United States of America v. Thomas Morocco Hager

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS MOROCCO HAGER,
Defendant - Appellant.
---------------------------
HOPE HOUSE; THE CHILDREN’S LAW CENTER; SCHOLARCHIPS; YASMINE
ARRINGTON; THE OSBORNE ASSOCIATION; NATIONAL RESOURCE CENTER
ON CHILDREN AND FAMILIES OF THE INCARCERATED,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:05-cr-00264-TSE-3)
Argued: January 31, 2013 Decided: June 20, 2013
Before DUNCAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the majority
opinion, in which Judge Duncan joined. Judge Wynn wrote a
dissenting opinion.
ARGUED: Barry Joseph Fisher, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Albany, New York, for Appellant. James L. Trump,

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OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Robert Tucker, Arlington, Virginia, for
Appellant. Neil H. MacBride, United States Attorney,
Alexandria, Virginia, Richard D. Cooke, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. Paul M. Thompson, Jennifer R. Taylor,
Thomas J. Tynan, MCDERMOTT WILL & EMERY LLP, Washington, D.C.,
for Amici Supporting Appellant.

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FLOYD, Circuit Judge:
Appellant Thomas Morocco Hager appeals his conviction and
capital sentence for intentionally killing Barbara White while
engaged in a drug trafficking conspiracy in violation of 21
U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291, 21 U.S.C. § 848(q), and 18 U.S.C.
§ 3595. Because we discern no reversible error, we affirm both
the conviction and the sentence.
I.
Hager was convicted of and sentenced to death for killing
White while engaged in a drug trafficking conspiracy in
violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. The
trial consisted of three parts: (1) the guilt-innocence phase,
(2) the death penalty eligibility phase, and (3) the sentencing
selection phase.
The government adduced evidence of the following facts
during the first phase of the trial: In November 1993, Hager was
engaged in the sale and distribution of crack cocaine at Nelson
Place, in the Southeast area of Washington, D.C. In October
1993, he shot and wounded Christopher Fletcher and Ric Pearson,
two members of a drug gang from Ely Place, over a dispute about
one of his guns. Ely Place is a few blocks from Nelson Place.

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After the shooting, Hager went into hiding, living with his
then-girlfriend, Shenita King, in her apartment in Maryland.
After the shooting, sometime in mid-November, White stopped
by King’s apartment. King did not allow White into the
apartment, however, and did not tell her that Hager was there.
Even so, Hager was very upset because no one was to know where
he lived. White had previously dated and had a child with
Williams Seals, a member of the Ely Place drug gang. Because
Hager feared that White would tell others of his whereabouts, he
decided that he would kill her.
On November 29, 1993, Hager, King, Arlington Johnson, and
Lonnie Barnett went to White’s Alexandria, Virginia, apartment.
When they arrived that evening, King knocked on White’s patio
door. White, who was feeding her thirteen-month-old baby
daughter Alexis, invited them in.
Shortly after they arrived, White showed King and Hager
Alexis’s room. She then took a brief telephone call. Shortly
after the call, Hager turned up the volume on the television,
pulled out a gun, and hit White’s face with enough force to
break her jaw and knock out a tooth. He and Barnett then took
White, crying and bleeding, down the hallway to her bedroom.
Hager told Johnson to run some water in bathtub. All the while,
King stayed in the living room with Alexis. Throughout the
ordeal, Hager repeatedly asked White whether she told her baby’s

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father, Seals, where Hager lived. White insisted that she had
not.
Hager sat White on the bed and instructed Barnett to find
something with which to gag her. After he gagged her, he and
Barnett walked her to the bathroom. Hager told her to get in
the bathtub and then grabbed some hot curlers, plugged them in,
and threw them into the water, attempting unsuccessfully to
electrocute White. Next, he told Johnson and Barnett to go to
the kitchen and retrieve some knives with which to stab White.
They followed his instructions. All told, the three stabbed her
over eighty times in her legs, chest, neck, face, hands,
buttocks, and back. After some of the knives broke or bent,
Hager instructed Johnson and Barnett to retrieve more knives.
At some point, Hager put White face down into the water and
stood on top of her to make sure that she was dead. When
Barnett insisted that they go, Hager “said that he couldn’t
leave because he could get the death penalty for it, and he
wanted to make sure that she was dead.”
After Hager was convinced that White was dead, he, King,
Johnson, and Barnett proceeded out the door, but not before
taking the telephone off of the hook and locking the door behind
them, leaving Alexis alone in the apartment with her dead
mother.

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On their way back to the District, Hager counseled the
others not to tell anyone about the murder and teased Barnett
for being scared. He also mocked White’s pleas for her life and
her concern for Alexis. He later bragged that Johnson and
Barnett “were soldiers now, and that [they] go hard.”
Hager’s five-week three-phrase trial occurred in October
2007. He did not testify at any point in the trial. At the
conclusion of the first phase, the guilt-innocence phase, the
jury found Hager guilty of the intentional killing of White
while engaged in a conspiracy to distribute fifty grams or more
of crack cocaine, in violation of 21 U.S.C. § 848(e)(1)(A) and
18 U.S.C. § 2. Thereafter, during the second phase of the
trial, the death penalty eligibility phase, the jury unanimously
found beyond a reasonable doubt that Hager “was eighteen (18)
years of age or older at the time of the offense charged in the
indictment,” that he “intentionally killed Barbara White,” and
that the following statutory aggravating factors (or
aggravators) were present:
Thomas Morocco Hager:
(1) has been convicted of another offense resulting in
the death of a person, for which a sentence of life
imprisonment was authorized by statute.
(2) has been convicted of two other offenses
punishable by a term of imprisonment of more than one
year, committed on different occasions, involving the
infliction of, or attempted infliction of, serious
bodily injury upon another person.

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(3) knowingly created a grave risk of death to a
person in addition to Barbara White in the commission
of the offense and in escaping apprehension for the
offense.
(4) committed the offense charged after substantial
planning and premeditation.
(5) distributed a controlled substance, namely crack
cocaine, to a juvenile.
(6) committed the offense charged herein in an
especially heinous, cruel, or depraved manner in that
it involved torture and serious physical abuse to
Barbara White.
Based on these factors, the jury found Hager statutorily
eligible for the death penalty. See 18 U.S.C. § 3593(c)
(setting forth the procedure for proving the existence of the
statutory aggravating factors); 21 U.S.C. § 848(n)(1994)
(amended by Pub. L. No. 109-77, § 221(2) (2006)) (listing the
statutory aggravating factors).
Finally, in the third phase of the trial, the sentencing
phase, the jury was called upon to determine whether the
statutory aggravating factors and the non-statutory aggravating
factors sufficiently outweighed the mitigating factors (or
mitigators), both statutory and non-statutory. Although the
jury was required to find the aggravators unanimously and beyond
a reasonable doubt, any number of jurors could find a mitigator
by a preponderance of the evidence and then those jurors could

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consider that mitigator in deciding whether to vote for a
sentence of life or death.
The non-statutory aggravating factors and mitigating
factors, both statutory and non-statutory, are as follows:
NON-STATUTORY AGGRAVATING FACTORS
. . . .
(1) On or about April 23, 1990, the defendant, a
juvenile at the time, possessed with the intent to
distribute cocaine. He was found guilty by an
adjudication on or about September 18, 1990.
. . . .
(2) From in or about 1992, and continuing until at
least in or about 1997, the defendant repeatedly bought
and sold cocaine and crack cocaine in and around
Washington, D.C., and directed others to buy and sell
cocaine and crack cocaine. The defendant illegally
obtained, possessed, used, and carried numerous
firearms in relation to and in furtherance of his drug
trafficking activities. The defendant regularly used
violence and threats of violence to further and protect
his drug business.
. . . .
(3) On or about October 22, 1993, the defendant shot
and severely wounded Christopher Fletcher and Ric
Pearson, two rival drug dealers, in Washington, D.C.
. . . .
(4) On or about March 30, 1995, the defendant killed
Jerome Robinson.
. . . .
(5) On or about February 26, 1996, the defendant
directed Loneldon Weldon, his cousin, to kill Cornell
Coplin. Coplin died as a result of the shooting.

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. . . .
(6) On or about October 20, 1996, the defendant killed
Londell Duvall.
. . . .
(7) On or about March 15, 2003, while incarcerated at
U.S.P. Pollock, a penitentiary, the defendant was
observed hitting another inmate during a large scale
prison fight, which resulted in a prison lock down.
. . . .
(8) On or about April 27, 2004, while incarcerated at
U.S.P. Pollock, the defendant was disciplined for
possession of a dangerous weapon, an eight-inch long
metal shank with a sharpened point on one end.
. . . .
(9) On or about June 29, 2004, while incarcerated at
U.S.P. Pollock, a penitentiary, the defendant was
observed hitting and kicking another inmate during a
prison fight, which resulted in a prison lock down.
. . . .
(10) The defendant’s statements and actions following
the murder of Barbara White reflect a lack of remorse.
. . . .
(11) The defendant poses a future danger to others in
that he is likely to commit, and to direct others to
commit, additional acts of violence in any setting.
. . . .
(12) The defendant caused injury, harm and loss to the
victim and the victim’s family and friends, as
evidenced by the victim’s personal characteristics and
by the impact of her death upon the victim’s family and
friends.
. . . .

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MITIGATING FACTORS
. . . .
A. Statutory Mitigating Factors
(1) Thomas Morocco Hager was youthful, although not
under the age of 18.
O Number of jurors who so find
(2) Others, equally culpable in the crime, will not be
punished by death because their age at the time of the
offense renders them statutorily ineligible for the
crime.
O Number of jurors who so find
(3) Factors in Thomas Morocco Hager’s background or
character mitigate against imposition of the death
sentence.
2 Number of jurors who so find
B. Non-Statutory Mitigating Factors
(1) If not sentenced to death, Thomas Morocco Hager
will be punished by a sentence of life imprisonment
with no possibility of release.
5 Number of jurors who so find
(2) Arlington Johnson will not be sentenced to death
for his role in the murder of Barbara White, because
his age at the time of the offense renders him
statutorily ineligible for the death penalty.
O Number of jurors who so find
(3) Lonnie Barnett will not be sentenced to death for
his role in the murder of Barbara White, because his
age at the time of the offense renders him statutorily
ineligible for the death penalty.
O Number of jurors who so find

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(4) Shenita King will not be sentenced to death for
her role in the murder of Barbara White.
O Number of jurors who so find
(5) The fact that Lonnie Barnett’s plea agreement
includes the possibility that the government will ask
the Court to reduce his sentence is something that
weighs against imposition of a sentence of death for
Thomas Morocco Hager.
O Number of jurors who so find
(6) The fact that Arlington Johnson’s plea agreement
includes the possibility that the government will ask
the Court to reduce his sentence is something that
weighs against imposition of a sentence of death for
Thomas Morocco Hager.
O Number of jurors who so find
(7) The offer of immunity for Shenita King in this
case is something that weighs against imposition of a
sentence of death for Thomas Morocco Hager.
O Number of jurors who so find
(8) . . . [T]he fact that Williams Seals kept guns and
money in a safe in Barbara White’s apartment
constitutes a mitigating factor.
1 Number of jurors who so find
(9) . . . [T]he evidence fails to establish Thomas
Morocco Hager’s guilt of a capital crime with
sufficient certainty to justify imposition of a
sentence of death.
O Number of jurors who so find
(10) . . . [T]he evidence establishes that it was
Thomas Morocco Hager’s belief that William Seals was
out to kill him and that fact constitutes a mitigating
factor.
O Number of jurors who so find

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(11) The Bureau of Prisons has facilities adequate to
monitor and prevent any future assaults and violent
conduct by Thomas Morocco Hager.
O Number of jurors who so find
(12) A sentence of life imprisonment without the
possibility of release is severe and exacts both
significant physical restraint and hardship as well as
great psychological pain, particularly because Thomas
Morocco Hager is left for years to contemplate his
wrongdoing and to feel the loss of his children,
friends and family.
2 Number of jurors who so find
(13) A sentence of life imprisonment without the
possibility of release is severe because Thomas Morocco
Hager is a young man who, based upon his life
expectancy, reasonably can expect to serve decades of
confinement.
1 Number of jurors who so find
(14) If incarcerated, Thomas Morocco Hager is unlikely
to represent a continuing danger to society, as he is
already showing signs of “aging out.”
O Number of jurors who so find
(15) Demonstrated factors in Thomas Morocco Hager’s
childhood, background and character recommend against
the imposition of the death sentence and recommend in
favor of life imprisonment without the possibility of
release.
7 Number of jurors who so find
(16) The imposition of a life sentence without the
possibility of release would preserve the opportunity
for Thomas Morocco Hager to remain available to his
daughters through their adolescent years and beyond.
11 Number of jurors who so find

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(17) Thomas Morocco Hager has proven himself to be
capable of having a positive relationship with his
daughters.
O Number of jurors who so find
(18) Thomas Morocco Hager’s childhood experiences
include being prematurely sexualized by his uncle.
O Number of jurors who so find
(19) Thomas Morocco Hager’s childhood circumstances led
to his leaving school when he was a young adolescent.
O Number of jurors who so find
(20) Thomas Morocco Hager’s parents offered no
supervision when he was a young child.
10 Number of jurors who so find
(21) At the time of Barbara White’s death, Thomas
Morocco Hager had no prior adult convictions.
O Number of jurors who so find
(22) Thomas Morocco Hager’s childhood was filled with
risk factors.
9 Number of jurors who so find
(23) Thomas Morocco Hager’s childhood enjoyed few
protective factors.
8 Number of jurors who so find
Upon weighing the aggravating factors, both statutory and
non-statutory, against the mitigating factors, both statutory
and non-statutory, the jury found that the aggravators
sufficiently outweighed the mitigators and, thus, recommended
that Hager be sentenced to death. Pursuant to the verdict, the

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district court sentenced Hager to death. See 21 U.S.C.
§ 848(l)(1994). This appeal followed.
II.
Hager first contends that the evidence adduced at trial was
insufficient to convict him under § 848(e)(1)(A). We conduct a
de novo review of challenges to the sufficiency of the evidence
supporting a jury verdict, United States v. Kelly, 510 F.3d 433,
440 (4th Cir. 2007), and will affirm the jury verdict when,
“viewing the evidence in the light most favorable to the
prosecution, [it] is supported by ‘substantial evidence,’”
United States v. King, 628 F.3d 693, 700 (4th Cir. 2011)
(quoting United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006)). Substantial evidence is such “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). “We review questions of fact, other
than the ultimate question of guilt, for clear error.
Determinations of the meaning of statutory phrases, however,
constitute legal conclusions that we review de novo.” United
States v. Peoples, 698 F.3d 185, 189 (4th Cir. 2012) (emphasis
omitted) (citations omitted). As both the Supreme Court and
this Court have recognized, “appellate reversal on grounds of

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insufficient evidence . . . will be confined to cases where the
prosecution’s failure is clear.” Id. (quoting Burks v. United
States, 437 U.S. 1, 17 (1978)) (internal quotation marks
omitted).
Defendant was indicted under 21 U.S.C. § 848(e)(1)(A),
which provides:
[A]ny person engaging in or working in furtherance of a
continuing criminal enterprise [(CCE)], or any person
engaging in an offense punishable under section
841(b)(1)(A) of this title or section 960(b)(1) of this
title who intentionally kills or counsels, commands,
induces, procures, or causes the intentional killing of
an individual and such killing results, shall be
sentenced to any term of imprisonment, which shall not
be less than 20 years, and which may be up to life
imprisonment, or may be sentenced to death.
There are three prongs to this statute. See United States
v. Aguilar, 585 F.3d 652, 657 (2d Cir. 2009). The first prong
covers those who intentionally kill someone while “engaging in
. . . a [CCE].” Id. (quoting 21 U.S.C. § 848(e)(1)(A))
(internal quotation marks omitted). The second prong concerns
the one who intentionally kills another while “working in
furtherance of a [CCE].” Id. (quoting 21 U.S.C.
§ 848(e)(1)(A)) (internal quotation marks omitted). And, the
third prong envelops that person who intentionally kills another
while “‘engaging in an offense punishable under section
841(b)(1)(A) . . . or section 960(b)(1)’ of Title 21, e.g.,
while manufacturing, distributing, or imposing large quantities

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of drugs, see id. §§ 841(b)(1)(A), 960(b)(1), or conspiring to
do so.” Id. at 657-58 (quoting 21 U.S.C. § 848(e)(1)(A)). We
are concerned here with the third prong.
As a preliminary matter, Hager maintains that
§ 848(e)(1)(A) applies only to substantive drug offenses and,
thus, is inapplicable to a drug conspiracy such as the one we
have here. But this is simply not so. Conspiracy to distribute
and possess with intent to distribute more than fifty grams of
crack cocaine is “an offense punishable under section
841(b)(1)(A).” 21 U.S.C. § 848(e)(1)(A); see id. § 846 (“Any
person who attempts or conspires to commit any offense defined
in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy.”) Thus, “the penalties
established under § 841(b) apply with equal force to attempts
and conspiracies to violate the object offenses set forth in
§ 841(a).” United States v. Irvin, 2 F.3d 72, 75 (4th Cir.
1993)
As to his main argument, Hager is correct in his contention
that a conviction under § 848(e)(1)(A) requires evidence tying
White’s murder to his drug trafficking charge. But, according
to Hager, there is an insufficient relationship between the
murder and his drug dealing to support the § 848(e)(1)(A)
conviction because “there was no allegation that he was selling

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drugs or otherwise involved in any narcotics activity when White
was killed.” “If the ‘engaging in’ element required only the
defendant’s membership in the conspiracy,” Hager contends, “then
Section 848(e)(1)(A), as written, would reach any intentional
killing during that period.” On this point, we are unpersuaded.
As the district court aptly noted, “Section 848(e)(1)(A)
applies to killings done while engaging in an offense, not an
act, punishable under § 841. An offense, of course, involves
much more than a single act. The statute therefore is not
limited to killings that are contemporaneous with an act
constituting a § 841 offense.” United States v. Hager, 521 F.
Supp. 2d 533, 536 (E.D. Va. 2007); see also United States v.
Santos, 541 F.3d 63, 68 (2d Cir. 2008) (“So long as the
defendant enters into the unlawful agreement before the killing,
and the conspiracy is ongoing when the killing occurs, the drug-
offense and killing elements of section 848(e)(1)(A) are
satisfied by independent acts that overlap in time.”). The
district court also correctly observed that this Court
recognized in United States v. Tipton, 90 F.3d 861, 868-70 (4th
Cir. 1996), albeit indirectly, the applicability of § 848(e) in
a situation in which the intentional killing did not occur
contemporaneous to the drug trafficking activity. In Tipton, of
the seven murders committed, none occurred during a drug
transaction. Id. at 868-70. We are bound by that precedent.

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So, what sort of connection is required between the drug
offense and the murder? When interpreting this statute, “Courts
[have] universally concluded that a substantive, and not merely
temporal, connection is required . . . to sustain a conviction
under § 848(e)(1)(A).” Aguilar, 585 F.3d at 658. “[A]
substantive connection [between the murder and the drug offense]
must be implied as an essential element of § 848(e).” Tipton,
90 F.3d at 887 n.13.
With the record before us, we are firmly convinced that a
reasonable jury “could accept as adequate and sufficient to
support a conclusion of [Hager’s] guilt beyond a reasonable
doubt,” Burgos, 94 F.3d at 862, that Hager was engaging in an
offense punishable under section 841(b)(1)(A) when he killed
White and that there was a substantive connection between his
drug trafficking conspiracy and the killing. Although Hager
repeatedly argues that White’s murder was unrelated to drugs,
the evidence introduced at trial tells a different story.
The government presented adequate and sufficient evidence
that Hager killed White to eliminate the threat that he felt to
himself and to his drug trafficking activities. Hager was
engaged in a long-running drug conspiracy to distribute crack
cocaine around Nelson Place in Southeast Washington, D.C., at
the time that he killed White. Guns are an integral part of the
tool chest of those involved in the drug trade. United States

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v. Mobley, 40 F.3d 688, 697 (4th Cir. 1994) (“This Court and
other courts have long recognized that drug dealers use firearms
to protect their narcotics and the large amount of cash in their
possession.”). In fact, Hager shot Fletcher and Pearson, two
members of the Ely drug gang, in a dispute regarding their
possession of one of his guns. Seals, the father of White’s
baby, Alexis, was also a member of the Ely group. Thus, there
was evidence in the record on which a reasonable jury could
think that Hager killed White specifically because he feared
that she might tell the group where Hager lived. A reasonable
jury could also find, based on the evidence presented, that
Hager killed White to protect and keep others from finding his
safe house—which is what King’s apartment had become for him—
where he could hide drugs, money and guns. And, a reasonable
jury could also find from the evidence that by having his two
drug co-conspirators Johnson and Barnett help murder White,
Hager purposed to strengthen his relationship with the men and
tighten the cohesiveness of his drug organization.
“The government has no burden to establish that a drug-
related motive was the sole purpose, the primary purpose, or
even that it was equally as important as any non-drug-related
purpose, as long as it was one purpose.” United States v.
Desinor, 525 F.3d 193, 202 (2d Cir. 2008). But here, we need
not tease out which of Hager’s purposes for killing White were

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drug-related and which were not. All of Hager’s apparent
purposes for killing White were intertwined with his drug
conspiracy. Thus, it is for these reasons that we hold that the
government presented sufficient evidence on which the jury could
find the necessary nexus between Hager’s drug conspiracy and
White’s murder to establish a violation of § 848(e)(1)(A).
But, even if that was not enough to sustain Hager’s
conviction, we note that Hager’s trial counsel conceded at the
Rule 29 motion hearing in the district court that “clearly,
clearly, this killing, based on the evidence that the government
has offered, certainly furthered drug trafficking, his
conspiracy. It certainly furthered it.” Hager’s appellate
counsel, however, posits that “this comment seemed to refer to
the confrontation with Fletcher and Pearson, not the killing of
White, since she had no involvement with the stolen gun.” We
have reviewed the transcript and find nothing to support
appellate counsel’s contention.
Instead, it appears that Hager’s trial counsel admitted
that White’s murder furthered Hager’s drug conspiracy because:
(1) the evidence overwhelmingly demonstrated that fact and (2)
trial counsel thought that the government had to establish that
a drug transaction occurred at the time of the murder for
§ 848(e)(1)(A) to apply. Because there was no evidence that any
drug activity transpired at the time of White’s murder, trial

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counsel assumed that his acknowledgement was not dispositive.
But, of course, although he was mistaken in thinking that a drug
transaction had to occur at the time of the murder for liability
pursuant to § 848(e)(1)(A), his concession that White’s murder
furthered Hager’s drug conspiracy remains intact.
Even with that concession, we note that we find unavailing
Hager’s arguments that the logic, structure, and history of
§ 848(e)(1)(A) limit the killings covered by the statute to
those committed during or in furtherance of trafficking
activities. First, Hager states, “In all reported CCE-murder
decisions by this and other circuits, it appears that the
killings were found to have been committed ‘in furtherance of’
the CCE. None applied the ‘engaging in’ clause to allow a
broader form of liability.” From this, he concludes, “[A]n ‘in
furtherance of’ relationship between the killing and the CCE
thus marks the outer limit on liability for members of these
extreme drug conspiracies . . . strongly suggests the same must
be true for those, like Hager, charged under the other prong of
Section 848(e)(1)(A).” But, Hager’s argument wholly ignores our
long-settled practice of beginning, as we must, with the plain
meaning of the statute.
“The starting point for any issue of statutory
interpretation . . . is the language of the statute itself.”
United States v. Bly, 510 F.3d 453, 460 (4th Cir. 2007). “We

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have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a
statute what it says there. When the words of a statute are
unambiguous, then, this first canon is also the last: ‘judicial
inquiry is complete.’” Conn. Nat’l Bank v. Germain, 503 U.S.
249, 253–54 (1992) (citations omitted) (quoting Rubin v. United
States, 449 U.S. 424, 430 (1981)).
The third prong of the statute, under which Hager was
convicted, provides that any person who intentionally kills an
individual while “engaging in an offense punishable under
section 841(b)(1)(A) . . . or section 960(b)(1) . . . may be
sentenced to death.” § 848(e)(1)(A). There is no ambiguity
here. Thus, our inquiry is complete. One such as Hager who
intentionally kills someone while engaged in a drug conspiracy
is eligible for the death penalty under this statute.
Still, Hager contends that if § 848(e)(1)(A) is
interpreted to cover murders that occurred neither during nor in
furtherance of drug trafficking activity, as in this case, then
the statute is void for vagueness under the Due Process Clause
of the Fifth Amendment and the Eighth Amendment. He makes
constitutional claims pursuant to the Tenth Amendment and the
Commerce Clause, as well.
We generally review a defendant’s challenge to the
constitutionality of a statute de novo. United States v.

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Bostic, 168 F.3d 718, 721 (4th Cir. 1999). However, when the
issue is not presented to the district court, as is the case
here, then we review for plain error. See United States v.
Martinez, 277 F.3d 517, 524 (4th Cir. 2002) (“As a general
proposition, . . . it is well established that forfeited error
is reviewed under a plain error standard.”). To secure relief
under the plain error standard, a defendant must show “(1)
error, (2) that is plain, and (3) that affect[s] substantial
rights.” United States v. Thomas, 669 F.3d 421, 424 (alteration
in original) (quoting Johnson v. United States, 520 U.S. 461,
466–67 (1997)).
“Due process requires that a criminal statute provide
adequate notice to a person of ordinary intelligence that his
contemplated conduct is illegal, for ‘no man shall be held
criminally responsible for conduct which he could not reasonably
understand to be proscribed.’” Buckley v. Valeo, 424 U.S. 1, 77
(quoting United States v. Harriss, 347 U.S. 612, 617 (1954)).
Thus, “the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,
357 (1983). However, “[a] statute need not spell out every
possible factual scenario with ‘celestial precision’ to avoid

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being struck down on vagueness grounds.” United States v.
Whorley, 550 F.3d 326, 334 (4th Cir. 2008). “A statute must be
construed, if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional, but also grave doubts
upon that score.” Aguilar, 585 F.3d at 658 (quoting United
States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)).
As to Hager’s Fifth and Eighth Amendment void for vagueness
arguments, we are unable to agree. “‘Plain’ is synonymous with
‘clear’ or, equivalently, ‘obvious.’” United States v. Olano,
507 U.S. 725, 734 (1993). The claimed error here is not clear.
As we have already explained, § 848(e)(1)(A) is not ambiguous.
Nor is it vague. It states simply that one who intentionally
kills another while “engaging in an offense punishable under
section 841(b)(1)(A) . . . or section 960(b)(1) . . . may be
sentenced to death.” § 848(e)(1)(A). Hence, because “court of
appeals cannot correct an error pursuant to Rule 52(b) unless
the error is clear under current law,” id., we decline Hager’s
request for relief.
Hager’s Tenth Amendment challenge meets the same fate.
Although he does not develop the argument, in essence, he argues
that a murder such as the one here is normally prosecuted by the
Commonwealth of Virginia, not the federal government. Thus, the
suggestion is that the federal government has overstepped its

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powers and violated the Tenth Amendment. But again, the alleged
constitutional violation is neither plain, clear, nor obvious.
Concerning Hager’s Commerce Clause claim, as noted above,
“[A] substantive connection [between the murder and the drug
offense] must be implied as an essential element of § 848(e).”
Tipton, 90 F.3d at 887 n.13. “Courts require[] a ‘substantive
connection’ between the defendant’s drug activity and the
charged killing in part to address the concern that, absent such
a requirement, § 848(e)(1)(A) would be subject to constitutional
challenge on Commerce Clause grounds.” Aguilar, 585 F.3d at
658. Here, as explained above, there was sufficient evidence in
the record to support the jury’s finding that there was a
substantial connection between Hager’s drug conspiracy and his
murder of White. As such, we find no error.
In sum, the government presented sufficient evidence on
which a reasonable jury could convict Hager on the
§ 848(e)(1)(A) charge. Thus, we find no reversible error.
III.
We next turn to the issue of whether the district court
erred when it rejected Hager’s proposed jury instruction
concerning the “engaging in” portion of § 848(e)(1)(A).
According to Hager, the district court compounded its error by
instructing the jury that, to convict, they must find “that the

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killing was connected to the conspiracy in a meaningful way.”
This instruction, Hager maintains, is an incorrect statement of
the law.
A district court’s “decision to give (or not to give) a
jury instruction . . . [is] reviewed for abuse of discretion.”
United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).
A district court’s decision not to give a requested instruction
by the criminal defendant amounts to reversible error only if
the proffered instruction: (1) was correct, (2) was not
substantially covered by the charge that the district court
actually gave to the jury, and (3) involved some point so
important that the failure to give the instruction seriously
impaired the defendant’s defense. United States v. Lewis, 53
F.3d 29, 32 (4th Cir. 1995). Even if these factors are met,
however, failure to give the defendant’s requested instruction
is not reversible error unless the defendant can show that the
record as a whole demonstrates prejudice. See United States v.
Ellis, 121 F.3d 908, 923 (4th Cir. 1997).
We reject Hager’s arguments for at least two reasons.
First, it would have been improper for the district court to
have given Hager’s requested charge. And second, the district
court’s instruction on the “engaging in” element was neither
erroneous nor prejudicial.

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Hager proposed the following instruction to the district
court on the “engaging in” portion of § 848(e)(1)(A):
The government must prove beyond a reasonable
doubt that at the time Barbara White was killed, the
defendant was then actively engaged in a drug
trafficking offense punishable under 21 U.S.C. § 841.
You may not find the defendant guilty merely
because the defendant was a member of a drug
trafficking conspiracy on the day of the offense.
You may not find the defendant guilty if you find
Barbara White’s death merely furthered the defendant’s
drug trafficking activities.
You may only find the defendant guilty if you
find:
1) Barbara White was killed by the defendant,
2) At the time the defendant killed Barbara
White, he was actively engaged in a separate criminal
act punishable under 21 U.S.C. § 841, and
3) Barbara White’s death was directly related
to, and an integral part of, the underlying drug
trafficking offense punishable under 21 U.S.C. § 841.
The district court was correct in declining to give this
proposed charge as it contains several errors. For example, it
required the jury to find that Hager was actively involved in a
drug trafficking act at the time of the murder. But, as
explained above, this is a misstatement of the law. Moreover,
as also explained above, to the extent that the proposed
instruction was meant to lead the jury to think that they could
not convict Hager because he was engaged in a drug conspiracy at
the time of the murder, and not a substantive drug offense, this

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was also error. Because Hager’s proposed instruction was
inaccurate, the district court did not abuse its discretion in
declining to give it to the jury.
As to the instruction that was actually given, the parties
dispute whether Hager preserved the alleged error below. If he
did, because he alleges that the instruction contains an
incorrect statement of the law, our review is de novo. See
United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012).
But, if he did not, it is for plain error. Because our
determination on this issue is the same under either standard,
we need not decide whether the alleged error was preserved.
The district court instructed the jury, in relevant part,
as follows:
So, the elements of this crime, murder while
engaged in drug conspiracy, are the following. There
are five:
One, the government must prove that while a member
of and engaged in the drug conspiracy—that while a
member of and engaging in the drug conspiracy charged
in the indictment, the defendant either intentionally
killed the victim or commanded, induced, procured or
caused the intentional killing of the victim; that the
death of the victim resulted from such activity of the
defendant; that the intentional killing was done
knowingly, and was connected in a meaningful way to the
drug conspiracy; and that the drug conspiracy alleged
in the indictment involved the distribution of at least
50 grams of cocaine base, commonly known as crack
cocaine.
Now the government is not required to prove beyond
a reasonable doubt that a drug transaction was underway
at the time of the killing. But the government is

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required to prove that a drug conspiracy existed at the
time of the killing, and that the defendant was a
member of the conspiracy, and that the killing was
connected to the conspiracy in a meaningful way.
Hager takes great umbrage with the term “meaningful,”
arguing that it fails to encompass the strength of the
connection required between the drug charge and the murder
before one can be found guilty of a violation of § 848(e)(1)(A).
We cannot agree.
Contrary to Hager’s contentions otherwise, our review of
the record and the relevant law convinces us that the
instruction given by the district court effectively elucidates
the necessary nexus between Hager’s drug conspiracy and White’s
murder, removing any risk that he or any other “defendant could
be found guilty simply on the basis of a temporal coincidence of
a murder with a [conspiracy].” Tipton, 90 F.3d at 887.
Nevertheless, Hager continues to complain that “the jury needed
something more definite and confined than simply a ‘meaningful’
connection, and should be told so.” But with this argument,
Hager fails to appreciate the fact that a trial court has
“‘considerable discretion in choosing the specific wording of
[its] instructions,’ and we will not reverse unless an
instructional error ‘is determined to have been prejudicial,
based on a review of the record as a whole.’” See United States

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30
v. Whitfield, 695 F.3d 288, 305 (4th Cir. 2012) (quoting Figg v.
Schroeder, 312 F.3d 625, 640 (4th Cir. 2002)).
Here, the instruction was not prejudicial when we consider
the record as a whole. As already observed, the government
introduced sufficient evidence for a reasonable jury to
determine that Hager murdered White in an effort to hide and
protect himself from Fletcher and Pearson, members of another
drug gang, whom he shot over their possession of one of his
guns. Further, as we have already stated, based on the
evidence, a reasonable jury could find that Hager killed White
to protect and keep others from finding his safe house. And
finally, a reasonable jury could also find from the evidence
that by having his two drug co-conspirators Johnson and Barnett
help murder White, Hager purposed to strengthen his relationship
with the men and tighten the cohesiveness of his drug
organization. Thus, even if the district court erred in its
selection of the term “meaningful,” and we do not think that it
did, the error was not prejudicial.
To the argument that the district court should have
employed the term “in furtherance of” to describe the necessary
nexus to convict Hager under § 848(e)(1)(A), we note that in
Hager’s proposed instructions to the district court, he stated
that the jury could not find him guilty if it found “White’s
death merely furthered [his] drug trafficking activities.” In

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other words, and as discussed above, according to Hager, whether
White’s murder was “in furtherance” of his drug conspiracy was
insufficient to sustain a conviction under § 848(e)(1)(A). Now,
he appears to contradict his earlier argument. But, we need not
decide whether “in furtherance of” would have been a better
term.
The district court was not required to choose a magic word
to describe the necessary nexus, only an appropriately
descriptive one. And we think that the word “meaningful” is
appropriately descriptive. Yet, as already noted, even if it is
not, from our review of the record as a whole, we find no
prejudice to Hager because of the district court’s use of the
word. Simply put, the evidence is overwhelming that there
existed the necessary nexus between Hager’s drug conspiracy and
White’s murder such that § 848(e)(1)(A) is applicable. Thus, we
find no error in the district court’s instruction on that
charge.
IV.
Hager also argues that the district court abused its
discretion by treating the jurors as anonymous in the courtroom.
“[A] district court’s decision whether to empanel an anonymous
jury is reviewable for abuse of discretion.” United States v.
Dinkins, 691 F.3d 358, 371 (4th Cir. 2012).

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In capital cases, an anonymous jury is allowed under very
limited circumstances:
A person charged with treason or other capital offense
shall at least three entire days before commencement of
trial, excluding intermediate weekends and holidays, be
furnished with a copy of the indictment and a list of
the veniremen, and of the witnesses to be produced on
the trial for proving the indictment, stating the place
of abode of each venireman and witness, except that
such list of the veniremen and witnesses need not be
furnished if the court finds by a preponderance of the
evidence that providing the list may jeopardize the
life or safety of any person.
18 U.S.C. § 3432. This Court has further stated:
[A] district court may empanel an anonymous jury only
in rare circumstances when two conditions are met: (1)
there is strong reason to conclude that the jury needs
protection from interference or harm, or that the
integrity of the jury’s function will be compromised
absent anonymity; and (2) reasonable safeguards have
been adopted to minimize the risk that the rights of
the accused will be infringed.
Dinkins, 691 F.3d at 372. “A lesser degree of anonymity may
entail disclosing to the parties the names of the venire
members, but identifying them only by number in open court.”
Id. at 371. That is what occurred here: Hager and his counsel
received a list of the jury venire, but they were referred to
only by number in open court.
Five factors, commonly referred to as the “Ross factors,”
are helpful in deciding whether there are “strong reasons” for
an anonymous jury, id. at 373:
(1) the defendant’s involvement in organized crime, (2)
the defendant’s participation in a group with the

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capacity to harm jurors, (3) the defendant’s past
attempts to interfere with the judicial process, (4)
the potential that, if convicted, the defendant will
suffer a lengthy incarceration and substantial monetary
penalties, and (5) extensive publicity that could
enhance the possibility that jurors’ names would become
public and expose them to intimidation or harassment.
Id. (quoting United States v. Ross, 33 F.3d 1507, 1520 (11th
Cir. 1994)). “However, this list of factors is not exhaustive,
nor does the presence of any one factor or set of factors
automatically compel a court to empanel an anonymous jury.”
Dinkins, 691 F.3d at 373. Of course, it follows that the
absence of any one factor or set of factors will not
automatically compel a court not to empanel an anonymous jury.
The district court gave the following reasons for
empaneling an anonymous jury: First, it stated, “It has been my
experience in cases of this sort that jurors are extremely
nervous about their names being known, and they prefer to be
addressed by numbers, and to have their names used only when
absolutely necessary.” The court’s rationale is further set
forth in the following exchange between the government and the
district court:
[ASSISTANT UNITED STATES ATTORNEY (AUSA)]:
With respect to the cases dealing with
anonymous juries, they do say that the
Court should make findings, which the
Court has. I would point out that the
defendant was convicted of obstruction
of justice in one of his cases in
Washington, D.C., and that, almost to a,
to a person, every single government

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witness who has had contact with Mr.
Hager has expressed fear about
testifying in this case. And to the
extent the witnesses have expressed
those fears, I could easily see how a
juror might express fear in a capital
case.
THE COURT: And indeed, that’s what you represented
to the Court earlier.
[AUSA]: Yes, Your Honor.
THE COURT: And it’s on that basis that I make the
finding that this is an appropriate case
for using numbers and keeping the list
under seal, and anonymous, with allowing
the defendant the kind of limited
contact with the list and the names that
I have indicated; namely, that he can
assist counsel and look at the list
during, during the voir dire and the
jury selection, but he cannot have a
copy of the list. And I don’t want this
list getting out.
And when the jurors are selected, their
names and addresses are not to be grist
for the media mill, or for the use of—
improper use of anyone else.
In explaining its decision to the jury venire, the court
stated:
Now, we are identifying you by numbers in court,
rather than by name, to protect you from contact in the
media or other persons, curiosity seekers and the like,
to protect you from unwanted publicity and to insure
that no outside information is communicated to you
through this process and the trial.
And this is so that both parties receive a fair
trial.
The fact that we are identifying you by number
should have no impact at all on the presumption of

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35
innocence that the defendant is entitled to, or any
impact in any other way as you consider and decide this
case, if you are selected.
Ross factors three and four are the most relevant here. As
discussed below, factor five ultimately was not an issue.
As to factor three, “the defendant’s past attempts to
interfere with the judicial process,” Ross, 33 F.3d at 1520,
Hager avows that his obstruction conviction arose from an
incident approximately a decade earlier and did not involve any
sort of threat. But neither the timing of the obstruction nor
whether a threat was involved is of any moment here. The
concern is whether the defendant has shown a propensity for
interfering with the judicial process. He has. Thus, this
factor weighs against him.
Hager, of course, makes no claim regarding factor four,
“the potential that, if convicted, the defendant will suffer a
lengthy incarceration and substantial monetary penalties.” Id.
Of course, how could he? This is a capital case in the which
the maximum penalty is death. This “potential punishment[]
lend[s] support to a conclusion that [Hager] had an incentive to
resort to ‘extreme measures in any effort to influence the
outcome of [his] trial.’” Dinkins, 691 F.3d at 376 (quoting
United States v. DeLuca, 137 F.3d 24, 32 (1st Cir. 1998)).
Thus, this factor also weighs heavily against him. These two
reasons alone—that Hager has shown a propensity to improperly

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36
interfere with the judicial process and that he was facing the
ultimate punishment—are sufficient to meet the first Dinkins
element that “there is strong reason to conclude that the jury
needs protection from interference or harm, or that the
integrity of the jury’s function will be compromised absent
anonymity.” Dinkins, 691 F.3d at 372.
As to the second Dinkins element, we observe that the
district court did not tell the jury venire that Hager was not
given a copy of the jury venire list. Nor did the district
court inform the jury venire or the jury itself that it was
taking any precautions to protect the jurors from any potential
harm that might be caused by Hager or any of his associates.
See Dinkins, 691 F.3d at 378.
Instead, the district court told the panel that the reason
they were identifying them by numbers in court, as opposed to by
name, was “to protect [them] from contact in the media or other
persons, curiosity seekers and the like, to protect [them] from
unwanted publicity and to insure that no outside information
[was] communicated to [them] through th[e] process and the
trial.” Hager maintains, however, that the court’s comments
that the jury’s anonymity was for the purpose of protecting them
from media contact “must have rung false” as “only one suggested
any possible exposure to news coverage about the case, and even
she was uncertain.” According to Hager, the trial “received

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37
vanishingly little coverage before or during the trial.”
Hager’s argument lacks merit.
Suffice it to say, the district court gave a neutral non-
prejudicial reason for empanelling an anonymous jury. See
Dinkins, 691 F.3d at 378 (“[T]o protect a defendant tried by an
anonymous jury from having the jury conclude that the defendant
is a dangerous person from whom the jurors must be protected,
courts customarily provide the jury a non-prejudicial reason for
their anonymity.”). And we think that it was a reasonable one.
Contrary to Hager’s assertions otherwise, the amount of media
coverage that the trial ultimately received does not suggest
that jurors would not be contacted by “the media or other
persons, curiosity seekers and the like,” or that they did not
need to be protected from “unwanted publicity” or from having
“outside information . . . communicated to [them] through this
process and the trial.”
Accordingly, we are of the opinion that the district court
“properly followed ‘the generally accepted practice for
minimizing prejudice, which is to downplay (not accentuate) the
significance of the juror anonymity procedure.’” Id. at 379
(quoting Ochoa–Vasquez, 428 F.3d at 1037). And “any remote
possibility of harm was mitigated further because the district
court properly instructed the jury on the presumption of
innocence.” Id. at 379.

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38
As noted above, the court instructed the jury venire that
the fact that they were being identified by number in court
“should have no impact on the presumption of innocence that the
defendant is entitled to.” Without any evidence to the
contrary, we must assume that the jury followed the instructions
given to it by the court. United States v. Runyon, 707 F.3d
475, 497 (4th Cir. 2013) (“[A]bsent some specific ‘reason to
doubt that the jury . . . adhered to the district court’s
directive,’ this [C]ourt will not conclude to the contrary.”)
(quoting United States v. Castillo–Pena, 674 F.3d 318, 322 (4th
Cir. 2012)). Hence, for these reasons, we think that the
district court satisfied the second Dinkins prong—”reasonable
safeguards [were] adopted to minimize the risk that the rights
of the accused [would] be infringed.” Dinkins, 691 F.3d at 372.
Hager marshals two other arguments in this section that we
need address only briefly. First, he complains that an
anonymous jury may have led the jury to think that he was a
dangerous person from which it needed to be protected. Jury
anonymity, Hager argues, was especially prejudicial to him at
sentencing, where his future dangerousness was a contested
issue. But, as observed above, the district court explained to
the jury venire that they were being referred to by numbers, as
opposed to names

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39
so that both parties receive a fair trial. The fact
that we are identifying you by number should have no
impact at all on the presumption of innocence that the
defendant is entitled to, or any impact in any other
way as you consider and decide this case, if you are
selected.
Because we assume that juries abide by the instructions given to
them, and Hager has given no reason why we should not, we hold
that any harm that might have occurred from having an anonymous
jury was assuaged by the district court’s jury instruction.
Finally, Hager avers that an anonymous jury denied him his
Sixth Amendment right to a public trial. But, this was a public
trial. And the fact that the jurors were referred to in court
by number, and not name, does not make it any less so. If
Hager’s contentions were true, then anonymous juries would never
be allowed. But they are allowed. As detailed above, Dinkins
not only indicates that we allow them, but also sets forth the
standards for doing so.
Hager cites to Presley v. Georgia, 130 S. Ct. 721 (2010),
for his argument that his right to a public trial was violated.
In Presley, the trial court had literally closed the voir dire
portion of the underlying trial. Id. at 722. The Supreme Court
observed,
There are no doubt circumstances where a judge could
conclude that threats of improper communications with
jurors or safety concerns are concrete enough to
warrant closing voir dire. But in those cases, the
particular interest, and threat to that interest, must
“be articulated along with findings specific enough

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40
that a reviewing court can determine whether the
closure order was properly entered.”
Id. at 725 (quoting Press–Enterprise Co. v. Superior Court of
Cal., 464 U.S. 501, 510 (1986)). We make two observations:
First, in Presley, the Supreme Court is undoubtedly addressing
the issue of public trials, not anonymous juries. But, second,
even if we were somehow to say that Hager’s trial was not a
public one, we would still find that “the particular interest,
and threat to that interest, ‘[was] articulated along with
findings specific enough . . . ,’” id. (quoting Press–
Enterprise, 464 U.S. at 510), that we are able to determine that
the court’s order was proper.
In sum, the district court did not abuse its discretion in
finding that an anonymous jury was necessary, and it took
reasonable steps to protect Hager’s rights. Thus, because both
Dinkins factors were satisfied, we find that the district court
did not abuse its discretion when it empaneled an anonymous
jury.
V.
Next, Hager posits that district court abused its
discretion in seating Juror 144 after questions arose regarding
his ability to be fair and impartial. A district court’s
determination whether to remove a juror for cause will not be

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41
overruled except for a “manifest abuse of . . . discretion.”
Poynter v. Ratcliff, 874 F.2d 219, 222 (4th Cir. 1989). Indeed,
its decision not to excuse a juror for cause is entitled to
“special deference.” Patton v. Yount, 467 U.S. 1025, 1038
(1984). The critical issue in deciding a challenge for cause is
whether the juror “could be fair and impartial and decide the
case on the facts and law presented.” United States v. Capers,
61 F.3d 1100, 1105 (4th Cir. 1995).
Hager raises three specific examples of Juror 144 stating
that he did not think that he could be impartial. First, when
asked in the jury questionnaire whether the fact that this case
involved a crime of violence would cause him to question whether
he could sit as a fair and impartial juror, Juror 144 answered,
“Yes.” In explaining his answer, he wrote, “I say yes but only
if there is strong evidence against this person. Someone is
still dead and someone killed that person. So what is the
[e]vidence? Drugs and then someone dies. Why?”
During voir dire, the district court followed up on this
question:
THE COURT: I think the question is sometimes—let me
put it to you this way: The evidence in
this case will involve a crime of
violence, and there will be evidence of
violence. Do you believe you can listen
carefully to that evidence and evaluate
it fairly and impartially as a fair and
an impartial juror?

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42
THE JUROR: Yes, I believe I could.
THE COURT: Can you explain the answer -- would you
like to see your answer? Would that
help you?
THE JUROR: No, I remember my answer.
THE COURT: All right, sir.
THE JUROR: Basically, I guess the—I guess my
problem or issue is with the fact that
someone is dead, and it was possibly
done during illegal actions. And that
is—with me, I kind of look at the victim
here. It’s kind of, in my head I looked
at, you know, the victim, illegal
activities; and that is where I have my
problems or my issues.
THE COURT: Do you understand that the government
has the burden of proving each and every
element of the offense charged: Murder,
premeditated murder with malice in the
course of drug trafficking? The
government has to prove all of that
beyond a reasonable doubt. Do you
understand that?
THE JUROR: I understand that.
THE COURT: And the defendant begins with a
presumption of innocence; that is, that
he is not guilty of this?
THE JUROR: Correct.
THE COURT: Do you think you can give effect to
those two instructions?
THE JUROR: Yes, I would try.
THE COURT: Do you think—is there any reason why you
wouldn’t succeed?
THE JUROR: No, I wouldn’t think.

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43
Second, when asked in the questionnaire if he would find it
difficult to obey the court’s instruction that the defendant is
to be presumed innocent until the government has proven each
element of the charged offense beyond a reasonable doubt, Juror
144 answered, “Yes.” When asked on the form to explain his
answer, he stated, “I don’t want to say yes, but rather say
maybe. It would all depend on the [e]vidence. Drugs and then
someone gets killed. Why?”
At voir dire, the district court followed up:
THE COURT: Can you follow that instruction?
THE JUROR: I would definitely try, sir.
THE COURT: Do you think there’s any reason you
wouldn’t succeed?
THE JUROR: I was just trying to answer it. I was
trying to read the questions, and answer
it the first thing that popped into my
mind. And that’s how I answered the
questions. I didn’t give much thought;
I just read the question and then
answered.
THE COURT: Well, you understand that simply because
a death occurred and there might be
drugs involved, that does not mean that
the defendant did anything?
THE JUROR: Correct.
THE COURT: And you understand that the government
has to prove what the defendant did
beyond a reasonable doubt?
THE JUROR: Correct.

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44
THE COURT: Are you—you are able to follow that
instruction?
THE JUROR: I would definitely try, yes.
THE COURT: And are you able to follow the
instruction that until the jury finds
that he is guilty, he is presumed
innocent and the jury may not find him
guilty[?] You understand that?
THE JUROR: Yes, I do understand it, sir.
THE COURT: Do you think you can follow the
instruction that the defendant is
presumed innocent unless and until the
jury finds otherwise?
THE JUROR: I would definitely try, sir, yes.
THE COURT: Do you know of any reason why you would
not succeed in doing that?
THE JUROR: No sir.
Third, at the end of the questionnaire, the following
question is posited: “Is there anything about the nature of
this case or about any of the questions in this questionnaire
that suggests to you that you will not be able to sit as a fair
and impartial juror and render a fair and impartial verdict in
this matter?” In response, Juror 144 answered, “Yes.” In the
explanation section, Juror 144 wrote:
I worry about the fact that there were drugs and
traffic[k]ing of those drugs. Because of that
[illegal] activity someone died? Why did that person
[h]ave to die[?] Was she involved or just a person in
the wrong place at the wrong time[?] What about her
family? 1993? Why so long?

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When the district court asked him to explain his answer, he
stated,
Sir, it was just -- it was just the first things
that popped in my head when I was answering this
question. Those are just, I guess, questions as to,
you know, -- you know, illegal drug trafficking, you
know, someone’s got dead. I think about them, I think
about the people who are left behind.
I’m a law-abiding citizen, you know. I’ve done
nothing but worked my whole life. I believe in the
legal system. It’s just the first things that popped
in my head. And then all the questions, then, were in
there, as to, okay, was the lady who passed away, was
she involved in it? I mean, it just was a bunch of
questions I had. That’s how I was thinking about this
when I answered the question.
The court followed up by asking him whether he could be fair and
impartial, to which he responded, “I would definitely try.” The
court continued:
THE COURT: Do you know of any reason why you
wouldn’t succeed?
THE JUROR: No, sir.
THE COURT: Let me make sure, again, that you
understand that merely because there may
be evidence that someone was killed and
evidence of drugs, that does not
establish that the defendant committed
any crime. Do you understand that?
THE JUROR: Yes, sir.
THE COURT: The government has to prove that beyond
a reasonable doubt. Do you understand
that?
THE JUROR: Yes, sir.

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THE COURT: Would you be able to listen carefully
and closely to the evidence as it is
presented and render a fair and
impartial verdict? That is, a verdict
that is fair to the government and fair
to the defendant?
THE JUROR: I would try, sir.
THE COURT: Again, any reason why you would not
succeed?
THE JUROR: No, sir.
Hager places much reliance on United States v. Thompson,
744 F.2d 1065 (4th Cir. 1984), for his argument that the
district court erred by not disqualifying Juror 144. In
Thompson, after seeing a disturbing picture of a four-month old
victim, one of the jurors informed the district court that he
was unsure if he “could be totally fair.” Id. at 1067. The
defendants moved for a mistrial, which the district court
denied. Id. After explaining that it was important that he
keep an open mind, reminding the juror of the defendants’
presumption of innocence and that it was the government’s burden
to prove guilt beyond a reasonable doubt, the district court
said, “‘So, I will ask you to resume with the case. Do you
think you can do so?’ [The juror] replied, ‘I will try. I am
not sure, your Honor.’ The judge did not seek an affirmative
response but said, ‘All right. That is all I can ask.’” Id.
On review, this Court held that the district court abused its
discretion by going forward with the trial after the juror “gave

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an equivocal response to repeated questions about his ability to
proceed with an open mind.” Id. at 1068.
Thompson is of no help to Hager and is easily
distinguished. Although Juror 144 and the juror in Thompson
both initially stated only that they would try to be fair, the
district court here followed up by asking if there was any
reason that the juror could not be fair. And each time that
question was posed, Juror 144 said that there was not. The
district court in Thompson, however, failed to solicit such a
response.
Given the high deference that we are to give the district
court in the matter of jury disqualification, we are unable to
say that the district court’s decision not to seat Juror 144 was
a manifest abuse of discretion. To the extent that Juror 144
equivocated by saying that he “would try” to be fair to Hager,
the court conscientiously and repeatedly followed up by asking
if there was any reason that he would not succeed in his effort.
And, each time, Juror 144 answered that there was not.
At the appellate level, we are reviewing a cold record.
But the district court was on the scene. It heard Juror 144’s
words, observed his demeanor, and judged his credibility.
Thus, it was in a much better place than we to determine whether
Juror 144 was being truthful in his statements that there was no
reason why he could not be fair. And so because of the

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heightened deference that we give to the district court in
matters such as this, we will not disturb its decision.
VI.
According to Hager, the district court also erred by
excluding certain mitigating testimony from his two daughters.
Relying on United States v. Williams, 632 F.3d 129 (4th Cir.
2011), Hager argues that our review of this claim is de novo,
see id. at 132 (“This Court reviews evidentiary rulings
implicating constitutional claims de novo.”). But referring to
United States v. Basham, 561 F.3d 302 (4th Cir. 2009), the
government insists that our review is for an abuse of
discretion, see id. at 325 (stating in a death penalty case: “We
review evidentiary rulings of the district court for abuse of
discretion.”). Because our decision would be the same under
either standard, we need not decide this issue.
It is well settled that a capital defendant is entitled to
submit any mitigating evidence in support of a sentence less
than death. Payne v. Tennessee, 501 U.S. 808, 822 (1991).
[T]he Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of case, not be
precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.

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Lockett v. Ohio, 438 U.S. 586, 604 (1978) (footnotes omitted).
However, the district court is not limited in its ability to
exclude as irrelevant evidence that does not bear on the
defendant’s character, prior record, or the circumstances of the
crime. Id. at 604 n.12.
Hager proposed several mitigating factors concerning his
present and future relationship with his daughters and the
impact his execution would have on them. He then sought to
introduce evidence to support those proposed mitigators. Many
of Hager’s arguments center around three videotapes that he
wished to admit during the sentencing phase of the trial. The
first is of a child psychologist and defense expert, Dr. Hope
Hill, interviewing Hager’s two then-thirteen-year-old daughters,
Tonia Thomas and Anika King, about their relationship with their
father and the impact his execution would have on them. The
second videotape is of Anika and Tonia talking to each other
about Hager and their relationship with him. It also contains
execution impact testimony. The third videotape shows the two
daughters engaged in a telephone conversation with Hager. After
some vacillation, the district court ultimately excluded all
three of the videotapes.
The district court ruled that the first videotape was too
staged, was not subject to cross-examination, and contained
execution impact evidence. The court did make clear, however,

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that Dr. Hill could testify about her interview with the girls.
The court found that the second videotape also contained
execution impact evidence and was cumulative of the testimony
that the daughters would provide at trial. And the court held
that the third video amounted to allowing Hager to allocute
without being subject to cross-examination. Hager complains
that the district court erred in disallowing these videotapes
into evidence.
In addition, Hager also argues that the district court
committed reversible error in limiting the testimony that Tonia
and Anika could offer at the sentencing hearing. In its ruling,
the court said:
I think they’re certainly entitled . . . to tell
the jury . . . what their father’s involvement in their
life has been and whether they feel their father loves
them.
. . . .
But their saying they love their father is
precisely what gets to the impact on them. It’s really
about Mr. Hager. It’s not about these children. It’s
about his character.
And, therefore, it’s his relationship with his
daughters, how he’s manifested remaining in their
lives. And whether he has manifested love and care for
them. That’s what you should be focusing on and
eliciting.
. . . .
The only ruling that I’ve really made is that you
may not elicit testimony about how they feel about

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having their father taken away from them, about the
death penalty or anything of that sort.
Hager complains:
the district court’s rulings explicitly kept out . . .
the girls’ testimony and proffered video evidence about
their love for their father, and about how happy they
are, and how important it is to them, to talk with him,
see him, and have him in their lives. Instead, . . .
the defense could only elicit from the girls strictly
descriptive testimony, such as whether Hager sends them
Christmas cards, how often they see him, and what he
asks them about.
In essence, Hager maintains that his constitutional rights
were violated by the district court’s decision to exclude the
above-described evidence. We agree with the district court,
however, that the evidence—both the videotapes and the
testimony—was correctly barred.
Because most of the arguments concern the introduction of
execution impact testimony, whether in the videotapes or the
disallowed testimony, we begin there. Contrary to Hager’s
contentions, we think that allowing a capital defendant to argue
execution impact as a mitigator is improper. As the Fifth
Circuit recently opined, “Because such evidence ‘does not
reflect on [the defendant’s] background or character or the
circumstances of his crime,’ ‘the Supreme Court has never
included friend/family impact testimony among the categories of
mitigating evidence that must be admitted’ during a capital
trial.” United States v. Snarr, 704 F.3d 368, 401 (5th Cir.

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52
2013) (quoting Jackson v. Dretke, 450 F.3d 614, 618 (5th Cir.
2006)). In contrast, because “victim impact evidence relates to
the harm caused by the defendant, Payne held that it is relevant
to the jury’s assessment of ‘the defendant’s moral culpability
and blameworthiness.’” Id. at 402 (quoting Payne, 501 U.S. at
825). Although not bound by the Fifth Circuit’s ruling, we are
persuaded by it.
But, why is victim impact evidence allowed and execution
impact on third parties forbidden? First, “victim impact
evidence fundamentally differs from execution impact evidence,
which in no way reflects on the defendant’s culpability.” Id.
Second, to allow evidence about the impact the execution will
have upon a third party goes beyond testimony about the
defendant’s character, prior record, or the circumstances of the
crime. See Lockett, 438 U.S. at 604 n.12 (“Nothing in this
opinion limits the traditional authority of a court to exclude,
as irrelevant, evidence not bearing on the defendant’s
character, prior record, or the circumstances of his offense.”)
And third, the victim of a murder in a capital case is obviously
unavailable to provide testimony at trial. Thus, victim impact
testimony allows the jury to know about the victim’s life.
“[J]ustice, though due to the accused, is due to the accuser
also. The concept of fairness must not be strained till it is
narrowed to a filament. We are to keep the balance true.”

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Payne, 501 U.S. at 827 (quoting Snyder v. Mass. 291 U.S. 97, 122
(1934)).
The capital defendant is available to offer the jury all
relevant information as to his life, background, character, and
the impact any sentence will have on him. To allow testimony of
the impact on third parties, however, does nothing to inform the
jury on any of these matters and upsets the balance set forth in
Payne. And although we are mindful that some federal courts
have allowed execution impact testimony, see e.g., United States
v. Wilson, 493 F. Supp. 2d 491 (E.D.N.Y. 2007); United States v.
Fell, No. 2:01cr12–01, 2005 WL 1634067 (D. Vt. July 5, 2005),
Hager “cannot point to any federal case requiring admission of
‘execution impact’ testimony because there are no such cases.
Lockett does not stand for that principle.” Stenson v. Lambert,
504 F.3d 873, 892 (9th Cir. 2007).
Still, Hager argues that testimony concerning his
daughters’ “love for their father, and about how happy they are,
and how important it is to them, to talk with him, see him, and
have him in their lives” should have been admitted. Although
not binding, or directly on point, Coleman v. Saffle, 869 F.2d
1377, 1393 (10th Cir. 1989), is persuasive. In that habeas
case, the court observed, “In the case before us the only
evidence that might be considered as mitigating merely
constituted statements that the witnesses loved [the defendant];

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54
they in no way concerned an aspect of his ‘character or record
and any of the circumstances of the offense.’” Id. (quoting
Lockett, 438 U.S. at 604). Then it went on to explain:
The statements by Coleman’s wife and sister-in-law
do not in any way bear on Coleman’s background or the
circumstances of the offense. The only way they could
be considered to bear on Coleman’s character is to
assume that a wife or sister-in-law would not love him
unless he had some good character traits. We doubt
that a mother’s love is given only to those children
who deserve it; we doubt that a wife (or even a sister-
in-law) expresses love only for a husband who deserves
it. And even if the statement of love implies some
good character traits it does not identify what they
are. Thus, we hold that the statements here do not
constitute “relevant mitigating evidence” on which a
jury could base sympathy.
Id. The same is true here. Whether Hager’s daughters loved
him sheds no light on Hager’s character, his prior record, or
the circumstances of the offense. And we are unable to say that
Tonia’s and Anika’s love for their father is conditioned on
whether he had good character traits. As such, we are unable to
say that Hager’s daughters’ love for him constitutes relevant
mitigating evidence.
For the same reason that Hager’s daughters’ love for their
father provides no insight into Hager’s character, his prior
record, or the circumstances of his offense, the same is true
regarding any evidence that the daughters are happy to see him
or that it is important to them “to talk with him, see him, and
have him in their lives.” Hence, because how Hager’s daughters

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55
feel about their father is not relevant mitigating evidence, the
district court did not err in disallowing it.
Turning back to the videotapes, we have reviewed the
testimony, the court’s rulings, and the videotapes and are of
the opinion that the first two videotapes were either cumulative
of testimony that was or could have been presented or contained
testimony that was properly excluded because it constituted
execution impact testimony. Moreover, as noted above, the
district court allowed that Dr. Hill could testify about her
conversation with Tonia and Anika. Although she did not, this
was a choice Hager made. For these reasons, we find no
constitutional error or abuse of discretion as to the exclusion
of those two videotapes.
Concerning the third videotape, in which Hager’s daughters
talked to him on speakerphone, Hager argues that it should have
been admitted because it was not being offered for the truth of
the matter asserted and was not an allocution. According to
Hager, “[t]he conversation was self-evidently a genuine and
highly revealing glimpse of these 13-year-old girls’
relationship with their father.” We are of the opinion,
however, that the district court was well within its discretion
in concluding that the probative value regarding Hager’s
character from the speaker phone conversation was substantially
outweighed by the danger that the jury could be confused or

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misled. But, even if we determined that the district court
erred, “[w]e are confident that the jury would have reached the
same sentence that it did even if the district court had
admitted the [videotape].” United States v. Lighty, 616 F.3d
321, 363 (4th Cir. 2010) (citation omitted).
Hager’s arguments concerning the value that the execution
impact testimony would have had in countering the evidence
concerning the future dangerousness aggravator and the allegedly
extensive victim impact testimony meets the same fate—and for
the same reasons: It is not a constitutional violation or an
abuse of discretion when a court “exclude[s], as irrelevant,
evidence not bearing on the defendant’s character, prior record,
or the circumstances of his offense.” Lockett, 438 U.S. at 604
n.12.
We have no reason to doubt the statements put forth by
amici that a defendant such as Hager had to overcome several
obstacles to develop a meaningful relationship with Tonia and
Anika and that he has the potential to overcome those obstacles
and help Tonia and Anika become productive members of society.
But this is a jury argument, not an appellate argument. Nothing
about the district court’s rulings kept Hager from presenting
these contentions to the jury. In addition to the testimony
that Tonia and Anika were allowed to give, testimony about their
relationship with their father and the duration of it could have

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been adduced from Dr. Hill, for instance, or Dr. Mark
Cunningham, Hager’s future-danger expert, who had also
interviewed Anika.
In sum, evidence regarding how Hager’s execution might
affect his daughters would have provided the jury with nothing
about his character, prior record, or the circumstances of his
offense. And the fact that they love him or that it is
important to them “to talk with him, see him, and have him in
their lives” provides no insight, either. As such, we hold that
the district court did not violate Hager’s constitutional rights
nor abuse its discretion in not allowing presentation of the
evidence described above.
VII.
Hager also claims that the district court erred when it
allowed the jury to be misled regarding potential sentence
reductions for his co-defendants Johnson and Barnett. He
specifically claims that the district court erred in the
instructions that it gave on the mitigator concerning the
likelihood of sentence reductions for Johnson and Barnett. As
observed above, a district court’s “decision to give (or not to
give) a jury instruction . . . [is] reviewed for abuse of
discretion.” Russell, 971 F.2d at 1107. A district court’s
decision not to give a criminal defendant’s requested

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instruction amounts to reversible error only if the instruction:
(1) was correct, (2) was not substantially covered by the charge
that the district court actually gave to the jury, and (3)
involved some point so important that the failure to give the
instruction seriously impaired the defendant’s defense. Lewis,
53 F.3d at 32. Even if these factors are met, however, failure
to give the defendant’s requested instruction is not reversible
error unless the defendant can show that the record as a whole
demonstrates prejudice. See Ellis, 121 F.3d at 923.
Before the trial of this case, both Johnson and Barnett
pled guilty and agreed to testify against Hager. Both were
sentenced before Hager’s trial to a term of life imprisonment,
although they understood the potential of a sentence reduction
pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
At trial, Johnson admitted that he was hoping to receive a
reduction of his sentence in exchange for his cooperation with
the government. On direct examination, Johnson agreed that the
government was “obligated” to file a motion to reduce his
sentence and, although he hoped to receive a sentence reduction,
the district court would ultimately make that decision. On
cross-examination, Johnson conceded that the district court
could reduce his sentence to probation “if the judge decided
that was the right thing to do.” When asked whether he was

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59
“hoping for as big a reduction in [his] sentence as [he]
possibly [could] get,” Johnson replied, “Yes.”
Barnett also acknowledged that his plea agreement obligated
him to cooperate with and testify for the government. He hoped
for a sentence reduction in exchange. On cross-examination, he
recognized that he would not receive a sentence reduction unless
the government asked the district court to give him one.
During the government’s closing argument at trial, the
prosecutor stated, “[Johnson and Barnett] came in here and
testified because they pled guilty. They have been sentenced to
life. Life. Are they seeking some type of a reduction? Yes.
But they have pled guilty to this offense and have been
sentenced to life.” Then, at the sentencing summation, Hager’s
counsel argued that Johnson and Barnett would “some day walk out
of prison. They are both going to get sentence reductions
because the government is going to ask the Court to reduce their
sentences, because they cooperated.” The government stated in
its summation that, because they were juveniles at the time of
White’s murder, “legally, they can’t face the death penalty.”
It also noted,
The fact they expect, at some point, that there may be
some benefit for their testimony, nothing wrong with
that. They weren’t the ones who directed this, that
orchestrated it. They weren’t the ones who called the
shots.

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But for Tommy Hager, this crime would have never been
committed. He is the one who is most culpable. He is
the one who, as an adult, not as a juvenile, committed
this heinous offense.
Approximately two years after Hager’s trial, the government
filed Rule 35 motions asking for sentence reductions for both
Johnson and Barnett, which the district court ultimately
granted. At the Rule 35 hearing, the district court heard from
White’s family, who disagreed with any sentence reduction for
Johnson and Barnett. Even so, the district court reduced both
Johnson’s and Barnett’s sentences to twenty five years’
imprisonment each.
In phase three of the trial, Hager submitted to the
district court proposed separate mitigators, one for Johnson
and one for Barnett, that referenced their possible sentence
reductions: “[T]he expectation that the government will ask the
Court to reduce [Johnson’s and Barnett’s] sentence at the
conclusion of this case is something that weighs against
imposition of death for Thomas Morocco Hager.” Instead, as
presented to the jury, number five of the non-statutory
mitigating factors asked the jurors to indicate whether “[t]he
fact that Lonnie Barnett’s plea agreement includes the
possibility that the government will ask the Court to reduce his
sentence is something that weighs against imposition of a
sentence of death for Thomas Morocco Hager.” No juror indicated

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that it did. Number six of the non-statutory mitigating factors
asked the same question regarding Arlington Johnson. Again, no
juror indicated that it did.
Hager complains that the district court erred in deciding
that the wording of these proposed mitigators should be changed
to refer to the “possibility” rather than the “expectation” that
the government would ask that Johnson’s and Barnett’s sentences
be reduced. Hager also claims error in the district court’s
decision not to inform the jury that it “ha[d] never refused to
reduce a defendant’s sentence in such circumstances when asked
to do so by the government.” Finally, Hager contends that the
district court erred in its refusal to include as one of the
mitigators “[t]he favorable plea agreement offered to Lonnie
Barnett in this case, including even a recommendation for a
sentence far less than life imprisonment.” Hager claims these
alleged errors misled the jury into thinking that Johnson and
Barnett would serve life sentences.
As to the Rule 35 issue, Hager avers that the district
court thought that it was legally bound to dramatically reduce
Johnson’s and Barnett’s sentences in exchange for their
substantial cooperation. According to Hager, the district court
“was fully aware of [their] cooperation and the legal factors
governing Rule 35 motions at the time of Hager’s sentencing
hearing, and that it had granted comparable reductions in

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similar murder cases.” Thus, Hager contends, it knew or should
have known that a sizeable reduction was more than just a
“possibility.” Hager states, “[T]hey were, practically
speaking, foregone conclusions. At a minimum, they were
certainly reasonable expectations, as the defense mitigating
factors (and accompanying instruction) would have let the jurors
consider.”
We decline Hager’s invitation to find any error here.
Simply stated, there was no deception of the jury. As noted
above, both Johnson and Barnett testified that they hoped to
receive a sentence reduction. Johnson testified that the
government was “obligated” to ask for a reduction, and he agreed
that the district court could even give him a probationary
sentence “if the judge decided that was the right thing to do.”
In addition, from Barnett’s plea agreement, the jury knew that
the government had recommended a sentence of much less than life
for Barnett before any cooperation on his part.
Hager makes much of the distinction between “possibility”
and “expectation.” Hager’s proposed instructions regarding
mitigation state that Johnson’s and Barnett’s plea agreements
include “the expectation that the government will ask the Court
to reduce [each of their] sentence[s] at the conclusion of [the]
case.” But, as the government observes, his proposed
instructions also requested that the court charge the jury that

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Johnson and Barnett “face the possibility of release in the
future from confinement.” Moreover, not only was Hager allowed
to argue to the jury that a sentence reduction was expected; the
government actually referred to Johnson’s and Barnett’s
expectation of a sentence reduction: “The fact they expect, at
some point, that there may be some benefit for their testimony,
nothing wrong with that.”
Concerning Hager’s contention that Johnson’s and
Barnett’s sentence reductions were “foregone conclusions” at the
time of Hager’s trial, we disagree. There was no way for anyone
to predict the extent of the sentence reductions or even if
either Johnson or Barnett would receive one. For example, what
if the government had determined that they had not been
truthful, as required by their plea agreements? Or, what if the
heinousness of the crime and White’s family’s objection to any
sentence reduction had so affected the district court that it
balked at granting the Rule 35 motion—or granted only a small
measure of relief?
We have made a searching review of the sealed transcript of
the Rule 35 hearing and come away with the firm opinion that the
district court seriously contemplated whether to grant the Rule
35 motions for Johnson and Barnett. There is nothing in the
transcript to suggest that it took the decision lightly or that

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the determination was preordained. Any contention to the
contrary is without merit.
Hager also briefly makes a constitutional argument that in
allegedly misleading the jury regarding Johnson’s and Barnett’s
sentences, the court violated “Hager’s rights to due process and
to a reliable sentencing under the Fifth and Eighth Amendments
and statutory law.” For the same reasons that we reject his
arguments above, we reject his constitutional arguments, as
well.
VIII.
Hager states that the district court also erred when it
denied his challenge to the future dangerousness aggravating
factor. “The constitutional validity of aggravating factors is
a question of law subject to de novo review.” United States v.
McCullah, 76 F.3d 1087, 1107 (10th Cir. 1996). We review
evidentiary matters, however, for an abuse of discretion.
Basham, 561 F.3d at 326.
“Future dangerousness is best defined as evidence that a
defendant is ‘likely to commit criminal acts of violence in the
future that would be a threat to the lives and safety of
others.’” Basham, 561 F.3d at 331 (quoting United States v.
Bernard, 299 F.3d 467, 482 (5th Cir. 2002)). “The Supreme Court

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has recognized future dangerousness as a legitimate aggravating
factor in capital proceedings.” Id.
Hager maintains that the jury here “confronted the issue of
his future conduct in a maximum-security federal penitentiary, a
setting specifically designed, organized, and staffed to handle
inmates who have been convicted of violent crimes.” According
to Hager, “The Supreme Court has never squarely considered the
reliability of such judgments under the Constitution or federal
death-penalty statutes.” We are unmoved by the argument.
As a matter of constitutional law, the Supreme Court has
long held, “What is important at the selection stage is an
individualized determination on the basis of the character of
the individual and the circumstances of the crime.” Zant v.
Stephens, 462 U.S. 862, 879 (1983). Regarding the weight that
should be accorded to the evidence, that is a matter for the
jury to decide.
Hager makes much of his evidence that allegedly
demonstrates that future dangerousness cannot be reasonably
predicted. But this is an argument for the jury. In fact,
Hager presented this argument to the jury, but the jury rejected
it. Instead, as we have already noted, the jury unanimously
found all of the statutory and non-statutory aggravators
presented to it. Nevertheless, Hager continues to argue that
the jury’s finding as to his future dangerousness is

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speculative. We are wholly unconvinced. Perhaps we might
someday be presented with a case in which we are persuaded that
the evidence presented as to a defendant’s future dangerousness
was merely speculative or that it was constitutionally infirm.
But, this is not such a case.
Hager also makes two other arguments in this section that
we address briefly. First, he claims that he was unfairly
harmed by a question the government asked of Dr. Cunningham.
Dr. Cunningham had earlier testified about the “catastrophically
cumulative effect” that Hager’s upbringing had on his behavior
as an adult. After having Dr. Cunningham agree that “there is
nothing he can do to change that catastrophically cumulative
effect,” the government asked, “So if he is prone to violence at
20, he is always going to be prone to violence because of that
catastrophically cumulative effect?” Hager suggests that “the
force of the prosecutor’s logic may have persuaded jurors to
treat mitigating evidence about Hager’s horrific childhood as
proof of his future dangerousness.” But, the government’s
argument merely called upon the jury to do what capital
sentencing juries do: They consider evidence—both mitigators and
aggravators—and decide which deserves greater weight. And to
the extent that certain evidence cuts both ways, both the
government and the defendant are both harmed and helped.

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Second, Hager offers that his case was an example of “how
future dangerousness risks becom[e] a proxy for subconscious
racial fear and other biases. . . . [T]he prosecutor stoked
such fears by baselessly suggesting to the predominantly white
Virginia jury that Hager, an African-American man . . . was a
member of a violent, nationwide prison gang that called
themselves ‘the D.C. Blacks.’” As discussed in the next
section, we reject this contention as well.
Having considered Hager’s arguments, we find no
constitutional error or abuse of discretion as to this issue.
IX.
Hager also avows that the district court erred in admitting
evidence as to his future dangerousness. Because he did not
raise this issue with the district court below, our review is
for plain error. See Martinez, 277 F.3d at 524. As stated
above, to receive relief under the plain error standard, a
defendant must demonstrate “(1) error, (2) that is plain, and
(3) that affect[s] substantial rights.” Thomas, 669 F.3d at 424
(alteration in original) (quoting Johnson, 520 U.S. at 466–67)
(internal quotation marks omitted). Even if he satisfies these
conditions, we retain discretion regarding whether to correct
the error, and we will “exercise that discretion only if the
error ‘seriously affects the fairness, integrity or public

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reputation of judicial proceedings.’” United States v. Knight,
606 F.3d 171, 177–78 (quoting Olano, 507 U.S. at 732.).
First, Hager argues that, as to the March 15, 2003, fight
at U.S.P. Pollock involving an inmate named Holstic, the
testimony of Bureau of Prisons (BOP) Investigator John Feeney
was based on “interviews with unnamed inmates” that occurred
after the fight and Feeney’s “review of a grainy videotape.”
Feeney was away from the prison at the time of the fight. But
because he “lived about five minutes away from the prison,” he
“was one of the first people there that was off duty.” Although
he agreed that he saw Hager involved in the fight, he later
stated that he “learned that staff caught the tail end of a
fight involving multiple inmates.” Thus, as the government
admits, this leaves it “somewhat unclear how much he learned
from personal observation.”
“The relevant inquiry, however, is not whether the
[testimony] was admissible under the Federal Rules of Evidence
(which do not apply in capital sentencing proceedings), but
whether the [testimony] was so unreliable that its admission
violated due process.” United States v. Fulks, 454 F.3d 410,
436 (4th Cir. 2006). “[T]he fact that some of such evidence may
have been ‘hearsay’ does not necessarily undermine its value—or
its admissibility—for penalty phase purposes.” Sears v. Upton
130 S. Ct. 3259, 3263 (2010).

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Although we are unable to say whether it was error to admit
this testimony, we are also unable to say that any alleged error
was plain. After all, Hager does not dispute his participation
in the fight, and he cannot establish that the witnesses to the
prison assaults lacked sufficient personal knowledge. Hence,
because we cannot say that the evidence was so unreliable as to
violate his due process, we find no plain error.
Hager also contends that the district court plainly erred
in allowing testimony concerning a fight that occurred on June
29, 2004, at U.S.P. Pollock involving another inmate, Starks.
According to testimony from BOP officials Bruce Davidson and
Feeny, Hager stabbed Starks during the altercation, although the
final report characterized the incident as only a fight. The
officials were cross-examined on this discrepancy. Although
Hager invites us to find plain error here, we decline to do so.
Simply stated, this was an issue for the jury to decide.
Hager also brings a Confrontation Clause argument
concerning certain testimony about his prison violence. But,
even if there is some error on this front, “we cannot say that
the error was plain [because] it even now remains unclear
whether the Confrontation Clause applies in [the sentencing
selection phase of a capital proceeding].” United States v.
Higgs, 353 F.3d 281, 324 (4th Cir. 2003) (citing United States
v. Promise, 255 F.3d 150, 160 (4th Cir. 2001)) (stating that

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“[a]n error is plain when the settled law of the Supreme Court
or this circuit establishes that an error has occurred.”).
Hence, because the law is not settled on this issue, either in
the Supreme Court or in the Fourth Circuit, we are unable to say
the district court committed plain error as to this issue.
Hager also argues that during the government’s questioning
of his future-danger expert, Dr. Cunningham, the prosecutor
“implied that Hager, who is African-American, was a member of an
especially violent gang, organized in prisons across the
country, called the ‘D.C. Blacks.’” But, it was Dr. Cunningham,
not the government, who introduced this term into the trial:
Q. Now, Dr. Cunningham, you would agree with me that
some of the U.S. penitentiaries house more DC
inmates than others; isn’t that correct?
A. Yes, sir.
Q. And when we talk about DC inmates, we are
referring to the inmates who originally used to be
at Lorton Reformatory; is that right?
A. Well, that’s one way—
THE COURT: If you know.
THE WITNESS: That would be one part of the District
of Columbia inmates, those who were at
Lorton at one time.
“DC,” in the Bureau of Prisons is
sometimes used to describe a disruptive
group, the DC Blacks. Everybody who is
an inmate out of the District of
Columbia isn’t a part of the DC Blacks
in terms of representing a disruptive
group within the prison.

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Uhm—
By [AUSA]:
Q. Did you interview the prison officials to find out
if Mr. Hager is part of that group?
A. No, sir.
Q. And you would agree with me that a number of the
assaults that occurred at other facilities
happened because of this DC group, isn’t that
right?
A. I can’t speak to that in open court, because the
information about rates of violence—
THE COURT: If you don’t know, simply say you don’t
know.
THE WITNESS: Well, your Honor, I have knowledge of
that, but that knowledge is under seal
in another federal capital case.
Moreover, during the government’s rebuttal, Pat Townsend, a
BOP investigator from U.S.P. Pollock, explained that the “D.C.
Blacks” were one of several prison gangs, but they were
“considered more of the lower level because they’re always in
assaults, stealing, fighting, so forth and so on. They’re
considered by the inmates as the lower end of the scale.”
The fact that Hager’s expert is the one who introduced the
term “D.C. Blacks” into the trial deals a fatal blow to Hager’s
contention here that it was plain error to allow the testimony.
And, after the term was introduced, it was perfectly permissible
for the government to ask one of its own witnesses to further

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describe the group. Hager’s argument that the term was racially
inflammatory is equally without merit, considering that it was
his witness, and not the government’s witness, who first
employed the term. Thus, we find no plain error.
Hager also maintains that the district court committed
plain error in allowing the government’s line of questioning of
Dr. Cunningham regarding the assassination of a federal judge:
Q. You are from Abilene; is that right?
A. Yes, sir, I am.
Q. Have you ever been to San Antonio?
A. Yes, sir, I have.
Q. Have you testified in San Antonio?
A. I don’t think so.
Q. Do you know the name of the federal courthouse in
San Antonio?
A. No, sir.
Q. If I told you it was the John H. Wood Federal
Courthouse, would that mean anything to you?
A. No, sir, I’m sorry.
Q. Did you know that John W. Wood was a federal judge
in San Antonio?
A. No, sir.
Q. Did you know that he was killed by an individual
named Charles Harrelson, the father of Woody
Harrelson?
A. No, sir.

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Q. And do you know that that hit was direct[ed] by
the Mexican mafia out of the jail?
A. No, sir. I am unfamiliar with those
circumstances.
Although Hager’s counsel failed to object to this line of
questioning, the district judge saw fit to sua sponte give the
following limiting instruction:
Let me just make one point, I think, clear,
[AUSA]. I think I should.
You elicited the testimony about Judge Wood . . .
to demonstrate that it does happen, it is possible.
But I want you, the jury, to understand that by no
means should any decision you make in this case be
based at all on any concern about me or what I may be
concerned about.
I’m not concerned in the slightest, and you should
disregard that insofar as it has anything to do with
me. Forget that.
All [the AUSA] was doing was simply bringing the
point out to show that those things can happen. But it
has nothing to do with me.
There is no dispute that the details that the AUSA recited
here were inaccurate. In fact, it appears that the individual
who solicited Judge Wood’s assassination was not incarcerated
but was out on bail on a drug case, which was pending before
Judge Wood. Although the inaccurate line of questioning is
disturbing, we cannot say that its introduction demands a new
sentencing hearing.

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From the context of the line of questioning recited above,
it appears that the prosecutor was seeking to challenge Dr.
Cunningham’s suggestion that the BOP was able to control prison
violence, not that Hager might harm the federal judge presiding
over his trial. And contrary to Hager’s assertion that the
limiting instruction by the district court made matters worse by
suggesting that he might be concerned about his safety, the
district court’s limiting instruction served to remove any doubt
that the testimony had anything to do with him when he stated,
“I’m not concerned in the slightest, and you should disregard
that insofar as it has anything to do with me. Forget that.”
“Pursuant to the cumulative error doctrine, the cumulative
effect of two or more individually harmless errors has the
potential to prejudice a defendant to the same extent as a
single reversible error.” Runyon, 707 F.3d at 520 (quoting
Basham, 561 F.3d at 330). But here,
although we recognized (and assumed) a few harmless
errors, they were not widespread or prejudicial enough
to have fatally infected [the defendant’s] trial or
sentencing hearing. The proceeding below adhered to
fundamental fairness. There is overwhelming evidence
of guilt in the record and any possible error did not
play a role in the outcome of either phase of [the]
trial. Moreover, each aggravating factor (both
statutory and non-statutory) determined by the jury was
well supported by the record. Finally, we cannot see
how cumulative error could have caused the jury to
weigh the relevant sentencing factors any differently.
Id. at 520 (quoting Lighty, 616 F.3d at 371.

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Thus, for these reasons, we find that Hager has failed to
establish any plain error as to this issue.
X.
Hager next asserts that the non-statutory aggravating
remorse factor, as presented to the jury, violated his
constitutional privilege against self-incrimination and lacked a
sufficient evidentiary basis. We will address the arguments in
turn.
We review de novo a constitutional claim that was properly
preserved. United States v. Malloy, 568 F.3d 166, 176 (4th Cir.
2009).
In the government’s Notice of Intent to Seek a Sentence of
Death, it alleged, in relevant part, the following:
The defendant, THOMAS MOROCCO HAGER, has displayed no
remorse for the murder of Barbara White; rather, the
defendant bragged that by killing Barbara White and
directing his co-conspirators, Arlington Johnson, Jr.
and Lonnie Barnett, Jr., to participate in the killing
of Barbara White, he trained Johnson and Barnett to
kill.
But, the district court presented the remorse aggravator as
follows: “The defendant’s statements and actions following the
murder of Barbara White reflect a lack of remorse.” The jury
unanimously found that this factor existed beyond a reasonable
doubt.

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Hager maintains here, as he did to the district court, that
this charge placed a burden on him to testify so that he would
be able to account for his present state of mind. In support of
his argument, Hager maintains that the aggravator as presented
to the jury was put in the present tense, “reflect,” which
connotes a present lack of remorse. He avers that “reflected”
would have more appropriately expressed a lack of remorse just
after he committed the murder. He also complains that the
district court refused to amend the factor to add “13 years ago”
at the end, so as to underscore that the jury was to consider
his lack of remorse only immediately after the crime.
The district court’s failure to place the factor in the
past tense, such that it read, “The defendant’s statements and
actions following the murder of Barbara White reflected a lack
of remorse,” does not involve a point so important that it
prejudiced Hager’s defense. Nor does it highlight Hager’s
silence at trial. Instead, it asks the jury to consider whether
Hager’s actions following White’s murder, when viewed at the
time of trial, reflect his lack of remorse. Although adding the
term “13 years ago” arguably could have made the factor more
clear, the district court’s decision not to do so certainly does
not amount to reversible error.
Hager also maintains that his constitutional right against
self-incrimination was offended when the prosecutor made the

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following charge during his opening statement in the sentencing
selection phase of the trial: “The defendant, to this day, has
never expressed any remorse for the killing of Barbara White.”
Hager posits that this statement drew attention to his silence
at trial. Hager notes that he was similarly harmed by the
prosecutor’s comment that “the defendant has displayed no
remorse for the murder—or the defendant had displayed no remorse
for the murder of Barbara White right after the killing.”
This Court recently stated in a Federal Death Penalty Act
(FDPA) opinion “that the Fifth Amendment may well prohibit
considering a defendant’s silence regarding the non-statutory
aggravating factor of lack of remorse.” United States v. Caro,
597 F.3d 608, 630 (4th Cir. 2010). But then it declined to
reach the issue, holding “that any error would have been
harmless.” Id. The Court took the same approach in Runyon, 707
F.3d. at 510, finding that any error would be harmless. And, we
will do the same here. But before we do, we must briefly deal
with Hager’s argument that harmless review is unavailable under
§ 848(e)(1)(A).
As Hager points out, § 848(e)(1)(A) does not specifically
grant us the authority to conduct a harmless error assessment,
whereas the FDPA does, 18 U.S.C. § 3595(c)(2)(C). But nor does
§ 848(e)(1)(A) disallow such an analysis. We are unconvinced
that the statute must specify that we can conduct a harmless

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error review for us to employ it. After all, Federal Rule of
Criminal Procedure 52(a) provides that “[a]ny error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.” Moreover, as Hager admits, this
Court has previously reviewed jury instructions on aggravating
factors for harmless error in a § 848(e)(1)(A) case. See
Tipton, 90 F.3d at 899-900. And although there, the Court
failed to address whether the statute gave it the authority to
conduct such an evaluation, we do not find such omission of any
moment. From our perspective, it may very well be that the
reason the Court neglected to address the issue was that it did
not see a reason to do so. After all, it is well established
“that ‘most constitutional errors can be harmless.’” Neder v.
United States, 527 U.S. 1, 8 (1999) (quoting Arizona v.
Fulminante, 499 U.S. 279, 306 (1991)). And, although “‘the
Constitution entitles a criminal defendant to a fair trial,’ it
does not guarantee ‘a perfect one.’” United States v. Abu Ali,
528 F.3d 210, 256 (4th Cir. 2008) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 681 (1986)).
In determining whether a constitutional error is harmless,
we consider “whether it appears ‘beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained.’” Neder, 527 U.S. at 15 (Chapman v. Cal., 386 U.S.
18, 24 (1967)). In our consideration of the harmlessness of any

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error here, we look to Caro, 597 F.3d at 631, a case which is
similar to the one before us now. There, after the prosecutor
made remarks during his closing argument regarding the
defendant’s failure to express remorse, the district court
instructed the jury as follows:
The Government has alleged that Carlos David Caro has
not expressed remorse for his violent acts, including
the murder of Roberto Sandoval, the stabbing and
attempted murder of Ricardo Benavidez, and the gang
based assault at Oakdale. Remember that the defendant
has a constitutional right to remain silent, and mere
silence, alone, by the defendant should not be
considered as proof of lack of remorse.
Id. at 628. Although the district court here neither gave nor
was asked to give such a specific instruction, it conveyed the
following admonition before submitting the case to the jury at
the sentencing phase:
And the burden is always on the prosecution to prove
the existence of these factors beyond a reasonable
doubt. The burden never shifts to the defendant, for
the law never imposes on a defendant in a criminal case
the burden or duty of calling any witnesses or of
producing any evidence.
. . . .
And as I told you before, the defendant in a criminal
case has an absolute [right] under the Constitution not
to testify. The fact that the defendant did not
testify, either in the guilt, eligibility or selection
phase must not be discussed or considered by the jury
in any way when arriving at your verdict.
No inference of any kind may be drawn from the fact
that the defendant decided to exercise his privilege
under the Constitution and did not testify.

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80
The law never imposes on a defendant in a criminal case
the burden or duty of calling any witnesses or
producing any evidence.
This, we think, is sufficient to cure any error. And “absent
some specific ‘reason to doubt that the jury . . . adhered to
the district court’s directive,’ this [C]ourt will not conclude
to the contrary.” Runyon, 707 F.3d at 497 (quoting United
States v. Castillo–Pena, 674 F.3d 318, 322 (4th Cir. 2012)).
We observe from the record that “[Hager’s] affirmative
conduct displaying lack of remorse was significant and telling.”
Caro, 597 F.3d at 631. As summarized in the prosecutor’s
closing arguments in the selection phase,
As [Hager] drove back to Southeast Washington, DC, as
he bragged about killing Barbara, and the performance
of his two boys, Lonnie and Arlington, Alexis was
leaving a trail of tiny, bloody footprints as she
searched for her mother.
. . . .
You know that in the car, as they left the crime, the
defendant said words to the effect, “Can you believe
that? Can you believe that bitch? She is trying to
get me killed.”
And then when he gets to Minnesota Avenue and Nelson,
he brags to Charlie Johnson and the others that his
boys, his boys went hard. They are soldiers now.
Thus, we are of the strong opinion that, “[e]ven without
considering [Hager’s] silence, the jury could not reasonably
have reached another conclusion regarding lack of remorse.” Id.
at 631. Or, stated differently, we are certain beyond a

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81
reasonable doubt that the error that Hager complains about here
did not contribute to the jury’s decision to recommend a death
sentence. See Neder, 527 U.S. at 15.
For the reasons that we find harmless error as to Hager’s
constitutional claim, we also find that there is more than
sufficient evidence to support the lack of remorse factor.
Again, “[Hager’s] affirmative conduct displaying lack of remorse
was significant and telling.” Caro, 597 F.3d at 631.
One final point on this issue: We note that in its closing
argument, Hager’s counsel stated, “Barbara White was killed 14
years ago. Members of the jury, you do not know how Tommy Hager
feels about that today.” Hence, to the extent that the
prosecutor’s comments highlighted Hager’s failure to testify,
this statement by Hager’s counsel is a self-inflicted wound that
potentially does the same.
Consequently, we find no reversible error as to Hager’s
lack of remorse claim.
XI.
Finally, Hager alleges that the district court erred in the
third phase of the trial, the selection phase, by refusing to
instruct the jurors that they could recommend a death sentence
only if they found beyond a reasonable doubt that the
aggravating factors outweighed the mitigating ones. As already

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noted, a district court’s decision not to give a requested
instruction by the criminal defendant amounts to reversible
error only if the instruction: (1) was correct, (2) was not
substantially covered by the charge that the district court
actually gave to the jury, and (3) involved some point so
important that the failure to give the instruction seriously
impaired the defendant’s defense. Lewis, 53 F.3d at 32. Even if
these factors are met, however, failure to give the defendant’s
requested instruction is not reversible error unless the
defendant can show that the record as a whole demonstrates
prejudice. See Ellis, 121 F.3d at 923.
We ruled on this precise issue in Runyan, a FDPA case,
after briefing on this case had ended. Runyan, 707 F.3d at 516.
There, we stated that we were joining those circuits that have
found that “the reasonable-doubt standard does not apply to the
weighing of aggravating and mitigating factors, reasoning that
that process constitutes not a factual determination, but a
complex moral judgment.” Id. (citing United States v. Fields,
516 F.3d 923, 950 (10th Cir. 2008); United States v. Mitchell,
502 F.3d 931, 993–94 (9th Cir. 2007); United States v. Sampson,
486 F.3d 13, 31–32 (1st Cir. 2007); United States v. Fields, 483
F.3d 313, 345–46 (5th Cir. 2007)). We are persuaded that the
analysis there applies here. Nevertheless, we will briefly
address Hager’s arguments on this issue.

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Here, the district court instructed the jurors in
accordance with applicable federal statutory law, which states
that they could impose death if they found that the aggravating
factors sufficiently outweighed the mitigating ones.
Specifically, 21 U.S.C. § 848(k) (repealed 1996) provides in
relevant part:
[T]he jury . . . shall then consider whether the
aggravating factors found to exist sufficiently
outweigh any mitigating factor or factors found to
exist, or in the absence of mitigating factors, whether
the aggravating factors are themselves sufficient to
justify a sentence of death.
Still, Hager argues that this statute is unconstitutional. He
primarily bases his arguments on three Supreme Court decisions:
United States v. Gaudin, 515 U.S. 506 (1995), Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
(2002).
According to Gaudin, “criminal convictions [must] rest upon
a jury determination that the defendant is guilty of every
element of the crime with which he is charged, beyond a
reasonable doubt.” 515 U.S. at 510. “[T]he jury’s
constitutional responsibility is not merely to determine the
facts, but to apply the law to those facts and draw the ultimate
conclusion of guilt or innocence.” Id. at 514. Apprendi held
that this same right applies to any sentencing factor that
increases the defendant’s sentence beyond the statutory maximum

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because, like an element of a separate crime, the sentencing
factor results in a higher sentence than could be imposed for
the original crime. 530 U.S. at 476. Ring extended this
holding to capital sentencing schemes. 536 U.S. at 589.
“[U]nder the Due Process Clause of the Fifth Amendment and
the notice and jury trial guarantees of the Sixth Amendment, any
fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt.” Id. at 600
(alteration in original) (quoting Jones v. United States, 526
U.S. 227, 243 n.6 (1999)). The district court adhered to this
instruction when it asked the jury to determine whether the
government had proven beyond a reasonable doubt the necessary
aggravating factors to establish that Hager was eligible for the
death penalty. The jury unanimously found that the government
had.
Hager would have us extend the holding of Ring and require
that the jury’s weighing of aggravating and mitigating factors
be done by the same beyond a reasonable doubt standard. But the
Supreme Court has not set forth any such requirement. Neither
will we.

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XII.
For the foregoing reasons, we affirm Hager’s conviction and
sentence.
AFFIRMED

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WYNN, Circuit Judge, dissenting:
This is unquestionably a difficult case with deeply
troubling facts. But this case is not about Defendant
Thomas Hager’s factual guilt for Barbara White’s murder.
Rather, the issue here is whether the prosecution of the
murder-a crime that traditionally falls within the “police
power” of the States-was properly brought in federal court.
In particular, absent a showing that White’s murder fell
within the language of 21 U.S.C. § 848, Virginia has the
sole authority to prosecute this case.
The district court instructed the jury that under
Section 848(e)(1)(A), the federal government has concurrent
jurisdiction over all murders that are “meaningful[ly]
connect[ed]” to certain federal drug offenses. Ante, at 18.
But the language of Section 848(e)(1)(A), the context in
which the language is used, and the well-established
principle of narrowly construing federal criminal statutes
that infringe on State police powers militate against
reading the statute to sweep so broadly. Because the
district court improperly instructed the jury on the
necessary nexus between Defendant’s charged drug offense and
White’s murder, I respectfully dissent.

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I.
Although murder is typically a state crime, the federal
government asserted jurisdiction over White’s murder under
Section 848(e)(1)(A), which provides:
[A]ny person engaging in or working in furtherance
of a continuing criminal enterprise, or any person
engaging in an offense punishable under section
841(b)(1)(A) of this title . . . who intentionally
kills . . . may be sentenced to death . . . .
The government did not allege that Defendant was engaged in
or working in furtherance of a continuing criminal
enterprise (“CCE”), which is a drug distribution
organization involving five or more individuals that commits
a “continuing series of violations” of federal drug laws. §
848(c). Instead, the government alleged that Defendant
murdered White while engaging in a conspiracy to distribute
more than 50 grams of crack cocaine in violation of Section
841(b)(1)(A). [J.A. 205]
Before trial, Defendant requested the following
instruction regarding how closely connected the drug
conspiracy and White’s murder had to be in order to support
a conviction:
You may not find the defendant guilty merely
because the defendant was a member of a drug
trafficking conspiracy on the day of the offense.
You may not find the defendant guilty if you
find Barbara White’s death merely furthered the
defendant’s drug trafficking.

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You may only find the defendant guilty if you
find . . . Barbara White’s death was directly
related to, and an integral part of the, the
underlying drug trafficking offense punishable
under 21 U.S.C. § 841.
J.A. 518. By contrast, the government’s proposed
instruction stated that the jury must find beyond a
reasonable doubt “[t]hat the intentional killing was done
knowingly and was connected in a meaningful way to the drug
conspiracy . . . .” J.A. 633. Explicitly rejecting
Defendant’s argument regarding the scope of Section
841(b)(1)(A) and his proposed instruction, the district
court instructed the jury according to the government’s
proposed instruction. [J.A. 1358]
During a trifurcated trial, a jury convicted Defendant
of White’s murder, found him death-eligible, and sentenced
him to death. On appeal, Defendant contends that Section
848(e)(1)(A) contemplates federal prosecution only of
defendants who kill “during some trafficking activity or at
least to promote or protect the drug conspiracy.”
Appellant’s Br. at 39. Consequently, Defendant argues that
his conviction must be set aside because the district court
improperly instructed the jury on the necessary nexus

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between Defendant’s charged drug conspiracy and White’s
murder.1
II.
A.
Generally, we review a trial court’s jury instructions
for abuse of discretion. Volvo Trademark Holding
Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 484 (4th Cir.
2007). Claims that a jury instruction failed to correctly
state controlling law, however, are reviewed de novo. Id.
In particular, our review is de novo when the propriety of a
jury instruction turns on a question of statutory
construction. United States v. Wright, 634 F.3d 770, 774
1 The government contends that Defendant failed to
properly preserve his objection to the jury instruction, and
thus the instruction should be reviewed for plain error.
[Gov’t Br. at 94-96] Although not resolved by the majority
opinion, this argument is without merit. Defendant did in
fact object to the “meaningful connection” instruction.
[J.A. 1268] Moreover, to the extent the government argues
that the target of Defendant’s objection was not
sufficiently clear, this Court has held that “a claim of
instruction error may . . . be preserved by an objection in
a directed verdict motion made pursuant to Rule 29(a) of the
Federal Rules of Criminal Procedure, before the jury
retires.” U.S. v. Ebersole, 411 F.3d 517, 526 (4th Cir.
2005). At the close of the government’s case-in-chief,
Defendant moved for directed verdict under Rule 29, arguing
that “the statute required proof that the killing occurred
in the course of a drug transaction.” J.A. 2967-68.
Therefore, under Ebersole, Defendant’s instruction objection
was preserved.

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(5th Cir. 2011); United States v. Schneider, 14 F.3d 876,
878 (3d Cir. 1994) (“A plenary standard also applies to a
review of jury instructions where their interpretation turns
on a matter of statutory construction.”).
In construing statutes, our primary goal is to give
effect to congressional intent. NLRB v. Wheeling Elec. Co.,
444 F.2d 783, 787 (4th Cir. 1971). In ascertaining
congressional intent, we always begin with the statute’s
plain language, “giv[ing] the terms their ordinary,
contemporary, common meaning, absent an indication Congress
intended [the terms] to bear some different import.” Crespo
v. Holder, 631 F.3d 130, 133 (4th Cir. 2011) (internal
quotation marks omitted). In so doing, “we not only look to
the language itself, but also the specific context in which
that language is used, and the broader context of the
statute as a whole.” In re Total Realty Mgmt., LLC, 706
F.3d 245, 251 (4th Cir. 2013) (internal quotation marks
omitted).
Principles of statutory construction require that when
identical terms or phrases are used in different parts of
the same statute, we first seek to interpret the terms or
phrases as having the same meaning. Id. However, this
presumption of consistent usage “yields readily to
indications that the same phrase used in different parts of

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the same statute means different things . . . .” Barber v.
Thomas, 130 S. Ct. 2499, 2506 (2010); see also, United
States v. Bly, 510 F.3d 453, 461 (4th Cir. 2007). Indeed,
the Supreme Court long has recognized that “[i]t is not
unusual for the same word to be used with different meanings
in the same act, and there is no rule of statutory
construction which precludes the courts from giving to the
word the meaning which the Legislature intended it should
have in each instance.” Atl. Cleaners & Dyers, Inc. v.
United States, 286 U.S. 427, 433 (1932).
Settled interpretative principles also require that we
construe, to the extent possible, all parts of a statute to
have meaning. Total Realty Mgmt., 706 F.3d at 251.
Consequently, we must “reject constructions that render a
term redundant.” PSINet v. Chapman, 362 F.3d 227, 232 (4th
Cir. 2004).
When a federal criminal statute regulates
“traditionally local criminal conduct,” courts must construe
the federal statute narrowly to avoid unduly infringing on
the police power reserved to the States. Jones v. United
States, 529 U.S. 848, 858 (2000) (quoting United States v.
Bass, 404 U.S. 336, 350 (1971)). Therefore, “‘unless
Congress conveys its purpose clearly, it will not be deemed
to have significantly changed the federal-state balance’ in

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the prosecution of crimes.” Id. (quoting Bass, 404 U.S. at
349).
Importantly, this “clear statement” requirement is not
grounded in the Commerce Clause, which establishes the outer
limit of Congress’s authority to criminalize conduct.
Rather, it is grounded in the doctrine of constitutional
avoidance, the principle that when “choosing between
competing plausible interpretations of a statutory text,”
courts should “presum[e] that Congress did not intend the
alternative which raises serious constitutional doubts.”
Clark v. Martinez, 543 U.S. 371, 381 (2005); Jones, 529 U.S.
at 858 (noting that the clear statement requirement is based
in the doctrine of constitutional avoidance).
In the context of federal criminal laws, this clear
statement requirement ensures that federal statutes do not
create serious federalism concerns by unnecessarily being
construed in a way that unduly encroaches on the States’
police powers. Bass, 404 U.S. at 349-50. Consequently,
absent a clear indication that Congress intended to
criminalize certain conduct, courts should not read a
federal criminal statute as extending to the full limit of
Congress’s power under the Commerce Clause. Id.; see also
John S. Baker, Jr., Jurisdictional and Separation of Powers
Strategies to Limit the Expansion of Federal Crimes, 54 Am.

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U. L. Rev. 545, 564-65 (2005) (noting that traditionally
“the great Commerce Clause cases had nothing to do with
crime” because “the Supreme Court often separated criminal
cases based on the Commerce Clause by use of narrow
statutory construction in order to avoid the constitutional
issue”).
The clear statement rule also is grounded in the rule
of lenity, which requires that “‘when [a] choice has to be
made between two readings of what conduct Congress has made
a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoke in
language that is clear and definite.’” Jones, 529 U.S. at
858 (quoting United States v. Universal C.I.T. Credit Corp.,
344 U.S. 218, 221-22 (1952)); see also United States v.
Hilton, 701 F.3d 959, 969 (4th Cir. 2012).
B.
These interpretative principles guide our determination
of whether the district court’s “meaningful connection”
instruction was proper. As always, we should begin with
Section 848(e)(1)(A)’s plain language, which informs us that
the statute can be broken up into three prongs. Ante, at 15
(citing United States v. Aguilar, 585 F.3d 652, 657 (2d Cir.
2009)).

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The first prong covers individuals “engaging in . . . a
[CCE].” § 848(e)(1)(A). The statute defines being “engaged
in a [CCE]” as “occup[ying] a position of organizer, a
supervisory position, or any other position of management”
and “obtain[ing] substantial income or resources” from the
CCE. § 848(c)(2)(A)-(B). Thus, under the plain language of
the statute, a “manage[r]” or “supervisor[]” of a CCE—
essentially a “kingpin,” Chapman v. United States, 500 U.S.
453, 467 (1991)—is subject to federal prosecution for any
murder he commits while in that position, regardless of how
closely it is related to the CCE.
Concerned that CCE kingpins would be subject to
unrestricted federal murder liability regardless of how
closely connected a murder was to their drug enterprise,
and, consequently, that the statute would run afoul of the
Commerce Clause, federal courts have read in a requirement
that there be a “substantive connection” between the murder
and the CCE to fall within the scope of the first prong of
Section 848(e)(1)(A). See, e.g., United States v. Desinor,
525 F.3d 193, 202 (2d Cir. 2008); United States v. Tipton,
90 F.3d 861, 887 n.13 (4th Cir. 1996). Importantly, the
“substantive connection” requirement does not derive from an
interpretation of the statutory “engaging in” language, but
rather has been inferred by courts to avoid Constitutional

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concerns. Aguilar, 585 F.3d at 661 (characterizing the
“substantial connection” requirement as “judicially
implied”); see also Tipton, 90 F.3d at 887 n.13 (noting that
the “substantive connection” element is “implied” by
courts). Section 848(e)(1)(A)’s second prong encompasses
individuals who are not “kingpins,” but who commit murders
while “working in furtherance of” a CCE. Thus, unlike with
kingpins, mere participation in the CCE is insufficient to
support federal jurisdiction for murders committed by a CCE
underling—the murder must be made while “working in
furtherance of” the CCE. For purposes of Section
848(e)(1)(A), a defendant is “working in furtherance of a
[CCE]” if, at the time of the killing, he is “working to
promote or advance the interest of a [CCE].” United States
v. Cooper, 19 F.3d 1154, 1165 (7th Cir. 1994). This prong
primarily covers CCE underlings, see, e.g., United States v.
Ealy, 363 F.3d 292, 295-96 (4th Cir. 2004), but also
encompasses situations in which a CCE hires “henchmen . . .
who commit murder to further [the] drug enterprise in which
they may not otherwise be intimately involved.” United
States v. McCullah, 76 F.3d 1087, 1103 (10th Cir. 1996).
The third prong, under which Defendant was convicted,
covers individuals “engaging in” drug manufacturing,
distribution, or importation crimes punishable under Section

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841(b)(1)(A). The third prong potentially implicates a far
broader swath of defendants than either of the first two
prongs because it encompasses drug distribution
organizations composed of less than five persons-even single
distributors fall under its language-and it does not require
that the defendant have committed a continuing series of
violations—a single violation may suffice.
Although like the first prong, the third prong requires
the actus reus “engaging in,” unlike with the first prong,
the statute does not explicitly define what it means to be
“engaging in an offense punishable under section
841(b)(1)(A).” See § 848. Congress’s decision to
explicitly define “engag[ing] in” in the first prong in a
manner that is facially inapplicable outside of the context
of CCEs indicates that Congress did not intend for “engaging
in” to be interpreted the same way in the third prong.
Barber, 130 S. Ct. at 2506. Thus, we cannot take our usual
approach of consistently defining “engaging in” across both
prongs. Id.
Because we cannot interpret “engaging in” identically
across the first and third prongs, the key question this
Court is tasked with answering is how to interpret “engaging
in” as it is used in the third prong. Clearly, any
individual committing a substantive drug offense at the time

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of a murder would be “engaging in” the drug offense for
purposes of the statute. See, e.g., United States v. Davis,
269 F. App’x 318, 319-20 (4th Cir. 2008) (reviewing
conviction under prong three of Section 848(e)(1)(A) when
victim was killed in the course of an unsuccessful cocaine
exchange); United States v. Williams, 85 F. App’x 341, 344
(4th Cir. 2004) (affirming prong three conviction for murder
committed during failed crack purchase).
The more difficult question involves situations, like
the instant case, in which the defendant is alleged to have
been “engaging in” a conspiracy to manufacture, distribute,
or import illegal drugs. As is the case with the first
prong, in the case of conspiracies, the language of the
statute could be read as requiring merely a temporal
connection between the murder and conspiracy—i.e. any murder
committed during the course of the conspiracy, regardless of
the relationship to the conspiracy, would be subject to
federal jurisdiction. Such an outcome would raise the same
Commerce Clause concerns as the first prong and thus
mandates, at the very least, imposition of the “substantive
connection” requirement.
The remaining question, then, is whether the implicit
“meaningful connection” or “substantive connection”
requirement is the only nexus requirement for defendants

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charged under Section 848(e)(1)(A) with murder while
“engaging in” a conspiracy to violate federal drug laws.
Interpreting the third prong identically to the first prong,
the majority opinion concludes that Congress’ use of the
term “engaging in” in the third prong imposes no additional
nexus requirement. Ante, at 18. In so holding, the
majority opinion effectively concludes that Congress
intended for the third prong to reach the full scope of
federal authority under the Commerce Clause. This
conclusion is contrary to the plain language of the statute,
well-established interpretative principles, and compelling
federalism concerns.
The requisite relationship between a drug offense and a
murder imposed by the term “engaging in” in the third prong
is best understood by comparing it to the nexus requirement
for the second prong-that a murder be committed while a
defendant was “working in furtherance of” a CCE.
Intuitively, “engaging in” requires a closer connection
between the murder and the drug offense than “working in
furtherance.” This intuition is borne out in the
contemporary definitions of the two terms. “Engage” is
commonly defined as “[t]o involve oneself or become
occupied; participate.” The American Heritage Dictionary
591 (5th ed. 2011); see also Black’s Law Dictionary 608 (9th

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ed. 2009) (defining “engage” as “[t]o employ or involve
oneself; to take part in”). By comparison, “further” is
defined as “[t]o help the progress of; promote.” The
American Heritage Dictionary 713. “Participat[ion]”
connotes a more active, closer relationship than
“promot[ion].”
Regarding the relationship between the nexus
requirements for prong one and prong two, the government
concedes that the “in furtherance” standard is “more
demanding” than the “substantial” or “meaningful” connection
requirement. Appellee’s Br. at 83-84. Because the third
prong requires a closer nexus than the “working in
furtherance” standard, it also necessarily is more demanding
than the “substantial connection” standard for the first
prong. Although this Court has not provided judicial gloss
on the “substantive connection” standard, the Second Circuit
has held that under the standard “[t]he government has no
burden to establish that a drug-related motive was the sole
purpose, the primary purpose, or even that it was equally as
important as any non-drug-related purpose, as long as it was
one purpose.” Desinor, 525 F.3d at 202. Thus, to satisfy
the third prong’s nexus requirement, advancing the drug
conspiracy must be the primary or predominant purpose of the

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murder, or the murder must have significantly advanced or
promoted the drug conspiracy.
The context in which “engaging in” is used in the third
prong also supports requiring more than a “substantial
connection” between a murder and a drug offense. In
particular, requiring a close connection between the drug
offense and the murder comports with the structure of the
statute: The first prong deals with “kingpins” of large-
scale drug conspiracies-the most culpable drug offenders-and
requires only a “substantial connection” between the murder
and the CCE. The second prong deals with underlings in
large-scale drug conspiracies and requires that the murder
and the drug offense be somewhat more closely related-the
defendant must have committed the murder while “working in
furtherance of” the CCE. Although potentially serving as a
basis for prosecution of CCE kingpins and underlings, see
infra, the third prong also encompasses single distributors
and defendants who only commit a single violation of federal
drug laws-the least culpable drug offenders-and, based on
the trend from the first two prongs, should require the
closest connection between the murder and the drug offense.
One might argue that focusing on a defendant’s
culpability for violating federal drug laws is misplaced
because Section 848(e)(1)(A) punishes defendants for murder,

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and a smaller scale drug offender may be just as blameworthy
for a murder as a CCE member. But because Congress
generally lacks authority to “regulate noneconomic, violent
criminal conduct,” United States v. Morrison, 529 U.S. 598,
617 (2000), Congressional power to punish murder under
Section 848(e)(1)(A) is premised on a defendant’s
culpability for an associated drug offense, which Congress
can regulate under the Commerce Clause, Gonzales v. Raich,
545 U.S. 1, 22 (2005). Consequently, Congress’s authority
to punish drug-related murders stems from the murders’
impact on the interstate drug trade, not the violent conduct
itself. Because prong one offenders are more heavily
invested in the drug trade, it makes sense that Congress
would require the government to adduce less evidence linking
the murder to the defendant’s drug offenses: The defendant
is a drug “kingpin,” and thus it can reasonably be assumed
that virtually all of her violent conduct is related to her
drug business.
Additionally, when considered in the context of the
statute as a whole, the majority opinion’s construction of
the nexus requirement for the third prong violates the
precept that we must seek to give all elements of a statute
meaning. By definition, all CCEs constitute conspiracies
punishable under Section 841(b)(1)(A) because they involve

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an “organization” of multiple individuals that commit a
series of violations of federal drug laws. See, e.g.,
United States v. Jones, 101 F.3d 1263, 1267-68 (8th Cir.
1996) (finding individual participating in CCE was also
engaged in conspiracy to distribute drugs). Indeed, the
Supreme Court has held that a conspiracy to illegally
manufacture, distribute, or import drugs under Section
841(b)(1)(A) is a lesser-included offense of a CCE. Jeffers
v. United States, 432 U.S. 137 (1977); see also United
States v. Butler, 885 F.2d 195, 202 (4th Cir. 1989). By
interpreting the third prong as merely requiring a
“substantive connection,” the majority opinion renders the
first prong meaningless: All CCE kingpins simply could be
convicted under the third prong because, by participating in
the CCE, they necessarily are conspiring to violate federal
drug laws. Rules of statutory construction require that we
reject such an interpretation.2 Total Realty Mgmt., 706
F.3d at 251.
2 For the same reason, the government’s alternative
argument that the three prongs merely describe types of
offenders and do not set out any nexus requirement between a
murder and drug offense also fails. See Appellee’s Br. at
85 (asserting that “[p]otentially, the ‘engaging in’
provision, and perhaps even the ‘working in furtherance’
provision, could be read as requiring no relationship beyond
a temporal one”). Were the statutory language to impose no
nexus requirement, the first prong would be surplussage
(Continued)

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Finally, interpreting the third prong of Section
848(e)(1)(A) narrowly-and thus requiring a close connection
between a defendant’s drug offense and a murder-avoids
unduly infringing on the police power reserved to the
States. Indeed, the Constitution explicitly authorizes
Congress to punish crimes in only limited circumstances,
including counterfeiting, piracy and other crimes on the
high seas, and treason. See U.S. Const. art. I, § 8, cls. 7
& 11, art. III, § 3. Though Congress has authority to
establish additional federal crimes under the Commerce
Clause, U.S. Const. art. I, § 8, cl. 3, it has long been
recognized that the punishment of violent crime-and murder
in particular-lies at the core of the States’ police powers,
Cohens v. State of Virginia, 19 U.S. 264, 426 (1821)
(Marshall, C.J.) (noting that Congress has “no general right
to punish murder committed within any of the States”); The
Federalist No. 17, (Alexander Hamilton) (noting that the
Constitution reserved to the States the “administration of
criminal and civil justice”). The Supreme Court recently
reaffirmed this principle: “[W]e can think of no better
example of the police power, which the Founders denied the
because all CCE kingpins could simply be charged under the
third prong.

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National Government and reposed in the States, than the
suppression of violent crime . . . .” United States v.
Morrison, 529 U.S. 598, 618 (2000).
Typically, the States are jealous of their police
power. See, e.g., Virginia ex rel. Cuccinelli v. Sebelius,
656 F.3d 253 (4th Cir. 2011). But this appears not to be
the case here, as Virginia seems to have willingly ceded its
authority to prosecute White’s murder to the federal
government. Yet that acquiescence alone does not give the
federal government authority to prosecute White’s murder: it
is our responsibility to determine whether Congress has
granted us jurisdiction and ensure that federal statutes do
not unnecessarily upset the federal-state balance carefully
crafted by the Framers. And the majority opinion’s broad
reading of “engaging in” in the third prong poses federalism
concerns by raising the prospect of virtually unrestricted
federal murder liability for drug offenders, particularly
those engaged in drug conspiracies.
Consider, for example, a drug distribution conspiracy
composed of two brothers. Over a two-year period, the older
brother sells small amounts of crack to end users, and the
younger brother serves as his lookout. When aggregated, the
crack sales are sufficient to establish liability under
Section 841(b)(1)(A). One day the younger brother observes

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the older brother’s girlfriend kissing another man. Upset
that the girlfriend is being unfaithful to his brother, the
younger brother immediately shoots and kills her. At the
time of the shooting, the younger brother knew that killing
the girlfriend also could improve his reputation for
toughness in the community. Under the majority opinion’s
expansive construction of Section 848(e)(1)(A), the younger
brother would be subject to federal prosecution for the
murder because the younger brother knew that his drug
conspiracy could collaterally benefit from killing the
girlfriend by improving his reputation for toughness and,
consequently, warding off competitors. See Ante, at 19
(holding that drug-related motive must only be “one purpose”
behind the killing to satisfy prong three’s nexus
requirement).
Under such logic, any murder committed by a drug
offender would be amenable to federal prosecution. But when
faced with more than one reasonable interpretation of a
federal criminal statute, we must choose the construction
that least infringes on the police power reserved to the
States. Jones, 529 U.S. at 858.

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C.
Furthermore, the reasons cited in the majority opinion
for its expansive construction of the third prong of Section
848(e)(1)(A) are unpersuasive. First, the majority opinion
argues that the plain language of the statute
“unambiguous[ly]” states that “[o]ne . . . who intentionally
kills someone while engaged in a drug conspiracy is eligible
for the death penalty . . . .” Ante, at 22. But even
notwithstanding that the plain language of the third prong
of Section 848(e)(1)(A) requires a drug offense and murder
to be more than “meaningful[ly] connect[ed],” the statute is
at least ambiguous as to the meaning of “engaging in” in the
third prong. Congress’s decision to explicitly define
“engag[ing] in” in the first prong in a manner that is
inapplicable outside of the context of CCEs-while leaving
“engaging in” in the third prong undefined-renders the
meaning of “engaging in” in the third prong ambiguous
because it requires that the term be interpreted two
different ways. See In re Air Cargo Shipping Svcs.
Antitrust Lit., 697 F.3d 154, 159 (2d Cir. 2012) (explaining
that once “it has been established that a statutorily
defined term has different meanings in different sections,
the term standing alone is necessarily ambiguous and each
section must be analyzed to determine whether the context

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gives the term a further meaning that would resolve the
issue in dispute.” (quotation marks omitted)); see also
Robinson v. Shell Oil Co., 519 U.S. 337, 343-44 (1997).
Moreover, the statute is ambiguous because the majority
opinion’s interpretation renders the first prong
meaningless. See Universal Maritime Svc. Corp. v. Wright,
155 F.3d 311, 320 (4th Cir. 1998) (holding that a statute
was ambiguous when an ordinary meaning interpretation would
render component of statute “meaningless”). As previously
explained, when a federal criminal statute is ambiguous and
potentially infringes on the police power of the States or
raises Commerce Clause concerns, we must choose the
reasonable construction that least upsets the federal-state
balance. See Jones, 529 U.S. at 858.
Second, the majority opinion suggests that its
interpretation of the nexus requirement for prong three was
compelled by this Court’s decision in United States v.
Tipton, 90 F.3d 861, 887 (4th Cir. 1996). Ante at 17, 29.
But the majority opinion’s appeal to Tipton is misplaced
because Tipton involved defendants who were convicted under
prong one, not prong three, like Defendant.3 Tipton, 90
3 The Tipton defendants were charged with committing a
series of murders while “engaging in and working in
furtherance of” a CCE. 90 F.3d at 869, 887. The jury
(Continued)

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F.3d at 869-70, 887. And, as previously explained, the
nexus requirement for prong one is statutorily defined in a
way that is clearly inapplicable to prong three cases. See
supra Part II.B. Thus, the majority opinion neither was
required to apply Tipton in the instant case, nor did it
make sense to do so.
Finally, the only prong three case relied on by the
majority opinion, the Second Circuit’s decision in Aguilar,
was legally flawed.4 In Aguilar, the Second Circuit held
that in third prong cases the government need only show a
“substantive connection” between a murder and a drug
conspiracy. 585 F.3d at 660. Although the Aguilar panel
properly recognized that Section 848(e)(1)(A) can be broken
up into three prongs, its ultimate conclusion was controlled
by the Second Circuit’s earlier decision in Desinor.
Aguilar, 585 F.3d at 659-60; see also United States v.
Santos, 541 F.3d 63, 69 (2d Cir. 2008) (noting that Desinor
convicted all of the defendants of engaging in a CCE, id. at
869-70, and thus whether the murders were also committed in
furtherance of the CCE was not essential to the jury’s
verdict. Regardless, the Tipton defendants were neither
charged nor convicted under prong three, which is the only
prong at issue in this case.
4 It appears that the Second Circuit is the only
federal appellate court to address the third prong’s nexus
requirement in a published decision.

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established the nexus requirement for prong three cases).
And the Desinor court failed to appropriately give meaning
to each of the statute’s three parts by reading out the
disjunctive between the CCE and small-scale drug offense
clauses. See Desinor, 525 F.3d at 200-01 (stating that
Section 848(e)(1)(A) applies to “‘any person engaging in or
working in furtherance of . . . [a drug] offense punishable
under section 841(b)(1)(A)’” (alteration in the original)
(quoting § 848(e)(1)(A))). As a consequence of this
interpretive error, the Desinor court adopted the
“substantive connection” test from an Eighth Circuit prong
one case and made no attempt to interpret “engaging in” in
the third prong independently. Id. at 202 (citing Jones,
101 F.3d at 1267).
In sum, in cases in which the government prosecutes a
defendant under the third prong of Section 848(e)(1)(A),
alleging that a murder occurred while the defendant was
engaged in a conspiracy to violate federal drug laws, the
government should be required to show that the defendant’s
predominant or primary purpose in committing the murder was
to promote or advance his drug conspiracy or that the murder
significantly advanced or promoted the conspiracy.
Consequently, the district court erred as a matter of law in

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instructing the jury that only a “substantive connection”
was required.
D.
The remaining issue is whether the district court’s
improper instruction constituted reversible error. In cases
where a jury renders a verdict after being misinstructed,
this Court may apply harmless error analysis, and in so
doing,
must attempt to ascertain what evidence the jury
necessarily credited in order to convict the
defendant under the instructions given. If that
evidence is such that the jury must have convicted
the defendant on the legally adequate ground in
addition to or instead of the legally inadequate
ground, the conviction may be affirmed.
United States v. Hastings, 134 F.3d 235, 241-42 (4th Cir.
1998).
Here, it is impossible to conclude that the district
court’s errant instruction was harmless. “Meaningful
connection” is the least burdensome nexus requirement on the
spectrum of nexus requirements linking a murder to a drug
offense for purposes of the three prongs of Section
848(e)(1)(A). See supra Part II.B. The majority opinion
approvingly quotes the Desinor court’s holding that
advancing a drug conspiracy need not be a defendant’s
“primary” purpose in committing a murder in order to

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establish a “substantive connection” between a murder and
the conspiracy. Ante, at 19. But, as explained above, the
plain language of Section 848(e)(1)(A) requires that the
predominant or primary purpose of the killing must be to
advance the drug conspiracy. Because all we necessarily
know from the jury’s verdict is that advancing his drug
conspiracy was one motive behind Defendant’s murder of
White, the error cannot be found harmless under Hastings.
III.
In sum, nothing prevented Virginia from prosecuting
this case in its courts, and even if this Court sets aside
Defendant’s conviction in federal court, nothing prevents
the State from prosecuting it now. Perhaps the driving
consideration behind prosecuting this matter in federal
court was that it is not clear whether, under Virginia’s
capital punishment statute, this murder falls into any of
Virginia’s fifteen categories of death-eligible murders.
Va. Code Ann. § 18.2-31. But the zeal to try a defendant
capitally must not breach the Constitution’s carefully
crafted roles for the States and the federal government in
protecting the public from violent crime.
In this case, the district court breached that role by
improperly instructing the jury that the government needed

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to establish only a “meaningful connection” between White’s
murder and Defendant’s drug conspiracy. That is reversible
error. With great respect for the contrary view of my fine
colleagues in the majority, I dissent.

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