071316P.pdf   09/22/2009  United States  v.  Alfonso Rodriguez, Jr.
   U.S. Court of Appeals Case No:  07-1316
   District of North Dakota - Fargo   
   [PUBLISHED] [Benton, Author, with Loken, Chief Judge, and Melloy,
   Circuit Judge]
   Criminal case - Criminal law and Sentencing. District court did not err
   in denying defendant's motion for a change of venue based on pretrial
   publicity; court did not abuse its discretion by denying defendant's
   request for additional funding for further venue studies; jury selection
   plan did not systematically exclude minorities and did not violate
   defendant's right to a fair and impartial jury; district court did not err in
   denying defendant's Batson challenges as the government offered race-
   neutral grounds for its strikes; district court did not err in excluding two
   venire persons who expressed reservations about their ability to impose
   the death penalty; no error in admitting acid-phosphate evidence under
   Rule 702; no err in admitting evidence of defendant's two prior sexual
   assault convictions; no error in admitting victim impact statements during
   the penalty phase of this death penalty case; victim's father's act of
   shaking hands with the prosecutor after the completion of his testimony
   did not improperly bolster the father's testimony or suggest that the
   family desired a death sentence; prosecutor's comments did not misstate
   the law concerning the burden of proof for mitigating factors and did not
   direct the jurors to disregard the factors if they did not have a nexus to 
   the killing; government's comments about sentences for kidnaping and
   kidnaping resulting in murder misstated the law, but did not require a
   new trial; prosecutor's comment regarding the effect a death sentence
   might have on defendant's family were not improper in context of the
   court's comments and the prosecutor's clarification of the argument; in
   any event, the jury found the impact on defendant's family was a
   mitigating factor, thereby showing it did not disregard the factor as
   irrelevant; prosecution's comments on the fact that defendant offered to
   plead guilty in exchange for a life sentence (thereby showing the
   mitigating factor of acceptance of responsibility) did not prejudice
   defendant or require a mistrial; while the prosecution should not
   disparage the defendant's mitigation evidence by arguing that he was just
   "put[ting] stuff up and hop[ing] it sticks," or suggesting counsel was
   "selling" the case, the comments did not require a new trial; asking the
   jurors to imagine what the victim went through was permissible; while
   asking the jurors to imagine the victim's "raw fear" was an impermissible
   "golden rule"argument, as the government did not produce any evidence
   of her fear, the comments did not affect defendant's substantial rights; a
   prosecutor's brief claim to "speak for" the victim is improper if, in the
   context of the surrounding statements, it appeals excessively to the jurors'
   emotions; here, however, the surrounding statements focused on the
   government's case, not sympathy for the victim or her family, and the
   comment was not improper; any error in the prosecutor's comments
   characterizing defendant's prior criminal history for sexual assault was
   harmless; no error in admitting defendant's prior convictions to establish
   the aggravating factor in 18 U.S.C. Sec. 3592(c)(4) as the previous
   victims' testimony established they suffered serious bodily injury during
   defendant's sexual assaults; no error in penalty-phase instructions;
   constitutional challenges to federal death penalty rejected. Judge Melloy,
   concurring in part and dissenting in part.