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United States v. Torrez

United States Court of Appeals, Fourth Circuit

August 28, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JORGE AVILA TORREZ, Defendant-Appellant.

          Argued: May 9, 2017

         Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O'Grady, District Judge. (1:11-cr-00115-LO-1)


          Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

          James L. Trump, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

         ON BRIEF:

          James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland; Robert E. Lee, Jr., VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant.

          Dana J. Boente, United States Attorney, Richard D. Cooke, Jonathan L. Fahey, Michael E. Rich, Assistant United States Attorneys, Robert J. Heberle, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before DIAZ, FLOYD, and THACKER, Circuit Judges.


         Jorge Avila Torrez ("Appellant") was convicted of first-degree murder and sentenced to death. In this appeal, he raises a host of challenges to his conviction and death sentence. We find the challenges to his conviction to be without merit. As for sentencing, we focus on three specific challenges: (1) whether Appellant's death sentence was unconstitutional because it was based solely on post-offense conviction aggravators; (2) whether the district court erred in failing to apply the categorical approach to state convictions that made him death penalty eligible; and (3) whether the district court erred by allowing Appellant to forego a mitigation defense without conducting a second competency evaluation and hearing. For the reasons explained below, we find no reversible error in the sentencing proceedings. Accordingly, we affirm Appellant's conviction and sentence.


         Factual Background

         We view the facts in the light most favorable to the Government, the prevailing party at trial. See United States v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 2015).


         The Murder

         On July 13, 2009, Amanda Snell was found dead in her room at Joint Base Myer-Henderson Hall, a residence hall on a military base located near Arlington, Virginia. When the 20-year-old Navy Intelligence Specialist did not show up for duty on Sunday night, July 12, two officers investigated and discovered her body in her room early the next morning. She was lying in an unnatural position at an angle on the floor of a wall locker, with her knees pressed into her torso and her feet pushed against a drawer. Her head was covered by a pillowcase and pushed down into her chest.

         The Naval Criminal Investigative Service ("NCIS") arrived at 7:45 a.m. on Monday, July 13, and began its investigation. Agents conducted a walk-through and inventory, took the temperature of the room and Snell's body, took photographs, and took impressions of shoeprints in the vinyl floor in front of the wall locker. The agents noticed that the bed was made, with only a fitted sheet and a comforter, and the room was clean. Based on the information gathered on the morning of July 13, the medical examiner believed Snell had been dead for 24 to 36 hours or more. After conducting an autopsy, the examiner listed the cause of death as "undetermined." J.A. 4099.[1] He noted there was "no recent or remote evidence of significant injury." Id. at 4101. He did note moderate dysplasia of the atrioventricular nodal artery in the heart, which "has been associated with cardiac arrhythmias and sudden death, " but he did not attribute Snell's death to this condition. Id. at 4104. The Government later retained a second medical examiner. Based on the circumstances at the scene, this second medical examiner concluded that the cause of death was asphyxia, which can occur without any visible injury.

         Appellant lived down the hall from Snell. He, like others who lived near Snell, complied with NCIS's request to complete a personal data sheet, in which he indicated that he did not know Snell and had never been in her room. He also consented to a search of his room and gave a DNA sample.


         The Arlington Crimes

         Snell's murder remained unsolved until 2010, when Appellant was arrested for other crimes in Arlington County, Virginia. On February 10, 2010, Appellant attempted to abduct and assault M.N., a 26-year-old female who was walking to her boyfriend's house in Arlington County. Appellant approached her from behind, grabbed her jacket, showed her a gun, and told her to keep quiet and keep walking. M.N. told Appellant, "[J]ust take my bag, " but he kept pushing her toward a tan Dodge Durango. J.A. 3631. He also pulled out a knife and "urge[d] [her] along to get into the car." Id. at 3634. M.N. dropped her bag and ran away. Once she reached a nearby friend's house, her friends called the police, but neither Appellant nor M.N.'s bag was located.

         A little more than two weeks later, on February 27, 2010, two female graduate students, J.T. and K.M., were walking to K.M.'s house in Arlington County. As they stopped in front of the house, Appellant emerged from behind a parked car. He moved his sweatshirt to the side to show the women he had a gun and demanded their wallets. After the women told him they had no money, he forced them into K.M.'s house and ordered them to kneel down next to the couch. He bound their hands with a vacuum cord. At one point when Appellant left the room, the women were able to loosen their hands. Appellant returned to the room with a knife and retied J.T.'s hands with an iron cord, and ordered the women to go to the bedroom. They complied, and when Appellant left the room again, J.T. managed to grab her cell phone and call 911. Appellant returned to the room, threw the cell phone against the wall, and then grabbed J.T. and led her outside to his SUV. He "showed [her] [his] gun" again and told her to get in his vehicle. J.A. 3649. After he drove for some time, he stopped, got in the back seat with J.T., and told her he was going to rape her. He forced her to perform oral sex on him, and then he put on a condom (saying, "I'm not an idiot") and raped her. Id. at 3652. He forced her to perform oral sex again, and then covered her face with packing tape. He drove to a secluded area and forced J.T. to perform oral sex one more time. He then took J.T.'s scarf and tightened it around her neck until she was unconscious. When she regained consciousness, she was face down in the snow with her hands above her head. Eventually, a passerby found her and called an ambulance.

         Based on the description of Appellant's vehicle and the similarities and locations of the two Arlington crimes, officers arrested Appellant on February 27, 2010, at Joint Base Myer-Henderson Hall.[2] Police searched Appellant's Durango and found J.T.'s university ID and earring, packing tape, and a stun gun. In his barracks room, they found a loaded Glock 22 pistol (which was purchased on February 5) and multiple rounds of ammunition. They also seized his laptop and accessories, which contained dozens of sexually explicit videos and images depicting violent rapes and sexual assaults, and which were stored between April 2009 and February 2010. Many videos were "sleeping rape" videos, meaning "someone is sleeping and is attacked or raped." J.A. 3731.

         Appellant was convicted in Arlington County Circuit Court for abduction with intent to defile, robbery, use of a firearm in a felony, abduction, rape, breaking and entering while armed, and forcible sodomy. On December 10, 2010, the circuit court entered judgment, imposing five life sentences, followed by consecutive sentences totaling 168 years.


         The Zion Crimes

         Five years prior to the Arlington crimes, on May 8, 2005, two young girls (Laura Hobbs and Krystal Tobias) were murdered in a park in Zion, Illinois, Appellant's hometown. One witness saw the girls talking to someone who looked like Appellant, who at the time was 16 years old. When the girls did not return home that evening, a search party was deployed, and Hobbs's father and grandfather eventually found the girls the next morning in a wooded area of the park. Authorities arrived and confirmed the girls were dead; their bodies had sustained multiple stab wounds. Hobbs was stabbed 20 times, including wounds to her abdomen, side, back, and horizontal stab wounds perforating her eyelids. One of the wounds punctured her liver. Officials also discovered a significant amount of male DNA in Hobbs's right hand. Tobias was stabbed 11 times, in her stomach, intestines, liver, neck, windpipe, and cervical spine, causing significant hemorrhaging in her neck.

         Within days, officials arrested and charged Jerry Hobbs, Laura Hobbs's father, who had a felony record. But after evidence collected during the autopsy was sent to the crime laboratory, Jerry Hobbs was excluded as a suspect based on DNA analysis. The lab also tested semen found on Hobbs's clothing, vagina, rectum, and mouth, but officials were unable to determine a source. The DNA records were put into a nationwide database, and periodically, the state DNA forensic examiner would check for a match. In June 2010, after Appellant was arrested for the Arlington crimes and his DNA entered into the system, the examiner found he was a potential match. Further testing showed that Appellant was indeed a match for the clothing and vagina DNA, as only one in every 985 quadrillion individuals would be expected to have the same profile. He also could not be excluded as the source of the other DNA found in Hobbs's right hand, anus, and mouth.[3]


         Osama El-Atari

         While he was awaiting trial for the Arlington crimes, Appellant was held in the Arlington County Detention Facility. Because police officers suspected Appellant was planning to threaten and/or intimidate witnesses in the Arlington case, they arranged for a federal inmate, Osama El-Atari, to act as a confidential informant and record conversations between the two of them. El-Atari recorded conversations over the course of approximately one week in August 2010. During those conversations, Appellant admitted to suffocating Snell in her room, calling it "[t]he perfect crime." J.A. 4307, 4325. However, his story changed over time, and sometimes he indicated he was teasing El-Atari about the details of the crime. See, e.g., id. at 4331 (saying he strangled her); id. at 4319 (saying he choked her with a plastic bag); id. at 4335-36 (saying he choked her with a laptop cord); id. at 4315 (agreeing he pinned her down and "choke[d] [her] out"). He also bragged about crimes he did not commit, telling El-Atari he killed 23 people in total.

         He told El-Atari that Snell was a random victim and he murdered her "for the adrenaline, " J.A. 4347; because "[he] got bored, " id. at 4377; and simply "because [he] could, " id. at 4322. He accurately described how he placed her body in the wall locker, except he told El-Atari he put a bag over her head, rather than a pillowcase. See id. at 4360 ("[S]he wouldn't fit laying flat. I had to bend her fucking knees and make her like she's sitting down, 'cause it's a small closet."). He said after he killed Snell, he made the bed and thoroughly cleaned the room. Appellant said he removed one of the bed sheets, but he left the fitted sheet.[4]

         Upon hearing this information, NCIS expedited testing of the fitted sheet, and technicians discovered a semen stain consistent with Appellant's DNA. State police had also seized Appellant's Nike shoes after his arrest for the Arlington crimes. Based on Appellant's statements to El-Atari, officials asked that those shoes be compared to the footwear impressions found in front of Snell's wall locker. A government latent print examiner testified that the shoes that made the impressions were "consistent in size, design, and wear" with Appellant's shoes. J.A. 3508.

         Additionally, NCIS again interviewed Appellant. This time, he acknowledged knowing that Snell lived near him, but still said he had never been in her room.


         Procedural History


         Guilt Phase

         On May 26, 2011, a federal grand jury returned an indictment charging Appellant with one count of first-degree murder of Amanda Snell. See 18 U.S.C. § 1111(a) (defining federal first-degree murder as the "willful, deliberate, malicious, [or] premeditated" killing of another). The indictment alleged statutory aggravating factors supporting a death sentence. Specifically, it charged that Appellant was previously convicted of a state offense "involving the use or attempted use or threatened use of a firearm, " and that Appellant was previously convicted of two state offenses "involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person." J.A. 56.

         On February 29, 2012, the Government filed a notice of its intent to seek the death penalty. See J.A. 75-83 (the "Notice"). The Notice listed two statutory aggravating factors: previous conviction of a felony involving the use or attempted or threatened use of a firearm; and two separate, previous convictions involving the infliction of, or attempted infliction of, serious bodily injury or death. The Notice listed the Arlington convictions in support of both aggravating factors. See id. at 76-78. Before trial, Appellant filed two motions to strike the statutory aggravating factors, but the district court denied both requests.

         Trial commenced on March 31, 2014. The Government called more than 30 witnesses over the course of four days and introduced hundreds of pages of exhibits. Appellant's counsel cross-examined the Government's witnesses, but only presented one witness, a former Marine who lived at Myer-Henderson Hall and testified that he had been in Snell's room at one time, but lied about it because of a rule that members of the opposite sex should not be in a room together with the door closed. The jury returned a guilty verdict on the sole first-degree murder count on April 8, 2014.


         Penalty Phase

         The district court bifurcated the penalty phase into (1) an eligibility phase, during which the jury determines whether a defendant is eligible for the death penalty based on statutory factors; and (2) a selection phase, during which the jury considers aggravating and mitigating factors and decides whether the death penalty is warranted. The eligibility phase began on April 21, 2014. As explained in more depth below, during that phase, the same jury that convicted Appellant found him eligible for the death penalty based on two statutory aggravating factors. The jury then proceeded to the selection phase, where it considered both statutory and non-statutory factors and unanimously recommended a sentence of death. Appellant chose not to present mitigating evidence. On May 30, 2014, the district court adopted the jury's recommendation and sentenced Appellant to death. He noted this appeal the same day.


         Challenges to Murder Conviction

         Appellant raises five challenges to his first-degree murder conviction: (1) whether the district court improperly limited Appellant's confrontation rights when it conditioned the cross-examination of Osama El-Atari on the admission of evidence of the Zion crimes; (2) whether the district court violated Rule 404(b) when it admitted evidence of the Arlington crimes and Appellant's electronic media showing violent pornography; (3) whether the district court committed reversible error in allowing expert testimony on shoeprint analysis; (4) whether Appellant was denied his right to an impartial jury when the district court refused to allow him to ask potential jurors whether they would consider a sentence of life upon hearing evidence that Appellant had murdered two young children and sexually abused one of them; and (5) whether the Government's use of cell site location information ("CSLI") against Appellant violated his Fourth Amendment rights.[5]


         Cross-Examination of El-Atari

         Part of Appellant's defense strategy was to demonstrate that he was lying or exaggerating during the course of his jail conservations with Osama El-Atari. Thus, defense counsel sought to cross-examine El-Atari about information Appellant gave that was false or "patently incredible, " including his representations to El-Atari that he committed other crimes he could not have committed. Appellant's Br. 129-30. However, the district court ruled that if Appellant proceeded with this line of questioning, the Government would be able to introduce conversations about the Zion crimes. See J.A. 3843 ("If you are going to get into other crimes . . . and the fact th[at] he didn't commit other crimes that he said he did, then I think it opens up Zion open wide."); id. at 3845 ("My ruling is that as long as you don't . . . start asking about other murders that he has committed and other crimes that aren't within the transcripts presently, I am not going to allow the Zion 404(b) evidence."). Based on this ruling, defense counsel chose not to cross-examine El-Atari about the false or exaggerated statements relating to other crimes. Appellant contends the district court's decision to condition cross-examination of El-Atari on evidence of the Zion crimes violated his Sixth Amendment rights. See Appellant's Br. 129-30.

         We hold that the district court did not abuse its discretion. To be sure, the main reason defense counsel would have wanted to introduce Appellant's exaggerations and falsities was to show that everything he told El-Atari could have been false and mere boasting, including the information he gave about Snell's death. The Government was entitled to rebut that argument with information Appellant gave to El-Atari about a crime he committed that was arguably true. Indeed, defense counsel acknowledged as much. See J.A. 3843 (defense counsel "agree[ing]" that asking El-Atari about the other crimes Appellant did not commit "opens up Zion . . . wide").

         However, even if the district court erred in this regard, the error was harmless. See United States v. Madden, 38 F.3d 747, 753 (4th Cir. 1994) ("[T]he test for harmlessness is whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." (internal quotation marks omitted)). To the extent Appellant contends his cross-examination would have impeached El-Atari's assertions that any lies Appellant told him were "minor" and would have allowed the jury to assess El-Atari's "asserted competence as a lie detector, " Appellant's Br. 141-42, defense counsel was able to cross-examine El-Atari about the following:

- El-Atari's prior convictions for crimes involving deception;
- El-Atari's attempts to deceive Appellant about why and how long he was in prison;
- El-Atari's alleged failure to follow instructions from law enforcement;
- El-Atari's desire to get out of prison.

         And on direct examination, El-Atari testified about the inconsistencies in Appellant's statements about the Snell murder, and he also testified that Appellant said he was deliberately making false statements so their discussions would be unable to be used against him.

         Under these circumstances, it is difficult to fathom how cross examining El-Atari about additional falsities Appellant relayed to him would have made much difference, given that the jury already knew to approach Appellant's statements to El-Atari with caution, knowing that he deliberately (and admittedly) lied at certain points in his jailhouse conversations. For these reasons, Appellant's argument on this point fails.


         Rule 404(b) Evidence

         Appellant next argues that admitting evidence of the Arlington crimes and Appellant's electronic media, which contained violent pornography, violated Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) "prohibits evidence of other crimes, wrongs, or acts solely to prove a defendant's bad character, but such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." United States v. Byers, 649 F.3d 197, 206 (4th Cir. 2011) (alterations and internal quotation marks omitted)). This Court has articulated a four-prong test to determine the admissibility of prior-act evidence under Rule 404(b):

(1) The evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. . . . (2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense. (3) The evidence must be reliable. And (4) the evidence's probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). We review for abuse of discretion. See Byers, 649 F.3d at 206.

         The Government produced evidence of pornographic videos showing violence against women who were sleeping, unconscious, or restrained. This evidence was admitted to show intent and motive, as well as modus operandi since Snell was murdered in the early morning in her bed, and officials discovered Appellant's semen on her bed sheets. See, e.g., United States v. Blauvelt, 638 F.3d 281, 292 (4th Cir. 2011) (upholding admission under Rule 404(b) of adult pornographic videotapes in order to prove identity, motive, and intent in child pornography case); United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006) (upholding admission under Rule 404(b) of evidence that a defendant possessed child pornography to show the defendant's "sexual interest in children" and thus demonstrate his intent in traveling across state lines to meet a minor (internal quotation marks omitted)); United States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996) (explaining that a common form of evidence offered to prove who omitted a crime is "modus operandi" evidence, which is "evidence that shows a defendant's distinctive method of operation"). It was not an abuse of discretion for the district court to admit this evidence.

         As for the Arlington crimes, the circumstances surrounding the offenses against M.N., J.T., and K.M. mere months after Snell's murder were relevant and necessary to demonstrate Appellant's modus operandi, motive, and intent. These offenses resembled Snell's murder in the following ways: (1) they all involved assaults on women Appellant did not know (well or at all) in their early to mid 20s; (2) they all took place in the early morning hours; (3) the motive appeared to be sexual, as evidenced by the semen on Snell's bed, the rape of J.T., and Appellant's forcing of M.N. to get into his car; (4) the Snell murder (based on statements Appellant made to El-Atari) and the February 27 offense both involved tying up women with cords from electronics found in the victim's living space; (5) the Snell murder (based on statements Appellant made to El-Atari) and February 27 offense both involved strangling; (6) there was no semen found in Snell, but it was found on her bedsheet, and on February 27, Appellant used a condom when raping J.T., telling her "I'm not an idiot." J.A. 3652.

         Although the crimes were certainly not identical, they "need not be"; rather they "must be similar enough to be probative of intent." United States v. Van Metre, 150 F.3d 339, 350 (4th Cir. 1998) (internal quotation marks omitted) (upholding admission under Rule 404(b) of evidence of a prior abduction and sexual assault by the defendant of someone other than the victim, in order to show that the defendant's "purpose in abducting [the victim] was, from the very start, for his own sexual gratification"). And the time between the crimes is within the permissible realm. See United States v. Hadaway, 681 F.2d 214, 217 (4th Cir. 1982) (upholding evidence of conduct committed 18 months after the crime charged and explaining, "subsequent conduct may be highly probative of prior intent. That one has thought in a particular illegal way over a period of time is evidence that one's thought patterns had already been so developed and were so operating on another previous occasion").

         Nor was the evidence more prejudicial than probative. This court has held "bad acts evidence, admissible under Rule 404, is not barred by Rule 403 where such evidence did not involve conduct any more sensational or disturbing than the crimes with which the defendant was charged." Byers, 649 F.3d at 210 (internal quotation marks omitted). As disturbing and sensational as the Arlington crimes were, a murder of a young woman in her own bedroom is even more so. Moreover, the district court gave limiting instructions and excluded evidence of J.T.'s condition after Appellant left her on the side of the road and her resulting health problems, any evidence about the Arlington crimes that was not presented in the state court trial, and any evidence about Appellant's attempt to threaten or intimidate witnesses to the Arlington crimes. See United States v. Kibler, 667 F.2d 452, 455 (4th Cir. 1982) (recognizing the judge's limiting instructions "[can] reduce[] the likelihood of any prejudice"). For these reasons, Appellant's Rule 404(b) argument fails.


         Shoeprint Analysis

         Appellant next challenges the district court's admission of testimony from a latent print examiner. That expert testified that the shoes that made the impressions on the vinyl floor in front of Snell's wall locker were "consistent in size, design, and wear" with the Nike shoes taken from Appellant in February 2010. J.A. 3508. Even assuming the district court should have excluded the shoeprint analysis testimony, we can say with fair assurance that the judgment was not substantially swayed by the error. It is simply not probable that this evidence affected the jury's verdict, given that the jury also knew Appellant's DNA was on Snell's bed sheet, and Appellant described to El-Atari in great detail how he killed Snell and shoved her in the wall locker. Thus, we reject this claim under harmless error review. See United States v. Hedgepeth, 418 F.3d 411, 421 (4th Cir. 2005).


         Voir Dire

         Finally, Appellant claims he was denied his Sixth Amendment right to an impartial jury when, in voir dire, the jurors were not asked this question, proposed by Appellant:

2. The government in this case may introduce evidence that Jorge Torrez committed a sexual assault and murder of an eight-year-old girl as well as the murder of a nine-year-old girl.
. . .
b. If you find Mr. Torrez guilty, then in the penalty phase of trial, would this evidence affect your ability to fairly weigh the aggravating factors against the mitigating factors and return a sentence of life without the possibility of release, or would you find it difficult to vote for life without the possibility of release?

J.A. 1799-1800 (bold type omitted).[6] Instead, the district court said to the jurors: "I will tell you now that there may also be evidence introduced about other crimes that the Government believes that [Appellant] has committed, and those would include assault, sexual assault, and abduction, and it may include child victims." Id. at 1928. The court did not, however, mention murder.

         The district court did not abuse its discretion in rejecting Appellant's proposed voir dire question. See Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981) ("[F]ederal judges [are] accorded ample discretion in determining how best to conduct the voir dire."). In United States v. Caro, we explained:

district courts must conduct "adequate voir dire" to enable them "to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence." Because "[a]ny juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law, " the Supreme Court has held that "[a] defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception."

597 F.3d 608, 614 (4th Cir. 2010) (quoting Rosales-Lopez, 451 U.S. at 188; Morgan v. Illinois, 504 U.S. 719, 735-36 (1992)).

         There, we upheld the district court's choice to ask, "Are your feelings about the death penalty such that you would always vote for a sentence of death as a punishment for someone convicted of a death penalty eligible offense, regardless of the facts and circumstances?, " Caro, 597 F.3d at 615, rather than "Do you feel that anyone convicted of intentional and pre-meditated murder deserves to get the death penalty? If not, what kind of case does or does not deserve the death penalty?, " id. at 614 (emphasis supplied). We explained that the question asked by the district court "adequately enabled the district court to weed out prospective jurors irrevocably committed to imposing the death penalty." Id. at 615 (citing Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968) (excluding a juror who is "irrevocably committed . . . to vote against the penalty of death regardless of the facts and circumstances" does not violate the Sixth Amendment)); see also United States v. Tipton, 90 F.3d 861, 878 (4th Cir. 1996) (finding satisfactory the questions of whether jurors "ha[d] strong feelings in favor of the death penalty" and if so, whether they "would always vote to impose the death penalty in every case where a defendant is found guilty of a capital offense"). Indeed, we have rejected "the suggestion that the trial court was required to ask potential jurors whether they would automatically impose the death penalty in rape-murder cases because . . . crime-specific voir dire questions" are not required. Oken v. Corcoran, 220 F.3d 259, 266 n.4 (4th Cir. 2000) (emphasis supplied) (citing Morgan, 504 U.S. at 728). The district court's question in this case was much more specific than the questions we found sufficient in Oken and Caro. Therefore, Appellant's argument on this point fails as well.



         For the foregoing reasons, we hold Appellant's challenges to his conviction to be without merit and therefore affirm his conviction.


         Challenges to Death Sentence

         In reviewing a capital sentence, we must (1) "address all substantive and procedural issues raised on the appeal of a sentence of death"; (2) "consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor"; and (3) "consider . . . whether the evidence supports the special finding of the existence of an aggravating factor required to be considered under [18 U.S.C. §] 3592." 18 U.S.C. § 3595(c)(1). For any error in the sentencing proceeding, the government must "establish[] beyond a reasonable doubt that the error was harmless." Id. § 3595(c)(2).


         Use of Post-Offense Conduct as Statutory Aggravator

         We first consider Appellant's argument that the death penalty was unconstitutionally imposed because it was based on conduct and convictions that occurred after the Snell murder. We review this issue de novo. See United States v. Runyon, 707 F.3d 475, 502 (4th Cir. 2013).


         Under the Federal Death Penalty Act ("FDPA"), once the jury finds the defendant guilty of an offense for which a death sentence is provided, the trial proceeds to the penalty phase. In a homicide case, the jury must make certain determinations before it can impose the death penalty. Some courts, including the district court in this case, choose to bifurcate the penalty phase into an "eligibility" phase and a "selection" phase --which, along with the guilt phase, result in an overall trifurcated proceeding.[7]

         In the eligibility phase, the jury must find beyond a reasonable doubt that the defendant:

(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;
(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act[.]

18 U.S.C. § 3591(a)(2)(A)-(D). Also in the eligibility phase, the jury must find beyond a reasonable doubt the existence of at least one of sixteen statutory aggravating factors. See 18 U.S.C. § 3593(e); id. § 3592(c)(1)-(16).

         Once the above requirements are satisfied, the defendant is eligible for the death penalty, and the proceedings continue in the selection phase, where jurors consider the presence of aggravating and mitigating factors and decide whether to recommend the death penalty. The jury must determine whether aggravating factors, both statutory and non-statutory, "sufficiently outweigh" the mitigating factors presented by the defendant to justify a death sentence, "or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify" that sentence. 18 U.S.C. § 3593(e).

         In the case at hand, Appellant's murder conviction provides for a sentence of death. See 18 U.S.C. § 1111 (providing, "Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life"). During the eligibility phase, the jurors found that each of the intent requirements was met with respect to Appellant's murder of Snell, and it also found that two statutory aggravating factors were satisfied, based on Appellant's Arlington crime convictions:

• The defendant "has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm . . . against another person"; and
• The defendant "has previously been convicted of 2 or more . . . State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person."

18 U.S.C. § 3592(c)(2), (4); see J.A. 5233-34. Finally, during the selection phase, the jury decided that the following ...

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