At a stated term of the United States Court of Appeals for the Second 7 Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 8 Pearl Street, in the City of New York, on the 19th day of October, two thousand 9 ten.
29 Following disposition of this appeal on June 30, 2010, 30 an active judge of the Court requested a poll on whether to 31 rehear the case in banc. A poll having been conducted and 32 there being no majority favoring in banc review, rehearing 33 in banc is hereby DENIED.
CATHERINE O'HAGAN WOLFE, CLERK
DEBRA ANN LIVINGSTON, Circuit Judge, with whom Judge CABRANES, Judge RAGGI, and Judge WESLEY join, dissenting:
The facts in this case are as straightforward as they are heartbreaking. Ronell Wilson, a violent gang member who favored the nickname "Rated R," shot and killed two undercover police officers at point blank range, murdering the first without warning, and the second even as the young officer, a father of three, pleaded for his life. Wilson did so because, in his own words, he "don't give a fuck about nobody." The bodies were unceremoniously searched and then dumped in the street. Two days after the wanton executions of Detectives Rodney Andrews and James Nemorin, Wilson was arrested and was found to be carrying rap lyrics he had authored - lyrics that celebrated the gun violence of "Rated R," appeared to brag of his recent murders, and, indeed, promised to continue committing such crimes until "I'm dead."*fn1
A properly empaneled jury described by the district court as "among the most attentive and serious [it] had ever seen," heard and evaluated weeks of evidence before returning guilty verdicts on five capital counts. These jurors then absorbed another nine days of testimony at a penalty phase involving some forty witnesses and spanning nearly 1,800 transcript pages. On that record, the jury unanimously found that six aggravating factors - including killing for pecuniary gain, killing multiple people in a single incident, and killing a law enforcement officer in the course of duty - had been established beyond a reasonable doubt. The jurors also found that Wilson had established thirteen of the eighteen mitigating factors on which he relied, as well as finding a fourteenth - that Wilson "was possibly subject to peer pressure" - on their own. No juror concluded, however, that Wilson felt remorse for his crimes. Nor did any juror find that he had accepted responsibility for them, rejecting Wilson's claims to that effect made in an unsworn, uncrossed statement that he was permitted to read to the jury from the defense table. Having been instructed "to make a unique, individualized judgment about the appropriateness of imposing the death penalty" and that "no jury is ever required to impose the death penalty," the jury imposed five capital sentences on Wilson.
Despite the impeccable record developed below and the careful and conscientious work of the district court and the jury, a divided panel of this Court vacated these capital sentences, discerning Fifth and Sixth Amendment error in a handful of words buried in the government's summation. For the reasons amply set forth in my dissent, I believe the panel majority's Fifth and Sixth Amendment holdings were not only in error but that they are in profound tension, if not direct conflict, with the law of this Court, a sister Circuit, and the Supreme Court. See United States v. Whitten, 610 F.3d 168, 205-17 (2d Cir. 2010) (Livingston, J., concurring in part and dissenting in part).
The errors in the panel majority's analysis, moreover, have not only resulted in the unjustifiable rejection of sentences that were properly imposed for grave and merciless crimes. If left uncorrected, they threaten to needlessly complicate both the proper conduct of death penalty phase litigation in this Circuit and elsewhere, as well as the orderly adjudication of criminal liability more generally. I therefore respectfully dissent from the denial of rehearing en banc.
The majority held that Wilson's Sixth Amendment right to stand trial was violated when the government argued - albeit fleetingly - in the penalty phase that Wilson's belated claim of "accept[ance] of responsibility," which he asserted as a mitigating factor, was not credible given that it came only after the jury's guilty verdict.*fn2 As more fully discussed in my principal dissent, this holding is in direct conflict with our prior holding in United States v. Fell, 531 F.3d 197, 218-21 (2d Cir. 2008), and the Seventh Circuit's decision in United States v. Mikos, 539 F.3d 706 (7th Cir. 2008), and is in considerable tension with the Supreme Court's analysis in Portuondo v. Agard, 529 U.S. 61, 67-68 (2000). The majority simply disregarded Portuondo despite the fact that: (1) it is the only case in which the Supreme Court has addressed the question of whether a prosecutor's comment in summation on the exercise of a defendant's Sixth Amendment rights can be said to unconstitutionally penalize that exercise; and (2) the Portuondo analysis and outcome are directly contrary to the majority's. Resolving the conflicts the majority opinion creates is, in and of itself, reason for the full Court's consideration of the Sixth Amendment issue.
In Fell, this Court found no error in the government's argument, during the penalty phase, that Fell's assertion of acceptance of responsibility as a mitigating factor was not credible in light of the fact that Fell had chosen to go to trial. There, Fell introduced a stipulation that he had offered to plead guilty in exchange for a life sentence to support his claim that he had accepted responsibility for his crimes. We found no error in the government's statement that, "Ladies and gentlemen, we had to try to convict him. If [Fell] wanted to plead guilty, he could have pled guilty." Fell, 531 F.3d at 218. Here, Wilson in effect testified - albeit without taking the stand - that he ...