597 F.3d 608 (4th Cir. 2010), 07-5, United States v. Caro

Docket Nº:07-5.
Citation:597 F.3d 608
Opinion Judge:DUNCAN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carlos David CARO, Defendant-Appellant.
Attorney:Denise Charlotte Barrett, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. David E. Hollar, United States Department of Justice, Washington, D.C., for Appellee. Sarah S. Gannett, Assistant Federal Public Defender, Federal Community Defender's Office, Philadelphia, Pennsy...
Judge Panel:Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge SHEDD concurred. Judge GREGORY wrote a dissenting opinion. GREGORY, Circuit Judge, dissenting:
Case Date:March 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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597 F.3d 608 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Carlos David CARO, Defendant-Appellant.

No. 07-5.

United States Court of Appeals, Fourth Circuit.

March 17, 2010

Argued Oct. 30, 2009.

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ARGUED:

Denise Charlotte Barrett, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant.

David E. Hollar, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Sarah S. Gannett, Assistant Federal Public Defender, Federal Community Defender's Office, Philadelphia, Pennsylvania, for Appellant.

Julia Campbell Dudley, United States Attorney, Anthony P. Giorno, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge SHEDD concurred. Judge GREGORY wrote a dissenting opinion.

OPINION

DUNCAN, Circuit Judge:

This appeal arises from a death sentence imposed under the Federal Death Penalty

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Act (the " FDPA" ), 18 U.S.C. §§ 3591-98, following a conviction for murder in violation of 18 U.S.C. § 1111. Appellant Carlos David Caro challenges the district court's voir dire; denial of motions under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Federal Rules of Criminal Procedure 16(a)(1)(E) and 17(c); refusal to give Caro's proposed mercy instruction; and various decisions concerning admissibility. Caro also argues that the jury instruction and government's argument about lack of remorse violated his Fifth Amendment privilege against self-incrimination, that the government's closing argument violated the Due Process Clause, and that 18 U.S.C. § 3592(c)(10) and (12) violate the Eighth Amendment. For the reasons stated below, we affirm.

I. Background

At about 6:40 p.m. on December 17, 2003, a prison guard discovered inmate Roberto Sandoval strangled to death inside his cell in the Special Housing Unit (the " SHU" ) at United States Penitentiary Lee (" USP Lee" ) in Jonesville, Virginia. He lay dead with a towel knotted around his neck. His cellmate Caro had been the only other person inside the locked cell. Caro later explained, " [Sandoval] called me mother fucker, that whore, that's why I fucked him up." J.A. 781.

A.

Caro comes from a poor neighborhood in Falfurrias, Texas, where he lived with his siblings and an abusive, alcoholic father. While still young, Caro began helping his uncles transport illegal drugs into the United States. He was later convicted of possession of marijuana with intent to distribute in April 1988, conspiracy to possess over one hundred kilograms of marijuana with intent to distribute in January 1994, and possession of cocaine with intent to distribute in November 2001.1 Following his third conviction, Caro was sentenced to thirty years imprisonment.

In prison, Caro became a leader in the Texas Syndicate, a violent prison gang. In that role, Caro was involved in two violent incidents prior to Sandoval's murder. In the summer of 2002 at Federal Correctional Institute Oakdale (" FCI Oakdale" ), a prison official asked Caro to maintain the peace because members of another gang were scheduled to arrive. Caro responded that " the Texas Syndicate were going to do what they had to do." J.A. 908. Soon after, Caro and fellow Texas Syndicate members violently attacked the new arrivals. Taking responsibility, Caro commented: " I don't give a fuck if they send me to the United States Penitentiary. My brothers follow orders. They know what they're getting into. It doesn't even matter if we're prosecuted. I have 30 years to do. I certainly don't care about myself." J.A. 911.

Following the FCI Oakdale incident, the Bureau of Prisons (the " BOP" ) transferred Caro to USP Lee, a more secure facility. There, in August 2003, Caro and another inmate violently attacked fellow Texas Syndicate member Ricardo Benavidez. Using " shanks," i.e., homemade knives, they stabbed Benavidez twenty-nine times. Five other Texas Syndicate members stood nearby with identical shanks.2 In November 2003, after pleading guilty to conspiracy to commit homicide, Caro was sentenced to another twenty-seven years

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imprisonment. He was then transferred to the SHU at USP Lee.

Sandoval's murder occurred only weeks later. Sandoval was placed in Caro's cell at around 9:00 p.m. on December 16, 2003. The next day, Sandoval and Caro were served breakfast in their cell at 6:10 a.m. They later took one hour of recreation outside and were last observed by prison staff at 6:17 p.m. 3 Soon after, inmate Sean Bullock, whose cell faced Caro's, noticed Caro standing behind Sandoval and apparently choking him. Bullock watched them fall to the ground and assumed they were tussling. At about 6:40 p.m., a prison guard came to deliver mail. Caro yelled to him several times, " Come get this piece of shit out of here," and pointed at Sandoval lying by the door. J.A. 676. Peering inside the cell, the guard observed Sandoval lying motionless with blood on him and a towel knotted around his neck. Blood was also splattered against the wall.

Other guards quickly arrived and handcuffed Caro. When asked whether Sandoval was still breathing, Caro responded: " No. At this time he's stinking up the room, get him out." J.A. 684. Caro later received Miranda warnings and was interviewed. He denied that Sandoval's murder had any connection to the Texas Syndicate. Instead, Caro explained that he had eaten Sandoval's breakfast that morning; that Sandoval had awakened, cursed him, and threatened to eat Caro's breakfast the next morning; and that Caro, using a towel tied with one overhand knot, had later strangled Sandoval for four or five minutes until he stopped breathing.

The next day Caro taunted a prison guard, grinning and calling out, " When [are] you ... going [to] assign [me] a new cellie?" J.A. 601. Several days later, again grinning, Caro requested fellow inmate Ortiz for his next " cellie." J.A. 680.

Caro later mentioned Sandoval in two telephone conversations and a letter. The letter stated, " I killed a guy two weeks ago ... [f]or being a fool." J.A. 790. Caro told his wife, laughing, " [Sandoval] called me a mother fucker." J.A. 782. Caro also assured her, " But I'm all right." J.A. 783. Finally, Caro told another Texas Syndicate member Roel Rivas, " I also have a death," and explained, " It's because they gave me a cell mate and he disrespected me, so I took him down." J.A. 785. When Rivas proposed claiming self-defense, Caro said, " That is what I'm going to do.... That is what I'm going for." J.A. 786-87.

B.

On January 3, 2006, Caro was charged in an indictment with first-degree murder in violation of 18 U.S.C. § 1111 for the killing of Sandoval. Soon after, pursuant to § 3593(a), the government filed a notice of intent to seek the death penalty under the FDPA. This statute established a procedure whereby a jury can decide whether to impose the death penalty after considering aggravating and mitigating factors properly alleged and proved during a sentencing hearing.4 The FDPA requires

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consideration of specific aggravating factors (" statutory aggravating factors" ) but also allows the government to allege other aggravating factors (" non-statutory aggravating factors" ).

Following a jury trial, Caro was convicted of premeditated murder in violation of § 1111. The same jury decided Caro's sentence under the FDPA. His sentencing hearing was divided into two phases, an " eligibility" phase and a " selection" phase. The first phase involved determining whether Caro had committed a capital offense under § 3591 and whether the government had proved at least one statutory aggravating factor beyond a reasonable doubt, together making Caro eligible for the death penalty. The second phase involved determining the mitigating and non-statutory aggravating factors and selecting either a death sentence or life imprisonment.

During the eligibility phase, the jury decided that Caro was eligible for the death penalty because § 3591 covered his offense of premeditated murder under § 1111, and two statutory aggravating factors had been proved beyond a reasonable doubt. These factors were (1) that Caro was previously convicted of two offenses involving distribution of illegal drugs committed on different occasions and punishable by imprisonment for over one year, 18 U.S.C. § 3592(c)(10), and (2) that Caro was previously convicted of a federal drug offense punishable by five or more years, 18 U.S.C. § 3592(c)(12).

During the selection phase, the jury heard information and argument about the existence of mitigating factors, the existence of non-statutory aggravating factors, and whether aggravating factors sufficiently outweighed mitigating factors to justify a death sentence.5 The government had alleged three non-statutory aggravating factors: (1) the impact of Caro's offense on Sandoval's friends and family; (2) Caro's future dangerousness to other people, including inmates; and (3) that Caro " has not expressed remorse for his violent acts, including (but not limited to) the murder of Sandoval, the stabbing of Benavidez and the gang-based assault in Oakdale." J.A. 57.

After closing arguments, the jury found that each alleged non-statutory aggravating factor had been proved beyond a reasonable doubt. The jury also found unanimously that twelve mitigating factors had

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been proved. 6 Some jurors found that four other mitigating factors had also been proved.7 After considering whether the aggravating factors sufficiently outweighed the mitigating factors, the jury imposed the death penalty. This appeal followed.

Caro now challenges (1) the district court's voir dire process; (2) the denial of motions under Brady and Federal Rules of Criminal Procedure 16(a)(1)(E) and 17(c); (3) the...

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