In United States v. Mikhel, --- F.3d ---, Case No. 07-9908 (9th Cir. 2018), the Court affirmed the defendants' convictions and death sentences under the Federal Death Penalty Act.
This is a rare federal death penalty case (not a 2254 from state court).
The opinion is 121 pages. I'm not going to summarize it. Instead, below is the summary cut and pasted from the Ninth Circuit.
Guilt Phase
The panel reaffirmed that the Hostage Taking Act does not require proof of a nexus to international terrorism. The panel held that the Act was a valid exercise of Congress’s power under the Necessary and Proper Clause together with the Treaty Power, and rejected as unavailing the defendants’ independent Tenth Amendment challenge.
The panel rejected as meritless the defendants’ argument that even if the Act does not itself exceed Congress’s power, the subsequent amendment authorizing the death penalty exceeded Congress’s power. The panel held that the defendants’ motion for recusal of the district judge was untimely and fails on its merits.
Affirming the district court’s rejection of the defendants’ Batson challenge to the government’s peremptory strike of a juror, the panel held that the defendants did not meet their burden of demonstrating race was a substantial motivating factor.
The panel held that the district court committed no error in empaneling an anonymous jury.
The panel held that the district court did not violate the defendants’ Sixth Amendment right to a public trial by excluding from the courtroom a person who was observed behaving in an intimidating manner.
The panel held that the district court did not err in using this circuit’s model reasonable-doubt jury instruction in the guilt phase.
The panel explained that the purpose of 18 U.S.C. § 3005, under which a capital defendant has the right to two counsel, is not undermined by one attorney’s de minimis absence from trial, and that any error stemming from the three-day absence from trial of one of Mikhel’s attorneys was harmless. The panel held that the district court’s denial of Kadamovas’s motions for a continuance to allow one of his attorneys more time to prepare did not violate § 3005, and that any technical error would be harmless.
The panel held that the district court did not abuse its discretion in excluding as irrelevant testimony of a person who, without repercussion, committed perjury as a cooperating witness in a different case.
The panel held that the district court did not plainly err by failing to hold a competency hearing sua sponte at the outset of trial, at the end of the guilt phase, and during the penalty phase.
The panel rejected Kadamovas’s claim that under Bruton v. United States Mikhel’s testimony and refusal to be cross examined violated Kadamovas’s Sixth Amendment Confrontation Clause rights. The panel wrote that because Mikhel’s testimony did not facially incriminate Kadamovas, the testimony did not trigger the Bruton rule, and it must be assumed that the jury followed the district court’s instruction to disregard Mikhel’s testimony. The panel concluded that any error in this regard was harmless.
The panel held that the district court did not abuse its discretion in denying Kadamovas’s motions for complete severance of his case from Mikhel’s or in denying his requests for sequential penalty phases.
Rejecting Kadamovas’s evidentiary challenges to his conviction for conspiracy to escape, the panel held (1) that the district court did not err under Fed. R. Evid. 608(b) or the Confrontation Clause in limiting the defense’s cross examination of a cooperating witness; and (2) that the erroneous admission of a letter that was inadmissible hearsay was harmless.
The panel held that the record supports the district court’s determination that there was no pattern of Kadamovas being denied computer access to review discovery materials as contemplated by a stipulation with the government.
Penalty Phase
The panel held that the district court did not plainly err by using this circuit’s model reasonable-doubt jury instruction in the penalty phase.
The panel rejected the defendants’ contention that the Eighth Amendment and the Federal Death Penalty Act only permit evidence of a victim’s personal characteristics in penalty proceedings to the extent they influenced, and thus reveal something about, the relationship the victim had with his or her family. The panel held that the district court did not commit plain error in failing to exclude evidence of a victim’s religion in the context of his commitment to his family and celebration of life.
The panel rejected some of the defendants’ contentions as to the propriety of the government’s remarks in penalty-phase closing arguments, but agreed with the defendants that the government should not have compared prison life to the victims’ deaths. On plain error review, the panel held that the latter statements did not so affect the jury’s ability to consider the totality of the evidence fairly that it tainted the verdict and deprived the defendants of a fair trial.
Assuming without deciding that there was error in the district court’s jury instruction and verdict form on the nonstatutory aggravating factor of future dangerousness, the panel held that any error was harmless.
The panel rejected the defendants’ claim that the government commented on their failure to testify at trial in violation of their Fifth Amendment rights under Griffin v. California.
Regarding Kadamovas’s contention that the government, in questioning a witness, appealed to ethnic prejudice in violation of Kadamovas’s Fifth Amendment right to a fair trial, the panel held that there was no plain error.
The panel held that the district court did not abuse its discretion in excluding an interview with Mikhel’s exgirlfriend, offered as mitigating evidence. The panel held that the district court did not abuse its discretion in excluding a portion of an interview with Mikhel’s cousin whose plea for mercy was essentially an opinion about what the jury’s verdict should be.
The panel held that the jury could have reasonably relied on the government’s guilt-phase evidence to conclude that Kadamovas presented a risk of future dangerousness beyond a reasonable doubt.
The panel held that the district court did not abuse its discretion in admitting an antique dagger with swastikas on the handle, and did not commit plain error by admitting testimony that Kadamovas referred to the victim as a “fat Jew.”
The panel rejected Kadmovas’s argument that the jury’s failure to find the mitigating factor that he had no prior criminal record demonstrates that it disregarded its statutory obligation to consider mitigating factors and therefore rendered an arbitrary verdict. The panel explained that the jury was not required to find any mitigating factor, and held that the jury’s failure to find that Kadamovas had no prior criminal record was reasonable.
