In the space of a week in July 2001, Gary Lee Sampson, a drifter wanted for a string of bank robberies, killed three men who stopped to give him a ride. Phillip McCloskey, a sixty-nine-year-old retiree, and Jonathan Rizzo were carjacked and stabbed to death in Massachusetts; Robert Whitney was strangled with a rope in New Hampshire and his car taken. Near West Bridgewater, Vermont, a fourth driver who picked him up escaped at a rest area when Sampson tried to force him at knifepoint down a dirt road. Later that day Sampson broke into a house near the Killington ski area and called 911 to turn himself in.
Massachusetts had no death penalty, so federal prosecutors charged him with carjacking resulting in death, a federal capital crime. He pleaded guilty to two counts in September 2003, and in December a federal jury in Boston sentenced him to death. On May 7, 2007, in the opinion at the center of this collection, the First Circuit affirmed, calling it the first time in the court’s history that it had reviewed a death sentence imposed by a federal judge; in July the full court declined to rehear the case over a dissent.
The later opinions come from what happened next. After the sentence was final, the defense discovered that a juror had lied during jury selection, and the district court vacated the death sentence and ordered a new penalty trial. In 2013 the First Circuit dismissed the government’s appeals and agreed that the sentence had to be vacated, in an opinion on when a juror’s dishonesty requires a verdict to be set aside. In 2016, with the government seeking death a second time, it affirmed the district court’s refusal to strike two of the aggravating factors the prosecution meant to present at the new hearing, and rejected his argument that the Double Jeopardy Clause barred them.
Sampson pleaded guilty, so no jury ever weighed the evidence of the killings; the opinions set out the facts as the penalty-phase evidence presented them. The Whitney murder in New Hampshire was prosecuted there and appears here as part of the government’s case for death. Nothing in these opinions covers the second penalty trial or what followed it.
The four opinions are public records of the United States Court of Appeals for the First Circuit. The three men he killed keep their names, as do the lawyers, judges and expert witnesses. The driver who escaped from him in Vermont is given initials. The juror whose dishonesty led to the new penalty trial appears only as Juror C, as the court identified her.
The Caselaw Access Project text of the Federal Reporter is printed complete, with the 2007 rehearing order and its dissent included as a separate entry. We closed words the printer had split across lines only where the joined form appears elsewhere in the text, and nothing has been spell-checked; a scanning error prints “Crime Seene” in one heading.
UNITED STATES of America, Appellee, v. Gary Lee SAMPSON, Defendant, Appellant.
No. 04-6001.
United States Court of Appeals, First Circuit.
Heard Oct. 4, 2006.
Decided May 7, 2007.
David A. Ruhnke and Joshua L. Dratel, with whom Ruhnke & Barrett, Joshua L. Dratel, P.C., Meredith S. Heller, Kristian K. Larsen, and Erik B. Levin were on brief, for appellant.
Steven L. Lane, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, George W. Vien and John A. Wortmann, Jr., Assistant United States Attorneys, were on brief, for appellee.
Before SELYA, LYNCH and LIPEZ, Circuit Judges.
[OPINION BY SELYA, Circuit Judge. type=majority]
SELYA, Circuit Judge.
This is a landmark case; for the first time in its history, this court must review a sentence of death imposed by a federal judge. To that extent, we are writing on a pristine page. We are guided in this path-breaking endeavor, however, by a variety of reliable sources, including Supreme Court precedent, decisions of other courts of appeals in capital cases, and legal principles of general application.
With this brief preface, we turn to the particulars of the case at hand. Defendant-appellant Gary Lee Sampson entered a guilty plea to two counts of carjacking resulting in death. See 18 U.S.C. § 2119(3). On January 29, 2004, the district court sentenced Sampson to death on the recommendation of a jury of his peers.
Sampson’s appeal from his sentence raises a host of claims. The first six include five claims that contest the constitutionality of the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3598 (FDPA), pursuant to which the district court pronounced sentence, and one that contests the constitutionality of the death penalty in general. There follows a litany of claims concerning alleged errors specific to Sampson’s penalty-phase trial. The district court’s rulings on many of these issues are embodied in a series of published opinions. See United States v. Sampson, 335 F.Supp.2d 166 (D.Mass.2004) (Sampson IV); United States v. Sampson, 332 F.Supp.2d 325 (D.Mass.2004) (Sampson III); United States v. Sampson, 275 F.Supp.2d 49 (D.Mass.2003) (Sampson II); United States v. Sampson, 245 F.Supp.2d 327 (D.Mass.2003) (Sampson I).
We begin this opinion by sketching the background of the case. We then discuss Sampson’s arguments about the constitutionality of the FDPA and the death penalty itself. Finally, we address the myriad claims of trial-related error. In the end, we reject Sampson’s asseverational array in its entirety and affirm his capital sentence.
I. BACKGROUND
We briefly recount the facts underlying Sampson’s claims. Many of these facts are rehearsed in Sampson IV, 335 F.Supp.2d at 174-75, and McCloskey v. Mueller, 446 F.3d 262, 264-65 (1st Cir. 2006), and we assume the reader’s familiarity with those opinions.
Sampson committed a series of bank robberies in North Carolina in May, June, and July of 2001. He then fled to Massachusetts. On July 23, he called the FBI’s Boston office and offered to self-surrender. The call was disconnected and, although he waited for the police to arrive, Sampson was not apprehended.
The next day, Phillip McCloskey, a 69-year-old retiree, was driving his car in Weymouth, Massachusetts. He picked up Sampson, who was hitchhiking. When McCloskey later tried to drop Sampson off, Sampson pulled out a knife and told McCloskey to keep driving. Once they reached Marshfield, Sampson forced McCloskey out of the car and attempted to restrain him with a belt. When McCloskey resisted, Sampson stabbed him multiple times and then slit his throat, nearly decapitating him. Sampson proceeded to steal McCloskey’s money and tried to steal his car, which would not start.
Three days later, Jonathan Rizzo, a 19-year-old college student, picked up Sampson (who was posing as a stranded traveler) along a road in Plymouth. Sampson forced Rizzo at knifepoint to drive to Ab-ington, where Sampson maintained a makeshift campsite. Sampson tied Rizzo to a tree, gagged him with a sock and a bandana, stabbed him repeatedly in the neck and chest, and slit his throat. After Rizzo was dead, Sampson stole his car and drove to New Hampshire.
On July 29, Sampson broke into a home on Lake Winnipesaukee. The next day, the caretaker (Robert Whitney) arrived. Sampson tied him to a chair, gagged him with a washcloth, and strangled him to death with a rope. Sampson then appropriated Whitney’s car and drove to Vermont.
On July 31, W.G. picked up Sampson, who was hitchhiking, near West Bridgewater, Vermont. Sampson attempted to force G. at knifepoint onto a dirt road so that he could tie him to a tree and steal his car. G., however, pulled into a rest area and escaped on foot. Sampson made off with G.’s car. Later that day, he broke into a home near the Killington ski area. He then called 911 and offered to turn himself in for carjacking G. and for the earlier bank robberies. Vermont state troopers arrested Sampson at that locus. Following his detention, Sampson waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and made several detailed confessions to the authorities.
On October 24, 2001, a federal grand jury charged Sampson with two counts of carjacking resulting in death (namely, the murders of McCloskey and Rizzo). Sampson offered to plead guilty in exchange for a sentence of life imprisonment without parole but that overture was rejected.
In short order, the government filed a superseding indictment to comply with Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and then served a notice of intent to seek the death penalty, see 18 U.S.C. § 3593(a). After filing numerous pretrial motions that unsuccessfully challenged the constitutionality of the FDPA, Sampson eventually .entered a guilty plea to both counts of the superseding indictment.
The district court empaneled a death-qualified jury to determine what punishment should be imposed. See id. § 3593(b)(2)(A); see also United States v. Green, 407 F.3d 434, 436-37 (1st Cir.2005) (discussing “death-qualified” jury requirement). On December 23, 2003, after a six-week penalty-phase trial conducted in accordance with the FDPA, the jury unanimously recommended that Sampson be sentenced to death on both counts of the superseding indictment. The district court sentenced Sampson to death on both counts. United States v. Sampson, 300 F.Supp.2d 275, 276 (D.Mass.2004). The district court denied Sampson’s ensuing motions for judgment as a matter of law, a new penalty-phase trial, and other relief. Sampson III, 332 F.Supp.2d at 341. This appeal followed.
II. THE CONSTITUTIONAL CLAIMS
Sampson raises six types of constitutional claims. Most of them are attacks on the FDPA. First, Sampson argues that the FDPA, which authorizes prosecutors to decide whether to seek the death penalty, is unconstitutional because it does not require the aggravating factors needed for a sentence of death to be presented to a grand jury as mandated by Ring. Relatedly, he argues that the presentation of aggravating factors to the grand jury in this case was tantamount to executive and judicial redrafting of the statute in derogation of the principles of separation of powers and legislative authority. Second, Sampson argues that because the federal death penalty is so rarely sought or imposed, the FDPA operates in a fundamentally arbitrary and capricious manner (and, thus, is invalid as violative of the Eighth Amendment). Third, he argues that the absence of a principled basis for distinguishing between cases in which the federal death penalty is imposed and those in which it is not renders the FDPA unconstitutional. Fourth, he argues that the federal death penalty is sought on the invidious basis of race and the irrational basis of geography (and, thus, is unconstitutional). Fifth, he argues that continued enforcement of the federal death penalty will lead to execution of a significant number of innocent persons and that, therefore, the FDPA and the death penalty itself are unconstitutional. Finally, he argues that the death penalty is per se unconstitutional. Sampson supports his arguments with Brandeis-brief type information from studies about the operation in fact of the FDPA.
The district court rejected each of these claims after careful analysis. See Sampson II, 275 F.Supp.2d at 62-66, 71-94; Sampson II, 245 F.Supp.2d at 330-38. Concluding, as we do, that nearly all of the claims are foreclosed by Supreme Court precedent, we echo this holding.
Before addressing the issues, we confirm some basic principles applicable to judicial review. A district court’s rulings on questions of law, including constitutional questions, engender de novo review. See United States v. Bender, 221 F.3d 265, 268 (1st Cir.2000); see also United States v. Marenghi, 109 F.3d 28, 31 (1st Cir. 1997). Statutes duly enacted by Congress are presumed to be constitutional. INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Thus, the burden of proving that the FDPA is unconstitutional is on the challenger (here, Sampson). Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001). Last — but surely not least — when the Supreme Court has directly decided an issue, we must “follow the case [that] directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). With these principles in mind, we turn to Sampson’s constitutional claims.
A. Ring-Related Claims.
We begin with Sampson’s multifaceted claim that the FDPA is unconstitutional under Ring. Sampson argues that the FDPA “suffers from a fatal flaw,” Appellant’s Br. at 199, in that it provides for the prosecutor, not a grand jury, to set out by allegation the aggravating factors necessary for a sentence of death whereas the Constitution, as interpreted by the Ring Court, requires that these factors be presented to a grand jury and charged in an indictment. He further argues that allowing the prosecutor to select the aggravating factors and present them to the grand jury in his case constituted “improper executive and judicial redrafting of the statute.” Id. We do not agree.
The FDPA defines the circumstances under which defendants who commit certain federal crimes may be eligible for the death penalty. A defendant who commits a qualifying offense is death-penalty eligible only if a jury finds beyond a reasonable doubt that the defendant acted with the statutorily required intent, see 18 U.S.C. §§ 3591(a)(2), 3593(b), and that at least one statutorily defined aggravating factor exists, see id. §§ 3592, 3593(c)-(e). It is only after these threshold findings are made that a jury, considering both mitigating and aggravating factors, may determine that the death penalty is appropriate. See id. § 3593(e)-(e).
Part of the statute, section 3593(a), authorizes the Department of Justice (DOJ) to determine whether to seek the death penalty in a particular case. If the government elects to seek the death penalty, the statute requires it to give the defendant notice of its election and of the aggravating factors that it plans to prove. Id. § 3593(a).
The FDPA makes no mention of the grand jury. This omission is understandable. Congress enacted the FDPA in 1994 against the backdrop of Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), in which the Supreme Court held that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” Id. at 648, 110 S.Ct. 3047 (quoting Hildwin v. Florida, 490 U.S. 638, 640-41, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam)) (internal quotation marks omitted). Essentially, the Walton Court held that the facts necessary to render a defendant eligible for the death penalty were not elements of the offense itself, making inapplicable the Fifth Amendment requirement that the elements of an offense be charged by a grand jury in an indictment. See id. at 649, 110 S.Ct. 3047.
The Supreme Court first cast doubt on Walton in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). There, the Court considered 18 U.S.C. § 2119, the carjacking statute involved in this case, and held that the statute created three separate offenses. See Jones, 526 U.S. at 251-52, 119 S.Ct. 1215. It further held that the fact that a defendant caused serious bodily injury to another during the commission of a crime was an element of a greater offense that had to be both charged in an indictment and found by a jury at trial beyond a reasonable doubt. See id. at 232-39, 252, 119 S.Ct. 1215. In reaching these conclusions, the Jones Court distinguished the sentencing factors upheld in Walton. See id. at 251, 119 S.Ct. 1215.
The next Term, the Court held that any fact that increases the maximum author--ized statutory sentence “is the functional equivalent of an element of a greater offense,” which must be charged in an indictment and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Finally, in 2002 the Court explicitly overruled Walton. See Ring, 536 U.S. at 609, 122 S.Ct. 2428. In the wake of Ring, Supreme Court precedent now firmly establishes that the mental culpability and aggravating factors required by the FDPA must — in addition to being included in the government’s notice to seek the death penalty — be presented to a grand jury, charged in the indictment, and proved beyond a reasonable doubt. But as we shall explain, even though this eliminates a background assumption against which the FDPA was framed, it does not render the statute unconstitutional.
Sampson contends both that there is a conflict between the FDPA and Ring, and that curing the problem would require the rewriting of the statute, which is a legislative function. This contention is unpersuasive. The courts that have considered this thesis uniformly have rejected it. See United States v. Brown, 441 F.3d 1330, 1367 (11th Cir.2006), cert, denied, — U.S. —, 127 S.Ct. 1149, — L.Ed.2d - (2007); United States v. Allen, 406 F.3d 940, 949 (8th Cir.2005), cert, denied, — U.S.—, 127 S.Ct. 826, 166 L.Ed.2d 665 (2006); United States v. Barnette, 390 F.3d 775, 788-90 (4th Cir.2004), vacated on other grounds, - U.S.-, 126 S.Ct. 92, 163 L.Ed.2d 32 (2005); United States v. Robinson, 367 F.3d 278, 290 (5th Cir.2004); cf. United States v. Collazo-Aponte, 281 F.3d 320, 324-25 (1st Cir.2002) (rejecting a facial challenge to 21 U.S.C. § 841 because “there is nothing in the statutory language that explicitly defies Apprendi ”).
We agree with this line of cases; there is no irredeemable conflict between the FDPA and Ring. The FDPA does not, as Sampson suggests, grant to prosecutors exclusive authority for determining the likely existence of aggravating factors. No provision of the FDPA prohibits a grand jury from considering those factors necessary for imposition of a death sentence. The statute simply is silent with respect to the function of the grand jury. It thus is not rendered facially unconstitutional by Ring.
Sampson also presents a variation on this theme, arguing that the application of Ring to the FDPA requires impermissible judicial or executive redrafting of the statute. We think not.
What is involved in the application of Ring is a matter of procedure, not of substantive definition regarding death-penalty eligibility. After all, in the habeas context, Apprendi and Ring regularly have been held to announce a new rule of criminal procedure, not a new rule of substantive law. See United States v. Brown, 305 F.3d 304, 308-09 (5th Cir.2002); Cannon v. Midlin, 297 F.3d 989, 994 (10th Cir.2002); United States v. Warden, 286 F.3d 1059, 1063 (8th Cir.2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir. 2002); McCoy v. United States, 266 F.3d 1245, 1257 n. 16 (11th Cir.2001); see also Sepulveda v. United States, 330 F.3d 55, 59 (1st Cir.2003) (treating Apprendi as having announced a rule of criminal procedure); United States v. McAllister, 272 F.3d 228, 232 (4th Cir.2001) (holding, in the context of a constitutional challenge to 21 U.S.C. § 841, that Apprendi announced a procedural rule). To cinch matters, the Jones Court made pellucid that “[t]he constitutional guarantees that g[a]ve rise to [its] concern in no way restrict the ability of legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability.” 526 U.S. at 243 n. 6,119 S.Ct. 1215.
It follows, then, that the rule against massive judicial rewriting of statutes simply is not implicated here. Adhering to a court-crafted rule of criminal procedure when applying the FDPA does not constitute impermissible statutory redrafting.
In this respect, the instant case is unlike United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), on which Sampson relies. In Jackson, the Supreme Court invalidated the death penalty provision of the Federal Kidnaping Act, which permitted only a jury to impose a death sentence. Id. at 591, 88 S.Ct. 1209. The objection was that it infringed on the right to a jury trial by encouraging a defendant to plead guilty or to waive that right in order to avoid the possibility of a death sentence. Id. at 572-73, 88 S.Ct. 1209. The government encouraged the Supreme Court to save the statute by reading it to allow a judge — in the event of a guilty plea or bench trial — to convene a “special jury” to determine whether the death penalty was warranted. Id. The Court rejected this suggestion, stating that it could not “create from whole cloth a complex and completely novel procedure and ... thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality.” Id. at 580, 88 S.Ct. 1209.
This case, however, does not require us to “create from whole cloth a complex and completely novel procedure.” As the district court perspicaciously noted, see Sampson I, 245 F.Supp.2d at 337, the role of the grand jury jn charging the elements of an offense has long been established. See, e.g., Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (ruling on a challenge to the sufficiency of an indictment); Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (same). Here, the government honored that role; it simply presented the grand jury with evidence of possible aggravating factors.
This case also is unlike Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), on which Sampson further relies. In Blount, the Supreme Court invalidated two provisions of the Postal Reorganization Act because they did not conform to the constitutional requirements of an administrative censorship scheme. 400 U.S. at 421-22, 91 S.Ct. 423. The Court rejected a proposed severing construction of the statute that itself failed to comply with the Constitution and then noted that “it [was] for Congress, not [the] Court, to rewrite the statute.” Id. at 419, 91 S.Ct. 423. In Booker, the Court refused to graft onto the federal sentencing guidelines a set of procedures for presenting to a jury facts necessary for sentence enhancements. 543 U.S. at 246, 125 S.Ct. 738. Instead, the Court severed from the guidelines the provision making mandatory the effect of sentencing factors not found by a jury. Id. at 245, 125 S.Ct. 738. To do otherwise, it held, “would [have] so transform[ed] the scheme that Congress created that Congress likely would not have intended the Act as so modified to stand.” Id. at 249, 125 S.Ct. 738.
The statutes in question in Blount and Booker, like the statute in Jackson, were incompatible with constitutional requirements. See id. at 227-29, 125 S.Ct. 738; Blount, 400 U.S. at 417, 91 S.Ct. 423. Saving either statute, as proposed by the government, while at the same time complying with constitutional mandates, would have required the Court to perform a complete statutory rewrite, which is a legislative and not a judicial function. In contrast, allowing a grand jury to consider and charge aggravating factors under the FDPA does not have any effect either on the substantive aspects of the statute or on the discrete roles that the statute assigns to the judge, the prosecutor, and the jury, respectively.
To sum up, Ring does not render the FDPA unconstitutional either on its face or as applied in this case.
B. Arbitrary Operation.
Sampson makes two arguments in support of his claim that the FDPA is unconstitutional because it is arbitrary in its operation. First, he argues that because the federal death penalty is infrequently sought and even more infrequently carried out, its imposition is arbitrary, capricious, and therefore unconstitutional. Sampson centers this argument around Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which the Supreme Court struck down as unconstitutional the Georgia capital punishment statute then in effect. In a concurring opinion, Justice Stewart stated that the death sentences at issue were
cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as [those committed by petitioners], the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.
Id. at 309-10, 92 S.Ct. 2726 (Stewart, J., concurring) (footnote omitted). Sampson argues that Justice Stewart’s statement constitutes the essence of Furman. See Appellant’s Br. at 238 (characterizing Furman as viewing “arbitrariness and caprice ... as the inevitable side-effects of a rarely-imposed punishment of death”). Given this reading, he argues that because the federal death penalty is rarely sought or imposed, the FDPA is no different from the Georgia statute invalidated in Furman.
This argument mistakes the nature of the arbitrariness concern in the Supreme Court’s jurisprudence. In the thirty-four years since Furman was decided, the Court has made clear that its decision was not based on the frequency with which the death penalty was sought or imposed. Rather, the primary emphasis of the Court’s death penalty jurisprudence has been the requirement that the discretion exercised by juries be guided so as to limit the potential for arbitrariness. Thus, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court, upholding the revised Georgia capital sentencing statute, described Furman as “mandatfing] that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Id. at 189, 96 S.Ct. 2909 (opinion of Stewart, Powell, and Stevens, JJ.).
Together, Furman and Gregg require that a death penalty statute “(1) rationally narrow the class of death-eligible defendants[ ] and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, - U.S. -, 126 S.Ct. 2516, 2524-25, 165 L.Ed.2d 429 (2006). As the Supreme Court recognized in a different context, these requirements “further an essential need of the Anglo-American criminal justice system — to balance the desirability of a high degree of uniformity against the necessity for the exercise of discretion.” McCleskey v. Kemp, 481 U.S. 279, 312 n. 35, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Like the statute upheld in Gregg, the FDPA fully meets the requirements of guided discretion, suitably directing and limiting the leeway afforded to the decisionmakers.
Nor does the frequency with which the federal death penalty is sought render the FDPA unconstitutional. To the extent that there may be an independent constitutional concern as to the decisional process by which the government decides if it will seek the death penalty, that process contains numerous safeguards built into an articulated death penalty protocol. See United States Attorneys’ Manual § 9-10.000, http://www.usdoj.gov/usao/eousa/ foia — reading—room/usam/title9/10m crm. htm. The process, therefore, is not arbitrary. See Gregg, 428 U.S. at 195, 96 S.Ct. 2909.
Sampson’s second argument is that the FDPA is unconstitutional because there is no principled basis for distinguishing between those cases in which the federal death penalty is imposed and those in which it is not. His argument is premised on Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), in which the Supreme Court stated that “capital punishment [must] be imposed fairly, and with reasonable consistency, or not at all.” Id. at 112, 102 S.Ct. 869. This argument ignores the remainder of the Eddings Court’s discussion of consistency, in which the Court recognized that “a consistency produced by ignoring individual differences is a false consistency.” Id. Indeed, the thrust of Eddings is that those who make sentencing decisions must be permitted to focus on the individual characteristics of the defendant and the circumstances of the crime. Id. And, finally, the argument cannot survive McCleskey, in which the Court stated that “[t]he Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence ... a defendant’s ultimate sentence, even though they may be irrelevant to his actual guilt.” 481 U.S. at 307 n. 28, 107 S.Ct. 1756.
In all events, the “evidence” that Sampson submits is wholly inadequate to prove that the death penalty has been imposed in an arbitrary manner. The summaries on which Sampson relies to demonstrate inconsistency are devoid of details and fail to account for the objective circumstances of the underlying crimes. Even the more detailed verdict sheets that he submitted to the district court fail to establish arbitrary imposition of the death penalty. On this record and mindful of the teachings of McCleskey, we decline Sampson’s invitation to ignore individual differences across offenders and offenses. Consequently, there is no principled basis for finding that similar cases are treated differently.
C. Other Challenges to the FDPA.
Sampson’s remaining challenges to the constitutionality of the FDPA are those related to race, geography, and innocence. Sampson (who is white) raises no argument that he was sentenced to death because of his race, the race of his victims, or the geographic location in which he was sentenced. Nor does he claim to be actually innocent.
What, then, is his claim? In essence, Sampson attempts to assert the rights of other capital defendants. His claim is that, although he himself was not disadvantaged by race or geography and although he is not innocent, the FDPA is unconstitutional because it has these untoward effects elsewhere. And if the FDPA is unconstitutional, his thesis runs; he may not be sentenced under it.
It is questionable whether Sampson has standing to challenge the constitutionality of the federal death penalty on these grounds. See County Court v. Allen, 442 U.S. 140, 155, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (“As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.”); see also Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citing cases).
Because there is no Supreme Court precedent directly on point and because “death is ... different,” Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we will assume arguendo that Sampson has standing to pursue these arguments. He nonetheless fails to prove the unconstitutionality of the FDPA.
1. Race-and-Geography-Related Claims. We take first Sampson’s claims that the FDPA is unconstitutional because the death penalty is sought based on the race of the defendant and victim and on the locale in which the defendant is charged. Sampson’s race-based claims implicate the Fifth and Eighth Amendments. His geography-related claim implicates the Eighth Amendment.
Sampson’s challenges are based primarily on a 2000 DOJ study of the administration of the federal death penalty from 1988 to 2000, and on a 2001 supplemental report. He reads the studies as demonstrating a pattern of discrimination against minority defendants and against defendants in the South. For example, he notes that over 70% of federal defendants for whom the death penalty was sought were nonwhites. Similarly, between 1995 and 2000, only slightly more than half of the districts in the federal system submitted a case to the Attorney General with a recommendation for capital prosecution. Sampson also cites evidence of a white-victim effect, including one study showing that the death penalty authorization rate is 37% in white-victim cases, but only 21% in minority-victim cases.
Bare statistical discrepancies are insufficient to prove a Fifth Amendment violation with respect to the implementation of a statute. This principle is firmly established by McCleskey. 481 U.S. at 292,107 S.Ct. 1756 (stating that “to prevail under the Equal Protection Clause, [a defendant] must prove that the decisionmakers in his case acted with discriminatory purpose”). It applies here: because Sampson has presented no specific evidence of purposeful discrimination either against himself or against those southern and minority defendants upon whom he purports to base his claim, his Fifth Amendment challenge fails.
By like token, Sampson’s Eighth Amendment claims cannot succeed. The McCleskey Court, in rejecting an Eighth Amendment claim based on a statistical study indicating race-based discrepancies in capital sentencing, stated:
Apparent disparities in sentencing are an inevitable part of our criminal justice system.... [0]ur consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.
481 U.S. at 312-13, 107 S.Ct. 1756 (second alteration in original) (citation omitted) (quoting Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965)). The statistics submitted by Sampson are no more probative than those rejected in McCleskey. The DOJ study provides no basis for attributing the statistical discrepancies with respect to geography and race in FDPA prosecutions to discrimination rather than to other factors, such as differences in the nature of the crimes involved. McCleskey prohibits us from assuming that “what is unexplained is invidious.” Id.
2. Innocence-Related Claims. Sampson’s final claims regarding the FDPA’s constitutionality concern the risk of executing innocent defendants. Again, we assume arguendo that Sampson, who has admitted his guilt by pleading to the charges against him, has standing to assert the interests of the innocent.
Sampson appears to make two closely related Fifth Amendment arguments, both of which derive from his reliance on United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y.), rev’d, 313 F.3d 49 (2d Cir. 2002). Sampson’s first argument is that because factual studies establish that innocent defendants have been convicted and sentenced to death, the Fifth Amendment right to procedural due process demands that defendants be permitted to attempt to prove their innocence throughout their natural lives. His second argument is that the risk of executing the innocent offends Fifth Amendment substantive due process protections.
As with Sampson’s other constitutional challenges to the FDPA, these arguments are foreclosed by Supreme Court precedent. For years, a perennial debate has raged over the propriety of capital punishment in view of the omnipresent risk of executing innocent defendants. See Quinones, 313 F.3d at 63-64. Withal, the Court has declined, for over two centuries, to hold the death penalty unconstitutional per se. In Furman, for example, both Justices Marshall and Brennan explicitly recognized that the risk of executing the innocent is inherent in capital punishment. See 408 U.S. at 364, 366-68, 92 S.Ct. 2726 (Marshall, J., concurring); id. at 290, 92 S.Ct. 2726 (Brennan, J., concurring). Despite this stark reality, no majority of Justices ever has held the death penalty unconstitutional on those grounds.
The Court squarely addressed the issue of the risk of executing the innocent in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). It affirmed the denial of a petition for a writ of habeas corpus notwithstanding a claim by the petitioner that new evidence could prove his actual innocence. Id. at 393,113 S.Ct. 853. The Court noted that “[cjlaims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Id. at 400, 113 S.Ct. 853. The Court continued:
We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But ... the threshold showing for such an assumed right would necessarily be extraordinarily high.
Id. at 417, 113 S.Ct. 853. We understand Herrera to leave open the possibility that, in a particular instance of newly discovered, highly persuasive evidence of innocence, emerging at a time when no state remedy remains available, a federal court might be able to issue a writ of habeas corpus under the Constitution to prohibit execution. That is a far cry, however, from saying that the FDPA is unconstitutional.
Indeed, Herrera supports the constitutionality of the statute. Despite the “unalterable fact that our judicial system, like the human beings who administer it,, is fallible,” id. at 415, 113 S.Ct. 853, the Herrera Court could not say that the “refusal to entertain petitioner’s newly discovered evidence eight years after his conviction” transgressed his due process rights. Id. at 411, 113 S.Ct. 853.
This is entirely consistent with the Court’s opinion in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), which prevents inferi- or federal courts from holding capital punishment per se violative of due process. See id. at 465, 111 S.Ct. 1919. The Chapman Court held that under the Due Process Clause,
[e]very person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees. But a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment.
Id. (citations omitted); see United States v. Inglesi, 988 F.2d 500, 503 (4th Cir.1993) (quoting Chapman for the proposition that “the relevant due process inquiry on [a constitutional challenge in the sentencing context] is only whether the sentence at issue is ‘based on an arbitrary distinction,’ or, instead, on ‘a rational sentencing scheme’ ”). The Supreme Court has held that capital punishment is not per se cruel and unusual, see Gregg, 428 U.S. at 187, 96 S.Ct. 2909 (opinion of Stewart, Powell, and Stevens, JJ.); id. at 226, 96 S.Ct. 2909 (opinion of White, J., joined by Burger, C.J., and Rehnquist, J.), and there is no allegation here that the execution of innocent individuals results from arbitrary distinctions or application of the FDPA.
We are bound by this Supreme Court precedent. Accordingly, we join those courts of appeals that have rebuffed similar arguments, see Robinson, 367 F.3d at 290; Quinones, 313 F.3d at 61-69, and reject Sampson’s claims that the federal death penalty is unconstitutional because it necessarily entails a risk of executing the innocent.
D. The Death Penalty Simpliciter.
In a final catchall argument, Sampson asks us to declare the death penalty unconstitutional as cruel and unusual punishment and a per se denial of due process in all cases. Sampson concedes that under Supreme Court precedent the argument fails. Yet, he urges this court to rule to the contrary because the death penalty is “racist to its very core,” Appellant’s Br. at 291; leads to the execution of innocent people; and vests an unacceptable level of unreviewable discretion in prosecutors. He adds, moreover, his belief that the American public eventually will determine that capital punishment is wrong and immoral.
In Gregg, the Supreme Court held that “the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.” 428 U.S. at 187, 96 S.Ct. 2909 (opinion of Stewart, Powell, and Stevens, JJ.); see id. at 226, 96 S.Ct. 2909 (opinion of White, J., joined by Burger, C.J., and Rehnquist, J.); accord Roberts v. Louisiana, 428 U.S. 325, 331, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); id. at 350-56, 96 S.Ct. 3001 (White, J., joined by Burger, C.J., Blackmun, J. and Rehnquist, J., dissenting). The Chapman Court laid out the test, under which Sampson cannot prevail, for determining whether a particular form of punishment violates due process. Because Gregg, Roberts, and Chapman are binding upon us, we reject Sampson’s bedrock claim and hold that the death penalty itself is not unconstitutional.
III. CLAIMS OF TRIAL ERROR
We turn next to Sampson’s manifold claims of trial error. We begin by evaluating alleged errors in the charge and the jury selection process. We then proceed to Sampson’s evidence-related claims, including challenges to several of the district court’s rulings and to evidentiary sufficiency. We conclude by addressing a potpourri of other claims, including Sampson’s invocation of the cumulative error doctrine.
A. Jury Instructions.
We begin with the district court’s charge to the jury. Sampson alleges three strains of instructional error. Because each of them presents a properly preserved question of law, we afford de novo review, taking into,account the charge as a whole and the body of evidence presented at trial. See United States v. Woodward, 149 F.3d 46, 68-69 (1st Cir.1998); United States v. Alzanki, 54 F.3d 994, 1001 (1st Cir.1995).
1. Weighing. Sampson’s primary complaint of instructional error relates to the district court’s charge on the weighing of aggravating and mitigating factors. In Sampson’s view, these instructions violated the FDPA and, in the bargain, infringed upon constitutional protections. Specifically, he argues that the instructions (i) erroneously invited jurors to apply their own idiosyncratic standards to the weighing process and (ii) failed to require that they find beyond a reasonable doubt that aggravating factors outweighed mitigating factors before voting to impose the death penalty.
Because our assessment of Sampson’s plaints must take into account the weighing instructions as a whole, Woodward, 149 F.3d at 69, we reprint the pertinent portions here:
[Y]ou are called upon to decide if the proven aggravating factors or factor sufficiently outweigh the proven mitigating factors. This is not a matter of arithmetic. You’re not being asked to simply count the total number of aggravating and mitigating factors and reach a decision based on which number is greater. Instead, you must consider the weight and value that you feel should be given to each factor.
Different factors may be given different weights or values by different jurors. You might find that a single aggravating factor is serious enough to outweigh several mitigating factors. Similarly, a single mitigating factor might outweigh several aggravating factors.
If you find that the government has not proven that the aggravating factor or factors outweigh the mitigating factors at all, you may not vote to impose the death penalty on the count that you’re considering. If, however, you decide that the prosecution has proven that the aggravating factor or factors outweigh the mitigating factors, you must decide if the prosecution has also proven beyond a reasonable doubt that those aggravating factors sufficiently outweigh the mitigating factors to make death the appropriate penalty for Mr. Sampson’s crime rather than life in prison without possibility of release.
The law does not define what is sufficient to make death the appropriate penalty. Here, the law relies on each of you as a representative of our community to consult your conscience and determine what is sufficient to justify Mr. Sampson’s execution. Thus, your decision as to what the appropriate sentence is will depend in part on what is sufficient for you. If you find that the government has proven that the aggravating factors slightly outweigh the mitigating factors and that is sufficient for you to find that death is the appropriate penalty, you may properly vote for death.
On the other hand, even if the government has proven to you that the aggravating factors greatly outweigh the mitigating factors, you may properly decide that this is not sufficient to justify a sentence of death because, for you, even more is required for you to find that a man should die.
However you personally define sufficiency, the prosecution must convince you beyond a reasonable doubt that the aggravating factor or factors sufficiently outweigh the mitigating factors to make death the appropriate penalty in this case.
As I told you earlier, this is a heavy burden. More than a strong probability is required. You must be certain beyond any reasonable doubt that a death sentence should be imposed before voting for it.
Death is, of course, the ultimate irreversible punishment. You must not sentence Gary Sampson to die unless you are convinced beyond a reasonable doubt that death is the appropriate punishment.
As I’ve told you previously, the law never requires that any or all of you find that the death penalty is justified. Any one of you may decline to impose a death sentence. If you decide that the prosecution has not proven beyond a reasonable doubt that the death penalty is justified, you do not have to give a reason for that decision. The law does require that you follow the process that I’ve explained and then make a reasoned moral judgment.
Sampson argues initially that the sufficiency language embedded in this part of the charge violates both the FDPA and the Eighth Amendment. He asserts that, by inviting each juror to use his or her own definition of sufficiency, the district court “offered its own idiosyncratic definition of the language of the statute,” Appellant’s Br. at 62-63, and failed to provide adequate sentencing guidance as required by the Eighth Amendment in capital cases.
To determine whether the sufficiency language comported with the FDPA, we start by consulting the statute’s text; we then proceed, if necessary, to examine its structure and surrounding provisions. See Green, 407 F.3d at 441-43.
The relevant section of the FDPA, 18 U.S.C. § 3593(e), which we set out in the margin, provides no definition of the phrase “sufficiently outweigh.” Thus, the court’s definition of sufficiency does not explicitly contradict the statutory text. At any rate, the court’s definition is fully consistent with the immediately preceding paragraph, which provides that “any member of the jury who finds the existence of a mitigating factor may consider such factor established.” Id. § 3593(d). For jurors to consider different mitigating factors, they would necessarily need to engage in the type of individualized weighing described by the district court. Given the statutory phrase “sufficiently outweigh,” Sampson’s attack under the FDPA fails.
We hold, as well, that the sufficiency instruction does not violate the Eighth Amendment. Sampson argues strenuously that the Eighth Amendment, if not the statute, requires that the jury be instructed to follow a uniform method of weighing, precluding individual approaches. We disagree.
The Supreme Court repeatedly has emphasized that key to harmonizing a capital sentencing scheme with the proscription against cruel and unusual punishment is an individualized determination by the jury of whether, taking into account all the relevant aggravating and mitigating factors, a death sentence is appropriate in a particular case. See, e.g., Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994); Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Sampson correctly points out that the jury’s discretion in sentencing must be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct. 2909 (opinion of Stewart, Powell, and Stevens, JJ.). However, once a jury has found a defendant death-eligible, it may be given unfettered discretion in the weighing process. See Tuilaepa, 512 U.S. at 979, 114 S.Ct. 2630 (explaining that “[a] capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision”); see also Ayers v. Belmontes, - U.S. -, 127 S.Ct. 469, 479, 166 L.Ed.2d 334 (2006). Sampson’s argument that the jury needed more guidance in order to weigh aggravators against mitigators is foreclosed by these precedents.
Sampson also alleges that the weighing instructions failed to require jurors to find beyond a reasonable doubt that aggravating factors outweighed mitigating factors, and thus violated the FDPA and the Fifth and Sixth Amendments. We can readily dismiss the statutory argument. The FDPA makes no mention of the reasonable doubt standard in the context of weighing aggravating and mitigating factors, see 18 U.S.C. § 3593(e), but it does reference the reasonable doubt standard in two proximate sections, see id. §§ 3591(a)(2), 3593(c). Because the inclusion of a term in one part of a statute is persuasive evidence that its omission elsewhere is deliberate, see Green, 407 F.3d at 443, we hold that Congress did not intend the reasonable doubt standard to apply to the weighing process. That being so, Sampson cannot have been harmed by the instruction given.
Sampson’s constitutional arguments on this front are no more persuasive. Relying on a procession of Supreme Court eases, see, e.g., Booker, 543 U.S. at 244, 125 S.Ct. 738; Blakely v. Washington, 542 U.S. 296, 305, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring, 536 U.S. at 609, 122 S.Ct. 2428; Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, he contends that the balance between aggravating and mitigating factors is a “fact” that should have been found by the jury beyond a reasonable doubt. The district court’s alleged failure to instruct that the reasonable doubt standard applied to this “fact” was, therefore, error.
Sampson’s attempt to draw an analogy between this weighing determination and the sentencing determinations found unconstitutional in the Apprendi line of cases lacks force. In Blakely, for example, the Court invalidated a sentence that had been elevated above the statutory maximum based upon a finding of “deliberate cruelty” because the facts supporting that finding were found by a judge, not by the jury beyond a reasonable doubt. See 542 U.S. at 803, 124 S.Ct. 2531. The case at hand is different in kind because, under the FDPA, the jury already had found beyond a reasonable doubt the facts needed to support a sentence of death — the presence of aggravating factors and the requisite intent — before it reached the weighing stage. See 18 U.S.C. §§ 3591(a)(2), 3593(c)-(e).
Sampson tries to circumvent this logic by pointing out that the weighing determination itself is essential to imposing a death sentence. He repeatedly refers to Justice Scalia’s statement “that all facts essential to imposition of the level of punishment that the defendant receives— whether the statute calls them elements of the offense, sentencing factors, or Mary Jane — must be found by the jury beyond a reasonable doubt.” Ring, 536 U.S. at 610, 122 S.Ct. 2428 (Scalia J., joined by Thomas, J., concurring). This argument founders, however, because it assumes, without the slightest support, that the weighing of aggravating and mitigating factors is a fact. This assumption is incorrect. As other courts have recognized, the requisite weighing constitutes a process, not a fact to be found. See United States v. Purkey, 428 F.3d 738, 750 (8th Cir.2005) (characterizing the weighing process as “the lens through which the jury must focus the facts that it has found” to reach its individualized determination), cert, denied, - U.S.-, 127 S.Ct. 433, 166 L.Ed.2d 307 (2006); see also Ford v. Strickland, 696 F.2d 804, 818 (11th Cir.1983); Gray v. Lucas, 685 F.2d 139, 140 (5th Cir.1982) (per curiam). The outcome of the weighing process is not an objective truth that is susceptible to (further) proof by either party. Hence, the weighing of aggravators and mitigators does not need to be “found.” We hold, therefore, that the district court’s instructions were free from Apprendi error.
Sampson has a residual argument: that the district court’s simultaneous and alternating references to both a personal notion of sufficiency and a reasonable doubt standard were confusing and inconsistent. We evaluate this argument by determining whether there exists a reasonable likelihood that the jury interpreted the instructions in a way that would violate the law. See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); see also Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Under this approach, a defendant cannot rely solely on how a single hypothetical juror might have interpreted a challenged instruction. See Boyde, 494 U.S. at 380, 110 S.Ct. 1190 (noting the “strong policy against retrials ... where the claimed error amounts to no more than speculation”). After careful assessment of the instructions as a whole, we reject Sampson’s contention that the challenged instruction is likely to have caused harmful juror confusion.
Sampson places great emphasis on the language telling jurors that they could impose the death penalty if the aggravating factors “slightly outweigh[ed]” the mitigating factors. This phrase was followed immediately, however, by an assurance that jurors could refuse to vote for a death sentence “even if the government ha[d] proven to [them] that the aggravating factors greatly outweigh[ed] the mitigating factors.” The court further instructed that however jurors defined sufficiency, the prosecution had to convince them “beyond a reasonable doubt that the aggravating factor or factors sufficiently outweigh the mitigating factors to make death the appropriate penalty in [the] case.” Viewed in its entirety, this instruction clearly communicated to jurors the relatively straightforward proposition that they, as individuals, had to be certain that death was the appropriate punishment before imposing it.
Even if we assume (favorably to Sampson) that the instruction might have been mildly confusing, any error was benign. In a capital case, as in any other case, a confusing instruction may be harmless. See Boyde, 494 U.S. at 383-84, 110 S.Ct. 1190. Here, we discern no reasonable likelihood that jurors may have interpreted the instruction in a way that could have harmed Sampson. There are only two possibilities: either the jurors eschewed the reasonable doubt standard visa-vis the weighing process (which, as we have held, would have comported fully with the law) or they applied the reasonable doubt standard (which would have benefitted Sampson by imposing a more onerous burden on the government). Any error was, therefore, patently harmless.
2. Vulnerable Victim. The FDPA contemplates that the government must show the presence of at least one enumerated aggravating factor in order to render a defendant death-eligible. See 18 U.S.C. § 3593(e). In this case, the jury unanimously found several statutory aggravating factors: that Sampson committed both the McCloskey and Rizzo murders in an “especially heinous, cruel, or depraved manner,” id. § 3592(c)(6); that McCloskey was “particularly vulnerable due to ... infirmity,” id. § 3592(e)(ll); and that Rizzo was murdered “after substantial planning and premeditation,” id. § 3592(c)(9). With respect to certain of these factors, Sampson objects to the lower court’s jury instructions. We turn next to his challenge anent the “vulnerable victim” instructions.
The FDPA permits the vulnerability of a victim to be used as an aggravating factor and defines that quality as a showing that the victim was “particularly vulnerable due to old age, youth, or infirmity.” Id. § 3592(c)(ll). In this case, the government contended that Phillip McCloskey was a vulnerable victim. After finding the evidence sufficient to support a vulnerable victim instruction visa-vis McCloskey, the district court instructed as follows:
Question 3B asks whether it’s been proven to each and every one of you beyond a reasonable doubt that Philip McCloskey was particularly vulnerable due to infirmity. In essence, the Federal Death Penalty statute provides that a defendant is especially blameworthy if he murders someone who is particularly vulnerable to being killed because he has an infirmity which made him less able to escape or resist attack than most people. In this context, to be vulnerable means to be subject to being attacked or injured because of some weakness. To be particularly vulnerable means to be especially or significantly vulnerable or to be vulnerable to a particularly high degree.
An infirmity is a physical or mental weakness or flaw. To prove this aggravating factor, it must also be proven beyond a reasonable doubt to each and every one of you that there was a connection between Mr. McCloskey’s alleged vulnerability and his death. This means that any infirmity which you find made Mr. McCloskey particularly vulnerable must somehow have contributed to his death. However, the requirement of a connection between any proven infirmity and a person’s death does not mean that the prosecution must prove that the defendant knew of Mr. McCloskey’s alleged vulnerability and targeted him because of it. Rather, it means that the prosecution must prove that, once targeted, Mr. McCloskey was significantly more vulnerable to being killed because he had an infirmity.
Sampson alleges that this instruction violated his Eighth Amendment rights because it did not require the jury to find that he knew McCloskey was particularly vulnerable due to infirmity and targeted McCloskey on that account. To support this contention, he argues that this aggravating factor, absent an element of scienter, was based on the “mere happenstance” of the victim’s infirmity, Appellant’s Br. at 179, and did not adequately narrow the class of persons eligible for the death penalty. See Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993).
Sampson’s remonstrance notwithstanding, it is clear that the challenged instruction complies with the FDPA. The statutory provision describing this aggravating factor does not contain a scienter element. See 18 U.S.C. § 3592(c)(ll). By contrast, other statutory aggravating factors contain explicit scienter requirements. See, e.g., id. § 3592(c)(5) (requiring a showing that “[t]he defendant ... knowingly created a grave risk of death”); id. § 3592(d)(4) (requiring a showing that the defendant either used a firearm or “knowingly directed ... another to use a firearm”); id. § 3592(d)(8) (requiring a showing that the defendant was aware of the presence of a potentially lethal adulterant). Because “the intentional inclusion of a[n] [element] in one part of the statute persuasively indicates that the exclusion of such a[n] [element] in another part of the same statute, was intentional,” Green, 407 F.3d at 443, we conclude, without serious question, that Congress did not intend that application of the vulnerable victim aggravating factor would depend upon proof of scienter.
Sampson’s fallback position is that any version of the vulnerable victim aggravator that omits a scienter requirement is unconstitutional. We think not.
The Supreme Court has stated that an aggravating factor must satisfy two criteria in order to comport with the Eighth Amendment. First, the statutory language must be clear and specific enough to furnish guidance to the factfinder. Arave, 507 U.S. at 470-74, 113 S.Ct. 1534. Second, the factor must provide a principled basis for distinguishing between those who deserve capital punishment and those who do not. Id. at 474, 113 S.Ct. 1534. Viewing the FDPA’s vulnerable victim factor through the prism of these requirements, we agree with the Fifth Circuit’s conclusion that the aggravator, even without a scienter requirement, satisfies both criteria. See United States v. Bourgeois, 423 F.3d 501, 510-11 (5th Cir.2005), cert, denied, - U.S. -, 126 S.Ct. 2020, 164 L.Ed.2d 786 (2006).
Since vulnerability and infirmity are concepts that are easily understandable by the average juror, the plain language in which the factor is couched supplies adequate guidance to jurors and judges. Cf. Arave, 507 U.S. at 471-72, 113 S.Ct. 1534 (concluding that the words “cold-blooded” and “pitiless” contained adequate content to guide a capital jury). By the same token, the factor effectively narrows the class of persons eligible for the death penalty so that not all victims can be considered particularly vulnerable due to age or infirmity. See id. at 474, 113 S.Ct. 1534 (explaining the importance of such a lack of universality). This narrowing effect is well-illustrated in the case at hand by the fact that the government did not charge the vulnerable victim factor with respect to the Rizzo murder. In the final analysis, then, the vulnerable victim factor provides adequate guidance to the jury and effectively circumscribes the class of defendants to whom it applies. Consequently, we hold that it passes Eighth Amendment muster.
In an effort to blunt the force of this reasoning, Sampson asks us to extrapolate from another line of death penalty cases the additional requirement that an aggravating factor must directly relate to a defendant’s moral culpability (and, thus, his knowledge). See Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (explaining that a criminal sentence must be “directly related to the personal culpability of the criminal offender”); Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (stating that punishment must be must be “tailored to ... personal responsibility and moral guilt”). On this basis, Sampson strives to convince us that the absence of a mental state requirement in the vulnerable victim factor renders it unconstitutional.
We are not persuaded. The Enmund Court invalidated, as violative of the Eighth Amendment, the death sentence of a getaway-car driver who, although participating in an armed robbery, did not intend that lethal force be used. 458 U.S. at 801, 102 S.Ct. 3368. The Court reasoned that the punishment was disproportionate to the conduct and, thus, violated the Eighth Amendment. Id. at 797-98, 102 S.Ct. 3368.
In Tison, however, the Court held that death is not a disproportionate sentence for a defendant who, while not intending to kill his victims, is a major player in the underlying felony and demonstrates a reckless indifference to human life. 481 U.S. at 157-58, 107 S.Ct. 1676. If the death penalty is not disproportionate for this type of defendant, it follows inexorably that the death penalty is not disproportionate for Sampson — a defendant who (the jury found) intentionally murdered his victims.
In all events, neither Tison nor Enmund was concerned with the evaluation of a specific aggravating factor. The im~ plausibility of Sampson’s attempted application of these cases to an aggravating factor is underscored by the fact that the Supreme Court implicitly has approved the use of other aggravating factors not directly related to a capital defendant’s mental state at the time of the crime. See, e.g., Zant, 462 U.S. at 879, 103 S.Ct. 2733 (recognizing the validity of aggravating factors such as escape from confinement and prior felony conviction). We therefore reject Sampson’s claim that the vulnerable victim factor, as limned by Congress and construed by the district court, is unconstitutional.
3. Especially Heinous, Cruel, or Depraved Conduct. In addition to McCloskey’s vulnerability, the jury found beyond a reasonable doubt that both the Rizzo and McCloskey murders were committed in an especially heinous, cruel, or depraved manner. See 18 U.S.C. § 3592(c)(6). With respect to this statutory aggravating factor, the district court instructed as follows:
As I told you earlier, as a matter of law, premeditated murder alone is not sufficient to make the death penalty a sentencing option. Something more is required. More specifically, one of those “something mores” with regard to murder is that a murder must be committed in an especially heinous, cruel, or depraved manner. However, a person of ordinary sensibility could fairly characterize almost every murder as heinous, cruel, or depraved, the Supreme Court has said. Therefore, something additional must be proven to make this a truly limiting factor and to assure reasonable consistency between cases. In this case, the law provides that the killing can only be especially heinous, cruel, or depraved if it involved serious physical abuse.... In this case, “especially” has its usual meaning of highly or unusually great. Each of the other relevant terms has a defined meaning for the purposes of the Federal Death Penalty statute. I’ll now explain those meanings to you.
“Heinous” means shockingly atrocious. In this case, a killing may be found to be especially heinous only as a result of any serious physical abuse that’s proven. “Cruel” means the defendant intended to inflict a high degree of pain. In this case, a killing may be found to be especially cruel only as a result of any serious physical abuse that is proven. “Depraved” means that the defendant relished the killing or showed indifference to the suffering of the victim. Once again, in this case, a killing may be found to be especially depraved only as a result of any serious physical abuse that is proven.
“Serious physical abuse” has a particular legal meaning for the purpose of this case. To prove that the killing ... involved serious physical abuse, the government must prove that Mr. Sampson intended to inflict significant damage to [the deceased’s] body beyond what Mr. Sampson thought was necessary to kill him. In essence, the government must prove that Mr. Sampson intended to do more than kill [the deceased]. It must prove that he also intended to abuse his body above and beyond what was necessary to kill him. Serious physical abuse can be inflicted either before or after death. The victim does not have to be alive at the time the serious physical abuse is inflicted.
Question 3A requires two steps. First, you must determine whether it has been proven beyond a reasonable doubt that the killing ... involved serious physical abuse, as I just defined it for you. If you do not agree unanimously that this has been proven, you must answer question 3A no and proceed to question 3B. If you do agree unanimously that serious physical abuse has been proven, you must continue to the next step. In the second step, you must decide whether that serious physical abuse proves that the crime was committed in an especially heinous, an especially cruel, or especially depraved manner, as I defined those terms for you before.
You may not consider any aspect of the crime other than proven serious physical abuse in determining whether the killing was especially heinous, especially cruel, or especially depraved. However, just because an offense involves serious physical abuse does not necessarily mean that it was committed in an especially heinous, cruel, or depraved manner. Rather, you must decide whether any proven serious physical abuse rendered the killing especially heinous, especially cruel, or especially depraved.
Sampson challenges this instruction on two primary grounds. First, noting that a defendant generally is entitled to a requested instruction on his theory of the case as long as that theory is supported by the evidence and the proffered instruction correctly states the law, see United States v. Victoriar-Peguero, 920 F.2d 77, 86 (1st Cir.1990), he argues that the court’s words here did not adequately communicate, as he requested, that “if the jury found that Mr. Sampson quickly inflicted a series of stab wounds intending ... to kill his victims,” that behavior would not meet the “especially heinous, cruel, or depraved” criterion. Appellant’s Br. at 116-17. Second, Sampson posits that the “especially heinous, cruel, or depraved” factor is unconstitutionally vague. We consider these challenges one by one.
We need not linger long over the first challenge. The old saw that a defendant is entitled to an instruction on his theory of the case is hedged in by several qualifications. One such qualification is that a court “need not give instructions in the precise form or language requested by the defendant.” United States v. Beltran, 761 F.2d 1, 11 (1st Cir.1985). An instruction suffices as long as it substantially covers the essence of the defendant’s request. United States v. Noone, 913 F.2d 20, 30 (1st Cir.1990); United States v. Morris, 700 F.2d 427, 433 (1st Cir.1983).
Here, assuming Sampson was entitled to his request, see infra note 11, the district court’s instruction conveyed its essence. The court repeatedly emphasized that the jury had to find serious physical abuse, which the court defined as “significant damage to [the deceased’s] body beyond what Mr. Sampson thought was necessary to kill him” (emphasis supplied), as a condition to finding especially heinous, cruel, or depraved behavior. The court went on to clarify that the government had to prove that Sampson intended to do more than kill; it also had to prove that he “intended to abuse [the deceased’s] body above and beyond what was necessary to kill him.” We believe that this instruction accommodates Sampson’s theory that if he inflicted a series of stab wounds “intending ... to kill,” that alone would not establish especially heinous, cruel, or depraved behavior. Like the instruction in Noone, 913 F.2d at 31, the instruction here provided an “appropriate legal framework for jury consideration of [the defendant’s] contention.” Hence, the court did not err in refusing to parrot Sampson’s preferred wording in its jury instructions.
Sampson’s claim of unconstitutional vagueness also falters. As discussed above, an aggravating factor must provide adequate guidance to the sentencer. See Arave, 507 U.S. at 470-74, 113 S.Ct. 1534. This requirement is satisfied when the factor, as expressed, furnishes a commonsense core of meaning that a factfinder can understand. See Jones, 527 U.S. at 400, 119 S.Ct. 2090 (plurality opinion); Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630. The delineation of an aggravator is a legislative judgment, see Tuilaepa, 512 U.S. at 974, 114 S.Ct. 2630, and judicial review of such judgments is “quite deferential.” Id. at 973, 114 S.Ct. 2630.
This does not mean, of course, that a reviewing court’s role is reduced to that of a rubber stamp. The Supreme Court has found that factors similar to the “especially heinous, cruel, or depraved” factor can present vagueness concerns. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 363-65, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (analyzing Oklahoma’s “especially heinous, atrocious or cruel” aggravator); Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (evaluating Georgia’s “outrageously or wantonly vile, horrible and inhuman” aggravator). But such concerns can be ameliorated by a narrowing construction. See Maynard, 486 U.S. at 365, 108 S.Ct. 1853; Godfrey, 446 U.S. at 429-32, 100 S.Ct. 1759. Applying this framework, we agree with other courts of appeals that have found the FDPA’s “especially heinous, cruel, or depraved” factor not unconstitutionally vague when coupled with the type of limiting instruction given by the court below. See, e.g., Bourgeois, 423 F.3d at 511; United States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir.2000); United States v. Paul, 217 F.3d 989, 1001 (8th Cir.2000).
This factor avoids facial vagueness by requiring that the offense involve serious physical abuse or torture. See Maynard, 486 U.S. at 364-65, 108 S.Ct. 1853 (approving this narrowing construction). Here, moreover, the district court carefully defined each of the relevant terms—heinous, cruel, depraved, and serious physical abuse—in a manner that was easily understood and that afforded the jurors a eom-monsense core of meaning. See Walton, 497 U.S. at 653, 110 S.Ct. 3047 (deeming such an effort “constitutionally significant”). The narrowing accomplished by the statutory inclusion of the serious physical abuse component, especially when combined with the district court’s thorough instructions, leaves no room to doubt the factor’s constitutionality.
Sampson cites a plethora of state court cases in which variants of the “especially heinous, cruel, or depraved” factor have been used. See, e.g., State v. Culberth, 390 So.2d 847, 851 (La.1980); Domingues v. State, 112 Nev. 683, 917 P.2d 1364, 1377-78 (1996); State v. Hunt, 115 N.J. 330, 558 A.2d 1259, 1289-90 (1989). These decisions do not dictate a result favorable to Sampson in this case. While they illustrate the application of the legal theory discussed above — that the enhancement requires proof of more than the harm inherent in killing — and demonstrate the individualized evaluation that is critical to the constitutional imposition of the death penalty, they tell us little else.
Relatedly, Sampson argues for the first time on appeal that, by defining each of the component terms — heinous, cruel, and depraved — in relation to serious physical abuse, the district court conflated the factors in a way that might have caused jury confusion. In an apparent effort to show that such an error would not be harmless, he offers a number of articles suggesting that capital jurors often erroneously believe that death is mandatory once an aggravating factor is found. Because this claim was not preserved below, we review it for plain error. See Jones, 527 U.S. at 388-89, 119 S.Ct. 2090.
The FDPA requires that the adjectives “heinous,” “cruel,” and “depraved” all be defined in terms of serious physical abuse or torture. See 18 U.S.C. § 3592(c)(6). The district court found torture inapposite here and instructed the jury accordingly. It proceeded to define each adjective distinctly, in easily understandable terms, in relation to serious physical abuse.
We do not see how painstakingly defining each term as dictated by the applicable statute could conceivably serve to muddle carefully crafted instructions. To cinch matters, the lower court clearly outlined the process by which the jury was to determine the appropriate sentence. Jurors are normally presumed to follow the trial court’s instructions. See Jones, 527 U.S. at 394, 119 S.Ct. 2090. We discern no basis for disregarding that presumption here. Accordingly, there was no harmful error in regard to this instruction.
B. Juror Issues.
Sampson complains about the dismissal for cause of six jurors and about the district court’s allegedly improvident refusal to dismiss a seventh juror mid-trial. In each instance, he claims a violation of his constitutional right to an impartial jury. We address these plaints separately.
1. Dismissals for Cause. Sampson assails the district court’s dismissal of six prospective jurors who expressed reservations about imposing the death penalty. The baseline rule is that a court appropriately may excuse a juror for his views on capital punishment if those views “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). We normally review a trial court’s for-cause dismissal of a juror for abuse of discretion. See United States v. Gonzalez-Soberal, 109 F.3d 64, 69-70 (1st Cir. 1997). This standard of review applies equally in capital cases. See Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (noting that “deference must be paid to the trial judge who sees and hears the juror”); see also Purkey, 428 F.3d at 750.
Here, the record amply supports the district court’s conclusion that the six dismissed jurors would have been substantially impaired in the performance of their duties. In reaching this conclusion, we first examine the circumstances surrounding three of the six dismissals and then turn to the remaining three dismissals.
The court had prospective jurors complete questionnaires in which the jurors, among other things, self-assessed their views about the death penalty on a scale of 1 to 10 (with “1” meaning “strongly favor” and “10” meaning “strongly oppose”). Three of the six jurors whom we are considering (Jurors 19, 77, and 205) ranked himselfiherself as a “9.” Another section of the questionnaire asked responders to choose the statement that best represented their views; Jurors 19 and 77 selected “I am opposed to the death penalty, and I would have a difficult time voting to impose it.” Juror 205 indicated even stronger opposition, stating that he “struggle[d] to imagine a situation where [he] would vote to impose it.”
To be sure, even “those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases.” Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). But that license is not unqualified: the ability of such jurors to serve depends upon whether they are able to subrogate their own beliefs to the need to follow the court’s instructions. See id. In this instance, the district court found that none of the three jurors could satisfy that criterion. We test the court’s reasoning.
After the court inquired whether she automatically would vote against the death penalty, Juror 19 stated: “I can’t think of what the government would prove that would make me change my opinion on the death penalty.” The court then reasonably concluded, upon observing the prospective juror’s demeanor when she made that assertion, that her views would substantially impair her ability to perform her duties.
Juror 77 stated during voir dire that he did not “really believe that [the death penalty was] the appropriate sentence for anybody.” This declaration left the court with the “definite impression” that although Juror 77 would “earnestly try to follow the law,” he would be substantially impaired in his ability to do so. That determination was within the realm of the court’s discretion.
So too the court’s dismissal of Juror 205 for cause. That juror stated during voir dire that he did not know whether he could perform the duties required of a juror in a capital case. He added that he would have trouble following the law if it differed from his personal views. Given his responses to the questionnaire, no more was required to justify dismissal for cause.
The other three dismissed jurors all recounted personal circumstances that led the court to decide against compelling them to serve as jurors in a capital case. Juror 119’s questionnaire revealed that he was a Catholic and a lay member of the Franciscan order, and that both organizations were opposed to the death penalty. Although he stated that he would not feel obliged to vote against the death penalty on the basis of his religion, he acknowledged that voting for the death penalty would put him “in extremely hot water with the church” and that he could “get kicked out” of the Franciscan order.
Jurors 14 and 28 revealed that they had close relatives with psychological problems and uttered repeated statements indicating that they would be unable fairly to consider and weigh evidence of Sampson’s mental condition. For example, Juror 14 stated that she did not know whether she could balance evidence that Sampson had a severe emotional disturbance with other facts in deciding whether to impose a death sentence, and that she was “very concerned” about her ability to put her personal concerns aside. Juror 28’s questionnaire indicated that she could not find execution justified for a mentally ill person regardless of the facts. During voir dire, she reaffirmed that she did not think that she could impose the death penalty were she to conclude that Sampson suffered from a serious mental disturbance.
There is no precise formula to guide judges in juror-qualification matters. Particularly near the margins, on-the-spot judgment plays an important part in screening out those whose ability to serve may be compromised. In each of the three instances we have just chronicled, the district court determined that the juror’s personal circumstances were such as to substantially impair his or her ability to serve impartially in a capital case. Each of these instances presented a judgment call. They are, therefore, paradigmatic examples of a trial court’s exercise of informed discretion. In no instance do we discern an abuse of that discretion.
While Sampson points out that each of these jurors may have indicated some degree of willingness to put aside personal biases, this fragmentary evidence is insufficient to support a finding that the trial court abused its discretion. See Witt, 469 U.S. at 425-26, 105 S.Ct. 844 (“Despite ... lack of clarity in the printed record, ... 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.”). Given the relevant body of evidence, we decline to second-guess the district court’s first-hand impressions. Accordingly, Sampson’s assignment of error fails.
2. Juror Misconduct. We come now to Sampson’s claim that the district court incorrectly allowed Juror 109 to remain on the panel despite an admitted interaction with a government witness during the trial. The pertinent facts are as follows.
On Friday, December 12, 2003, a government expert witness, Dr. Michael Werner, departed the courthouse after completing his testimony. As he was leaving, Juror 109 complimented him on his memory. Dr. Werner did not respond but, rather, reported the interaction to the prosecutor. The prosecutor, in turn, informed defense counsel and the district court.
When trial resumed on Monday, Sampson moved to disqualify the juror. The court held an individual voir dire, questioned the juror about the details of the interaction, and then queried the remaining jurors (individually) to determine any potential spillover effect. Satisfied that the interaction had been both brief and non-substantive and that Juror 109 remained impartial, the court denied Sampson’s motion. Sampson contests this ruling, arguing that allowing the juror to remain offended his Fifth and Sixth Amendment rights to due process and an impartial jury.
Ex parte communications between a juror and a witness during trial are presumptively prejudicial, and the trial court is required to undertake an adequate inquiry to determine their potential impact. See United States v. Gastón-Brito, 64 F.3d 11, 13 (1st Cir.1995). Because the district court is “likely to have a superior ‘feel’ for the nuances of the case,” we grant it significant latitude with respect to the scope and manner of its inquiry. United States v. Paniaguar-Ramos, 251 F.3d 242, 250 (1st Cir.2001). Consequently, we review both the district court’s handling of such allegations and its ensuing determinations for abuse of discretion. See id. at 249.
Here, we find no indication that the court misused its discretion. The communication in question was terse, fortuitous, and devoid of substantive content. We have attached significance before to the fact that a juror’s casual ex parte communication did not concern the substance of the case, see, e.g., United States v. Angiulo, 897 F.2d 1169, 1185 (1st Cir.1990), and we think it is appropriate to continue to follow that praxis.
Here, moreover, the district court’s inquiry was virtually a textbook model. The court’s response was swift, its questioning pointed, and its search for any inkling of prejudice thorough. After making a face-to-face assessment of the juror’s sincerity and of the possibility that other jurors had been contaminated, the court concluded that the interaction was harmless. That conclusion may not have been inevitable, but it plainly was not an abuse of discretion.
C. Evidentiary Rulings.
Sampson disputes a number of evidentiary rulings. We review adequately preserved objections to rulings admitting or excluding evidence for abuse of discretion. See United States v. Gobbi 471 F.3d 302, 311 (1st Cir.2006). If the admission or exclusion of a piece of evidence occurs as a result of an error of law, that is a per se abuse of discretion. See Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir.2003); United States v. Snyder, 136 F.3d 65, 67 (1st Cir.1998).
Where evidence is challenged on the ground that the trial court has struck the wrong balance between probative value and prejudicial effect, we accord great deference to the trier’s first-hand knowledge of the case and ordinarily will sustain the district court’s exercise of discretion unless its judgment is plainly incorrect. United States v. Adams, 375 F.3d 108, 111 (1st Cir.2004). Only unfair prejudice enters into this decisional calculus; “[t]he fact that a piece of evidence hurts a party’s chances does not mean it should automatically be excluded.” Onujiogu v. United States, 817 F.2d 3, 6 (1st Cir.1987). In all instances, harmless error principles apply. And, finally, to the extent that a claim of evidentiary error has not been preserved—that is, when no timely and pointed objection was advanced below—our review is only for plain error. See United States v. Flemmi, 402 F.3d 79, 86 (1st Cir.2005).
With this framework in place, we turn to Sampson’s specific claims of error.
1. Crime Seene/Autopsy Evidence. Sampson challenges the admission of certain crime scene and autopsy photographs and related physical evidence pertaining to the McCloskey and Rizzo murders. The first aspect of this challenge suggests that the district court misapprehended the evidentiary standard prescribed by the FDPA for sentencing hearings and that, under a correct interpretation, the evidence in question should have been excluded. This suggestion is unrewarding.
The FDPA provides that, during a penalty-phase trial, “information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” 18 U.S.C. § 3593(c). This language is similar, but not identical, to the language of Federal Rule of Evidence 403. A direct comparison reveals two salient differences. First, Rule 403 requires that probative value be substantially outweighed by the danger of unfair prejudice before evidence may be excluded, whereas the FDPA omits this substantiality requirement and directs that exclusion may result if the scales tip, even slightly, in favor of unfair prejudice. Second, the FDPA makes no express mention of the factors of undue delay, waste of time, and cumulativeness as grounds for exclusion.
The district court enunciated these differences in passing upon the challenged evidence. Seizing on this express reference, Sampson contends that the court failed to appreciate that cumulativeness nevertheless can be prejudicial or, at least, undervalued cumulativeness in its decisional calculus.
We begin with bedrock: the trial court, in a capital sentencing proceeding, remains free to consider cumulativeness in assessing evidentiary proffers. Cf. United States v. Barnette, 211 F.3d 803, 818-19 (4th Cir.2000) (considering quantity of victim impact evidence presented in determining whether defendant’s due process rights were violated). But Sampson’s contention is incorrect. The record makes manifest that the district court considered the possible prejudicial effects of cumulativeness when ruling on Sampson’s evidentiary objections. There is simply no other way to explain why the court excluded a number of photographs that it thought “cumulative,” “redundant,” “duplicat[ive],” or “repetitive.” We thus discern no error in the court’s understanding of the FDPA’s evidentiary standard.
A question remains as to whether the district court’s decisions that the exhibits possessed probative value outweighing any associated bias were adequately supported by the record. We answer that question affirmatively. The McCloskey and Rizzo crime scene photographs and the sock used as a gag in the Rizzo murder were significantly probative of material issues; they corroborated and clarified testimony regarding the discovery of the bodies and the gathering of evidence. Similarly, the autopsy photographs shed light on the manner in which each victim was killed (an important integer in the jury’s determination of whether the murders were committed in an especially heinous, cruel, or depraved manner).
Sampson stresses that the government had other means of making these points, such as by using medical examiner testimony or diagrams. It is, however, axiomatic that “the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance.” Old Chief v. United States, 519 U.S. 172, 187-88, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Thus, within reasonable limits, the prosecution—even in a capital case—is entitled to present its case through the evidence it deems most appropriate. See id. Those limits were not exceeded here.
Sampson also complains that decomposition is visible in some of the photographs. While this feature obviously must be taken into account in calibrating the balance of probative value and unfairly prejudicial effect, the record makes clear that the district court gave due weight to it. Indeed, the court admitted only those photographs that “most closely depicted the condition of the victims at the time [of the killings].” Sampson IV, 335 F.Supp.2d at 183.
The upshot is that the district court’s handling of gruesomeness concerns, like its handling of the crime scene and autopsy evidence generally, demonstrated a thoughtful consideration of potential prejudice. The court excluded much evidence, redacted other evidence, gave appropriate limiting instructions, and saw to it that admitted photographs were displayed circumspectly to the jury. We are left without any principled basis for finding that the court abused its discretion in regard to this evidence.
2. The Whitney Murder. Sampson argues that the district court erred in admitting evidence of the circumstances surrounding the Whitney murder. Although he concedes that evidence of the murder itself was admissible as a non-statutory aggravating factor, he contends that evidence about the details of the crime (which included photographs, taped confessions, and testimony from crime scene investigators and the medical examiner) was not really relevant and, in all events, had a high potential for unfair prejudice.
We find no abuse of discretion in the admission of the Whitney evidence. The FDPA broadly provides that “[t]he government may present any information relevant to an aggravating factor for which notice has been provided.” Id. Here, the government gave adequate notice that it would introduce evidence of the Whitney murder as a non-statutory aggravator, and the district court found that the evidence actually admitted would help the jury to determine how much weight it should give this factor in its sentencing calculus. The evidence made the murder more real, demonstrated the evolution of Sampson’s methods, and served to rebut his claims of mental impairment and remorse.
Sampson’s counter—that the prosecution could have established the details of the Whitney murder through his confession alone—is unavailing. After all, the prosecution is entitled to considerable latitude in deciding how to present its case. See Old Chief, 519 U.S. at 187-88, 117 S.Ct. 644. Here, moreover, the district court was assiduous in its efforts to prevent unfair prejudice; for example, it excluded all the Whitney victim impact evidence and many of the proffered photographs. It also instructed the jury about the proper role of the evidence admitted. Taking everything into account, we find the district court’s judgments with respect to the Whitney evidence to be well within the encincture of its discretion.
3. Other Prosecutions. Among the compendium of mitigating factors presented to the jury, Sampson proposed to prove that numerous other federal defendants convicted of multiple murders had not been sentenced to death. In support of this mitigating factor, he sought to introduce verdict sheets and descriptive material relating to 71 other federal capital cases. The government opposed the admission of this evidence, arguing that it was irrelevant as it did not bear either on Sampson’s character or record or on the circumstances of the offenses at issue. See 18 U.S.C. § 3592(a)(8). Sampson trimmed the number of proposed comparators to 47, and the district court determined that the evidence was arguably relevant in mitigation. The court then ruled, however, that the evidence’s probative value was outweighed by the likelihood of juror confusion. On appeal, Sampson contests the exclusion of this evidence.
Sampson maintains, albeit in very general terms, that this evidence was relevant and that, under Tennard v. Dretke, 542 U.S. 274, 284-85, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), a trial court may not restrict the presentation of relevant evidence offered in mitigation of a possible death sentence. This argument cannot be literally true; if it were, a capital defendant would have an unrestricted license to introduce the most confusing or misleading evidence as long as it was marginally relevant. We reject so absolutist a view. See Turkey, 428 F.3d at 756 (explaining that the FDPA’s low barriers to admission of evidence in a capital sentencing hearing “do[ ] not mean that the defense has carte blanche to introduce any and all evidence that it wishes”); cf. Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 1232, 163 L.Ed.2d 1112 (2006) (commenting that “the Eighth Amendment does not deprive [states] of [their] authority to set reasonable limits upon the evidence a defendant can submit”).
This does not end the matter, however, for it seems appropriate to construe Sampson’s argument as an argument that the district court erred in balancing probative value against likelihood of juror confusion. Framing the issue in that manner brings the district court’s reasoning into sharp focus. The court explained that it had found numerous omissions and inaccuracies in the case summaries that Sampson proffered and that these defects greatly diminished their probative worth. The court also found that the quantity of evidence involved would saturate the record with largely extraneous material and create a grave risk of juror confusion. The court noted:
In order to determine which of the many other cases are sufficiently similar to this case to bear on the question of proportionality, the jury would have had to hear a large amount of evidence. In effect, the court would have had to conduct many mini-trials of other FDPA cases, since a jury would be unable to perform meaningful proportionality review based on brief summaries of other cases. Rather, in order to fully appreciate the verdicts reached in those cases, jurors in this case would have had to hear substantial testimony regarding the crime and the defendant in the other cases. The amount of time that would have had to be spent educating jurors regarding all other FDPA cases in a non-prejudicial manner, which could have been measured in weeks or months, as compared to the amount of time spent on the mitigation case as a whole, likely would have diverted the jury’s focus from the facts relating to Sampson and his crimes.
Sampson TV, 335 F.Supp.2d at 196.
On this chiaroscuro record, we are not disposed to substitute our judgment for that of the district court. Having supportably found that the evidence was of limited probative value and that its introduction would create a high risk of juror confusion, the district court had ample reason to exclude it. See 18 U.S.C. § 3593(c).
4. Bank Robberies. Next, Sampson contends that the district court erred in (i) admitting evidence of the five antecedent bank robberies that he committed in North Carolina and (ii) submitting four of them to the jury as potential non-statutory aggravating factors. He asserts that the bank robberies satisfy neither the requirement that an aggravating factor “genuinely narrow the class of persons eligible for the death penalty,” Zant, 462 U.S. at 877, 103 S.Ct. 2733, nor the requirement that an aggravating factor rationally distinguish “those who deserve capital punishment from those who do not,” Arave, 507 U.S. at 474, 113 S.Ct. 1534.
These assertions are meritless. Under the district court’s instructions, four of the bank robberies served as potential non-statutory aggravating factors—that is, as aggravating factors to be considered by the jury only after it found at least one statutory aggravating factor to be present in the case. See 18 U.S.C. § 3593(e). A non-statutory aggravating factor need only “direct the jury to the individual circumstances of the case.” Jones, 527 U.S. at 402, 119 S.Ct. 2090 (plurality opinion); see also Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (noting “a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence”). So long as it meets this requirement, a non-statutory aggravating factor ordinarily will pass constitutional muster. See Jones, 527 U.S. at 401-02, 119 S.Ct. 2090 (plurality opinion).
The four bank robberies pass muster under this standard. The government introduced evidence of the heists to demonstrate Sampson’s escalating criminality immediately prior to the string of murders that he committed. Because not every capital defendant will have exhibited such a pattern, this evidence necessarily directed the jurors to the individualized circumstances of Sampson’s case. Cf. id. at 402, 119 S.Ct. 2090 (finding victim impact and victim vulnerability acceptable as non-statutory factors because they were “inherently individualized”). Consequently, we hold that the district court did not abuse its discretion either in admitting evidence anent the bank robberies or in authorizing the jury to consider four of those robberies as potential non-statutory aggravating factors.
5. Spectator Reactions. Sampson’s final evidentiary challenge is nontraditional in nature. It does not relate to the admission or exclusion of evidence per se but, rather, to the district court’s denial of his motion for a mistrial based on the reactions of individuals in the gallery (particularly the victims’ families) to certain items of evidence.
This argument is a difficult one to make. For one thing, victim-impact evidence, although inflammatory by nature, is generally admissible in the sentencing phase of a capital case. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). For another thing, Congress has embedded the right of victims’ families to attend an accused murderer’s trial in federal law. See 18 U.S.C. § 3510(b); 42 U.S.C. § 10607(e)(2)(B).
Despite these obvious obstacles, Sampson asserts that, in this case, the victims’ families’ ongoing reactions to the evidence presented were unfairly prejudicial. He moved for a mistrial on this ground, but the district court rebuffed his entreaty. He renews the argument in this venue.
We review the denial of a motion for a mistrial under an abuse of discretion rubric. United States v. Flecha-Maldonado, 373 F.3d 170, 177 (1st Cir.2004). In administering that standard, we keep in mind that “[a] mistrial is a last resort that is only ordered if the demonstrated harm cannot be cured by less drastic means.” United States v. De Jesus Mateo, 373 F.3d 70, 72 (1st Cir.2004).
In this case, the district court exhibited great sensitivity to the volatility of the issues and took a number of steps to minimize the risk of unfair prejudice from the gallery’s reactions. The court carefully instructed the jurors at the beginning of the trial that they were to decide the case based on the evidence; it cautioned that “anything you see or hear or read, even, outside of the bar that divides the lawyers and you from the public is not evidence.” The court repeated this warning when the defense raised concerns about a particular juror who appeared to be watching the gallery intently, and added that the jurors “should stay focused on what’s occurring inside the rail and not on the outside of the rail.”
Jurors are presumed to follow instructions. See id. at 73; see also United States v. Benedetti, 433 F.3d 111, 118 (1st Cir.2005) (according substantial weight to such prophylactic instructions in evidentiary claims of unfair prejudice). The district court questioned each juror individually in response to the defense’s concerns, dismissing one juror based on his replies. The court expressed “great confidence” in the rest of the jurors after thorough questioning.
The court also took a variety of other prudential measures. For example, it requested that the Rizzo family members relocate within the courtroom when a suspicion arose that they were seated in too prominent a place and that their seating might influence the jury. (Indeed, the Rizzos were relocated to an overflow room when particularly disturbing evidence was presented.)
We need not tarry. Although this was an emotion-laden trial, the district court appears to have gone the extra mile to ensure that the jury remained focused on the evidence and free from extraneous influences. Given the measures that the district court prudently took to prevent unfair prejudice, we discern no basis for a claim that the court abused its discretion in denying Sampson’s motion for a mistrial.
D. Sufficiency of the Evidence.
In addition to his specific evidentiary challenges, Sampson makes an overall claim that the evidence was insufficient to support the jury’s finding of certain aggravating factors. We evaluate sufficiency challenges de novo, determining whether a rational juror could have found the disputed facts beyond a reasonable doubt. See United States v. Soler, 275 F.3d 146, 153 (1st Cir.2002). In making this determination, we consider the evidence in the light most favorable to the verdict, giving the prevailing party (here, the government) the benefit of all reasonable inferences and resolving credibility questions in its favor. See United States v. Lara, 181 F.3d 183, 200 (1st Cir.1999).
Sampson suggests that we should review the sufficiency of the evidence of especially heinous, cruel, or depraved conduct through a less deferential glass. This suggestion derives from the principle that review of this aggravator ordinarily calls for assaying the evidence in light of a narrowing construction. See Bell v. Cone, 543 U.S. 447, 453-57, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005).
Sampson’s suggestion dislodges the principle from its contextual underpinnings. In the case at bar, this aggravating factor was adequately narrowed by the district court’s jury instructions, see supra Part 111(A)(3), which incorporated the FDPA’s “serious physical abuse” language. We therefore reject Sampson’s attempted tweaking of the standard of review and turn to his specific challenges.
1. Especially Heinous, Cruel, or Depraved Conduct. Sampson notes that some of his post-arrest statements demonstrate an intent to kill his victims rapidly and that portions of the medical examiner testimony corroborate this intent. Building on that foundation, he contends that a rational juror could not have found that he inflicted “serious physical abuse” on McCloskey and Rizzo beyond what was necessary to end their lives. On this basis, he posits that the especially heinous, cruel, or depraved aggravating factor was not supported by the evidence.
This view of the record completely disregards the substantiality of the evidence supporting the jury’s finding. With respect to McCloskey, Sampson inflicted no fewer than 24 separate stab wounds. In describing the slaying, he stated in a confession that he “didn’t want to stop.” He also admitted that he slit McCloskey’s throat after McCloskey said that he was dying. This evidence easily supported a reasonable inference that Sampson intended to — and did — inflict serious physical abuse, well beyond what was necessary to kill McCloskey. Although Sampson adverts to some evidence from which the jury might have reached a different conclusion (for example, his insistence to the police that McCloskey “didn’t suffer”), the jurors had both the right and the obligation to weigh all the evidence, judge the sources’ veracity, and determine its significance. See United States v. Ortiz, 966 F.2d 707, 713 (1st Cir.1992). As long as “the jury’s decipherment of the record represented a plausible choice among reasonable alternatives,” it is deserving of respect. Id.
So, too, the jury’s finding of especially heinous, cruel, or depraved conduct in relation to the Rizzo murder. Sampson first immobilized Rizzo by tying him to a tree. Although he had learned through his experience with McCloskey that slitting a victim’s throat would kill swiftly, he nevertheless inflicted 15 stab wounds on Rizzo (several of which were themselves potentially fatal). At some point during the repetitive stabbing, he cut his victim’s throat, severing the jugular vein and trachea. We think that this evidence, viewed in the light most favorable to the verdict, unarguably sustains a conclusion that Sampson perpetrated serious physical abuse (and thus, could be found guilty of especially heinous, cruel, or depraved conduct). See United States v. Hernández, 218 F.3d 58, 66 n. 5 (1st Cir.2000) (explaining that it is not an appellate court’s role “to resolve conflicts in the evidence”).
2. Vulnerability. Sampson next argues that the evidence does not support the jury’s characterization of McCloskey as a particularly vulnerable victim because of the absence of any nexus between McCloskey’s vulnerability and his death. This claim is unconvincing.
McCloskey’s son-in-law testified that McCloskey had undergone open-heart surgery (a quintuple bypass) approximately one year prior to his encounter with Sampson; that he was overweight and became short of breath easily; and that he had difficulty walking fifteen feet shortly before his murder. Sampson’s admission that he had to help McCloskey up a hill to the site of the slaying corroborated this testimony. This evidence sufficed to ground a conclusion that McCloskey was a particularly vulnerable victim, that is, that he would have had a more difficult time escaping from his assailant than the average person. See United States v. Gill, 99 F.3d 484, 486 (1st Cir.1996) (noting that the vulnerable victim federal sentencing guideline is “primarily concerned with the impaired capacity of the victim to ... prevent the crime”). And given the circumstances of this case, McCloskey’s vulnerability easily could have contributed to his death. No more was exigible. Cf. Paul, 217 F.3d at 1001-02 (holding vulnerable victim factor sufficiently supported by evidence that victim was 82 and physically unable to resist attackers).
The cases on which Sampson relies do not demand a different result. In United States v. Johnson, 136 F.Supp.2d 553 (W.D.Va.2001), the victim was killed instantly by an explosion, and the district court precluded any consideration of a vulnerable victim aggravating factor because the victim’s particular vulnerability — her pregnancy — was not in any way related to her death. See id. at 560. In Francis v. State, 808 So.2d 110 (Fla.2001), the only evidence of vulnerability was that the otherwise healthy victims were 66 years of age. See id. at 139. Neither of these decisions is apposite here.
By like token, Sampson’s reliance on McCloskey’s attempts to fight back is misplaced. There is arguably some evidence of self-defense (such as the fact that McCloskey suffered several defensive wounds). However, as presented to the jury, the finding that McCloskey was a vulnerable victim could have rested on his inability to resist attack or his inability to escape. The evidence, taken in the aggregate, was sufficient to allow the jury to find that McCloskey was a particularly vulnerable victim within the purview of the FDPA. See 18 U.S.C. § 3592(c)(ll).
E. New Trial Issues.
During the penalty-phase trial, Sampson attempted to prove several mitigating factors involving alleged mental illness. These included that, at the time of the killings, his “capacity to conform his conduct to the requirements of the law was significantly impaired,” that he was functioning “under a severe mental or emotional disturbance,” and that he was “mentally ill.” No juror found that Sampson had demonstrated the existence of any of these factors by a preponderance of the evidence. Sampson now assigns error to the district court’s rejection of his claims that the jurors (i) should have found in his favor on one or more of these proffered mitigating factors, and (ii) misapplied the relevant instructions.
Since these claims were raised by way of a motion for a new trial, we review the district court’s disposition of them under an abuse of discretion rubric. See United States v. George, 448 F.3d 96, 101 (1st Cir.2006); United States v. Wilkerson, 251 F.3d 273, 278 (1st Cir.2001).
1. The Mental Illness Mitigators. We start with Sampson’s claim that the jury’s failure to find mitigating mental illness factors was against the weight of the credible evidence.
The record contains a plethora of mental health evidence. The government called numerous witnesses who had interacted with Sampson during his week-long killing spree to demonstrate that he appeared calm, polite, and capable of normal discourse with others. The defense offered the testimony of a social worker and several prison officials to inform the jury about Sampson’s behavioral patterns and mental health history.' Both sides presented expert witnesses who testified about mental illness in general and Sampson’s mental health in particular.
Taken as a whole, the evidence was freighted with contradictions. These contradictions, however, were grist for the jury’s mill. See, e.g., Blake v. Pellegrino, 329 F.3d 43, 47-48 (1st Cir.2003). The dispositive consideration is that the record contains more than enough evidence to warrant the conclusion that Sampson’s mental health need not be regarded as a mitigating factor.
There was, for example, expert testimony that Sampson suffered from an antisocial personality disorder rather than from some form of mental illness. The record likewise contains expert testimony that, during the killing spree, Sampson was not impaired in his ability to conform his conduct to the requirements of the law. The same expert vouchsafed that Sampson’s crimes were not the product of mental illness, emotional distress, or drug use. The government supplemented and supported this testimony through lay testimony, medical and psychiatric records, Sampson’s own statements, and effective cross-examination of defense witnesses. In the end, a jury reasonably could have concluded — as this jury did — that Sampson did not suffer from any mental impairments sufficient to mitigate any need for the imposition of a death sentence.
Sampson accurately notes that the district court expressed some disagreement with the jury on this point. But the district court parted ways with the jury only on a relatively narrow issue: whether Sampson suffered from bipolar disorder (the court indicated that it found the defense’s expert more persuasive than the government’s expert on this point). The jury was entitled to find otherwise. See Ortiz, 966 F.2d at 713.
To cinch matters, the district court, after expressing its opinion, stated clearly that it “d[id] not ... find that the evidence on this issue predominate[d] heavily in favor of the defendant being found to be bipolar” and that, therefore, “it [would] not [be] appropriate for the court to disregard the jury’s decision on the mitigating factor of mental illness.” Sampson III, 332 F.Supp.2d at 331. In light of that finding — which is borne out by the record-— the district court had no choice but to honor the jury’s determination. See United States v. Rothrock, 806 F.2d 318, 322 (1st Cir.1986) (emphasizing that a trial judge “is not a thirteenth juror” and may not “set aside a verdict merely because he would have reached a different result”). Like the district court, we too reject Sampson’s challenge to the jury’s mental illness findings.
2. Post-Trial Juror Statements. We turn next to a related matter. A week or so after the jury returned its verdict, a local newspaper quoted a juror to the effect that Sampson’s ability to “know[ ] the difference between right and wrong” was the “fulcrum on which everything else balanced.” In a separate account, the same juror reportedly stated that Sampson “knew right from wrong.”
Sampson interpreted these statements as evidence that the jury had misapplied the court’s “mental illness” instructions, which explained that no one had argued that Sampson “was completely unable to conform his conduct to the requirements of the law.” Based on this suspected misapplication, Sampson moved for a new trial or, in the alternative, an evidentiary hearing. The district court turned him down, reasoning in part that post-trial juror statements could not be used to impeach a verdict. See Fed.R.Evid. 606(b). Sampson now assigns error.
Rule 606(b) provides in pertinent part that, after a jury has returned its verdict, juror statements may not be considered “as to any matter ... occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind ... or concerning the juror’s mental processes in connection therewith.” The statements upon which Sampson relies ordinarily would fall squarely within this prohibition: they concern the jurors’ evaluation of the mental health evidence and the weight that they chose to attach to that evidence.
Although conceding that Rule 606(b) would bar the statements under most circumstances, Sampson asseverates that they nevertheless should be admitted because, in capital sentencing proceedings, the FDPA displaces the Federal Rules of Evidence. His fallback position is that the heightened interest in the reliability of capital sentencing determinations trumps Rule 606(b).
We need not decide the issue. Even if we assume, purely for argument’s sake, that the juror’s statements should have been taken into consideration, any error would have been manifestly harmless. In that regard, we concur with the district court’s alternate holding that the statements do not indicate that the jury necessarily misunderstood the court’s instructions on mental illness. Given the reference to a “fulcrum on which everything else balanced,” the juror’s statements easily can be construed as referring to the weighing decision rather than the special findings regarding the mental illness mitigators. Thus, there was no abuse of discretion in the district court’s refusal to grant either a new trial or an evidentiary hearing based on Sampson’s objections to the jury’s mental illness findings.
F. Cumulative Error.
Sampson’s penultimate claim is that the errors of which he complains, even if not mandating reversal when considered separately, collectively require that his sentence be vacated. We do not dispute the legal premise on which this argument rests: “a column of errors may sometimes have a logarithmic effect, producing a total impact greater than the arithmetic sum of its constituent parts.” United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993). Here, however, the district court handled the case patiently and sensitively. None of its individual rulings worked any cognizable harm to Sampson’s rights. It necessarily follows that the cumulative error doctrine finds no foothold in this appeal.
IV. ARBITRARINESS
In the final chapter of this appeal, we must independently evaluate, as required by the FDPA, “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.” 18 U.S.C. § 3595(c)(1). Having assiduously performed that examination, we find no sign that any such factors contributed to Sampson’s sentence.
The results of the jury’s deliberations fully support this conclusion. In addition to finding the aggravating factors that we have discussed, the jurors failed to find other aggravating factors suggested by the government. Moreover, the jurors found several mitigating factors. Viewed collectively, these findings suggest that the jury considered the evidence in a thorough, even-handed, and dispassionate manner. Cf. Paul, 217 F.3d at 1004-05 (finding no arbitrariness when the jury followed “exactly the process [it] was to complete”).
V. CONCLUSION
We need go no further. For the reasons elucidated above, we reject Sampson’s principal assignments of error. To the extent that he has raised other claims of error, none requires discussion, and we reject them out of hand.
We add only that Sampson has been ably represented by learned counsel. His positions have been vigorously asserted. While we are aware that death is the ultimate punishment, we are persuaded that the sentencing proceedings in this case were conducted fairly and with scrupulous attention to the process required by law. Accordingly, we affirm the sentence of death.
Affirmed.
As best we can tell, no court of appeals considering the constitutionality of the FDPA posURirag has discussed Jackson.
Sampson’s argument that the grand jury lacked authority to issue so-called special findings is entirely without merit. There is nothing in the Federal Rules of Criminal Procedure that prohibits the grand jury from alleging all the elements of an offense that it proposes to charge.
For example, under the protocol, in determining whether to recommend that the Attorney General authorize the prosecutor to seek the death penalty, the DOJ will consider "evidence of racial bias against the defendant or evidence that the Department has engaged in a pattern or practice of racial discrimination." United States Attorneys' Manual § 9-10.050, http://www.usdoj.gov/usao/eousa/foia_ readmg_room/usam/title9/10m crm.htm# 9-10.050. There is no colorable claim that the decision whether to seek the death penalty against Sampson was motivated by an impermissible factor such as race. Sampson conceded, as well, that he had no evidence of purposeful or intentional discrimination based on the race of the victim.
Sampson also argues that he has a statutory right under 18 U.S.C. § 3593(f) to "justice without discrimination” that was violated by the discrimination inherent in the federal capital sentencing scheme. The district court complied with 18 U.S.C. § 3593(f), which requires a jury instruction that the race of the defendant and victim not enter into the sentencing determination and a certification signed by the jurors that they were not influenced by these factors. In addition, Sampson argues that this court should invoke its supervisory powers “to curb charging discrimination and regional caprice.” Appellant's Br. at 275-76. There is no basis for the exercise of supervisory power in this instance. If Sampson's arguments have any basis in fact-a point upon which we do not opine-he could only have benefitted by virtue of his race and the geographic location in which his crimes were committed.
In McCleskey, the Supreme Court rejected a capital defendant's claim that systemic statistics demonstrated discriminatory intent in his particular case. See 481 U.S. at 297, 107 S.Ct. 1756. Sampson attempts to distinguish McCleskey by noting that the DOJ study on which he relies provides not only systemic statistics but also individualized statistics. He points out that while the study at issue in McCleskey analyzed data from many different decisionmakers, the DOJ study relies only on the decisions of the Attorney General and primarily on the decisions of one Attorney General (Janet Reno). This argument ignores the fact that the statistics also reflect the decisions of countless prosecutors in the field, who must exercise their considerable charging discretion before a case ever reaches the Attorney General’s desk (as Sampson points out, the Attorney General followed the local prosecutors’ recommendations in the overwhelming majority of cases submitted, Appellant's Br. at 255 n. 90). See McCleskey, 481 U.S. at 295 n. 15, 107 S.Ct. 1756 (noting that "decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations”).
To the extent that Sampson invokes the Eighth Amendment, arguing that the risk of executing the innocent renders the federal death penalty per se cruel and unusual, his claim is foreclosed by Gregg. See 428 U.S. at 187, 96 S.Ct. 2909 (opinion of Stewart, Powell, and Stevens, JJ.); id. at 226, 96 S.Ct. 2909 (opinion of White, J., joined by Burger, C.J., and Rehnquist, J.); see also Marsh, 126 S.Ct. at 2529 (rejecting the proposition that "the death penalty can only be just in a system that does not permit error”).
That section provides, in pertinent part, that if the jury finds the existence of at least one of the relevant aggravating factors enumerated in the statute, "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.” 18 U.S.C. § 3593(e).
Sampson urges us to apply, instead of Boyde, either the standard formulated by the Supreme Court in Mills v. Maryland, 486 U.S. 367, 377, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), or that announced in Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Mills is obsolete; the Supreme Court reformulated that standard in Boyde, 494 U.S. at 378-90, 110 S.Ct. 1190. Stromberg is inapposite. There, the Court stated that when a jury is instructed on alternative theories, one of which is plainly unconstitutional, a conviction based upon a general verdict must be set aside. 283 U.S. at 367-68, 51 S.Ct. 532. But this principle applies only where an instruction is "concededly erroneous." Boyde, 494 U.S. at 380, 110 S.Ct. 1190. For this reason, and because the verdict sheets in this case provide detailed evidence of the jury’s decisional calculus, Stromberg is not on point.
In contemplating its instructions to the jury, the district court appears to have distinguished between applying the reasonable doubt standard to the decision about whether aggravators outweigh mitigators and applying the standard to the jury's ultimate decision on the appropriateness of a capital sentence. See Sampson IV, 335 F.Supp.2d at 234-40. We already have held that the reasonable doubt standard is not required in the weighing of aggravators against mitigators. See text supra. There is no challenge on appeal to the correctness of the district court's application of the reasonable doubt standard to the jury's ultimate sentencing decision and, in all events, any error in this regard would have favored Sampson and, thus, would have been harmless. Consequently, we take no view of the propriety of the distinction drawn by the district court.
One member of the panel joins this conclusion on a limited basis. Although Judge Lipez concludes that no constitutional error occurred in this case with respect to use of the vulnerable victim factor, he has reservations about the use of the factor, without scienter, as the sole aggravating factor making a defendant eligible for the death penalty. Given that Sampson was found eligible in connection with the McCloskey murder based on an additional factor (that the crime was committed in “an especially heinous, cruel, or depraved manner”) and that the evidence showed that Sampson must have been aware of McCloskey's infirmities, see infra Part 111(D)(2), the outcome here is consistent with his views.
While the district court's instruction unquestionably provided the constitutionally-mandated narrowing, we do not hold that the limiting construction here is the only one that would be constitutionally permissible. We leave open the question of whether a broader definition of serious physical abuse might still pass constitutional muster.
Rule 403 provides in pertinent part that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Although several of the photographs to which Sampson now objects were not challenged in the district court, we need not filter them through the plain error screen. It suffices to say that there was no abuse of discretion in the district court’s admission of these photographs.
The term "non-statutory aggravating factor” is used to "refer to any aggravating factor that is not specifically described in 18 U.S.C. § 3592.” Jones, 527 U.S. at 377 n. 2, 119 S.Ct. 2090. While only the finding of a statutory aggravating factor can render a defendant death-eligible, the jury may consider non-statutoiy aggravating factors in deciding whether a sentence of death is appropriate. See 18 U.S.C. § 3593(c)-(e).
This determination renders it unnecessary for us to address the government's alternate argument that this evidence did not in any event qualify as mitigating evidence. aggravators. Sampson makes no specific complaint about the singular handling of the fifth (unarmed) robbery, which the court instructed the jury to disregard.
Based on testimony that Sampson did not have a weapon during one of the robberies, the district court ultimately submitted only four of the robberies to the jury as potential
Sampson's invocation, by way of Federal Rule of Appellate Procedure 28(j), of the concurrences in Carey v. Musladin,-U.S.-, 127 S.Ct. 649, 654-58, 166 L.Ed.2d 482 (2006) (Stevens, Kennedy, and Souter, JJ., concurring), does not alter our analysis. He cites the statements contained therein as indi-cia of the Supreme Court’s concerns over the potential for improper influence represented by the conduct of spectators. However, these concurrences focus on the impact that affirmative demonstrations by spectators (there, the wearing of buttons by spectators that featured an image of the victim) may have during the guilt phase of a trial. The claim here is of a materially different character: the families’ reactions to Sampson’s crimes are a natural by-product of relevant evidence properly introduced during the sentencing phase.
Sampson's quest for a new trial also included a claim that the jury exhibited unfair prejudice due to a so-called "white victim” effect. What we have written earlier, see supra Part 11(C)(1), fully disposes of the claim that the district court erred in denying this aspect of Sampson’s motion for a new trial.
UNITED STATES of America, Appellee, v. Gary Lee SAMPSON, Defendant, Appellant.
No. 04-6001.
United States Court of Appeals, First Circuit.
Heard Oct. 4, 2006.
Decided July 27, 2007.
Dina Michael Chaitowitz, George W. Vien, U.S. Attorney’s Office, Boston, MA, Steven L. Lane, Dept, of Justice, Criminal Division, Washington, DC, for Appellee.
Joshua L. Dratel, Meredith S. Heller, Kristian K. Larsen, Erik B. Levin, Joshua Dratel, P.C., New York, NY, David A. Ruhnke, Ruhnke & Barrett, Montclair, NJ, Stephanie Page, CPCS Public Defender Division, Boston, MA, for Defendant, Appellant.
Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, LYNCH, LIPEZ, and HOWARD, Circuit Judges.
Judge Howard is recused and did not participate in consideration of this matter.
ORDER OF COURT
Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en banc has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by the panel of judges who decided the case and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and petition for rehearing en banc be denied.
[OPINION BY TORRUELLA, Circuit Judge, type=dissent]
TORRUELLA, Circuit Judge,
dissenting from the denial of rehearing en banc.
Fed. RApp. P. 35(a) provides that en banc rehearings are not favored unless “the proceeding involves a question of exceptional importance.” This Court has now denied en banc review in a case that not only involves a legal question of exceptional importance — this is the first case in the history of the First Circuit to have interpreted the Federal Death Penalty Act — but a moral question of exceptional importance: what process is necessary to deprive a man not only of his liberty and pursuit of happiness, but of his life.
This might simply be a difference in opinion as to what “exceptional importance” means. However, the recent history of this Circuit convinces me that it is not. This Circuit has recently granted en banc review to examine a credibility determination, see Castañeda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir.2007) (en banc), the reasonableness of one defendant’s eight year sentence, United States v. Scherrer, 444 F.3d 91 (1st Cir.2006) (en banc), a dispute within this court over the interpretation of the Wiretap Act, United States v. Councilman, 418 F.3d 67 (1st Cir.2005) (en banc), and sundry other cases involving questions that are surely less important than one where a man’s life is in the balance. This is not to suggest that it was improper for this Court to take those cases en banc — surely, it was not— but to point out that by comparison, this case is sufficiently important to rehear.
Indeed, it is not only imperative for the Court to take this case en banc to answer the ultimate moral question posed by this case, but also the many subsidiary legal questions. Our decision to not take this case en banc has deprived the full court the opportunity to decide such important questions as the following. When, if ever, may a court deprive a member of a religious order the ability and privilege of serving on a death penalty jury simply because the court believes that the religious order might be unhappy with the member for having done so? May a jury impose the death penalty based on the “vulnerability” of a victim even if the defendant was unaware of such vulnerability? Should a jury vested with the awesome task of imposing the death penalty be asked to parse instructions on burdens of proof which are, by all accounts, confusing?
I do not mean to imply with these questions that I have prematurely concluded that the death penalty should not apply here. We may have well decided that Sampson was eligible for the death penalty after reviewing the evidence and hearing argument on these issues. However, this Court has decided that these issues are insufficiently important, and thus has deprived not only Sampson, but future death penalty litigants of the benefit of our collective judgment. I would have reheard this case en banc, and accordingly, I must dissent.
[OPINION BY LIPEZ, Circuit Judge, type=dissent]
LIPEZ, Circuit Judge,
dissenting from the denial of en banc review.
I was a member of the panel in this case. With the one qualification noted in the opinion, I fully support the decision that the panel reached. Nevertheless, I regret the denial of rehearing en banc. This case is unlike any other our circuit has considered. Despite my confidence in the panel’s judgment, I believe that the issues raised by the imposition of the death penalty are so important and challenging that our decision here — and future decisions — should be informed by the views of colleagues who wish to contribute to the circuit’s developing jurisprudence in this area. I therefore respectfully dissent from denial of the petition for en banc review.
See, e.g., United States v. Padilla, 415 F.3d 211 (1st Cir.2005) (en banc) (whether a court must specify the number of drug tests to which a defendant on supervised release will be subject); Savard v. Rhode Island, 338 F.3d 23 (1st Cir.2003) (en banc) (whether a municipal defendant would be entitled to qualified immunity for strip searches of people arrested for non-violent, non-drug related minor offenses); JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 59 (1st Cir.1999) (en banc) (deciding a question that “was never briefed or argued, either below or on appeal”).
Gary Lee SAMPSON, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant. Gary Lee Sampson, Respondent, v. United States Of America, Petitioner.
Nos. 12-1643, 12-8019.
United States Court of Appeals, First Circuit.
July 25, 2013.
Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellant.
William E. McDaniels, with whom Jennifer G. Wicht, Cadence Mertz, Williams & Connolly LLP, J. Martin Richey, Elizabeth L. Prevett, Federal Public Defender’s Office, and Susan K. Marcus were on brief, for appellee.
Before LYNCH, Chief Judge, SELYA and LIPEZ, Circuit Judges.
[OPINION BY SELYA, Circuit Judge. type=majority]
SELYA, Circuit Judge.
New accouterments of our criminal justice system are either more fundamental or more precious than the accused’s right to an impartial jury. That right is threatened when — as in this case — juror dishonesty occurs during the voir dire process yet is not discovered until well after final judgment has entered on the jury’s verdict. But finality is also valuable, and not every instance of juror dishonesty requires setting aside a previously rendered verdict.
In its present posture, this case poses important questions about when and under what circumstances the belated discovery of juror dishonesty during the voir dire process demands vacatur of a jury verdict. The stakes are high — the jury here recommended a death sentence — and the cases that populate this arcane corner of the law are muddled.
The architecture of these appeals is easily described. Gary Lee Sampson, the defendant in the underlying criminal case, is on death row following his conviction on two counts of carjacking (death resulting), a penalty-phase hearing in which the jury voted to recommend capital punishment, and an unsuccessful direct appeal. See United States v. Sampson (Sampson I), 486 F.3d 13 (1st Cir.2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008). In an effort to undo his sentence, the defendant brought a habeas petition, see 28 U.S.C. § 2255, and confronted the district court with a claim that juror dishonesty during the voir dire process antecedent to the penalty-phase hearing deprived him of an impartial jury. Following an evidentiary hearing, the district court agreed; it vacated the death sentence and ordered a new penalty-phase hearing. United States v. Sampson (Sampson IV), No. 01-10384, 2012 WL 1633296, at *15 (D.Mass. May 10, 2012); United States v. Sampson (Sampson II), 820 F.Supp.2d 151, 202 (D.Mass.2011). The government seeks immediate review of this decision.
We first address nuanced questions that cast doubt upon our appellate jurisdiction. Concluding, as we do, that we can proceed to the merits of the juror dishonesty claim, we adopt the district court’s findings of fact, articulate the proper legal framework, array the district court’s findings of fact against that framework, and hold that the defendant’s sentence must be set aside and a new penalty-phase hearing conducted.
I. BACKGROUND
We rehearse here only those facts that are needed to tee up this proceeding. The reader who hungers for more details should consult the litany of earlier opinions in this case. See, e.g., Sampson I, 486 F.3d 13; Sampson II, 820 F.Supp.2d 151; United States v. Sampson (Sampson III), 820 F.Supp.2d 202 (D.Mass.2011); see also McCloskey v. Mueller, 446 F.3d 262 (1st Cir.2006).
In 2001, the defendant engaged in a crime spree that took him up the eastern seaboard. The spree included a series of bank robberies in North Carolina and a botched attempt to surrender to the Federal Bureau of Investigation. See McCloskey, 446 F.3d at 264. The defendant then perpetrated two Massachusetts carjackings that led to the slaying of the carjacked drivers (Phillip McCloskey and Jonathan Rizzo). In each instance, the defendant hitched a ride with the victim, forced the victim at knifepoint to drive to a secluded area, and committed murder.
Following these gruesome incidents, the defendant fled to New Hampshire in Rizzo’s vehicle, forcibly entered a house, and strangled the caretaker (Robert Whitney). He then drove Whitney’s vehicle to Vermont, abandoned it, and resumed hitchhiking. Another Good Samaritan, W.G., gave him a lift. To repay his kindness, the defendant attempted to force G. at knifepoint to drive to a secluded spot. This time, however, the intended victim escaped. The defendant later called 911, surrendered to the authorities, and confessed.
On October 24, 2001, a federal grand jury sitting in the District of Massachusetts charged the defendant with two counts of carjacking, death resulting. See 18 U.S.C. § 2119(3). A superseding indictment, deemed necessary to comply with Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), reiterated these charges; and the government served a notice of intent to seek the death penalty under the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3593(a).
In due course, the defendant admitted guilt with respect to both counts. The district court empaneled a death-qualified jury to consider the punishment to be imposed. See id. § 3593(b)(2)(A); see also United States v. Green, 407 F.3d 434, 436-37 (1st Cir.2005). (discussing “death-qualified jury” requirements).
The voir dire lasted seventeen days and involved an extensive effort to ensure that each juror could — and would — decide the defendant’s fate solely on the evidence. As a preliminary matter, hundreds of potential jurors were required to answer under oath seventy-seven written questions, carefully designed to elicit information concerning possible bias and life experienees that might have subconsciously affected an individual’s ability to consider the defendant’s sentence objectively. Many venirepersons were excused based on their written responses. Those who passed muster were interrogated by the court and the parties.
Prospective jurors were repeatedly directed to answer all questions accurately and honestly. All were advised that, upon request, responses concerning sensitive subjects (whether written or oral) would be kept out of the public record.
After individual questioning, the district court excused potential jurors for cause for a wide variety of reasons, including .pretrial exposure to information about the case, attitudes that raised questions about impartiality, emotional life experiences comparable to matters that would be aired at trial, and responses that lacked candor. Eventually, the court seated a jury of twelve, along with six alternates. During the six-week penalty-phase hearing, the court learned that two jurors had answered voir dire questions inaccurately and replaced them with alternates.
The penalty-phase hearing turned in large measure on the existence vel non of statutory and non-statutory aggravating factors and mitigating factors. See 18 U.S.C. §§ 3592(a), (c), 3593(c). In the end, the jury unanimously recommended that the defendant be sentenced to death on both counts. The district court followed this recommendation and imposed a sentence of death. See id. §§ 3553, 3594; United States v. Sampson, 300 F.Supp.2d 275, 278 (D.Mass.2004). The court also denied a flurry of post-trial motions. United States v. Sampson, 332 F.Supp.2d 325, 341 (D.Mass.2004).
On direct review, we affirmed the sentence. Sampson I, 486 F.3d at 52. The Supreme Court denied the defendant’s ensuing petition for a writ of certiorari. See Sampson v. United States, 553 U.S. 1035, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008).
On June 25, 2008, the district court appointed new counsel to handle post-conviction proceedings. See 18 U.S.C. § 3599(a)(2). After some procedural skirmishing, the defendant filed a petition to vacate, set aside, or correct the judgment. See 28 U.S.C. § 2255. Pertinently, the defendant claimed that he was deprived of the right to have his sentence decided by an impartial jury because three jurors, designated for the sake of anonymity as Jurors C, D, and G, had falsely answered material voir dire questions.
The district court prudently convened an evidentiary hearing to determine the scope and severity of the allegedly inaccurate voir dire responses. This hearing was held over three non-consecutive days. The first session concerned all three of the contested jurors; the second and third sessions focused exclusively on Juror C.
After careful consideration, the district court concluded that the inaccuracies contained in Juror D’s and Juror G’s responses were unintentional errors that did not justify setting aside the results of the penalty-phase hearing. Sampson II, 820 F.Supp.2d at 197-201. The court reached a different conclusion as to Juror C, finding that she had repeatedly and intentionally provided dishonest responses to important voir dire questions. Id. at 192-97. The court stated that truthful answers would have resulted in Juror C’s excusal for cause during voir dire because the court would have “inferred bias.” Id. at 165-66, 194-97. Consequently, the court set aside the defendant’s sentence, id. at 181-97, and on May 10, 2012, ordered a new penalty-phase hearing, Sampson IV, 2012 WL 1633296, at *15.
At the government’s behest, the court subsequently certified the following questions for immediate appeal under 28 U.S.C. § 1292(b): “(1) whether [McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) ] requires proof of actual bias or implied bias to obtain relief; and, if not, (2) whether [the district] court correctly stated the McDonough test.” Sampson IV, 2012 WL 1633296, at *15.
Recognizing that its right to prosecute an immediate appeal of the district court’s order was freighted with uncertainty, the government went down three different but complementary roads. First, it sought to pursue an appeal of the decision as a final order under 28 U.S.C. § 1291 and/or 18 U.S.C. § 3731. Second, it sought to pursue an interlocutory appeal under the aegis of 28 U.S.C. § 1292(b). Third, the government argued that, should we find the decision not otherwise immediately appealable, it nonetheless ought to be reviewed through an exercise of advisory mandamus. See id. § 1651. We have consolidated all of these initiatives.
Because resolution of the jurisdictional conundrum is logically antecedent to any discussion of the juror dishonesty claim, we start there.
II. APPELLATE JURISDICTION
The most conventional assurance of appellate jurisdiction is the existence of a final decision. See id. § 1291 (vesting courts of appeals with jurisdiction over “appeals from all final decisions of the district courts”). The government asseverates that the district court’s decision vacating the defendant’s sentence and granting him a new penalty-phase hearing is a final decision and, thus, is immediately appealable. The government is wrong.
The beacon by which we must steer is the Supreme Court’s decision in Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). There, the Court held that an order in a section 2255 proceeding that vacated a previously imposed sentence and required a new sentencing hearing was not a final decision and, thus, not immediately appealable. Id. at 339-40, 83 S.Ct. 1236. Finality does not attach until the defendant is sentenced anew. Id.
The government contends that Andrews is not controlling because the decision appealed from here is not an order for resentencing but, rather, a grant of a new trial which, in a section 2255 case, is immediately appealable. See United States v. Gordon, 156 F.3d 376, 378-79 (2d Cir.1998) (per curiam); United States v. Allen, 613 F.2d 1248, 1251 (3d Cir.1980). In support, the government suggests that a penalty-phase hearing in a capital case is more akin to a traditional trial than to a resentencing. It emphasizes that a jury must be empaneled and certain aggravating factors must be proven beyond a reasonable doubt. See 18 U.S.C. § 3593(b)-(c); Ring, 536 U.S. at 602, 609,122 S.Ct. 2428.
To be sure, such similarities do exist, but they are superficial. In any event, the question of whether .an order for a new penalty-phase hearing in a capital case should be characterized as a grant of a new trial as opposed to an order for resentencing is not open to us. In Andrews, the Supreme Court stated squarely that “[w]here, as here, what was appropriately asked and appropriately granted was the resentencing of the petitioners, it is obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced.” 373 U.S. at 340, 83 S.Ct. 1236. We are bound by this precedent. See Figueroa v. Rivera, 147 F.3d 77, 81 n. 3 (1st Cir.1998).
Given this holding, it is indisputable that the grant of a new penalty-phase hearing in a capital- case is not a final disposition of the proceedings. “In general, a judgment or decision is final for the purpose of appeal only when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.” Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377 (1956) (internal quotation marks omitted). A decision ordering a new penalty-phase hearing in a capital case does not satisfy this benchmark. The litigation regarding the defendant’s sentence will not terminate until after the conclusion of the penalty-phase hearing and the court sentences him anew.
In a variation on this theme, the government suggests that the order for a new •penalty-phase hearing must be final because the last thing that the judge does in an FDPA case is to order a penalty-phase hearing (after all, under most circumstances, the FDPA requires the jury to determine the sentence). Thus, the government’s suggestion goes, an order granting a new penalty-phase hearing is necessarily final.
This suggestion is hopeless. It may be a jury that determines the sentence, but it is the judge who must empanel the jury, preside over the new penalty-phase hearing, and impose the sentence. See 18 U.S.C. §§ 3593(d), 3594. Such a series of steps to be taken falls comfortably within the ambit of section 2255. See 28 U.S.C. § 2255(b).
In determining that no final decision has yet been rendered, we do not write on a pristine page. Two other courts of appeals have confirmed the applicability of Andrews to capital penalty-phase hearings and concluded that no final disposition exists until the new hearing is complete and the court imposes a new sentence. See United States v. Hammer, 564 F.3d 628, 632-36 (3d Cir.2009); United States v. Stitt, 459 F.3d 483, 485-86 (4th Cir.2006). We agree with these courts.
We likewise reject the government’s entreaty that the Criminal Appeals Act (CAA), 18 U.S.C. § 3731, which permits an appeal from an “order ... granting a new trial” in a criminal case, furnishes a basis for jurisdiction. The Andrews Court specifically held that the CAA “has no applicability” to section 2255 proceedings. 373 U.S. at 338, 83 S.Ct. 1236. Andrews is binding on us.
This brings us to the government’s assertion that we have jurisdiction under 28 U.S.C. § 1292(b). By its terms, section 1292(b) confers discretionary appellate jurisdiction over certain interlocutory orders not otherwise appealable. But this avenue is available only when an “order involves a controlling question of law as to which there is substantial ground for difference of opinion and [] an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Id. The district court found that these conditions had been satisfied and certified questions to us under section 1292(b). Sampson IV, 2012 WL 1633296, at *11-15. The government, in turn, filed a petition asking that we agree to exercise our section 1292(b) jurisdiction.
There is, however, a threshold question. Congress has expressly restricted the operation of section 1292(b) to “civil action[s].” 28 U.S.C. § 1292(b). Whether a section 2255 proceeding may appropriately be characterized as a civil action for purposes of section 1292(b) is an unsettled question. This uncertainty results from pervasive “confusion over whether § 2255 proceedings are civil or criminal in nature.” Wall v. Kholi, — U.S.-, 131 S.Ct. 1278, 1289, 179 L.Ed.2d 252 n.7 (2011); see 3 Charles A. Wright et al., Federal-Practice and Procedure § 622 (4th ed. updated Apr. 2013). Several cases indicate that section 2255 proceedings are predominantly civil. See, e.g., Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Rogers v. United States, 180 F.3d 349, 352 n. 3 (1st Cir.1999). Other cases indicate that section 2255 proceedings are predominantly criminal. See, e.g., United States v. Martin, 226 F.3d 1042, 1047 n. 7 (9th Cir.2000); United States v. Quin, 836 F.2d 654, 655-56 n. 2 (1st Cir.1988).
An advisory committee note suggests that a section 2255 proceeding should be considered “a continuation of the criminal case,” rather than a separate civil action. E.g., Rule 3, Rules Governing Section 2255 Proceedings, advisory committee’s note. Some courts have found this controlling, see, e.g., United States v. Cook, 997 F.2d 1312, 1319 (10th Cir.1993), and others have not, see, e.g., United States v. Nahodil, 36 F.3d 323, 328-29 (3d Cir.1994).
To complicate the matter, some courts have abjured an ironclad characterization and have treated section 2255 proceedings as hybrid; that is, as civil for some purposes and criminal for other purposes. See, e.g., United States v. Hadden, 475 F.3d 652, 664-65 (4th Cir.2007) (collecting cases); United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir.2003) (“[Wjhile a § 2255 motion is deemed a further step in the movant’s criminal case, it is also considered a civil remedy for purposes of appellate jurisdiction.”); see also Trenkler v. United States, 536 F.3d 85, 94 (1st Cir.2008) (making similar observation regarding analogous petition for writ of coram nobis).
There is a smattering of direct precedent; courts occasionally have authorized or refused to authorize the use of section 1292(b) in section 2255 cases. Compare, e.g., United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.2005) (granting interlocutory appeal), with, e.g., Murphy v. Reid, 332 F.3d 82, 83 (2d Cir.2003) (per curiam) (denying interlocutory. appeal). But these courts have done so without elaboration and the decisions are, therefore, generally unhelpful.
Given this lack of uniformity, we think that it is an open and enigmatic question as to whether section 1292(b) can be deployed in a section 2255 case. In the last analysis, we find it unnecessary to answer this vexing question today. Instead, we prefer to take a different route and exercise jurisdiction over the underlying juror dishonesty issue through our advisory mandamus power. See United States v. Horn, 29 F.3d 754, 769-70 (1st Cir.1994); see also 16 Charles A. Wright et al., Federal Practice and Procedure § 3934.1 (2d ed. updated Apr. 2013) (“Writ review that responds to occasional special needs provides a valuable ad hoc relief valve for the pressures that are imperfectly contained by the statutes permitting appeals from final judgments and interlocutory orders.”).
In pursuance of the All Writs Act, 28 U.S.C. § 1651, federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” This provision allows a court of appeals, in certain circumstances, to afford immediate review to otherwise unappealable orders. See, e.g., Horn, 29 F.3d at 769.
The type of writ most appropriate here is advisory mandamus. This writ is reserved for a small class of cases in which the usual general mandamus requirements are not met. See id. It is “strong medicine and, as such, should be dispensed sparingly.” In re Sony BMG Music Entm’t, 564 F.3d 1, 4 (1st Cir.2009). We typically exercise this power to settle substantial questions of law when doing so would give needed guidance to lawyers, litigants, and lower courts. See Horn, 29 F.3d at 770. Advisory mandamus is particularly well-suited to the resolution of important questions “which, if not immediately addressed, are likely to recur and to evade effective review.” Green, 407 F.3d at 439.
The case at hand fits snugly within these narrow confines. To begin, the case presents an unsettled question of systemic significance. See Horn, 29 F.3d at 769-70. Vacating a determination made by a jury that has heard evidence for days on end is a serious step. That is especially true in a capital case: “death is [ ] different,” Gard ner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), and repastinating previously plowed ground in a capital case exposes the families of his victims and the defendant to renewed emotional strain. It also entails additional costs.
Additionally, the right at stake in this case deserves great respect. “All would agree that an impartial jury is an integral component of a fair trial” and must be “jealously safeguard[ed].” Neron v. Tierney, 841 F.2d 1197, 1200-01 (1st Cir.1988).
Here, moreover, the framework for determining when a new trial is warranted because of juror dishonesty is not well-defined. The leading case on the effect of post-trial discovery of juror dishonesty is the Supreme Court’s seminal decision in McDonough. McDonough involved quite different facts and its teachings are open to interpretation. Further, the district court’s reading of McDonough is problematic.
Two other data points are also worthy of note. First, the issue before us will almost certainly recur. The specter of juror dishonesty presents a recurring danger in all cases, civil and criminal, capital and non-capital. A clarification of the applicable legal standard would be a great utility in allowing courts in future cases to cope with this recurrent problem.
Second, forbearance on our part might well result in the juror dishonesty question evading review. Let us explain.
Were we to squander this opportunity to review the district court’s decision, the new penalty-phase hearing ordered by the district court would proceed and a newly empaneled jury would recommend the sentence (life imprisonment or death). If the new jury votes for a death sentence, the government would have no incentive to appeal — and, indeed, would be foreclosed from doing so. See United States v. Moran, 393 F.3d 1, 12 (1st Cir.2004). Nor would the defendant appeal the earlier grant of a new penalty-phase hearing since it occurred at his behest. See United States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir.1990) (“[Defendants can[not] properly challenge on appeal a proposal they themselves offered....”).
If, however, the newly empaneled jury votes for life imprisonment, the district court’s order may still evade review. The defendant, of course, would not appeal. For its part, the government might be prevented from appealing the earlier decision to vacate the death sentence and order a new penalty-phase hearing. After all, the Double Jeopardy Clause, U.S. Const, amend. V, cl. 2, applies to sentencing hearings in capital cases. See Sattazahn v. Pennsylvania, 537 U.S. 101, 107-09, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003).
A jury’s disavowal of the death penalty the second time around, based on “findings sufficient to establish legal entitlement to the life sentence,” would normally be tantamount to an acquittal for double jeopardy purposes. Id. at 107-09, 123 S.Ct. 732. Permitting the government to appeal after a second death-eligible jury has disavowed the death sentence would raise serious double jeopardy concerns, and at the least would lead to an incongruous result. Indeed, the Court has said that “[t]he policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal.” United States v. Wilson, 420 U.S. 332, 352, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).
Withal, we note that the Double Jeopardy Clause may not bar a government appeal following a second penalty-phase jury’s recommendation of life imprisonment. As a general rule, no double jeopardy problem is presented where an “error could be corrected without subjecting [the defendant] to a second trial before a second trier of fact.” Id. at 345, 95 S.Ct. 1013. The Court has held that “[w]hen a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty.” Smith v. Massachusetts, 543 U.S. 462, 467, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). The Supreme Court has yet to speak directly to this difficult issue.
We need not enter this quagmire: for present purposes, it suffices to say that there is a credible possibility that the district court’s decision would evade appellate scrutiny were we to defer review until after a new penalty-phase hearing is completed. If a deferral of review carries with it an appreciable degree of danger that the underlying issue will escape review entirely, that danger argues in favor of exercising advisory mandamus. See United States v. Pleau, 680 F.3d 1, 4 (1st Cir.2012) (en banc).
To say more about the question of appellate jurisdiction would serve no useful purpose. For the reasons elucidated above, we deem this case an appropriate one for the exercise of our advisory mandamus authority. Consequently, we proceed to the merits.
III. JUROR DISHONESTY
The government asserts that the district court erred as a matter of law in vacating the defendant’s sentence and ordering a new penalty-phase hearing. In the government’s view, the court misinterpreted the Supreme Court’s opinion in McDonough, 464 U.S. 548, 104 S.Ct. 845 (1984), and erected an erroneous legal framework for handling post-trial claims of newly discovered juror dishonesty.
Our standard of review is bifurcated. We review findings of raw fact for clear error. See United States v. George, 676 F.3d 249, 256 (1st Cir.2012). We review the correctness of the district court’s legal analysis de novo. See Prou v. United States, 199 F.3d 37, 42 (1st Cir.1999).
The government’s challenge primarily targets the district court’s legal regime. We agree with the government that the district court misinterpreted McDonough and erected an erroneous framework. In this instance, however, applying the appropriate framework leads to the same result.
To explain these conclusions, we begin by canvassing the district court’s findings of fact. We turn next to the appropriate legal framework. Then, we array the facts supportably found against the appropriate framework. Finally, we deal with two peripheral arguments advanced by the government.
A. Facts Supportably Found.
The district court’s meticulous factfinding brought to light a litany of lies told by Juror C during voir dire. We rehearse the particulars.
The post-trial hearing stretched out over three separate court days. During those occasions, the district judge had ample opportunity to gauge Juror C’s credibility and evaluate her impartiality. The court supportably found that Juror C gave false answers not only during voir dire but also during the post-trial hearing itself. These false answers related primarily to two aspects of Juror C’s life.
The first area about which Juror C persistently lied involved her ex-husband, P. The second involved her daughter, J. The district court supportably found, based on evidence adduced during the post-trial proceeding, that P, an employee of the United States Postal Service, regularly abused alcohol and marijuana. P rebuffed Juror C’s adjurzations to seek treatment and his continued substance abuse contributed to Juror C’s decision to obtain a divorce. During their marriage, Juror C feared physical abuse as P often threatened to harm her. On one occasion, P menaced Juror C with a shotgun. After her sons took the weapon away, Juror C reported the incident to the police. She requested and received an abuse prevention order that required P to stay away from her. P violated this order, committing a criminal offense, when he approached Juror C at their home, chased her into the bedroom, and would not let her leave. P was arrested and prosecuted for violating the abuse prevention order. When Juror C belatedly admitted these events, she characterized them as “horrible” and “a nightmare.” Juror C described her experiences with J, whose very existence she had failed to acknowledge either in her responses to the juror questionnaire or during the voir dire, in much the same way. As Juror C well knew, J at one time held an administrative job with the Sanibel Police Department in Florida. J lost this position in 1997, however, when she was placed on probation after admitting to the theft of property. J violated the terms of her probation and was given a six-month incarcerative sentence. Juror C vouchsafed her beliefs that J had been treated fairly by the authorities during this ordeal. J also became a cocaine addict. Ashamed of J’s criminal conduct and drug use, Juror C had tried to forget about these experiences because thinking of them was “killing” her. She was unwilling to admit that such events could happen in her family. Although Juror C signed the written voir dire questionnaire under the pains and penalties of perjury, the proof adduced during the post-trial proceeding, summarized above, made it pellucid that no fewer than ten of her responses were apocryphal. We give the flavor of this mendacity by recounting some of the responses given by Juror C on the questionnaire. • Question 32 inquired whether Juror C or anyone close to her ever had a drug problem. She answered “no.” • Question 34 inquired whether Juror C or anyone close to her worked for the federal government. She answered “no.” • Question 47 inquired as to how many children Juror C had. She indicated that she had only two sons. • Question 59 inquired whether Juror C, or anyone close to her had ever been a victim of a crime or a witness to a crime. She answered “no.” • Question 61 inquired whether Juror C or anyone close to her had ever been questioned as part of a criminal investigation. She answered “no.” • Question 63 inquired whether Juror C or anyone close to her had ever been charged with committing a crime. She answered “no.” • Question 64 inquired whether Juror C knew anyone who had ever been in prison. She answered “no.” • Question 65 inquired whether Juror C or anyone close to her ever had an experience with the police in which she (or that other person) was treated fairly. She answered “no.” • Question 68 inquired whether Juror C or anyone else close to her had ever been employed in law enforcement. She answered “no.” Each of these answers was false. Juror C perpetuated these falsehoods during the individual voir dire questioning. To make a bad situation worse, Juror C continued her charade during the initial session of the post-trial hearing. When defense counsel áttempted to probe her lies about P, she resisted that line of inquiry, professing that she did not “want to go into all of these [things].” On the second day of the post-trial hearing, the truth about J began to emerge; Juror C admitted, for the first time, that she had a daughter who had been arrested. During the same post-trial session, Juror C testified that she did not speak to any of her fellow jurors after the trial had concluded. She also denied any contact with the victims’ families. These statements were untrue — and Juror C admitted as much during the final session of the post-trial hearing. Although these lies did not occur during voir dire, they are plainly relevant to Juror C’s credibility and strongly support the district court’s finding of juror dishonesty. Based on this and other evidence, the district court found that Juror C had intentionally and repeatedly dissembled about P and J because of both the emotional pain involved in discussing these experiences and her desire to avoid the humiliation of sharing them. Sampson II, 820 F.Supp.2d at 181, 197. This finding has overwhelming support in the record. Juror C herself acknowledged that she had withheld the information about. P and J because, when completing the questionnaire, she “didn’t think [her] personal life had anything to do with [ ] being a juror.” Id. at 187. In all events, her demeanor while testifying evinced her emotional pain and humiliation; she was visibly distraught when discussing P and J, crying and incoherently attempting to excuse her mendacity. See id. at 184,185,190. B. The Legal Framework. We come next to the underlying legal principles that govern post-trial claims of newly discovered juror dishonesty. It is constitutional bedrock that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const, amend VI. An impartial jury is one “capable and willing to decide the case solely on the evidence before it.” McDonough, 464 U.S. at 554, 104 S.Ct. 845 (internal quotation marks omitted). The right to an impartial jury is nowhere as precious as when a defendant is on trial for his life. See Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). The FDPA enshrines this right. It requires that the jury be unanimous in concluding that the death penalty is justified. See 18 U.S.C. § 3593(d). If even, a single biased juror participates in the imposition of the death sentence, the sentence is infirm and cannot be executed. See Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Voir dire is a singularly important means of safeguarding the right to an impartial jury. A probing voir dire examination is “[t]he best way to ensure that jurors do not harbor biases for or against the parties.” Correia v. Fitzgerald, 354 F.3d 47, 52 (1st Cir.2003). This goal, however, is not easy to achieve: a person who harbors a bias may not appreciate it and, in any event, may be reluctant to admit her lack of objectivity. See McDonough, 464 U.S. at 554, 104 S.Ct. 845; Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 53 L.Ed. 465 (1909). As the Supreme Court explained over a century ago, “[b]ias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence.” Crawford, 212 U.S. at 196, 29 S.Ct. 260. The voir dire process, which is fluid rather than mechanical, is frustrated when a prospective juror is dishonest. Both the juror’s dishonesty and her motivation for that dishonesty may cast doubt upon her impartiality. See McDonough, 464 U.S. at 556, 104 S.Ct. 845. “If the answers to [voir dire] questions are willfully evasive or knowingly untrue, the tales-man, when accepted, is a juror in name only.” Clark v. United States, 289 U.S. 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933). In McDonough, the Supreme Court spoke to the question of when a party is entitled to a new trial after learning that a juror failed to disclose material information during the voir dire. In McDonough, a seated juror in a product liability case, when queried during voir dire whether he or his immediate family members had ever sustained severe injury in an accident, did not disclose that his son had been hurt in a truck tire explosion. 464 U.S. at 549-51, 104 S.Ct. 845. Following a verdict for the defendant and the disclosure of this information, the district court denied a motion for a new trial. The court of appeals reversed. The Supreme Court ruled that the juror’s “mistaken, though honest,” response did not necessitate a new trial. Id. at 555, 104 S.Ct. 845. Emphasizing that a party “is entitled to a fair trial but not a perfect one,” id. at 553, 104 S.Ct. 845 (internal quotation marks omitted), the Court explained that parties cannot be granted a new trial if the only purpose is “to recreate the peremptory challenge process because counsel lacked ... information,” id. at 555,104 S.Ct. 845. The McDonough Court distinguished the case before it from a situation in which a juror was intentionally dishonest during voir dire, and the combination of the undisclosed information and such dishonesty demonstrates bias. To secure a new trial, in the latter situation, a party must show “that a juror failed to answer honestly a material question” at voir dire, and “then further show that a correct response would have provided a valid basis for a challenge for cause.” Id. at 556, 104 S.Ct. 845. In this regard, the Court noted that “[t]he motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” Id. We think it follows that, under McDonough, a party seeking a new trial based on juror dishonesty during voir dire must satisfy a binary test. See id.; see also Crowley v. L.L. Bean, Inc., 303 F.3d 387, 407 (1st Cir.2002). The party must show, first, that the juror failed to answer honestly a material voir dire question. See McDonough, 464 U.S. at 556, 104 S.Ct. 845. For this purpose, a voir dire question is material if a response to it “has a natural tendency to influence, or is capable of influencing,” the judge’s impartiality determination. Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotation marks and alteration omitted). The second part of the binary test requires a finding that a truthful response to the voir dire question “would have provided a valid basis for a challenge for cause.” McDonough, 464 U.S. at 556, 104 S.Ct. 845. Jurors normally are subject to excusal for cause if they are biased or if they fail to satisfy statutory qualifications. 2 Charles Alan Wright et ah, Federal Practice and Procedure § 382 (4th ed. updated Apr. 2013). In this instance, only bias is relevant. What constitutes a valid basis for excusal within the purview of the binary test is the question that lies at the heart of these appeals. The district court took a categorical approach to this question, identifying three such bases: actual bias, implied bias, and inferable bias. Sampson II,. 820 F.Supp.2d at 162-67. We find this categorical delineation unhelpful. The McDonough Court saw no need to use pigeonholes of this sort. The Court started by defining impartiality as a condition that allows a juror to be “capable and willing to decide the case solely on the evidence.” McDonough, 464 U.S. at 554, 104 S.Ct. 845 (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). The flip side of impartiality is bias, but the Court warned that “hints of bias [are] not sufficient.” Id. Instead, only “[d]emonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause.” Id. This means, of course, that cognizable juror bias is a valid basis for excusal. But McDonough imposes no requirement that cognizable bias be confined to any particular sub-categories. Everything depends on the particular circumstances. Seen in this light, we think that attempting to classify biases in sub-categories is likely to do more harm than good. Consequently, we eschew, the district court’s formulation and hew to the line plotted by the McDonough court. Id. at 555-56, 104. S.Ct. 845. Refraining from a categorical approach makes eminently good sense: after all, bias is not a pedagogical conception but rather a state of mind. To reveal the existence of this state of mind, “the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 81 L.Ed. 78 (1936). When all is said and done, the existence vel non of a valid basis for a challenge for cause is not a matter of labels. Any inquiry into potential bias in the event of juror dishonesty must be both context specific and fact specific. The outcome of this inquiry depends on whether a reasonable judge, armed with the information that the dishonest juror failed to disclose and the reason behind the juror’s dishonesty, would conclude under the totality of the circumstances that the juror lacked the capacity and the will to decide the case based on the evidence (and that, therefore, a valid basis for exeusal for cause existed). See McDonough, 464 U.S. at 554, 104 S.Ct. 845. The party seeking to upset the jury’s verdict has the burden of showing the requisite level of bias by a preponderance of the evidence. See DeBurgo v. St. Amand, 587 F.3d 61, 71 (1st Cir.2009). A number of factors may be relevant in determining whether a juror has both the capacity and the will to decide the case solely on the evidence. This compendium may include (but is not limited to) the juror’s interpersonal relationships, see, e.g., United States v. Colombo, 869 F.2d 149, 151-52 (2d Cir.1989); United States v. Scott, 854 F.2d 697, 698-700 (5th Cir.1988); the juror’s ability to separate her emotions from her duties, see, e.g., Dennis v. Mitchell, 354 F.3d 511, 518-19, 521 (6th Cir.2003); Burton v. Johnson, 948 F.2d 1150, 1158-59 (10th Cir.1991); the similarity-between the juror’s experiences and important facts presented at trial, see, e.g., United States v. Torres, 128 F.3d 38, 47-48 (2d Cir.1997); Burton, 948 F.2d at 1158-59; the scope and severity of the juror’s dishonesty, see, e.g., Dyer v. Calderon, 151 F.3d 970, 983-84 (9th Cir.1998) (en banc); Scott, 854 F.2d at 699-700; and the juror’s motive for lying, see McDonough, 464 U.S. at 556, 104 S.Ct. 845; Skaggs v. Otis Elevator Co., 164 F.3d 511, 516 (10th Cir.1998). Although any one of these factors, taken in isolation, may be insufficient to ground a finding of a valid basis for a challenge for cause, their cumulative effect must nonetheless be considered. See United States v. Perkins, 748 F.2d 1519, 1532-33 (11th Cir.1984). C. Integrating Fact and Law. It remains for us to evaluate the impact of the facts supportably found in terms of the appropriate legal framework. But there is a rub: the district court misunderstood the applicable legal framework, instead creating a new sub-category that it called “inferable bias” to serve as the cornerstone of its conclusion that Juror C’s dishonesty necessitated a new penalty-phase hearing. See Sampson II, 820 F.Supp.2d at 165-67, 192-96. The district court’s mistaken view of the law, however, does not require us to throw out the baby with the bath water. Where, as here, a trial court, notwithstanding its misapprehension of the law, makes a detailed set of subsidiary findings as to the raw facts, those findings sometimes may be subject to' reuse. See Societe Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir.1992) (concluding that, in a case in which the trial court supportably found the facts but applied the wrong rule of law, court of appeals had the authority, in lieu of remand, to array the findings against the correct legal standard); United States v. Mora, 821 F.2d 860, 869 (1st Cir.1987) (similar). This is such a case. We turn now to the task of arraying the lower court’s factual findings against the correct legal framework. The first part of the binary test focuses on whether Juror C failed to answer honestly one or more material voir dire questions. The district court’s factual findings make manifest that this benchmark was satisfied. Juror C understood her duty to be truthful in answering the voir dire questionnaire, yet her certification under the pains and penalties of perjury was knowingly false. As Juror C later admitted, she had been deliberately dishonest when answering the questions that called for information about the exploits of P and J. Thé materiality of the questions that Juror C answered dishonestly is nose-on-the-face plain. Each question, individually, was designed to solicit information that potentially could impugn a juror’s impartiality; and the questions, collectively, bore heavily on that subject. Questions that go to the heart of juror impartiality are unarguably material to the voir dire process. This brings us to the second element of the binary test:' whether a reasonable judge, armed with the information that the dishonest juror failed to disclose and the reason behind the juror’s dishonesty, would conclude under the totality of the circumstances that the juror lacked the capacity and the will to decide the case based on the evidence (and that, therefore, a valid basis for excusal for cause existed). We conclude that this showing was made. Our conclusion rests on three cross-braced pillars: (i) Juror C’s habitual dissembling; (ii) the intense emotions Juror C exhibited when belatedly relating her life experiences involving P and J; and (iii) the similarities between Juror C’s unreported life experiences and the evidence presented during the penalty-phase hearing. We comment briefly about the way in which these pillars interact to demonstrate a valid basis for excusal for cause. Although juror dishonesty, by itself, is not sufficient to demonstrate bias, it can be a powerful indicator of bias. See Colombo, 869 F.2d at 151; Perkins, 748 F.2d at 1532-33. Here, Juror C lied repeatedly in the voir dire questionnaire and directly to the court. This parlous pattern of persistent prevarication supports an inference that Juror C’s ability to perform her sworn duty as an impartial juror was compromised from the start. What is more, Juror C’s repetitive acts of dishonesty illustrate the powerful emotions she harbored about P and J. See Burton, 948 F.2d at 1159. To put this proposition in bold relief, Juror C left, no doubt but that she would rather lie to the court than discuss these painful life experiences. The record fully supports the district court’s observation that, even years after the penalty-phase hearing, her “shame and embarrassment were so intense that she could not discuss those matters candidly, unemotionally or, often, coherently.” Sampson II, 820 F.Supp.2d at 193. This display of emotional distress illuminates Juror C’s motives for lying. The McDonough Court made clear that “only those reasons [for lying] that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” 464 U.S. at 556, 104 S.Ct. 845. Here, it is far more likely than not that — as the district court found — Juror C’s reasons for lying about P and J impaired her ability to decide the case solely on the evidence. The magnitude of Juror C’s emotional distress strongly suggests that it would have been a Sisyphean task for her to separate the evidence presented at the penalty-phase hearing from her intense feelings about her own life experiences. Juror C’s inability to remain detached is especially troubling in this case because of the similarity between her distress-inducing life experiences and the evidence presented during the penalty-phase hearing. When a juror has life experiences that correspond with evidence presented during the trial, that congruence raises obvious concerns about the juror’s possible bias: See Torres, 128 F.3d at 47-48; Burton, 948 F.2d at 1158-59. In such a situation, the juror may have enormous difficulty separating her own life experiences from evidence in the case. For example, it would be natural for a juror who had been the victim of a home invasion to harbor bias against a defendant accused of' such a crime. In the ease at hand, the overlap is striking. We offer a few illustrations. For one thing, the jurors heard evidence that the defendant threatened bank tellers at gunpoint during the- string of North Carolina bank robberies and his murder victims at knife point. For her part, Juror C was frequently threatened by her then-husband once with a shotgun and other times with his fists. The shotgun threat occurred in fairly close temporal proximity to the empanelment of the jury (three years or so). See Sampson II, 820 F.Supp.2d at 185. These parallels raise a serious concern as to whether an ordinary person in Juror C’s shoes would be able to disregard her own experiences in evaluating the evidence. For another thing, the government presented evidence during the penalty-phase hearing that the defendant had substance abuse problems — problems that contributed, inter alia, to the dissolution of his marriage. For her part, Juror C was forced to deal with the substance abuse of both her husband and her daughter. Indeed, P’s substance abuse was a catalyst for the dissolution of Juror C’s marriage. These parallels raise a serious concern as to whether an ordinary person in Juror C’s shoes would be able to disregard her own family’s involvement with substance abuse and avoid a bias against the defendant on account of his substance abuse. Then, too, the jury heard evidence during, the penalty-phase hearing anent the defendant’s criminal history, including his incarceration for robbery. Analogously, Juror C’s daughter committed larceny and was incarcerated as a result. Juror C testified that she was deeply ashamed of her daughter’s immurement. These parallels raise a serious concern as to whether an ordinary person in Juror C’s shoes would be able to disregard J’s troubles with the law and avoid a bias against the defendant on this account. This concern is magnified by the powerful emotions that Juror C displayed about her parallel life experiences. We conclude that if fully informed of Juror C’s willingness to lie repeatedly, her fragile emotional state, her past experiences with P and J, and the similarities between those experiences and the evidence to bé presented during the penalty-phase hearing, any reasonable judge would have found that the cumulative effect of those factors demonstrated bias (and, thus, a valid basis for excusal for cause). Indeed, the court below excused a number of prospective jurors for cause on less compelling grounds. Thus, the defendant was deprived of the right to an impartial jury and is entitled to a new penalty-phase hearing. D. Attempts at Avoidance. As a last resort, the government tries to catch lightning in a bottle. It argues that even if Juror C’s dishonesty constitutes a valid basis for dismissal for cause, the district court had no right to vacate the defendant’s sentence and order a new penalty-phase hearing. It advances two theories. We find neither theory persuasive. To begin, the government asserts that the district court developed a new constitutional rule when it based the grant of a new penalty-phase hearing on “inferable bias.” The application of this new rule, the government’s thesis runs, transgressed the non-retroactivity principle for criminal cases under collateral review. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) (holding that a criminal defendant is generally not entitled to collateral relief if granting that relief would require, the court to apply a new constitutional rule implicating criminal procedure); Ferrara v. United States, 456 F.3d 278, 288 (1st Cir.2006) (same). This proposition is rendered moot by our rejection of the district court’s “inferable bias” formulation. The legal framework that we have used does not embody any new constitutional rule of criminal procedure but, rather, merely applies the rule laid down by the Supreme Court in McDonough to the circumstances of the case at hand. Such a course of action does not offend the non-retroactivity principle. After all, a ease is deemed to announce a new constitutional rule of criminal procedure only if the result is not driven by precedent that existed at the time of the decision. See Teague, 489 U.S. at 301, 109 S.Ct. 1060 (plurality opinion). A case does not announce a new constitutional rule of criminal procedure when it is “merely an application of the principle that governed” a prior decision to a different set of facts. Id. at 307, 109 S.Ct. 1060 (plurality opinion; internal quotation marks omitted); accord Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013); O'Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). If more were needed—and we do not think that it is—the government’s assertion of the non-retroactivity principle is untimely. The government makes this argument for the first time on appeal. A Teague defense is not jurisdictional, and the government’s failure to raise such a defense in a timeous manner constitutes a waiver. See Ferrara, 456 F.3d at 289. Because the government failed to interpose this defense below, it is waived. The government’s second attempt at avoidance is no more convincing. It asserts that because the defendant seeks remediation on collateral review, constitutional error does not entitle him to relief in the absence of actual prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Building on this foundation, the government insists that there has been no showing of actual prejudice here. The government is wrong. There is more than sufficient evidence of prejudice in the record to entitle the defendant to relief, given the extent of Juror C’s bias and the capital penalty-phase proceedings in which she participated. As the Supreme Court said in United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), where a biased juror sits on a jury that sentenced a defendant to death and the issue was properly preserved, the sentence would have to be overturned, id. at 316, 120 S.Ct. 774 (citing Ross, 487 U.S. at 85, 108 S.Ct. 2273); see also Morgan, 504 U.S. at 729, 112 S.Ct. 2222 (stating that “[i]f even one [biased] juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence”). IV. CONCLUSION This case is a stark reminder of the consequences of juror dishonesty. Jurors who do not take their oaths seriously threaten the very integrity of the judicial process. The costs, whether measured in terms of human suffering or monetary outlays, are staggering. But the ultimate lesson that this case teaches is that the protections afforded by the Constitution and laws of the United States are, in the end, sufficient to protect against even the most insidious threat. We need go no further. For the reasons elucidated above, we dismiss the government’s two appeals. Exercising our advisory mandamus power, we conclude — as did the district court — that the death sentence must be vacated and a new penalty-phase hearing undertaken. Accordingly, we deny the government’s request for the issuance of an extraordinary writ. So Ordered.
Since neither Whitney’s murder nor G.'s carjacking was charged by the government, these separate crimes were relevant only as aggravating factors for sentencing purposes. Sampson II, 820 F.Supp.2d at 160.
The defendant’s section 2255 petition also includes claims that he was denied effective assistance of counsel; that the government violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); that the government committed misconduct during the grand jury process; that execution would violate his Eighth Amendment rights due to his severe mental impairment; and that the FDPA and/or the death penalty are unconstitutional. Only the jury dishonesty claim is before us.
In a separate opinion, the court summarily dismissed some of the defendant’s other claims. See Sampson III, 820 F.Supp.2d at 212-13; see also supra note 2. These rulings need not concern us because the court has withheld the entry of orders on them. Sampson IV, 2012 WL 1633296, at *15.
As the government points out, courts sometimes refer to a penalty-phase "trial.'' But the relevant portion of the FDPA, 18 U.S.C. § 3593(b), describes the penalty-phase proceeding as a "sentencing hearing.” We think that Congress’s description controls.
The following summary of the district court’s pertinent findings is drawn from the court’s exegetic opinion in Sampson II, 820 F.Supp.2d at 181-88.
Juror C testified that she wanted to call the court about this set of lies after the first post-trial session but did not have the telephone number. The court, noting that its telephone number was on both her subpoena letter and on the court’s general website, found this excuse incredible. Sampson II, 820 F.Supp.2d at 187.
The government argues that standards for review of post-conviction claims of juror dishonesty must be more stringent than standards for review of a district court’s decision during voir dire to exclude a juror for bias. Because we base our decision on McDonough, we do not discuss this argument.
Of course, a juror, during voir dire, may make honest, but mistaken responses. This category includes situations in which, for example, the juror misunderstands the wording of the question, fails to recall the correct response, or is not asked a question that would necessitate disclosure of the relevant information. We do not explore here the effect of honest but mistaken voir dire responses. For present purposes, it suffices to say that in the absence of dishonesty, post-trial relief, if available at all, will require a more flagrant showing of juror bias. See Amirault v. Fair, 968 F.2d 1404, 1405 (1st Cir.1992) (per curiam).
In this regard, Juror C might also have identified with the defendant's parents, whom the penalty-phase evidence depicted as being ashamed of their child (abandoning him and refusing to cooperate with his attorneys). See Sampson II, 820 F.Supp.2d at 158, 181.
In view of the existence of actual prejudice, we need not reach the defendant’s contention that the doctrine of structural error applies and obviates any need for a showing of actual prejudice. See Brecht, 507 U.S. at 629-30, 113 S.Ct. 1710.
Gary Lee SAMPSON, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
No. 16-1727
United States Court of Appeals, First Circuit.
August 4, 2016
Paul Mogin, with whom William E. McDaniels, Jennifer G. Wicht, Williams & Connolly LLP, Washington, DC, Michael Burt, Law Office of Michael Burt, San Francisco, CA, Danalynn Recer, Austin, TX, and Gulf Region Advocacy Center were on brief, for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before LYNCH, SELYA, and LIPEZ, Circuit Judges.
[OPINION BY LYNCH, Circuit Judge. type=majority]
LYNCH, Circuit Judge.
Gary Lee Sampson pled guilty in September 2003 to two counts of the crime of carjacking resulting in death. In December 2003, following a penalty-phase trial, a jury sentenced Sampson to death under the Federal Death Penalty Act (“FDPA”) for those crimes. See 18 U.S.C. §§ 3591-3599. His death sentence was later vacated due to jury taint, and his case returned to the district court for further proceedings. The government filed an amended notice that it sought the death penalty. That notice listed the factors that in its view justified the death penalty, largely tracking the original notice. Sampson challenged several aspects of that notice.
Sampson now both petitions for a writ of mandamus, and appeals from an order by the district court denying his motion in limine to dismiss or strike two non-statutory aggravating factors the prosecution intends to present in a second penalty-phase proceeding under the FDPA. Those factors, which were also included in the original notice, are: (1) future dangerousness, and (2) obstruction of justice by means of murder to conceal the theft and attempted theft of victims’ automobiles. The new penalty-phase trial is scheduled to start on September 14, 2016. We have expedited this appeal.
Sampson argues that because the jury in his first penalty-phase proceeding did not find unanimously that the government proved these two non-statutory aggravating factors beyond a reasonable doubt, their introduction at the new penalty-phase proceeding is barred by the Double Jeopardy Clause of the Constitution, including its collateral-estoppel component. Under Supreme Court precedent, Sampson’s claims must be rejected. We affirm the district court’s order.
I.
The facts of the case are familiar from earlier opinions, and we recite only those relevant to this appeal. See United States v. Sampson (Sampson I), 486 F.3d 13 (1st Cir. 2007); United States v. Sampson (Sampson II), 820 F.Supp.2d 151 (D. Mass. 2011); United States v. Sampson (Sampson III), 820 F.Supp.2d 202 (D. Mass. 2011); United States v. Sampson (Sampson IV), 58 F.Supp.3d 136 (D. Mass. 2012); Sampson v. United States (Sampson V), 724 F.3d 150 (1st Cir. 2013).
Sampson murdered three people over the course of a week in 2001. He murdered Philip McCloskey in Massachusetts on July 24, 2001, and attempted to steal McCloskey’s car; murdered Jonathan Rizzo in Massachusetts and stole Rizzo’s car on July 27; and murdered Robert Whitney in New Hampshire on July 30.
On August 8, 2002, a grand jury, in a second superseding indictment, indicted Sampson on two counts of carjacking resulting in death. The government then filed a notice of intent to seek the death penalty, as required by the FDPA. See 18 U.S.C. § 3593(a).
Under the FDPA, after the government has filed a notice of intent to seek the death penalty, the criminal trial divides into two phases, one focused on guilt (the “guilt phase”) and the other on sentencing (the- “penalty phase”). See id. § 3593(b). If the defendant is convicted of a predicate capital offense in the guilt phase, the government then must prove beyond a reasonable doubt in the penalty phase that the defendant was at least 18 years old, committed one of four acts with the requisite mental state, and committed at least one of sixteen statutory aggravating factors. Id. §§ 3591(a), 3592(c), 3593(c)-(d).
If the government satisfies these prerequisites and proves that the defendant is eligible for death, the jury must decide whether death is justified by weighing any proven mitigating factors with the proven aggravating factors, including both statutory and non-statutory aggravating factors. Id. § 3593(e). “The term ‘non-statutory aggravating factor’ is used to ‘refer to any aggravating factor that is not specifically described in 18 U.S.C. §3592.’” Sampson I, 486 F.3d at 44 n.14 (quoting Jones v. United States, 527 U.S. 373, 378 n.2, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)). The jury must submit special findings on any aggravating factors, 18 U.S.C. § 3593(d), and must find unanimously that the government has proven any aggravating factors, statutory or non-statutory, beyond a reasonable doubt, id. § 3593(c)-(d).
Sampson pled guilty to both charges of carjacking resulting in death. The first penalty-phase hearing followed. At the close of the penalty phase, the jury found unanimously for the death penalty. For each count, the jury submitted a special verdict form that contained separate findings on each alleged statutory and non-statutory aggravating factor. The jury’s special verdict form stated that it found unanimously that the government had proven two statutory aggravating factors and a number of non-statutory aggravating factors for each charge against Sampson.
Pertinent to this appeal, the jury did not find unanimously that the government had proven beyond a reasonable doubt two alleged non-statutory aggravating factors, future dangerousness and murder to obstruct justice, for either charge. That is, the unanimity requirement had not been met as to those two factors. It is from this circumstance that Sampson constructs his argument in this appeal.
After being sentenced to death, Sampson appealed, and this panel affirmed. Sampson I, 486 F.3d at 52. Rehearing en banc was denied. United States v. Sampson, 497 F.3d 55, 56 (1st Cir. 2007).
In 2009, Sampson petitioned for a new trial under 28 U.S.C. § 2255. The district court, finding that a juror had lied during the voir dire process in answering questions about her ability to be impartial, Sampson II, 820 F.Supp.2d at 192-97, vacated Sampson’s sentence, id. at 202. The government appealed, and we took jurisdiction and affirmed on the basis of juror misconduct. Sampson V, 724 F.3d at 170.
We further held that the juror’s lies during voir dire concealed significant evidence of bias that would have provided grounds to excuse her for cause. Id. at 168. We held that Sampson “was deprived of the right to an impartial jury and is entitled to a new penalty-phase hearing.” Id. The case returned to the district court for further proceedings in 2013.
In March 2014, the government filed an amended notice of intent to seek the death penalty. The amended notice again alleged for both counts of Sampson’s conviction, inter alia, the two non-statutory aggravating factors — that (1) Sampson is “likely to commit criminal acts of violence in the future” and pose a danger to prison officials and inmates (“future dangerousness”); and (2) that Sampson murdered Philip McCloskey and Jonathan Rizzo “to prevent [the victims] from reporting the carjacking[s] to authorities” (“murder to obstruct justice”) — which the original sentencing jury found that the government failed to prove beyond a reasonable doubt to the satisfaction of all jurors. The amended notice also stated that the government would use new evidence from Sampson’s conduct in prison from 2004 to the present in order to prove future dangerousness.
On May 15, 2015, Sampson moved to dismiss or strike a number of the statutory and non-statutory aggravating factors from the amended notice. He was partially successful. As to the issues on appeal, Sampson argued that the renewed allegations of the non-statutory aggravating factors of future dangerousness and obstruction of justice violated the Double Jeopardy Clause’s retrial and collateral-estoppel components. The government opposed the motion.
The district court denied the motion to dismiss or strike the two non-statutory aggravating factors. It held that the Double Jeopardy Clause does not preclude alleging the non-statutory factors at the new penalty-phase hearing because the original penalty-phase jury’s findings on those factors did not constitute an “acquittal.” And it held that the factors are not barred by the collateral-estoppel component of the Double Jeopardy Clause, because “the jury verdict was tainted by a juror who lied about her ability to be impartial,” and because the jury’s rejection of the factors was “not essential to the judgment of death.”
Sampson then moved for a certificate of appealability .under 28 U.S.C. § 2253(c). The district court, citing Abney v. United States, 431 U.S. 651, 662, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), reasoned that its rejection of Sampson’s motion to dismiss or strike the two non-statutory aggravating factors was a “pretrial order[] rejecting [a] claim[ ] of former jeopardy,” and so was one of the “small class of cases that [are] beyond the confines of the final-judgment rule.” The district court granted Sampson’s motion and issued a certificate of appealability on the following question: “Whether the Double Jeopardy Clause bars the government, at Sampson’s new penalty phase hearing, from seeking to prove two non-statutory aggravating factors which the jury at Sampson’s first penalty phase hearing found had not been proven beyond a reasonable doubt.” Sampson then filed this timely appeal.
II.
Appellate Jurisdiction
Before reaching the merits of Sampson’s appeal, we must satisfy ourselves that we have jurisdiction to hear it. The government disputes that we have jurisdiction, but argues that we may skip that analysis in favor of a merits analysis. Sampson argues, among other things, that we should exercise the mandamus power available to us under the All Writs Act, 28 U.S.C. § 1651(a). We conclude that, whether or not we have statutory jurisdiction, we at least have and will exercise advisory mandamus jurisdiction.
The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Id. “Mandamus must be used sparingly and only in extraordinary situations.” In re Pearson, 990 F.2d 653, 656 (1st Cir. 1993). There are two types of mandamus, supervisory and advisory. United States v. Horn, 29 F.3d 754, 769 n.19 (1st Cir. 1994). “The former is used when an appellate court issues the writ to correct an established trial court practice that significantly distorts proper procedure,” id. whereas the latter is used in “cases ... that present novel questions of great significance which, if not immediately addressed, are likely to recur and to evade effective review,” United States v. Green, 407 F.3d 434, 439 (1st Cir. 2005). “We typically exercise [advisory mandamus] to settle substantial questions of law when doing so would give needed guidance to lawyers, litigants, and lower courts.” Sampson V, 724 F.3d at 159.
We exercised advisory mandamus jurisdiction in the prior appeal to address the juror misconduct issue. Id. at 159-61. It is appropriate to exercise advisory mandamus here. Sampson’s appeal meets all of the stringent requirements for its “strong medicine.” In re Sony BMG Music Entm’t, 564 F.3d 1, 4 (1st Cir. 2009).
First, the issue, as framed, is novel. As Sampson notes, neither this court nor the Supreme Court has passed on the precise type of double-jeopardy challenge presented in this appeal. Second, it is of high public importance. “Like the right to trial by jury, [the guarantee against double jeopardy] is clearly ‘fundamental to the American scheme of justice.’ ” Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Third, as we emphasized when we exercised advisory mandamus to affirm the district court’s vacatur of Sampson’s sentence for jury taint, an already significant legal question is even more so in the context of a capital case, because “death is [] different.” Sampson V, 724 F.3d at 159 (alteration in original) (quoting Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion)). Fourth, exercising review now offers pragmatic benefits in this case. As Sampson notes, and as the district court observed, deferring review of the district court’s rejection of his double-jeopardy challenge presents risks of a third penalty trial. Incurring the pain inflicted by a third trial is to be avoided, if not needed.
The government essentially concedes that the appeal raises novel questions of public importance, that exercising mandamus would offer significant pragmatic benefits, and that it “undoubtedly would provide needed guidance to the district court, the lawyers, and litigants in this case.” The government rests its argument against advisory mandamus instead on an assertion that the issue raised in the appeal will not “almost certainly recur,” Green, 407 F.3d at 440, and that it will not evade review.
The government’s point is that FDPA cases are extremely rare in this circuit— Sampson’s was the first FDPA conviction that we reviewed, see Sampson I, 486 F.3d at 17 — and the particular issue in this appeal will arise even less frequently, making it implausible to consider the question in the appeal “systemically important,” In re Sony, 564 F.3d at 4. This is too narrow a view of systemic importance. Federal courts often find error in capital cases. See Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 2759, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting). Similar double-jeopardy challenges to subsidiary determinations by a sentencing jury in capital cases may well recur.
The government argues that the question presented will not evade review because Sampson can raise it after his resentencing. But this misses the point. The double-jeopardy challenge here asserts that Sampson should not have to defend once more against the two non-statutory aggravating factors at issue. Postponing review of the double-jeopardy challenge until after the second penalty-phase proceeding will frustrate the appeal’s central assertion: that Sampson should not have to defend against these particular allegations again. The claim would evade review because one of the most important protections of the Double Jeopardy Clause would be lost. Abney, 431 U.S. at 662, 97 S.Ct. 2034.
Sampson’s appeal satisfies the stringent requirements of advisory mandamus, and we take jurisdiction.
III.
Double Jeopardy and Collateral Estoppel
Where, as here, an appeal raises “constitutional questions ‘such as the district court’s denial of a motion to dismiss ... on the grounds of double jeopardy and collateral estoppel,’ ” our review is de novo. United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998) (alteration in original) (quoting United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir. 1992), overruled on other grounds by Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)).
Sampson argues that the government’s re-allegation of the non-statutory aggravating factors of future dangerousness and murder to obstruct justice violates the Double Jeopardy Clause. The Clause provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. He contends that the jury’s special verdict on the two non-statutory aggravating factors is an “acquittal” for double-jeopardy purposes, and also that the collateral-estoppel component of the Double Jeopardy Clause bars relitigating the two factors. Neither argument is persuasive. We address each in turn.
A. The “Acquittal” Argument
The Supreme Court has explained that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). In the context of aggravating circumstances at sentencing, the Court “reject[s] the ... premise ... that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an ‘acquittal’ of that circumstance for double jeopardy purposes.” Poland v. Arizona, 476 U.S. 147, 155, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). Instead, an “acquittal” in the capital sentencing context turns on “whether the sentencer or reviewing court has ‘decided that the prosecution has not proved its case’ that the death penalty is appropriate.” Id. (quoting Bullington v. Missouri, 451 U.S. 430, 443, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)); see also Bobby v. Bies, 556 U.S. 825, 833-34, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009). If the decision being examined does not meet the standard of an acquittal, then the “clean slate” rule applies, Bullington, 451 U.S. at 443, 101 S.Ct. 1852, and the defendant “constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served,” id. at 442, 101 S.Ct. 1852.
The earlier penalty-phase jury’s decision in Sampson’s case is not an acquittal. Quite the opposite — the jury found the death penalty justified, despite also finding that the government had not proven two non-statutory aggravating factors beyond a reasonable doubt to all members of the jury.
The Supreme Court has been clear that the “concern with protecting the finality of acquittals is not implicated when ... a defendant is sentenced to death, he., ‘convicted.’ There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has.” Poland, 476 U.S. at 156, 106 S.Ct. 1749. In Bobby v. Bies, the Court likewise held that there was no acquittal for double-jeopardy purposes where the original jury imposed the death sentence despite the presence of the mitigating factor of mental retardation, and a new hearing on the defendant’s mental capacity was held in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). 556 U.S. at 833-34, 129 S.Ct. 2145. And in Sattazahn v. Pennsylvania, the Court held that a deadlocked sentencing-jury verdict automatically resulting in a life sentence was not an “acquittal” of the death penalty for double-jeopardy purposes. 537 U.S. at 109-110, 123 S.Ct. 732. The Court has been consistent in a variety of different factual circumstances. See also Bullington, 451 U.S. at 444-45, 101 S.Ct. 1852 (verdict of life imprisonment in sentencing proceeding that “explicitly requires the jury to determine whether the prosecution has ‘proved its case’ ” for death is an acquittal of the death penalty for double-jeopardy purposes).
Double jeopardy clearly does not apply here. See Evans v. Michigan, — U.S. -, 133 S.Ct. 1069, 1075, 185 L.Ed.2d 124 (2013) (contrasting substantive rulings that trigger double jeopardy, including rulings that go to insufficiency of evidence, or guilt and innocence, with procedural rulings “that ‘are unrelated to factual guilt or innocence,’ ” such as “ ‘a legal judgment that a defendant, although criminally culpable, may not be punished’ because of some problem like an error with the indictment,” and which do not trigger double jeopardy (quoting United States v. Scott, 437 U.S. 82, 98 & n.11, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978))). Our vacation of Sampson’s original death-penalty sentence on Sixth Amendment grounds based on juror misconduct does not change this analysis. That decision rested on the basis that a juror had improperly withheld material information to get on the jury, and “had nothing to do with either the sufficiency of the evidence or [Sampson’s] guilt or innocence.” United States v. Szpyt, 785 F.3d 31, 37-38 (1st Cir. 2015), cert. denied, — U.S. -, 136 S. Ct. 800, 193 L.Ed.2d 724 (2016). Sampson was not acquitted, and the Double Jeopardy Clause is not triggered.
Sampson tries to marshal quotes from case law at the periphery of double-jeopardy jurisprudence in an effort to construe the original penalty-phase jury’s determinations on the non-statutory aggravating factors as an “acquittal.” In particular, he points to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and cases interpreting it, to suggest an “expanding” of “the concept of ‘acquittal,’ ” and to argue that “non-statutory as well as statutory aggravating factors are constitutionally significant under the FDPA.” Sampson cites various non-binding decisions from other courts, see, e.g., State v. Sawatzky, 339 Or. 689, 125 P.3d 722, 726 (2005) (en banc), as well as non-precedential dicta from a Supreme Court plurality opinion, Sattazahn, 537 U.S. at 110-12, 123 S.Ct. 732 (plurality opinion), that have reasoned from Apprendi to hold or suggest that double-jeopardy protections apply to jury determinations on sentencing enhancements even if there was never an acquittal on the death penalty. And he provides various cases discussing the relationship between the FDPA and Apprendi, as well as the FDPA and the Confrontation Clause, in an attempt to demonstrate the evolving “constitutional significance” of FDPA non-statutory aggravating factors.
But Apprendi is not a double-jeopardy case; its holding concerns what must be submitted to, and found to be proven beyond a reasonable doubt by, a jury in the first instance. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348. Here the jury in the first instance did properly find beyond a reasonable doubt that the death penalty should be imposed.
Our question is not what Apprendi requires of the FDPA, nor whether non-statutory aggravating factors are “constitutionally significant,” but rather whether relitigating two non-statutory aggravating factors found not proven by an earlier penalty-phase jury is barred by the Double Jeopardy Clause. The Supreme Court’s cases squarely addressing the question of what is an “acquittal” for double-jeopardy purposes control the question, and they compel rejection of Sampson’s argument. Because neither the original penalty-phase jury’s verdict nor the vacatur of Sampson’s sentence constitutes an acquittal, double-jeopardy principles do not prevent the government from alleging again the two non-statutory aggravating factors.
B. The Collateral-Estoppel Argument
Sampson argues at greater length that collateral estoppel, which “is embodied in the Fifth Amendment guarantee against double jeopardy,” Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), bars the relitigation of the two non-statutory aggravating factors. His argument again runs directly against Supreme Court precedent, and fares no better than his “acquittal” argument.
As the Supreme Court explained in Bies, issue preclusion, also known as collateral estoppel, “bars successive litigation of ‘an issue of fact or law’ that ‘is actually litigated and determined by a valid and final judgment, and ... is essential to the judgment.’” 556 U.S. at 834, 129 S.Ct. 2145 (alteration in original) (quoting Restatement (Second) of Judgments § 27 (1980)). The Bies Court emphasized that “[a] determination ranks as necessary or essential only when the final outcome hinges on it.” Id. at 835, 129 S.Ct. 2145 (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4421, at 543 (2d ed. 2002)).
The Bies Court found that the issue for which collateral estoppel had been claimed — evidence of the defendant’s “mild to borderline mental retardation,” which served as a mitigating factor in the original jury’s sentencing deliberations, • id. at 828, 129 S.Ct. 2145 — failed to meet this standard, id at 835, 129 S.Ct. 2145. The defendant had been sentenced to death by the original jury, and that sentence was affirmed on review by the Ohio appellate courts, with the Ohio Supreme Court “observing] that Bies’ ‘mild to borderline mental retardation merit[ed] some weight in mitigation,’ but concluding] that ‘the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt.’ ” Id. at 828, 129 S.Ct. 2145 (second and fourth alterations in original) (quoting State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 761-62 (1996)).
The Bies Court reasoned that “it [was] clear that the [Ohio] courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence.” Id. at 835, 129 S.Ct. 2145. The Court held that the Sixth Circuit, which found that collateral estoppel did apply to the issue of the defendant’s retardation, erred by “conflat[ing] a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative.” Id. The Court concluded that “[i]ssue preclusion cannot transform Bies’ loss at the sentencing phase into a partial victory.” Id. The same is true here.
The two non-statutory aggravating factors rejected by the first penalty-phase jury were not necessary to Sampson’s death sentence. Indeed, “[f]ar from being necessary to the judgment,” the jury’s failure to find unanimously that the government proved the two non-statutory aggravating factors beyond a reasonable doubt, like the retardation mitigating factor in Bies, “cuts against [the judgment] — making [it] quintessentially the kind[ ] of ruling[ ] not eligible for issue-preclusion treatment.” Id. (quoting Bies v. Bagley, 535 F.3d 520, 533 (6th Cir. 2008) (Sutton, J., dissenting from denial of rehearing en banc)). And at least one other federal court has come to the same conclusion: that collateral estoppel does not bar the introduction at a second penalty-phase proceeding of non-statutory aggravating factors presented to, and not found proven by, an earlier penalty-phase jury. United States v. Stitt, 760 F.Supp.2d 570, 584 (E.D. Va. 2010).
Sampson attempts unsuccessfully to distinguish Bies. He first observes that “the prior determination [in Bies] ... was made by a court in an opinion” (emphasis omitted), whereas the prior determinations in this case “were made by a jury in special findings” (emphasis omitted). He contrasts the “spare statements” reviewed in Bies, 556 U.S. at 834, 129 S.Ct. 2145, with the more elaborate process of the special findings at issue here. But the collateral-estoppel principle articulated in Bies makes no distinction between judge- and jury-made determinations, nor any distinction based’ on the procedure for making the determination — it focuses on whether the determination was necessary to the prior judgment.
Sampson also argues that unlike here, where the issues being relitigated áre legally identical to issues in the prior determination, the issue in the second proceeding in Bies — whether, under the rule announced in Atkins, the defendant’s retardation rendered him ineligible for the death penalty — involved a legal principle that was new and different from the prior determination. He argues that the Court noted that novelty as another basis for not finding collateral estoppel. See Bies, 556 U.S. at 836-37, 129 S.Ct. 2145. But the Court made the observation that this would be an alternative ground to reject the collateral-estoppel argument “even if the core requirements for issue preclusion had been met,” id. at 836, 129 S.Ct. 2145; its essential point was that, as here, those core requirements were not present.
All of Sampson’s other purported distinctions share the same flaw. They do not affect the principle articulated in Bies that collateral estoppel requires a determination that is essential to the prior judgment. That principle dictates that we reject Sampson’s collateral-estoppel argument. There is simply no -way the two non-statutory aggravating factors at issue here were essential to the first jury’s death sentence.
Sampson further contends that a number of other decisions of federal courts provide alternative analyses that support his collateral-estoppel claim. They do not. He relies on language in this court’s decision in United States v. Bravo-Fernandez, 790 F.3d 41 (1st Cir. 2015), cert. granted, — U.S. -, 136 S.Ct. 1491, 194 L.Ed.2d 585 (2016), including that collateral-estoppel claims “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings,” id. at 46 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189), and that “if a review of [the record of the prior proceeding] shows that a ‘rational jury,’ as a practical matter, decided adversely to the government an issue to be relitigated in the new prosecution, then the defendant gets the benefit of collateral estoppel,” id. But that language comes from an inquiry into the preclusive effect of acquittals on an attempt to prove various facts in a retrial of vacated convictions arising from the same split verdict. See id. at 43, 48. In other words, the determinations at issue in Bravo-Fernandez were potentially necessary to the prior judgment; the determinations that Sampson attacks could not have been.
Sampson’s reliance on Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989), abrogated on other grounds by Floyd v. Sec’y, Fla. Dep’t of Corr., 638 Fed.Appx. 909, 924 (11th Cir. 2016) (per curiam) (citing Fry v. Pliler, 551 U.S. 112, 119-20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), and Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)) is equally misplaced. He argues that the case illustrates “that an impact on the express terms of a judgment is not an absolute prerequisite for collateral estoppel.” This proposition is simply not so, and misconstrues Delap. Delap, in any event, does not control our decision. Delap was decided in 1989, 27 years ago, and well before Sattazahn and Bies, the Supreme Court cases that dictate our holding.
Delap concerned a trial in which the prosecution pursued multiple theories of guilt on one count of murder. The defendant was convicted of murder on one theory (first-degree premeditation), and the trial judge found that there was insufficient evidence to convict the defendant on a theory that the murder was committed during a felony. 890 F.2d at 308-12. The Eleventh Circuit first held that the insufficiency-of-the-evidence finding on the theory that there was a concomitant felony constituted an acquittal, because the finding “decide[d] that the prosecution has not proved its case.” Id. at 313 (quoting Bullington, 451, U.S. at 443, 101 S.Ct. 1852). It then asked whether the felony murder acquittal as to guilt “bar[red on retrial] a finding that the murder occurred during the commission of a felony so as to constitute an aggravating factor justifying imposition of the death penalty.” Id. at 314. The court emphasized that “in this case Delap’s acquittal of felony murder occurred during the guilt/innocence phase of his first trial.” Id. at 318. It distinguished and said that it “need not address what collateral estoppel effect, if any, would result had the jury at the sentencing phase of Delap’s first trial concluded that he had not committed murder during the course of a felony.” Id. Sampson pled guilty, and his challenge concerns the collateral-estoppel effect of one sentencing-phase determination on another. Delap is inapposite.
As we explained in Manganella v. Evanston Ins. Co., 700 F.3d 585 (1st Cir. 2012), another case Sampson cites: “We do not ask whether the resolution of an issue was necessary to reach the same outcome; rather, the inquiry is whether the issue was necessary to the decision actually rendered.” Id. at 594. By that standard, his argument fails: the non-statutory aggravating factors simply could not have been “necessary to the decision actually rendered.” Id.; see Bies, 556 U.S. at 835, 129 S.Ct. 2145. Because the non-statutory aggravating factors were not necessary to the determination of his original death sentence, the government may relitigate them at the new penalty-phase proceeding.
In the end, Sampson’s argument is that there should be a more relaxed standard for collateral-estoppel claims in the context of capital sentencing. But the Supreme Court’s scrupulous doctrinal reliance on the Second Restatement of Judgments in Bies, 556 U.S. at 834, 129 S.Ct. 2145, makes clear that the core requirements of collateral estoppel apply with full force in the capital-sentencing context. Sampson’s argument fails to meet those requirements.
Finally, Sampson makes a vague “Eighth Amendment values” argument trying to strengthen his collateral-estoppel position. He emphasizes the general principle that “[the Supreme] Court has demanded that factfinding procedures aspire to a heightened standard of reliability,” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (plurality opinion), and argues from it that “[r]eliability could only be impaired by allowing prosecutors multiple opportunities to pursue particular aggravating factors.” The argument cannot save a double-jeopardy claim when the claim fails on its own terms.
The district court correctly ruled that it would not strike the government’s notice of intended use of the non-statutory aggravating factors of future dangerousness and murder to obstruct justice because the earlier jury’s findings were not an acquittal, nor were they essential to the jury’s death sentence. The Double Jeopardy Clause does not bar the government from alleging those non-statutory aggravating factors again at Sampson’s new penalty-phase proceeding.
IV.
The order of the district court is affirmed.
The term "appeal” hereinafter refers to Sampson's arguments before this court generally, including his arguments for granting mandamus and his arguments on the merits.
This reproduces the sequence and labeling of Sampson decisions in Sampson V, 724 F.3d at 154, and adds Sampson V to that sequence.
Alternatively, the government may prove that the defendant engaged in espionage or treason. See id. § 3591(a)(1).
Specifically, for both Count 1 ("Carjacking Resulting in the Death of Philip McCloskey”) and Count 2 ("Carjacking Resulting in the Death of Jonathan Rizzo”), the jury checked "1 or More Jurors Say No” on the special verdict form in response to the following two non-statutory aggravating factors (represented here by the Count 1 factors): Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, murdered Philip McCloskey for the sole or primary purpose of preventing him from reporting the attempted theft of his automobile to authorities? Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of prison officials and inmates as demonstrated by his history of prison misconduct?
See In re Justices of Superior Court Dep't of Mass. Trial Ct., 218 F.3d 11, 16 (1st Cir. 2000) (advisory mandamus appropriate because the "availability of pretrial federal habeas relief for ‘disinterested prosecutor' claims [was] an issue of first impression” implicating "greater issues of federalism”); Horn, 29 F.3d at 770 (advisory mandamus appropriate for the question of whether sovereign immunity bars federal court’s order of attorneys’ fees and costs against government in criminal case because "[t]he issue presented ha[d] never before been squarely decided”); In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (advisory mandamus warranted to decide "novel and important” question of press access to jury list (quoting In re Globe Newspaper Co., 729 F.2d 47, 50 (1st Cir. 1984))).
This court also has pending the appeal in United States v. Tsarnaev (No. 16-6001), another death-penalty case.
Sampson also argued to the trial court that the future dangerousness factor was unconstitutionally unreliable and vague, and that the law of the case barred relitigating future dangerousness and murder to obstruct justice. Those issues are not before this court.
Sampson argues that Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), “indicates” that a lower court may depart from controlling Supreme Court precedent when it addresses “issues implicating the Eighth Amendment.” Whatever Roper's implications for stare decisis in the Eighth Amendment capital punishment context — an issue we do not address today — we know of no support for such a proposition in the context of the Double Jeopardy Clause, and Sampson provides none.
One might wonder why, if a Fifth Amendment Double Jeopardy Clause argument that there was an acquittal on the merits fails, as a matter of logic there is still a double-jeopardy claim available to make. No party makes an issue of this and both accept the analytical structure presented by Sampson, so we have done so as well. We conclude that Bies, Sattazahn, and Poland resolve this question against Sampson. .The district court rejected Sampson's collateral-estoppel argument on two grounds. It held that, because the penalty-phase jury's verdict was vacated for juror bias, the penalty-phase verdict does not have any preclusive effect. And it held that collateral estoppel did not apply because “the rejection of [the non-statutory aggravating factors] was not essential to the judgment of death.” Because we find the latter rationale sufficient to dispose of the issue, it is unnecessary to address the effect of the vacatur for jury bias on Sampson's collateral-estoppel argument.
Sampson argues that here, unlike in Bies, there was "every incentive” to fully litigate the non-statutory aggravating factors; that the non-statutory factors must be proven beyond a reasonable doubt under the FDPA, unlike the Ohio mitigating factors at issue in Bies; that the appeal in Bies, unlike Sampson's, “was governed by the limitations on federal habeas review of state judgments”; and that Bies involved a "second run at vacating [the defendant’s] death sentence,” 556 U.S. at 834, 129 S.Ct. 2145 (quoting Bagley, 535 F.3d at 531 (Sutton, J., dissenting from denial of rehearing en banc)), and "not an effort by the State to retry him or to increase his punishment,” id. The government correctly notes that none of these distinctions is material to the collateral-estoppel principles articulated by the Bies Court and the Second Restatement of Judgments.
The government admitted at oral argument that as a matter of logic its position is that a sentencing jury's determinations on non-statutory aggravating factors can never be essential to the judgment in an FDPA case, because non-statutory aggravating factors are neither necessary to nor sufficient for the imposition of the death penalty under the FDPA.