No. 97-3229

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

BOUNTAEM CHANTHADARA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
Honorable Monti L. Belot, District Judge
(District Court No. 94-10128-01)

APPELLANT’S OPENING BRIEF

ORAL ARGUMENT REQUESTED

Michael G. Katz
Federal Public Defender

1099 18th Street
Plaza Tower, Suite #300
Denver, Colorado 80202
(303) 294-7002

Gary Peterson
211 N. Robinson, Suite 1601
Oklahoma City, Oklahoma 73102
(405) 236-8911

Attorneys for Appellant

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRIOR AND RELATED APPEALS

I. STATEMENT OF JURISDICTION

II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

III. STATEMENT OF THE CASE

IV. ARGUMENT

V. CONCLUSION

VI. STATEMENT REGARDING ORAL ARGUMENT

TABLE OF AUTHORITIES

Constitutional Provisions

United States Constitution

Statutes

United States Code
United States Statutes at Large

Treaties

Vienna Convention on Consular Relations

Rules

Federal Rules of Criminal Procedure
Federal Rules of Civil Procedure
Federal Rules of Evidence
Local Rules, District of Kansas

Other Authorities

PRIOR AND RELATED APPEALS

No prior appeals by Bountaem Chanthadara.

United States v. Namphengsone, No. 97-3079 (10th Cir.) (unpublished order entered July 15, 1998)

I. STATEMENT OF JURISDICTION.

The District Court's jurisdiction in this criminal case was based on 18 U.S.C. § 3231. This Court's jurisdiction is based on 28 U.S.C. § 1291, 18 U.S.C. § 3742(a), and 18 U.S.C. § 3595(a). Mr. Chanthadara filed a timely notice of appeal on August 4, 1997 (V.5, Doc. 570),¹ to review a judgment and sentence entered on July 24, 1997. See Addendum Q.

II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.

1. After six jurors read mid-trial newspaper publicity about the trial judge’s denunciation of the defense case as a "smoke screen," did the District Court err in refusing to grant a mistrial?

2. After additional newspaper publicity appeared concerning the judge’s "smoke screen" denunciation and other inadmissible evidence, did the District Court err in refusing to make specific inquiry concerning jurors’ exposure to it?

3. Did the District Court err in striking a prospective juror who said that she could consider the death penalty only in cases of premeditated murder, where the Government ultimately claimed to have proven "substantial" premeditation in this case?

4. Did the District Court err in striking eight jurors because of views about the death penalty expressed on questionnaire forms, without any voir dire examination?

5. Did the District Court violate the Jencks Act by refusing to order the Government to produce, for defense inspection, transcripts of an FBI expert’s prior expert testimony for the Government?

6. Did the District Court violate the Vienna Convention on Consular Relations, by failing to advise the accused Laotian national of his right to consular assistance?

7. Did the District Court err in summarily rejecting a defense challenge to the District of Kansas voter-only jury selection system, despite unrefuted statistical evidence of substantial underrepresentation of blacks and Hispanics?

8. Did the District Court err in refusing to instruct on the lesser included offense of second degree murder, despite disputed evidence of the specific intent necessary to the charged offense of first degree felony murder?

9. Did the District Court err in defining the element of malice required to establish first degree felony murder?

10. Did the District Court err in authorizing the jury to convict for a Hobbs Act violation on the basis of a highly relaxed standard of commercial impact?

11. Did the District Court plainly err by admitting testimony obtained by the Government in violation of the federal bribery statute?

12. Did the District Court err by defining the "pecuniary gain" statutory aggravating factor so broadly as to encompass any felony murder which involved a robbery?

13. Did the District Court err by failing to impose legally sufficient limits on the "especially heinous, cruel or depraved" statutory aggravating factor submitted to the jury?

14. Did the District Court err by allowing "intent" of the defendant to be charged as a nonstatutory aggravating factor, where Congress had discontinued its use as a statutory aggravating factor?

15. Did the District Court err in admitting highly emotional evidence from multiple survivors of the same victim, as proof of victim impact?

16. Did the District Court err in allowing victim impact to be used as an aggravating factor, capable of offsetting the weight of defense mitigation evidence?

III. STATEMENT OF THE CASE.

A. Nature of the Case, Course of Proceedings, and Disposition Below.

The Defendant Bountaem Chanthadara was charged by a second superseding indictment in the District of Kansas with robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (count 1), and use of a firearm in a crime of violence under circumstances constituting first degree murder, 18 U.S.C. § 924(j)(1) (count 2).² See Addendum A. Before trial, the Government gave notice that it would seek the death penalty against Mr. Chanthadara on count 2 (V.1, Doc. 47).

Two codefendants, Piyaroth Kayarath and Somlith Soukamneuth, were charged in the same case with the same offenses. Kayarath pleaded not guilty, and his case was severed from Mr. Chanthadara’s for trial (V.2, Doc. 168). Soukamneuth entered a guilty plea and testified as a Government witness (V.1, Doc. 105). The Government did not seek the death penalty against either of these codefendants.

Two other individuals were charged with the same offenses, but in separate cases. Phouc Nguyen pleaded not guilty (case 94-10129), and the Government gave notice that it would seek the death penalty against him. Khammouk Namphengsone pleaded guilty (case 94-10122) and testified as a Government witness. The Government did not seek the death penalty against Namphengsone.

Mr. Chanthadara was the first of the defendants to be tried. His jury trial began in Wichita, Kansas on September 10, 1996, and ended with guilty verdicts on both counts (V.4, Doc. 432). The sentencing phase of the trial began a few days after the verdicts, and ended in a sentence of death. See Addendum O. The trial concluded on October 9, 1996.

Nguyen was the next alleged participant to be tried. He was found guilty on both counts, but his jury declined to impose the death penalty. Kayarath, against whom the death penalty had not been sought, was tried after Nguyen and found guilty on both counts.

Mr. Chanthadara was sentenced in July of 1997. The District Court imposed a sentence of death by lethal injection on count 2. See Addendum Q at 2-3. A sentence of 20 years was imposed on count 1. See Addendum Q at 2. No fines were imposed, but a monetary penalty of $100 was assessed.

Nguyen and Kayarath received life sentences. Namphengsone received a prison term of 22 years, while Soukamneuth received a prison term of 20 years.

B. Facts Relevant to the Issues Presented For Review.

1. The Alleged Offense.

a. The Robbery and Homicide.

Trial testimony focused on events on the evening of November 8, 1994, at the Mandarin Chinese Restaurant in Wichita, Kansas. Mark Sun worked in the restaurant’s kitchen, while his wife Barbara worked as a hostess and cashier. The restaurant also employed a waiter, David Wong (V.38 at 1637-38, 1651-52, 1656-57, 1662).

The restaurant’s evening customers had left by 8:00 or 8:30 p.m., and Mark Sun was cleaning up in the kitchen. Barbara Sun was in the bar area with their two daughters, helping them with their homework, while the waiter was cleaning up tables nearby. From the kitchen, Mark Sun heard a loud noise from the restaurant’s dining area, and went forward to investigate (V.38 at 1658, 1660-62, 1666, 1668).

As Mark Sun left the kitchen, a masked man intercepted him. The man held a knife to Mr. Sun’s throat and demanded money. After Mr. Sun had opened the restaurant’s cash register, the masked man escorted him to the front of the restaurant (V.38 at 1666-69, 1676-77).

In the front, the masked man was joined by three unmasked male companions. The men tied up Mark Sun and the waiter, and ordered the two children to lie on the floor nearby. As Mark Sun was being bound, he saw at least one man grab his wife’s hair, and pull her toward the kitchen area and out of sight. Meanwhile, another man was going through his wife’s purse in the bar area (V.38 at 1670-74; V.41 at 2219-21).

After what seemed like 15 or 20 minutes, the four men departed, breaking a glass display cabinet as they left. One of the daughters sought help at a neighboring business. In the meantime, Mark Sun and the waiter managed to untie themselves, and began looking for Barbara Sun. Mark Sun found his wife, lying unconscious and bleeding in an upstairs room, near a locked and empty safe. She was pronounced dead shortly afterward (V.38 at 1638-39, 1678-80, 1680-86, 1709-10).

Mark Sun estimated that the money taken from the restaurant’s cash register and the personal money taken from his wife’s purse totaled a few hundred dollars. A cellular phone was also taken from the purse (V.38 at 1675, 1729).

Those working in the restaurant were unable to identify any of the robbers. When shown a photographic array which included Mr. Chanthadara’s photograph, Mark Sun failed to select him as one of the participants (V.38 at 1730-32).

b. Physical Evidence at the Crime Scene.

Five shell casings, as well as several bullets and bullet fragments, were recovered from an upstairs room in the restaurant (V.39 at 1817, 1855-57). Testing showed that all five casings were ejected from the same 9 mm firearm. The bullets and fragments likewise matched a 9 mm firearm, a type of weapon which stores ammunition in a clip (V.40 at 2155; V.41 at 2230-36).

The upstairs room also contained various pieces of furniture, including a pool table and a regular table. On a pool cue in the room, investigators found a small trace of human blood which matched Barbara Sun’s blood type. It could not be determined how the blood reached the cue. According to the medical examiner, some spattering of blood from the bullet wounds may have occurred (V.39 at 1817-18, 1820, 1843, 1858-59, 1886-87, 1919-25).

c. Autopsy Findings.

Post mortem examination revealed that Barbara Sun had suffered five gunshot wounds. One bullet wound, in the right lower leg, would not normally have been fatal. Each of the four other wounds, in the chest, abdomen and head, would have been potentially fatal. The medical examiner was unable to determine the sequence of any of these wounds (V.39 at 1884-97). Examination also revealed various bruises ("contusions") and some small abrasions in an "assault type pattern" on Barbara Sun’s face and body. There was no evidence of sexual assault (V.39 at 1896-1910).

d. Business Background of the Restaurant.

The Mandarin restaurant was owned and operated by a corporation, Hongyeh, Inc., the shareholders of which included Mark and Barbara Sun. The corporation bought a small portion of its food and supply requirements from out of state vendors, and accepted credit cards issued by out of state companies (V.38 at 1715-17, 1721-26, 1729).

After the robbery, the police ordered the restaurant to be closed for 22 days. The restaurant then reopened and continued in business for 52 months, after which it closed because of a slowdown in business. As business declined, the restaurant’s purchases from out of state vendors declined as well (V.38 at 1718, 1726-29, 1743-44).

2. The Search for the Perpetrators.

a. Arisack Phongmany Becomes a Suspect.

Investigators soon began to focus on an incident which had occurred earlier on November 8 at the Towne East center, a shopping mall near the Mandarin restaurant. Bryan Kiser³ and two friends were leaving the mall at about 8:00 p.m. when they discovered a man in the parking area trying to break into their pickup truck. When Kiser challenged him, the man called for help and was joined by four male companions. After one of the men hit Kiser on the head with a clip-type handgun and another punched him, they fled (V.42 at 2483-86).

Investigators showed Kiser several photo identification spreads, and asked him if he recognized any of his assailants. Kiser failed to select a photograph of Mr. Chanthadara (V.42 at 2487-88, 2503). Instead, Kiser selected a file photograph of Arisack Phongmany as resembling the man who attacked him with the clip-type handgun. At trial, Kiser testified that he did not "absolutely" identify Phongmany as his assailant, but had noted similar identifying characteristics, such as the hair (V.42 at 2489-90). On the other hand, the FBI report on the Kiser photo spread was unequivocal: the interviewing agent reported that Kiser told him that Phongmany "was the subject with the handgun who assaulted him" (V.42 at 2502). According to the lead investigator, Phongmany immediately became a suspect in the robbery and homicide at the Mandarin restaurant (V.42 at 2510).

Investigators soon made another important discovery: the 9 mm firearm used in the Mandarin restaurant had also been fired in another crime. A few weeks before the Mandarin restaurant robbery, police officers investigated a drive-by shooting incident in a south Wichita neighborhood. The officers collected a number of 9 mm shell casings at the scene (V.42 at 2515-17). Arisack Phongmany was identified as the perpetrator of this drive-by shooting, and later pleaded guilty to having fired a 9 mm handgun in this crime (V.42 at 2531-33).

A firearms examiner compared the 9 mm shell casings recovered from the Mandarin restaurant with those collected from the scene of the drive-by shooting committed by Phongmany. The examiner determined that the same weapon had been used in both crimes (V.39 at 1800; V.42 at 2519-21).

Phongmany was arrested on November 30, 1994. He invoked his Miranda rights and refused to speak to agents who were investigating the Mandarin robbery and homicide (V.42 at 2503-04). Despite his refusal to cooperate, investigators nonetheless shifted their focus away from Phongmany as another lead developed.

b. Namphengsone Is Arrested, and Implicates Mr. Chanthadara and Others.

A latent fingerprint lifted from a table top in the restaurant was found to be that of Khammouk Namphengsone, a friend of Phongmany (V.40 at 2149, 2303-04; V.42 at 2550). Investigators tracked Namphengsone to Arvada, Colorado, where they questioned him about the Mandarin case on December 1, 1994. Unlike Phongmany, Namphengsone was willing to talk to investigators (V.40 at 2131-32; V.42 at 2555).

In a statement later shown to be riddled with lies, Namphengsone admitted involvement in the Mandarin robbery, and implicated others (V.40 at 2132, 2157-61). As a result of Namphengsone’s information, Namphengsone, Piyaroth Kayarath, Somlith Soukamneuth, Phouc Nguyen and Mr. Chanthadara were charged in the District of Kansas with the robbery and homicide. Namphengsone did not implicate Phongmany, and Phongmany was not charged.

3. Guilt Phase of the Trial.

a. Testimony of Accomplices and Associates.

The Government’s principal trial witnesses were Khammouk Namphengsone and Somlith Soukamneuth. By his own admission, Namphengsone was a dishonest crack addict with a lengthy criminal history, as well as a long track record of lying to the FBI, probation officers and others (V.40 at 2033, 2132, 2138-42, 2157-61, 2165-67, 2205-08). Soukamneuth confessed to much the same background (V.40 at 2015-19, 2022-23, 2025).

These witnesses told the jury that the robbery of the Mandarin restaurant was planned and carried out by five men: Namphengsone, Soukamneuth, Phouc Nguyen, Piyaroth Kayarath and Mr. Chanthadara (V.40 at 1995-96, 2083-85). In a statement read to the jury, Nguyen said that the initial idea of robbing the restaurant had been his, because he had dined there before (V.43 at 2734). The purpose of the robbery was to gain cash and jewelry: there was no plan for anyone to be killed (V.40 at 2020, 2087, 2156-57).

On the evening of November 8, 1994, a group of ten or eleven men and at least six women were crowded into Namphengsone’s tiny duplex on Ross Parkway in Wichita. An alcohol, marijuana and crack cocaine party was in full swing (V.39 at 1784, 1793; V.40 at 1950, 1969-73, 1975-76, 1989-93, 2055-56, 2083, 2157). Several of the partygoers, all friends of Namphengsone, testified that they saw the five alleged robbers together at the duplex (V.39 at 1766, 1771-72, 1936; V.40 at 1966, 1975, 2047, 2051-52, 2054-55, 2151).

One partygoer claimed to specifically remember seeing Mr. Chanthadara handle a gun at the duplex on the day of the robbery, and a total of three recalled hearing him talk of either a robbery or a jewelry store break-in (V.39 at 1769-70, 1936-37, 1951; V.40 at 1972-74). One of these partygoers acknowledged that he was hallucinating at the time, and did not know what was going on (V.40 at 1976-77). Another said that she got dizzy and "fell asleep" from excessive alcohol consumption that evening (V.40 at 1938, 1950).

Arisack Phongmany, who was a friend of Soukamneuth, Kayarath and Namphengsone, sometimes visited Namphengsone’s Ross Parkway duplex. Two at the party claimed to remember that Phongmany was not at the duplex on November 8. However, another partygoer expressed uncertainty about exactly who was present in the crowd at the duplex (V.40 at 2019, 2034, 2055; V.42 at 2600-01).

Namphengsone and Soukamneuth said that they were high on crack and alcohol when they left the duplex party with their three companions (V.40 at 1993, 2021, 2029, 2157). A female partygoer loaned Namphengsone her Acura, which Soukamneuth drove. Namphengsone and the other three men rode in a stolen Honda (V.40 at 1996-2000). Nguyen carried a .32 caliber revolver, while Kayarath carried a 9 mm clip-type handgun, which he owned (V.40 at 1995-96, 2088-90).

Namphengsone testified that customers were still inside the Mandarin restaurant when they arrived, so they drove to the nearby parking lot of the Towne East mall and broke into some cars, while waiting for the restaurant to empty. When one car’s owner appeared unexpectedly, a fight erupted. Namphengsone said Kayarath stopped the fight by threatening the owner with his 9 mm handgun, as he and his companions made their escape. The four men then returned to the restaurant in the Honda, while Soukamneuth waited nearby in the Acura (V.40 at 2001-03, 2095-2102).

Namphengsone said that Nguyen donned a mask, then led Kayarath, Namphengsone and Mr. Chanthadara into the restaurant. At this point, Nguyen was still carrying the .32 caliber revolver and Kayarath was still armed with his 9 mm handgun. Namphengsone said he tied up the waiter and another man in the bar area, emptied the money from Barbara Sun’s purse, and then checked out the kitchen (V.40 at 2102-08, 2121).

As he rifled the cash register in the kitchen, Namphengsone said that he saw Nguyen pulling Barbara Sun upstairs, assisted by Mr. Chanthadara. Kayarath soon joined the others upstairs. As this happened, Namphengsone left the kitchen and returned to mind his captives in the bar area. A few minutes later, according to Namphengsone, Mr. Chanthadara made a brief appearance in the bar area with Kayarath’s 9 mm handgun, and then returned upstairs (V.40 at 2108-13, 2121-22).

Namphengsone testified that Nguyen, Kayarath and Mr. Chanthadara eventually rejoined him downstairs. Nguyen commented, "He shot her." The four men left the restaurant, overturning a glass display case as they passed through the foyer (V.40 at 2113-15). Namphengsone said that Mr. Chanthadara overturned the case (V.40 at 2115-16), whereas Nguyen claimed that he was responsible (V.43 at 2736).

According to Namphengsone, the four men drove away from the restaurant in the Honda, abandoned it nearby, and rejoined Soukamneuth in the Acura (V.40 at 2116-20). Soukamneuth testified that, on the return trip to the duplex, Nguyen and the others were angry at Mr. Chanthadara because he "shot the lady" (V.40 at 2004-08). In his initial interview with the FBI, however, Soukamneuth disclosed no such conversation (V.42 at 2567-68).

Namphengsone and Soukamneuth claimed that Mr. Chanthadara threw the 9 mm handgun from a bridge in south Wichita, on the way back to Namphengsone’s duplex (V.40 at 2008, 2119-20). Despite an intensive search of the bridge area, investigators could find no such firearm (V.42 at 2552-53).

At trial, Namphengsone said that Mr. Chanthadara had said he shot somebody, which was his reason for throwing the gun from the bridge (V.40 at 2120). In his initial interview with the FBI, however, Namphengsone said he had heard nothing about anyone being hurt. Namphengsone also told the FBI the 9 mm gun had been taken back to his duplex, as opposed to being thrown from a bridge (V.40 at 2160-61; V.42 at 2555-56).

Back at the duplex, Namphengsone said the group split the $200 proceeds from the robbery (V.40 at 2121-23). Several of the partygoers remembered seeing the five men return to the duplex (V.39 at 1772-74, 1939-40; V.40 at 1977-78, 1982-83, 2053-54).

At trial, Namphengsone claimed that Mr. Chanthadara told him, some days after the robbery, that he shot the woman in the restaurant because she would not open the safe (V.40 at 2134-36). But in his initial interview with the FBI, Namphengsone said that Mr. Chanthadara had refused to discuss this subject with him (V.40 at 2203-04).

Following his arrest, Namphengsone made telephone contact with an occasional girlfriend, Julia Newton, providing her with details about the charges against him (V.40 at 2149-50, 2162; V.41 at 2273-74, 2278). According to Newton, Mr. Chanthadara subsequently telephoned her from jail as well, even though he barely knew her. She said he admitted that he had "pulled the trigger," and had been high on drugs at the time. Newton did not disclose this conversation to police until long after it allegedly occurred (V.41 at 2274-75, 2277-78, 2285).

b. Government Physical Evidence.

John Massey, an FBI fingerprint expert, testified that Mr. Chanthadara’s palm print matched a latent print lifted from a piece of broken glass found in the restaurant foyer (V.41 at 2343-44, 2356). When the defense asked about the piece of glass from which the "lift" was purportedly taken, an investigating officer advised that he had thrown the glass away, because it "was not evidence." The officer did not photograph the glass, and he did not prepare any property receipt or other documentation of its existence (V.41 at 2309-13, 2321-26).

The District Court refused to order the Government to produce transcripts of expert testimony by Mr. Massey in other Justice Department cases (V.41 at 2347-48). These transcripts were sought by the defense under the Jencks Act, for use in cross-examination of the expert.

c. Defense Evidence, and the Trial Judge’s "Smokescreen" Comments.

Before trial, the prosecution moved in limine to exclude evidence relating to Phongmany and his links to the 9 mm homicide weapon (V.4, Doc. 319, at 3). In response, the trial judge required the defense to call all of its witnesses on the Phongmany issue -- seven in all -- outside the jury’s presence, for purposes of determining its admissibility (V.41 at 2369-71; V.42 at 2387-2461). After hearing the evidence, the trial judge ruled it admissible, noting a defendant’s right to present evidence that somebody else committed the crime (V.42 at 2477).

The judge did not stop with a ruling on the admissibility of the evidence, however. He continued by lambasting defense counsel and ridiculing the evidence as "what I consider to be a totally bogus offer" and "just a way to mislead this jury." The judge added, "I don’t for a minute think that Arisack Phongmany committed the crime. I think it’s a smokescreen. I mean, may as well just say what it is. It’s a smokescreen, but I don’t find ... that I have any right to make the judgment on that issue" (V.42 at 2477, 2479). Following these comments, the judge brought the jury back to the courtroom, and allowed the same evidence to be presented for the jury’s benefit. The jurors, who had not been sequestered, were then sent home overnight (V.42 at 2483-2604).

d. The "Smoke Screen" Newspaper Article, and Its Aftermath.

The Wichita Eagle is the only daily newspaper in Wichita, where the trial was held. The next morning’s Eagle featured an article with the following headline: "Judge in murder case calls defense story a ‘smoke screen’." See Addendum I. Before the jury returned, the defense requested that jurors be questioned about their exposure to this publicity, noting that it would "destroy the credibility of the defense lawyers in their eyes." The judge noted that jurors who saw the article would have been violating his instructions, but agreed to make the inquiry (V.42 at 2717-18).

The trial judge opened his inquiry by confirming to jurors that the Eagle article reflected his actual comments: "In the paper this morning there was an article regarding this case that reflected some comments that I made outside your presence." Six of the twelve jurors admitted to seeing the headline, while denying that they read any further (V.43 at 2718-22).

The judge then instructed jurors that "anything that I say or do is not evidence and is not to be considered by you as reflecting my judgment on the case or what your verdict should be." The headline-reading jurors assured the judge that they would follow this instruction (V.43 at 2719, 2721-22).

The defense moved for a mistrial, noting that "the headline itself pretty much tells the story." Defense counsel complained that the judge, from his position as "the most powerful figure in the courtroom," had "essentially destroyed" defense counsel’s credibility with one-half of the jury. The motion was denied (V.43 at 2725-29).

After presentation of one additional witness, the case proceeded immediately to the guilt phase instructions and closing arguments. Jurors deliberated for less than an hour before returning guilty verdicts on both counts (V.43 at 2776-77, 2782-85; V.7, Doc. 432).

As the parties prepared for the penalty phase, the District Court sent the jurors home for several days. During this interim period, additional articles about the case appeared in the Wichita Eagle. One trumpeted the "landmark" nature of any death sentence that might be imposed and quoted a Justice Department official who complained about the "slow appeals process." Another article theorized that jurors had sniffed out the same "smoke screen" as the judge. See Addendum K, Exhibits B and C.

The defense moved that jurors be questioned specifically about this new mid-trial publicity (V.4, Doc. 447). However, upon jurors’ return to the courtroom, the judge made only general inquiry as to whether "anything [had] happened" which might bear on jurors’ fairness and impartiality. No juror responded (V.44 at 2922).

4. The Penalty Phase of the Trial.

The Government opened its penalty phase case with evidence bearing on its alleged aggravating factor that Mr. Chanthadara was "a continuing danger to the lives and safety of others in the future" (V.1, Doc. 47, at 4). The Government showed that Mr. Chanthadara, who was age 21 at the time of the offense, had an adult criminal record of felony convictions for burglary, car theft and car break-ins, as well as a juvenile record involving similar offenses (V.45 at 2959-3000). The Government went on to offer evidence about several alleged acts of assaultive behavior by Mr. Chanthadara, none of which resulted in any adjudication or finding of guilt (V.45 at 3003-94, 3098-3110). The jury ultimately rejected the Government’s "continuing danger" aggravating factor. See Addendum O at 4, &2.

The Government closed its penalty phase case with victim impact evidence. The defense had sought a pretrial hearing in order to limit excessive emotion in this evidence, but this was rebuffed by the District Court (V.4, Doc. 323, at 7-10, Doc. 444 at 8; V.44 at 2893). The jury heard dramatic and emotionally-charged testimony not only from Mark Sun, but also from his two daughters, ages 7 and 10 (V.46 at 3111-30). Letters written by the children to their dead mother were admitted, as well as numerous photographs of the victim while living (V.46 at 3128-29; GX 200-09). Both children cried during their testimony, which closed the Government’s penalty case (V.46 at 3130-31).

Defense penalty phase evidence showed that Bountaem Chanthadara was born in Laos in 1973, the second of three sons. His parents were Hom Chanthadara, a soldier in the Laotian army, and his wife Mouan, a farm worker. Following the Communist victory and takeover in Laos, the Chanthadara family fled to Thailand, where they spent several years in refugee camps. In 1980 the family was able to immigrate to the United States (V.46 at 3171-79, 3182-84, 3230-33, 3237).

The Chanthadaras first settled in Seattle, where Hom worked as a gardener and Mouan took a housekeeping job. In 1984, the family moved to Winfield, Kansas, a small community near the Oklahoma border. Hom took an assembly line job with Rubbermaid, while Mouan went to work serving food in the state hospital. Neither parent ever became fluent in English, but both were described as hard workers and caring parents (V.46 at 3184, 3186, 3204, 3238-39, 3253-54; V.47 at 3322-23, 3433, 3487).

Grade school and middle school teachers remembered Bountaem Chanthadara as a lively boy with a ready smile. He had excellent attendance, worked hard in class, got along well with his classmates and never posed discipline problems. Despite his efforts in school, he had persistent problems in learning to read, as well as difficulty in focusing on assignments (V.46 at 3262-69, 3276-81, 3282-97, 3302-08).

When Bountaem Chanthadara reached the tenth grade, he started skipping school and disappearing from home. He picked up some bad friends, and began using alcohol and drugs. Before long he was in juvenile court, charged several times with breaking into parked cars. According to a clinical psychologist who testified at trial, he was suffering from attention deficit disorder, as well as dependency on alcohol, cocaine and marijuana (V.45 at 2965-67, 2974, 2977; V.46 at 3187, 3307; V.47 at 3397-99, 3404-05, 3437-40, 3475).

Working full time to support their family, Mr. and Mrs. Chanthadara were unable to provide much assistance to their son in dealing with these problems. Lacking familiarity with American culture, they did not know how to handle his behavior, which was much different than that of teenagers growing up in rural Laos. When they failed to discipline their son, his behavior grew worse (V.46 at 3187-88, 3231-32; V.47 at 3432-33, 3440-44, 3489-90, 3493-97).

The Chanthadaras eventually asked the State’s social services department for help with their son. Between 1989 and 1991, the State placed Bountaem Chanthadara in several juvenile centers and foster homes. He was never a disciplinary problem in these facilities, and got along well with both staff and peers. However, he seldom stayed in any of these facilities for more than a few weeks, after which he would be returned to his parents. After his return home, the behavior problems would resume (V.46 at 3188-89, 3321-22; V.47 at 3326-34, 3495-96).

Soon after he turned 18, in 1992, Bountaem Chanthadara was sent to prison for the first time, for breaking into cars. Over the next 22 years, through the summer of 1994, he would spend the great majority of his time in prisons and jails (V.45 at 2962-63; V.47 at 3397).

With the assistance of an interpreter, Hom and Mouan Chanthadara both testified at trial, and told the jury of their love for their son. Their younger son had been killed several months earlier, and they told jurors that they could not bear losing another (V.46 at 3193, 3212-13, 3231; V.47 at 3495-97).

Following instructions and closing arguments, the jury retired to deliberate on the penalty for count 2. Jurors returned with a death sentence, finding a total of four aggravating factors: the offense was committed for pecuniary gain; the offense was especially heinous, cruel or depraved; the offense caused permanent damage to the victim’s family; and the offense was committed intentionally. The jury refused to find two other aggravating factors: lack of remorse; and continuing danger to the lives and safety of others. One or more jurors concurred in a total of five mitigating factors. See Addendum O.

IV. SUMMARY OF ARGUMENT.

Mid-Trial Publicity. When the defense offered evidence about an alternative suspect during the guilt phase, the trial judge ruled the evidence admissible, but condemned defense counsel for offering it, branding it a "smokescreen." The next day, six jurors read the following newspaper headline: "Judge in murder case calls defense story a ‘smoke screen’." Although headline-reading jurors assured the judge they would not consider his denunciation of the defense case, such an opinion from the trial judge was far too damning and powerful for any juror to ignore. The District Court erred in refusing to grant a mistrial. The District Court further erred by refusing a defense request to make specific inquiry about jurors’ exposure to similar newspaper publicity which surfaced later during the trial.

Exclusion of Jurors With Death Penalty Concerns. Prospective juror Ayre said that she could consider the death penalty, but only in a case involving premeditated homicide. Based on the prosecutor’s assurance that the case would involve "absolutely" no evidence of premeditation, the District Court granted a prosecution challenge for cause. However, the prosecution did an about-face at the close of the penalty phase, claiming it had offered "substantial" evidence of premeditation. Because Ms. Ayre was willing to consider the death penalty in such a case, the District Court violated the Sixth Amendment by excluding her. The District Court further erred by excluding eight other jurors for their death penalty views, without conducting any voir dire examination whatever. This procedure, based strictly on jurors’ written questionnaire responses, violated Rules 24(a) and 43(a), and the Fifth, Sixth and Eighth Amendments.

Jencks Act. An FBI expert witness who testified in this case had previously testified as an expert for the Government in numerous other federal criminal trials across the country. Transcripts in which the expert testified about his area of expertise "related to" the subject matter of expert testimony here, and were therefore subject to Jencks Act production for the defense, if held by other Justice Department offices. The District Court erred by refusing to order the prosecution to produce these transcripts here, for use in defense cross-examination of the expert.

Vienna Convention on Consular Relations. Both the United States and Laos are signatories of the Vienna Convention on Consular Relations. The District Court erred by failing to advise Mr. Chanthadara, who is a Laotian national, of his right to seek assistance from the Laotian consulate, as required by Article 36 of the Convention. Because of the central role which the consul plays in assuring the fairness of proceedings against a foreign national, this error was not harmless.

Voter-Only Jury Selection System. The defense showed substantial underrepresentation of blacks and Hispanics on juries in the District of Kansas, where only actual (as opposed to registered) voters were allowed to serve. The difference between the observed and expected number of blacks on juries exceeded five standard deviations, whereas the Supreme Court has stated that any difference exceeding two or three standard deviations is constitutionally suspect. On this statistical showing, the District Court erred in summarily rejecting the defense’s challenge to the jury selection system.

Lesser Included Offense. The first degree felony murder charged in the indictment was a specific intent crime, because the predicate felony, robbery, required proof of a defendant’s specific intent. Specific intent was disputed here, because of evidence of Mr. Chanthadara’s intoxication. Rational jurors could have acquitted Mr. Chanthadara of first degree felony murder, for inability to form a specific intent, while convicting him of the lesser included offense of second degree murder, which required only a general intent. The District Court therefore erred in refusing instruct the jury on second degree murder.

Instructions on Malice. Both parties agreed with the trial judge that malice was an essential element of the first degree felony murder charged in this case, based on this Court’s decisional law as of the date of the offense. The District Court erred by instructing that malice was proven by mere commission of the predicate felony, thereby effectively directing a verdict against the defense on this element. It further erred by telling the jury that malice was established by mere disregard for life, a negligence standard inconsistent with the definition of murder.

Instructions on Interstate Commercial Impact Required Under the Hobbs Act. The District Court instructed the jury that "any effect at all" on interstate commerce, by reason of the robbery, would support a Hobbs Act conviction, and that "potential" and "probable" effects would suffice as well. Moreover, although the restaurant was owned by a corporation, the District Court refused to limit the jury to corporate losses in assessing the interstate commercial impact of the robbery, and instead allowed jurors to consider losses of individual employees as well. These instructions unlawfully relieved the Government of its burden of proving a cognizable effect on interstate commerce, and authorized conviction for an impact far below the "substantial effect" required by the Supreme Court’s Lopez decision.

Government Testimony Procured by Bribery. The two principal Government witnesses were parties to plea agreements in which they agreed to give testimony in exchange for sentencing benefits from the Government. Because these promises violated the federal bribery statute, the District Court plainly erred by failing to exclude their testimony.

Pecuniary Gain Aggravating Factor. In defining the "pecuniary gain" aggravating factor for the jury, the District Court refused to limit it to situations where the gain was expected "as a result of the victim's death." Under such a construction, the factor would exist in the case of every felony murder involving robbery, a result never intended by Congress. Because the "offense" at issue in the penalty phase is homicide, the gain expected from the "offense" must be a gain from the victim’s homicide, rather than merely from an underlying robbery. Properly construed, there was insufficient evidence of the factor.

Especially Heinous, Cruel or Depraved Aggravating Factor. In defining this factor for the jury, the District Court instructed that "serious physical abuse" could support the factor, and that this abuse could occur either before or after death. However, the statutory language of the factor is keyed to the "offense" which the defendant "committed." Because commission of a homicide ends with death, it was error to allow the jury to base its finding on post mortem injuries. The District Court further instructed that "torture" could support the factor, but provided a relaxed definition of torture at odds with the more stringent statutory definition of the term. In addition, the District Court instructed that jurors were free to consider wholly irrelevant matters in deciding whether the factor had been proven: the "senselessness of the killing" and the "helplessness" of the victim. On the ambiguous record concerning the sequence of the victim’s injuries here, these errors were prejudicial. Properly construed, there was insufficient evidence of the factor.

Intent Nonstatutory Aggravating Factor. As a nonstatutory aggravating factor, the Government charged that Mr. Chanthadara harbored a culpable intent to commit the homicide. Such intent is a threshold factor which must be proven in every capital case, under 18 U.S.C. § 3591, but is omitted from the long list of statutory aggravating factors set out in § 3592. Because Congress deliberately omitted "intent" from the Title 18 statutory aggravating factors, that choice cannot by circumvented by resurrecting "intent" as a nonstatutory aggravating factor.

Inflammatory Victim Impact Evidence. Rather than providing the jury with a "quick glimpse" of the victim’s life, as authorized by the Supreme Court’s Payne decision, the Government offered an emotion-filled memorial to the victim. Instead of limiting its proof to one survivor, the Government used three survivors, including two small children who ended their appearances in tears. The Government went on to offer numerous living photographs of the victim, which were used extensively in jury argument, as well as highly emotional letters written by both children to their dead mother. This evidence was admitted in violation of the Fifth and Eighth Amendments, as well as 18 U.S.C. § 3593(c). The District Court further erred by allowing this evidence of victim impact to be weighed as an aggravating factor against defense mitigation, rather than for the background purposes approved in Payne.

IV. ARGUMENT.

A. THE DISTRICT COURT ERRED IN ITS HANDLING OF PREJUDICIAL MID-TRIAL PUBLICITY.

Six of the twelve jurors read mid-trial publicity headlining the trial judge’s denunciation of the defense case as a "smoke screen." See Addendum I; V.43 at 2718-22. The District Court erred by failing to declare a mistrial because of jurors’ exposure to this publicity, and further erred by failing to make specific inquiry about jurors’ exposure to additional damaging publicity which appeared later during the trial.⁴

1. Standards of Review.

The District Court’s handling of allegations of juror bias is reviewed under an abuse of discretion standard, as is the decision as to whether to grant a mistrial. See United States v. Thompson, 908 F.2d 648, 650 (10th Cir. 1990) (juror bias); United States v. Jaynes, 75 F.3d 1493, 1503 (10th Cir. 1996) (mistrial).

2. Publicity About the Trial Judge’s Denunciation of the Defense Case as a "Smoke Screen" Was Too Damning For Jurors to Disregard.

Although the six affected jurors admitted to reading only the "smoke screen" headline, this particular headline was one which told the entire story: "Judge in murder case calls defense story a ‘smoke screen’." See Addendum I. The balance of the article was little more than icing on the cake. Whatever jurors did not know after reading the headline, they soon learned in the courtroom from the trial judge himself.

When the trial judge inquired about jurors’ exposure to the "smoke screen" article, he opened by confirming both that the article related to this case, and that it reflected his actual comments: "In the paper this morning there was an article regarding this case that reflected some comments that I made outside your presence" (V.43 at 2718-19). As a result of this confirmation, the six headline-reading jurors were left in the same position as if they had heard the judge’s comments directly from the bench.

It is difficult to conceive of any judicial comments more destructive of Mr. Chanthadara’s right to a fair trial than those made known to jurors here. In a devastatingly succinct way, the judge smeared both the defense case and the lawyers who were presenting it. The timing of the judge’s reported comments could not have been worse, arriving on the morning of defense counsel’s closing argument. When damaging information of this type is communicated to the jurors outside the courtroom, as here, prejudice to the defendant is presumed. See United States v. Hornung, 848 F.2d 1040, 1044 (10th Cir. 1988), cert. denied, 489 U.S. 1069 (1989).

The Government bears the burden of showing, beyond a reasonable doubt, that jurors’ exposure to the judge’s denunciation of the defense was harmless. See United States v. Thompson, 908 F.2d 648, 652 (10th Cir. 1990). In denying a mistrial and post-verdict relief here, the trial judge stressed his curative instruction, as well as the pledge of headline-reading jurors to disregard what they had learned about his conclusions. See Addendum P at 32-33. However, some categories of prejudicial information are simply too damaging for a juror to ignore, or for an instruction to cure. A trial judge’s denunciation of the defense falls into such a category.

Jurors in this case learned that the trial judge had concluded that defense counsel were deceiving them with a smoke screen. The judge, as neutral overseer of the trial, would have appeared uniquely qualified to make such a determination. Given the judge’s superior knowledge and experience, the temptation for jurors to defer to the judge’s conclusion would have been overpowering.⁵ After learning of the judge’s damning assessment of the defense, how could any juror be expected to follow a "do as I say, not as I do" instruction?

A case in point is McBride v. United States, 314 F.2d 75 (10th Cir. 1963), where a trial judge voiced the opinion to jurors in a criminal case "that the defendant did commit the act as charged ... ." The judge immediately told jurors to "disregard what I have said to you with reference to my views. Disregard it completely. Do not consider that I have ever said anything to you." 314 F.2d at 76. Despite the emphatic and repeated nature of these curative instructions, the McBride Court observed that they were insufficient "to repair the damage done," and reversed the defendant’s conviction. 314 F.2d at 79.⁶ The same principle holds true here.

In terms of its impact on jurors’ decisionmaking, there is no practical difference between a trial judge’s denouncing the accused’s defense as a "smoke screen," as here, and offering a direct opinion as to guilt, as in McBride. Regardless of the formulation, jurors would understand that the judge believes the defendant to be guilty. Such a judicial statement is too damning and too powerful for any reasonable juror to ignore.

The District Court abused its discretion by refusing to grant a mistrial once it was established that six jurors had learned of the trial judge’s "smoke screen" denunciation. Denying such a mistrial violated the Fifth Amendment due process guarantee, Sixth Amendment jury trial and counsel guarantees, and the Eighth Amendment. A new trial should be ordered, because of the violation of these provisions, as well as in the exercise of this Court’s supervisory power over lower courts. See Marshall v. United States, 360 U.S. 310, 312-13 (1959) (jurors exposed to newspaper publicity about accused’s criminal record told trial judge they would ignore it; conviction reversed in exercise of supervisory power).

3. The District Court Erred In Failing to Inquire About Jurors’ Exposure to Additional Prejudicial Publicity Issued Before Commencement of the Penalty Phase.

Two additional articles about the case appeared in the Wichita Eagle during the interim between the guilt and penalty phases. Defense counsel requested the District Court to make specific inquiry about whether jurors had been exposed to either article (V.4, Doc. 447). In response, the trial judge asked returning jurors only a general question about whether anything had happened which might affect their continuing ability to be fair (V.44 at 2922). Given the nature of the articles, this inquiry was constitutionally inadequate.

The first of the articles recapitulated the judge’s "smoke screen" comments in light of the jurors’ guilty verdicts, and theorized that jurors had detected the same "smoke screen" as the judge. See Addendum K, Exhibit B. This article was just as damaging to Mr. Chanthadara as its predecessor, particularly insofar as it may have been read by any juror who missed the original "smoke screen" article.⁷

The second article heralded the "landmark" nature of any death sentence that might be returned against Mr. Chanthadara, and quoted a Justice Department official who complained about the "slow appeals process" which would follow. See Addendum K, Exhibit C. A reasonable juror could have concluded from the article that the jury’s sentencing decision was not final, and that an appellate court would bear final responsibility for any death sentence imposed in the case. Reducing any juror’s sense of responsibility for a death sentence, as the article invited, would violate the Eighth Amendment. See Caldwell v. Mississippi, 472 U.S. 320, 330-33 (1985).

Both of the later articles appeared in the same publication as the prior "smoke screen" article, which six jurors admitted to having read in headline form. Under such circumstances, it was reasonable to assume that one or more jurors may have seen the later articles as well. Since these articles contained highly prejudicial information which would not have been admissible in the courtroom, the District Court abused its discretion in failing to make specific inquiry about jurors’ exposure to them. See United States v. Thompson, 908 F.2d 648, 650-51 (10th Cir. 1990) (where newspaper article referenced inadmissible information, abuse of discretion not to make specific inquiry of jurors; general inquiry insufficient).

The District Court’s failure to make specific inquiry about the additional mid-trial publicity violated the Fifth Amendment due process guarantee, the Sixth Amendment jury trial and counsel guarantees, and the Eighth Amendment. Because of this failure, Mr. Chanthadara’s death sentence cannot stand.

B. THE DISTRICT COURT ERRED IN SUSTAINING GOVERNMENT CHALLENGES BASED ON JURORS’ DEATH PENALTY VIEWS.

The District Court excused a number of jurors because of their death penalty views. Eight of these jurors were excluded without ever having been brought into the courtroom for voir dire examination. These exclusions violated the Sixth and Eighth Amendments, as well as Mr. Chanthadara’s constitutional rights to presence at trial and a public trial.

C. THE DISTRICT COURT ERRED IN REFUSING TO ORDER JENCKS ACT PRODUCTION OF TRANSCRIPTS OF PRIOR TESTIMONY BY THE GOVERNMENT’S EXPERT WITNESS.

An expert witness employed by the FBI fingerprint lab, John T. Massey, gave the jury his expert opinion that a latent palm print found on a piece of broken glass in the restaurant matched Mr. Chanthadara’s (V.41 at 2343-44). Mr. Massey had an extensive record of courtroom appearances, having testified "as expert" in no fewer than 35 states (V.41 at 2340). He said that many of the trials in which he had testified had been federal criminal trials, at which a court reporter had recorded his testimony, and mentioned that he had testified recently in federal courts in "Pennsylvania, California, Florida, New York, Michigan and several others" (V.41 at 2349-50).

Following Mr. Massey’s direct examination, the defense moved for production of all transcripts of prior expert testimony by Mr. Massey possessed by the federal Government. The request was based on Rule 26.2(a), Federal Rules of Criminal Procedure, and 18 U.S.C. § 3500(b) ("the Jencks Act") (V.41 at 2345). The trial judge noted that AI bet he’s testified in a ton of trials" (V.41 at 2347-48), and acknowledged that transcripts of an expert’s testimony in other cases are often used for cross-examination in civil cases (V.41 at 2346). Nonetheless, the judge refused to order production of transcripts of Mr. Massey’s prior expert testimony here, and denied a defense motion to strike his testimony (V.41 at 2347-48).¹² These rulings were in error.

1. Standard of Review.

The facts relating to the Jencks Act request were undisputed. The legal issues raised by the request are reviewed by this Court de novo. See United States v. Sasser, 971 F.2d 470, 479-80 (10th Cir. 1992), cert. denied, 507 U.S. 924 (1993).

2. Transcripts of Prior Testimony by the Government’s Expert Witness Were Subject to Jencks Act Production.

Transcripts of prior testimony by an expert witness are extremely useful tools for cross-examination. See, e.g., Harre v. A.H. Robins Co., 750 F.2d 1501, 1504-05 (11th Cir. 1985) (ordering new trial based on inconsistent testimony of same expert witness in another case).¹³ The importance of such transcripts is underscored by Rule 26(a)(2)(B), Federal Rules of Civil Procedure, which requires any civil party calling an expert to disclose "a listing of any other cases in which the witness has testified as an expert by trial or deposition within the preceding four years."

FBI expert witnesses testifying in criminal cases are not immune from the kinds of bias and inaccuracy which have been known to occur among civil experts. On the contrary, recent press accounts and Congressional hearings have documented that FBI expert witnesses, like their civil counterparts, have sometimes been guilty of adversarial bias, overstated findings, and slipshod work.¹⁴ Whether the case is civil or criminal, rigorous cross-examination of experts is essential if their testimony is to "assist the trier of fact," as required by Evidence Rule 702. Particularly when an accused is on trial for his life, it is essential that he be provided with the basic tools needed to conduct such a cross-examination.

Under 18 U.S.C. § 3500(e)(2), a "statement" of a witness includes a verbatim transcript of prior testimony by that witness. Thus, prior transcripts of testimony by Mr. Massey, if possessed by the United States, were subject to disclosure as long as they "relate[d] to the subject matter as to which the witness has testified." See 18 U.S.C. § 3500(b); see also Rule 26.2(a). Mr. Massey’s testimony in other cases, although it presumably concerned his analysis of latent prints of individuals not involved in this case, was still based on the very same expertise which he offered to justify his opinion here.

In each case in which he has testified, Mr. Massey’s opinion testimony has presumably been based on the same underlying methodology of latent print examination. Mr. Massey’s understanding of that methodology, and its limits, were legitimate topics for defense cross-examination here. Other transcripts in which Mr. Massey testified about his area of expertise were therefore "relate[d] to the subject matter" upon which Mr. Massey testified here, and subject to production under 18 U.S.C. § 3500(b) and Rule 26.2(a).

Although Mr. Massey stated that he had not testified previously in the District of Kansas (V.41 at 2349), this did not excuse the trial prosecutors from seeking, and producing, transcripts of his expert testimony on file in Justice Department offices elsewhere in the country. The statute requires production of all such transcripts "in the possession of the United States." See 18 U.S.C. § 3500(b). The entire United States government is required to comply with this statute; a search limited to the files of the Government’s Kansas branch office is not sufficient. See United States v. Heath, 580 F.2d 1011, 1018-19 (10th Cir. 1978), cert. denied, 439 U.S. 1075 (1979) (prosecutor may not "stand on technicality and say that he does not have actual possession" of producible statement). The Government was required to produce the transcripts of Mr. Massey’s prior testimony requested by the defense, regardless of their location.

Mr. Massey’s palm print identification was the only physical evidence linking Mr. Chanthadara to the crime scene, and received considerable emphasis in both sides’ closing arguments (V.43 at 2743, 2749, 2762-63, 2767-68). The only other evidence offered against Mr. Chanthadara came from the mouths of accomplices and their associates, whose stories were weakened by their inconsistent statements, extensive drug use, criminal records and favorable treatment from the Government. On such a record, the District Court’s refusal to order production of the withheld transcripts was prejudicial error. See Goldberg v. United States, 425 U.S. 94, 111 n.21 (1976) (prejudice presumed: courts cannot speculate about how improperly withheld Jencks material might have been used at trial by defense counsel).

D. THE UNITED STATES VIOLATED THE DEFENDANT’S RIGHTS UNDER THE VIENNA CONVENTION ON CONSULAR RELATIONS.

Mr. Chanthadara is a citizen of Laos (V.5, Doc. 542, Exhibit C), a nation which, like the United States, is a party to the Vienna Convention on Consular Relations. When a national of one signatory nation is detained by another such nation, the Convention’s Article 36 requires that notice of the detention be given to the detainee’s consular post, upon request by the accused. "The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph." Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 101, 590 U.N.T.S. 261. See Addendum R.

In this case, the District Court never advised Mr. Chanthadara of his right to consular notice and assistance,¹⁵ and he was otherwise unaware of this right. See V.5, Doc. 542, Exhibit C. The Laotian consulate was never notified of Mr. Chanthadara’s detention, and the District Court took no action on the defense’s post-trial demand that the Government be ordered to give such notice. Because these omissions violated Article 36, Mr. Chanthadara’s convictions and sentences cannot stand.¹⁶

1. Standard of Review.

Compliance with a treaty, and the effects of noncompliance, are purely legal questions, which are reviewed de novo by this Court. See Marquez-Ramos v. Reno, 69 F.3d 477, 479-80 (10th Cir. 1995).

2. The Government’s Violation of the Consular Notice Provisions of Article 36 Requires a New Trial.

The District Court did not dispute that Mr. Chanthadara’s rights under Article 36 had been violated in this case, but ruled that because he had shown no prejudice from any violation, he was not entitled to a new trial. Addendum P at 26-28. This ruling was error.

When a foreign national is accused, the guarantees of consular notice and access under Article 36 enable the foreign consulate to monitor the fairness of the proceedings against the accused. See L. Lee, Consular Law and Practice 170 (2nd ed. 1991) (U.S. State Department: "The main purpose of such attendance is to insure that the U.S. citizen is not discriminated against, either in procedure or sentence, on the basis of U.S. nationality"). If proceedings are unfair to the foreign national, the consul may act to assure fair proceedings by means of a diplomatic protest. See Lee at 169 (U.S. State Department: U.S. diplomatic protest may be warranted in cases of "discriminatory treatment of U.S. prisoners").

In effect, the foreign consul serves as an additional safeguard against unfair proceedings, supplementing (in the American system) the roles of defense counsel and the trial judge. When the trial judge and defense counsel are unable to fully perform their traditional roles, the consul’s protective role may be critical. This case -- where the trial judge denounced and discredited defense counsel by means of his "smoke screen" comments -- is a good illustration of one where the traditional safeguards did indeed fail.

In addition to monitoring the fairness of the trial itself, a foreign consul can also monitor the fairness of the process by which the foreign national was chosen for prosecution and punishment. In the District of Kansas, for example, the United States had sought the death penalty for the statutory violations in issue here only when foreign nationals were charged. When United States nationals were charged with the same statutory violations, in the same District and same city, the death penalty was not sought. See V.5, Doc. 542 at 5. A foreign consul might have protested disparate treatment of foreign nationals in the District of Kansas, as regards capital punishment. Even if such a protest proved unsuccessful, the foreign consul might have assisted in gathering mitigation evidence, particularly relating to the accused’s cultural background.

Because the foreign consul’s protective role is not limited to any single aspect of the proceedings, the consul’s absence is not a conventional "trial error" -- "error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence ... ." See Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). Instead, the consul’s absence is "a structural defect in the trial mechanism," much like the absence of defense counsel or a neutral judge. Such structural errors are not subject to harmless error analysis. See Fulminante, 499 U.S. at 309-10.

Even if it is assumed that Article 36 violations are subject to harmless error analysis, the District Court improperly required Mr. Chanthadara to show that the error here was not harmless. Once a violation of a non-constitutional right has been shown on direct review, as here, the burden is on the Government, rather than on the accused, to show that the error was harmless. See United States v. Rivera, 900 F.2d 1462, 1469 n.4 (10th Cir. 1990) (en banc) ("Except possibly for minor, technical errors for which there is no reasonable possibility that the verdict could have been affected, the government ordinarily has the burden of proving that a non-constitutional error was harmless").

According to the State Department, "Article 36 of the Vienna Convention contains obligations of the highest order and should not be dealt with lightly." See L. Lee, Consular Law and Practice 143 (2nd ed. 1991) (quoting from State Department guidance). Without the strictest compliance with Article 36 by United States courts, the safety and freedom of United States citizens abroad may be jeopardized. See Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring). Because violations of Article 36 are neither minor nor technical, the Government bore the burden of showing that the error was harmless. It failed to do so.

The Supreme Court has discussed the Vienna Convention on Consular Relations only once, in Breard v. Greene, 118 S.Ct. 1352 (U.S. 1998), an order denying certiorari and related relief in a federal habeas corpus case.¹⁷ Although Breard denied relief for an Article 36 violation, its rationale is uniquely dependent on the habeas corpus posture of that case. For example, the Breard Court expressed doubt as to whether a "violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial," and concluded that no such showing was possible in Breard’s case. 118 S.Ct. at 1355-56. Here, however, the conviction is not "final," because of the pendency of direct appellate review.¹⁸ Breard thus has no application here.

Because Mr. Chanthadara was unlawfully denied notice of his right to consular notification and assistance, his convictions and sentences cannot stand.

E. THE DISTRICT COURT ERRED IN SUMMARILY REJECTING THE DEFENSE CHALLENGE TO THE KANSAS VOTER-ONLY JURY SELECTION SYSTEM.

Mr. Chanthadara showed serious underrepresentation of blacks and Hispanics on grand and petit juries in the District of Kansas, and moved to dismiss the indictment and quash the petit venire (V.3, Docs. 243, 248). The District Court erred in denying his motion. See Addendum E.

1. Standards of Review.

Legal issues relating to the District of Kansas jury selection system are reviewed de novo, while any factual findings are reviewed for clear error. See United States v. Bailey, 76 F.3d 320, 321 (10th Cir.), cert. denied, 517 U.S. 1239 (1996).

Under the Sixth Amendment’s fair cross-section guarantee, a challenging party must show that the representation of a distinctive group in the venire is not fair and reasonable in relation to the number of such persons in the community, and that this underrepresentation resulted from systematic exclusion. See Duren v. Missouri, 439 U.S. 357, 364 (1979).

Under 28 U.S.C. § 1862, no citizen may be excluded from jury service on the basis of race or national origin. Upon a showing of a substantial failure to comply with the Act, a trial court must dismiss the indictment (if noncompliance is in the grand jury process), or stay petit jury selection pending selection of a lawfully composed jury (if noncompliance is in the petit jury process). See United States v. Bailey, 76 F.3d 320, 322 (10th Cir.), cert. denied, 517 U.S. 1239 (1996).

Here, there was no dispute that blacks and Hispanics comprised distinctive groups within the District of Kansas. Although Mr. Chanthadara is Asian, he has standing to object to the exclusion of other racial and ethnic groups from his juries, under the Sixth Amendment fair cross-section guarantee, as well as under 28 U.S.C. § 1862. See Peters v. Kiff, 407 U.S. 493, 504 (1972).

2. The District Court Erred in Rejecting the Defense Jury Composition Challenge.

The petit jury in Mr. Chanthadara’s case was drawn from the Wichita (sometimes called Wichita-Hutchinson) jury wheel. Using the District Court’s own survey of 1,767 persons actually selected for potential federal jury service (AO form JS-12), defense showed significant underrepresentation of blacks in the Wichita wheel: 2.38% in the jury wheel, as compared to 5.20% in the over-17 population at large, an absolute disparity of 2.82%. See Addendum C, Exhibit G.

Mr. Chanthadara was indicted by a grand jury which sat in Kansas City, Kansas. Under Local Rule 38.1(h)(1), this grand jury was drawn from the Kansas City-Leavenworth (78%) and Fort Scott (22%) jury wheels. Based on the District Court’s survey of 1,757 prospective jurors reported on AO form JS-12, the defense showed significant underrepresentation of blacks in the Kansas City-Leavenworth division: 4.67% in the jury wheel, as compared to 7.90% in the over-17 population at large, an absolute disparity of 3.23%. See Addendum C, Exhibit H. Hispanics were underrepresented in this division as well, though less dramatically than blacks: 1.14% in the jury wheel, versus 2.74% in the over-17 population, an absolute disparity of 1.60%. See Addendum C, Exhibit H.

In rejecting Mr. Chanthadara’s jury composition challenge, the District Court relied primarily on the decision of another district judge in an unrelated case, United States v. Shinault, No. 95-10072 (D. Kans.). See Addendum E at 2-3. The District Court refused to hold a hearing requested by the defense (V.3, Doc. 248 at 11), even though Mr. Chanthadara was not a party to the Shinault proceedings. The District Court further refused the defense’s request, pursuant to 18 U.S.C. § 3006A(e), for the assistance of a political science expert, knowledgeable in statistical analysis, demographics and voting behavior, to assist in presentation of the defense challenge (V.6, Doc. 326; V.7, Doc. 439).

Although the trial-level Shinault decision was affirmed by this Court in United States v. Shinault, 147 F.3d 1266 (10th Cir. 1998), Mr. Chanthadara made a greater showing in support of his challenge than did the Shinault defendant. First, the Shinault defendant failed to submit a sworn statement in support of his motion, as required by 28 U.S.C. § 1867(d). Shinault, 147 F.3d at 1271. Here, in contrast, the defense submitted a detailed declaration by counsel, having the effect of a sworn statement pursuant to 28 U.S.C. § 1746, in support of the calculations, census data, voting data and other evidence offered in support of his motion (V.3, Doc. 248, Exhibit L).

Second, the Shinault defendant strictly limited his proof to a showing of absolute and comparative disparities in minority representation: straight racial percentages. The Shinault Court criticized this showing, noting that both types of percentages "have their weaknesses" in a jurisdiction, such as Kansas, where minorities form a relatively small proportion of the general population. Because of these weaknesses, the Shinault Court concluded that the defendant’s showing was insufficient to merit relief. 147 F.3d at 1273.

The weakness which the Shinault Court perceived in percentage disparities, standing alone, has been noted by other courts as well. However, a statistical tool which overcomes these shortcomings exists, and has been approved by the Supreme Court, other courts of appeal and, in other racial discrimination contexts, this Court. This tool, standard deviation analysis, was used in support of Mr. Chanthadara’s showing here, while it was not invoked by the Shinault defendant.

A leading decision approving the use of standard deviation analysis is Hazelwood School District v. United States, 433 U.S. 299 (1977), an employment discrimination case involving percentage racial disparities strikingly similar to those involved in the District of Kansas. Blacks qualified to serve as teachers made up at least 5.7% of the population, according to census data, but formed no more than 1.8% of the teachers actually employed. 433 U.S. at 308. While acknowledging that "these differences were on their face substantial," the Supreme Court turned to standard deviation analysis, "[a] precise method of measuring the significance of such statistical disparities," in order to decide the issue. 433 U.S. at 308-09, n.14.

The Hazelwood Court found that the difference between observed and expected minority employment figures was Amore than five standard deviations," whereas any difference exceeding "two or three standard deviations" was suspect. 433 U.S. at 308-09, n.14. The five standard deviations shown in Hazelwood were held to constitute "prima facie statistical proof" of racial discrimination. 433 U.S. at 309. In Castaneda v. Partida, 430 U.S. 482, 496-97 & n.17 (1977), the Supreme Court approved use of the same standard deviation methodology for analyzing racial discrimination in jury selection.¹⁹

In conducting a standard deviation analysis here, Mr. Chanthadara had the benefit of large samples -- 1,767 potential jurors in the Wichita division, and 1,757 potential jurors in the Kansas City division. Based on these samples, the difference between the observed and expected number of blacks in the Wichita division was 5.34 standard deviations. In the Kansas City division, blacks were underrepresented by 5.02 standard deviations, and Hispanics by 4.12 standard deviations. See Addendum C, Exhibits G and H. Underrepresentation of these minorities in the District of Kansas far exceeded the "two or three" standard deviation level deemed "suspect" under Hazelwood.

If the District of Kansas had been deemed to be the "employer" of the jurors which it recruited and paid -- hardly a strained analogy -- then these large standard deviations would have established a prima facie case of employment discrimination under the Hazelwood decision. Under Castaneda, these large standard deviations likewise established a prima facie violation of both the Sixth Amendment’s fair cross-section guarantee and the Jury Selection and Service Act.²⁰

Mr. Chanthadara did not stop with the statistics comprising his prima facie case. He went on to show a likely reason for the gross underrepresentation of blacks and Hispanics on District of Kansas juries: the District’s limitation of jury service to actual voters in the last presidential election. See District of Kansas Local Rule 38.1(d), effective March 13, 1992, reproduced in Addendum S. The defense offered several academic studies of American voting behavior, unchallenged by the Government, which showed that blacks and Hispanics do not vote as often as other racial and ethnic groups eligible for jury service. (V.3, Doc. 248, Exhibit B, at 58, Exhibit C at 30). The lower rates of voting by these groups assures that they will be underrepresented on Kansas federal juries.

Here, no claim was made by either the District Court or the Government that use of a more minority-inclusive jury source list, such as registered voters, was somehow impractical.²¹ Instead, the only justification offered for the Kansas voter-only system was the belief of local judges that actual voters make more "responsible" jurors than other population segments (V.34 at 616; V.35 at 829). Such stereotypes can never justify disproportionate exclusion of any distinctive group, as occurred here. See, e.g., Duren v. Missouri, 439 U.S. 357, 369-70 (1979) (rejecting similar stereotypes offered to justify exclusion of women from juries).

Mr. Chanthadara was convicted and sentenced to death by an all-white jury. Because the District Court erred in denying his challenge to the District of Kansas jury selection system, his convictions must be reversed, and the indictment dismissed.

F. THE DISTRICT COURT ERRED IN REFUSING TO INSTRUCT ON THE LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER.

The District Court denied Mr. Chanthadara’s request that his jury be instructed on the lesser included offense of second degree murder. See Addendum H, Requested Instructions No. 23-24, 27; V.43 at 2690-2705. On the disputed evidence of specific intent here, this refusal was error.²²

1. Standard of Review.

Instruction on lesser included offenses is required whenever: (1) there is a proper request; (2) the lesser included offense consists of some, but not all, elements of the offense charged; (3) proof of the element or elements differentiating the lesser and greater offenses is a matter in dispute; and (4) a jury could rationally convict on the lesser offense and acquit on the greater offense. See United States v. Abeyta, 27 F.3d 470, 473 (10th Cir. 1994).

2. Because Intoxication Negated the Specific Intent Necessary For First Degree Felony Murder, Instruction on Second Degree Murder Was Justified.

Count 2 of the indictment charged use of a firearm in a crime of violence under circumstances constituting first degree murder, as defined in 18 U.S.C. § 1111(a). See 18 U.S.C. §§ 924(c)(1), 924(j)(1). The underlying "crime of violence" was violation of the Hobbs Act, 18 U.S.C. § 1951(a). With regard to the first degree murder element, the indictment charged only felony murder, with a predicate felony of "robbery." See Addendum A.

Malice is an essential element of both first degree felony murder and second degree murder. See 18 U.S.C. § 1111(a); United States v. Pearson, ___ F.3d ___, 1998 WL 614411 (10th Cir. 1998), slip opinion at 15 (discussing "malice aforethought element of ' 1111(a) felony murder"). Because second degree murder does not require any predicate felony, it is a lesser included offense of first degree felony murder.

The Hobbs Act is not one of the named predicate felonies which can support a first degree felony murder conviction under 18 U.S.C. § 1111(a): only "robbery" can support such a finding. However, "robbery" for purposes of § 1111(a) is not the same as "robbery" for purposes of the Hobbs Act: the two differ with regard to the critical element of specific intent.

Specific intent is an essential element of the "robbery" required for first degree felony murder under § 1111(a). See United States v. Lilly, 512 F.2d 1259, 1261 (9th Cir. 1975). On the other hand, specific intent is not an element of a Hobbs Act violation. See United States v. Warledo, 557 F.2d 721, 729 n.3 (10th Cir. 1977). Thus, if evidence negating specific intent is in the record, rational jurors could reject a finding of the "robbery" needed for § 1111(a) felony murder, while still finding a Hobbs Act violation and an unlawful homicide, which require proof of only general intent.

Here, the Government offered evidence that Mr. Chanthadara was impaired and under the influence of drugs at the time of the alleged offense (V.41 at 2274). This evidence was held sufficiently probative to merit an instruction on intoxication. See Addendum J, Instruction No. 32. Based on this evidence, the jury might rationally have acquitted him of first degree felony murder, with its specific intent requirement. See United States v. Zink, 612 F.2d 511, 515 (10th Cir. 1980) (evidence of intoxication may negate specific intent). On the same view of the evidence, such jurors might rationally have convicted him of second degree murder, because that offense is limited to general intent elements. Instruction on second degree murder was therefore required.

The District Court’s refusal to instruct on second degree murder violated Rule 31(c), Federal Rules of Criminal Procedure, as well as the due process guarantee of the Fifth Amendment and the Eighth Amendment. See Beck v. Alabama, 447 U.S. 625, 638 n.4 (1980). Mr. Chanthadara’s conviction and sentence on count 2 therefore cannot stand.

G. THE DISTRICT COURT ERRED IN ITS INSTRUCTIONS ON MALICE.

The District Court told the jury that malice aforethought was an essential element of the first degree murder offense charged in count 2, but then provided the jury with a relaxed definition of malice which covered virtually any unlawful homicide. Instructing the jury in this way was error.²³

1. Standard of Review.

Jury instructions must "state the law which governs" and provide the jury with "an ample understanding of the issues and the standards applicable." See United States v. Cardall, 885 F.2d 656, 673 (10th Cir. 1989). Review of the legal correctness of an instruction is de novo. See United States v. Voss, 82 F.3d 1521 (10th Cir.), cert. denied, 117 S.Ct. 226 (U.S. 1996).

2. Malice Must Be Separately Proven in Cases of First Degree Felony Murder, at Least for Purposes of This Case.

The indictment charged, and the District Court instructed, that "malice aforethought" was an essential element of first degree felony murder under 18 U.S.C. § 1111(a), for purposes of the violation of 18 U.S.C. § 924(j)(1) alleged in count 2. See Addendum A at 2; Addendum J, Instruction No. 17, &4. Because neither party objected below to the instruction defining malice as an essential element of the offense (V.43 at 2658, 2661), this instruction constitutes the law of the case for purposes of this appeal. See United States v. Romero, 136 F.3d 1268, 1271-73 (10th Cir. 1998).

The District Court’s instruction was supported by the language of 18 U.S.C. § 1111(a), which defines "murder" as meaning "any unlawful killing of a human being with malice aforethought." The statute further defines first degree murder as "every murder ... committed in the perpetration of" certain named felonies. Because first degree felony murder is defined as requiring a "murder," rather than just a homicide, it follows that the "malice" which is essential to "murder" is likewise essential to first degree felony murder.

This construction of § 1111(a) was adopted by a panel of this Court in United States v. Sides, 944 F.2d 1554 (10th Cir.), cert. denied, 502 U.S. 989 (1991), a criminal case arising out of the Tenth Circuit. The Sides Court squarely defined first degree felony murder as requiring both malice and a felony: "a malicious and unlawful killing of a human being committed in the perpetration of a robbery." 944 F.2d at 1557. This passage from the Sides opinion was not dictum -- the Sides Court expressly applied its definition in upholding the sufficiency of the evidence against the accused, analyzing the evidence of malice at length. 994 F.2d at 1557-58. In the District Court, the Government urged Sides as stating the controlling law on malice (V.43 at 2668).

Without overruling Sides, another panel ruled in United States v. Nguyen, 149 F.3d 1192 (10th Cir. 1998) that separate proof of malice is not required in cases of first degree felony murder, because the felony itself furnishes the malice element. Slip opinion at 13-14. As authority, the Nguyen panel cited Montoya v. U.S. Parole Commission, 908 F.2d 635 (10th Cir. 1990), a parole case construing the effect of a 1967 conviction for § 1111(a) felony murder in the Ninth Circuit. See Montoya, 908 F.2d at 641 ("Central District of California"). The Montoya panel did not purport to decide the proof needed under § 1111(a) for purposes of criminal cases arising in the Tenth Circuit. This question was wholly irrelevant to construction of the judgment from the Ninth Circuit before the Montoya Court.

Sides was the first decision from this Court which actually decided the elements of § 1111(a) felony murder which must be prov