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United States v. Dustin John Higgs
Citations: 353 F.3d 281; 2003 U.S. App. LEXIS 25904; 2003 WL 22992273Docket: 01-3
Court: Court of Appeals for the Fourth Circuit; December 22, 2003; Federal Appellate Court
Dustin John Higgs was convicted by a federal jury for the murders of Tanji Jackson, Tamika Black, and Mishann Chinn, which occurred on January 27, 1996, in the Patuxent National Wildlife Refuge, Maryland. He faced multiple charges, including three counts of first-degree premeditated murder, three counts of murder during the commission of a kidnapping, and three counts of kidnapping resulting in death, all punishable by life imprisonment or death. Additionally, Higgs was convicted of using a firearm in connection with a violent crime. He received nine death sentences under the Federal Death Penalty Act, one for each murder and kidnapping count, along with a 45-year sentence for the firearm offenses. On appeal, Higgs raised various challenges to his convictions and sentences, including concerns over the influence of passion or prejudice in imposing the death penalty and the sufficiency of evidence for aggravating factors. After reviewing all issues raised, the court found no reversible error and affirmed both the convictions and the death sentences imposed by the district court. The background details reveal that on the evening prior to the murders, Higgs and two companions drove to Washington D.C. to meet the victims. After socializing at Higgs's apartment, tensions escalated between Higgs and Jackson, leading to a confrontation. Following an argument, the women left the apartment, during which Jackson exhibited threatening behavior that concerned Higgs. This incident set the stage for the subsequent violent events leading to the murders. Higgs retrieved a silver .38 caliber firearm from a drawer, then drove with Haynes and Gloria in his van to pick up three women walking on the roadside, under the pretense of taking them home. Instead of heading towards Washington, D.C., they drove into the Patuxent National Wildlife Refuge, where Higgs parked in a secluded area. After the women exited the van, Haynes shot one of them while Higgs watched from the driver's seat. Following the shootings, Haynes and Higgs disposed of the gun in the Anacostia River and cleaned their apartment to eliminate evidence. They discarded items the women had touched and instructed Gloria to remain silent. At around 4:30 a.m., the bodies of the three women were discovered, leading to an investigation that identified Higgs as a suspect. During a police interview, Higgs acknowledged knowing one of the victims but denied her presence in his apartment. The investigation continued for nearly three years before an arrest was made, despite Higgs's initial denial of involvement. After interviewing Higgs, law enforcement executed an arrest and search warrant linked to suspected bank fraud, resulting in the seizure of documents, cash, crack cocaine, a .380 semi-automatic firearm, and ammunition. Higgs was arrested on federal drug charges, pled guilty to possession with intent to distribute cocaine base, and was sentenced to seventeen years in prison, remaining in custody since then. Following his arrest, Phyllis Smith initially provided a false alibi for Higgs concerning his whereabouts on the night of January 26, claiming he was helping her clean for a party. However, she later testified to the grand jury that Higgs had only been with her at 5 a.m. on January 27 and ultimately recanted her alibi, admitting that he was not present during the crucial hours of that night. She confirmed that Higgs arrived at her home sometime between 5 a.m. and 10 a.m. on January 27. Enidsia Darby, Higgs's former girlfriend and mother of his child, testified that Higgs, after his arrest, asked her to remember being with him at the hospital on the night of the murders, which was false. In jail, Higgs confessed to Darby that he was present when Haynes shot the three women, claiming one of the victims had been 'snitching.' Additionally, Darby described a bank fraud and credit card scheme involving Higgs, where he deposited fraudulent checks into accounts opened by her and a friend, leading to threats when the checks bounced and money was not returned. Darby testified that while working in a retail electronics department, she charged items to a credit card provided by Higgs. Later, Higgs threatened her life if she identified him from surveillance footage. The investigation into Higgs revealed his involvement in two previous shooting incidents with a .38 caliber weapon, the same caliber used in the murders of three women. The first incident occurred on November 20, 1995, when Higgs shot out vehicle windows during a drive-by shooting after an argument outside the Chaconia Nightclub in Washington, D.C. Following his arrest on federal drug charges, police found a .38 caliber bullet in the vehicle involved. Wondwossen Kabtamu, who was present during the shooting, testified that he drove Higgs's van while Higgs fired the gun, which they later retrieved after discarding it. While incarcerated in a D.C. jail in late 1998, Higgs discussed the Chaconia charges with fellow inmate Domenick Williams. Higgs expressed reluctance to plead guilty, fearing the gun would be used against him in another case. After learning of Higgs's indictment for the murders, Williams noted Higgs's concerns about not pleading guilty and the potential for a deal offered to his co-defendant Haynes. Higgs indicated confidence in his associates, Melvin Grayson and 'T', to assist him. Williams later informed authorities about his conversations with Higgs and produced letters in which Higgs claimed the Chaconia charges had been dismissed, and that his associates were supportive. The Chaconia charges were indeed dismissed in May 1999. The second shooting incident occurred on December 10, 1995, when Haynes confronted Rodney Simms over a woman, leading to a shooting in which both Haynes and Higgs participated. They faced charges in Maryland state court, with police recovering 9mm and .38 caliber evidence from the scene. Forensic analysis established that .38 caliber bullets from the Cherry Lane and Chaconia crime scenes had five lands and grooves with a right twist, similar to .38 caliber bullets found at the Patuxent murder scene. Although the forensic evidence could not conclusively link the bullets to a specific weapon, the bullets’ characteristics were consistent. In April 1997, Higgs pled guilty to the Cherry Lane shooting, receiving an 18-month sentence, while the prosecutor indicated that Haynes used a 9mm handgun and Higgs a .38 caliber handgun. Higgs contested only the ownership of the .38. On December 21, 1998, both Higgs and Haynes were indicted on multiple counts, including three counts of first-degree murder and associated charges. In October 1999, the government notified its intent to seek the death penalty. Following various legal proceedings, Haynes was tried first, convicted, and sentenced to life imprisonment with additional years for firearm offenses, which were upheld on appeal. Higgs's trial commenced on September 5, 2000, culminating in guilty verdicts on all charges by October 11, 2000. During the penalty phase, the jury sentenced Higgs to death for both murder and kidnapping counts after determining beyond a reasonable doubt that Higgs had intentionally engaged in acts that risked the victims' lives and had specifically acted with the knowledge that his actions could result in death. The jury's decision was guided by statutory requirements for establishing intent and aggravating factors under the Federal Death Penalty Act (FDPA). The jury established that the government proved four statutory aggravating factors beyond a reasonable doubt for the first-degree murder counts: (1) the deaths occurred during a kidnapping; (2) Higgs had a prior violent felony conviction involving a firearm; (3) he had a prior serious federal drug offense conviction; and (4) the case involved multiple killings in a single episode. Additionally, two nonstatutory aggravating factors were proven: (1) Higgs caused harm to the victims and their families; and (2) he obstructed justice by tampering with evidence and witnesses. The jury identified three mitigating factors by a preponderance of the evidence: (1) Higgs was not the sole cause of the victims' deaths; (2) he was impaired by substances during the murders; and (3) a death sentence would adversely affect his son. However, three other mitigating factors were unanimously rejected: (1) the culpability of a co-defendant who was not sentenced to death; (2) Higgs's troubled family history; and (3) other personal circumstances that could mitigate the death sentence. Consequently, the jury recommended the death penalty for each eligible conviction, leading to the district court imposing nine death sentences, along with additional prison sentences for related convictions and a restitution order. Higgs is appealing his convictions and sentences, raising twenty separate claims of error, including a challenge to the sufficiency of the indictment regarding intent and aggravating factors necessary for the death penalty under the Federal Death Penalty Act (FDPA). The legal sufficiency of the indictment is reviewed de novo. The Fifth Amendment's Indictment Clause mandates that individuals cannot be charged with capital crimes without a Grand Jury presentment, ensuring that charges are determined by a jury independent of prosecutorial influence. The Indictment Clause of the Sixth Amendment requires that a defendant be informed of the charges against them by including the elements of the offense and a sufficiently detailed description to allow for the assertion of previous acquittals or convictions. An indictment must adequately inform the defendant of the charges and enable them to plead any prior acquittals or convictions to prevent future prosecutions for the same offense. The case at hand examines whether Higgs's federal indictment properly alleged nine murder and kidnapping counts as death-eligible capital offenses, invoking principles established in Apprendi v. New Jersey. In Apprendi, the Supreme Court ruled that any fact increasing a penalty beyond the statutory maximum must be presented to a jury and proven beyond a reasonable doubt, with the exception of prior convictions. This principle applies equally to federal prosecutions, mandating that such facts be included in the indictment. The determination of whether a fact is an element of the offense or a sentencing factor is based on its effect on the potential punishment. In Ring v. Arizona, the Court extended this requirement to capital cases, asserting that capital defendants are entitled to a jury finding on any fact that influences their maximum punishment, thus striking down a prior scheme that allowed judges to make such determinations unilaterally. A State must have a jury determine any fact that increases a defendant's authorized punishment beyond a reasonable doubt. A defendant cannot face a penalty exceeding the maximum based solely on the jury's verdict. Arizona's aggravating factors function as elements of a greater offense, necessitating jury findings per the Sixth Amendment. The Arizona sentencing scheme does not involve the Fifth Amendment's Indictment Clause, as the Supreme Court has not clarified the extent to which the Indictment Clause requires intent and aggravating factors to be included in the indictment. Higgs contends that, based on Apprendi and Ring principles, any factor submitted to a jury must be included in the indictment, which is supported by this document. Higgs was indicted for multiple counts of murder and kidnapping, with federal statutes allowing for punishment of death or life imprisonment. A jury must find at least one intent factor and one statutory aggravating factor for a defendant to be eligible for the death penalty. These factors are treated as elements of the capital offenses, thus requiring inclusion in the indictment and proof beyond a reasonable doubt. However, nonstatutory aggravators need not be included in the indictment, as they do not independently support a death penalty but assist the sentencer in determining the appropriate sentence based on individual circumstances and character. Zant v. Stephens distinguishes between 'eligibility' and 'selection' factors in capital sentencing, noting that nonstatutory aggravating factors do not need to be included in an indictment. In evaluating Higgs's indictment for capital murder, the court considers whether it was constitutionally defective for not alleging statutory intent and aggravating factors. The indictment sufficiently alleged the intent factors under 18 U.S.C.A. 3591(a)(2), as it detailed Higgs's intentional acts of killing three women and creating a grave risk of death during a kidnapping. The court found the question of statutory aggravating factors under 18 U.S.C.A. 3592(c) more complex. Higgs argued that the indictment was insufficient for failing to include all aggravating factors found by the jury. However, the law only requires one statutory aggravating factor to be alleged for a death sentence recommendation. The court confirmed that the indictment was valid as it charged the necessary elements of the offense and at least one aggravating factor, with the jury subsequently affirming the existence of three aggravating factors: (1) multiple killings in a single incident, (2) a prior violent felony conviction involving a firearm, and (3) a prior serious federal drug offense. Thus, the indictment was deemed constitutionally adequate. The jury confirmed six first-degree murder counts, establishing that the deaths occurred during a kidnapping, which serves as a statutory aggravating factor under 18 U.S.C.A. 3592(c)(1). The government contends that the indictment is valid as it alleges facts supporting two aggravating factors: multiple killings in a single episode and death during a kidnapping. Additionally, the government argues that the Fifth Amendment does not mandate prior conviction aggravators to be included in the indictment. The court agrees that the indictment is constitutionally sound. However, it determines that while the "multiple killings" aggravator was adequately alleged, it cannot be used for the charges since it became a statutory aggravator only after the murders were committed, violating the Ex Post Facto Clause of the Constitution. This clause prohibits retroactive application of laws that alter crime definitions or increase punishments. The indictment remains valid as the "other crime" aggravator supports the death sentence for the murder charges, and prior conviction aggravators were not required to be included in the indictment. The court emphasizes that while defendants do not have an absolute right to be tried under the laws in effect at the time of the crime, they must be given fair warning of the laws governing their acts. Relief under the Ex Post Facto Clause hinges on the absence of fair notice and governmental restraint when legislative changes increase punishment for crimes committed prior to those changes, rather than an individual's right to reduced punishment. Citing Supreme Court cases like Apprendi and Ring, it is established that the government cannot use "multiple killings" as a sole statutory aggravating factor for crimes committed before its adoption, as it would violate the Ex Post Facto Clause. Statutory aggravating factors that make a crime death-eligible increase the punishment, and thus "multiple killings" cannot be the only aggravator for death eligibility in these murders. The indictment regarding first-degree murder is deemed sufficient because it adequately alleges the aggravator of "death during the commission of another crime," specifically stating that Higgs killed three women while perpetrating a felony, namely kidnapping. As such, it supports at least one aggravating factor, rendering it not defective for the capital murder charges. However, it cannot suffice for the capital counts of kidnapping resulting in death, as it was only submitted in connection with the first-degree murder counts. Regarding prior conviction aggravators, the government argues that the indictment is valid as both first-degree murder and kidnapping-resulting-in-death counts carry a death sentence as a maximum penalty. The prior convictions, which were found by the jury, fall within the Apprendi and Almendarez-Torres exceptions, meaning they do not need to be explicitly alleged in the indictment to authorize the maximum penalty. The Almendarez-Torres case clarifies that a prior conviction does not have to be alleged in an indictment for enhanced sentencing under certain federal statutes. The Court addressed whether a particular statutory provision constitutes a separate crime or merely allows for an enhanced penalty. If it defines a separate crime, the Government must include a prior aggravated felony conviction in the indictment. Conversely, if it only permits a higher sentence for an offender with a prior conviction, such a fact does not need to be mentioned in the indictment since it is not an essential element of the crime. The Court determined that the relevant provision is a penalty enhancement, not a separate offense, thus not requiring the prior conviction to be included in the indictment. This distinction aligns with previous rulings, particularly Almendarez-Torres, which established that not every fact increasing a penalty must be charged in an indictment. The Court reaffirmed that recidivism is traditionally viewed as a sentencing factor, distinct from other facts that might influence sentencing. It underscored that a prior conviction must have been established with constitutional safeguards, such as fair notice and the right to a jury trial, distinguishing it from other potential sentencing factors. The Court further clarified that recidivism is not related to the commission of the current offense, contrasting it with enhancements based on specific actions taken during the crime. Procedural safeguards related to prior convictions mitigate due process and Sixth Amendment concerns regarding a judge determining facts that increase punishment beyond the statutory maximum. Almendarez-Torres established that prior convictions can be determined by a judge without being alleged in the indictment, a proposition that remains valid unless overruled by the Supreme Court. Although Higgs acknowledges the recidivism exception to the Apprendi mandate, he argues that the Ring decision challenges Almendarez-Torres, yet the court is bound to follow Almendarez-Torres until it is explicitly overruled. In Higgs' case, the indictment properly alleged first-degree murder and kidnapping, which authorized life imprisonment or death, with life imprisonment being the maximum unless statutory aggravators are established. While aggravators must be included in the indictment and proven beyond a reasonable doubt, prior convictions are exempt from this requirement under current jurisprudence. Even if the indictment was defective for not alleging the necessary aggravating factors, Higgs would not be entitled to have his convictions or sentences overturned, as most constitutional errors can be considered harmless. The principle established in case law states that a valid conviction should not be overturned if the court can confidently determine that the error was harmless beyond a reasonable doubt. In assessing whether an error is harmless, the focus is on whether it contributed to the verdict. Higgs contends that the failure to charge the aggravating factors is a structural error that necessitates the reversal of his capital convictions. Structural errors in a criminal trial are fundamentally different from trial errors, as they are presumed to affect the defendant's substantial rights and compromise the trial's integrity. The Supreme Court has established that most constitutional errors are not structural and can undergo harmless-error analysis, particularly when the defendant had legal counsel and an impartial adjudicator. Structural errors are limited to specific cases, such as violation of the principle of proof beyond a reasonable doubt, complete deprivation of counsel, denial of self-representation, bias from the trial judge, and failure to maintain open trials. The Court has identified two types of structural errors related to grand jury proceedings: racial and sex discrimination in juror selection. However, in United States v. Mechanik, the Court ruled that a procedural error in a grand jury—allowing two witnesses in the room simultaneously—was subject to harmless error review. The error was deemed harmless since a subsequent guilty verdict by a petit jury confirmed the defendants’ guilt beyond a reasonable doubt, thus indicating that any prior grand jury errors did not affect substantial rights. The Court emphasized that errors not impacting substantial rights should generally be disregarded. The Mechanik Court distinguished the Vasquez decision, suggesting its rationale primarily applies to racial discrimination cases within grand jury compositions, where automatic reversal is warranted due to the severe implications and limited alternative remedies. It highlighted that societal interest in deterring such errors does not equal the interest in preventing racial discrimination. In United States v. Cotton, the Supreme Court encountered a conceded indictment error regarding the omission of drug quantity, which is crucial for establishing statutory maximum sentences as per Apprendi and Jones. Although the Court did not clarify whether this type of error is structural or subject to harmless error review, it applied a plain error test and concluded that the error did not undermine the fairness or integrity of judicial proceedings. The excerpt also indicates ongoing uncertainty within Supreme Court precedents concerning the structural nature of indictment errors. The ruling in Mitchell v. Esparza supports that failure to include an aggravating factor in a capital murder indictment is subject to harmless error analysis and does not contradict existing harmless error precedents. The analysis suggests that, akin to the rights in a trial, the right to have a grand jury consider every element of an offense should also be subject to harmless error review. Notably, in this case involving Higgs, despite the indictment lacking allegations of aggravating factors for first-degree murder and felony murder charges, the error is deemed harmless because it is evident that the omission did not impact the verdict. The primary function of an indictment is to inform the defendant of the charges and provide a basis for pleading former jeopardy. In this case, the indictment referenced statutes with a maximum penalty of death and indicated the government's intent to pursue this penalty, thus giving Higgs fair notice of the charges and the aggravating factors the prosecution would prove at trial. While the indictment did not list every aggravating circumstance, it sufficiently notified Higgs of the accusations and the potential for a death sentence. The petit jury's determination of all aggravating factors beyond a reasonable doubt indicated that Higgs was not prejudiced by any grand jury errors, as established by precedent that grand jury errors can be deemed harmless if the petit jury subsequently finds guilt beyond a reasonable doubt. The evidence of Higgs's prior violent felony and serious drug offense, which satisfied the aggravating factor requirement, was uncontested. Therefore, any potential indictment error was deemed harmless beyond a reasonable doubt, and it did not compromise the fairness of the indictment or the jury's verdict. Higgs also filed a motion for a change of venue due to extensive media coverage, which the district court denied. On appeal, he argues that this denial violated his constitutional right to a fair trial under the Fifth and Sixth Amendments, claiming that the media coverage made an impartial jury in Greenbelt impossible. The appellate review of the denial of the motion for change of venue is conducted for abuse of discretion. Change of venue is appropriate when there is significant prejudice against a defendant in the district where the prosecution is pending, making it impossible for the defendant to receive a fair trial, as outlined in Fed. R. Crim. P. 21(a). The process for determining the necessity of a venue change due to pretrial publicity involves two steps. First, the court assesses whether the publicity is inherently prejudicial, which may warrant a change before jury selection. However, only in rare circumstances can prejudice be presumed solely from pretrial publicity. Typically, the court conducts a voir dire of potential jurors to ascertain actual prejudice. If this process shows that an impartial jury cannot be formed, a venue change should be granted. In the case of Higgs, he argued that the extensive media coverage over four years prior to his trial constituted presumed prejudice. He highlighted that he and Haynes were notable federal defendants facing the death penalty and that news reports linked them as drug dealers involved in the murders. Higgs noted that many prospective jurors had prior knowledge of the case. However, the district court determined that the media coverage, while significant, did not necessitate a venue change. The coverage was described as not particularly inflammatory and largely factual, with the majority occurring four years prior to the trial. Additionally, coverage around Haynes's trial was deemed minimal and factual rather than prejudicial. Thus, the court found no abuse of discretion in rejecting Higgs's motion for a change of venue. Extensive media coverage of the alleged crime and subsequent criminal proceedings was deemed insufficient to establish presumed prejudice against Higgs. The court rejected Higgs's claim of actual prejudice, despite voir dire revealing that many jurors were aware of the case and had formed opinions based on media reports. Under the second prong of Bailey, a change of venue may be ordered if actual prejudice prevents an impartial jury. However, mere knowledge of the case does not equate to actual prejudice. All seated jurors who had heard of the case affirmed their ability to decide based solely on trial evidence. Thus, the district court's denial of Higgs's motion for a change of venue was affirmed. Higgs also challenged the admission of a recorded phone conversation with Melvin Grayson, arguing violations of his Fifth and Sixth Amendment rights, particularly regarding jury instructions that suggested his silence could be interpreted as an admission. Since Higgs did not object to the tape's admission at trial, the court reviewed it for plain error. The court also assessed jury instructions for abuse of discretion, noting that errors would warrant conviction reversal only if prejudicial. During the recorded call, Higgs discussed a co-defendant's conviction and expressed frustration over being implicated in the crime. Grayson read a newspaper article to Higgs, detailing Haynes's conviction and Haynes's claim that he shot the women due to fear of Higgs. Higgs remained silent during this reading and did not object to the admission of a tape recording at trial. The jury was instructed that Higgs's silence could be interpreted as an admission of guilt under Federal Rule of Evidence 801(d)(2)(B). Testimony indicated that while incarcerated, Higgs was silent when implicating statements were made in his presence. The jury was guided to consider his silence as acceptance of the statements' truth unless they believed he would have denied them if they were false. However, the court noted that silence does not always indicate guilt, as some individuals may choose not to respond for various reasons, including awareness of monitored communications. Higgs objected to the instruction regarding Rule 801(d)(2)(B), which allows statements to be considered non-hearsay if a party adopts or believes them to be true through silence or conduct. The admissibility of the recorded conversation between Higgs and Grayson was upheld, as it showed Higgs was aware of the accusations and engaged in the discussion without indicating his silence was due to the recording. The court found no error in allowing the jury to consider Higgs's silence as potentially indicative of guilt. Additionally, Higgs argued that the admission of evidence related to the Chaconia nightclub shooting and a bank fraud scheme violated his right to due process and a fair trial. Despite this, the defense did not call any witnesses or present Higgs's testimony at trial. The court instructed the jury regarding the government’s evidence of unrelated offenses involving the defendant, including shootings in November and December 1995, bank fraud, firearm possession, and drug activity. The jury was explicitly told that the defendant was not on trial for these acts, and such evidence should not be interpreted as indicative of the defendant's character or propensity to commit crimes. However, this evidence could be relevant to establish the defendant’s identity, motive, intent, knowledge on the date of the charged crimes, and relationships with co-defendants. Higgs contended that the district court improperly admitted this evidence during the guilt phase, arguing it was not intrinsic to the crimes charged nor permissible under Rule 404(b). The court reviewed this admission for abuse of discretion and found none, emphasizing that evidence intrinsic to the crime is permissible and that uncharged conduct can provide context to the crime being tried. Under Rule 404(b), evidence of other acts may be admissible if it supports elements of the offense without merely suggesting bad character. The instructions on admissibility require that the evidence be relevant to an issue, necessary for an essential claim, reliable, and that its probative value is not substantially outweighed by potential prejudice. The excerpt also details the Chaconia nightclub shooting, which occurred two months prior to the murders, involving an argument and gunfire from Higgs, as recounted by witnesses. Higgs's reluctance to plead guilty to the Chaconia charges was noted, as he feared the implications for another case. Higgs, indicted for the murders of three women, expressed to Williams his reluctance to plead guilty. In this case, the victims were killed with a .38 caliber weapon, and a bullet from the Chaconia shooting shared similar rifling characteristics with those found at the Patuxent murder scene. The government properly introduced evidence of Higgs's involvement in the Chaconia Nightclub shooting to link him to the firearm that Gloria testified he owned and used on the night of the murders. This evidence was deemed admissible under Rule 404(b), establishing Higgs's identity and connection to the murders, with the district court finding no abuse of discretion in its ruling that the probative value of the evidence outweighed any prejudicial effect under Rule 403. Additionally, Higgs contested the admission of Darby's testimony regarding an unrelated bank fraud scheme involving threats made by him when authorities investigated the matter. The district court admitted this evidence to demonstrate Higgs's motive for the murders and his pattern of issuing threats to prevent potential informants. Testimonies indicated that a violent argument occurred before the murders, where Higgs expressed anger towards Jackson, whom he believed might "snitch." Darby recounted Higgs's concerns about being implicated in criminal activities, suggesting retaliation against Jackson was a motive for the murders. Previous cases were cited to support the admissibility of such evidence to establish motive and intent. Evidence of threats and plans to harm other witnesses was admitted to establish the defendant's motive and intent to murder, as he sought to silence a victim. The court assessed the sufficiency of evidence to support Higgs's convictions by determining if substantial evidence existed, which a reasonable finder of fact could accept as adequate to conclude guilt beyond a reasonable doubt. Higgs challenged the legality of his convictions for kidnapping under 18 U.S.C.A. § 1201 and first-degree murder occurring during kidnapping under 18 U.S.C.A. § 1111(a). The government needed to prove that each victim was unlawfully seized or confined and held for ransom or reward. Testimony revealed a sequence where, following an argument, Higgs retrieved a weapon and instructed his accomplice, Haynes, to get the women into the van. After deviating from the route home, Higgs stopped in a secluded area, leading one woman to express concern about having to walk. Higgs's response indicated foreboding intentions, and he handed Haynes the gun, who subsequently shot the women. Higgs argued that the women voluntarily entered the van and that there was no evidence of holding them for ransom. The court found the evidence sufficient to demonstrate that the women were tricked into the van under false pretenses, thereby supporting the conclusions of unlawful seizure and confinement, as Higgs was prepared to confine them at gunpoint if necessary. To establish kidnapping conviction based on inveigling, the fact finder must assess if the alleged kidnapper intended to use physical or psychological force if deception failed. Evidence indicated that Higgs and Haynes confined the women in a van under false pretenses, subsequently holding and killing them to retaliate against a conflict involving Higgs and Jackson. The court referenced relevant case law indicating that kidnapping encompasses holding a victim for any reason benefiting the defendant, with no requirement for pecuniary gain. Consequently, the evidence was deemed sufficient to convict Higgs of kidnapping and felony murder. Regarding first-degree premeditated murder under 18 U.S.C.A. § 1111(a), the government needed to prove Higgs's involvement and intent in the venture. Despite Higgs claiming insufficient evidence of his knowledge about Haynes's intent to shoot, the court found the evidence compelling. Higgs provided the murder weapon, directed Haynes to lure the women, and drove them to the murder site, demonstrating clear participation and motive connected to prior altercations. The jury had sufficient grounds to convict Higgs of premeditated murder. Lastly, Higgs's challenge to the sufficiency of evidence for firearm violations under 18 U.S.C.A. § 924(c) was also rejected. The government needed to show Higgs used or carried a firearm in relation to the murders, which was adequately proven by the established evidence. Higgs retrieved a gun from his apartment before confronting three women, retaining possession of the gun until he ordered them out of the van, which provided substantial evidence for the jury's verdict. In the sentencing phase of his trial, Higgs challenged several statutory aggravating factors, which the district court denied. The court reviewed these legal conclusions de novo. One key aggravating factor was that the deaths occurred during the commission of a kidnapping. Higgs contended this factor duplicated substantive elements of the kidnapping charges and did not sufficiently narrow the jury's discretion to impose a death sentence. He cited precedent indicating that aggravating circumstances must narrow the class of individuals eligible for the death penalty. The court concluded that the factor of death during another crime was not presented as an aggravating factor for the substantive kidnapping charges but solely for the first-degree murder counts. As a result, it served the necessary narrowing function for the jury. The court clarified that the Eighth Amendment allows for the use of an aggravating factor in the sentencing phase that may overlap with elements of the offense from the guilt phase, as established in prior case law. The statutory aggravating factor under 18 U.S.C.A. § 3592(c)(1) relates to a defendant causing the death of a victim during a kidnapping. In United States v. Jones, the court dismissed the defendant's argument that this factor did not sufficiently narrow the pool of death penalty candidates. Additionally, in Deputy v. Taylor, it was established that juries may consider elements of a capital offense as aggravating circumstances, even if duplicative. Higgs contested the district court's finding that his prior conviction for a violent felony involving a firearm constituted a statutory aggravating factor under § 3592(c)(2). This conviction stemmed from a December 1995 shooting incident, where he pleaded guilty to assault and reckless endangerment. During the plea, the prosecutor noted Higgs's use of a .38 caliber firearm, although Higgs disputed this claim. On appeal, Higgs argued for a "categorical" approach to assess whether his prior conviction involved a firearm, asserting that the court should only consider the conviction and its statutory definition, not the specifics of the incident. However, the court rejected this argument, clarifying that the categorical approach is not mandated under § 3592(c)(2). The statute simply requires the previous conviction to involve the use or attempted or threatened use of a firearm, which the court found was satisfied by Higgs's guilty plea. The court has the authority to examine the conduct underlying an offense beyond its elements, as established in United States v. Chong. While the categorical approach aims to prevent the unfairness associated with factual assessments, an individualized determination is mandated in death penalty cases, as noted in Zant. In this case, the district court correctly submitted a statutory aggravating factor regarding Higgs's prior conviction for a serious federal drug offense to the jury. Higgs contended that his conviction, which stemmed from a 1996 drug seizure and was finalized in 1997, should not be considered because it occurred after the murders. He argued that the death penalty statute's language implies that a "previously convicted" offense must precede the capital crime. The district court disagreed, interpreting the statute to include any serious drug offense conviction prior to sentencing. Both parties referenced the United States Sentencing Guidelines to support their interpretations of the statutory language, highlighting the distinction between what constitutes a "prior" conviction for criminal history calculations versus for establishing career offender status. Higgs also cited United States v. Barton, which dealt with an ambiguous guideline related to prior felony convictions. The Barton court interpreted the terms "had" and "prior" to indicate that only predicate convictions occurring before the conduct forming the basis of the federal offense are considered. Various circuits have conflicting rulings on whether past-tense "had" includes post-offense convictions under U.S.S.G. § 2K2.1, with the Eighth Circuit aligning with Barton and the Eleventh Circuit, among others, ruling that post-offense convictions do count. In 2001, the Sentencing Commission amended § 2K2.1 to clarify that a defendant's base offense level is increased if any part of the current offense occurred after one felony conviction for a violent crime or controlled substance. This amendment adopted the minority view but was not made retroactive. The court concluded that the statutory aggravating factor under 18 U.S.C. § 3592(c)(12) includes all predicate convictions prior to sentencing, regardless of when they occurred relative to the underlying capital charges. It emphasized that Congress did not require prior convictions to precede the death penalty offense and that the focus lies on the offender's characteristics at sentencing. The argument presented by Higgs was that this prior drug conviction aggravator should be treated differently based on the phrasing "had previously been convicted," but the court found no basis for such a distinction. The excerpt addresses several legal arguments related to the aggravating factors considered in Higgs's death penalty case. It asserts that the grammatical distinction among statutory aggravators does not support the notion that Congress intended to treat prior serious drug offense aggravators differently for homicide than for other crimes under the Federal Death Penalty Act (FDPA). Even if the prior drug offense aggravator was improperly submitted to the jury, this error is deemed harmless since it was only one of six aggravators, with the jury finding only three mitigating factors. Higgs also challenges the district court's denial of his motion to strike the "multiple killings" aggravator, claiming it violated the Ex Post Facto Clause. The district court ruled that this aggravator did not constitute a substantive change in the law as it did not increase the punishment available when the murder occurred. While the submission of the "multiple killings" aggravator was found improper, the court concluded that it constituted harmless error because the jury identified four statutory aggravators for the murder convictions and three for the kidnapping conviction. A death sentence does not need to be overturned if supported by at least one valid aggravating circumstance, even if another aggravator is invalid. Additionally, the government introduced two nonstatutory aggravating factors—victim impact and obstruction of justice—following appropriate notice to Higgs. On appeal, Higgs argues that the consideration of these nonstatutory factors is unconstitutional for multiple reasons, which will be reviewed de novo. Higgs contends that the Federal Death Penalty Act (FDPA) violates the Eighth and Fourteenth Amendments by permitting the jury to consider nonstatutory aggravating factors during sentencing, which he argues leads to arbitrary death penalty imposition. The court refutes this claim, emphasizing that once a jury finds a statutory aggravating factor, the inclusion of nonstatutory factors serves to personalize the sentencing process, as established in case law including McCleskey v. Kemp and Zant v. Stephens. Furthermore, Higgs asserts that the FDPA is unconstitutional for lacking a requirement for proportionality review of death sentences. While he cites Supreme Court cases that highlight the benefits of proportionality review, the court clarifies that such review is not constitutionally mandated, referencing Pulley v. Harris. The court maintains that the FDPA includes sufficient safeguards against arbitrary sentencing, thus rejecting Higgs's arguments regarding both nonstatutory aggravators and proportionality review. A jury must find beyond a reasonable doubt the existence of one statutory aggravating factor and at least one specific intent level by the defendant for the Federal Death Penalty Act (FDPA) to meet constitutional standards, negating the need for proportionality review under the Eighth Amendment. Higgs argues that the FDPA's allowance for prosecutors to define nonstatutory aggravating factors improperly delegates legislative power, violating the separation of powers. This claim is rejected, as the statute confines prosecutors’ discretion to circumstances where the jury has already found the requisite statutory aggravating factors. Even if this discretion is seen as a delegation, it is constitutionally permissible due to the established "intelligible principles" that guide such delegation. Higgs also contends that allowing the prosecution to define aggravating factors post-crime violates the Ex Post Facto Clause. The district court dismissed this argument, referencing the case of Walton v. Arizona, which was later overruled but did not grant Higgs relief. Although nonstatutory aggravating factors can increase punishment burdens, they do not change the punishment's nature or the crime's elements. Lastly, Higgs raises evidentiary challenges regarding the obstruction of justice nonstatutory aggravator, indicating further legal contention regarding the admissibility of evidence in support of this factor. Higgs is accused of obstructing the investigation and prosecution of murders by disposing of the murder weapon and evidence of the victims' presence in his apartment, soliciting false alibi statements from Phyllis Smith and others, planning to eliminate witness Gloria, and intimidating an eyewitness to the Chaconia shooting. The court reviews the district court's rulings for abuse of discretion. Higgs contends it was improper to admit evidence of his obstruction of justice, arguing that only convictions for specific listed crimes should count as aggravating factors under the Federal Death Penalty Act (FDPA). The court finds this argument meritless, stating that while prior convictions can be aggravating factors, the jury can also consider any aggravating factors for which the defendant was notified. The government properly notified Higgs of its intent to pursue obstruction as a nonstatutory aggravator, and his actions were deemed relevant aggravating circumstances for the jury’s decision-making. The court also rejects Higgs's claims regarding the probative value of the evidence being outweighed by prejudicial risks and the constitutional objections related to the reliability of the evidence. The jury was instructed to require proof beyond a reasonable doubt for the obstruction of justice charge. No error or abuse of discretion was found in allowing this evidence for jury consideration as a nonstatutory aggravating factor. Higgs contests the district court's admission of Captain Robert Rule's testimony regarding Haynes's confession, which supported the accounts of Gloria and others about actions taken to destroy evidence post-murder. Gloria had testified that either Higgs or Haynes discarded the murder weapon in the Anacostia River and that the three men returned to the apartment to clean and dispose of items potentially touched by the victims. Additional corroborating evidence included the failure to return rented videotapes and the absence of victim fingerprints in the apartment. Captain Rule stated that Haynes confirmed Gloria's account of Higgs driving to the river to dispose of the gun and the subsequent cleanup at Higgs's apartment. Higgs objected to this testimony, claiming it was overly prejudicial, but the court allowed it as a declaration against interest. On appeal, Higgs argues that admitting Haynes's statements violated his Sixth Amendment Confrontation Clause rights during the penalty phase. Because this argument was not raised in the lower court, it is reviewed for plain error, requiring Higgs to demonstrate that an error occurred, it was obvious, and it impacted his substantial rights. Even if such an error were shown, correction would only be made if it significantly undermined the integrity of the judicial process. The Sixth Amendment guarantees the right to confront witnesses, and while there are precedents indicating this right could be violated by admitting non-testifying co-defendant statements during a joint trial, it remains uncertain whether this applies to capital sentencing proceedings. Historically, U.S. courts have permitted reliable hearsay in sentencing, allowing consideration of uncorroborated hearsay evidence that the defendant can challenge or explain. In Bassette v. Thompson, the court rejected a challenge to the admission of a psychiatrist's report in capital sentencing, asserting that the rules of evidence do not apply in such contexts, referencing both Supreme Court and circuit precedents. Although Maynard v. Dixon acknowledged that the applicability of the Confrontation Clause in sentencing remains unresolved, any potential error from introducing Haynes's statements via Captain Rule was deemed non-plain. The court noted that the statements corroborated Gloria's eyewitness account and did not significantly impact Higgs's rights or the integrity of the trial. Additionally, Higgs contested the admission of evidence regarding his efforts to obstruct prosecution related to the Chaconia Nightclub shooting. After being charged in D.C. Superior Court, Higgs sought testimony from Richard Diolamou, who failed to provide useful information after multiple meetings. During a later encounter, Higgs allegedly intimidated Diolamou, raising concerns for his safety. This intimidation was interpreted by the government as an attempt by Higgs to influence the outcome of his Chaconia case to mitigate its impact on his murder trial. Higgs argues that the district court improperly admitted Diolamou's testimony regarding the Chaconia shooting due to a lack of pretrial notice about this evidence. However, it was established that the defendant only needs adequate notice of the aggravating factors, which Higgs received, rather than specific evidence intended for sentencing. The Federal Death Penalty Act (FDPA) and relevant case law clarify that there is no constitutional requirement for advance notice of evidence in aggravation at a capital sentencing hearing. Higgs also contests the relevance of the evidence to the obstruction aggravator, claiming that the bullet from the Chaconia shooting differed from those used in the murders. Despite this distinction, the court found the evidence relevant, as forensic analysis indicated that the bullets had similar land and groove impressions, suggesting they could be fired from the same type of weapon. In addressing Higgs's mitigation argument, he claimed that Haynes, who was equally culpable but not sentenced to death, should be considered in his case. Higgs contended that the district court violated his due process rights by denying his motions to preclude the government from arguing that he was more culpable than Haynes and to introduce arguments from Haynes's trial that contradicted the government's current stance. The court's rulings on these matters are reviewed for abuse of discretion, and there are circumstances where the Due Process Clause may prevent the government from presenting inconsistent theories against different defendants. Due process may be violated if there is a fundamental inconsistency in the prosecution's case against defendants accused of the same crime. This is illustrated by the case of Smith v. Groose, where conflicting statements from a cooperating codefendant led to two convictions for the same murder, thus constituting a due process violation. Additionally, in Paul, a due process issue arose when the evidence at two trials was factually inconsistent and irreconcilable. However, in the present case, no such inconsistency exists. Higgs argues that the government's portrayal of him as the mastermind of the murders contradicts its arguments in Haynes's trial, where Haynes claimed he acted under duress. The government maintained that both defendants were equally culpable, asserting that Higgs retrieved the gun and directed Haynes, while also arguing that Haynes's voluntary actions warranted the death penalty. The prosecution did not assert that Haynes was more culpable than Higgs; rather, it argued that they were partners in crime. Consequently, the arguments presented by the government do not reflect a due process violation due to inconsistency. Higgs further contends that his death sentence should be vacated because the jury failed to recognize Haynes as equally culpable, despite uncontradicted evidence supporting this mitigating factor. He argues that this oversight signifies an arbitrary and unreliable decision, which could necessitate the vacation of his sentence under 18 U.S.C.A. § 3595(c)(2)(A), particularly if the death sentence was influenced by passion, prejudice, or other arbitrary factors. According to 18 U.S.C.A. § 3592(a)(4), juries must consider whether another defendant equally culpable will not face the death penalty as a mitigating factor. The district court allowed the jury to consider a mitigating factor at Higgs's request, but the jury unanimously found that Higgs was not the sole proximate cause of the victims' deaths and refused to determine that Haynes was equally culpable in the murders. Higgs contended that his death sentence should be reversed based on uncontradicted evidence showing Haynes had received a life sentence for similar charges. This argument was rejected, as the Constitution only mandates the jury to consider proffered mitigating evidence, not to find it, even if uncontradicted. The jury's decision was supported by the evidence, as they could rationally conclude that Higgs played a more dominant role in the murders than Haynes, who was identified as the triggerman. Higgs also claimed a violation of the Eighth Amendment because the district court did not allow the jury to consider that he would not be death-eligible under Maryland law, where the death penalty applies only to the triggerman. He argued that he was unaware of being on federal land when committing the murders, which he believed should mitigate his sentence. The court found no error in the district court's refusal to submit this mitigating factor, affirming that the law allows the jury to consider mitigating factors relevant to the defendant's character or circumstances but excludes those deemed irrelevant. The district court's rejection of Higgs's request was deemed appropriate. An assertion regarding the death penalty's impropriety in one jurisdiction due to its absence in another reflects a policy debate meant for the legislative branch, as articulated in United States v. Johnson, where a defendant's claim that life imprisonment suffices as punishment was deemed more appropriate for legislative consideration, thus not warranting inclusion as a mitigating factor. Higgs challenged the admissibility of the government's rebuttal evidence, which included numerous prison infractions committed during his incarceration. In his mitigation case, Higgs presented testimony from a mitigation expert and family members, revealing a difficult childhood marked by loss, including the deaths of his mother, a grandmother, and an uncle, and highlighting his average educational performance and involvement in high school sports. Testimony from his aunt, Mrs. McKinnon, noted both Higgs's positive relationship with his four-year-old son and the negative impact of a malpractice settlement on his work ethic. His cousins also expressed support for him. Higgs aimed to show that a death sentence would adversely affect his son and that other background factors mitigated against the death penalty. In rebuttal, the government introduced evidence of a juvenile armed robbery, a 1996 arrest for gun possession, and multiple prison infractions, including disorderly conduct, possession of a weapon, and refusal to cooperate in investigations. Higgs objected to this evidence, asserting it was irrelevant to his mitigation case and improperly suggested his future dangerousness, which had been withdrawn as a non-statutory aggravator. The district court allowed evidence of Higgs's prison infractions to rebut his claims of good behavior and intentions while incarcerated, despite his objections. The court ruled that such rebuttal evidence was relevant and tailored to counter Higgs’s mitigation narrative. Rebuttal evidence is defined as information that explains or contradicts opposing evidence. The court exercised discretion in admitting this evidence, which was deemed appropriate to refute Higgs’s portrayal of himself as a good influence on his son and nephew. A limiting instruction was provided to the jury, clarifying that the evidence could only be used to address the mitigating factors presented by Higgs. Higgs also raised concerns about prosecutorial misconduct during the penalty phase of his trial. He alleged that the prosecutor made improper statements, including asserting that jurors had a legal obligation to impose a death sentence, emphasizing Higgs’s greater culpability compared to his co-defendant, and suggesting that the jury should not consider mercy. Additionally, Higgs claimed the prosecutor injected personal opinions and argued that he would have an easy life in prison if not executed. However, the court noted that improper remarks do not automatically necessitate a retrial; instead, it must be shown that the remarks affected the trial's fairness and the defendant's substantial rights. Factors to assess prejudice include the potential for the remarks to mislead the jury and whether they were isolated or extensive. The excerpt addresses multiple claims of prosecutorial misconduct raised by Higgs in relation to his trial. 1. **Prosecutorial Remarks and Juror Duty**: Higgs argued that the prosecution improperly asserted that jurors were required to impose the death penalty based on their oath and the law. The court found this claim meritless, noting that while the prosecution emphasized the need for a death sentence due to the severity of the crimes, it did not contradict the court's instructions about weighing aggravating and mitigating factors. The remarks were deemed isolated and did not significantly prejudice the trial process. 2. **Culpability Comparisons**: Higgs contended that the prosecution incorrectly argued that he was more culpable than co-defendant Haynes, urging the jury to dismiss the mitigating factor of equal culpability. The court rejected this claim, clarifying that the prosecution did not instruct the jury to ignore the mitigating factor but suggested that they were not bound to reach the same sentencing conclusion as in Haynes's case. 3. **Consideration of Mercy**: Higgs challenged the prosecution's assertion during summation that "mercy is not what this case is about," arguing it misrepresented the law on capital sentencing. The district court had instructed the jury that imposition of the death penalty was not mandatory, allowing for mercy as a consideration. While the prosecutor's comments were considered a valid argument regarding the case's focus, the statements about mercy not being included in the instructions arguably contradicted the court's guidance. Overall, the court found that the claims of prosecutorial misconduct did not warrant reversal of the trial outcome. The prosecutor's remarks during closing arguments, while potentially improper, did not constitute a prejudicial error affecting Higgs's substantial rights, thus not depriving him of a fair trial. The comments were isolated within a lengthy argument and were not intended to confuse the jury. The district court instructed the jury they could decide against the death penalty even if aggravating factors were found. Higgs objected to the prosecutor's use of personal pronouns, asserting it injected personal opinion, particularly in statements suggesting the world would be better without him. While such expressions can be deemed improper, the prosecutor's remarks did not unfairly influence the trial outcome. Additionally, Higgs's claim that the government argued life imprisonment would be soft was rejected; the court found no impropriety in the government's contrasting argument regarding life in prison. Overall, the remarks did not adversely affect Higgs's rights or the fairness of the sentencing hearing. Lastly, the court must evaluate whether the death sentence was influenced by passion, prejudice, or arbitrary factors, examining the record and supporting evidence for the jury's decision on the death penalty. Higgs contends that the emotional nature of his case undermines the validity of his death sentences, arguing that the jury may have been improperly influenced. However, the court finds no evidence that the jury's decision was swayed by emotion rather than reason, affirming that while death penalty cases can be emotional, they must remain free from passion and prejudice. Higgs also preserves his argument that the death penalty constitutes cruel and unusual punishment under the Eighth Amendment, a claim that is precluded by existing Supreme Court rulings. Regarding his firearm convictions, Higgs challenges the consecutive twenty-year sentences imposed for three counts under 18 U.S.C.A. § 924(c), asserting they do not qualify as "second or subsequent" convictions because they stem from a single criminal episode. The court references the Supreme Court case Deal v. United States, which established that consecutive sentences can be applied for multiple § 924(c)(1) violations regardless of whether they arise from the same incident. Citing precedents that support this interpretation, the court rejects Higgs's challenge to the enhanced sentences, confirming that such consecutive sentences are legally permissible. No reversible error was found regarding Jackson's appeal. The jury's special findings indicated the presence of at least one aggravating factor for each murder and kidnapping conviction, which aligns with the evidence presented. The review of the entire record confirms that the death sentences were not influenced by passion, prejudice, or arbitrary factors. As a result, Higgs' convictions and sentences are affirmed in full. Additionally, Victor Gloria, who was arrested in 1998 for illegal crack cocaine distribution, cooperated with the government in the murder case involving Higgs and Haynes. His eyewitness testimony, corroborated by a family friend and the mother of one victim, provided crucial facts about the murders. Gloria subsequently pled guilty to being an accessory after the fact and received an 84-month prison sentence with three years of supervised release. Forensic evidence related to the murders included testimony on "lands and grooves" from firearms, which assist investigators in matching bullets and cartridge cases from different crime scenes. The document also references legal principles, including the Sixth Amendment right to be informed of the nature of accusations, and discusses relevant case law regarding aggravating factors in capital murder cases, particularly referencing Walton v. Arizona and Ring v. Arizona. Relevant sections of Title 18 outline definitions and penalties for murder in the first degree. Unlawful acts of seizing, confining, kidnapping, or carrying away a person, except by a parent with respect to a minor, are punishable under U.S. law by imprisonment for any number of years or life. If such acts result in death, the punishment may be death or life imprisonment (18 U.S.C.A. § 1201(a)(2)). For a case to be eligible for the death penalty, the petit jury must find a statutory aggravating factor specified in the indictment. It is advisable to include all potential aggravating circumstances in the indictment. Statutory aggravators related to espionage, treason, and serious drug offenses are outlined in 18 U.S.C.A. § 3592(b) and (d), which share similar terms regarding prior serious drug convictions. Higgs argues that the interpretation of § 3592(c)(12) conflicts with the Supreme Court's ruling in Ring v. Arizona, which mandates that aggravators must be found by a grand jury and included in the indictment. However, prior convictions do not need to be included in the indictment or proven beyond a reasonable doubt, as established in Almendarez-Torres. The government withdrew a nonstatutory aggravating factor of future dangerousness before the penalty phase began. Nonstatutory aggravating factors must be relevant to the defendant's character or the crime's circumstances, but Higgs does not contest the validity of the nonstatutory aggravating circumstances presented to the jury on these grounds.