United States Court of Appeals For the First Circuit

No. 04-6001

UNITED STATES OF AMERICA,

Appellee,

v.

GARY LEE SAMPSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Selya, Lynch and Lipez, Circuit Judges.

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.

May 7, 2007 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 pathbreaking 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

(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,

(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,

(D. Mass. 2004) (Sampson IV); United States v.

Sampson,

(D. Mass. 2004) (Sampson III); United

-2- States v. Sampson,

(D. Mass. 2003) (Sampson II);

United States v. Sampson,

(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,

, and McCloskey v. Mueller,

(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

-3- 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 Abington, 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, William Gregory picked up Sampson, who was

hitchhiking, near West Bridgewater, Vermont. Sampson attempted to

force Gregory at knifepoint onto a dirt road so that he could tie

him to a tree and steal his car. Gregory, however, pulled into a

rest area and escaped on foot. Sampson made off with Gregory's

car. Later that day, he broke into a home near the Killington ski

-4- area. He then called 911 and offered to turn himself in for

carjacking Gregory 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,

(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,

(2002), and then served a notice of intent to seek the death

penalty, see

(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

§

3593(b)(2)(A); see also United States v. Green,

, 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

-5- 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,

(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,

. 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.

-6- 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,

;

Sampson I,

. 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,

(1st Cir. 2000); see also United States v. Marenghi,

(1st Cir. 1997). Statutes duly enacted by Congress are

presumed to be constitutional. INS v. Chadha,

(1983). Thus, the burden of proving that the FDPA is

unconstitutional is on the challenger (here, Sampson). Lujan v. G

& G Fire Sprinklers, Inc.,

(2001). Last — but

-7- 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.,

(1989). With these principles in mind, we turn to

Sampson's constitutional claims.

A. Ring-Related Claims.

We begin with Sampson's multi-faceted 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."

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

(a)(2), 3593(b), and that at least one statutorily

-8- defined aggravating factor exists, see

§§ 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(c)-(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,

(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."

at 648 (quoting

Hildwin v. Florida,

(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

.

-9- The Supreme Court first cast doubt on Walton in Jones v.

United States,

(1999). There, the Court considered

, the carjacking statute involved in this case, and

held that the statute created three separate offenses. See Jones,

. 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

. In reaching these

conclusions, the Jones Court distinguished the sentencing factors

upheld in Walton. See

.

The next Term, the Court held that any fact that

increases the maximum authorized 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,

, 494 n.19 (2000).

Finally, in 2002 the Court explicitly overruled Walton.

See Ring,

. 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

-10- 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,

(11th Cir. 2006), cert. denied,

(2007); United States v. Allen,

(8th Cir. 2005),

cert. denied,

(2006); United States v. Barnette,

(4th Cir. 2004), vacated on other grounds,

(2005); United States v. Robinson,

(5th

Cir. 2004); cf. United States v. Collazo-Aponte,

, 324-

25 (1st Cir. 2002) (rejecting a facial challenge to

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.

-11- 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,

(5th Cir. 2002); Cannon v. Mullin,

(10th Cir. 2002); United States v. Warden,

(8th Cir. 2002); United States v. Sanchez-Cervantes,

(9th Cir. 2002); McCoy v. United States,

, 1257 n.16 (11th Cir. 2001); see also Sepulveda v. United

States,

(1st Cir. 2003) (treating Apprendi as

having announced a rule of criminal procedure); United States v.

McAllister,

(4th Cir. 2001) (holding, in the

context of a constitutional challenge to

, 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."

n.6.

-12- 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,

(1968), on which Sampson relies.1 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.

. 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.

. 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.

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."

.

This case, however, does not require us to "create from

whole cloth a complex and completely novel procedure." As the

1 As best we can tell, no court of appeals considering the constitutionality of the FDPA post-Ring has discussed Jackson.

-13- district court perspicaciously noted, see Sampson I,

, the role of the grand jury in charging the elements of

an offense has long been established. See, e.g., Hamling v. United

States,

(1974) (ruling on a challenge to the

sufficiency of an indictment); Russell v. United States,

(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,

(1971), and United States v. Booker,

(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.

. 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."

.

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.

. Instead,

the Court severed from the guidelines the provision making

mandatory the effect of sentencing factors not found by a jury.

. To do otherwise, it held, "would [have] so

transform[ed] the scheme that Congress created that Congress likely

-14- would not have intended the Act as so modified to stand."

.

The statutes in question in Blount and Booker, like the

statute in Jackson, were incompatible with constitutional

requirements. See

; Blount,

. 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.2

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

2 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.

-15- unconstitutional. Sampson centers this argument around Furman v.

Georgia,

(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.

(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

-16- the discretion exercised by juries be guided so as to limit the

potential for arbitrariness. Thus, in Gregg v. Georgia,

(1976), the Court, upholding the revised Georgia capital

sentencing statute, described Furman as "mandat[ing] 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."

(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,

(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,

, 312 n.35 (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.

-17- 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

A t t o r n e y s ' M a n u a l § 9 - 1 0 . 0 0 0 ,

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/10m

crm.htm.3 The process, therefore, is not arbitrary. See Gregg,

.

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,

(1982), in which the

Supreme Court stated that "capital punishment [must] be imposed

fairly, and with reasonable consistency, or not at all."

at

3 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_reading_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.

-18- 112. 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."

n.28.

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.

-19- 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,

(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,

(1973) (citing cases).

Because there is no Supreme Court precedent directly on

point and because "death is . . . different," Gardner v. Florida,

-20-

(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.4

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 non-whites. Similarly, between 1995 and 2000, only

4 Sampson also argues that he has a statutory right under

(f) to "justice without discrimination" that was violated by the discrimination inherent in the federal capital sentencing scheme. The district court complied with

(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.

-21- 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.

(stating that "to prevail under the Equal Protection

Clause, [a defendant] must prove that the decisionmakers in his case

acted with discriminatory purpose").5 It applies here: because

Sampson has presented no specific evidence of purposeful

discrimination either against himself or against those southern and

5 In McCleskey, the Supreme Court rejected a capital defendant's claim that systemic statistics demonstrated discriminatory intent in his particular case. See

. 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,

n.15 (noting that "decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations").

-22- 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. . . . [O]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.

(second alteration in original) (citation omitted)

(quoting Singer v. United States,

(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

-23- 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,

(S.D.N.Y.), rev'd,

(2d Cir. 2002).6 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

6 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

(opinion of Stewart, Powell, and Stevens, JJ.);

(opinion of White, J., joined by Burger, C.J., and Rehnquist, J.); see also Marsh,

(rejecting the proposition that "the death penalty can only be just in a system that does not permit error").

-24- Marshall and Brennan explicitly recognized that the risk of executing

the innocent is inherent in capital punishment. See

(Marshall, J., concurring);

(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,

(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.

. The Court noted that

"[c]laims 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."

. 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.

. 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

-25- 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,"

,

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.

.

This is entirely consistent with the Court's opinion in

Chapman v. United States,

(1991), which prevents

inferior federal courts from holding capital punishment per se

violative of due process. See

. 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.

(citations omitted); see United States v. Inglesi,

(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

-26- 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,

(opinion of

Stewart, Powell, and Stevens, JJ.);

(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,

; 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.

-27- 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."

(opinion of Stewart, Powell,

and Stevens, JJ.); see

(opinion of White, J., joined by

Burger, C.J., and Rehnquist, J.); accord Roberts v. Louisiana,

(1976) (opinion of Stewart, Powell, and Stevens, JJ.);

(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.

-28- 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,

(1st Cir. 1998); United States v. Alzanki,

(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,

, 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

-29- 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.

-30- 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

-31- proceed, if necessary, to examine its structure and surrounding

provisions. See Green,

.

The relevant section of the FDPA,

(e),

which we set out in the margin,7 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."

§ 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.

7 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."

(e).

-32- 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,

(1994); Zant v. Stephens,

(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,

(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,

(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,

(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

-33-

(e), but it does reference the reasonable doubt

standard in two proximate sections, see

§§ 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,

, 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 cases,

see, e.g., Booker,

; Blakely v. Washington,

(2004); Ring,

; Apprendi,

,

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

. The case at hand is different in kind because, under

-34- 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

(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,

(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,

(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,

(2006);

see also Ford v. Strickland,

(11th Cir. 1983); Gray

v. Lucas,

(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

-35- 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,

(1990); see also Jones v. United

States,

(1999). Under this approach, a defendant

cannot rely solely on how a single hypothetical juror might have

interpreted a challenged instruction. See Boyde,

(noting the "strong policy against retrials . . . where the claimed

error amounts to no more than speculation").8 After careful

assessment of the instructions as a whole, we reject Sampson's

8 Sampson urges us to apply, instead of Boyde, either the standard formulated by the Supreme Court in Mills v. Maryland,

(1988), or that announced in Stromberg v. California,

(1931). Mills is obsolete; the Supreme Court reformulated that standard in Boyde,

. 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.

. But this principle applies only where an instruction is "concededly erroneous." Boyde,

. 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.

-36- 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,

. 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 vis-à-vis the weighing process (which, as we have held,

-37- 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.9

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

(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,"

§ 3592(c)(6); that McCloskey was "particularly

vulnerable due to . . . infirmity," id. § 3592(c)(11); 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.

9 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,

. 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.

-38- 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)(11). In this case, the government

contended that Phillip McCloskey was a vulnerable victim. After

finding the evidence sufficient to support a vulnerable victim

instruction vis-à-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

-39- 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,

(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

(c)(11). By contrast, other

statutory aggravating factors contain explicit scienter

requirements. See, e.g.,

§ 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

-40- 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,

. Second, the factor must provide a principled basis for

distinguishing between those who deserve capital punishment and those

who do not.

. 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.10 See United States v.

10 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 III(D)(2), the outcome here is consistent with his views.

-41- Bourgeois,

(5th Cir. 2005), cert. denied,

(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,

(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

(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,

(1987) (explaining that a

criminal sentence must be "directly related to the personal

-42- culpability of the criminal offender"); Enmund v. Florida,

(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.

. The Court

reasoned that the punishment was disproportionate to the conduct and,

thus, violated the Eighth Amendment.

.

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. 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 implausibility

of Sampson's attempted application of these cases to an aggravating

factor is underscored by the fact that the Supreme Court implicitly

-43- 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,

(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

(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.

-44- "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

-45- 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. Victoria-Peguero,

(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

-46- qualification is that a court "need not give instructions in the

precise form or language requested by the defendant." United States

v. Beltran,

(1st Cir. 1985). An instruction suffices

as long as it substantially covers the essence of the defendant's

request. United States v. Noone,

(1st Cir. 1990);

United States v. Morris,

(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,

,

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.

-47- Sampson's claim of unconstitutional vagueness also

falters. As discussed above, an aggravating factor must provide

adequate guidance to the sentencer. See Arave,

.

This requirement is satisfied when the factor, as expressed,

furnishes a commonsense core of meaning that a factfinder can

understand. See Jones,

(plurality opinion);

Tuilaepa,

. The delineation of an aggravator is a

legislative judgment, see Tuilaepa,

, and judicial

review of such judgments is "quite deferential."

.

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,

(1988) (analyzing Oklahoma's

"especially heinous, atrocious or cruel" aggravator); Godfrey v.

Georgia,

(1980) (evaluating Georgia's

"outrageously or wantonly vile, horrible and inhuman" aggravator).

But such concerns can be ameliorated by a narrowing construction.

See Maynard,

; Godfrey,

. 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

-48- at 511; United States v. Chanthadara,

(10th Cir.

2000); United States v. Paul,

(8th Cir. 2000).

This factor avoids facial vagueness by requiring that the

offense involve serious physical abuse or torture. See Maynard,

(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

commonsense core of meaning. See Walton,

(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.11

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,

(La.

1980); Domingues v. State,

(Nev. 1996); State

v. Hunt,

(N.J. 1989). These decisions do not

dictate a result favorable to Sampson in this case. While they

11 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.

-49- 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,

.

The FDPA requires that the adjectives "heinous," "cruel,"

and "depraved" all be defined in terms of serious physical abuse or

torture. See

(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

-50- appropriate sentence. Jurors are normally presumed to follow the

trial court's instructions. See Jones,

. 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,

(1980). We normally review a trial court's for-cause dismissal of

a juror for abuse of discretion. See United States v. Gonzalez-

Soberal,

(1st Cir. 1997). This standard of review

applies equally in capital cases. See Wainwright v. Witt,

(1985) (noting that "deference must be paid to the trial

judge who sees and hears the juror"); see also Purkey,

.

-51- 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

himself/herself 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,

(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

In this instance, the

-52- 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

-53- 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

-54- 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,

("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

-55- 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,

(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. Paniagua-Ramos,

(1st Cir. 2001).

Consequently, we review both the district court's handling of such

allegations and its ensuing determinations for abuse of discretion.

See

.

-56- 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,

(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,

(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,

(1st Cir. 2003); United States

v. Snyder,

(1st Cir. 1998).

-57- 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,

(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,

(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,

(1st Cir.

2005).

With this framework in place, we turn to Sampson's

specific claims of error.

1. Crime Scene/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

-58- 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."

(c). This language is

similar, but not identical, to the language of Federal Rule of

Evidence 403.12 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.

12 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."

-59- 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,

(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).

-60- 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,

(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

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,

.

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

-61- jury. We are left without any principled basis for finding that the

court abused its discretion in regard to this evidence.13

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,14

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."

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

13 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. 14 The term "non-statutory aggravating factor" is used to "refer to any aggravating factor that is not specifically described in

." Jones,

n.2. While only the finding of a statutory aggravating factor can render a defendant death-eligible, the jury may consider non-statutory aggravating factors in deciding whether a sentence of death is appropriate. See

(c)-(e).

-62- 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,

. 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

-63- record or on the circumstances of the offenses at issue. See

(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,

(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 Purkey,

(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,

(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

-64- 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 IV,

.

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

-65- and that its introduction would create a high risk of juror

confusion, the district court had ample reason to exclude it. See

(c).15

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.16 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,

, nor the requirement that an aggravating factor rationally

distinguish "those who deserve capital punishment from those who do

not," Arave,

.

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

15 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. 16 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 aggravators. Sampson makes no specific complaint about the singular handling of the fifth (unarmed) robbery, which the court instructed the jury to disregard.

-66- U.S.C. § 3593(e). A non-statutory aggravating factor need only

"direct the jury to the individual circumstances of the case."

Jones,

(plurality opinion); see also Tuilaepa,

(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,

(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.

(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 non-traditional in nature. It does not relate to the

admission or exclusion of evidence per se but, rather, to the

-67- 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,

(1991). For another thing,

Congress has embedded the right of victims' families to attend an

accused murderer's trial in federal law. See

(b);

(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,

(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,

(1st Cir.

2004).

In this case, the district court exhibited great

sensitivity to the volatility of the issues and took a number of

-68- 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

; see also United States v. Benedetti,

(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.)

-69- 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.17

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,

(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

17 Sampson's invocation, by way of Federal Rule of Appellate Procedure 28(j), of the concurrences in Carey v. Musladin,

(2006) (Stevens, Kennedy, and Souter, JJ., concurring), does not alter our analysis. He cites the statements contained therein as indicia 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.

-70- reasonable inferences and resolving credibility questions in its

favor. See United States v. Lara,

(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,

(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 III(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

-71- 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,

(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.

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

-72- 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,

, 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

-73- assailant than the average person. See United States v. Gill,

(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,

(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,

(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

. In Francis v. State,

(Fla.

2001), the only evidence of vulnerability was that the otherwise

healthy victims were 66 years of age. See

. 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

-74- 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

(c)(11).

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.18

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

18 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 II(C)(1), fully disposes of the claim that the district court erred in denying this aspect of Sampson's motion for a new trial.

-75- F.3d 96, 101 (1st Cir. 2006); United States v. Wilkerson,

(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,

(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

-76- 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,

.

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,

. In light of that finding — which is borne

-77- out by the record — the district court had no choice but to honor

the jury's determination. See United States v. Rothrock,

(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.

-78- 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

-79- 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,

(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."

(c)(1). Having assiduously

performed that examination, we find no sign that any such factors

contributed to Sampson's sentence.

-80- 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,

(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.

-81-