U.S. v. Allen

• Decision Date: 10 January 2000
• Docket Number: No. 98-2549,98-2984,98-2549
• Citation: 247 F.3d 741
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. BILLIE JEROME ALLEN, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. NORRIS G. HOLDER, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 741

247 F.3d 741 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. BILLIE JEROME ALLEN, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. NORRIS G. HOLDER, APPELLANT.

No. 98-2549, 98-2984

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 10, 2000

Filed: April 12, 2001

As amended May 7, 2001

Appeals from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Richard S. Arnold and Hansen, Circuit Judges, and Melloy,¹ District Judge.

Hansen, Circuit Judge.

On March 17, 1997, security guard Richard Heflin was killed during an armed robbery of the Lindell Bank & Trust in St. Louis (Forest Park), Missouri. Billie Jerome Allen and Norris G. Holder were charged and convicted in separate jury trials for violating 18 U.S.C. §§ 2, 2113(a) and (e) (1994) (armed robbery by force or violence in which a killing occurs) (Count I) and 18 U.S.C. §§ 2, 924(c)(1) and (j)(1) (1994 and Supp. II 1996) (carrying or using a firearm during a crime of violence and committing murder) (Count II). Allen was sentenced to life in prison on Count I and received a sentence of death on Count II. Holder received sentences of death for both Counts I and II. In these direct appeals, Allen and Holder raise numerous challenges to the constitutionality of the Federal Death Penalty Act of 1994, they allege that the district court² committed several errors during jury voir dire, trial, and sentencing, and they raise various other statutory and constitutional challenges to their convictions and sentences. For the reasons discussed below, we affirm Allen's and Holder's convictions and sentences.

I. Background

Holder was a regular customer of the Lindell Bank & Trust. Five hundred dollars was automatically deposited to his account each month from a legal settlement Holder obtained after losing the lower portion of one leg in a train accident, and every month Holder withdrew that five hundred dollars. On March 13, 1997, four days before the date of the armed robbery, Holder brought Allen along with him for his monthly withdrawal of funds. Allen and Holder were also seen together on several other occasions during the ten days leading up to the armed robbery. Together they watched the movies "Heat" and "Set It Off" which depicted assault-style takeover armed bank robberies similar in many details to the manner in which they later robbed the Lindell Bank & Trust. In preparation for the armed robbery, Holder supplied or obtained a Russian SKS semiautomatic assault rifle, a Chinese SKS semiautomatic assault rifle, a twelve-gauge shotgun, approximately two hundred rounds of ammunition consisting mostly of military style hollow point ammunition for the two SKS rifles, and a bulletproof vest which he wore. The night before the armed robbery two vans were stolen for use as the first two getaway vehicles after the robbery (Holder's mother's car was to be used as the third, and last, getaway vehicle).

On the day of the armed robbery, March 17, 1997, Allen and Holder parked the first getaway van on the street just outside the bank. Wearing dark ski masks and armed with the semiautomatic rifles--Allen with the Chinese SKS loaded with 11 rounds, and Holder with the Russian SKS loaded with 37 rounds and each carrying extra rounds of the hollow point ammunition--they rushed into the bank. The first man to enter immediately began firing shots at security guard Heflin, and during the course of the robbery Holder jumped over the tellers' counter and retrieved money from the tellers' drawers. The ballistics evidence showed that both rifles were discharged during the robbery and a total of sixteen shots were fired inside the bank, at least eight of which hit security guard Heflin who died shortly thereafter. Eleven of the shots came from the Chinese SKS rifle, three came from the Russian SKS rifle, and the remaining two could have come from either rifle. After the armed robbery, which lasted only a few minutes, Allen and Holder returned to the getaway van and sped off down the highway.

Several witnesses spotted the two men exiting the bank and returning to the van. Bank customer William Green, after hearing gunshots while at the drive-up teller window, dialed 911 and followed the van onto the highway. He continued following the van as it sped down the highway and into Forest Park. As the van entered the park, Green saw it burst into flames. Prior to the armed robbery, the suspects had soaked the van with gasoline so that it would be easier to destroy the evidence once they reached their second getaway vehicle. The van apparently started on fire when one of the suspects flicked a cigarette lighter. After the van started on fire, the van's passenger--Allen--jumped out and ran into a wooded area. The other occupant, Holder, was on fire and two park workers helped to extinguish the flames. A police officer arrived on the scene simultaneously and arrested Holder.

Allen, meanwhile, was spotted soon after he left the van on the opposite side of the wooded area by city forestry employee Bobby Harris. After making up a story about why the hair on his head was burned, Allen convinced Harris and another forestry employee to give him a ride to the nearest Metrolink station. Harris later identified Allen in a lineup and at trial. Allen was arrested early the next morning at his girlfriend's apartment, the same apartment where he and Holder had stayed the night before the bank robbery and had together watched the movie "Set It Off."

II. Analysis

Allen and Holder allege numerous constitutional, statutory, and procedural violations as grounds for relief from each of their respective convictions and sentences. We separately address each defendant's claims.

A. Billie Jerome Allen

1. Facial Constitutional Challenges

Allen raises a host of facial constitutional challenges, based on the Eighth Amendment and Article I of the Constitution, to the Federal Death Penalty Act of 1994 (hereinafter "FDPA"). See 18 U.S.C. §§ 3591-3598 (1994). We review claims of constitutional error and issues of statutory construction de novo. See Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir.), cert. denied, 519 U.S. 874 (1996).

a. Non-statutory Aggravating Factors

Allen argues that the use of non-statutory aggravating factors, which the FDPA explicitly allows,³ fails to adequately limit and guide the sentencing discretion of the jury in violation of various Supreme Court decisions interpreting the Eighth Amendment. See, e.g., Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (explaining that a sentencing body's discretion must be suitably directed and limited, by clear and objective standards that provide specific and detailed guidance, so as to minimize the risk of wholly arbitrary and capricious action and to make rationally reviewable the process for imposing a death sentence) (citing Godfrey v. Georgia, 446 U.S. 420, 428 (1980), and Gregg v. Georgia, 428 U.S. 153, 189 (1976)). We disagree with Allen's underlying premise that the purpose of the non-statutory aggravating factors under the FDPA is to limit and guide a jury's discretion in determining who is eligible to receive a sentence of death. The statutorily defined aggravating circumstances are those which channel the sentencer's discretion because they are the circumstances which make a defendant eligible for the death penalty. See Lewis, 497 U.S. at 774.

The primary purpose of the non-statutory aggravating factors, as opposed to the listed statutory aggravating factors which do fulfill the role of limiting and guiding a jury's discretion in making the eligibility decision, is to allow for the individualized determination of whether a death sentence is justified for a particular defendant; that is, they help to inform the selection decision. As the Supreme Court has explained,

[o]ur capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision.... To render a defendant eligible... the trier of fact must... find one 'aggravating circumstance'.... We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Tuilaepa v. California, 512 U.S. 967, 971-72 (1994) (internal quotations omitted). The Supreme Court has also stated the following:

Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. Zant v. Stephens, 462 U.S. 862, 878 (1983).

The framework of the FDPA passes constitutional muster because it does not allow imposition of the death penalty unless the jury first finds at least one statutory aggravating circumstance.

The jury... shall return special findings identifying any aggravating factor or factors set forth in section 3592 found to exist and any other aggravating factor for which notice has been provided under subsection (a) found to exist.... If no aggravating factor set forth in section 3592 is found to exist, the court shall impose...