U.S. v. Bolden, No. 06-3264.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtLoken
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert L. BOLDEN, Sr., Defendant-Appellant.
Docket NumberNo. 06-3264.
Decision Date04 November 2008
545 F.3d 609
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert L. BOLDEN, Sr., Defendant-Appellant.
No. 06-3264.
United States Court of Appeals, Eighth Circuit.
Submitted: June 9, 2008.
Filed: November 4, 2008.

[545 F.3d 612]

David C. Hemingway, AFPD, argued, St. Louis, MO, Kevin C. Curran, St. Louis, MO, and Jennifer Herndon, on the brief, Florissant, MO, for appellant.

Steven E. Holtshouser, AUSA, argued, Michael A. Reilly, AUSA, D. John Sauer, AUSA, on the brief, St. Louis, MO, for appellee.

Before LOKEN, Chief Judge, EBEL* and COLLOTON, Circuit Judges.

LOKEN, Chief Judge.


Robert Bolden murdered security guard Nathan Ley outside a St. Louis bank during an attempted robbery. After a month-long trial, a federal jury convicted Bolden of killing Ley with a firearm during an attempted bank robbery, conspiracy to commit bank robbery, and being a felon-in-possession of a firearm. The jury sentenced him to death for the bank robbery-murder

545 F.3d 613

and firearm offenses. See 18 U.S.C. §§ 2113(e), 924(j)(1). Bolden appeals, arguing the district court1 committed some thirty reversible errors prior to and during trial. We will first address the three issues emphasized at oral argument. After careful review of the record, we affirm.

I. Background

Dominick Price testified that, on the morning of October 7, 2002, Bolden asked Price to help rob a Bank of America branch because Bolden needed $2,000 to avoid being evicted from his home. As the two "cased" the bank, Bolden told a hesitant Price his plan: Bolden would brandish his handgun and disarm the guard outside the bank, then Bolden and Price would take the guard into the bank as a hostage, demand money, and drive away in Bolden's car. The two men purchased nylon stocking caps, and Bolden recruited a third man, Corteze Edwards, to assist in the robbery.

Early that afternoon, the trio dressed in dark clothing and drove to a parking lot near the bank. Price and Edwards wore masks. Bolden did not. When bank guard Ley walked out of the bank, Bolden approached on foot, with Price and Edwards fifteen-to-twenty feet behind. Price testified that Bolden stopped a short distance from Ley and pointed his handgun at the guard. After a brief dialog, Ley reached for the gun, and they struggled. Bolden regained control of the gun and shot Ley in the jaw. As Ley fell, Bolden took a step back and fired another shot into Ley's head. Ley died from the second wound later that afternoon. The three robbers ran off, shedding clothing as they ran. Many bystanders witnessed the shooting. One saw Bolden drive away, and he was arrested that evening. Clothing found near the bank tested positive for traces of DNA from Bolden, Price, and Edwards. A later search of Bolden's home uncovered the handgun used to kill Ley and ammunition matching that found during Ley's autopsy.

II. A Batson Challenge

Before trial, the government used a peremptory challenge to strike prospective juror number 44, an African American woman. Bolden argued the strike violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which held that it is a violation of the Equal Protection Clause for the government to use a peremptory challenge to strike a prospective juror solely on the basis of race. After the district court ruled that Bolden established a prima facie case of discrimination, the government claimed that it struck juror 44 for a race-neutral ground — because, when asked to elaborate on her questionnaire response that the criminal justice system should use legal students for research, she explained that she believed based on twelve years of legal training that using legal students for research would assist the criminal justice system. The government expressed concern that she might give more weight to her legal training than is warranted and that there was no way to know how this experience might affect the deliberation process.2

The district court found that this was a race-neutral reason, comparing the strike of juror 44 with the government's strike of

545 F.3d 614

juror 142, a white high school teacher who said he often discussed constitutional law issues with his students. The court rejected Bolden's assertion that juror 44 should be compared with non-stricken white juror 176, a deputy clerk for a Missouri court who stated in her questionnaire that her "passion is to see criminals convicted," and that she has a favorable view of the court system based upon her son's fair treatment for pending drug related charges. The court's ultimate finding was that Bolden failed to prove that the strike of juror 44 was motivated by race discrimination.

On appeal, Bolden argues the district court clearly erred when it denied his Batson challenge because the government's purported race-neutral reason for striking juror 44 was implausible. We review the court's Batson rulings for clear error, keeping in mind that "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the party opposing the strike." Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); see Snyder v. Louisiana, ___ U.S. ___, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008). After careful review of the questionnaire responses and voir dire testimony, and giving the district court's findings the "great deference" Batson requires, 476 U.S. at 98 n. 21, 106 S.Ct. 1712, we conclude that the district court did not clearly err in finding that the government stated a race-neutral reason for striking juror 44 that was adequately supported by the record. Compare United States v. Ortiz, 315 F.3d 873, 896-97 (8th Cir.2002), cert. denied, 540 U.S. 1073 (2003).

III. Statutory Aggravating Factors

The Federal Death Penalty Act of 1994 ("FDPA") provides that, if the defendant has been found guilty of a homicide offense for which the death penalty may be imposed, the trial judge "shall conduct a separate sentencing hearing to determine the punishment to be imposed." 18 U.S.C. § 3593(b). At this hearing, "information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor," regardless of its admissibility under the Federal Rules of Evidence. § 3593(c). The jury must find beyond a reasonable doubt at least one of sixteen "aggravating factors" before it may impose the death penalty; the government has the burden of proving "any aggravating factor . . . beyond a reasonable doubt." Id. The defendant has the burden of proving "any mitigating factor . . . by a preponderance of the evidence." Id. The jury then considers "all the information received during the hearing," and returns "special findings" identifying the statutory and non-statutory aggravating factors it has unanimously found to exist, and the mitigating factors that one or more jurors have found to exist. If no statutory aggravating factor is found beyond a reasonable doubt, "the court shall impose a sentence other than death." § 3593(d). If the jury instead finds the requisite mental state and one or more statutory aggravating factors, then it "shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death" and, based upon this consideration, recommend by unanimous vote "whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence." § 3593(e).

Bolden's superseding indictment alleged and the jury found two aggravating factors, "pecuniary gain" and "conviction for two felony drug offenses." See §§ 3592(c)(8), (10). Bolden challenges

545 F.3d 615

those findings on multiple grounds.3

A. Pecuniary Gain. Committing a homicide "as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value" is an aggravating factor. 18 U.S.C. § 3592(c)(8). In this case, the district court instructed the jury only on the second clause — the government must prove that Bolden "committed the killing or murder in the expectation of anything in the form of money, property, or anything else having some economic value, benefit or advantage." Emphasizing the first clause, Bolden argues that the pecuniary gain factor only applies to a murder-for-hire. He urges us to read subsection (c)(8) in tandem with subsection (c)(7), which applies to a defendant who "procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value."

Bolden did not raise this issue in the district court, so our review is for plain error. At least five other circuits agree that § 3592(c)(8) applies, not only to murder-for-hire, but also when the murder itself, and not just an underlying offense such as robbery, was committed with the expectation of pecuniary gain. As the Eleventh Circuit explained, "The `consideration' and `expectation' clauses are two separate ways by which the pecuniary gain factor may be satisfied, and they both must have meaning." United States v. Brown, 441 F.3d 1330, 1370 (11th Cir. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1149, 166 L.Ed.2d 998 (2007); accord United States v. Mitchell, 502 F.3d 931, 974-75 (9th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2902, ___ L.Ed.2d ___ (2008); United States v. Barnette, 390 F.3d 775, 784-85 (4th Cir.2004), vacated on other grounds, 546 U.S. 803, 126 S.Ct. 92, 163 L.Ed.2d 32 (2005); United States v. Bernard, 299 F.3d 467, 483-84 (5th Cir.2002), cert. denied, 539 U.S. 928 (2003); United States v. Chanthadara, 230 F.3d 1237, 1263-64 (10th Cir.2000), cert. denied, 534 U.S. 992, 122 S.Ct. 457, 151 L.Ed.2d 376 (2001). Though we have never addressed the issue, our prior decisions are consistent with these cases. See United States v. Paul, 217 F.3d 989, 995 n. 2, 1001 (8th Cir.2000), cert. denied, 534 U.S. 829, 122 S.Ct. 71, 151 L.Ed.2d 37 (2001). There was no plain error.

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64 practice notes
  • United States v. Johnson, No. CR 01–3046–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 5, 2013
    ...factors” and “mitigating factors” and the weighing of those factors with the “statutory aggravating factors.” Cf. United States v. Bolden, 545 F.3d 609, 618 (8th Cir.2008) (noting that, in light of the plain language of 18 U.S.C. §§ 3593(b)-(e), “the FDPA contemplates a single penalty phase......
  • U.S. v. Rodriguez, No. 07-1316.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 22, 2009
    ...rejected Batson challenges to both strikes. This court reviews the denial of Batson challenges for clear error. United States v. Bolden, 545 F.3d 609, 614 (8th Cir.2008). To establish a Batson violation: First, the defendant must make a prima facie case that the prosecution's strike was mot......
  • Jackson v. U.S., No. Civ. 1:04CV251.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • June 19, 2009
    ...substantial rights and seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Bolden, 545 F.3d 609, 630 (8th Cir.2008). "To show that an error affected his substantial rights, he must `demonstrate[] a reasonable probability that he would ha......
  • Knudsen v. I.R.S., No. 08-2820.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 16, 2009
    ...requires examining the text of the statute as a whole by considering its context, object, and policy." United States v. Bolden, 545 F.3d 609, 632 (8th Cir.2008) (internal quotations and citation omitted). We examine the statute's "express language and overall purpose" when interpreting a st......
  • Request a trial to view additional results
64 cases
  • United States v. Johnson, No. CR 01–3046–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 5, 2013
    ...factors” and “mitigating factors” and the weighing of those factors with the “statutory aggravating factors.” Cf. United States v. Bolden, 545 F.3d 609, 618 (8th Cir.2008) (noting that, in light of the plain language of 18 U.S.C. §§ 3593(b)-(e), “the FDPA contemplates a single penalty phase......
  • U.S. v. Rodriguez, No. 07-1316.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 22, 2009
    ...rejected Batson challenges to both strikes. This court reviews the denial of Batson challenges for clear error. United States v. Bolden, 545 F.3d 609, 614 (8th Cir.2008). To establish a Batson violation: First, the defendant must make a prima facie case that the prosecution's strike was mot......
  • Jackson v. U.S., No. Civ. 1:04CV251.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • June 19, 2009
    ...substantial rights and seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Bolden, 545 F.3d 609, 630 (8th Cir.2008). "To show that an error affected his substantial rights, he must `demonstrate[] a reasonable probability that he would ha......
  • Knudsen v. I.R.S., No. 08-2820.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 16, 2009
    ...requires examining the text of the statute as a whole by considering its context, object, and policy." United States v. Bolden, 545 F.3d 609, 632 (8th Cir.2008) (internal quotations and citation omitted). We examine the statute's "express language and overall purpose" when interpreting a st......
  • Request a trial to view additional results

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