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U.S. v Barrett

U.S. v Barrett, Case No. 06-7005 (C.A. 10, Jul. 25, 2007)

Defendant Kenneth Barrett was convicted of using and carrying a firearm during and in relation to several drug-trafficking crimes, resulting in the death of a state law enforcement officer, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j), using and carrying a firearm during and in relation to the killing of a state law enforcement officer engaged in or on account of the performance of such officer’s duties, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j), and intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his official duties, in violation of 21 U.S.C. § 848(e)(1)(B). In accordance with the jury’s verdict, Barrett was sentenced to life imprisonment without the possibility of release for the first two convictions, and to death for the third conviction. Barrett now appeals his convictions, as well as his death sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Factual background

On January 28, 1999, the District Court of Sequoyah County, Oklahoma, issued a warrant for Barrett’s arrest on charges of unlawful delivery of a controlled drug and failure to appear for jury trial. Although Barrett managed to avoid arrest during the ensuing months, state law enforcement officials were aware of his presence and continued to investigate his activities. In September of 1999, Clint Johnson, the supervising agent and field supervisor for the District Twenty-Seven Drug Task Force (Task Force), which encompassed Cherokee, Wagoner, Adair and Sequoyah Counties in Oklahoma, received information from a confidential informant (CI) that Barrett was manufacturing and distributing methamphetamine at his residence. Johnson, using the information provided by the CI, prepared an affidavit for a search warrant. On September 20, 1999, the District Court of Sequoyah County issued the requested search warrant for Barrett’s residence. The warrant authorized law enforcement officers to conduct the search “at any time of the day and/or night,” and to enter Barrett’s residence “without the normally required knocking and announcing . . . due to the violent and unstable nature of . . . BARRETT and the danger posed to law enforcement personnel by . . . BARRETT and/or other unknown persons who may be present.” Aplee. Supp. App. at 3. The items to be seized included methamphetamine or other controlled dangerous substances, paraphernalia, drug manufacturing equipment and supplies, and written records and documents pertaining to drug manufacturing and distribution.

Johnson considered the search warrant to be “high risk” in nature. Tr. at 308. In particular, Johnson was aware that Barrett routinely carried firearms and had threatened to kill law enforcement officers if they “showed up at his residence.” Id. at 333. Further, Johnson was aware that Barrett’s residence was accessible only by a dead-end road, that several of Barrett’s relatives lived in residences nearby, and that there was little cover around the residence from which the search team could perform surveillance. Accordingly, Johnson contacted the Oklahoma Highway Patrol’s Tactical Team (Tact Team) for assistance in serving the warrant. The Tact Team was “highly trained and specialized in [serving] . . . high risk search warrants . . . .” Id. at 307. Johnson and another Task Force leader met with Tact Team members to discuss the execution of the warrant. It was determined that the Tact Team would enter and secure the area first, and that the Task Force would then perform the actual search of Barrett’s residence.

The Tact Team met during the daylight hours of September 23, 1999, and developed a plan for entering and securing Barrett’s residence. As part of this planning process, three members of the Tact Team drove by Barrett’s residence in an unmarked Ford Bronco during the early evening hours. Travis Crawford, Barrett’s cousin, was in the vicinity at the time of the drive-by and observed Barrett walk to the area of the front gate after the Bronco drove by his residence. Crawford spoke to Barrett and Barrett indicated he had seen the Bronco and knew it belonged to law enforcement officers. When Crawford told Barrett that the law enforcement officers would likely return to serve the warrant, Barrett responded by saying “D.G.F.,” which, according to Crawford, meant “Don’t give a fuck.” Id. at 466. Further, Barrett told Crawford that “he was going out in a blaze of glory.” Id.
 

 

Judge(s): Mary Briscoe
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Circuit Court Judge(s)
Mary Briscoe
Michael Murphy
Deanell Tacha

 
Trial Court Judge(s)
James Payne

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Michael Littlefield U.S. Department of Justice
Sheldon Sperling U.S. Department of Justice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Roger Hilfiger Cook & Hilfiger
Mark Henricksen Henricksen & Henricksen Lawyers Inc

 

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the apprendi/ ring rule does not extend to the ultimate decision had narrowed that choice down to jurors numbers 44, 55, and 134. in our woodson, he fails to explain, and it is not readily apparent, how that decision has any these courts, it seems to be clearly inconsistent with the supreme court's directive that d) the "relaxed" evidentiary standard 353 f.3d 281, 324 (4th cir. 2003) (concluding that plain error did not occur as a result of we did is that we each rated each of the prospective jurors based on their my property, i'll shoot." id. at 399. further, in the months and weeks leading up to the crimes, resulting in the death of eales, in violation of 18 u.s.c. § 924(c)(1)(a) and (j). fired), 1154 (same), 1263-64 (same). it is clear, nevertheless, that a substantial portion of expressly indicates that a victim impact statement may identify the victim and outline the -73- stat. tit. 22 § 1230(4) (2006). transported him to a local hospital, where he was pronounced dead. an autopsy indicated we therefore conclude the district court properly similarly, it is unnecessary for a defendant charged with violating 21 u.s.c. § united states v. harrison, 918 f.2d 469, 474 (5th cir. 1990)). importantly, however, residence, including five rifles, three shotguns, and two pistols. id. at 401, 1862-63, 1882- nor can he dispute the fact that the indictment alleges that the death sufficiency claims only for plain error. elbow. id. at 1661. a second round15 reasonable doubt. remorse for the crimes. mitigating factors violates the sixth amendment; (b) "[t]he federal scheme -57- intentionally killed eales, a state law enforcement officer engaged in or on account of his july 25, 2007 9 · barrett would not present a future danger to society by being imprisoned two african-american jurors, juror 3. later, the government exercised its twenty-second f.3d at 422. him to speak up, both at the individual voir dire [i.e., the death qualification -29- hamilton observed barrett fall face down through the front doorway and drop his rifle. barrett next complains, in conclusory fashion, that § 848 "fails to require because barrett had previously expressed his resolve to shoot any police officers who batson] objection is reviewed only for plain error." united states v. jackson, 347 f.3d man, later identified as barrett, standing in the interior doorway of the residence holding a longer be determined to be harmless." united states v. toles, 297 f.3d 959, 972 (10th defects in an indictment are not jurisdictional, and that challenges to such defects are thus first african american juror that we struck slept through a portion ­ well, 598, 605 (6th cir. 2003). we find it unnecessary to decide whether to adopt a similar rule decision to `instigate and guide' the successive state prosecution, suggests that the sham the key question is whether these allegations satisfy the sufficiency standards manufacturing equipment and supplies, and written records and documents pertaining to at approximately 12:30 a.m. on the morning of september 24, 1999, the tact sovereigns"). vol. 1, doc. 78 at 2 (arguing that the federal death penalty scheme "fails to provide a clint johnson, an oklahoma drug task force agent, secured a state court establish that the government violated batson. affirmed. following provision in § 848(j): "[a]ny other information relevant to [the] mitigating or family, and may include oral testimony, a victim impact statement that 18 seek assistance, within limits, from coordinate branches of government." id. "so long as sporter .223 rifle. the rifle, which had a lethal range of approximately 541 to 595 yards, an issue of ultimate fact from being relitigated between the same parties); angleton, 314 particular, we conclude that the four photographs fell firmly within the scope of victim · testimony from william deweese, a longtime friend of eales, describing · testimony from bobbi eales, eales' mother, the bulk of which briefly f.3d 1240, 1246 (10th cir. 1998) (internal quotation marks omitted). in addition, we of whether the death penalty should be imposed in a given case." fell, 360 f.3d at 144. through 59 of the record on appeal. for citation purposes, we will refer to the trial of successive prosecutions by a state and the federal government." id. in united states v. `offences.'" heath, 474 u.s. at 88. in other words, the "doctrine is best understood . . . 2005, and the government then began presenting its case-in-chief. id. at 40-41. in sum, omitted). since the constitution does not require a jury to do the weighing, capital trial, and noting the lack of clarity on this issue). thus, "even if the introduction b) multiplicity at the outset, we conclude that barrett has failed to properly interpret § 1225(a). involvement with drugs and firearms. id. at 42. barrett also suggests that jury confusion that eales' wounds were sustained while facing away from barrett). one round struck the underlying convictions as well as the . . . sentence based upon it." rutledge v. united person produced a plastic baggie containing red phosphorous, a lighter, and and that he intended to kill eales.16 hamilton's vehicle ultimately came to a stop at or near the southeast corner of barrett contends, again in conclusory fashion, that § 848 "allows for consideration between federal and state authorities in bartkus, which included the federal prosecutor's perished in the bombing, including reflections on the admirable qualities of the united states v. fields, 483 f.3d 313, 346 (5th cir. 2007). although not binding on us, part, that a search warrant must be issued "to a peace officer of this state . . . ." because to investigate his activities. in september of 1999, clint johnson, the supervising agent law enforcement officer occurred "during the commission of, in furtherance of, or while failed to list the elements of the underlying offenses identified in counts 1 and 2. counts the venire.11 (indicating that red and blue lights from marked unit were reflecting off the shards of glass phase of a capital case to be provided "unguided and unchecked . . . discretion," 428 u.s. admitting the challenged testimony from kelli eales. another sovereign." angleton, 314 f.3d at 773 (citing bartkus, 359 u.s. at 123-24). "in eliminate any element of surprise," united states v. greene, 497 f.2d 1068, 1082 (7th cir. circumstances, we are not persuaded that the dea agents' involvement was sufficient to death of a person through the use of a firearm, shall-- intentionally killed eales, intentionally inflicted serious bodily injury that resulted in the coming from the lead bronco), 1797-98 (indicating that lights from marked unit circumstances, while § 924(c) is focused on criminalizing the use of firearms in pseudoephedrine, ephedrine tablets, iodine, plastic tubing, toluene). a search of barrett's factors." id. at 5323. in short, as the district court instructed the jury, the weighing that the counts involved "different application of aggravating factors" is irrelevant to the -34- 7 that night clearly would have allowed the jury to reasonably find that he intended to kill reflect[s] a reasoned moral response to the defendant's background, that he could not because he had been shot. hamilton, with the assistance of troopers private driveway that lay to the east of barrett's property, and then driving west across the specifically, the government indicated it had agreed to provide barrett with the names, opportunity to investigate and prepare cross-examination, as well as present a defense." count do not constitute a single offense for double jeopardy purposes. id. at 461. accordingly, johnson contacted the oklahoma highway patrol's tactical team (tact -4- was equipped with three magazines that barrett had taped together, giving him a total of 83, 1888, 1895, 1899-1901. during the day, barrett typically kept a rifle nearby. id. at exercise the delegated authority is directed to conform, such legislative action is not a clear that § 848's general allowance of non-statutory aggravating factors is constitutionally processes in this case were distinct. according to the record, the district court conducted review only for plain error. to the extent that barrett is suggesting that all second-stage evidence must focus 8 remained. the parties were then required to each exercise twenty-three peremptory observed a white male standing in the front yard of barrett's residence. hamilton failed to establish how the alleged error seriously affected the fairness, integrity, or public found, in pertinent part, that barrett was at least eighteen years old at the time of the that, in order to find barrett guilty of count 2, the jury had to find he committed the argument."). in other words, barrett made no attempt to attack or otherwise undercut the instruction no. 14. in contrast, the jury, in order to find barrett guilty of count 1, merely we note that the sixth circuit has held that "[i]f a defendant fails to rebut a race- the second tact team vehicle, a ford bronco occupied by troopers raymond 1263. respect to counts 1 and 2, that barrett killed or attempted to kill more than one person, commission of the crime of kidnapping, as specified by 18 u.s.c. § 1201. according to barrett, "all counts [in the indictment] [we]re based on the same conduct, eliminated by the district court's instruction that the jury `should not simply count the -25- three counts arise out of the shooting incident that occurred on september 24, 1999, when the four photographs included: exhibit 309, a photograph of eales with his unreasonable to argue that all of the drug evidence which the officers anticipated finding their reasoning in rejecting barrett's challenge to § 848(j). in doing so, we note that provides that "[a] search warrant may in all cases be served by any of the officers -72- 369 f.3d 1171, 1176 (10th cir. 2004) (quoting mcveigh, 153 f.3d at 1184). 8. sufficiency of evidence of barrett's intent to kill the door," and that there were guns around the house, so he sought the counsel briefly revisited the batson issue and offered the following additional explanation section 856 . . . . "multiplicity refers to multiple counts of an indictment which cover the same johnson, and at times have revisited the question of whether the defendant successfully identifies the victim of the offense and the extent and scope of the injury · that other factors in barrett's childhood, background or character and subsequently stated to his cousin, travis crawford, that he knew the vehicle belonged id. at 57; (c) "[t]he statute fails to require proportional review," id.; (d) "[t]he statute rather than state, in character, then the warrant was invalid because it failed to comply count of first degree murder, one count of shooting with intent to kill, and two counts of jackson does not dispute that the indictment fairly describes a violation from the rear of the vehicle, both hamilton and manion were able to observe a incident, and does not explain how he was prejudiced thereby. accordingly, we conclude -77- out as many [law enforcement officers] as he could before they got him." id. at 412-13; look for those we are likely to be receptive to our witnesses's testimony, likely resulted from "the numerous counts and the fact that the counts were even brought finally, barrett argues that "there is nothing [in this case] which justifies the federal f.3d 1196, 1211 (10th cir. 1999) (internal quotation marks omitted). further, the fact entire days before commencement of trial be furnished with a copy of the maintaining a place for the purpose of manufacturing, distributing, and the argument on the merits, stating: punished by death or by imprisonment for any term of years to be sure, an essential element of a § 848(e)(1)(b) violation is that the killing of the state however, the first exception, which encompasses cases in which "[t]he evidence is located on the premises only between the hours of ten o'clock p.m. and six o'clock a.m. . . . ." id. presumably, the "relaxed evidentiary standard" that barrett refers to is the that providing the list may jeopardize the life or safety of any person. 848(h)(1)(b) and (n). thus, § 848 allows the use by the prosecution of so-called "non- sixty-four potential jurors. having concluded that the government offered race-neutral reasons for striking -20- states attorney, with him on the brief), muskogee, oklahoma, for plaintiff-appellee. previous conviction (found by five jurors with respect to each count); · barrett had accepted responsibility for the death of eales from his prosecution for the same offense. (citations omitted). but while it is true convictions and sentences for drug-trafficking crimes, such as the four underlying such no member of the marsh court disagreed. accordingly, we hold that the one or more of those officers, including eales. barrett began shooting at the lead vehicle, · barrett was a good neighbor and friend (found by seven jurors with united states v. robertson, 473 f.3d 1289, 1294 (10th cir. 2007) (quoting united states 9/13/2005). the government further requested until the following day, september 14, which the congress has undoubted control." united states v. whiting, 771 f. supp. 476 suppress, a successful double jeopardy claim would require dismissal of the entire case, surveillance job, and we note also that he is apparently native american, at 135, 143-46 (2d cir. 2004), united states v. webster, 162 f.3d 308, 354 (5th cir. 1998). factor). to be sure, the jury's finding of the existence of one of the culpable mental states barrett during which philpot broke barrett's jaw) (found by six jurors with to the dual sovereignty doctrine. in bartkus v. illinois, 359 u.s. 121 (1959), "the court hernandez v. new york, 500 u.s. 352, 360 (1991). the proffered reason need not be (with a total of ninety-one rounds of ammunition), to fire at least nineteen shots at tact . . ." roa, vol. 1, doc. 124 at 2. on appeal, barrett contends the district court erred in id. thus, we review the counts with which barrett was charged. discriminatory purpose." id. (internal quotation marks omitted). if the defendant f.3d 382, 388 n.7 (3d cir. 2005). the policy has regularly appeared in the united states three counts alleged in the superseding indictment fall readily within the scope of rule land and through a ditch onto barrett's property. the occupants of those three vehicles, drug manufacturing and distribution. intentionally discriminated." because the district court in this case proceeded, albeit cumulative-error analysis aggregates all errors found to be harmless and analyzes whether was indicted and tried, there were two separate, though substantially similar, federal sentences for violations of these distinct statutes. in other words, nothing suggests that 2001). counsel on september 22, 2005 (a thursday). id. in addition, the government indicated credibility determination that those declarations are sincere.'" united states v. black, 4. juror misconduct government's disclosure of two witnesses less than 48 hours prior to their appearance at (concluding that government's striking two of three black members of jury was sufficient -33- applying tenth circuit precedent, we conclude that counts 1 and 2 were not ultimately, the jury found that sentences of life imprisonment without the specifically, the term "peace officer," as used in the oklahoma criminal statutes, is created actual juror bias; courts should not presume that a contact was prejudicial.'" surrounding property following the shooting, as well as all statements he made to law doubt that the defendant committed the offense of conviction with one of the listed however, objected only to the admission of testimony from friends of the victim. in other barrett complains in passing that the following sentence from a note written by f.3d at 771. schemes in place for imposition of the death penalty. the first of those was set forth in the note was written by eales' daughter at the same time her mother, kelli eales, i. -66- or carried, or in furtherance of such offense possessed a firearm, (3) the firearm played an third vehicle were described by witnesses as sufficient to illuminate the scene in front of review the record de novo and ask only whether, taking the evidence s both direct and woodson emphasized that it is constitutionally problematic for a jury in the sentencing impartial, a matter of fact uniquely within the observation of the trial court." mcveigh, the pathologist was unable to determine in what order the three wounds were "only actual errors are considered in determining whether the defendant's right to a fair barrett contends that the district court erred in admitting what he describes as and the trial court rules on the ultimate factual issue of whether the prosecutor thus, the identification of each of the underlying crimes, "together with [the] specific angleton, 314 f.3d at 771 (quoting heath, 474 u.s. at 93). 7. constitutionality of the "intent to kill" aggravating factor such crime, possesses a firearm, shall, in addition to the punishment crawford, randy weaver, charles monk saunders, karen real, and brandi price, all of that the defendant is `effectively prosecuted twice by the same sovereign.'" id. (quoting american juror). in particular, the government indicated that it had, taking into account to barrett, the brief encounter between juror 85 and trooper poe placed the impartiality court warrant to search the defendant's home as part of the crime scene. quotation marks omitted). the warrant authorized law enforcement officers to conduct the search "at any time of the c) misjoinder f.3d 803, 818 (4th cir. 2000) (affirming that victim impact evidence providing a "quick -69- names on september 19, 2005, was necessarily untimely because it did not occur more sovereigns, and the federal government was not a party to the state prosecutions of barrett. date of the shooting, barrett regularly told friends and family that if law enforcement -18- 11. government's failure to follow the petite policy the potential jurors. aside from its rating system rationale, the government also marked highway patrol car, would stop at the locked front gate of the property and that firearms and drugs, and for killing the same person." id. at 42. because barrett did not convictions (found by all twelve jurors with respect to each count); jeopardy clause does not bar a state from prosecuting and convicting a defendant who barrett has not cited any of these cases, let alone attempted to undermine the reasoning -45- magistrate judge, and the original plan had been for only state law enforcement officers to as for barrett's second sufficiency-related argument, it is unnecessary for a issued the warrant to find a "likelihood that the property named in the search warrant voluntary and extensive integration of state and federal law enforcement officers and of his vehicle, causing a noticeable flash and loud bang. the flash and bang created a portions of the voir dire process. we therefore conclude that the district court had no out his argument. because, however, he submitted a more detailed argument on this point we readily reject barrett's claim. in pulley v. harris, 465 u.s. 37, 43 (1984), the challenges to reduce the total number of jurors to eighteen (twelve regular jurors and six kidnapping together with a specific reference to the statutory definition of raise this issue below, it is subject to review only for plain error. united states v. -22- 5 reasonable doubt standard is appurtenant to the right to jury trial. (footnote force members) rather than by oklahoma state law enforcement officers. in support of 443 f.3d 1310, 1314 (10th cir. 2006). under the plain error doctrine, "we will reverse tuesday prior to the beginning of trial, that they were ready for trial. lastly, barrett has lastly, barrett challenges the admission of four photographs of the victim on the defendant being charged with or convicted of a predicate offense. improper victim impact evidence. more specifically, barrett complains that certain the tact team met during the daylight hours of september 23, 1999, and being in violation of § 3432. indeed, defense counsel expressly announced, on the "`[i]ntentionally' means that a person desires to cause the consequences of their act or to kidnapping, sexually abusing, and murdering a woman in violation of 18 u.s.c. § motion during trial). describe to the jury a picture her son, who was two years old at the time of the murder, although these cases are not binding on us, we find them persuasive and thus apply wag" headlights, all of which had been activated. id. at 732, 1094. the third vehicle to in united states v. cotton, 535 u.s. 625 (2002), the supreme court made clear that turning first to the government's proffered reasons for striking the two african- all of the jurors rejected the alleged mitigating factor that barrett had expressed that he committed the unlawful killing of eales with malice aforethought). after a short court of sequoyah county issued the requested search warrant for barrett's residence. reasonably be described as "plain." further, barrett has fallen far short of establishing that impact testimony now objected to by barrett was relevant and properly admitted by the at the end of his discussion of the district court's denial of his motion to suppress, respect to each count). sentence of death." id. authority" by allowing prosecutors to define and rely on non-statutory aggravating factors. not as an exception to double jeopardy, but rather as a manifestation of the maxim that american jurors, we review de novo whether those explanations were race neutral. as separate sovereigns, are not the `same party.'"). patrol." roa, vol. 38 at 1265. more specifically, the district court noted it had been render the warrant federal in character. parked truck, manion fired two short bursts of gunfire through the east window of necessary for imposition of the death penalty has to be found by a jury and cannot be government counsel was unable to hear some of juror 134's answers during that process. remmer v. united states, 347 u.s. 227, 229 (1954). we have qualified this presumption officers came to his house, "[t]here was going to be a shootout," id. at 412, "he would substantial threshold showing of the existence of circumstances justifying application of 1543, 1545 (10th cir. 1995) (reviewing district court's denial of motion to dismiss obtaining the warrant or in conducting the search." united states v. gobey, 12 f.3d 964, v. long, 324 f.3d 475, 478 (7th cir. 2003) (quoting u.s. const. amend. v). "the 8 the fdpa because he was not sentenced to death under that act. see city of los angeles the close of the government's evidence and again at the close of all evidence, for judgment tenth circuit during and in relation to the commission of the predicate offense, barrett knowingly used second state prosecution, and the actions of the governments obliterate the dual sovereign principle barrett is relying on, or what right, if any, he is asserting was violated. to the · barrett had been convicted and punished for the death of eales (found by death penalty." id. at 58. 18 of § 3432, barrett has failed to establish plain error arising out of the government's remand to the district court for an evidentiary hearing on the issue of whether a bartkus terms to run consecutively. barrett did not appeal his convictions or sentences. not a finding of fact. instead, it is a "highly subjective," "largely moral in doing so, the fourth circuit noted that "[t]he evidence rules do not set forth the finally, barrett complains that § 848 fails to "narrow the class of persons eligible the field," and thus does not confer any enforceable rights upon criminal defendants. account of the performance of such officer's duties, in violation of 18 u.s.c. § v. frost, 125 f.3d 346, 377 (6th cir.1997)). "otherwise, a remmer hearing would be weighing process would be skewed" by arguably duplicative aggravating factors "was -26- -49- itself it is extremely difficult and highly unusual to prove that a prosecution by one and in relation to several drug-trafficking crimes, resulting in the death of a state law drew picturing eales on top of the family's house watching over them, and (b) read a particular, johnson was aware that barrett routinely carried firearms and had threatened barrett's residence. id. at 1101 (testimony from trooper steve hash, the driver of the thompson, 579 f.2d at 1185-86 (quoting from 1972 manual discussing policy). "[t]he bartkus court's failure to identify a particular instance of a sham prosecution may intensified as hamilton drove closer to barrett's residence, and hamilton was hit in the should be suppressed because there was no compelling reason for the department of federal rule of criminal procedure 24(c)(1) authorizes district courts to replace manion found the pistol that barrett had tucked into the right side of his waistband. proportionality review of a death sentence. although barrett cites to pulley, he makes no no obligation to instruct the jury that it was necessary to convict barrett of the underlying (d. mass. 1991) (discussing 21 u.s.c. § 848(e)(1)(a)); see gonzales v. raich, 545 u.s. 1, the supreme court's decision in bartkus, in which the court held that the double -37- 20 whenever the prosecutor offers a race-neutral explanation for his peremptory challenges knowingly created a grave risk of death to one or more persons, to wit: john hamilton, appear to review separately any cumulative plain errors. see united states v. united states court of appeals americans in the sixty-four person venire, failed to exercise its peremptory challenges in barrett, who himself was caucasian, established a prima facie case of discrimination residence in order to give the tact team a chance to secure the area. jackson, like barrett in this case, complained for the first time on appeal that the based upon the government's striking of the only two african-american jurors among the -13- benefit from the cumulative error doctrine. see workman v. mullin, 342 f.3d 1100, 1116 court's ruling and believed it well-founded at the time, and still do. before tacha, briscoe, and murphy, circuit judges. (quoting purkett v. elem, 514 u.s. 765, 767 (1995) (per curiam)). -17- 7. count 2 charged barrett with using and carrying a firearm during and in relation to a 3. admission of improper victim impact evidence the factors for which notice is provided under this subsection may include and firearms would necessarily be highly inflammatory in the minds of the jurors, id. at 409-10, 3106, 3496. inch hole. the injury to eales' aorta was determined to be irreparable and the cause of jurors, and that juror 134 was simply next in line to be struck under its overall ratings of least he works for a native american casino. in our decision, also, we on december 19, 2005, the district court conducted a sentencing proceeding required `based on each of the multiple ordinary incidental contacts between enforcement officer, in violation of 18 u.s.c. §§ 924(c)(1)(a) and (j), using and carrying unconstitutional[ly] delegates legislative authority, as it contemplates the unrestrained the same three basic counts as the original indictment. on february 15, 2005, the it was to evaluate all of the aggravating and mitigating factors and decide whether they extent and scope of the injury and loss suffered by the victim and his family. second, and barrett, nor is there evidence that the state of oklahoma or any officials thereof instigated his sufficiency challenges to the district court. thus, we must determine what standard of prevent him from escaping to his mother's residence, which was located adjacent to sentence for . . . a felony violation of" subchapters i or ii of chapter 13 (drug abuse important to our decision, though, is that juror number 44 reflected that his enforcement officer engaged in or on account of the performance of such officer's official information that the defendant had threatened "to kill the first cop through challenge, this determination. in light of juror 85's testimony, it was thus proper for the trial); see united states v. brown, 441 f.3d 1330, 1361 n.12 (11th cir. 2006) (declining eales face down on the ground, with manion attempting to assist him. cousin is a dea chemist who is going to testify in this case, although he underneath him, handcuffed him, and performed a quick pat-down. during the pat-down, 1249-50 (internal quotation marks omitted). rear of hamilton's vehicle to the east side of barrett's house. from a position behind a defendant's moral culpability and blameworthiness, it should have before it at the proceedings." 327 f.3d at 305 (internal quotation marks omitted). during voir dire, the district court seated a panel of sixty-four prospective jurors. that eales and the other persons approaching his residence were law enforcement officers -67- knocking and announcing . . . due to the violent and unstable nature of . . . barrett opportunity to turn on the lights), id. at 610, the second bronco did. id. at 732. more collins, 546 u.s. 333 (2006) (internal quotation marks omitted). "the district court's see ashe v. swenson, 397 u.s. 436, 475 (1970) (holding that collateral estoppel prevents addressed a substantially similar challenge to an indictment. the defendant therein, respect to each count); the trial transcript consists of twenty-seven volumes, numbered volumes 32 challenged evidence were unfairly prejudicial, confused the issues, or misled the jury. v. no. 06-7005 beyond a reasonable doubt the existence of at least one other statutory aggravating factor. using and carrying a firearm during and in relation to drug trafficking crimes and the defendant of the testimony which he will have to meet, and to enable him to prepare 924(c)(1)(a) and (j). to sustain its burden of proof against barrett on this charge, the i.e., john hamilton, jr., and david eales, in a single criminal episode, and committed the errors singly warrant relief, the cumulative effective of these errors deprived [him] of a 2. challenges to the indictment glimpse of the life" of the victim is admissible in a federal death penalty case); united witnesses "was used to establish the drug offenses, the intent to kill a law enforcement under two death penalty schemes requiring different application of aggravating factors." held, "the circumstances of the case are irrelevant." id. at 90. that is precisely the vehicle were activated. tr. at 772 (indicating that lights were not activated prior to when failed to comply, but ultimately got on the ground. trooper darst then took custody of relevant evidence, including, as authorized by payne, evidence giving the jury a glimpse added); see also id. at 830 ("a state may decide . . . that the jury should see a quick in our view, this evidence fell within the scope of the type of victim impact evidence sentenced in this case, congress repealed the death penalty provisions of § 848, in this appeal, given that barrett has failed to establish the existence of multiple non- id. at 20-27.4 commission of several underlying offenses with a single, continuous use of a firearm. in factors falls squarely within the permissible delegation of power to the executive branch." the shots fired by barrett occurred after the lights of this vehicle were activated. evidence in federal death penalty cases to evidence "`concerning the effect of the offense -61- felony, i.e., kidnapping as specified in 18 u.s.c. § 1201(a)(2). his only error. multiple § 924(c) counts are permissible so long as the offenses underlying each § 924(c) crimes identified in count 1 and the crime of violence identified in count 2). but, like five jurors with respect to each count); · barrett's death would impact his child, family and friends (found by all indictment on double jeopardy grounds de novo). charged barrett with using and carrying a firearm during and in relation to a crime of barrett next complains that the search of his residence was improper because the included methamphetamine or other controlled dangerous substances, paraphernalia, drug face with some object, either bullet fragments or flying glass from the windshield. as a 848(e)(1)(b). indeed, barrett does not seriously dispute otherwise. because the crimes believes that the consequences are substantially certain to flow from it." id., instruction (d.c. no. cr-04-115-p) id. we have previously held, however, that "[n]either a mere allegation that defendant integral part in the predicate offense, and (4) during the commission of the predicate specialized in [serving] . . . high risk search warrants . . . ." id. at 307. johnson and -30- drove past barrett's residence and entered the private driveway to the east of barrett's which appeared to have occurred while eales was facing away from barrett. the gunshot offense charged for which count 1 could be based." id. at 36-37. in addition, barrett barrett's case. barrett does not dispute that the superseding indictment sets forth each of accomplishments constitute the core impact evidence describing a victim's `uniqueness as penalty ­ death." roa, vol. 1, doc. 78 at 9. barrett first raised this issue in his motion allowance of non-statutory aggravating factors. for the reasons already discussed, it is it is clearly permissible for an oklahoma state magistrate to issue a search warrant to a cir. 2002) (internal quotation marks omitted). we "consider[] whether the defendant's 461-62, 3086, 3493-94. he also carried a nine millimeter pistol in his pants at all times. barrett failed to raise this issue below, it is subject to review only for plain error. defendant-appellant. -50- fourth tact team vehicle, climbed over the locked front gate, entered the yard in front of barrett's home. some of the shots fired by manion struck barrett in the lower body. the performance of such officer's duties," and "in the course of this violation, caused the specifically, the second bronco had a flashing strobe-type light on the sun visor and "wig- we find the concurring panel member's reasoning persuasive and applicable to (continued...) explain adequately the racial exclusion' by offering permissible race-neutral justifications even if there was doubt as to the proper joinder of the three claims, barrett has "the test [for multiplicity] is whether the individual acts [alleged in the counts at sentence of death should be imposed with respect to count 3. toby barrett and determined he was unarmed. while toby barrett was on the ground "the first issue of whether a prima facie case of discrimination exists becomes moot would enter the driveway of barrett's mother's home. 134 to "speak up" may have alienated juror 134; and juror 3's having slept through sentences violate the double jeopardy clause." united states v. morris, 247 f.3d 1080, occurred. juror 85 further testified that his contact with poe would not interfere with his ingredients and utensils for manufacturing would be found on the premises, and those crimes, and provided sufficient information to allow him, if necessary, to mount a california, 545 u.s. 162, 125 s.ct. 2410, 162 l.ed.2d 129 (2005)." united states v. -32- for the strikes." johnson, 545 u.s. at 168 (quoting batson, 476 u.s. at 94). finally, if work-product privilege. nor, we note, did barrett offer the district court any reason to including a flashing strobe-type light on the sun visor and wig-wag headlights. the third -19- hopefully the matter ha[d] been resolved." dist. ct. docket sheet at 34 (entry for did not bar the federal prosecution of a criminal defendant who had previously been tried would have a better chance of acquittal in a separate trial, nor a complaint of the an indicator of respect for the court and jury service and, in a nutshell, we interviewed ten prospective jurors in the morning and ten more prospective jurors in the and 2 of the superseding indictment clearly gave barrett fair notice of the charges he had also to "special agents and task force officers of the drug enforcement in united states v. jackson, 327 f.3d 273 (4th cir. 2003), the fourth circuit in sum, although barrett's defense during the first-stage proceedings was that he warrant to search the defendant's home for drugs. agent johnson had recognized that the constitution does not require a reasonable doubt standard 848(e)(1)(b), i.e., the charge alleged in count 3 of the superseding indictment in this on account of, the performance of such officer's official duties . . . ." an intentional -10- 509 u.s. 688, 695-96 (1993)). "one significant limitation exists, however, to the barrett's house. finally, the tact team decided that a fifth unit, a white ford bronco, -47- listed the essential elements of the underlying crimes (i.e., the four drug-trafficking died as a direct result of the act; and (c) barrett, in the commission of the drug trafficking limitations. because barrett timely raised these issues in a pretrial motion to dismiss the day and/or night," and to enter barrett's residence "without the normally required misconduct, placed into question whether "the jury selection process was . . . carried out reasonably find that barrett intentionally killed eales. barrett had been aware for some count); applying these principles to the facts presented here, we readily conclude that the any other . . . federal peace officer." aplee. supp. app. at 2. in turn, oklahoma law is greater [but rather] should consider the weight and value of each factor.'"). 924(j), and was sentenced to death in accordance with the jury's recommendation. are in turn considered distinct. -7- death of eales, intentionally participated in an act, contemplating that the life of a person drug activity had or would cease." aplt. br. at 20. whom were friends of barrett. recommendation, and barrett has not disputed below or on appeal, that "[t]he underlying juror 85 testified that he simply greeted poe by first saying his name and then shaking his applying that principle here, it is clear that congress intended to permit multiple bright enough to light up the entire area of barrett's residence. this third vehicle was enforcement officials. on the front gate leading to his residence, barrett had installed a with intent to kill. the information was subsequently amended to charge barrett with one -56- from the time when voir dire begins. gomez v. united states, 490 u.s. 858, 872-73 raise this issue below, it is reviewed on appeal only for plain error. bodies, courts must determine whether the prosecuting `entities draw their authority to 3 had slept through a portion of the voir dire proceedings. at 2. similarly, count 2 alleged that on or about september 24, 1999, barrett knowingly · testimony from nancy stalcup, eales' sister, about eales' "beautiful blue argues that the timing of the government's production of the seven witness names was in intentionally killed the victim; (b) intentionally inflicted serious bodily injury which -78- was preparing her own victim impact statement. the district court, without objection to establish prima facie case). here, we will simply assume, without deciding, that the death penalty scheme applicable to count 3 at the time of trial set forth twelve approximately eighty-three prospective jurors and excused the remainder. the following had to have found that barrett committed at least one underlying offense with respect to convicted of the underlying offense. e.g., united states v. zhou, 428 f.3d 361, 378 n.15 regulate interstate commerce). 2 14 barrett of the crimes he was being charged with, enabled him to prepare a defense to evidentiary standard in violation of woodson v. north carolina, 428 us 280 (1976)." short essay written by her daughter, who was six years old at the time of the murder, back of his left arm pit where the skin is folded. id. at 1605. a third, and fatal, round 848(e) punishment be cumulative with any other applicable punishment"). -15- states v. robinson, 367 f.3d 278, 284 (5th cir.2004); united states v. higgs, 353 f.3d richard jackson, was convicted by a federal jury of using a firearm during and in relation offenses alleged in count 3, and in escaping apprehension for a violation of said offenses, constitutional parameters of admissible evidence, nor does a criminal defendant have a elements of the predicate offenses [on counts 1 and 2], and further there was no predicate fundamentally unfair" in violation of barrett's due process rights. 501 u.s. at 825. thus, the penalty phase proceedings violated his constitutional rights because it first served as an during and in relation to a drug trafficking crime, resulting in death, while count 2 united states of america, record that barrett raised this issue below, and thus it is subject to review only for plain -11- on september 9, 2005 (a friday), the government filed a sealed motion seeking to portions of the testimony of william deweese (a friend of eales), gene hise (a fellow manufacture methamphetamine, in violation of title 21, united states we conclude there was no error, let alone plain error, arising from the admission of this 12. cumulative error eyes," the last time she saw eales, and the positive impact eales had on her fair trial and requires that his conviction and sentence be reversed." aplt. br. at 78. "a purported untimely disclosure of the seven witness names. for the reasons already jackson, 327 f.3d 273, 295 (4th cir. 2003) (reaching same conclusion); angleton, 314 to more fully explicate our reasoning, is that jury selection had not yet then hand, and that no discussion of any substance, let alone about the case against barrett, noted, the warrant was requested by a state law enforcement officer, was issued by a state the search also resulted in the seizure of a variety of materials related to the production and convicted in state court for the same underlying conduct. in light of lanza and its neutral explanation at the time it was made, the district court's ruling on the [defendant's hamilton, manion and greninger entered the house and confirmed there were no other stoppage of gunfire, during which hamilton got out of the driver's side of his vehicle. was closest to the front porch of barrett's house), got out, and began heading towards the more specifically, barrett argues that, although oklahoma law required the judge who testimony. thus, the motion did not include all of the arguments barrett now seeks to definition of, and utilization by the government of `non-statutory' aggravating factors," that the task force would then perform the actual search of barrett's residence. omitted), "is simply another form or method of informing the sentencing authority about process, three members of the tact team drove by barrett's residence in an unmarked barrett does not come close to alleging, let alone proving, more substantial collusion most favorable to the government, a reasonable jury could find [defendant] guilty beyond and completed the voir dire process. id. at 162. juror. barrett's counsel objected at that point, citing batson and arguing that it was rule 8(a) of the federal rules of criminal procedure governs the joinder of offenses and government must file if it "believes that the circumstances of the offense [at issue] are separate rounds of gunfire from barrett. id. at 1687 (testimony from pathologist opining -58- 10. district court's failure to dismiss indictment sort accorded great deference on appeal, because such a finding largely turns on the trial afternoon. at the conclusion of the five days, the district court had qualified properly."9 fact that death occurred during a kidnapping is only an element of the must determine that the death penalty is appropriate. id. thus, § 848 clearly narrows the in this case, jackson was charged with the offense set forth in 18 u.s.c. mccullough, 457 f.3d 1150, 1162 (10th cir. 2006). challenge, and one of the reasons we are reluctant sometimes, your honor, "any person, during the commission of, in furtherance of, or while attempting to avoid without objection from barrett. second bronco, that he observed red and blue strobe lights reflecting off of trooper eales during which it imposed the sentences recommended by the jury. judgment was entered -27- the search warrant to be involved in the execution of the warrant. in turn, we conclude or public reputation of the judicial proceedings. to determine whether confrontation clause applies to the penalty phase of a federal barrett has made no attempt to establish how the challenged evidence affected his on criminalizing the intentional killing of state law enforcement officers under certain drive-by performed by tact team members), and suspected that it belonged to law a capital defendant with constitutionally sufficient evidentiary protections" because, intertwined with the commission of an underlying federal drug trafficking crime, which described, any error resulting from the timing of the government's disclosure could not the fifth circuit recently rejected a similar argument asserted against the fdpa roa, vol. 55, at 4685. on appeal, barrett makes no attempt to challenge the district particular, it is clear from examining the language of § 924, the statute under which -70- court further instructed the jury that weighing was "not a mechanical process" "determined government's witness coordinator that he had had some limited contact with juror 46. admission of evidence "about the professional and personal histories of victims who relevance to § 848(j)'s so-called relaxed evidentiary standard. although the court in of § 924(j)(1) and of 18 u.s.c. § 1111(a), defining first-degree murder. trial was violated." id. "if any of the errors being aggregated are constitutional in nature, time of the outstanding warrant for his arrest, and anticipated that law enforcement darst testified that he saw juror 46 at a deer festival in antlers, oklahoma, and that juror admission of alleged hearsay evidence during penalty phase of federal death penalty team approached barrett's property, there was a full moon and no clouds in the sky. id. at -44- states v. todd, 446 f.3d 1062, 1067 (10th cir. 2006). barrett did not, however, present the oklahoma state bureau of investigation was called in to investigate succeeds in making out a prima facie case, "the `burden shifts to the [government] to evidence do not apply to the penalty phase of a federal capital trial. see 18 u.s.c. § for the death penalty." aplt. br. at 58. barrett arguably presented this issue to the district handicapped entrance area made contact with billy poe of the oklahoma highway mitigating factors, whether the aggravating factors [we]re themselves sufficient to justify a nelson, 450 f.3d 1201, 1207 (10th cir. 2006). "under this framework, the party powers, specifically article 1, § 1, which provides that `all legislative powers herein -59- screen for the jury to read: "i wish kenneth barrett could just gone to jail with my dad factors with respect to all three counts: ninety-one rounds available for use at the time the shooting incident began. a search of okla. stat. tit. 22 § 1230. barrett focuses exclusively on the third such exception, which accordingly, the issue is subject to review only for plain error. united states v. teague, violation of 18 u.s.c. § 924(c)(1)(a) and (j). count 2 charged barrett with using and justify suppression of the evidence seized from barrett's residence. see mikulski, 317 character" if there was only "minimal . . . federal involvement . . . ." millar, 543 f.2d at § 1230(1). notably, the magistrate judge in this case found in his report and affidavit set forth facts indicating that the only time drug evidence would be found [at special interrogatories propounded by the district court, the jury found beyond a e.g., united states v. gama-bastidas, 222 f.3d 779, 785 n.4 (10th cir. 2000). however, 848(e)(1)(b), the killing of a state law enforcement officer engaged in or on account of deputy who was on detail with the drug enforcement administration's kenneth eugene barrett, victim impact testimony. 674 (7th cir. 2000). further, barrett has failed to establish that these two items of sentences invalid." aplt. br. at 63. barrett first raised this issue during trial by moving, at f.3d 232, 239 (5th cir. 1998) (citing touby v. united states, 500 u.s. 160, 165 (1991), barrett with using and carrying a firearm during and in relation to several drug-trafficking 11 hilfiger, cook & hilfiger, muskogee, oklahoma, with him on the briefs), for defendant- killed eales. id., instruction no. 14. young son; convictions, as well as his death sentence. we exercise jurisdiction pursuant to 28 u.s.c. he was substantially prejudiced by the error. as noted, defense counsel expressly states v. mcveigh, 153 f.3d 1166, 1219 (10th cir. 1998) (rejecting objection to a) state criminal proceedings we readily conclude that this claim lacks merit. to be sentenced to death under § 12 judgment" "regarding the punishment that a particular person deserves . . . ." amendment right to a jury trial . . . ; and violates the 8th amendment prohibition against 6 whose life was taken was a unique human being.") (internal quotation marks omitted) evidence of how "the victim [wa]s an individual whose death represent[ed] a unique loss entered eales' chest on the left side of his upper back. id. at 1611. after shooting eales, court construed a previous decision, walton v. arizona, 497 u.s. 639, 110 previously has been tried for the same acts in federal court. united states v. wilson, 413 to the district court, we have proceeded to analyze that argument on the merits. assert on appeal. as a result, any additional issues not raised and preserved by chapman v. california, 386 u.s. 18, 87 s.ct. 824, 17 l.ed.2d 705 (1967)." id. to defend against, and likewise were sufficient to enable him to assert a double jeopardy 1 and 2 of the superseding indictment charged barrett with violating 18 u.s.c. §§ drug task force] and two other dea task force agents executed the original review to apply to those challenges. in previous decisions, we have held that such claims the specific harm caused by the crime in question," and thus, "[i]n the majority of cases, . enforcement officers following his arrest. the district court denied barrett's motion to 631 ("freed from the view that indictment omissions deprive a court of jurisdiction, we force vehicles waited approximately two minutes before heading towards barrett's a race-neutral manner and thus violated the prohibition announced in batson v. kentucky, omitted), multiplicitous counts which may result in multiplicitous convictions are 2934, 106 l.ed.2d 256 (1989) (emphasis in original). the apprendi/ ring in his appellate brief, barrett cites to ring and generally alleges that the federal we find this decision highly persuasive. accordingly, we reject barrett's argument for the prevention and control) of title 21. 21 u.s.c. § 848(e)(1)(b). however, it is clear that at 302, the sentencing phase evidentiary standard employed by the fdpa clearly does not proportional review." aplt. br. at 57. because barrett did not raise this issue in the existence of, the elements of the underlying offenses in counts 1 and 2, "the alleged error honor, interacts with law enforcement officers in his security and sentence of death." 18 u.s.c. § 3593(a)(2). in turn, the statute states: count 1 of the superseding indictment alleged that on or about september 24, set forth in § 848, that "prosecutorial discretion to promulgate non-statutory aggravating nelson, 450 f.3d at 1207. a race-neutral explanation is simply any explanation, no (2) during and in relation to the predicate offense(s) barrett knowingly used and carried a continuing, the court stated that victim impact evidence "is designed to show . . . each have held that "[t]he defendant must . . . demonstrate `that an unauthorized contact who had intended to execute the warrant, dea task force agents were asked to actually ring v. arizona, 536 u.s. 584 (2002) in support of his arguments, that decision has no sentence. thus, his case is immediately distinguished from the only supreme court case rule applies by its terms only to findings of fact, not to moral judgments. effectively rendering the fdpa applicable to all federal death-eligible offenses. 5. batson challenge roa, vol. 37 at 1025. the district court conducted an in camera hearing, during which arrest warrant, and that "he was going out in a blaze of glory" if they did so. id. at 466. informed the parties it had received a report from government counsel and the clerk of the summarily, through each of the three steps of the batson framework, we will, consistent less than 5 years. finally, and perhaps most significantly, barrett's conduct in shooting at the officers proceedings. id. at 305. the remaining panel member concurred in the result, but rejected suppress, "except as to the guns seized under but not specified in the drug search warrant . criminal defendant charged with a § 924(c) offense to be separately charged with and is not otherwise apparent how ring is relevant to barrett's assertion that it was necessary in this circumstance." higgs, 353 f.3d at 324. moreover, even if the error were plain, were unanimously persuaded that the aggravating factors "sufficiently outweigh[ed] any that they agreed with these procedures. id. it is unclear from the record whether defense to barrett, "[t]here is simply no functional difference between `finding' and `weighing,'" contrary to barrett's assertions, this scheme did not result in the first statutory cruel and unusual punishment." aplt. br. at 56. in particular, barrett contends, albeit in although it is not entirely clear, barrett is presumably again referring to § 848's to kill law enforcement officers if they "showed up at his residence." id. at 333. further, as to the weighing process: "[t]he state could, as marsh freely admits, confrontation clause applies to a capital sentencing proceeding." united states v. higgs, aggravating factor, defendant's culpable mental state, "artificially inflating" the barrett also challenges the district court's decision to allow kelli eales to (a) government ultimately presented all seven of these witnesses during its case in chief, -46- supreme court in heath held that in assessing the validity of the dual sovereignty doctrine illuminated a wide area around the vehicle). a few older circuit cases can arguably be read as suggesting that violations of § weighing process toward death." aplt. br. at 60. because barrett did not raise this investigation of the crime scene by law enforcement officers determined that b) federal criminal proceedings the supreme court has explicitly held that judges may do the weighing of was shot in the legs by a tact team member. id. at 545, 548. even after being shot and photographs is only for plain error. although barrett asserted timely objections to the states v. nash, 482 f.3d 1209, 1217 (10th cir. 2007) (applying abuse of discretion not discussed with the other jurors his relationship with poe. finally, juror 85 testified barrett fired approximately nineteen shots at law enforcement officers using a colt [the defendant was] attempting to avoid apprehension, prosecution or service of a prison 1083 n. 2 (10th cir. 2001). case. finally, barrett has failed to explain how this alleged deficiency in § 848's [a] capital defendant be treated as a uniquely individual human being," but emphasized even if we were to assume, for purposes of argument, that the superseding doctrine in this case." id. code, section 843(a)(6); attempting to manufacture methamphetamine, in circumstances is a factual determination which could lead to an increase to the ultimate character, and crime." penry v. lynaugh, 492 u.s. 302, 319, 109 s.ct. agency also was notified because agent johnson anticipated there would but rather "promotes it." id. (internal quotation marks omitted). the objection, concluding that "the likelihood of the[] [jury] having read it [wa]s remote." non-sequestered jurors and virtually any other person during the course of a trial.'" id. course of using the firearm barrett killed eales. roa, vol. 3, doc. 240, instruction no. novo."). generally speaking, we review the sufficiency of an indictment de novo. united venireman and witness, except that such list of the veniremen and witnesses six tact team members in total, would then get out of their vehicles, walk on foot to the barrett contends that the inclusion of the "intent to kill" aggravating factor during brown, 441 f.3d 1330, 1360-61 (11th cir. 2006); united states v. johnson, 223 f.3d 665, progeny, the united states, as a sovereign, "`has the right to decide that a state prosecution [district] court's decision rests on an issue of law, . . . we review de novo."). aplt. br. at 65. in support of this contention, barrett points to 18 u.s.c. § 3432, and by the ci, prepared an affidavit for a search warrant. on september 20, 1999, the district reviewing the trial transcript in light of these instructions, we conclude the multiplicitous convictions are found, "the only remedy . . . is . . . to vacate one of the need not be furnished if the court finds by a preponderance of the evidence 21 u.s.c. § 848(k). finally, a jury, considering both aggravating and mitigating factors, perform the search. notwithstanding this involvement of dea task force agents, there the supreme court has held that "[i]n a criminal case, any private communication, sentenced to death "is unconstitutional and violated [his] right to due process; his 6th 17 briefly describing the impact that eales' death had on him; and latter, there can be but one penalty." id. (internal quotation marks omitted). where in conclusion, barrett has failed to establish any error, let alone plain error, be subject for the same offence to be twice put in jeopardy of life or limb.'" united states considered "improper because they allow multiple punishments for a single criminal court "that juror 85, during the lunch break, somewhere in the smoking area outside of the from there, the five tact team vehicles headed towards barrett's residence. the task granted shall be vested in a congress of the united states.'" united states v. jones, 132 duties, and possessing a firearm in furtherance of such crime of violence, in violation of their cumulative effect on the outcome of the trial is such that collectively they can no misdemeanors or both­are of the same or similar character, or are based on proceedings began. id. at 39 (entry for 9/26/2005). the district court, using a randomized have, but failed to, grant him a new trial as a result of the incident involving juror 85. list of the eighty-three prospective jurors it had qualified, called sixty-four jurors to the a firearm during and in relation to the killing of a state law enforcement officer engaged prospective jurors for the subsequent voir dire proceedings, and nothing in the record on 76 f.3d at 1106 ("the prosecutorial discretion to promulgate non-statutory aggravating of the hearing, the district court excused juror 46 from further service. id. at 1199. grounds that they were "emotional and highly prejudicial."8 conviction under § 924(c), even though the two convictions may be based on the same perhaps more importantly, the use of the phrases "may include" and "any other relevant approximately twenty-five inches from the top of eales' head, down from the area on the light bar on top and "wig-wag" headlights).14 its jury qualification proceedings over the course of five days, from september 12 through testified that he did not recall poe's name being mentioned during voir dire, and did not barrett timely raised this issue in a pretrial motion to dismiss the indictment, we review other than one of the participants in the offense, and eales died as a direct result of the victim be killed or that lethal force be employed against the victim, which resulted in the rejected the shooting with intent to kill charge and instead found barrett guilty of the and to assist the jury in determining whether a sentence of death is justified. that does not possessing a firearm in furtherance of such drug trafficking offenses, resulting in death, in questionaires [sic], their death penalty qualification, and then we amplified instructed the jury, as it was effectively required to under the statute then in existence, that -68- that he can plead an acquittal or a guilty verdict as a bar to a subsequent on september 24, 1999, barrett was charged by information in the district court him the names of those witnesses "amounted to an ambush, thereby denying [him] the we note, in passing, that we have not consistently applied our holding in creating unfair prejudice, confusing the issues, or misleading the jury"); united states v. (although the jury, in the course of finding barrett guilty of the § 924 charges, necessarily u.s.c. § 848(k) (2005). if a defendant became "death eligible" in this manner, the jury officer, and aggravating factors," and that the government's "failure" to timely provide charge of murder of a state officer on private property." aplt. br. at 76. it is unclear what government filed notice of its intent to seek the death penalty with respect to all three road that passed in front of barrett's residence, the driver, trooper john hamilton, conclusory fashion, that: (a) the penalty phase process of weighing aggravating and (2d cir. 2005) (citing cases from various circuits); united states v. frye, 402 f.3d 1123, sentencing phase of barrett's trial fundamentally unfair. "in evaluating whether the evidence is sufficient to support the jury's verdict, we with respect to count 3, the jury found that barrett, in the commission of the offense or equal force in the context of a fifth amendment challenge to the lack of statutory before directly addressing barrett's arguments, we note that at the time barrett -41- not just suppression of certain evidence, and, for the reasons discussed below, we not be, at least at first blush, adverse to that testimony. number 55, your it is true, as noted by barrett in his opening brief, that he filed a motion in limine 3593(c), is unconstitutional. united states v. fulks, 454 f.3d 410, 437-38 (4th cir. 2006); district court to conclude that no actual bias existed on the part of juror 85, and in turn to team) for assistance in serving the warrant. the tact team was "highly trained and the seven witnesses included randy turman, travis crawford, cindy reputation of these judicial proceedings. accordingly, we conclude that barrett's claim subject to plain error review if not properly raised in the district court proceedings. id. at furtherance of "a crime of violence, to-wit: title 21, united states code, section although "multiplicity is not fatal to an indictment," id. (internal quotation marks underlying offenses identified therein. whether to impose the death penalty. capital defendants have no · testimony from gene hise, a fellow oklahoma highway patrol trooper, for the government's decision to strike juror 134: towards barrett's residence, the gunfire intensified and the windshield of the bronco f) failure to narrow the class of persons eligible for death penalty approximately "head level." id. as hamilton continued driving the bronco westward as for barrett's sixth amendment claim, "[i]t is far from clear that the branch of government." id. (citing mistretta, 488 u.s. at 372). "congress, however, may allow defendant its benefits would be plain error."); amsler v. united states, 381 f.2d 37, issue de novo. united states v. jones, 468 f.3d 704, 709 (10th cir. 2006) ("when the generally speaking, "the alleged misjoinder of offenses under rule 8 is a question of law u.s.c. §§ 924(c)(1)(a) and (j). count 1 charged barrett with using and carrying a firearm id. at 57. because barrett did not present this issue to the district court, it is reviewed on that the federal government played a significant role in the earlier state prosecutions of complaint is that the elements of kidnapping are not also set forth. but barrett contends the district court erred in refusing to dismiss the indictment due to was then directed to "consider whether the aggravating factors found to exist sufficiently on september 23, 2004, a criminal complaint was filed against barrett in the sufficient "if it sets forth the elements of the offense charged, puts the defendant on fair and use of methamphetamine (e.g., coffee filters, hypodermic needles, digital scales, fails. 1997). here, however, barrett did not assert any misjoinder issues below. thus, the in the case on december 29, 2005. regardless of its admissibility under the rules governing admission of evidence at criminal d) suppression on double jeopardy grounds when barrett was seventeen years old (i.e., philpot had an altercation with a person charged with treason or other capital offense shall at least three congress intended that a conviction under § 848(e)(1)(b) would prohibit a simultaneous began to receive gunfire that hit the middle of the windshield, at approximately "head 6. constitutionality of federal death penalty scheme account of, the performance of such officer's official duties . . . ." roa, vol. 1, doc. 240, identify what statutory or constitutional right, if any, was potentially implicated by this conclude there is no merit to barrett's double jeopardy arguments. asserting his batson objection, i.e., the striking of the two african-american members of stating, in part: "other kids go through their entire life not having a good father. i am 841(c); possession of red phosphorous, a precursor chemical, knowing, of collateral estoppel, that argument fails for substantially the same reason as his double subsequent objection are subject to review only for plain error. batson challenges are analyzed by trial courts under the three-step, justice to file and prosecute this case after he was charged and convicted in oklahoma 993. the two lead tact team vehicles that approached barrett's residence from the east since september 24, 1999 (found by two jurors with respect to each count); barrett's residence] was at night." roa, vol. 1, doc. 105 at 11. thus, it is clear that the successively to prosecute a defendant for the same course of conduct can be termed intended to attack the constitutionality of the death penalty provisions set forth in 21 opening statements of the parties were given the following day, tuesday, september 27, barrett's residence, and the second and third vehicles stopped slightly behind hamilton's statutory aggravating factors. 21 u.s.c. § 848(n)(1)-(12) (2005). the first of those -60- official duties. id., instruction no. 15. elected to keep number 24, despite his reported illness. i just wanted to there were "two incarcerated witnesses" that would be made "available to defendant when mitigated against imposition of the death sentence (found by one juror with appeal from the united states district court lights (because barrett began shooting at it before the two officers inside had an aggravating factors in an indictment charging a death-eligible crime under the federal aplt. br. at 51. a review of arguments he now presents regarding misjoinder are subject to review only for plain evidence presented by the government was more than sufficient to allow the jury to defense counsel as to the sealed motion to withhold identity of certain witnesses, and that 2000) (holding that, "in order to establish a violation of § 924(c), the government ha[s] violence alleged in count 2, i.e., intentionally killing, during the commission of a drug trafficking crime, a state law enforcement officer engaged in the performance of his briefly describing the personal and professional characteristics of eales, and they were bored, unhappy, or nervous. we look at dress and demeanor as barrett's property was locked, three of the tact team vehicles, two ford broncos and a permissible. further, a defendant always retains the right to challenge, as impermissibly house, and enter through the front door. the tact team decided that a fourth unit, a official duties, in violation of 21 u.s.c. § 848(e)(1)(b). to convict barrett of that offense, thus, it is clear that the district court did not err in refusing to dismiss the superseding degree to which the juror was attentive, bold, decisive, intelligent, patient, the problem for barrett is that we have held, as have many other circuits, that the sheldon j. sperling, united states attorney (d. michael littlefield, assistant united -2- v. millar, 543 f.2d 1280, 1283-84 (10th cir. 1976). specifically, barrett complains that for life without possibility of release as demonstrated by his incarceration aggravating and mitigating circumstances consistent with the constitution. considering that there was an on-going investigation with no indication whatsoever that according to the record, toby barrett did not begin yelling "dad" until after the persons inside. failed to make any argument in the district court, but was also effectively afforded on the "characteristics" of the capital defendant, he is clearly wrong. in payne v. he cites in his brief, stringer v. black, 503 u.s. 222, 232 (1992) (indicating that the barrett used a colt sporter .223 rifle, equipped with three loaded magazines taped together the death penalty in connection with counts 1 and 2, but chose to impose the death district court to show eales' uniqueness as an individual human being. this includes: warrant for barrett's residence was issued to not only state law enforcement officers, but process as the "commencement of the trial." as hamilton's vehicle exited the ditch and headed towards barrett's house, it barrett next contends that the indictment was multiplicitous. aplt. br. at 41. that § 848 violates the sixth amendment because it does not require the jury to apply the this charge, the government was required to prove, in pertinent part, that barrett he has sustained or is immediately in danger of sustaining some direct injury as the result -38- (...continued) would be taken and intending that lethal force would be used in connection with a person, satisfy the conditions required under oklahoma law for service of a nighttime warrant. duties." "[t]he decision whether to excuse a juror rests on whether the juror can remain i think they are work product, but i will tell the court that essentially what circumstantial, together with the reasonable inferences to be drawn therefrom s in the light b) section 848's allowance of non-statutory aggravating factors 848, a defendant must be found guilty of having committed one of the qualifying crimes prosecution by one sovereign is used as a cover or tool for a successive prosecution by reasonable basis for questioning the government's credibility in offering its race-neutral counsel actually interviewed some or all of these witnesses prior to trial. in any event, the johnson considered the search warrant to be "high risk" in nature. tr. at 308.1 perforated the left upper lung lobe, and ultimately struck eales' aorta, causing a quarter- drug search warrant because they arrived at the scene after the shooting and although barrett contemporaneously objected to this incident, the district court overruled in escaping apprehension for the offense, knowingly created a grave risk of death to one as for juror 3, the government again pointed to its rating system, but also noted that juror sporter rifle had a lethal range of approximately 541 to 595 yards, and was capable of defendant kenneth barrett was convicted of using and carrying a firearm during eligibility factor and was then included in the weighing process. according to barrett, the after unsuccessfully attempting to provide first aid to eales, tact team members petite policy "is merely a housekeeping provision of the department" that, "at most," addresses, and other pertinent information for the witnesses at issue by september 19, pulley, or to otherwise explain why proportionality review should be constitutionally on october 5, 2005, the sixth day of the first-stage proceedings, the district court resulted in the death of the victim; (c) intentionally engaged in conduct intending that the state court. aside from the fact that this issue was not raised in barrett's motion to reasonable doubt. barrett also contends the indictment "improperly joined offenses." aplt. br. at 42. s.ct. 3047, 111 l.ed.2d 511 (1990), as holding "that a state death penalty alternates). the government used its tenth peremptory challenge to remove one of the sovereignty doctrine, under which courts recognize that the clause is no bar to serial acquitted barrett on the two charges of discharge of a firearm with intent to kill. on april the exercise of its judgment and discretion, to ensure that unconstitutional evidence more specifically, this aggravator asked whether the defendant "(a) that this juror is the one that should go next. we only have one more strike aplt. br. at 53. ultimately, barrett contends that the district court should (citations omitted). factor to justify the imposition of the death penalty. the crime is charged e) allowance of impermissibly vague aggravating factors 1974), and "to prevent trial by ambush where a defendant's life is at stake." fulks, 454 three shots that wounded eales, he was no more than ten to fifteen feet away from eales. team met members of the task force at a highway intersection near barrett's residence. of the government," and "[w]hen a defendant in a single act violates the `peace and approximately twenty to twenty-five yards away from barrett's residence. vehicle. unlike the first vehicle, the second vehicle had its emergency lights on, 3 of sequoyah county with one count of first degree murder and three counts of shooting reason why a violation of § 848(e)(1)(b) cannot be charged independently of the 10 in passing, barrett asserts that, "[a]t the very least, this court should reverse and argues that "[t]he federal prosecution was merely a tool for a[n] otherwise impermissible oklahoma state trooper), eales' widow, eales' sister, and eales' mother was improper in united states v. johnson, 941 f.2d 1102, 1108 (10th cir. 1991), we stated that · barrett was a father (found by all twelve jurors with respect to each such that a sentence of death is justified," and provides that such notice must "set[] forth issue] are prohibited, or the course of [conduct] which they constitute." united states v. jones v. united states, 527 u.s. 373, 399-400 (1999) (concluding that "any risk that the double jeopardy defense.6 reversible errors. struck eales' left flank region, entering after carefully examining the record, we are unable to conclude that the district admission of those photographs. ultimately, we are not persuaded that the district court 18 u.s.c. § 924(c)(1)(a) and (j). count 3 charged barrett with intentionally killing, for a capital offense must be given the benefits of its provisions, . . . and the failure to doctrine, congress may not constitutionally delegate its legislative power to another lastly, barrett contends that, should we determine that the search was federal, meanwhile, troopers gene hise and robert darst, who arrived at the scene in the -3- are acceptable to us otherwise. and i p[o]lled all four and we are down to a heath, 474 u.s. at 88). "a classic application of the dual sovereignty doctrine is the case than sufficient to have allowed the jury to reasonably find that barrett knew it was law of prejudice, however, by requiring a showing by the defendant that the communication darst further testified that juror 46 said "something to the effect that the driver of the required under § 848's scheme. thus, we conclude he has failed to establish plain error. remaining two photographs, he did so on a basis other than the one now asserted on enforcement officials who were approaching his residence en masse. at the time the tact -43- the past," even though "[t]he questionnaire that juror 85 filled out show[ed] no [such] barrett guilty of the lesser-included crime of first degree manslaughter. the jury also regard to the juror who was ultimately struck, that we had to repeatedly ask daughter and newborn son in a hospital room; exhibit 312, a photograph of eales with his -80- circumstances outweigh aggravating circumstances." marsh, 126 s.ct. at firearms during and in relation to certain crimes); united states v. mccullah, 76 f.3d sentencing phase evidence of the specific harm caused by the defendant," including during the commission of a drug trafficking crime, a state law enforcement officer barrett. although the superseding indictment included some amendments, it contained of the challenged official conduct") (internal quotation marks omitted). out of an engaged in the performance of his official duties, in violation of 21 u.s.c. § 18 u.s.c. § 924(j). the plain error test were satisfied, but rejected the claim on the grounds that the alleged id. although violations of state law may be relevant in making this determination, such although not directly on point, the second, fourth, fifth, and eighth circuits have both juror 134 (the second african-american juror), as well as juror 3 (the first african- or guided the current federal prosecution of barrett.19 prior precedent and held that it was constitutionally permissible for a state (or in this case contact, or tampering directly or indirectly, with a juror during a trial about the matter created a great risk of death to a person, other than one of the participants in the offense, although barrett attempts to equate voir dire with the jury qualification in reaching this conclusion, we do not mean to suggest that knowledge of the into the cumulative error analysis plain errors that do not, standing alone, necessitate id. at 760, 987, 991. the lights from this (10th cir. 2003) (noting that cumulative error analysis requires at least two errors). are jurisdictional in nature, can be raised at any time during the pendency of the the possible plain errors for plain error"). we find it unnecessary to resolve the question government counsel responded: united states v. trotter, 483 f.3d 694, 698 (10th cir. 2007) (internal quotation marks "consider any statements made or acts done by that person and all other facts and 9. government's failure to produce names and addresses of key witnesses appeal suggests that either the district court or the parties considered the jury qualification kidnapping is not the offense with which jackson was charged. rather, the the performance of the state law enforcement officer's official duties, in violation of 21 to be searched and . . . there is likelihood that the property named in the search warrant eales' widow was permitted to describe to the jury a drawing made by her young son and [a]ny person who, during and in relation to any crime of violence or drug they [we]re writted" to the district court. id. defense counsel advised the district court was disclosable, government counsel responded: victim's uniqueness as an individual human being," id. at 823 (internal quotation marks such that participation in the act constituted a reckless disregard for human life and eales firearm." id., instruction no. 7. in other words, barrett's intent to kill eales was an of three minority panel members [was] sufficient to satisfy . . . defendant's prima facie a reasonable doubt." united states v. ramirez, 479 f.3d 1229, 1249 (10th cir. 2007) expressly defined to "mean[] any sheriff, police officer, federal law enforcement officer, violence, i.e., the killing of a state law enforcement officer engaged in or on account of the from barrett, allowed kelli eales to read to the jury the bulk of that note, except for the the "jury [wa]s likely to . . . infer a criminal disposition on [his] part" due to his after that search was completed, agent beal [a pittsburg county sheriff's united states v. baker, 432 f.3d 1189, 1223 (11th cir. 2005). other circuits, in contrast, nechoechea, 986 f.2d 1273, 1283 (9th cir. 1993) ("we review the cumulative impact of the cumulative error must be harmless beyond a reasonable doubt, in accordance with execute the warrant. however, as a result of the shooting and its impact on the officers possession of 181.6 grams of pseudoephedrine, a list i chemical and 144.3 respect to counts 1 and 2, and by two jurors with respect to count 3); f.3d 458, 469-70 (10th cir. 2006) (concluding that the government's striking of "two out thus, he cannot discharging a firearm with intent to kill. the case proceeded to trial in the fall of 2002, after this one, your honor. our assessment includes these features: the serious threat in an institutional correctional setting to the lives or safety of other persons. barrett contends the government, by striking the last of only two african- question the seven witnesses, or objected to the testimony of these witnesses at trial as failed to make the requisite "strong showing of prejudice . . . ." johnson, 130 f.3d at violated his sixth amendment right to confrontation. because barrett did not raise these other words, the court held, "[a] state may legitimately conclude that evidence about the -16- override the dual sovereignty doctrine. see angleton, 314 f.3d at 773 (noting that "[t]he a) section 848's scheme for weighing of aggravating and mitigating factors prosecution and punishment undertaken by separate sovereign entities." id. (citing heath defense counsel an opportunity to interview said witnesses." id. at 34-35. on september peace." okla. stat. tit. 21 § 99 (emphasis added). applying that definition to § 1225(a), inclusion of this factor "in weighing the aggravation against the mitigation clearly resulted the crime adequately informs jackson of the particular element of the -51- 1019 (9th cir. 1991) ("as a practical matter, . . . under the criteria established by bartkus these arguments below, his arguments are reviewed for plain error. appellant. establish plain error. united states v. fort, 478 f.3d 1099, 1106 (9th cir. 2007) (holding that strictures of rule substantial rights, or to demonstrate how the error seriously affected the fairness, integrity gate after the bronco drove by his residence. crawford spoke to barrett and barrett rather than shooting my dad because now he's in jail and i don't have my dad."7 on february 9, 2005, the grand jury returned a superseding indictment against 231 (1985). in death cases, "the sentence imposed at the penalty stage . . . state prosecution there should be no federal prosecution for the same transaction in the -5- statutory aggravating factors concerned the mental state of the defendant at the time of the "any jurors who are unable to perform or who are disqualified from performing their jury found, with respect to all three counts of conviction, that barrett caused injury, harm, 16 such predicate offense. united states v. njb, 104 f.3d 630, 633 (4th cir. 1997); united juror attentiveness, decisiveness, intelligence, patience, honesty, and other non-race-based batson claim"); united states v. johnson, 4 f.3d 904, 912-14 (10th cir. 1993) jury's decision that the aggravating factors outweigh the mitigating factors is ford bronco during the early evening hours. travis crawford, barrett's cousin, was in double jeopardy grounds, as well as on the basis of collateral estoppel and the statute of defense (and he does not argue otherwise). it is true that neither count 1 nor count 2 437 (4th cir. 2005) (noting that the purpose of § 924(c) is to punish criminals who use circumstances received in evidence which m[ight] aid in [its] determination of that those findings on appeal: the part of the government. encompasses cases in which the affiants are "positive that the property is . . . in the place general act of using a firearm to intentionally kill a state law enforcement officer engaged during which it and defense counsel questioned juror 85 about the incident. juror 85 [adopt a] scheme requiring the state to prove by a mere preponderance of id. at 290. justice guidelines: balance "discretionary justice," 13 cornell j.l. & pub. pol'y 167, 179 united states district court for the eastern district of oklahoma charging him with eight government, accepting the district court's factual findings unless clearly erroneous." -28- offense barrett caused the death of eales with the firearm. id. finally, count 3 charged court in his motion to declare the federal death penalty scheme unconstitutional. roa, aggravated offense with which he was charged. the reference to meanwhile, hamilton threw a diversionary device out of the driver's side window statutory" aggravating factors. the united states, uses or carries a firearm, or who, in furtherance of any in a particular case, the "crucial determination is whether the two entities that seek state that as amplification for the previous justification. we accepted the see id. at 3068-69, 3106, 3493. indeed, on the evening of september 23, 1999, barrett entered a deep ditch that lay between barrett's residence and the property to the east, and information provided by the task force, the tact team decided to execute the search 848(e)(1)(b). with respect to count 3, the grand jury made the following "special by raw numbers," but rather required the jury to consider "the quality and value of the as for the night of the shooting incident, the evidence presented at trial was more reported that juror 85 "shook [poe's] hand and indicated as if he had known mr. poe in only in "rare cases" will an error be deemed "structural" and "thus require[] automatic consider victim impact evidence. id. at 822 (internal quotation marks omitted). offenses after substantial planning and premeditation to cause the death of a person.3 the warrant, barrett responded by saying "d.g.f.," which, according to crawford, meant successfully proved purposeful racial discrimination. "this final step involves evaluating enter barrett's property, immediately following the two lead broncos, was a marked -64- the five-day jury qualification process was intended simply to create a large pool of tact team vehicle, a marked highway patrol unit driven by trooper hash, also had its the question we face here is whether the three counts alleged in the superseding evidence was more than sufficient to allow the jury to reasonably find that barrett knew we simply note, under the unique facts of this case, that barrett's knowledge of eales' victim and about the impact of the murder on the victim's family is relevant to the jury's government was required to prove that (1) barrett committed the predicate offense, (2) death penalty act (fdpa). see united states v. brown, 441 f.3d 1330, 1367 (11th cir. as he got out of the lead bronco), 1158-59 (indicating the lights of marked unit lit up the doctrine (he made such an argument in his motion to dismiss filed with the district court, the evidence that the aggravators outweigh the mitigators." id. at 2532 n. 2. on september be a methamphetamine lab to clean up at the scene, although the federal process called for each juror's "careful, considered and mature judgment," id. at 5324, in barrett complains, again in conclusory fashion, that § 848 "allows a relaxed team members, including the three shots that hit eales. id. at 1884, 3256. the colt venire . . . ." for the reasons discussed below, we conclude that barrett has failed to gunfire. hamilton's passenger, eales, opened the front passenger door, got out of the distributing methamphetamine at his residence. johnson, using the information provided in his final issue on appeal, barrett contends that "[e]ven if none of the [alleged] officials would come to his house to arrest him at some point. tr. at 400-01. despite that what he describes as the government's failure to follow its own "petite policy." because law enforcement officials from both sovereigns acting together, is irrelevant and cannot barrett's argument is foreclosed by our decision in mccullah. there, we held, in sustained. the aggravating factor or factors that the government . . . proposes to prove as justifying a to sustain its burden of proof against barrett on this charge, the government was required observed one of these vehicles on the afternoon prior to the shooting (it was used in the individualized consideration, was to receive that consideration wholly apart from the 2006); united states v. allen, 406 f.3d 940, 942-43 (8th cir.2005) (en banc); united troopers were dragging barrett, another trooper, danny oliver, yelled at them that barrett the defendant in jackson, barrett was not directly charged with those underlying offenses. s.ct. 2516, 165 l.ed.2d 429 (2006), supports our conclusion. in marsh, the acquiesced in the disclosure schedule proposed by the government and at no time · barrett, at the time of the shooting incident, had no prior felony the federal government) to "conclude that for the jury to assess meaningfully the the tact team attempted to serve the search warrant on barrett's property and barrett greninger and ricky manion, was less than a car length behind the first tact team encompassed cherokee, wagoner, adair and sequoyah counties in oklahoma, received f i l e d u.s. at 165 (brennan, j., dissenting)); see united states v. figueroa-soto, 938 f.2d 1015, respect to each count); the government's proffered rationale, simply stated that he "st[oo]d by . . . [his batson] such a case, collusion between federal and state officials might blur their distinction such predicate offense." id. at 37. 13 of the victim's personality and the life he led. indeed, this court and others have penetrating the metal of an automobile. id. at 3573, 3586. at the time barrett fired the (continued...) barrett first asserts that the superseding indictment was insufficient because it proceedings conducted by the district court, it is apparent from the record that the two -40- assistance of the oklahoma highway patrol with entering and securing the tennessee, 501 u.s. 808 (1991), the supreme court noted that it had long "required that § 1291 and affirm. by a federal capital defendant: substantial rights were affected by the cumulative effect of the harmless errors." id. the first two convictions, and to death for the third conviction. barrett now appeals his grave risk of death to persons other than hamilton and eales. forbidden delegation of legislative power.'" id. (quoting mistretta, 488 u.s. at 372). barrett complains that his sixth amendment right to confrontation was violated when lanza, 260 u.s. 377, 384 (1922), the supreme court held that the double jeopardy clause denying his motion to suppress. as for mitigating factors, some or all of the jurors found the existence of the following -14- traveling less than a car length behind the second vehicle. enforcement officials. further, although the lead bronco did not exhibit any flashing "[e]ven without the protections of the evidence rules, it remains for the [district] court, in has not vindicated a violation of the "peace and dignity" of the federal government.'" district court that trooper robert darst, who was scheduled to be a witness, informed the failure to appear for jury trial. although barrett managed to avoid arrest during the `spillover effect' . . . is sufficient to warrant severance." united states v. wiseman, 172 between barrett's house and a property to the east. id. at 537. according to hamilton, jeopardy arguments, i.e., the federal government and the state of oklahoma are separate he accept [sic] certainly through the reading of the indictment here, but counts 1 and 2 of the superseding indictment charged barrett with violating 18 afford the jury any such unbridled discretion. thus, barrett has fallen far short of which "[t]he search to be performed is a search for evidence relating to the illegal firearms, including a fully loaded 12 gauge shotgun and a fully loaded .22 caliber pistol. to date, we have never addressed the question of how to, if at all, incorporate arrived at the rear of the vehicle, eales was struck by three gunshots. on january 28, 1999, the district court of sequoyah county, oklahoma, issued a court's factual finding that it was unlikely that the jury read the sentence, does not exception exists, if at all, only in the rarest of circumstances." id. (citing bartkus, 359 "emotional and highly prejudicial." id. at 51. conference, during which the parties announced ready for trial, and the district court vehicle had been on the stand and he would see me here." id. at 1190. at the conclusion id. at 161. thereafter, the district court summarily overruled barrett's batson objection respondents' forfeited claim."). thus, in accordance with cotton, we review barrett's the government's assertion that the details of its rating system were protected by the with our decision in johnson, focus solely on the last two steps of that framework.10 cir. 2004) (concluding that defendant had failed to establish plain error arising out of (1989) (citing lewis v. united states, 146 u.s. 370, 374 (1892)). sign reading: "keep out. i don't give a shit who you are, if you cross my gate or come on error. see united states v. carter, 481 f.3d 601, 606-07 (8th cir. 2007) (applying plain "regarding victim impact evidence." roa, vol. 2, doc. 202 at 1. that motion, delay the production to barrett of approximately seven witness names.17 conducted in this case could be considered the "commencement of the trial" for purposes meaning of the phrase "commencement of trial," as used in § 3432. see united states v. had to prove that he "directly caused the death of david eales through the use of a allows a relaxed evidentiary standard in violation of woodson v. north carolina, 428 us transcript collectively as "tr.," and will not cite to the individual volume numbers. trial).18 as a threshold matter, we note that barrett never raised this issue below. box. id. at 32 (entry for 9/09/2005). the parties were allowed to conduct "general voir in the performance of his or her official duties. that is because § 848(e)(1)(b) is focused are separate sovereigns. thus, the alleged circumstance barrett points to, i.e., evidence of aggravating factor, i.e., that the defendant committed the offense of conviction with one of manslaughter conviction and ten years on the assault and battery conviction, with the two hamilton then moved towards the rear of his vehicle. as he did so, he was shot in the c) proportionality id. at 4304-05. vague, any particular non-statutory aggravating factor alleged by the prosecution in his committed any error, let alone plain error, in admitting these four photographs. in case, to be separately charged with and convicted of a predicate drug-trafficking crime. 46, after greeting him, asked him, "aren't you going to that trial?" id., vol. 38 at 1189. to read to the jury an essay written by her young daughter. id. at 52. finally, barrett substantial number of his responses with regard to our questioning. v. lyons, 461 u.s. 95, 101 (1983) (noting that, to have standing, a party "must show that that "[i]n determining the issue of what . . . a person intended at a particular time," it could barrett contends that the federal death penalty scheme under which he was (internal quotation marks omitted). similarly, the second circuit noted that the fdpa's during questioning, their probable attitude toward the government, whether 18 u.s.c. § 924(c)(1)(a). in turn, § 924(j) states, in relevant part: dire questioning," and then were each given "23 peremptory challenges." id. at the hand. id. at 1269-70. juror 85 testified that he did not discuss the case with poe, and had warrant for barrett's arrest on charges of unlawful delivery of a controlled drug and the government tenders a race-neutral explanation, "`the trial court must then decide . . . factors falls squarely within the permissible delegation of power to the executive counts 1 and 2 were charged, and 21 u.s.c. § 848(e)(1)(b), the statute under which -31- applying these principles to the facts presented here, we conclude that the victim agents were not expected to participate in the raid itself. * * * the district court instructed the jury, without objection from barrett, that the word kill, or the intent to kill a law enforcement officer, thereby rendering [his] convictions and multiplicitous as to each other. it is true that both counts were based on barrett's violation of title 21, united states code, sections 846 and 841(a); and roa, vol. 1, doc. 105 at 2. appeal only for plain error. mentioned in its direction . . . ." okla. stat. tit. 22 § 1227. thus, we conclude it was exhibit 318, a photograph of eales' and his family at christmas. for counts 1 and 2 of the superseding indictment to specifically allege the elements of the a) sufficiency - failure to set forth elements of predicate offenses barrett cites to, 18 u.s.c. § 3593(a), describes the type of written notice that the manion and hash, dragged barrett out of the house and into the front yard. as the three id. § 3593(a). two features of this statutory language are important to note. first, it the following morning, prior to the parties' opening statements, government factors concerning the effect of the offense on the victim and the victim's shoot the first police that came through his door," id. at 2515, and "he was going to take the jury rejected the statutory aggravating factor that barrett knowingly created a performance of such officer's official duties, and possessing a firearm in furtherance of underlying count 1 are distinct from the crime underlying count 2, the two § 924 counts necessary for the government to offer a race-neutral reason for striking juror 134. warrant during the night with the hope that barrett and any other occupants of the reversal." washington v. recuenco, 126 s.ct. 2546, 2551 (2006). moreover, such a rule conclusion of the voir dire proceedings that day, the district court and parties had selected factors, developed a system pursuant to which it rated each of the sixty-four prospective barrett argues that the government's disclosure of the seven witness names was itself "impinges on interstate and [potentially] international trade and commerce over · that sequoyah county sheriff johnny philpot had mistreated barrett judicial proceedings." id. (internal quotation marks omitted). proceedings, and therefore that application of the plain error standard is inappropriate. pending before the jury is, for obvious reasons, deemed presumptively prejudicial . . . ." juror 85 testified that he simply recognized poe, said "billy poe," and then shook poe's also look, your honor, at how the juror reacted to us and to the defense september 13, 2005, the government advised the district court that it had "spoken with count 3 was charged, that congress intended to permit multiple convictions and one of the occupants of that vehicle would remain in that position to provide cover for the that he was simply reacting in defense of himself and his son, the above-described indictment were based on a single "unit of prosecution." as noted, count 1 charged that the aggravating factors outweigh the mitigating factors beyond a trafficking crime, a state law enforcement officer engaged in the performance of his proceed to apply the plain-error test of federal rule of criminal procedure 52(b) to occurring approximately fifteen to twenty years prior to the trial. juror 85 further process] and then at the general voir dire. i frankly feared that i had quotation marks omitted). "if the former, then each act is punishable separately. if the testified he had worked with poe's mother many years before and thus knew poe as a information" clearly suggests that congress intended to permit the admission of any other considering the issue have unanimously concluded that the holding in ring applies with barrett's conduct in the months, weeks, and days leading up to the shooting double jeopardy defense." todd, 446 f.3d at 1067 (internal quotation marks omitted); resulting from the manner in which the jury was instructed to utilize the mental culpability jr., in addition to eales. roa, vol. 1, doc. 9 at 5-6. enumerated in § 848(e)(1)(a) or (b). in addition, a jury must find beyond a reasonable and loss to the victim's family, but rejected the government's assertion that barrett was its inability to understand all of juror 134's answers; its concern that its request for juror attorneys' manual since its adoption by the department. see ellen s. podgor, dep't of described the impact that eales' death had on her and her family members; on november 17, 2005, at the conclusion of all the second-stage evidence, the jury observed three of the tact team members drive by his residence in an unmarked vehicle, outlined how voir dire proceedings would be conducted. dist. ct. docket sheet at 37 trooper eales. to independently assess the proper penalty for the counts of conviction because it rejected that eales suffered gunshot wounds to his chest, his left flank, and his right arm, all of break in the trial proceedings, the second-stage proceedings began on november 9, 2005. establishing plain error arising out of this issue. other team members, while the second and third occupants of that vehicle would climb and field supervisor for the district twenty-seven drug task force (task force), which (i.e., harmless errors and plain errors failing to necessitate reversal).20 knew would create a grave risk of death to a person, other than one of the participants in barrett's property, including his house and outbuildings, produced a variety of other violations do "not, without more, necessarily [result] in a federal constitutional violation." 709 ("when the [district] court's decision rests on an issue of law, . . . we review de question the other reasons offered by the government for striking juror 134 and juror 3: elisabeth a. shumaker trial, november 4, 2005, the jury found barrett guilty of all three counts. in response to in or on account of the performance of such officer's duties, in violation of 18 u.s.c. §§ 22 (2005) (reaffirming that federal drug trafficking laws are within congress's power to possibility of release should be imposed with respect to counts 1 and 2, and that a status as a law enforcement officer was relevant to the issue of barrett's intent to kill or more persons in addition to eales, and that barrett committed the offense after resulted in the deprivation of his fifth, sixth, and eighth amendment rights. according 19 administration, special agent[s] with the bureau of alcohol, tobacco and firearms, or fdpa and § 848 in the district court, we will assume, for purposes of this appeal, that he "in analyzing whether sequential prosecutions are undertaken by separate sovereign appeal. thus, we likewise apply plain error review to his appellate challenge to the rear of the bronco (presumably to obtain cover). as he did so, eales was struck by three passenger in the lead bronco driven by hamilton, opened the passenger side door (which whole life." according to barrett, this evidence constituted hearsay and its admission "is founded on the common-law conception of crime as an offense against the sovereignty violation of this statute. because there is no indication in the record that barrett asserted or for life . . . . abridged, nothing in barrett's response could reasonably have caused the district court to determining "the appropriateness of sentencing [barrett] to death." id. at 5323. u.s.c. § 848(e)(1). on november 9, 2004, a federal grand jury returned a three­count expressly approved the admission of such evidence. see united states v. barnette, 211 his time with eales in the marine corp, his travels with eales, the -52- the fdpa, 18 u.s.c. §§ 3591-98. that statutory scheme applied to counts 1 and 2 of the on the trial for proving the indictment, stating the place of abode of each supreme court has interpreted the clause as prohibiting not only multiple punishments for an evidentiary hearing on barrett's motion to suppress, and barrett has not challenged level" of hamilton and his passenger, trooper david eales.2 killing in violation of this statute "is within the power of congress because" it is "the fifth amendment's double jeopardy clause states that `[n]o person shall . . . subchapters i or ii of chapter 13 (drug abuse prevention and control) of title 21, "who 3593(c) ("information is admissible [during the penalty phase] regardless of its underlying crime of violence, and therefore necessarily had to find that barrett 1087, 1105 (10th cir. 1996) ("congress has clearly expressed its intention that the § killing, during the commission of a drug trafficking crime, a state law enforcement officer thompson, 579 f.2d at 1189; e.g., united states v. jackson, 327 f.3d 273, 295 (4th cir. both juror 134 and juror 3, we turn to the ultimate question of whether barrett prosecution would result") (internal quotation marks omitted). in light of these unique envisioned by payne, and was not "so unduly prejudicial that it render[ed] the trial factual background that an indictment must include all the elements of an offense, these johnson was aware that barrett's residence was accessible only by a dead-end road, that violation of 21 u.s.c. § 848(e)(1)(b). to sustain its burden of proof against barrett on government's rationale, and instead rested on the basic facts he pointed to in initially unless the judge f[ound] the existence of at least one of" three enumerated exceptions.5 the same act or transaction, or are connected with or constitute parts of a serves as "a guide for the use of the attorney general and the united states attorneys in errors failing to necessitate reversal) into their cumulative error analysis. see, e.g., the shooting. agency vicky jones (now lyons) obtained another state congress intended for § 848(e)(1)(b) to establish a substantive offense separate from any barrett's shots were hitting in the middle of the windshield of the bronco, at we are now into a grading system such that we have to kick people off that the burden to prove," in pertinent part, the commission of the underlying offense). thankful that my dad showed me how to love in six and a half short years to last me my thus, it is clear that the district court did not violate the federal rules of evidence in united states, 361 u.s. 531 (1960) (recognizing the policy), "provides that following a offenses alleged in counts 1 and 2, or for the jury to have convicted him of such offense must be given the benefit of its provisions."). to the extent that was the intent of even assuming, for purposes of argument, that the jury qualification process discretion and channeling prosecutorial resources does not provide license for courts to speaking, "we construe rule 8 broadly to allow liberal joinder to enhance the efficiency states v. villarreal, 963 f.2d 725, 728 (5th cir. 1992). therefore, we find no persuasive -76- a ford bronco driven by trooper hamilton, as soon as the vehicle cleared a ditch that ran giving "`due deference to jurors' declarations of impartiality and the trial court's 2005, "to advise the court fully of the arrangements to disclose the names and allow first statutory exception was applicable in this case and allowed the judge who issued the we readily conclude that the government offered race-neutral reasons for striking -63- although barrett argues that congress has expressly limited victim impact penalty for count 3. -35- made out a prima facie case of discrimination. e.g., united states v. abdush-shakur, 465 culpable mental states. 21 u.s.c. §§ 848(k) and (n)(1). further, the jury must find that it had "never held or even suggested . . . that the defendant, entitled as he was to marked highway patrol unit, would enter barrett's property by first driving north on a aggravating factor in determining the appropriate sentence with respect to count 3. cf. count 3 of the superseding indictment. in march 2006, not long after barrett was indeed, the second circuit noted, "the fdpa does not undermine heightened reliability," 2003) ("that the department of justice has developed an internal protocol for exercising exception is present." aplt. br. at 74. clearly, however, barrett has failed to make a the record on appeal indicates that barrett asserted no objection below to two of the four dignity' of two sovereigns by breaking the laws of each, he has committed two distinct other internal prosecutorial protocols do not vest defendants with any personal rights."). likely to commit criminal acts of violence in the future which would be a continuing and warrant. it was determined that the tact team would enter and secure the area first, and of impermissibly vague aggravating factors." aplt. br. at 57. because barrett did not indictment and a list of the veniremen, and of the witnesses to be produced reversal. some circuits combine all non-reversible errors (i.e., harmless errors and plain were white ford broncos. id. at 984. although the broncos were unmarked, barrett had trial," as required by § 3432. according to barrett, the trial in his case "commenced" on f.3d at 1232. alienated him by asking him to speak up, and honestly did not hear a sentencing scheme prejudiced him. thus, he has failed to establish plain error. offense.13 district court, it is subject to review on appeal only for plain error. the district court, let alone plain error. at the time the search warrant for barrett's indictment. count 3 directly charged barrett with committing the underlying crime of the judgment below only if there is (1) error, (2) that is plain, which (3) affects substantial death of david eales, through the use of a firearm . . . ." id. at 2-3. objection." tr. at 161; see id. at 176 ("we have nothing further on the record . . . for relevant information. for the eastern district of oklahoma relative few at our table and we have all, in terms of our rating, indicated ability to be fair and impartial. the district court expressly found juror 85's testimony sincere and honest. the more unlike the defendant, the better for us. we eales' death. matter how implausible, that is "based on something other than the race of the juror." barrett, effectively seeking to extend the supreme court's decision in ring, argues integrity of the federal courts or to govern the conduct of federal officers." united states and the fact the petit jury in his case was instructed as to, and specifically found the court stated it was "satisfied" with "juror 85's explanation of the situation," and thus power, he is clearly wrong. as previously noted, that statute makes it a federal crime for indicated he had seen the bronco and knew it belonged to law enforcement officers. reference[s] to the statutory definition[s] of th[os]e crime[s] adequately inform[ed]" aggravating factor for a jury to consider in deciding whether death is an appropriate -62- apprehension, prosecution or service of a prison sentence for, a felony violation of" but ended in a hung jury on october 18, 2002. barrett was retried in january and racial discrimination. a key fact in support of our decision is that barrett, in response to for a defendant to become "death eligible" under this scheme, the jury, during procedural background the government had to prove, as it did with respect to count 2, that barrett intentionally constitutional right to a jury at sentencing. see proffitt v. florida, 428 u.s. refuse to remove juror 85 from the panel. original search warrant was executed by federal law enforcement officers (i.e., dea task that there was nothing about his relationship with poe that would keep him from being expressly rejected claims that a nearly identical provision of the fdpa, 18 u.s.c. § contained therein. lastly, although barrett cites to the supreme court's decision in 476 u.s. 79, 86 (1986), against "[p]urposeful racial discrimination in selection of the -23- 12, 2005 (the following monday), the district court issued a minute order setting the congress formulates `an intelligible principle to which the person or body authorized to was no evidence that a federal prosecution was envisioned at the time of the search. see claims below, they are subject to review only for plain error. constitutionally death eligible"). thus, we review the issue de novo. jones, 468 f.3d at attempt to distinguish § 848's scheme from the state death penalty scheme at issue in we cannot conclude that the showing required must be proof beyond a § 924(j)(1), coupled with the fact that the violation involved an aggravating offenses of conviction, and that, with respect to each of the three counts of conviction, he see clemons v. mississippi, 494 u.s. 738, 745, 110 s.ct. 1441, 108 methamphetamine, in violation of title 21, united states code, section residence was issued and executed, oklahoma law required search warrants "for occupied error standard where defendant moved for a severance prior to trial, but did not renew his 18 u.s.c. § 3432. the purpose of the statute has been variously described as "to inform a total of eighteen petit jurors (twelve regular jurors and six alternates). id. at 32, 40. the 3432 always result in reversible error, plain or otherwise. e.g., united states v. crowell, -74- 1283. a review of the record on appeal indicates that is precisely the situation here. as united states court of appeals the indictment or information may charge a defendant in separate counts wound to the chest entered the left side of eales' upper back, broke four of eales' ribs, firearm, (3) the firearm played an integral role in the predicate offense(s) and (4) in the information from a confidential informant (ci) that barrett was manufacturing and · barrett was a loved son and stepson (found by all twelve jurors with 45 (9th cir. 1967) ("section 3432 is mandatory and defendants indicted for a capital the underlying crime of kidnapping, as defined by 18 u.s.c. § 1201." 327 f.3d at 290. number of aggravating and mitigating factors and reach a decision based on which number -36- 16, 2005. on each of those five days, the district court, in the presence of the parties, v. alabama, 474 u.s. 82, 88 (1985)). the supreme court has explained that the doctrine the vicinity at the time of the drive-by and observed barrett walk to the area of the front 1427. on this point, barrett asserts he was prejudiced "because his association with drugs government is a tool, a sham or a cover for the other government."). in the instant case, bearing on the issues he raises. in ring, the court held that an aggravating factor the persuasiveness of the justification[s] proffered by the prosecutor . . . ." rice v. an individual human being' allowed by payne"). testified appropriately and responded appropriately that he would be able to publish 1 argument below, it is subject to review only for plain error. violation, barrett "caused the death of david eales through the use of a firearm . . . ." id. federal magistrate to whom it should be returned. again, there is no indication in the emergency lights on, including a full light bar on top. the lights from the light bar were barrett began shooting), 987 (indicating that lights were activated prior to any shots being -54- outweighed by the danger of unfair prejudice." 21 u.s.c. § 848(j). 2524. additionally, in a concurring opinion in marsh, justice scalia "persuasive, or even plausible," so long as it is facially valid. purkett, 514 u.s. at 768. -71- · testimony from kelli eales, eales' widow, briefly describing her the issue de novo. see generally united states v. lewis, 240 f.3d 866, 869 (10th cir. serves two purposes, i.e., to narrow the class of defendants eligible for the death penalty district court did not abuse its discretion in refusing to discharge juror 85. as noted, your honor, first, this method of selection requires us to kick 23 people. superseding indictment, we review them de novo. see united states v. cordoba, 71 f.3d rights, and which (4) seriously affects the fairness, integrity, or public reputation of (o'connor, j., concurring). fails to rise to the level of plain error. see united states v. lee, 374 f.3d 637, 652 (8th rule 8(a) analysis and, in any event, it is apparent from the verdicts that the jury was able possessed eleven different firearms, each identified by type and serial number, in handgun that eales carried on his right hip and then ricocheted and struck eales' right (2004) (citing reference to policy in u.s. attorneys' manual § 9-2.031 (2003)); prospective jurors. thus, he argues, the government's disclosure of the seven witness each count 1 and 2). see united states v. mckissick, 204 f.3d 1282, 1292 (10th cir. by showing that the totality of the relevant facts gives rise to an inference of because, even applying the standard of review more favorable to barrett, his batson claim glimpse of the life petitioner chose to extinguish, . . . to remind the jury that the person dragged outside of his residence by tact team members, barrett made movements as if peremptory challenge to strike juror 134, the second and remaining african-american thus, although the government's explanation of its juror rating system was "the nondelegation doctrine arises from the constitutional principle of separation of that somewhat by what happened today [during the voir dire process]. state law enforcement officer engaged in the performance of his official duties, in barrett first contends that the original search warrant issued for his residence (i.e., 2005 (a monday), and to make those witnesses available to be interviewed by defense hamilton approached and entered the house, told barrett to get up, and barrett responded "burden-shifting framework recently clarified by the supreme court in johnson v. permissible under oklahoma law for the federal law enforcement officers mentioned in 41 apply to local officials only if "from the beginning it was assumed a federal turning to the merits of the issue, we conclude there was no error on the part of the second-stage proceedings, had to find the existence of (1) this first statutory reasonable doubt standard in weighing the aggravating and mitigating factors. according whether the opponent of the strike has proved purposeful racial discrimination." id. criminal behavior." united states v. johnson, 130 f.3d 1420, 1424 (10th cir. 1997). united states v. angleton, 314 f.3d 767, 771 (5th cir. 2002) (italics in original). vehicle's emergency lights, as the tact team had originally planned for them to do. reasons for striking juror 134 and juror 3, and we ultimately agree with the district court · that barrett never left his residence during 1999 (found by one juror with the warrant was not requested by or issued to a federal officer, and failed to designate a evidentiary standard is "both constitutionally permissible and relevant to the determination impact evidence as defined by the supreme court in payne, and in no way rendered the suggested, in dictum, that there is an exception to the dual sovereignty doctrine where than three days prior to the commencement of trial. near the edge of the front porch of barrett's residence. id. at 540. eales, who was a untimely because it did not occur "at least three entire days before commencement of barrett contends that "[t]here was insufficient evidence that [he] had the intent to id. at 538. the gunfire and thus "[t]he determination of whether aggravating circumstances outweigh mitigating where a defendant violates the law of two sovereigns, he commits separate offenses." 15 september 12, 2005, when the district court began a week-long process of qualifying -75- otherwise admissible under applicable evidentiary rules is excluded from trial." id. mandated by this court. under tenth circuit precedent, an indictment is considered deceased," noting that "the unique qualities of a murdered individual and his or her life sentence now objected to by barrett. -55- common scheme or plan. forfeited error because, given the overwhelming nature of the evidence against [barrett]" decision as to whether or not the death penalty should be imposed." id. at 827 (emphasis relationship and life with eales, and the impact that eales' death had on her words, the motion argued that only the family of the victim could offer victim impact (quoting brooks, 161 f.3d at 1246). -42- if the court please, i'd like to amplify one thing. there was a batson the testimony was conflicting as to when, precisely, the lights of this marked branch."). thus, barrett's arguments regarding non-statutory aggravating factors do not barrett attempts to bypass the dual sovereignty doctrine by arguing that "[t]he indication." id. at 1265-66. the district court proceeded to conduct an in camera hearing same reasons stated by the fifth circuit in fields. intentionally killed "any federal, state, or local law enforcement officer engaged in, or on barrett suggests that this incident, together with another incident of alleged juror the other incident of alleged juror misconduct referred to by barrett involved briscoe, circuit judge. (internal quotation marks omitted). "we evaluate the sufficiency of the evidence by -8- whole area), 1343 (indicating that light bar on top of marked unit was very visible), 1496 rifle. hamilton fired two rounds at barrett, but did not hit him. manion moved from the (...continued) aggravated crime, that an aggravating factor existed. (citation omitted). carrying a firearm in relation to a crime of violence, i.e., the killing of a state law reaching for a pistol he had concealed in the waistband of his jeans. id. at 1113. -6- barrett suggests, in passing, that the evidence seized during the search of his residence nor do barrett's arguments justify application of the "sham prosecution" exception continued to observe the man, who was later determined to be barrett's son toby, as he united states v. mikulski, 317 f.3d 1228, 1232 (10th cir. 2003). using methamphetamine, in violation of title 21, united states code, no. 15. further, the district court instructed the jury, again without objection from barrett, 14, 2005, the government advised the district court "that it ha[d] reached an agreement dual sovereignty doctrine . . . exists independently of any interaction between awareness, or perhaps because of it, barrett exhibited a defiant attitude towards law (internal quotation marks omitted). instead, the fourth circuit noted, "the fdpa provides challenging a peremptory strike of a prospective juror must make out a prima facie case the context of an identical challenge asserted by a defendant to the death penalty scheme see ring, 536 u.s. at 602, 122 s.ct. 2428. 327 f.3d at 290. protection afforded by the double jeopardy clause." id. "it is known as the dual subsequent investigation of the crime scene by law enforcement officials revealed that government's motion for a sealed ex parte hearing the next day, september 13, 2005. on ii. element of count 2, but not of count 1. expressed two related concerns regarding juror 134: during the death-qualification and loss suffered by the victim and the victim's family, and any other when crawford told barrett that the law enforcement officers would likely return to serve trials, except that information may be excluded if its probative value is substantially slumbered through other portions of the court's instructions. intentionally kills . . . any federal, state, or local law enforcement officer engaged in, or barrett continued firing rounds at the tact team members, stopping only after he himself crime which he had committed," i.e., without allowing the sentencing authority to f.3d at 776 ("collateral estoppel is inapplicable here, because the united states and texas, charged barrett with violating, is unconstitutional or otherwise in excess of congressional summarily objects to the admission of four photographs of the victim, arguing they were clerk of court barrett's house, and yelled at toby barrett to get on the ground. toby barrett initially prior to trial, barrett moved to suppress evidence seized from his residence and the case proceeded to trial on september 26, 2005. on the twenty-first day of two of the three panel members assumed, without deciding, that the first three prongs of subject to de novo review." united states v. johnson, 130 f.3d 1420, 1427 (10th cir. section 3432 of title 18 provides: using the information they observed during the drive-by, together with defendant's home. the federal drug task force of the drug enforcement lesser-included offense of assault and battery with a dangerous weapon. the jury "don't give a fuck." id. at 466. further, barrett told crawford that "he was going out in type and serial number, in furtherance of four specific drug trafficking crimes, i.e., and united states v. mistretta, 488 u.s. 361, 371 (1989)). "under the nondelegation aplt. br. at 57. because barrett did not raise this issue in the district court, it is subject to finally, we note that although barrett cites to the supreme court's decision in reliable and consistent means of selecting the small sub-class of murderers who are residence. hamilton then turned his vehicle westward towards barrett's house and adequate time to interview the government witnesses at issue and prepare for trial. court's evaluation of the prosecutor's credibility." nelson, 450 f.3d at 1207 (internal to begin with, barrett does not dispute that a defendant's culpable mental state is a valid such crime of violence. the key difference between the two crimes in terms of proof was mitigating factors to justify a sentence of death." roa, vol. 59 at 5322. the district of the judicial system." johnson, 130 f.3d at 1427. in barrett's case, it is clear that the outweigh[ed] any mitigating factor or factors found to exist, or in the absence of substantial planning and premeditation. as for the non-statutory aggravating factors, the the elements of the offense with which he is charged and sufficient detail so had a pistol tucked in the front of his waistband. manion pulled barrett's arms out from mark henricksen, henricksen & henricksen lawyers, inc., el reno, oklahoma (roger barrett contends "[t]he indictment was insufficient as it did not set forth the supreme court held that the eighth amendment does not require state courts to conduct to the extent barrett questions the continued viability of the dual sovereignty mean, however, that the jury would or could have given this aggravator extra "weight" the supreme court's reasoning in kansas v. marsh, --- u.s. ----, 126 although barrett also argues that his federal prosecution is prohibited by principles intentionally killed eales. as for the statutory aggravating factors, the jury found, with aplt. br. at 35. we proceed to address these general grounds, along with the specific his argument, barrett points to okla. stat. tit. 22 § 1225(a), which provides, in pertinent indictment on the basis of an alleged violation of the petite policy. tenth circuit incident suggests his threats were far from idle. barrett possessed multiple firearms at his the essential elements of the § 924 charges alleged in counts 1 and 2. further, counts 1 "generally, a warrant is not federal in character if no federal agents participated in began to disappear. id. at 539. the gunfire continued after hamilton stopped the bronco denied barrett's motions for judgment of acquittal. to declare the federal death penalty scheme unconstitutional.12 result of the continuous gunfire, neither hamilton nor eales were able to turn on the act, or intentionally and specifically engaged in an act of violence, knowing that the act would be destroyed or moved, especially considering the anticipation that besides drugs, engaged in the performance of his official duties, in violation of 21 u.s.c. § the offense; and (ii) resulted in the death of the victim." 21 u.s.c. § 848(n)(1)(a)-(d). crimes listed in count 1, and the underlying crime listed in count 2, i.e., intentionally unknown persons who may be present." aplee. supp. app. at 3. the items to be seized 280 (1976)," id.; (e) "[t]he statute allows for consideration of impermissibly vague approximately $2100 in cash. sixth amendment does not require a jury to be instructed that it must find reasonable doubt that barrett committed murder in connection with counts 1 and 2 (i.e., a blaze of glory." id. -24- moreover, the apprendi/ ring rule should not apply here because the provides: and the danger posed to law enforcement personnel by . . . barrett and/or other -39- aggravating factors," id.; and (f) "[i]t does not narrow the class of persons eligible for the mean that the exception does not exist." id. at 773-74. "indeed, the close interaction connection with this claim. to begin with, he overlooks the fact that the federal rules of trafficking crime . . . for which the person may be prosecuted in a court of absence of compelling federal interests." united states v. thompson, 579 f.2d 1184, and 2 satisfied the first three prongs of the plain error test, we would not "notice the police compliance with that protocol, and it is well established that the petite policy and aggravating factors, § 848 authorizes the jury to consider "any other aggravating factors" o'driscoll, 229 f.supp.2d 370, 374 (m.d.pa. 2002) (concluding that "commencement of barrett with intentionally killing, during the commission of a drug trafficking crime, a eales' daughter was not read to the jury, but nevertheless was briefly projected onto a of acquittal pursuant to federal rule of criminal procedure 29. in an `artificially inflated' view of the aggravating evidence and impermissibly skewed the that information may be excluded if its probative value is outweighed by the danger of court clearly erred in implicitly finding that the government did not engage in purposeful indictment in his case failed to "recite," as part of the § 924 charge, "all the elements of class of persons eligible for the death penalty. offense." united states v. jenkins, 313 f.3d 549, 557 (10th cir. 2002). "[m]ultiplicitous the same crime, but also multiple prosecutions as well." id. (citing united states v. dixon, intending, and having reasonable cause to believe that it would be used to (1) if the killing is a murder (as defined in section 1111), be child, but had only seen poe one time since poe became an adult, with that incident as the lead tact team vehicle, a white ford bronco, drove eastward on the gravel 8(a) because they "are based on the same act or transaction . . . ." more specifically, all with 2 or more offenses if the offenses charged­whether felonies or situation here. it is beyond dispute that the federal government and the state of oklahoma provided for such crime . . . be sentenced to a term of imprisonment of not were considered to be less affected by it than the state agents. statute may place the burden on the defendant to prove that mitigating juror 46, who was an alternate. during the trial, government counsel informed the verdict, barrett was sentenced to life imprisonment without the possibility of release for connection with certain offenses. e.g., united states v. amaya-portillo, 423 f.3d 427, the one that prompted the utilization of the tact team) was invalid because it failed to 4 united states v. lee, 374 f.3d 637, 648-49 (8th cir. 2004); united states v. fell, 360 f.3d the district court did not abuse its discretion in overruling barrett's objection. see united 281, 297-98 (4th cir.2003). here, however, that requirement was clearly satisfied, and it criminal counts, including intentionally killing a state law enforcement officer engaged in dwellings" to be "served between the hours of six o'clock a.m. and ten o'clock p.m., indictment against barrett. id., doc. 9. count 1 of the indictment charged barrett with the exception. official duties, in violation of 21 u.s.c. § 848(e)(1)(b). in accordance with the jury's 1. did the district court err in denying the motion to suppress? we conclude that barrett has fallen far short of establishing plain error in 242, 252, 96 s.ct. 2960, 49 l.ed.2d 913 (1976) (plurality opinion). indeed, believe that the pseudoephedrine and iodine would be used to manufacture omitted). "we review de novo the ultimate question of the reasonableness of a search." of [eales' testimony] during the sentencing proceeding was error," it cannot be said "that barrett's arguments, however, find no support in controlling precedent. indeed, the credible, and barrett has not seriously challenged, and indeed cannot successfully or any other law enforcement officer whose duty it is to enforce and preserve the public to law enforcement officials, that he didn't "give a fuck" if they came back to serve the findings": (a) barrett was 18 years of age or older at the time of the offense; (b) barrett because it "failed to focus on the characteristics of . . . barrett." aplt. br. at 46. further, -12- will be destroyed, moved or concealed . . . ." okla. stat. tit. 22 § 1230(3). he ignores, came to his residence. for which the government provided the defendant timely notice. 21 u.s.c. §§ "in reviewing a district court's denial of a motion to suppress, we consider the disclosure of an aggravating factor to inform the defendant of the crime determined by a sentencing judge. 536 u.s. at 609. to be sure, the circuit courts person's knowledge or intent." id., instruction no. 19. answer to the ultimate question of discriminatory intent represents a finding of fact of the superseding indictment in this case. the second was set forth in 21 u.s.c. §§ 848(g)-(p) during the weighing process. to the contrary, the district court in barrett's case expressly process, the government had to ask juror 134 to speak up, and, despite doing so, elements may employ the statutory language defining the offense. with the requirements of federal rule of criminal procedure 41 "designed to protect the know prior to the hearing that poe was involved in the case. as for his contact with poe, separate sovereigns." 474 u.s. at 88. if the prosecuting sovereigns are separate, the court week, on tuesday, september 20, 2005, the district court conducted a final pretrial back of the left shoulder. when he reached the back of the vehicle, hamilton observed simply by alleging all the elements of the murder together with a sufficient victim's status as a law enforcement officer is an essential element of the crime. rather, charged. one aggravating factor identified in jackson's indictment is the a) failure of warrant to satisfy oklahoma standards for nighttime warrant the oklahoma legislature has since added an additional exception for cases in id. at 175-76. (j) a person who, in the course of a violation of subsection (c), causes the federal law enforcement officer. indeed, that is precisely what occurred here; the search . . serves entirely legitimate purposes." id. at 825. ultimately, the court overruled its aggravating evidence or "impermissibly skew[ing] the weighing process toward death." as noted, barrett contends that § 848 "unconstitutional[ly] delegates legislative barrett now complains on appeal, however, that the testimony of these seven rejected defense counsel's request to remove juror 85. id. at 1273. especially when a killing occurs." aplt. br. at 43. in other words, barrett suggests that in evidence and presentation. and i am reminded, too, your honor, that the states, 517 u.s. 292, 301-02 (1996) (internal quotation marks omitted). 1128 (11th cir. 2005). thus, contrary to barrett's assertions, the district court was under in his appellate brief, barrett appears to refer exclusively to the fdpa in making death penalty scheme is violative of the sixth amendment, but does not otherwise flesh several of barrett's relatives lived in residences nearby, and that there was little cover plaintiff-appellee, graham, 305 f.3d 1094, 1100 (10th cir. 2002) (third alteration in original) (internal after the challenges for cause were completed, only two african-american jurors -9- february of 2004. the jury rejected the first degree murder charge and instead found notice of the charges against which he must defend, and enables the defendant to assert a on the victim and the victim's family,'" aplt. br. at 45, he is again mistaken. the statute but has not clearly made such an argument on appeal), this court is bound to follow lanza over the gate, enter the property on foot, and watch the west side of barrett's house to death of the victim; [or] (d) intentionally engaged in conduct which­(i) the defendant 19, 2004, barrett was sentenced to a term of imprisonment of twenty years on the here, barrett has failed to establish the existence of multiple non-reversible errors prosecution. 21 u.s.c. §§ 848(n)(1)-(12). in addition to these specific "statutory" to date, neither the supreme court nor any federal circuit court has interpreted the punish the offender from distinct sources of power.'" long, 324 f.3d at 478 (quoting respect to each count); and admissibility under the rules governing admission of evidence at criminal trials except photographs, and thus our review of his appellate challenge to the admission of those of juror 85 in doubt and should have resulted in the dismissal of juror 85. further, of the counts in the indictment], and the jury was not instructed to find [him] guilty of a error did not seriously affect the fairness, integrity, or public reputation of judicial was unaware that the persons entering his property were law enforcement officials, and barrett contends the district court erred in failing to dismiss the indictment on residence would be asleep. the tact team further decided that, because the front gate to section 848(n) lists specific aggravating factors that may be pled by the however, generally held that in a felony criminal proceeding, the trial commences at least -53- established rules of pleading in an indictment do not require that each term conviction for count 3 of the superseding indictment. indictment's failure to allege all of the elements of the underlying offenses in counts 1 -79- his defense," united states v. chandler, 996 f.2d 1073, 1098 n. 6 (11th cir.1993), "to arguments included therein. grams of iodine, a list ii chemical, knowing or having reasonable cause to and applied only to defendants charged with violating § 848. this scheme applied to would justify suppression of evidence seized during execution of the warrant. 967 (10th cir. 1993). we have also suggested that a warrant will retain its "state l.ed.2d 725 (1990). the court's apprendi line of cases reveals that the the justice department's petite policy, so named after the decision in petite v. crime of violence, i.e., the killing of a state law enforcement officer engaged in or on being handcuffed, he turned his head towards the house and screamed "dad!" id. at w[ould] be destroyed, moved or concealed," okla. stat. tit. 22 § 1230(3), it "is aggravating factors may be presented by either the government or the defendant, or contact was "about the matter pending before the jury." united states v. brooks, 161 to society and in particular to his family." id. (internal quotation marks omitted). in connection between their two families, and the impact eales had on his life; ask the government for a more detailed explanation of its system or to seriously question there was no constitutional violation arising out of the federal officers' involvement that b) failure of warrant to satisfy oklahoma standards regarding executing officers abundance of caution, and because barrett challenged the constitutionality of both the insufficient, [2] improperly charged multiple crimes and [3] improperly joined offenses." the following factual findings were made by the magistrate judge after conducting around the residence from which the search team could perform surveillance. to prove that (1) barrett committed one or more of the predicate drug-trafficking offenses, responded by firing multiple gunshots at tact team members, resulting in the death of -21- united states v. sturmoski, 971 f.2d 452 (10th cir. 1992), however, we held that oklahoma highway patrol car with its emergency lights activated (including a standard the listed culpable mental states, and (2) at least one other statutory aggravating factor. 21 gunfire began. id. at 1357. manufacture of methamphetamine or other controlled dangerous substance." 22 okla. argues, "[t]he jury did not find [him] guilty of any predicate offense [with respect to any ensuing months, state law enforcement officials were aware of his presence and continued another task force leader met with tact team members to discuss the execution of the and its progeny until such time as the supreme court overrules it. see united states v. and her children. with defendant as to disclosure of final witnesses." id. at 35 (entry for 9/14/2005). more -48- contemplation and as rationale, your honor, we recalled first that with u.s.c. §§ 848(g)-(p) and under which he was sentenced to death in connection with his 153 f.3d at 1185. thus, we apply an abuse of discretion standard to such decisions, weighing process may be impermissibly skewed if the sentencing jury considers an invalid 924(c)(1)(a) and (j). section 924(c)(1)(a) states, in relevant part: 442 f.2d 346, 348 (5th cir. 1971) ("section 3432 is mandatory, and a defendant indicted search warrant to allow the warrant to be served at night time. in other words, there was barrett attacks the indictment on three general grounds, i.e., that it "[1] was extent he is arguing that § 848(e)(1)(b), the statute count 3 of the superseding indictment would make no sense in situations, such as presented here, where the defendant not only between federal and state authorities than existed in bartkus. indeed, there is no indication the error was plain since it . . . remains unclear whether the confrontation clause applies 1999, barrett knowingly used and carried eleven different firearms, each identified by trial," for purposes of § 3432, refers to beginning of voir dire). the supreme court has, considering the collective inferences to be drawn from the evidence as a whole." id. at barrett's intent was also an essential element of count 3 of the superseding 1185 (10th cir. 1978) (en banc). it was adopted by the department of justice following fairly consider that statement, our conclusion was that he certainly would two children on a family outing; exhibit 316, a photograph of eales in his patrol car; and . . . did not seriously affect[] the fairness, integrity, or public reputation of judicial his various constitutional arguments. obviously, however, he lacks standing to challenge barrett complains on appeal that juror misconduct occurred during trial that developed a plan for entering and securing barrett's residence. as part of this planning twelve jurors with respect to each count); roa, vol. 1, doc. 52 at 1-2. in addition, count 1 alleged that in the course of this been complete. but i want to state for the record that our selection process totality of the circumstances and view the evidence in a light most favorable to the we further conclude that count 3 is not multiplicitous as to either count 1 or 2. in (entry for 9/20/2005). the following monday, september 26, 2005, the voir dire c) failure of warrant to comply with fed. r. crim. p. 41 vehicle. hamilton fell between the front seats of his vehicle in an attempt to avoid the -65- we reject barrett's misjoinder arguments as wholly lacking in merit. generally that barrett failed to meet his burden of establishing intentional racial discrimination on tr. at 154-55. when asked by the district court if the government's juror rating system 924(c)(1)(a) and (j), and intentionally killing, during the commission of a drug agencies created a `single sovereign' . . . ." aplt. br. at 73. stated differently, barrett or fact be fully defined, so long as the defendant is provided fair notice of see fed. r. crim. p. 7(c) (outlining general requirements of indictment). fair and impartial to both parties in the case. at the conclusion of the hearing, the district caldwell v. mississippi, 472 u.s. 320, 340 n. 7, 105 s.ct. 2633, 86 l.ed.2d vehicle, and began moving towards the rear of the vehicle. at some point before he constitutional right to have the [evidence rules] in place." fulks, 454 f.3d at 438 standard of review to district court's refusal to grant a motion for mistrial). thereafter complained about the timing of the disclosure, requested additional time to no violation of oklahoma state law, let alone a federal constitutional violation that would resulting from the charged offense occurred during the commission of a


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