U.S. v. Allen

Decision Date22 June 2005
Docket NumberNo. 98-2549.,98-2549.
Citation406 F.3d 940
PartiesUNITED STATES of America, Appellee, v. Billie Jerome ALLEN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Michael A. Gross, argued, St. Louis, MO (John W. Simon, St. Louis, on the brief), for appellant.

Steven E. Holtshouser, Asst. U.S. Attorney, St. Louis, MO (Joseph M. Landolt, AUSA, and Mary Jane Lyle, Asst. U.S. Attorney, St. Louis, on the brief), for appellee.


HANSEN, Circuit Judge.

Billie Jerome Allen and Norris G. Holder were convicted of the violent St. Patrick's Day, 1997, armed robbery of the Lindell Bank & Trust in St. Louis, Missouri, during which security guard Richard Heflin was killed. In accordance with the Federal Death Penalty Act (FDPA), the grand jury returned an indictment that charged the elements of the offenses. After the indictment was returned and before a trial was conducted, the government filed a notice of intent to seek the death penalty pursuant to 18 U.S.C. § 3593(a) that set forth both the statutory aggravating factors contained in 18 U.S.C. § 3592(c) and the mens rea requirement from 18 U.S.C. § 3591(a)(2) which, if proved to the petit jury beyond a reasonable doubt, made the offenses eligible for the death penalty. After a trial, the petit jury found Allen guilty of killing a person during the course of a bank robbery, in violation of 18 U.S.C. § 2113(a) and (e), and of murdering a person with a firearm used during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (j)(1). After the penalty phase, the petit jury determined that a sentence of life imprisonment was justified on Count I and that a sentence of death was justified on Count II. The district court2 sentenced Allen accordingly.

On appeal, a divided panel of this court affirmed Allen's convictions and sentence in all respects. United States v. Allen, 247 F.3d 741 (8th Cir.2001). In particular, we rejected his argument that the Fifth Amendment required the statutory aggravating factors to have been charged by the grand jury and included in the indictment. We applied the holding of Walton v. Arizona, 497 U.S. 639, 647-49, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that aggravating factors are not elements of a capital offense for Sixth Amendment purposes. Allen, 247 F.3d at 761-64. Allen petitioned the United States Supreme Court for a writ of certiorari.

While Allen's petition was pending, the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Ring held that aggravating factors are the functional equivalent of elements of a capital offense for Sixth Amendment purposes, and consequently overruled Walton in relevant part. Id. at 609, 122 S.Ct. 2428. The Supreme Court granted Allen's petition for a writ of certiorari, vacated our judgment, and remanded the case to us for further consideration in light of Ring. Allen v. United States, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). On remand, a divided panel of this court concluded that it was error not to charge at least one statutory aggravating factor in Allen's indictment, and that although the error was not structural, the indictment defect was not harmless beyond a reasonable doubt. United States v. Allen, 357 F.3d 745, 748-58 (8th Cir.2004). We subsequently granted rehearing en banc and vacated the panel's judgment.

We now confront the following questions: (1) Does the Fifth Amendment require that at least one statutory aggravating factor and the mens rea requirement be found by the grand jury and charged in the indictment? (2) If Allen's indictment was defective, was the error structural or subject to review for harmless error? (3) If our review is for harmless error, was the error harmless beyond a reasonable doubt? (4) Is the FDPA unconstitutional because it directs the government to charge aggravating factors in a notice of intent to seek the death penalty rather than in an indictment?

We address these issues seriatim and, ultimately, we again affirm Allen's convictions and sentence.


Ring was a case about a defendant's Sixth Amendment right to have capital aggravating factors proven to the petit jury beyond a reasonable doubt because they are facts that increase the penalty for his crime beyond the otherwise applicable statutory maximum. In Allen's case, the petit jury made the findings that Ring expressly requires. Ring did not address whether the Fifth Amendment also requires capital aggravating factors to be found by the grand jury and included in the indictment. Nonetheless, we think that Ring necessarily implies such a Fifth Amendment requirement.

Ring did not address the indictment issue because it involved a state prosecution, and the Fifth Amendment's grand jury requirement has not been construed to apply to the states. The same is true of the predecessor to Ring, Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We therefore look to the predecessor to Apprendi, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which did involve a federal prosecution. There, we find the rule that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6, 119 S.Ct. 1215; see also Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (same (quoting Jones)).

In other words, the same facts that the Sixth Amendment requires to be proven to the petit jury beyond a reasonable doubt in state and federal prosecutions must also be found by the grand jury and charged in the indictment in federal prosecutions. We therefore conclude that the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment. See United States v. Robinson, 367 F.3d 278, 284 (5th Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003), cert. denied, ___ U.S. ___, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004); United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002), cert. denied, 540 U.S. 1051, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003). The indictment must include at least one statutory aggravating factor to satisfy the Fifth Amendment because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death. In turn, at least one of the statutory aggravating factors found by the petit jury in imposing the death sentence must have been one of the statutory aggravating factors charged by the grand jury in the indictment. See Higgs, 353 F.3d at 299 n. 7. The same is true of the mens rea requirement.

Having reached this conclusion, it is clear that Allen's indictment suffers a Fifth Amendment defect. The petit jury found two statutory aggravating factors in sentencing him to death: that Allen "in the commission of the offense, or in escaping apprehension ..., knowingly create[d] a grave risk of death to one or more persons in addition to Richard Heflin," and that he "commit[ted] the offense in the expectation of the receipt of anything of pecuniary value." The petit jury also found the requisite mental state in sentencing Allen to death: that he "intentionally inflicted serious bodily injury which resulted in the death of Richard Heflin." The government had included these factors and the mens rea requirement in its notice of intent to seek the death penalty, but they were not charged in the indictment because Allen's prosecution preceded Ring by years. Allen presciently raised a Jones-type objection before the district court, preserving this error for our review. Hence, this is not a plain-error case. We next consider whether the failure to charge at least one statutory aggravating factor and the mens rea requirement in the indictment was structural error.


Allen rightly directs our attention to the strongest case in his favor, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Stirone was charged by indictment with unlawfully interfering with the movement of sand in interstate commerce for use in mixing concrete. Over his objections, the district court allowed the government to present at trial evidence that Stirone also interfered with the movement of steel in interstate commerce, and the district court instructed the jury that Stirone was guilty if he interfered with either sand or steel that moved in interstate commerce. See id. at 213-14, 80 S.Ct. 270. The Supreme Court found a violation of Stirone's Fifth Amendment right to indictment by a grand jury, concluding that "[d]eprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error." See id. at 215-17, 80 S.Ct. 270. Concluding that "neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel," and that "it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned," the Supreme Court overturned his conviction. See id. at 217-19, 80 S.Ct. 270. Stirone quoted Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 30 L.Ed. 849 (1887), for the proposition that it is beyond "the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their...

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