United States v. Gabrion

• Citation: 719 F.3d 511
• Decision Date: 28 May 2013
• Docket Number: Nos. 02–1386,02–1570.,02–1461,s. 02–1386
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marvin Charles GABRION, II, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

719 F.3d 511

UNITED STATES of America, Plaintiff–Appellee,

v.Marvin Charles GABRION, II, Defendant–Appellant.

Nos. 02–1386, 02–1461, 02–1570.

United States Court of Appeals,Sixth Circuit.

Argued: June 6, 2012.

Decided and Filed: May 28, 2013.

ARGUED:Barry J. Fisher, Office of the Federal Public Defender, Albany, New York, for Appellant. Timothy P. VerHey, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Kevin McNally, Margaret O'Donnell, McNally & O'Donnell, Frankfort, Kentucky, Judy Clarke, Clarke & Rice, San Diego, California, for Appellant. Joseph C. Wyderko, United States Department of Justice, Washington, D.C., Donald A. Davis, Jennifer L. McManus, Timothy P. VerHey, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.

KETHLEDGE, J., delivered the opinion of the court, in which BATCHELDER, C.J., and BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and DONALD, JJ., joined. CLAY, J. (pp. 535–37), delivered a separate opinion concurring in the judgment only, in which COLE, J., joined. MOORE, J. (pp. 537–55), delivered a separate dissenting opinion, in which MARTIN, WHITE, and STRANCH, JJ., joined.

OPINION

KETHLEDGE, Circuit Judge.

Marvin Gabrion was scheduled to be tried in Michigan state court for a rape charge on June 5, 1997. But that trial never happened. Two days before the trial was set to begin, Gabrion abducted Rachel Timmerman—the 19–year–old woman he allegedly raped—and took her to a remote location in the Manistee National Forest, bound and gagged her and weighed her down with concrete blocks, put her in an old metal boat, and then threw her overboard, alive, into a shallow, weedy lake, where she drowned. Gabrion also abducted and killed Timmerman's infant daughter.

Timmerman's murder was a federal offense because it occurred in a National Forest. See18 U.S.C. § 1111(b). A federal jury later convicted Gabrion of murder and recommended that he be sentenced to death. The district court sentenced him accordingly. Gabrion now challenges his conviction and sentence on numerous grounds. We reject all of his arguments, and affirm.

I.

A.

On the morning of August 7, 1996, Rachel Timmerman arrived at her mother's trailer home in Newaygo County, Michigan, hysterical and bleeding from a laceration on her nose. She said that a man named Marvin Gabrion had raped her the night before. Timmerman was then 19 years old and had given birth to a baby girl, Shannon Verhage, just six weeks earlier. Rachel told her mother that she was afraid to press charges because Gabrion had said that, if she did, he would kill both her and her baby. But that afternoon Rachel reported the rape to the Newaygo County Sheriff. Two months later, the county prosecutor charged Gabrion with the rape. For the next three months, however, the police were unable to find him.

On January 20, 1997, the Sheriff's deputies found and arrested Gabrion. They gave him an arrest warrant that named three witnesses for the rape charge: Timmerman herself; Wayne Davis, an associate of Gabrion's who had been with him the night of the rape; and Gabrion's teenaged nephew, Mikey Gabrion. Marvin Gabrion was jailed after his arrest, but was released after a friend (to whom Gabrion said he was jailed for DUI) posted bond for him on February 3, 1997.

Timmerman herself was in jail for a minor drug charge when Gabrion was released, but another witness, Davis, was free for the time being. Within days of Gabrion's release, Gabrion made his way to Davis's residence in White Cloud, Michigan. Davis himself was set to report to jail on February 13 for a 90–day term resulting from a DUI charge. His friend Darlene Lazo had agreed to drive Davis to jail that morning. The afternoon before Davis was scheduled to report, Lazo encountered Gabrion at Davis's home, working on a car. When Lazo arrived the next morning to give Davis a ride to jail, he was missing. Left behind, on a kitchen chair, was an army jacket that Davis always wore. His personal effects in the house likewise seemed untouched, except that his stereo equipment was missing. Davis was never seen alive again. A few weeks after Davis's disappearance, Gabrion tried to sell Davis's stereo equipment at a local consignment shop, with the serial numbers ground off.

On May 5 Timmerman was released from jail. Twice that month she encountered Gabrion and called the Sheriff's office in a panic afterwards, saying that she thought he would kill her. Meanwhile, a young friend of Gabrion's, John Weeks, repeatedly called Timmerman to ask her on a date. Rachel did not know that Weeks was calling at Gabrion's direction. Finally, on June 3—two days before Gabrion's rape trial was set to begin—Rachel told her father that a boy had invited her to dinner that night, and that she would be home in a couple of hours. She said she was bringing her baby along because the boy had specifically asked her to. Rachel's father never saw either of them alive again.

The day after Timmerman's disappearance, several other people saw her with Gabrion and another man in the vicinity of Oxford Lake, which lies partly in the Manistee National Forest. In early June—almost certainly on June 4—Bonnie Robinson was driving away from her farm in the vicinity of Oxford Lake. As she approached a one-lane bridge, she encountered an old pickup truck driving fast the other way, towards the lake. Inside the truck were two men with a large blond woman (a description matching Rachel) sitting between them. The driver “seemed to be very angry about something.” A metal boat was sticking out of the truck's bed.

Kathy Kirk similarly testified that she and her mother had parked at Oxford Lake, near the mud ramp, when an old pickup truck with a boat sticking out the back pulled up alongside them. Gabrion was driving and a young blond woman (whose photo Kirk later saw on the news) was sitting between him and another man (who was almost certainly Weeks). Twice the blond woman looked up at Kirk, and then looked down again. Soon Kirk and her mother drove off.

Finally, again on June 4, Pearl and Bob Hall were driving along a narrow two-track road towards Oxford Lake. As they got near the lake, an old pickup truck with a boat sticking out came fast the other way. This time Gabrion was driving alone, looking “like he was really mad. He was just glaring.” Hall had to pull off into the bushes to avoid a collision. As Gabrion drove past, “it sounded like there was stuff in the boat to make it rattle.” When the Halls got down to the lake, they saw marks in the mud ramp where someone had recently dragged out a boat.

One evening later that same week, Gabrion and John Weeks approached several campers at a nearby campground. Gabrion introduced himself as Lance (an alias he frequently used) and asked whether he could store his boat at the other campers' site, explaining that his own site was too crowded to keep it there. They agreed. One of the campers, Dan Basset, said that Gabrion was “skittish, nervous, didn't talk much.” Basset also said that Gabrion “always wore gloves [,]” even though it was warm out. Basset later came upon Gabrion's campsite while looking for firewood. Gabrion was standing by the fire, with gloves on. The campsite was nowhere near the area where Gabrion had said it was, and had plenty of room to store a boat.

Around 3:30 a.m. on June 6—two days after Gabrion was seen with Timmerman near Oxford Lake—one of Gabrion's neighbors in town, Trevor Zylstra, awoke to the sound of “a very loud bang[.]” Zylstra looked out the window and saw Gabrion dragging a metal boat on his gravel driveway. Once Gabrion got the boat to the side of the garage, Zylstra saw him remove two life vests, three concrete blocks, and a length of chain. Then Gabrion pulled the boat into the garage and ground off the boat's registration numbers.

Almost a month later—on July 5, 1997—Douglas Sortor and his son-in-law Nathan prepared to launch a small fishing boat at the same ramp that Gabrion had visited. They saw an object floating about 100 yards offshore. They looked at the object through binoculars and thought it appeared to be a human torso. They decided to investigate. The weeds between the ramp and the object were too thick to row through, so Sortor rowed to the South and then circled back towards the object. As they came close, they saw feet protruding from the water. Sortor said they hoped it was “a dummy” of some kind. Then the odor hit them and they realized the object was a human body. It was Rachel's. The body was face-up with a concrete block attached to the front, near the waist. The body was fully clothed. Rachel's left leg and waist were tightly bound with a shiny metal chain and two padlocks. A second concrete block was also attached to the body through the chain. Rachel's wrists were handcuffed tightly behind her back. Her eyes and mouth were bound with duct tape; her nose had been left uncovered. The water in that area was about 3 feet deep, with 82 feet of soft muck beneath. About one-third of the body was covered in muck. The body had surfaced as a result of bacterial gassing.

Gabrion's whereabouts at that time were unknown, but the police promptly began investigating him as a suspect. They executed a search warrant at his residence and found two keys that matched the padlocks on Rachel's body. They also found concrete blocks that were stained with the same tar and paint materials as the blocks attached to Rachel's body. Gabrion's nephew, Mikey, led Sheriff's deputies to a campsite that his uncle frequently used. The site was north of Oxford Lake, down a two-track in a dense, remote area. Gabrion's tent was still pitched there. Scattered about they found bolt cutters, another length of shiny chain, duct tape, a woman's hair clip, and silicone...