentencer
Penalty Act's explicit command in § 3593(f), the District Court
instructed the jury not to consider race at all in reaching its
decision. App. 47. Jurors are presumed to have followed their
instructions. See
Richardson
15We reiterate the point we made in
Tuilaepa v.
California, 512 U. S. 967 (1994)-we
have held only a few, quite similar factors vague, see,
e.
g., Maynard v.
Cartwright, 486 U. S. 356 (1988)
(whether murder was "especially heinous, atrocious, or cruel"),
while upholding numerous other factors against vagueness
challenges, see 512 U. S., at 974 (collecting cases).
402
should consider all of the circumstances of the crime in
deciding whether to impose the death penalty. See
Tuilaepa,
512 U. S., at 976.
What is of common importance at the eligibility and selection
stages is that "the process is neutral and principled so as to
guard against bias or caprice in the sentencing decision."
Id., at 973. So long as victim vulnerability and victim
impact factors are used to direct the jury to the individual
circumstances of the case, we do not think that principle will be
disturbed. Because factors 3(B) and
3(C) directed the jury
to the evidence specific to this case, we do not think that they
were overbroad in a way that offended the Constitution.
B
The error in this case, if any, rests in loose drafting of the
nonstatutory aggravating factors; as we have made clear, victim
vulnerability and victim impact evidence are appropriate subjects
for the capital sentencer's consideration. Assuming that use of
these loosely drafted factors was indeed error, we conclude that
the error was harmless.
Harmless-error review of a death sentence may be performed in at
least two different ways. An appellate court may choose to consider
whether absent an invalid factor, the jury would have reached the
same verdict or it may choose instead to consider whether the
result would have been the same had the invalid aggravating factor
been precisely defined. See
Clemons v.
Mississippi,
494 U. S. 738,
753-754 (1990). The Fifth Circuit chose to perform the first sort
of analysis, and ultimately concluded that the jury would have
returned a recommendation of death even had it not considered the
two supposedly invalid nonstatutory aggravating factors:
"After removing the offensive non-statutory aggravating factors
from the balance, we are left with two
403
statutory aggravating factors and eleven mitigating factors to
consider when deciding whether, beyond a reasonable doubt, the
death sentence would have been imposed had the invalid aggravating
factors never been submitted to the jury. At the sentencing
hearing, the government placed great emphasis on the two statutory
aggravating factors found unanimously by the juryJones caused the
death of the victim during the commission of the offense of
kidnapping; and the offense was committed in an especially heinous,
cruel, and depraved manner in that it involved torture or serious
physical abuse of the victim. Under part two of the Special
Findings Form, if the jury had failed to find that the government
proved at least one of the statutory aggravating factors beyond a
reasonable doubt, then the deliberations would have ceased leaving
the jury powerless to recommend the death penalty. Therefore, the
ability of the jury to recommend the death penalty hinged on a
finding of a least one statutory aggravating factor. Conversely,
jury findings regarding the non-statutory aggravating factors were
not required before the jury could recommend the death penalty.
After removing the two non-statutory aggravating factors from the
mix, we conclude that the two remaining statutory aggravating
factors unanimously found by the jury support the sentence of
death, even after considering the eleven mitigating factors found
by one or more jurors. Consequently, the error was harmless because
the death sentence would have been imposed beyond a reasonable
doubt had the invalid aggravating factors never been submitted to
the jury." 132 F. 3d, at 252.
Petitioner claims that the court's analysis was so perfunctory
as to be infirm. His argument is largely based on the following
passage from
Clemons: "Under these circumstances, it would
require a detailed explanation based on the record for
404
us possibly to agree that the error in giving the invalid
'especially heinous' instruction was harmless." 494 U. S., at
753754 (emphasis added).
Clemons, however, involved quite
different facts. There, an "especially heinous" aggravating factor
was determined to be unconstitutionally vague. The only remaining
aggravating factor was that the murder was committed during a
robbery for pecuniary gain. The State had repeatedly emphasized the
invalid factor and said little about the valid aggravator. See
id., at 753. Despite this, all that the Mississippi Supreme
Court said was: "'We likewise are of the opinion beyond a
reasonable doubt that the jury's verdict would have been the same
with or without the "especially heinous, atrocious or cruel"
aggravating circumstance.'"
Ibid. (quoting
Clemons v.
State, 535 So. 2d 1354, 1364 (Miss. 1988)). We quite
understandably required a "detailed explanation based on the
record" in those circumstances.
The same "detailed explanation ... on the record" that we
required in
Clemons may not have been necessary in this
case. Cf.
Sochor v.
Florida, 504 U. S. 527, 540 (1992)
(there is no federal requirement that state courts adopt "a
particular formulaic indication" before their review for harmless
error will pass scrutiny). But even if the Fifth Circuit's
harmless-error analysis was too perfunctory, we think it plain,
under the alternative mode of harmless-error analysis, that the
error indeed was harmless beyond a reasonable doubt. See §
3595(c)(2) (federal death sentences are not to be set aside on the
basis of errors that are harmless beyond a reasonable doubt). Had
factors 3(B) and
3(C) been precisely defined in writing, the
jury surely would have reached the same recommendation as it did.
The Government's argument to the jury, see,
e. g., 25
Record 2733-2734, cured the nonstatutory factors of any infirmity
as written. We are satisfied that the jury in this case actually
understood what each factor was designed to put before it, and
therefore have
405
no doubt that the jury would have reached the same conclusion
had the aggravators been precisely defined in writing.
***
For the foregoing reasons, the judgment of the Court of Appeals
is affirmed.
It is so ordered.
JUSTICE GINSBURG, with whom JUSTICE STEVENS and JUSTICE SOUTER
join, and with whom JUSTICE BREYER joins as to Parts I, II, III,
and V, dissenting.
The Federal Death Penalty Act of 1994 (FDPA), 18 U. S. C. §§
3591-3598 (1994 ed. and Supp. III), establishes a complex regime
applicable when the Government seeks the ultimate penalty for a
defendant found guilty of an offense potentially punishable by
death. This case is pathmarking, for it is the first application of
the FDPA. Two questions, as I comprehend petitioner's core
objections, warrant prime attention.
First, when Congress specifies only two sentencing options for
an offense, death or life without possibility of release, must the
jury be told exactly that? Or, can a death decision stand despite
misleading trial court "lesser sentence" instructions,
specifically, instructions open to the construction that lack of a
unanimous jury vote for either life or death would allow the judge
to impose a sentence less severe than life in prison? Second, when
the jury is unable to agree on a unanimous recommendation in a case
in which death or life without possibility of release are the only
sentencing options, must the judge then impose the life sentence?
Or, is the judge required or permitted to impanel a second jury to
make the life or death decision?
The Court of Appeals for the Fifth Circuit confronted these two
questions and resolved both for the prosecution. The Fifth Circuit
also tolerated the trial court's submission of two nonstatutory
aggravating factors to the jury, although
406
the appeals court found those factors duplicative and vague.1
The lower courts' disposition for death, despite the flawed trial
proceedings, and this Court's tolerance of the flaws, disregard a
most basic guide: "[A]ccurate sentencing information is an
indispensable prerequisite to a [jury's] determination of whether a
defendant shall live or die."
Gregg v.
Georgia,
428 U. S. 153,
190 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.).
That "indispensable prerequisite" was not satisfied in this case. I
would reverse and remand so that the life or death decision may be
made by an accurately informed trier.
I
After authorizing the federal death penalty for a small category
of cases in 1988,2 Congress enacted comprehensive death penalty
legislation in 1994. See FDPA, 108 Stat.
1 The Court granted certiorari on three questions as phrased by
the United States:
"'1. Whether petitioner was entitled to a jury instruction that
the jury's failure to agree on a sentencing recommendation
automatically would result in a court-imposed sentence of life
imprisonment without possibility of release. 2. Whether there is a
reasonable likelihood that the jury instructions led the jury to
believe that deadlock on the penalty recommendation would
automatically result in a court-imposed sentence less severe than
life imprisonment. 3. Whether the Court of Appeals correctly held
that the submission of invalid nonstatutory aggravating factors was
harmless beyond a reasonable doubt.''' 525 U. S. 809 (1998); see
also Brief for United States I.
I think it fair and "'principled,'"
ante, at 402, to read
the indigent petitioner's arguments on the questions presented with
the willingness to overlook "loose drafting" that the Court
consistently shows in evaluating the Government's case. See,
e. g., ante, at 402; see also
ante, at
395-402 (adopting Government's merits brief arguments although
those arguments were not mentioned in the Brief in Opposition).
2The predecessor Anti-Drug Abuse Act of 1988 authorized the
death penalty for murder resulting from certain drug-related
offenses. See 21 U. S. C. §848(e). The FDPA states that its
procedures apply to "any [federal] offense for which a sentence of
death is provided," 18 U. S. C. § 3591(a)(2), but does not repeal
the 1988 Act, which differs in some respects. See,
e.
g., 21 U. S. C. §§848(q)(4)-(9) (mandatory appointment of
habeas counsel and provision of investigative and expert
services).
407
1959.3 Applicable to over 40 existing and newly declared
death-eligible offenses, see 18 U. S. C. § 3591; §§ 60005-60024,
108 Stat. 1970-1982,4 the FDPA prescribes penalty-phase procedures;
principally, it provides for a separate sentencing hearing whenever
the Government seeks the death penalty for defendants found guilty
of a covered offense. See 18 U. S. C. § 3593.5
In death-eligible homicide cases, the Act instructs, the jury
must respond sequentially to three inquiries; imposition of the
death penalty requires unanimity on each of the three. First, the
jury determines whether there was a killing or death resulting from
the defendant's intentional engagement in life-threatening
activity. See 18 U. S. C. § 3591(a)(2).6
3 Congress enacted three statutes authorizing the death penalty
between 1972 and 1988: Antihijacking Act of 1974, § 105, 88 Stat.
411-413, repealed by FDPA, § 6002, 108 Stat. 1970 (air piracy);
Criminal Law and Procedure Technical Amendments Act of 1986, § 61,
100 Stat. 3614 (witness killing); Department of Defense
Authorization Act, 1986, § 534, 99 Stat. 634-635 (amending the
Uniform Military Justice Act to establish weighing procedures for
courts-martial considering the death penalty for espionage).
Earlier federal statutes authorizing the death penalty remained on
the books, but were not invoked following this Court's decision in
Furman v.
Georgia, 408 U. S. 238 (1972)
(per curiam), which led to a hiatus in death penalty
adjudications. See Little, The Federal Death Penalty:
History and Some Thoughts About the Department of Justice's
Role, 26 Ford. Urb. L. J. 347, 349, n. 5, 372-380 (1999).
4 See
id., at 391, and n. 242 (estimating that the FDPA
applies to at least 44 offenses).
5 The sentencing hearing is before a jury unless the defendant,
with the approval of the Government, moves for a hearing before the
court. See 18 U. S. C. § 3593(b).
6 Section 3591(a)(2) allows the death penalty for a defendant
found guilty of a death-eligible homicide "if the defendant, as
determined beyond a reasonable doubt at the [sentencing]
hearing":
"(A) intentionally killed the victim;
"(E) intentionally inflicted serious bodily injury that resulted
in the death of the victim;
"(C) intentionally participated in an act, contemplating
that the life of a person would be taken or intending that lethal
force would be used in
408
Second, the jury decides which, if any, of the
Governmentproposed aggravating factors, statutory and nonstatutory,
were proved beyond a reasonable doubt. See § 3593(d).7 Third, if
the jury finds at least one of the statutory aggravators proposed
by the Government, the jury then determines whether the aggravating
factors "sufficiently outweigh" the mitigating factors to warrant a
death sentence, or, absent mitigating factors, whether the
aggravators alone warrant that sentence. § 3593(e). The mitigating
factors, seven statutory and any others tending against the death
sentence, are individually determined by each juror; unlike
aggravating factors, on which the jury must unanimously agree under
a "beyond a reasonable doubt" standard, a mitigating factor may be
considered in the jury's weighing process if anyone juror finds the
factor proved by a "preponderance of the evidence." See §§ 3592(a),
(c), 3593(d). The weighing is not numeric; the perceived
significance, not the number, of aggravating and mitigating factors
determines the decision.8
II
Louis Jones, Jr.'s crime was atrocious; its commission followed
Jones's precipitous decline in fortune and selfgovernance on
termination of his 22-year Army career. On February 18, 1995, Jones
forcibly abducted Private Tracie
connection with a person, other than one of the participants in
the offense, and the victim died as a direct result of the act;
or
"(D) intentionally and specifically engaged in an act of
violence, knowing that the act created a grave risk of death to a
person, other than one of the participants in the offense, such
that participation in the act constituted a reckless disregard for
human life and the victim died as a direct result of the act."
7 The FDPA lists 16 aggravating factors for homicide and allows
the jury to "consider whether any other aggravating factor for
which notice has been given [by the Government] exists." 18 U. S.
C. § 3592(c). Nonstatutory aggravators "may include factors
concerning the effect of the offense on the victim and the victim's
family." § 3593(a).
8 See Little,
supra, at 397 ("[Weighing] requires
qualitative, not quantitative, evaluation." (internal quotation
marks omitted)).
409
Joy McBride at gunpoint from the Goodfellow Air Force Base in
San Angelo, Texas. In the course of the abduction, Jones struck
Private Michael Alan Peacock with a handgun, leaving him
unconscious. Thereafter, Jones sexually assaulted and killed
McBride, leaving her body under a bridge located 20 miles outside
of San Angelo. See
132 F.3d
232, 237
(CA51998).
In the fall of 1995, Jones was tried before a jury and convicted
of kidnaping with death resulting, in violation of 18 U. S. C. §
1201(a)(2). See 132 F. 3d, at 237-238. A separate sentencing
hearing followed to determine whether Jones would be punished by
death. See
id., at 238.
At the close of the sentencing hearing, Jones submitted proposed
jury instructions. Jones's instruction no. 4 would have advised the
jury that it must sentence Jones to life without possibility of
release rather than death "[i]f ... any one of you is not persuaded
that justice demands Mr. Jones's execution." App. 13.9 Jones's
instruction no. 5 would have advised that, if "the jury is unable
to agree on a unanimous decision as to the sentence to be imposed,"
the jury should so inform the judge, who would then "impose a
sentence of life imprisonment without possibility of release."
Id., at 14.10 Proposed instructions nos. 4 and 5, although
inartfully
9Jones's instruction no. 4 read in relevant part:
"If, after fair and impartial consideration of all the evidence
in this case, anyone of you is not persuaded that justice demands
Mr. Jones's execution, then the jury must return a decision against
capital punishment and must fix Mr. Jones'[s] punishment at life in
prison without any possibility of release." App. 13.
10 Jones's instruction no. 5 read in relevant part:
"[I]f any of you-even a single juror-is not persuaded beyond a
reasonable doubt that Mr. Jones'[s] execution is required in this
case, then the entire jury must render a decision against his
death. In that event, the jury must fix his punishment at life in
prison without any possibility of release.
"Again, unless all twelve members of the jury determine that Mr.
Jones should receive the death penalty, I will impose a sentence of
life imprison-
410
drawn, unquestionably sought to convey this core information: If
the jurors did not agree on death, then the only sentencing option,
for jury or judge, would be life without possibility of release.
Jones also objected, on vagueness grounds, to two of the three
nonstatutory aggravators proposed by the Government. See
id., at 21-22, 28.
The District Court rejected Jones's proposed instructions nos. 4
and 5 and refused to strike or modify the nonstatutory aggravators
to which Jones had objected. See
id., at 33. The trial court
instructed the jury that it could recommend death, life without
possibility of release, or a lesser sentence, in which event the
court would decide what the lesser sentence would be. See
id., at 44.
The jury apparently found the case close. It rejected three of
the seven aggravators the Government urged. See 132 F. 3d, at
238.11 And one or more jurors found each of the specific mitigating
factors submitted by Jones. See
ment without possibility of release. In the event, after due
deliberation and reflection, the jury is unable to agree on a
unanimous decision as to the sentence to be imposed, you should so
advise me and I will impose a sentence of life imprisonment without
possibility of release ....
"In the event you are unable to agree on Life Without
Possibility of Release or Death, but you are unanimous that the
sentence should not be less than Life Without Possibility of
Release, you should report that vote to the Court and the Court
will sentence the defendant to Life Without the Possibility of
Release." App. 14-15.
In "Defendant's Objections to the Court's Charge," Jones
"particularly direct[ed] the court's attention" to his proposed
instruction no. 5.
Id., at 25,30.
n The jury rejected the following aggravators: (1) the crime
involved substantial planning and premeditation, see 18 U. S. C. §
3592(c)(9); (2) the crime created a grave risk to a person other
than the victim, see § 3592(c)(5); and (3) Jones posed a future
danger to the lives and safety of other persons. It found as
aggravators: (1) Jones killed the victim during the commission of
kidnaping, see § 3592(c)(I); (2) the crime was especially heinous,
cruel, and depraved, see § 3592(c)6); (3) the victim's young age,
slight stature, background, and unfamiliarity with San Angelo,
Texas; and (4) the victim's personal characteristics and the effect
of the offense on her family. See 132 F. 3d, at 238, and nn. 1,
2.
411
ibid.12 The jury deliberated for a day and a half
before returning a verdict recommending death.
Jones moved for a new trial on the ground, supported by
postsentence juror statements, that the court's instructions had
misled the jurors. Specifically, Jones urged that the charge led
jurors to believe that a deadlock would result in a court-imposed
lesser sentence; to avoid such an outcome, Jones asserted, jurors
who favored life without possibility of release changed their votes
to approve the death verdict. See App. 60-68, 75-80. The vote
change, Jones maintained, was not hypothetical; it was backed up by
juror statements. See
id., at 68, 79. The District Court
denied the new trial motion.
Id., at 74, 81.
The Court of Appeals for the Fifth Circuit affirmed the death
sentence. The appeals court ruled first that the District Court
correctly refused to instruct that a jury deadlock would yield a
court-imposed sentence of life imprisonment without possibility of
release. 132 F. 3d, at 242-243. Jury deadlock under the FDPA, the
Fifth Circuit stated, would not occasion an automatic life
sentence; instead, that court declared, deadlock would necessitate
a second sentencing hearing before a newly impaneled jury.
Id., at 243. The Court of Appeals further observed that,
"[a]lthough the use of instructions to inform the jury of the
consequences of a hung jury ha[s] been affirmed, federal courts
have never been affirmatively required to give such instructions."
Id., at 245.
Next, the appeals court determined that the instructions, read
in their entirety, "could not have led a reasonable jury to
conclude that non-unanimity would result in the imposi-
12 One or more jurors found each of Jones's ten specific
mitigating factors. None found the eleventh, a catchall stating
that "other factors in the defendant's background or character
militate against the death penalty," see 18 U. S. C. § 3592(a)(8),
but seven found the existence of an additional mitigating factor
not submitted by Jones. See 132 F. 3d, at 238-239, n. 3.
412
tion of a lesser sentence."
Id., at 244. Jones could not
rely on juror statements, the Fifth Circuit held, to show that the
jury, in fact, was so misled when it sentenced him to death. See
id., at 245-246 (although Federal Rule of Evidence 606(b) is
not applicable to FDPA penalty-phase proceedings, see 18 U. S. C. §
3593(c), "[t]he reasons for not allowing jurors to undermine
verdicts in [trial proceedings] ... apply with equal force to
sentencing hearings").
Nor, in the Court of Appeals' view, did the District Court err
plainly by conveying to the jury the misinformation that
three sentencing options were available-death, life imprisonment
without release, or some other lesser sentence. See 132 F. 3d, at
246-248. Noting that the FDPA takes account of all three
possibilities, see 18 U. S. C. § 3593(e), while the kidnaping
statute authorizes only two sentences, death or life imprisonment,
see § 1201(a), the Fifth Circuit acknowledged that the District
Court had erred in giving the jury a lesser sentence option: "[T]he
substantive [kidnaping] statute takes precedence over the death
penalty sentencing provisions" and limits the options to death or
life imprisonment without release. 132 F. 3d, at 248. The appeals
court nevertheless concluded that the District Court's error was
not "plain" because the FDPA was new and no prior opinion had
addressed the question; hence, no "clearly established law" was in
place at the time of Jones's sentencing hearing.
Ibid.
The Fifth Circuit also considered Jones's challenge to the
nonstatutory aggravators presented to the jury at the Government's
request. The court held that the two found by the jury-the victim's
"young age, her slight stature, her background, and her
unfamiliarity with San Angelo, Texas," and her "personal
characteristics and the effect of the ... offense on [her]
family"-were "duplicative" of each other, and also impermissibly
"vague and overbroad."
Id., at 250251. The court declined to
upset the death verdict, however, because it believed "the death
sentence would have been imposed beyond a reasonable doubt had the
invalid ag-
413
gravating factors never been submitted to the jury."
Id.,
at 252.
III
The governing law gave Jones's jury at the sentencing phase a
life (without release) or death choice. The District Court,
however, introduced, erroneously, a third prospect, "some other
lesser sentence." App. 44.13 Moreover, the court told the jury "not
to be concerned" with what that lesser sentence might be, for
"[t]hat [was] a matter for the court to decide."
Ibid. The
jury's choice was clouded by that misinformation. I set out below
my reasons for concluding that the misinformation rendered the
jury's death verdict unreliable.
A
The District Court instructed the jury:
"[Y]ou the jury, by unanimous vote, shall recommend whether the
defendant should be sentenced to death, sentenced to life
imprisonment without the possibility of release, or sentenced to
some other lesser sentence.
" ... If you recommend that some other lesser sentence be
imposed, the court is required to impose a sentence that is
authorized by the law. In deciding what recommendation to make, you
are not to be concerned with the question of what sentence the
defendant might receive in the event you determine not to recommend
a death sentence or a sentence of life without the possibility of
release. That is a matter for the court to decide in the event you
conclude that a sentence of death
13 The problem was not, as the Court describes it, a failure to
give the jury "[a] bit of information that might possibly influence
an individual juror's voting behavior,"
ante, at 382;
rather, the jury was" 'affirmatively misled,'" cf.
ante, at
381, by the repeated misinformation the charge and decision forms
conveyed.
414
or life without the possibility of release should not be
recommended.
"In order to bring back a verdict recommending the punishment of
death or life without the possibility of release, all twelve of you
must unanimously vote in favor of such specific penalty."
App.43-45.
Those instructions misinformed the jury in two intertwined
respects: First, they wrongly identified a "lesser sentence"
option; 14 second, the instructions were open to the reading that,
absent juror unanimity on death or life without release, the
District Court could impose a lesser sentence.
The Fifth Circuit, and the United States in its submission to
this Court, acknowledged the charge error. See 132 F. 3d, at 248;
ante, at 387, n. 8. Section 1201, which defines the crime,
governs. It calls for death or life imprisonment, nothing less, and
neither parole nor good-time credits could reduce the life
sentence. See Brief for United States 13-14, n. 2 ("[WJe agree with
petitioner that the only sentences that could have been imposed are
death and life without release (because the kidnapping statute, 18
U. S. C. [§ ]1201, authorizes only death and life imprisonment, and
neither parole nor good-time credits could reduce the life
sentence)."). The third option listed in the FDPA provision, "some
other lesser sentence," § 3593(e), is available only when the
substantive statute does not confine the sentence to life or death.
The Fifth Circuit found the error "not so obvious, clear, readily
apparent, or conspicuous." 132 F. 3d, at 248. I disagree
14 The verdict forms compounded the error by allowing the jurors
to return as their decision the statement: "We the jury recommend
some other lesser sentence." App. 59.
Jones does not press the District Court's identification of a
lesser sentence option as an independent ground for reversal. That
error, however, is an essential component of his argument that the
misinformation conveyed by the District Court led the jury to
believe that deadlock could result in a less-than-life
sentence.
415
and would rank the District Court's misconstruction "plain
error," 15 because the FDPA unquestionably is a procedural statute
that does not alter substantive prescriptions.16 No serious doubt
should have existed on that score.17
The flawed charge did not simply include a nonexistent option.
It could have been understood to convey that, absent juror
unanimity, some "lesser sentence" might be imposed by the court.
That message came from instructions that the jury must be unanimous
to "bring back a verdict recommending the punishment of death or
life without the possibility of release," App. 45, that "some other
lesser sentence" was possible,
id., at 44, and that the jury
should not "be concerned with the ... sentence the defendant might
receive in the event [it] determine[d] not to recommend a death
sentence or a sentence of life without the possibility of release,"
ibid. Jones's proposed instructions-that he
15 JUSTICE BREYER does not believe that the District Court's
submission of the (unobjected-to) jury instructions amounted to
"plain error." In his view, the judge's (objected-to) failure to
submit the defense's proposed instruction no. 5 amounted to an
"abuse of discretion," for that proposed instruction was legally
correct, the judge's failure to give it likely rested upon an
erroneous view of the law, and it would have corrected the false
impression created by the remaining instructions. See
Cooter
&
Gell v.
Hartmarx Corp., 496 U. S. 384,405 (1990);
App. 74 (order denying defendant's motion for new trial); cf. 132
F. 3d, at 242.
16 The Fifth Circuit noted that Jones's counsel proposed
language referring to a "lesser sentence," but reviewed for "plain
error," rather than discounting the error as "invited," because the
District Court did not use defense counsel's requested language.
132 F. 3d, at 246, n. 10. Although Jones's counsel did propose
"lesser sentence" language, see,
e. g., App. 26,
Jones's proposed instructions nos. 4 and 5 made one thing clear-his
view that the jury and judge were required to impose life without
possibility of release if the jury did not agree to death. See
supra, at 409-410, nn. 9, 10.
17The Court, in a footnote, appears to recognize what should be
beyond genuine debate: For Jones, "the only possible sentences were
death and a life sentence."
Ante, at 387, n. 8. In face of
the District Court's lesser sentence instructions, four times given
to the jury, it is difficult to comprehend why this Court "cannot
see that any error occurred." See
ante, at 390.
416
would be sentenced to life without possibility of release if the
jury did not agree on death, see
supra, at 409, and nn. 9,
10-should have made it apparent that he sought to close the door
the flawed charge left open.18
There is, at least, a reasonable likelihood that the flawed
charge tainted the jury deliberations. See
Boyde v.
California, 494 U. S. 370, 380 (1990)
(where "[t]he claim is that the instruction is ... subject to an
erroneous interpretation," the "proper inquiry ... is whether there
is a reasonable likelihood that the jury has applied the challenged
instruction" erroneously). As recently noted, a jury may be swayed
toward death if it believes the defendant otherwise may serve less
than life in prison. See
Simmons v.
South Carolina,
512 U. S. 154,
163 (1994) (plurality opinion) ("[I]t is entirely reasonable for a
sentencing jury to view a defendant who is eligible for parole as a
greater threat to society than a defendant who is not."). Jurors
may have been persuaded to switch from life to death to ward off
what no juror wanted, i.
e., any chance of a lesser sentence
by the judge.19
18 It is the general rule, as the Government observes, and the
Court repeats, that" '[a] party who has requested an instruction
that has not been given is not relieved of the requirement that he
state distinctly his objection to the instruction that is given.'''
Brief for United States 24 (quoting 2 C. Wright, Federal Practice
and Procedure § 484, p. 702 (2d ed. 1982)); see also
ante,
at 388. It is also true, however, that "the requirement of
objections should not be employed woodenly, but should be applied
where its application will serve the ends for which it was
designed, rather than being made into a trap for the unwary." 2
Wright,
supra, § 484, at 699-701. Here, Jones's proposed
instruction that his default sentence was life without possibility
of release apprised the District Court and the Government of his
essential position.
19 While precedent supports the Fifth Circuit's affirmation that
statements attesting to the juror's understanding of the
instructions are inadmissible, see 132 F. 3d, at 245-246, the
statements Jones submitted do assert that apprehension of a lesser
sentence the judge might impose in fact caused jurors to vote for a
death sentence, see App. 68, 79. On a matter so grave, I would not
discount those statements altogether. Cf.
Jorgensen v.
York Ice Machinery Corp., 160 F.2d 432, 435
(CA2
1947)
417
The Court, in common with the Fifth Circuit and the Solicitor
General, insists it was just as likely that jurors not supporting
death could have persuaded death-prone jurors to give way and vote
for a life sentence. See
ante, at 394; 132 F. 3d, at 246;
Brief for United States 22. I would demur (say so what) to that
position. It should suffice that the potential to confuse existed,
i.
e., that the instructions could have tilted the jury
toward death. The instructions "introduce[d] a level of uncertainty
and unreliability into the factfinding process that cannot be
tolerated in a capital case."
Beck v.
Alabama,
447 U. S. 625,
643 (1980). "Capital sen-tencing should not be ... a game of
'chicken,' in which life or death turns on the ... happenstance of
whether the particular 'life' jurors or 'death' jurors in each case
will be the first to give in, in order to avoid a perceived third
sentencing outcome unacceptable to either set of jurors." Reply
Brief 7-8, n. 11.
B
The Fifth Circuit held that the District Court was not obliged
to tell the jury that Jones's default penalty was life without
possibility of release in part because the appeals court viewed
that instruction as "substantively [in]correct." 132 F. 3d, at
242.20 As the Fifth Circuit comprehended the law, if the jury
deadlocked, "a second sentencing hearing
(L. Hand, J.) (while many defects in jury deliberation do not
require reversal, "this has ... nothing to do with what evidence
shall be competent to prove the facts when the facts do require the
verdict to be set aside, as concededly some facts do").
20 Misinformation, not the District Court's failure to repeat
the unanimity requirement each time it mentioned the jury's
sentencing options, or to advise on the consequences of a
deadlocked jury, is the harmful error at the heart of Jones's case.
I therefore see no cause to dispute that "the Eighth Amendment does
not require that the jury be instructed as to the consequences of
their failure to agree."
Ante, at 381. In my judgment,
however, the court was obliged, in this life or death case, to make
clear to the jury that Jones's minimum sentence was life without
possibility of release.
418
would have to be held in front of a second jury impaneled for
that purpose."
Id., at 243.21 But the FDPA, it seems to me
clear, does not provide for a second shot at death. The dispositive
provision, as I read the Act, is § 3594, which first states that
the court shall sentence the defendant to death or life
imprisonment without possibility of release if the jury so
recommends, and then continues:
"Otherwise, the court shall impose any lesser sentence that is
authorized by law. Notwithstanding any other law, if the maximum
term of imprisonment for the offense is life imprisonment, the
court may impose a sentence of life imprisonment without
possibility of release." 18 U. s. C. § 3594.
The "[o]therwise" clause, requiring judge sentencing, becomes
operative when a jury fails to make a unanimous recommendation at
the close of deliberations. The Fifth Circuit's attention was
deflected from the § 3594 path by § 3593(b)(2)(C), which provides
for a sentencing hearing "before a jury impaneled for the purpose
of the hearing if ... the jury that determined the defendant's
guilt was discharged for good cause." Discharge for "good cause"
under § 3593(b)(2)(C), however, is most reasonably read to cover
guilt-phase (and, by extension, penalty-phase) juror
disqualification due to,
e. g., exposure to
prejudicial extrinsic information or illness. The provision should
not be read expansively to encompass failure to reach a unanimous
life or death decision.
The Government refers to a "background rule" allowing retrial if
the jury is unable to reach a verdict, and urges that
21 At oral argument, counsel for the United States maintained
that it would be up to the prosecutor, when a jury is deadlocked,
to request a new panel or to allow the judge to decide on the
sentence. See Tr. of Oral Arg. 41. But this could be done only
once, the Government maintained: In the event of a second deadlock,
it would be the court's obligation to impose the sentence. See
id., at 46.
419
the FDPA should be read in light of that rule. Brief for United
States 29. But retrial is not the prevailing rule for capital
penalty-phase proceedings. As the Government's own survey of state
laws shows, in life or death cases, most States require judge
sentencing once a jury has deadlocked. See
id., at 32; App.
to Brief for United States 1a-6a (identifying 25 States in which
the court imposes sentence upon deadlock and three States in which
a new sentencing hearing is possible); see also Acker & Lanier,
Law, Discretion, and the Capital Jury: Death Penalty Statutes and
Proposals for Reform, 32 Crim. L. Bull. 134, 169 (1996) ("In
twenty-five of the twenty-nine states in which capital juries have
final sentencing authority, ... a deadlocked sentencing jury is
transformed into a 'lifelocked' jury. That is, the jury's inability
to produce a unanimous penalty-phase verdict results in the
defendant's being sentenced to life imprisonment or life
imprisonment without parole." (footnotes omitted)).
Furthermore, at the time Congress adopted the FDPA, identical
language in the predecessor Anti-Drug Abuse and Death Penalty Act
of 1988 had been construed to mandate court sentencing upon jury
deadlock. See
United States v.
Chandler, 996 F.2d
1073, 1086
(CA111993) ("If the jury does not [recommend
death], the district court sentences the defendant.");
United
States v.
Pitera, 795 F. Supp. 546, 552 (EDNY 1992)
("Absent a recommendation of death, the court must sentence a
defendant.").22 The House Report suggests that Congress understood
and approved that construction. See H. R. Rep. No. 103-467, p. 9
(1994) ("If the jury is not
22 Like the FDPA, the Anti-Drug Abuse Act provides for a new
sentencing jury if the guilt-phase jury "has been discharged for
good cause," 21 U. S. C. § 848(i)(1)(B)(iii), and states,
immediately after providing for the death sentence upon jury
recommendation, that "[o]therwise the court shall impose a
sentence, other than death, authorized by law,"
§848(l).
Under the Anti-Drug Abuse Act, unlike the FDPA, the only binding
recommendation the jury can make is for death.
420
unanimous, the judge shall impose the sentence pursuant to
Section 3594.").
IV
Piled on the key instructional error, the trial court presented
the jury with duplicative, vague nonstatutory aggravating factors.
The court told the jury to consider as aggravators, if established
beyond a reasonable doubt, factors 3(B)-the victim's "young age,
her slight stature, her background, and her unfamiliarity with San
Angelo, Texas" -and 3(C)-the victim's "personal characteristics and
the effect of the instant offense on [her] family." 132 F. 3d, at
250.23 The jury found both. See
ibid.
The District Court did not clarify the meaning of the terms
"background" and "personal characteristics." See
id., at
251. Notably, the term "personal characteristics" in aggravator
3(C) necessarily included "young age," "slight stature,"
"background," and "unfamiliarity," factors the jury was told to
consider in aggravator 3(B). I would not attribute to the Court
genuine disagreement with that proposition. But see
ante, at
399. Double counting of aggravators "creates the risk of an
arbitrary death sentence." 132 F. 3d, at 251; see also
United
States v.
McCullah, 76 F.3d
1087, 1111 (CAlO 1996) ("Such double counting of aggravating
factors, especially under a weighing scheme, has a tendency to skew
the weighing process and creates the risk that the death sentence
will be imposed arbitrarily."). The Fifth Circuit considered the
District Court's lapse inconsequential, concluding that "the two
remaining statutory aggravating factors ... support the sentence of
death, even after considering the eleven mitigating factors." 132
F. 3d, at 252.24
23 Counsel specifically objected to these factors. See App.
21-22, 28.
24 The Government now argues, contrary to the Fifth Circuit's
conclusion, that aggravating factors 3(B) and
3(C) are not
duplicative, vague, or overbroad. See Brief for United States
40-45. The Court granted certiorari on the Government's
reformulated questions, which presumed the incorrectness of the
aggravators. See
supra, at 406, n. 1. In its brief
421
Appellate courts should hesitate to assert confidence that
"elimination of improperly considered aggravating circumstances
could not possibly affect the balance."
Barclay v.
Florida, 463
U. S. 939, 958 (1983). Adding the overlapping aggravators to
the more disturbing misinformation conveyed in the charge, I see no
basis for concluding" 'it would have made no difference if the
thumb had been removed from death's side of the scale.''' 132 F.
3d, at 251 (quoting
Stringer v.
Black, 503 U. S. 222, 232
(1992)).
V
The Fifth Circuit's tolerance of error in this case, and this
Court's refusal to face up to it, cannot be reconciled with the
recognition in
Woodson v.
North Carolina, 428 U. S. 280,305 (1976)
(plurality opinion), that "death is qualitatively different." If
the jury's weighing process is infected by the trial court's
misperceptions of the law, the legitimacy of an ensu-
in opposition, the Government did not challenge the Fifth
Circuit's determination of error, but focused solely on whether the
error was harmless. JUSTICE THOMAS, writing for a plurality,
nevertheless addresses the Government's newly raised argument. See
ante, at 395-402. I would hold the Government to a tighter
rein and dismiss the tardy argument as waived. See
Roberts
v.
Galen of Va., Inc., 525 U. S. 249, 253 (1999)
(per curiam); South Central Bell Telephone Co. v.
Alabama, 526
U. S. 160 (1999); cf. this Court's Rule 15.2.
It is evident that the issue held back by the Government was not
"predicate to an intelligent resolution of the question presented."
Ohio v.
Robinette, 519 U. S. 33, 38 (1996)
(internal quotation marks omitted). But see
ante, at 397, n.
12. JUSTICE THOMAS treats the two issues as separate and
independent. He maintains first that there was no error. Writing
for the Court, he then proceeds to assume there was error and
concludes that any error was harmless. Either holding would do to
support the Court's disposition. See,
e. g., United States
v.
Hasting, 461 U. S. 499,506, n. 4,
510-512 (1983) (holding presumed error harmless rather than
deciding whether there was, in fact, error; Court explains "[t]he
question on which review was granted assumed that there was error
and the question to be resolved was whether harmless-error analysis
should have applied");
id., at 512-513 (STEVENS, J.,
concurring) (Court should decide case on the ground that there was
no error, without reaching harmless-error question).
422
ing death sentence should not hinge on defense counsel's
shortfalls or the reviewing court's speculation about the decision
the jury would have made absent the infection. I would vacate the
jury's sentencing decision and remand the case for a new sentencing
hearing, one that would proceed with the accuracy that
superintendents of the FDPA should demand.
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