U.S. v. Bernard
| Citation | 299 F.3d 467 |
| Decision Date | 19 July 2002 |
| Docket Number | No. 00-50523.,00-50523. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Brandon BERNARD and Christopher Andre Vialva, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joseph H. Gay, Jr., Asst. U.S. Atty., Angela J. Moore (argued), San Antonio, TX, for Plaintiff-Appellee.
Robert Charles Owen (argued), Schonemann, Rountree & Owen, Austin, TX, Walter Mabry Reaves, Jr., Law Offices of Walter Reaves, West, TX, for Brandon Bernard.
Steven C. Losch, Longview, TX, Stanley Lee Schwieger (argued), Waco, TX, for Christopher Andre Vialva.
Appeals from the United States District Court for the Western District of Texas.
Before JONES, WIENER and PARKER, Circuit Judges.
Brandon Bernard and Christopher Andre Vialva were jointly tried, found guilty and sentenced to death for the murders of Todd and Stacie Bagley on the property of Fort Hood, Texas. See Federal Death Penalty Act ("FDPA") of 1994, 18 U.S.C. § 3591 et seq. Bernard and Vialva now appeal their convictions and sentences. Finding no reversible error, we affirm.
On June 20, 1999, Christopher Andre Vialva, Christopher Lewis and Tony Sparks, members of a gang in Killeen, Texas, met to plan a robbery.1 The three gang members decided on the following plan: they would ask someone for a ride, get in the car and pull a gun on the victim, steal the victim's money and personal effects, obtain the pin number for the victim's ATM card, force the victim into the trunk of the car and drive somewhere to abandon the car with the victim locked in the trunk.
The following day, Vialva, Lewis and Sparks enlisted two fellow gang members, Brandon Bernard and Terry Brown, to assist in the carjacking plan. Initially, the group only had one gun, a "tiny .22 pistol" that they considered "too small to frighten anyone." The group decided that a second gun was necessary. Bernard owned a Glock .40 caliber handgun that he had lent to Gregory Lynch. Vialva, Bernard, Lewis, Sparks and Brown drove to Lynch's house and obtained Bernard's gun. The group then set out in search of a victim.
Sometime after 2:00 p.m. on the afternoon of June 21, Bernard drove Vialva, Brown, Lewis and Sparks to a local supermarket to find a victim. Having had no luck there, the group continued their search by driving around parking lots at other local stores. The search ended at a convenience store in Killeen, where they found Todd Bagley using a pay phone.
Todd Bagley and his wife, Stacie, were youth ministers from Iowa. Before moving to Iowa, Todd had been stationed at Fort Hood, where the couple attended Grace Christian Church and worked with the youth group. About a week before their deaths, the Bagleys returned to Killeen to visit friends and to attend a revival meeting at the church. On Sunday, June 21, they attended a morning worship service and had lunch with friends. Afterward, Todd stopped at "Mickey's" convenience store to use the payphone, while Stacie waited for him in their car.
Lewis and Sparks approached Todd and asked him for a ride to their uncle's house. Todd agreed. Vialva, who was standing nearby, got in the backseat of the Bagleys' car with Lewis and Sparks.2 Todd and Stacie occupied the front seat. Vialva gave Todd directions, and then pulled out the .40 caliber gun, pointed it at Todd and told him that "the plans have changed." At the same time, Sparks pointed the .22 handgun at Stacie. On Vialva's orders, Todd stopped the car, and the Bagleys got out. The gang stole Todd's wallet, Stacie's purse and the Bagleys' jewelry. Vialva demanded the pin numbers for the Bagleys' ATM cards, and then forced the Bagleys into the trunk of their car.
After locking the Bagleys in the trunk, Vialva drove around for several hours. He went to ATM machines to withdraw money from the Bagleys' account, but was largely unsuccessful because the Bagleys had less than one hundred dollars on deposit. Vialva drove to a "Wendy's" where Lewis and Sparks used the Bagleys' money to purchase some food. Vialva then attempted to pawn Stacie's wedding ring, and stopped at a tobacco store to purchase cigars and cigarettes.
While they were locked in the trunk, the Bagleys spoke with Lewis and Sparks through the rear panel of the car. Lewis testified that the Bagleys asked them questions about God, Jesus and church. The Bagleys told Lewis and Sparks that they were not wealthy people, but that they were blessed by their faith in Jesus. The Bagleys informed Lewis and Sparks about the revival meeting at Grace Christian, a church which Lewis said he had attended. Urging them to have faith, the Bagleys advised Lewis and Sparks that God's blessings were available to anyone. After this conversation, Sparks told Vialva he no longer wanted to go through with the crime. Vialva, however, insisted on killing the Bagleys and burning their car to eliminate the witnesses and the gangs' fingerprints.
Vialva drove to his house. While he was inside, the Bagleys had another conversation about God with Lewis and Sparks. By this time, the victims had been locked in the trunk for several hours. The Bagleys pleaded with Lewis and Sparks for their lives.
Vialva returned to the car with a ski mask and some additional clothing. Vialva, Lewis and Sparks then met Bernard and Brown, and Vialva repeated that he had to kill the Bagleys because they had seen his face. Bernard and Brown set off to purchase fuel to burn the Bagleys' car.
Vialva, Bernard, Lewis and Brown3 drove to an isolated spot in the Belton Lake Recreation Area on the Fort Hood military reservation. Vialva parked the Bagleys' car on top of a little hill. Brown and Bernard poured lighter fluid on the interior of the car while the Bagleys sang and prayed in the trunk.
According to Brown, Stacie's last words were "Jesus loves you" and "Jesus, take care of us." Vialva crudely cussed at her in reply. Vialva put on his mask, and told Lewis to open the trunk. Vialva then shot Todd in the head with the .40 caliber gun killing him instantly. Vialva shot Stacie in the right side of her face, knocking her unconscious, but not killing her. Bernard set the car on fire. An autopsy later revealed that Stacie died from smoke inhalation.4
Vialva, Bernard, Lewis and Brown ran down the hill to Bernard's car. Their getaway was foiled when the car slid off the road into a muddy ditch. Local law enforcement officers, informed of a fire, arrived at the scene while the assailants were trying to push the car out of the ditch. When firemen discovered the bodies in the trunk of the Bagleys' burning car, the four were arrested.
A grand jury in the Western District of Texas indicted appellants Vialva and Bernard for the following crimes: carjacking and aiding and abetting the same in violation of 18 U.S.C. §§ 2, 2119 ("Count One"); conspiracy to commit murder in violation of 18 U.S.C. §§ 1111, 1117 ("Count Two"); the murder of Todd Bagley, within the special maritime and territorial jurisdiction of the United States, and aiding and abetting the same in violation of 18 U.S.C. §§ 2, 1111 ("Count Three"); and the murder of Stacie L. Bagley, within the special maritime and territorial jurisdiction of the United States, and aiding and abetting the same in violation of 18 U.S.C. §§ 2, 1111 ("Count Four"). The government gave notice it would seek the death penalty.
On June 1, 2000, a jury found Vialva and Bernard guilty on all four counts of the indictment. Testimony in the punishment phase of the trial began on June 8 and lasted four days. On June 13, the jury recommended a sentence of death against Vialva on Counts One, Three and Four, and a sentence of death against Bernard on Count Four. The district court sentenced Vialva to life imprisonment on Count Two and death on the remaining counts. The court sentenced Bernard to life imprisonment on Counts One, Two and Three and death on Count Four. Bernard and Vialva filed timely notices of appeal.
In this direct appeal, Bernard and Vialva challenge their convictions and sentences on the following grounds:
A. The district court violated Vialva's Due Process rights by improperly dismissing a prospective juror for cause;
B. The district court violated Vialva's Due Process rights and Fed. R.Civ.P. 14 by failing to order a severance and a mistrial sua sponte in the punishment phase of trial;
C. The district court failed to conduct an adequate investigation into alleged communications between a third party and jurors;
D. The district court violated Appellants' First Amendment, Eighth Amendment and Due Process rights and 18 U.S.C. § 3593(c) and § 3593(f) by admitting victim impact statements containing improper references to religion and improper characterizations of Appellants and their crimes;
E. The district court improperly defined certain aggravating factors in its instructions to the jury, and the evidence is legally insufficient to support the jury's findings regarding three aggravating factors;
F. Appellants' death sentences violate the Eighth Amendment and 18 U.S.C. § 3595(c)(2)(A) because the jury arbitrarily found that Appellants' ages were not mitigating factors;
G. The district court violated Vialva's Eighth and Fourteenth Amendment rights and 18 U.S.C. § 3593(c) by excluding mitigating testimony concerning a childhood incident of racial harassment;
H. Prosecutorial statements in closing argument denied Vialva a fair trial and violated his Due Process rights.
I. The cumulative impact of errors in the punishment phase of trial denied Vialva a fair trial.
J. Bernard's sentence violates the Fifth, Sixth and Eight Amendments because the "mental state factors" and "statutory aggravating factors" were not found by the grand jury or alleged in the indictment.
We address each of these issues in turn.
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