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United States v. Mikhel

United States Court of Appeals, Ninth Circuit

May 9, 2018

United States of America, Plaintiff-Appellee,
v.
Iouri Mikhel, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Jurijus Kadamovas, Defendant-Appellant.

          Argued and Submitted January 10, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding D.C. Nos. CR-02-00220-DT-1, CR-02-00220-DT-2

          Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California; Barbara E. O'Connor, O'Connor & Kirby P.C., Burlington, Vermont; Margaret Hills & O'Donnell, Frankfort, Kentucky; for Defendant-Appellant Jurijus Kadamovas.

          Michael Tanaka (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; Sean J. Bolser, Federal Capital Appellate Resource Counsel Project, Federal Defenders of New York, Brooklyn, New York; Statia Peakheart, Los Angeles, California; for Defendant-Appellant Iouri Mikhel.

          Michael A. Brown (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Alexey V. Tarasov, Houston, Texas, for Amicus Curiae Government of the Russian Federation.

          Before: Jay S. Bybee, Milan D. Smith, Jr., and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Criminal Law / Federal Death Penalty

         The panel affirmed Iouri Mikhel's and Jurijus Kadamovas's convictions and death sentences for several federal crimes, including multiple counts of hostage taking resulting in death under the Hostage Taking Act.

         Guilt Phase

         The panel reaffirmed that the Hostage Taking Act does not require proof of a nexus to international terrorism. The panel held that the Act was a valid exercise of Congress's power under the Necessary and Proper Clause together with the Treaty Power, and rejected as unavailing the defendants' independent Tenth Amendment challenge. The panel rejected as meritless the defendants' argument that even if the Act does not itself exceed Congress's power, the subsequent amendment authorizing the death penalty exceeded Congress's power.

         The panel held that the defendants' motion for recusal of the district judge was untimely and fails on its merits.

         Affirming the district court's rejection of the defendants' Batson challenge to the government's peremptory strike of a juror, the panel held that the defendants did not meet their burden of demonstrating race was a substantial motivating factor.

         The panel held that the district court committed no error in empaneling an anonymous jury.

         The panel held that the district court did not violate the defendants' Sixth Amendment right to a public trial by excluding from the courtroom a person who was observed behaving in an intimidating manner.

         The panel held that the district court did not err in using this circuit's model reasonable-doubt jury instruction in the guilt phase.

         The panel explained that the purpose of 18 U.S.C. § 3005, under which a capital defendant has the right to two counsel, is not undermined by one attorney's de minimis absence from trial, and that any error stemming from the three-day absence from trial of one of Mikhel's attorneys was harmless. The panel held that the district court's denial of Kadamovas's motions for a continuance to allow one of his attorneys more time to prepare did not violate § 3005, and that any technical error would be harmless.

         The panel held that the district court did not abuse its discretion in excluding as irrelevant testimony of a person who, without repercussion, committed perjury as a cooperating witness in a different case.

         The panel held that the district court did not plainly err by failing to hold a competency hearing sua sponte at the outset of trial, at the end of the guilt phase, and during the penalty phase.

         The panel rejected Kadamovas's claim that under Bruton v. United States Mikhel's testimony and refusal to be cross-examined violated Kadamovas's Sixth Amendment Confrontation Clause rights. The panel wrote that because Mikhel's testimony did not facially incriminate Kadamovas, the testimony did not trigger the Bruton rule, and it must be assumed that the jury followed the district court's instruction to disregard Mikhel's testimony. The panel concluded that any error in this regard was harmless.

         The panel held that the district court did not abuse its discretion in denying Kadamovas's motions for complete severance of his case from Mikhel's or in denying his requests for sequential penalty phases.

         Rejecting Kadamovas's evidentiary challenges to his conviction for conspiracy to escape, the panel held (1) that the district court did not err under Fed.R.Evid. 608(b) or the Confrontation Clause in limiting the defense's cross-examination of a cooperating witness; and (2) that the erroneous admission of a letter that was inadmissible hearsay was harmless.

         The panel held that the record supports the district court's determination that there was no pattern of Kadamovas being denied computer access to review discovery materials as contemplated by a stipulation with the government.

         Penalty Phase

         The panel held that the district court did not plainly err by using this circuit's model reasonable-doubt jury instruction in the penalty phase.

         The panel rejected the defendants' contention that the Eighth Amendment and the Federal Death Penalty Act only permit evidence of a victim's personal characteristics in penalty proceedings to the extent they influenced, and thus reveal something about, the relationship the victim had with his or her family. The panel held that the district court did not commit plain error in failing to exclude evidence of a victim's religion in the context of his commitment to his family and celebration of life.

         The panel rejected some of the defendants' contentions as to the propriety of the government's remarks in penalty-phase closing arguments, but agreed with the defendants that the government should not have compared prison life to the victims' deaths. On plain error review, the panel held that the latter statements did not so affect the jury's ability to consider the totality of the evidence fairly that it tainted the verdict and deprived the defendants of a fair trial.

         Assuming without deciding that there was error in the district court's jury instruction and verdict form on the non-statutory aggravating factor of future dangerousnes, the panel held that any error was harmless.

         The panel rejected the defendants' claim that the government commented on their failure to testify at trial in violation of their Fifth Amendment rights under Griffin v. California.

         Regarding Kadamovas's contention that the government, in questioning a witness, appealed to ethnic prejudice in violation of Kadamovas's Fifth Amendment right to a fair trial, the panel held that there was no plain error.

         The panel held that the district court did not abuse its discretion in excluding an interview with Mikhel's ex-girlfriend, offered as mitigating evidence. The panel held that the district court did not abuse its discretion in excluding a portion of an interview with Mikhel's cousin whose plea for mercy was essentially an opinion about what the jury's verdict should be.

         The panel held that the jury could have reasonably relied on the government's guilt-phase evidence to conclude that Kadamovas presented a risk of future dangerousness beyond a reasonable doubt.

         The panel held that the district court did not abuse its discretion in admitting an antique dagger with swastikas on the handle, and did not commit plain error by admitting testimony that Kadamovas referred to the victim as a "fat Jew."

         The panel rejected Kadmovas's argument that the jury's failure to find the mitigating factor that he had no prior criminal record demonstrates that it disregarded its statutory obligation to consider mitigating factors and therefore rendered an arbitrary verdict. The panel explained that the jury was not required to find any mitigating factor, and held that the jury's failure to find that Kadamovas had no prior criminal record was reasonable.

         The panel held that the district court did not abuse its discretion in rejecting Kadamovas's proffer of Lithuania's abolition of the death penalty as a mitigating factor.

         OPINION

         I. BACKGROUND.. ............................ 11

         A. The Hostage-Taking Conspiracy .............. 11

         1. Death of Meyer Muscatel.. ............... 12

         2. Death of Rita Pekler.. ................... 13

         3. Death of Alexander Umansky ............. 14

         4. Deaths of Nick Kharabadze and George Safiev ..................................... 15

         5. The FBI's investigation .................. 17

         B. The Escape Conspiracy and Mikhel's Second Escape Attempt.. ................................ 19

         C. Procedural History. . ...................... 20

         II. ANALYSIS ................................. 22

         A. The Guilt Phase ........................... 23

         1. The Hostage Taking Act. . ............... 23

         2. Defendants' recusal motion ............... 31

         3. Batson challenge. . ..................... 37

         4. The use of an anonymous jury ............. 43

         5. Right to a public trial .................... 46

         6. "Reasonable doubt" instruction as to guilt.. . . 48

         7. Right to two counsel under 18 U.S.C. § 3005 ..................................... 48

         8. Excluded testimony regarding cooperating witnesses. . ........................... 52

         9. Mikhel's competency.. .................. 54

         10. Kadamovas's Confrontation Clause claim.. . . 68

         11. Kadamovas's severance motion.. .......... 75

         12. Kadamovas's conviction for conspiracy to escape ..................................... 79

         13. Kadamovas's access to a computer ......... 83

         B. The Penalty Phase ......................... 84

         1. "Reasonable doubt" instruction as to penalty ..................................... 85

         2. Victim-impact evidence.. ................ 87

         3. Misconduct in penalty-phase closing arguments ..................................... 91

         4. Instruction and verdict form on future dangerousness. . ....................... 96

         5. Griffin error .......................... 104

         6. Examination of Dr. Mark Cunningham ..... 106

         7. Mikhel's excluded mitigation evidence.. . . . 108

         8. Kadamovas's future dangerousness.. ...... 111

         9. Nazi and anti-Semitism evidence.. ........ 113

         10. Kadamovas's mitigating factors.. ......... 116

         11. Lithuania's abolition of the death penalty. . . 117

         III. CONCLUSION ............................. 121

          BYBEE, CIRCUIT JUDGE.

         Between late 2001 and early 2002, defendants Iouri Mikhel and Jurijus Kadamovas abducted, held hostage, and killed five people, dumping each victim's body in the New Melones Reservoir outside Yosemite National Park. After a five-month trial, a jury convicted them of several federal crimes, including multiple counts of hostage taking resulting in death under the Hostage Taking Act, 18 U.S.C. § 1203. As summarized below, the evidence that Mikhel and Kadamovas did these things-and did them without concern for their victims' suffering-was detailed, comprehensive, and in a word, overwhelming.

         In subsequent penalty-phase proceedings under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., the jury unanimously recommended that both defendants be sentenced to death. Defendants now challenge their convictions and death sentences on direct appeal to this court. After extensive briefing and argument from the parties, and our own careful review, we affirm.

         I. BACKGROUND

         A. The Hostage-Taking Conspiracy

         Defendants are foreign nationals under the Hostage Taking Act: Mikhel is Russian, and Kadamovas is Lithuanian. Both lived in Los Angeles, California, during the events underlying this case. Defendants were assisted at various times by coconspirators Petro Krylov, Ainar Altmanis, Aleksejus Markovskis, and Natalya Solovyeva. Altmanis, Markovskis, and Solovyeva all pleaded guilty and testified for the government. Krylov was tried and convicted in a separate trial.

         1. Death of Meyer Muscatel

         In October 2001, Mikhel, Kadamovas, and Altmanis discussed and rehearsed a plan to kidnap local real-estate developer Meyer Muscatel. The plan called for Mikhel to pose as a businessman interested in purchasing real estate. To that end, Mikhel asked Muscatel to view a property with him. Muscatel agreed and drove with Mikhel to the property in question (actually Mikhel's house), where Kadamovas and Altmanis were waiting.

         When Muscatel entered the house, Altmanis and Kadamovas grabbed him. Altmanis bound Muscatel's legs with plastic ties, and Kadamovas handcuffed his arms behind his back. Mikhel duct-taped Muscatel's eyes and pistol-whipped him in the head, drawing blood. Mikhel and Kadamovas then took Muscatel's wallet and credit cards and questioned him about his finances. They attempted to withdraw money from his bank account, but the bank froze the account.

         When Mikhel and Kadamovas determined they would get no money out of Muscatel, they injected him with Dimedrol (an antihistamine with sedative properties) and held him down to the ground. Mikhel closed a plastic bag over Muscatel's head and pinched his nose shut, suffocating him to death. Mikhel and Kadamovas then loaded Muscatel's body into Kadamovas's van and drove to the New Melones Reservoir. They carried his body to the edge of the Parrotts Ferry Bridge and accidentally dropped it on a curb-leaving blood stains-before tossing it into the reservoir. Kadamovas later told his friend Markovskis that he had once thrown a "fat Jew" (i.e., Muscatel) off a bridge. The incident, Markovskis said, "was very funny" to Kadamovas.

         2. Death of Rita Pekler

         Following Muscatel's death, Mikhel and Kadamovas set their sights on kidnapping George Safiev, a wealthy Russian businessman. First, they decided to abduct Safiev's financial advisor, Rita Pekler, to use as bait. In December 2001, Kadamovas contacted Pekler pretending to be interested in her advice on a real estate transaction. Kadamovas had Pekler pick him up and drive him to a property he claimed he was interested in buying (actually his home). Mikhel, Altmanis, and Kadamovas's friend Krylov were already there; Mikhel was carrying a gun with a fake silencer, and Altmanis had a stun gun.

         When Pekler arrived, Mikhel restrained her and told her that, if she brought Safiev to them, they would get her drunk with vodka or inject her with Dimedrol and leave her unharmed in a motel. Pekler told them she was pregnant and afraid alcohol or drugs would harm the baby. Undeterred, defendants persisted in trying to use her to lure Safiev. Pekler eventually contacted Safiev, but he told her he was too busy to meet. Shortly thereafter, Safiev left Los Angeles for Russia. Mikhel and Kadamovas decided Pekler had outlived her usefulness; they injected her with Dimedrol, strangled her, and as with Muscatel, threw her body off the Parrotts Ferry Bridge.

         3. Death of Alexander Umansky

         Later that same month, Krylov suggested abducting his former boss, Alexander Umansky, who owned an automobile shop. Mikhel posed as a customer who needed audio systems installed in two cars and asked Umansky for a ride to one of them. Umansky was excited about the opportunity and agreed to pick up Mikhel. Mikhel directed Umansky to Kadamovas's house, where Kadamovas, Altmanis, and Krylov already lay in wait-Kadamovas with a gun and Altmanis with a stun gun. When Umansky arrived, Kadamovas sat him on a chair, handcuffed his hands behind him, and bound his legs with plastic ties. Mikhel and Kadamovas then took Umansky's keys, telephone, and wallet and questioned him about his finances. Later, Mikhel and Altmanis used Umansky's debit card to withdraw money from an ATM and were captured doing so on a surveillance camera.

         Umansky remained trapped in Kadamovas's home for three days, during which Mikhel and Kadamovas forced him to call his brother and plead for money to secure his release. Eventually, Mikhel and Kadamovas decided they no longer needed Umansky alive. They sent Altmanis to buy weight plates from a used sporting goods store. When Altmanis returned, Mikhel shoved plastic bags in Umansky's mouth, duct-taped his mouth shut, and put a bag over his head, while Kadamovas held him down and pinched his nose shut. When these efforts proved ineffective, Mikhel and Altmanis twisted a rope around Umansky's neck and strangled him from behind. Mikhel, Kadamovas, and Altmanis then tied a weight plate around Umansky's body and put it in Kadamovas's van. They drove to Mikhel's house and-with the body still in the van-had dinner with Mikhel's girlfriend. After dinner, the three of them drove to the New Melones Reservoir, where they threw Umansky's body off the Parrotts Ferry Bridge.

         Mikhel and Kadamovas had previously sent the Umansky family a ransom note demanding nearly $235, 000. The Umansky family contacted the FBI, which advised them to pay just part of the ransom to give the kidnappers a reason to keep Umansky alive. The Umansky family followed the FBI's advice and paid part of the ransom. Later, after receiving a call threatening harm to other family members, they paid the rest of the ransom money. An IRS investigator traced how the ransom payments were laundered abroad before being deposited in accounts held by Mikhel, Kadamovas, and defendants' business, Designed Water World (a fish aquarium store).

         4. Deaths of Nick Kharabadze and George Safiev

         In January 2002, Mikhel and Kadamovas learned Safiev was back in Los Angeles and decided to trap him through his friend and business partner, Nick Kharabadze. They planned for Kadamovas's girlfriend, Solovyeva, to call Kharabadze and tell him she had gotten his phone number from a friend and wanted to meet him. Markovskis was part of the plan and later testified that Mikhel and Kadamovas were in charge and calling all the shots.

         Solovyeva called Kharabadze and asked him to meet her at what she said was a private club but was in fact Designed Water World's office. When Kharabadze arrived, Altmanis and Markovskis were playing pool, Mikhel and Krylov were drinking, and Kadamovas was standing behind a bar. Kadamovas had a revolver hidden under the bar, and Mikhel and Altmanis had guns concealed under their jackets. Solovyeva asked Kharabadze to order her a drink, while Krylov closed the outside door behind him. Mikhel then handcuffed Kharabadze to a chair, took his keys, wallet, and telephone, and explained they wanted him to help them trap Safiev. At their direction, Kharabadze called Safiev and convinced him to come to Designed Water World.

         When Safiev entered Designed Water World, Mikhel, Kadamovas, Altmanis, Krylov, and Markovskis converged on him. Mikhel handcuffed Safiev and took his keys, wallet, and telephone. Mikhel and Kadamovas then transported Kharabadze and Safiev to Kadamovas's house, where they forced Safiev to call his business partner, Konstantinos Tezhik, and beg him to transfer $940, 000 to a foreign account. Kharabadze and Safiev remained imprisoned in Kadamovas's house for four days. During this time, Kadamovas recorded Safiev's voice to use to extort more money after he was dead. Kadamovas also told Markovskis that he planned to continue abducting people and throwing their bodies into the reservoir until he had $50 million, even if it meant piling bodies up to the surface of the water.

         After Mikhel confirmed receipt of the $940, 000, he decided Kharabadze and Safiev were no longer necessary. He and the others got Kharabadze and Safiev drunk with vodka and drove them to the New Melones Reservoir in two cars. On the way, a policeman pulled them over for driving too closely together. Mikhel exited his car and had a brief conversation with the policeman, who sent him on his way. Solovyeva later testified that Kadamovas said he would have killed the policeman if he had seen the hostages in the car.

         At the New Melones Reservoir, Mikhel killed Kharabadze by placing a plastic bag over his head and tightening a plastic tie around his throat. Altmanis tied a weight around Kharabadze's body and assisted in throwing it off the Stevenot Bridge. Safiev had already been killed and thrown into the reservoir in a similar fashion. Mikhel told Altmanis that Safiev, like Pekler, had been difficult to kill because he was "strong as a snake."

         Mikhel used Kharabadze's and Safiev's ATM cards to withdraw money and was again captured on surveillance cameras. Kadamovas then gave the ATM cards to his associate, Vladimir Paniouchkine, who traveled to Germany to withdraw more money. Mikhel used one of Safiev's credit cards to order about $9, 000 in electronic equipment. In addition, Mikhel called Tezhik in London and faxed him a ransom note-which Safiev had signed before he died-demanding another $4 million in ransom. Tezhik tape-recorded his calls with Mikhel.

         All in all, Mikhel and Kadamovas received over $1 million in ransom money from the hostage-taking conspiracy, which they spent on high-end cars, renovations for their homes, lavish presents for their girlfriends, and expensive vacations, among other things.

         5. The FBI's investigation

         A father and son returning from a fishing trip discovered Muscatel's body near the Parrotts Ferry Bridge. Later, Altmanis learned the FBI was investigating him, decided to confess, and helped the FBI find the last four victims' bodies. The FBI wire-tapped Mikhel's and Kadamovas's phones and recorded them discussing ransom money. The FBI also secured data from their cellphones, which showed them driving north on Highway 99 toward the New Melones Reservoir on the days Muscatel, Pekler, Umansky, Kharabadze, and Safiev died.[1]

         The FBI searched Mikhel's house and found extensive physical evidence linking him and Kadamovas to the victims, including the original $4 million ransom note for Safiev, a record of Safiev's and Kharabadze's personal and financial information, four sets of handcuffs, and plastic ties like those found on the victims. Mikhel's and Kadamovas's fingerprints were on many of these items, and Safiev's and Kharabadze's DNA was on the handcuffs. The FBI also found fourteen handguns, handgun parts, ammunition, a silencer, an electric shock baton, a stun gun, and several stolen or fraudulent passports.

         The FBI searched Kadamovas's two residences and found additional evidence connected to the victims. At Kadamovas's house in Sherman Oaks, the FBI found several weight plates (but no weight bars or other exercise equipment) and an envelope with a phone number written on it-the same number that defendants used to call the Umansky family for ransom. At Kadamovas's house in Encino, the FBI found a distinctive dagger linked to defendants' money-laundering scheme, a handgun, ammunition, and shoes with blood stains. The shoes matched the shoeprints left in Muscatel's blood on the Parrotts Ferry Bridge. The carpet in Kadamovas's house matched carpet fibers retrieved from Kharabadze's clothing.

         B. The Escape Conspiracy and Mikhel's Second Escape Attempt

         Following their arrests, Mikhel, Kadamovas, and Krylov were detained at the Metropolitan Detention Center-Los Angeles ("MDC"). Mikhel devised a plan by which he, Kadamovas, Krylov, and others would smuggle tools into their cells and bore holes through their cell walls to reach an adjacent stairwell. Once in the stairwell, they would use a hydraulic pump to push open the window's bars, climb through the window, and rappel down the side of the building. A motorcycle gang would be waiting for them outside and would spin off in different directions before reuniting at a safe house. In accordance with the plan, Mikhel successfully smuggled a veritable hardware store into his cell, including hacksaw blades, wrenches, screwdrivers, fishing line, paint, work gloves, bolt cutters, and a camcorder. Kadamovas was originally housed elsewhere in the facility but managed to change cells to be next to the stairwell intended for the escape.

         Mikhel invited fellow inmate Billy Parker to join the escape conspiracy, offering him the necessary tools (for a price) and warning him they would have to kill any guards they met on their way out. Parker, however, informed MDC officials. In Mikhel's cell, officials found a large hole carved in the wall and his cache of tools. In Krylov's cell, they found a smaller hole, hacksaw blades, and a screwdriver. They did not find any evidence of tunneling or contraband in Kadamovas's cell. Nonetheless, there was extensive evidence linking Kadamovas to the escape conspiracy, as described in detail below.

         After the first escape attempt, Mikhel was moved to a high security section of San Bernardino County's Central Detention Center ("SB-CDC"). There, he was placed under Special Administrative Measures and isolated from other inmates. Despite these measures, Mikhel concocted a detailed escape plan, which he outlined in a letter promising $1 million to an alleged member of the Mexican Mafia in exchange for help. Officials intercepted the letter, and a deputy sheriff assigned to SB-CDC later testified that Mikhel's escape plan was very feasible.[2]

         C. Procedural History

         A grand jury indicted Mikhel and Kadamovas on one count of Conspiracy to Take Hostages Resulting in Death (18 U.S.C. § 1203), three counts of Hostage-Taking Resulting in Death (18 U.S.C. § 1203), Conspiracy to Launder Monetary Instruments (18 U.S.C. § 1956(h)), Conspiracy to Escape from Custody (18 U.S.C. § 371), and Criminal Forfeiture (18 U.S.C. § 981(a)(1)(C), 21 U.S.C. § 853, and 28 U.S.C. § 2461(c)). The government filed a notice of intent to seek the death penalty against both defendants.

         The guilt phase of trial began in July 2006 and spanned five months. The government's case in chief was detailed and thorough, including scores of witnesses who testified over the course of more than thirty trial days. Defendants initially rested their case after just three trial days, but the district court permitted them to reopen their case when Mikhel unexpectedly chose to testify. Mikhel testified on direct for three days, at the end of which he refused to be cross-examined. On Kadamovas's motion, the district court struck Mikhel's testimony and instructed the jury to disregard it. On January 16, 2007, the jury began its deliberations. The very next day, it returned separate verdicts in each defendant's case, finding both defendants guilty on all counts.

         The penalty phase began on January 24, 2007. The FDPA requires the jury to make several findings before recommending a sentence of death. Among other things, the jury must find that at least one statutory aggravating factor exists and that all aggravating factors proven by the government "sufficiently outweigh" any mitigating factors proven by defendants. 18 U.S.C. § 3593(e). The government argued four statutory aggravating factors against both defendants: (1) death during commission of another crime, (2) procurement of offense by payment, (3) substantial planning and premeditation, and (4) multiple killings. See 18 U.S.C. § 3592(c). The government also argued five non-statutory aggravating factors against both defendants: (5) future dangerousness, (6) contemporaneous convictions for multiple offenses, (7) witness elimination, (8) emotional suffering of the victims, and (9) victim impact. The government's penalty-phase case incorporated all of its guilt-phase evidence. In addition, the government presented several victim-impact witnesses and further evidence of Mikhel's escape attempts.

         Mikhel proffered eighteen mitigating factors and presented penalty-phase evidence regarding his upbringing, mental health, and life in Russia, as well as several videotaped interviews of his friends and family. Kadamovas proffered nine mitigating factors and presented penalty-phase evidence regarding statistical violence rates in prisons and the former Soviet Union. The district court charged the jury on February 13, 2007. Later the same day, after a brief three-hour deliberation, the jury returned separate verdicts in each defendant's case. The jury unanimously found every aggravating factor proposed by the government as to both defendants. No juror found any mitigating factor as to either defendant. And the jury unanimously recommended that both defendants be sentenced to death. Accordingly, the district court sentenced both defendants to death on each of the four capital offenses. The court also sentenced them to twenty years' imprisonment on the remaining counts and ordered over $1 million in forfeiture.

         II. ANALYSIS

         Defendants claim errors in both the guilt and penalty phases of trial. We have had the benefit of extensive briefing and oral argument in this case: the briefs totaled more than 1, 700 pages, and the court heard more than three hours of oral argument. The court granted generous extensions of time and space to the parties for briefing; indeed, this direct appeal was heard over ten years after the entry of judgment and fifteen years after the crimes. We will address each claimed error in turn.

         A. The Guilt Phase

         1. The Hostage Taking Act

         Defendants were convicted and sentenced to death on one count of conspiring to take hostages resulting in death and three counts of hostage taking resulting in death under the Hostage Taking Act, 18 U.S.C. § 1203. They seek to overturn their convictions on grounds that the Hostage Taking Act requires a nexus to "international terrorism" and that no such nexus exists here. In the event the Act does not require such a nexus, they claim it exceeds Congress's constitutionally enumerated powers and also violates the Tenth Amendment. We review these questions of statutory construction and constitutional law de novo. See United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012).

         The United States is a party to the International Convention Against the Taking of Hostages, Dec. 17, 1979, T.I.A.S. No. 11081, 1316 U.N.T.S. 205 ("the Treaty"), which binds its signatories to take "effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism." Treaty, pmbl. The Treaty defines hostage taking as follows:

Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person . . . in order to compel a third party . . . to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence ...

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