United States v. Runyon

• Decision Date: 25 February 2013
• Docket Number: No. 09–11.,09–11.
• Citation: 707 F.3d 475
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Anthony RUNYON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

707 F.3d 475

UNITED STATES of America, Plaintiff–Appellee,

v.David Anthony RUNYON, Defendant–Appellant.

No. 09–11.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 5, 2012.

Decided: Feb. 25, 2013.

ARGUED:Seth C. Farber, Winston & Strawn, LLP, New York, New York, for Appellant. Brian James Samuels, Office of the United States Attorney, Newport News, Virginia, for Appellee. ON BRIEF:Teresa L. Norris, Blume Weyble & Norris, LLP, Columbia, South Carolina, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Lisa R. McKeel, Assistant United States Attorney, Office of the United States Attorney, Newport News, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined. Judge NIEMEYER wrote a concurring opinion.

OPINION

WILKINSON, Circuit Judge:

Defendant David Anthony Runyon appeals his conviction and capital sentence for conspiracy to commit murder-for-hire, among other charges stemming from the same course of events. For the following reasons, we affirm.

I.

A.

On April 30, 2007, Cory Allen Voss, an officer in the United States Navy, was found dead of multiple gunshot wounds in his pickup truck in a parking lot in Newport News, Virginia. Three individuals were arrested in connection with the killing:Runyon; Catherina Voss (“Cat”), the victim's wife; and Michael Draven. On February 13, 2008, a federal grand jury in the Eastern District of Virginia returned a five-count indictment charging all three with the following crimes:

• Count One: conspiracy to commit murder-for-hire, in violation of 18 U.S.C. § 1958(a);

• Count Two: carjacking resulting in death, in violation of 18 U.S.C. § 2119 and 18 U.S.C. § 2;

• Count Three: bank robbery resulting in death, in violation of 18 U.S.C. § 2113(a) and (e) and 18 U.S.C. § 2;

• Count Four: conspiracy to commit robbery affecting commerce, in violation of 18 U.S.C. § 1951(a); and

• Count Five: murder with a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (j) and 18 U.S.C. § 2.

The indictment also included the requisite notice of special findings for seeking capital punishment pursuant to the Federal Death Penalty Act (FDPA), 18 U.S.C. §§ 3591–3598, which governs multiple aspects of this case. The government further notified Runyon that it intended to seek the death penalty against him on July 17, 2008.

Cat pleaded guilty to all counts and was sentenced to life imprisonment. Runyon and Draven were jointly tried before a jury beginning on June 30, 2009. At the end of the prosecution's case on the question of guilt, the court granted the defendants' motion to dismiss Count Three. The jury found both defendants guilty of Counts One, Two, and Five and not guilty of Count Four. The government did not pursue the death penalty against Draven. He received a sentence of life imprisonment, and this court affirmed his convictions in United States v. Draven, 417 Fed.Appx. 362 (4th Cir.2011) (per curiam).

The district court conducted a death penalty eligibility hearing for Runyon on July 22, 2009. The previous day, the court had excused a juror whose mother had died the night before and replaced her with an alternate, and the court informed the parties of this substitution immediately before the eligibility hearing. Neither side presented additional evidence at the hearing, and on that same day, the jury found Runyon eligible to receive the death penalty as a threshold matter. The penalty selection phase commenced on August 19, 2009. The jury began deliberating during the afternoon of August 26, 2009. The next morning, the court excused a juror whose brother-in-law had passed away the night before, replacing her with an alternate. The jury returned its verdict that evening, recommending a sentence of death on Counts One and Five and a sentence of life imprisonment on Count Two. The court imposed the recommended sentences on December 4, 2009, and this appeal followed.

B.

The evidence adduced during the guilt phase of Runyon's trial established the following factual foundations for his convictions.

Cat and Draven began conducting an extramarital affair during the summer of 2006. The affair commenced when Voss, to whom Cat had been wed since 1999, was deployed aboard the USS Elrod. Cat and Draven hired Runyon, whom Draven met while participating in a drug study in February 2007, to murder Voss in hopes of gaining his Navy death benefits and life insurance proceeds.

On April 20, 2007, Cat opened an account at a branch of the Langley Federal Credit Union in Newport News (“the LFCU”) with a five dollar deposit. Shortlybefore midnight on April 29, 2007, Cat sent Voss to the automated teller machine (“ATM”) at the LFCU to withdraw cash. Video surveillance showed that while Voss stood at the ATM, an unidentifiable intruder entered his pickup truck. Voss drove away from the ATM but returned a few minutes later and attempted another withdrawal, which was denied due to insufficient funds. Voss was found dead in his truck in a parking lot near the LFCU the next morning. He had been shot five times at close range. Four hollow-point bullets from a “.38 class” gun—which includes firearms capable of firing .357 magnum, .38 special, and 9 mm cartridges—were recovered from his body. The cause of death was three shots to the chest and abdomen.

The prosecution presented a wealth of evidence proving that Runyon acted as the triggerman in a murder-for-hire conspiracy. The government established that on the day of the killing, Runyon purchased a .357 magnum handgun and ammunition in West Virginia, where he lived, and that a friend of his pawned the gun several months later. In the console of Runyon's vehicle, law enforcement located a map of Newport News with notes referring to Voss, Voss's vehicle, and the LFCU, as well as a photograph of Cat and Draven with their names, addresses, and a social security number written on the back. In Runyon's current and former homes, investigators discovered phone numbers for Cat and Draven; a box of .357 magnum bullets with five missing; papers mentioning the LFCU and the travel time to Virginia; and a list of items including a taser, Spyderco knife, tarp, and trash bag, as well as boots, gloves, a black hoodie sweatshirt, and military-style pants. Moreover, a variety of telephone and email evidence showed that Cat, Draven, and Runyon had arranged the contract killing and attempted to orchestrate a cover-up. For example, while Runyon apparently asked for five hundred dollars up front, a Western Union money order showed that he received two hundred and seventy-five dollars from Draven's brother on June 1, 2007. Finally, several witnesses testified that Runyon had boasted about killing Voss—or a military member or unidentified individual—for money.

As mentioned above, at the close of the prosecution's casein-chief, the court dismissed the bank robbery charge (Count Three). The jury ultimately convicted Runyon of conspiracy to commit murder-for-hire (Count One), carjacking resulting in death (Count Two), and murder with a firearm in relation to a crime of violence (Count Five) and found him not guilty of conspiracy to commit robbery affecting commerce (Count Four).

C.

The sentencing portion of the trial began with the eligibility phase, which determines whether a defendant meets the minimum statutory requirements for receiving the death penalty. Pursuant to the FDPA, a defendant convicted of certain crimes—including those charged in Counts One, Two, and Five here—can be declared eligible if the jury determines, unanimously and beyond a reasonable doubt, that one of four enumerated intent elements and at least one statutory aggravating factor are present. See18 U.S.C. §§ 3591–3593. Here, the jury found that Runyon had intentionally killed Voss, see id. § 3591(a)(2)(A), and that the prosecution had established two statutory aggravating factors: first, that Runyon “committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value” and, second, that he “committed the offense after substantial planning and premeditation to cause the death of a person,” id. § 3592(c)(8), (9).

The district court then proceeded to the penalty selection phase. Pursuant to the FDPA, the jury must decide by unanimous vote “whether the defendant should be sentenced to death, to life imprisonment without the possibility of release or some other lesser sentence.” Id. § 3593(e). In deciding whether to recommend capital punishment, the jury must determine “whether all the aggravating ... factors found to exist sufficiently outweigh all the mitigating ... factors found to exist to justify a sentence of death.” Id. The FDPA enumerates a number of statutory aggravating factors and mitigating factors (which are also often called “aggravators” and “mitigators”) and allows the parties to propose nonstatutory factors for the jury to consider as well. Id. § 3592(a), (c); id. § 3593(a). While the jury may find only aggravators for which the prosecution has provided notice as defined by the statute, the jury may find additional mitigators beyond those specifically proposed by the defense. Id. § 3592(a), (c); id. § 3593(a). Finally, the FDPA provides that, while findings concerning aggravating factors must be unanimous, findings concerning mitigating factors “may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established.” Id. at § 3593(d).

After receiving an abundance of evidence over several days (from sixteen prosecution and twenty-one defense witnesses),¹ the jury unanimously found that the prosecution had proved each of its proposed nonstatutory aggravators, in addition to the two statutory aggravators already found during the eligibility phase. As...