United States v. Fell (571 F.3d 264, 2009)

ORDER

Defendant-Appellant Donald Fell, having filed a petition for panel rehearing or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel rehearing, and the active members of the Court having considered the request for rehearing en banc, IT IS HEREBY ORDERED that the petition is DENIED. See Fed. R.App. P. 35(a).

Pursuant to Second Circuit Local Rule 0.28(7)(d), an automatic stay of execution of the sentence of death has been in place as of the date of the filing of the notice of appeal from the judgment of conviction, and remains in effect (unless vacated or modified) until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

Accordingly, the issuance of the mandate is held until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

With this Order, Judge RAGGI is filing a concurring opinion, in which Chief Judge JACOBS and Judges CABRANES, B.D. PARKER, WESLEY, and LIVINGSTON join; Judge CALABRESI is filing a dissenting opinion; Judge POOLER is filing a dissenting opinion; and Judge SACK is filing a dissenting opinion.

. Judge Hall is recused from consideration of the petition for rehearing en banc.

REENA RAGGI, Circuit Judge,

with whom Chief Judge JACOBS, Judge CABRANES, Judge PARKER, Judge WESLEY, and Judge LIVINGSTON join,

concurring:

On November 26, 2000, in Rutland, Vermont, Donald Fell and Robert Lee viciously stabbed to death Fell’s mother Debra and her companion Charles Conway. Early the next morning, the killers went to a local mall where they kidnapped Teresca King, a 53-year old convenience store clerk arriving for work, and stole her car to make their escape from the state. After driving several hours and crossing into New York State, Fell and Lee stopped in a wooded area where they forced King out of the car and brutally beat her to death.

Of the three murders committed by Fell on November 26-27, 2000 — two in Vermont and one in New York — only the New York murder qualified as a capital crime under federal law because it originated with an interstate kidnapping and carjacking. See 18 U.S.C. §§ 1201(a)(1) (capital kidnapping), 2119(3) (capital carjacking). In short, Teresca King’s murder was no local crime. It implicated real and significant federal interests because it was achieved by transporting the victim across state lines. Accordingly, Fell was indicted by a federal grand jury sitting in the District of Vermont for the capital crimes of kidnapping and carjacking resulting in Teresca King’s death in New York. In June 2005, a federal petit jury in Vermont found Fell guilty of these crimes and, in July, the same jury unanimously voted that he should be sentenced to death.

In a detailed opinion, a panel of this court rejected Fell’s challenge to that sentence and affirmed the judgment of conviction. See United States v. Fell, 531 F.3d 197 (2d Cir.2008). Today, the court denies en banc review of this appeal. I join in that decision, and I write now only to respond to certain points raised by my colleague Judge Calabresi in his dissent from the denial of rehearing en banc.

At the outset, I note my agreement with the dissent’s characterization of the trial court’s conduct in this difficult case as “nothing short of exemplary” and of the panel opinion as “exceedingly careful” in its discussion of the various sentencing challenges raised by Fell. Post at 283. Similarly, I agree that Fell’s specific claims of error in the district court’s (1) removal for cause of Juror 64, and (2) refusal to admit a draft plea agreement at the penalty phase of the trial, fail under the “traditional rules” established by Supreme Court precedent. Post at 283, 286. Where I cannot agree with the dissent is in its suggestion that en banc review is needed to consider the possibility that something more than these traditional rules is necessary to address “federalism” concerns not raised by Fell either in the district court or on direct appeal: specifically, (1) whether a district court selecting a federal capital jury in a state — such as Vermont — that does not itself provide for the death penalty, must somehow take that fact into account in deciding whether to excuse jurors who express opposition to the death penalty; and (2) whether, in mitigation of sentence, a jury must be allowed to hear that the United States Attorney in the venue state had, at one point, been willing to enter into a plea agreement that provided for a non-capital disposition of the case. I respectfully submit that these “federalism” concerns are more imaginary than real and do not warrant our en banc consideration.

I. The Dissent’s Jury Selection Concern

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const, amend VI. In Fell’s case, there is no question that each and every juror who voted to impose the death penalty was a resident of the State and District of Vermont. Nor is there any question as to the impartiality of these jurors.

The dissent nevertheless urges us to consider en banc whether federalism principles require us to construe the Sixth Amendment vicinage requirement to demand not only that a federal criminal jury be drawn from the relevant state and district, but also that its members somehow represent the local “values” of that vicinage. Specifically, the dissent interprets Vermont’s lack of death penalty legislation as evidence that “presumably a large portion of the population ... is opposed to the death penalty.” Post at 283. It submits that a proper respect for federalism might require a federal judge, in selecting a capital jury in such a state, to be “attuned to whether the jury members (and not just the jury pool ... } — though willing to follow the law — are also representative of a state’s overall opposition to the death penalty.” Post at 284. The dissent suggests that we consider en banc whether to remand this case “to ask the able District Judge whether, in striking Juror 64, he fully considered the constitutional relevance of the values of Vermonters, the values of the jurisdiction in which he sat.” Post at 285. Respectfully, I think no such en banc review, much less such a remand, is warranted in this case.

A. Juror 6ps Voir Dire Responses Made It Appropriate To Remove Her Regardless of Vicinage

The above-quoted issue that the dissent proposes for en banc review relies on a critical assumption: that the juror under consideration, though opposed to the death penalty, was nevertheless “willing to follow the law.” Post at 284. If that were true, we would hardly need to convene en banc to address the dissent’s federalism theory because the Supreme Court has already made clear that the removal of such a juror constitutes reversible error. See Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Court ruled that opposition to the death penalty is not enough, by itself, to support a prospective juror’s removal for cause. See id. at 522, 88 S.Ct. 1770. Thereafter, in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court held that, in a capital case, removal for cause based on a prospective juror’s views about the death penalty is warranted only where the court forms “a definite impression” that “the juror’s views would prevent or substantially impair” the juror’s “performance of his duties ... in accordance with his instructions and his oath.” Id at 424-26, 105 S.Ct. 844 (internal quotation marks omitted); see United States v. Fell, 531 F.3d at 210 (discussing Supreme Court precedent regarding capital jury selection).

This case, however, does not fall within the dissent’s paradigm. The juror referred to by the dissent — Juror 64 — failed to demonstrate under Witt~Witherspoon and their progeny that she was willing to follow the law despite her personal objection to the death penalty. As the Supreme Court explained in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), “those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Id. at 176,106 S.Ct. 1758 (emphasis added). The panel opinion demonstrates that Juror 64 made no such clear statement: “[throughout the district court’s painstaking and thoughtful voir dire, Juror 64 walked a fine line between her opposition to the death penalty and her willingness to follow the district court’s instructions.” United States v. Fell, 531 F.3d at 213. This is not to fault the juror. A juror’s experiences, beliefs, and values may sometimes make it difficult for the juror to know, much less to state clearly or confidently, whether she will be able to set aside her own beliefs in deference to the rule of law. In such circumstances, a district court appropriately relies on its voir dire experience and its unique ability to observe the prospective juror during questioning to assess whether the juror will be able faithfully and impartially to apply the law. See Wainwright v. Witt, 469 U.S. at 426, 105 S.Ct. 844; see also United States v. Quinones, 511 F.3d 289, 301-02 (2d Cir.2007) (discussing Supreme Court cases according deference to district court’s assessment of partiality where prospective juror’s voir dire responses are ambiguous: “the more ambiguous a prospective juror’s responses, the more useful demeanor, and thus oral inquiry, become in allowing a trial judge to identify partiality warranting removal for cause”).

The able district judge, after extensive questioning, formed a definite impression that Juror 64 could not satisfy the WittWitherspoon standard for impartiality. Moreover, the appellate panel, although limited in its review to the cold record, reached the same conclusion. See United States v. Fell, 531 F.3d at 213. The Supreme Court’s Sixth Amendment jurisprudence would neither have permitted the prospective juror to be seated upon such a finding nor tolerated the juror’s removal on any lesser finding.

Consequently, it makes no difference that, in this case, the juror’s partiality manifested itself in a non-death penalty state such as Vermont rather than a state that authorizes the death penalty. The juror was properly removed regardless of the vicinage. Accordingly, the particular challenge at issue on this appeal warrants no en banc review.

B. The Ability of a Juror Opposed to the Death Penalty To Serve on a Capital Jury Depends on a Constitutional Rule that Does Not Vary with the Vicinage

1. The Selection of Federal Juries To Hear Cases Arising Under Federal Law Does Not Implicate Federalism

I am, in any event, skeptical of the dissent’s suggestion that federalism requires each state’s adoption or rejection of the death penalty somehow to be factored into the selection of federal capital juries serving therein. Federalism is a principle concerned with “the constitutional distribution of power as between the Nation and the States.” Staub v. City of Baxley, 355 U.S. 313, 325-26, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958) (emphasis added); accord Printz v. United States, 521 U.S. 898, 918-21, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (discussing federalism as concern for distribution of authority between the state and federal governments); see also, e.g., Edward Rubin, Judicial Review and the Right To Resist, 97 Geo. L.J. 61,118 n. 154 (2008) (noting that federalism is the “division of political authority between the state and federal governments”); Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J.L. & Pub. Pol’y 991, 992 (2008) (“Federalism, properly understood, is a descriptive term attached to the Constitution’s allocation of powers.”); Bradford R. Clark, Translating Federalism: A Structural Approach, 66 Geo. Wash. L.Rev. 1161, 1161 (1998) (“Federalism ... refers to the Constitution’s division of powers between the federal government and the states.”); Larry Kramer, Understanding Federalism, 47 Vand. L.Rev. 1485, 1561 n. 5 (1994) (noting that federalism concerns “how authority is distributed between the political institutions of state and federal governments”). Federalism ensures “a proper respect for state functions” by limiting the exercise of federal authority when it “unduly interfere^] with the legitimate activities of the States.” Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (discussing “[o]ur federalism” in context of abstention); accord Madeira v. Affordable Hous ing Found., Inc., 469 F.3d 219, 237 (2d Cir.2006) (discussing federalism in context of preemption).

The selection of a federal jury to hear a case arising under federal law involves the exercise of exclusive federal power. It does not intrude on any state function; much less does it trench on the exercise of any state power. It poses no interference with legitimate state activities. Thus, even though the states provide one geographic boundary for the vicinage requirement of the Sixth Amendment — with congressionally defined judicial districts providing the other boundary — no federalism concern warrants a construction of that requirement that reaches beyond geography. Certainly, nothing in the plain language of the Sixth Amendment indicates that its vicinage requirement reaches beyond simple geography to local ideology. Nor does the Amendment’s history support such a theory. The demand for a constitutional amendment specifying a local vicinage for federal trials originated in recollections of Parliament’s acts permitting American colonists to be brought to England for trial. See Drew L. Kershen, Vicinage, 29 Okla. L.Rev. 801, 807 (1976) (quoting grievance in Declaration of Independence faulting King “For transporting us beyond Seas to be tried for pretend offenses”); 3 J. Story, Commentaries on the Constitution of the United States § 1775, p. 654 (photo, reprint 1999) (Boston, Hilliard, Gray & Co. 1833) (observing that object of Sixth Amendment’s vicinage clause is to prevent “accused from being dragged to a trial in some distant state”); see also Williams v. Florida, 399 U.S. 78, 92-97, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (discussing history of vicinage clause and particularly compromise that substituted congressionally determined judicial districts for counties, as had been characteristic of common law).

To be sure, the vicinage requirement, by defining the community from which a federal jury must be drawn, permits the jury to operate as the conscience of that community in judging criminal cases. See Kershen, Vicinage, 29 Okla. L.Rev. at 842-43; see generally A. de Tocqueville, Democracy in America 260 (H. Mansfield & D. Winthrop transís, and eds.2000) (observing that “the man who judges the criminal is really the master of society” (emphasis in original)). But this function of the vicinage requirement is satisfied by drawing a jury pool from a fair cross-section of the residents of the particular state and district. See generally Lockhart v. McCree, 476 U.S. at 173-74, 106 S.Ct. 1758 (holding that fair cross-section requirement applies to jury pool not petit jury). Once such a pool has been drawn, the Amendment’s singular concern is with ensuring the petit jury’s impartiality.

The dissent’s suggestion that the Sixth Amendment, viewed through the prism of federalism, requires something more, ie., a special solicitude for local values in the selection of a federal petit jury, would, I expect, appropriately be rejected out of hand if the local “value” revealed at jury selection were opposition to the sorts of civil rights, environmental, or gun trafficking requirements that are enforced through federal criminal law in ways not always mirrored in state legislation. The dissent disagrees, submitting that while juries must follow federal law, when “issues of judgment” arise jurors may exercise that judgment in light of “local values,” even when hostile to the federal law at issue. See post at 291-92 n. 12. Respectfully, I think the dissent may be thinking of the process of jury deliberation, not jury selection.

In the former context, values, instincts, and predilections may inform jury judgment. The law does not necessarily approve or encourage such influences. Nevertheless, a proper respect for finality— not federalism — dictates that “[t]he mental processes of a deliberating juror with respect to the merits of the case at hand must remain largely beyond examination and second-guessing, shielded from scrutiny by the court as much as from the eyes and ears of the parties and the public.” United States v. Thomas, 116 F.3d 606, 620 (2d Cir.1997); see Fed.R.Evid. 606(b) (precluding inquiry into the “mind or emotions” of deliberating juror).

This rule, however, does not reach beyond the deliberation room itself. Most important, it does not alter a trial court’s Sixth Amendment obligation to select a jury that can fairly and impartially apply the relevant federal law. In other words, once the nation has duly enacted federal criminal law, neither the Sixth Amendment nor federalism confers an additional right on the citizens of states that choose not to enact similar local laws to have their opposition to the federal law given special consideration in the selection of a federal jury.

This is not to deny federalism a role in federal criminal law. See post at 292. Certainly, federalism informed the early republic’s critical decision to reject a federal common law of crimes and to require the codification of federal criminal law. See United States v. Hudson & Goodwin, 11 U.S. (Cranch) 32 (1812); see generally Kathryn Preyer, Jurisdiction to Punish: Federal Authority, Federalism and the Common Law of Crimes in the Early Republic, 4 Law & Hist. Rev. 223 (1986). Even within such a statutory scheme, federalism is appropriately considered by Congress whenever it “criminalizes conduct already denounced as criminal by the States.” United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (observing that such legislation “effects a change in the sensitive relation between federal and state criminal jurisdiction” (internal quotation marks omitted)). To the extent federalism underlies the rule that Congress may “ereat[e] offenses against the United States” only pursuant to its “delegated powers,” id., federalism is also reasonably understood to play a part in a court’s consideration of whether Congress has exceeded those powers, see, e.g., id. at 557-68, 115 S.Ct. 1624 (holding Gun-Free School Zones Act to exceed Congress’s authority under the Commerce Clause).

But to play a part is not to appear in— much less to steal — every scene. Where, as here, there is no question as to Congress’s constitutional authority (1) to proscribe interstate kidnappings and carjackings, see Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) (observing that 18 U.S.C. § 1201 was enacted pursuant to Congress’s power to regulate “use of channels of interstate or foreign commerce which Congress deems are being misused”); United States v. Trupin, 117 F.3d 678, 685 n. 3 (2d Cir.1997) (collecting cases upholding § 2119 after Lopez), or (2) to prescribe a capital penalty when death results from such crimes, see generally United States v. Quinones, 313 F.3d 49, 69-70 (2d Cir.2002) (rejecting constitutional challenges to federal death penalty), no recognized theory of federalism supports the dissent’s assertion that federal petit juries must be selected in light of the particular vicinage’s support for or opposition to the federal law.

The conclusion that federalism does not accord local opposition to federal law any claim to special consideration in the selection of a capital jury finds support in Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), wherein the Supreme Court ruled that, while juries must determine the “facts as they find them to be from the evidence,” it is their duty “to take the law from the court.” Id. at 102, 15 S.Ct. 273. This effectively ratified a view that had gained momentum in the latter half of the Nineteenth Century, ie., that juries should not themselves act as judges of the law. See generally United States v. Thomas, 116 F.3d at 614 (collecting authorities). After Sparf, the law continued to acknowledge that, in the deliberative process, a jury had the “power” — if not the “right” — to nullify law by returning verdicts seemingly contrary to a court’s instructions. See id. at 614-15. But, as this court observed in Thomas, because “the jury’s prerogative of lenity, introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions, ... the system of checks and balances embedded in the very structure of the American criminal trial ... [gives rise to] a countervailing duty and authority of the judge to assure that jurors follow the law.” Id. at 616 (internal citations and quotation marks omitted). In the selection of jurors in federal capital cases, With-Witherspoon and its progeny have established the appropriate constitutional balance between these two interests.

2. Constitutional Rules Concerning Capital Jury Selection Must Apply Equally Throughout the Nation

In selecting a federal jury in a capital case — arid in reviewing that jury selection on appeal — courts must be ever mindful that what Witt-Witherspoon articulates is a constitutional rule for determining when jurors who oppose the death penalty may or may not be excused for cause consistent with the Sixth Amendment’s guarantee of an impartial jury. Plainly, the Constitution must apply equally throughout the states. As Justice Story famously observed, “[t]he constitution of the United States was designed for the common and equal benefit of all the people of the United States.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 348, 4 L.Ed. 97 (1816) (emphasis added). Thus, if a district court’s decision to excuse a juror violates Witt-Witherspoon, it does so regardless of whether the voir dire occurred in a non-death penalty state such as Vermont, a death penalty state such as Texas, or any of the other 48 states in the Union. Indeed, I am hard pressed to know how we might explain to a capital defendant in Texas that he is entitled to any less rigorous voir dire of a potential juror who expresses opposition to the death penalty (because Texas law authorizes capital punishment) than we would insist on for a capital defendant in Vermont (because Vermont law proscribes capital punishment).

The dissent agrees that a capital jury voir dire cannot be less rigorous in one state than in another. See post at 291 n. 11. In the next sentence, it even suggests that its federalism argument is not to the contrary because “[r]ecognizing the effect of local values on what a potential juror’s answer means is just that, no more and no less.” Post at 291 n. 11. The dissent is careful never to specify just how a district court would go about “recognizing the effect of local values” in evaluating a juror’s responses. Nevertheless, I suspect that what the dissent urges is a good deal “more” than the Witt-Witherspoon rule, the proper application of which is not challenged in this case. Otherwise there would be no need to call for a remand. Under the dissent’s view of “federalism,” in a non-death penalty state such as Vermont, it would not be enough to conclude, as the district court did in this case, that a person opposed to the death penalty could not serve because he failed to provide the assurance of impartiality discussed in Lockhart v. McCree, 476 U.S. at 176, 106 S.Ct. 1758. Why? Because the juror’s opposition to the death penalty “was simply representative of the views of Vermont.” Post at 291. This implies that federalism requires federal courts to show more tolerance for opposition to the death penalty when voiced by potential jurors in non-death penalty states such as Vermont. I cannot agree.

Capital defendants, regardless of the state in which they are tried, have an equal constitutional right not to have an opponent of the death penalty removed for cause from a capital jury absent a proper judicial determination that the juror could not faithfully and impartially apply the relevant law. But no defendant has a right — regardless of the “characteristics of the community where the trial is held,” post at 285 — to have an opponent of the death penalty serve as a juror if he cannot clearly state a willingness “ ‘to temporarily set aside [his] own beliefs in deference to the rule of law,’ ” United States v. Fell, 531 F.3d at 210 (quoting Lockhart v. McCree, 476 U.S. at 176, 106 S.Ct. 1758).

To the extent the dissent’s invocation of federalism might be understood to suggest that the Witt-Witherspoon standard is insufficient, by itself, to satisfy the constitutional requirement that juries be “local,” the point warrants little discussion. As already noted, see supra at 266, the Constitution’s key locality requirement— that jurors be drawn from the same state and district wherein the charged crime was committed — was plainly met in this case. The dissent’s federalism concern might therefore be better understood as a fair cross-section challenge, i.e., that the removal of certain jurors deprived Fell of a fair cross-section of Vermonters opposed to the death penalty. See Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (“[T]he fair-cross-section requirement [i]s fundamental to the jury trial guaranteed by the Sixth Amendment.”). As noted supra at 269-70, however, the law is clear that the “fair cross-section” requirement applies to the jury pool, not the petit jury. Lockhart v. McCree, 476 U.S. at 174, 106 S.Ct. 1758. The dissent does not — and cannot — argue that the jury pool in this case did not represent a fair cross-section of Vermonters. With that vicinage requirement satisfied, it is the Sixth Amendment’s guarantee of impartiality that gives every defendant — the Texan as well as the Vermonter — a right not to have jurors opposed to capital punishment removed for cause as long as they satisfy the Witt-Witherspoon standard.

The dissent nevertheless appears concerned that nationwide application of the WittWitherspoon standard is somehow insufficient to allow Vermont residents to exercise fully their capital sentencing discretion. I am not convinced that such a problem exists. If the dissent is correct that the lack of a state death penalty indicates that a majority of Vermonters do, in fact, oppose the death penalty, those opponents will presumably represent a larger percentage of the federal venire in that state than will their counterparts in states that have enacted death penalty legislation. Precisely because, under Witir-Witherspoon, a judge cannot remove a prospective juror for cause based solely on the juror’s opposition to the death penalty, it logically follows that more opponents of the death penalty will likely serve on a federal capital jury in Vermont than in states with death penalties. Indeed, that conclusion appears to find support in the second part of the dissent’s opinion, which asserts that juries in states that do not have local death penalties vote for capital punishment less frequently than juries in states that do provide for such punishment. See post at 289-90. Whether or not this is the case, Witt-Witherspoon assures a capital defendant in any state the equal right to have death-penalty opponents serve on the jury “so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Lockhart v. McCree, 476 U.S. at 176, 106 S.Ct. 1758.

C. The Eighth Amendment Does Not Support the Dissent’s Vicinage Argument

There appears to be a certain inconsistency in the dissent insofar as it argues both (1) that different voir dire rules should apply to jury selection in a non-death penalty state such as Vermont because, otherwise, federal capital juries will be ineffective conduits of local values, see post at 288-86; and (2) that juries are so effective at transmitting local values that they have made application of the federal death penalty unconstitutional because of its rarity, see post at 289-90. With respect to the second argument, the dissent asserts that “[bjehind all this lies a still deeper constitutional question”: whether this death penalty verdict is unconstitutionally “unusual” because it was imposed in Vermont, a non-death penalty state. Post at 289. Indeed, the dissent suggests that an affirmative answer to this question may be “necessary for ... federalism to survive.” Post at 291. This argument is unconvincing for several reasons.

1. Federalism Does Not Warrant Construing the Eighth Amendment Prohibition on Cruel and Unusual Punishments Differently Based on the Vicinage

The dissent’s effort to import a federalism concern based on vicinage into the Eighth Amendment analysis of federal sentences is misguided. Although the Supreme Court has construed the Eighth Amendment to prohibit cruel and unusual punishment in accordance with “evolving standards of decency,” Kennedy v. Louisiana, — U.S.-, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008), and considered “state practices” in identifying these standards, id. at 2650 (quoting Roper v. Simmons, 543 U.S. 551, 563, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)), it has done so only because in the aggregate such practices serve as a proxy for the “national consensus,” id. at 2653 (noting that 45 states prohibited death penalty for child rape); see also Roper v. Simmons, 543 U.S. at 564-65, 125 S.Ct. 1183 (noting that 30 states prohibited death penalty for juveniles); Atkins v. Virginia, 536 U.S. 304, 314-15, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (noting that 18 states exempted mentally retarded persons from death penalty, in addition to 12 that prohibited death penalty altogether). The Eighth Amendment, no less than other provisions of the Constitution, must apply equally throughout the states. Nothing in the Court’s jurisprudence has ever suggested that federalism warrants re-tailoring the Eighth Amendment in each state — or each vicinage' — to test federal death sentences by reference to local practices. In the absence of any supporting authority, it is no mere “formalism[ ]” for this court to decline to convene en banc to explore the dissent’s novel theory of federalism. Post at 292-93; see post at 291-92.

2. The New York Capital Experience Does Not Raise Constitutional Concerns About the Death Sentence Returned Against Fell in Vermont

Even assuming that the relative rarity of federal death sentences in a single state or vicinage were cognizable under the Eighth Amendment, the dissent’s argument rests almost entirely on federal capital experience in New York, not in Vermont. See post at 289-90 & n. 9 (noting that federal capital juries in New York have voted for the death penalty only once in 19 cases). The New York experience does not, however, support the dissent’s “federalism” twist on the Eighth Amendment.

a. The Difficulty in Discerning Popular Values on Capital Punishment in New York

Like Vermont, New York does not currently use the death penalty to punish state crimes. This is the result of a 2004 decision by the New York Court of Appeals invalidating the state’s death penalty statute in light of identified procedural deficiencies. See People v. LaValle, 3 N.Y.3d 88, 131, 783 N.Y.S.2d 485, 511, 817 N.E.2d 341 (2004). As even the dissent appears to recognize, we cannot assume that such a judicial invalidation of death penalty legislation reflects popular opposition to capital punishment. See post at 283 & n. 4.

The dissent nevertheless submits that the New York legislature’s failure to reenact the death penalty since the LaValle decision “must be taken ... as some evidence of the popular will, at least today.” Post at 283 n. 4. This assertion, in fact, only highlights the difficulty in requiring federal judges to construe constitutional provisions by reference to sometimes shifting “local values.” Since 1992, when this judge selected the first post -Furman federal capital jury in New York, see United States v. Pitera, 90-cr-0424 (RR) (E.D.N.Y.), the death penalty has been at the center of so many state political battles that its legal status in New York is necessarily an imperfect proxy for the “local values” of the state’s citizenry. See, e.g., Joel Stashenko, Death Penalty Critics Doubt State Is Ready, Buff. News, Aug. 27, 1995, at A8 (noting that Governors Carey and Cuomo together vetoed 18 consecutive death penalty bills passed by the New York legislature from 1977-1994); James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. Times, March 8,1995, at 1 (discussing Governor PataM’s 1995 signature of legislation reenacting the state death penalty); see also People v. LaValle, 3 N.Y.3d at 131, 783 N.Y.S.2d 485, 817 N.E.2d 341 (invalidating 1995 death penalty law in 2004); Patrick D. Healy, Death Penalty Is Blocked by Democrats, N.Y. Times, April 13, 2005, at B1 (discussing legislative inaction following LaValle). Surely, a federal trial judge’s Sixth Amendment obligations in selecting a capital jury in New York could not vary depending on how one interpreted state values on the death penalty in 1994, 1995, 2004, or 2005.

In any event, the dissent can only speculate that “local values” opposing the death penalty may have informed the decision of New York federal juries to vote for the death penalty in only a single case, United States v. Wilson, 493 F.Supp.2d 537, 539 (E.D.N.Y.2007) (involving execution murders of two New York City police officers). Citing a press report that three jurors in another New York federal capital case voted for life without parole because the death penalty would not have been an option if the case had been tried in New York state court, the dissent suggests that “[pjerhaps that is the reason why New York juries have returned only one death sentence from all the federal capital prosecutions sought in New York.” See post at 290 n. 9.

Such speculation is suspect for at least two reasons. First, as just noted, the state death penalty was available in New York from 1995 to 2004, ie., for nine of the 17 years during which federal prosecutors sought the death penalty for federal crimes committed in the state. Thus, the dissent’s speculation is inapplicable to federal juries sitting during that period. Second, during those nine years, New York state prosecutors sought the death penalty 18 times, and New York juries voted to impose it seven times. See Joseph Lentol et al., The Death Penalty in New York: To Examine the Future of Capital Punishment in New York State Before the Assembly Standing Comms. on Codes, Judiciary, & Correction 14, 32 (Dec. 15, 2004-Feb.ll, 2005), available at http://assembly. state.ny.us/comm/Codes/20050403/ deathpenalty.pdf. This hardly indicates the sort of strong local resistance to capital punishment posited by the dissent.

b. The Dissent’s Unsupported Assertion that New Yorkers’ Sensitivity to Federalism Explains the Infrequency of Federal Capital Verdicts in that State

Confronted with the undeniable fact that New York state juries did impose the death penalty a number of times in the years before LaValle, the dissent attempts to recast its federalism argument. Rather than maintain that the New York federal capital experience demonstrates a local value of opposition to the death penalty (which federalism must respect), the dissent asserts that the willingness of New York juries “to impose death under their own law but not under federal law helps to underscore federalism as a likely independent variable in their deliberations.” Post at 294. In short, the dissent submits that it is New Yorkers’ desire to vindicate the “value” of “federalism ... itself’ that explains their willingness to impose the death penalty in state cases and their reluctance to do so in federal cases. Post at 294 (emphasis in original).

Even if the dissent could support this extraordinary hypothesis, it nowhere indicates how a state’s willingness to impose the death penalty under its own laws demonstrates that doing so under federal law would be constitutionally cruel and unusual. No matter. The dissent’s hypothesis is, in fact, not grounded in anything but imagination. No one who has ever participated in a criminal trial could possibly think that state and federal juries in New York, when contemplating imposition of a death sentence, have as their “likely” focus “federalism as [a] value in itself.” Post at 294 (emphasis in original). Nor can the dissent support its theory by reiterating that three jurors in one New York federal capital case explained that they did not vote for the death penalty because they knew it was then unavailable under state law. See post at 290 n. 9, 14. The jurors’ explanation for what informed their actions when New York did not have the death penalty hardly supports a hypothesis that, during the years when state law did provide for capital punishment, it was New Yorkers’ sensitivity to federalism that “likely” prompted them to vote for the death penalty more often in state cases than in federal ones.

c. The Inadvisability of Speculation as to the Reasons for Capital Verdicts

The dissent’s efforts to invent variations on its original federalism theme prompt me to sound a note of caution about making general assumptions — unsupported by record evidence or experience — as to why federal juries in New York have imposed the death penalty only once since Furman. Capital juries reject the death penalty for various and often complex reasons. One factor more likely than federalism to explain the New York capital experience is the character of victims. As capital defense counsel Kevin McNally, Director of the Federal Death Penalty Resource Counsel Project, observed in commenting on the federal capital verdict in United States v. Wilson, 493 F.Supp.2d at 539, “ ‘[n]ot many New York [federal capital] cases have [had] innocent victims.’ ” Alan Feuer, An Aversion to the Death Penalty, but No Shortage of Cases, N.Y. Times, Mar. 10, 2008, at B1 (reporting that “many victims in New York [federal] capital cases are unsavory characters: drug dealers, mobsters, or members of street gangs— not the sort of people whose killers are likely to be punished with death”). Although the dissent cites this same article (presumably to support its own speculation as to why New York jurors have rejected the death penalty in every case except United States v. Wilson, see post at 290 n. 9), it dismisses the assessment quoted in the parenthetical as “remarkable and troubling speculation,” post at 292. It does not, however, attempt to show that the New York Times’ account inaccurately draws on the facts of New York’s federal capital cases.

In fact, the dissent could not do so in light of the case histories of many New York federal capital cases revealing victims involved in criminal activity. See, e.g., United States v. Pitera, 90-cr-0424 (E.D.N.Y.) (declining to impose death sentence on defendant whose homicide victims were criminal associates in or competitors of defendant’s continuing drug enterprise); United States v. Diaz, 94-cr-0328 (N.D.N.Y.) (declining to impose death sentence on defendants who murdered rival drug dealer); United States v. Matthews, 00-cr-0269 (N.D.N.Y.) (declining to impose death sentence on defendants who murdered rival drug dealer); United States v. Quinones, 00-cr-0761 (S.D.N.Y.) (declining to impose death sentence on defendants who murdered drug customer working as police informant); United States v. Williams, 00-cr-1008 (S.D.N.Y.) (declining to impose death sentence on defendants who murdered drug purchasers); United States v. Dixon, 01-cr-0389 (E.D.N.Y.) (declining to impose death sentence on defendant who murdered rival drug dealer working as police informant); United States v. McGriff, 04-cr-0966 (E.D.N.Y.) (declining to impose death sentence on defendant who murdered two rival drug dealers). In United States v. Wilson, however, the defendant’s own counsel, experienced in capital litigation, specifically identified the good character of the police officer victims as a crucial factor in the federal jury’s decision to impose the death penalty. See Alan Feuer, An Aversion to the Death Penalty, but No Shortage of Cases, N.Y. Times, Mar. 10, 2008, at B1 (“The victims in the Wilson case, two undercover police detectives, were crucial to the jury’s decision, both [Wilson’s defense counsel Ephraim] Savitt and Mr. McNally said. Crucial and unusual, they added, in that the detectives were perceived as ‘innocent’ and ‘good.’ ”).

Significantly, in many of the New York state cases in which juries voted for capital punishment, the victims could also be perceived of as “innocent.” See, e.g., People v. Taylor, 9 N.Y.3d 129, 137-40, 848 N.Y.S.2d 554, 878 N.E.2d 969 (2007) (describing defendant’s murder of five employees of fast-food restaurant in course of robbery); People v. LaValle, 3 N.Y.3d at 99-101, 783 N.Y.S.2d 485, 817 N.E.2d 341 (describing defendant’s rape and killing of jogger); People v. Mateo, 2 N.Y.3d 383, 394-97, 779 N.Y.S.2d 399, 811 N.E.2d 1053 (2004) (describing defendant’s killing of four persons while attempting to locate ex-girlfriend); People v. Cahill, 2 N.Y.3d 14, 35-37, 777 N.Y.S.2d 332, 809 N.E.2d 561 (2003) (describing defendant’s beating and poisoning of wife); People v. Harris, 98 N.Y.2d 452, 471-72, 749 N.Y.S.2d 766, 779 N.E.2d 705 (2002) (describing defendant’s murder of three persons in course of robbery); see also John Rather, Suffolk Jury Returns a Death Verdict for Supermarket Murder, N.Y. Times, Aug. 17, 2000, at B5 (describing defendant’s murder of co-worker).

This is not to suggest that all capital verdicts, or even these particular verdicts, can necessarily be explained by reference solely to the victims’ characters. It is simply to note that the role of character and the other factors discussed in footnote 9 have support in capital case records and the experience of capital counsel. By contrast, nothing supports the dissent’s implausible assertion that federalism “in itself’ is the “likely” explanation for New York juries voting for the death penalty more often in state than federal cases.

For all these reasons, I submit that we cannot responsibly draw from the New York experience any inference that infrequent jury application of the death penalty in federal capital prosecutions in that state is a consequence of either local values generally opposing the death penalty or such a refined jury sensitivity to federalism as to limit death penalty verdicts largely to state prosecutions. Much less can we infer that a Vermont jury’s death penalty verdict in this case — which certainly involved an innocent victim — somehow reflects a failure of federalism raising Sixth or Eighth Amendment concerns.

In sum, there simply is no federalism concern here warranting our en banc consideration of any local variance from the uniform, nationwide application of the Witt-Witherspoon standard for determining when opponents of the death penalty can be removed for cause from capital juries.

II. The Dissent’s Plea Agreement Concern

The same conclusion obtains with respect to the dissent’s suggestion that we convene en banc to review the district court’s evidentiary ruling on the inadmissibility at the sentencing proceeding of an unexecuted plea agreement between Fell and the Vermont U.S. Attorney’s Office. The district court allowed the jury to hear that Fell had offered to plead guilty to the capital kidnapping charge in exchange for a sentence of life imprisonment, but excluded from evidence the plea agreement to that effect drafted (but not signed) by the U.S. Attorney’s Office in Vermont and subsequently rejected by the Justice Department. Fell sought to offer the plea agreement as evidence (1) “that substantial mitigating factors existed,” largely related to his mental history, difficult youth, remorse, and assistance to the authorities; and (2) that he had accepted responsibility for his criminal conduct. United States v. Fell, 531 F.3d at 217. The dissent identifies no error in the panel’s conclusion that the district court acted well within its discretion in excluding the agreement for these purposes. Instead, the dissent urges us to consider en banc the agreement’s admissibility for a quite different purpose never advanced by Fell, but purportedly compelled by principles of federalism, i.e., that a capital jury should “be allowed to know — not for purposes of nullification, but for purposes of judgment— what local law enforcement officials believed was adequate” punishment for the crime of conviction. Post at 287.

Implicit in the dissent’s discussion of this point is an unwarranted factual assumption: that a local United States Attorney’s view regarding the appropriate sentence for a crime mirrors the values of the community in which he serves. This is hardly obvious given that United States Attorneys are not elected to their positions but are appointed by the President of the United States, who himself may or may not have received a majority of the votes cast in the district at issue.

In any event, the dissent’s argument misperceives the role of a prosecutor in our adversarial system. He is the advocate of a contested position; he is not an expert witness. The dissent asserts that allowing the jury to hear about plea offers “does not entail transforming prosecutors into expert witnesses, but simply allow[s] the defense the option of submitting prosecutors’ views — along with those of so many other sources — to a capital sentencing jury.” Post at 287-88. This explanation is unconvincing because “prosecutors’ views” on appropriate punishment would have no relevance unless prosecutors are recognized as experts who, as the dissent assumes, have particular insight into and expertise with “the needs and values of the communities in which they work.” Post at 287-88. In a capital case, however, it is the jury alone that is charged with the responsibility of speaking for the community in deciding whether a particular defendant deserves to live or to die.

As noted in Part I.A of this opinion, the jurors who serve on a capital jury may support or oppose the death penalty, but in returning a verdict their oath obliges them to “temporarily set aside their own beliefs in deference to the rule of law.” Lockhart v. McCree, 476 U.S. at 176, 106 S.Ct. 1758. Thus, they do not speak for the community in the sense of an electorate voting on a referendum as to whether to prescribe or proscribe the death penalty generally. Rather, they represent the community in assuming the specific responsibility to give careful and thorough consideration to the relevant evidence in the case on trial with a view toward making a unique, individualized judgment about the appropriateness of the death penalty as a punishment for the particular defendant on trial in light of his particular crime. For precisely this reason, no expert opinions on the issue of sentence are warranted, whether from local prosecutors (either when they have vigorously supported the death penalty from the moment of arrest, or when they may have favorably considered lesser alternatives), their Justice Department counterparts, capital defense bar representatives, newspaper editorial boards, victims’ rights groups, or even the trial judge.

To be sure, the law may permit certain witnesses — e.g., the defendant, his family members, his victims — to make a plea for the jury to exercise its sentencing judgment mercifully or severely. See generally 18 U.S.C. § 3595(c) (stating that information may be admitted at capital sentencing hearing “regardless of its admissibility under the rules governing admission of evidence at criminal trials”). But the allowance of such appeals from persons who have been affected by the crime or who will be affected by the sentence is very different from allowing purported experts to opine as to the appropriate sentence in the case.

Further, although the law liberally permits a capital defendant to put mitigating evidence before a jury, see Tennard v. Dretke, 542 U.S. 274, 284, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (recognizing mitigating evidence to include any information that “tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value”), there are limits. Specifically, Congress has authorized district courts to exclude information from a capital sentencing hearing when its “probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” 18 U.S.C. § 3593(c). The probative value of plea-offer information is minimal with respect to the jury’s evaluation of the relevant aggravating and mitigating factors in a case. Such factors may not have been fully identified at the time of the plea offer. Even if they were, the totality of circumstances relevant to those factors could not have been developed as completely as is possible through the crucible of trial. Thus, any inference as to the appropriate sentence that might be drawn from an unexecuted plea agreement will necessarily be prejudicial and confusing insofar as it focuses the jury’s attention, even if only briefly, on what a third-party may have thought based on a different record from that developed at the sentencing hearing. More important, evidence of an unexecuted plea agreement would distract the jury from its sworn duty carefully to consider for itself the hearing record, and to make a unique, individualized judgment about the appropriateness of the death penalty as a punishment for the particular defendant on trial.

A final word on the dissent’s discussion of the role of prosecutors in capital cases. The dissent asserts that “[sjurely the concurred know that prosecutors — even federal prosecutors — are significantly affected by local values and attitudes in their choice of what is an appropriate sentence to pursue.” Post at 290 (emphasis added). Respectfully, I submit that this statement, unsupported by any authority, offers too simple a view of prosecutorial decision making.

First, the vast majority of sentences sought by federal prosecutors are determined not by juries but by judges. Until recently, judges had their discretion circumscribed by mandatory Guidelines structured to minimize local sentencing disparity. See United States v. Booker, 543 U.S. 220, 233-34, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Even after Booker, judges may consider the local impacts of crime in imposing sentence, but not local mores or feelings about crime. See United States v. Cavera, 550 F.3d 180, 195 (2d Cir.2008) (en banc) (dictum). Thus, to the extent “local values” are not a significant factor in a judicial determination of sentence, I do not think there is any basis for the dissent’s pronouncement that prosecutorial assessments as to the appropriate sentences they might urge judges to impose are “significantly affected” by local values.

Even if the dissent’s “significant effect” pronouncement refers only to capital cases, it fails to recognize the myriad factors that can inform a prosecutor’s decision to seek the death penalty. More “significant” than local values supporting or opposing the death penalty, I suggest, is the strength of the government’s case for a capital sentence. This factor can vary enormously depending not only on the circumstances of the capital crime, the character of slain victims, the complicity of others who may not face capital punishment, and a range of mitigating or aggravating factors pertaining to the defendant himself, but also on a strategic assessment of how much of this evidence a jury is likely to hear (in light of possible legal challenges) or to question (in light of efforts to impeach prosecution witnesses). Prosecutors carefully weigh these circumstances because they know that, even in a state where local values generally support the death penalty, the punishment can be imposed in a particular case only on unanimous consent of twelve jurors. In short, regardless of local values, the law effectively gives a single juror the ability to veto capital punishment.

Because the dissent oversimplifies prosecutorial decision making, I fear that, in construing federalism to mandate the admissibility of unexecuted plea agreements in capital cases, it has found a Pandora’s Box that this court should not open. If a jury’s exercise of its capital sentencing judgment is usefully informed by evidence that local federal prosecutors were, at some point, willing to dispose of Fell’s case with a life sentence rather than death, would it then be relevant for a Vermont jury in some other case to know that local federal prosecutors were not willing to extend such an offer? Similarly, if a plea offer to a life sentence in a capital case were to be received as some evidence that local prosecutors thought that punishment was sufficient to do justice, would local prosecutors be allowed to explain if their reasons for extending the offer were not so based? For example, would the scuttled agreement be relevant where the offer was informed not by mitigating circumstances pertaining to the defendant but by a desire to spare a defendant’s frightened or seriously injured surviving victim the further trauma of having to testify about the experience? Or where the offer was informed by the anticipated high cost of a capital prosecution? See Frederic Block, A Slow Death, N.Y. Times, Mar. 15, 2007, at A27 (estimating that “more than $17 million” has been spent on “17 federal death penalty trials in New York State”). Countless scenarios relating to plea negotiations can be envisioned. To my mind, any such evidence is invariably more prejudicial and confusing than probative and should not be presented to a capital jury. This case presents no exception.

III. Conclusion

To conclude, because I do not think the dissent’s appeal to “federalism” presents us with any real constitutional concerns about the jury selection or evidentiary rulings in this case, I am not inclined to have the full court convened to address theories not raised by the parties either in the district court or on appeal. I concur in the denial of en banc review.

CALABRESI, Circuit Judge, dissenting from the denial of rehearing:

This is the first direct appeal from a death sentence that we have had in decades, and that in itself seems to me to justify a rehearing en banc. Moreover, and seemingly paradoxically, such cases will repeat, and it is important and useful that every member of the Court be given an opportunity-after argument and in the context of a particular case — to give guidance to future panels and district courts. We do not go en banc frequently, but there are situations where the knowledge and views of the whole Court serve us better than panel-by-panel development. I believe this case presents just such a situation.

In addition, this is an appeal of a federal death sentence from a state that does not have capital punishment. That is an unusual occurrence for any federal court, and it is particularly important that our Circuit address it, because two of the three states in our jurisdiction, in different ways, have effectively done away with capital punishment. The imposition of the death penalty in states that have rejected it raises issues that have not yet been addressed. I will try in this opinion to discuss a few of these and explain why I think that the District Court might have erred with regard to them. But quite apart from how one ultimately feels about those issues or whether one believes that the District Court erred, their very existence raises question “of exceptional importance,” Fed. R.App. P. 35(a)(2). And that, in itself, demands that our Court focus its collective wisdom on these problems, problems with which we have had little experience but will likely face again.

I.

Aside from these more general grounds for going en banc, to which I shall return, there are also specific reasons that, I believe, justify collective review of some of the decisions made by the District Court. Although the District Judge’s behavior was nothing short of exemplary, and the panel opinion exceedingly careful, the unusual nature of this case presents questions that I am not sure the district judge fully considered.

A. Jury Selection

A juror — Juror 64 — expressed strong opposition to the death penalty but made clear that she was willing to follow instructions and consider imposing it. She rated herself a “one” on a scale of “one to ten,” with “one” indicating strong opposition to the death penalty, and on more than one occasion noted that she would “lean” towards life imprisonment without parole rather than death. But she also repeatedly said that she “could make that decision” to vote in favor of the death penalty and “could follow that process.” When asked if she could honestly consider imposing the death penalty, she responded “Yes.” The District Court excused her for cause.

In its careful opinion, United States v. Fell, 531 F.3d 197 (2d Cir.2008), the panel describes Juror 64 as the closest call among the excused jurors, id. at 211, and notes that “[wjhile Juror 64 strongly opposed the death penalty and was unprepared to conclude that a defendant deserved death simply because a murder was premeditated, she simultaneously claimed that she could impose the death penalty as part of her responsibilities as a juror in spite of her expressed reluctance to do so.” Id. at 213. Nonetheless, the panel, guided by the traditional rules dealing with the striking of jurors for cause, gave deference to the District Court’s decision to strike Juror 64.

The Supreme Court has given district courts an exceptional amount of discretion to strike for cause jurors who may not be able to apply the law faithfully and impartially. See Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). But I am aware of no Supreme Court case that addresses the selection of jurors in a federal capital case arising in a state that does not itself have the death penalty. And that, I think, is a major and undiscussed issue that must be considered in reaching a proper resolution of this case. The question is particularly crucial when it arises in a state like Vermont that lacks the death penalty not because of court action but because of legislative decision. In such a state, there is presumably a large portion of the population that is opposed to the death penalty. This must be so if the legislature’s judgment reflects the will of the people, an assumption that, rightly or wrongly, we routinely make. Notably, the ability of juries to represent the will of the people in capital sentencing is no less important than the power of legislatures to reject the death penalty all together. Cf. Blakely v. Washington, 542 U.S. 296, 306, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (“Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”).

Nor does it matter, in this respect, that the case before us is a federal trial. The Framers found the local nature of a jury, and local values embodied in that jury, to