United States v. Robinson

United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2004
Charles R. Fulbruge III
Clerk
REVISED MAY, 17, 2004
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-10717
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JULIUS OMAR ROBINSON,
ALSO KNOWN AS FACE, ALSO KNOWN AS SCAR, ALSO KNOWN AS SCARFACE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before HIGGINBOTHAM, SMITH, and WIENER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Julius Robinson challenges his conviction
and death sentence on several grounds, the
most salient of which is that he was deprived
of the Fifth Amendment right to stand trial
only on crimes set forth in an indictment issued
by a grand jury. The government concedes
that the indictment is constitutionally deficient
inasmuch as it fails specifically to charge the
aggravating factors that render Robinson

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2
eligible for the death penalty. The government
contends, however, that the error is harmless.
Robinson also avers that the Federal Death
Penalty Act (“FDPA”), 18 U.S.C. § 3591 et
seq., is facially unconstitutional in three re-
spects, that the district court abused its discre-
tion in admitting evidence under the co-con-
spirator exception to the hearsay rule, and that
his death sentence is predicated on improper
aggravating factors. Agreeing with the gov-
ernment that the error in the indictment is sus-
ceptible to harmless error review, that on the
facts of this case the error is harmless, and that
none of Robinson’s other claims has merit, we
affirm.
I.
A.
Proving true to his Hollywood namesake,
Robinson, also known by names such as “Scar-
face,” entangled himself in a sadistic world of
narcotics and violence in which he personally
committed at least two senseless murders. In
December 1998, RobinsonSSa wholesale drug
dealer then operating in five statesSSkilled a
man he mistakenly believed responsible for an
armed hijacking that cost him $30,000. In
May 1999, angered by a fraudulent drug
transaction in which he paid $17,000 for a
block of wood covered in sheetrock, Robinson
retaliated by killing a man whose only connec-
tion to the fraud was that he was the brother-
in-law of the fraudulent seller.
For these murders and his complicity in an
ongoing criminal enterprise resulting in the
murder of a third man, Robinson was convict-
ed and sentenced to death on three separate
counts, to life imprisonment on two others,
and to a consecutive 300-month sentence on
another. With one limited exception, Robin-
son challenges neither the sufficiency nor the
admissibility of the evidence.
B.
The murder of Johnny Lee Shelton is a case
of mistaken identity. Shelton was similar in
appearance to a man named “Big Friday,”
whom Robinson blamed for a hijacking in a
McDonald’s restaurant parking lot several
months before. On the night he was murdered,
Shelton and a friend, Jerell Gardner, spent the
evening at a Dallas night club, where they
were spotted by two of Robinson’s associates
who mistook Shelton for Big Friday and called
Robinson to tell him what they had seen.
Robinson quickly arrived at the club,
whereupon he and two other men sat in a near-
by parking lot, waiting for the man they
thought was Big Friday to leave. They spotted
Shelton and Gardner leaving the club in a car
similar to the one Big Friday drove, and fol-
lowed t hem onto a local highway. As they
caught up to the car, Robinson yelled “that’s
him,” leaned out the window, and opened fire
with an AK-47 assault rifle. One of Robin-
son’s companions, L.J. Britt, also known as
“Capone,” did the same. Although most of the
bullets missed their mark, Shelton was struck
in the stomach and later died.1
C.
Juan Reyes was shot to death at close range
on the driveway in front of his home. He and
two companions, Isaac Rodriguez and Nicho-
las Marques, arrived there on the day of the
1 Those facts form part of the basis for Robin-
son’s conviction and death sentence on counts 3
and 7, which charged violations of 21 U.S.C. § 848
and 18 U.S.C. § 924(j), respectively. The jury
unanimously recommended a death sentence on
both counts.

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3
murder, not suspecting that in a car parked
across the street were three menSSincluding
Robinson and Angelo HarrisSSwho were upset
that they had been sold a $17,000 block of
wood instead of narcotics. Robinson and
Harris approached Reyes carrying automatic
weapons, said something to himSSthe record
is unclear whether it was a demand for mon-
eySSthen shot him in the foot. Rodriguez,
who had been standing nearby, turned to flee
and was shot three times, in the back and leg.
Reyes fell to the ground and lay there as
Robinson and Harris shot him at least nine
times. An autopsy revealed fragments of con-
crete in several of Reyes wounds, suggesting
he was shot from a distance of less than five
feet, causing the bullets to pass through his
body, ricochet off the pavement, and re-enter
his back. Before leaving, Robinson and Harris
also fired several shots at Marques, who was
still seated behind the wheel in the car in which
he, Reyes and Rodriguez had just arrived.
Marques managed to drive around the corner
to safety, but his car was riddled with bullets.2
D.
Robinson also was convicted for involve-
ment in a broad conspiracy that led to the mur-
der of Rudolfo Resendez at the hands of Britt
and Hendrick Tunstall. While engaged in this
conspiracy, Robinson and other conspirators
possessed more than five kilograms of cocaine
and various firearms.3 Robinson was further
convicted of possessing three firearms in fur-
therance of a drug trafficking crime: a 9mm
UZI pistol, a .357 caliber Smith & Wesson pis-
tol, and an SKS 7.62x39 semi-automatic
assault rifle.4 Finally, he was convicted on
several other drug and weapons charges that
the district court treated as lesser included of-
fenses and for which no independent sentence
was imposed.
E.
The jury’s sentencing recommendation was
based in part on (in addition to the aforemen-
tioned convictions) Robinson’s criminal his-
tory. The jury learned of an incident in 1995
in which Robinson fired several shots from a
handgun at a woman who had failed to pay
him $120 for crack cocaine. This was used to
show that Robinson had a violent record be-
fore the events charged in the indictment. The
jury also was told of an incident, described in
more detail in part IV, in which Robinson, act-
ing from his jail cell after his arrest in this case,
arranged to have a government informant
murdered. This was used to show that Robin-
son had a propensity to commit future acts of
violence.
2 Those facts form part of the basis for Rob-
inson’s conviction and death sentence on counts 3
and 11, which charged violations of 21 U.S.C.
§ 848 and 18 U.S.C. § 924(j), respectively. The
jury unanimously recommended a death sentence
on both counts.
3 Those facts form part of the basis for Rob-
(continued...)
3(...continued)
inson’s conviction on count 3 and his conviction
and life sentences on counts 12 and 15, which
charged violations of 21 U.S.C. §§ 848 and
841(a)(1) and 18 U.S.C. § 924(j), respectively.
The jurySShaving separately recommended a death
sentence for the portions of count 3 relating to the
Shelton and Reyes murdersSSunanimously
recommended a life sentence on the portion of
count 3 related to Resendez and two other life
sentences on counts 12 and 15.
4 Those facts form the basis of Robinson’s con-
viction and 300-month sentence on count 17, which
charges a violation of 18 U.S.C. § 924(c)(1)(A).

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4
II.
As we have noted, the government con-
cedes the indictment is constitutionally defi-
cient because it fails to allege the statutory ag-
gravating factors that make Robinson eligible
for the death penalty. The government argues,
however, that the error is harmless. Robinson
responds by pointing to a line of cases that
stand for the proposition that a conviction un-
der an indictment constructively amended at
trial is per se reversible error.
A.
The conceded error arose only after the Su-
preme Court announced Ring v. Arizona, 536
U.S. 584 (2002). Before Ring, our analysis of
the use of sentencing factors in a capital case
was controlled by Walton v. Arizona, 497 U.S.
639, 648 (1990), wherein the Court deter-
mined that aggravating factors are not inde-
pendent offenses, but only standards used to
help a jury decide between death and life
imprisonment.
The FDPA, 18 U.S.C. § 3593(d), imposes
its own obligation on prosecutors to submit
aggravating factors to the unanimous review
of a petit jury but, consistent with Walton, it
does not impose a concomitant obligation to
have a grand jury first charge those factors in
an indictment. Rather, the statute requires on-
ly that the government file a notice stating its
intention to seek the death penalty and setting
forth the aggravating factors on which it pro-
poses to justify the death sentence. 18 U.S.C.
§ 3593(a). Here, the government filed such a
notice setting forth several aggravating factors
it had not presented to a grand jury.
Nineteen days after Robinson was sen-
tenced using those factors, Ring was issued,
expressly overruling Walton. The Court held
that where an aggravating factor renders a de-
fendant eligible for death, it is “the functional
equivalent of an element of a greater offense”
and therefore must be proven to a jury beyond
a reasonable doubt. Ring, 536 U.S. at 609
(quoting Apprendi v. New Jersey, 530 U.S.
466, 494 n.19 (2000)). As a new rule of con-
stitutional criminal procedure, that holding ap-
plies to all cases pending on direct review, in-
cluding Robinson’s. Griffith v. Kentucky, 479
U.S. 314, 322 (1987).
Ring’s Sixth Amendment holding applies
with equal force in the context of a Fifth
Amendment Indictment Clause challenge, even
though the Supreme Court has yet to hold as
much in a capital case.5 As a result, the gov-
ernment is required to charge, by indictment,
the statutory aggravating factors it intends to
prove to render a defendant eligible for the
deat h penalty, and its failure to do so in this
case is constitutional error.6
5 See, e.g., Jones v. United States, 526 U.S.
227, 243 n.6 (1999) (holding that “any fact . . .
that increases the maximum penalty for a crime
must be charged in an indictment”); Apprendi, 530
U.S. at 476 (same); United States v. Cotton, 535
U.S. 625, 627 (2002) (same). See also Sattazahn
v. Pennsylvania, 537 U.S. 101, 111 (2003)
(opinion of Scalia, J.) (“We can think of no prin-
cipled reason to distinguish, in this context, be-
tween what constitutes an offense for purposes of
the Sixth Amendment’s jury-trial guarantee and . . .
the Fifth Amendment’s Double Jeopardy Clause.”).
6 This holding is in accord with that of the other
two circuits to have considered the issue. See
United States v. Allen, 357 F.3d 745, 748 (8th Cir.
2004) (holding, in an FDPA case, that “ag-
gravating factors essential to qualify a particular
defendant as death eligible . . . must be alleged in
the indictment”); United States v. Higgs, 353 F.3d
281, 298 (4th Cir. 2003) (same). At oral argu-
ment, the government represented that it became
(continued...)

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5
B.
We must consider whether Apprendi er-
rorSShere the failure of an indictment specifi-
cally to charge aggravating factors regarded as
elements because they increase the maximum
available punishmentSSis susceptible to harm-
less error review. Cf. Apprendi, 530 U.S. at
490. The Supreme Court has not yet decided
that question. Robinson points to a pre-Ap-
prendi case, Stirone v. United States, 361 U.S.
212 (1967), to argue that the error is per se re-
versible.
Although Stirone deals with the marginally
different problem of constructive amendments
to an indictment, it contains strong language
that informs our understanding of the gravity
of the error in this case. In particular, Stirone
specifies the “rule that a court cannot permit a
defendant to be tried on charges that are not
made in the indictment against him” and adds
that “[d]eprivation of such a basic right is far
too serious to be treated as nothing more than
a variance and then dismissed as harmless
error.” Id. at 217.
Stirone notwithstanding, the error here is
susceptible to harmless error review. In Cot-
ton, 535 U.S. at 631, the Court resolved an
analytically similar issue when it held that a de-
fective indictment does not deprive the court
of jurisdiction and that plain error review
applies if the defendant fails to object. We
have interpreted Cotton also to require the
application of harmless error review where an
indictment is defective and the defendant pre-
serves the error by proper objection. United
States v. Baptiste, 309 F.3d 274, 277 (5th
Cir.) (per curiam) (on petition for rehearing),
cert. denied, 538 U.S. 947 (2003); United
States v. Matthews, 312 F.3d 652, 665 (5th
Cir.), cert. denied, 538 U.S. 938 (2003).
Several other circuits likewise have concluded
that where a defendant preserves an Apprendi
indictment error, the claim is reviewed for
harmless error.7
The conclusion that this type of error is sus-
ceptible to harmless error review follows from
two considerations. First is Neder v. United
States, 527 U.S. 1, 8 (1999), in which the
Court noted that harmless error review applies
in all but a limited class of cases involving
“structural errors.” Such cases “contain a
‘defect affecting the framework within which
the trial proceeds, rather than simply an error
in the trial process itself.’” Id. (citation omit-
ted). The Court illustrated the point by pro-
viding a list of cases in which a structural error
was found; notably, the Court failed either to
cite Stirone or to mention a defective indict-
ment as being a structural error. Id.
Second, although Cotton dealt only with
6(...continued)
the policy of the Department of Justice, post-Ring,
to seek, in all pending FDPA cases, superseding
indictments setting forth the aggravating factors
that render the defendant eligible for the death
penalty. One of Robinson’s co-defendants, Britt,
was tried on the basis of one such superseding
indictment, but the option was unavailable for Rob-
inson, who was convicted and sentenced pre-Ring.
7 Two circuits have reached this conclusion in
FDPA cases. See Allen, 357 F.3d at 752; Higgs,
353 F.3d at 306. Three others have done so in
non-capital cases. See United States v. Moji-
ca-Baez, 229 F.3d 292, 311 (1st Cir. 2001); Unit-
ed States v. Prentiss, 256 F.3d 971, 984 (10th Cir.
2001) (en banc) (per curiam); United States v.
Anderson, 289 F.3d 1321, 1327 (11th Cir.), cert.
denied, 537 U.S. 1195 (2003).

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6
plain error8 and expressly reserved the ques-
tion whether a defect in an indictment is struc-
tural error,9 the Court’s analysis suggests
strongly that such a defect is not the sort of
structural error that necessarily escapes harm-
less error review.
In applying the plain error test of United
States v. Olano, 507 U.S. 725 (1993), the
Court in Cotton, 535 U.S. at 631-32, was
called on to consider whether the error affect-
ed substantial rights and whether it seriously
affected the fairness, integrity, or public repu-
tation of the judicial proceedings. Rather than
determine whether the defendant’s substantial
rights were affectedSSan inquiry consisting of
determining whether the error affected the out-
come of the proceedingsSSi.e., whether the
error harmed the defendantSSthe Court held
that “even assuming respondents’ substantial
rights were affected, the error did not seriously
affect the fairness, integrity, or public reputa-
tion of judicial proceedings.” Id. at 632-33.
Given that conclusion, it is difficult to ac-
cept that the same error simultaneously could
be the sort of “structural error” discussed in
Neder, one that necessarily “deprive[s] defen-
dants of basic protections without which . . .
no criminal punishment may be regarded as
fundamentally fair.” Neder, 527 U.S. at 8-9.
In addition, although Cotton acknowledges
that “the Fifth Amendment grand jury right
serves a vital function in providing for a body
of citizens that acts as a check on prosecutorial
power,” it also recognizes “that is surely no
less true of the Sixth Amendment right to a
petit jury, which, unlike the grand jury, must
find guilt beyond a reasonable doubt.” Cotton,
535 U.S. at 634.
We need not diminish the importance of the
Fifth Amendment right to a grand jury indict-
ment to conclude that the error at issue in
NederSSthe failure to include an element of the
crime in petit jury instructionsSSis difficult to
distinguish from the present one, and we find
no compelling reason to carve out an excep-
tion to Neder’s harmless error rule for such an
analytically similar claim.10 As a result, the
absence of an indictment on the aggravating
factors used to justify a death sentence is not
structural error and is susceptible to harmless
error review.11 See Baptiste, 309 F.3d at 277.
8 And indeed, the Court specifically distin-
guished Stirone on the ground that defendant had
preserved error by objecting. Cotton, 535 U.S.
at 632.
9 Id. (acknowledging defendant’s argument that
indictment errors are “structural errors,” but decid-
ing it need not resolve that claim).
10 See also Prentiss, 256 F.3d at 984 (“[A]
defendant’s right to have a petit jury find each ele-
ment of the charged offense beyond a reasonable
doubt is no less important than a defendant’s right
to have each element of the same offense presented
to the grand jury. If denial of the former right is
subject to harmless error analysis, we believe
denial of the latter right must be as well.”).
11 Robinson also argues for per se reversal by
pointing to United States v. Fletcher, 121 F.3d 187
(5th Cir. 1997). Reliance on Fletcher is mis-
placed. As we explained in United States v. Lon-
goria, 298 F.3d 367, 373-74 & n.9 (5th Cir.) (en
banc) (per curiam), cert. denied, 537 U.S. 1038
(2002), Fletcher applied an analytical framework
that the court “must change” post-Cotton. Rather
than regarding the defendant as having been im-
properly sentenced under a valid conviction, as the
court did in Fletcher, the correct approach in such
cases is to treat the defendant as having been
properly sentenced pursuant to an invalid convic-
tion, and to determine only whether the use of an
(continued...)

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7
C.
To decide whether the error is harmless on
the facts of this case, we use the test an-
nounced in Chapman v. California, 386 U.S.
18 (1967), because it is constitutional error.
See Neder, 527 U.S. at 15. The question is
whether the error affects substantial rights.
FED. R. CRIM. P. 52(a). That is to say, we in-
quire whether it appears “beyond a reasonable
doubt that the error complained of did not
contribute to the verdict obtained.” Chapman,
386 U.S. at 23. “An otherwise valid convic-
tion will not be set aside if the reviewing court
may confidently say, on the whole record, that
the constitutional error was harmless beyond a
reasonable doubt.” Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986).
Relevant to the inquiry in the present case,
the two primary functions of an indictment are
that it (1) provides notice of the crime for
which the defendant has been charged, allow-
ing him the opportunity to prepare a defense,
see Russell v. United States, 369 U.S. 749,
763-64 (1967); and (2) interposes the public
into the charging decision, such that a defen-
dant is not subject to jeopardy for a crime
alleged only by the prosecution, see Stirone,
361 U.S. at 218. Robinson received adequate
independent notice of the intention to pursue
a death sentence using the aggravating factors
that were ultimately presented to the jury. The
FDPA requires the government
a reaso nable time before the trial . . . [to]
sign and file with the court, and serve on
the defendant, a noticeSS (1) stating that
the government believes that the circum-
stances of the offense are such that . . . the
government will seek the sentence of death;
and (2) setting forth the aggravating factor
or factors that the government, if the defen-
dant is convicted, proposes to prove as
justifying a sentence of death.
18 U.S.C. § 3593(a). The government com-
plied by filing notice four months before trial,
and Robinson does not contend that the con-
tent or timing of the notice left him unable to
prepare a defense.
More difficult is the question whether Rob-
inson was harmed by losing the right to have
the public determine whether there existed
probable cause to charge the aggravating fac-
tors used to sentence him to death. The courts
have long recognized the significant value the
public adds to our system of justice through its
involvement in grand jury proceedings.12 Once
a trial takes place, however, there is little a
court of appeals can do to restore to a defen-
dant that which was lost: the right not to face
a prosecution initiated solely at the govern-
ment’s behest. United States v. Mechanik,
475 U.S. 66, 71 (1986).13
11(...continued)
incomplete indictment requires reversal. Id.
12 See, e.g.,Wood v. Georgia, 370 U.S. 375,
390 (1962) (“Historically, this body has been
regarded as a primary security to the innocent
against hasty, malicious and oppressive
persecution; it serves the invaluable function in our
society of standing between the accuser and the
accused, whether the latter be an individual,
minority group, or other, to determine whether a
charge is founded upon reason or was dictated by
an intimidating power or by malice and personal ill
will.”)
13 “[T]here is no simple way after the verdict to
restore the defendant to the position in which he
would have been had the indictment been dismissed
before trial. He will already have suffered
whatever inconvenience, expense, and opprobrium
(continued...)

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8
As a result, meaningful enforcement of this
right always will depend, in the main, on the
vigilance of the trial court and on its willing-
ness to require that a defective indictment be
amended before trial.14 The error in this case
lasted as long as it has only because the district
court properly relied on the then-binding
Walton decision. On appeal, our inquiry fo-
cuses solely on the question whether, on the
basis of the evidence that would have been
available to the grand jury, any rational grand
jury presented with a proper indictment would
have charged that Robinson committed the of-
fense in question. Matthews, 312 F.3d at 665.
The government asks us to embrace a cate-
gorical rule premised on Mechanik, to the ef-
fect that the petit jury’s unanimous finding that
the aggravating factors applied to Robinson
beyond a reasonable doubt conclusively estab-
lishes that the grand jurySSwhich operates ex
parte, by majority vote, and without eviden-
tiary restrictionsSSwould have found probable
cause to charge the aggravating factors as
well.
In Mechanik, 475 U.S. at 70, the Court
provided substantial support for the govern-
ment’s rule, inasmuch as it stated that although
a procedural error before the grand jury
had the theoretical potential to affect the
grand jury’s determination whether to in-
dict these particular defendants for the of-
fenses with which they were charged . . .[,]
[t]he petit jury’s subsequent guilty verdict
means not only that there was probable
cause to believe that the defendants were
guilty as charged, but also that they are in
fact guilty as charged beyond a reasonable
doubt. Measured by the petit jury’s ver-
dict, then, any error in the grand jury pro-
ceeding connected with the charging deci-
sion was harmless beyond a reasonable
doubt.
At oral argument, Robinson responded by ar-
guing that the logic of MechanikSSwhich es-
sentially posits that the citizens on the grand
jury are interchangeable with those on the petit
jurySShas less force in a capital case, where
the petit jury is subject to death qualification.15
13(...continued)
that a proper indictment may have spared him.”
Id.
14 In this respect, our view apparently differs
from that of the Eighth Circuit in Allen. Though it
ostensibly agreed that the harmless error rule
applies, that court also expressed its concern that
application of the harmless error doctrine would
invite intentional government action to evade the
Fifth Amendment’s Indictment Clause, because it
would render “indictment by information in all
cases . . . constitutionally harmless error.” Allen,
357 F.3d at 755.
To the contrary, an equally competent district
court would catch such a glaringly obvious error as
the failure to indict any defendant at all, so we do
not subscribe to this doomsday prophesy. The
Eighth Circuit’s rebuttal to our positionSSthat
“there will be instances where errors occur or ob-
jections are not timely made,” id. at 756SSis un-
persuasive. The same can be said of any instance
in which harmless or plain error review applies,
and it hardly describes a world in which the Fifth
Amendment has no meaning. Harmless error is
used only where objections are made but “errors
occur,” see FED. R. CRIM. P. 52(a); the failure to
object timely causes the plain error doctrine to be
invoked, see FED R. CRIM. P. 52(b); Cotton, 535
U.S. at 631.
15 Robinson has not substantiated this claim
with anything more than the conventional wisdom
(continued...)

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9
No categorical rule is needed to convince
us that any rational grand jury would find
probable cause to charge Robinson with at
least one of the statutory aggravating factors
omitted from his indictment.16 In addition to
the petit jury’s unanimous findingsSSwhich we
consider to be, at a minimum, persuasive
evidence of how a grand jury would findSSthe
evidence overwhelmingly shows that there ex-
isted probable cause to charge Robinson with
the aggravating factors used in his sentencing.
All three death sentences involved the ag-
gravating factor that in the killings of Shelton
and Reyes, Robinson “knowingly created a
grave risk of death to one or more persons in
addition to . . . the victim.” Cf. 18 U.S.C.
§ 3592(c)(5). Robinson killed Shelton by fir-
ing an AK-47 assault rifle from the window of
a moving vehicle on a public highway, directly
endangering Shelton’s passenger and anyone
else in range.17 The record also shows that in
the course of killing Reyes, Robinson and his
co-assailant managed to shoot Rodriguez three
times and to fire enough times at Marques’s
car fleeing the scene to leave it riddled with
bullets. All this took place in a residential
neighborhood in close proximity to at least
two adolescent eyewitnesses playing on a
nearby porch, and across the street from a
barbecue attended by at least ten people.
No rational grand jury would fail to find
that this evidence constituted anything less
than probable cause to believe that, in the
course of committing each murder, Robinson
created a grave risk of death to someone other
than the victim. As a result, and beyond a rea-
sonable doubt, the failure to charge those fac-
tors in an indictment did not contribute to
Robinson’s conviction or death sentence.18 Cf.
15(...continued)
that a death-qualified jury is more apt to convict
than is a random jury, a finding the Supreme Court
has repeatedly disavowed in cases involving far
greater evidence than we have before us. See
Lockhart v. McCree, 476 U.S. 162, 168-73 (1986)
(criticizing studies that purported to show a con-
nection between death qualification and guilty ver-
dicts, before concluding that even a “somewhat
more ‘conviction-prone’” jury would not violate the
Sixth Amendment); Witherspoon v. Illinois, 391
U.S. 510, 517-18 (1968) (finding the evidence of
the effect of death qualification to be “too tentative
and fragmentary” to support the view that such
jurors are more apt to convict).
16 We agree with the Fourth and Eighth Circuits
that it is only the statutory aggravating factors that
trigger the Fifth Amendment’s Indictment Clause,
because they are the only factors that render the
defendant eligible for death. See Higgs, 353 F.3d
at 298; Allen, 357 F.3d at 749; 18 U.S.C.
§ 3593(e)(2).
17 That evidence came in the form of testimony
by Jason Gehring, the man driving the assailants’
truck as they pursued Shelton. Gehring stated that
Shelton’s car accelerated rapidly moments before
the shooting star ted and that Gehring could see a
large number of bullets ricocheting off the road and
adjoining concrete wall. This created an obvious
risk of death to other motorists who could have
been hit by a stray bullet or involved in an accident
with Shelton’s fast-moving vehicle.
18 Although it suffices that the grand jury would
have charged one statutory aggravating factor,
there also is overwhelming evidence to support the
remaining factors. For example, the Reyes and
Shelton murders were committed after substantial
planning and premeditation, a factor also used to
impose the death penalty on counts 3, 7, and 11.
Cf. 18 U.S.C. § 3592(c)(9). Witnesses testified
that Robinson had repeated discussions over
several weeks about getting even with Big Friday,
the man he thought responsible for the hijacking.
This was further evidenced by the fact that
(continued...)

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10
Chapman, 386 U.S. at 23.
III.
Robinson challenges the constitutionality of
the FDPA on three grounds. First, he argues
that the statute is facially unconstitutional
under the Fifth Amendment’s Indictment
Clause because it does not require prosecutors
to charge aggravating factors in an indictment;
second, he reasons that the FDPA violates the
Fifth Amendment’s guarantee of due process
of law; and he contends that the FDPA vio-
lates the Eighth Amendment’s ban on cruel
and unusual punishment. None of these claims
has merit.
The constitutionality of a federal statute is
a question of law reviewed de novo. United
States v. Ho, 311 F.3d 589, 601 (5th Cir.
2002). “A statute must be construed, if fairly
possible, so as to avoid not only the conclusion
that it is unconstitutional but also grave doubts
upon that score.” Rust v. Sullivan, 500 U.S.
173, 191 (1991) (internal quotations omitted).
“This canon is followed out of respect for
Congress, which we assume legislates in the
light of constitutional limitations.” Id.; see
also United States v. Bird, 124 F.3d 667,
678-79 (5th Cir. 1997).
A.
“A facial challenge to a legislative Act is, of
course, the most difficult challenge to mount
successfully, since the challenger must estab-
lish that no set of circumstances exists under
which the Act would be valid.” United States
v. Salerno, 481 U.S. 739, 745 (1987). “The
fact that [a statute] might operate unconstitu-
tionally under some conceivable set of cir-
cumstances is insufficient to render it wholly
invalid, since we have not recognized an
‘overbreadth’ doctrine outside the limited con-
text of the First Amendment.” Id.
The FDPA is not facially unconstitutional
under the Indictment Clause. Although Robin-
son is correct to point out that nothing in the
FDPA requires prosecutors to charge aggra-
vating factors in an indictment, he fails to note
that there is nothing in that law inhibiting such
a charge. The government can easily comply
with both its constitutional obligations (by first
going to the grand jury) and its statutory
obligations (by later filing a § 3593(a) notice
of intention to seek the death penalty). As a
result, the statute is not facially unconstitu-
tional.
B.
Robinson’s due process claim fails, as well.
He argues, citing United States v. Quinones,
205 F. Supp. 2d 256 (S.D.N.Y.), reversed,
313 F.3d 49 (2d Cir. 2002), cert. denied, 124
18(...continued)
Robinson’s associates knew to call him as soon as
they thought they saw Big Friday, and by
Robinson’s immediate response to that phone call.
The Reyes murder occurred only after Robinson’s
co-assailant drove from Oklahoma to Dallas to
participate in the shooting, and witnesses testified
that the pair waited outside Reyes’s house for up to
twenty minutes before the victim arrived.
In addition, the evidence that Robinson riddled
Reyes’s body with bullets after he was on the
ground provides probable cause to believe that the
murder was committed in an especially heinous,
cruel, or depraved manner, as used to support the
death sentence for count 11. Cf. 18 U.S.C.
§ 3592(c)(6). Finally, the evidence that Robinson
and his co-assailant fired on two other people at
Reyes’s home points overwhelmingly in favor of a
finding that Robinson attempted to kill more than
one person in a single criminal episode, as used to
support the death sentence for count 11. Cf. 18
U.S.C. § 3592(c)(16).

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11
S. Ct. 807 (2003), that the FDPA violates the
substantive and procedural components of the
Due Process Clause. The substantive due pro-
cess claim is premised on the idea that all cap-
ital defendants share a liberty interest in not
being executed for crimes they did not commit.
This shared liberty interest, it is argued, enti-
tles a guilty defendant facially to invalidate a
law that could be used in some other case to
execute an innocent man.
This argument has no merit. Whatever the
risk that another person will be wrongfully
convicted, Robinson has not even attempted to
show, on appeal, that his conviction is errone-
ous, and he has presented no evidence to sug-
gest that the FDPA is unconstitutional as ap-
plied to his case. So, he cannot invalidate the
statute on the ground that it might conceivably
be applied to reach an unconstitutional result
in some other defendant’s case. Salerno, 481
U.S. at 745.
Robinson does not elaborate on the specific
manner in which he believes the FDPA de-
prives him of procedural due process. We pre-
sume, however, from his frequent citations to
the district court opinion in Quinones, that he
agrees with that court that the problem is that
execution “arbitrarily eliminate[s] any pos-
sibility of exoneration after a certain point in
time.” Quinones, 205 F. Supp. 2d at 265.
On that theory, all executions would violate
the Due Process Clause, because they render
the defendant unable further to challenge his
conviction. That argument is belied by the
plain text of the Fifth Amendment, which un-
ambiguously provides that some measure of
process is sufficient to permit imposition of the
death penalty, and there is nothing arbitrary in
choosing, for the execution, a point in time
after a full and fair trial, direct appeal, and the
opportunity to pursue relief in the form of a
petition for a writ of certiorari and petition for
a writ of habeas corpus.
C.
Robinson asks us to invalidate the FDPA
on the ground that the death penalty is cruel
and unusual punishment, in violation of the
Eighth Amendment. He recognizes that this
claim is foreclosed by Gregg v. Georgia, 428
U.S. 153 (1976), but he argues that societal
standards of decency have evolved to the point
at which imposing the death penalty against an
adult murderer has become an intolerably cruel
act. Cf. Trop v. Dulles, 356 U.S. 86, 101
(1958). We note, however, that it is uncertain
whether this court is even empowered to rec-
ognize such an evolution in the law, or must
instead reserve that question for the Supreme
Court.19 Even assuming we had such a power,
Robinson presents no evidence of an evolution
in societal standards of decency, and we see no
reason to believe that there has emerged a
national consensus against capital punishment
for defendants who commit crimes that are as
depraved as Robinson’s. The FDPA is not fa-
cially unconstitutional under any of these
theories.
IV.
Robinson challenges, as hearsay, the admis-
sion of certain testimony at his sentencing
hearing. The government counters that the
19 Recently, the Supreme Court granted certi-
orari in Roper v. Simmons, No. 03-633, in which
the first question it certified for review is as fol-
lows: “Once this court holds that a particular pun-
ishment is not ‘cruel and unusual,’ and thus barred
by the Eighth and Fourteenth Amendments, can a
lower court reach a contrary decision based on its
own analysis of evolving standards?” Roper, 124
S. Ct. 1171 (2004).

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12
district court properly admitted the evidence as
the testimony of a co-conspirator under rule
801(d)(2)(E) of the Federal Rules of Evidence,
and on the ground that the FDPA explicitly
provides that the rules of evidence do not ap-
ply at sentencing hearings. See 18 U.S.C.
§ 3593(c); see generally 5 STEPHEN A. SALTZ-
BURG, MICHAEL M. MARTIN & DANIEL J.
CAPRA, FEDERAL RULES OF EVIDENCE MAN-
UAL § 1101.02[2], at 1101-5; 1101.03)[6][d]
(LexisNexis 2003).
We “review the admission of hearsay evi-
dence under the non-hearsay definition of Rule
801(d)(2)(E) for abuse of discretion.” United
States v. Solis, 299 F.3d 420, 443 (5th Cir.)
(internal quotations omitted), cert. denied, 537
U.S. 1060, and cert. denied, 537 U.S. 1094
(2002). “Under our precedent, the proponent
of admittance under Rule 801(d)(2)(E) must
prove by a preponderance of the evidence (1)
the existence of a conspiracy, (2) the statement
was made by a co-conspirator of the party, (3)
the statement was made during the course of
the conspiracy, and (4) the statement was
made in furtherance of the conspiracy.” Id.
The evidence was admissible as a co-con-
spirator’s statement, so we need not consider
whether the FDPA’s blanket exception to the
hearsay rule is constitutional under Ring.20
See generally 5 SALTZBURG ET AL., supra,
§ 801.03[10]; cf. U.S. CONST. amend. VI. The
objection was made to a portion of the testi-
mony of Michael Williams, also known as
“One Love,” a government informant whose
testimony was used to prove the non-statutory
aggravating factor that Robinson posed a fu-
ture danger to the lives and safety of other per-
sons, as evidenced by a lack of remorse during
or soon after the murder of Reyes.
At the sentencing hearing, Williams testified
to the effect that, after aiding the investigation
of Robinson, he was approached by three men,
one of whom was armed with a .38 caliber
firearm, who then kidnaped, assaulted, and
threatened him with death. Over Robinson’s
objection, Williams testified that one of these
men, Kendall Pitts, also known as “Cracker,”
told him the men were going to kill him be-
cause he had “snitched” on a gang leader.21
This testimony easily fits the first three prongs
of the rule 801(d)(2)(E) exception, because
the government made a competent showing
that Robinson initiated a conspiracy to have
Williams murdered, that the declarant Pitts
was involved in this conspiracy, and that the
statement was made while Pitts carried out the
conspiracy. Cf. Solis, 299 F.3d at 443.
As to the fourth requirement, “[t]his Court
has consistently held that the in furtherance
requirement is not to be construed too strictly
lest the purpose of the exception be defeated.”
United States v. Phillips, 219 F.3d 404,
418-19 (5th Cir. 2000). It is sufficient, in this
respect, that Pitts’s declarationSSwhich was
20 The constitutionality of rule 801(d)(2)(E) is
well established. See United States v. Inadi, 475
U.S. 387, 395 (1986); Bourjaily v. United States,
483 U.S. 171, 182 (1987). As applied to the pre-
sent case, this conclusion is not called into doubt
by Crawford v. Washington, 124 S. Ct. 1354,
1374 (2004), because the statement challenged as
hearsay was made during the course of the conspir-
acy and is non-testimonial in nature.
21 The government separately linked this tes-
timony to Robinson by introducing an audiotape of
a phone conversation in which Robinson was
heard, from jail, instructing a relative to “go hard”
on Williams, and through testimony showing that
outside sources wasted little time in informing
Robinson of the attempt on Williams’s life.

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13
not only a threat but an explanation of why the
threat was legitimateSSput Williams under his
immediate control as the three men forced him
to go along to the location where they intend-
ed to kill him. The district court did not abuse
its discretion in admitting this testimony.
V.
Robinson makes two challenges to the ag-
gravating factors used against him. First, he
argues that two of the statutory aggravating
factors used to support his death sentence un-
der count 11SSfor the murder of Juan Rey-
esSSare unconstitutionally duplicative. Sec-
ond, he posits that the FDPA does not au-
thorize the use of non-statutory aggravating
factors. Both points are meritless.
A.
There is no legal basis for Robinson’s claim
that two of the aggravating factors specified
by Congress were used in such a way as to be
unconstitutionally duplicative. Although our
caselaw once framed the issue in those terms,
the Supreme Court recently admonished that it
does not support that theory of review. See
Jones v. United States, 527 U.S. 373, 398
(1999). Rejecting the idea that a similarity
between two factors could make their com-
bined use invalid, the Court explained that it
had only held that “the weighing process may
be impermissibly skewed if the sentencing jury
considers an invalid factor.” Id. (citing
Stringer v. Black, 503 U.S. 222, 232 (1992)).
Both factors challenged by Robinson are
legitimate. Congress determined, in § 3592-
(c)(5), that a murderer is deserving of greater
condemnation if he knowingly created a grave
risk of death to one or more persons in addi-
tion to the victim; and, in § 3592(c)(16), that
greater condemnation is warranted if the per-
petrator intentionally killed or attempted to kill
more than one person in a single episode. We
see no reason to second-guess Congress’s
judgment that murders bearing those attributes
are deserving of enhanced punishment, and
under Jones their use is none the worse in
tandem.
B.
Robinson argues that the jury arrived at its
recommendation of death by impermissibly
weighing aggravating factors that were not
specified by the statute. These “non-statutory
aggravating factors” are considerations that
the prosecution specified in its § 3593(a) no-
tice of intent to seek the death penalty as ad-
ditional reasons that Robinson should be put to
death.22 The statute provides that the jury may
consider such determinations in reaching its
decision to recommend death, just as it permits
the jury to consider any mitigating factors not
specified in the statute.23
Robinson’s tortured reading of the statute
would have us declare that § 3591(a) contra-
dicts, and implicitly invalidates, the provision
22 The government’s notice indicated that it
sought to prove that Robinson had committed a
previous violent act and had exhibited a lack of re-
morse that was suggestive of propensity to commit
a future violent act. The jury unanimously found
beyond a reasonable doubt that those factors
applied to Robinson, and presumably weighed them
in reaching the recommendation that he be
sentenced to death.
23 Compare 18 U.S.C. § 3592(a) (stating that
“the finder of fact shall consider any mitigating
factor, including the following” eight specified
factors); with § 3592(c) (stating that “the jury . . .
may consider whether any other aggravating factor
for which notice has been given exists”).

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14
authorizing the use of non-statutory aggravat-
ing factors merely because § 3591(a) refers to
consideration of the factors “set forth” in
§ 3592(c). “It is ‘a cardinal principle of statu-
tory construction’ that ‘a statute ought, upon
the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall
be superfluous, void, or insignificant.’” TRW,
Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(quoting Duncan v. Walker, 533 U.S. 167,
174 (2001)) (internal quotations omitted).
When the statute is read as a coherent whole,
the two provisions are not in tension, because
§ 3592 adequately “sets forth” the non-statu-
tory aggravating factors by providing that the
jury may consider them.
For the foregoing reasons, the conviction
and sentence are AFFIRMED. The govern-
ment’s motion to supplement the record on
appeal is DENIED.

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