The opinion of the court was delivered by: Catherine O'hagan Wolfe
REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge PARKER, Judge WESLEY, and Judge LIVINGSTON join, concurring.*fn1 CALABRESI, Circuit Judge, dissenting from the denial of rehearing. POOLER, Circuit Judge, Dissenting from denial of rehearing in banc.
Defendant-Appellant Donald Fell, having filed a petition for panel rehearing or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel rehearing, and the active members*fn2 of the Court having considered the request for rehearing en banc, IT IS HEREBY ORDERED that the petition is DENIED. See Fed. R. App. P. 35(a).
Pursuant to Second Circuit Local Rule 0.28(7)(d), an automatic stay of execution of the sentence of death has been in place as of the date of the filing of the notice of appeal from the judgment of conviction, and remains in effect (unless vacated or modified) until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.
Accordingly, the issuance of the mandate is held until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.
With this Order, Judge Raggi is filing a concurring opinion, in which Chief Judge Jacobs and Judges Cabranes, B.D. Parker, Wesley, and Livingston join; Judge Calabresi is filing a dissenting opinion; Judge Pooler is filing a dissenting opinion; and Judge Sack is filing a dissenting opinion.
REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge PARKER, Judge WESLEY, and Judge LIVINGSTON join, concurring:*fn3
On November 26, 2002, in Rutland, Vermont, Donald Fell and Robert Lee viciously stabbed to death Fell's mother Debra and her companion Charles Conway. Early the next morning, the killers went to a local mall where they kidnapped Teresca King, a 53-year old convenience store clerk arriving for work, and stole her car to make their escape from the state. After driving several hours and crossing into New York State, Fell and Lee stopped in a wooded area where they forced King out of the car and brutally beat her to death.
Of the three murders committed by Fell on November 26-27, 2003 -- two in Vermont and one in New York -- only the New York murder qualified as a capital crime under federal law because it originated with an interstate kidnapping and carjacking. See 18 U.S.C. §§ 1201(a)(1) (capital kidnapping), 2119(3) (capital carjacking). In short, Teresca King's murder was no local crime. It implicated real and significant federal interests because it was achieved by transporting the victim across state lines.*fn4 Accordingly, Fell was indicted by a federal grand jury sitting in the District of Vermont for the capital crimes of kidnapping and carjacking resulting in Teresca King's death in New York. In June 2005, a federal petit jury in Vermont found Fell guilty of these crimes and, in July, the same jury unanimously voted that he should be sentenced to death.
In a detailed opinion, a panel of this court rejected Fell's challenge to that sentence and affirmed the judgment of conviction. See United States v. Fell, 531 F.3d 197 (2d Cir. 2008). Today, the court denies en banc review of this appeal. I join in that decision, and I write now only to respond to certain points raised by my colleague Judge Calabresi in his dissent from the denial of rehearing en banc.
At the outset, I note my agreement with the dissent's characterization of the trial court's conduct in this difficult case as "nothing short of exemplary" and of the panel opinion as "exceedingly careful" in its discussion of the various sentencing challenges raised by Fell. Post at . Similarly, I agree that Fell's specific claims of error in the district court's (1) removal for cause of Juror 64, and (2) refusal to admit a draft plea agreement at the penalty phase of the trial, fail under the "traditional rules" established by Supreme Court precedent. Post at [3, 8]. Where I cannot agree with the dissent is in its suggestion that en banc review is needed to consider the possibility that something more than these traditional rules is necessary to address "federalism" concerns not raised by Fell either in the district court or on direct appeal: specifically, (1) whether a district court selecting a federal capital jury in a state - such as Vermont - that does not itself provide for the death penalty, must somehow take that fact into account in deciding whether to excuse jurors who express opposition to the death penalty; and (2) whether, in mitigation of sentence, a jury must be allowed to hear that the United States Attorney in the venue state had, at one point, been willing to enter into a plea agreement that provided for a non-capital disposition of the case. I respectfully submit that these "federalism" concerns are more imaginary than real and do not warrant our en banc consideration.
I. The Dissent's Jury Selection Concern
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const, amend VI. In Fell's case, there is no question that each and every juror who voted to impose the death penalty was a resident of the State and District of Vermont. Nor is there any question as to the impartiality of these jurors.
The dissent nevertheless urges us to consider en banc whether federalism principles require us to construe the Sixth Amendment vicinage requirement to demand not only that a federal criminal jury be drawn from the relevant state and district, but also that its members somehow represent the local "values" of that vicinage. Specifically, the dissent interprets Vermont's lack of death penalty legislation as evidence that "presumably a large portion of the population . . . is opposed to the death penalty." Post at [3-4]. It submits that a proper respect for federalism might require a federal judge, in selecting a capital jury in such a state, to be "attuned to whether the jury members (and not just the jury pool . . .) -- though willing to follow the law -- are also representative of a state's overall opposition to the death penalty." Post at . The dissent suggests that we consider en banc whether to remand this case "to ask the able District Judge whether, in striking Juror 64, he fully considered the constitutional relevance of the values of Vermonters, the values of the jurisdiction in which he sat." Post at . Respectfully, I think no such en banc review, much less such a remand, is warranted in this case.
A. Juror 64's Voir Dire Responses Made It Appropriate To Remove Her Regardless of Vicinage
The above-quoted issue that the dissent proposes for en banc review relies on a critical assumption: that the juror under consideration, though opposed to the death penalty, was nevertheless "willing to follow the law." Post at . If that were true, we would hardly need to convene en banc to address the dissent's federalism theory because the Supreme Court has already made clear that the removal of such a juror constitutes reversible error. See Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1967). In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the Court ruled that opposition to the death penalty is not enough, by itself, to support a prospective juror's removal for cause. See id. at 522. Thereafter, in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the Court held that, in a capital case, removal for cause based on a prospective juror's views about the death penalty is warranted only where the court forms "a definite impression" that "the juror's views would prevent or substantially impair" the juror's "performance of his duties . . . in accordance with his instructions and his oath." Id. at 424-26 (internal quotation marks omitted); see United States v. Fell, 531 F.3d at 210 (discussing Supreme Court precedent regarding capital jury selection).
This case, however, does not fall within the dissent's paradigm. The juror referred to by the dissent -- Juror 64 -- failed to demonstrate under Witt-Witherspoon and their progeny that she was willing to follow the law despite her personal objection to the death penalty. As the Supreme Court explained in Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986), "those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." Id. at 176 (emphasis added). The panel opinion demonstrates that Juror 64 made no such clear statement: "[t]hroughout the district court's painstaking and thoughtful voir dire, Juror 64 walked a fine line between her opposition to the death penalty and her willingness to follow the district court's instructions." United States v. Fell, 531 F.3d at 213. This is not to fault the juror. A juror's experiences, beliefs, and values may sometimes make it difficult for the juror to know, much less to state clearly or confidently, whether she will be able to set aside her own beliefs in deference to the rule of law. In such circumstances, a district court appropriately relies on its voir dire experience and its unique ability to observe the prospective juror during questioning to assess whether the juror will be able faithfully and impartially to apply the law. See Wainwright v. Witt, 469 U.S. at 426; see also United States v. Quinones, 511 F.3d 289, 301-02 (2d Cir. 2007) (discussing Supreme Court cases according deference to district court's assessment of partiality where prospective juror's voir dire responses are ambiguous: "the more ambiguous a prospective juror's responses, the more useful demeanor, and thus oral inquiry, become in allowing a trial judge to identify partiality warranting removal for cause").*fn5
The able district judge, after extensive questioning, formed a definite impression that Juror 64 could not satisfy the Witt-Witherspoon standard for impartiality. Moreover, the appellate panel, although limited in its review to the cold record, reached the same conclusion. See United States v. Fell, 531 F.3d at 213. The Supreme Court's Sixth Amendment jurisprudence would neither have permitted the prospective juror to be seated upon such a finding nor tolerated the juror's removal on any lesser finding.*fn6
Consequently, it makes no difference that, in this case, the juror's partiality manifested itself in a non-death penalty state such as Vermont rather than a state that authorizes the death penalty. The juror was properly removed regardless of the vicinage. Accordingly, the particular challenge at issue on this appeal warrants no en banc review.
B. The Ability of a Juror Opposed to the Death Penalty To Serve on a Capital Jury Depends on a Constitutional Rule that Does Not Vary with the Vicinage
1. The Selection of Federal Juries To Hear Cases Arising Under Federal Law Does Not Implicate Federalism
I am, in any event, skeptical of the dissent's suggestion that federalism requires each state's adoption or rejection of the death penalty somehow to be factored into the selection of federal capital juries serving therein. Federalism is a principle concerned with "the constitutional distribution of power as between the Nation and the States." Staub v. City of Baxley, 355 U.S. 313, 325-26, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958) (emphasis added): accord Printz v. United States, 521 U.S. 898, 918-21, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997) (discussing federalism as concern for distribution of authority between the state and federal governments); see also, e.g., Edward Rubin, Judicial Review and the Right To Resist, 97 Geo. L.J. 61, 118 n. 154 (2008) (noting that federalism is the "division of political authority between the state and federal governments"); Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J.L. & Pub. Pol'y 991, 992 (2008) ("Federalism, properly understood, is a descriptive term attached to the Constitution's allocation of powers."); Bradford R. Clark, Translating Federalism: A Structural Approach, 66 Geo. Wash. L. Rev. 1161, 1161 (1998) ("Federalism . . . refers to the Constitution's division of powers between the federal government and the states."); Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485, 1561 n.5 (1994) (noting that federalism concerns "how authority is distributed between the political institutions of state and federal governments"). Federalism ensures "a proper respect for state functions" by limiting the exercise of federal authority when it "unduly interfere[s] with the legitimate activities of the States." Younger v. Harris, 401 U.S. 37, 44, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (discussing "[o]ur federalism" in context of abstention); accord Madeira v. Affordable Housing Found., Inc., 469 F.3d 219, 237 (2d Cir. 2006) (discussing federalism in context of preemption).*fn7
The selection of a federal jury to hear a case arising under federal law involves the exercise of exclusive federal power. It does not intrude on any state function; much less does it trench on the exercise of any state power. It poses no interference with legitimate state activities. Thus, even though the states provide one geographic boundary for the vicinage requirement of the Sixth Amendment -- with congressionally defined judicial districts providing the other boundary -- no federalism concern warrants a construction of that requirement that reaches beyond geography. Certainly, nothing in the plain language of the Sixth Amendment indicates that its vicinage requirement reaches beyond simple geography to local ideology. Nor does the Amendment's history support such a theory. The demand for a constitutional amendment specifying a local vicinage for federal trials originated in recollections of Parliament's acts permitting American colonists to be brought to England for trial. See Drew L. Kershen, Vicinage, 29 Okla. L. Rev. 801, 807 (1976) (quoting grievance in Declaration of Independence faulting King "For transporting us beyond Seas to be tried for pretend offenses"); 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1775, p. 654 (photo, reprint 1999) (Boston, Hilliard, Gray & Co. 1833) (observing that object of Sixth Amendment's vicinage clause is to prevent "accused from being dragged to a trial in some distant state"); see also Williams v. Florida, 399 U.S. 78,92-97, 90 S. Ct. 1893, 26 L. Ed. 2d 446(1970) (discussing history of vicinage clause and particularly compromise that substituted congressionally determined judicial districts for counties, as had been characteristic of common law).
To be sure, the vicinage requirement, by defining the community from which a federal jury must be drawn, permits the jury to operate as the conscience of that community in judging criminal cases. See Kershen, Vicinage, 29 Okla. L. Rev. at 842-43; see generally A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 260 (H. Mansfield & D. Winthrop transls. and eds. 2000) (observing that "the man who judges the criminal is really the master of society" (emphasis in original)). But this function of the vicinage requirement is satisfied by drawing a jury pool from a fair cross-section of the residents of the particular state and district. See generally Lockhart v. McCree, 476 U.S. at 173-74 (holding that fair cross-section requirement applies to jury pool not petit jury). Once such a pool has been drawn, the Amendment's singular concern is with ensuring the petit jury's impartiality.
The dissent's suggestion that the Sixth Amendment, viewed through the prism of federalism, requires something more, i.e., a special solicitude for local values in the selection of a federal petit jury, would, I expect, appropriately be rejected out of hand if the local "value" revealed at jury selection were opposition to the sorts of civil rights, environmental, or gun trafficking requirements that are enforced through federal criminal law in ways not always mirrored in state legislation. The dissent disagrees, submitting that while juries must follow federal law, when "issues of judgment" arise jurors may exercise that judgment in light of "local values," even when hostile to the federal law at issue. See post at [18 n.12]. Respectfully, I think the dissent may be thinking of the process of jury deliberation, not jury selection.
In the former context, values, instincts, and predilections may inform jury judgment. The law does not necessarily approve or encourage such influences. Nevertheless, a proper respect for finality -- not federalism -- dictates that "[t]he mental processes of a deliberating juror with respect to the merits of the case at hand must remain largely beyond examination and second-guessing, shielded from scrutiny by the court as much as from the eyes and ears of the parties and the public." United States v. Thomas, 116 F.3d 606, 620 (2d Cir. 1997); see Fed. R. Evid. 606(b) (precluding inquiry into the "mind or emotions" of deliberating jurors).
This rule, however, does not reach beyond the deliberation room itself. Most important, it does not alter a trial court's Sixth Amendment obligation to select a jury that can fairly and impartially apply the relevant federal law. In other words, once the nation has duly enacted federal criminal law, neither the Sixth Amendment nor federalism confers an additional right on the citizens of states that choose not to enact similar local laws to have their opposition to the federal law given special consideration in the selection of a federal jury.
This is not to deny federalism a role in federal criminal law. See post at . Certainly, federalism informed the early republic's critical decision to reject a federal common law of crimes and to require the codification of federal criminal law. See United States v. Hudson & Goodwin, 11 U.S. (Cranch) 32, 3 L. Ed. 259 (1812); see generally Kathryn Preyer, Jurisdiction to Punish: Federal Authority, Federalism and the Common Law of Crimes in the Early Republic, 4 Law & Hist. Rev. 223 (1986). Even within such a statutory scheme, federalism is appropriately considered by Congress whenever it "criminalizes conduct already denounced as criminal by the States." United States v. Lopez, 514 U.S. 549, 561 n.3, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (observing that such legislation "effects a change in the sensitive relation between federal and state criminal jurisdiction" (internal quotation marks omitted)). To the extent federalism underlies the rule that Congress may "creat[e] offenses against the United States" only pursuant to its "delegated powers," id., federalism is also reasonably understood to play a part in a court's consideration of whether Congress has exceeded those powers, see, e.g., id. at 557-68 (holding Gun-Free School Zones Act to exceed Congress's authority under the Commerce Clause).
But to play a part is not to appear in -- much less to steal -- every scene. Where, as here, there is no question as to Congress's constitutional authority (1) to proscribe interstate kidnappings and carjackings. see Perez v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971) (observing that 18 U.S.C. § 1201 was enacted pursuant to Congress's power to regulate "use of channels of interstate or foreign commerce which Congress deems are being misused"); United States v. Trupin, 117 F.3d 678, 685 n.3 (2d Cir. 1997) (collecting cases upholding § 2119 after Lopez), or (2) to prescribe a capital penalty when death results from such crimes, see generally United States v. Quinones, 313 F.3d 49, 69-70 (2d Cir. 2002) (rejecting constitutional challenges to federal death penalty), no recognized theory of federalism supports the dissent's assertion that federal petit juries must be selected in light of the particular vicinage's support for or opposition to the federal law.
The conclusion that federalism does not accord local opposition to federal law any claim to special consideration in the selection of a capital jury finds support in Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), wherein the Supreme Court ruled that, while juries must determine the "facts as they find them to be from the evidence," it is their duty "to take the law from the court." Id. at 102. This effectively ratified a view that had gained momentum in the latter half of the Nineteenth Century, i.e., that juries should not themselves act as judges of the law. See generally United States v. Thomas, 116 F.3d at 614 (collecting authorities). After Sparf, the law continued to acknowledge that, in the deliberative process, a jury had the "power" -- if not the "right" -- to nullify law by returning verdicts seemingly contrary to a court's instructions. See id. at 614-15. But, as this court observed in Thomas, because "the jury's prerogative of lenity, introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions, . . . the system of checks and balances embedded in the very structure of the American criminal trial . . . [gives rise to] a countervailing duty and authority of the judge to assure that jurors follow the law." Id. at 616 (internal citations and quotation marks omitted). In the selection of jurors in federal capital cases, Witt-Witherspoon and its progeny have established the appropriate constitutional balance between these two interests.
2. Constitutional Rules Concerning Capital Jury Selection Must Apply Equally Throughout the Nation
In selecting a federal jury in a capital case -- and in reviewing that jury selection on appeal -- courts must be ever mindful that what Witt-Witherspoon articulates is a constitutional rule for determining when jurors who oppose the death penalty may or may not be excused for cause consistent with the Sixth Amendment's guarantee of an impartial jury. Plainly, the Constitution must apply equally throughout the states. As Justice Story famously observed, "[t]he constitution of the United States was designed for the common and equal benefit of all the people of the United States." Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 348, 4 L. Ed. 97 (1816) (emphasis added). Thus, if a district court's decision to excuse a juror violates Witt-Witherspoon, it does so regardless of whether the voir dire occurred in a non-death penalty state such as Vermont, a death penalty state such as Texas, or any of the other 48 states in the Union. Indeed, I am hard pressed to know how we might explain to a capital defendant in Texas that he is entitled to any less rigorous voir dire of a potential juror who expresses opposition to the death penalty (because Texas law authorizes capital punishment) than we would insist on for a capital defendant in Vermont (because Vermont law proscribes capital punishment).
The dissent agrees that a capital jury voir dire cannot be less rigorous in one state than in another. See post at [17 n.11]. In the next sentence, it even suggests that its federalism argument is not to the contrary because "[r]ecognizing the effect of local values on what a potential juror's answer means is just that, no more and no less." Post at [17 n.11]. The dissent is careful never to specify just how a district court would go about "recognizing the effect of local values" in evaluating a juror's responses. Nevertheless, I suspect that what the dissent urges is a good deal "more" than the Witt-Witherspoon rule, the proper application of which is not challenged in this case. Otherwise there would be no need to call for a remand. Under the dissent's view of "federalism," in a non-death penalty state such as Vermont, it would not be enough to conclude, as the district court did in this case, that a person opposed to the death penalty could not serve because he failed to provide the assurance of impartiality discussed in Lockhart v. McCree, 476 U.S. at 176. Why? Because the juror's opposition to the death penalty "was simply representative of the views of Vermont." Post at . This implies that federalism requires federal courts to show more tolerance for opposition to the death penalty when voiced by potential jurors in non-death penalty states such as Vermont. I cannot agree.
Capital defendants, regardless of the state in which they are tried, have an equal constitutional right not to have an opponent of the death penalty removed for cause from a capital jury absent a proper judicial determination that the juror could not faithfully and impartially apply the relevant law. But no defendant has a right -- regardless of the "characteristics of the community where the trial is held," post at  -- to have an opponent of the death penalty serve as a juror if he cannot clearly state a willingness '"to temporarily set aside [his] own beliefs in deference to the rule of law,'" United States v. Fell, 531 F.3d at 210 (quoting Lockhart v. McCree, 476 U.S. at 176).
To the extent the dissent's invocation of federalism might be understood to suggest that the Witt-Witherspoon standard is insufficient, by itself, to satisfy the constitutional requirement that juries be "local," the point warrants little discussion. As already noted, see supra at , the Constitution's key locality requirement -- that jurors be drawn from the same state and district wherein the charged crime was committed -- was plainly met in this case. The dissent's federalism concern might therefore be better understood as a fair cross-section challenge, i.e., that the removal of certain jurors deprived Fell of a fair cross-section of Vermonters opposed to the death penalty. See Taylor v. Louisiana, 419 U.S. 522, 530, 95 S. Ct. 692, 42 L. Ed. 2d 690(1975) ("[T]he fair-cross-section requirement [i]s fundamental to the jury trial guaranteed by the Sixth Amendment."). As noted supra at , however, the law is clear that the "fair cross-section" requirement applies to the jury pool, not the petit jury. See Lockhart v. McCree, 476 U.S. at 174. The dissent does not -- and cannot -- argue that the jury pool in this case did not represent a fair cross-section of Vermonters. With that vicinage requirement satisfied, it is the Sixth Amendment's guarantee of impartiality that gives every defendant -- the Texan as well as the Vermonter -- a right not to have jurors opposed to capital punishment removed for cause as long as they satisfy the Witt-Witherspoon standard.
The dissent nevertheless appears concerned that nationwide application of the Witt-Witherspoon standard is somehow insufficient to allow Vermont residents to exercise fully their capital sentencing discretion. I am not convinced that such a problem exists. If the dissent is correct that the lack of a state death penalty indicates that a majority of Vermonters do, in fact, oppose the death penalty, those opponents will presumably represent a larger percentage of the federal venire in that state than will their counterparts in states that have enacted death penalty legislation. Precisely because, under Witt-Witherspoon, a judge cannot remove a prospective juror for cause based solely on the juror's opposition to the death penalty, it logically follows that more opponents of the death penalty will likely serve on a federal capital jury in Vermont than in states with death penalties. Indeed, that conclusion appears to find support in the second part of the dissent's opinion, which asserts that juries in states that do not have local death penalties vote for capital punishment less frequently than juries in states that do provide for such punishment. See post at [13-15]. Whether or not this is the case, Witt-Witherspoon assures a capital defendant in any state the equal right to have death-penalty opponents serve on the jury "so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." Lockhart v. McCree, 476 U.S. at 176.*fn8
C. The Eighth Amendment Does Not Support the Dissent's Vicinage Argument
There appears to be a certain inconsistency in the dissent insofar as it argues both (1) that different voir dire rules should apply to jury selection in a non-death penalty state such as Vermont because, otherwise, federal capital juries will be ineffective conduits of local values, see post at [2-8]; and (2) that juries are so effective at transmitting local values that they have made application of the federal death penalty unconstitutional because of its rarity, see post at [13-15]. With respect to the second argument, the dissent asserts that "[b]ehind all this lies a still deeper constitutional question": whether this death penalty verdict is unconstitutionally "unusual" because it was imposed in Vermont, a non-death penalty state. Post at ...