United States of America v.  Richard Allen Jackson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-9 
RICHARD ALLEN JACKSON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-74)
Argued: September 23, 2002
Decided: March 18, 2003
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote an opinion,
Parts I, IV-XVI of which Judge Motz and Judge King joined. Judge
Motz and Judge King wrote a separate opinion that constitutes the
court’s opinion on Parts II and III.
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, MAHER,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appel-
lant. Jerry Wayne Miller, Assistant United States Attorney, Asheville,
North Carolina, for Appellee. ON BRIEF: David G. Belser, BELSER
& PARKE, Asheville, North Carolina, for Appellant. Robert J. Con-

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rad, Jr., United States Attorney, Asheville, North Carolina, for Appel-
lee.
OPINION
NIEMEYER, Circuit Judge, writing for the court in Parts I, IV-XVI:
A federal jury convicted Richard Allen Jackson of using a firearm
during and in relation to kidnapping, sexually abusing, and murdering
Karen Styles on October 31, 1994, in the Pisgah National Forest near
Asheville, North Carolina, in violation of 18 U.S.C. § 924(j). Acting
under the process required by 18 U.S.C. § 3593(e), the jury recom-
mended that Jackson be sentenced to death. In accordance with that
recommendation, the district court imposed the sentence of death on
May 14, 2001.
On appeal, Jackson contends: (1) that the district court erred in
denying his motion to dismiss the indictment for prosecutorial vindic-
tiveness in light of the circumstances surrounding his State and fed-
eral prosecutions; (2) that the district court erred in denying his
motion to dismiss on double-jeopardy grounds because he had been
tried on the same facts in State court; (3) that the district court uncon-
stitutionally excluded a juror on the basis of his death penalty views;
(4) that the district court erred in denying Jackson’s motion for a mis-
trial based upon the alleged prosecutorial misconduct of calling a wit-
ness whose testimony was tainted and unreliable; (5) that the district
court erred in admitting the testimony of stun-gun expert Dr. Robert
Stratbucker; (6) that the district court erred in admitting the prior-act
testimony of Georgia Katz and Maurice Evans, in violation of Federal
Rule of Evidence 404(b); (7) that the district court unconstitutionally
excluded evidence regarding the psychological and emotional condi-
tion of Jackson’s biological sister, proffered as mitigating evidence
during the sentencing phase; (8) that the district court erroneously
admitted, during the sentencing phase, an October 2000 videotaped
interview of Jackson in rebuttal of the mitigating evidence presented
by his mother, Sally Jackson; (9) that Jackson received ineffective
assistance of counsel when one of his lawyers stated in his closing
argument that "justice in this case says death"; (10) that the district
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court erred in allowing the jury to consider multiple intent factors
when only one was necessary for imposition of the death penalty; (11)
that the statutory aggravating circumstance found by the jury of "sub-
stantial planning and premeditation" is unconstitutionally vague; (12)
that the district court erroneously instructed the jury when it failed to
require that the entire jury consider a mitigating factor established if
one juror found that factor to be established; (13) that the indictment
was defective under the Fifth Amendment Indictment Clause, as inter-
preted in light of Ring v. Arizona, 122 S. Ct. 2428 (2002), and
Apprendi v. New Jersey, 530 U.S. 466 (2000), for failing to allege
aggravating circumstances necessary for the imposition of the death
penalty, and that absent such allegations, the death penalty could not
have been imposed; and (14) that the district court erred in denying
Jackson’s motion to be returned to State custody to finish his preexist-
ing State sentence before beginning his federal sentence, i.e., before
being subject to the federal sentence of death.
Upon review of the entire record and after consideration of all of
the issues raised by Jackson on appeal, as well as whether the sen-
tence of death was imposed under the influence of passion, prejudice,
or any other arbitrary factor and whether the evidence supports the
jury’s special finding of the existence of an aggravating factor
required to be considered under 18 U.S.C. § 3592, we find no revers-
ible error. See 18 U.S.C. § 3595. We state our reasons for the disposi-
tion of each of Jackson’s arguments in the opinions that follow. Parts
I, IV-XVI of this opinion and Parts II and III as written in the separate
opinion by Judge Motz and Judge King constitute the opinions of the
court. Accordingly, we affirm Jackson’s conviction and the sentence
of death imposed by the district court.
I
On Halloween morning, October 31, 1994, Karen Styles, a recent
college graduate, disappeared from a trail in the Pisgah National For-
est. A search initiated that evening, after Styles failed to return home,
revealed no trace of Styles herself. Her car was, however, still parked
at the lot at the head of the trail, and her car key was found on the
trail two-tenths of a mile from the parking lot.
A little more than three weeks later, Styles’ nude body was discov-
ered by a hunter, duct-taped to a tree, where investigators also found
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a duct-tape wrapper, a pornographic magazine, and one spent Rem-
ington .22 caliber rifle casing. An autopsy revealed that Styles died
from a single bullet wound to the head. She also had suffered ten
stun-gun wounds to her body, nine of them inflicted within six inches
of her pubic area. Investigators recognized from the duct-tape wrap-
per that the brand was sold at K-Mart. When sheriff’s deputies con-
tacted the nearest K-Mart store, located approximately one mile from
the murder site, they discovered a receipt for a transaction that
occurred on October 28, 1994, evidencing the purchase of a .22 rifle,
a box of Remington .22 rifle ammunition, duct tape, a flashlight, and
batteries. The ATF Form 4473 generated upon the purchase of the
rifle revealed the purchaser to be Richard Allen Jackson.
On December 20, 1994, Jackson voluntarily accompanied police to
the Buncombe County Sheriff’s Department for an interview. After
the officers advised Jackson of his Miranda rights, Jackson waived
them and answered questions for approximately three hours about his
background and his whereabouts in the days surrounding the date of
Styles’ murder. When the sheriff asked Jackson what he did with the
rifle that he used to shoot Karen Styles, Jackson responded, "I think
I need a lawyer present." The sheriff then informed Jackson that he
would not ask him any more questions and stated, "Son, I know you
bought the rifle and the duct tape at K-Mart on the 28th of October.
I know you were in Bent Creek on the day she was killed, and that’s
fine, but you need help." At this point Jackson broke down, crying
and insisting that he did not mean to kill anybody. After the officers
informed Jackson that he did not need to say anything because he had
invoked his right to counsel, Jackson stated that he wanted to tell the
whole story to get it off of his chest. He then signed another waiver
of his Miranda rights.
Jackson confessed fully. He stated that he arrived at the park
around 8:00 a.m. and watched Styles as she stretched and walked
down the trail. After sitting for a while, he took the gun out of the
back of the car, loaded it, and started down the trail. He also had duct
tape, a stun gun, and a pornographic magazine in his coat pockets.
After Karen Styles passed him on the trail, Jackson turned around and
pointed the gun at her, whereupon Styles took a key out of her shoe
and told Jackson that there was money in her car and that he could
take the car. She pleaded with him not to hurt her. Jackson placed
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duct tape over Styles’ eyes and mouth and led her to a remote area,
where he stood her with her back to a tree and duct-taped her to the
tree. The duct tape on Styles’ mouth had come loose by this time, and
Styles again asked him not to hurt her. Jackson taped her mouth shut
again, ripped off her shorts and underpants, and then raped her vagi-
nally. Although Jackson’s rendition did not describe his use of the
stun gun, evidence was presented at trial that he shocked Styles with
a stun gun once above her left breast and several times in the pubic
area. Jackson stated that he then moved away from Styles and looked
at his pornographic magazine while masturbating. The tape over
Styles’ mouth loosened, and Styles began screaming. Jackson walked
up to her, put the gun to her head, and shot her once. That afternoon,
Jackson went back to the K-Mart, returned the gun, and received a
refund.
Jackson was crying during his entire confession, and the report of
his confession indicates that at times during the interview the officers
could not understand his words. Jackson repeated many times that he
did not mean to kill Styles.
A search of Jackson’s home and cars, conducted pursuant to a
search warrant, led investigators to recover a functional stun gun, a
flashlight, a black "Ninja" outfit, a wrapper to an adult magazine, and
a partially empty box of .22 caliber rifle bullets.
Jackson was charged in Buncombe County with first-degree mur-
der, first-degree kidnapping, and first-degree rape. After the trial court
denied Jackson’s pretrial motion to suppress his confession, a jury
returned a guilty verdict on all three charges. On the jury’s recom-
mendation, the court imposed the death penalty for the murder con-
viction and prison sentences for the rape and kidnapping convictions.
On appeal, the North Carolina Supreme Court reversed Jackson’s
conviction and ordered a new trial, concluding that police had vio-
lated Jackson’s Miranda right not to be interrogated after he had
invoked his right to counsel. State v. Jackson, 497 S.E.2d 409, 412
(N.C. 1998).
On March 3, 2000, Jackson pled guilty in State court to second-
degree murder, first-degree rape, and second-degree kidnapping. The
stipulated prison sentences in the agreement totaled over 31 years,
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and Jackson received credit for 5 years already served. At the time of
Jackson’s plea, none of his lawyers considered the possibility of a
federal prosecution, and none advised Jackson that he could be sub-
ject to federal prosecution.
On November 6, 2000, a federal grand jury returned a superseding
bill of indictment charging Jackson, in one count, of using a firearm
during and in relation to a crime of violence, specifically murder, kid-
napping, and aggravated sexual abuse, in violation of 18 U.S.C.
§ 924(j)(1). At trial, the government called 22 witnesses during the
guilt phase and introduced extensive physical and testimonial evi-
dence, including Jackson’s confession, which was received without
objection. The jury returned a guilty verdict and then proceeded to
consider the appropriate sentence.
During the sentencing phase, the government presented the testi-
mony of the victim’s mother, Kathleen Styles, and the defense pre-
sented the testimony of Jackson’s adoptive mother, Sally Jackson.
The defense also attempted to offer the testimony of the adoptive par-
ents of Jackson’s natural sister, who suffered behavioral disorders, but
the district court did not allow this testimony without any expert testi-
mony linking the sister’s mental condition to Jackson’s. To rebut
Sally Jackson’s testimony, the government played for the jury, over
Jackson’s objection, portions of a videotaped interview given by Jack-
son for FOX News in October 2000, after his State conviction had
been reversed and he had been sentenced pursuant to a guilty plea.
The jury found unanimously that the government had proved beyond
a reasonable doubt four aggravating factors, including the fact that
Karen Styles’ death occurred during the commission of the offense of
kidnapping, as defined under 18 U.S.C. § 1201, and the fact that Jack-
son committed the crime in an "especially heinous, cruel or depraved
manner in that it involved torture or serious physical abuse to Karen
Styles." Various jurors found 14 mitigating circumstances, and the
jury found unanimously that "the aggravating factor or factors found
to exist sufficiently outweigh[ed] all the mitigating factor or factors
found to exist to justify a death sentence." All 12 jurors signed the
verdict form, unanimously recommending that Jackson be sentenced
to death.
In accordance with that recommendation, the district court entered
judgment on May 14, 2001, finding Jackson guilty of the offense
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charged in the indictment and imposing the sentence of death. The
judgment also provided: "This judgment is effective immediately and
is neither consecutive to nor delayed by the judgment and sentence
previously imposed by the State of North Carolina."
This appeal followed.
II
Jackson’s most significant argument on appeal is that, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona,
122 S. Ct. 2428 (2002), his indictment was defective because it did
not allege aggravating factors necessary to the imposition of the death
penalty and that the failure to allege an essential element in the indict-
ment cannot be deemed harmless error.
With some foresight at the time, Jackson moved in the district court
to dismiss the indictment because it failed to allege "the existence of
any of the 16 statutory aggravating factors set out in 18 U.S.C.
§ 3592(c)." (Emphasis added). In rejecting this argument, the district
court stated:
[T]he indictment clearly charges the Defendant with (1)
intentionally using a firearm and thereby causing the death
of Karen Styles; (2) intentionally shooting her with the fire-
arm; (3) acting with premeditation in the perpetration of an
act of violence; (4) the death occurred during the commis-
sion of kidnapping; (5) he subjected her to aggravated sex-
ual abuse during the commission of the offense; and (6) he
acted with malice aforethought and premeditation. While the
language of the indictment is not identical to the language
of the notice of intent to seek the death penalty, it contains
all the elements necessary under the federal death penalty
statute to charge a capital crime.
The court also ruled, in the alternative, that Congress did not make
aggravating circumstances statutory elements of an underlying
offense. The court stated, "[T]he statutes at issue expressly authorize
a maximum penalty of death and the sentencing factors of mental cul-
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pability and aggravating circumstances do not increase the sentencing
range but rather provide the particularized standards for choosing
which of the alternative available sentences should be imposed."
(Quoting United States v. Allen, 247 F.3d 741, 763 (8th Cir. 2001),
and citing Walton v. Arizona, 497 U.S. 639, 648 (1990)). On appeal,
Jackson preserved his argument, reasoning from the Supreme Court’s
decision in Apprendi that "a question emerges as to the constitutional-
ity of an indictment in a capital case that omits any aggravating cir-
cumstances that ultimately lead to the defendant’s death sentence."
Recognizing that the Supreme Court’s decision in Walton had
rejected his argument, Jackson nevertheless argued in his opening
brief that in light of Apprendi, "the validity of the plurality’s view in
Walton is questionable."
After Jackson submitted his opening brief but before he submitted
his reply brief, the Supreme Court overruled Walton in Ring v. Ari-
zona, 122 S. Ct. 2428 (2002). Accordingly, in his reply brief, Jackson
expanded his argument, in light of Ring, contending that because the
government relied on multiple aggravating circumstances to obtain
the death penalty, all of them must be alleged in the indictment. In
laying the foundation for this argument, Jackson stated:
Section 3593 [of Title 18] requires not only that the jury
find at least one aggravating circumstance beyond a reason-
able doubt, but also (1) that the jury find all the aggravating
factors outweigh any mitigating factors and (2) that the jury
find the death sentence is appropriate in light of all the
aggravating factors. Until the jury finds the aggravating fac-
tors outweigh the mitigating factors and that the death sen-
tence is appropriate in light of all the aggravating factors,
the death sentence is not an available punishment.
Resting on this sentencing scheme, Jackson concluded that "[b]ecause
the totality of the aggravating factors increase the authorized punish-
ment for Jackson, all of the aggravating factors must be raised in the
indictment. Because the indictment was deficient, the judgment of
death cannot stand." (Emphasis added).
Jackson was correct in forecasting that, because of Apprendi, Wal-
ton’s days were numbered. The defendant in Apprendi pleaded guilty
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to possession of a firearm under New Jersey law, which carried a
maximum sentence of 10 years’ imprisonment. During sentencing,
however, the sentencing judge found, by a preponderance of the evi-
dence, that Apprendi’s crime had been motivated by racial animus
with the purpose to intimidate, thus making Apprendi eligible for a
hate-crime sentence enhancement. With the enhancement, Apprendi
faced a maximum sentence on the firearm count of 20 years. The
court actually sentenced Apprendi on that count to 12 years’ impris-
onment, which exceeded the 10-year maximum for a violation with-
out the hate-crime enhancement. The Supreme Court concluded that
the trial judge’s factfinding and imposition of the hate-crime sentenc-
ing enhancement violated Apprendi’s Sixth Amendment jury trial
right because, "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt." Apprendi, 530 U.S. at 490. The Court described longstanding
historical practice indicating that "facts that expose a defendant to a
punishment greater than that otherwise legally prescribed were by
definition ‘elements’ of a separate legal offense." Id. at 483 n.10.
New Jersey defended against Apprendi’s constitutional attack with
the assertion that the hate-crime enhancement was not an element of
the offense but rather a sentencing factor to guide the judge’s discre-
tion. The Supreme Court rejected this argument because the legisla-
ture’s own characterization of the enhancement as an element or a
sentencing factor is not determinative: "[T]he relevant inquiry is one
not of form, but of effect — does the required finding expose the
defendant to a greater punishment than that authorized by the jury’s
guilty verdict?" Id. at 494. Again, "merely because the state legisla-
ture placed its hate crime sentence ‘enhancer’ within the sentencing
provisions of the criminal code does not mean that the finding of a
biased purpose to intimidate is not an essential element of the
offense." Id. at 495 (quotation marks and citation omitted). Accord-
ingly, Apprendi stands for the principle that regardless of the legisla-
ture’s characterization of a factor as a "sentence enhancement" or an
"element," the appropriate characterization of that factor under the
Constitution depends on how the factor functions. "[W]hen the term
‘sentence enhancement’ is used to describe an increase beyond the
maximum authorized statutory sentence, it is the functional equivalent
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of an element of a greater offense than the one covered by the jury’s
guilty verdict." Id. at 494 n.19.
When the Supreme Court applied the holding of Apprendi to Arizo-
na’s capital sentencing scheme, it concluded, in Ring v. Arizona, 122
S. Ct. 2428 (2002), that to the extent the Arizona sentencing scheme
permits a sentencing judge, sitting without a jury, to find an aggravat-
ing factor essential for the imposition of a death penalty, it violates
the Sixth Amendment. Arizona’s first-degree murder statute provided
that the offense "is punishable by death or life imprisonment as pro-
vided by § 13-703." Ariz. Rev. Stat. Ann. § 13-1105(C) (West 2001).
The cross-referenced § 13-703 required the trial judge to hold a sepa-
rate hearing to determine the existence and relative weight of aggra-
vating and mitigating circumstances and provided that "[t]he court
alone shall make all factual determinations required by this section."
Id. § 13-703. Summarizing the operation of this scheme, the Court
stated:
Based solely on the jury’s verdict finding Ring guilty of
first-degree felony murder, the maximum punishment he
could have received was life imprisonment. This was so
because, in Arizona, a death sentence may not legally be
imposed unless at least one aggravating factor is found to
exist beyond a reasonable doubt.
Ring, 122 S. Ct. at 2437 (quotation marks, ellipsis, and citations omit-
ted). Because "‘the core crime and the aggravating fact together con-
stitute an aggravated crime,’" Ring, 122 S. Ct. at 2441 (quoting
Apprendi, 530 U.S. at 501 (Thomas, J., concurring)), the aggravating
factor operates as "‘the functional equivalent of an element of a
greater offense,’" id. (quoting Apprendi, 530 U.S. at 494 n.19). The
Ring Court reiterated the Apprendi principle that "[i]f a State makes
an increase in a defendant’s authorized punishment contingent on the
finding of a fact, that fact — no matter how the State labels it — must
be found by a jury beyond a reasonable doubt." Id. at 2439. In his
concurring opinion in Ring, Justice Scalia explained:
What today’s decision says is that the jury must find the
existence of the fact that an aggravating factor existed.
Those States that leave the ultimate life-or-death decision to
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the judge may continue to do so — by requiring a prior jury
finding of aggravating factor in the sentencing phase or,
more simply, by placing the aggravating-factor determina-
tion (where it logically belongs anyway) in the guilt phase.
Id. at 2445 (Scalia, J., concurring).
Thus, under Apprendi and Ring, when a factual finding of at least
one aggravating factor is necessary to the imposition of a death sen-
tence, the aggravating factor functions as an element of an aggravated
offense — e.g., first-degree murder with an aggravating factor — and
must be found by the jury, as guaranteed by the Sixth Amendment.
The Supreme Court did not, however, address the scope of the Fifth
Amendment Indictment Clause in Ring because that case came from
a State system and the Fifth Amendment Indictment Clause has not
been incorporated against the States. See Ring, 122 S. Ct. at 2437 n.4.
Nonetheless, Jackson argues that the holding in Ring requires that an
aggravating factor necessary to the imposition of the federal death
penalty must also be alleged in the indictment. We agree.
The Fifth Amendment provides that "[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury." U.S. Const. amend. V. The
traditional rule for the sufficiency of an indictment is that it contain
all elements of the offense charged to give notice to the defendant of
the charge to which he must plead. Hamling v. United States, 418
U.S. 87, 117 (1974) ("[A]n indictment is sufficient if it, first, contains
the elements of the offense charged and fairly informs the defendant
of the charge against which he must defend, and, second, enables him
to plead an acquittal or conviction in bar of future prosecutions for the
same offense"); see also United States v. Carrington, 301 F.3d 204,
209-10 (4th Cir. 2002). Jackson does not dispute, on appeal, that his
indictment contained all the statutory elements necessary to allege a
violation of 18 U.S.C. § 924(j)(1), the basic offense for which he was
charged and convicted. Nor does he dispute that § 924(j)(1) carries
with it the potential penalty of death. But he maintains that just as the
aggravating factors essential to qualify his violation for the death pen-
alty must be found by the jury under Apprendi and Ring, they too
must be alleged in the indictment as elements of an aggravated
offense.
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It is no doubt true, as a general principle, that the Fifth Amendment
right to be charged by an indictment containing every element of the
offense is no less demanding than the Sixth Amendment right to have
every element of the offense found by the jury. See Harris v. United
States, 122 S. Ct. 2406, 2418 (2002) ("The grand and petit juries thus
form a strong and two-fold barrier between liberties of the people and
the prerogatives of the [government]") (quotation marks, ellipsis, and
citation omitted). Under this symmetry between indictment and fact-
finding, the indictment, which serves as a notice-giving document,
must charge each element on which the factfinder must focus to deter-
mine the defendant’s innocence or guilt on the charge. "A crime [is]
not alleged, and a criminal prosecution not complete, unless the
indictment and the jury verdict includ[es] all the facts to which the
legislature ha[s] attached the maximum punishment." Harris, 122 S.
Ct. at 2417.
Although Apprendi and its progeny have identified a circumstance
in which a fact that the legislature has characterized as a sentencing
factor must, as a matter of constitutional imperative, be treated as an
element — i.e., when that fact increases the potential punishment
beyond the statutory maximum — these cases have not obliterated all
distinctions between sentencing factors and elements. The Court in
Harris explained the distinctions. In Harris, the Supreme Court held
that it was permissible for a judge to find a fact that triggers a manda-
tory minimum sentence as long as that minimum sentence does not
exceed the maximum penalty under the statute. The Court construed
18 U.S.C. § 924(c)(1)(A), which criminalizes the use or carrying of
a firearm in relation to a crime of violence or drug trafficking and
stipulates a minimum sentence of five years if the gun is not bran-
dished or discharged, a mandatory minimum of seven years if the gun
is brandished, and a mandatory minimum of ten years if the gun is
discharged. According to the Court, this statute described a single
offense, and the fact of brandishment or discharge was a sentencing
factor, not an element of the crime that needed to be charged in the
indictment or submitted to the jury for proof beyond a reasonable
doubt. In reaching that conclusion, the Court began its analysis with
the recognition that "any fact extending the defendant’s sentence
beyond the maximum authorized by the jury’s verdict would have
been considered an element of an aggravated crime — and thus the
domain of the jury — by those who framed the Bill of Rights." Id.
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at 2414 (emphasis added). The Court stated further that this right to
have such elements found by a jury, and indeed alleged in the indict-
ment, was not something that Congress could bypass through statu-
tory labeling:
Congress may not manipulate the definition of a crime in a
way that relieves the Government of its constitutional obli-
gations to charge each element in the indictment, submit
each element to the jury, and prove each element beyond a
reasonable doubt.
Id. at 2414.
The Harris Court explained, however, that the indictment need not
allege all facts altering the range of the sentence to which the individ-
ual defendant may be exposed, so long as that range is within the
maximum range justified by the charge and the verdict of the jury on
that charge. It explained, "Judicial factfinding in the course of select-
ing a sentence within the authorized range does not implicate the
indictment, jury-trial, and reasonable-doubt components of the Fifth
and Sixth Amendments." Id. at 2415. Rather, the indictment only
needs to charge those facts that will make defendants aware of the
"heaviest punishment" that they might receive if convicted. Id. at
2416. Summarizing this principle, the Court stated:
Whether chosen by the judge or the legislature, the facts
guiding judicial discretion below the statutory maximum
need not be alleged in the indictment, submitted to the jury,
or proved beyond a reasonable doubt.
Id. at 2418; see also Proffitt v. Florida, 428 U.S. 242, 252 (1976)
(plurality opinion) ("[I]t has never [been] suggested that jury sentenc-
ing is constitutionally required").
In sum, if the governing statute provides that an aggravating factor
must exist to justify the imposition of the death penalty, the statute
provides for an "aggravated" offense and the indictment must there-
fore give notice of and charge the existence of the aggravated offense.
Accordingly, in this case, the analysis begins by looking at the statute
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under which Jackson was indicted to determine whether it provides
for an aggravated offense.
Jackson’s indictment charged a violation of 18 U.S.C. § 924(j)(1),
which provides:
A person who, in the course of a violation of subsection (c)
[using or carrying a firearm during and in relation to any
crime of violence], causes the death of a person through the
use of a firearm, shall — (1) if the killing is murder (as
defined in section 1111), be punished by death or by impris-
onment for any term of years or for life.
As used in that section, murder is defined as:
the unlawful killing of a human being with malice afore-
thought. Every murder perpetrated by poison, lying in wait,
or any other kind of willful, deliberate, malicious, and pre-
meditated killing; or committed in the perpetration of, or
attempt to perpetrate, any arson, escape, murder, kidnap-
ping, treason, espionage, sabotage, aggravated sexual abuse
or sexual abuse, burglary, or robbery; or perpetrated from a
premeditated design unlawfully and maliciously to effect the
death of any human being other than him who is killed, is
murder in the first degree.
18 U.S.C. § 1111(a).
While § 924(j)(1) authorizes punishment by a sentence of death or
a term of imprisonment, Chapter 228 of Title 18 (18 U.S.C. §§ 3591-
3598) dictates whether the death sentence for violation of § 924(j)
may be imposed. Section 3591 authorizes the imposition of the death
penalty only if a separate sentencing hearing is held pursuant to
§ 3593 in which the factfinder considers proof of mitigating and
aggravating factors, as listed in § 3592. If the factfinder finds that
aggravating factors sufficiently outweigh all mitigating factors to jus-
tify a sentence of death or if aggravating factors, without any mitigat-
ing factors, are sufficient to justify a sentence of death, the factfinder
is authorized to recommend the death penalty. 18 U.S.C. § 3593. If
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such a recommendation is made, the court must follow the recom-
mendation and sentence the defendant to death. 18 U.S.C. § 3594.
However, "[i]f no aggravating factor set forth in section 3592 is
found to exist, the court shall impose a sentence other than death
authorized by law." 18 U.S.C. § 3593(d) (emphasis added). Thus,
§ 924(j)(1) actually contains two offenses — a basic offense without
any aggravating factor, the commission of which exposes the defen-
dant to a maximum punishment of life imprisonment, and an aggra-
vated offense with at least one aggravating factor, the commission of
which exposes the defendant to the maximum punishment of the
death sentence.
Consequently, just as in the Arizona scheme where a "death sen-
tence may not legally be imposed . . . unless at least one aggravating
factor is found to exist beyond a reasonable doubt," Ring, 122 S. Ct.
at 2437 (quotation marks and citation omitted), so too at least one
aggravating factor is necessary for the imposition of the death penalty
under the relevant federal statutory scheme in this case. And because
the existence of at least one aggravating factor is necessary to impose
the death sentence, the existence of at least one aggravating factor
must be alleged in the indictment and that aggravating factor must be
found by the jury as a required element for exposing the defendant to
the death penalty.
Thus, to impose the death sentence on Jackson in this case, the
indictment must allege all elements of an aggravated offense, and
because at least one aggravating factor is necessary to charge such an
offense, the indictment must allege that at least one aggravating factor
exists. Reaching this conclusion, however, does not mean that all sen-
tencing factors must be included in the indictment. Harris explicitly
states otherwise. See Harris, 122 S. Ct. at 2418. Rather, when the
death penalty is dependent on a finding of an aggravated offense, then
the core statutory elements of that offense, as well as at least one
aggravating factor, must be charged in the indictment and found by
the jury. But it should be understood that the finding of guilt on such
an indictment does not ineluctably lead to the imposition of the death
penalty. Instead, the indictment assures that a verdict is returned on
an offense for which the sentence of death is available. Congress has
committed the decision whether to impose that penalty to the sen-
tencer, who remains free during the sentencing phase to impose the
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death sentence or some lesser sentence after hearing evidence regard-
ing sentencing factors, both aggravating and mitigating.
With these applicable principles stated, Jackson’s arguments may
now be reviewed. First, in his motion to dismiss the indictment, filed
in the district court, Jackson contended that the indictment was defec-
tive because it did not allege "the existence of any of the 16 statutory
aggravating factors." (Emphasis added). The district court, finding the
allegation of at least two statutory aggravating factors, denied Jack-
son’s motion. And insofar as Jackson appeals the denial of that
motion, affirmance is required. The indictment returned by the grand
jury against Jackson provided that on or about October 31, 1994, in
the Pisgah National Forest (in western North Carolina), Jackson:
did unlawfully, knowingly, and intentionally use and carry
a firearm, to wit: a .22 caliber rifle, during and in relation
to a crime of violence for which he may be prosecuted in a
court of the United States, to wit: Murder (Title 18 United
States Code, Section 1111(a)), Kidnapping (Title 18 United
States Code, Section 1201(a)(2)), and Aggravated Sexual
Abuse (Title 18 United States Code, Section 2241(a)(1)-
(2)), in violation of Title 18 United States Code, Section
924(c)(1), and, in the course of such violation and through
the use of such firearm, did cause the death of a person,
Karen Styles, in violation of Title 18 United States Code,
Section 924(j)(1), which killing is a murder as defined in
Title 18 United States Code, Section 1111, in that RICH-
ARD ALLEN JACKSON unlawfully killed a human being,
Karen Styles, with malice aforethought, by shooting her
with the firearm willfully, deliberately, maliciously, and
with premeditation, and in the perpetration and attempted
perpetration of a felony, to wit: kidnapping and aggravated
sexual abuse.
This indictment must be read to charge Jackson with use of a firearm
in the commission of first-degree murder with at least two aggravat-
ing factors. Section 3592(c) of Title 18 provides a list of aggravating
factors that can justify imposition of the death penalty. Jackson’s
indictment alleged aggravating factor one from this list, "death during
commission of another crime," inasmuch as the indictment alleged
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that the murder occurred during the perpetration of kidnapping, in
violation of 18 U.S.C. § 1201. See 18 U.S.C. § 3592(c)(1). In addi-
tion, aggravating factor six, which exists when the defendant is found
to have "committed the offense in an especially heinous, cruel, or
depraved manner in that it involved torture or serious physical abuse
to the victim," was also adequately alleged. See 18 U.S.C.
§ 3592(c)(6). Aggravated sexual abuse, which is alleged in the indict-
ment, would appear to satisfy "serious physical abuse to the victim."
Under 18 U.S.C. § 2241, which states the offense of "aggravated sex-
ual abuse," a person commits the offense when he "knowingly causes
another person to engage in a sexual act . . . by using force against
that other person; or . . . by threatening or placing that other person
in fear that any person will be subjected to death, serious bodily
injury or kidnapping; or attempts to do so." Because Jackson’s motion
below to dismiss the indictment was based on his claim that it did not
include any aggravating factors necessary for imposition of the death
penalty, the motion was correctly denied for the reasons given by the
district court.
On appeal, Jackson also makes a new argument in light of the
Supreme Court’s decision in Ring, contending that "[b]ecause the
totality of the aggravating factors increase the authorized punishment
for Jackson, all of the aggravating factors must be raised in the indict-
ment." (Emphasis added). Jackson, however, did not present this
argument to the district court, and accordingly it was forfeited. See
Carrington, 301 F.3d at 208. Such forfeited claims of error are
reviewed under the plain-error test established under Federal Rule of
Criminal Procedure 52(b), which is articulated as follows:
"Under that test, before an appellate court can correct an
error not raised at trial, there must be (1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affect[s] substantial rights.’" Johnson
v. United States, 520 U.S. 461, 466-67 (1997) (quoting
[United States v.] Olano, [507 U.S. 725], 732 [(1993)]). "If
all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings." 520 U.S. at 467
(internal quotation marks omitted) (quoting Olano, supra, at
732).
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United States v. Cotton, 122 S. Ct. 1781, 1785 (2002). To carry his
burden under the plain-error test, Jackson contends that it was error
to have sentenced him to death on an indictment that did not allege
all of the aggravating factors presented by the government to the jury
to return the death penalty.
The notice of intent to seek the death penalty, served on Jackson
pursuant to 18 U.S.C. § 3593(a), listed five aggravating factors —
three as listed in §§ 3592(c)(1), (6), and (9), and two non-statutory
factors. The government submitted four of the five factors to the jury.
Only the first aggravating factor, that the victim’s death occurred dur-
ing the commission of a crime (kidnapping) and the second, that the
offense was committed in an "especially heinous, cruel, or depraved
manner in that it involved torture or serious physical abuse of the vic-
tim," were alleged in the indictment. Thus, two aggravating factors
submitted to the jury during sentencing were not alleged in the indict-
ment. In arguing that this omission amounted to a fatal defect in the
indictment, Jackson confuses a necessary element with sentencing
facts.
Ring held that if an aggravating factor is statutorily necessary to the
imposition of the death penalty, a distinct aggravated offense is cre-
ated for which the death penalty is an available sentence, and, to find
the defendant guilty on that offense "at least one" factor must be
found by the factfinder. Ring, 122 S. Ct. at 2443. It follows that if an
aggravating factor is an element of the aggravated offense, then to
charge the offense, the existence of an aggravating factor must be
alleged. See Harris, 122 U.S. at 2417. The defendant is by such an
allegation given notice that a conviction on the indictment authorizes
imposition of the death penalty. But for the purpose of charging the
aggravated offense for which the heaviest punishment is available,
only the fact that an aggravating factor exists to justify the penalty
needs to be alleged, consistent with the role of the indictment. Id. at
2416. As long as the heaviest punishment is justified by a conviction
on the offense charged in the indictment, any other facts relevant to
sentencing are subject to "[j]udicial factfinding in the course of select-
ing a sentence within the authorized range," and such factfinding
"does not implicate the indictment" requirements of the Fifth Amend-
ment. Id. at 2415.
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In this case, because the applicable statute requires that at least one
aggravating factor be found to justify imposition of the death penalty,
18 U.S.C. § 3593(d), at least one must be alleged to charge the aggra-
vated crime for which the death penalty is authorized. The "core
crime" of using a gun for murder with the additional fact that at least
one aggravating factor exists constitutes "the aggravated crime." And
thus, only if the aggravated crime is charged may the jury also con-
sider the sentence of death. In this case, the indictment did allege at
least one aggravating factor so that the indictment charged an aggra-
vated crime, and therefore, on conviction, the "heaviest punishment"
of death could be, but need not be, imposed. See Ring, 122 S. Ct. at
2437 n.4 (quoting Proffitt, 428 U.S. at 252). The logic of Harris dic-
tates that once the heaviest punishment is justified by a jury verdict
of guilty on an indictment alleging an aggravated offense carrying the
potential punishment of death, whether to impose the death penalty
becomes the product of the sentencing factfinding prescribed by 18
U.S.C. § 3593. See 122 S. Ct. at 2418. ("The Fifth and Sixth Amend-
ments ensure that the defendant ‘will never get more punishment than
he bargained for when he did the crime,’ but they do not promise that
he will receive ‘anything less’ than that") (quoting Apprendi, 530 U.S.
at 498 (Scalia, J., concurring)).
Thus, Jackson has not demonstrated that the omission of all of the
aggravating factors was error, much less plain error. See Cotton, 122
S. Ct. at 1785. Accordingly, this new argument raised for the first
time on appeal must be rejected.
In addition to his arguments relating to the indictment’s failure to
allege aggravating facts, Jackson contends that the allegations of the
indictment that referred to kidnapping as an aggravating factor were
insufficient because the indictment did not recite all the elements of
the underlying crime of kidnapping, as defined by 18 U.S.C. § 1201.
This argument, too, is without merit. Established rules of pleading in
an indictment do not require that each term or fact be fully defined,
so long as the defendant is provided fair notice of the elements of the
offense with which he is charged and sufficient detail so that he can
plead an acquittal or a guilty verdict as a bar to a subsequent prosecu-
tion for the same offense. See Hamling, 418 U.S. at 117; Carrington,
301 F.3d at 209-10. But while it is true that an indictment must
include all the elements of an offense, these elements may employ the
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statutory language defining the offense. See, e.g., United States v.
Wicks, 187 F.3d 426, 427 (4th Cir. 1999) ("Generally, an indictment
is sufficient if it alleges an offense in the words of the statute, assum-
ing those words fully, directly, and expressly, without any uncertainty
or ambiguity, set forth all the elements necessary to constitute the
offense") (quotation marks and citations omitted).
In this case, Jackson was charged with the offense set forth in 18
U.S.C. § 924(j)(1), coupled with the fact that the violation involved
an aggravating factor to justify the imposition of the death penalty.
The crime is charged simply by alleging all the elements of the mur-
der together with a sufficient disclosure of an aggravating factor to
inform the defendant of the crime charged. One aggravating factor
identified in Jackson’s indictment is the commission of the crime of
kidnapping, as specified by 18 U.S.C. § 1201.
Jackson does not dispute that the indictment fairly describes a vio-
lation of § 924(j)(1) and of 18 U.S.C. § 1111(a), defining first-degree
murder. Nor can he dispute the fact that the indictment alleges that the
death resulting from the charged offense occurred during the commis-
sion of a felony, i.e., kidnapping as specified in 18 U.S.C.
§ 1201(a)(2). His only complaint is that the elements of kidnapping
are not also set forth. But kidnapping is not the offense with which
Jackson was charged. Rather, the fact that death occurred during a
kidnapping is only an element of the aggravated offense with which
he was charged. The reference to kidnapping together with a specific
reference to the statutory definition of the crime adequately informs
Jackson of the particular element of the aggravated crime, that an
aggravating factor existed. See Wicks, 187 F.3d at 427. We therefore
also reject this argument.
In sum, the indictment in this case properly charged Jackson with
the use of a firearm during and in relation to first-degree murder, in
violation of 18 U.S.C. § 924(j)(1), coupled with the existence of the
aggravating factor that the death occurred during the commission of
the offense of kidnapping, as defined in 18 U.S.C. § 1201(a)(2). And
because the indictment alleged at least one aggravating factor, it
charged the aggravated crime for which a sentence of death could be,
but need not be, imposed. See 18 U.S.C. §§ 3592(c)(1), 3593(d). For
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these reasons, Jackson’s arguments that the indictment was defective
must be rejected.
III
Jackson also raises a significant issue in contending that the district
court erred during the sentencing phase in admitting, over his objec-
tion, an October 2000 videotaped interview of Jackson for FOX News
in rebuttal to the testimony of Sally Jackson, Jackson’s adoptive
mother and the only witness Jackson offered during the penalty phase.
Jackson argues that the videotape went "far afield of proper rebuttal,"
amounting to "a rambling diatribe by defendant on a whole host of
issues, including derogatory comments about State prosecutors." He
maintains that the admission of this "highly inflammatory informa-
tion" was prejudicial.
In response, the government argues that the videotape evidence
was offered to rebut Sally Jackson’s testimony describing Jackson’s
childhood problems, his failures, mental health, learning difficulties,
and social interaction skills, as well as his marital problems. To the
extent that these problems provided mitigation of his conduct, the
government sought, through the videotape, to demonstrate that actu-
ally Jackson’s home life was positive, that he was intelligent and
articulate, and that he was functioning at a far more normal level dur-
ing the relevant periods than was described by Sally Jackson. The
government maintains that the evidence was "classic rebuttal evi-
dence." Alternatively, it argues that "any perceived error" would be
harmless because "the facts of the crime, standing alone, amply sup-
ported the jury’s decision[]" to recommend the death sentence.
Sally Jackson testified about Richard Jackson’s childhood, his ado-
lescence, his education, his work experience, his problems and fail-
ures, his marriage, and his activities in the month preceding the
murder of Karen Styles and in the several months thereafter. She
explained that she and her husband adopted Richard when he was
five-and-a-half years old and that they were struck immediately by his
abnormal behavior and his use of inappropriate language. She testi-
fied that by the time Richard was six or seven, he was caught several
times masturbating. Sally Jackson testified that, beginning when
Richard was 13 or 14 years old, he would often become depressed,
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and he tried to kill himself several times by overdosing on over-the-
counter medications. When he overdosed, Sally Jackson stated that
she would have discussions with Richard, and Richard was "always
sorry that he did it, but always promised he would never do it again."
During the time that Sally Jackson and her husband were raising
Richard, she described how Richard was always loved and how they
helped him through crises. She described repeatedly the fact that their
household was governed by love, although filled with problems
involving Richard.
During high school, Richard did not participate in sports and when
he finally participated in an activity, the debate club, it was a failure.
At the first debate, Richard embarrassingly rambled on about matters
not relevant to the issue at hand. Sally Jackson regretted that Richard
had not shared the written materials about the debate issue with her
or her husband so that they could have read them and gone over them
with Richard before the debate. Richard also did poorly in high
school, "not well at all," receiving grades of Cs and Ds — "barely
passing."
Sally Jackson testified that after Richard graduated from high
school, he spent six weeks in the Navy before he left because of a
mental problem and returned to Asheville, North Carolina. Sally Jack-
son testified that Richard married his wife, Donna, just a few days
after they first met and, thereafter, had two children within a short
period of time. While Richard had difficulty holding a job, he did
work somewhat successfully at the pizza shop where he met Donna
and later worked at Mountain View Restaurant, which was owned by
his adoptive father, J.D. Jackson. Richard and his family lived in a
trailer behind the Mountain View Restaurant.
Sally Jackson testified that in the month prior to the murder of
Karen Styles, Richard’s hygiene was increasingly worse, such that
she would have to talk him into taking a bath to relieve his bad odor.
She also testified that Richard suffered a serious burn on his arm a
few days prior to the murder and was treated at the emergency center
with strong pain medication. Sally Jackson acknowledged that Rich-
ard and his wife had financial problems and that she helped them pay
the rent and sometimes the electricity. Some of their problems came
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from the fact that Richard ran up large telephone bills by calling 1-
900 phone-sex numbers.
Finally, Sally Jackson testified that on November 1, 1994, the day
after Styles’ murder, Jackson was again admitted to the hospital, after
having tried to commit suicide. After Richard was arrested in Decem-
ber 1994, Sally Jackson visited him in jail, and there was an emo-
tional reunion. Everybody was crying, and there was the suggestion
that Reverend Sexton was present, although Sally Jackson did not
recall. She testified that she always wanted to believe that Richard did
not kill Karen Styles, but in fact she came to believe that he did. Sally
Jackson explained how she and her husband thereafter sought to con-
tact the Styles family to express their sorrow and compassion, but
they were never able to do so.
A complete review of Sally Jackson’s testimony leads to the con-
clusion that the jury could have received the impression that Richard
Jackson was not smart, that he had mental problems, including sexual
problems, that he was loved as a child and reacted with love, trying
to overcome his mental disabilities, and that he was remorseful when-
ever he did wrong. This, in particular, was revealed by the testimony
of Richard’s apologies to his mother when he repeatedly attempted to
commit suicide, the testimony of Richard’s attempt to commit suicide
after the murder of Styles, and the testimony of his crying in the jail
when he was visited by Sally Jackson with a minister, as well as Sally
Jackson’s own remorseful approach, intending to visit the victim’s
family.
The government believed that a videotape of Richard’s interview
with FOX News in October 2000 would rebut these impressions, and
it offered the videotape into evidence, which the court received over
Jackson’s objection. Jackson maintained that the videotape went
beyond the scope of Sally Jackson’s testimony.
The videotape reveals an articulate, intelligent, perhaps even
manipulative, person who converses quickly, anticipating questions
and where they might be leading. During the course of the interview,
Jackson talked playfully and confidently, bantering with the reporter
and cameraman and seeking to win their confidence. He filled his
answers, which were long and rambling, with small jokes at which he
23 UNITED STATES v. JACKSON

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himself laughed. He also was aware of the presence of the camera and
the fact that it represented the "people out there."
During the course of the interview, Jackson made moral pro-
nouncements about why he would not do things and why he would.
For instance, he stated that he left the Navy because he did not want
to be involved in killing, among other reasons. He also talked intelli-
gently of his moral responsibilities to his wife and his children’s sup-
port.
During the course of the interview, Jackson denied any involve-
ment in the murder and ridiculed the government’s case, suggesting
not only that the government bungled its handling of evidence that it
had but also that it suppressed exculpatory evidence, including DNA
evidence. Jackson took several opportunities to denounce government
investigators and prosecutors, claiming that they were attempting to
frame him. The interview also revealed Jackson’s distrust for politi-
cians who, he stated, would say and do anything simply to get elected.
In short, the Jackson who appeared in the videotape of his inter-
view was not the mentally disabled, depressed, remorseful person
who suffered from childhood problems, as portrayed by Sally Jack-
son. Rather it showed a manipulative, quick, and intelligent person
who was angry with the government’s efforts to prosecute him for the
Styles murder.
While isolated statements and subjects discussed during the course
of the interview could fairly be the subject of a challenge on the basis
that the statements were not within the strict limits of the subjects to
which Sally Jackson testified and thus were not reasonably "tailored"
to what she said, see United States v. Stitt, 250 F.3d 878, 897 (4th Cir.
2001), the videotape as a whole was substantially and reasonably
within the range of rebutting the impression that Sally Jackson
intended to leave with the jury. Although our rule in Stitt requires that
rebuttal evidence be reasonably tailored to the evidence being rebut-
ted, this is not to say that the evidence being rebutted must be taken
in its most narrow probative range. To the contrary, any fact tended
to be proved by the original evidence — whether directly, by infer-
ence, or by logic — can be rebutted. Our focus on what evidence may
be offered in rebuttal must be directed at what is reasonably tailored
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to rebut the original evidence, including any inference that may fairly
be drawn from it.
In this case, Sally Jackson spoke directly and by inference to the
jury regarding a majority of the 27 mitigating factors submitted by the
defense for the jury’s consideration, and the videotape shown by the
government was for the most part clearly relevant to rebuttal of a
number of those on which Sally Jackson testified. Thus, there was "a
nexus between the purported rebuttal evidence and the evidence that
the purported rebuttal evidence seeks to rebut." Id. Thus, the district
court acted within its broad discretion in admitting the videotape in
rebuttal.
Even if portions of the tape went beyond the proper scope, i.e., they
were not "reasonably tailored to the evidence [they sought] to refute,"
Stitt, 250 F.3d at 897, any such error would be harmless. See 18
U.S.C. § 3595(c). The prosecution presented evidence in the case that
Jackson kidnapped and bound up Styles with duct tape; that he pain-
fully stimulated Styles with shocks from a stun gun in her pubic area
multiple times; that he shot Styles in the head after raping her and
masturbating to a pornographic magazine in front of her; and that his
kidnapping, rape, and murder of Styles took a long period of time dur-
ing which Styles undoubtedly suffered a great deal. The jury unani-
mously found all four aggravating factors submitted to it: (1) that the
death of Karen Styles occurred during a kidnapping, (2) that Jackson
committed the murder in an especially heinous, cruel, or depraved
manner in that the murder involved torture or serious physical abuse,
(3) that Jackson committed the murder after substantial planning and
premeditation, and (4) that Jackson "caused injury, harm, and loss to
Karen Styles’ family because of Karen Styles’ personal characteristics
as an individual human being and the impact of her death upon her
family." The jury could not have relied on the videotape in finding
any of these factors because the videotape contained no evidence
regarding them. While the videotape might have persuaded the jury
not to find some mitigating factors, these were factors touched on or
developed through the testimony of Sally Jackson. Her testimony was
broad-ranging, and the conclusions that could have been made based
on it covered everything from Jackson’s childhood, his disabilities,
his mental condition, his intelligence, his remorse, his ability to hold
jobs, his social deficiencies, and more. Even if a given portion of the
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videotape might have made it less likely that the jury would have
found some possible mitigating factor that was not covered by Sally
Jackson’s testimony, the jury would have concluded beyond a reason-
able doubt that the aggravating factors sufficiently outweighed the
mitigating factors. The evidence in the record of the heinous nature
of Jackson’s behavior was overwhelming, and the evidence in favor
of mitigation was limited. Any portions of the tape that might have
been found to be beyond the reasonable scope of Sally Jackson’s tes-
timony, thus, did not change the outcome.
IV
We address Jackson’s remaining assignments of error in the order
in which he has raised them. First, he contends that the government
failed to overcome the presumption of a vindictive prosecution, cre-
ated by the circumstances of his State conviction and his federal pros-
ecution. He identifies multiple purported indicia of vindictiveness,
including "[t]he federal government’s six-year delay, its sentencing
the defendant to death after he had already received a 30-year State
sentence, its refusal to honor and follow its own Petite policy, the vio-
lation of its own death penalty protocol, and its refusal to return Jack-
son to State custody as required by the writ and the interstate
agreement on detainers, along with personal vindictiveness embedded
in the prosecutor’s closing argument." Because of the government’s
failure to overcome the presumption of vindictiveness, he asserts, the
indictment must be dismissed as vindictive.
To establish prosecutorial vindictiveness, Jackson "must show,
through objective evidence, that (1) the prosecutor acted with genuine
animus toward the defendant and (2) the defendant would not have
been prosecuted but for that animus." United States v. Wilson, 262
F.3d 305, 314 (4th Cir. 2001). If a defendant is unable to demonstrate
the required animus, he may still present evidence of "circumstances
from which an improper vindictive motive may be presumed." Id. In
describing when a given set of circumstances should give rise to a
presumption of vindictiveness, we have articulated the principle that
"such a presumption is warranted only when circumstances warrant
it for all cases of the type presented." Id. at 315. We have noted also
that "the circumstances must be evaluated against the background pre-
sumption that charging decisions of prosecutors are made in the exer-
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cise of broad discretion and are presumed to be regular and proper."
Id. at 318.
We can find nothing in this record that demonstrates the requisite
animus to the defendant, nor can we find the circumstances giving
rise to a presumption of such animus. The government’s delay in
prosecution was based on its decision to defer to State authorities and
to see whether federal interests would be vindicated. In this case,
Jackson pleaded guilty on March 3, 2000, and was then sentenced,
pursuant to a plea agreement, to slightly more than 30 years’ impris-
onment, for which he received 5 years’ credit served during the prose-
cution of the case. Concluding that its interests were not vindicated,
federal prosecutors initiated this case seven months later, on October
2, 2000. We conclude that no adverse inference could be drawn from
this delay in these circumstances.
Jackson also argues that the federal prosecutor’s decision to seek
the death penalty after he had been given a 30-year sentence violated
the Petite policy, an internal Department of Justice policy informing
how federal prosecutors should exercise their prosecutorial discretion
when a State has also prosecuted the defendant. Our jurisprudence in
this area rests on the basic precept that "a prosecutor’s charging deci-
sion is presumptively lawful" and that "courts must . . . be cautious
not to intrude unduly in the broad discretion given to prosecutors in
making charging decisions." Wilson, 262 F.3d at 315. That the
Department of Justice has developed an internal protocol for exercis-
ing discretion and channeling prosecutorial resources does not pro-
vide license for courts to police compliance with that protocol, and it
is well established that the Petite policy and other internal prosecu-
torial protocols do not vest defendants with any personal rights. See
United States v. Musgrove, 581 F.2d 406, 407 (4th Cir. 1978).
Jackson also contends that the prosecution’s refusal to return him
to State custody is indicative of prosecutorial vindictiveness. How-
ever, the district court’s judgment and order entered in this case
explicitly stated that it was "effective immediately and is neither con-
secutive to nor delayed by the judgment and sentence previously
imposed by the State of North Carolina."
Finally, Jackson points to the prosecutor’s impassioned statements
made during closing argument. These statements, however, both dur-
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ing the guilt and penalty phases, clearly were designed to convince
the jury that Jackson kidnapped, raped, and murdered Karen Styles
and that he therefore merited the death sentence.
In short, we conclude that none of the purported indicia of vindic-
tiveness identified by Jackson are sufficient to give rise to a presump-
tion of prosecutorial vindictiveness.
V
Jackson next contends that his indictment should be dismissed on
double jeopardy grounds. He maintains that his State conviction
should bar a subsequent federal prosecution arising out of the same
facts. He recognizes that the dual sovereignty doctrine, as currently
applied, does not construe the Double Jeopardy Clause to bar succes-
sive prosecutions by State and federal sovereigns. See United States
v. Lanza, 260 U.S. 377, 384 (1922) (holding that the Double Jeopardy
Clause did not bar federal prosecution following conviction in State
court for the same conduct). Jackson argues, however, that the dual
sovereignty doctrine is in direct conflict with the original meaning of
the Double Jeopardy Clause. Moreover, Jackson asserts that subse-
quent decisions have cast extreme doubt on the continued viability of
the dual sovereignty doctrine. We cannot agree. Unless and until the
Supreme Court overrules its existing precedents, we are bound to con-
clude that the federal prosecution under federal law is not barred by
the fact that the defendant was previously tried and convicted under
State law on the basis of the same facts.
VI
Jackson next contends that his constitutional rights were violated
when the district court excluded a prospective juror whose death pen-
alty views would not, Jackson asserts, have substantially impaired his
ability to serve.
During jury selection, prospective juror Brian Della-Bianca gave
ambiguous answers to questions about his beliefs on the death pen-
alty. The court asked a number of questions to clarify Della-Bianca’s
beliefs, but Della-Bianca’s answers provided little additional clarity.
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For instance, at one point he was asked whether he would automati-
cally vote against the death penalty, and he responded, "No." But
when asked directly, "Could you or could you not sign your name to
a verdict sheet which would require [the court] to impose the death
penalty on this defendant," Della-Bianca responded, "I could not."
Upon hearing Della-Bianca’s response to this question, the court
excused him from jury service over Jackson’s objection. Jackson
argues that the district court’s exclusion of juror Della-Bianca was
unconstitutional.
In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court set
forth the governing standard for this type of improper-juror-exclusion
claim as "whether the juror’s views would prevent or substantially
impair the performance of his duties as a juror in accordance with his
instructions and his oath." Id. at 424 (footnote and internal quotation
marks omitted). The record in this case demonstrates an earnest and
extended effort by the district court to ascertain whether Della-
Bianca’s views on the death penalty would substantially impair his
performance as a juror. The Court in Witt stated what is applicable
here:
What common sense should have realized experience has
proved: many veniremen simply cannot be asked enough
questions to reach the point where their bias has been made
"unmistakably clear"; these veniremen may not know how
they will react when faced with imposing the death sen-
tence, or may be unable to articulate, or may wish to hide
their true feelings. Despite this lack of clarity in the printed
record, however, there will be situations where the trial
judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the
law. . . . [T]his is why deference must be paid to the trial
judge who sees and hears the juror.
Id. at 424-26 (footnote omitted). In the circumstances presented to the
district court in this case, we must pay deference to the trial judge
who saw and heard the juror. Accordingly, we conclude that the dis-
trict court did not act improperly in excluding prospective juror Della-
Bianca.
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VII
Jackson next contends that the district court erred in denying his
motion for a mistrial based on the prosecutor’s misconduct in calling
Robert Sartori as a witness, because the government knew or should
have known that Sartori’s testimony was perjured.
Sartori, who was an inmate with Jackson at Pasquatank Correc-
tional Facility, testified that Jackson told him that he was obsessed
with Styles and that he laid in wait for her prior to the kidnapping,
rape, and murder. Counsel for Jackson later discovered letters involv-
ing other inmates suggesting that Sartori had fabricated or tailored
certain parts of his testimony. Indeed, Jackson’s counsel had learned
that two of six inmates identified as potential witnesses by the gov-
ernment, Howell and Keiber, may have been fabricating information
in their interviews with the prosecuting attorneys, and consequently
they issued subpoenas to obtain all correspondence from these per-
sons. While the government did not call either Howell or Keiber to
testify, it did call Sartori.
Based on what Jackson’s counsel found, Jackson filed a sealed
motion to strike Sartori’s testimony. After hearing testimony that Sar-
tori was housed in the same cell as Keiber, who the court had already
deemed to be untrustworthy, as well as other evidence suggesting that
Sartori’s testimony was unreliable, the court struck Sartori’s testi-
mony without objection from the government. Jackson then moved
for a mistrial, which the court denied, but the court did instruct the
jury to disregard Sartori’s testimony.
Jackson argues that the district court erred in not granting a mistrial
based on what he claims to be prosecutorial misconduct in calling
Sartori to the stand when the prosecution knew or should have known
that Sartori’s testimony was tainted and perhaps fabricated. While
Jackson acknowledges that there was no indication that the govern-
ment knowingly offered perjured testimony, he argues that the govern-
ment should have known that Sartori’s testimony was "very likely"
fabricated.
Sartori’s initial statement to government investigators made before
he had any contact with other potential witnesses indicated that he
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possessed personal knowledge of many details of Jackson’s crimes.
The letters between Howell and Keiber, as well as Keiber’s testimony
outside the presence of the jury on the motion to strike, later con-
vinced both the prosecutor and the court that it would be appropriate
to strike Sartori’s testimony. This information, however, was not in
the government’s possession at the time that the government called
Sartori to the stand. The only evidence that the government possessed
at that time was that Sartori shared the same two-person cell with Kei-
ber. Jackson argues the fact that Sartori and Keiber shared a cell
should have informed the government not to call Sartori, or at least
to do so only after taking steps to ensure that Sartori’s testimony had
not been tainted.
Although this cell-sharing facilitated information-sharing by per-
mitting conversations during "lock-down" times, merely being on the
same block would also have permitted conversation during times that
were not "lock-down" times. The district court had ruled previously
that there was nothing improper in all potential inmate witnesses
being in the same facility and sharing the same lawyers. Even after
Jackson’s lawyers became aware that Sartori and Keiber shared a cell,
they only moved to strike Sartori’s testimony rather than asking for
a mistrial. Their in-court motion for a mistrial came only after the
court had granted the motion to strike, which the government did not
oppose. Yet the only "new" information was Keiber’s live testimony,
none of which indicated that Keiber provided details to Sartori of the
facts of which Sartori was previously aware and to which he testified.
In these circumstances, we conclude that the government did not act
improperly in calling Sartori to testify.
We also conclude that Sartori’s testimony did not prejudicially
affect Jackson’s substantial rights. The defense subjected Sartori to
vigorous cross-examination, probing the consistency of his testimony
with statements to government investigators. Furthermore, the district
court ultimately struck the testimony and provided a limiting instruc-
tion. "We generally follow the presumption that the jury obeyed the
limiting instructions of the district court." United States v. Francisco,
35 F.3d 116, 119 (4th Cir. 1994). And the evidence of Jackson’s guilt,
including his own confession, was overwhelming. Moreover, there
was other substantial evidence, apart from Sartori’s testimony, from
which the jury could have inferred that Jackson’s crimes involved
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substantial planning. Not only were all the materials used by Jackson
in the commission of the crime purchased three days before the crime,
Jackson’s confession revealed that, after seeing Styles in the woods,
he waited until she passed and then armed himself in preparation for
the crime.
VIII
Jackson next contends that the district court erred in admitting the
expert testimony of Dr. Robert Stratbucker, which Jackson maintains
was unreliable. Stratbucker testified, over objection, that there were
multiple stun-gun marks on Styles’ body, the majority of which were
near her pubic area. The court concluded that Stratbucker’s testimony
was supported by his expertise in physiology and stun gun marks.
Jackson contends that the district court did not adequately perform its
gatekeeping function and inquire into the basis of Dr. Stratbucker’s
expert scientific testimony on stun-gun marks before permitting him
to testify, as required by Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). We reject this argument.
The district court required the government to lay a foundation for
Dr. Stratbucker’s testimony by eliciting his qualifications and previ-
ous research on the effects of stun guns on the human body. In a writ-
ten order explaining the reasons for admitting Dr. Stratbucker’s
testimony, the district court applied Federal Rule of Evidence 702 and
the applicable Supreme Court decisions, appropriately describing the
requirements of that rule. We are satisfied that the district court did
not abuse its discretion in admitting Dr. Stratbucker’s testimony. See
General Elec. Co. v. Joiner, 522 U.S. 136 (1997).
IX
Jackson next contends that the district court erred in admitting the
testimony of Georgia Katz and Maurice Evans, in violation of Federal
Rule of Evidence 404(b). Katz and Evans each testified that in August
1994, they saw Jackson acting suspiciously on Elk Mountain, a rural,
wooded area approximately 15 miles from the murder site. Katz testi-
fied that she saw a young man dressed all in black, carrying a rifle.
Evans testified that he saw Jackson, dressed all in black, driving
around his area in a suspicious manner on multiple occasions. Evans
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also testified that Katz had told him she saw a young man with a rifle
or possibly a shovel. At the conclusion of their testimony, Jackson
moved to strike the evidence as irrelevant and prejudicial. The court
denied the motion.
Jackson argues that the district court violated Rule 404(b) because
the testimony shows "simply that Jackson, carrying what may have
been a rifle or a shovel, acted suspiciously, but not aggressively or
violently, three months earlier in an entirely different area of Bun-
combe County more than 15 miles from where Styles was killed."
The government argues that this testimony demonstrates preparation
and planning insofar as it showed that "well before the murder, Jack-
son was engaging in covert actions, in remote wooded areas, that
included handling a long gun, such as was used to kill Styles."
We review the admission of testimony under Rule 404(b) for abuse
of discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir.
1997). Whether a reasonable jury could have taken this evidence as
probative of the fact that Jackson had been planning and preparing for
a kidnapping, rape, and murder in the woods is a close call that might
better have been avoided by rejecting the evidence as irrelevant. The
fact that the testimony was not offered to establish Jackson’s bad
character through prior bad acts or to show action in conformity
therewith does not automatically render the evidence admissible
under Rule 404(b) because even 404(b) evidence must be relevant.
But in the context of the facts of this case, we conclude that any error
that may have been committed would in any event be harmless.
X
In connection with the sentencing phase of the trial, Jackson con-
tends that the district court erred in excluding the testimony of the
adoptive parents of his biological sister. These witnesses would have
testified that Jackson’s sister demonstrated many abnormal behaviors.
Jackson hoped to establish that because his biological sister mani-
fested abnormal behaviors, the conclusion could be reached that he
too would be expected to manifest the same behaviors.
The district court ruled that absent a proffer of expert testimony
that would permit a factfinder to draw the conclusion connecting the
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sister’s mental condition with Jackson’s, Jackson could not present
the evidence. Jackson’s counsel had previously consulted with a psy-
chiatrist who opined that the "significantly similar progression" of
Jackson and his sister suggested a biological connection. But when
the time came for presenting expert testimony, Jackson did not offer
any. As a consequence, the court did not permit the adoptive parents
of Jackson’s sister to testify about the sister’s behavioral abnormali-
ties.
During sentencing in a capital case, the factfinder may "not be pre-
cluded 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." Lockett v. Ohio, 438 U.S. 586, 604 (1978). "Equally clear is
the corollary rule that the sentencer may not refuse to consider or be
precluded from considering ‘any relevant mitigating evidence.’" Skip-
per v. South Carolina, 476 U.S. 1, 5 (1986) (quoting Eddings v. Okla-
homa, 455 U.S. 104, 114 (1982)). While Jackson must be able to
present any evidence of his character or record, or the circumstances
of the offense, to urge a penalty less than death, this does not entitle
him to reach more broadly to matters unrelated. The district court
imposed the condition on Jackson of demonstrating that testimony
about his biological sister’s mental health would permit conclusions
to be drawn regarding the status of Jackson’s mental health. Because
of Jackson’s failure to provide the linkage, the district court, we con-
clude, did not abuse its discretion.
XI
Jackson next contends that he received ineffective assistance of
counsel when his lawyer conceded during closing argument that "jus-
tice in this case says death." He argues that by making this statement,
his counsel conceded to the jury that he deserved the death penalty,
and a lawyer who makes that "concession" renders ineffective assis-
tance of counsel.
Although the record confirms that Jackson’s counsel did make the
statement, it also shows that he did so in presenting the jury with a
choice between harsh justice and the jury’s compassion, particularly
for Jackson’s mother and children. We find counsel’s strategy in the
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circumstances to be reasonable. Given the overwhelming evidence of
Jackson’s guilt, counsel made the choice to appeal for mercy rather
than argue that Jackson was somehow deserving of mercy.
To show that counsel’s argument to the jury denied Jackson the
effective assistance of counsel, Jackson would have to demonstrate
that counsel’s performance was deficient — making errors "so serious
that counsel was not functioning as the ‘counsel’" — and that the
deficiency prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). We conclude that focusing on this statement and
counsel’s strategy only, Jackson meets neither the objectively-
unreasonable-performance prong nor the prejudice prong of the
Strickland test for ineffective assistance of counsel. Jackson was rep-
resented by two able lawyers throughout his trial, who fought vigor-
ously on behalf of their client. A full reading of the closing argument,
in which the objected-to statement was made, reveals that Jackson’s
lawyer pursued a deliberate and entirely reasonable strategy of con-
trasting the harsh demands of justice with the power of the jury to act
mercifully and then to ask the jury to have mercy. We cannot con-
clude that that performance was either objectively unreasonable or
prejudicial.
XII
Jackson next contends that the district court erred in allowing the
jury to find and consider all four intent factors when any one of them
alone was sufficient to support imposition of the death penalty and
that this alleged error unconstitutionally tipped the scales in favor of
a death sentence.
In submitting the case to the jury for a sentencing determination,
the court instructed the jury that it should impose the death penalty
only if it determined that Jackson had the requisite mental state. The
court explained that the federal death penalty statute permitted impo-
sition of death only if the defendant (1) intentionally killed the victim,
(2) intentionally caused serious bodily injury that resulted in the vic-
tim’s death, (3) intentionally participated in an act contemplating that
the life of a person would be taken, or (4) intentionally engaged in
an act of violence with reckless disregard for human life. The court
instructed that each member of the jury had to agree on the same
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intent factor regarding Jackson’s conduct in order to consider impos-
ing the sentence of death.
The jury unanimously found that the government had proved all
four types of intent. It also found that the government had proved all
aggravating factors and that the aggravating factors were not out-
weighed by mitigating factors that any one of them found. It there-
upon unanimously recommended the sentence of death.
In arguing that the district court’s submission of all four intent fac-
tors to the jury unconstitutionally skewed the weighing process
toward the death penalty, Jackson relies on our decision in United
States v. Tipton, 90 F.3d 861 (4th Cir. 1996), which held that the sub-
mission of four different intent factors to the jury for consideration as
aggravating factors "runs a clear risk of skewing the weighing process
in favor of the death penalty and thereby causing it to be imposed
arbitrarily, hence unconstitutionally." Id. at 899. Jackson’s reliance on
Tipton, however, is misplaced. The prosecution in Tipton was for vio-
lation of 21 U.S.C. § 848, under which the jury is to consider the type
of intent as an aggravating factor during the penalty phase of the
trial. The court’s reasoning in Tipton focused on the potential that
submitting all four intent factors could skew the weighing process in
favor of the death penalty by allowing cumulative findings.
By contrast, Jackson was prosecuted under 18 U.S.C. § 924(j), for
which the court uses the sentencing procedures outlined in 18 U.S.C.
§§ 3591-3598. To find the death penalty under these sections, the jury
must first find one of the four types of intent as a threshold matter,
and unless the jury finds one of the four types of intent, the defendant
is not eligible for the death penalty. See 18 U.S.C. § 3591. Only after
crossing this threshold does the jury reach the weighing of aggravat-
ing and mitigating factors. The findings regarding intent, therefore,
play no role in the weighing process, which is done when the jury
considers aggravating and mitigating circumstances. Thus, while the
intent in Tipton actually operates as an aggravating factor, the intent
under 18 U.S.C. § 3591 operates only as a threshold to reach the
aggravating factors.
Accordingly, we conclude that the district court did not err in sub-
mitting all four types of intent for the jury’s consideration. Whether
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the jury found one type of intent or all four would not, under the
instructions given, skew the weighing process. The weighing process
involved only aggravating and mitigating circumstances which were
distinct from the intent finding.
XIII
Jackson next contends that the district court erred in submitting the
statutory aggravating circumstance of a murder committed after "sub-
stantial planning and premeditation" because that factor was "vague
and constitutionally void" and therefore "failed sufficiently to channel
the jury’s discretion." Our decision in United States v. Tipton, 90 F.3d
861 (4th Cir. 1996), forecloses this argument. In Tipton, we rejected
a vagueness challenge to the same aggravating factor challenged here
as that factor was used in 21 U.S.C. § 848(n)(8). See 18 U.S.C.
§ 3592(c)(9). In Tipton, we concluded that "substantial" "could only
have been understood by the jury to mean a higher degree of planning
than would have the words ‘planning and premeditation’ alone — i.e.,
more than the minimum amount sufficient to commit the offense." Id.
at 896. We concluded that this meaning was not unconstitutionally
vague.
Moreover, the district court’s instructions to the jury in this case
ensured that the "substantial planning and premeditation" factor was
understood by the jury in precisely the manner that was held not to
be vague in Tipton. The district court instructed the jury:
The phrase substantial planning and premeditation means a
considerable and significant amount for causing the death of
a person preceding the murder. It is a higher degree of plan-
ning and premeditation than the words planning and pre-
meditation alone convey. In other words, it is more than the
minimum amount which would be sufficient to commit the
offense of premeditated murder.
While the context of the aggravating factor in 21 U.S.C. § 848 is dif-
ferent, the words construed there are the same as those here, and we
consider Tipton persuasive.
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XIV
Jackson next contends that the district court erroneously allowed
only a juror who found a mitigating factor to weigh that factor. The
district court instructed the jury as follows:
[U]nanimity is not required with regard to mitigating fac-
tors. Any juror who is persuaded of the existence of a miti-
gating factor must consider it. And, a finding with respect
to a mitigating factor may be made by one or more members
of the jury. And, any member of the jury who finds the exis-
tence of a mitigating factor shall consider it established for
purposes of this section regardless of the number of jurors
who concur that it has been established.
Jackson argues that this instruction failed to follow 18 U.S.C.
§§ 3593(d) and (e), and as a result, "unconstitutionally limited the full
consideration of mitigation required by the Eighth Amendment."
Under Jackson’s interpretation, § 3593 requires that "so long as at
least one juror finds a mitigating factor to exist, the entire jury — all
12 people — must consider that factor in the weighing process." We
disagree.
Section 3593(e) provides that the jury "shall consider whether all
the aggravating factor or factors found to exist sufficiently outweigh
all the mitigating factor or factors found to exist to justify a sentence
of death." In other words, § 3593(e) is about weighing factors that are
found to exist, not about who may find those factors or how they are
to be found. By contrast, § 3593(d) describes who may find aggravat-
ing and mitigating factors and how they are to be found. A compari-
son of the difference between the treatment of aggravating and
mitigating factors in § 3593(d) is instructive. "A finding with respect
to any aggravating factor must be unanimous." 18 U.S.C. § 3593(d)
(emphasis added). In contrast, "[a] finding with respect to a mitigating
factor may be made by 1 or more members of the jury, and any mem-
ber of the jury who finds the existence of a mitigating factor may con-
sider such factor established for purposes of this section regardless of
the number of jurors who concur that the factor has been established."
Id. (emphasis added).
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Jackson’s interpretation of § 3593(d) transforms the statutory
instruction that "any member . . . who finds the existence of a mitigat-
ing factor may consider such factor established" into the altogether
different command that if any member finds a mitigating factor to be
established, then all must treat that factor as established. The
defense’s argument therefore fails under the plain language of the
statute.
Even when Jackson urges an independent constitutional argument
on this point, he fares no better. Although asserting that his interpreta-
tion of the statute is required by the Eighth Amendment, Jackson is
unable to point to any case law in support of his assertion. The gov-
ernment, in contrast, offers a sensible explanation for why the statute
differentiates between aggravating and mitigating factors. The
Supreme Court has held unconstitutional sentencing instructions
under which jurors must unanimously agree that a mitigating factor
exists before any single juror could consider that factor in the weigh-
ing process. See McKoy v. North Carolina, 494 U.S. 433 (1990).
Accordingly, we reject this assignment of error.
XV
Finally, Jackson contends that the district court erred in denying
Jackson’s motion to be returned to State custody to serve his preexist-
ing State sentence first. This argument is without merit.
Jackson relies on the principle that when competing claims of juris-
diction between sovereigns exist, the first court taking subject-matter
jurisdiction must be permitted to exhaust its remedy fully. See Ponzi
v. Fessenden, 258 U.S. 254, 260 (1922). But this is a principle to
resolve disputes among sovereigns, and Jackson has no standing to
assert North Carolina’s interest in asserting jurisdiction. Moreover,
North Carolina has asserted no such interest. See Hayward v. Looney,
246 F.2d 56, 57 (10th Cir. 1957) ("If the prisoner has violated the law
of both sovereigns, he is subject to prosecution by both and he may
not complain of or choose the manner or order in which each sover-
eign proceeds against him"). As Chief Justice Taft explained in Ponzi:
39 UNITED STATES v. JACKSON

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One accused of crime . . . may not complain if one sover-
eignty waives its strict right to exclusive custody of him for
vindication of its laws in order that the other may also sub-
ject him to conviction of crime against it. Such a waiver is
a matter that addresses itself solely to the discretion of the
sovereignty making it and of its representatives with power
to grant it.
258 U.S. at 260 (citation omitted). In this case, the district court spe-
cifically ordered that its sentence was effective immediately, not con-
secutive to the jail sentence imposed by the State of North Carolina,
and there is no evidence of an objection from North Carolina. Accord-
ingly, this judgment controls.
XVI
Upon our review of the entire record, we are satisfied that the sen-
tence of death in this case was not imposed under the influence of
passion, prejudice, or any other arbitrary factor, but upon the relevant
evidence and the applicable law. We are also satisfied that the evi-
dence supports the jury’s findings that four aggravating factors
existed in connection with this crime and that the four factors are
among those listed in 18 U.S.C. § 3592. Because we find no revers-
ible error with respect to the issues that Jackson has raised on appeal,
we affirm Jackson’s conviction and the sentence of death imposed by
the district court.
AFFIRMED
DIANA GRIBBON MOTZ and ROBERT BRUCE KING, Circuit
Judges, concurring in the judgment and Parts I, IV through XVI of
Judge Niemeyer’s opinion, and writing for the court as to parts II and
III:
I.
Although we concur in the judgment and most of Judge Niemey-
er’s opinion, we are unable to concur in the analysis set forth in parts
II and III of Judge Niemeyer’s opinion. Therefore, we set forth below
the opinion of the court on these issues.
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II.
Richard Allen Jackson contends that the grand jury returned a
defective indictment depriving the district court of jurisdiction to
impose a death sentence.1
In the district court, Jackson objected to the indictment on the sole
ground that it "fail[ed] to allege the existence of any of 16 statutory
aggravating factors." The district court denied the motion, ruling that
"the indictment clearly charges the Defendant with" the fact that
"death occurred during the commission of kidnapping." Under federal
law "death during commission of another crime" constitutes an aggra-
vating factor justifying imposition of the death penalty. See 18
U.S.C.A. § 3592(c) (West 2000). Thus, the court properly rejected
Jackson’s objection.
Jackson reiterated the very same contention as the twelfth of thir-
teen contentions in his principal appellate brief. His argument fails for
1The indictment charged that Jackson "[o]n or about October 31,
1994," in the Pisgah National Forest:
did unlawfully, knowingly, and intentionally use and carry a fire-
arm, to wit: a .22 caliber rifle, during and in relation to a crime
of violence for which he may be prosecuted in a court of the
United States, to wit: Murder [Title 18 United States Code, Sec-
tion 111(a)], Kidnapping [Title 18 United States Code, Section
1201(a)(2)], and Aggravated Sexual Abuse [Title 18 United
States Code, Section 2241(a)(1)-(2)], in violation of Title 18
United States Code, Section 924(c)(1), and, in the course of such
violation and through the use of such firearm, did cause the death
of a person, Karen Styles, in violation of Title 18 United States
Code, Section 924(j)(1), which killing is a murder as defined in
Title 18 United States Code, Section 1111, in that RICHARD
ALLEN JACKSON unlawfully killed a human being, Karen
Styles, with malice aforethought, by shooting her with the fire-
arm willfully, deliberately, maliciously, and with premeditation,
and in the perpetration and attempted perpetration of a felony, to
wit: kidnapping and aggravated sexual abuse.
All in violation of Title 18 United States Code, Sections
924(c), 924(j), and 7(3).
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the reasons provided by the district court. The indictment did allege
an aggravating factor: the murder occurred during commission of
another crime, i.e., kidnapping. See id.
In the last two pages of his reply brief on appeal, Jackson con-
tended for the first time that "all of the aggravating factors must be
raised in the indictment." Reply Brief at 20. Because Jackson did not
preserve this claim for appellate review, our review is for plain error.
"Under that test, before an appellate court can correct an error not
raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that
‘affects substantial rights.’" Johnson v. United States, 520 U.S. 461,
466-467 (1997) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). "If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the
error "seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Id. at 467 (quoting Olano, 507 U.S. at 732
(internal quotations marks omitted)).
In United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002),
the Supreme Court also addressed an argument of similar indictment
error, which had not been timely raised and so was subject to review
only for plain error. In Cotton, without determining whether the
alleged indictment defect was error, or plain, or affected substantial
rights, the Court rejected the argument because the alleged error "did
not seriously affect the fairness, integrity, or public reputation of judi-
cial proceedings." Cotton, 122 S. Ct. at 1786. This was so because of
the "overwhelming" and "essentially uncontroverted" evidence that
the defendant participated in a conspiracy involving the required drug
quantity, 50 grams of cocaine base. Id. at 1786 (internal quotation
marks omitted).
We, along with several of our sister circuits, have frequently dis-
posed of a plain error issue by analyzing either the third or fourth
prong of Olano after assuming, without deciding, that there was an
error and that it was plain. See, e.g., United States v. Tipton, 90 F.3d
861, 874 (4th Cir. 1996) ("Proceeding then to the Olano analysis
respecting forfeited error, we further assume, without deciding, that
error did occur in the form of a ‘deviation’ from the constitutionally-
grounded legal rule that presence was required throughout the pro-
ceedings at issue. . . . And, we also assume — as the Government
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seems to concede — that any such error as occurred was ‘plain,’ in
the sense that it is clear on the record that the challenged proceedings
were held outside the immediate presence of appellants."); United
States v. Rhodes, 32 F.3d 867, 871 (4th Cir. 1994) ("We need not
decide in this case whether the admission of the additional informa-
tion in the certified records of conviction was error and that it was
plain. Assuming, arguendo, that the admission of the evidence was
error that was plain, Rhodes cannot meet the third requirement that
the error affected his substantial rights."); see also United States v.
Barrow, 118 F.3d 482, 493 (6th Cir. 1997) ("For the purposes of our
analysis in this case, we assume that defendant satisfies the first three
elements of the [Olano] test and rest our decision on the fourth
prong."); United States v. Blocker, 104 F.3d 720, 735 (5th Cir. 1997)
("[I]n the instant case we will assume that the first three factors of the
Olano test have been satisfied.").
We follow that approach here and will assume, without deciding,
that the indictment’s failure to allege all of the aggravating factors
submitted to the jury meets the first three prongs of the plain error test.2
Nevertheless we will not notice the forfeited error because, given the
overwhelming nature of the evidence against Jackson, the alleged
error here, as in Cotton, did not "seriously affect[] the fairness, integ-
rity, or public reputation of judicial proceedings." See Cotton, 122 S.
Ct. at 1785 (quotations and citations omitted).
The evidence overwhelmingly demonstrated that Jackson watched
Styles exit her car, confronted her at gunpoint, and led her into the
woods. Jackson then put duct tape over her mouth and eyes, taped her
to a tree, and raped her. The evidence also showed that Jackson used
a stun gun to repeatedly shock Styles, and that the stun gun marks
were especially concentrated in her pubic area. Finally, after taping
Styles to the tree, raping her, and using a stun gun on her, Jackson
2No party has suggested or argued the complicated argument involving
Ring v. Arizona, 122 S. Ct. 2428 (2002), Harris v. United States, 122 S.
Ct. 2406 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000),
which Judge Niemeyer sets forth and relies on in Part II of his opinion.
Because no party has tendered or tested this rationale and this appeal
presents the far simpler and more straightforward approach set forth in
text, we are unable to join in Judge Niemeyer’s rationale.
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murdered Styles by shooting her in the head with a rifle. In sum, the
evidence against Jackson included his own confession, testimony by
law enforcement officials, the opinions of expert witnesses, and
extensive forensic evidence.
In the trial’s sentencing phase, the jury unanimously found that the
evidence established, beyond a reasonable doubt, four aggravating
factors: (1) Jackson murdered Styles in the course of a kidnapping;
(2) Jackson murdered Styles "in an especially heinous, cruel, or
depraved manner in that it involved torture or serious physical abuse";
(3) the murder was committed after substantial planning and premedi-
tation; and (4) Jackson "caused injury, harm and loss to Karen Styles’
family because of Karen Styles’ personal characteristics as an individ-
ual human being and the impact of her death upon her family."
Given the overwhelming nature of the evidence, we conclude, as
did the Court in Cotton, that "[s]urely the grand jury . . . would have
. . . found" there was probable cause on all four aggravating factors.
See id. at 1786. Indeed, Jackson received greater protection than the
defendant in Cotton because the aggravating factors in Jackson’s case
were submitted to the petit jury, which unanimously found, beyond
a reasonable doubt, all four aggravating factors. Therefore, even
assuming, arguendo, that the Government’s failure to include all of
the aggravating factors in the indictment was error, we must decline
to vacate the judgment against Jackson.
III.
In the sentencing phase of Jackson’s trial, the government sought
admission of a videotaped interview that a local television station had
conducted with Jackson, seeking to rebut testimony Jackson offered
in mitigation. The trial court admitted the videotape into evidence
over Jackson’s objection. Jackson renewed his objection on appeal,
contending that the videotape did not constitute proper rebuttal evi-
dence.
Pursuant to the governing statute, "[a]t the sentencing hearing,
information may be presented as to any matter relevant to the sen-
tence, including any mitigating or aggravating factor . . . . The gov-
ernment and the defendant shall be permitted to rebut any information
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received at the hearing." 18 U.S.C.A. § 3593(c) (West 2000).
"[R]ebuttal evidence must be reasonably tailored to the evidence it
seeks to refute. Rebuttal evidence is defined as ‘evidence given to
explain, repel, counteract, or disprove facts given in evidence by the
opposing party. That which tends to explain or contradict or disprove
evidence offered by the adverse party.’" United States v. Stitt, 250
F.3d 878, 897 (4th Cir. 2001) (quoting Black’s Law Dictionary 1267
(6th ed. 1990)). Furthermore, "there must be a nexus between the pur-
ported rebuttal evidence and the evidence that the purported rebuttal
evidence seeks to rebut." Id. (citing United States v. Curry, 512 F.2d
1299 (4th Cir. 1975)).
The only mitigating evidence Jackson introduced in the trial’s sen-
tencing phase was the testimony of his mother, Sally Jackson. Mrs.
Jackson testified on several topics, including Jackson’s problems
growing up, his difficulty keeping a job as an adult, and his emotional
state in the months leading up to the murder of Ms. Styles. To be sure,
some portions of the videotape were properly admissible to rebut por-
tions of Mrs. Jackson’s testimony. For example, Mrs. Jackson testi-
fied that her son seemed depressed in the month leading up to the
murder, and he had to be reminded to bathe and change his clothes.
In the videotaped interview, however, Jackson describes his life as
"normal" in the month leading up to the murder.
It is equally certain, however, that broad portions of the videotape
cannot properly be characterized as rebuttal evidence. For example,
Jackson lapses during the interview into rants about politicians, prose-
cutors, and police, describing them as "scum," and "the devil." In
addition, he repeatedly asserts his innocence and advances theories
about a government conspiracy against him. The trial court erred in
admitting these portions of the videotape as rebuttal evidence because
of a lack of the required "nexus" between Jackson’s diatribe about
politicians, prosecutors, and police, and his conspiracy theories, on
the one hand, and any portion of his mother’s testimony on the other.3
3Judge Niemeyer maintains that "the videotape as a whole was sub-
stantially and reasonably within the range of rebutting the impression
that Sally Jackson intended to leave with the jury." Ante at 24. However,
this is precisely the form of over-generalized analysis that we rejected in
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The government appears to recognize this problem, and it now con-
tends that the videotape was admissible to rebut evidence presented
by Jackson, not only during the sentencing hearing, but also during
the guilt phase of the trial. This contention, however, is foreclosed by
the plain language of 18 U.S.C.A. § 3593(c) (West 2000), which pro-
vides that, "[t]he government and the defendant shall be permitted to
rebut any information received at the hearing." (emphasis added); see
also Stitt, 250 F.3d at 897 n.20 ("To be admissible as direct testi-
mony, information presented at the sentencing hearing must be rele-
vant to an aggravating factor introduced by the Government or a
mitigating factor introduced by the defendant.") (citation omitted).
Thus, the videotape was not admissible at the sentencing hearing to
rebut mitigating evidence presented by Jackson at trial.
In sum, the trial court abused its discretion in permitting the gov-
ernment to show to the jury the entire videotape, the major portion of
which goes beyond the scope of proper rebuttal. Nevertheless, for the
reasons that follow, "the Government [has] establishe[d] beyond a
reasonable doubt that the error was harmless." 18 U.S.C.A.
§ 3595(c)(2) (West 2000).
The jury was entitled to recommend that Jackson be sentenced to
death if it found that at least one aggravating factor existed and "all
the aggravating factor or factors found to exist sufficiently outweigh
all the mitigating factor or factors found to exist." 18 U.S.C.A.
§ 3593(e) (West 2000). Here, as noted above, the jury unanimously
found that the evidence established, beyond a reasonable doubt, the
Stitt. 250 F.3d at 897-98. In that case, we held that the court erred in
admitting victim impact testimony that was not "directly rebuttal" evi-
dence, but rather was admitted on a theory that "if [the defendant] can
talk about victims, [the government] can talk about victims" in rebuttal.
Id. at 897 (quoting the district court opinion). Similarly, Jackson’s moth-
er’s testimony about her son (which left the jury with a general "impres-
sion" of her son), ante at 20, does not, under Stitt, permit the government
to show a videotape which, "as a whole," conveyed a different impres-
sion of the defendant. Stitt requires a greater "nexus between the pur-
ported rebuttal evidence and the evidence that the purported rebuttal
evidence seeks to rebut," Stitt, 250 F.3d at 897 (citation omitted).
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four aggravating factors advanced by the Government. The videotape
could not have influenced the jury on the aggravating factors because
none of them was discussed during Jackson’s interview. To the extent
the inadmissible portions of the videotape might have made it less
likely that the jury would have found a particular mitigating factor,
we are convinced beyond a reasonable doubt that, in the absence of
the videotape, the jury would have found that the aggravating factors
sufficiently outweighed the mitigating factors, and that it would have
recommended a death sentence.
IV.
Pursuant to the foregoing, we reject Jackson’s contention that the
indictment’s failure to allege all of the statutory aggravating factors
constituted reversible error. In addition, while the district court erred
in its admission of the videotape as rebuttal evidence at the sentencing
hearing, the error was harmless beyond a reasonable doubt.
We otherwise concur in the opinion of Judge Niemeyer.
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