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96-11224 IN THE UNITED STATES COURT OF APPEALS
THE UNITED STATES OF AMERICA, v. BRUCE CARNEIL WEBSTER, Appealed from the United
States District Court
INITIAL BRIEF OF APPELLANT, Allan K. Butcher LAW OFFICES OF ALLAN K.
BUTCHER Larry M. Moore LAW OFFICES OF LARRY M.
MOORE ATTORNEYS FOR THE DEFENDANT/APPELLANT
CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. Allan K. Butcher - Trial
and Appellate Attorney for Bruce Webster Allan K. Butcher, Jr. -
Appellate Attorney for Bruce Webster Larry M. Moore - Trial and
Appellate Attorney for Bruce Webster Bruce Carneil Webster -
Defendant - Appellant Christopher Curtis - Asst.
U.S. Attorneys - Plaintiff - Appellee Hon. Terry R. Means - U.S. Dist. Judge - Trial Judge Allan K. Butcher Attorney for Defendant/Appellant
REQUEST FOR ORAL ARGUMENT Oral argument is requested. This case is only the third appeal in this Circuit of a sentence of death imposed under the Federal Death Penalty Act (FDPA) of 1994, 18 U.S.C. § 3591 et seq. This appeal raises numerous issues, some of which appear to be of first impression, regarding the FDPA and the interaction of other statutes and rules with that Act. Additionally, the record is lengthy and many of the issues are fact-intensive. Accordingly, counsel for the Defendant/Appellant urges that oral argument would be of assistance to this Court.
STATEMENT OF JURISDICTION The District Court had jurisdiction of this action pursuant to 18 U.S.C. § 3231. The jurisdiction of this Court is invoked under 28 U.S.C. § 1291, as this is an appeal from a final judgment entered by the United States District Court for the Northern District of Texas. Jurisdiction also lies under 18 U.S.C. §3595(a). Notice of Appeal was timely made in accordance with Fed.R.App.Proc. 4(b).
STATEMENT OF ISSUES ISSUE ONE: THE TRIAL COURT ERRONEOUSLY INSTRUCTED AND MATERIALLY MISDIRECTED THE JURY AT THE PENALTY PHASE OF APPELLANT’S TRIAL. ISSUE TWO: THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY AT GUILT/INNOCENCE REGARDING THE BENEFIT THAT WAS THE MOTIVE FOR THE KIDNAPPING. ISSUE THREE: THE DISTRICT COURT ERRED BY FAILING TO SUPPRESS THE FRUITS OF A SEARCH OF THE APPELLANT AND HIS AUTOMOBILE FOLLOWING AN ILLEGAL AND UNCONSTITUTIONAL ARREST OF THE APPELLANT. ISSUE FOUR: THE DISTRICT COURT ERRED BY FAILING TO SUPPRESS THE FRUITS OF A SEARCH THE CONSENT FOR WHICH WAS THE RESULT OF AN UNCONSTITUTIONAL ARREST. ISSUE FIVE: THE DISTRICT COURT ERRED BY FAILING TO SUPPRESS THE ORAL AND WRITTEN STATEMENTS OF THE APPELLANT THAT WERE THE RESULTS OF AN UNCONSTITUTIONAL ARREST. ISSUE SIX: THE ADMISSION OF EVIDENCE OF UNADJUDICATED OFFENSES IN THE PENALTY PHASE AND LACK OF INSTRUCTION THAT THE JURY APPLY SOME BURDEN OF PROOF IN ASSESSING THIS EVIDENCE RENDERED THE DEATH SENTENCE UNRELIABLE. ISSUE SEVEN: THE TRIAL COURT ERRED IN FAILING TO DISMISS THE GOVERNMENT’S DEATH NOTICE DUE TO RACIAL DISCRIMINATION IN THE CHARGING DECISION AND IN DENYING APPELLANT’S REQUESTS FOR DISCOVERY AND ON THIS ISSUE. ISSUE EIGHT: THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION FOR POST-TRIAL DISCOVERY REGARDING INFORMATION THAT THE GOVERNMENT PROVIDED SEXUAL REWARDS TO AN INMATE IN RETURN FOR HIS TESTIMONY AGAINST THE APPELLANT. ISSUE NINE: THE TRIAL COURT ERRED IN ORDERING THE APPELLANT TO UNDERGO MENTAL EXAMINATION BY THE GOVERNMENT FOR USE AT PUNISHMENT. ISSUE TEN: THE ADMISSION OF EXTREMELY GRUESOME PHOTOGRAPHS DENIED THE APPELLANT A FAIR TRIAL. ISSUE ELEVEN: THE ADMISSION OF AN EXTREMELY GRUESOME VIDEOTAPE DENIED THE APPELLANT A FAIR TRIAL. ISSUE TWELVE: THE TRIAL COURT ERRED IN GRANTING THE GOVERNMENT'S WITT CHALLENGE OF VENIREMAN LINDA VICAR. ISSUE THIRTEEN: THE TRIAL COURT ERRED BY REFUSING THE APPELLANT'S CHALLENGE FOR CAUSE OF VENIREMAN DEANNA D. HAILEY AFTER SHE EXPRESSED A BIAS TOWARD A LAW UPON WHICH THE APPELLANT HAD A RIGHT TO RELY. ISSUE FOURTEEN: THE TRIAL COURT ERRED BY REFUSING THE APPELLANT’S CHALLENGE FOR CAUSE OF VENIREMAN CAROLYN M. COFFELT, AFTER SHE HAD EXPRESSED A BIAS TOWARD A LAW UPON WHICH THE APPELLANT HAD A RIGHT TO RELY. ISSUE FIFTEEN: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S CHALLENGE FOR CAUSE OF VENIREMAN JIMMY CHAMBLESS DUE TO HIS CONCLUSION OF THE APPELLANT'S GUILT AND HIS REQUIREMENT FOR THE APPELLANT TO PRODUCE EVIDENCE. ISSUE SIXTEEN: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S CHALLENGE TO KRISTI MAGOUIRK THAT SHE WAS BIASED AGAINST THE DEFENSE, COULD NOT PROVIDE A PRESUMPTION OF INNOCENCE, AND COULD NOT FOLLOW THE COURT'S INSTRUCTIONS. ISSUE SEVENTEEN: THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S CHALLENGE FOR CAUSE OF VENIREMAN DAVID HOFFMAN AFTER HE INDICATED A BIAS AGAINST THE APPELLANT AND THAT HE WOULD PERSONALIZE THE CRIME IN LIGHT OF HIS OWN DAUGHTERS. ISSUE EIGHTEEN: THE TRIAL COURT ERRED BY IMPANELING AN ALTERNATE JUROR DURING THE PUNISHMENT PHASE WHO DID NOT DELIBERATE AT GUILT/INNOCENCE. ISSUE NINETEEN: THE TRIAL COURT ERRED BY WRONGFULLY EXCUSING VENIREMAN URBANO R. GOMEZ BASED ON INCOMPLETE INFORMATION THAT HE HAD LIED ON HIS JUROR QUESTIONNAIRE. ISSUE TWENTY: THE TRIAL COURT ERRED BY DENYING THE APPELLANT’S BATSON MOTIONS WHICH WERE BASED ON THE GOVERNMENT’S USE OF ITS PEREMPTORY CHALLENGES TO REMOVE EVERY BLACK PROSPECTIVE JUROR FROM THE LIST OF 52 QUALIFIED VENIREMEN. ISSUE TWENTY-ONE: THE TRIAL COURT ERRED IN LIMITING THE APPELLANT’S EVIDENCE ON SURREBUTTAL. ISSUE TWENTY-TWO: THE TRIAL COURT ERRED IN ADMITTING VICTIM IMPACT INFORMATION SO UNDULY PREJUDICIAL AS TO RENDER THE TRIAL FUNDAMENTALLY UNFAIR. ISSUE TWENTY-THREE: THE TRIAL COURT ERRED IN MAKING A "FACTUAL FINDING" THAT THE APPELLANT IS NOT MENTALLY RETARDED. ISSUE TWENTY-FOUR: THE EVIDENCE ADDUCED AT THIS TRIAL IS FACTUALLY INSUFFICIENT TO SUPPORT THE SENTENCE OF DEATH. ISSUE TWENTY-FIVE: THE DISTRICT COURT ERRED BY FAILING TO DECLARE THE FEDERAL DEATH PENALTY ACT OF 1994 UNCONSTITUTIONAL.
STATEMENT OF THE CASEA. Proceedings Below On October 26, 1994, the United States District Court for the Northern District of Texas issued a criminal complaint charging Bruce Webster, Orlando Hall, Steven Beckley and Demetrius Hall with kidnapping and aiding and abetting, in violation of 18 U.S.C. Section 1201(a)(1) and (2). (TR.1:1).[1] On November 4, 1994, a six-count superseding indictment was returned, charging Webster, Hall, D. Hall, Beckley, and Marvin Holloway with kidnapping in which a death occurred, inviolation of 18 U.S.C. Section 1201(a)(1) and (2) in Count 1, and with various noncapital offenses in the remaining Counts. (TR.1:15-34). On February 23, 1995, the Government filed notice of its intention to seek the death penalty against Webster under the Federal Death Penalty Act of 1994, 18 U.S.C. Section 3591 et seq. (TR.1:55-60). On February 27, 1996, the Government filed its amended notice of its intention to seek the death penalty against Webster. (TR.8:936-942). Trial commenced on March 5, 1996, (TR.8:1036); and continued until April 4,1996, when jury selection was concluded, the jury was seated, and trial was recessed. (TR.10:1237). On June 3, 1996, trial resumed. (TR.10:1337). Evidence began on June 4, 1996, (TR.11:1391); and continued until June 7, 1996, when the jury returned its guilty verdicts for Webster as to Counts 1,2, and 6 of the indictment. (TR.11: 1405; 1406). A separate punishment hearing on Count 1 of the indictment began before the same jury on June 11, 1996. (TR.11:1425). Trial continued until June 20, 1996, when the jury returned their special punishment findings to the Court and Webster was sentenced to death. (TR.11:1515-1530). On September 24, 1996, Webster was sentenced on the remaining counts of the indictment. (TR.12:1620). On September 30, 1996, Webster filed his Notice of Appeal. (TR.12: 1629-1630). On November 27, 1996, Webster’s motion for new trial was denied. (TR.12:1641). This appeal was then docketed in this Court as Number 96-11224. B. Statement of the Evidence On September 21, 1994, Orlando Hall flew from Little Rock, Arkansas to the Dallas-Fort Worth area where he met his brother Demetrius Hall and Stephen Beckley for the purpose of buying some drugs. (R.19:22-24). The drug dealers, Stanfield Vitales and Neil Rene, cheated them by taking their $5,000 but never supplying the drugs. (R.19-213). Vitales and Rene were brothers of the victim of this offense, Lisa Rene. The Halls and Beckley decided to try to force the drug dealers to return their money so they telephoned the Appellant, Bruce Webster, and had him also come to the Dallas-Fort Worth area to help them. (R.18-89). Webster is mentally impaired and therefore Marvin Holloway, a part of the drug operation in Arkansas, bought the airline ticket for Webster and drove him to the airport. (R.20-141). On September 24, 1994, the two Hall brothers, Beckley, and Webster went to the drug dealers’ apartment. The two brother-dealers were not home, but their sister was. The four men broke into the apartment and, when they could not find the two brothers, abudicted the young woman and drove her to Arkansas. (R.18: 106-113). The woman was was sexually assualted on the journey and after they arrived in Pine Bluff. (R.18:124, 125, 134). The men held Miss Rene at motels in Pine Bluff for a period of time, then Orlando Hall, Beckley, and Webster took her to a park where they killed her by striking her with a shovel and then burying her. (R.19:102-107). Based on information from the victim’s brothers, Demetrius was arrested and then Beckley and Orlando surrendered to the police. (R.19-128). The Appellant, Webster, was arrested when he drove up to the motel where the girl had been kept. (R.19-248). Webster later gave a statement and led law enforcement officers to the grave, the victim’s clothes, and other physical evidence. (R.20:23, 24, 35). During the penalty phase of the trial evidence showed that Webster had been probated at age 15 for the burglary of a bait shop but this was subsequently revoked when he was charged with an assault and a robbery. (R22-110). Other evidence was introduced showing misconduct while incarcerated and assaultive conduct directed at his girlfriend. (R.22:50-55; 149-160). The main thrust of the penalty phase, however, dealt with Webster’s abused background and mental impairment. There was convincing evidence that Webster’s father physically abused the Appellant, his mother, brothers and sisters to a degree that is almost unimaginable.[2] In addition, there was substantial evidence, including the testimony of five psychologists, that Webster was mentally retarded or at least mentally impaired. The government countered this retardation evidence with testimony from school teachers, prison officials, and others. The evidence adduced at the penalty phase of the trial is considered in detail in Issue Twenty-five. SUMMARY OF ARGUMENTIssue One is a multi-part attack on the jury instructions given at the penalty stage of the trial while the second issue looks to a failure of the guilt-innocence charge. Issues three, four and five all deal with the arrest and search of the Appellant. The sixth issue deals with unadjudicated offenses and the lack of instructions to guide the jurors. Issue seven considers the question of racial discrimination and the government’s notice of intent to seek a death sentence. The eighth point deals with the court’s refusal to grant post-trial discovery regarding a punishment witness who may have been rewarded by the lead investigator with a conjugal visit. The ninth issue attacks the court’s order that the Appellant submit to a mental exam conducted by the government while issues ten and eleven address gruesome photographs and a videotape. Issue twelve is a wrongfully sustained Witt challenge while thirteen through seventeen all deal with challenges for cause that were wrongfully denied. Issue eighteen involves the substitution of a juror during the punishment phase of the trial, while number nineteen deals with the wrongful excusal of a venireman because of errors on his jury questionnaire. Issue twenty is a Batson matter, while number twenty-one involves the court limiting the defense to one expert witness on surrebuttal. Number twenty-two complains of victim impact material while twenty-three involves the court’s finding that the Appellant is not retarded as a matter of fact. Issue twenty-four argues the evidence is factually insufficient to support a death sentence while issue twenty-five seeks involves the constitutionality of the Federal Death Penalty Act of 1994. ISSUE ONETHE TRIAL COURT ERRONEOUSLY INSTRUCTED AND MATERIALLY MISDIRECTED THE JURY AT THE PENALTY PHASE OF APPELLANT’S TRIAL. Generally, this Court reviews alleged errors in jury instructions for an abuse of discretion. U.S. v. Coleman, 997 F.2d 1101, 1105 (5th Cir. 1993), citing U.S. v. Chaney, 964 F.2d 437 444 (5th Cir. 1992). In determining the adequacy of such instructions, the Court reviews the charge as a whole, to determine whether it is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them. U.S. v. Laury, 985 F.2d 1293, 1300 (5th Cir. 1993). "A district court by definition abuses its discretion when it makes an error of law." Koon v. U.S., 116 S.Ct. 2035, 2047 (1996), citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). This Court also reviews a district court’s refusal to give a proposed jury instruction for abuse of discretion. U.S. v. Pennington, 20 F.3d 593, 600 (5th Cir. 1994). The refusal to give a requested jury instruction constitutes an abuse of discretion and reversible error where "... the instruction (1) was substantially correct, (2) was not substantially covered in the charge delivered to the jury, and (3) concerned an important issue so that the failure to give it seriously impaired the defendant’s ability to present a given defense." Id. Finally, for claims that the court has incorrectly applied constitutional standards, this Court reviews the constitutional claims de novo. U.S. v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995); U.S. v. Shaw, 920 F.2d 1225, 1228 (5th Cir.1991). In connection with the Court’s penalty phase jury instructions, the Appellant filed numerous objections and requested instructions, contained in several different motions, including: (1) Defendant’s Objections to the Government’s Proposed Penalty Phase Jury Instruction (TR.7:845-858); (2) Defendant’s Requested Penalty Phase Instructions (TR.7:859-897); (3) Defendant’s Proposed Special Findings on Mitigating Factors (TR.11:1466-1471); (4) Defendant’s Supplemental Requested General Instructions for the Finding of a Mitigating Factor (TR.11:1472-1477); (5) Defendant’s Requested Penalty Charge Number 27 (TR.11:1478-1480); and (6) Defendant’s Proposed Special Issues Forms for Aggravating Factors (TR.11:1481-1482). Pursuant to the Court’s orders, Appellant’s Counsel and the Government’s Counsel also filed a Composite of Proposed Penalty Phase Jury Instructions (TR.1:1429-1465). This composite charge, indicated "short-hard" renditions of the Government’s proposed jury instructions together with Appellant’s proposed jury instructions, and objections. The Court adopted a procedure whereby he used a copy of this composite charge to record his rulings on the Appellant’s requested instructions and objections. The Court included this document in the trial record as Court’s Ex. 8 to clearly demonstrate the rulings that the Court made in regard to Appellant’s objections and requested instructions. (R.26:221). As this document was made an exhibit, and not filed in the transcript of this trial, Appellant shall reference these rulings of the Court by referencing to the Court’s exhibit, and to the page number where the ruling is found. While Appellant respectfully submits that the trial court erred in overruling each of Appellant’s objections and jury instructions, he shall confine his arguments on this point of error, to those particular areas where the Appellant believes the errors to be so egregious that reversal of the death sentence is mandated.
1.The Trial Court Erred in Refusing to Instruct the Jury That In Considering Aggravating Factors They Must Look Only the Conduct of the Appellant. In his Defendant’s Requested Penalty Charge Number 27 (TR.11: 1478-1480), the Appellant requested that the court include an instruction in its penalty phase jury instructions to the effect that the jury could look only the conduct of this Appellant in deciding the aggravating factors. The Court denied this request. (Court’s Ex. 8, pg. 17). Additionally, the Court overruled Appellant’s objection on this basis as well. (R.7:849); (Court’s Ex. 8, pg. 11). Appellant’s basis for such requests is the requirement enunciated in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, (1987), that in determining the death penalty, the sentencer must look only to the culpability and the participation of the individual defendant on trial. Enmund, supra at 801. Because the Court found the evidence lacking in Enmund on the issue of the defendant’s intent, the Court did not reach the other critical inquiry before it: "... whether the degree of Enmund’s participation in the killings was given the consideration required by the Eighth and Fourteenth Amendments." Id., at 787, fn. 4. (emphasis added). In Tison, the Supreme Court expanded upon the Enmund doctrine, indicating that: "... major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Tison, supra at 158. (emphasis added). Tison reaffirms Enmund’s two-pronged focus in examining the death penalty decision-making process, upon the personal participation (conduct) of the defendant, as well as his personal intent (state of mind). In this case, the Court’s denial of Appellant’s requests to limit the jury’s consideration in determining the aggravating factors to only the conduct, and the state of mind of this defendant, was violative of the requirements of the Eighth and Fourteenth Amendments as interpreted by Enmund and Tison. The fact that the Court did limit the jury’s consideration as to the intent of this defendant, and not that of any alleged co-defendant’s, was insufficient in the absence of a similar limitation as to their consideration of only the conduct of this defendant. This error is particularly egregious, when viewed in light of the jury’s failure to find the intent issues that Appellant had (1) "intentionally killed the victim;" or (2) "intentionally inflicted serious bodily injury that resulted in death." (TR.11: 1515). The only affirmative findings by the jury of the "elements of intent," submitted were for those factors dealing with "engaging in conduct intending death to result or that lethal force would be used;" and, "engaging in conduct knowing that it created grave risk of death." (TR.11:1516). It is also important to note that the jury did not find the statutory aggravating factor that Appellant had "... caused the death of Lisa Rene ... ." (TR.11:1517). The other two statutory aggravating factors submitted to the jury, were phrased only in terms of the Appellant’s having "committed the offense," as opposed to having caused the death. (TR.11:1517). It is exceedingly important to realize, that all of the "elements of intent" and "statutory aggravating factors" that spoke directly to the Appellant’s actual participation in the causing of the death of the victim, were not found by the jury! Thus, the factors that were affirmatively found by the jury can be interpreted to denote only that the jury found that the Appellant participated in the kidnapping offense, and not in the actual causing of the victim’s death. This is particularly important, in view of the conflicting evidence introduced by the Government as to the Appellant’s actual participation in the killing (i.e.: the co-defendant Beckley’s testimony that the Appellant did participate, as opposed to the Appellant’s own oral statements and written confession indicating that he did not participate in the actual killing of the victim). The Court similarly failed to limit the jury’s consideration to only the Appellant’s conduct in regard to the "non-statutory" aggravating factor that was found by the jury dealing with: "The effect of the offense on Lisa Rene and her family, namely, that the commission of the offense caused emotional injury and anguish to Lisa Rene, and emotional injury, anguish, sorrow and loss to her family." (TR.11:1499). The failure to include such limitation in the jury’s consideration of the aggravating factors, and the elements of intent, renders the jury’s verdict constitutionally infirm, compelling that Appellant’s death sentence be vacated.
2.The Court’s Erroneous Instructions Resulted In The Multiple Weighing of the Elements of Intent. The Appellant objected to the court’s submission of the "elements of intent" on both a constitutional basis, (i.e. that they failed to significantly narrow the class of murders to which the death penalty would apply, due to their mere repetition of an element of the offense) (TR.7:849); and, as to the manner of the Court’s submission of these four separate "elements of intent." The basis for his objection to the manner of submission was that it did not require the jury to elect a single element from the options provided them and it did not require unanimity of the jury in finding the necessary element. (TR.7:845); (Court’s Ex. 8, p.11). The Appellant also requested a jury instruction that would ensure unanimity, and the finding of only a single factor by the jury. (TR.7:868-869, Court’s Ex. 8, p.12). The Court overruled all of Appellant’s objections. (Court’s Ex.8, pp. 11-12, TR.11:1494-1495). By failing to grant Appellant’s objections and specially requested instructions, the Court’s Charge allowed the jury to return affirmative findings as to two separate elements of intent. (TR.11:1515-1516). In so doing, it also allowed the jury to "double-weigh" this single factor in making the death penalty decision. This resulted in an "artificially inflated" view of the aggravating evidence and impermissibly "skewed" the "weighing" process. Stringer v. Black, supra 112 S.Ct. at 1136.
3.The Trial Court Erred in Submitting Duplicative Aggravating Factors. In the Court’s Charge on punishment, the Court submitted a statutory aggravating factor dealing with commission of the offense in an especially "heinous, cruel and depraved manner." (TR.11: 1496). The Court also submitted a "non-statutory" aggravating factor dealing with the effect of the offense on Lisa Rene and her family. (TR.11:1499). The jury ultimately returned affirmative findings on both of these submissions. (TR.11:1517; 1519). In the definitions and explanatory instructions given by the Court in connection with the "heinous, cruel and depraved" statutory aggravating factor, the Court specifically indicated that a finding of "torture" or "serious physical abuse" would be sufficient for an affirmative finding on this issue, both were not required to be present. (TR. 11:1496). The Court additionally indicated that: "Torture may include mental as well as physical abuse of the victim. In either case, the victim must have been conscious of the abuse at the time it was inflicted. Furthermore, the defendant must have specifically intended to inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim." (TR.11:1497)(emphasis added). By so directing the jury’s focus in the consideration of this aggravating factor, the Court allowed the jury to "weigh" the same factor twice against Appellant, because there is no effective distinction between infliction of "severe mental or physical pain or suffering upon the victim" (authorized by the Court’s instructions for a finding on the statutory aggravating factor), and the "emotional injury and anguish to Lisa Rene" focused upon in the "non-statutory" aggravating factor. Double counting of aggravating factors under a "weighing" scheme, (such as this statute), skews the weighing process and creates the risk that a death sentence will be imposed arbitrarily. U.S. v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1995). When the sentencing body is asked to weigh a factor twice in its decision, a reviewing court cannot "assume it would have made no difference if the thumb had been removed from death’s side of the scale." Stringer v. Black, 503 U.S. 222, 232 (1992). As the Tenth Circuit indicated in McCullah, "the mere finding of an aggravating factor cannot but imply a qualitative value to that factor." Id., at 1112. Additionally, many state courts in administering weighing schemes like the one here, have barred the "double weighing" of dual aggravating factors addressing the same conduct. Such double weighing is "inherently unfair ... a defendant is essentially condemned twice for the same culpable act." Parsons v. Barnes, 871 P.2d 516, 528-29 (Utah), Engberg v. Myer, 820 P.2d 70, 89 (Wyo. 1991)(qualitative value of circumstance is "unjustly enhanced" by recasting as multiple factors); Cook v. State, 369 S.2d 1251, 1256 (Ala. 1978); Provence v. State, 337 So2d 783, 786 (Fl. 1976), Ladner v. State, 584 So2d 743, 763 (Miss 1991), State v. Quisenberry, 354 SE2d 446, 452-52 (NC 1987); Smith v. State, 819 P.2d 270, 278 (Ok.Cr.App. 1991). This Court also followed this line of reasoning in the recent case of U.S. v. Jones, 132 F.3d 232 (5th Cir. 1998), "Such double-counting of aggravating factors creates the risk of an arbitrary death sentence. If the jury has been asked to weigh the same aggravating factor twice the appellate court cannot assume that 'it would have made no difference if the thumb had been removed from death’s side of the scale.'" (Citing Stringer v. Black, supra).
4.The Trial Court Erred in Submitting a Statutory Aggravating Factor In A Manner Inconsistent With the Statute The Court submitted to the jury a statutory aggravating factor purportedly authorized by 18 U.S.C. § 3592(c)(9); to-wit: "the defendant, after substantial planning and premeditation, committed the offense of kidnapping in which the death of Lisa Rene resulted." (TR.11:1496). In its explanatory instructions regarding the finding of this factor, the Court specifically applied the "substantial planning and premeditation" to the kidnapping offense, not to the causing of the death of the victim. (TR.11: 1498) By focusing the jury’s attention on "planning and premeditation" of the kidnapping, as opposed to "planning and premeditation" of the victim’s death, the Court submitted the aggravating factor in a manner not authorized by the statute. 18 U.S.C. § 3592(c)(9) provides: "The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism." (emphasis added). It is important to note, that in their proposed instructions, the Government’s proposed submission on this issue correctly directed the jury’s focus to the "planning and premeditation" of the killing itself. (TR.6:701-701). The Government’s Proposed Special Findings Form also carried forward this factor in the language of the statute. (TR.6:767). The Appellant’s requested instruction on this issue also properly focused the jury’s consideration of "substantial planning and premeditation" on the act of the killing as required by the statute (TR.7:885-887); however, this request was denied by the Court. (Court’s Ex. 8, pp. 16; 17). It is apparent from an examination of Court’s Ex. 8, that the Government’s proposed instruction was modified by the Court, resulting in this misdirection of the jury’s focus. This change was apparently made without a request from either the Government or the Appellant, and despite Appellant’s specially requested instructions denoting the proper form for submission. (Court’s Ex. 8, pp. 14-15). The improper submission was found both in the Court’s Punishment Charge (TR.11:1496-1498), and in the Court’s Special Findings Form. (TR.11:1517). This error by the Court in its penalty phase instructions is critical. By misdirecting the juror’s focus in deciding this statutory aggravating factor, the Court has submitted an improper aggravating factor. The jury found the existence of this factor (TR.11:1517), and then "weighed" it in the death penalty decision. The importance of this error becomes particularly clear, when viewed in light of this Court’s holding in U.S. v. Jones, that the constitutionally mandated "narrowing function" required of death penalty statutes, occurs only during the penalty phase of cases brought under the Federal Death Penalty Act. The presence of an invalid aggravating factor always takes on a critical importance in the context of such a "weighing" statute. Clemons v. Mississippi, 494 U.S. 738, 744-747 (1990). It is also important to note that the Appellant also challenged the inclusion of this factor in the Court’s penalty phase instructions on the basis that it was barred by res judicata and collateral estoppel, due to the failure of the jury to find the existence of this factor during the trial of Appellant’s alleged co-defendant, Orlando Hall, the record which is currently before this Court on appeal as No. 96-10178, the United States of America v. Orlando Hall. The Appellant raised this issue in his objections to the Government’s proposed penalty instructions (TR.7:852), and was also overruled by the Court. (Court’s Ex. 8, p. 16). Importantly, the submission in Hall on this factor was done in a manner consistent with the statutory language of 18 U.S.C. § 3592(c)(9), focusing the jury’s attention on the "substantial planning and premeditation to cause the death of Lisa Rene." That submission was made in essentially the exact same language as was contained in the Government’s proposed instructions that were filed in this case (TR.6:700-702), but which were subsequently modified by the Court. (Court’s Ex. 8, pp. 13-16); resulting in the improper submission on this factor. (TR.11: 1496-1499). Even more importantly, from Appellant’s perspective, the Government’s Notice of Intention to Seek the Death Penalty filed pursuant to the requirements of 18 U.S.C. § 3593(a)(2), set forth their intention to rely upon this aggravating factor in the following terms: "the defendant, Bruce Carneil Webster, committed the offense after substantial planning and premeditation to cause the death of Lisa Rene and to commit an act of terrorism against Lisa Rene." (TR.1:58). When the Government subsequently obtained leave of the Court to amend their death notice, they restated this factor in the same language as was used originally. (TR.8-939). For such reasons, the submission of this aggravating factor in the manner as was ultimately done, was not only improper pursuant to the statute; but also, was done without proper notice to Appellant in this regard, thereby violating his rights to due process and to effective assistance of counsel.
5.The Trial Court Erred In Failing To Submit Mitigating Factors Requested by Appellant. At the penalty phase of Appellant’s trial, Appellant requested that a number of mitigating factors be submitted to the jury. Some of these requests were granted, others were denied. Among those mitigating factors which Appellant requested to be submitted to the jury, but which the Court refused to submit, were the following:
(TR.7:876-877, TR.11:1466-1471). These requests were denied by the Court, (Court’s Ex. 8; pp. 24-25); and these factors were not submitted to the jury. (TR.11:500-501, TR.11:1520-1523). The Appellant orally reurged the submission of the mitigating factor dealing with his being sentenced to life in prison (R.27: 5), and once again that request was refused.(R.27:5). During the trial of Appellant’s case, there was evidence specifically raising each of these mitigating factors. As to the factor dealing with the presence of "a mental disease, illness, defect or personality disorder," there was a great deal of evidence introduced supporting the existence of such a problem that was separate and distinct from mental retardation or low intellectual functioning (which were addressed in separate mitigating factors). For example: Appellant’s Arkansas mental health records suggest "he may have been suffering from a major mental illness," (TR.23: 188); Dr. Finn testified to Appellant’s suffering from hallucinations, (TR.23:205), and suggested that Appellant suffers from emotional or psychological problems, (R.23:208); the Arkansas mental health records indicate Appellant suffers from an antisocial personality disorder, and possibly schizophrenia with paranoid ideation, and Dr. Finn saw many of the criteria for such disorder (TR.23:214-22; 242); anti-psychotic medication was prescribed for Appellant, (TR.23: 234); Dr. Fulbright testified to evidence of "right hemisphere impairment" in the Appellant’s brain, (TR.24:141-42; 148-49); Dr. Cunningham found psychological disorders, and possibility of a psychotic disorder dating back to 1992, (TR.24: 188; 189-191); Dr. Parker, the Government’s expert, testified that it was possible that Appellant had been psychotic, (R.26:64), and some of the things Appellant told Dr. Parker raised a question for him regarding schizophrenia, as did the Arkansas mental health records, (R.26: 155-57). There was lengthy testimony from Drs. Cunningham, Finn and Coons as to the effects that the presence of schizophrenia or personality disorders might have upon Appellant. In regard to the "personal qualities" of the Appellant, there was testimony from his family and friends as to these characteristics, including: Mark Webster - has things worth saving, (TR.23:22); Luketha Frazier - he’s a good person, used to play the drums in church, his life is worth saving to his family, (R.23:78-79); Leonda Daniels - he always treated her well, was "nice and sweet," he was "there for her," she cares for him, he has "things about him worth saving," he has two kids, (R.23:93-94); Beatrice Webster - there are good things about the Defendant, he will go to church, he remembers her on Mother’s Day and birthdays, he’s a "good son," has nice manners, and he is "not the bad person you have seen him to be," (R.23: 155-156). Such testimony raises the mitigating factor requested, in that it specifically addresses those values of Appellant which are of value to his family and friends. These are separate and distinct issues from any issue regarding his "talents, capabilities or qualities which are of some value to society ..." which was addressed in a separate mitigating factor submitted to the jury. The evidence regarding Appellant’s background which might engender "mercy" from the jury was overwhelming, and too extensive to attempt to set out in detail. The fact that the only alternative sentence available for Appellant for this offense was life without the possibility of parole or release was also clearly before the jury in the testimony of Beatrice Webster. (R.23:155). "[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process clause." Gardner v. Florida, 430 U.S. 349, 358 (1977). Due process requires that the sentencing authority be fully and correctly apprised of its sentencing discretion and powers, prior to exercising that discretion and those powers. Hicks v. Oklahoma, 447 U.S. 343, 346-47 (1980). The sentencer must have the ability to give effect to all mitigating evidence. Eddings v. Oklahoma,455 U.S. 104 (1982); Penry v. Lynaugh, 492 U.S. 302 (1989)(reversing sentence on the grounds that the Texas special issue procedure unconstitutionally precluded the jury from full consideration of mitigating evidence of childhood abuse and mental retardation). Pursuant to the Court’s instructions, the only way that the jury could give effect to mitigating evidence was by the finding of mitigating factors, and by the "weighing" of these factors in the death penalty decision. (TR.11:1499-1506). The refusal of the Court to submit the requested mitigating factors which were raised by the evidence, denied the Appellant the ability to have the jury "weigh" such factors in the death penalty decision. The "catch-all" provision, found in the final mitigating factor submitted to the jury was insufficient to achieve this purpose. As indicated in State v Cummins¸389 S.E.2d 66, 80 (N.C. 1990), the failure to list the mitigating circumstances in writing can impermissibly signal to the jury that these factors are "less worthy" of consideration than the factors submitted in writing (even though the Court had verbally instructed upon them). See also: State v. Johnson, 257 S.E. 597, 616-17 (N.C. 1979). It is also immaterial that some of the mitigating factors which were submitted may have tangentially dealt with this evidence. Other courts have held that despite the strict limitations on the treatment of aggravating factors, "'[t]he court should instruct the jury, that the same evidence may be used to prove multiple mitigating factors.'" State v. Biegenwald, 594 A.2d 172, 197 (N.J. 1991), quoting State v. Pennington, 575 A.2d 816 (N.J. 1990). Although the Court’s general instructions within the jury charge itself indicated that life without parole was the only other punishment available under the statute, the charge it as given provided the jury with no mechanism whereby they could give effect to that fact in their decision-making. This rendered the process fundamentally unfair. See: Simmons v. South Carolina, 114 S.Ct. 2187 (1994). The Appellant requested the mitigating factor relating to the jury’s extension of "mercy," so that the jury would have the ability extend mercy if they felt it was appropriate based upon Appellant’s mitigating evidence; thus the jury’s decision in this regard would necessarily have been grounded in the circumstances of Appellant’s upbringing, dysfunctional family background and intellectual impairment. The Court’s denial of this factor, left the jury with no mechanism by which to extend "mercy." The Court also denied Appellant’s requested instruction (TR.7:881), which indicated: "... even where a sentence of death is fully supported by the evidence, Congress has nevertheless given each of you the discretion to temper justice with mercy." (Court’s Ex. 8, p. 28); (TR.11:1504-1506). Importantly, the Court specifically instructed the jury: "... in determining whether to recommend the death sentence, you must avoid any influence of passion prejudice or sympathy." (TR.11:1505). Such specific instruction, coupled with the denial of Appellant’s requested instruction, and the denial of his requested mitigating factor, effectively denied the jury any means by which to grant such an extension of "mercy" to the Appellant, should they have felt that it was appropriate. By failing to provide the jury with a vehicle by which to "extend mercy" in this manner, when such response would necessarily be grounded in the mitigating evidence that the jury heard, the Court erred. See: California v. Brown, 479 U.S. 538 (1987); Saffle v. Parks, 494 U.S. 484 (1990).
6.The Trial Court Erroneously Instructed the Jury On The Manner Of Finding and Weighing Mitigating Factors. In the court’s charge, the Court instructed the jury in regard to the consideration of mitigating factors, that:
(TR.11:1500, emphasis added). The Court further indicated that a finding with respect to a mitigating factor could be made "... by any one or more of the members of the jury, and any member who finds the existence of a mitigating factor may consider such factor established regardless of whether any other jurors agree that such mitigating factors has been established." (TR.11:1503, emphasis added). In regard to the manner in which the jurors were to "weigh" such mitigating factors, the Court indicated: "In determining whether a sentence of death is appropriate, each of you must weigh, in your own mind, any aggravating factor or factors that the jury unanimously finds to exist beyond a reasonable doubt - whether statutory or non-statutory - against any mitigating factor or factors that you individually find to exist by a preponderance of the evidence and information." (TR.11:1504, emphasis added). The Appellant objected to such instructions on the basis that it failed to require that once one or more of the jurors had found a mitigating factor to have been proved by a preponderance of the evidence, then all of the jurors must consider such mitigating factor so proved, in the weighting of the mitigating and aggravating factors. (TR.7: 855). This objection was overruled by the Court. (Court’s Ex. 8, p. 30). 18 U.S.C. § 3593(d) specifically provides that a single juror may make a finding as to the existence of a mitigating factor. 18 U.S.C. § 3593(e), then specifically provides: "... the jury, or if there is no jury, the Court, shall consider whether all the aggravating factor of factors found to exist sufficiently outweigh all the mitigating factor or factors found to exists ... " (emphasis added). This provision clearly states, in mandatory language, that once a finding of a mitigating factor is made pursuant to Section 3593(d), then the jury as a whole must consider that factor to have been found for purposes of the weighing. The Court’s instructions failed to adhere to this statutory requirement. Once a mitigating factor has been established, then the sentencer must consider it, even though it may be assigned whatever weight it is deemed to deserve. Eddings v. Oklahoma, supra, at 113-114. See also Parker v. Dugger, 498 U.S. 308 (1991); Hitchcock v. Dugger, 481 U.S. 393 (1987); Penry v. Lynaugh, supra. For each of the foregoing errors in the Court’s instructions to the jury at the punishment phase of Appellant’s trial, the Appellant’s death sentence must be vacated. ISSUE TWOTHE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY AT GUILT/INNOCENCE REGARDING THE BENEFIT THAT WAS THE MOTIVE FOR THE KIDNAPPING. Generally, this Court reviews alleged errors in jury instructions for an abuse of discretion. U.S. v. Coleman, 997 F.2d 1101, 1105 (5th Cir. 1993). In determining the adequacy of such instructions, the Court reviews the charge as a whole, to determine whether it is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them. U.S. v. Laury, 985 F.2d 1293, 1300 (5th Cir. 1993). "A district court by definition abuses its discretion when it makes an error of law." Koon v. U.S., 116 S.Ct. 2035, 2047 (1996), citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). The indictment in Appellant's case alleged that Appellant and others "... did willfully and unlawfully seize, confine, inveigle, kidnap, abduct and carry away and hold for ransom, reward and otherwise, Lisa Rene ... ." (TR.1: 27). In response to such indictment, the Appellant filed a motion requesting that the Court order the filing of a bill of particulars. (TR.1:148-151). In this Motion, the Appellant alleged that a bill of particulars was necessary to enable to him to understand and prepare his defense "without prejudicial surprise at trial." (TR.1:148). The Motion further indicated that the indictment counts were sketchy and vague, and thus the failure of the government to furnish the information sought would be a denial of due process, and of the rights guaranteed by the Fifth, Sixth, and Eight Amendments. (TR.1:150). The Government opposed Appellant’s requests, (TR.2:224-234); and the Court denied Appellant's Motion. (TR.7:907). At the conclusion of the Government’s case-in-chief on guilt/innocence, the Appellant made an oral motion for an affirmative finding of "not guilty," in regard to the kidnapping count: "... on the basis that they have failed to prove all the essential elements of the indictment ... they have failed to prove the ... motivation for the kidnapping as set out in the indictment ... the evidence is insufficient to support that portion of the indictment." (R. 19:96). The Court denied Appellant’s oral motion. (R. 19:96). In discussing the Court’s guilt/innocence charge, the Appellant objected to any charge or application of the charge "regarding any other type of benefit other than ransom or reward," on the basis that there was no pleading in the indictment of any other benefit other than ransom or reward; thus there was not an allegation in the indictment that would support that charge. Appellant further asserted that such other benefit must be pled in the indictment. Since there was no other benefit other than "ransom or reward" specifically set out in the indictment, he objected to any definitions or instructions which would allow the jury to convict on some other benefit. (TR.19: 3-4). The Appellant further objected to the Court’s submission, on the basis that the failure of the indictment, and of the Court’s charge, to specify the nature of the "other benefit" which could constitute the motive for the kidnapping, would allow the jury to return a verdict of guilty, without the necessity of unanimity as to the benefit pled and proved. (R.19:4-5). The Court overruled all of Appellant’s objections on these points. (R.19:8). When the Appellant later reurged his objections on these bases, and they were once again overruled by the Court. (R. 19:98). During their arguments to the jury on guilt/innocence, the Government's Counsel argued the existence of a number of alternative "benefits" as possible motives for the kidnapping, indicating further that they did not have to prove "ransom" as the term was traditionally used; and further still, that they did not have to show any monetary benefit at all. (R.19:123-124). The Government went further, suggesting to the jury a number of possible "non-monetary" benefits which would be sufficient motive upon which the jury could convict Appellant of the kidnapping count; including: (1)retribution; (2)ransom or reward (in terms of the return of the $5000 or the marijuana that was "ripped off" from Orlando Hall); (3)sexual gratification; and (4)that the defendants simply could not let the victim go, because they had "done so much to her." (R.19:123-124). During his arguments, Appellant’s Counsel specifically argued the failure of the Government to prove the "ransom or reward" alleged in the indictment. (R.19:140). In rebuttal, the Government’s Counsel once again suggested the non-monetary motives of "revenge" and "greed," as benefits sufficient to sustain a conviction upon the kidnapping charge. (R.19:144). Appellant acknowledges that it is well settled that the kidnapping statute covers non-pecuniary motives. Gooch v. U.S., 297 U.S. 124, 126-129 (1936); U.S. v. Healy, 376 U.S. 75, 81 (1964). This Court has previously recognized non-pecuniary motives as being sufficient "benefits" under the statute, in a number of different cases where such non-pecuniary benefits had been alleged in the indictment. U.S. v. Crosby, 713 F.2d 1066, 1070-71 (5th Cir. 1982)(benefit alleged "for purposes of influencing the actions of the Veteran’s Administration"); U.S. v. White, 617 F.2d 1131 (5th Cir. 1980)(purpose alleged was "sexual assault"); U.S. v. Williams, 998 F.2d 258, 262 (5th Cir.1983)kidnapping for "immoral purpose"). There is also authority from this Court that the statutory language of "for ransom, reward or otherwise," comprehends "any purpose at all" as a possible motivation for the kidnapping. Clinton v. U.S., 260 F.2d 824 (5th Cir. 1958). Thus, in addressing questions of the sufficiency of the evidence to sustain the conviction, proof of essentially any purpose for the kidnapping has been held sufficient to prove an allegation of holding "for ransom, reward or otherwise." U.S. v McBryar, 553 F.2d 433, 434 (5th Cir. 1977)(proof of holding victim for "sexual gratification" held sufficient to prove allegation of "for ransom, reward or otherwise"). Some other Circuits have held, that since the language in the statute regarding "for ransom, reward, or otherwise" encompasses essentially any purpose, then the motivation for the kidnapping is not an element of the offense that must be pled in the indictment or proven at trial. Gawne v. U.S., 409 F.2d 1399, 1403 (9th Cir. 1969), U.S. v. Atchison, 524 F.2d 367 (7th Cir. 1975). However, this position is inconsistent with later decisions of this Court indicating that the benefit that is the motivation for the kidnapping must be proven as an element of the offense. U.S. v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995). In assessing the effect of a variance between the allegations of the indictment and the proof tendered at trial, appellate courts generally will not reverse for such a variance "... unless 1)the defendant establishes that the evidence that the government offered at trial varied from what the government alleged in the indictment, and 2)the variance prejudiced the defendant’s substantial rights." U.S. v. Jackson, 978 F.2d 903, 911 (5th Cir. 1992). The making of specific allegations in the indictment of any "non-monetary" benefits upon which the Government intends to rely as motivation for an alleged kidnapping is accepted practice. See: Bailey v. U.S., 401 F.2d 1209, 1217 (10th Cir. 1969)(sexual gratification alleged in the indictment as the purpose for the kidnapping); U.S. v. Crosby, supra; U.S. v. White, supra; U.S. v. Williams, supra. This Circuit’s Pattern Jury Instructions (Criminal Cases), Section 2.59, suggests such pleading: ("that the defendant held such person for ransom [reward][some benefit] that the defendant intended to derive from the kidnapping"). 1997 Edition, Prepared by the Committee on Pattern Jury Instructions, District Judges Association, 5th Circuit. Additionally, in Modern Federal Jury Instructions (Criminal), Sand, Siffert, Loughlin, and Reiss (1993), Vol.1A, Section 42.01, pp. 42-15 to 16; the authors also endorse such practice; as do the authors of Federal Jury Practice and Instructions (Criminal), (4th Ed.), Devitt, Blackmar, and O’Malley, Vol. 2, Sections 39.01 - 39.05, pp. 468 - 480. Several earlier cases have indicated that such a specific pleading might be unnecessary, as a motion for a bill of particulars pursuant to Rule 7(f) F.R.C.P., could be used to obtain the information regarding the "non-monetary" benefits upon which the Government intended to rely. U.S. v. Bentley, 310 F.2d 685, 686 (6th Cir. 1962), Clinton v. U.S., supra, at 825; U.S. v. Atchinson, supra, at 371. This reasoning now seems inapplicable, in light of the position that this Court has taken in its more recent decisions, indicating that the purpose or motivation for the kidnapping is an element of the offense which must be pled in the indictment, and proved at trial "as alleged in the indictment." In this case, the indictment alleged the purpose or motivation only in the conclusory terms: "for ransom, reward or otherwise." Though the court’s charge required proof beyond a reasonable doubt of the benefit alleged in the indictment, the charge wholly failed to specify which non-monetary benefit or benefits the Government relied upon for conviction. In so doing, the charge failed to adequately apply the law to the facts; misled the jury; and prejudiced the Appellant. Additionally, by not requiring unanimity among the jurors as what benefit they found to support the conviction, the Court’s instructions failed to require the unanimous finding of an element that is mandatory. While the Government may clearly charge more than one alleged motivation for the kidnapping in their indictment, it is necessary that the jury unanimously find whatever benefit that has been alleged; and the instructions in this case failed to effect that purpose, resulting in a denial of Appellant’s right to due process. These failings were particularly harmful to Appellant in light of the testimony from the Appellant’s alleged co-defendants, Beckley and Hall, to the effect that there was no prior discussion of, or agreement to, commit the kidnapping of Lisa Rene for any particular benefit. The Court’s errors require that Appellant’s conviction be reversed. ISSUE THREETHE DISTRICT COURT ERRED BY FAILING TO SUPPRESS THE FRUITS OF A SEARCH OF THE APPELLANT AND HIS AUTOMOBILE FOLLOWING AN ILLEGAL AND UNCONSTITUTIONAL ARREST OF THE APPELLANT. ISSUE FOURTHE DISTRICT COURT ERRED BY FAILING TO SUPPRESS THE FRUITS OF A SEARCH THE CONSENT FOR WHICH WAS THE RESULT OF AN UNCONSTITUTIONAL ARREST. ISSUE FIVETHE DISTRICT COURT ERRED BY FAILING TO SUPPRESS THE ORAL AND WRITTEN STATEMENTS OF THE APPELLANT THAT WERE THE RESULTS OF AN UNCONSTITUTIONAL ARREST. These three points of error are related and presented together for the purposes of arguments and the citing of authorities.[3] In general, the factual bases for a motion to suppress is reviewed by an appellate court on the basis of clear error, while the constitutionality of the officers' actions are considered de novo. U.S. v. Tompkins, 130 F.3d 117 (5th Cir.1997), citing Ornelas v. United States, 517 US 690, 116 S.Ct. 1657, (1996). Regarding the review of a district court's determination of reasonable suspicion and probable cause when evaluating the constitutionality of investigative stops and searches under the Fourth Amendment, a two-tier standard of review is to be employed: The ultimate conclusion on reasonable suspicion or probable cause is a mixed question of law and fact and is reviewed de novo, while the events leading up to the search or seizure, i.e., the historical facts, are reviewed for clear error, giving "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 116 S.Ct. at 1663. The errors complained of here arose from the arrest of the Appellant by five agents of the Federal Bureau of Investigation (FBI) at about 2:43 a.m on Friday, September 30, 1994.[4] This event took place in front of room 426 of the Pine Bluff Motel in Pine Bluff, Arkansas. One week earlier, on September 24th at a little after 8:00 p.m., Lisa Rene had been kidnapped from her apartment in Arlington, Texas. FBI agents and personnel from the Arlington police department went to the Pine Bluff Motel at about 1:30 or 2:00 a.m. on September 30th after receiving information that Miss Rene had been held in room 513 of the Pine Bluff Motel. The Arlington officers processed that room for evidence while the FBI agents searched the other rooms and the areas around the motel. Special Agent Eric Mason, an evidence technician, had been told that a black male by the name of "B-Love" had been with Miss Rene and so the agents were seeking to interview this "B-Love." A security guard at the motel told Agent Mason that Bruce Webster, the Appellant, was known as "B-Love" and described him and the vehicle he was driving. When the Appellant drove into the motel parking area and exited his car in front of room 426, the five agents ran up to him with guns drawn, ordered him to the ground, handcuffed him and put him in the back of an FBI car. Since they still did not know if this person was Bruce Webster, the agents kept him handcuffed in the car until he was identified by a Pine Bluff Police lieutenant who came on the scene and knew the Appellant by sight. The agents still had no knowledge of how, if at all, the Appellant was associated with the kidnapping and so they continued to hold him, handcuffed, in the back of the car until Agent Garrett Floyd of the FBI and Arlington Detective Jim Ford returned to the motel about two hours later. While the Appellant was on the ground and being handcuffed, surrounded by five FBI agents and other police personnel, all of whom had their guns drawn, he was asked if he had any guns or needles on him. The Appellant replied that he had only some marijuana in his pocket which, after the agents stood him up, they removed from his pants' pocket. One of the FBI agents then asked if they could search the Appellant's car and he consented. The agents then broke the lock on the trunk of the Appellant's car and discovered two handguns and some license plates. At about 4:00 a.m. Agent Floyd and Detective Ford came to the motel. These were the first persons to arrive who had sufficient knowledge of the kidnapping to be able to intelligently ask questions about it. Floyd and Ford took the Appellant into a motel room, read him his Miranda rights for the first time, and questioned him. A decision was then made to have the Pine Bluff officers take custody of the Appellant and to hold him in a local jail. Subsequently the Appellant made numerous oral statements, a written statement, and led the agents to the body and other evidence associated with the crime. It is the Appellant's position that his initial arrest by Agent Mason and the other FBI personnel violated the Fourth Amendment of the Constitution and, therefore, all of the evidence that flowed from that event was tainted and inadmissible. These included the admission at trial of the following:
The applicable law arises in large part from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), which authorizes law enforcement agents to briefly detain individuals to resolve ambiguous circumstances and to search these people to the extent necessary to ensure the officers' safety during the investigative stop. Terry, 392 U.S. at 23, 88 S.Ct. at 1881(n. 21). In order to square with the Fourth Amendment, however, such a detention must be based on reasonable suspicion and supported by particular and articuable facts which, taken together with rational inference from those facts, reasonably warrant the intrusion into the individual's privacy. U.S. v. Galberth, 846 F.2d 983, 989 (5th Cir. 1988). The Appellant fully recognizes that "reasonable suspicion" does not necessarily rise to the level of probable cause. Reasonable suspicion, however, is not a meaningless phrase but rather one that entails some minimal level of objective justification for making a stop, that is, something more than an inchoate and unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, (1989). In other words, the officers, based on the totality of the circumstances, must have a particularized and objective basis for suspecting that the person being stopped is engaging in criminal activity. U.S. v. Vargas, 643 F.2d. 296, 298 (5th Cir. 1981). The key question becomes, what did the FBI agents know at the time they stopped the Appellant? According to Agent Mason, (the only person who testified at the suppression hearing about the actual seizure of the Appellant), neither he nor any of the other agents at the scene knew enough about the kidnapping case to intelligently question the Appellant. In fact, all Agent Mason knew was that another agent, Todd McCall, had said to him "that supposedly there was a guy named B-Love who had been last seen with [the victim] alive." (R.17 [Feb. 12 Hearing], 93). Mason knew that one of the subjects was being interviewed, but he did not know that person's name. Id. He later learned that Beckley was the cooperating subject and he then assumed that McCall's information had come from him. Id. At the time Agent Mason took the Appellant into custody, he apparently had no information as to the source of Agent McCall's supposition. At the time of the Appellant's arrest, all the arresting agent knew was that another agent had said that some unnamed and unknown person had said "supposedly there was a guy named B-Love" involved in the offense. Agent Mason had no first hand knowledge that would support detaining the Appellant and the information he had obtained from others lacked any semblance of an "indicia of reliability" as required by the case law of this circuit. U.S. v Wangler, 987 F.2d 228, 230 (5th Cir. 1993). Agent Mason had also been told by the motel security guard that Bruce Webster had the nickname of "B-Love or something like that," and that he was approximately five feet eight inches tall, weighed about 150 pounds and had been wearing a black leather cap. (R.17 [Feb.12 Hearing], pp 72-74). The guard also said that Webster was one of four black males who had been staying at the motel and he was staying in room 426, was driving a dark blue, older American four door, rather square-looking car, but he did not know the make or model. (R.17 [Feb. 12th Hearing], 72, 73). In addition, the guard told Agent Mason that Webster was a drug dealer and that he carried a gun. (R.17 [Feb. 12 Hearing], 74). A little over an hour and a half after Mason and the other FBI agents got to the motel, a car fitting the guard's description of the one being driven by the Appellant pulled into the motel and headed toward room 426. In doing so the car passed about ten yards from Agent Mason who noted the driver was wearing a black leather baseball cap. (R.17 [Feb. 12 Hearing], 88, 91). Mason and at least four other FBI agents, all with guns drawn, raced after the car which continued through the parking lot and pulled up to room 426. The Appellant got out of the car and walked toward room 426 when he was ordered by five armed men to stop (one agent used a vehicle's loudspeaker and the other agents yelled) and to get on the ground. The Appellant was then handcuffed and placed in the back of an FBI car where he sat for almost an hour and a half with his hands handcuffed behind his back while at least five FBI agents and an unknown number of Arlington police personnel swarmed over the area. The Appellant would first argue that the facts brought out at the suppression hearing do not show "specific and articuable facts" to support a Terry-type detention. The arresting agent knew only that someone else (McCall) had said that someone else (then unnamed and unknown to anyone at the scene) had said that "supposedly some guy named B-Love" was involved in the offense. The procedure by which the Appellant was taken into custody was fatally flawed from the very outset. There were no "specific and articuable facts" upon which these agents could have based their decision to take the Appellant into custody, be that custody an arrest or a "brief investigative detention." The Appellant would further argue that his custody status was not a Terry-type, brief, investigative detention. Instead, the Appellant was arrested by Agent Mason and the other four FBI agents at 2:43 a.m., September 30, 1994. The Appellant recognizes that no particular, formal words are necessary to effect an arrest, but rather one looks to the particular facts involved in the incident. U.S. V. Ashcroft, 607 F.2d 1167, 1170 (5th Cir. 1979). The facts of this case indicate that much more than a Terry-type stop was involved, just as was the case in Ashcroft. In that case the defendant was faced with several DEA agents, all of whom had their guns drawn. In the instant case Webster was faced with five FBI agents, all with guns drawn, plus a number of Arlington officers who presumably also had their guns out. Ashcroft was ordered up against a wall and searched. In this case Webster was ordered to lie on the ground and was searched. In Ashcroft, the agents yelled "Federal Agents: you are under arrest," here the agents yelled "FBI, Stop" and then wrote in their incident memoranda that they "arrested" the Appellant at 2:45 a.m. At the suppression hearing Agent Mason disavowed that detail as a "mistake, a misstatement" that had occurred because at the time the agent wrote it, he was not thinking "in technical terms." (R.17 [Feb. 12 Hearing], 103). Ashcroft was handcuffed in a bedroom, the Appellant was handcuffed and sat in a car. The DEA agent in Ashcroft testified that Ashcroft would have been stopped if he had tried to leave the bedroom, in the instant case Mason testified that after they got Webster on the ground he would not have been allowed to leave (R.17 [Feb. 12 Hearing], 104). This Court found that the circumstances in Ashcroft constituted an arrest and therefore had to be supported by probable cause. These circumstances -- regardless of whether the government agents termed it an arrest or a detention -- require no less. Agent Mason and the other FBI agents clearly had focused on the Appellant at the time they took him into custody. They may not have known why and may not have been able to articulate a rational basis for their action, but it is clear from the events that it was their intent to hold Webster as long as necessary to learn whatever information he had on the kidnapping. Webster was clearly not free to leave and that certainly was known to him as he sat handcuffed in the FBI car, surrounded by law enforcement agents from three jurisdictions who, moments before had been brandishing their weapons at him. Another factor militating the conclusion that this was in fact an arrest and not a mere brief investigatory stop was the time element. The Appellant was taken into custody at about 2:43 a.m., nothing was done with him, not even his rights were read to him, until Ford and Floyd returned to the motel, about an hour and a half later. Then, when it became clear that the Appellant was not going to immediately give the officers the information they wanted, they came up with a vehicle by which they could continue the Appellant's "detention" while they worked on getting him to cooperate. This detention vehicle, of course, was the Appellant's "arrest" sometime after 4:00 a.m. on Arkansas charges of a felon in possession of a weapon and possession of a personal use quantity of marijuana. On the basis of those state charges the FBI was able to keep the Appellant confined and thereby available for further interrogations which, after another day or so, were successful. The Supreme Court wrote that any Terry detention had to be by the least intrusive means reasonably available to verify or dispel their suspicions in a short period of time. Terry v. Ohio, 392 at 27, 88 S. Ct. at 1883, as cited in U.S. v. Sanders, 994 F.2d 200, 204 (5th Cir. 1993). The facts recited above cannot be squared with this requirement of Terry and, therefore, the Appellant's arrest has to be judged on the basis of probable cause. While this Court and others have grappled with the requirements of probable cause on countless occasions, the term is a fluid one that does not lend itself to a neat definition. (See, LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Vol. 2, pp 555-610.) It is well accepted that probable cause exists when facts and circumstances within the knowledge of the arresting officer would be sufficient to cause an officer to reasonably believe that an offense has been or is being committed. U.S. v. Carrillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994). Further, probable cause is to be determined on the basis of the facts available to the officers at the time, without reference to whether the evidence ultimately proved to be correct. U.S. v. Covelli, 738 F2d 847, 854 (7th Cir. 1984), and 1 W. LaFave, Search and Seizure, 3.2(d) at 575, 576. Can one imagine a police officer going to an independent magistrate seeking an arrest warrant based on the statement that "supposedly there was a guy named B-Love who had been last seen with (the victim)" which had been made by some unnamed person (later "assumed" to be Beckley) to another unnamed person (the interrogator) and learned by a third person (McCall) and then told to that officer. The record is silent as to how Agent McCall learned of this information or how many persons were involved in this chain of tales that ended with McCall telling Mason. The magistrate would laugh the agent out of his chambers or court. Agent Mason had no probable cause to effect the arrest of the Appellant on the morning of September 30, 1994. Once, however, the FBI had had sufficient time with the Appellant, they were successful as he began to make oral statements and to give information and assistance later introduced into evidence. To say that these (leading the agents to the body, the oral statements, the written confession et cetera) were harmful to the Webster during his trial is a gross understatement. Many of the items of physical evidence complained of here, including the weapons and other items seized from the Appellant's trunk, were purportedly the result of a search to which the Appellant consented. That consent, however, came while the Appellant was handcuffed, either still on the ground or having just been lifted from the ground, while surrounded by at least five law enforcement agents with drawn guns. As this Court has written, the evaluation of consent requires the consideration of the defendant's custodial status (detailed above), his education and intelligence (at least four jurors fou |