United States v. Mikhel

889 F.3d 1003

UNITED STATES of America, Plaintiff-Appellee,

v.Iouri MIKHEL, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Jurijus Kadamovas, Defendant-Appellant.

No. 07-99008

No. 07-99009

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2018 Pasadena, California

Filed May 9, 2018

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.

OPINION

BYBEE, Circuit Judge:

Table of Contents

I. BACKGROUND ... 1016

A. The Hostage-Taking Conspiracy ... 1016

1. Death of Meyer Muscatel ... 1016

2. Death of Rita Pekler ... 1017

3. Death of Alexander Umansky ... 1017

4. Deaths of Nick Kharabadze and George Safiev ... 1018

5. The FBI's investigation ... 1019

B. The Escape Conspiracy and Mikhel's Second Escape Attempt ... 1019

C. Procedural History ... 1020

II. ANALYSIS ... 1021

A. The Guilt Phase ... 1021

1. The Hostage Taking Act ... 1021

2. Defendants' recusal motion ... 1025

3. Batson challenge ... 1028

4. The use of an anonymous jury ... 1031

5. Right to a public trial ... 1032

6. "Reasonable doubt" instruction as to guilt ... 1033

7. Right to two counsel under 18 U.S.C. § 3005... 1033

8. Excluded testimony regarding cooperating witnesses ... 1035

9. Mikhel's competency ... 1036

10. Kadamovas's Confrontation Clause claim ... 1042

11. Kadamovas's severance motion ... 1046

12. Kadamovas's conviction for conspiracy to escape ... 1048

13. Kadamovas's access to a computer ... 1050

B. The Penalty Phase ... 1050

1. "Reasonable doubt" instruction as to penalty ... 1051

2. Victim-impact evidence ... 1052

3. Misconduct in penalty-phase closing arguments ... 1054

4. Instruction and verdict form on future dangerousness ... 1056

5. Griffin error... 1059

6. Examination of Dr. Mark Cunningham ... 1061

7. Mikhel's excluded mitigation evidence ... 1062

8. Kadamovas's future dangerousness ... 1063

9. Nazi and anti-Semitism evidence ... 1064

10. Kadamovas's mitigating factors ... 1065

11. Lithuania's abolition of the death penalty ... 1066

III. CONCLUSION ... 1068

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...