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Date: 08-26-2021
Case Style:
United States of America v. DYLANN STORM ROOF
Criminal Death Penalty
Case Number: 17-3
Judge: PER CURIAM
Court: UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Plaintiff's Attorney: Brian C. Rabbitt, Acting Assistant
Attorney General, Robert A. Zink, Acting Principal Deputy Assistant Attorney General,
Criminal Division, Eric S. Dreiband, Assistant Attorney General, Alexander V. Maugeri,
Deputy Assistant Attorney General, Thomas E. Chandler, Brant S. Levine, Appellate
Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Peter M. McCoy, Jr., United States Attorney, Columbia, South
Carolina, Nathan S. Williams, Assistant United States Attorney
Defendant's Attorney:
Description:
Richmond, VA - Criminal defense lawyer represented defendant with nine counts of murder, three counts of attempted murder, and one weapon-possession count charges.
I. OVERVIEW
In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the
historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston,
South Carolina during a meeting of a Wednesday night Bible-study group. A jury
convicted him on nine counts of racially motivated hate crimes resulting in death, three
counts of racially motivated hate crimes involving an attempt to kill, nine counts of
obstructing religion resulting in death, three counts of obstructing religion involving an
attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to
commit murder during and in relation to a crime of violence. The jury unanimously
recommended a death sentence on the religious-obstruction and firearm counts, and he was
sentenced accordingly. He now appeals the convictions and sentence. Having jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm.2
2 The present panel is sitting by designation, but because we are applying Fourth
Circuit law, and for ease of reference, we take the liberty of speaking in the first-person
plural.
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II. BACKGROUND
A. The Crime
On June 17, 2015, twelve parishioners and church leaders of Mother Emanuel—all
African Americans—gathered in the Fellowship Hall for their weekly Bible-study. Around
8:16 p.m., Roof entered the Fellowship Hall carrying a small bag that concealed a Glock
.45 semi-automatic handgun and eight magazines loaded with eleven bullets each. The
parishioners welcomed Roof, handing him a Bible and a study sheet.
For the next 45 minutes, Roof worshipped with the parishioners. They stood and
shut their eyes for closing prayer. Roof then took out his gun and started shooting.
Parishioners dove under tables to hide. Roof continued shooting, reloading multiple times.
After firing approximately seventy-four rounds, Roof reached one parishioner who was
praying aloud. He told her to “shut up” and then asked if he had shot her yet. (J.A. at
5017.) She said no. Roof responded, “I’m going to leave you here to tell the story.” (J.A.
at 5017.) Roof left the church around 9:06 p.m. When police arrived, seven of the twelve
parishioners were dead. Two others died soon after. Roof killed Reverend Sharonda
Coleman-Singleton, Cynthia Hurd, Susie Jackson, Ethel Lee Lance, Reverend Depayne
Middleton-Doctor, Reverend Clementa Pinckney, Tywanza Sanders, Reverend Daniel
Simmons, Sr., and Reverend Myra Thompson.
B. Arrest, Confession, and Evidence Collection
Police began searching for Roof, publicizing photos and setting up a phone bank.
Acting on a tip the next morning, officers in Shelby, North Carolina stopped Roof’s car.
Roof complied with their directions, identified himself, admitted involvement in the
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shooting, and said that there was a gun in his backseat. Officers took Roof to the Shelby
police station, where he agreed to speak with FBI agents.
After obtaining a written Miranda waiver, two FBI agents interviewed Roof for
about two hours. He confessed: “Well, I did, I killed them.” (J.A. at 4265.) He also
laughingly stated, “I am guilty. We all know I’m guilty.” (J.A. at 4308.) He explained that
he shot the parishioners with a Glock .45 handgun he had bought two months earlier.
Calling himself a “white nationalist,” he told agents that he “had to do it” because “black
people are killing white people every day” and “rap[ing] white women.” (J.A. at 4269,
4282.) The agents asked whether he was trying to start a revolution. Roof responded, “I’m
not delusional, I don’t think that[,] you know, that something like what I did could start a
race war or anything like that.” (J.A. at 4284.) Later in the interview, however, he agreed
that he was trying to “bring . . . attention to this cause” and “agitate race relations” because
“[i]t causes friction and then, you know, it could lead to a race war.” (J.A. at 4301, 4329-
30.) Roof explained that he targeted Charleston for his attack because of its historic
importance and, after researching African American churches in Charleston on the internet,
he chose to attack parishioners at Mother Emanuel because of the church’s historic
significance. At one point in the interview, he said, “I regret doing it a little bit” because
“I didn’t really know what I had, exactly what I’ve done.” (J.A. at 4302-03.) But his
meticulous planning for the murder spree contradicts that statement. During his pre-attack
planning, in addition to researching Mother Emanuel on the internet, Roof visited Mother
Emanuel and learned from a parishioner that a Bible-study group met on Wednesday
nights.
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He also used the internet to propagate his racist ideology. In a journal that the police
found in Roof’s home, Roof had written the name of a website he had created. The website
was hosted by a foreign internet server, to which Roof made monthly payments. Hours
before the shootings, Roof uploaded racist material to the website. The website included
hyperlinks to text and photos. The text linked to a document where Roof expressed his
virulent racist ideology, claimed white superiority, and called African Americans “stupid
and violent.” (J.A. at 4623-27.) He discussed black-on-white crime, claiming it was a
crisis the media ignored. He issued a call to action, explaining that it was not “too late” to
take America back and “by no means should we wait any longer to take drastic action.”
(J.A. at 4625.) He stated that nobody was “doing anything but talking on the internet,” that
“someone has to have the bravery to take it to the real world,” and “I guess that has to be
me.” (J.A. at 4627.)
C. Indictment and Trial
The day after the shootings, the state of South Carolina charged Roof with nine
counts of murder, three counts of attempted murder, and one weapon-possession count.
About a month later, Roof was indicted in the United States District Court for the District
of South Carolina with the crimes at issue in this case: Counts 1 through 9, racially
motivated hate crimes resulting in death, in violation of 18 U.S.C. § 249(a)(1); Counts 10
through 12, racially motivated hate crimes involving an attempt to kill, in violation of 18
U.S.C. § 249(a)(1); Counts 13 through 21, obstructing religious exercise resulting in death,
in violation of 18 U.S.C. § 247(a)(2) and (d)(1); Counts 22 through 24, obstructing
religious exercise involving an attempt to kill and use of a dangerous weapon, in violation
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of 18 U.S.C. § 247(a)(2), (d)(1), and (d)(3); and Counts 25 through 33, use of a firearm to
commit murder during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) and (j). Both the state and the federal governments gave notice of their intention
to seek the death penalty.
The district court appointed an attorney with extensive capital-case experience as
lead counsel for Roof. Before trial, Roof moved to dismiss the indictment on several
grounds. He argued that the religious-obstruction statute, 18 U.S.C. § 247(a)(2), exceeds
Congress’s Commerce Clause authority, and that the hate-crime statute, 18 U.S.C.
§ 249(a)(1), exceeds Congress’s Thirteenth Amendment power. He also argued that
neither is a predicate “crime of violence” under the federal firearm statute, 18 U.S.C.
§ 924(c), and that the Attorney General had erroneously certified Roof’s prosecution under
18 U.S.C. § 249. The court denied the motion and rejected Roof’s alternative argument
that the religious-obstruction charges were improper because he did not act in interstate
commerce.
Roof offered to plead guilty in exchange for a sentence of life without parole. The
federal government declined. The court entered a not guilty plea on Roof’s behalf and set
trial for November 7, 2016.3 As trial approached, the court ruled on a number of issues,
3 The plea was entered pursuant to this colloquy:
DEFENSE COUNSEL: Mr. Roof has told us that he wishes to plead guilty.
However, the Government has not yet decided whether it is going to seek the
death penalty. And we understand that that process takes some time, takes
some time for the Government to make that determination. Until we know
whether the Government will be asking for the death penalty, we are not able
10
described below. Trial began on December 7, 2016, and lasted until December 15, 2016,
when the jury rendered its verdict, finding Roof guilty on all counts.
D. Appeal
Roof now appeals four broad categories of issues: (1) his competency to stand trial
and issues relating to his competency hearings; (2) his self-representation; (3) alleged
errors in the penalty phase of the trial; and (4) alleged errors in the guilt phase of the trial,
including whether the charging statutes are unconstitutional. We must “address all
substantive and procedural issues raised on the appeal of a sentence of death, and shall
consider whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor and whether the evidence supports the special
finding of the existence of an aggravating factor required to be considered under section
3592.”4 18 U.S.C. § 3595(c)(1).
III. ISSUES RELATED TO COMPETENCY
We first address Roof’s challenges to his competency to stand trial and issues
relating to his competency hearings. Specifically, Roof argues: first, that the district
court erred in finding him competent to stand trial; second, that the district court abused
to advise Mr. Roof to enter a plea of guilty. And for that reason, we
understand that the Court will enter a plea on his behalf.
THE COURT: I’ll just direct that a plea of not guilty be entered at this time
for the defendant, based on your comment to the Court.
(J.A. at 77.)
4 The aggravating factors found by the jury are described infra note 34 and Section
V.A.3. We agree that the evidence supports the jury’s findings.
11
its discretion by refusing to grant a continuance ahead of the first competency hearing;
and third, that the district court abused its discretion by limiting evidence allowed at the
second competency hearing. We disagree and discern no merit in Roof’s contentions.
A. Competency Background
Before trial, defense counsel gave notice of their intent to call an expert on Roof’s
mental health at the penalty phase. The government then obtained permission to have its
own expert, Dr. Park Dietz, examine Roof. During a visit with Dr. Dietz, Roof learned for
the first time that his lawyers intended to call an autism expert to say that Roof was on the
autism spectrum. The news upset him. He underwent a “substantial mood change” and
became “oppositional.” (J.A. at 538, 544.) Soon after, he sent a letter to the prosecution,
accusing his attorneys of misconduct. He said, “what my lawyers are planning to say in
my defense is a lie and will be said without my consent or permission.” (J.A. at 587.) He
believed that his lawyers were “extremely moralistic about the death penalty” and that they
“have been forced to grasp at straws” because he “ha[s] no real defense,” or at least “no
defense that my lawyers would present or that would be acceptable to the court.” (J.A. at
589.)
Learning of the letter shortly before trial, defense counsel requested an ex parte
hearing. The next day, defense counsel requested a competency hearing. On November
7, before ruling on competency, the court held the requested hearing and questioned Roof
about the letter. Roof explained that he was unwilling to allow mental health mitigation
evidence because “if the price is that people think I’m autistic, then it’s not worth it” and
“[i]t discredits the reason why I did the crime.” (J.A. at 629, 632.) Defense counsel stated
12
that they had considered Roof’s perspective but determined, in their professional judgment,
that presenting the evidence was in Roof’s best interest.
1. First Competency Hearing
Following the ex parte hearing, the court delayed the first day of individual voir dire
and ordered a competency hearing. To conduct a competency evaluation, it appointed Dr.
James C. Ballenger—“one of the nation’s most renowned and respected psychiatrists,” and
the chair of the Department of Psychiatry and Behavioral Sciences at the Medical
University of South Carolina for seventeen years. (J.A. at 2068.) Although Dr. Ballenger
had extensive experience as a psychiatrist, this was his first pretrial competency
examination. Dr. Ballenger submitted his report on November 15. Defense counsel asked
that the court postpone the competency hearing, scheduled for November 17, until
November 28, for three primary reasons: (1) defense counsel was “utterly unprepared to
engage on such short notice the factual, ethical, legal, and forensic science issues raised by
92 pages of psychiatric and psychological reports”; (2) Roof disagreed with defense
counsel’s mental health mitigation defense, which led to a breakdown in the attorney-client
relationship, especially on competency issues; and (3) the mental health experts lacked
sufficient time to reliably evaluate Roof’s competency. (J.A. at 773.) They also argued
that Dr. Ballenger’s report failed to address a central issue—autism spectrum disorder
(“ASD”). Furthermore, the defense’s autism expert, Dr. Rachel Loftin, was out of the
country until November 28 and could not finalize her report in time.
To provide adequate time for the defense to prepare, the court rescheduled the
competency hearing for November 21. On the first day of the hearing, defense counsel
13
moved for another week’s continuance because they still felt “unprepared to proceed” and
several of their witnesses were unavailable to testify in person. (J.A. at 894-95.) The court
denied the request, finding it “not credible” that they were not prepared. (J.A. at 895-96.)
It offered to allow the defense experts to appear remotely.
Dr. Ballenger testified first. He had met with Roof three times for a total of eight
hours. Dr. Ballenger also spoke with the defense team for one hour and forty-five minutes
to listen to their experience working with Roof. He opined that Roof was competent to
stand trial, noting that “he does not have difficulty in understanding the procedures that he
is involved in” and that “there is evidence that he can” assist counsel. (J.A. at 908-09.) He
noted that Roof’s full-scale IQ of 125 and verbal IQ of 141 placed him in the 96th and
99.7th percentile of the population, respectively. 5 Dr. Ballenger believed that Roof
understood the proceedings better than the average defendant and that it was “very clear”
he had the ability to cooperate with his attorneys, should he so desire. (J.A. at 908-09,
915.) According to Dr. Ballenger, Roof’s unwillingness to cooperate was not the result of
“widespread psychosis,” but rooted in “a deep seated racial prejudice” that Roof did not
want “blurred” by a mental health defense. (J.A. at 909, 913-15, 1346.) Dr. Ballenger
testified that Roof likely suffers from social anxiety disorder and schizoid personality
disorder and that Roof might have some autistic spectrum traits but does not suffer from a
psychotic process. Defense counsel pressed Dr. Ballenger on what the defense perceived
to be his failure to fully consider the effects of Roof’s alleged ASD. Dr. Ballenger
5 The record indicates that Roof’s full-scale IQ score is in the 95th percentile.
14
explained that the pertinence of any ASD diagnosis was already captured in his evaluation
of Roof’s mental state and ability to assist counsel as required under the competency
standard.
After Dr. Ballenger, the court heard live testimony from three defense witnesses: an
examining forensic psychiatrist, Donna S. Maddox, M.D.; a psychologist, William J.
Stejskal, Ph.D.; and an autism expert, Laura Carpenter, Ph.D. The court also accepted
affidavits from three other defense witnesses: an autism expert who had examined Roof,
Rachel Loftin, Ph.D.; a professor diagnosed with ASD who had met with Roof and defense
counsel, Mr. John Elder Robison; and a psychologist who had commented on the
limitations of personality testing, John F. Edens, Ph.D.
The forensic psychiatrist, Dr. Maddox, had met with Roof nine times for a total of
about twenty-five hours (seven times before Roof complained of his attorneys’ supposed
misconduct and two times after). Referencing the Diagnostic and Statistical Manual of
Mental Disorders, 5th Edition (DSM-5), Dr. Maddox believed that Roof suffers from
“autism spectrum disorder,” “other specified schizophrenia spectrum disorder and other
psychotic disorder,” and “other specified anxiety disorder.” (J.A. at 1486, 5243.) She
based those opinions on her observations that Roof used pedantic speech, which she
associated with ASD; that he exhibited “disorganized thinking” and
inappropriate/constricted affect; that he lacked “insight that he has a psychotic thought
process”; that he has a history of somatic delusions that cause him to believe that his head
is lopsided, that his hair is falling out, and that all of his testosterone pooled to the left side
of his body; that he exhibited “paranoid beliefs” about defense counsel, such as trying to
15
discredit him and ultimately have him killed; and that he displayed “transient symptoms of
psychosis.” (J.A. at 1491, 1497, 1500-01, 1503-06, 1514-15, 1537.) Dr. Maddox stated
that she did not believe Roof had the capacity to understand the proceedings or assist
counsel because he had stated multiple times that even if he were sentenced to death, he
would not be executed. In sum, she concluded that Roof was not competent to stand trial.
Dr. Stejskal, a psychologist, had met with Roof for about one hour and forty-six
minutes over two days. He opined that Roof was “in the prodromal phase of an emerging
schizophrenic spectrum disorder,” 6 but was “not yet fully possessed of a delusional
disorder.” (J.A. at 1690-91.) Dr. Stejskal offered no “settled conclusion” as to how that
diagnosis affected Roof’s competency, stating only “I certainly have concerns.” (J.A. at
1668-69, 1690.) Although he did not have firsthand information about Roof’s beliefs,
Stejskal was concerned that Roof might make decisions based on “potentially delusional
beliefs” that he would be liberated from prison. (J.A. at 1698-1700.) He believed that
Roof was motivated and intelligent enough to mask his irrational beliefs by telling the court
that he believed his chance of liberation was low. Dr. Stejskal testified that Roof was
“trying to look bad” by selecting antisocial features during personality testing while also
“denying psychopathology.” (J.A. at 1701, 1709-10.) But he acknowledged that Roof
scored within the normal range on the Positive Impression Management Scale, which
detects whether a person is trying to portray themselves in an unrealistically positive way.
6 Prodrome is “[a]n early or premonitory manifestation of impending disease before
the specific symptoms begin.” Prodrome, McGraw-Hill Dictionary of Scientific and
Technical Terms (6th ed. 2003).
16
He did not opine on Roof’s competency. He also noted that Roof exhibited reduced
processing speed and a low working memory index.
Dr. Carpenter, an autism expert, had not examined Roof and did not opine on his
competency. She testified instead about common traits associated with ASD, including
how it affects social communication and the ability to form relationships and understand
social rules. Dr. Carpenter was unable to offer an opinion on whether ASD would disrupt
Roof’s ability to assist counsel. Referencing the affidavit of Professor Robison, Dr.
Carpenter noted that Roof’s supposed belief that he was going to be pardoned was
concerning and “those types of irrational beliefs are not necessarily just due to autism and
might suggest that something else was going on here as well.” (J.A. at 1638.)
Dr. Loftin, an autism expert, had met with Roof three times. Testifying by affidavit,
she opined that Roof has ASD. He had told her that he was “not afraid of receiving a death
sentence” because he anticipated being “rescued by white nationalists after they take over
the government.” (J.A. at 1774.) She also noted that Roof had psychiatric symptoms not
explained by ASD, including anxiety, depression, suicidal ideation, obsessive-compulsive
symptoms, disordered thinking, and, as manifestations of psychosis, delusions of grandeur
and somatic delusions. She believed that his symptoms were “consistent with the
schizophrenia spectrum” but that it was “too early to predict his psychiatric trajectory.”
(J.A. at 1774.) Dr. Loftin did not opine directly on Roof’s competency.
Professor Robison, a professor who himself has ASD, had met with Roof. By
affidavit, he testified that some of Roof’s traits are common in people with ASD:
inappropriate facial expressions, developmental delay, and unusual preoccupation with
17
things like clothing. Professor Robison stated that Roof had asked him not to testify,
asserting that he was going to be pardoned in four or five years anyway. To Professor
Robison, that “seemed delusional,” a trait distinct from ASD. (J.A. at 1823-24.) He also
listed concerns about Roof’s ability to assist in his own defense, including Roof’s apparent
extreme sensory sensitivities, problems with executive functioning, and possible cognitive
overload from the stress of trial.
Dr. Edens, a psychologist and lead author of a personality-assessment test similar
to one that Roof took, had not examined Roof, but testified by affidavit about his review
of Dr. Ballenger’s report. Dr. Edens raised concerns about Dr. Ballenger’s interpretation
of Roof’s personality tests, concluding, “I believe there are significant problems with how
the . . . findings have been interpreted in this case, particularly in regards to Dr. Ballenger’s
claims that they provide ‘absolutely no evidence of psychosis.’” (J.A. at 1783.)
The court also heard from Roof. Roof confirmed his understanding that he would
likely be executed if sentenced to death. When the court asked whether Roof thought that
he would be rescued from the death penalty by white nationalists, he responded that
“[a]nything is possible,” but he understood that the chance of rescue was “extremely
unlikely” and “[l]ess than half a percent.” (J.A. at 1729-30.)
Roof also confirmed his ability to communicate with his lawyers, clarifying that he
limited communication because he disagreed with their mitigation strategy. He stated that
he did not want to introduce mental health evidence because it would discredit his act,
which he argued was an attempt to increase racial tension and contribute to a potential
white nationalist revolution. Roof also noted his disagreement with parts of Dr. Ballenger’s
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report, stating that he had never claimed that he wanted to be seen as a hero or that he
wanted to preserve his reputation as “a perfect specimen.” (J.A. at 1733, 1741.) Rather,
Roof explained that he wanted to avoid institutionalization and forced medication.
Following the two-day competency hearing, the district court determined that Roof
was competent to stand trial. Although the court viewed the defense experts’ testimony on
ASD as relevant mitigation evidence, it did not believe that the defense experts had shown
that Roof’s possible ASD would affect his understanding of the proceedings or his ability
to assist counsel. The court also noted that Dr. Maddox was the only defense witness who
opined on Roof’s competency and acknowledged Dr. Maddox’s concern that Roof believed
white nationalists would save him from a death sentence. But both the court and Dr.
Ballenger closely questioned Roof on that issue and Roof confirmed his understanding that
a death sentence would likely result in his death. The court disagreed with defense
counsel’s objections to Dr. Ballenger’s experience, stating that Dr. Ballenger’s assessment
was superior to most competency evaluations in terms of “thoroughness, insight, and
analysis.” (J.A. at 2068-69 n.2.) It also relied on Roof’s confirmation that his dispute with
his attorneys was because he opposed their mental health mitigation strategy, as well as his
confirmation that he could communicate with them if he so chose. According to the court,
Roof’s demeanor during the competency hearing “suggested . . . no psychosis or severe
mental distress” and “raised not the slightest question or concern regarding his competency
to stand trial.” (J.A. at 2078.)
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2. Second Competency Hearing
After the guilt phase of the trial, Roof advised the court that he wished to represent
himself during the penalty phase. That reaffirmed a position he took after jury selection,
when he switched from self-representation to being represented by counsel but argued for
a right to revert to self-representation for the penalty phase of the trial. On December 29,
2015, before the penalty phase began, standby counsel challenged Roof’s competency to
stand trial or to represent himself during the penalty phase. Standby counsel stated that
“facts developed since the [first] competency hearing” supported a finding that Roof was
by then incompetent. (J.A. at 5242.) Standby counsel expressed concern that Roof had
decided to forego substantial mitigation evidence, and they believed that Roof would not
defend himself during the penalty phase because he wanted to prevent the release of his
mental health information. They described Roof’s preoccupation with his clothing and
other odd behavior during trial. Their competency motion included exhibits from four
experts, three of whom had testified or submitted affidavits at the first competency hearing
but had since completed additional reports. The three who had provided earlier opinions
were Dr. Loftin, the examining autism expert; Dr. Maddox, the examining forensic
psychiatrist; and Professor Robison, the professor with ASD. Opining for the first time
was Dr. Paul J. Moberg, Ph.D., a neuropsychiatrist who had evaluated Roof three times in
February 2016. Standby counsel requested consideration of the reports, “which did not yet
exist at the time of the competency proceedings in November.” (J.A. at 5243-44.)
In “an abundance of caution,” the district court ordered Dr. Ballenger to re-examine
Roof and set a hearing for January 2, 2017. (J.A. at 5463-64.) The court advised the parties
20
that it would “only hear evidence related to any developments since the November 21-22,
2016 hearing.” (J.A. at 5463.) Standby counsel requested a one-week continuance to allow
more time for Dr. Ballenger and defense experts to meet with Roof. The court denied the
motion, stating that the scope of the hearing was limited; it was not a “redo” of the first
hearing. (J.A. at 5470-71.)
At the beginning of the hearing, the court stated that the “law of the case is that as
of November 22nd, 2016, the defendant was competent. If there is any material change
since then, I want to hear about it. No witness is going to be talking about something before
that date because the law of the case is already established.” (J.A. at 5519-20.) Standby
counsel objected to that limitation, arguing that it would preclude evidence of Roof’s
history of delusions and other psychotic symptoms evidenced by the now-completed
reports of multiple defense experts. The court disagreed.
Dr. Ballenger testified first. The week prior, he had met with Roof for a total of five
hours over two days, completed his evaluation, and wrote a second report. He testified that
he had read standby counsel’s competency motion and exhibits and had “thoroughly”
discussed the issues with Roof. (J.A. at 5533; see also J.A. at 5978-79.) Dr. Ballenger
opined that Roof still understood the issues and could assist counsel if he so desired.
However, he explained that Roof was unwilling to assist his attorneys because he “wants
the right message to get out and not have it besmirched or muddied by saying that he did it
because he was psychotic or had somatic delusions or was autistic, but that it simply be a
political act.” (J.A. at 5537, 5543, 5979-80, 5992.) Dr. Ballenger testified that mental
illness did not control Roof’s decision-making; that Roof’s decision to reject mental health
21
evidence was instead a logical extension of his political and social beliefs. In support, Dr.
Ballenger noted that Roof compared himself to a terrorist who successfully murdered
people as a “purely political act.” (J.A. at 5539-40, 5982, 5985.)
Dr. Ballenger testified that people might project mental illness onto Roof because
they cannot comprehend the depth of his racist views. He also testified that any autistic
traits did not affect Roof’s competency. Dr. Ballenger had questioned Roof again on his
alleged belief that he would not be executed if sentenced to death, and Roof explained that
he thought there was a “greater than 50% chance” he would receive the death penalty. (J.A.
at 5546-47, 5981.) Although Roof had said that he hoped the death penalty will be
abolished, he had laughed when Dr. Ballenger spoke about white nationalists rescuing him
from prison. Dr. Ballenger believed that Roof was “mess[ing] with people” when he said
that, and that Roof did not have “a shred of doubt” that he faced a real risk of death. (J.A.
at 5547, 5584, 5598.) Considering whether Roof’s denials of incompetence should
influence his competency determination, Dr. Ballenger stated: “[E]very part of my
examination beginning to the end was a test of his competency to stand trial. And . . . I
didn’t find any significant problem with his competence to stand trial and defend himself.”
(J.A. at 5544.) As the court stated, Dr. Ballenger “systematically [went] through each of
those issues that had been raised in the motion” and concluded that “there was no change”
in Roof’s “capacity to understand the issues and to assist his attorneys.” (J.A. at 5535.)
Defense counsel moved to submit the newly completed reports from their experts,
none of whom had examined Roof since the first competency hearing. The court admitted
22
the written reports but limited testimony to evidence arising after the first competency
hearing.7
Dr. Loftin, the autism expert, testified and explained that she had observed (on
video) traits consistent with attenuated psychosis and ASD. She said that some of these
traits might impair Roof’s ability to assist in his defense: Roof fixated on minor details
while missing larger, more important ones; he got “stuck” and couldn’t transition between
topics; and he could not understand others’ points of view. (J.A. at 5654-60.)
Appearing for the first time, Father John E. Parker, an Orthodox Christian priest,
also testified. He said he had visited Roof weekly beginning about a week after the
shootings, spending approximately 100 hours with him. Father Parker testified that he
could not reconcile Roof with the crime because Roof seemed neither cold-hearted nor
angry, so “[t]he only way I can explain it is mental illness.” (J.A. at 5690-92.) Father
Parker did not think that Roof was a white nationalist, despite his self-professed beliefs.
He noted that Roof was intelligent and could recite facts read years earlier. When Roof
7 Dr. Loftin’s report included a detailed description of Roof’s social history,
including what she identified as early signs of mental illness. She concluded that Roof has
ASD and symptoms of psychosis. Dr. Maddox’s report reflected her evaluation of Roof
over several months. She diagnosed Roof with ASD, attenuated psychosis, and “other
specified anxiety disorder,” along with other conditions. (J.A. at 5369.) She concluded
that “Roof’s impairments prevent him from rationally communicating with his attorneys
and weighing the risks and benefits of trial-related decisions, and from being able to assist
in his own defense.” (J.A. at 5381.) Dr. Moberg’s report suggested that Roof has “mild
frontal system dysfunction” and found that Roof’s symptoms and history “are most
consistent with a developmental disorder with psychosis spectrum features.” (J.A. at 5359-
60.) He stated that those impairments could interfere with Roof’s ability to weigh options,
integrate new information, make decisions, and modify his behavior.
23
spoke about race, however, Father Parker admitted that he sounded like a “broken record,”
stuck in a loop of white nationalist rhetoric. (J.A. at 5689-90.)
Three of Roof’s attorneys submitted a sworn declaration describing Roof’s behavior
during jury selection and the guilt phase of trial. They said that Roof demanded they “do
nothing” and “stop making objections,” saying their efforts were causing him harm and
that they were “trying to kill” him. (J.A. at 5475.) According to their declaration, Roof
thought that the testimony of a female South Carolina law enforcement agent who read his
journal into the record—including incendiary statements about “Blacks,” “Jews,” and
“Homosexual[s]”—was “‘great’ for him” because she had “a nice voice.” (J.A. at 5476;
see J.A. at 4234-59.) He insisted that he did not have somatic delusions because his head
and body are truly deformed. He expressed confidence that the jurors would not sentence
him to death because they liked him, and that, if they did impose a death sentence, he could
stop the execution by crying before they stuck the needle in his arm. He accused his
lawyers of “trying to kill [him]” because the sweater they provided him felt filmy and
smelled of detergent. (J.A. at 5476.) And he criticized defense counsel’s closing argument
because counsel did not tell jurors the statistics of black-on-white crime.
At the end of the competency hearing, the court directly questioned Roof. He again
denied believing that he would be saved by white nationalists if he received the death
penalty. He acknowledged a high risk that he would be sentenced to death, and ultimately
executed, if he presented no mitigation evidence. Roof confirmed once more that, to
prevent his lawyers from undermining his message with mental health evidence, he wanted
to represent himself.
24
The court found Roof “plainly competent to stand trial.” (J.A. at 6956.) In its view,
Roof “fully understands that he faces a high risk of a death sentence if he presents no
mitigation witnesses, and he understands that he faces a high risk of execution if sentenced
to death.” (J.A. at 6966.) It again concluded that Roof’s resistance to mental health
evidence “continues to arise out of his political ideology, rather than any form of mental
disease or defect” and that his “social anxiety, possible autism, and other diagnoses or
possible diagnoses do not prevent him from understanding the proceedings or assisting
counsel with his defense.” (J.A. at 6966; see also J.A. at 6962.)
B. Issue 1: The District Court Did Not Clearly Err in Finding Roof
Competent to Stand Trial
Roof now argues, through counsel, that the district court incorrectly found him
competent to stand trial. The government counters that the district court’s finding was not
clearly erroneous and that any discrepancies between expert opinions do not warrant
reversal. We agree with the government and find no clear error in the district court’s
competency determination.8
“A criminal defendant may not be tried unless he is competent.” Godinez v. Moran,
509 U.S. 389, 396 (1993) (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). A defendant
8 “We review the district court’s competency determination for clear error.” United
States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). “[B]ecause district courts are in the
best position to make competency determinations, which at bottom rely not only on a
defendant’s behavioral history and relevant medical opinions, but also on the district
court’s first-hand interactions with, and observations of, the defendant and the attorneys at
bar, we appropriately afford them wide latitude.” United States v. Bernard, 708 F.3d 583,
593 (4th Cir. 2013).
25
is competent when “he has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and [when] he has a rational as well as
factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S.
402, 402 (1960). “Not every manifestation of mental illness demonstrates incompetence
to stand trial; rather, the evidence must indicate a present inability to assist counsel or
understand the charges.” Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000) (citation
omitted). “Likewise, neither low intelligence, mental deficiency, nor bizarre, volatile, and
irrational behavior can be equated with mental incompetence to stand trial.” Id. A district
court is “only required to ensure that [a defendant] had the capacity to understand, the
capacity to assist, and the capacity to communicate with his counsel.” Bell v. Evatt, 72
F.3d 421, 432 (4th Cir. 1995). “Under federal law the defendant has the burden, ‘by a
preponderance of the evidence’” to show mental incompetence to stand trial—that is, “that
the defendant is presently suffering from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand the nature and consequences of
the proceedings against him or to assist properly in his defense.” United States v. Robinson,
404 F.3d 850, 856 (4th Cir. 2005) (quoting 18 U.S.C. § 4241(d)).
Roof raises five potential errors. First, in a reversal of the position that he had taken
in the district court and in opposition to his lawyers, he argues that the district court
improperly characterized his expectation of a racial revolution as racist, rather than
delusional. Citing United States v. Watson, Roof claims that psychotic delusions made him
incompetent to stand trial. 793 F.3d 416 (4th Cir. 2015). In support of that contention, he
points to several defense experts who opined that he was operating under the delusional
26
belief that he would be rescued from death row by a white nationalist revolution. But that
position reflects only one view contained in the record. Dr. Ballenger alternatively opined
that Roof’s unwillingness to cooperate with defense counsel was not the result of an
underlying “widespread psychosis,” but was instead rooted in “a deep seated racial
prejudice” that Roof did not want “blurred” by a mental health defense. (J.A. at 909, 913-
15, 1346.) Dr. Ballenger further noted: “[T]he fanciful notions that he’ll be rescued by
white nationalists, revolutionaries who have taken over the Government and let him out of
jail, he laughs about the humor involved with that . . . [H]e likes to mess with people.”
(J.A. at 5546-47.) During his evaluation, Roof said that he “has some hope that the death
penalty will be abolished and that he won’t actually be executed,” but he still considered
execution likely. (J.A. at 5546.) Dr. Ballenger said that he did not think Roof “has a shred
of doubt” about the “real risk that he faces” from trial and sentencing. (J.A. at 5547.)
The district court itself also questioned Roof on whether he thought that white
nationalists would rescue him from the death penalty. Roof responded that “[a]nything is
possible” and he would like for that to happen, but he understood the chance of his actually
being rescued was vanishingly small, quantified as “[l]ess than half a percent.” (J.A. at
1729.) Given the conflicting record evidence and expert testimony, the court’s decision to
accept Dr. Ballenger’s account is not “against the great preponderance of the evidence.”9
9 United States v. Watson is also distinguishable because it dealt with a plan of
forced medication to restore competency after the district court concluded that the
defendant was incompetent to stand trial. 793 F.3d 416, 422-25 (4th Cir. 2015). The
government, rather than the defendant, bears the burden to prove that forced medication
will restore competency. Id. at 424. In contrast, Roof bore the burden to demonstrate his
27
See United States v. Wooden, 693 F.3d 440, 456 (4th Cir. 2012) (internal quotation marks
and citation omitted); cf. Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)
(“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of
two or more witnesses, each of whom has told a coherent and facially plausible story that
is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error.”).
Roof nevertheless argues that Lafferty v. Cook compels reversal. 949 F.2d 1546
(10th Cir. 1991). That out-of-circuit case, however, is far afield. Lafferty dealt with an
incorrect legal standard for determining competency, which tainted the district court’s
findings of fact. Id. at 1551 n.4. Moreover, the defendant in Lafferty had a “paranoid
delusional system that severely impaired his ability to perceive and interpret reality.” Id.
at 1552. Here, even Roof’s experts describe his psychotic symptoms as transitory, stilldeveloping, or otherwise not fully realized. No expert characterizes Roof’s beliefs as
severely impairing his ability to perceive and interpret reality to the extent described in
Lafferty. And, even if any of the experts’ reports could be read as suggesting that Roof
was completely detached from reality, the district court was entitled to give greater weight
to Dr. Ballenger’s competing, credible expert testimony that Roof was not so detached.
See C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare, L.P., 131 F.3d 430, 438
(4th Cir. 1997) (holding that the district court did not clearly err in crediting one conflicting
expert finding over another).
incompetence by a preponderance of the evidence. 18 U.S.C. § 4241(d).
28
Roof’s second argument is that the district court relied too heavily on his in-court
statement denying his delusional beliefs. That position does not square with the law or the
record. “The district court was in the best position to observe [Roof,] and its determinations
during trial are entitled to deference. . . .” United States v. Bernard, 708 F.3d 583, 593 (4th
Cir. 2013). Moreover, the district court did not rely solely on its observations of Roof,
instead appointing Dr. Ballenger to examine Roof’s “capacity to understand the issues and
to assist his attorneys.” (J.A. at 5535.) “[E]very part of my examination beginning to the
end was a test of [Roof’s] competency to stand trial” and Dr. Ballenger “didn’t find any
significant problem with [Roof’s] competence to stand trial and defend himself.” (J.A. at
5544.)
Third, Roof argues that the district court ignored his lawyers’ affidavits about his
failure to communicate with them or assist in his defense. See United States v. Mason, 52
F.3d 1286, 1292 (4th Cir. 1995) (holding that the “[o]utright rejection” of counsel’s
observations in a competency determination was unwarranted). But the court did not reject
defense counsel’s concerns about the possibility of Roof’s incompetence; rather, it ordered
a competency hearing and appointed an expert to examine Roof. Ahead of the first
competency hearing, Dr. Ballenger spoke with defense counsel for an hour and forty-five
minutes, and he addressed their concerns in his first report. Dr. Ballenger’s second
competency report thoroughly addressed the concerns that standby counsel raised about
Roof’s behavior since the first hearing. Acknowledging defense counsel’s concerns, the
court still found Roof competent.
29
Fourth, Roof claims that the district court conflated Dusky’s requirements of “a
rational as well as factual understanding of the proceedings against him.” 362 U.S. at 402.
Roof argues that he needs both cognitive and rational abilities—one cannot substitute for
the other. But the court found that Roof had both cognitive and rational abilities. Although
the court pointed to Roof’s high verbal IQ as evidence of cognitive capabilities, it did not
rely solely on an IQ test. Instead, the court relied on Dr. Ballenger’s opinion that Roof’s
choices reflected “logical, rational thought” and that he “elected, by his own choice, not to
cooperate because he disagrees with [defense counsel’s] actions.” (J.A. at 5536-37.) The
court did not fail to consider the possibility that a cognitively capable person could act
irrationally; instead, it reasonably relied on expert testimony that Roof was both cognitively
capable and acting in a manner that was logically consistent, even if despicable.
Fifth, Roof argues that the district court’s reliance on Dr. Ballenger’s opinion was
clearly erroneous because the report ignored substantial contrary evidence. He complains
that Dr. Ballenger was not credible because this was the doctor’s first pretrial competency
examination. Roof also claims that Dr. Ballenger did not consider childhood evidence, did
not remember specific facts about Roof’s developmental history, and did not consider the
contrary opinions of Roof’s experts. We find Roof’s position—in effect a dispute over the
district court’s weighing of the evidence—to be unpersuasive. Beginning with the
developmental history, Dr. Ballenger did consider the report that Dr. Loftin “pulled
together from many interviews” about Roof’s developmental history, as well as “many,
many, many pages of records of testimony of people about his childhood, his adolescence.”
(J.A. at 5555, 5571.) Dr. Ballenger made clear that he read everything provided to him,
30
except for the voluminous grand jury testimony, which he obtained permission from the
court to omit from his review.
Dr. Ballenger also did not disregard Roof’s expert evidence that Roof suffers from
either schizophrenia or ASD. Dr. Ballenger instead opined that the presentation of clinical
symptoms of schizophrenia was “in remission” and that Roof displayed few symptoms of
ASD, none of which would present a “significant problem with his competency.” (J.A. at
5568.) Dr. Ballenger consistently determined that Roof’s beliefs were “not delusions; they
are actually just extreme racial views.” (J.A. at 5591.) He noted that his diagnosis was
consistent with an earlier psychologist’s report. Roof himself suggested, and Dr. Ballenger
testified, “there is a lot of projection going on here” because of the “incomprehensibility
of his racial views lead[ing] people to want to project mental illness on him.” (J.A. at
5594.)
Although Roof’s defense team presented expert evidence disagreeing with Dr.
Ballenger’s findings, that does not warrant reversal. Roof has failed to demonstrate
inconsistencies that leave us “with the definite and firm conviction that a mistake has been
committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citation omitted). Every
qualified expert has a first case and Dr. Ballenger, an experienced psychologist, had
performed numerous similar evaluations in other phases of criminal proceedings. He was
qualified and the district court was well within its discretion to rely upon his testimony.
The district court did not err in determining that Roof was competent to stand trial.10
10 The Autistic Self Advocacy Network and the Autistic Women & Nonbinary
31
C. Issue 2: The District Court Did Not Abuse Its Discretion by Granting
Only in Part Defense Counsel’s Request for a Continuance of the First
Competency Hearing
Roof argues that the district court should have granted his motion to continue the
first competency hearing for an additional week to allow Dr. Loftin to complete her report
and to testify in person. The government counters that the court granted at least two
continuances to Roof and made other concessions, so Roof was not prejudiced.11
“The denial of a continuance contravenes a defendant’s Sixth Amendment right to
counsel only when there has been ‘an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.’” United States v. Hedgepeth,
418 F.3d 411, 423 (4th Cir. 2005) (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).
“[T]he test for whether a trial judge has ‘abused his discretion’ in denying a continuance is
not mechanical; it depends mainly on the reasons presented to the district judge at the time
the request is denied.” United States v. LaRouche, 896 F.2d 815, 823 (4th Cir. 1990) (citing
Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). “[A] broad and deferential standard is to be
afforded to district courts in granting or denying continuances: the burdensome task of
assembling a trial counsels against continuances,” and “the district court alone has the
Network provided briefing as amici curiae. We are grateful for their submission.
11 “[A] trial court’s denial of a continuance is . . . reviewed for abuse of discretion;
even if such an abuse is found, the defendant must show that the error specifically
prejudiced [his] case in order to prevail.” United States v. Hedgepeth, 418 F.3d 411, 419
(4th Cir. 2005).
32
opportunity to assess the candidness of the movant’s request.” Id. (first citing Slappy, 461
U.S. at 11; and then citing Ungar, 376 U.S. at 591).
The district court did not err in denying further delay. In United States v. Clinger,
we found an abuse of discretion where a witness could not be made available without a
one-day continuance. 681 F.2d 221, 223 (4th Cir. 1982). But, unlike the district court in
Clinger, the district court here offered that one of Roof’s several experts, Dr. Loftin, could
testify telephonically or by video. Cf. United States v. Ellis, 263 F. App’x 286, 289-90 (4th
Cir. 2008) (holding that a failure to grant a continuance to allow an expert completely
unavailable to testify as the sole expert was an abuse of discretion). As we have long
recognized, telephonic and electronic testimony is an acceptable practice. See United
States v. Baker, 45 F.3d 837, 848 (4th Cir. 1995) (approving the use of video conferencing
in a mental competency hearing). Even if the continuance would have allowed Dr. Loftin
to finalize her report, she could have proffered through live (telephonic or video) testimony
some material from the report. Moreover, the defense had already received two
continuances. The court continued the jury selection to assess Roof’s competency, and
then continued the competency hearing to give Roof more time to review Dr. Ballenger’s
report. The district court was not single-mindedly fast-tracking the trial, but instead
considering each request for a continuance and weighing it against the need for efficiency.
See Hedgepeth, 418 F.3d at 423-24 (approving the same kind of nonarbitrary process for
judging motions to continue). “Here, the trial court balanced the interests of all parties and
reached a well-considered decision to proceed.” United States v. Bakker, 925 F.2d 728,
735 (4th Cir. 1991).
33
Nor has Roof established prejudice. Roof must show that the denial of a
continuance “specifically prejudiced [his] case in order to prevail.” Hedgepeth, 418 F.3d
at 419. That is, Roof must demonstrate that the court’s ruling “undermine[d] confidence
in the outcome” of the competency hearing. See LaRouche, 896 F.2d at 823. Dr. Loftin’s
expert report, submitted in the second competency hearing, focuses on ASD (not
psychosis) and does not address Roof’s competency to stand trial. Although Dr. Loftin
mentions Roof’s possible psychotic symptoms, her opinion largely duplicates Dr.
Maddox’s and Dr. Stejskal’s earlier testimony. Additional corroboration for alreadyconsidered evidence and argument would not demonstrate prejudice here. Roof’s
“speculation and conclusory allegations of prejudice are insufficient to establish abuse of
discretion by the trial court in denying a continuance.” United States v. Lorick, 753 F.2d
1295, 1297 (4th Cir. 1985). Roof has not shown that Dr. Loftin’s report would “undermine
confidence in the outcome” of the competency hearing, so he fails to show prejudice. See
LaRouche, 896 F.2d at 823.
D. Issue 3: The District Court Did Not Abuse Its Discretion by Limiting
Evidence Allowed at the Second Competency Hearing
Roof argues that the district court should have reconsidered its previous competency
determination more fully at the second competency hearing, rather than focusing on
whether his competence changed between the two hearings. He further claims that the
district court misapplied the law-of-the-case doctrine, excluding evidence from before the
34
first hearing, which ended on November 22, 2016. We disagree and see no abuse of
discretion.
12
Even after a defendant is deemed competent, “a trial court must always be alert to
circumstances suggesting a change that would render the accused unable to meet the
standards of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181 (1975).
“[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in determining whether a
further inquiry into competence is required . . . .” Id. at 180; see also Maxwell v. Roe, 606
F.3d 561, 575 (9th Cir. 2010) (“[A] prior medical opinion on competence to stand trial is
relevant in determining whether a further inquiry [into competence] is required.” (second
alteration in original) (internal quotation marks and citation omitted)).
Under the law-of-the-case doctrine, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (citation omitted). Findings
of fact are, by definition, not rules of law. Nevertheless, although a finding of fact “is
perhaps not technically res judicata, it is unusual, for efficiency reasons if no other, for
12 We review decisions to exclude evidence under the abuse-of-discretion standard.
United States v. Young, 248 F.3d 260, 266 (4th Cir. 2001). When the exercise of discretion
depends upon the interpretation of underlying legal principles, our overall review is still
for abuse of discretion, but our consideration of the legal principles informs our view of
what constitutes abuse. See United States v. Bush, 944 F.3d 189, 195 (4th Cir. 2019)
(“[W]e will identify an abuse of discretion if the court’s ‘decision [was] guided by
erroneous legal principles or rests upon a clearly erroneous factual finding.’” (second
alteration in original) (citation omitted)).
35
trial courts to revisit factual findings.” United States v. Adams, 104 F.3d 1028, 1030 (8th
Cir. 1997).
The district court properly considered that Roof’s competency might have changed,
ordered a second hearing, and limited the scope of the hearing to facts suggesting that
Roof’s competency had changed. Even if the court erred in referring to its previous
competency decision as “the law of the case,” which does not govern factual issues, see
Carlson, 856 F.3d at 325, no reversible error occurred. First, courts are not required to
revisit factual findings. See Adams, 104 F.3d at 1030. Second, the court did not, as Roof
contends “deliberately blind[] itself . . . to material evidence.” (Opening Br. at 92.) In
discussing the defense’s expert reports, the court emphasized: “I read them. I read every
one of them.” (J.A. at 5529.) The court here properly considered whether the defendant’s
competence to stand trial had changed, unlike the court in Maxwell. 606 F.3d at 575.
Contrary to Roof’s assertion, the court and Dr. Ballenger both reviewed “the specific
instances since November 22nd that [defense counsel] believe indicated that the defendant
was not competent.” (J.A. at 5533.) As the court noted, Dr. Ballenger “systematically
[went] through each of those issues that had been raised in the motion” and concluded that
“there was no change” in Roof’s “capacity to understand the issues and to assist his
attorneys.” (J.A. at 5535.) Most importantly, as Roof himself noted at the hearing, the
defense experts’ “reports consist of nothing but observations before November the 22nd.”
(J.A. at 5530-31.) The court chose to credit Dr. Ballenger’s expert testimony over
testimony from defense experts. That was within its discretion. The district court’s
36
decision to limit the scope of the second competency hearing was thus not an abuse of
discretion.
Roof next argues that Drope v. Missouri compels reversal. He is incorrect. The
district court in Drope “failed to consider and give proper weight to the record evidence,”
including that “on the Sunday prior to trial [the defendant] tried to choke [his wife] to
death,” and then he “shot himself to avoid trial.” 420 U.S. at 178-79. Unlike Roof’s case,
“there was no opinion evidence as to petitioner’s competence to stand trial.” Id. at 180.
Significantly, the district court’s choice to hold a second competency hearing was the
remedy endorsed in Drope: “to suspend the trial until such an evaluation could be made.”
Id. at 181. Unlike the district court in Drope, which did not consider expert evidence of
competency, the district court here “read every one of” the expert reports and conducted
two competency hearings. (J.A. at 5529.) It properly followed the Supreme Court’s
direction in Drope, and therefore did not err.
IV. ISSUES RELATED TO SELF-REPRESENTATION
Roof argues that the district court erred in allowing him to represent himself during
the penalty phase of his trial. More specifically, he makes the following three arguments:
first, that the Sixth Amendment grants him the right to counsel who will honor his desire
to forgo the presentation of mental health mitigation evidence; second, that the Sixth
Amendment right to self-representation does not extend to sentencing proceedings; and
third, that the Eighth Amendment’s concern with robust capital sentencing procedures
demands that all mitigation evidence be presented, either through defense counsel or
independent counsel. In addition to those constitutional arguments, Roof advances four
37
claims of error related to the district court allowing his self-representation. He contends
that the court erred by not appropriately informing him of the balance of responsibility
between himself and his standby counsel; not appreciating the court’s own discretionary
authority to deny for lack of timeliness his motion to represent himself; not correctly
assessing whether he was a “gray-area” defendant, meaning that he was competent to stand
trial but not competent to represent himself; and not allowing standby counsel to take a
more active role during jury selection. None of his contentions, constitutionally based or
otherwise, has persuasive force.
A. Self-Representation Background
As discussed above in Section III.A, after learning that his lawyers planned to
present evidence of mental illness, Roof sent a letter to the prosecution the night before
jury selection, accusing his lawyers of using “scare tactics, threats, manipulation, and
outright lies” to push a trial strategy that he did not agree with: namely, presenting him as
mentally ill. (J.A. at 587.) He said, “what my lawyers are planning to say in my defense
is a lie and will be said without my consent or permission.” (J.A. at 587.) Shortly before
trial, defense counsel requested an ex parte hearing to discuss Roof’s letter. They
contended that he “controls only a few major decisions in the case; counsel control the rest,”
including the decision of whether to present mental health evidence. (J.A. at 579.) The
issues Roof controls, counsel wrote, include “whether to plead guilty, waive a jury, testify
in his or her own behalf, or take an appeal,” but not “what witnesses should be called or
what evidence should be introduced.” (J.A. at 579 (quoting Jones v. Barnes, 463 U.S. 745,
751 (1983)).)
38
The district court postponed jury selection and held an ex parte hearing to question
Roof about the letter. The court informed Roof that his “lawyers have the right to offer
mitigating evidence that they think is best because that is a strategic decision we allow,”
and it further advised him that if he “offered no mitigation evidence, there would be a high
degree of probability that [he] would have the death penalty imposed.” (J.A. at 629.)
Focusing on just one of the mental health problems at issue, Roof responded, “I get that.
But the problem is . . . if the price is that people think I’m autistic, then it’s not worth it.”
(J.A. at 629.) The court probed him on this point at length, asking, for example, “if, in fact,
your autism experts are right, . . . wouldn’t you want the jury to have that information to
make the best decision,” to which Roof responded emphatically: “No. No. No.” (J.A. at
630.) The court then asked, and Roof confirmed, that he would “rather die than be labeled
autistic.” (J.A. at 630.) Later, he elaborated that “if people think I have autism, . . . [i]t
discredits the reason why I did the crime.” (J.A. at 632.) The court responded that “there
are many people with autism who are high-functioning, well-adjusted people.” (J.A. at
632.) It went on to repeat its question in numerous forms, and Roof continuously affirmed
that it was, in his view, better to die than be considered autistic or mentally ill. And because
evidence of mental health issues was his lawyers’ primary mitigating defense, he wanted
to present no such defense.
Following that exchange, defense counsel stated that although they had considered
Roof’s perspective, they had nevertheless determined that presenting evidence of four
mental health issues—psychosis, depression, autism, and severe anxiety—was in Roof’s
39
best interest.
13 The district court described the stand-off between Roof and his attorneys
as having “no solution” because “any competent counsel would insist on asserting a mental
health defense” and “Roof is going to oppose any effort to present what I think a competent
lawyer should do.” (J.A. at 1563.) The court then reiterated what it had previously told
Roof—a lawyer “is not free to simply say, ‘[o]kay[,] I won’t present that evidence because
you don’t want me to’ because that is not [the defendant’s] decision to make.” (J.A. at
1742-43.) Later, the court memorialized that decision in a written order, saying, “[t]he
decision concerning what evidence should be introduced in a capital sentencing is best left
in the hands of trial counsel, and reasonable tactical decisions by trial counsel in this regard
are binding on the defendant.” (J.A. at 2556 (quoting Sexton v. French, 163 F.3d 874, 887
(4th Cir. 1998)).) Roof nevertheless filed a motion to discharge his lawyers and proceed
pro se. The court responded by explaining Roof’s responsibilities, confirming that he
understood he would “make as-needed motions or objections, ask questions, make
arguments” and “be performing in a courtroom . . . throughout the trial.” (J.A. at 2134-
35.) It also advised him that standby counsel “would be available to assist [him] if [he]
desired that assistance.” (J.A. at 2133.) The court granted his motion and appointed
standby counsel.14
13 Roof’s alleged mental health disorders and the supporting evidence of them are
detailed in Section III.A, supra.
14 For clarity, we use “defense counsel” to refer to Roof’s lawyers when they
represented him and “standby counsel” to refer to Roof’s lawyers when Roof was acting
pro se.
40
Roof then represented himself during voir dire. Still, standby counsel filed three
motions during voir dire seeking to ask potential jurors additional questions. The district
court denied the motions because it “would not allow the defense to speak with two voices.”
(J.A. at 3535.) Standby counsel informed the court that Roof had read McKaskle v.
Wiggins, 465 U.S. 168 (1984), and “is comforted by the fact that McKaskle at least seems
to allow—or allow the Court to permit him to ask us to do things that he doesn’t know how
to do.” (J.A. at 2405-06.) The court replied:
I consider what he has been doing to be actively participating in the voir dire
process. He has made motions, some of which have been granted and some
have not. And he has received assistance of his standby counsel prior to
making those. That is the way I think the system should work. Exactly how
beyond that it should work is something I want everybody to brief and let me
read the case law before I make a determination. What I can’t have, what’s
confusing, is for—to be told by the lawyer of record who is the defendant
“no further questions,” and then I’m told we didn’t ask the right
questions . . . . [W]e are not going to have a situation where you are Mr.
Roof’s cocounsel.
(J.A. at 2406-07.)
It further explained that the lawyers acting as co-counsel would be “very confusing
to the jury” and “it’s kind of a play on the system where Mr. Roof, for instance, could avoid
cross-examination, but could then speak.” (J.A. at 2407.) When standby counsel asked
whether Roof could request that they ask a question or raise an objection, the court
declined, saying Roof “makes the decision whether he wants follow-up questions and
which one[s], not you. You speak to him. He’s an intelligent person. He can make that
decision. It’s his decision because he elected to self-represent.” (J.A. at 2407-08.) And
when standby counsel argued that the court’s rulings were too strict, particularly during
41
voir dire, the court stood by the limitation it imposed, saying “[i]t’s just the proper role of
standby counsel.” (J.A. at 2408.) The court further explained that standby counsel could
suggest questions to Roof, but that he would have to ask them. Roof later asked if the court
would allow “standby counsel [to] assist me in proposing more questions to the jurors and
making objections to strike jurors.” (J.A. at 2561.) The court responded:
I find a system of essentially having your standby counsel become cocounsel
to be potentially chaotic and a manipulation of the system, and I’m not going
to allow it. If you need—if your standby counsel wishes to recommend
questions to you, they are sitting at your table; they can give you the advice.
If they wish to suggest to you bases for objections, I urge you to consider
it. . . . And I say that if through this process you wish to reconsider that
decision and to relinquish your role in self-representation, I would consider
that.
(J.A. at 2561.)
Twice, the court reminded Roof that he could withdraw his request to self-represent.
But Roof did not withdraw that request during voir dire. Both standby counsel and the
court remarked on Roof’s performance. Standby counsel stated that “on average we’ve
done very well.” (J.A. at 2289.) And the court, reflecting on Roof’s earlier participation
during a competency hearing, stated that Roof “demonstrated an aptitude for crossexamination that [was] extraordinary for a pro se litigant.” (J.A. at 6966; see also J.A. at
6961-62.)
Shortly before the start of the guilt phase of trial, however, Roof moved to allow his
standby counsel to represent him during the guilt phase, but to return to self-representation
for the penalty phase if he were convicted. At the pre-trial conference, the district court
explained to Roof what that would mean as a practical matter. The court said that defense
42
counsel “would control all strategic decisions in the guilt phase of the case, including which
witnesses to call, what questions to ask on cross-examination, and what evidence should
be introduced in the guilt phase.” (J.A. at 3472.) Roof would retain control over only
“what pleas to enter, whether to accept a plea agreement, [and] whether to testify,” and he
“would have to . . . waive [his] right to self-representation for the entirety of the guilt phase.”
(J.A. at 3472.)
Roof’s standby counsel expressed support for the motion, and the prosecution did
not take a position. The court granted the motion, including allowing Roof to “retain[] the
right to self-representation during the [penalty] phase.” (J.A. at 3477-78.) As he had
planned, Roof proceeded again to represent himself during the penalty phase and did not
present any mental health mitigation evidence.
Roof’s counsel moved for courtroom accommodations “to ensure” Roof’s “ability
to effectively participate in the legal proceedings.” (J.A. at 3577.) The accommodations
included “short breaks between direct examination and cross-examination, and between
each witness”; shorter court days and weeks; advance notice of government witnesses; and
as-needed breaks. (J.A. at 3579-80.) The court denied the motion, stating that it “found
Defendant mentally competent to stand trial, and, indeed, Defendant was extremely
engaged during his two-day competency hearing.” (J.A. at 3585.) It also noted that Roof
had previously participated in eight-and-a-half hour days with customary breaks and had
then addressed the court “at length and in detail.” (J.A. at 3585.) Later, after observing
Roof deliver opening and closing statements in the penalty phase of the trial, argue against
aggravating factors, and challenge the prosecution, the court observed, “if [Roof] were
43
incompetent to represent himself, almost no defendant would be competent to represent
himself.” (J.A. at 6956.)
B. Issue 4: Under McCoy v. Louisiana, Preventing the Presentation of
Mental Health Evidence Cannot Be the “Objective” of a Defense
Roof first argues that, although he preferred not to waive counsel, he went forward
with that waiver for one reason alone—“to prevent the presentation of mental health
mitigation evidence.” (Opening Br. at 107 (quoting J.A. at 2296).) He asserts that his
decision to represent himself was not made knowingly; that it was instead made under
misinformation from the district court because the court told him, if he employed counsel,
then counsel would have “exclusive authority over presentation of penalty-phase evidence.”
(Opening Br. at 107.) That, he says, was inaccurate and structural error in light of the
Supreme Court’s ruling in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), which was decided
after the district court ruled on his motion but which applies retroactively on direct review.
See Griffith v. Kentucky, 479 U.S. 314, 326-28 (1987); cf. Smith v. Stein, 982 F.3d 229, 235
(4th Cir. 2020) (holding that McCoy is not retroactively applicable on collateral review
because “it is an extension of a watershed rule rather than a watershed rule itself”), cert.
denied, No. 20-7192, 2021 WL 1520899 (Apr. 19, 2021). We disagree with Roof’s
argument and conclude that the district court did not err.
15
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to . . . have the Assistance of Counsel for his defence.” U.S. Const.
15 We review constitutional questions de novo. United States v. Malloy, 568 F.3d
166, 176 (4th Cir. 2009).
44
amend. VI. That right includes the right to waive counsel and to represent oneself. Faretta
v. California, 422 U.S. 806, 834-36 (1975). But the decision to relinquish the right to
counsel must be made “knowingly and intelligently.” Id. at 835. The Supreme Court has
explained that, under the Sixth Amendment, “the accused has the ultimate authority to
make certain fundamental decisions regarding the case, as to whether to plead guilty, waive
a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745,
751 (1983). On the other hand, “[d]ecisions that may be made without the defendant’s
consent primarily involve trial strategy and tactics, such as what evidence should be
introduced, what stipulations should be made, what objections should be raised, and what
pre-trial motions should be filed.” Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998)
(internal quotation marks and citation omitted).
In Florida v. Nixon, the Supreme Court considered that division of authority when
it held that counsel could concede commission of the crime at the guilt phase of a capital
case in order to preserve credibility for the defense during the penalty phase, and that
counsel could do so even though the defendant “never verbally approved or protested [the]
proposed strategy.” 543 U.S. 175, 181 (2004). The Court concluded that “[w]hen counsel
informs the defendant of the strategy counsel believes to be in the defendant’s best interest
and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket
rule demanding the defendant’s explicit consent.” Id. at 192.
Later, in McCoy v. Louisiana, the Court distinguished its decision in Nixon. 138 S.
Ct. at 1505. The defense counsel in McCoy told the jury multiple times, over the
defendant’s objection, that his client had committed the three murders at issue. Id. at 1505-
45
07. Like defense counsel in Nixon, McCoy’s counsel believed that the concession of guilt
would lower the odds of a death sentence. Id. at 1506-07. McCoy was nevertheless
convicted and sentenced to death. Id. at 1507. On appeal, he argued that his counsel’s
guilt-phase concession was a violation of his Sixth Amendment rights. Id. The Supreme
Court agreed, holding that “a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers
the defendant the best chance to avoid the death penalty.” Id. at 1505. The Court explained
that, “[w]ith individual liberty—and, in capital cases, life—at stake, it is the defendant’s
prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the
hope of gaining mercy at the sentencing stage, or to maintain his innocence.” Id. It
elaborated:
Trial management is the lawyer’s province: Counsel provides his or her
assistance by making decisions such as “what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude regarding
the admission of evidence.” Some decisions, however, are reserved for the
client—notably, whether to plead guilty, waive the right to a jury trial, testify
in one’s own behalf, and forgo an appeal.
Id. at 1508 (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)). The Court
reserved for the defendant the “[a]utonomy to decide that the objective of the defense is to
assert innocence.” Id.
Relying on McCoy, Roof claims that the district court misadvised him that he could
not choose as a primary “objective” of his defense that he not be labeled as mentally ill or
autistic. Defense counsel wished to present evidence that conflicted with Roof’s aversion
to any suggestion of a diminished mental capacity. Roof contends that counsel should have
46
been forced to conform to his objective and that he should have been advised that he could
constrain his counsel in that way.
Roof also points to United States v. Read, where the Ninth Circuit held that a
defendant has the right to prevent an insanity defense under McCoy because “[a]n insanity
defense is tantamount to a concession of guilt” and “carries grave personal consequences
that go beyond the sphere of trial tactics.” 918 F.3d 712, 720 (9th Cir. 2019). The court
in Read said that a defendant “may choose to avoid the stigma of insanity” and
“may . . . prefer a remote chance of exoneration to the prospect of indefinite commitment
to a state institution.” Id. at 720-21 (internal quotation marks and citations omitted). In
the paragraph most helpful to Roof, the court said:
[O]ne reason that an insanity defense should not be imposed on a defendant
is that it can sometimes directly violate the McCoy right to maintain
innocence. However, even where this concern is absent, the defendant’s
choice to avoid contradicting his own deeply personal belief that he is sane,
as well as to avoid the risk of confinement in a mental institution and the
social stigma associated with an assertion or adjudication of insanity, are
still present.
Id. at 721 (emphases added). Roof contends that his deeply held belief that he does not
have a mental illness or cognitive deficit should similarly be protected.16
16 In addition to Read, Roof cites decisions rejecting ineffective-assistance-ofcounsel claims against lawyers who complied with a capital defendant’s request not to
present mitigation or closing argument. See, e.g., Taylor v. Steele, 372 F. Supp. 3d 800,
867 (E.D. Mo. 2019) (“Taylor[] argues that his trial counsel was constitutionally ineffective
for not disregarding Taylor’s express directive forbidding a closing argument at the penalty
phase of his trial.”). But the fact that counsel could be found not ineffective for conforming
to the wishes of a defendant does not mean that counsel must conform to the defendant’s
wishes. Thus, the cases that Roof cites are of scant relevance. See United States v.
Holloway, 939 F.3d 1088, 1101 n.8 (10th Cir. 2019) (explaining that claims that counsel
47
We do not subscribe to Roof’s interpretation of McCoy. When one “chooses to have
a lawyer manage and present his case,” he cedes “the power to make binding decisions of
trial strategy in many areas.” Faretta, 422 U.S. at 820. The presentation of mental health
mitigation evidence is, in our view, “a classic tactical decision left to counsel . . . even
when the client disagrees.” United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010);
see also Sexton, 163 F.3d at 887 (recognizing that the presentation of evidence or witnesses
remains counsel’s prerogative during capital sentencing proceedings). McCoy does not
subvert the long-established distinction between an objective and tactics, which underlies
our decisions in Chapman and Sexton. Roof’s interpretation of McCoy is flawed because
it would leave little remaining in the tactics category by allowing defendants to define their
objectives too specifically. In other words, as the government rightly contends, Roof’s
position would allow a defendant to exercise significant control over most important
aspects of his trial—such as the presentation of particular evidence, whether to speak to a
specific witness, or whether to lodge an objection—as long as he declares a particular
strategy or tactic to be of high priority and labels it an “objective.” That cannot be.
Read is also distinguishable on the key point that an insanity defense entails an
admission of guilt. See 18 U.S.C. § 17(a) (allowing an insanity defense when the defendant,
despite committing the crime, “was unable to appreciate the nature and quality or the
violated a defendant’s right to determine the objective of his defense are “[u]nlike
ineffective assistance of counsel jurisprudence” because claims concerning the objectives
of the defense “are not strategic choices about how best to achieve a client’s objectives;
they are choices about what the client’s objectives in fact are” (internal quotation marks
omitted) (quoting McCoy v. Louisiana, 138 S. Ct. 1500, 1510-11 (2018))).
48
wrongfulness of his acts”); id. § 4243(a), (e) (institutionalizing defendants who
successfully plead insanity). The Ninth Circuit’s suggestion in dicta that avoiding the
stigma of mental illness can constitute a trial objective regardless of the admission of guilt
is not persuasive. Acknowledging mental health problems, and bearing any associated
stigma, is simply not of the same legal magnitude as a confession of guilt. Confessing guilt
is of such enormous legal and moral consequence as to properly be reserved to the
defendant’s sole discretion. By contrast, mental health evidence presented at sentencing
as a form of mitigation is far less consequential, even if very important.
Our understanding of the Sixth Amendment finds support in how other circuits have
read McCoy.
17 Roof was not misled about the scope of his control over his defense counsel.
C. Issue 5: A Defendant Has a Sixth Amendment Right to Represent
Himself During His Capital Sentencing
Roof next argues that the district court should have denied his motion to dismiss
counsel and proceed pro se because he did not have a Sixth Amendment right to represent
himself during the penalty phase of his trial. Again, we disagree. He was indeed entitled
to represent himself at the penalty phase.
18
17 See United States v. Rosemond, 958 F.3d 111, 123 (2d Cir. 2020) (“[W]e read
McCoy as limited to a defendant preventing his attorney from admitting he is guilty of the
crime with which he is charged.”), cert. denied, 141 S. Ct. 1057 (2021); United States v.
Wilson, 960 F.3d 136, 144 (3d Cir. 2020) (distinguishing McCoy from the defense
counsel’s “failure to . . . heed [the defendant’s] instruction to contest a jurisdictional
element” because McCoy was “about conceding factual guilt”), cert. denied, 141 S. Ct.
1091 (2021).
18 We review constitutional questions de novo. United States v. Malloy, 568 F.3d
166, 176 (4th Cir. 2009).
49
In Faretta v. California, the Supreme Court traced the history of the right to selfrepresentation at a criminal trial. 422 U.S. 806, 812-18 (1975). Having found the right
deeply rooted in English common law, the Court concluded that “the right to selfrepresentation—to make one’s own defense personally—is . . . necessarily implied by the
structure of the [Sixth] Amendment.” Id. at 819. It noted that constitutionally significant
issues of personal autonomy are at stake. Id. at 834. “The right to defend is personal,” the
Court said, because “[t]he defendant, and not his lawyer or the State, will bear the personal
consequences of a conviction.” Id.
Later, in Martinez v. Court of Appeal of California, Fourth Appellate District, the
Court again considered the right to self-representation, this time in the context of appeals.
528 U.S. 152, 163-64 (2000). It concluded that “there simply was no long-respected right
of self-representation on appeal.” Id. at 159. Additionally, it reasoned that the structure of
the Sixth Amendment does not support an appellate right to self-representation because the
Amendment grants “rights that are available in preparation for trial and at the trial itself.”
Id. at 160. The Court further said that no right to appellate self-representation exists under
the Due Process Clause because “self-representation is [not] a necessary component of a
fair appellate proceeding.” Id. at 161.
Given those precedents, Roof contends, unpersuasively, that the penalty phase of
trial is similar to an appeal and thus falls within the ambit of Martinez, so that he had no
right to represent himself. He makes several subsidiary arguments, including that the right
to a separate penalty phase at a capital trial has little historical precedent, much like
appeals-of-right; that no right to self-representation at the penalty phase can be inferred
50
from the text of the Sixth Amendment; and that the defendant at sentencing is no longer
“the accused” under the Sixth Amendment because, at that point, he is convicted. Lastly,
he contends that the “unique, individualized, and reasoned moral judgment” (J.A. at 6744
(jury charge)) that occurs during sentencing is consistent with the reasons that courts have
declined to impose other Sixth Amendment rights at capital sentencing. See United States
v. Umaña, 750 F.3d 320, 346-48 (4th Cir. 2014) (finding no confrontation right at the
penalty phase); cf. Betterman v. Montana, 136 S. Ct. 1609, 1612 (2016) (holding that the
speedy trial guarantee “protects the accused from arrest or indictment through trial, but
does not apply once a defendant has been found guilty at trial or has pleaded guilty to
criminal charges”).
Roof does not dispute that a defendant has the right to counsel at the penalty phase.
He instead contends that the right to self-representation has less reach than the right to
counsel because the right to counsel is based on the Due Process Clause of the Fifth
Amendment, while the Sixth Amendment right to counsel is the root of the right to proceed
pro se.
19 His argument ignores precedent that suggests there is a Sixth Amendment right
19 The government acknowledges that the right to self-representation does not
extend to situations where the right to counsel is predicated only on the Due Process Clause.
(Answering Br. at 85-86 (“For phases of a criminal case that are not part of the ‘criminal
prosecution,’ a right to counsel cannot be derived from the Sixth Amendment. . . . Because
the self-representation right recognized in Faretta was derived from the Sixth Amendment,
a defendant does not necessarily have a right to self-represent in proceedings where his
right to counsel arises from a different constitutional provision.” (citing Martinez v. Court
of Appeal of California, Fourth Appellate District, 528 U.S. 152, 154 (2000) (no selfrepresentation right on direct appeal); United States v. Missouri, 384 F. App’x 252, 252
(4th Cir. 2010) (supervised release revocation proceeding); United States v. Spangle, 626
51
to the effective assistance of counsel at the penalty phase of capital cases. See United States
v. Taylor, 414 F.3d 528, 535-36 (4th Cir. 2005) (noting that the Sixth Amendment “entitles
a criminal defendant to effective assistance of counsel at each critical stage of his
prosecution, including sentencing” (citation omitted)); see also United States v. Haymond,
139 S. Ct. 2369, 2379 (2019) (plurality opinion) (“[A] ‘criminal prosecution’ continues
and the defendant remains an ‘accused’ with all the rights provided by the Sixth
Amendment, until a final sentence is imposed.”); Jermyn v. Horn, 266 F.3d 257, 305 (3d
Cir. 2001) (finding that counsel violated the Sixth Amendment right to the effective
assistance of counsel due to conduct during the penalty phase). The Supreme Court has
also previously extended the Sixth Amendment right to counsel to a separate deferred
sentencing proceeding following probation revocation. See Mempa v. Rhay, 389 U.S. 128,
136-37 (1967) (extending the right to counsel to a “revocation of probation or a deferred
sentencing” that does not occur contemporaneously with a guilty plea). If the Sixth
Amendment right to counsel extends to revocation proceedings, then the right to selfrepresentation under that Amendment surely extends to the far-higher stakes setting of
capital sentencing.20
F.3d 488, 494 (9th Cir. 2010) (parole revocation proceeding); United States v. Hodges, 460
F.3d 646, 650 (5th Cir. 2006) (parole revocation hearing)).)
20 The Fifth Circuit has directly addressed the question before us, concluding on a
mandamus petition that “[n]othing in Martinez can be read to push the ending point for the
Sixth Amendment right of self-representation in criminal proceedings back to the end of
the guilt/innocence phase of a bifurcated trial proceeding.” United States v. Davis (Davis
I), No. 01-30656, 2001 WL 34712238, at *2 (5th Cir. July 17, 2001). In dealing with a
second petition for mandamus in the same case, the Fifth Circuit reiterated its holding and
52
That the right to self-representation does not have a long history of being applied to
sentencing proceedings is not reason enough to exclude it from the holding in Faretta.
Respect for the autonomy of the defendant should continue through all phases of trial.
Faretta, 422 U.S. at 819-20, 832. There is ample reason to apply the same rights as are
granted at the guilt phase of trial because penalty decisions were, as a matter of historical
practice, made at essentially the same time as the decision on guilt. See Haymond, 139 S.
Ct. at 2379 (“[F]ounding-era prosecutions traditionally ended at final judgment,” and “at
that time, . . . questions of guilt and punishment both were resolved in a single proceeding
subject to the Fifth and Sixth Amendment’s demands.” (internal quotation marks and
citation omitted)). The relatively recent separation of the guilt and penalty phases of capital
trials should not bring about a change in rights.
The autonomy-based right to self-representation, as expressed in Faretta, remains
equally valid at the penalty phase. Accordingly, we hold that the district court did not err
by allowing Roof to represent himself at the penalty phase of his trial.
held the district court’s imposition of independent counsel during capital sentencing to be
unconstitutional, even though the defendant intended to “employ an admittedly risky
strategy during the penalty phase” of not “presenting traditional mitigating evidence” and
instead “attack[ing] the strength of the government’s case as to his guilt.” United States v.
Davis (Davis II), 285 F.3d 378, 384 (5th Cir. 2002). Refusing to present mitigation
evidence, it said, was a tactical decision, and the defendant’s “right to self-representation
encompasses the right to direct trial strategy.” Id. at 384-85. The Seventh Circuit and
several state courts have also held that defendants have the right to represent themselves
during capital sentencing. See Silagy v. Peters, 905 F.2d 986, 1006-08 (7th Cir. 1990);
Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999); State v. Brewer, 492 S.E.2d 97, 99
(S.C. 1997); People v. Coleman, 660 N.E.2d 919, 937-38 (Ill. 1995); Bishop v. State, 597
P.2d 273, 276 (Nev. 1979).
53
D. Issue 6: Neither the Constitution nor the Federal Death Penalty Act
Requires that Mitigation Evidence Be Presented During Capital
Sentencing over a Defendant’s Objection
Roof further contends that, even if his Sixth Amendment right to self-representation
extends through the penalty phase, that right is outweighed by “the Fifth and Eighth
Amendments and Federal Death Penalty Act (‘FDPA’)[, which] require capital juries to
consider mitigation” and prevent Roof from keeping mental health mitigation evidence
from the jury by “doing nothing.”21 (Opening Br. at 121-22.) The district court rejected
that argument, and so do we.22 The Sixth Amendment right to self-representation remains
firmly in effect through capital sentencing, and the Supreme Court has not indicated that
the Eighth Amendment, or any other Amendment, requires mitigation evidence.
Additionally, the FDPA does not require the presentation of mitigation evidence; it requires
only that defendants be given the opportunity to have such evidence considered.
We have previously said that whether a capital defendant may choose to represent
himself and keep an important mitigation circumstance from the jury is an “open question.”
See Billings v. Polk, 441 F.3d 238, 254 (4th Cir. 2006) (“[I]t remains an open question
whether the state’s important—indeed, constitutionally mandated—interest in structuring
its sentencing proceedings so as to reserve the death penalty for those most deserving of it
21 And there is no dispute that mental health mitigation evidence was significant in
Roof’s case. As the district court said, “any competent counsel would insist on asserting a
mental health defense.” (J.A. at 1563.)
22 We review constitutional questions de novo. United States v. Malloy, 568 F.3d
166, 176 (4th Cir. 2009).
54
must give way to any interest the defendant may have in keeping a mitigating circumstance
from the jury.”). Being squarely presented with the question now, under the specific
circumstances of this case, we decline to invoke the Eighth Amendment to dilute the
potency of the Sixth. Cf. Agostini v. Felton, 521 U.S. 203, 237 (1997) (explaining that if a
Supreme Court precedent controls, “yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly controls,
leaving to [the Supreme] Court the prerogative of overruling its own decisions” (citation
omitted)). The specific circumstances here include the fact that Roof did present several
mitigating factors for the jury’s consideration.
23
If Roof’s comment is taken at face value—that he self-represented and did “nothing,”
in derogation of the Eighth Amendment—then the argument has no foundation in the
record because he did not do “nothing.” (Opening Br. at 121-22.) He submitted nine
mitigating factors to the jury, which found six in his favor.24 More to the point, however,
Roof never demonstrates why the Eighth Amendment requires the presentation of mental
health mitigation evidence specifically, particularly for a defendant already found
competent to stand trial.
23 The proposed mitigating factors were drafted and submitted before trial by
defense counsel. But when Roof represented himself at the penalty phase, he proceeded
on the basis of those same mitigating factors.
24 Although Roof did not technically present evidence, six of his mitigating factors
were unrebutted and effectively treated as stipulated facts.
55
As noted earlier, supra note 20, the Fifth Circuit in United States v. Davis (Davis II)
rejected the same argument that Roof advances, overturning a decision to appoint
independent counsel to fulfill what the district court there viewed as an Eighth Amendment
mandate to present mitigation evidence. 285 F.3d 378, 384-85 (5th Cir. 2002); United
States v. Davis, 180 F. Supp. 2d 797, 798-99 (E.D. La. 2001). The court observed that
“[t]he district court provide[d] no federal statutory authority for appointing an independent
counsel to present mitigation evidence in the penalty phase of a capital case.” Davis II,
285 F.3d at 382. It then held that Faretta taught otherwise: “Faretta teaches us that the
right to self-representation is a personal right[] [and] cannot be impinged upon merely
because society, or a judge, may have a difference of opinion with the accused as to what
type of evidence, if any, should be presented in a penalty trial.” Id. at 384.
The Fifth Circuit is not alone. The Seventh Circuit has likewise held that the Eighth
Amendment does not outweigh the right to self-representation and require the presentation
of mitigation evidence. See Silagy v. Peters, 905 F.2d 986, 1007-08 (7th Cir. 1990)
(“Although it is evident that such a decision [not to present mitigation evidence] on the part
of a death-eligible defendant may impact the jury’s decision-making process, we do not
believe that the right which Faretta grants can or should be contingent on this factor.”). So
have state courts. See Bishop v. State, 597 P.2d 273, 276 (Nev. 1979) (holding that the
defendant “had a Sixth Amendment right not to have counsel forced upon him” despite
declining to present mitigation evidence); People v. Coleman, 660 N.E.2d 919, 937 (Ill.
1995) (“We are not persuaded by defendant’s argument that the heightened need for
56
reliability in capital cases justifies forcing the accused to accept representation by
counsel.”).
We agree with those courts and hold that the Sixth Amendment protects the right to
self-representation at capital sentencing even when, as here, the defendant chooses not to
present a mitigating factor to the jury. Roof asks that we adopt the reasoning from the
dissenting opinion in Davis II.
25 His argument is grounded in the idea that, under the
Eighth Amendment, a defendant cannot waive procedural safeguards out of a desire to
obtain a death sentence. But that position, broadly stated, has been rejected by the Supreme
Court. See Gilmore v. Utah, 429 U.S. 1012, 1013 (1976) (terminating a stay of execution
by permitting the defendant to waive his right to appeal); id. at 1015 n.4 (Burger, C.J.,
concurring) (noting that the defendant “did not care to languish in prison for another day”
(internal quotation marks omitted)); cf. id. at 1018 (White, J., dissenting) (favoring a
25 According to that dissent (and to Roof), the right to self-representation does not
extend to the right to choose death for oneself:
Davis intends to incur the death penalty by presenting no adversary trial
defense whatsoever. The majority errs grievously in interpreting the
Supreme Court’s cases as holding that a criminal defendant’s right of selfrepresentation is absolute and that the trial court is therefore powerless to
exercise any significant supervision or regulation of the defendant’s use of
that right.
United States v. Davis (Davis II), 285 F.3d 378, 385-86 (5th Cir. 2002) (Dennis, J.,
dissenting) (footnote omitted). And like Roof, that dissent relies on the Supreme Court’s
plurality opinion in Woodson v. North Carolina, which noted a “qualitative difference”
between death and life in prison, and therefore “a corresponding difference in the need for
reliability in the determination that death is the appropriate punishment in a specific case.”
428 U.S. 280, 305 (1976) (plurality opinion); see also Gregg v. Georgia, 428 U.S. 153,
190 (1976) (holding that “accurate sentencing information is an indispensable prerequisite
to a reasoned determination of whether a defendant shall live or die”).
57
decision that would have allowed the defendant’s mother to act as his “next friend” and
challenge the “constitutionality of the Utah death penalty statute” on remand); Stewart v.
LaGrand, 526 U.S. 115, 119 (1999) (“By declaring his method of execution, picking lethal
gas over the State’s default form of execution—lethal injection—[the defendant] has
waived any objection he might have to it.”). It has permitted a capital defendant to forfeit
an appeal challenging the constitutionality of a death-penalty statute, Gilmore, 429 U.S. at
1013, and we cannot say that the presentation of a particular kind of mitigation evidence
(the mental health mitigation evidence that Roof chose not to present) is more important to
a rigorous capital punishment process than appellate review of the conviction and sentence.
In sum, we conclude that Roof’s constitutional rights were faithfully considered and
enforced when the district court permitted him to represent himself during the penalty
phase of trial and to not present mitigation evidence.
Turning briefly to his argument under the FDPA, we conclude that that statute does
not require the presentation of mitigation evidence to the sentencing authority.26 Roof
contends that Congress recognized what he calls the Eighth Amendment’s mitigation
imperative when it included in the FDPA a requirement that juries be given mitigation
evidence.
27 But the FDPA describes the presentation of mitigation evidence in permissive
26 The FDPA provides that the jury shall recommend by unanimous vote whether
death is appropriate, 18 U.S.C. § 3593(e), and “[u]pon a recommendation . . . the court
shall sentence the defendant accordingly.” Id. § 3594 (emphasis added).
27 Roof cites two sections of the Act that require the factfinder to consider the
mitigation evidence that has been presented. See 18 U.S.C. § 3592(a)(8) (“In determining
whether a sentence of death is to be imposed on a defendant, the finder of fact shall
58
terms, and only then requires that the factfinder consider such evidence. See 18 U.S.C.
§ 3593(c) (instructing that a “defendant may present any information relevant to a
mitigating factor” at capital sentencing and the prosecution “may present any information
relevant to an aggravating factor” (emphases added)). There is no ambiguity, and that
reading is consistent with the demands of the Sixth Amendment.28
E. Issue 7: Roof’s Waiver of Counsel Was Knowing, Voluntary, and
Intelligent
Roof next argues that his waiver of counsel before voir dire was invalid because he
was misinformed about the role of standby counsel and because he was not informed that
he could “proceed with counsel at jury selection and guilt, and self-represent at penalty.”
(Opening Br. at 127.) Both arguments lack merit.29
1. Legal Standard
A defendant’s “assertion of the right of self-representation . . . must be (1) clear and
unequivocal; (2) knowing, intelligent and voluntary; and (3) timely.” United States v.
Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000) (internal citations omitted). The requirement
consider any mitigating factor, including . . . factors in the defendant’s background . . . that
mitigate against imposition of the death sentence.” (emphasis added)); id. § 3593(b), (c)
(“[I]nformation may be presented as to any matter relevant to the sentence, including any
mitigating or aggravating factor permitted or required to be considered under section
3592.” (emphasis added)).
28 Even if we viewed the FDPA as ambiguous, we would avoid interpreting it in a
manner that violates defendants’ autonomy rights under the Sixth Amendment. United
States v. Simms, 914 F.3d 229, 251 (4th Cir. 2019) (en banc).
29 “Determination of a waiver of the right to counsel is a question of law, which we
review de novo.” United States v. Owen, 407 F.3d 222, 225 (4th Cir. 2005).
59
for a clear and unequivocal waiver both protects defendants against an inadvertent waiver
by “occasional musings on the benefits of self-representation” and prevents defendants
from “taking advantage of and manipulating the mutual exclusivity of the rights to counsel
and self-representation.” Id. at 558-59 (citation omitted). Because the right to counsel is
“preeminent and hence, the default position,” trial courts must “indulge in every reasonable
presumption against [its] relinquishment.” United States v. Ductan, 800 F.3d 642, 649 (4th
Cir. 2015) (internal quotation marks and citations omitted).
The Supreme Court has not “prescribed any formula or script to be read to a
defendant who states that he elects to proceed without counsel.” Iowa v. Tovar, 541 U.S.
77, 88 (2004). But the trial court must nevertheless “assure itself that the defendant knows
the charges against him, the possible punishment and the manner in which an attorney can
be of assistance,” United States v. King, 582 F.2d 888, 890 (4th Cir. 1978), as well as “the
dangers and disadvantages of self-representation.” Ductan, 800 F.3d at 649; see also
Tovar, 541 U.S. at 88-89 (emphasizing that a defendant “must be warned specifically of
the hazards ahead”). Such a determination is made “by examining the record as a whole”
and “evaluating the complete profile of the defendant and the circumstances of his decision
as known to the trial court at the time.” United States v. Singleton, 107 F.3d 1091, 1097
(4th Cir. 1997).
2. Roof Was Appropriately Aware of His Role and Responsibilities
The government met its “heavy burden” of proving that Roof’s waiver of counsel
was valid. See Brewer v. Williams, 430 U.S. 387, 402 (1977). First, the district court held
a Faretta hearing and outlined to Roof the charges and punishment that he faced. It then,
60
in a series of questions and answers, ensured that Roof knew that self-representation would
be hazardous and would render his defense less effective. Next, it outlined Roof’s personal
responsibilities, confirming with him that he would be the one to “make as-needed motions
or objections, ask questions, [and] make arguments.” (J.A. at 2134-35.) Roof also
confirmed that he understood that he would “be performing in a courtroom . . . throughout
the trial.” (J.A. at 2135.)
But we do not rely on the Faretta colloquy alone in reaching our conclusion. A
review of “the record as a whole,” Singleton, 107 F.3d at 1097, reveals that the Faretta
hearing was not the district court’s first encounter with Roof’s desire to self-represent.
Roof’s confirmation at the Faretta hearing that he understood what self-representation
entailed was consistent with his prior statements to the court regarding his desire to manage
the evidence presented and his understanding of the proceedings, the potential punishment
for the charged offenses, and the benefits of counsel. The Faretta colloquy in combination
with those past statements convinces us that Roof’s waiver was properly considered and
knowingly entered.
Roof argues that his waiver was neither knowing nor intelligent because the district
court told him that standby counsel “would be available to assist [him] if [he] desired that
assistance” (J.A. at 2133), without defining what “assist” means. Such a statement, Roof
argues, muddied his understanding of his own personal responsibilities and those of his
counsel.
If he was confused, though, it was certainly not the district court’s fault. The court
was not obligated to precisely define the role of standby counsel. And far from misleading
61
Roof about that role, it pinpointed specific ways that standby counsel could help Roof. The
court in fact permitted standby counsel to fully “assist” Roof—to sit at Roof’s table, advise
him about potential jurors, pass him notes, confer during the proceedings, and provide him
with suggested voir dire questions. Indeed, the court encouraged Roof to take time to
consult with standby counsel. By way of limitation, the court simply asked that standby
counsel not serve as co-counsel and that Roof, as his own representative, speak for himself
when addressing the court.
Those instructions were consistent with both the district court’s assurance that
standby counsel could assist Roof and with the court’s confirmation that Roof retained the
obligation to “make as-needed motions or objections, ask questions, [and] make
arguments.” (J.A. at 2134-35.) Those instructions are also consistent with our precedent
on self-representation. See Frazier-El, 204 F.3d at 559 (“A defendant who vacillates at
trial places the trial court in a difficult position because it ‘must traverse . . . a thin line
between improperly allowing the defendant to proceed pro se, thereby violating his right
to counsel, and improperly having the defendant proceed with counsel, thereby violating
his right to self-representation.’” (alteration in original) (quoting Fields v. Murray, 49 F.3d
1024, 1029 (4th Cir. 1995) (en banc))).
Roof further argues that both his and his counsel’s attempts to have counsel step in
to make objections and to ask questions during voir dire show Roof’s lack of knowledge
about his role in self-representation. But Roof’s waiver was knowing and intelligent even
if he later wanted to bend the rules and have standby counsel assume the role of co-counsel.
Over the course of the voir dire, as both the personal responsibilities of Roof and the precise
62
role of standby counsel became more apparent, Roof confirmed that he understood his role
by continuing to self-represent despite the district court’s offers for him to relinquish that
role.
In particular, when Roof faced difficulties with the logistics of self-representation,
the district court twice gave Roof the option of withdrawing from self-representation. The
court first said to standby counsel:
I have kept you and your team in place, A, to assist; and, B, should Mr. Roof
reconsider his decision that you will be here and ready to assume a different
role.
(J.A. at 2407.) At a later point, the court directly addressed Roof and said:
[Representation] was a challenging and daunting endeavor to do by yourself.
And I say that if through this process you wish to reconsider that decision
and to relinquish your role in self-representation, I would consider that.
That’s up to you . . . .
(J.A. at 2561-62.) Roof did not give up his right to self-representation in response to either
of those comments. Given the Faretta colloquy and Roof’s actions before and after the
hearing, we conclude that Roof did not base his self-representation decision on a
misunderstanding about the role of standby counsel.
3. The District Court Need Not Have Informed Roof of the Ability to Selectively
Use Counsel for Different Parts of the Case
Roof also argues that his waiver was invalid because, during his Faretta hearing, he
was not “advised that he could proceed with counsel at voir dire and guilt, but self-represent
at penalty.” (Opening Br. at 130-31.) The district court’s failure to provide a timely
explanation, Roof contends, “forced Roof into a false choice” and caused him to be “alone
for critical voir dire.” (Opening Br. at 130-31.)
63
Although we have permitted defendants to be represented by counsel during specific
phases of litigation, see United States v. Hilton, 701 F.3d 959, 964-65 (4th Cir. 2012), we
have never required district courts to authorize a phase-by-phase approach, much less that
the courts must help defendants strategize their self-representation by informing defendants
of such a possibility when the defendant requests a Faretta waiver. Because we see no
basis to impose such a requirement, Roof’s argument fails.
F. Issue 8: The District Court Did Not Err in Granting Roof’s Motion to
Waive Counsel
Roof argues that the district court failed to appreciate the extent of its authority to
exercise discretion with regard to his untimely Faretta motion, and that such
misapprehension constitutes an abuse of discretion. We disagree and note the oddity of
arguing that the court erred in granting Roof the very relief he requested.30
Discretion may be abused by a “failure or refusal, either express or implicit, actually
to exercise discretion, deciding instead as if by general rule, or even arbitrarily, as if neither
by rule nor discretion.” James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (citing Will v.
Calvert Fire Ins. Co., 437 U.S. 655, 661-62 (1978)). Here, the district court stated that
because
[its] discretion is not boundless—the defendant’s constitutional right to
represent himself must be respected. The decision whether to allow the
defendant to exercise that right is within the Court’s discretion in the sense
30 The parties agree that because Roof filed his Faretta motion after “meaningful
trial proceedings . . . commenced,” the decision to grant or deny his untimely motion
“rest[ed] within the sound discretion of the trial court.” See United States v. Lawrence,
605 F.2d 1321, 1325 (4th Cir. 1979). We, in turn, review the trial court’s exercise of that
discretion under the abuse-of-discretion standard. Id.
64
that the defendant may not exercise his rights abusively and the Court has
discretion to decide what is or is not an abuse.
(J.A. at 2298 (citing United States v. Hilton, 701 F.3d 959, 965 (4th Cir. 2012)).)
That wording is under-inclusive because although a defendant’s abuse of the right
to self-representation may be considered by a district court in exercising discretion, it does
not limit the court’s authority to grant or deny an untimely request. See generally Hilton,
701 F.3d at 965 (“[A] defendant’s request for self-representation is a matter submitted to
the sound discretion of the trial court.”).
In any event, the district court did in fact exercise its discretion when it considered
whether Roof had invoked his right in order to disrupt or delay the proceedings, and it
found that he had not. The court instead concluded that Roof was “motivated by disdain
for a defense based on mental health evidence” and he “reacted immediately when he
learned Defense Counsel intended to present such evidence.” (J.A. at 2298.) That
conclusion is fully supported by the record. Roof fails to indicate how the court would
have analyzed the issue any differently or reached a different conclusion if it had
considered factors others than an abusive invocation of the right to self-representation. The
court’s reasoning and decision align with our understanding of the purpose of the timeliness
requirement—“to minimize disruptions, to avoid inconvenience and delay, to maintain
continuity, and to avoid confusing the jury.” United States v. Lawrence, 605 F.2d 1321,
1324 (4th Cir. 1979) (quoting United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978)).
The district court therefore did not abuse its discretion in granting Roof’s Faretta motion
to represent himself.
65
G. Issue 9: The District Court Did Not Err in Finding Roof Competent to
Self-Represent
Roof next contends that, even if he was competent to stand trial, he was not
competent to represent himself because he is what the Supreme Court has called a “grayarea defendant.” See Indiana v. Edwards, 554 U.S. 164, 173, 177-78 (2008) (“[T]he
Constitution permits States to insist upon representation by counsel for those competent
enough to stand trial under Dusky [v. United States, 362 U.S. 402 (1960),] but who still
suffer from severe mental illness to the point where they are not competent to conduct trial
proceedings by themselves.”). He correctly points out that the ability to stand trial without
counsel requires a level of competence that exceeds that required to stand trial with counsel.
See United States v. Barefoot, 754 F.3d 226, 233-34 (4th Cir. 2014) (distinguishing general
competency from self-representation competency). And Roof argues that “capital
defendants must be held to a higher standard [than other defendants] to satisfy Edwards.”
(Opening Br. at 149.) Again, we are unpersuaded that the district court erred.
31
To be a gray-area defendant, Roof would have to lack the mental capacity to perform
the basic tasks of self-representation. See United States v. Bernard, 708 F.3d 583, 589-90
(4th Cir. 2013). Although a high-IQ defendant could conceivably lack the mental capacity
to perform such tasks by, for example, suffering from psychosis and hallucinations, the
district court reasonably found that Roof—whose full-scale IQ of 125 places him in the
31 Whether the district court applied the correct standard for gray-area competency
is a legal question we review de novo. Panetti v. Stephens, 727 F.3d 398, 409 (5th Cir.
2013). We review the district court’s determination of competency for clear error. United
States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005).
66
95th percentile of the general population, despite average processing speed—was not
suffering from any such debilitating illnesses.
Roof instead allegedly suffered from what several of his expert witnesses described
as “disorganized thinking, reduced processing speed, memory problems, and difficulty
integrating new information,” almost all as a result of “mild frontal system dysfunction.”
(Opening Br. at 141 (citing J.A. at 1500, 1695, 5308, 5359, 5658-59).) As the government
correctly points out, however, defendants like Roof can suffer “mental illness while having
the intellectual capacity to self-represent.” (Answering Br. at 109.) Cf. United States v.
Brugnara, 856 F.3d 1198, 1214 (9th Cir. 2017) (finding that a defendant with “highaverage, nearly superior intellectual ability,” bipolar disorder, delusional disorder, and
narcissistic personality disorder had the capacity to self-represent); United States v.
McKinney, 737 F.3d 773, 775, 779 (D.C. Cir. 2013) (finding that a defendant with bipolar
disorder, chronic anxiety, and insomnia had the capacity to self-represent).
Perhaps the best evidence that Roof indeed had the mental capacity to perform the
basic tasks of self-representation is that he did perform them. He participated in jury
selection, prompting standby counsel to remark that “on average we’ve done very well”
(J.A. at 2289), and the district court noted that his cross-examinations of Drs. Ballenger
and Loftin “demonstrated an aptitude for witness cross-examination that [was]
extraordinary for a pro se litigant.” (J.A. at 6966; see also J.A. at 6961-62.) At the penalty
phase, he delivered an opening statement, argued against aggravating factors, challenged
the prosecution, and made a closing argument.
67
Witnessing this, the district court noted that “if [Roof] were incompetent to
represent himself, almost no defendant would be competent to represent himself.” (J.A. at
6956.) That evaluation is significant because “[t]he district court [i]s in the best position
to observe [the defendant] and its determinations during trial are entitled to deference.”
Bernard, 708 F.3d at 593. Roof’s statement now that “[t]he evidence counsel proffered at
the second [competency] hearing . . . established beyond doubt his crippling anxiety,
disordered thinking, reduced processing speed, memory problems, difficulty integrating
new information, and fixation on trivial details,” even if containing some truth, does not
mean that he was necessarily incompetent. (Opening Br. at 145 (citing J.A. at 5463, 5977,
5991).) The district court’s analysis of Roof’s competency was thorough and incorporated
both the court’s observations and the opinions of the various experts.
Roof argues that the need for heightened reliability in death penalty cases means
that the Edwards rule protecting gray-area defendants should apply more stringently.
Assuming that is correct, however, the district court’s findings show Roof to be well
outside the gray area. As the court said, “if [he] were incompetent to represent himself,
almost no defendant would be competent to represent himself.” (J.A. at 6956.) His
argument, in effect, is that all criminal defendants in death penalty cases should have
mandatory appointed counsel. Cf. Lenhard v. Wolff, 444 U.S. 807, 807-08 (1979) (denying
7 to 2 a stay of execution on standing grounds for a defendant who waived his right to
counsel); id. at 811 (Marshall, J., dissenting) (“Society’s independent stake in enforcement
of the Eighth Amendment’s prohibition against cruel and unusual punishment cannot be
68
overridden by a defendant’s purported waiver.”). That argument is addressed and rejected
above. See supra Section IV.D.
H. Issue 10: The District Court Did Not Err in Denying Roof Further
Assistance from Standby Counsel or Additional Accommodations
Roof next argues that even if his Faretta waiver were knowing and intelligent, the
district court still erred in rejecting his requests for additional assistance. But a district
court has wide-ranging discretion to determine the appropriate role of standby counsel and
the extent of accommodations for pro se defendants. United States v. Lawrence, 161 F.3d
250, 253 (4th Cir. 1998) (noting that “the district court, in keeping with its broad
supervisory powers, has . . . broad discretion to guide what, if any, assistance standby, or
advisory, counsel may provide to a defendant conducting his own defense”). Roof argues
that the court “unreasonably denied [his] requests for necessary accommodations,” thereby
undermining his “dignity and autonomy” while denying him “a fair chance to present his
case.” (Opening Br. at 149.) See McKaskle v. Wiggins, 465 U.S. 168, 177 (1984). We
disagree.
32
1. Standby Counsel
Faretta does not hold that standby counsel’s participation must be allowed; only
that such participation is permitted. See Faretta v. California, 422 U.S. 806, 834 n.46
(1975) (explaining that a trial judge “may—even over objection by the accused—appoint
32 We review a district court’s determination of the role of standby counsel under
the abuse-of-discretion standard. United States v. Lawrence, 161 F.3d 250, 253 (4th Cir.
1998).
69
a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be
available to represent the accused in the event that termination of the defendant’s selfrepresentation is necessary” (emphasis added)). The alternate reading of Faretta as urged
by Roof is meritless.
Roof also mischaracterizes McKaskle. The Supreme Court there held that a district
court can constitutionally appoint standby counsel to operate in “hybrid” fashion, meaning
in a consultative role and in a more substantial, visible role; it did not hold that such hybrid
standby assistance for defendants is constitutionally mandated. McKaskle, 465 U.S. at 183.
This court has since reiterated the point. See, e.g., United States v. Singleton, 107 F.3d
1091, 1103 (4th Cir. 1997) (rejecting a “contention that the Constitution requires that
[defendants] be provided with a hybrid type of representation”); Lawrence, 161 F.3d at
253.
2. Accommodations
As discussed, the district court gave Roof several accommodations. It allowed
standby counsel to recommend questions, give advice, and even suggest objections.
Although Roof correctly alleges that the court denied counsel’s requests for some
additional accommodations, such as shorter trial days, intermittent breaks, and advancenotice of government testimony, those denials were not unreasonable. Contrary to Roof’s
conclusory assertions that the court’s denials of his requests were arbitrary and irrational,
the court explained that it saw he was “extremely engaged,” even without such
accommodations, at his competency hearing. (J.A. at 3585.) We find no abuse of
discretion in those rulings by the district court.
70
V. ISSUES RELATED TO DEATH VERDICT
Roof also asserts that “errors fundamentally undermined [the] weighing process”
that jurors used to determine whether the death sentence was justified at the penalty phase.
(Opening Br. at 158.) First, Roof argues that the district court erroneously precluded
mitigating evidence, that the government capitalized on that error with its improper
remarks during closing argument, and that the district court’s failure to respond to the jury’s
clarification requests exacerbated the government’s errors, ultimately stripping the jury of
the necessary means to meaningfully consider certain mitigating factors. Second, he
contends that a victim’s remarks during the guilt phase wrongly influenced the jury’s death
verdict. Third, Roof argues that “the government flooded its penalty-phase presentation
with improper evidence and argument on the victims’ worthiness,” impermissibly tying its
request for a death sentence with the victims’ status as “good and religious people.”
(Opening Br. at 159.) And fourth, he asserts that his age and mental capacity rendered him
ineligible to receive the death sentence. We are unpersuaded and find no error.
A. Death Verdict Background
1. Aggravating and Mitigating Factors
Several months before trial, the government submitted notice of its intent to seek
the death penalty, listing four gateway intent factors, 33 three statutory aggravating
33 If a defendant is convicted of a death-eligible offense, then, at the penalty phase,
the government must first establish that the defendant had the mental state described in at
least one of the four gateway intent factors enumerated under 18 U.S.C. § 3591(a)(2)(A)-
(D). Specifically, the government must demonstrate that the defendant:
71
factors, 34 and six non-statutory aggravating factors that it “propose[d] to prove . . . as
justifying a sentence of death.” (J.A. at 146.) See 18 U.S.C. § 3593(a)(2). The nonstatutory aggravating factors identified in the government’s notice and relevant to Roof’s
challenges on appeal are: Roof “attempted to incite violent action by others,” “caused
injury, harm, and loss . . . to the family, friends, and co-workers of those individuals” that
he killed, and targeted worshippers at Mother Emanuel “in order to magnify the societal
impact of [his] offenses.”35 (J.A. at 149-50.)
Defense counsel disclosed Roof’s intent to offer evidence of mitigating factors,
including two non-statutory mitigating factors suggesting that “a sentence of life in prison
(A) intentionally killed the victim; (B) intentionally inflicted serious bodily
injury that resulted in the death of the victim; (C) intentionally participated
in an act, contemplating that the life of a person would be taken or intending
that lethal force would be used in connection with a person, other than one
of the participants in the offense, and the victim died as a direct result of the
act; or (D) intentionally and specifically engaged in an act of violence,
knowing that the act created a grave risk of death to a person, other than one
of the participants in the offense, such that participation in the act constituted
a reckless disregard for human life and the victim died as a direct result of
the act.
18 U.S.C. § 3591(a)(2)(A)-(D). Here, the government proposed to prove all four gateway
intent factors.
34 The government must establish the existence of at least one statutory aggravating
factor enumerated under 18 U.S.C. § 3592(c). The government proposed to prove three
statutory aggravating factors: Roof (1) “intentionally killed or attempted to kill more than
one person in a single criminal episode,” id. § 3592(c)(16); (2) engaged in “substantial
planning and premeditation to cause the death of a person,” id. § 3592(c)(9); and (3) killed
three individuals who were “particularly vulnerable due to old age.” Id. § 3592(c)(11).
35 The government also proposed to prove three additional non-statutory
aggravating factors: Roof endangered the safety of others, “his animosity towards African
Americans played a role in the murders,” and he demonstrated no remorse. (J.A. at 150.)
72
without the possibility of release will be especially onerous” because: (1) the danger of
violence Roof will face from other inmates “[d]ue to his small size, youth, and
notoriety . . . will require that he serve his life sentence under isolating conditions of
confinement”; and (2) “he will serve his entire life sentence in fear of being targeted by
other inmates.”36 (J.A. at 464.) The government moved to exclude both of those mitigating
factors, arguing that “information about potential future conditions of confinement is
irrelevant as mitigation because it does not relate to the defendant’s character, background
or record, or to the circumstances of his crimes.” (J.A. at 470.) The district court granted
the motion to preclude “evidence in support of speculation” about Roof’s “future
conditions of confinement if sentenced to life imprisonment.” (J.A. at 494.) The court
reasoned that “[i]t is inappropriate to ask the jury to imagine conditions at some imaginary
prison.” (J.A. at 493.)
Defense counsel subsequently filed notice of two additional non-statutory
mitigating factors: “Dylann Roof poses no significant risk of violence to other inmates or
prison staff if imprisoned for life”; and, “[g]iven his personal characteristics and record,
Dylann Roof can be safely confined if sentenced to life imprisonment.” (J.A. at 496.) We
refer to these two collectively as the “lack-of-future-dangerousness” mitigating factors.
36 They also identified one statutory mitigating factor—that Roof had no significant
prior criminal history—and six other non-statutory mitigating factors: (1) Roof was 21 at
the time of the offense; (2) he offered to plead guilty; (3) he cooperated with arresting
authorities; (4) he confessed to his crimes; (5) he had no prior history of violence; and
(6) he could be redeemed.
73
The government did not oppose either factor, which appeared on the verdict form as
mitigating factors 8 and 9.
2. Penalty Phase
During the penalty phase, the government presented victim-impact testimony from
twenty-three witnesses. The district court overruled Roof’s objection to the number of
witnesses. The government also introduced, among other things, a video of Reverend
Pinckney teaching history at Mother Emanuel; an audio clip of Reverend MiddletonDoctor singing a hymn; an audio clip of Reverend Coleman-Singleton praying; a video of
a song written about Reverend Coleman-Singleton by her son; photos of Reverend
Pinckney preaching; a photo of Reverend Simmons in church; photos of Tywanza Sanders,
Reverend Simmons, Reverend Thompson, and Reverend Coleman-Singleton at a
baccalaureate ceremony; and an audio clip of a voicemail left by Reverend Pinckney for a
sick friend. Roof objected in real time only to the audio clip of Reverend ColemanSingleton praying, the video of the song about Reverend Coleman-Singleton, and the
baccalaureate-ceremony photos. The court overruled the objections. After one of the
victim-impact witnesses testified, however, the court reminded the jury that “victim
testimony is limited to . . . personal characteristics of the victims and the emotional impact
on the family. You should disregard any other comments other than those.” (J.A. at 6367.)
Before closing argument, Roof filed a motion in limine, preemptively objecting to
the prosecution’s “reference[] to the ‘particularly good’ victims . . . and similar references,
especially references that imply or directly suggest a comparison to the defendant” or “to
what ‘God’ told the victims or witnesses, or what witnesses feel the victims ‘wanted’ the
74
jury to see.” (J.A. at 6519.) The district court permitted the prosecution to describe the
victims as “particularly good individuals,” but prohibited the use of comparative worth
arguments. (J.A. at 6636-37.) During closing argument, upon recapping the victim-impact
evidence, the prosecution concluded that Roof killed “extraordinarily good” and “great”
people of faith, including some of “the best among us.” (J.A. at 6668, 6703.) Roof did not
object. The court still instructed the jury that it “must not consider . . . religious
beliefs . . . of either defendant or any victim.” (J.A. at 6747 (jury charge).)
In addition to the victim-impact evidence, the jury heard from Charleston County
Sheriff’s Officer Lauren M. Knapp, who monitored the jail for safety and security,
including screening incoming and outgoing mail. She testified about Roof’s prison
writings, including an outbound letter that she had intercepted. Roof wrote: “I realized it
was worth it. . . . I did what I thought could make the biggest wave, and now the fate of our
race is in the hands of our brothers to continue to live freely.” (J.A. at 6196.) Roof did not
cross-examine Knapp and never rebutted her claims about his letter. In its closing
argument, the prosecution referred to those writings as “the jailhouse manifesto,” where
Roof “attempts to incite violence in others, to agitate race relations.” (J.A. at 6686.)
During closing argument, the prosecution told the jury to “consider any facts or
factors based on the evidence that you believe mitigate against the imposition of the death
penalty,” but then claimed that some of the mitigating factors “are simply not true for which
no evidence has been presented.” (J.A. at 6696-97.) The prosecution argued that not only
is there “no evidence” that Roof “does not pose a risk of violence while incarcerated,” but
that the evidence is “quite to the contrary.” (J.A. at 6697.) It said that Roof’s “experience
75
being incarcerated indicates there is quite a risk of violence, violence that he incites,
violence that he encourages, violence that he sends to others to act. That is the risk of
violence from this defendant.” (J.A. at 6697.) The prosecution also told the jurors to ask
themselves “whether there is evidence that he can be safely confined” when what “you
have seen is the defendant sending letters out, writing racist manifestos, continuing what
he has done.” (J.A. at 6697.) And it reiterated that “there’s no evidence to support . . . the
lack of a risk of violence, the safety, all of which the evidence suggests to the contrary.”
(J.A. at 6698.)
The prosecution highlighted the “jailhouse manifesto” in its non-statutory
aggravation argument: Roof “is sending a message. He is trying to get others to
act. . . . [H]e was certainly doing that in his jailhouse manifesto. He is attempting to incite
violence in others, and that weighs heavily.” (J.A. at 6702.)
Roof objected to the prosecution’s reliance on Roof’s mail, arguing that it related to
prison conditions, which the court had “refused to allow me to present evidence” on since
they “weren’t allowed to talk about an imaginary prison.” (J.A. at 6710.) The court
overruled the objection, explaining that its ruling had addressed whether Roof could argue
that he was “unusually vulnerable to danger in prison.” (J.A. at 6711.) It explained that
the prosecution was discussing what Roof “had written while incarcerated . . . [,] which
was motivated to incite violence, and that in prison, you could continue to do the same
thing.” (J.A. at 6710.) It agreed with the prosecution that the evidence “was fair rebuttal
to the mitigators that [you] chose to put in.” (J.A. at 6711.) It also reminded Roof that he
could “argue to the contrary.” (J.A. at 6711.)
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3. Jury Deliberations
During jury deliberations, standby counsel lodged more objections. They asked the
court to instruct the jury that Roof was “not permitted to introduce evidence about the
conditions of confinement. And, thus, it would not have been possible and was not possible
for this defendant to show that he would not be able or that the Federal Bureau of Prisons
is capable of preventing him from sending out a manifesto or otherwise communicating
with like-minded people on the outside.” (J.A. at 6754-55.) The court responded, “[t]hat’s
not what that goes to,” explaining that the prosecution “was addressing the aggravating
factors inciting violence and that he was a continued threat of this because he was
continuing to write.” (J.A. at 6754.) The court determined that the “inciting others
aggravating factor is broad enough to allow” evidence of Roof’s jailhouse manifesto. (J.A.
at 6757.) Standby counsel also requested the court to instruct the jury that “in light of the
prosecution’s argument that there is no evidence of nondangerousness . . . [,] mitigating
factors can in some circumstances be proven by the lack of evidence,” such as “the lack of
evidence of jail infractions or misconduct.” (J.A. at 6763.) The court denied the request.
The jury sent two questions to the court, both about the lack-of-futuredangerousness mitigating factors. The jury first asked about mitigating factor number eight
on the verdict form (Roof posed no significant risk of violence in prison): “Would he
personally inflict the violence or would he incite violence, need clarification.” (J.A. at
6765.) The court found “the common meaning” of that mitigating factor is “would he
commit acts of violence.” (J.A. at 6766.) Roof agreed that “it means me not harming
anyone” and that “it doesn’t mean inciting.” (J.A. at 6767.) But, after the prosecution
77
argued that Roof chose those particular words and the court should not “further redefine”
the factor and “narrow the scope,” the court declined to clarify the meaning to the jury.
(J.A. at 6767.)
The jury also asked about mitigating factor number nine on the verdict form (Roof
could be safely confined to life in prison): “Please define safe confinement. Does this
include his writing getting out of prison.” (J.A. at 6768.) The government claimed that
the court should not clarify the factor because “the whole point of mitigation is they are to
be read broadly.” (J.A. at 6768.) The court blamed the defense for proposing the lack-offuture-dangerousness mitigating factors, noting that the court did not “really have a right
to define them more precisely.” (J.A. at 6768-69.) Roof’s standby counsel asserted that
“these are the defendant’s mitigating factors” and warned that the “prosecution in effect
would like the jury to use these as aggravating factors.” (J.A. at 6769.) According to the
defense, this interpretation could convert the lack-of-future-dangerousness mitigating
factors into aggravating factors. Ultimately, the court informed the jurors, as to both
questions, that “you need to simply read the mitigating factor[s] as written and use your
common[ ]sense to interpret [them]. It would not be proper to comment further.” (J.A. at
6775.)
The jury unanimously found, beyond a reasonable doubt, all gateway intent and
aggravating factors. It also found that Roof’s mitigating factors existed, with three
exceptions: (1) Roof was not capable of redemption; (2) Roof posed a significant risk of
dangerousness in prison; and (3) Roof could not be safely confined. The jury found that
the aggravating factors sufficiently outweighed the mitigating factors. It unanimously
78
found Roof death-eligible and sentenced him to death on each capital count. The court
entered a sentence of death on Counts 13 through 21 and 25 through 33, and of life
imprisonment without the possibility of release on all other counts.
B. Issue 11: The Court Did Not Improperly Preclude Roof from Presenting
Mitigating Evidence
We now turn to the alleged errors that Roof claims affected the penalty phase of his
trial. The first category of those alleged errors relates to mitigating evidence. Roof
contends that the district court improperly struck two of his proposed mitigating factors
and then precluded him from presenting evidence about his lack of future dangerousness.
He next argues that the prosecutor improperly capitalized on that error during his closing
argument. Finally, Roof asserts that the court failed to adequately address jury questions
about the mitigators that he was allowed to present. We address each in turn below.37
1. The Precluded Mitigating Factors and Evidence of Prison Conditions
The Eighth Amendment and the Federal Death Penalty Act both require that the
finder of fact consider, “as a mitigating factor, any aspect of a defendant’s character or
record . . . that the defendant proffers as a basis for a sentence less than death.” Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)
37 We review de novo preserved constitutional challenges to the mitigating factors,
United States v. Runyon, 707 F.3d 475, 499 (4th Cir. 2013), evidentiary rulings implicating
constitutional claims, United States v. Williams, 632 F.3d 129, 132 (4th Cir. 2011), and
whether the prosecutor’s remarks made during closing argument were improper, United
States v. Collins, 415 F.3d 304, 307 (4th Cir. 2005). A district court’s response to a jury
note seeking clarification is ordinarily reviewed under the abuse-of-discretion standard.
United States v. Alvarado, 816 F.3d 242, 248 (4th Cir. 2016).
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(plurality opinion)); see also 18 U.S.C. § 3592(a)(8) (describing “[o]ther factors in the
defendant’s background, record, or character . . . that mitigate against imposition of the
death sentence”). Roof contends that the district court erred when it barred him from
submitting the following two mitigating factors to the jury:
Due to his small size, youth, and notoriety, a sentence of life in prison without
the possibility of release will be especially onerous for Dylann Roof, because
the danger of violence he will face from other inmates will require that he
serve his life sentence under isolating conditions of confinement.
A sentence of life in prison without the possibility of release will be
especially onerous for Dylann Roof because he will serve his entire life
sentence in fear of being targeted by other inmates.
(J.A. at 464.) The court granted the government’s motion in limine to exclude both factors,
reasoning that “[i]t is inappropriate to ask the jury to imagine conditions at some imaginary
prison.” (J.A. at 493.) It also precluded any “evidence in support of speculation about
[Roof’s] future conditions of confinement if sentenced to life imprisonment.” (J.A. at 494.)
The two excluded mitigating factors did not seek to prove, as Eddings allows, that
something about Roof’s personal character warranted a “sentence less than death.” 455
U.S. at 110 (citation omitted). Instead, the excluded mitigators sought to prove that a
sentence of life imprisonment would be particularly onerous for Roof. We are not aware
of—and Roof does not identify—any court that has found this to be proper mitigating
evidence. And at least one circuit court has held that the harshness of prison conditions is
not an appropriate mitigating factor. United States v. Johnson, 223 F.3d 665, 674-75 (7th
Cir. 2000). We agree and conclude that the court properly excluded the challenged
mitigators.
80
Roof contends, however, that the two factors that he sought to introduce did not
relate to generalized conditions of confinement, but were “tailored specifically to him”
because they relate to his “small stature, youth, and notoriety.” (Opening Br. at 169.) In
Roof’s view, these characteristics would increase the danger that he faces from other
inmates, which would, in turn, require that prison officials take additional security
measures to keep him safe. Although these excluded factors involve some consideration
of Roof’s character, their import hinges on speculation regarding the hypothetical (and
wholly unsubstantiated) danger of violence that Roof would presumptively face due to his
individual characteristics. The multiple hypotheticals on which the excluded factors rely
negate any meaningful consideration of mitigating information specific to Roof.
Roof responds by citing our decision in Lawlor v. Zook, 909 F.3d 614 (4th Cir.
2018). In Lawlor, we held that the state trial court erred when it excluded from the penalty
phase of a murder case the defense expert’s testimony regarding Lawlor’s low risk of
committing acts of violence in prison. Id. at 629-33. In so ruling, we observed that
evidence of prison conditions “must connect the specific characteristics of the particular
defendant to his future adaptability in the prison environment.” Id. at 631 (quoting Morva
v. Commonwealth, 683 S.E.2d 553, 565 (Va. 2009)). The specific characteristics in Lawlor
involved Lawlor’s lack of violent activity in prison, his (relatively) advanced age, and his
significant contacts with family and friends. Id. at 622-23. Lawlor’s expert was prepared
to opine that these characteristics, specific to Lawlor, demonstrated that he represented a
low risk for committing acts of violence while incarcerated.
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In contrast, Roof’s specific characteristics involve his “small size, youth, and
notoriety.” (J.A. at 464.) He sought to show that, due to them, he would be in constant
danger while in prison and would likely spend his life sentence in isolating conditions,
unlike Lawlor, who sought to show that he was not dangerous. For the reasons set forth
above, the connection between those individualized characteristics and the proposed
mitigators is too tenuous, relying primarily on speculation about conditions at some
imaginary prison.
Roof’s argument also misunderstands the scope of the district court’s evidentiary
ruling. In Lawlor, the trial court had excluded nearly all expert testimony on the issue of
Lawlor’s lack of future dangerousness in prison. Id. at 621. Here, by contrast, the district
court’s prohibition against “evidence in support of speculation about Defendant’s future
conditions of confinement” did not prohibit Roof from introducing evidence tending to
prove his lack of future dangerousness. (J.A. at 494.)
Filings by standby counsel further belie Roof’s current claim that he was barred
from introducing such evidence. In their request for the second competency hearing,
standby counsel expressed their concern that Roof had decided to forgo substantial
mitigation evidence, including “expert testimony regarding the defendant’s good behavior
during pretrial detention, his likely future as a nonviolent and compliant life-term prisoner
if he is not sentenced to death, and the state and federal governments’ ability to safely
manage him in the future.” (J.A. at 5251.) It is thus clear that the defense understood
Roof’s lack of dangerousness (as opposed to the supposed dangerousness of the prison)
was a matter that could be explored as a mitigator and that the court’s earlier ruling about
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prison conditions was not an obstacle. The decision to forgo such evidence was made by
Roof, not by the court. Because Roof was not prohibited from introducing evidence about
his lack of future dangerousness, Lawlor is inapposite.
2. The Prosecutor’s Remarks at Closing Argument
Roof next challenges statements by the prosecutor during closing argument about
the lack-of-future-dangerousness mitigating factors. Roof had submitted those mitigators
to replace the precluded factors discussed above. As noted, they appeared on the verdict
form as mitigating factors 8 and 9:
8. [T]he Defendant poses no significant risk of violence to other inmates or
prison staff if imprisoned for life.
9. [G]iven his personal characteristics and record, the Defendant can be
safely confined if sentenced to life imprisonment.
(J.A. at 6804.)
During closing argument, the prosecutor repeatedly stated that these mitigating
factors were “simply not true” and that the jurors had heard “no evidence” to support them.
(J.A. at 6697.) The prosecutor alluded to the testimony of Lauren Knapp, an officer with
the Charleston County Sheriff’s Office, who had uncovered Roof’s racist and incendiary
writings. This evidence, the prosecutor argued, demonstrated that Roof posed a risk of
violence and could not be safely confined.
A prosecutor’s improper closing argument might “so infect[] the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). Where, as here, “specific guarantees of the Bill
of Rights are involved, [the Supreme] Court has taken special care to assure that
83
prosecutorial conduct in no way impermissibly infringes them.” Id. At the same time, we
have recognized that “great latitude is accorded counsel in presenting closing arguments to
a jury.” United States v. Johnson, 587 F.3d 625, 632 (4th Cir. 2009) (citation omitted); see
also id. at 633 (“[T]o parse through a prosecutor’s closing statement for minor infelicities
loses sight of the function of our adversary system, which is to engage opposing views in
a vigorous manner.”). “Thus, while courts should not hesitate to condemn those
prosecutorial comments that truly offend constitutional norms, neither shall we attach
constitutional significance to every verbal fillip, lest we unduly censor the clash of
viewpoints that is essential to adversarial proceedings.” United States v. Runyon, 707 F.3d
475, 507 (4th Cir. 2013).
The prosecutor’s comments at closing here were not improper. Roof contends that
the references to his racist writings and his access to the mail, in tandem with the
prosecutor’s “no evidence” comment, misled the jury to believe that Roof would be free to
send incendiary writings outside prison and that “nothing could be done to prevent his
efforts.” (Opening Br. at 173.) But the “no evidence” statement appropriately highlighted
Roof’s decision to forgo presenting any evidence in support of mitigating factors 8 and 9.
The prosecutor pointed out that Roof wrote a racist jailhouse manifesto expressing again
his racist ideology and that there remained a risk that such writings would incite violence
from others. Whether the “others” that the prosecutor was referring to included fellow
inmates is ambiguous. To the extent that the prosecutor’s comments relate to the outside
world, the measures that prison officials have in place to prevent Roof from communicating
outside the prison are the type of evidence that Roof could have elicited from Officer
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Knapp during cross-examination. But Roof declined to cross-examine Knapp or to
introduce such evidence through his own expert witness. Nor did Roof introduce any
evidence suggesting that he would not (or could not) share his incendiary writings with
other inmates.
Echoing his prior argument, Roof contends that the district court’s evidentiary
ruling precluded him from presenting such evidence. He therefore argues that the
prosecutor’s “no evidence” statements “t[ook] advantage of a lack of evidence it had itself
secured” through its motion in limine. (Opening Br. at 172.) Once again, however, the
record tells a different story. The absence of this evidence was a consequence of Roof’s
decision to present no mitigation evidence—a decision that, as discussed above, caused
standby counsel to question Roof’s competency.
Nor did Roof attempt to clarify the scope of the district court’s order precluding
“evidence in support of speculation about Defendant’s future conditions of confinement.”
(J.A. at 494.) When Roof objected to the prosecutor’s statements at closing argument
regarding his access to the mail, the court summarized the issue addressed by its previous
evidentiary order: “The question [was] if you were unusually vulnerable to danger in
prison, that you couldn’t be safe, and that is what I ruled on.” (J.A. at 6711.) The court
then invited Roof to rebut the prosecutor’s argument regarding his future dangerousness,
saying “[y]ou can argue to the contrary. I mean, that is what it’s all about. This is
argument.” (J.A. at 6711.) But Roof failed to do so.
Roof next contends that the prosecutor improperly vouched for a view of the
evidence when twice stating that mitigating factors 8 and 9 were “not true.” (J.A. at 6697.)
85
“Vouching generally occurs when the prosecutor’s actions are such that a jury could
reasonably believe that the prosecutor was indicating a personal belief in the credibility of
the witness.” United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). Here, by contrast,
the prosecutor was not addressing the credibility of any witness, but only the truth (or lack
thereof) of mitigating factors 8 and 9. Regardless of how Roof’s argument is framed, it
lacks merit. The prosecutor’s statement attempted to contrast “factually accurate”
mitigating factors (e.g., Roof’s young age, lack of criminal history, and cooperation with
law enforcement) with those for which Roof presented no evidentiary support. (J.A. at
6698.) Each statement was made in the context of that lack of evidence. Because Roof
presented no evidence about his lack of future dangerousness, the prosecutor’s statement
that these mitigators were “not true” was, at most, a “minor infelicit[y].” See Johnson, 587
F.3d at 633.
3. The Court’s Response to Jury Notes
Roof’s final mitigation argument is that the district court erred when it failed to
adequately respond to two jury questions about mitigating factors 8 and 9. Regarding
mitigating factor 8 (“Defendant poses no significant risk of violence to other inmates or
prison staff” (J.A. at 6804)), the jurors asked: “Would he[, Roof,] personally inflict the
violence or would he incite violence, need clarification.” (J.A. at 6765.) As to mitigating
factor number 9 (“Defendant can be safely confined” (J.A. at 6804)), jurors asked, “Please
define safe confinement. Does this include his writing getting out of prison[?]” (J.A. at
6768.)
86
The district court ultimately instructed the jurors, for both questions, “to simply read
the mitigating factor as written and use your common[ ]sense to interpret it. It would not
be proper to comment further.” (J.A. at 6775.) Roof argues that this response constitutes
an abuse of discretion. He contends that the court’s instruction “left the jury free . . . to
read the mitigating factors broadly, effectively expanding the defense burden of proof on
each.” (Opening Br. at 179.)
Not so. The record makes clear that Roof had read mitigating factors 8 and 9 more
narrowly than the prosecution had, such that “no significant risk of violence” would not
include incitement of violence (as to mitigating factor 8) and “safely confined” would mean
physical confinement (as to mitigating factor 9). Standby counsel therefore asked that the
district court instruct the jury to adopt that narrower interpretation and to “construe[] [these
factors] in favor of the defendant.” (J.A. at 6771.) Because Roof’s broadly worded
mitigating factors could reasonably encompass both interpretations, and because the
prosecution had already submitted rebuttal evidence that aligned with its broader
interpretation, the court did not err in refusing to “pick sides” by narrowing the scope of
mitigating factors 8 and 9.
C. Issue 12: Isolated Witness Testimony Describing Roof as “Evil” and
Stating that He Would Go to “the Pit of Hell” Did Not Render the Trial
Fundamentally Unfair
Roof asserts that victim-witness Felicia Sanders’s unsolicited remarks that he was
“evil” and would go to “the pit of hell” violated his Eighth Amendment rights, see Booth
v. Maryland, 482 U.S. 496, 502-03, 508 (1987), overruled on other grounds by Payne v.
Tennessee, 501 U.S. 808, 830 (1991), and rendered his trial fundamentally unfair, in
87
violation of his due process rights, see Darden v. Wainwright, 477 U.S. 168, 178-81 (1986).
Those remarks, Roof argues, were unduly prejudicial and demand a new penalty hearing.
1. The Testimony in Question
Roof challenges remarks that Sanders made during both direct examination and
cross-examination at the guilt phase of the trial. The direct examination testimony at issue
consists of the following answer, at the end of a lengthy response, to the prosecution’s
question: “You could hear the defendant shooting; what could you feel on your legs and
arms?”
And the whole time I’m laying there, I felt the sting up and down my leg.
Nothing but sting. I couldn’t move. I was just waiting on my turn. Even if
I got shot, I didn’t want my granddaughter to be shot. I was just waiting on
my turn. It was a lot of shots. Seventy-seven shots in that room, from
someone who we thought was there before the Lord, but in return, he just sat
there the whole time evil. Evil. Evil as can be.
(J.A. at 3700-02.)
After the prosecution asked additional questions, the court took a recess. During
the recess, Roof’s counsel objected specifically to the portion of Sanders’s answer that
Roof “sat there the whole time evil. Evil. Evil as can be.” (J.A. at 3704.) The district
court overruled his objection because the challenged testimony was “her observation” and
because the objection was untimely. Defense counsel attempted to justify the delayed
objection by noting that “the witness was crying and understandably very upset during
parts of her testimony, and it seemed inappropriate to respond.” (J.A. at 3705.) The court
rejected that justification, explaining that “[c]rime victims frequently weep from the
witness stand. . . . It’s just the natural result of telling a very tragic story.” (J.A. at 3705.)
88
Later, on cross-examination, the following exchange occurred:
Q. Good afternoon, Miss Sanders. I only have one question to ask you;
I’ll be done. Do you remember the man who did this saying
something about that he was only 21, and then talking about what he
was going to do afterwards?
A. Yes.
Q. Could you tell us what he said?
A. He say he was going to kill himself. And I was counting on that. He’s
evil. There’s no place on earth for him except the pit of hell.
Q. He said that he was 21? And then that he was going to kill himself
when he finished?
A. Send himself back to the pit of hell, I say.
Q. Did—he didn’t say that though. About hell. He just said he was going
to kill himself?
A. That’s where he would go, to hell.
Q. Yes, ma’am. I’m so sorry. Thank you.
(J.A. at 3706-07.) That was defense counsel’s full cross-examination of Ms. Sanders. The
following morning, Roof moved for a mistrial, arguing that Sanders’s “evil” and “pit of
hell” comments incurably tainted the trial. The district court denied the motion.
2. Standard of Review
Roof argues that his objections were timely, triggering de novo review. See United
States v. Hager, 721 F.3d 167, 204 (4th Cir. 2013) (“We review de novo a constitutional
claim that was properly preserved.”). But the government contends that Roof’s objections
were untimely, calling for review under the plain-error standard. See Fed. R. Crim. P.
52(b) (“A plain error that affects substantial rights may be considered even though it was
not brought to the court’s attention.”); United States v. Cabrera-Beltran, 660 F.3d 742, 751
(4th Cir. 2011) (stating that unpreserved evidentiary objections are reviewed under the
plain-error standard).
89
Evidentiary objections, governed by Rule 103 of the Federal Rules of Evidence,
must “be made at the time the evidence is offered.” United States v. Parodi, 703 F.2d 768,
783 (4th Cir. 1983) (citation omitted). We therefore find no reason to disturb the district
court’s ruling that Roof’s objections to Sanders’s direct examination testimony, lodged
after the questioning had moved on and ten minutes into a jury recess, were untimely
despite the emotional nature of Sanders’s testimony. And as to Sanders’s
cross-examination testimony, Roof made no objections at all but waited until the next day
to seek a mistrial. Plain-error review is therefore applicable.
To show plain error under Rule 52(b) of the Federal Rules of Criminal Procedure,
Roof must demonstrate that “(1) there is an error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights,
which in the ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in original)
(internal quotation marks and citation omitted).
Because Rule 52(b) “authorizes the Courts of Appeals to correct only particularly
egregious errors”—those that “undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice”—“the plain-error exception to the contemporaneousobjection rule is to be used sparingly,” without “skew[ing] the Rule’s careful balancing of
our need to encourage all trial participants to seek a fair and accurate trial the first time
around against our insistence that obvious injustice be promptly redressed.” United States
90
v. Young, 470 U.S. 1, 15-16 (1985) (internal quotation marks and citations omitted). We
therefore review a claim of plain-error “against the entire record.” Id. at 16.
Roof also challenges the court’s denial of his motion for a mistrial. We review that
decision under the abuse-of-discretion standard. United States v. Brewer, 1 F.3d 1430,
1437 (4th Cir. 1993).
3. The Merits of Roof’s Claims
With regard to Roof’s Eighth Amendment claim, the Supreme Court has held that,
in a capital case, “the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence violates the Eighth
Amendment.” Payne, 501 U.S. at 830 n.2 (describing the holding of Booth, 482 U.S. at
502-03); see also Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (holding that
Payne did not overrule Booth entirely and that courts remain “bound by Booth’s prohibition
on characterizations and opinions from a victim’s family members about the crime, the
defendant, and the appropriate sentence”). Similarly, the Supreme Court has held that
improper comments offend the Constitution if they “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (citation
omitted). “Courts must conduct a fact-specific inquiry and examine the challenged
comments in the context of the whole record.” Bennett v. Stirling, 842 F.3d 319, 323 (4th
Cir. 2016) (citing Young, 470 U.S. at 11-12).
We will assume here that the unsolicited and unresponsive remarks by Sanders that
Roof was “evil” and would go “to the pit of hell” are improper characterizations. But even
with that assumption, “we must bear in mind that not every improper [remark] amounts to
91
a denial of due process.” Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996). Nor
does every improper remark affect “the outcome” or “fairness, integrity or public
reputation” of the district court proceedings, thus resulting in plain error. See Marcus, 560
U.S. at 262 (citation omitted); cf. Young, 470 U.S. at 16 (“Viewed in context, the
prosecutor’s statements, although inappropriate and amounting to error” cannot “be said to
rise to the level of plain error.”).
Sanders’s improper remarks were not so egregious as to “undermine the
fundamental fairness of the trial and contribute to a miscarriage of justice.” Young, 470
U.S. at 16. Given the aggravated and calculated nature of Roof’s multiple murders—
proven by overwhelming evidence—one victim’s characterization of Roof as evil and
deserving of hell is unlikely to have had any material effect on the jury’s view of the case.
Cf. United States v. Wilson, 135 F.3d 291, 299 (4th Cir. 1998) (“Murder is a crime regarded
by public opinion as involving moral turpitude, which means, in general, shameful
wickedness, so extreme a departure from ordinary standards of honesty, good morals,
justice or ethics to be shocking to the moral sense of the community.” (internal quotation
marks and citations omitted)).
Nor did the remarks in question pervade the trial. They totaled just eight transcript
lines out of forty-one pages of Sanders’s eyewitness testimony, which included powerful
descriptions of lying in her aunt’s and son’s blood, holding and fearing for her terrified
granddaughter, and hearing her son say that he loved her before watching him take his last
breath. The eight lines are further buried in over 2,300 pages of evidence and arguments
presented to the jury during the trial at both the guilt phase and the penalty phase, and
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include testimony from two surviving witnesses and twenty-three victim-impact witnesses,
each with his or her own emotional statements to share. In addition, nearly one month
separated the disputed remarks, given on the first day of the guilt phase, from the first day
of the penalty phase.
The prosecution, moreover, never mentioned the challenged remarks in arguments
at either the guilt or penalty phase. And the district court offered a curative instruction the
day after Sanders’s testimony:
I want to remind you that the decisions this jury must make, whether the
defendant is guilty or not guilty, and if we come to a sentencing phase, the
appropriate sentence, is always your decision to make. It is not the decision
of this Court or the attorneys or the witnesses. It will always be yours.
(J.A. at 3839-40.) That instruction—that Roof’s sentence was the jury’s decision alone—
was offered at least twice more at the penalty phase.
In sum, the admission of Sanders’s remarks, in the full context of the guilt and
penalty phases of the trial, simply does not rise to the level of plain error. For the same
reasons, the district court did not abuse its discretion in denying Roof’s motion for a
mistrial.
D. Issue 13: Neither the Admission of Victim-Impact Evidence nor the
Prosecution’s Closing Argument Violated Roof’s Constitutional Rights
Roof next challenges the admission of certain victim-impact evidence. In seeking
the death penalty, the prosecution provided notice, pursuant to 18 U.S.C. § 3593(a)(2), of
non-statutory aggravating factors that it intended to prove, including the impact of Roof’s
crimes on the parishioners and their families, friends, and coworkers, and Roof’s targeting
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of Bible-study participants at Mother Emanuel to magnify the societal impact of his
offense.
Roof now asserts that the admission of evidence of the victims’ religiosity and
exemplary qualities, and of the prosecution’s statements at closing argument that
emphasized that the victims were exceptionally good and devout people, “violated
Supreme Court prohibitions on unduly prejudicial evidence and arbitrary and capricious
death sentences, in violation of due process and the Eighth Amendment.” (Opening Br. at
199.) Specifically, he contends that the prosecution exceeded the permitted purpose of
victim-impact evidence, which, according to the Supreme Court in Payne v. Tennessee, is
to show a victim’s “uniqueness as an individual human being.” 501 U.S. 808, 823 (1991)
(citation omitted). His arguments fail.38
1. Victim-Impact Evidence
The admission of victim-impact evidence—that is, “evidence of the victim’s
personal characteristics and the harm inflicted upon the victim’s family and community”—
is constitutionally permitted. Humphries v. Ozmint, 397 F.3d 206, 217 (4th Cir. 2005)
(citing Payne, 501 U.S. at 829 n.2). Such evidence may be offered to show “each victim’s
38 Several of Roof’s evidentiary challenges are unpreserved (e.g., to a voicemail
from Reverend Pinckney to a sick friend and to photos of the victims in church), and we
therefore review them under the plain-error standard. See Fed. R. Crim. P. 52(b). As for
the evidence that Roof did object to—such as the audiotape of Reverend ColemanSingleton preaching, the song performed by Coleman-Singleton’s son, the baccalaureateceremony photos, and references in the prosecution’s closing argument to the victims being
“particularly good” people—we review the evidentiary rulings, which implicate
constitutional claims, de novo. United States v. Williams, 632 F.3d 129, 132 (4th Cir.
2011).
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uniqueness as an individual human being, whatever the jury might think the loss to the
community resulting from [the victim’s] death might be.” Payne, 501 U.S. at 823 (internal
quotation marks omitted). We have recognized that, in asking the jury “to assess the
persuasive force of the defendant’s mitigating evidence and the victim-impact evidence,”
“some comparisons would be made between the defendant and the victim.” Humphries,
397 F.3d at 225-26.
But not all victim-impact evidence is admissible. As discussed, “evidence of the
victims’ opinions of the crime and of the appropriate sentence for the defendant violates
the Eighth Amendment,” id. at 217; see Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016), and
evidence that is “so unduly prejudicial that it renders the trial fundamentally unfair”
violates the Due Process Clause, Payne, 501 U.S. at 825; Humphries, 397 F.3d at 217.
Evidence used to establish “victim impact aggravating factors” violates due process when
the error in admitting it is “of sufficient significance that it denies the defendant the right
to a fair trial.” United States v. Barnette, 211 F.3d 803, 818 (4th Cir. 2000) (citing Greer
v. Miller, 483 U.S. 756, 765 (1987)). Thus, although “[s]ome comparisons, such as those
based on race or religion, unquestionably are unconstitutional,” “[o]ther comparisons are
not.” Humphries, 397 F.3d at 226. To make that determination, we “must consider the
challenged conduct in relation to the proceeding as a whole.” Id. at 218.
Roof offers no support, and we find none, for his argument that the disputed
victim-impact evidence amounts to an opinion on Roof, the crime, or the appropriate
sentence sufficient to constitute a violation of the Eighth Amendment. That leaves his
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argument that the disputed evidence was unduly prejudicial, in violation of the Due Process
Clause.
Contrary to Roof’s argument, the victims’ exemplary qualities, such as their singing,
preaching, and praying, are part of their “uniqueness” that Payne allows a jury to consider.
See Payne, 501 U.S. at 823. The prosecution is “entitled to ask the jury to look at [the
victims’] uniqueness and to ask the jury to consider the consequences of when a person of
[the victims’] uniqueness is taken.” Humphries, 397 F.3d at 222 (internal quotation marks
omitted). And the district court in fact reminded the jury of that, instructing that “victim
testimony is limited by law to personal characteristics of the victim and the emotional
impact o[n] the family. . . . [D]isregard any other statements outside that.” (J.A. at 6033.)
As for the faith-related aspect of the evidence, nothing was said that encouraged the
jurors to make a comparison between Roof’s religion and that of the victims. Cf. Zant v.
Stephens, 462 U.S. 862, 885 (1983) (noting that the state did not attach “the ‘aggravating’
label to factors that are constitutionally impermissible or totally irrelevant to the sentencing
process, such as for example the . . . religion . . . of the defendant”). That some of the
victim-impact evidence implicates the victims’ devotion and the impact of the victims’
deaths on the targeted religious community is to be expected where Roof intentionally
targeted a church and selected Mother Emanuel’s Bible-study group. He specifically chose
as his victims individuals whose occupations, volunteer work, and daily activities naturally
involved their faith and Mother Emanuel. Also relevant is the district court’s instruction
that the jury “must not consider . . . religious beliefs . . . of either the defendant or any
victim.” (J.A. at 6747.)
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Finally, the prosecution’s emphasis on the victims’ particular worth by reminding
the jurors “how extraordinarily good these people were” and that Roof sought out “the best
among us” does not, as Roof contends, amount to unconstitutional comparative
victim-worth evidence. (J.A. at 6668, 6703.) Not only do the prosecution’s statements
directly support the “selection of victims” aggravating factor, but the “inevitable
consequence[] of Payne’s comparative framework” is “that a defendant can be put to death
for the murder of a person more ‘unique’ than another.” Humphries, 397 F.3d at 222 n.6.
We therefore conclude that neither the admission of the disputed evidence nor the
prosecution’s closing argument about it violated Roof’s constitutional rights.
E. Issue 14: Roof’s Death Sentence Is Not Cruel and Unusual Punishment
Under the Eighth Amendment
Roof next contends that the death penalty is cruel and unusual punishment as applied
to himself due to his age and mental capacity. This argument too is unavailing.39
39 The parties dispute whether Roof preserved his constitutional challenges to the
death penalty based on his age and mental capacity. Roof contends the alleged
constitutional errors were preserved for de novo review because his challenges were
“brought to the court’s attention”—and therefore complied with Federal Rule of Criminal
Procedure 52—when his “[s]tandby counsel filed a draft motion to preclude the death
penalty based on Roof’s age and [mental capacity].” (Opening Br. at 209.) However, Roof
withheld his signature and therefore his consent to file the draft motion for the district
court’s consideration. And he expressed his concerns adamantly and directly with the court
regarding his disapproval of standby counsel’s decision to file that motion. Thus, the
record makes clear that Roof did not want the district court to consider the constitutional
challenges he now raises on appeal, so his preservation claim fails under Rule 51(b). Fed.
R. Crim. P. 51(b) (“A party may preserve a claim of error by informing the court—when
the court’s ruling or order is made or sought—of the action the party wishes the court to
take, or the party’s objection to the court’s action and the grounds for that objection.”). We
accordingly review Roof’s constitutional challenges for plain error.
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1. Age
Roof argues that the categorical ban on executing juveniles (i.e., offenders under 18
years of age) should be extended to young adults. In support of his argument, he cites
Roper v. Simmons, 543 U.S. 551 (2005), which held that executing juveniles is
unconstitutional. He also cites “legal and scientific advances, including studies showing
the brain’s continued development into one’s early- to-mid-20s,” which, he says, “have
eroded the justification [relied upon in Roper] for drawing the line for capital punishment
at 18.” (Opening Br. at 210.) According to Roof, those advances have occurred in parallel
with an emerging national consensus recognizing that young adults, like juveniles, are not
“beyond rehabilitation.” (Opening Br. at 211.)
Roper stated plainly that “[t]he Eighth and Fourteenth Amendments forbid
imposition of the death penalty on offenders who were under the age of 18 when their
crimes were committed.” 543 U.S. at 578. In rejecting capital punishment for juveniles,
the Supreme Court said:
The prohibition against “cruel and unusual punishments,” like other
expansive language in the Constitution, must be interpreted according to its
text, by considering history, tradition, and precedent, and with due regard for
its purpose and function in the constitutional design. To implement this
framework, we have established the propriety and affirmed the necessity of
referring to “the evolving standards of decency that mark the progress of a
maturing society” to determine which punishments are so disproportionate
as to be cruel and unusual.
Id. at 560-61 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality
opinion)).
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The Court determined that, by 2005, a national consensus had developed against
executing juveniles, as evidenced by the majority of states having banned their execution,
the infrequency of executions in states that had not yet banned their execution, and a
consistent trend towards abolishing the practice. Id. at 567. Hence, the Court concluded,
the Eighth Amendment categorically prohibits the capital punishment of juveniles. Id. at
564, 567, 578. Relevant to the second part of Roof’s Eighth Amendment claim, the Court
observed that “[t]he evidence of national consensus against the death penalty for juveniles
is similar, and in some respects parallel, to the evidence Atkins [v. Virginia, 536 U.S. 304
(2002)] held sufficient to demonstrate a national consensus against the death penalty for
the mentally retarded.” Id. at 564.
Roof argues that we should read Roper expansively. But Roper’s holding is a
categorical ban on executing juveniles in the same way that Atkins is a categorical ban on
executing the intellectually disabled. Id. at 564, 567; see also Hall v. Florida, 572 U.S.
701, 708 (2014) (noting, in reference to Roper and Atkins, that “[t]he Eighth Amendment
prohibits certain punishments as a categorical matter”). And “if a Supreme Court precedent
has direct application in a case,” as Roper clearly does, then “we must follow it.” United
States v. Stitt, 459 F.3d 483, 485 (4th Cir. 2006) (internal quotation marks and citation
omitted). The Supreme Court chose to draw a line at the generally accepted age of
majority, 18, and did so acknowledging that age and culpability were not perfectly linear.
Roper, 543 U.S. at 574 (“Drawing the line at 18 years of age is subject, of course, to the
objections always raised against categorical rules. . . . The age of 18 is the point where
society draws the line for many purposes between childhood and adulthood. It is, we
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conclude, the age at which the line for death eligibility ought to rest.”). We have no
authority to hold that executing those who are older than 18 violates the Eighth Amendment
because, as the First Circuit observed in United States v. Tsarnaev, “whether a change [to
Roper] should occur is for the Supreme Court to say.” 968 F.3d 24, 97 (1st Cir. 2020)
(rejecting a similar argument advocating for an extension of Roper’s execution ban to age
20).
In Tsarnaev, the court conducted a detailed analysis of the defendant’s
constitutional claim that a person accused of having committed death-eligible crimes when
he was under 21 (Tsarnaev was 19 when he set off a bomb at the 2013 Boston Marathon)
was categorically exempt from the death penalty. Id. at 96. Like Roof, Tsarnaev argued
that the factors considered in Roper “in granting death-penalty immunity to persons under
18—that they lack the maturity we attribute to adults; that they are more vulnerable to peer
pressure than are adults; and that their personality traits are less fixed, suggesting a higher
likelihood of rehabilitation of juveniles than of adults—apply equally to persons under 21.”
Id. (citation omitted). Addressing that argument, the First Circuit characterized Roper as
a “square holding that 18 is ‘the age at which the line for death eligibility ought to rest.’”
Id. at 97 (quoting Roper, 543 U.S. at 574). The court acknowledged that the science of
brain development has indeed progressed since 2005; it even cited the exact American Bar
Association resolution “to exclude offenders 21 and younger from capital charges” that
Roof cites here. (Opening Br. at 211);see id. It nonetheless held that, although the “change
[that Tsarnaev] proposes is certainly worthy of careful consideration,” “whether a change
should occur is for the Supreme Court to say—not us.” Id. That conclusion holds here.
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The Supreme Court granted certiorari in Tsarnaev on March 22, 2021 to review
whether the First Circuit properly set aside Tsarnaev’s death sentence on other grounds.
See United States v. Tsarnaev, 141 S. Ct. 1683 (2021) (mem.). Given the parallel
arguments that Tsarnaev and Roof make, the Court may decide whether to modify Roper.
Until then, Roper is the controlling precedent. See Stitt, 459 F.3d at 485.
2. Mental Incapacity
Roof’s arguments on mental capacity are similarly unpersuasive. He has an IQ of
125, which is higher than approximately 94% of the general population. He thus has no
plausible argument that he is protected by Atkins, which held that the Eighth Amendment
prohibits the execution of the intellectually disabled. 536 U.S. at 321.
The Atkins Court specifically defined such disability as involving “subaverage
intellectual functioning.” 536 U.S. at 318. Although “significant limitations in adaptive
skills such as communication” are part of the Atkins test, id., they are not sufficient by
themselves to render a defendant mentally incapacitated. See Hall, 572 U.S. at 711-14
(holding that mental incapacity per Atkins requires deficits in intellectual functioning in
addition to deficits in adaptive functioning). Roof is therefore not intellectually disabled
under Atkins.
VI. ISSUES RELATED TO GUILT VERDICT
Finally, we consider the alleged errors made during the guilt phase of Roof’s trial.
Specifically, Roof argues: first, that his convictions for religious obstruction under 18
U.S.C. § 247 are invalid under the Commerce Clause; second, that a conviction pursuant
18 U.S.C. § 247 requires proof of religious hostility; third, that the Hate Crimes
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Prevention Act, 18 U.S.C. § 249, is an unconstitutional exercise of Congress’s Thirteenth
Amendment authority; fourth, that the Attorney General erroneously certified Roof’s
federal prosecution; and fifth, that Roof’s firearm convictions under 18 U.S.C. § 924(c)
are invalid because the predicate offenses are not categorically crimes of violence. We
disagree on all points.
A. Issue 15: Roof’s Commerce Clause Challenges to the ReligiousObstruction Statute Do Not Require Reversal of Those Convictions
Counts 13 through 24 of the Indictment charged Roof with violating 18 U.S.C.
§ 247(a)(2) and (d)(1) (the “religious-obstruction statute”). Because the religiousobstruction statute requires the government to show a nexus between the alleged crimes
and interstate commerce, the district court ordered the government to file a bill of
particulars disclosing the nexus and justifying the exercise of jurisdiction to prosecute Roof
under that statute. The government did so and, in its bill, asserted that it would introduce
evidence establishing the requisite connection between Roof’s crimes and interstate
commerce, including evidence of Roof’s driving on interstate highways; navigating by a
GPS device produced out of state; using a gun, magazines, ammunition, and a tactical belt
pouch all produced out of state; calling Mother Emanuel on a home phone line; and using
the internet to plan his attack and spread the fear that would flow from it. The government
also included in the bill of particulars information about Mother Emanuel’s commercial
activities, including financial interactions with an out-of-state national organization,
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paying employees, renting church space, offering tours to out-of-state visitors, and
receiving donations.
Roof moved to dismiss Counts 13 through 24. He argued that the religiousobstruction statute was invalid under the Commerce Clause, both facially and as applied to
him. The district court held that the requirement of an interstate commerce nexus saved
the statute from the facial challenge. It also rejected Roof’s as-applied challenge, holding
that, based on the representations in the bill of particulars, there was sufficient evidence of
an interstate nexus for the indictment to survive a motion to dismiss.
At trial, the government introduced evidence that Roof’s actions, in planning and
committing the attack on Mother Emanuel’s parishioners, occurred in or affected interstate
commerce in multiple ways. Roof used the internet to research South Carolina’s historic
African American churches, including Mother Emanuel. He also paid for a foreign internet
server to host his website, LastRhodesian.com, where he spread his violent and racist
ideology. On the day that he attacked the parishioners at Mother Emanuel, Roof posted a
manifesto on his website foreshadowing his attack and culminating in a section titled “An
Explanation,” which read, in part, “I chose Charleston because it is the most historic city
in my state . . . . We have no skinheads, no real KKK, no one doing anything but talking
on the internet. Well someone has to have the bravery to take it to the real world, and I
guess that has to be me.” (J.A. at 4573-74.)
The government also showed that, on February 23, 2015, Roof used his home
telephone in South Carolina to place a call to Mother Emanuel. In addition, he used a GPS
device to navigate to the area surrounding Mother Emanuel during six trips from December
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2014 to May 2015, as well as on the day of the shooting. On that final day, he drove on an
interstate highway from Columbia to Charleston, South Carolina.
The evidence demonstrated that Roof purchased a gun, bullets, a gun pouch, and
magazines that had traveled in interstate or foreign commerce before their purchase. He
said that he bought those items to carry out his mission to kill African American people.
On June 17, 2015, he entered Mother Emanuel carrying the firearm and loaded magazines
in the tactical pouch. He used them to kill nine people and attempt to kill three more.
During his post-arrest interview, Roof explained to police that, through his attack, he
sought to “agitate race relations,” potentially leading to a race war or the reinstatement of
segregation.40 (J.A. at 4329-30.)
The jury heard Roof’s admission that he chose Mother Emanuel because it is a
“historic” African American church and hence a high-profile target. (J.A. at 4131-34,
4271.) Testimony also revealed that Mother Emanuel is in “a tourist area” of Charleston
and is itself an important tourist destination. (J.A. at 3759.) The government did not,
however, introduce any evidence of Mother Emanuel’s commercial activities, contrary to
its bill of particulars.
The district court instructed the jury that it could find that Roof’s conduct was “in”
interstate commerce even if his “use of the channel or instrumentality of commerce
40 Roof initially acknowledged to the FBI that he did not think what he did could
start a race war, but he later explained that agitating race relations could “cause[] friction
and then, you know, it could lead to a race war.” (J.A. at 4329-30.) The manifesto he
wrote also explained that he “would love for there to be a race war.” (J.A. at 4213.)
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occurred entirely within the State of South Carolina.” (J.A. at 5142.) It also instructed that
Roof’s conduct was “in” interstate commerce if, during the offense, he “used a firearm or
ammunition” that had “traveled across state lines at any point in its existence, regardless
of whether the defendant himself carried the weapon or ammunition across the state line,
or whether [the] defendant knew that the weapon or ammunition had traveled across states
lines.” (J.A. at 5142.) The court told jurors that “[t]he effect of the offense on interstate
commerce does not need to be substantial. . . . All that is necessary . . . to prove an effect
on interstate commerce is that the natural consequences of the offense potentially caused
an impact, positive or negative, on interstate commerce.” (J.A. at 5142-43.) The court
rejected Roof’s alternative instruction about the jurisdictional element, but nothing in the
record indicates that Roof objected to the instructions that were given.
In his motions for judgment of acquittal and a new trial, Roof renewed his
Commerce Clause challenges to the religious-obstruction statute. He noted that the
government had failed to offer proof of Mother Emanuel’s commercial activities at trial.
The government responded that the district court’s denial of the motion to dismiss
“correctly concluded that [the proffered] evidence was more than sufficient to demonstrate”
a nexus to interstate commerce. (J.A. at 6984.) The court denied Roof’s motions.
On appeal, Roof again argues that the religious-obstruction statute is
constitutionally invalid under the Commerce Clause, both facially and as applied to him.
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He also contends that the district court improperly instructed the jury on the required
interstate commerce nexus. His arguments fail.41
1. The Religious-Obstruction Statute Is Facially Valid
The religious-obstruction statute, 18 U.S.C. § 247, provides in relevant part:
(a) Whoever, in any of the circumstances referred to in subsection (b) of this
section--
. . .
(2) intentionally obstructs, by force or threat of force, including by threat of
force against religious real property, any person in the enjoyment of that
person’s free exercise of religious beliefs, or attempts to do so;
shall be punished as provided in subsection (d).
. . .
(b) The circumstances referred to in subsection (a) are that the offense is in
or affects interstate or foreign commerce.
Section 247 thus depends for its jurisdictional validity on the Commerce Clause, which
permits Congress “[t]o regulate Commerce . . . among the several States.” U.S. Const. art.
I, § 8, cl. 3. According to the Supreme Court in the seminal case of United States v. Lopez,
the Commerce Clause allows Congress to regulate three categories of activity: (1) “the use
of the channels of interstate commerce,” such as interstate railroads and highways; (2) “the
instrumentalities of interstate commerce, or persons or things in interstate commerce, even
41 We review de novo a district court’s holding that a statute is constitutional,
whether the constitutional challenge is facial or as-applied. See United States v. Hamilton,
699 F.3d 356, 366 (4th Cir. 2012); United States v. Fulks, 454 F.3d 410, 437 (4th Cir.
2006). We may strike down a statute “only if the lack of constitutional authority to pass
[the] act in question is clearly demonstrated.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567
U.S. 519, 538 (2012) (alteration in original) (internal quotation marks and citation omitted).
We review an unpreserved objection to jury instructions under the plain-error standard.
Fed. R. Crim. P. 30(d).
106
though the threat may come only from intrastate activities”; and (3) “those activities having
a substantial relation to interstate commerce.” 514 U.S. 549, 558-59 (1995).
Roof argues that § 247(a)(2) is facially invalid because the statute does not fall
within any of the three broad categories of conduct that Congress can regulate, as set out
in Lopez. The government responds that the statute’s jurisdictional element, that is, its
explicit requirement that there be a tie to interstate commerce, along with the possibility of
conduct that would satisfy that requirement, saves it from facial invalidity. We agree with
the government.
To evaluate Roof’s facial challenge under the third Lopez category—activities that
substantially affect interstate commerce—we consider four principles:42 (1) whether the
regulated activity is inherently commercial or economic; (2) whether the challenged statute
contains a jurisdictional element, which helps “ensure, through [a] case-by-case inquiry,
that the [regulated conduct] affects interstate commerce”; (3) whether legislative findings
discuss the prohibited conduct’s effect on interstate commerce; and (4) whether the link
between the prohibited conduct and a substantial effect on interstate commerce is
attenuated. Lopez, 514 U.S. at 561-63; United States v. Morrison, 529 U.S. 598, 611-12
(2000).
42 Although the government defends the religious-obstruction statute’s facial
validity under all three Lopez categories, it focuses primarily on the four principles
enumerated in Lopez, which fall under the “substantially affects” category, the third prong.
See United States v. Lopez, 514 U.S. 549, 559 (1995). We thus choose to evaluate the
facial challenge under that prong.
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As to the first two principles, although the regulation of religious obstruction is not
inherently economic or commercial in nature—which the government concedes—§ 247
does contain an express jurisdictional element, “limit[ing] its reach to a discrete set of
[activities obstructing religion] that additionally have an explicit connection with or effect
on interstate commerce.” Lopez, 514 U.S. at 562; Morrison, 529 U.S. at 611-12; see also
18 U.S.C. § 247(b). The presence of that jurisdictional element allows application of the
statute only where the defendant’s conduct falls within the regulatory scope of the
Commerce Clause.43
The third principle is satisfied because the legislative history of the religiousobstruction statute explicitly discusses the nexus to interstate commerce. Following Lopez,
Congress in 1996 amended the religious-obstruction statute’s jurisdictional element to
make plain that the statute’s reach is limited to “conduct which can be shown to be in or to
affect interstate commerce.” H.R. Rep. No. 104-621, at 7 (1996); see also United States v.
Ballinger, 395 F.3d 1218, 1234-35 (11th Cir. 2005) (en banc) (“[T]he new language was
specifically drafted to mirror the Supreme Court’s articulation in Lopez of the nature and
extent of the commerce power.” (citing H.R. Rep. No. 104-621, at 7 (1996))). The statute’s
43 We recently noted that we have not found any case “in which a federal criminal
statute including an interstate commerce jurisdictional element has been held to exceed
Congress’s authority under the Commerce Clause.” United States v. Hill, 927 F.3d 188,
204 (4th Cir. 2019). Although we also said that “a jurisdictional hook is not . . . a talisman
that wards off [all] constitutional challenges,” id. at 208 (alterations in original) (citation
omitted), the religious-obstruction statute’s jurisdictional element requires the government
to prove that the conduct of each prosecuted defendant is sufficiently in or affecting
interstate commerce to warrant exercise of the federal government’s power.
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legislative history also demonstrates that Congress intended its jurisdictional nexus to
protect against any unconstitutional application: “[I]f in prosecuting a particular case, the
government is unable to establish this interstate commerce connection to the act, section
247 will not apply to the offense.” H.R. Rep. No. 104-621, at 7 (1996).
Lastly, as to whether the link between commerce and the prohibited conduct is
attenuated, we need not consider here whether the religious function of a house of worship
standing alone affects interstate commerce because hypothetical conduct that satisfies the
Commerce Clause certainly falls within the religious-obstruction statute’s purview.44 See
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (A party
“can only succeed in a facial challenge by establish[ing] that no set of circumstances exists
under which the Act would be valid, i.e., that the law is unconstitutional in all of its
applications.” (alteration in original) (internal quotation marks and citation omitted)). The
government suggests several examples of such conduct. For example, as recognized by
the district court, one could “use the channels or instrumentalities of interstate commerce
44 Roof argues that theoretical effects on commerce are insufficient to defeat a facial
challenge. He contends that one could use an interstate highway to drive guns between
schools, but that scenario did not save the Gun-Free School Zone Act in Lopez from
invalidation. He likewise argues that in the case of United States v. Morrison—where the
defendant challenged Congress’s authority to provide a civil remedy in the Violence
Against Women Act—the fact that one could mail a bomb to a former spouse was not
enough to save the operative provision. 529 U.S. 598, 605, 619 (2000). That argument is
unpersuasive, as the statutes in Lopez and Morrison are easily distinguishable from the
religious-obstruction statute because neither contained a jurisdictional element. Besides
that, there is no indication that anyone in Lopez and Morrison made the sort of argument
that Roof is making here, and we are not going to presume what the Court would have said
had such an argument been made.
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to attack a house of worship . . . by mailing a bomb to a church.” (J.A. at 3521 (citing
Ballinger, 395 F.3d at 1237).) Someone could also obstruct religion by preventing
churchgoers from engaging in an activity affecting interstate commerce, such as operating
a daycare center. See United States v. Terry, 257 F.3d 366, 367 (4th Cir. 2001) (holding
that the jurisdictional element of the federal arson statute, 18 U.S.C. § 844(i), reached the
arson of a church because the church’s daycare center significantly affected interstate
commerce).
In short, the statute is not facially unconstitutional. And, as explained in the next
section, the statute’s appropriate application to Roof serves as a non-hypothetical example
that defeats any claim of facial invalidity.
2. The Religious-Obstruction Statute Is Valid as Applied to Roof
Roof contends that applying the religious-obstruction statute to him is an
unconstitutional expansion of Congress’s power under the Commerce Clause.45 He argues
that his use of goods sold in interstate commerce and his use of interstate channels to
prepare for later conduct are not enough to place his conduct within Congress’s regulatory
reach. For reasons not apparent to us, the government in its briefing and at oral argument
waived any jurisdictional claim under prong three of Lopez, “the broadest expression of
45 The government suggests that Roof actually challenges the sufficiency of the
evidence establishing the jurisdictional element and does not make an as-applied challenge.
We evaluate Roof’s challenge in the way he has framed it. In any event, the as-applied and
sufficiency-of-the-evidence inquiries overlap because the jurisdictional nexus has “the full
jurisdictional reach constitutionally permissible under the Commerce Clause.” United
States v. Grossman, 608 F.2d 534, 537 (4th Cir. 1979).
110
Congress’[s] commerce power.” Ballinger, 395 F.3d at 1226. We therefore must
determine whether, under Lopez prongs one and two, the government’s prosecution can be
justified. We hold that it can.
Roof’s conduct lies within the bounds of federal jurisdiction because he posted a
racist manifesto and call to action on the internet, through his website hosted on a foreign
server, mere hours before he made a historic house of prayer into a charnel house. His use
of the internet, an instrumentality of interstate commerce, was thus not merely a part of the
preparations for this attack. It was part of his effort to target Mother Emanuel and other
predominantly African American churches, to strike fear in the hearts of worshipers, and
to spread his toxic racial views.
Under Lopez prong one, Congress may regulate the use of the channels of interstate
commerce. 514 U.S. at 558. We have held that channels of interstate commerce can
include “navigable rivers . . . ; the interstate railroad track system; the interstate highway
system; . . . interstate telephone and telegraph lines; air traffic routes; [and] television and
radio broadcast frequencies.” Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir. 2000)
(second alteration in original) (citation omitted). Just as interstate telephone lines and radio
broadcast frequencies allow for interconnectivity and exchange by facilitating commercial
undertakings, the internet does so as well and is thus rightly viewed as a channel of
interstate commerce. See United States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006)
(holding that the internet qualifies as an instrumentality and channel of interstate commerce,
and that the defendant’s download of child pornography from the internet fell within the
first two prongs of Lopez, regardless of whether the images were produced out of state).
111
That being established, we consider next whether Roof’s use of the internet was
sufficiently central to his violations of the religious-obstruction statute to permit
enforcement of that statute against him. The question is a close one, and we see a
distinction between Roof’s use of the internet and several of the cases cited by the
government for the proposition that internet usage satisfies the religious-obstruction
statute’s application to Roof. For example, the government points to the prosecution of
violators of a federal law prohibiting the receipt of child pornography, noting that
defendants typically download the illicit material from the internet, “a system that is
inexorably intertwined with interstate commerce.” Id. The government also cites one of
our nonprecedential decisions holding that sufficient evidence supported the defendant’s
conviction for sex trafficking of a minor where the defendant advertised the minor on the
internet and that the internet advertisements placed the defendant’s conduct “in or affecting
commerce.” United States v. Gray-Sommerville, 618 F. App’x 165, 168 (4th Cir. 2015).
But in those cases, the defendants’ use of the internet was a key component of the charged
crimes and occurred during the commission of them. The same cannot be said of Roof’s
attack on Mother Emanuel’s parishioners.
Two similar factors, however, support the conclusion that Roof’s internet research
and postings provide a sufficient tie to the Commerce Clause: first, the importance that
Roof himself evidently attached to his internet activity in connection with the murders, and
second, the temporal proximity of that internet activity to the crimes. Cf. Ballinger, 395
F.3d at 1228 (considering both the “necess[ity] for him to travel across state lines . . . [and]
the immediacy with which he set out to destroy churches once he arrived . . . [to]
112
demonstrate that [the defendant] used the channels of interstate commerce for the purpose
of committing arson” (citation omitted)). In United States v. Ballinger, the Eleventh
Circuit upheld a defendant’s conviction for destruction of religious property under
§ 247(a)(1) as a valid expression of Congress’s Commerce Clause power. Id. at 1227. The
defendant there had set fire to eleven churches in four states during an arson spree in which
he had no other purpose for entering the states except to commit his crimes. Id. The
Eleventh Circuit rejected the defendant’s argument that the act itself must occur in a
channel or instrumentality of interstate commerce and held that his as-applied challenge
failed because he “use[d] the channels and instrumentalities of interstate commerce to
commit his offenses.” Id. at 1230.
Just as the defendant in Ballinger crossed state lines to commit arson, Roof
conducted internet research to pick his church target and to maximize the impact of his
attack. He used his foreign-hosted website to spread his racist ideology and advertise,
albeit cryptically, the rampage that he would undertake a few hours later. He relied on the
ubiquity of that channel of interstate commerce to amplify his actions and to extol his own
“bravery” for committing mass murder. (J.A. at 4573-74.) Roof’s use of the internet was
thus closely linked, both in purpose and temporal proximity, to his violation of the
religious-obstruction statute.
It is well-established that Congress has the power to “keep the channels of interstate
commerce free from immoral and injurious uses.” United States v. Gould, 568 F.3d 459,
471 (4th Cir. 2009) (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)); see
Ballinger, 395 F.3d at 1227 (describing “Congress’[s] well-established power to forbid or
113
punish the use of the channels and instrumentalities of interstate commerce ‘to
promote . . . the spread of any evil or harm to the people of other states from the state of
origin’” (second alteration in original) (quoting Brooks v. United States, 267 U.S. 432, 436
(1925))). That power extends to regulating instrumentalities of interstate commerce even
when the threat of their misuse “may come only from intrastate activities.” Lopez, 514 U.S.
at 558. Because “[a]n act that promotes harm, not the harm itself, is all that must occur in
commerce to permit congressional regulation,” Ballinger, 395 F.3d at 1227, we hold that
Roof’s internet usage rendered his prosecution under the religious-obstruction statute
constitutional.
We are not suggesting that a defendant’s internet usage before or even while
committing a federal offense will always place his conduct within the reach of Congress’s
Commerce Clause authority. Our holding is simply that Roof’s admitted use of the internet
to research a historic African American church as a target and to amplify the effect of his
planned attack on Mother Emanuel’s parishioners—a use that continued until shortly
before the attack—is sufficient to establish federal jurisdiction in this case. He freely
acknowledged his hope that the attack would “agitate race relations” and lead to a race war
or reintroduce racial segregation. (J.A. at 4329-30.) See Katzenbach v. McClung, 379 U.S.
294, 301 (1964) (“[R]acial discrimination [i]s not merely a state or regional problem but
[i]s one of nationwide scope.”); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
257 (1964) (describing, pre-Lopez, “the overwhelming evidence of the disruptive effect
that racial discrimination has had on commercial intercourse”). He devoutly wished to
have an interstate effect on the life of our nation, including its commerce, and he employed
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the internet as a means to achieve that end. Thus, our holding does not eviscerate the
“distinction between what is truly national and what is truly local,” as Roof warns. 46
(Opening Br. at 233 (quoting Morrison, 529 U.S. at 617-18).)
Even if we thought that Roof’s use of the internet did not alone provide a sufficient
nexus to interstate commerce, he had multiple other connections to the means of commerce
that, taken together, would serve to defeat his as-applied constitutional challenge. The
government contends that Roof’s use of a phone to call Mother Emanuel, a GPS device to
provide navigation to Mother Emanuel, and an interstate highway within South Carolina
to visit Mother Emanuel leading up to and on the day of the attack place his offense “in
interstate commerce.” (Answering Br. at 174.) Alone, each of those activities might be
insufficient to satisfy the Commerce Clause. But, viewed in conjunction with Roof’s
significant internet usage to plan and prepare for the attack and to maximize its effects,
those additional intersections with interstate commerce would be sufficient. See Ballinger,
395 F.3d at 1228 (combining multiple aspects of the defendant’s conduct, such as “travel
in a van (an instrumentality of commerce) along interstate highways (a channel of
commerce)” to conclude that the nexus to the Commerce Clause was satisfied). His as46 In passing the religious-obstruction statute, Congress intended to criminalize
precisely the type of conduct at issue in this case. Concerned by attacks on African
American churches in the South, Congress amended the jurisdictional nexus in the statute
to facilitate the prosecution of such racially motivated violence. H.R. Rep. No. 104-621,
at 2-3 (1996).
The government also argues that Roof’s use of a gun, ammunition, and a pouch that
had moved in interstate commerce prior to him gaining possession of them satisfies the
required Commerce Clause nexus. We need not comment on those arguments, given the
ruling that we have already expressed.
115
applied Commerce Clause challenge to his convictions under the religious-obstruction
statute therefore fails.
3. The Jury Instructions Were Proper
To round out his challenges under the Commerce Clause, Roof contends that the
district court incorrectly and prejudicially instructed jurors on the jurisdictional element of
§ 247. Because he failed to object to the instructions in the district court, he must
demonstrate plain error on appeal.47 Fed. R. Crim. P. 30(d); Fed. R. Crim. P. 52(b).
Roof first takes issue with the district court’s instruction that the jurors could find
his conduct to be “in” interstate commerce if his “use of the channel or instrumentality of
commerce occurred entirely within the State of South Carolina.” (J.A. at 5142.) He argues
that the instruction was wrong because Congress may only proscribe conduct “directed at”
interstate commerce’s instrumentalities, channels, or goods. (Opening Br. at 235 (quoting
Morrison, 529 U.S. at 618).) The government disagrees, contending that Roof’s use of
channels and instrumentalities of interstate commerce in planning, preparing for, and
committing his crimes satisfies the Commerce Clause, even if his interactions with
channels and instrumentalities occurred entirely intrastate. The government is correct
47 “A party who objects to any portion of the instructions or to a failure to give a
requested instruction must inform the court of the specific objection and the grounds for
the objection before the jury retires to deliberate. An opportunity must be given to object
out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in
accordance with this rule precludes appellate review, except as permitted under Rule
52(b).” Fed. R. Crim. P. 30(d). Where, as here, a party submits a proposed instruction on
the same legal principle but fails to object contemporaneously to the jury instructions, the
party does not preserve the issue for appeal. United States v. Cowden, 882 F.3d 464, 475
(4th Cir. 2018). Accordingly, we review Roof’s challenge under the plain-error standard.
See supra Section V.C.2 (articulating the plain-error standard).
116
because prong two of Lopez may be satisfied “even though the threat may come only from
intrastate activities.” Lopez, 514 U.S. at 558. Thus, as long as the use of the channel or
instrumentality is sufficiently central—in importance and temporal proximity—to the
conduct that Congress seeks to proscribe, regulation of that conduct falls within the limits
of the power granted by the Commerce Clause. See Ballinger, 395 F.3d at 1228
(considering the defendant’s travel across state lines in the context of its necessity and
temporal proximity to his crimes). The court’s instruction was not plainly erroneous.
Next, Roof contends that the district court erred in instructing the jury that his
conduct could be considered to be in interstate commerce if he “used a firearm or
ammunition during the offense” that had “traveled across state lines at any point in its
existence, regardless of whether the defendant himself carried the weapon or ammunition
across the state line, or whether defendant knew that the weapon or ammunition had
traveled across state[] lines.” (J.A. at 5142.) That instruction does not constitute plain
error because “[a]n error can be ‘plain’ only on the basis of settled law.” United States v.
Carthorne, 878 F.3d 458, 464 (4th Cir. 2017) (citation omitted). Although we have
explained that an object’s movement across state lines does not mark something forever as
“a ‘thing’ in interstate commerce” under Lopez prong two, our discussion arose in dicta
and in the context of an entirely different statute—one regulating the taking of red wolves.
Gibbs, 214 F.3d at 491 (citing Lopez to demonstrate that prong two was not satisfied
“despite the fact that the regulated guns likely traveled through interstate commerce”). In
addition, although the religious-obstruction statute is distinct from felon-in-possession
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statutes,48 the Supreme Court has not overruled Scarborough v. United States, 431 U.S.
563, 577 (1977), which interpreted a felon-in-possession statute’s jurisdictional nexus as
requiring only that the firearm at some point traveled in interstate commerce. See United
States v. Patton, 451 F.3d 615, 636 (10th Cir. 2006) (noting “considerable tension”
between Scarborough and Lopez, but concluding that “[a]ny doctrinal inconsistency
between Scarborough and the Supreme Court’s more recent decisions is not for this Court
to remedy”). Any error, then, if there were one, was not plain.
Finally, Roof argues that the district court erred in instructing jurors that “[t]he
effect of the offense on interstate commerce does not need to be substantial. . . . All that is
necessary . . . to prove an effect on interstate commerce is that the natural consequences of
the offense potentially caused an impact, positive or negative, on interstate commerce.”
(J.A. at 5142-43.) He contends that the court was required to instruct the jury that they had
to find a substantial effect on interstate commerce because the religious-obstruction statute
does not regulate economic activity, nor does it constitute a class of economic activities.
We recently said, when considering conduct affecting commercial activity, that “the
Supreme Court and this Court repeatedly have clarified that Congress may regulate
48 Felon-in-possession statutes necessarily proscribe possession of an item—a
gun—and that item is the object that must move through interstate commerce under
Scarborough v. United States. 431 U.S. 563, 577 (1977). In contrast, the religiousobstruction statute does not focus on the possession of an item, but rather the offense of
obstructing religion itself. See United States v. Singletary, 268 F.3d 196, 204 (3d Cir.
2001) (noting that the felon-in-possession statute “addresses items sent in interstate
commerce and the channels of commerce themselves, delineating that the latter be kept
clear of firearms”). It is not Roof’s possession of a firearm that requires our current focus;
it is his obstruction of religion.
118
interference with commerce, even if the effect of the interference on interstate commerce
in an individual case is ‘minimal.’” United States v. Hill, 927 F.3d 188, 202 (4th Cir. 2019)
(citation omitted), cert. denied, 141 S. Ct. 272 (2020). We need not decide now whether
that rule carries over to interference with activity that is not plainly commercial or
economic in character because, even if the district court’s jury instructions were erroneous,
they were not plainly so. See United States v. Grassie, 237 F.3d 1199, 1206 n.5, 1209
(10th Cir. 2001) (upholding jury instructions saying that “any effect at all” on interstate
commerce satisfied § 247(b)); see also Carthorne, 878 F.3d at 464 (explaining that “the
absence of binding precedent in conjunction with disagreement among circuits” precludes
us from finding plain error).
Thus, Roof’s challenges to the jury instructions fail because the district court did
not plainly err. We also note that Roof was not seriously prejudiced by the alleged errors
because the evidence of his extensive internet usage sufficiently tied his conduct to
interstate commerce, as already explained. See United States v. Miltier, 882 F.3d 81, 89
(4th Cir. 2018) (“Even if a jury was erroneously instructed, however, we will not set aside
a resulting verdict unless the erroneous instruction seriously prejudiced the challenging
party’s case.” (citation omitted)).
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B. Issue 16: The Religious-Obstruction Statute Does Not Require Proof of
Religious Hostility
Roof argues that the government had to prove that he was “motivated by hostility
to religion” as an essential element under the religious-obstruction statute, 18 U.S.C.
§ 247(a)(2).49 (Opening Br. at 242.) He is mistaken.50
To determine the meaning of a statutory provision, we rely first and foremost on its
text. United States v. Wills, 234 F.3d 174, 178 (4th Cir. 2000). Section 247(a)(2) allows
for conviction if the defendant intentionally obstructs another’s enjoyment of the free
exercise of religion. “Intentionally” is a legal term of art, meaning “deliberately and not
by accident.” United States v. Fuller, 162 F.3d 256, 260 (4th Cir. 1998). In § 247(a)(2),
the word modifies the subsequent phrase “obstructs, by force or threat of force” and serves
as the only mens rea requirement for that section of the statute. There is no argument that
Roof’s acts were accidental rather than deliberate, and his novel interpretation of the statute,
which seeks to insert a new mens rea element of “hostility,” finds no support in the text.
That might be why Roof centers his argument on legislative history. He cites a
Senate Report indicating that the statute was promulgated with the aim to “make violence
motivated by hostility to religion a Federal offense.” S. Rep. No. 100-324, at 2 (1988).
49 Again, the statute prohibits “intentionally obstruct[ing], by force or threat of
force, including by threat of force against religious real property, any person in the
enjoyment of that person’s free exercise of religious beliefs, or attempts to do so.” 18
U.S.C. § 247(a)(2).
50 Questions of statutory interpretation are reviewed de novo. United States v.
Savage, 737 F.3d 304, 306-07 (4th Cir. 2013).
120
Even assuming, however, that the quotation were an expression of the sole intent of all who
voted to pass the statute, that concept did not make it into the legislation as passed. The
text of a statute necessarily takes precedence over unenacted congressional intent. See
Wills, 234 F.3d at 178. And because we take it as a given that Congress knows how to say
something when it wants to, its silence controls when it chooses to stay silent. Discover
Bank v. Vaden, 396 F.3d 366, 370 (4th Cir. 2005). Accordingly, proof of religious hostility
is not required for a conviction under § 247(a)(2).
Roof’s arguments concerning the evidence of religious hostility—or the lack of such
evidence—thus do not prevail.
C. Issue 17: Congress Did Not Exceed Its Thirteenth Amendment
Authority in Enacting the Hate Crimes Prevention Act, 18 U.S.C. § 249
1. Hate Crimes Background
In 2009, Congress enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes
Prevention Act (“HCPA”), 18 U.S.C. § 249, pursuant to its constitutional authority under
the Thirteenth Amendment. U.S. Const. amend. XIII, § 2. The HCPA authorizes federal
prosecution of whoever “willfully causes bodily injury to any person or . . . attempts to
cause bodily injury to any person, because of the actual or perceived race, color, religion,
or national origin of any person.” 18 U.S.C. § 249(a)(1).
In enacting the HCPA, Congress found that “[s]lavery and involuntary servitude
were enforced, both prior to and after the adoption of the 13th [A]mendment . . . , through
widespread public and private violence directed at persons because of their race, color, or
ancestry, or perceived race, color, or ancestry,” and that “eliminating racially motivated
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violence is an important means of eliminating, to the extent possible, the badges, incidents,
and relics of slavery and involuntary servitude.” 34 U.S.C. § 30501(7). Congress also
made clear that the HCPA was intended to assist states’ efforts to combat hate crimes,
saying:
State and local authorities are now and will continue to be responsible for
prosecuting the overwhelming majority of violent crimes in the United States,
including violent crimes motivated by bias. These authorities can carry out
their responsibilities more effectively with greater Federal assistance.
. . .
Federal jurisdiction over certain violent crimes motivated by bias enables
Federal, State, and local authorities to work together as partners in the
investigation and prosecution of such crimes.
The problem of crimes motivated by bias is sufficiently serious, widespread,
and interstate in nature as to warrant Federal assistance to States, local
jurisdictions, and Indian tribes.
Id. § 30501(3), (9)-(10).
Counts 1 through 12 of the indictment charge Roof with violations of the HCPA.
He moved to dismiss them, arguing that the HCPA is unconstitutional because it is not
“appropriate legislation” to enforce the Thirteenth Amendment. He further argued that the
statute does not meet the Supreme Court’s tests for evaluating the limits of congressional
power under the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. In
particular, he said that those Amendments authorize legislation only if it meets the
“congruence and proportionality” test set forth in City of Boerne v. Flores, 521 U.S. 507,
520 (1997), and the “current needs” test of Northwest Austin Municipal Utility District
Number One v. Holder, 557 U.S. 193, 203 (2009). The district court rejected those
arguments, and the jury convicted Roof on all the HCPA counts of the Indictment.
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2. The HCPA Is Appropriate Legislation Under Controlling Thirteenth
Amendment Precedent
On appeal, Roof again argues that the HCPA is not “appropriate legislation,” is not
justified by “current needs,” and is not a “congruent and proportional” response to slavery
or a badge of slavery, and is thus facially unconstitutional. (Opening Br. at 245.) That
position, in essence, asks us to extend Fourteenth and Fifteenth Amendment caselaw to the
Thirteenth Amendment. We decline to do so and will affirm Roof’s convictions under
prevailing Thirteenth Amendment standards.51
a) The HCPA is appropriate legislation under Jones v. Alfred H. Mayer Co.
Ratified during the reconstruction era after the Civil War, the Thirteenth
Amendment provides that “[n]either slavery nor involuntary servitude . . . shall exist
within the United States.” U.S. Const. amend. XIII, § 1. This profoundly important
constitutional provision was intended
to abolish slavery of whatever name and form and all its badges and
incidents; to render impossible any state of bondage; to make labor free, by
prohibiting that control by which the personal service of one man is disposed
of or coerced for another’s benefit, which is the essence of involuntary
servitude.
Bailey v. Alabama, 219 U.S. 219, 241 (1911). The Amendment, in its § 2, grants Congress
the “power to enforce [it] by appropriate legislation.” U.S. Const., amend XIII, § 2.
After striking down multiple pieces of civil rights legislation under a restrictive
interpretation of § 2’s enforcement power, the Supreme Court in 1968 “adopted a more
51 We review a defendant’s preserved challenge to a statute’s constitutionality de
novo. See United States v. Hager, 721 F.3d 167, 182 (4th Cir. 2013); see also supra note
41.
123
generous approach . . . , giving Congress relatively wide latitude both to determine what
qualifies as a badge or incident of slavery and how to legislate against it.” United States v.
Hatch, 722 F.3d 1193, 1198-99 (10th Cir. 2013) (explaining the history of the Thirteenth
Amendment and noting that pre-1968 caselaw narrowly defined the badges and incidents
of slavery). Specifically, in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the
Supreme Court held that the Thirteenth Amendment empowers Congress to prohibit racial
discrimination in the public or private sale or rental of real estate. Id. at 437-39. The Court
explained that § 2 gave Congress not only the authority to abolish slavery, but also the
“power to pass all laws necessary and proper for abolishing all badges and incidents of
slavery in the United States.” Id. at 439 (citing Civil Rights Cases, 109 U.S. 3, 20 (1883)).
Rather than itself define the “badges and incidents of slavery,” the Court wrote that,
“[s]urely Congress has the power under the Thirteenth Amendment rationally to determine
what are the badges and the incidents of slavery, and the authority to translate that
determination into effective legislation.” Id. at 440. It went on to reason that the legislation
at issue was an appropriate exercise of congressional authority (that is, it was rational
legislation aimed at eliminating the badges and incidents of slavery), because “whatever
else they may have encompassed, the badges and incidents of slavery—its ‘burdens and
disabilities’—included restraints upon [property rights].” Id. at 441 (citation omitted).
Today, Jones remains the seminal Supreme Court case on Congress’s enforcement
power under § 2 of the Thirteenth Amendment, providing the governing standard for
Roof’s challenge. See, e.g., Runyon v. McCrary, 427 U.S. 160, 168, 179 (1976) (relying
on Jones to uphold 42 U.S.C. § 1981’s prohibition of racial discrimination in making and
124
enforcing private contracts); Griffin v. Breckenridge, 403 U.S. 88, 105 (1971) (reaffirming
that Congress is empowered to “rationally . . . determine what are the badges and the
incidents of slavery” and “translate that determination into effective legislation” (citation
omitted)); Hatch, 722 F.3d at 1201 (applying Jones to determine the constitutionality of
the HCPA).
In light of Jones, it is abundantly clear that the HCPA is appropriate legislation. To
prove otherwise, Roof would need to show that Congress acted irrationally in deeming
racially motivated violence a badge or incident of slavery, but over a century of sad history
puts the lie to any such effort. Congress had ample grounds for finding that “[s]lavery and
involuntary servitude were enforced . . . through widespread public and private violence
directed at persons because of their race, color, or ancestry.” 34 U.S.C. § 30501(7).
Congress also concluded that “eliminating racially motivated violence is an important
means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and
involuntary servitude.” Id. Those findings are universally accepted by courts analyzing
hate-crimes legislation.52 If the point were not already obvious, we state here emphatically
that concluding there is a relationship between slavery and racial violence “is not merely
rational, but inescapable.” See United States v. Beebe, 807 F. Supp. 2d 1045, 1052 (D.N.M.
52 Indeed, every court to address the constitutionality of 18 U.S.C. § 249(a)(1) has
upheld it. See, e.g., United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018); United
States v. Cannon, 750 F.3d 492, 502 (5th Cir. 2014); United States v. Hatch, 722 F.3d 1193,
1206 (10th Cir. 2013); United States v. Bowers, 495 F. Supp. 3d 362, 365-68 (W.D. Pa.
2020); United States v. Diggins, 435 F. Supp. 3d 268, 274 (D. Me. 2019); United States v.
Henery, 60 F. Supp. 3d 1126, 1130 (D. Idaho 2014).
125
2011) (discussing the history of racially motivated violence and its status as a badge or
incident of slavery), aff’d sub nom. Hatch, 722 F.3d 1193. (See also J.A. at 3512-15
(analyzing the history of racially motived violence).) The HCPA is thus “appropriate” in
exactly the manner envisioned in Jones.
b) City of Boerne and Shelby County are not applicable to Thirteenth
Amendment legislation, absent clear direction from the Supreme Court53
No doubt recognizing the impossible task of establishing that Congress irrationally
declared racially motivated violence to be a badge and incident of slavery, Roof contends
that the “congruence and proportionality” test from City of Boerne v. Flores, 521 U.S. at
520, and the “current needs” test from Shelby County v. Holder, 570 U.S. 529, 542 (2013),
apply to Thirteenth Amendment legislation. Specifically, he contends that those tests—
created in the context of the Fourteenth and Fifteenth Amendments, respectively—clarify
the governing standards for the reconstruction era Amendments and therefore apply to the
HCPA. Roof emphasizes similarities among the Amendments. Having been ratified in
relatively rapid succession after the Civil War, the Thirteenth, Fourteenth, and Fifteenth
Amendments formed a trilogy aimed at eliminating legal impediments to freed slaves’ full
enjoyment of the rights of citizenship. The Amendments all have similarly worded
enforcement clauses: § 2 of the Thirteenth Amendment states that “Congress shall have
power to enforce this article by appropriate legislation”; § 5 of the Fourteenth Amendment
53 Roof’s “current needs” argument before the district court focused on Northwest
Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009). On appeal,
Roof shifts his attention to the Supreme Court’s more recent Fifteenth Amendment case,
Shelby County v. Holder, 570 U.S. 529 (2013).
126
states that “Congress shall have power to enforce, by appropriate legislation, the provisions
of this article”; and § 2 of the Fifteenth Amendment states that “Congress shall have power
to enforce this article by appropriate legislation.” Roof thus asserts that any precedent
limiting enforcement of one Amendment must limit the others as well.
Accordingly, with no support for his attack on the HCPA in Thirteenth Amendment
precedents, Roof turns to Supreme Court cases discussing legislation passed pursuant to
the Fourteenth and Fifteenth Amendments. In City of Boerne, 521 U.S. at 512, the Court
evaluated the constitutionality of the Religious Freedom Restoration Act (“RFRA”), which
was Congress’s attempt to legislatively overrule Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Smith had abrogated much of
the Supreme Court’s earlier jurisprudence regarding how to assess whether a statute was
an unconstitutional burden on a person’s First Amendment right to the free exercise of
religion. City of Boerne, 521 U.S. at 513-15. Before Smith, laws that burdened religious
exercise were subject to strict scrutiny. See, e.g., Sherbert v. Verner, 374 U.S. 398, 406
(1963) (considering whether a compelling state interest justified a South Carolina law
infringing the free exercise of religion by Seventh-day Adventists). Smith overturned that
jurisprudence and substituted for it a regime of rational-basis review. 494 U.S. at 884-86.
Congress responded to Smith by enacting RFRA, reimposing a stricter standard on the
states, in effect returning to the pre-Smith understanding of the First and Fourteenth
Amendments. City of Boerne, 521 U.S. at 515-16. Congress sought to justify RFRA as
“appropriate legislation” under § 5 of the Fourteenth Amendment. Id. at 517.
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The Supreme Court disagreed, holding that Congress had actually attempted to
amend the Constitution legislatively. Id. at 532. The Court acknowledged that § 5 of the
Fourteenth Amendment gives Congress important powers, but said that “[i]f Congress
could define its own powers by altering the Fourteenth Amendment’s meaning, no longer
would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’”
Id. at 529 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)). Consistent with that
limitation, the Court insisted on “a congruence and proportionality between the injury to
be prevented or remedied and the means adopted to that end.” Id. at 520. The City of
Boerne Court ultimately struck down RFRA as unconstitutional because it was “so out of
proportion to [its] supposed remedial or preventive object” that it could not “be understood
as responsive to, or designed to prevent, unconstitutional behavior.”54 Id. at 532. As
relevant here, nowhere does City of Boerne mention the Thirteenth Amendment or Jones.
In Shelby County, 570 U.S. at 557, a Fifteenth Amendment case, the Supreme Court
invalidated § 4(b) of the Voting Rights Act of 1965, 42 U.S.C. § 1973, transferred to 52
U.S.C. § 10303. That Act prescribed a formula to identify jurisdictions that had to obtain
federal permission before enacting any law related to voting. Shelby County, 570 U.S. at
537. The Act as reauthorized by legislation in 2006 was challenged in Shelby County. Id.
at 540-41. At the outset of its opinion, the Court characterized the assertion of
54 Smith remains the governing case in free-exercise jurisprudence and is still
controversial. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876-77 (2021)
(“[Plaintiff] urges us to overrule Smith, and the concurrences in the judgment argue in favor
of doing so. But we need not revisit that decision here.” (citation omitted)).
128
congressional power in the Voting Rights Act as “a drastic departure from basic principles
of federalism,” justified by the “insidious and pervasive evil” of entrenched racial
discrimination in the regulation of elections. Id. at 535 (citation omitted). Under those
facts, the Court addressed the scope of Congress’s power to pass “appropriate legislation”
enforcing the Fifteenth Amendment’s protections of the right to vote, and explained that
Congress should have justified the reauthorization based on conditions then, not conditions
that prevailed when the legislation was first enacted. See id. at 557. It found that
Congress’s reliance on “decades-old data and eradicated practices” could not justify
reenacting provisions designed for the 1960s. Id. at 551. The Court concluded that
“Congress must ensure that the legislation it passes to remedy [racial discrimination in the
regulation of elections] speaks to current conditions.” Id. at 557. Like City of Boerne,
Shelby County nowhere mentions the Thirteenth Amendment or Jones.
In this appeal, Roof asks us to incorporate the limitations from City of Boerne and
Shelby County into the analysis of Thirteenth Amendment cases. We decline to do so,
absent clear direction from the Supreme Court. Cf. Shalala v. Ill. Council on Long Term
Care, Inc., 529 U.S. 1, 18 (2000) (“[The] Court does not normally overturn, or so
dramatically limit, earlier authority sub silentio.”). As noted, neither case mentions the
Thirteenth Amendment, neither cites Jones, and neither discusses Congress’s power to
identify and legislate against the badges and incidents of slavery. Accordingly, we leave
it to the Supreme Court to make adjustments, if any, to well-established Thirteenth
Amendment jurisprudence. See United States v. Cannon, 750 F.3d 492, 505 (5th Cir. 2014)
(recognizing that City of Boerne “never mentioned the Thirteenth Amendment or Jones,
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and did not hold that the ‘congruence and proportionality’ standard was applicable beyond
the Fourteenth Amendment”); United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018)
(“[N]either Shelby County nor [City of Boerne] addressed Congress’s power to legislate
under the Thirteenth Amendment,” and “Jones constitutes binding precedent.”); Hatch,
722 F.3d at 1204 (“[T]he Supreme Court has never revisited the rational determination test
it established in Jones.”).
Roof’s arguments to the contrary are unpersuasive. He asserts that failing to extend
City of Boerne or Shelby County to Thirteenth Amendment legislation conflicts with our
rule that we “do[] not have license to reject the generally applicable reasoning set forth in
a Supreme Court opinion.” United States v. Hill, 927 F.3d 188, 199 n.3 (4th Cir. 2019).
That argument, however, suffers from at least two flaws. First, it presupposes that the
reasoning in City of Boerne and Shelby County should be considered generally applicable
to the Thirteenth Amendment. Second, it ignores Supreme Court precedent unambiguously
stating that, “[i]f a precedent of [the] Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to [the Supreme] Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989); see also Hohn v. United States, 524 U.S. 236, 252-53 (1998) (The
Supreme Court’s “decisions remain binding precedent until [it] see[s] fit to reconsider them,
regardless of whether subsequent cases have raised doubts about their continuing vitality.”).
In sum, we will affirm Roof’s convictions under the HCPA because the HCPA is
appropriate legislation under § 2 of the Thirteenth Amendment and Jones. It was not
130
irrational for Congress to deem racially motivated violence a badge and incident of slavery,
and the “congruence and proportionality” test from City of Boerne and the “current needs”
test from Shelby County need not be applied to legislation enacted under the Thirteenth
Amendment, absent clear direction to that effect from the Supreme Court.55
D. Issue 18: The Attorney General Did Not Erroneously Certify Roof’s
Federal Prosecution
1. Certification Background
The HCPA requires the Attorney General, or a designee, to certify that at least one
of four conditions exists before a case may be federally prosecuted: (1) the state does not
have jurisdiction; (2) the state requested the federal government to assume jurisdiction;
(3) the verdict or sentence obtained under state charges left a federal interest in eradicating
bias-motivated violence demonstrably unvindicated; or (4) a federal prosecution is “in the
public interest and necessary to secure substantial justice.” 18 U.S.C. § 249(b)(1)(A)-(D).
To prosecute violations of the religious-obstruction statute, the Attorney General must
certify that, “in his judgment a prosecution by the United States is in the public interest and
necessary to secure substantial justice.” 18 U.S.C. § 247(e).
For the HCPA charges against Roof under § 249(a)(1), the Attorney General
certified that South Carolina “lacks jurisdiction to bring a hate crime prosecution” and that
Roof’s prosecution “is in the public interest and is necessary to secure substantial justice.”
55 Roof also argues that the certification process (see infra Section VI.D) does not
save the HCPA from unconstitutionality because it does not provide any meaningful limits
on federal jurisdiction. Because we uphold the HCPA on its own terms, we need not reach
that argument.
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(J.A. at 62.) For the religious-obstruction charges under § 247(a)(2), the Attorney General
certified that Roof’s prosecution “is in the public interest and is necessary to secure
substantial justice.” (J.A. at 63.) In the district court, Roof unsuccessfully challenged the
§ 249(a)(1) certification, 56 arguing that the Court should look beyond § 249’s facial
certification requirements and review whether—in light of the parallel state proceeding—
the state actually lacked jurisdiction to prosecute a hate crime and whether his prosecution
truly was in the public interest. Roof mounted no challenge to the § 247(a)(2)
certification.57
2. The Attorney General Did Not Erroneously Certify Roof’s Federal Prosecution
On appeal, Roof argues that given South Carolina’s efforts to prosecute him—
including seeking the death penalty—the Attorney General had no basis for certifying the
charges against him and therefore we should reverse his convictions on Counts 1 through
24. According to Roof, “[t]here was no additional public interest that the federal
prosecution could have vindicated,” and the lack of a separate hate-crimes statute is
irrelevant. (Opening Br. at 259.) The government responds that the Attorney General’s
56 To be more precise, the certification is under § 249(b), but is made with respect
to the § 249(a)(1) charges. Likewise, the certification with respect to the § 247(a)(2)
charges is made pursuant to § 247(e).
57 Accordingly, if reviewable at all, Roof’s unpreserved challenge to the § 247(a)(2)
certification is reviewed under the plain-error standard. See supra Section V.C.2
(articulating the plain-error standard). As explained further herein, whether a standard
exists to review the Attorney General’s certifications is contested.
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discretionary certifications are not subject to judicial review and, even if they were, the
Attorney General properly certified the prosecution.
Beginning with the justiciability challenge, the government does not argue that the
alleged nonreviewability of the Attorney General’s certifications is jurisdictional, i.e., that
we lack authority under Article III of the Constitution to review the certifications. (Oral
Arg. at 2:36:45-2:38:40.) As a result, we may assume without deciding that Roof’s claims
are reviewable. Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018) (assuming
reviewability without deciding it, where the government did not argue that justiciability
issues were jurisdictional); see also United States v. F.S.J., 265 F.3d 764, 768 (9th Cir.
2001) (collecting cases and noting that “[o]nly the Fourth Circuit has held that the
government’s certification of a substantial federal interest [in a juvenile prosecution under
18 U.S.C. § 5032] is subject to judicial review”); United States v. Bowers, 495 F. Supp. 3d
362, 375 (W.D. Pa. 2020) (holding that certifications under § 247(e) and § 249 are not
reviewable); United States v. Diggins, 435 F. Supp. 3d 268, 276 (D. Me. 2019) (collecting
cases and finding that, like certifications under § 5032, § 249 certifications are
unreviewable acts of prosecutorial discretion).
Having assumed justiciability, our scope of review is limited because the Attorney
General’s certifications must be afforded substantial deference. See United States v. T.M.,
413 F.3d 420, 425 (4th Cir. 2005) (“Whether a ‘substantial Federal interest’ exists is similar
to the ‘sort of discretionary decision more commonly thought of as the type of prosecutorial
decisions that are immune from judicial review,’ so we give the government’s decision in
that regard more deference.” (quoting United States v. Juv. Male No. 1, 86 F.3d 1314, 1319
133
(4th Cir. 1996))). Applying that standard, we are unpersuaded that the government
improperly certified Roof’s prosecution under the HCPA. Because South Carolina does
not have a hate-crimes statute, it was unable to charge Roof for a crime that considers his
alleged discriminatory intent as an element of the offense. That statutory difference, along
with the highly aggravated nature of Roof’s crimes (aptly described by the district court as
“a mass murder at a historic African-American church for the avowed purpose of
reestablishing the white supremacy that was the foremost badge of slavery in America”),
clearly implicated a substantial federal interest in eradicating the badges and incidents of
slavery. (J.A. at 3518.) We accordingly will not second guess the Attorney General’s
determination that prosecution under § 249(a)(1) was in the public interest and necessary
to secure substantial justice. And for similar reasons, it certainly does not constitute plain
error for the district court to have foregone any questioning of the § 247(a)(2) certification.
In short, although there might be federal certifications that raise close questions, this
case is not one of them, given the character of the crimes and the confessed motives behind
them. We therefore decline to vacate Roof’s convictions on Counts 1 through 24 on the
basis of improper certifications.
E. Issue 19: Roof’s 18 U.S.C. § 924(j)(1) Firearm Convictions Are Valid
1. Firearm Offense Background
Counts 25 through 33 of the indictment charged Roof with firearm offenses, in
violation of 18 U.S.C. § 924(j)(1). The jury found him guilty on all nine counts, which
served as the basis for nine of his death sentences, one death sentence for each firearm
offense that resulted in murder. Section 924 proscribes the use of a firearm “during and in
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relation to any crime of violence” resulting in murder, and it authorizes the imposition of
the death penalty. 18 U.S.C. § 924(c)(1)(A), (j)(1) (incorporating 18 U.S.C. § 924(c) and
§ 1111(a) by reference). 58 On appeal, Roof challenges the validity of those firearm
convictions, contending that neither of the alternative predicate crimes underlying them—
the HCPA and religious-obstruction offenses—are crimes of violence under the provisions
of § 924. 59 He therefore requests vacatur of the convictions and corresponding death
sentences. We see no merit in his contentions.
2. Legal Framework
To qualify as a crime of violence under 18 U.S.C. § 924(c)(3), which is the
controlling definition for purposes of § 924(j)(1), a predicate offense must have “as an
element the use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A); see also United States v. Robinson, 275
F.3d 371, 378 (4th Cir. 2001) (explaining that proof of a § 924(j) violation requires “the
commission of a § 924(c) violation”). We commonly refer to § 924(c)(3)(A) as the “force
58 See 18 U.S.C. § 924(j)(1) (“A person who, in the course of a violation of
subsection (c), causes the death of a person through the use of a firearm shall[,] if the killing
is a murder (as defined in section 1111), be punished by death or by imprisonment for any
term of years or for life.”); id. § 924(c)(1)(A) (penalizing “any person who, during and in
relation to any crime of violence . . . for which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm”); id. § 1111(a) (defining “murder” as “the unlawful killing of a human
being with malice aforethought”).
59 “[W]hether a particular criminal offense qualifies as a crime of violence under
Section 924(c) presents a legal question, which we review de novo.” United States v.
Evans, 848 F.3d 242, 245 (4th Cir. 2017).
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clause” or the “elements clause” of the statute. United States v. Mathis, 932 F.3d 242, 263
(4th Cir. 2017); United States v. Allred, 942 F.3d 641, 646 (4th Cir. 2019).60 To determine
whether a charged offense is a “crime of violence” under the elements clause, we apply the
categorical approach, which requires us to “ask whether the most innocent conduct that the
law criminalizes requires proof of the use, attempted use, or threatened use of force
sufficient to satisfy the [elements] clause.” Allred, 942 F.3d at 648 (internal quotation
marks and citation omitted) (interpreting the definition of “violent felony” in the elements
clause of the Armed Career Criminal Act (“ACCA”)).
61 If the answer is yes, then the
offense categorically qualifies as a crime of violence. Id. But if the “statute defines an
offense in a way that allows for both violent and nonviolent means of commission,” then
that predicate “offense is not ‘categorically’ a crime of violence under the [elements]
clause.” United States v. Simms, 914 F.3d 229, 233 (4th Cir. 2019) (en banc). “Importantly,
60 Section 924(c)(3)(B) also defines a crime of violence as a felony offense “that by
its nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).
That subsection, commonly known as the “residual clause,” United States v. Mathis, 932
F.3d 242, 263 (4th Cir. 2017), was deemed unconstitutionally vague in United States v.
Davis, 139 S. Ct. 2319, 2336 (2019). Our analysis is accordingly limited to determining
whether Roof’s predicate offenses qualify as crimes of violence under the elements clause.
Mathis, 932 F.3d at 263-64.
61 Because the definition of “crime of violence” is almost identical to the definition
of “violent felony” in the ACCA, our “decisions interpreting one such definition are
persuasive as to the meaning of the others.” United States v. McNeal, 818 F.3d 141, 153
n.9 (4th Cir. 2016); compare 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” as
having “as an element the use, attempted use, or threatened use of physical force against
the person of another”), with id. § 924(c)(3)(A) (defining “crime of violence” as having
“as an element the use, attempted use, or threatened use of physical force against the person
or property of another”).
136
in undertaking this inquiry, ‘there must be a realistic probability, not a theoretical
possibility,’ that the minimum conduct would actually be punished under the statute.”
Allred, 942 F.3d at 648 (citation omitted).
Because the categorical approach requires us to “analyze only the elements of the
offense in question, rather than the specific means by which the defendant committed the
crime,” United States v. Evans, 848 F.3d 242, 245-46 (4th Cir. 2017), our analysis must
vary when the statute at issue is divisible; that is, when it “lists potential offense elements
in the alternative, and thus includes multiple, alternative versions of the crime.” United
States v. Bryant, 949 F.3d 168, 173 (4th Cir. 2020) (internal quotation marks and citation
omitted). A divisible statute “renders opaque which element played a part in the
defendant’s conviction,” and thus we “cannot tell, simply by looking at a divisible statute,
which version of the offense a defendant was convicted of.” Descamps v. United States,
570 U.S. 254, 255, 260 (2013). So, “as a tool for implementing the categorical approach,”
id. at 262, we are permitted, under what is called the modified categorical approach, “to
consult a limited set of record documents (such as the indictment, jury instructions, or plea
agreement) for the sole purpose of determining what crime, with what elements, a
defendant was convicted of.” Allred, 942 F.3d at 648 (internal quotation marks and citation
omitted).
With that in mind, we address what conduct amounts to a crime of violence under
the elements clause of § 924(c)(3), and then turn to a consideration of the statutory
language for each predicate offense and whether each predicate offense satisfies the
elements clause.
137
3. “Crime of Violence” Jurisprudence
The Supreme Court has discussed, and so have we, the meaning of the elements
clause in ways pertinent to this appeal. First, as described by the Supreme Court in Johnson
v. United States, the term “physical force” indicates that the degree of force employed must
be “capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010)
(interpreting the definition of “violent felony” in the elements clause of the ACCA).
Physical force does not, however, “require any particular degree of likelihood or
probability that the force used will cause physical pain or injury; only potentiality.”
Stokeling v. United States, 139 S. Ct. 544, 554 (2019). Thus, “instead of relying solely on
the quantum of force required under the [predicate offense statute],” United States v.
Dinkins, 928 F.3d 349, 355 (4th Cir. 2019), the Court has concluded that “the force
used . . . to overcome a victim’s resistance, ‘however slight,’ ‘is inherently violent in the
sense contemplated by . . . Johnson.’” United States v. Rumley, 952 F.3d 538, 549 (4th Cir.
2020) (quoting Stokeling, 139 S. Ct. at 550, 553). That is so “because overpowering even
a weak-willed victim necessarily involves a physical confrontation and struggle.” Dinkins,
928 F.3d at 354 (internal quotation marks and citation omitted). “The altercation need not
cause pain or injury or even be prolonged; it is the physical contest between the criminal
and the victim that is itself ‘capable of causing physical pain or injury.’”62 Stokeling, 139
S. Ct. at 553 (citation omitted).
62 “[D]ifferent in kind from the violent force necessary to overcome resistance by a
victim” is the “nominal contact” that will sustain a battery at common law, since that “does
not require resistance or even physical aversion on the part of the victim.” Stokeling v.
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Second, “[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands
that the perpetrator direct his action at, or target, another individual.” Borden v. United
States, 141 S. Ct. 1817, 1825 (2021). That means the “use of force” requires a higher
degree of intent than reckless, negligent, or merely accidental conduct. Id. at 1824; Leocal
v. Ashcroft, 543 U.S. 1, 9 (2004). Consequently, “an offense will not have as an element
the ‘use’ of force sufficient to qualify as a [crime of violence] if it does not have the
requisite level of mens rea.” Allred, 942 F.3d at 652 (considering the definition of “violent
felony” under the ACCA). Thus, even if the statute governing the predicate offense
requires that the proscribed conduct result in death, it must also indicate a higher degree of
intent than reckless, negligent, or merely accidental conduct in order to satisfy the elements
clause. Borden, 141 S. Ct. at 1824; United States v. Runyon, 994 F.3d 192, 200 (4th Cir.
2021).
Third, “regardless of whether an injury resulted from direct or indirect means,”
United States v. Battle, 927 F.3d 160, 165 (4th Cir. 2019), an offense “that has as an
element the intentional or knowing causation of bodily injury categorically requires the use
of ‘force capable of causing physical pain or injury to another person.’” Allred, 942 F.3d
at 654 (citation omitted); see also United States v. Reid, 861 F.3d 523, 527-29 (4th Cir.
2017) (concluding that an offense that “requires that the defendant ‘knowingly and
United States, 139 S. Ct. 544, 553 (2019). “[T]he ‘unwanted’ nature of the physical contact
itself suffices to render [a battery] unlawful.” Id. Such “mere ‘offensive touching’” does
not, however, satisfy the elements clause. United States v. Rumley, 952 F.3d 538, 549 (4th
Cir. 2020) (citation omitted).
139
willfully inflict bodily injury’” falls within the ACCA’s “violent felony” definition “and
therefore serves as a predicate offense under § 924(e)(1)” (citation omitted)).
4. “Death Results” Offenses Under § 249(a)(1) Are Crimes of Violence
a) Section 249(a)(1) is divisible
Section 249(a)(1) of Title 18—part of the HCPA—criminalizes conduct that
“willfully causes bodily injury to any person or, through the use of fire, a firearm, a
dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to
any person, because of the actual or perceived race, color, religion, or national origin of
any person.” If “death results from the offense,” the maximum sentence of imprisonment
increases from ten years to life. 18 U.S.C. § 249(a)(1)(A)-(B). The “death results” element
“imposes . . . a requirement of actual causality, i.e., but-for causation.” United States v.
Simmons, 999 F.3d 199, 217 (4th Cir. 2021) (alteration in original) (internal quotation
marks and citation omitted). And “[w]hen a crime requires ‘not merely conduct but also a
specified result of conduct,’ a defendant generally may not be convicted unless” that causal
element is satisfied. Burrage v. United States, 571 U.S. 204, 210 (2014) (citation omitted).
Thus, § 249(a)(1) is a divisible statute, with one version of the offense having as an element
that death resulted from the crime’s commission and carrying a maximum sentence of life
imprisonment, and the other version excluding the death-results element and carrying a
ten-year maximum sentence.
In assessing the § 249(a)(1) convictions as predicate offenses for the § 924(j)(1)
convictions, then, the modified categorical approach is applicable, but “only to determine
which statutory phrase was the basis for the conviction.” United States v. Hemingway, 734
140
F.3d 323, 331 (4th Cir. 2013) (internal quotation marks and citation omitted). In other
words, we may consult the record “for the sole purpose of determining ‘what crime, with
what elements, a defendant was convicted of.’” Allred, 942 F.3d at 648 (citation omitted).
And we need look no further than the indictment to determine that Roof was charged with
the “death results” version of the HCPA offense. Our “crime of violence” determination
with respect to § 249(a)(1) is therefore limited to the “death results” version of the offense.
b) The “death results” offense under § 249(a)(1) requires the use of physical
force
To convict a defendant of a “death results” offense under § 249(a)(1), the
government must establish, beyond a reasonable doubt, that the defendant: (1) “willfully
cause[d] bodily injury to any person”63; (2) because of that person’s “actual or perceived
race, color, religion, or national origin”; and (3) the injury resulted in the person’s death.
18 U.S.C. § 249(a)(1). That offense, according to Roof, is not a crime of violence because
63 A defendant may commit a crime under § 249(a)(1) by “attempt[ing] to cause
bodily injury” or “willfully caus[ing] bodily injury.” See United States v. Cannon, 750
F.3d 492, 506 (5th Cir. 2014) (holding that a jury could rationally conclude that a defendant
committed a crime under § 249(a)(1) just by attempting to willfully cause bodily injury).
Those two methods represent alternative means as opposed to alternative elements. Cf.
United States v. Drummond, 925 F.3d 681, 689 (4th Cir. 2019) (applying the ACCA to a
state domestic-violence offense and stating that “[r]ather than effectively creating several
different crimes, the statute addresses a single crime . . . , which can be committed by any
one of three means—an offer, attempt, or actual causation of physical harm or injury.”);
see also infra Section VI.E.5.a & note 66. Nevertheless, under the “death results” version
of the offense, we need consider only actual causation. If one “attempts to cause bodily
injury” and “death results” from that attempt, then the offender has clearly caused bodily
injury. See Burrage v. United States, 571 U.S. 204, 210-11 (2014) (explaining that the
causation element must be satisfied for a crime requiring a specific result, which “requires
proof that the harm would not have occurred in the absence of—that is, but for—the
defendant’s conduct” (internal quotation marks and citation omitted)).
141
one can violate § 249(a)(1) using de minimis force, no force, or unintentional force. We
disagree. Our precedent makes clear that a statute having “as an element the intentional or
knowing causation of bodily injury categorically requires the use of ‘force capable of
causing physical pain or injury to another person.’” Allred, 942 F.3d at 654 (citation
omitted); see Battle, 927 F.3d at 166 (“[A] crime requiring the ‘intentional causation’ of
injury requires the use of physical force” within the meaning of the ACCA. (citation
omitted)). So, when a defendant “willfully causes bodily injury” and “death results” from
the defendant’s conduct, that offense satisfies the “use of physical force” requirement and
of course constitutes a crime of violence under the elements clause. See RSM, Inc. v.
Herbert, 466 F.3d 316, 320-21 (4th Cir. 2006) (defining the term “willful” as intentional
and purposeful, noting that the term “‘willfully’ has been held to denote a mental state of
greater culpability than the closely related term, ‘knowingly’” (citation omitted)).
Rather than follow that straightforward reasoning, Roof would have us consider
each element in isolation. He divorces the “willfully causes bodily injury” element from
the “death results” element, and then points to the broad statutory definition of “bodily
injury” as a basis for claiming that § 249(a)(1) “only requires intentional use of de minimis
force or no force.” (Opening Br. at 267-69 (emphasis omitted).) Specifically, because the
statutory definition of “bodily injury” includes anything from “a bruise” to “any other
injury to the body, no matter how temporary,” Roof contends that bodily injury
encompasses squeezing an arm or “touching a bruise” and, therefore, § 249(a)(1)
proscribes a broader range of conduct than the “physical force” requirement. (Opening Br.
at 268.) See 18 U.S.C. § 249(c)(1) (defining, by reference, “bodily injury” to include cuts,
142
abrasions, bruises, burns, or disfigurements; physical pain; illness; impairment of the
function of a bodily member, organ, or mental faculty; or any other injury to the body, no
matter how temporary; but excluding “solely emotional or psychological harm to the
victim”).
He also argues that the “‘willfulness’ (intentional) mens rea . . . does not attach to
the ‘death results’ element.” (Opening Br. at 269.) And without the mens rea attached, the
“death results” element “requires violent physical force” only, not “intentional use of
violent physical force.” (Opening Br. at 269-70.) On that basis, and because “intentional
infliction of ‘bodily injury’ . . . only requires intentional use of de minimis force or an
intentional act of omission,” Roof contends that, “at most, the ‘bodily injury’ and ‘death
results’ elements each come halfway toward satisfying the [elements] clause, though
neither contains both requirements at the same time.” (Opening Br. at 269-70.)
But we do not view each element of the crime in isolation. See Runyon, 994 F.3d
at 204; In re Irby, 858 F.3d 231, 236 & n.2 (4th Cir. 2017). Roof’s rigid division of the
elements ignores the interrelated character that elements of a crime can share, and his farfetched examples of potential § 249(a)(1) violations illustrate the absurd results that arise
from analyzing each element in the way that he wants. For example, he asserts that “a
defendant squeezing someone’s arm because of her race, causing her to lose her balance
and fall to her death” constitutes a “death results” offense under § 249(a)(1). (Opening Br.
at 270.) But that hypothetical does not represent “a realistic probability” of “the minimum
conduct [that] would actually be punished under the statute.” Allred, 942 F.3d at 648. And
contrary to Roof’s position, we often look at the elements of an offense as a whole when
143
deciding if that offense meets the requirements of the elements clause.64 Doing so here,
“[w]e find it difficult to imagine a realistic scenario” where a defendant could engage in
conduct with the specific intent to cause bodily injury to a person, could then kill the victim,
and yet do so “without knowing or intending to inflict upon that person far more than a
mere touch or scratch.” Id. at 654-55.
Put simply, even if Roof’s emphasis on the broad definition of “bodily injury” had
any merit when considered in isolation, it has none when considered in conjunction with
the “death results” element. Accordingly, we conclude that a “death results” offense under
§ 249(a)(1) is categorically a crime of violence.
5. “Death Results” Offenses Under § 247(a)(2) Are Crimes of Violence
a) Section 247(a) is divisible
Section 247(a) of Title 18—part of the religious-obstruction statute—criminalizes
conduct that “(1) intentionally defaces, damages, or destroys any religious real property,
64 See United States v. Runyon, 994 F.3d 192, 202-03 (4th Cir. 2021) (considering
conspiracy in the context of an offense that “has heightened mens rea elements, as well as
the element that ‘death results’”—i.e., “conspiracy to use facilities of commerce with the
intent that a murder be committed for hire where death results”—and deciding that, “in any
realistic case,” those mens rea elements, though “not explicitly tied to the resulting-in-death
element, . . . must nonetheless carry forward to the resulting-in-death element”); United
States v. Allred, 942 F.3d 641, 654 (4th Cir. 2019) (“Although there is no mens rea
specified for the element of causation, the statute contains not one, but two heightened
mens rea requirements. . . . We find it difficult to imagine a realistic scenario in which a
defendant would knowingly engage in conduct with the specific intent to retaliate against
a witness and thereby only recklessly or negligently cause bodily injury.”); see also
Stokeling, 139 S. Ct. at 553 (considering robbery as a whole and concluding that “the force
necessary to overcome a victim’s physical resistance [in a robbery] is inherently ‘violent’”
because “overpower[ing] . . . even a feeble or weak-willed victim . . . necessarily involves
a physical confrontation and struggle”).
144
because of the religious character of that property, or attempts to do so; or (2) intentionally
obstructs, by force or threat of force, including by threat of force against religious real
property, any person in the enjoyment of that person’s free exercise of religious beliefs, or
attempts to do so.”65 Again, when “faced with an alternatively phrased statute,” we must
determine whether the disjunctive language represents alternative means or alternative
elements. Allred, 942 F.3d at 649.
Beginning with the disjunctive statutory subsections, § 247(a)(1) and § 247(a)(2),
we conclude that those subsections are divisible. When analyzing a statute’s divisibility,
“[t]he nature of the behavior that likely underlies a statutory phrase matters.” Id. at 650
(alteration in original) (citation omitted). Where the behavior typically “underlying
damage to property” “differs so significantly from” the obstruction of a person using force
or threat of force (resulting in death), we “must treat the two as different crimes.” Id.
(citations omitted). The former deals solely with damage to religious real property, while
65 The religious-obstruction statute we recite here is an amended version that had
not yet been enacted at the time of Roof’s conviction. Nevertheless, “when an amendment
alters, even ‘significantly alters,’ the original statutory language, this does ‘not necessarily’
indicate that the amendment institutes a change in the law.” Brown v. Thompson, 374 F.3d
253, 259 (4th Cir. 2004) (citation omitted). To determine “whether an amendment clarifies
or changes an existing law, a court, of course, looks to statements of intent made by the
legislature that enacted the amendment.” Id. Here, the legislative history expressly stated
that “[t]he changes adopted . . . are intended to clarify that a ‘threat of force’ under
subparagraph (a)(2) includes ‘threats of force’ made against religious real property.”
S. Rep. No. 115-325, at 2 (2018) (emphasis added). “As a clarification rather than a
substantive change,” the amendment amounts to a declaration, and “[t]he Supreme Court
has long instructed that such declarations—i.e., ‘[s]ubsequent legislation declaring the
intent of an earlier statute’—be accorded ‘great weight in statutory construction.’” Brown,
374 F.3d at 260 (second alteration in original) (citation omitted). We therefore consider
the amended version of the religious-obstruction statute.
145
the latter is concerned with conduct that, at a minimum, causes “fear of bodily harm” so as
to “obstruct an individual’s ability to exercise his or her religious beliefs.” H.R. Rep. No.
115-456, at 2 (2017). Accordingly, those statutory phrases are alternative elements, not
alternative means.
In addition, because § 247(a)(2) criminalizes both obstruction of the free exercise
of religion and “attempts to do so,” it sets out multiple elements in the alternative and thus
creates multiple versions of the crime, the statute being divisible along the lines separating
completed and attempted versions of the crime.66 Descamps, 570 U.S. at 262. Furthermore,
and of highest importance, the “death results” offense under § 247(a)(2) is divisible for the
same reasons described when discussing § 249(a)(1)—namely that death is an added
element. See supra Section VI.E.4.a & notes 63, 66; see also 18 U.S.C. § 247(d)
(authorizing the imposition of the death penalty “if death results from acts committed in
violation of” § 247(a)(2)). Therefore, applying the modified categorical approach, we
consider whether the “death results” offense under § 247(a)(2) satisfies the “use of physical
force” requirement.
b) The “death results” offense under § 247(a)(2) requires the use of physical
force
To convict a defendant for a “death results” offense under § 247(a)(2), the
government must establish, beyond a reasonable doubt, that the defendant: (1) intentionally
obstructed “any person in the enjoyment of that person’s free exercise of religious beliefs”;
66 We need not further concern ourselves with the divisibility of § 247(a)(2) between
inchoate and completed crimes because this case deals only with the latter. The multiple
murders at issue here represent the ultimate obstruction of religious practice.
146
(2) did so “by force or threat of force, including by threat of force against religious real
property”; (3) resulting in that person’s death. 18 U.S.C. § 247(a)(2), (d)(1). (See J.A. at
5139-40.) Additionally, the religious-obstruction offense must be in or must affect
interstate or foreign commerce. 18 U.S.C. § 247(a)(2), (b).
According to Roof, § 247(a)(2) is not a crime of violence because although it
“requires either intentional attempted threat of force or intentional use of de minimis force
against one’s own property,” it does not require the intentional infliction of death. (Reply
Br. at 135.) More specifically, Roof contends that the “force” element criminalizes
“intentional de minimis (not violent) force or attempted (not actual) threat of force against
one’s own property (not another’s), while the ‘death results’ element requires only
unintentional force.” (Reply Br. at 129-35.) In other words, the least culpable conduct that
will amount to a “death results” offense under § 247(a)(2) does not satisfy both the mens
rea requirement and the physical-force requirement under the elements clause. Isolating
the “force” element from the “death results” element, Roof argues that the “force” element
cannot satisfy the elements clause because it criminalizes conduct that meets the mens rea
requirement but not the physical-force requirement. Conversely, he asserts that the “death
results” element fails to satisfy the elements clause because it criminalizes conduct that
meets the physical-force requirement but not the mens rea requirement.
If all of this sounds strained, that is because it is, and we reject it for the same reason
that we rejected Roof’s effort to rigidly separate each element of the § 249(a)(1) offenses.
See Runyon, 994 F.3d at 204 (“[The] mens rea elements [of the statute in question] cannot
be limited to their individual clauses. If a defendant willingly agrees to enter into a
147
conspiracy with the specific intent that a murder be committed for money and death results
from that agreement, it follows that the defendant acted with specific intent to bring about
the death of the conspiracy’s victim.”).
In short, when a defendant has the specific intent to obstruct one or more persons
from exercising their religious beliefs and he uses force or threatens the use of force as the
means to achieve his intention, it follows that the defendant has acted with the specific
intent to use or threaten the use of force. And intentional use or threatened use of force
resulting in the victim’s death necessitates the use of violent force. See id.; Allred, 942
F.3d at 654-55. Thus, a “death results” offense under § 247(a)(2) satisfies the elements
clause and constitutes a crime of violence.
Roof would have us describe the least culpable conduct as the “intentional attempted
threat of force” (Reply Br. at 135), and then rely on United States v. Taylor, where we held
that “an attempt to threaten force does not constitute an attempt to use force,” to conclude
that a “death results” offense under § 247(a)(2) is not a crime of violence. 979 F.3d 203,
209 (4th Cir. 2020). But we concluded in Taylor that the least culpable conduct necessary
to commit attempted Hobbs Act robbery is “an attempt to threaten force.” Id. That is not
so with the predicate offense here. We are not reviewing an attempt crime; we are
reviewing a death-results § 247(a)(2) crime, which by definition is a completed rather than
inchoate crime. See supra notes 63, 66. Our categorical analysis thus better parallels
United States v. Mathis, which held that completed Hobbs Act robbery categorically
qualifies as a crime of violence. 932 F.3d at 265-66. As in Mathis, we consider the
148
completed crime and conclude that religious obstruction, committed by “force or
threatened use of force,” constitutes a crime of violence. Id. at 266.
Roof also contends that the intentional use of de minimis force against one’s own
property is all that is required to commit a “death results” offense under § 247(a)(2). But
that contention cannot plausibly survive without isolating each element, which, again, we
do not do.67 See supra Section VI.E.4.b. We therefore reject Roof’s contention that only
de minimis force is required, 68 and we conclude that a “death results” offense under
§ 247(a)(2) is categorically a crime of violence.
The consequence of all this is that Roof’s firearms convictions stand.
67 Even if we assume that a defendant could use force against his own property—as
opposed to the property of another” like the elements clause requires, 18 U.S.C.
§ 924(c)(3)(A)—as a means to obstruct another person from exercising his or her religious
beliefs, that force would necessarily amount to a threat of force against that person as well,
since a threat to property must “cause[] such intimidation to intentionally obstruct an
individual’s ability to exercise his or her religious beliefs.” See H.R. Rep. No. 115-456, at
2 (2017) (explaining that threats covered under § 247(a)(2) “include threats to property,
such as bomb threats, so long as the threat causes such intimidation to intentionally obstruct
an individual’s ability to exercise his or her religious beliefs,” which “[i]n
practice, . . . would only arise in the case of a threat so serious that it caused someone to
feel fear of bodily harm”); S. Rep. No. 115-325, at 2 (2018) (“While the legislation does
not specifically define the term, ‘threats of force,’ the substitute amendment should not be
read to encroach on protected speech,” which “[c]ourts have long distinguished [from] ‘true
threats.’” (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992))); cf. Stokeling, 139
S. Ct. at 553.
68 In addition, Roof wrongly asserts that the term “force” is “a term of art that
includes de minimis force” because “legislative history demonstrates the statute was
intended to cover ‘simple vandalism,’ including ‘defacing the walls of a synagogue with a
swastika’ and ‘anti-Semitic graffiti.’” (Opening Br. at 271 (citing legislative history);
Reply Br. at 132.) But the term “de minimis force” is found nowhere in the statute, and
we cannot read it in. See Borden v. United States, 141 S. Ct. 1817, 1828 (2021) (“The first
precondition of any term-of-art reading is that the term be present in the disputed statute.”).
149
VII. CONCLUSION
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-3
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DYLANN STORM ROOF,
Defendant – Appellant.
------------------------------
AUTISTIC SELF ADVOCACY NETWORK; AUTISTIC WOMEN &
NONBINARY NETWORK,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:15-cr-00472-RMG-1)
Argued: May 25, 2021 Decided: August 25, 2021
Before Duane BENTON, Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, Kent A. JORDAN, Circuit Judge of the United States Court
of Appeals for the Third Circuit, sitting by designation, and Ronald Lee GILMAN, Senior
Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by
designation.1
1 Because all members of the United States Court of Appeals for the Fourth Circuit
2
Affirmed by published per curiam opinion.
ARGUED: Sapna Mirchandani, Greenbelt, Maryland, Margaret Alice-Anne Farrand,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Los Angeles, California; Alexandra
Wallace Yates, Concord, Massachusetts, for Appellant. Ann O’Connell Adams, Bonnie I.
Robin-Vergeer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Amy M. Karlin, Interim Federal Public Defender, Los Angeles,
California, James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant. Brian C. Rabbitt, Acting Assistant
Attorney General, Robert A. Zink, Acting Principal Deputy Assistant Attorney General,
Criminal Division, Eric S. Dreiband, Assistant Attorney General, Alexander V. Maugeri,
Deputy Assistant Attorney General, Thomas E. Chandler, Brant S. Levine, Appellate
Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Peter M. McCoy, Jr., United States Attorney, Columbia, South
Carolina, Nathan S. Williams, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Samantha A.
Crane, Kelly Israel, AUTISTIC SELF ADVOCACY NETWORK, Washington, D.C., for
Amicus Autistic Self Advocacy Network. Lydia Brown, AUTISTIC WOMEN AND
NONBINARY NETWORK, Lincoln, Nebraska, for Amicus Autistic Women and
Nonbinary Network.
TABLE OF CONTENTS
I. Overview .............................................................................................................. 5
II. Background........................................................................................................... 6
A. The Crime .............................................................................................................. 6
B. Arrest, Confession, and Evidence Collection ........................................................ 6
C. Indictment and Trial............................................................................................... 8
D. Appeal .................................................................................................................. 10
III. Issues Related to Competency............................................................................ 10
A. Competency Background..................................................................................... 11
1. First Competency Hearing.................................................................................. 12
are recused in this case, a panel of judges from outside the Circuit was appointed for this
appeal pursuant to 28 U.S.C. §§ 291, 294.
3
2. Second Competency Hearing ............................................................................. 19
B. Issue 1: The District Court Did Not Clearly Err in Finding Roof Competent to
Stand Trial .......................................................................................................... 24
C. Issue 2: The District Court Did Not Abuse Its Discretion by Granting Only in
Part Defense Counsel’s Request for a Continuance of the First Competency
Hearing ............................................................................................................... 31
D. Issue 3: The District Court Did Not Abuse Its Discretion by Limiting Evidence
Allowed at the Second Competency Hearing..................................................... 33
IV. Issues Related to Self-Representation ................................................................ 36
A. Self-Representation Background ......................................................................... 37
B. Issue 4: Under McCoy v. Louisiana, Preventing the Presentation of Mental
Health Evidence Cannot Be the “Objective” of a Defense ................................ 43
C. Issue 5: A Defendant Has a Sixth Amendment Right to Represent Himself
During His Capital Sentencing........................................................................... 48
D. Issue 6: Neither the Constitution nor the Federal Death Penalty Act Requires
that Mitigation Evidence Be Presented During Capital Sentencing over a
Defendant’s Objection........................................................................................ 53
E. Issue 7: Roof’s Waiver of Counsel Was Knowing, Voluntary, and Intelligent .. 58
1. Legal Standard.................................................................................................... 58
2. Roof Was Appropriately Aware of His Role and Responsibilities.................... 59
3. The District Court Need Not Have Informed Roof of the Ability to Selectively
Use Counsel for Different Parts of the Case ............................................................. 62
F. Issue 8: The District Court Did Not Err in Granting Roof’s Motion to Waive
Counsel ............................................................................................................... 63
G. Issue 9: The District Court Did Not Err in Finding Roof Competent to SelfRepresent ........................................................................................................... 65
H. Issue 10: The District Court Did Not Err in Denying Roof Further Assistance
from Standby Counsel or Additional Accommodations .................................... 68
1. Standby Counsel................................................................................................. 68
2. Accommodations................................................................................................ 69
V. Issues Related to Death Verdict ......................................................................... 70
A. Death Verdict Background .................................................................................. 70
1. Aggravating and Mitigating Factors................................................................... 70
2. Penalty Phase...................................................................................................... 73
3. Jury Deliberations............................................................................................... 76
4
B. Issue 11: The Court Did Not Improperly Preclude Roof from Presenting
Mitigating Evidence ........................................................................................... 78
1. The Precluded Mitigating Factors and Evidence of Prison Conditions............. 78
2. The Prosecutor’s Remarks at Closing Argument............................................... 82
3. The Court’s Response to Jury Notes.................................................................. 85
C. Issue 12: Isolated Witness Testimony Describing Roof as “Evil” and Stating
that He Would Go to “the Pit of Hell” Did Not Render the Trial
Fundamentally Unfair......................................................................................... 86
1. The Testimony in Question ................................................................................ 87
2. Standard of Review ............................................................................................ 88
3. The Merits of Roof’s Claims.............................................................................. 90
D. Issue 13: Neither the Admission of Victim-Impact Evidence nor the
Prosecution’s Closing Argument Violated Roof’s Constitutional Rights.......... 92
1. Victim-Impact Evidence..................................................................................... 93
E. Issue 14: Roof’s Death Sentence Is Not Cruel and Unusual Punishment Under
the Eighth Amendment....................................................................................... 96
1. Age...................................................................................................................... 97
2. Mental Incapacity .............................................................................................100
VI. Issues Related to Guilt Verdict.........................................................................100
A. Issue 15: Roof’s Commerce Clause Challenges to the Religious-Obstruction
Statute Do Not Require Reversal of Those Convictions..................................101
1. The Religious-Obstruction Statute Is Facially Valid .......................................105
2. The Religious-Obstruction Statute Is Valid as Applied to Roof......................109
3. The Jury Instructions Were Proper...................................................................115
B. Issue 16: The Religious-Obstruction Statute Does Not Require Proof of
Religious Hostility............................................................................................119
C. Issue 17: Congress Did Not Exceed Its Thirteenth Amendment Authority in
Enacting the Hate Crimes Prevention Act, 18 U.S.C. § 249............................120
1. Hate Crimes Background .................................................................................120
2. The HCPA Is Appropriate Legislation Under Controlling Thirteenth
Amendment Precedent.............................................................................................122
D. Issue 18: The Attorney General Did Not Erroneously Certify Roof’s Federal
Prosecution ......................................................................................................130
1. Certification Background ................................................................................130
2. The AG Did Not Erroneously Certify Roof’s Federal Prosecution .................131
5
E. Issue 19: Roof’s 18 U.S.C. § 924(j)(1) Firearm Convictions Are Valid ...........133
1. Firearm Offense Background ..........................................................................133
2. Legal Framework..............................................................................................134
3. “Crime of Violence” Jurisprudence .................................................................137
4. “Death Results” Offenses Under § 249(a)(1) Are Crimes of Violence ...........139
5. “Death Results” Offenses Under § 247(a)(2) Are Crimes of Violence ...........143
VII. Conclusion........................................................................................................149
PER CURIAM:
I. OVERVIEW
In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the
historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston,
South Carolina during a meeting of a Wednesday night Bible-study group. A jury
convicted him on nine counts of racially motivated hate crimes resulting in death, three
counts of racially motivated hate crimes involving an attempt to kill, nine counts of
obstructing religion resulting in death, three counts of obstructing religion involving an
attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to
commit murder during and in relation to a crime of violence. The jury unanimously
recommended a death sentence on the religious-obstruction and firearm counts, and he was
sentenced accordingly. He now appeals the convictions and sentence. Having jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm.2
2 The present panel is sitting by designation, but because we are applying Fourth
Circuit law, and for ease of reference, we take the liberty of speaking in the first-person
plural.
6
II. BACKGROUND
A. The Crime
On June 17, 2015, twelve parishioners and church leaders of Mother Emanuel—all
African Americans—gathered in the Fellowship Hall for their weekly Bible-study. Around
8:16 p.m., Roof entered the Fellowship Hall carrying a small bag that concealed a Glock
.45 semi-automatic handgun and eight magazines loaded with eleven bullets each. The
parishioners welcomed Roof, handing him a Bible and a study sheet.
For the next 45 minutes, Roof worshipped with the parishioners. They stood and
shut their eyes for closing prayer. Roof then took out his gun and started shooting.
Parishioners dove under tables to hide. Roof continued shooting, reloading multiple times.
After firing approximately seventy-four rounds, Roof reached one parishioner who was
praying aloud. He told her to “shut up” and then asked if he had shot her yet. (J.A. at
5017.) She said no. Roof responded, “I’m going to leave you here to tell the story.” (J.A.
at 5017.) Roof left the church around 9:06 p.m. When police arrived, seven of the twelve
parishioners were dead. Two others died soon after. Roof killed Reverend Sharonda
Coleman-Singleton, Cynthia Hurd, Susie Jackson, Ethel Lee Lance, Reverend Depayne
Middleton-Doctor, Reverend Clementa Pinckney, Tywanza Sanders, Reverend Daniel
Simmons, Sr., and Reverend Myra Thompson.
B. Arrest, Confession, and Evidence Collection
Police began searching for Roof, publicizing photos and setting up a phone bank.
Acting on a tip the next morning, officers in Shelby, North Carolina stopped Roof’s car.
Roof complied with their directions, identified himself, admitted involvement in the
7
shooting, and said that there was a gun in his backseat. Officers took Roof to the Shelby
police station, where he agreed to speak with FBI agents.
After obtaining a written Miranda waiver, two FBI agents interviewed Roof for
about two hours. He confessed: “Well, I did, I killed them.” (J.A. at 4265.) He also
laughingly stated, “I am guilty. We all know I’m guilty.” (J.A. at 4308.) He explained that
he shot the parishioners with a Glock .45 handgun he had bought two months earlier.
Calling himself a “white nationalist,” he told agents that he “had to do it” because “black
people are killing white people every day” and “rap[ing] white women.” (J.A. at 4269,
4282.) The agents asked whether he was trying to start a revolution. Roof responded, “I’m
not delusional, I don’t think that[,] you know, that something like what I did could start a
race war or anything like that.” (J.A. at 4284.) Later in the interview, however, he agreed
that he was trying to “bring . . . attention to this cause” and “agitate race relations” because
“[i]t causes friction and then, you know, it could lead to a race war.” (J.A. at 4301, 4329-
30.) Roof explained that he targeted Charleston for his attack because of its historic
importance and, after researching African American churches in Charleston on the internet,
he chose to attack parishioners at Mother Emanuel because of the church’s historic
significance. At one point in the interview, he said, “I regret doing it a little bit” because
“I didn’t really know what I had, exactly what I’ve done.” (J.A. at 4302-03.) But his
meticulous planning for the murder spree contradicts that statement. During his pre-attack
planning, in addition to researching Mother Emanuel on the internet, Roof visited Mother
Emanuel and learned from a parishioner that a Bible-study group met on Wednesday
nights.
8
He also used the internet to propagate his racist ideology. In a journal that the police
found in Roof’s home, Roof had written the name of a website he had created. The website
was hosted by a foreign internet server, to which Roof made monthly payments. Hours
before the shootings, Roof uploaded racist material to the website. The website included
hyperlinks to text and photos. The text linked to a document where Roof expressed his
virulent racist ideology, claimed white superiority, and called African Americans “stupid
and violent.” (J.A. at 4623-27.) He discussed black-on-white crime, claiming it was a
crisis the media ignored. He issued a call to action, explaining that it was not “too late” to
take America back and “by no means should we wait any longer to take drastic action.”
(J.A. at 4625.) He stated that nobody was “doing anything but talking on the internet,” that
“someone has to have the bravery to take it to the real world,” and “I guess that has to be
me.” (J.A. at 4627.)
C. Indictment and Trial
The day after the shootings, the state of South Carolina charged Roof with nine
counts of murder, three counts of attempted murder, and one weapon-possession count.
About a month later, Roof was indicted in the United States District Court for the District
of South Carolina with the crimes at issue in this case: Counts 1 through 9, racially
motivated hate crimes resulting in death, in violation of 18 U.S.C. § 249(a)(1); Counts 10
through 12, racially motivated hate crimes involving an attempt to kill, in violation of 18
U.S.C. § 249(a)(1); Counts 13 through 21, obstructing religious exercise resulting in death,
in violation of 18 U.S.C. § 247(a)(2) and (d)(1); Counts 22 through 24, obstructing
religious exercise involving an attempt to kill and use of a dangerous weapon, in violation
9
of 18 U.S.C. § 247(a)(2), (d)(1), and (d)(3); and Counts 25 through 33, use of a firearm to
commit murder during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) and (j). Both the state and the federal governments gave notice of their intention
to seek the death penalty.
The district court appointed an attorney with extensive capital-case experience as
lead counsel for Roof. Before trial, Roof moved to dismiss the indictment on several
grounds. He argued that the religious-obstruction statute, 18 U.S.C. § 247(a)(2), exceeds
Congress’s Commerce Clause authority, and that the hate-crime statute, 18 U.S.C.
§ 249(a)(1), exceeds Congress’s Thirteenth Amendment power. He also argued that
neither is a predicate “crime of violence” under the federal firearm statute, 18 U.S.C.
§ 924(c), and that the Attorney General had erroneously certified Roof’s prosecution under
18 U.S.C. § 249. The court denied the motion and rejected Roof’s alternative argument
that the religious-obstruction charges were improper because he did not act in interstate
commerce.
Roof offered to plead guilty in exchange for a sentence of life without parole. The
federal government declined. The court entered a not guilty plea on Roof’s behalf and set
trial for November 7, 2016.3 As trial approached, the court ruled on a number of issues,
3 The plea was entered pursuant to this colloquy:
DEFENSE COUNSEL: Mr. Roof has told us that he wishes to plead guilty.
However, the Government has not yet decided whether it is going to seek the
death penalty. And we understand that that process takes some time, takes
some time for the Government to make that determination. Until we know
whether the Government will be asking for the death penalty, we are not able
10
described below. Trial began on December 7, 2016, and lasted until December 15, 2016,
when the jury rendered its verdict, finding Roof guilty on all counts.
D. Appeal
Roof now appeals four broad categories of issues: (1) his competency to stand trial
and issues relating to his competency hearings; (2) his self-representation; (3) alleged
errors in the penalty phase of the trial; and (4) alleged errors in the guilt phase of the trial,
including whether the charging statutes are unconstitutional. We must “address all
substantive and procedural issues raised on the appeal of a sentence of death, and shall
consider whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor and whether the evidence supports the special
finding of the existence of an aggravating factor required to be considered under section
3592.”4 18 U.S.C. § 3595(c)(1).
III. ISSUES RELATED TO COMPETENCY
We first address Roof’s challenges to his competency to stand trial and issues
relating to his competency hearings. Specifically, Roof argues: first, that the district
court erred in finding him competent to stand trial; second, that the district court abused
to advise Mr. Roof to enter a plea of guilty. And for that reason, we
understand that the Court will enter a plea on his behalf.
THE COURT: I’ll just direct that a plea of not guilty be entered at this time
for the defendant, based on your comment to the Court.
(J.A. at 77.)
4 The aggravating factors found by the jury are described infra note 34 and Section
V.A.3. We agree that the evidence supports the jury’s findings.
11
its discretion by refusing to grant a continuance ahead of the first competency hearing;
and third, that the district court abused its discretion by limiting evidence allowed at the
second competency hearing. We disagree and discern no merit in Roof’s contentions.
A. Competency Background
Before trial, defense counsel gave notice of their intent to call an expert on Roof’s
mental health at the penalty phase. The government then obtained permission to have its
own expert, Dr. Park Dietz, examine Roof. During a visit with Dr. Dietz, Roof learned for
the first time that his lawyers intended to call an autism expert to say that Roof was on the
autism spectrum. The news upset him. He underwent a “substantial mood change” and
became “oppositional.” (J.A. at 538, 544.) Soon after, he sent a letter to the prosecution,
accusing his attorneys of misconduct. He said, “what my lawyers are planning to say in
my defense is a lie and will be said without my consent or permission.” (J.A. at 587.) He
believed that his lawyers were “extremely moralistic about the death penalty” and that they
“have been forced to grasp at straws” because he “ha[s] no real defense,” or at least “no
defense that my lawyers would present or that would be acceptable to the court.” (J.A. at
589.)
Learning of the letter shortly before trial, defense counsel requested an ex parte
hearing. The next day, defense counsel requested a competency hearing. On November
7, before ruling on competency, the court held the requested hearing and questioned Roof
about the letter. Roof explained that he was unwilling to allow mental health mitigation
evidence because “if the price is that people think I’m autistic, then it’s not worth it” and
“[i]t discredits the reason why I did the crime.” (J.A. at 629, 632.) Defense counsel stated
12
that they had considered Roof’s perspective but determined, in their professional judgment,
that presenting the evidence was in Roof’s best interest.
1. First Competency Hearing
Following the ex parte hearing, the court delayed the first day of individual voir dire
and ordered a competency hearing. To conduct a competency evaluation, it appointed Dr.
James C. Ballenger—“one of the nation’s most renowned and respected psychiatrists,” and
the chair of the Department of Psychiatry and Behavioral Sciences at the Medical
University of South Carolina for seventeen years. (J.A. at 2068.) Although Dr. Ballenger
had extensive experience as a psychiatrist, this was his first pretrial competency
examination. Dr. Ballenger submitted his report on November 15. Defense counsel asked
that the court postpone the competency hearing, scheduled for November 17, until
November 28, for three primary reasons: (1) defense counsel was “utterly unprepared to
engage on such short notice the factual, ethical, legal, and forensic science issues raised by
92 pages of psychiatric and psychological reports”; (2) Roof disagreed with defense
counsel’s mental health mitigation defense, which led to a breakdown in the attorney-client
relationship, especially on competency issues; and (3) the mental health experts lacked
sufficient time to reliably evaluate Roof’s competency. (J.A. at 773.) They also argued
that Dr. Ballenger’s report failed to address a central issue—autism spectrum disorder
(“ASD”). Furthermore, the defense’s autism expert, Dr. Rachel Loftin, was out of the
country until November 28 and could not finalize her report in time.
To provide adequate time for the defense to prepare, the court rescheduled the
competency hearing for November 21. On the first day of the hearing, defense counsel
13
moved for another week’s continuance because they still felt “unprepared to proceed” and
several of their witnesses were unavailable to testify in person. (J.A. at 894-95.) The court
denied the request, finding it “not credible” that they were not prepared. (J.A. at 895-96.)
It offered to allow the defense experts to appear remotely.
Dr. Ballenger testified first. He had met with Roof three times for a total of eight
hours. Dr. Ballenger also spoke with the defense team for one hour and forty-five minutes
to listen to their experience working with Roof. He opined that Roof was competent to
stand trial, noting that “he does not have difficulty in understanding the procedures that he
is involved in” and that “there is evidence that he can” assist counsel. (J.A. at 908-09.) He
noted that Roof’s full-scale IQ of 125 and verbal IQ of 141 placed him in the 96th and
99.7th percentile of the population, respectively. 5 Dr. Ballenger believed that Roof
understood the proceedings better than the average defendant and that it was “very clear”
he had the ability to cooperate with his attorneys, should he so desire. (J.A. at 908-09,
915.) According to Dr. Ballenger, Roof’s unwillingness to cooperate was not the result of
“widespread psychosis,” but rooted in “a deep seated racial prejudice” that Roof did not
want “blurred” by a mental health defense. (J.A. at 909, 913-15, 1346.) Dr. Ballenger
testified that Roof likely suffers from social anxiety disorder and schizoid personality
disorder and that Roof might have some autistic spectrum traits but does not suffer from a
psychotic process. Defense counsel pressed Dr. Ballenger on what the defense perceived
to be his failure to fully consider the effects of Roof’s alleged ASD. Dr. Ballenger
5 The record indicates that Roof’s full-scale IQ score is in the 95th percentile.
14
explained that the pertinence of any ASD diagnosis was already captured in his evaluation
of Roof’s mental state and ability to assist counsel as required under the competency
standard.
After Dr. Ballenger, the court heard live testimony from three defense witnesses: an
examining forensic psychiatrist, Donna S. Maddox, M.D.; a psychologist, William J.
Stejskal, Ph.D.; and an autism expert, Laura Carpenter, Ph.D. The court also accepted
affidavits from three other defense witnesses: an autism expert who had examined Roof,
Rachel Loftin, Ph.D.; a professor diagnosed with ASD who had met with Roof and defense
counsel, Mr. John Elder Robison; and a psychologist who had commented on the
limitations of personality testing, John F. Edens, Ph.D.
The forensic psychiatrist, Dr. Maddox, had met with Roof nine times for a total of
about twenty-five hours (seven times before Roof complained of his attorneys’ supposed
misconduct and two times after). Referencing the Diagnostic and Statistical Manual of
Mental Disorders, 5th Edition (DSM-5), Dr. Maddox believed that Roof suffers from
“autism spectrum disorder,” “other specified schizophrenia spectrum disorder and other
psychotic disorder,” and “other specified anxiety disorder.” (J.A. at 1486, 5243.) She
based those opinions on her observations that Roof used pedantic speech, which she
associated with ASD; that he exhibited “disorganized thinking” and
inappropriate/constricted affect; that he lacked “insight that he has a psychotic thought
process”; that he has a history of somatic delusions that cause him to believe that his head
is lopsided, that his hair is falling out, and that all of his testosterone pooled to the left side
of his body; that he exhibited “paranoid beliefs” about defense counsel, such as trying to
15
discredit him and ultimately have him killed; and that he displayed “transient symptoms of
psychosis.” (J.A. at 1491, 1497, 1500-01, 1503-06, 1514-15, 1537.) Dr. Maddox stated
that she did not believe Roof had the capacity to understand the proceedings or assist
counsel because he had stated multiple times that even if he were sentenced to death, he
would not be executed. In sum, she concluded that Roof was not competent to stand trial.
Dr. Stejskal, a psychologist, had met with Roof for about one hour and forty-six
minutes over two days. He opined that Roof was “in the prodromal phase of an emerging
schizophrenic spectrum disorder,” 6 but was “not yet fully possessed of a delusional
disorder.” (J.A. at 1690-91.) Dr. Stejskal offered no “settled conclusion” as to how that
diagnosis affected Roof’s competency, stating only “I certainly have concerns.” (J.A. at
1668-69, 1690.) Although he did not have firsthand information about Roof’s beliefs,
Stejskal was concerned that Roof might make decisions based on “potentially delusional
beliefs” that he would be liberated from prison. (J.A. at 1698-1700.) He believed that
Roof was motivated and intelligent enough to mask his irrational beliefs by telling the court
that he believed his chance of liberation was low. Dr. Stejskal testified that Roof was
“trying to look bad” by selecting antisocial features during personality testing while also
“denying psychopathology.” (J.A. at 1701, 1709-10.) But he acknowledged that Roof
scored within the normal range on the Positive Impression Management Scale, which
detects whether a person is trying to portray themselves in an unrealistically positive way.
6 Prodrome is “[a]n early or premonitory manifestation of impending disease before
the specific symptoms begin.” Prodrome, McGraw-Hill Dictionary of Scientific and
Technical Terms (6th ed. 2003).
16
He did not opine on Roof’s competency. He also noted that Roof exhibited reduced
processing speed and a low working memory index.
Dr. Carpenter, an autism expert, had not examined Roof and did not opine on his
competency. She testified instead about common traits associated with ASD, including
how it affects social communication and the ability to form relationships and understand
social rules. Dr. Carpenter was unable to offer an opinion on whether ASD would disrupt
Roof’s ability to assist counsel. Referencing the affidavit of Professor Robison, Dr.
Carpenter noted that Roof’s supposed belief that he was going to be pardoned was
concerning and “those types of irrational beliefs are not necessarily just due to autism and
might suggest that something else was going on here as well.” (J.A. at 1638.)
Dr. Loftin, an autism expert, had met with Roof three times. Testifying by affidavit,
she opined that Roof has ASD. He had told her that he was “not afraid of receiving a death
sentence” because he anticipated being “rescued by white nationalists after they take over
the government.” (J.A. at 1774.) She also noted that Roof had psychiatric symptoms not
explained by ASD, including anxiety, depression, suicidal ideation, obsessive-compulsive
symptoms, disordered thinking, and, as manifestations of psychosis, delusions of grandeur
and somatic delusions. She believed that his symptoms were “consistent with the
schizophrenia spectrum” but that it was “too early to predict his psychiatric trajectory.”
(J.A. at 1774.) Dr. Loftin did not opine directly on Roof’s competency.
Professor Robison, a professor who himself has ASD, had met with Roof. By
affidavit, he testified that some of Roof’s traits are common in people with ASD:
inappropriate facial expressions, developmental delay, and unusual preoccupation with
17
things like clothing. Professor Robison stated that Roof had asked him not to testify,
asserting that he was going to be pardoned in four or five years anyway. To Professor
Robison, that “seemed delusional,” a trait distinct from ASD. (J.A. at 1823-24.) He also
listed concerns about Roof’s ability to assist in his own defense, including Roof’s apparent
extreme sensory sensitivities, problems with executive functioning, and possible cognitive
overload from the stress of trial.
Dr. Edens, a psychologist and lead author of a personality-assessment test similar
to one that Roof took, had not examined Roof, but testified by affidavit about his review
of Dr. Ballenger’s report. Dr. Edens raised concerns about Dr. Ballenger’s interpretation
of Roof’s personality tests, concluding, “I believe there are significant problems with how
the . . . findings have been interpreted in this case, particularly in regards to Dr. Ballenger’s
claims that they provide ‘absolutely no evidence of psychosis.’” (J.A. at 1783.)
The court also heard from Roof. Roof confirmed his understanding that he would
likely be executed if sentenced to death. When the court asked whether Roof thought that
he would be rescued from the death penalty by white nationalists, he responded that
“[a]nything is possible,” but he understood that the chance of rescue was “extremely
unlikely” and “[l]ess than half a percent.” (J.A. at 1729-30.)
Roof also confirmed his ability to communicate with his lawyers, clarifying that he
limited communication because he disagreed with their mitigation strategy. He stated that
he did not want to introduce mental health evidence because it would discredit his act,
which he argued was an attempt to increase racial tension and contribute to a potential
white nationalist revolution. Roof also noted his disagreement with parts of Dr. Ballenger’s
18
report, stating that he had never claimed that he wanted to be seen as a hero or that he
wanted to preserve his reputation as “a perfect specimen.” (J.A. at 1733, 1741.) Rather,
Roof explained that he wanted to avoid institutionalization and forced medication.
Following the two-day competency hearing, the district court determined that Roof
was competent to stand trial. Although the court viewed the defense experts’ testimony on
ASD as relevant mitigation evidence, it did not believe that the defense experts had shown
that Roof’s possible ASD would affect his understanding of the proceedings or his ability
to assist counsel. The court also noted that Dr. Maddox was the only defense witness who
opined on Roof’s competency and acknowledged Dr. Maddox’s concern that Roof believed
white nationalists would save him from a death sentence. But both the court and Dr.
Ballenger closely questioned Roof on that issue and Roof confirmed his understanding that
a death sentence would likely result in his death. The court disagreed with defense
counsel’s objections to Dr. Ballenger’s experience, stating that Dr. Ballenger’s assessment
was superior to most competency evaluations in terms of “thoroughness, insight, and
analysis.” (J.A. at 2068-69 n.2.) It also relied on Roof’s confirmation that his dispute with
his attorneys was because he opposed their mental health mitigation strategy, as well as his
confirmation that he could communicate with them if he so chose. According to the court,
Roof’s demeanor during the competency hearing “suggested . . . no psychosis or severe
mental distress” and “raised not the slightest question or concern regarding his competency
to stand trial.” (J.A. at 2078.)
19
2. Second Competency Hearing
After the guilt phase of the trial, Roof advised the court that he wished to represent
himself during the penalty phase. That reaffirmed a position he took after jury selection,
when he switched from self-representation to being represented by counsel but argued for
a right to revert to self-representation for the penalty phase of the trial. On December 29,
2015, before the penalty phase began, standby counsel challenged Roof’s competency to
stand trial or to represent himself during the penalty phase. Standby counsel stated that
“facts developed since the [first] competency hearing” supported a finding that Roof was
by then incompetent. (J.A. at 5242.) Standby counsel expressed concern that Roof had
decided to forego substantial mitigation evidence, and they believed that Roof would not
defend himself during the penalty phase because he wanted to prevent the release of his
mental health information. They described Roof’s preoccupation with his clothing and
other odd behavior during trial. Their competency motion included exhibits from four
experts, three of whom had testified or submitted affidavits at the first competency hearing
but had since completed additional reports. The three who had provided earlier opinions
were Dr. Loftin, the examining autism expert; Dr. Maddox, the examining forensic
psychiatrist; and Professor Robison, the professor with ASD. Opining for the first time
was Dr. Paul J. Moberg, Ph.D., a neuropsychiatrist who had evaluated Roof three times in
February 2016. Standby counsel requested consideration of the reports, “which did not yet
exist at the time of the competency proceedings in November.” (J.A. at 5243-44.)
In “an abundance of caution,” the district court ordered Dr. Ballenger to re-examine
Roof and set a hearing for January 2, 2017. (J.A. at 5463-64.) The court advised the parties
20
that it would “only hear evidence related to any developments since the November 21-22,
2016 hearing.” (J.A. at 5463.) Standby counsel requested a one-week continuance to allow
more time for Dr. Ballenger and defense experts to meet with Roof. The court denied the
motion, stating that the scope of the hearing was limited; it was not a “redo” of the first
hearing. (J.A. at 5470-71.)
At the beginning of the hearing, the court stated that the “law of the case is that as
of November 22nd, 2016, the defendant was competent. If there is any material change
since then, I want to hear about it. No witness is going to be talking about something before
that date because the law of the case is already established.” (J.A. at 5519-20.) Standby
counsel objected to that limitation, arguing that it would preclude evidence of Roof’s
history of delusions and other psychotic symptoms evidenced by the now-completed
reports of multiple defense experts. The court disagreed.
Dr. Ballenger testified first. The week prior, he had met with Roof for a total of five
hours over two days, completed his evaluation, and wrote a second report. He testified that
he had read standby counsel’s competency motion and exhibits and had “thoroughly”
discussed the issues with Roof. (J.A. at 5533; see also J.A. at 5978-79.) Dr. Ballenger
opined that Roof still understood the issues and could assist counsel if he so desired.
However, he explained that Roof was unwilling to assist his attorneys because he “wants
the right message to get out and not have it besmirched or muddied by saying that he did it
because he was psychotic or had somatic delusions or was autistic, but that it simply be a
political act.” (J.A. at 5537, 5543, 5979-80, 5992.) Dr. Ballenger testified that mental
illness did not control Roof’s decision-making; that Roof’s decision to reject mental health
21
evidence was instead a logical extension of his political and social beliefs. In support, Dr.
Ballenger noted that Roof compared himself to a terrorist who successfully murdered
people as a “purely political act.” (J.A. at 5539-40, 5982, 5985.)
Dr. Ballenger testified that people might project mental illness onto Roof because
they cannot comprehend the depth of his racist views. He also testified that any autistic
traits did not affect Roof’s competency. Dr. Ballenger had questioned Roof again on his
alleged belief that he would not be executed if sentenced to death, and Roof explained that
he thought there was a “greater than 50% chance” he would receive the death penalty. (J.A.
at 5546-47, 5981.) Although Roof had said that he hoped the death penalty will be
abolished, he had laughed when Dr. Ballenger spoke about white nationalists rescuing him
from prison. Dr. Ballenger believed that Roof was “mess[ing] with people” when he said
that, and that Roof did not have “a shred of doubt” that he faced a real risk of death. (J.A.
at 5547, 5584, 5598.) Considering whether Roof’s denials of incompetence should
influence his competency determination, Dr. Ballenger stated: “[E]very part of my
examination beginning to the end was a test of his competency to stand trial. And . . . I
didn’t find any significant problem with his competence to stand trial and defend himself.”
(J.A. at 5544.) As the court stated, Dr. Ballenger “systematically [went] through each of
those issues that had been raised in the motion” and concluded that “there was no change”
in Roof’s “capacity to understand the issues and to assist his attorneys.” (J.A. at 5535.)
Defense counsel moved to submit the newly completed reports from their experts,
none of whom had examined Roof since the first competency hearing. The court admitted
22
the written reports but limited testimony to evidence arising after the first competency
hearing.7
Dr. Loftin, the autism expert, testified and explained that she had observed (on
video) traits consistent with attenuated psychosis and ASD. She said that some of these
traits might impair Roof’s ability to assist in his defense: Roof fixated on minor details
while missing larger, more important ones; he got “stuck” and couldn’t transition between
topics; and he could not understand others’ points of view. (J.A. at 5654-60.)
Appearing for the first time, Father John E. Parker, an Orthodox Christian priest,
also testified. He said he had visited Roof weekly beginning about a week after the
shootings, spending approximately 100 hours with him. Father Parker testified that he
could not reconcile Roof with the crime because Roof seemed neither cold-hearted nor
angry, so “[t]he only way I can explain it is mental illness.” (J.A. at 5690-92.) Father
Parker did not think that Roof was a white nationalist, despite his self-professed beliefs.
He noted that Roof was intelligent and could recite facts read years earlier. When Roof
7 Dr. Loftin’s report included a detailed description of Roof’s social history,
including what she identified as early signs of mental illness. She concluded that Roof has
ASD and symptoms of psychosis. Dr. Maddox’s report reflected her evaluation of Roof
over several months. She diagnosed Roof with ASD, attenuated psychosis, and “other
specified anxiety disorder,” along with other conditions. (J.A. at 5369.) She concluded
that “Roof’s impairments prevent him from rationally communicating with his attorneys
and weighing the risks and benefits of trial-related decisions, and from being able to assist
in his own defense.” (J.A. at 5381.) Dr. Moberg’s report suggested that Roof has “mild
frontal system dysfunction” and found that Roof’s symptoms and history “are most
consistent with a developmental disorder with psychosis spectrum features.” (J.A. at 5359-
60.) He stated that those impairments could interfere with Roof’s ability to weigh options,
integrate new information, make decisions, and modify his behavior.
23
spoke about race, however, Father Parker admitted that he sounded like a “broken record,”
stuck in a loop of white nationalist rhetoric. (J.A. at 5689-90.)
Three of Roof’s attorneys submitted a sworn declaration describing Roof’s behavior
during jury selection and the guilt phase of trial. They said that Roof demanded they “do
nothing” and “stop making objections,” saying their efforts were causing him harm and
that they were “trying to kill” him. (J.A. at 5475.) According to their declaration, Roof
thought that the testimony of a female South Carolina law enforcement agent who read his
journal into the record—including incendiary statements about “Blacks,” “Jews,” and
“Homosexual[s]”—was “‘great’ for him” because she had “a nice voice.” (J.A. at 5476;
see J.A. at 4234-59.) He insisted that he did not have somatic delusions because his head
and body are truly deformed. He expressed confidence that the jurors would not sentence
him to death because they liked him, and that, if they did impose a death sentence, he could
stop the execution by crying before they stuck the needle in his arm. He accused his
lawyers of “trying to kill [him]” because the sweater they provided him felt filmy and
smelled of detergent. (J.A. at 5476.) And he criticized defense counsel’s closing argument
because counsel did not tell jurors the statistics of black-on-white crime.
At the end of the competency hearing, the court directly questioned Roof. He again
denied believing that he would be saved by white nationalists if he received the death
penalty. He acknowledged a high risk that he would be sentenced to death, and ultimately
executed, if he presented no mitigation evidence. Roof confirmed once more that, to
prevent his lawyers from undermining his message with mental health evidence, he wanted
to represent himself.
24
The court found Roof “plainly competent to stand trial.” (J.A. at 6956.) In its view,
Roof “fully understands that he faces a high risk of a death sentence if he presents no
mitigation witnesses, and he understands that he faces a high risk of execution if sentenced
to death.” (J.A. at 6966.) It again concluded that Roof’s resistance to mental health
evidence “continues to arise out of his political ideology, rather than any form of mental
disease or defect” and that his “social anxiety, possible autism, and other diagnoses or
possible diagnoses do not prevent him from understanding the proceedings or assisting
counsel with his defense.” (J.A. at 6966; see also J.A. at 6962.)
B. Issue 1: The District Court Did Not Clearly Err in Finding Roof
Competent to Stand Trial
Roof now argues, through counsel, that the district court incorrectly found him
competent to stand trial. The government counters that the district court’s finding was not
clearly erroneous and that any discrepancies between expert opinions do not warrant
reversal. We agree with the government and find no clear error in the district court’s
competency determination.8
“A criminal defendant may not be tried unless he is competent.” Godinez v. Moran,
509 U.S. 389, 396 (1993) (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). A defendant
8 “We review the district court’s competency determination for clear error.” United
States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). “[B]ecause district courts are in the
best position to make competency determinations, which at bottom rely not only on a
defendant’s behavioral history and relevant medical opinions, but also on the district
court’s first-hand interactions with, and observations of, the defendant and the attorneys at
bar, we appropriately afford them wide latitude.” United States v. Bernard, 708 F.3d 583,
593 (4th Cir. 2013).
25
is competent when “he has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and [when] he has a rational as well as
factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S.
402, 402 (1960). “Not every manifestation of mental illness demonstrates incompetence
to stand trial; rather, the evidence must indicate a present inability to assist counsel or
understand the charges.” Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000) (citation
omitted). “Likewise, neither low intelligence, mental deficiency, nor bizarre, volatile, and
irrational behavior can be equated with mental incompetence to stand trial.” Id. A district
court is “only required to ensure that [a defendant] had the capacity to understand, the
capacity to assist, and the capacity to communicate with his counsel.” Bell v. Evatt, 72
F.3d 421, 432 (4th Cir. 1995). “Under federal law the defendant has the burden, ‘by a
preponderance of the evidence’” to show mental incompetence to stand trial—that is, “that
the defendant is presently suffering from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand the nature and consequences of
the proceedings against him or to assist properly in his defense.” United States v. Robinson,
404 F.3d 850, 856 (4th Cir. 2005) (quoting 18 U.S.C. § 4241(d)).
Roof raises five potential errors. First, in a reversal of the position that he had taken
in the district court and in opposition to his lawyers, he argues that the district court
improperly characterized his expectation of a racial revolution as racist, rather than
delusional. Citing United States v. Watson, Roof claims that psychotic delusions made him
incompetent to stand trial. 793 F.3d 416 (4th Cir. 2015). In support of that contention, he
points to several defense experts who opined that he was operating under the delusional
26
belief that he would be rescued from death row by a white nationalist revolution. But that
position reflects only one view contained in the record. Dr. Ballenger alternatively opined
that Roof’s unwillingness to cooperate with defense counsel was not the result of an
underlying “widespread psychosis,” but was instead rooted in “a deep seated racial
prejudice” that Roof did not want “blurred” by a mental health defense. (J.A. at 909, 913-
15, 1346.) Dr. Ballenger further noted: “[T]he fanciful notions that he’ll be rescued by
white nationalists, revolutionaries who have taken over the Government and let him out of
jail, he laughs about the humor involved with that . . . [H]e likes to mess with people.”
(J.A. at 5546-47.) During his evaluation, Roof said that he “has some hope that the death
penalty will be abolished and that he won’t actually be executed,” but he still considered
execution likely. (J.A. at 5546.) Dr. Ballenger said that he did not think Roof “has a shred
of doubt” about the “real risk that he faces” from trial and sentencing. (J.A. at 5547.)
The district court itself also questioned Roof on whether he thought that white
nationalists would rescue him from the death penalty. Roof responded that “[a]nything is
possible” and he would like for that to happen, but he understood the chance of his actually
being rescued was vanishingly small, quantified as “[l]ess than half a percent.” (J.A. at
1729.) Given the conflicting record evidence and expert testimony, the court’s decision to
accept Dr. Ballenger’s account is not “against the great preponderance of the evidence.”9
9 United States v. Watson is also distinguishable because it dealt with a plan of
forced medication to restore competency after the district court concluded that the
defendant was incompetent to stand trial. 793 F.3d 416, 422-25 (4th Cir. 2015). The
government, rather than the defendant, bears the burden to prove that forced medication
will restore competency. Id. at 424. In contrast, Roof bore the burden to demonstrate his
27
See United States v. Wooden, 693 F.3d 440, 456 (4th Cir. 2012) (internal quotation marks
and citation omitted); cf. Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)
(“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of
two or more witnesses, each of whom has told a coherent and facially plausible story that
is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error.”).
Roof nevertheless argues that Lafferty v. Cook compels reversal. 949 F.2d 1546
(10th Cir. 1991). That out-of-circuit case, however, is far afield. Lafferty dealt with an
incorrect legal standard for determining competency, which tainted the district court’s
findings of fact. Id. at 1551 n.4. Moreover, the defendant in Lafferty had a “paranoid
delusional system that severely impaired his ability to perceive and interpret reality.” Id.
at 1552. Here, even Roof’s experts describe his psychotic symptoms as transitory, stilldeveloping, or otherwise not fully realized. No expert characterizes Roof’s beliefs as
severely impairing his ability to perceive and interpret reality to the extent described in
Lafferty. And, even if any of the experts’ reports could be read as suggesting that Roof
was completely detached from reality, the district court was entitled to give greater weight
to Dr. Ballenger’s competing, credible expert testimony that Roof was not so detached.
See C.B. Fleet Co. v. SmithKline Beecham Consumer Healthcare, L.P., 131 F.3d 430, 438
(4th Cir. 1997) (holding that the district court did not clearly err in crediting one conflicting
expert finding over another).
incompetence by a preponderance of the evidence. 18 U.S.C. § 4241(d).
28
Roof’s second argument is that the district court relied too heavily on his in-court
statement denying his delusional beliefs. That position does not square with the law or the
record. “The district court was in the best position to observe [Roof,] and its determinations
during trial are entitled to deference. . . .” United States v. Bernard, 708 F.3d 583, 593 (4th
Cir. 2013). Moreover, the district court did not rely solely on its observations of Roof,
instead appointing Dr. Ballenger to examine Roof’s “capacity to understand the issues and
to assist his attorneys.” (J.A. at 5535.) “[E]very part of my examination beginning to the
end was a test of [Roof’s] competency to stand trial” and Dr. Ballenger “didn’t find any
significant problem with [Roof’s] competence to stand trial and defend himself.” (J.A. at
5544.)
Third, Roof argues that the district court ignored his lawyers’ affidavits about his
failure to communicate with them or assist in his defense. See United States v. Mason, 52
F.3d 1286, 1292 (4th Cir. 1995) (holding that the “[o]utright rejection” of counsel’s
observations in a competency determination was unwarranted). But the court did not reject
defense counsel’s concerns about the possibility of Roof’s incompetence; rather, it ordered
a competency hearing and appointed an expert to examine Roof. Ahead of the first
competency hearing, Dr. Ballenger spoke with defense counsel for an hour and forty-five
minutes, and he addressed their concerns in his first report. Dr. Ballenger’s second
competency report thoroughly addressed the concerns that standby counsel raised about
Roof’s behavior since the first hearing. Acknowledging defense counsel’s concerns, the
court still found Roof competent.
29
Fourth, Roof claims that the district court conflated Dusky’s requirements of “a
rational as well as factual understanding of the proceedings against him.” 362 U.S. at 402.
Roof argues that he needs both cognitive and rational abilities—one cannot substitute for
the other. But the court found that Roof had both cognitive and rational abilities. Although
the court pointed to Roof’s high verbal IQ as evidence of cognitive capabilities, it did not
rely solely on an IQ test. Instead, the court relied on Dr. Ballenger’s opinion that Roof’s
choices reflected “logical, rational thought” and that he “elected, by his own choice, not to
cooperate because he disagrees with [defense counsel’s] actions.” (J.A. at 5536-37.) The
court did not fail to consider the possibility that a cognitively capable person could act
irrationally; instead, it reasonably relied on expert testimony that Roof was both cognitively
capable and acting in a manner that was logically consistent, even if despicable.
Fifth, Roof argues that the district court’s reliance on Dr. Ballenger’s opinion was
clearly erroneous because the report ignored substantial contrary evidence. He complains
that Dr. Ballenger was not credible because this was the doctor’s first pretrial competency
examination. Roof also claims that Dr. Ballenger did not consider childhood evidence, did
not remember specific facts about Roof’s developmental history, and did not consider the
contrary opinions of Roof’s experts. We find Roof’s position—in effect a dispute over the
district court’s weighing of the evidence—to be unpersuasive. Beginning with the
developmental history, Dr. Ballenger did consider the report that Dr. Loftin “pulled
together from many interviews” about Roof’s developmental history, as well as “many,
many, many pages of records of testimony of people about his childhood, his adolescence.”
(J.A. at 5555, 5571.) Dr. Ballenger made clear that he read everything provided to him,
30
except for the voluminous grand jury testimony, which he obtained permission from the
court to omit from his review.
Dr. Ballenger also did not disregard Roof’s expert evidence that Roof suffers from
either schizophrenia or ASD. Dr. Ballenger instead opined that the presentation of clinical
symptoms of schizophrenia was “in remission” and that Roof displayed few symptoms of
ASD, none of which would present a “significant problem with his competency.” (J.A. at
5568.) Dr. Ballenger consistently determined that Roof’s beliefs were “not delusions; they
are actually just extreme racial views.” (J.A. at 5591.) He noted that his diagnosis was
consistent with an earlier psychologist’s report. Roof himself suggested, and Dr. Ballenger
testified, “there is a lot of projection going on here” because of the “incomprehensibility
of his racial views lead[ing] people to want to project mental illness on him.” (J.A. at
5594.)
Although Roof’s defense team presented expert evidence disagreeing with Dr.
Ballenger’s findings, that does not warrant reversal. Roof has failed to demonstrate
inconsistencies that leave us “with the definite and firm conviction that a mistake has been
committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citation omitted). Every
qualified expert has a first case and Dr. Ballenger, an experienced psychologist, had
performed numerous similar evaluations in other phases of criminal proceedings. He was
qualified and the district court was well within its discretion to rely upon his testimony.
The district court did not err in determining that Roof was competent to stand trial.10
10 The Autistic Self Advocacy Network and the Autistic Women & Nonbinary
31
C. Issue 2: The District Court Did Not Abuse Its Discretion by Granting
Only in Part Defense Counsel’s Request for a Continuance of the First
Competency Hearing
Roof argues that the district court should have granted his motion to continue the
first competency hearing for an additional week to allow Dr. Loftin to complete her report
and to testify in person. The government counters that the court granted at least two
continuances to Roof and made other concessions, so Roof was not prejudiced.11
“The denial of a continuance contravenes a defendant’s Sixth Amendment right to
counsel only when there has been ‘an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.’” United States v. Hedgepeth,
418 F.3d 411, 423 (4th Cir. 2005) (quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).
“[T]he test for whether a trial judge has ‘abused his discretion’ in denying a continuance is
not mechanical; it depends mainly on the reasons presented to the district judge at the time
the request is denied.” United States v. LaRouche, 896 F.2d 815, 823 (4th Cir. 1990) (citing
Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). “[A] broad and deferential standard is to be
afforded to district courts in granting or denying continuances: the burdensome task of
assembling a trial counsels against continuances,” and “the district court alone has the
Network provided briefing as amici curiae. We are grateful for their submission.
11 “[A] trial court’s denial of a continuance is . . . reviewed for abuse of discretion;
even if such an abuse is found, the defendant must show that the error specifically
prejudiced [his] case in order to prevail.” United States v. Hedgepeth, 418 F.3d 411, 419
(4th Cir. 2005).
32
opportunity to assess the candidness of the movant’s request.” Id. (first citing Slappy, 461
U.S. at 11; and then citing Ungar, 376 U.S. at 591).
The district court did not err in denying further delay. In United States v. Clinger,
we found an abuse of discretion where a witness could not be made available without a
one-day continuance. 681 F.2d 221, 223 (4th Cir. 1982). But, unlike the district court in
Clinger, the district court here offered that one of Roof’s several experts, Dr. Loftin, could
testify telephonically or by video. Cf. United States v. Ellis, 263 F. App’x 286, 289-90 (4th
Cir. 2008) (holding that a failure to grant a continuance to allow an expert completely
unavailable to testify as the sole expert was an abuse of discretion). As we have long
recognized, telephonic and electronic testimony is an acceptable practice. See United
States v. Baker, 45 F.3d 837, 848 (4th Cir. 1995) (approving the use of video conferencing
in a mental competency hearing). Even if the continuance would have allowed Dr. Loftin
to finalize her report, she could have proffered through live (telephonic or video) testimony
some material from the report. Moreover, the defense had already received two
continuances. The court continued the jury selection to assess Roof’s competency, and
then continued the competency hearing to give Roof more time to review Dr. Ballenger’s
report. The district court was not single-mindedly fast-tracking the trial, but instead
considering each request for a continuance and weighing it against the need for efficiency.
See Hedgepeth, 418 F.3d at 423-24 (approving the same kind of nonarbitrary process for
judging motions to continue). “Here, the trial court balanced the interests of all parties and
reached a well-considered decision to proceed.” United States v. Bakker, 925 F.2d 728,
735 (4th Cir. 1991).
33
Nor has Roof established prejudice. Roof must show that the denial of a
continuance “specifically prejudiced [his] case in order to prevail.” Hedgepeth, 418 F.3d
at 419. That is, Roof must demonstrate that the court’s ruling “undermine[d] confidence
in the outcome” of the competency hearing. See LaRouche, 896 F.2d at 823. Dr. Loftin’s
expert report, submitted in the second competency hearing, focuses on ASD (not
psychosis) and does not address Roof’s competency to stand trial. Although Dr. Loftin
mentions Roof’s possible psychotic symptoms, her opinion largely duplicates Dr.
Maddox’s and Dr. Stejskal’s earlier testimony. Additional corroboration for alreadyconsidered evidence and argument would not demonstrate prejudice here. Roof’s
“speculation and conclusory allegations of prejudice are insufficient to establish abuse of
discretion by the trial court in denying a continuance.” United States v. Lorick, 753 F.2d
1295, 1297 (4th Cir. 1985). Roof has not shown that Dr. Loftin’s report would “undermine
confidence in the outcome” of the competency hearing, so he fails to show prejudice. See
LaRouche, 896 F.2d at 823.
D. Issue 3: The District Court Did Not Abuse Its Discretion by Limiting
Evidence Allowed at the Second Competency Hearing
Roof argues that the district court should have reconsidered its previous competency
determination more fully at the second competency hearing, rather than focusing on
whether his competence changed between the two hearings. He further claims that the
district court misapplied the law-of-the-case doctrine, excluding evidence from before the
34
first hearing, which ended on November 22, 2016. We disagree and see no abuse of
discretion.
12
Even after a defendant is deemed competent, “a trial court must always be alert to
circumstances suggesting a change that would render the accused unable to meet the
standards of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181 (1975).
“[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in determining whether a
further inquiry into competence is required . . . .” Id. at 180; see also Maxwell v. Roe, 606
F.3d 561, 575 (9th Cir. 2010) (“[A] prior medical opinion on competence to stand trial is
relevant in determining whether a further inquiry [into competence] is required.” (second
alteration in original) (internal quotation marks and citation omitted)).
Under the law-of-the-case doctrine, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (citation omitted). Findings
of fact are, by definition, not rules of law. Nevertheless, although a finding of fact “is
perhaps not technically res judicata, it is unusual, for efficiency reasons if no other, for
12 We review decisions to exclude evidence under the abuse-of-discretion standard.
United States v. Young, 248 F.3d 260, 266 (4th Cir. 2001). When the exercise of discretion
depends upon the interpretation of underlying legal principles, our overall review is still
for abuse of discretion, but our consideration of the legal principles informs our view of
what constitutes abuse. See United States v. Bush, 944 F.3d 189, 195 (4th Cir. 2019)
(“[W]e will identify an abuse of discretion if the court’s ‘decision [was] guided by
erroneous legal principles or rests upon a clearly erroneous factual finding.’” (second
alteration in original) (citation omitted)).
35
trial courts to revisit factual findings.” United States v. Adams, 104 F.3d 1028, 1030 (8th
Cir. 1997).
The district court properly considered that Roof’s competency might have changed,
ordered a second hearing, and limited the scope of the hearing to facts suggesting that
Roof’s competency had changed. Even if the court erred in referring to its previous
competency decision as “the law of the case,” which does not govern factual issues, see
Carlson, 856 F.3d at 325, no reversible error occurred. First, courts are not required to
revisit factual findings. See Adams, 104 F.3d at 1030. Second, the court did not, as Roof
contends “deliberately blind[] itself . . . to material evidence.” (Opening Br. at 92.) In
discussing the defense’s expert reports, the court emphasized: “I read them. I read every
one of them.” (J.A. at 5529.) The court here properly considered whether the defendant’s
competence to stand trial had changed, unlike the court in Maxwell. 606 F.3d at 575.
Contrary to Roof’s assertion, the court and Dr. Ballenger both reviewed “the specific
instances since November 22nd that [defense counsel] believe indicated that the defendant
was not competent.” (J.A. at 5533.) As the court noted, Dr. Ballenger “systematically
[went] through each of those issues that had been raised in the motion” and concluded that
“there was no change” in Roof’s “capacity to understand the issues and to assist his
attorneys.” (J.A. at 5535.) Most importantly, as Roof himself noted at the hearing, the
defense experts’ “reports consist of nothing but observations before November the 22nd.”
(J.A. at 5530-31.) The court chose to credit Dr. Ballenger’s expert testimony over
testimony from defense experts. That was within its discretion. The district court’s
36
decision to limit the scope of the second competency hearing was thus not an abuse of
discretion.
Roof next argues that Drope v. Missouri compels reversal. He is incorrect. The
district court in Drope “failed to consider and give proper weight to the record evidence,”
including that “on the Sunday prior to trial [the defendant] tried to choke [his wife] to
death,” and then he “shot himself to avoid trial.” 420 U.S. at 178-79. Unlike Roof’s case,
“there was no opinion evidence as to petitioner’s competence to stand trial.” Id. at 180.
Significantly, the district court’s choice to hold a second competency hearing was the
remedy endorsed in Drope: “to suspend the trial until such an evaluation could be made.”
Id. at 181. Unlike the district court in Drope, which did not consider expert evidence of
competency, the district court here “read every one of” the expert reports and conducted
two competency hearings. (J.A. at 5529.) It properly followed the Supreme Court’s
direction in Drope, and therefore did not err.
IV. ISSUES RELATED TO SELF-REPRESENTATION
Roof argues that the district court erred in allowing him to represent himself during
the penalty phase of his trial. More specifically, he makes the following three arguments:
first, that the Sixth Amendment grants him the right to counsel who will honor his desire
to forgo the presentation of mental health mitigation evidence; second, that the Sixth
Amendment right to self-representation does not extend to sentencing proceedings; and
third, that the Eighth Amendment’s concern with robust capital sentencing procedures
demands that all mitigation evidence be presented, either through defense counsel or
independent counsel. In addition to those constitutional arguments, Roof advances four
37
claims of error related to the district court allowing his self-representation. He contends
that the court erred by not appropriately informing him of the balance of responsibility
between himself and his standby counsel; not appreciating the court’s own discretionary
authority to deny for lack of timeliness his motion to represent himself; not correctly
assessing whether he was a “gray-area” defendant, meaning that he was competent to stand
trial but not competent to represent himself; and not allowing standby counsel to take a
more active role during jury selection. None of his contentions, constitutionally based or
otherwise, has persuasive force.
A. Self-Representation Background
As discussed above in Section III.A, after learning that his lawyers planned to
present evidence of mental illness, Roof sent a letter to the prosecution the night before
jury selection, accusing his lawyers of using “scare tactics, threats, manipulation, and
outright lies” to push a trial strategy that he did not agree with: namely, presenting him as
mentally ill. (J.A. at 587.) He said, “what my lawyers are planning to say in my defense
is a lie and will be said without my consent or permission.” (J.A. at 587.) Shortly before
trial, defense counsel requested an ex parte hearing to discuss Roof’s letter. They
contended that he “controls only a few major decisions in the case; counsel control the rest,”
including the decision of whether to present mental health evidence. (J.A. at 579.) The
issues Roof controls, counsel wrote, include “whether to plead guilty, waive a jury, testify
in his or her own behalf, or take an appeal,” but not “what witnesses should be called or
what evidence should be introduced.” (J.A. at 579 (quoting Jones v. Barnes, 463 U.S. 745,
751 (1983)).)
38
The district court postponed jury selection and held an ex parte hearing to question
Roof about the letter. The court informed Roof that his “lawyers have the right to offer
mitigating evidence that they think is best because that is a strategic decision we allow,”
and it further advised him that if he “offered no mitigation evidence, there would be a high
degree of probability that [he] would have the death penalty imposed.” (J.A. at 629.)
Focusing on just one of the mental health problems at issue, Roof responded, “I get that.
But the problem is . . . if the price is that people think I’m autistic, then it’s not worth it.”
(J.A. at 629.) The court probed him on this point at length, asking, for example, “if, in fact,
your autism experts are right, . . . wouldn’t you want the jury to have that information to
make the best decision,” to which Roof responded emphatically: “No. No. No.” (J.A. at
630.) The court then asked, and Roof confirmed, that he would “rather die than be labeled
autistic.” (J.A. at 630.) Later, he elaborated that “if people think I have autism, . . . [i]t
discredits the reason why I did the crime.” (J.A. at 632.) The court responded that “there
are many people with autism who are high-functioning, well-adjusted people.” (J.A. at
632.) It went on to repeat its question in numerous forms, and Roof continuously affirmed
that it was, in his view, better to die than be considered autistic or mentally ill. And because
evidence of mental health issues was his lawyers’ primary mitigating defense, he wanted
to present no such defense.
Following that exchange, defense counsel stated that although they had considered
Roof’s perspective, they had nevertheless determined that presenting evidence of four
mental health issues—psychosis, depression, autism, and severe anxiety—was in Roof’s
39
best interest.
13 The district court described the stand-off between Roof and his attorneys
as having “no solution” because “any competent counsel would insist on asserting a mental
health defense” and “Roof is going to oppose any effort to present what I think a competent
lawyer should do.” (J.A. at 1563.) The court then reiterated what it had previously told
Roof—a lawyer “is not free to simply say, ‘[o]kay[,] I won’t present that evidence because
you don’t want me to’ because that is not [the defendant’s] decision to make.” (J.A. at
1742-43.) Later, the court memorialized that decision in a written order, saying, “[t]he
decision concerning what evidence should be introduced in a capital sentencing is best left
in the hands of trial counsel, and reasonable tactical decisions by trial counsel in this regard
are binding on the defendant.” (J.A. at 2556 (quoting Sexton v. French, 163 F.3d 874, 887
(4th Cir. 1998)).) Roof nevertheless filed a motion to discharge his lawyers and proceed
pro se. The court responded by explaining Roof’s responsibilities, confirming that he
understood he would “make as-needed motions or objections, ask questions, make
arguments” and “be performing in a courtroom . . . throughout the trial.” (J.A. at 2134-
35.) It also advised him that standby counsel “would be available to assist [him] if [he]
desired that assistance.” (J.A. at 2133.) The court granted his motion and appointed
standby counsel.14
13 Roof’s alleged mental health disorders and the supporting evidence of them are
detailed in Section III.A, supra.
14 For clarity, we use “defense counsel” to refer to Roof’s lawyers when they
represented him and “standby counsel” to refer to Roof’s lawyers when Roof was acting
pro se.
40
Roof then represented himself during voir dire. Still, standby counsel filed three
motions during voir dire seeking to ask potential jurors additional questions. The district
court denied the motions because it “would not allow the defense to speak with two voices.”
(J.A. at 3535.) Standby counsel informed the court that Roof had read McKaskle v.
Wiggins, 465 U.S. 168 (1984), and “is comforted by the fact that McKaskle at least seems
to allow—or allow the Court to permit him to ask us to do things that he doesn’t know how
to do.” (J.A. at 2405-06.) The court replied:
I consider what he has been doing to be actively participating in the voir dire
process. He has made motions, some of which have been granted and some
have not. And he has received assistance of his standby counsel prior to
making those. That is the way I think the system should work. Exactly how
beyond that it should work is something I want everybody to brief and let me
read the case law before I make a determination. What I can’t have, what’s
confusing, is for—to be told by the lawyer of record who is the defendant
“no further questions,” and then I’m told we didn’t ask the right
questions . . . . [W]e are not going to have a situation where you are Mr.
Roof’s cocounsel.
(J.A. at 2406-07.)
It further explained that the lawyers acting as co-counsel would be “very confusing
to the jury” and “it’s kind of a play on the system where Mr. Roof, for instance, could avoid
cross-examination, but could then speak.” (J.A. at 2407.) When standby counsel asked
whether Roof could request that they ask a question or raise an objection, the court
declined, saying Roof “makes the decision whether he wants follow-up questions and
which one[s], not you. You speak to him. He’s an intelligent person. He can make that
decision. It’s his decision because he elected to self-represent.” (J.A. at 2407-08.) And
when standby counsel argued that the court’s rulings were too strict, particularly during
41
voir dire, the court stood by the limitation it imposed, saying “[i]t’s just the proper role of
standby counsel.” (J.A. at 2408.) The court further explained that standby counsel could
suggest questions to Roof, but that he would have to ask them. Roof later asked if the court
would allow “standby counsel [to] assist me in proposing more questions to the jurors and
making objections to strike jurors.” (J.A. at 2561.) The court responded:
I find a system of essentially having your standby counsel become cocounsel
to be potentially chaotic and a manipulation of the system, and I’m not going
to allow it. If you need—if your standby counsel wishes to recommend
questions to you, they are sitting at your table; they can give you the advice.
If they wish to suggest to you bases for objections, I urge you to consider
it. . . . And I say that if through this process you wish to reconsider that
decision and to relinquish your role in self-representation, I would consider
that.
(J.A. at 2561.)
Twice, the court reminded Roof that he could withdraw his request to self-represent.
But Roof did not withdraw that request during voir dire. Both standby counsel and the
court remarked on Roof’s performance. Standby counsel stated that “on average we’ve
done very well.” (J.A. at 2289.) And the court, reflecting on Roof’s earlier participation
during a competency hearing, stated that Roof “demonstrated an aptitude for crossexamination that [was] extraordinary for a pro se litigant.” (J.A. at 6966; see also J.A. at
6961-62.)
Shortly before the start of the guilt phase of trial, however, Roof moved to allow his
standby counsel to represent him during the guilt phase, but to return to self-representation
for the penalty phase if he were convicted. At the pre-trial conference, the district court
explained to Roof what that would mean as a practical matter. The court said that defense
42
counsel “would control all strategic decisions in the guilt phase of the case, including which
witnesses to call, what questions to ask on cross-examination, and what evidence should
be introduced in the guilt phase.” (J.A. at 3472.) Roof would retain control over only
“what pleas to enter, whether to accept a plea agreement, [and] whether to testify,” and he
“would have to . . . waive [his] right to self-representation for the entirety of the guilt phase.”
(J.A. at 3472.)
Roof’s standby counsel expressed support for the motion, and the prosecution did
not take a position. The court granted the motion, including allowing Roof to “retain[] the
right to self-representation during the [penalty] phase.” (J.A. at 3477-78.) As he had
planned, Roof proceeded again to represent himself during the penalty phase and did not
present any mental health mitigation evidence.
Roof’s counsel moved for courtroom accommodations “to ensure” Roof’s “ability
to effectively participate in the legal proceedings.” (J.A. at 3577.) The accommodations
included “short breaks between direct examination and cross-examination, and between
each witness”; shorter court days and weeks; advance notice of government witnesses; and
as-needed breaks. (J.A. at 3579-80.) The court denied the motion, stating that it “found
Defendant mentally competent to stand trial, and, indeed, Defendant was extremely
engaged during his two-day competency hearing.” (J.A. at 3585.) It also noted that Roof
had previously participated in eight-and-a-half hour days with customary breaks and had
then addressed the court “at length and in detail.” (J.A. at 3585.) Later, after observing
Roof deliver opening and closing statements in the penalty phase of the trial, argue against
aggravating factors, and challenge the prosecution, the court observed, “if [Roof] were
43
incompetent to represent himself, almost no defendant would be competent to represent
himself.” (J.A. at 6956.)
B. Issue 4: Under McCoy v. Louisiana, Preventing the Presentation of
Mental Health Evidence Cannot Be the “Objective” of a Defense
Roof first argues that, although he preferred not to waive counsel, he went forward
with that waiver for one reason alone—“to prevent the presentation of mental health
mitigation evidence.” (Opening Br. at 107 (quoting J.A. at 2296).) He asserts that his
decision to represent himself was not made knowingly; that it was instead made under
misinformation from the district court because the court told him, if he employed counsel,
then counsel would have “exclusive authority over presentation of penalty-phase evidence.”
(Opening Br. at 107.) That, he says, was inaccurate and structural error in light of the
Supreme Court’s ruling in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), which was decided
after the district court ruled on his motion but which applies retroactively on direct review.
See Griffith v. Kentucky, 479 U.S. 314, 326-28 (1987); cf. Smith v. Stein, 982 F.3d 229, 235
(4th Cir. 2020) (holding that McCoy is not retroactively applicable on collateral review
because “it is an extension of a watershed rule rather than a watershed rule itself”), cert.
denied, No. 20-7192, 2021 WL 1520899 (Apr. 19, 2021). We disagree with Roof’s
argument and conclude that the district court did not err.
15
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to . . . have the Assistance of Counsel for his defence.” U.S. Const.
15 We review constitutional questions de novo. United States v. Malloy, 568 F.3d
166, 176 (4th Cir. 2009).
44
amend. VI. That right includes the right to waive counsel and to represent oneself. Faretta
v. California, 422 U.S. 806, 834-36 (1975). But the decision to relinquish the right to
counsel must be made “knowingly and intelligently.” Id. at 835. The Supreme Court has
explained that, under the Sixth Amendment, “the accused has the ultimate authority to
make certain fundamental decisions regarding the case, as to whether to plead guilty, waive
a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745,
751 (1983). On the other hand, “[d]ecisions that may be made without the defendant’s
consent primarily involve trial strategy and tactics, such as what evidence should be
introduced, what stipulations should be made, what objections should be raised, and what
pre-trial motions should be filed.” Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998)
(internal quotation marks and citation omitted).
In Florida v. Nixon, the Supreme Court considered that division of authority when
it held that counsel could concede commission of the crime at the guilt phase of a capital
case in order to preserve credibility for the defense during the penalty phase, and that
counsel could do so even though the defendant “never verbally approved or protested [the]
proposed strategy.” 543 U.S. 175, 181 (2004). The Court concluded that “[w]hen counsel
informs the defendant of the strategy counsel believes to be in the defendant’s best interest
and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket
rule demanding the defendant’s explicit consent.” Id. at 192.
Later, in McCoy v. Louisiana, the Court distinguished its decision in Nixon. 138 S.
Ct. at 1505. The defense counsel in McCoy told the jury multiple times, over the
defendant’s objection, that his client had committed the three murders at issue. Id. at 1505-
45
07. Like defense counsel in Nixon, McCoy’s counsel believed that the concession of guilt
would lower the odds of a death sentence. Id. at 1506-07. McCoy was nevertheless
convicted and sentenced to death. Id. at 1507. On appeal, he argued that his counsel’s
guilt-phase concession was a violation of his Sixth Amendment rights. Id. The Supreme
Court agreed, holding that “a defendant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers
the defendant the best chance to avoid the death penalty.” Id. at 1505. The Court explained
that, “[w]ith individual liberty—and, in capital cases, life—at stake, it is the defendant’s
prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the
hope of gaining mercy at the sentencing stage, or to maintain his innocence.” Id. It
elaborated:
Trial management is the lawyer’s province: Counsel provides his or her
assistance by making decisions such as “what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude regarding
the admission of evidence.” Some decisions, however, are reserved for the
client—notably, whether to plead guilty, waive the right to a jury trial, testify
in one’s own behalf, and forgo an appeal.
Id. at 1508 (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)). The Court
reserved for the defendant the “[a]utonomy to decide that the objective of the defense is to
assert innocence.” Id.
Relying on McCoy, Roof claims that the district court misadvised him that he could
not choose as a primary “objective” of his defense that he not be labeled as mentally ill or
autistic. Defense counsel wished to present evidence that conflicted with Roof’s aversion
to any suggestion of a diminished mental capacity. Roof contends that counsel should have
46
been forced to conform to his objective and that he should have been advised that he could
constrain his counsel in that way.
Roof also points to United States v. Read, where the Ninth Circuit held that a
defendant has the right to prevent an insanity defense under McCoy because “[a]n insanity
defense is tantamount to a concession of guilt” and “carries grave personal consequences
that go beyond the sphere of trial tactics.” 918 F.3d 712, 720 (9th Cir. 2019). The court
in Read said that a defendant “may choose to avoid the stigma of insanity” and
“may . . . prefer a remote chance of exoneration to the prospect of indefinite commitment
to a state institution.” Id. at 720-21 (internal quotation marks and citations omitted). In
the paragraph most helpful to Roof, the court said:
[O]ne reason that an insanity defense should not be imposed on a defendant
is that it can sometimes directly violate the McCoy right to maintain
innocence. However, even where this concern is absent, the defendant’s
choice to avoid contradicting his own deeply personal belief that he is sane,
as well as to avoid the risk of confinement in a mental institution and the
social stigma associated with an assertion or adjudication of insanity, are
still present.
Id. at 721 (emphases added). Roof contends that his deeply held belief that he does not
have a mental illness or cognitive deficit should similarly be protected.16
16 In addition to Read, Roof cites decisions rejecting ineffective-assistance-ofcounsel claims against lawyers who complied with a capital defendant’s request not to
present mitigation or closing argument. See, e.g., Taylor v. Steele, 372 F. Supp. 3d 800,
867 (E.D. Mo. 2019) (“Taylor[] argues that his trial counsel was constitutionally ineffective
for not disregarding Taylor’s express directive forbidding a closing argument at the penalty
phase of his trial.”). But the fact that counsel could be found not ineffective for conforming
to the wishes of a defendant does not mean that counsel must conform to the defendant’s
wishes. Thus, the cases that Roof cites are of scant relevance. See United States v.
Holloway, 939 F.3d 1088, 1101 n.8 (10th Cir. 2019) (explaining that claims that counsel
47
We do not subscribe to Roof’s interpretation of McCoy. When one “chooses to have
a lawyer manage and present his case,” he cedes “the power to make binding decisions of
trial strategy in many areas.” Faretta, 422 U.S. at 820. The presentation of mental health
mitigation evidence is, in our view, “a classic tactical decision left to counsel . . . even
when the client disagrees.” United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010);
see also Sexton, 163 F.3d at 887 (recognizing that the presentation of evidence or witnesses
remains counsel’s prerogative during capital sentencing proceedings). McCoy does not
subvert the long-established distinction between an objective and tactics, which underlies
our decisions in Chapman and Sexton. Roof’s interpretation of McCoy is flawed because
it would leave little remaining in the tactics category by allowing defendants to define their
objectives too specifically. In other words, as the government rightly contends, Roof’s
position would allow a defendant to exercise significant control over most important
aspects of his trial—such as the presentation of particular evidence, whether to speak to a
specific witness, or whether to lodge an objection—as long as he declares a particular
strategy or tactic to be of high priority and labels it an “objective.” That cannot be.
Read is also distinguishable on the key point that an insanity defense entails an
admission of guilt. See 18 U.S.C. § 17(a) (allowing an insanity defense when the defendant,
despite committing the crime, “was unable to appreciate the nature and quality or the
violated a defendant’s right to determine the objective of his defense are “[u]nlike
ineffective assistance of counsel jurisprudence” because claims concerning the objectives
of the defense “are not strategic choices about how best to achieve a client’s objectives;
they are choices about what the client’s objectives in fact are” (internal quotation marks
omitted) (quoting McCoy v. Louisiana, 138 S. Ct. 1500, 1510-11 (2018))).
48
wrongfulness of his acts”); id. § 4243(a), (e) (institutionalizing defendants who
successfully plead insanity). The Ninth Circuit’s suggestion in dicta that avoiding the
stigma of mental illness can constitute a trial objective regardless of the admission of guilt
is not persuasive. Acknowledging mental health problems, and bearing any associated
stigma, is simply not of the same legal magnitude as a confession of guilt. Confessing guilt
is of such enormous legal and moral consequence as to properly be reserved to the
defendant’s sole discretion. By contrast, mental health evidence presented at sentencing
as a form of mitigation is far less consequential, even if very important.
Our understanding of the Sixth Amendment finds support in how other circuits have
read McCoy.
17 Roof was not misled about the scope of his control over his defense counsel.
C. Issue 5: A Defendant Has a Sixth Amendment Right to Represent
Himself During His Capital Sentencing
Roof next argues that the district court should have denied his motion to dismiss
counsel and proceed pro se because he did not have a Sixth Amendment right to represent
himself during the penalty phase of his trial. Again, we disagree. He was indeed entitled
to represent himself at the penalty phase.
18
17 See United States v. Rosemond, 958 F.3d 111, 123 (2d Cir. 2020) (“[W]e read
McCoy as limited to a defendant preventing his attorney from admitting he is guilty of the
crime with which he is charged.”), cert. denied, 141 S. Ct. 1057 (2021); United States v.
Wilson, 960 F.3d 136, 144 (3d Cir. 2020) (distinguishing McCoy from the defense
counsel’s “failure to . . . heed [the defendant’s] instruction to contest a jurisdictional
element” because McCoy was “about conceding factual guilt”), cert. denied, 141 S. Ct.
1091 (2021).
18 We review constitutional questions de novo. United States v. Malloy, 568 F.3d
166, 176 (4th Cir. 2009).
49
In Faretta v. California, the Supreme Court traced the history of the right to selfrepresentation at a criminal trial. 422 U.S. 806, 812-18 (1975). Having found the right
deeply rooted in English common law, the Court concluded that “the right to selfrepresentation—to make one’s own defense personally—is . . . necessarily implied by the
structure of the [Sixth] Amendment.” Id. at 819. It noted that constitutionally significant
issues of personal autonomy are at stake. Id. at 834. “The right to defend is personal,” the
Court said, because “[t]he defendant, and not his lawyer or the State, will bear the personal
consequences of a conviction.” Id.
Later, in Martinez v. Court of Appeal of California, Fourth Appellate District, the
Court again considered the right to self-representation, this time in the context of appeals.
528 U.S. 152, 163-64 (2000). It concluded that “there simply was no long-respected right
of self-representation on appeal.” Id. at 159. Additionally, it reasoned that the structure of
the Sixth Amendment does not support an appellate right to self-representation because the
Amendment grants “rights that are available in preparation for trial and at the trial itself.”
Id. at 160. The Court further said that no right to appellate self-representation exists under
the Due Process Clause because “self-representation is [not] a necessary component of a
fair appellate proceeding.” Id. at 161.
Given those precedents, Roof contends, unpersuasively, that the penalty phase of
trial is similar to an appeal and thus falls within the ambit of Martinez, so that he had no
right to represent himself. He makes several subsidiary arguments, including that the right
to a separate penalty phase at a capital trial has little historical precedent, much like
appeals-of-right; that no right to self-representation at the penalty phase can be inferred
50
from the text of the Sixth Amendment; and that the defendant at sentencing is no longer
“the accused” under the Sixth Amendment because, at that point, he is convicted. Lastly,
he contends that the “unique, individualized, and reasoned moral judgment” (J.A. at 6744
(jury charge)) that occurs during sentencing is consistent with the reasons that courts have
declined to impose other Sixth Amendment rights at capital sentencing. See United States
v. Umaña, 750 F.3d 320, 346-48 (4th Cir. 2014) (finding no confrontation right at the
penalty phase); cf. Betterman v. Montana, 136 S. Ct. 1609, 1612 (2016) (holding that the
speedy trial guarantee “protects the accused from arrest or indictment through trial, but
does not apply once a defendant has been found guilty at trial or has pleaded guilty to
criminal charges”).
Roof does not dispute that a defendant has the right to counsel at the penalty phase.
He instead contends that the right to self-representation has less reach than the right to
counsel because the right to counsel is based on the Due Process Clause of the Fifth
Amendment, while the Sixth Amendment right to counsel is the root of the right to proceed
pro se.
19 His argument ignores precedent that suggests there is a Sixth Amendment right
19 The government acknowledges that the right to self-representation does not
extend to situations where the right to counsel is predicated only on the Due Process Clause.
(Answering Br. at 85-86 (“For phases of a criminal case that are not part of the ‘criminal
prosecution,’ a right to counsel cannot be derived from the Sixth Amendment. . . . Because
the self-representation right recognized in Faretta was derived from the Sixth Amendment,
a defendant does not necessarily have a right to self-represent in proceedings where his
right to counsel arises from a different constitutional provision.” (citing Martinez v. Court
of Appeal of California, Fourth Appellate District, 528 U.S. 152, 154 (2000) (no selfrepresentation right on direct appeal); United States v. Missouri, 384 F. App’x 252, 252
(4th Cir. 2010) (supervised release revocation proceeding); United States v. Spangle, 626
51
to the effective assistance of counsel at the penalty phase of capital cases. See United States
v. Taylor, 414 F.3d 528, 535-36 (4th Cir. 2005) (noting that the Sixth Amendment “entitles
a criminal defendant to effective assistance of counsel at each critical stage of his
prosecution, including sentencing” (citation omitted)); see also United States v. Haymond,
139 S. Ct. 2369, 2379 (2019) (plurality opinion) (“[A] ‘criminal prosecution’ continues
and the defendant remains an ‘accused’ with all the rights provided by the Sixth
Amendment, until a final sentence is imposed.”); Jermyn v. Horn, 266 F.3d 257, 305 (3d
Cir. 2001) (finding that counsel violated the Sixth Amendment right to the effective
assistance of counsel due to conduct during the penalty phase). The Supreme Court has
also previously extended the Sixth Amendment right to counsel to a separate deferred
sentencing proceeding following probation revocation. See Mempa v. Rhay, 389 U.S. 128,
136-37 (1967) (extending the right to counsel to a “revocation of probation or a deferred
sentencing” that does not occur contemporaneously with a guilty plea). If the Sixth
Amendment right to counsel extends to revocation proceedings, then the right to selfrepresentation under that Amendment surely extends to the far-higher stakes setting of
capital sentencing.20
F.3d 488, 494 (9th Cir. 2010) (parole revocation proceeding); United States v. Hodges, 460
F.3d 646, 650 (5th Cir. 2006) (parole revocation hearing)).)
20 The Fifth Circuit has directly addressed the question before us, concluding on a
mandamus petition that “[n]othing in Martinez can be read to push the ending point for the
Sixth Amendment right of self-representation in criminal proceedings back to the end of
the guilt/innocence phase of a bifurcated trial proceeding.” United States v. Davis (Davis
I), No. 01-30656, 2001 WL 34712238, at *2 (5th Cir. July 17, 2001). In dealing with a
second petition for mandamus in the same case, the Fifth Circuit reiterated its holding and
52
That the right to self-representation does not have a long history of being applied to
sentencing proceedings is not reason enough to exclude it from the holding in Faretta.
Respect for the autonomy of the defendant should continue through all phases of trial.
Faretta, 422 U.S. at 819-20, 832. There is ample reason to apply the same rights as are
granted at the guilt phase of trial because penalty decisions were, as a matter of historical
practice, made at essentially the same time as the decision on guilt. See Haymond, 139 S.
Ct. at 2379 (“[F]ounding-era prosecutions traditionally ended at final judgment,” and “at
that time, . . . questions of guilt and punishment both were resolved in a single proceeding
subject to the Fifth and Sixth Amendment’s demands.” (internal quotation marks and
citation omitted)). The relatively recent separation of the guilt and penalty phases of capital
trials should not bring about a change in rights.
The autonomy-based right to self-representation, as expressed in Faretta, remains
equally valid at the penalty phase. Accordingly, we hold that the district court did not err
by allowing Roof to represent himself at the penalty phase of his trial.
held the district court’s imposition of independent counsel during capital sentencing to be
unconstitutional, even though the defendant intended to “employ an admittedly risky
strategy during the penalty phase” of not “presenting traditional mitigating evidence” and
instead “attack[ing] the strength of the government’s case as to his guilt.” United States v.
Davis (Davis II), 285 F.3d 378, 384 (5th Cir. 2002). Refusing to present mitigation
evidence, it said, was a tactical decision, and the defendant’s “right to self-representation
encompasses the right to direct trial strategy.” Id. at 384-85. The Seventh Circuit and
several state courts have also held that defendants have the right to represent themselves
during capital sentencing. See Silagy v. Peters, 905 F.2d 986, 1006-08 (7th Cir. 1990);
Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999); State v. Brewer, 492 S.E.2d 97, 99
(S.C. 1997); People v. Coleman, 660 N.E.2d 919, 937-38 (Ill. 1995); Bishop v. State, 597
P.2d 273, 276 (Nev. 1979).
53
D. Issue 6: Neither the Constitution nor the Federal Death Penalty Act
Requires that Mitigation Evidence Be Presented During Capital
Sentencing over a Defendant’s Objection
Roof further contends that, even if his Sixth Amendment right to self-representation
extends through the penalty phase, that right is outweighed by “the Fifth and Eighth
Amendments and Federal Death Penalty Act (‘FDPA’)[, which] require capital juries to
consider mitigation” and prevent Roof from keeping mental health mitigation evidence
from the jury by “doing nothing.”21 (Opening Br. at 121-22.) The district court rejected
that argument, and so do we.22 The Sixth Amendment right to self-representation remains
firmly in effect through capital sentencing, and the Supreme Court has not indicated that
the Eighth Amendment, or any other Amendment, requires mitigation evidence.
Additionally, the FDPA does not require the presentation of mitigation evidence; it requires
only that defendants be given the opportunity to have such evidence considered.
We have previously said that whether a capital defendant may choose to represent
himself and keep an important mitigation circumstance from the jury is an “open question.”
See Billings v. Polk, 441 F.3d 238, 254 (4th Cir. 2006) (“[I]t remains an open question
whether the state’s important—indeed, constitutionally mandated—interest in structuring
its sentencing proceedings so as to reserve the death penalty for those most deserving of it
21 And there is no dispute that mental health mitigation evidence was significant in
Roof’s case. As the district court said, “any competent counsel would insist on asserting a
mental health defense.” (J.A. at 1563.)
22 We review constitutional questions de novo. United States v. Malloy, 568 F.3d
166, 176 (4th Cir. 2009).
54
must give way to any interest the defendant may have in keeping a mitigating circumstance
from the jury.”). Being squarely presented with the question now, under the specific
circumstances of this case, we decline to invoke the Eighth Amendment to dilute the
potency of the Sixth. Cf. Agostini v. Felton, 521 U.S. 203, 237 (1997) (explaining that if a
Supreme Court precedent controls, “yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly controls,
leaving to [the Supreme] Court the prerogative of overruling its own decisions” (citation
omitted)). The specific circumstances here include the fact that Roof did present several
mitigating factors for the jury’s consideration.
23
If Roof’s comment is taken at face value—that he self-represented and did “nothing,”
in derogation of the Eighth Amendment—then the argument has no foundation in the
record because he did not do “nothing.” (Opening Br. at 121-22.) He submitted nine
mitigating factors to the jury, which found six in his favor.24 More to the point, however,
Roof never demonstrates why the Eighth Amendment requires the presentation of mental
health mitigation evidence specifically, particularly for a defendant already found
competent to stand trial.
23 The proposed mitigating factors were drafted and submitted before trial by
defense counsel. But when Roof represented himself at the penalty phase, he proceeded
on the basis of those same mitigating factors.
24 Although Roof did not technically present evidence, six of his mitigating factors
were unrebutted and effectively treated as stipulated facts.
55
As noted earlier, supra note 20, the Fifth Circuit in United States v. Davis (Davis II)
rejected the same argument that Roof advances, overturning a decision to appoint
independent counsel to fulfill what the district court there viewed as an Eighth Amendment
mandate to present mitigation evidence. 285 F.3d 378, 384-85 (5th Cir. 2002); United
States v. Davis, 180 F. Supp. 2d 797, 798-99 (E.D. La. 2001). The court observed that
“[t]he district court provide[d] no federal statutory authority for appointing an independent
counsel to present mitigation evidence in the penalty phase of a capital case.” Davis II,
285 F.3d at 382. It then held that Faretta taught otherwise: “Faretta teaches us that the
right to self-representation is a personal right[] [and] cannot be impinged upon merely
because society, or a judge, may have a difference of opinion with the accused as to what
type of evidence, if any, should be presented in a penalty trial.” Id. at 384.
The Fifth Circuit is not alone. The Seventh Circuit has likewise held that the Eighth
Amendment does not outweigh the right to self-representation and require the presentation
of mitigation evidence. See Silagy v. Peters, 905 F.2d 986, 1007-08 (7th Cir. 1990)
(“Although it is evident that such a decision [not to present mitigation evidence] on the part
of a death-eligible defendant may impact the jury’s decision-making process, we do not
believe that the right which Faretta grants can or should be contingent on this factor.”). So
have state courts. See Bishop v. State, 597 P.2d 273, 276 (Nev. 1979) (holding that the
defendant “had a Sixth Amendment right not to have counsel forced upon him” despite
declining to present mitigation evidence); People v. Coleman, 660 N.E.2d 919, 937 (Ill.
1995) (“We are not persuaded by defendant’s argument that the heightened need for
56
reliability in capital cases justifies forcing the accused to accept representation by
counsel.”).
We agree with those courts and hold that the Sixth Amendment protects the right to
self-representation at capital sentencing even when, as here, the defendant chooses not to
present a mitigating factor to the jury. Roof asks that we adopt the reasoning from the
dissenting opinion in Davis II.
25 His argument is grounded in the idea that, under the
Eighth Amendment, a defendant cannot waive procedural safeguards out of a desire to
obtain a death sentence. But that position, broadly stated, has been rejected by the Supreme
Court. See Gilmore v. Utah, 429 U.S. 1012, 1013 (1976) (terminating a stay of execution
by permitting the defendant to waive his right to appeal); id. at 1015 n.4 (Burger, C.J.,
concurring) (noting that the defendant “did not care to languish in prison for another day”
(internal quotation marks omitted)); cf. id. at 1018 (White, J., dissenting) (favoring a
25 According to that dissent (and to Roof), the right to self-representation does not
extend to the right to choose death for oneself:
Davis intends to incur the death penalty by presenting no adversary trial
defense whatsoever. The majority errs grievously in interpreting the
Supreme Court’s cases as holding that a criminal defendant’s right of selfrepresentation is absolute and that the trial court is therefore powerless to
exercise any significant supervision or regulation of the defendant’s use of
that right.
United States v. Davis (Davis II), 285 F.3d 378, 385-86 (5th Cir. 2002) (Dennis, J.,
dissenting) (footnote omitted). And like Roof, that dissent relies on the Supreme Court’s
plurality opinion in Woodson v. North Carolina, which noted a “qualitative difference”
between death and life in prison, and therefore “a corresponding difference in the need for
reliability in the determination that death is the appropriate punishment in a specific case.”
428 U.S. 280, 305 (1976) (plurality opinion); see also Gregg v. Georgia, 428 U.S. 153,
190 (1976) (holding that “accurate sentencing information is an indispensable prerequisite
to a reasoned determination of whether a defendant shall live or die”).
57
decision that would have allowed the defendant’s mother to act as his “next friend” and
challenge the “constitutionality of the Utah death penalty statute” on remand); Stewart v.
LaGrand, 526 U.S. 115, 119 (1999) (“By declaring his method of execution, picking lethal
gas over the State’s default form of execution—lethal injection—[the defendant] has
waived any objection he might have to it.”). It has permitted a capital defendant to forfeit
an appeal challenging the constitutionality of a death-penalty statute, Gilmore, 429 U.S. at
1013, and we cannot say that the presentation of a particular kind of mitigation evidence
(the mental health mitigation evidence that Roof chose not to present) is more important to
a rigorous capital punishment process than appellate review of the conviction and sentence.
In sum, we conclude that Roof’s constitutional rights were faithfully considered and
enforced when the district court permitted him to represent himself during the penalty
phase of trial and to not present mitigation evidence.
Turning briefly to his argument under the FDPA, we conclude that that statute does
not require the presentation of mitigation evidence to the sentencing authority.26 Roof
contends that Congress recognized what he calls the Eighth Amendment’s mitigation
imperative when it included in the FDPA a requirement that juries be given mitigation
evidence.
27 But the FDPA describes the presentation of mitigation evidence in permissive
26 The FDPA provides that the jury shall recommend by unanimous vote whether
death is appropriate, 18 U.S.C. § 3593(e), and “[u]pon a recommendation . . . the court
shall sentence the defendant accordingly.” Id. § 3594 (emphasis added).
27 Roof cites two sections of the Act that require the factfinder to consider the
mitigation evidence that has been presented. See 18 U.S.C. § 3592(a)(8) (“In determining
whether a sentence of death is to be imposed on a defendant, the finder of fact shall
58
terms, and only then requires that the factfinder consider such evidence. See 18 U.S.C.
§ 3593(c) (instructing that a “defendant may present any information relevant to a
mitigating factor” at capital sentencing and the prosecution “may present any information
relevant to an aggravating factor” (emphases added)). There is no ambiguity, and that
reading is consistent with the demands of the Sixth Amendment.28
E. Issue 7: Roof’s Waiver of Counsel Was Knowing, Voluntary, and
Intelligent
Roof next argues that his waiver of counsel before voir dire was invalid because he
was misinformed about the role of standby counsel and because he was not informed that
he could “proceed with counsel at jury selection and guilt, and self-represent at penalty.”
(Opening Br. at 127.) Both arguments lack merit.29
1. Legal Standard
A defendant’s “assertion of the right of self-representation . . . must be (1) clear and
unequivocal; (2) knowing, intelligent and voluntary; and (3) timely.” United States v.
Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000) (internal citations omitted). The requirement
consider any mitigating factor, including . . . factors in the defendant’s background . . . that
mitigate against imposition of the death sentence.” (emphasis added)); id. § 3593(b), (c)
(“[I]nformation may be presented as to any matter relevant to the sentence, including any
mitigating or aggravating factor permitted or required to be considered under section
3592.” (emphasis added)).
28 Even if we viewed the FDPA as ambiguous, we would avoid interpreting it in a
manner that violates defendants’ autonomy rights under the Sixth Amendment. United
States v. Simms, 914 F.3d 229, 251 (4th Cir. 2019) (en banc).
29 “Determination of a waiver of the right to counsel is a question of law, which we
review de novo.” United States v. Owen, 407 F.3d 222, 225 (4th Cir. 2005).
59
for a clear and unequivocal waiver both protects defendants against an inadvertent waiver
by “occasional musings on the benefits of self-representation” and prevents defendants
from “taking advantage of and manipulating the mutual exclusivity of the rights to counsel
and self-representation.” Id. at 558-59 (citation omitted). Because the right to counsel is
“preeminent and hence, the default position,” trial courts must “indulge in every reasonable
presumption against [its] relinquishment.” United States v. Ductan, 800 F.3d 642, 649 (4th
Cir. 2015) (internal quotation marks and citations omitted).
The Supreme Court has not “prescribed any formula or script to be read to a
defendant who states that he elects to proceed without counsel.” Iowa v. Tovar, 541 U.S.
77, 88 (2004). But the trial court must nevertheless “assure itself that the defendant knows
the charges against him, the possible punishment and the manner in which an attorney can
be of assistance,” United States v. King, 582 F.2d 888, 890 (4th Cir. 1978), as well as “the
dangers and disadvantages of self-representation.” Ductan, 800 F.3d at 649; see also
Tovar, 541 U.S. at 88-89 (emphasizing that a defendant “must be warned specifically of
the hazards ahead”). Such a determination is made “by examining the record as a whole”
and “evaluating the complete profile of the defendant and the circumstances of his decision
as known to the trial court at the time.” United States v. Singleton, 107 F.3d 1091, 1097
(4th Cir. 1997).
2. Roof Was Appropriately Aware of His Role and Responsibilities
The government met its “heavy burden” of proving that Roof’s waiver of counsel
was valid. See Brewer v. Williams, 430 U.S. 387, 402 (1977). First, the district court held
a Faretta hearing and outlined to Roof the charges and punishment that he faced. It then,
60
in a series of questions and answers, ensured that Roof knew that self-representation would
be hazardous and would render his defense less effective. Next, it outlined Roof’s personal
responsibilities, confirming with him that he would be the one to “make as-needed motions
or objections, ask questions, [and] make arguments.” (J.A. at 2134-35.) Roof also
confirmed that he understood that he would “be performing in a courtroom . . . throughout
the trial.” (J.A. at 2135.)
But we do not rely on the Faretta colloquy alone in reaching our conclusion. A
review of “the record as a whole,” Singleton, 107 F.3d at 1097, reveals that the Faretta
hearing was not the district court’s first encounter with Roof’s desire to self-represent.
Roof’s confirmation at the Faretta hearing that he understood what self-representation
entailed was consistent with his prior statements to the court regarding his desire to manage
the evidence presented and his understanding of the proceedings, the potential punishment
for the charged offenses, and the benefits of counsel. The Faretta colloquy in combination
with those past statements convinces us that Roof’s waiver was properly considered and
knowingly entered.
Roof argues that his waiver was neither knowing nor intelligent because the district
court told him that standby counsel “would be available to assist [him] if [he] desired that
assistance” (J.A. at 2133), without defining what “assist” means. Such a statement, Roof
argues, muddied his understanding of his own personal responsibilities and those of his
counsel.
If he was confused, though, it was certainly not the district court’s fault. The court
was not obligated to precisely define the role of standby counsel. And far from misleading
61
Roof about that role, it pinpointed specific ways that standby counsel could help Roof. The
court in fact permitted standby counsel to fully “assist” Roof—to sit at Roof’s table, advise
him about potential jurors, pass him notes, confer during the proceedings, and provide him
with suggested voir dire questions. Indeed, the court encouraged Roof to take time to
consult with standby counsel. By way of limitation, the court simply asked that standby
counsel not serve as co-counsel and that Roof, as his own representative, speak for himself
when addressing the court.
Those instructions were consistent with both the district court’s assurance that
standby counsel could assist Roof and with the court’s confirmation that Roof retained the
obligation to “make as-needed motions or objections, ask questions, [and] make
arguments.” (J.A. at 2134-35.) Those instructions are also consistent with our precedent
on self-representation. See Frazier-El, 204 F.3d at 559 (“A defendant who vacillates at
trial places the trial court in a difficult position because it ‘must traverse . . . a thin line
between improperly allowing the defendant to proceed pro se, thereby violating his right
to counsel, and improperly having the defendant proceed with counsel, thereby violating
his right to self-representation.’” (alteration in original) (quoting Fields v. Murray, 49 F.3d
1024, 1029 (4th Cir. 1995) (en banc))).
Roof further argues that both his and his counsel’s attempts to have counsel step in
to make objections and to ask questions during voir dire show Roof’s lack of knowledge
about his role in self-representation. But Roof’s waiver was knowing and intelligent even
if he later wanted to bend the rules and have standby counsel assume the role of co-counsel.
Over the course of the voir dire, as both the personal responsibilities of Roof and the precise
62
role of standby counsel became more apparent, Roof confirmed that he understood his role
by continuing to self-represent despite the district court’s offers for him to relinquish that
role.
In particular, when Roof faced difficulties with the logistics of self-representation,
the district court twice gave Roof the option of withdrawing from self-representation. The
court first said to standby counsel:
I have kept you and your team in place, A, to assist; and, B, should Mr. Roof
reconsider his decision that you will be here and ready to assume a different
role.
(J.A. at 2407.) At a later point, the court directly addressed Roof and said:
[Representation] was a challenging and daunting endeavor to do by yourself.
And I say that if through this process you wish to reconsider that decision
and to relinquish your role in self-representation, I would consider that.
That’s up to you . . . .
(J.A. at 2561-62.) Roof did not give up his right to self-representation in response to either
of those comments. Given the Faretta colloquy and Roof’s actions before and after the
hearing, we conclude that Roof did not base his self-representation decision on a
misunderstanding about the role of standby counsel.
3. The District Court Need Not Have Informed Roof of the Ability to Selectively
Use Counsel for Different Parts of the Case
Roof also argues that his waiver was invalid because, during his Faretta hearing, he
was not “advised that he could proceed with counsel at voir dire and guilt, but self-represent
at penalty.” (Opening Br. at 130-31.) The district court’s failure to provide a timely
explanation, Roof contends, “forced Roof into a false choice” and caused him to be “alone
for critical voir dire.” (Opening Br. at 130-31.)
63
Although we have permitted defendants to be represented by counsel during specific
phases of litigation, see United States v. Hilton, 701 F.3d 959, 964-65 (4th Cir. 2012), we
have never required district courts to authorize a phase-by-phase approach, much less that
the courts must help defendants strategize their self-representation by informing defendants
of such a possibility when the defendant requests a Faretta waiver. Because we see no
basis to impose such a requirement, Roof’s argument fails.
F. Issue 8: The District Court Did Not Err in Granting Roof’s Motion to
Waive Counsel
Roof argues that the district court failed to appreciate the extent of its authority to
exercise discretion with regard to his untimely Faretta motion, and that such
misapprehension constitutes an abuse of discretion. We disagree and note the oddity of
arguing that the court erred in granting Roof the very relief he requested.30
Discretion may be abused by a “failure or refusal, either express or implicit, actually
to exercise discretion, deciding instead as if by general rule, or even arbitrarily, as if neither
by rule nor discretion.” James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (citing Will v.
Calvert Fire Ins. Co., 437 U.S. 655, 661-62 (1978)). Here, the district court stated that
because
[its] discretion is not boundless—the defendant’s constitutional right to
represent himself must be respected. The decision whether to allow the
defendant to exercise that right is within the Court’s discretion in the sense
30 The parties agree that because Roof filed his Faretta motion after “meaningful
trial proceedings . . . commenced,” the decision to grant or deny his untimely motion
“rest[ed] within the sound discretion of the trial court.” See United States v. Lawrence,
605 F.2d 1321, 1325 (4th Cir. 1979). We, in turn, review the trial court’s exercise of that
discretion under the abuse-of-discretion standard. Id.
64
that the defendant may not exercise his rights abusively and the Court has
discretion to decide what is or is not an abuse.
(J.A. at 2298 (citing United States v. Hilton, 701 F.3d 959, 965 (4th Cir. 2012)).)
That wording is under-inclusive because although a defendant’s abuse of the right
to self-representation may be considered by a district court in exercising discretion, it does
not limit the court’s authority to grant or deny an untimely request. See generally Hilton,
701 F.3d at 965 (“[A] defendant’s request for self-representation is a matter submitted to
the sound discretion of the trial court.”).
In any event, the district court did in fact exercise its discretion when it considered
whether Roof had invoked his right in order to disrupt or delay the proceedings, and it
found that he had not. The court instead concluded that Roof was “motivated by disdain
for a defense based on mental health evidence” and he “reacted immediately when he
learned Defense Counsel intended to present such evidence.” (J.A. at 2298.) That
conclusion is fully supported by the record. Roof fails to indicate how the court would
have analyzed the issue any differently or reached a different conclusion if it had
considered factors others than an abusive invocation of the right to self-representation. The
court’s reasoning and decision align with our understanding of the purpose of the timeliness
requirement—“to minimize disruptions, to avoid inconvenience and delay, to maintain
continuity, and to avoid confusing the jury.” United States v. Lawrence, 605 F.2d 1321,
1324 (4th Cir. 1979) (quoting United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978)).
The district court therefore did not abuse its discretion in granting Roof’s Faretta motion
to represent himself.
65
G. Issue 9: The District Court Did Not Err in Finding Roof Competent to
Self-Represent
Roof next contends that, even if he was competent to stand trial, he was not
competent to represent himself because he is what the Supreme Court has called a “grayarea defendant.” See Indiana v. Edwards, 554 U.S. 164, 173, 177-78 (2008) (“[T]he
Constitution permits States to insist upon representation by counsel for those competent
enough to stand trial under Dusky [v. United States, 362 U.S. 402 (1960),] but who still
suffer from severe mental illness to the point where they are not competent to conduct trial
proceedings by themselves.”). He correctly points out that the ability to stand trial without
counsel requires a level of competence that exceeds that required to stand trial with counsel.
See United States v. Barefoot, 754 F.3d 226, 233-34 (4th Cir. 2014) (distinguishing general
competency from self-representation competency). And Roof argues that “capital
defendants must be held to a higher standard [than other defendants] to satisfy Edwards.”
(Opening Br. at 149.) Again, we are unpersuaded that the district court erred.
31
To be a gray-area defendant, Roof would have to lack the mental capacity to perform
the basic tasks of self-representation. See United States v. Bernard, 708 F.3d 583, 589-90
(4th Cir. 2013). Although a high-IQ defendant could conceivably lack the mental capacity
to perform such tasks by, for example, suffering from psychosis and hallucinations, the
district court reasonably found that Roof—whose full-scale IQ of 125 places him in the
31 Whether the district court applied the correct standard for gray-area competency
is a legal question we review de novo. Panetti v. Stephens, 727 F.3d 398, 409 (5th Cir.
2013). We review the district court’s determination of competency for clear error. United
States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005).
66
95th percentile of the general population, despite average processing speed—was not
suffering from any such debilitating illnesses.
Roof instead allegedly suffered from what several of his expert witnesses described
as “disorganized thinking, reduced processing speed, memory problems, and difficulty
integrating new information,” almost all as a result of “mild frontal system dysfunction.”
(Opening Br. at 141 (citing J.A. at 1500, 1695, 5308, 5359, 5658-59).) As the government
correctly points out, however, defendants like Roof can suffer “mental illness while having
the intellectual capacity to self-represent.” (Answering Br. at 109.) Cf. United States v.
Brugnara, 856 F.3d 1198, 1214 (9th Cir. 2017) (finding that a defendant with “highaverage, nearly superior intellectual ability,” bipolar disorder, delusional disorder, and
narcissistic personality disorder had the capacity to self-represent); United States v.
McKinney, 737 F.3d 773, 775, 779 (D.C. Cir. 2013) (finding that a defendant with bipolar
disorder, chronic anxiety, and insomnia had the capacity to self-represent).
Perhaps the best evidence that Roof indeed had the mental capacity to perform the
basic tasks of self-representation is that he did perform them. He participated in jury
selection, prompting standby counsel to remark that “on average we’ve done very well”
(J.A. at 2289), and the district court noted that his cross-examinations of Drs. Ballenger
and Loftin “demonstrated an aptitude for witness cross-examination that [was]
extraordinary for a pro se litigant.” (J.A. at 6966; see also J.A. at 6961-62.) At the penalty
phase, he delivered an opening statement, argued against aggravating factors, challenged
the prosecution, and made a closing argument.
67
Witnessing this, the district court noted that “if [Roof] were incompetent to
represent himself, almost no defendant would be competent to represent himself.” (J.A. at
6956.) That evaluation is significant because “[t]he district court [i]s in the best position
to observe [the defendant] and its determinations during trial are entitled to deference.”
Bernard, 708 F.3d at 593. Roof’s statement now that “[t]he evidence counsel proffered at
the second [competency] hearing . . . established beyond doubt his crippling anxiety,
disordered thinking, reduced processing speed, memory problems, difficulty integrating
new information, and fixation on trivial details,” even if containing some truth, does not
mean that he was necessarily incompetent. (Opening Br. at 145 (citing J.A. at 5463, 5977,
5991).) The district court’s analysis of Roof’s competency was thorough and incorporated
both the court’s observations and the opinions of the various experts.
Roof argues that the need for heightened reliability in death penalty cases means
that the Edwards rule protecting gray-area defendants should apply more stringently.
Assuming that is correct, however, the district court’s findings show Roof to be well
outside the gray area. As the court said, “if [he] were incompetent to represent himself,
almost no defendant would be competent to represent himself.” (J.A. at 6956.) His
argument, in effect, is that all criminal defendants in death penalty cases should have
mandatory appointed counsel. Cf. Lenhard v. Wolff, 444 U.S. 807, 807-08 (1979) (denying
7 to 2 a stay of execution on standing grounds for a defendant who waived his right to
counsel); id. at 811 (Marshall, J., dissenting) (“Society’s independent stake in enforcement
of the Eighth Amendment’s prohibition against cruel and unusual punishment cannot be
68
overridden by a defendant’s purported waiver.”). That argument is addressed and rejected
above. See supra Section IV.D.
H. Issue 10: The District Court Did Not Err in Denying Roof Further
Assistance from Standby Counsel or Additional Accommodations
Roof next argues that even if his Faretta waiver were knowing and intelligent, the
district court still erred in rejecting his requests for additional assistance. But a district
court has wide-ranging discretion to determine the appropriate role of standby counsel and
the extent of accommodations for pro se defendants. United States v. Lawrence, 161 F.3d
250, 253 (4th Cir. 1998) (noting that “the district court, in keeping with its broad
supervisory powers, has . . . broad discretion to guide what, if any, assistance standby, or
advisory, counsel may provide to a defendant conducting his own defense”). Roof argues
that the court “unreasonably denied [his] requests for necessary accommodations,” thereby
undermining his “dignity and autonomy” while denying him “a fair chance to present his
case.” (Opening Br. at 149.) See McKaskle v. Wiggins, 465 U.S. 168, 177 (1984). We
disagree.
32
1. Standby Counsel
Faretta does not hold that standby counsel’s participation must be allowed; only
that such participation is permitted. See Faretta v. California, 422 U.S. 806, 834 n.46
(1975) (explaining that a trial judge “may—even over objection by the accused—appoint
32 We review a district court’s determination of the role of standby counsel under
the abuse-of-discretion standard. United States v. Lawrence, 161 F.3d 250, 253 (4th Cir.
1998).
69
a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be
available to represent the accused in the event that termination of the defendant’s selfrepresentation is necessary” (emphasis added)). The alternate reading of Faretta as urged
by Roof is meritless.
Roof also mischaracterizes McKaskle. The Supreme Court there held that a district
court can constitutionally appoint standby counsel to operate in “hybrid” fashion, meaning
in a consultative role and in a more substantial, visible role; it did not hold that such hybrid
standby assistance for defendants is constitutionally mandated. McKaskle, 465 U.S. at 183.
This court has since reiterated the point. See, e.g., United States v. Singleton, 107 F.3d
1091, 1103 (4th Cir. 1997) (rejecting a “contention that the Constitution requires that
[defendants] be provided with a hybrid type of representation”); Lawrence, 161 F.3d at
253.
2. Accommodations
As discussed, the district court gave Roof several accommodations. It allowed
standby counsel to recommend questions, give advice, and even suggest objections.
Although Roof correctly alleges that the court denied counsel’s requests for some
additional accommodations, such as shorter trial days, intermittent breaks, and advancenotice of government testimony, those denials were not unreasonable. Contrary to Roof’s
conclusory assertions that the court’s denials of his requests were arbitrary and irrational,
the court explained that it saw he was “extremely engaged,” even without such
accommodations, at his competency hearing. (J.A. at 3585.) We find no abuse of
discretion in those rulings by the district court.
70
V. ISSUES RELATED TO DEATH VERDICT
Roof also asserts that “errors fundamentally undermined [the] weighing process”
that jurors used to determine whether the death sentence was justified at the penalty phase.
(Opening Br. at 158.) First, Roof argues that the district court erroneously precluded
mitigating evidence, that the government capitalized on that error with its improper
remarks during closing argument, and that the district court’s failure to respond to the jury’s
clarification requests exacerbated the government’s errors, ultimately stripping the jury of
the necessary means to meaningfully consider certain mitigating factors. Second, he
contends that a victim’s remarks during the guilt phase wrongly influenced the jury’s death
verdict. Third, Roof argues that “the government flooded its penalty-phase presentation
with improper evidence and argument on the victims’ worthiness,” impermissibly tying its
request for a death sentence with the victims’ status as “good and religious people.”
(Opening Br. at 159.) And fourth, he asserts that his age and mental capacity rendered him
ineligible to receive the death sentence. We are unpersuaded and find no error.
A. Death Verdict Background
1. Aggravating and Mitigating Factors
Several months before trial, the government submitted notice of its intent to seek
the death penalty, listing four gateway intent factors, 33 three statutory aggravating
33 If a defendant is convicted of a death-eligible offense, then, at the penalty phase,
the government must first establish that the defendant had the mental state described in at
least one of the four gateway intent factors enumerated under 18 U.S.C. § 3591(a)(2)(A)-
(D). Specifically, the government must demonstrate that the defendant:
71
factors, 34 and six non-statutory aggravating factors that it “propose[d] to prove . . . as
justifying a sentence of death.” (J.A. at 146.) See 18 U.S.C. § 3593(a)(2). The nonstatutory aggravating factors identified in the government’s notice and relevant to Roof’s
challenges on appeal are: Roof “attempted to incite violent action by others,” “caused
injury, harm, and loss . . . to the family, friends, and co-workers of those individuals” that
he killed, and targeted worshippers at Mother Emanuel “in order to magnify the societal
impact of [his] offenses.”35 (J.A. at 149-50.)
Defense counsel disclosed Roof’s intent to offer evidence of mitigating factors,
including two non-statutory mitigating factors suggesting that “a sentence of life in prison
(A) intentionally killed the victim; (B) intentionally inflicted serious bodily
injury that resulted in the death of the victim; (C) intentionally participated
in an act, contemplating that the life of a person would be taken or intending
that lethal force would be used in connection with a person, other than one
of the participants in the offense, and the victim died as a direct result of the
act; or (D) intentionally and specifically engaged in an act of violence,
knowing that the act created a grave risk of death to a person, other than one
of the participants in the offense, such that participation in the act constituted
a reckless disregard for human life and the victim died as a direct result of
the act.
18 U.S.C. § 3591(a)(2)(A)-(D). Here, the government proposed to prove all four gateway
intent factors.
34 The government must establish the existence of at least one statutory aggravating
factor enumerated under 18 U.S.C. § 3592(c). The government proposed to prove three
statutory aggravating factors: Roof (1) “intentionally killed or attempted to kill more than
one person in a single criminal episode,” id. § 3592(c)(16); (2) engaged in “substantial
planning and premeditation to cause the death of a person,” id. § 3592(c)(9); and (3) killed
three individuals who were “particularly vulnerable due to old age.” Id. § 3592(c)(11).
35 The government also proposed to prove three additional non-statutory
aggravating factors: Roof endangered the safety of others, “his animosity towards African
Americans played a role in the murders,” and he demonstrated no remorse. (J.A. at 150.)
72
without the possibility of release will be especially onerous” because: (1) the danger of
violence Roof will face from other inmates “[d]ue to his small size, youth, and
notoriety . . . will require that he serve his life sentence under isolating conditions of
confinement”; and (2) “he will serve his entire life sentence in fear of being targeted by
other inmates.”36 (J.A. at 464.) The government moved to exclude both of those mitigating
factors, arguing that “information about potential future conditions of confinement is
irrelevant as mitigation because it does not relate to the defendant’s character, background
or record, or to the circumstances of his crimes.” (J.A. at 470.) The district court granted
the motion to preclude “evidence in support of speculation” about Roof’s “future
conditions of confinement if sentenced to life imprisonment.” (J.A. at 494.) The court
reasoned that “[i]t is inappropriate to ask the jury to imagine conditions at some imaginary
prison.” (J.A. at 493.)
Defense counsel subsequently filed notice of two additional non-statutory
mitigating factors: “Dylann Roof poses no significant risk of violence to other inmates or
prison staff if imprisoned for life”; and, “[g]iven his personal characteristics and record,
Dylann Roof can be safely confined if sentenced to life imprisonment.” (J.A. at 496.) We
refer to these two collectively as the “lack-of-future-dangerousness” mitigating factors.
36 They also identified one statutory mitigating factor—that Roof had no significant
prior criminal history—and six other non-statutory mitigating factors: (1) Roof was 21 at
the time of the offense; (2) he offered to plead guilty; (3) he cooperated with arresting
authorities; (4) he confessed to his crimes; (5) he had no prior history of violence; and
(6) he could be redeemed.
73
The government did not oppose either factor, which appeared on the verdict form as
mitigating factors 8 and 9.
2. Penalty Phase
During the penalty phase, the government presented victim-impact testimony from
twenty-three witnesses. The district court overruled Roof’s objection to the number of
witnesses. The government also introduced, among other things, a video of Reverend
Pinckney teaching history at Mother Emanuel; an audio clip of Reverend MiddletonDoctor singing a hymn; an audio clip of Reverend Coleman-Singleton praying; a video of
a song written about Reverend Coleman-Singleton by her son; photos of Reverend
Pinckney preaching; a photo of Reverend Simmons in church; photos of Tywanza Sanders,
Reverend Simmons, Reverend Thompson, and Reverend Coleman-Singleton at a
baccalaureate ceremony; and an audio clip of a voicemail left by Reverend Pinckney for a
sick friend. Roof objected in real time only to the audio clip of Reverend ColemanSingleton praying, the video of the song about Reverend Coleman-Singleton, and the
baccalaureate-ceremony photos. The court overruled the objections. After one of the
victim-impact witnesses testified, however, the court reminded the jury that “victim
testimony is limited to . . . personal characteristics of the victims and the emotional impact
on the family. You should disregard any other comments other than those.” (J.A. at 6367.)
Before closing argument, Roof filed a motion in limine, preemptively objecting to
the prosecution’s “reference[] to the ‘particularly good’ victims . . . and similar references,
especially references that imply or directly suggest a comparison to the defendant” or “to
what ‘God’ told the victims or witnesses, or what witnesses feel the victims ‘wanted’ the
74
jury to see.” (J.A. at 6519.) The district court permitted the prosecution to describe the
victims as “particularly good individuals,” but prohibited the use of comparative worth
arguments. (J.A. at 6636-37.) During closing argument, upon recapping the victim-impact
evidence, the prosecution concluded that Roof killed “extraordinarily good” and “great”
people of faith, including some of “the best among us.” (J.A. at 6668, 6703.) Roof did not
object. The court still instructed the jury that it “must not consider . . . religious
beliefs . . . of either defendant or any victim.” (J.A. at 6747 (jury charge).)
In addition to the victim-impact evidence, the jury heard from Charleston County
Sheriff’s Officer Lauren M. Knapp, who monitored the jail for safety and security,
including screening incoming and outgoing mail. She testified about Roof’s prison
writings, including an outbound letter that she had intercepted. Roof wrote: “I realized it
was worth it. . . . I did what I thought could make the biggest wave, and now the fate of our
race is in the hands of our brothers to continue to live freely.” (J.A. at 6196.) Roof did not
cross-examine Knapp and never rebutted her claims about his letter. In its closing
argument, the prosecution referred to those writings as “the jailhouse manifesto,” where
Roof “attempts to incite violence in others, to agitate race relations.” (J.A. at 6686.)
During closing argument, the prosecution told the jury to “consider any facts or
factors based on the evidence that you believe mitigate against the imposition of the death
penalty,” but then claimed that some of the mitigating factors “are simply not true for which
no evidence has been presented.” (J.A. at 6696-97.) The prosecution argued that not only
is there “no evidence” that Roof “does not pose a risk of violence while incarcerated,” but
that the evidence is “quite to the contrary.” (J.A. at 6697.) It said that Roof’s “experience
75
being incarcerated indicates there is quite a risk of violence, violence that he incites,
violence that he encourages, violence that he sends to others to act. That is the risk of
violence from this defendant.” (J.A. at 6697.) The prosecution also told the jurors to ask
themselves “whether there is evidence that he can be safely confined” when what “you
have seen is the defendant sending letters out, writing racist manifestos, continuing what
he has done.” (J.A. at 6697.) And it reiterated that “there’s no evidence to support . . . the
lack of a risk of violence, the safety, all of which the evidence suggests to the contrary.”
(J.A. at 6698.)
The prosecution highlighted the “jailhouse manifesto” in its non-statutory
aggravation argument: Roof “is sending a message. He is trying to get others to
act. . . . [H]e was certainly doing that in his jailhouse manifesto. He is attempting to incite
violence in others, and that weighs heavily.” (J.A. at 6702.)
Roof objected to the prosecution’s reliance on Roof’s mail, arguing that it related to
prison conditions, which the court had “refused to allow me to present evidence” on since
they “weren’t allowed to talk about an imaginary prison.” (J.A. at 6710.) The court
overruled the objection, explaining that its ruling had addressed whether Roof could argue
that he was “unusually vulnerable to danger in prison.” (J.A. at 6711.) It explained that
the prosecution was discussing what Roof “had written while incarcerated . . . [,] which
was motivated to incite violence, and that in prison, you could continue to do the same
thing.” (J.A. at 6710.) It agreed with the prosecution that the evidence “was fair rebuttal
to the mitigators that [you] chose to put in.” (J.A. at 6711.) It also reminded Roof that he
could “argue to the contrary.” (J.A. at 6711.)
76
3. Jury Deliberations
During jury deliberations, standby counsel lodged more objections. They asked the
court to instruct the jury that Roof was “not permitted to introduce evidence about the
conditions of confinement. And, thus, it would not have been possible and was not possible
for this defendant to show that he would not be able or that the Federal Bureau of Prisons
is capable of preventing him from sending out a manifesto or otherwise communicating
with like-minded people on the outside.” (J.A. at 6754-55.) The court responded, “[t]hat’s
not what that goes to,” explaining that the prosecution “was addressing the aggravating
factors inciting violence and that he was a continued threat of this because he was
continuing to write.” (J.A. at 6754.) The court determined that the “inciting others
aggravating factor is broad enough to allow” evidence of Roof’s jailhouse manifesto. (J.A.
at 6757.) Standby counsel also requested the court to instruct the jury that “in light of the
prosecution’s argument that there is no evidence of nondangerousness . . . [,] mitigating
factors can in some circumstances be proven by the lack of evidence,” such as “the lack of
evidence of jail infractions or misconduct.” (J.A. at 6763.) The court denied the request.
The jury sent two questions to the court, both about the lack-of-futuredangerousness mitigating factors. The jury first asked about mitigating factor number eight
on the verdict form (Roof posed no significant risk of violence in prison): “Would he
personally inflict the violence or would he incite violence, need clarification.” (J.A. at
6765.) The court found “the common meaning” of that mitigating factor is “would he
commit acts of violence.” (J.A. at 6766.) Roof agreed that “it means me not harming
anyone” and that “it doesn’t mean inciting.” (J.A. at 6767.) But, after the prosecution
77
argued that Roof chose those particular words and the court should not “further redefine”
the factor and “narrow the scope,” the court declined to clarify the meaning to the jury.
(J.A. at 6767.)
The jury also asked about mitigating factor number nine on the verdict form (Roof
could be safely confined to life in prison): “Please define safe confinement. Does this
include his writing getting out of prison.” (J.A. at 6768.) The government claimed that
the court should not clarify the factor because “the whole point of mitigation is they are to
be read broadly.” (J.A. at 6768.) The court blamed the defense for proposing the lack-offuture-dangerousness mitigating factors, noting that the court did not “really have a right
to define them more precisely.” (J.A. at 6768-69.) Roof’s standby counsel asserted that
“these are the defendant’s mitigating factors” and warned that the “prosecution in effect
would like the jury to use these as aggravating factors.” (J.A. at 6769.) According to the
defense, this interpretation could convert the lack-of-future-dangerousness mitigating
factors into aggravating factors. Ultimately, the court informed the jurors, as to both
questions, that “you need to simply read the mitigating factor[s] as written and use your
common[ ]sense to interpret [them]. It would not be proper to comment further.” (J.A. at
6775.)
The jury unanimously found, beyond a reasonable doubt, all gateway intent and
aggravating factors. It also found that Roof’s mitigating factors existed, with three
exceptions: (1) Roof was not capable of redemption; (2) Roof posed a significant risk of
dangerousness in prison; and (3) Roof could not be safely confined. The jury found that
the aggravating factors sufficiently outweighed the mitigating factors. It unanimously
78
found Roof death-eligible and sentenced him to death on each capital count. The court
entered a sentence of death on Counts 13 through 21 and 25 through 33, and of life
imprisonment without the possibility of release on all other counts.
B. Issue 11: The Court Did Not Improperly Preclude Roof from Presenting
Mitigating Evidence
We now turn to the alleged errors that Roof claims affected the penalty phase of his
trial. The first category of those alleged errors relates to mitigating evidence. Roof
contends that the district court improperly struck two of his proposed mitigating factors
and then precluded him from presenting evidence about his lack of future dangerousness.
He next argues that the prosecutor improperly capitalized on that error during his closing
argument. Finally, Roof asserts that the court failed to adequately address jury questions
about the mitigators that he was allowed to present. We address each in turn below.37
1. The Precluded Mitigating Factors and Evidence of Prison Conditions
The Eighth Amendment and the Federal Death Penalty Act both require that the
finder of fact consider, “as a mitigating factor, any aspect of a defendant’s character or
record . . . that the defendant proffers as a basis for a sentence less than death.” Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)
37 We review de novo preserved constitutional challenges to the mitigating factors,
United States v. Runyon, 707 F.3d 475, 499 (4th Cir. 2013), evidentiary rulings implicating
constitutional claims, United States v. Williams, 632 F.3d 129, 132 (4th Cir. 2011), and
whether the prosecutor’s remarks made during closing argument were improper, United
States v. Collins, 415 F.3d 304, 307 (4th Cir. 2005). A district court’s response to a jury
note seeking clarification is ordinarily reviewed under the abuse-of-discretion standard.
United States v. Alvarado, 816 F.3d 242, 248 (4th Cir. 2016).
79
(plurality opinion)); see also 18 U.S.C. § 3592(a)(8) (describing “[o]ther factors in the
defendant’s background, record, or character . . . that mitigate against imposition of the
death sentence”). Roof contends that the district court erred when it barred him from
submitting the following two mitigating factors to the jury:
Due to his small size, youth, and notoriety, a sentence of life in prison without
the possibility of release will be especially onerous for Dylann Roof, because
the danger of violence he will face from other inmates will require that he
serve his life sentence under isolating conditions of confinement.
A sentence of life in prison without the possibility of release will be
especially onerous for Dylann Roof because he will serve his entire life
sentence in fear of being targeted by other inmates.
(J.A. at 464.) The court granted the government’s motion in limine to exclude both factors,
reasoning that “[i]t is inappropriate to ask the jury to imagine conditions at some imaginary
prison.” (J.A. at 493.) It also precluded any “evidence in support of speculation about
[Roof’s] future conditions of confinement if sentenced to life imprisonment.” (J.A. at 494.)
The two excluded mitigating factors did not seek to prove, as Eddings allows, that
something about Roof’s personal character warranted a “sentence less than death.” 455
U.S. at 110 (citation omitted). Instead, the excluded mitigators sought to prove that a
sentence of life imprisonment would be particularly onerous for Roof. We are not aware
of—and Roof does not identify—any court that has found this to be proper mitigating
evidence. And at least one circuit court has held that the harshness of prison conditions is
not an appropriate mitigating factor. United States v. Johnson, 223 F.3d 665, 674-75 (7th
Cir. 2000). We agree and conclude that the court properly excluded the challenged
mitigators.
80
Roof contends, however, that the two factors that he sought to introduce did not
relate to generalized conditions of confinement, but were “tailored specifically to him”
because they relate to his “small stature, youth, and notoriety.” (Opening Br. at 169.) In
Roof’s view, these characteristics would increase the danger that he faces from other
inmates, which would, in turn, require that prison officials take additional security
measures to keep him safe. Although these excluded factors involve some consideration
of Roof’s character, their import hinges on speculation regarding the hypothetical (and
wholly unsubstantiated) danger of violence that Roof would presumptively face due to his
individual characteristics. The multiple hypotheticals on which the excluded factors rely
negate any meaningful consideration of mitigating information specific to Roof.
Roof responds by citing our decision in Lawlor v. Zook, 909 F.3d 614 (4th Cir.
2018). In Lawlor, we held that the state trial court erred when it excluded from the penalty
phase of a murder case the defense expert’s testimony regarding Lawlor’s low risk of
committing acts of violence in prison. Id. at 629-33. In so ruling, we observed that
evidence of prison conditions “must connect the specific characteristics of the particular
defendant to his future adaptability in the prison environment.” Id. at 631 (quoting Morva
v. Commonwealth, 683 S.E.2d 553, 565 (Va. 2009)). The specific characteristics in Lawlor
involved Lawlor’s lack of violent activity in prison, his (relatively) advanced age, and his
significant contacts with family and friends. Id. at 622-23. Lawlor’s expert was prepared
to opine that these characteristics, specific to Lawlor, demonstrated that he represented a
low risk for committing acts of violence while incarcerated.
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In contrast, Roof’s specific characteristics involve his “small size, youth, and
notoriety.” (J.A. at 464.) He sought to show that, due to them, he would be in constant
danger while in prison and would likely spend his life sentence in isolating conditions,
unlike Lawlor, who sought to show that he was not dangerous. For the reasons set forth
above, the connection between those individualized characteristics and the proposed
mitigators is too tenuous, relying primarily on speculation about conditions at some
imaginary prison.
Roof’s argument also misunderstands the scope of the district court’s evidentiary
ruling. In Lawlor, the trial court had excluded nearly all expert testimony on the issue of
Lawlor’s lack of future dangerousness in prison. Id. at 621. Here, by contrast, the district
court’s prohibition against “evidence in support of speculation about Defendant’s future
conditions of confinement” did not prohibit Roof from introducing evidence tending to
prove his lack of future dangerousness. (J.A. at 494.)
Filings by standby counsel further belie Roof’s current claim that he was barred
from introducing such evidence. In their request for the second competency hearing,
standby counsel expressed their concern that Roof had decided to forgo substantial
mitigation evidence, including “expert testimony regarding the defendant’s good behavior
during pretrial detention, his likely future as a nonviolent and compliant life-term prisoner
if he is not sentenced to death, and the state and federal governments’ ability to safely
manage him in the future.” (J.A. at 5251.) It is thus clear that the defense understood
Roof’s lack of dangerousness (as opposed to the supposed dangerousness of the prison)
was a matter that could be explored as a mitigator and that the court’s earlier ruling about
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prison conditions was not an obstacle. The decision to forgo such evidence was made by
Roof, not by the court. Because Roof was not prohibited from introducing evidence about
his lack of future dangerousness, Lawlor is inapposite.
2. The Prosecutor’s Remarks at Closing Argument
Roof next challenges statements by the prosecutor during closing argument about
the lack-of-future-dangerousness mitigating factors. Roof had submitted those mitigators
to replace the precluded factors discussed above. As noted, they appeared on the verdict
form as mitigating factors 8 and 9:
8. [T]he Defendant poses no significant risk of violence to other inmates or
prison staff if imprisoned for life.
9. [G]iven his personal characteristics and record, the Defendant can be
safely confined if sentenced to life imprisonment.
(J.A. at 6804.)
During closing argument, the prosecutor repeatedly stated that these mitigating
factors were “simply not true” and that the jurors had heard “no evidence” to support them.
(J.A. at 6697.) The prosecutor alluded to the testimony of Lauren Knapp, an officer with
the Charleston County Sheriff’s Office, who had uncovered Roof’s racist and incendiary
writings. This evidence, the prosecutor argued, demonstrated that Roof posed a risk of
violence and could not be safely confined.
A prosecutor’s improper closing argument might “so infect[] the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). Where, as here, “specific guarantees of the Bill
of Rights are involved, [the Supreme] Court has taken special care to assure that
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prosecutorial conduct in no way impermissibly infringes them.” Id. At the same time, we
have recognized that “great latitude is accorded counsel in presenting closing arguments to
a jury.” United States v. Johnson, 587 F.3d 625, 632 (4th Cir. 2009) (citation omitted); see
also id. at 633 (“[T]o parse through a prosecutor’s closing statement for minor infelicities
loses sight of the function of our adversary system, which is to engage opposing views in
a vigorous manner.”). “Thus, while courts should not hesitate to condemn those
prosecutorial comments that truly offend constitutional norms, neither shall we attach
constitutional significance to every verbal fillip, lest we unduly censor the clash of
viewpoints that is essential to adversarial proceedings.” United States v. Runyon, 707 F.3d
475, 507 (4th Cir. 2013).
The prosecutor’s comments at closing here were not improper. Roof contends that
the references to his racist writings and his access to the mail, in tandem with the
prosecutor’s “no evidence” comment, misled the jury to believe that Roof would be free to
send incendiary writings outside prison and that “nothing could be done to prevent his
efforts.” (Opening Br. at 173.) But the “no evidence” statement appropriately highlighted
Roof’s decision to forgo presenting any evidence in support of mitigating factors 8 and 9.
The prosecutor pointed out that Roof wrote a racist jailhouse manifesto expressing again
his racist ideology and that there remained a risk that such writings would incite violence
from others. Whether the “others” that the prosecutor was referring to included fellow
inmates is ambiguous. To the extent that the prosecutor’s comments relate to the outside
world, the measures that prison officials have in place to prevent Roof from communicating
outside the prison are the type of evidence that Roof could have elicited from Officer
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Knapp during cross-examination. But Roof declined to cross-examine Knapp or to
introduce such evidence through his own expert witness. Nor did Roof introduce any
evidence suggesting that he would not (or could not) share his incendiary writings with
other inmates.
Echoing his prior argument, Roof contends that the district court’s evidentiary
ruling precluded him from presenting such evidence. He therefore argues that the
prosecutor’s “no evidence” statements “t[ook] advantage of a lack of evidence it had itself
secured” through its motion in limine. (Opening Br. at 172.) Once again, however, the
record tells a different story. The absence of this evidence was a consequence of Roof’s
decision to present no mitigation evidence—a decision that, as discussed above, caused
standby counsel to question Roof’s competency.
Nor did Roof attempt to clarify the scope of the district court’s order precluding
“evidence in support of speculation about Defendant’s future conditions of confinement.”
(J.A. at 494.) When Roof objected to the prosecutor’s statements at closing argument
regarding his access to the mail, the court summarized the issue addressed by its previous
evidentiary order: “The question [was] if you were unusually vulnerable to danger in
prison, that you couldn’t be safe, and that is what I ruled on.” (J.A. at 6711.) The court
then invited Roof to rebut the prosecutor’s argument regarding his future dangerousness,
saying “[y]ou can argue to the contrary. I mean, that is what it’s all about. This is
argument.” (J.A. at 6711.) But Roof failed to do so.
Roof next contends that the prosecutor improperly vouched for a view of the
evidence when twice stating that mitigating factors 8 and 9 were “not true.” (J.A. at 6697.)
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“Vouching generally occurs when the prosecutor’s actions are such that a jury could
reasonably believe that the prosecutor was indicating a personal belief in the credibility of
the witness.” United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). Here, by contrast,
the prosecutor was not addressing the credibility of any witness, but only the truth (or lack
thereof) of mitigating factors 8 and 9. Regardless of how Roof’s argument is framed, it
lacks merit. The prosecutor’s statement attempted to contrast “factually accurate”
mitigating factors (e.g., Roof’s young age, lack of criminal history, and cooperation with
law enforcement) with those for which Roof presented no evidentiary support. (J.A. at
6698.) Each statement was made in the context of that lack of evidence. Because Roof
presented no evidence about his lack of future dangerousness, the prosecutor’s statement
that these mitigators were “not true” was, at most, a “minor infelicit[y].” See Johnson, 587
F.3d at 633.
3. The Court’s Response to Jury Notes
Roof’s final mitigation argument is that the district court erred when it failed to
adequately respond to two jury questions about mitigating factors 8 and 9. Regarding
mitigating factor 8 (“Defendant poses no significant risk of violence to other inmates or
prison staff” (J.A. at 6804)), the jurors asked: “Would he[, Roof,] personally inflict the
violence or would he incite violence, need clarification.” (J.A. at 6765.) As to mitigating
factor number 9 (“Defendant can be safely confined” (J.A. at 6804)), jurors asked, “Please
define safe confinement. Does this include his writing getting out of prison[?]” (J.A. at
6768.)
86
The district court ultimately instructed the jurors, for both questions, “to simply read
the mitigating factor as written and use your common[ ]sense to interpret it. It would not
be proper to comment further.” (J.A. at 6775.) Roof argues that this response constitutes
an abuse of discretion. He contends that the court’s instruction “left the jury free . . . to
read the mitigating factors broadly, effectively expanding the defense burden of proof on
each.” (Opening Br. at 179.)
Not so. The record makes clear that Roof had read mitigating factors 8 and 9 more
narrowly than the prosecution had, such that “no significant risk of violence” would not
include incitement of violence (as to mitigating factor 8) and “safely confined” would mean
physical confinement (as to mitigating factor 9). Standby counsel therefore asked that the
district court instruct the jury to adopt that narrower interpretation and to “construe[] [these
factors] in favor of the defendant.” (J.A. at 6771.) Because Roof’s broadly worded
mitigating factors could reasonably encompass both interpretations, and because the
prosecution had already submitted rebuttal evidence that aligned with its broader
interpretation, the court did not err in refusing to “pick sides” by narrowing the scope of
mitigating factors 8 and 9.
C. Issue 12: Isolated Witness Testimony Describing Roof as “Evil” and
Stating that He Would Go to “the Pit of Hell” Did Not Render the Trial
Fundamentally Unfair
Roof asserts that victim-witness Felicia Sanders’s unsolicited remarks that he was
“evil” and would go to “the pit of hell” violated his Eighth Amendment rights, see Booth
v. Maryland, 482 U.S. 496, 502-03, 508 (1987), overruled on other grounds by Payne v.
Tennessee, 501 U.S. 808, 830 (1991), and rendered his trial fundamentally unfair, in
87
violation of his due process rights, see Darden v. Wainwright, 477 U.S. 168, 178-81 (1986).
Those remarks, Roof argues, were unduly prejudicial and demand a new penalty hearing.
1. The Testimony in Question
Roof challenges remarks that Sanders made during both direct examination and
cross-examination at the guilt phase of the trial. The direct examination testimony at issue
consists of the following answer, at the end of a lengthy response, to the prosecution’s
question: “You could hear the defendant shooting; what could you feel on your legs and
arms?”
And the whole time I’m laying there, I felt the sting up and down my leg.
Nothing but sting. I couldn’t move. I was just waiting on my turn. Even if
I got shot, I didn’t want my granddaughter to be shot. I was just waiting on
my turn. It was a lot of shots. Seventy-seven shots in that room, from
someone who we thought was there before the Lord, but in return, he just sat
there the whole time evil. Evil. Evil as can be.
(J.A. at 3700-02.)
After the prosecution asked additional questions, the court took a recess. During
the recess, Roof’s counsel objected specifically to the portion of Sanders’s answer that
Roof “sat there the whole time evil. Evil. Evil as can be.” (J.A. at 3704.) The district
court overruled his objection because the challenged testimony was “her observation” and
because the objection was untimely. Defense counsel attempted to justify the delayed
objection by noting that “the witness was crying and understandably very upset during
parts of her testimony, and it seemed inappropriate to respond.” (J.A. at 3705.) The court
rejected that justification, explaining that “[c]rime victims frequently weep from the
witness stand. . . . It’s just the natural result of telling a very tragic story.” (J.A. at 3705.)
88
Later, on cross-examination, the following exchange occurred:
Q. Good afternoon, Miss Sanders. I only have one question to ask you;
I’ll be done. Do you remember the man who did this saying
something about that he was only 21, and then talking about what he
was going to do afterwards?
A. Yes.
Q. Could you tell us what he said?
A. He say he was going to kill himself. And I was counting on that. He’s
evil. There’s no place on earth for him except the pit of hell.
Q. He said that he was 21? And then that he was going to kill himself
when he finished?
A. Send himself back to the pit of hell, I say.
Q. Did—he didn’t say that though. About hell. He just said he was going
to kill himself?
A. That’s where he would go, to hell.
Q. Yes, ma’am. I’m so sorry. Thank you.
(J.A. at 3706-07.) That was defense counsel’s full cross-examination of Ms. Sanders. The
following morning, Roof moved for a mistrial, arguing that Sanders’s “evil” and “pit of
hell” comments incurably tainted the trial. The district court denied the motion.
2. Standard of Review
Roof argues that his objections were timely, triggering de novo review. See United
States v. Hager, 721 F.3d 167, 204 (4th Cir. 2013) (“We review de novo a constitutional
claim that was properly preserved.”). But the government contends that Roof’s objections
were untimely, calling for review under the plain-error standard. See Fed. R. Crim. P.
52(b) (“A plain error that affects substantial rights may be considered even though it was
not brought to the court’s attention.”); United States v. Cabrera-Beltran, 660 F.3d 742, 751
(4th Cir. 2011) (stating that unpreserved evidentiary objections are reviewed under the
plain-error standard).
89
Evidentiary objections, governed by Rule 103 of the Federal Rules of Evidence,
must “be made at the time the evidence is offered.” United States v. Parodi, 703 F.2d 768,
783 (4th Cir. 1983) (citation omitted). We therefore find no reason to disturb the district
court’s ruling that Roof’s objections to Sanders’s direct examination testimony, lodged
after the questioning had moved on and ten minutes into a jury recess, were untimely
despite the emotional nature of Sanders’s testimony. And as to Sanders’s
cross-examination testimony, Roof made no objections at all but waited until the next day
to seek a mistrial. Plain-error review is therefore applicable.
To show plain error under Rule 52(b) of the Federal Rules of Criminal Procedure,
Roof must demonstrate that “(1) there is an error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights,
which in the ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in original)
(internal quotation marks and citation omitted).
Because Rule 52(b) “authorizes the Courts of Appeals to correct only particularly
egregious errors”—those that “undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice”—“the plain-error exception to the contemporaneousobjection rule is to be used sparingly,” without “skew[ing] the Rule’s careful balancing of
our need to encourage all trial participants to seek a fair and accurate trial the first time
around against our insistence that obvious injustice be promptly redressed.” United States
90
v. Young, 470 U.S. 1, 15-16 (1985) (internal quotation marks and citations omitted). We
therefore review a claim of plain-error “against the entire record.” Id. at 16.
Roof also challenges the court’s denial of his motion for a mistrial. We review that
decision under the abuse-of-discretion standard. United States v. Brewer, 1 F.3d 1430,
1437 (4th Cir. 1993).
3. The Merits of Roof’s Claims
With regard to Roof’s Eighth Amendment claim, the Supreme Court has held that,
in a capital case, “the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence violates the Eighth
Amendment.” Payne, 501 U.S. at 830 n.2 (describing the holding of Booth, 482 U.S. at
502-03); see also Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (holding that
Payne did not overrule Booth entirely and that courts remain “bound by Booth’s prohibition
on characterizations and opinions from a victim’s family members about the crime, the
defendant, and the appropriate sentence”). Similarly, the Supreme Court has held that
improper comments offend the Constitution if they “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (citation
omitted). “Courts must conduct a fact-specific inquiry and examine the challenged
comments in the context of the whole record.” Bennett v. Stirling, 842 F.3d 319, 323 (4th
Cir. 2016) (citing Young, 470 U.S. at 11-12).
We will assume here that the unsolicited and unresponsive remarks by Sanders that
Roof was “evil” and would go “to the pit of hell” are improper characterizations. But even
with that assumption, “we must bear in mind that not every improper [remark] amounts to
91
a denial of due process.” Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996). Nor
does every improper remark affect “the outcome” or “fairness, integrity or public
reputation” of the district court proceedings, thus resulting in plain error. See Marcus, 560
U.S. at 262 (citation omitted); cf. Young, 470 U.S. at 16 (“Viewed in context, the
prosecutor’s statements, although inappropriate and amounting to error” cannot “be said to
rise to the level of plain error.”).
Sanders’s improper remarks were not so egregious as to “undermine the
fundamental fairness of the trial and contribute to a miscarriage of justice.” Young, 470
U.S. at 16. Given the aggravated and calculated nature of Roof’s multiple murders—
proven by overwhelming evidence—one victim’s characterization of Roof as evil and
deserving of hell is unlikely to have had any material effect on the jury’s view of the case.
Cf. United States v. Wilson, 135 F.3d 291, 299 (4th Cir. 1998) (“Murder is a crime regarded
by public opinion as involving moral turpitude, which means, in general, shameful
wickedness, so extreme a departure from ordinary standards of honesty, good morals,
justice or ethics to be shocking to the moral sense of the community.” (internal quotation
marks and citations omitted)).
Nor did the remarks in question pervade the trial. They totaled just eight transcript
lines out of forty-one pages of Sanders’s eyewitness testimony, which included powerful
descriptions of lying in her aunt’s and son’s blood, holding and fearing for her terrified
granddaughter, and hearing her son say that he loved her before watching him take his last
breath. The eight lines are further buried in over 2,300 pages of evidence and arguments
presented to the jury during the trial at both the guilt phase and the penalty phase, and
92
include testimony from two surviving witnesses and twenty-three victim-impact witnesses,
each with his or her own emotional statements to share. In addition, nearly one month
separated the disputed remarks, given on the first day of the guilt phase, from the first day
of the penalty phase.
The prosecution, moreover, never mentioned the challenged remarks in arguments
at either the guilt or penalty phase. And the district court offered a curative instruction the
day after Sanders’s testimony:
I want to remind you that the decisions this jury must make, whether the
defendant is guilty or not guilty, and if we come to a sentencing phase, the
appropriate sentence, is always your decision to make. It is not the decision
of this Court or the attorneys or the witnesses. It will always be yours.
(J.A. at 3839-40.) That instruction—that Roof’s sentence was the jury’s decision alone—
was offered at least twice more at the penalty phase.
In sum, the admission of Sanders’s remarks, in the full context of the guilt and
penalty phases of the trial, simply does not rise to the level of plain error. For the same
reasons, the district court did not abuse its discretion in denying Roof’s motion for a
mistrial.
D. Issue 13: Neither the Admission of Victim-Impact Evidence nor the
Prosecution’s Closing Argument Violated Roof’s Constitutional Rights
Roof next challenges the admission of certain victim-impact evidence. In seeking
the death penalty, the prosecution provided notice, pursuant to 18 U.S.C. § 3593(a)(2), of
non-statutory aggravating factors that it intended to prove, including the impact of Roof’s
crimes on the parishioners and their families, friends, and coworkers, and Roof’s targeting
93
of Bible-study participants at Mother Emanuel to magnify the societal impact of his
offense.
Roof now asserts that the admission of evidence of the victims’ religiosity and
exemplary qualities, and of the prosecution’s statements at closing argument that
emphasized that the victims were exceptionally good and devout people, “violated
Supreme Court prohibitions on unduly prejudicial evidence and arbitrary and capricious
death sentences, in violation of due process and the Eighth Amendment.” (Opening Br. at
199.) Specifically, he contends that the prosecution exceeded the permitted purpose of
victim-impact evidence, which, according to the Supreme Court in Payne v. Tennessee, is
to show a victim’s “uniqueness as an individual human being.” 501 U.S. 808, 823 (1991)
(citation omitted). His arguments fail.38
1. Victim-Impact Evidence
The admission of victim-impact evidence—that is, “evidence of the victim’s
personal characteristics and the harm inflicted upon the victim’s family and community”—
is constitutionally permitted. Humphries v. Ozmint, 397 F.3d 206, 217 (4th Cir. 2005)
(citing Payne, 501 U.S. at 829 n.2). Such evidence may be offered to show “each victim’s
38 Several of Roof’s evidentiary challenges are unpreserved (e.g., to a voicemail
from Reverend Pinckney to a sick friend and to photos of the victims in church), and we
therefore review them under the plain-error standard. See Fed. R. Crim. P. 52(b). As for
the evidence that Roof did object to—such as the audiotape of Reverend ColemanSingleton preaching, the song performed by Coleman-Singleton’s son, the baccalaureateceremony photos, and references in the prosecution’s closing argument to the victims being
“particularly good” people—we review the evidentiary rulings, which implicate
constitutional claims, de novo. United States v. Williams, 632 F.3d 129, 132 (4th Cir.
2011).
94
uniqueness as an individual human being, whatever the jury might think the loss to the
community resulting from [the victim’s] death might be.” Payne, 501 U.S. at 823 (internal
quotation marks omitted). We have recognized that, in asking the jury “to assess the
persuasive force of the defendant’s mitigating evidence and the victim-impact evidence,”
“some comparisons would be made between the defendant and the victim.” Humphries,
397 F.3d at 225-26.
But not all victim-impact evidence is admissible. As discussed, “evidence of the
victims’ opinions of the crime and of the appropriate sentence for the defendant violates
the Eighth Amendment,” id. at 217; see Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016), and
evidence that is “so unduly prejudicial that it renders the trial fundamentally unfair”
violates the Due Process Clause, Payne, 501 U.S. at 825; Humphries, 397 F.3d at 217.
Evidence used to establish “victim impact aggravating factors” violates due process when
the error in admitting it is “of sufficient significance that it denies the defendant the right
to a fair trial.” United States v. Barnette, 211 F.3d 803, 818 (4th Cir. 2000) (citing Greer
v. Miller, 483 U.S. 756, 765 (1987)). Thus, although “[s]ome comparisons, such as those
based on race or religion, unquestionably are unconstitutional,” “[o]ther comparisons are
not.” Humphries, 397 F.3d at 226. To make that determination, we “must consider the
challenged conduct in relation to the proceeding as a whole.” Id. at 218.
Roof offers no support, and we find none, for his argument that the disputed
victim-impact evidence amounts to an opinion on Roof, the crime, or the appropriate
sentence sufficient to constitute a violation of the Eighth Amendment. That leaves his
95
argument that the disputed evidence was unduly prejudicial, in violation of the Due Process
Clause.
Contrary to Roof’s argument, the victims’ exemplary qualities, such as their singing,
preaching, and praying, are part of their “uniqueness” that Payne allows a jury to consider.
See Payne, 501 U.S. at 823. The prosecution is “entitled to ask the jury to look at [the
victims’] uniqueness and to ask the jury to consider the consequences of when a person of
[the victims’] uniqueness is taken.” Humphries, 397 F.3d at 222 (internal quotation marks
omitted). And the district court in fact reminded the jury of that, instructing that “victim
testimony is limited by law to personal characteristics of the victim and the emotional
impact o[n] the family. . . . [D]isregard any other statements outside that.” (J.A. at 6033.)
As for the faith-related aspect of the evidence, nothing was said that encouraged the
jurors to make a comparison between Roof’s religion and that of the victims. Cf. Zant v.
Stephens, 462 U.S. 862, 885 (1983) (noting that the state did not attach “the ‘aggravating’
label to factors that are constitutionally impermissible or totally irrelevant to the sentencing
process, such as for example the . . . religion . . . of the defendant”). That some of the
victim-impact evidence implicates the victims’ devotion and the impact of the victims’
deaths on the targeted religious community is to be expected where Roof intentionally
targeted a church and selected Mother Emanuel’s Bible-study group. He specifically chose
as his victims individuals whose occupations, volunteer work, and daily activities naturally
involved their faith and Mother Emanuel. Also relevant is the district court’s instruction
that the jury “must not consider . . . religious beliefs . . . of either the defendant or any
victim.” (J.A. at 6747.)
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Finally, the prosecution’s emphasis on the victims’ particular worth by reminding
the jurors “how extraordinarily good these people were” and that Roof sought out “the best
among us” does not, as Roof contends, amount to unconstitutional comparative
victim-worth evidence. (J.A. at 6668, 6703.) Not only do the prosecution’s statements
directly support the “selection of victims” aggravating factor, but the “inevitable
consequence[] of Payne’s comparative framework” is “that a defendant can be put to death
for the murder of a person more ‘unique’ than another.” Humphries, 397 F.3d at 222 n.6.
We therefore conclude that neither the admission of the disputed evidence nor the
prosecution’s closing argument about it violated Roof’s constitutional rights.
E. Issue 14: Roof’s Death Sentence Is Not Cruel and Unusual Punishment
Under the Eighth Amendment
Roof next contends that the death penalty is cruel and unusual punishment as applied
to himself due to his age and mental capacity. This argument too is unavailing.39
39 The parties dispute whether Roof preserved his constitutional challenges to the
death penalty based on his age and mental capacity. Roof contends the alleged
constitutional errors were preserved for de novo review because his challenges were
“brought to the court’s attention”—and therefore complied with Federal Rule of Criminal
Procedure 52—when his “[s]tandby counsel filed a draft motion to preclude the death
penalty based on Roof’s age and [mental capacity].” (Opening Br. at 209.) However, Roof
withheld his signature and therefore his consent to file the draft motion for the district
court’s consideration. And he expressed his concerns adamantly and directly with the court
regarding his disapproval of standby counsel’s decision to file that motion. Thus, the
record makes clear that Roof did not want the district court to consider the constitutional
challenges he now raises on appeal, so his preservation claim fails under Rule 51(b). Fed.
R. Crim. P. 51(b) (“A party may preserve a claim of error by informing the court—when
the court’s ruling or order is made or sought—of the action the party wishes the court to
take, or the party’s objection to the court’s action and the grounds for that objection.”). We
accordingly review Roof’s constitutional challenges for plain error.
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1. Age
Roof argues that the categorical ban on executing juveniles (i.e., offenders under 18
years of age) should be extended to young adults. In support of his argument, he cites
Roper v. Simmons, 543 U.S. 551 (2005), which held that executing juveniles is
unconstitutional. He also cites “legal and scientific advances, including studies showing
the brain’s continued development into one’s early- to-mid-20s,” which, he says, “have
eroded the justification [relied upon in Roper] for drawing the line for capital punishment
at 18.” (Opening Br. at 210.) According to Roof, those advances have occurred in parallel
with an emerging national consensus recognizing that young adults, like juveniles, are not
“beyond rehabilitation.” (Opening Br. at 211.)
Roper stated plainly that “[t]he Eighth and Fourteenth Amendments forbid
imposition of the death penalty on offenders who were under the age of 18 when their
crimes were committed.” 543 U.S. at 578. In rejecting capital punishment for juveniles,
the Supreme Court said:
The prohibition against “cruel and unusual punishments,” like other
expansive language in the Constitution, must be interpreted according to its
text, by considering history, tradition, and precedent, and with due regard for
its purpose and function in the constitutional design. To implement this
framework, we have established the propriety and affirmed the necessity of
referring to “the evolving standards of decency that mark the progress of a
maturing society” to determine which punishments are so disproportionate
as to be cruel and unusual.
Id. at 560-61 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality
opinion)).
98
The Court determined that, by 2005, a national consensus had developed against
executing juveniles, as evidenced by the majority of states having banned their execution,
the infrequency of executions in states that had not yet banned their execution, and a
consistent trend towards abolishing the practice. Id. at 567. Hence, the Court concluded,
the Eighth Amendment categorically prohibits the capital punishment of juveniles. Id. at
564, 567, 578. Relevant to the second part of Roof’s Eighth Amendment claim, the Court
observed that “[t]he evidence of national consensus against the death penalty for juveniles
is similar, and in some respects parallel, to the evidence Atkins [v. Virginia, 536 U.S. 304
(2002)] held sufficient to demonstrate a national consensus against the death penalty for
the mentally retarded.” Id. at 564.
Roof argues that we should read Roper expansively. But Roper’s holding is a
categorical ban on executing juveniles in the same way that Atkins is a categorical ban on
executing the intellectually disabled. Id. at 564, 567; see also Hall v. Florida, 572 U.S.
701, 708 (2014) (noting, in reference to Roper and Atkins, that “[t]he Eighth Amendment
prohibits certain punishments as a categorical matter”). And “if a Supreme Court precedent
has direct application in a case,” as Roper clearly does, then “we must follow it.” United
States v. Stitt, 459 F.3d 483, 485 (4th Cir. 2006) (internal quotation marks and citation
omitted). The Supreme Court chose to draw a line at the generally accepted age of
majority, 18, and did so acknowledging that age and culpability were not perfectly linear.
Roper, 543 U.S. at 574 (“Drawing the line at 18 years of age is subject, of course, to the
objections always raised against categorical rules. . . . The age of 18 is the point where
society draws the line for many purposes between childhood and adulthood. It is, we
99
conclude, the age at which the line for death eligibility ought to rest.”). We have no
authority to hold that executing those who are older than 18 violates the Eighth Amendment
because, as the First Circuit observed in United States v. Tsarnaev, “whether a change [to
Roper] should occur is for the Supreme Court to say.” 968 F.3d 24, 97 (1st Cir. 2020)
(rejecting a similar argument advocating for an extension of Roper’s execution ban to age
20).
In Tsarnaev, the court conducted a detailed analysis of the defendant’s
constitutional claim that a person accused of having committed death-eligible crimes when
he was under 21 (Tsarnaev was 19 when he set off a bomb at the 2013 Boston Marathon)
was categorically exempt from the death penalty. Id. at 96. Like Roof, Tsarnaev argued
that the factors considered in Roper “in granting death-penalty immunity to persons under
18—that they lack the maturity we attribute to adults; that they are more vulnerable to peer
pressure than are adults; and that their personality traits are less fixed, suggesting a higher
likelihood of rehabilitation of juveniles than of adults—apply equally to persons under 21.”
Id. (citation omitted). Addressing that argument, the First Circuit characterized Roper as
a “square holding that 18 is ‘the age at which the line for death eligibility ought to rest.’”
Id. at 97 (quoting Roper, 543 U.S. at 574). The court acknowledged that the science of
brain development has indeed progressed since 2005; it even cited the exact American Bar
Association resolution “to exclude offenders 21 and younger from capital charges” that
Roof cites here. (Opening Br. at 211);see id. It nonetheless held that, although the “change
[that Tsarnaev] proposes is certainly worthy of careful consideration,” “whether a change
should occur is for the Supreme Court to say—not us.” Id. That conclusion holds here.
100
The Supreme Court granted certiorari in Tsarnaev on March 22, 2021 to review
whether the First Circuit properly set aside Tsarnaev’s death sentence on other grounds.
See United States v. Tsarnaev, 141 S. Ct. 1683 (2021) (mem.). Given the parallel
arguments that Tsarnaev and Roof make, the Court may decide whether to modify Roper.
Until then, Roper is the controlling precedent. See Stitt, 459 F.3d at 485.
2. Mental Incapacity
Roof’s arguments on mental capacity are similarly unpersuasive. He has an IQ of
125, which is higher than approximately 94% of the general population. He thus has no
plausible argument that he is protected by Atkins, which held that the Eighth Amendment
prohibits the execution of the intellectually disabled. 536 U.S. at 321.
The Atkins Court specifically defined such disability as involving “subaverage
intellectual functioning.” 536 U.S. at 318. Although “significant limitations in adaptive
skills such as communication” are part of the Atkins test, id., they are not sufficient by
themselves to render a defendant mentally incapacitated. See Hall, 572 U.S. at 711-14
(holding that mental incapacity per Atkins requires deficits in intellectual functioning in
addition to deficits in adaptive functioning). Roof is therefore not intellectually disabled
under Atkins.
VI. ISSUES RELATED TO GUILT VERDICT
Finally, we consider the alleged errors made during the guilt phase of Roof’s trial.
Specifically, Roof argues: first, that his convictions for religious obstruction under 18
U.S.C. § 247 are invalid under the Commerce Clause; second, that a conviction pursuant
18 U.S.C. § 247 requires proof of religious hostility; third, that the Hate Crimes
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Prevention Act, 18 U.S.C. § 249, is an unconstitutional exercise of Congress’s Thirteenth
Amendment authority; fourth, that the Attorney General erroneously certified Roof’s
federal prosecution; and fifth, that Roof’s firearm convictions under 18 U.S.C. § 924(c)
are invalid because the predicate offenses are not categorically crimes of violence. We
disagree on all points.
A. Issue 15: Roof’s Commerce Clause Challenges to the ReligiousObstruction Statute Do Not Require Reversal of Those Convictions
Counts 13 through 24 of the Indictment charged Roof with violating 18 U.S.C.
§ 247(a)(2) and (d)(1) (the “religious-obstruction statute”). Because the religiousobstruction statute requires the government to show a nexus between the alleged crimes
and interstate commerce, the district court ordered the government to file a bill of
particulars disclosing the nexus and justifying the exercise of jurisdiction to prosecute Roof
under that statute. The government did so and, in its bill, asserted that it would introduce
evidence establishing the requisite connection between Roof’s crimes and interstate
commerce, including evidence of Roof’s driving on interstate highways; navigating by a
GPS device produced out of state; using a gun, magazines, ammunition, and a tactical belt
pouch all produced out of state; calling Mother Emanuel on a home phone line; and using
the internet to plan his attack and spread the fear that would flow from it. The government
also included in the bill of particulars information about Mother Emanuel’s commercial
activities, including financial interactions with an out-of-state national organization,
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paying employees, renting church space, offering tours to out-of-state visitors, and
receiving donations.
Roof moved to dismiss Counts 13 through 24. He argued that the religiousobstruction statute was invalid under the Commerce Clause, both facially and as applied to
him. The district court held that the requirement of an interstate commerce nexus saved
the statute from the facial challenge. It also rejected Roof’s as-applied challenge, holding
that, based on the representations in the bill of particulars, there was sufficient evidence of
an interstate nexus for the indictment to survive a motion to dismiss.
At trial, the government introduced evidence that Roof’s actions, in planning and
committing the attack on Mother Emanuel’s parishioners, occurred in or affected interstate
commerce in multiple ways. Roof used the internet to research South Carolina’s historic
African American churches, including Mother Emanuel. He also paid for a foreign internet
server to host his website, LastRhodesian.com, where he spread his violent and racist
ideology. On the day that he attacked the parishioners at Mother Emanuel, Roof posted a
manifesto on his website foreshadowing his attack and culminating in a section titled “An
Explanation,” which read, in part, “I chose Charleston because it is the most historic city
in my state . . . . We have no skinheads, no real KKK, no one doing anything but talking
on the internet. Well someone has to have the bravery to take it to the real world, and I
guess that has to be me.” (J.A. at 4573-74.)
The government also showed that, on February 23, 2015, Roof used his home
telephone in South Carolina to place a call to Mother Emanuel. In addition, he used a GPS
device to navigate to the area surrounding Mother Emanuel during six trips from December
103
2014 to May 2015, as well as on the day of the shooting. On that final day, he drove on an
interstate highway from Columbia to Charleston, South Carolina.
The evidence demonstrated that Roof purchased a gun, bullets, a gun pouch, and
magazines that had traveled in interstate or foreign commerce before their purchase. He
said that he bought those items to carry out his mission to kill African American people.
On June 17, 2015, he entered Mother Emanuel carrying the firearm and loaded magazines
in the tactical pouch. He used them to kill nine people and attempt to kill three more.
During his post-arrest interview, Roof explained to police that, through his attack, he
sought to “agitate race relations,” potentially leading to a race war or the reinstatement of
segregation.40 (J.A. at 4329-30.)
The jury heard Roof’s admission that he chose Mother Emanuel because it is a
“historic” African American church and hence a high-profile target. (J.A. at 4131-34,
4271.) Testimony also revealed that Mother Emanuel is in “a tourist area” of Charleston
and is itself an important tourist destination. (J.A. at 3759.) The government did not,
however, introduce any evidence of Mother Emanuel’s commercial activities, contrary to
its bill of particulars.
The district court instructed the jury that it could find that Roof’s conduct was “in”
interstate commerce even if his “use of the channel or instrumentality of commerce
40 Roof initially acknowledged to the FBI that he did not think what he did could
start a race war, but he later explained that agitating race relations could “cause[] friction
and then, you know, it could lead to a race war.” (J.A. at 4329-30.) The manifesto he
wrote also explained that he “would love for there to be a race war.” (J.A. at 4213.)
104
occurred entirely within the State of South Carolina.” (J.A. at 5142.) It also instructed that
Roof’s conduct was “in” interstate commerce if, during the offense, he “used a firearm or
ammunition” that had “traveled across state lines at any point in its existence, regardless
of whether the defendant himself carried the weapon or ammunition across the state line,
or whether [the] defendant knew that the weapon or ammunition had traveled across states
lines.” (J.A. at 5142.) The court told jurors that “[t]he effect of the offense on interstate
commerce does not need to be substantial. . . . All that is necessary . . . to prove an effect
on interstate commerce is that the natural consequences of the offense potentially caused
an impact, positive or negative, on interstate commerce.” (J.A. at 5142-43.) The court
rejected Roof’s alternative instruction about the jurisdictional element, but nothing in the
record indicates that Roof objected to the instructions that were given.
In his motions for judgment of acquittal and a new trial, Roof renewed his
Commerce Clause challenges to the religious-obstruction statute. He noted that the
government had failed to offer proof of Mother Emanuel’s commercial activities at trial.
The government responded that the district court’s denial of the motion to dismiss
“correctly concluded that [the proffered] evidence was more than sufficient to demonstrate”
a nexus to interstate commerce. (J.A. at 6984.) The court denied Roof’s motions.
On appeal, Roof again argues that the religious-obstruction statute is
constitutionally invalid under the Commerce Clause, both facially and as applied to him.
105
He also contends that the district court improperly instructed the jury on the required
interstate commerce nexus. His arguments fail.41
1. The Religious-Obstruction Statute Is Facially Valid
The religious-obstruction statute, 18 U.S.C. § 247, provides in relevant part:
(a) Whoever, in any of the circumstances referred to in subsection (b) of this
section--
. . .
(2) intentionally obstructs, by force or threat of force, including by threat of
force against religious real property, any person in the enjoyment of that
person’s free exercise of religious beliefs, or attempts to do so;
shall be punished as provided in subsection (d).
. . .
(b) The circumstances referred to in subsection (a) are that the offense is in
or affects interstate or foreign commerce.
Section 247 thus depends for its jurisdictional validity on the Commerce Clause, which
permits Congress “[t]o regulate Commerce . . . among the several States.” U.S. Const. art.
I, § 8, cl. 3. According to the Supreme Court in the seminal case of United States v. Lopez,
the Commerce Clause allows Congress to regulate three categories of activity: (1) “the use
of the channels of interstate commerce,” such as interstate railroads and highways; (2) “the
instrumentalities of interstate commerce, or persons or things in interstate commerce, even
41 We review de novo a district court’s holding that a statute is constitutional,
whether the constitutional challenge is facial or as-applied. See United States v. Hamilton,
699 F.3d 356, 366 (4th Cir. 2012); United States v. Fulks, 454 F.3d 410, 437 (4th Cir.
2006). We may strike down a statute “only if the lack of constitutional authority to pass
[the] act in question is clearly demonstrated.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567
U.S. 519, 538 (2012) (alteration in original) (internal quotation marks and citation omitted).
We review an unpreserved objection to jury instructions under the plain-error standard.
Fed. R. Crim. P. 30(d).
106
though the threat may come only from intrastate activities”; and (3) “those activities having
a substantial relation to interstate commerce.” 514 U.S. 549, 558-59 (1995).
Roof argues that § 247(a)(2) is facially invalid because the statute does not fall
within any of the three broad categories of conduct that Congress can regulate, as set out
in Lopez. The government responds that the statute’s jurisdictional element, that is, its
explicit requirement that there be a tie to interstate commerce, along with the possibility of
conduct that would satisfy that requirement, saves it from facial invalidity. We agree with
the government.
To evaluate Roof’s facial challenge under the third Lopez category—activities that
substantially affect interstate commerce—we consider four principles:42 (1) whether the
regulated activity is inherently commercial or economic; (2) whether the challenged statute
contains a jurisdictional element, which helps “ensure, through [a] case-by-case inquiry,
that the [regulated conduct] affects interstate commerce”; (3) whether legislative findings
discuss the prohibited conduct’s effect on interstate commerce; and (4) whether the link
between the prohibited conduct and a substantial effect on interstate commerce is
attenuated. Lopez, 514 U.S. at 561-63; United States v. Morrison, 529 U.S. 598, 611-12
(2000).
42 Although the government defends the religious-obstruction statute’s facial
validity under all three Lopez categories, it focuses primarily on the four principles
enumerated in Lopez, which fall under the “substantially affects” category, the third prong.
See United States v. Lopez, 514 U.S. 549, 559 (1995). We thus choose to evaluate the
facial challenge under that prong.
107
As to the first two principles, although the regulation of religious obstruction is not
inherently economic or commercial in nature—which the government concedes—§ 247
does contain an express jurisdictional element, “limit[ing] its reach to a discrete set of
[activities obstructing religion] that additionally have an explicit connection with or effect
on interstate commerce.” Lopez, 514 U.S. at 562; Morrison, 529 U.S. at 611-12; see also
18 U.S.C. § 247(b). The presence of that jurisdictional element allows application of the
statute only where the defendant’s conduct falls within the regulatory scope of the
Commerce Clause.43
The third principle is satisfied because the legislative history of the religiousobstruction statute explicitly discusses the nexus to interstate commerce. Following Lopez,
Congress in 1996 amended the religious-obstruction statute’s jurisdictional element to
make plain that the statute’s reach is limited to “conduct which can be shown to be in or to
affect interstate commerce.” H.R. Rep. No. 104-621, at 7 (1996); see also United States v.
Ballinger, 395 F.3d 1218, 1234-35 (11th Cir. 2005) (en banc) (“[T]he new language was
specifically drafted to mirror the Supreme Court’s articulation in Lopez of the nature and
extent of the commerce power.” (citing H.R. Rep. No. 104-621, at 7 (1996))). The statute’s
43 We recently noted that we have not found any case “in which a federal criminal
statute including an interstate commerce jurisdictional element has been held to exceed
Congress’s authority under the Commerce Clause.” United States v. Hill, 927 F.3d 188,
204 (4th Cir. 2019). Although we also said that “a jurisdictional hook is not . . . a talisman
that wards off [all] constitutional challenges,” id. at 208 (alterations in original) (citation
omitted), the religious-obstruction statute’s jurisdictional element requires the government
to prove that the conduct of each prosecuted defendant is sufficiently in or affecting
interstate commerce to warrant exercise of the federal government’s power.
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legislative history also demonstrates that Congress intended its jurisdictional nexus to
protect against any unconstitutional application: “[I]f in prosecuting a particular case, the
government is unable to establish this interstate commerce connection to the act, section
247 will not apply to the offense.” H.R. Rep. No. 104-621, at 7 (1996).
Lastly, as to whether the link between commerce and the prohibited conduct is
attenuated, we need not consider here whether the religious function of a house of worship
standing alone affects interstate commerce because hypothetical conduct that satisfies the
Commerce Clause certainly falls within the religious-obstruction statute’s purview.44 See
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (A party
“can only succeed in a facial challenge by establish[ing] that no set of circumstances exists
under which the Act would be valid, i.e., that the law is unconstitutional in all of its
applications.” (alteration in original) (internal quotation marks and citation omitted)). The
government suggests several examples of such conduct. For example, as recognized by
the district court, one could “use the channels or instrumentalities of interstate commerce
44 Roof argues that theoretical effects on commerce are insufficient to defeat a facial
challenge. He contends that one could use an interstate highway to drive guns between
schools, but that scenario did not save the Gun-Free School Zone Act in Lopez from
invalidation. He likewise argues that in the case of United States v. Morrison—where the
defendant challenged Congress’s authority to provide a civil remedy in the Violence
Against Women Act—the fact that one could mail a bomb to a former spouse was not
enough to save the operative provision. 529 U.S. 598, 605, 619 (2000). That argument is
unpersuasive, as the statutes in Lopez and Morrison are easily distinguishable from the
religious-obstruction statute because neither contained a jurisdictional element. Besides
that, there is no indication that anyone in Lopez and Morrison made the sort of argument
that Roof is making here, and we are not going to presume what the Court would have said
had such an argument been made.
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to attack a house of worship . . . by mailing a bomb to a church.” (J.A. at 3521 (citing
Ballinger, 395 F.3d at 1237).) Someone could also obstruct religion by preventing
churchgoers from engaging in an activity affecting interstate commerce, such as operating
a daycare center. See United States v. Terry, 257 F.3d 366, 367 (4th Cir. 2001) (holding
that the jurisdictional element of the federal arson statute, 18 U.S.C. § 844(i), reached the
arson of a church because the church’s daycare center significantly affected interstate
commerce).
In short, the statute is not facially unconstitutional. And, as explained in the next
section, the statute’s appropriate application to Roof serves as a non-hypothetical example
that defeats any claim of facial invalidity.
2. The Religious-Obstruction Statute Is Valid as Applied to Roof
Roof contends that applying the religious-obstruction statute to him is an
unconstitutional expansion of Congress’s power under the Commerce Clause.45 He argues
that his use of goods sold in interstate commerce and his use of interstate channels to
prepare for later conduct are not enough to place his conduct within Congress’s regulatory
reach. For reasons not apparent to us, the government in its briefing and at oral argument
waived any jurisdictional claim under prong three of Lopez, “the broadest expression of
45 The government suggests that Roof actually challenges the sufficiency of the
evidence establishing the jurisdictional element and does not make an as-applied challenge.
We evaluate Roof’s challenge in the way he has framed it. In any event, the as-applied and
sufficiency-of-the-evidence inquiries overlap because the jurisdictional nexus has “the full
jurisdictional reach constitutionally permissible under the Commerce Clause.” United
States v. Grossman, 608 F.2d 534, 537 (4th Cir. 1979).
110
Congress’[s] commerce power.” Ballinger, 395 F.3d at 1226. We therefore must
determine whether, under Lopez prongs one and two, the government’s prosecution can be
justified. We hold that it can.
Roof’s conduct lies within the bounds of federal jurisdiction because he posted a
racist manifesto and call to action on the internet, through his website hosted on a foreign
server, mere hours before he made a historic house of prayer into a charnel house. His use
of the internet, an instrumentality of interstate commerce, was thus not merely a part of the
preparations for this attack. It was part of his effort to target Mother Emanuel and other
predominantly African American churches, to strike fear in the hearts of worshipers, and
to spread his toxic racial views.
Under Lopez prong one, Congress may regulate the use of the channels of interstate
commerce. 514 U.S. at 558. We have held that channels of interstate commerce can
include “navigable rivers . . . ; the interstate railroad track system; the interstate highway
system; . . . interstate telephone and telegraph lines; air traffic routes; [and] television and
radio broadcast frequencies.” Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir. 2000)
(second alteration in original) (citation omitted). Just as interstate telephone lines and radio
broadcast frequencies allow for interconnectivity and exchange by facilitating commercial
undertakings, the internet does so as well and is thus rightly viewed as a channel of
interstate commerce. See United States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006)
(holding that the internet qualifies as an instrumentality and channel of interstate commerce,
and that the defendant’s download of child pornography from the internet fell within the
first two prongs of Lopez, regardless of whether the images were produced out of state).
111
That being established, we consider next whether Roof’s use of the internet was
sufficiently central to his violations of the religious-obstruction statute to permit
enforcement of that statute against him. The question is a close one, and we see a
distinction between Roof’s use of the internet and several of the cases cited by the
government for the proposition that internet usage satisfies the religious-obstruction
statute’s application to Roof. For example, the government points to the prosecution of
violators of a federal law prohibiting the receipt of child pornography, noting that
defendants typically download the illicit material from the internet, “a system that is
inexorably intertwined with interstate commerce.” Id. The government also cites one of
our nonprecedential decisions holding that sufficient evidence supported the defendant’s
conviction for sex trafficking of a minor where the defendant advertised the minor on the
internet and that the internet advertisements placed the defendant’s conduct “in or affecting
commerce.” United States v. Gray-Sommerville, 618 F. App’x 165, 168 (4th Cir. 2015).
But in those cases, the defendants’ use of the internet was a key component of the charged
crimes and occurred during the commission of them. The same cannot be said of Roof’s
attack on Mother Emanuel’s parishioners.
Two similar factors, however, support the conclusion that Roof’s internet research
and postings provide a sufficient tie to the Commerce Clause: first, the importance that
Roof himself evidently attached to his internet activity in connection with the murders, and
second, the temporal proximity of that internet activity to the crimes. Cf. Ballinger, 395
F.3d at 1228 (considering both the “necess[ity] for him to travel across state lines . . . [and]
the immediacy with which he set out to destroy churches once he arrived . . . [to]
112
demonstrate that [the defendant] used the channels of interstate commerce for the purpose
of committing arson” (citation omitted)). In United States v. Ballinger, the Eleventh
Circuit upheld a defendant’s conviction for destruction of religious property under
§ 247(a)(1) as a valid expression of Congress’s Commerce Clause power. Id. at 1227. The
defendant there had set fire to eleven churches in four states during an arson spree in which
he had no other purpose for entering the states except to commit his crimes. Id. The
Eleventh Circuit rejected the defendant’s argument that the act itself must occur in a
channel or instrumentality of interstate commerce and held that his as-applied challenge
failed because he “use[d] the channels and instrumentalities of interstate commerce to
commit his offenses.” Id. at 1230.
Just as the defendant in Ballinger crossed state lines to commit arson, Roof
conducted internet research to pick his church target and to maximize the impact of his
attack. He used his foreign-hosted website to spread his racist ideology and advertise,
albeit cryptically, the rampage that he would undertake a few hours later. He relied on the
ubiquity of that channel of interstate commerce to amplify his actions and to extol his own
“bravery” for committing mass murder. (J.A. at 4573-74.) Roof’s use of the internet was
thus closely linked, both in purpose and temporal proximity, to his violation of the
religious-obstruction statute.
It is well-established that Congress has the power to “keep the channels of interstate
commerce free from immoral and injurious uses.” United States v. Gould, 568 F.3d 459,
471 (4th Cir. 2009) (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)); see
Ballinger, 395 F.3d at 1227 (describing “Congress’[s] well-established power to forbid or
113
punish the use of the channels and instrumentalities of interstate commerce ‘to
promote . . . the spread of any evil or harm to the people of other states from the state of
origin’” (second alteration in original) (quoting Brooks v. United States, 267 U.S. 432, 436
(1925))). That power extends to regulating instrumentalities of interstate commerce even
when the threat of their misuse “may come only from intrastate activities.” Lopez, 514 U.S.
at 558. Because “[a]n act that promotes harm, not the harm itself, is all that must occur in
commerce to permit congressional regulation,” Ballinger, 395 F.3d at 1227, we hold that
Roof’s internet usage rendered his prosecution under the religious-obstruction statute
constitutional.
We are not suggesting that a defendant’s internet usage before or even while
committing a federal offense will always place his conduct within the reach of Congress’s
Commerce Clause authority. Our holding is simply that Roof’s admitted use of the internet
to research a historic African American church as a target and to amplify the effect of his
planned attack on Mother Emanuel’s parishioners—a use that continued until shortly
before the attack—is sufficient to establish federal jurisdiction in this case. He freely
acknowledged his hope that the attack would “agitate race relations” and lead to a race war
or reintroduce racial segregation. (J.A. at 4329-30.) See Katzenbach v. McClung, 379 U.S.
294, 301 (1964) (“[R]acial discrimination [i]s not merely a state or regional problem but
[i]s one of nationwide scope.”); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
257 (1964) (describing, pre-Lopez, “the overwhelming evidence of the disruptive effect
that racial discrimination has had on commercial intercourse”). He devoutly wished to
have an interstate effect on the life of our nation, including its commerce, and he employed
114
the internet as a means to achieve that end. Thus, our holding does not eviscerate the
“distinction between what is truly national and what is truly local,” as Roof warns. 46
(Opening Br. at 233 (quoting Morrison, 529 U.S. at 617-18).)
Even if we thought that Roof’s use of the internet did not alone provide a sufficient
nexus to interstate commerce, he had multiple other connections to the means of commerce
that, taken together, would serve to defeat his as-applied constitutional challenge. The
government contends that Roof’s use of a phone to call Mother Emanuel, a GPS device to
provide navigation to Mother Emanuel, and an interstate highway within South Carolina
to visit Mother Emanuel leading up to and on the day of the attack place his offense “in
interstate commerce.” (Answering Br. at 174.) Alone, each of those activities might be
insufficient to satisfy the Commerce Clause. But, viewed in conjunction with Roof’s
significant internet usage to plan and prepare for the attack and to maximize its effects,
those additional intersections with interstate commerce would be sufficient. See Ballinger,
395 F.3d at 1228 (combining multiple aspects of the defendant’s conduct, such as “travel
in a van (an instrumentality of commerce) along interstate highways (a channel of
commerce)” to conclude that the nexus to the Commerce Clause was satisfied). His as46 In passing the religious-obstruction statute, Congress intended to criminalize
precisely the type of conduct at issue in this case. Concerned by attacks on African
American churches in the South, Congress amended the jurisdictional nexus in the statute
to facilitate the prosecution of such racially motivated violence. H.R. Rep. No. 104-621,
at 2-3 (1996).
The government also argues that Roof’s use of a gun, ammunition, and a pouch that
had moved in interstate commerce prior to him gaining possession of them satisfies the
required Commerce Clause nexus. We need not comment on those arguments, given the
ruling that we have already expressed.
115
applied Commerce Clause challenge to his convictions under the religious-obstruction
statute therefore fails.
3. The Jury Instructions Were Proper
To round out his challenges under the Commerce Clause, Roof contends that the
district court incorrectly and prejudicially instructed jurors on the jurisdictional element of
§ 247. Because he failed to object to the instructions in the district court, he must
demonstrate plain error on appeal.47 Fed. R. Crim. P. 30(d); Fed. R. Crim. P. 52(b).
Roof first takes issue with the district court’s instruction that the jurors could find
his conduct to be “in” interstate commerce if his “use of the channel or instrumentality of
commerce occurred entirely within the State of South Carolina.” (J.A. at 5142.) He argues
that the instruction was wrong because Congress may only proscribe conduct “directed at”
interstate commerce’s instrumentalities, channels, or goods. (Opening Br. at 235 (quoting
Morrison, 529 U.S. at 618).) The government disagrees, contending that Roof’s use of
channels and instrumentalities of interstate commerce in planning, preparing for, and
committing his crimes satisfies the Commerce Clause, even if his interactions with
channels and instrumentalities occurred entirely intrastate. The government is correct
47 “A party who objects to any portion of the instructions or to a failure to give a
requested instruction must inform the court of the specific objection and the grounds for
the objection before the jury retires to deliberate. An opportunity must be given to object
out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in
accordance with this rule precludes appellate review, except as permitted under Rule
52(b).” Fed. R. Crim. P. 30(d). Where, as here, a party submits a proposed instruction on
the same legal principle but fails to object contemporaneously to the jury instructions, the
party does not preserve the issue for appeal. United States v. Cowden, 882 F.3d 464, 475
(4th Cir. 2018). Accordingly, we review Roof’s challenge under the plain-error standard.
See supra Section V.C.2 (articulating the plain-error standard).
116
because prong two of Lopez may be satisfied “even though the threat may come only from
intrastate activities.” Lopez, 514 U.S. at 558. Thus, as long as the use of the channel or
instrumentality is sufficiently central—in importance and temporal proximity—to the
conduct that Congress seeks to proscribe, regulation of that conduct falls within the limits
of the power granted by the Commerce Clause. See Ballinger, 395 F.3d at 1228
(considering the defendant’s travel across state lines in the context of its necessity and
temporal proximity to his crimes). The court’s instruction was not plainly erroneous.
Next, Roof contends that the district court erred in instructing the jury that his
conduct could be considered to be in interstate commerce if he “used a firearm or
ammunition during the offense” that had “traveled across state lines at any point in its
existence, regardless of whether the defendant himself carried the weapon or ammunition
across the state line, or whether defendant knew that the weapon or ammunition had
traveled across state[] lines.” (J.A. at 5142.) That instruction does not constitute plain
error because “[a]n error can be ‘plain’ only on the basis of settled law.” United States v.
Carthorne, 878 F.3d 458, 464 (4th Cir. 2017) (citation omitted). Although we have
explained that an object’s movement across state lines does not mark something forever as
“a ‘thing’ in interstate commerce” under Lopez prong two, our discussion arose in dicta
and in the context of an entirely different statute—one regulating the taking of red wolves.
Gibbs, 214 F.3d at 491 (citing Lopez to demonstrate that prong two was not satisfied
“despite the fact that the regulated guns likely traveled through interstate commerce”). In
addition, although the religious-obstruction statute is distinct from felon-in-possession
117
statutes,48 the Supreme Court has not overruled Scarborough v. United States, 431 U.S.
563, 577 (1977), which interpreted a felon-in-possession statute’s jurisdictional nexus as
requiring only that the firearm at some point traveled in interstate commerce. See United
States v. Patton, 451 F.3d 615, 636 (10th Cir. 2006) (noting “considerable tension”
between Scarborough and Lopez, but concluding that “[a]ny doctrinal inconsistency
between Scarborough and the Supreme Court’s more recent decisions is not for this Court
to remedy”). Any error, then, if there were one, was not plain.
Finally, Roof argues that the district court erred in instructing jurors that “[t]he
effect of the offense on interstate commerce does not need to be substantial. . . . All that is
necessary . . . to prove an effect on interstate commerce is that the natural consequences of
the offense potentially caused an impact, positive or negative, on interstate commerce.”
(J.A. at 5142-43.) He contends that the court was required to instruct the jury that they had
to find a substantial effect on interstate commerce because the religious-obstruction statute
does not regulate economic activity, nor does it constitute a class of economic activities.
We recently said, when considering conduct affecting commercial activity, that “the
Supreme Court and this Court repeatedly have clarified that Congress may regulate
48 Felon-in-possession statutes necessarily proscribe possession of an item—a
gun—and that item is the object that must move through interstate commerce under
Scarborough v. United States. 431 U.S. 563, 577 (1977). In contrast, the religiousobstruction statute does not focus on the possession of an item, but rather the offense of
obstructing religion itself. See United States v. Singletary, 268 F.3d 196, 204 (3d Cir.
2001) (noting that the felon-in-possession statute “addresses items sent in interstate
commerce and the channels of commerce themselves, delineating that the latter be kept
clear of firearms”). It is not Roof’s possession of a firearm that requires our current focus;
it is his obstruction of religion.
118
interference with commerce, even if the effect of the interference on interstate commerce
in an individual case is ‘minimal.’” United States v. Hill, 927 F.3d 188, 202 (4th Cir. 2019)
(citation omitted), cert. denied, 141 S. Ct. 272 (2020). We need not decide now whether
that rule carries over to interference with activity that is not plainly commercial or
economic in character because, even if the district court’s jury instructions were erroneous,
they were not plainly so. See United States v. Grassie, 237 F.3d 1199, 1206 n.5, 1209
(10th Cir. 2001) (upholding jury instructions saying that “any effect at all” on interstate
commerce satisfied § 247(b)); see also Carthorne, 878 F.3d at 464 (explaining that “the
absence of binding precedent in conjunction with disagreement among circuits” precludes
us from finding plain error).
Thus, Roof’s challenges to the jury instructions fail because the district court did
not plainly err. We also note that Roof was not seriously prejudiced by the alleged errors
because the evidence of his extensive internet usage sufficiently tied his conduct to
interstate commerce, as already explained. See United States v. Miltier, 882 F.3d 81, 89
(4th Cir. 2018) (“Even if a jury was erroneously instructed, however, we will not set aside
a resulting verdict unless the erroneous instruction seriously prejudiced the challenging
party’s case.” (citation omitted)).
119
B. Issue 16: The Religious-Obstruction Statute Does Not Require Proof of
Religious Hostility
Roof argues that the government had to prove that he was “motivated by hostility
to religion” as an essential element under the religious-obstruction statute, 18 U.S.C.
§ 247(a)(2).49 (Opening Br. at 242.) He is mistaken.50
To determine the meaning of a statutory provision, we rely first and foremost on its
text. United States v. Wills, 234 F.3d 174, 178 (4th Cir. 2000). Section 247(a)(2) allows
for conviction if the defendant intentionally obstructs another’s enjoyment of the free
exercise of religion. “Intentionally” is a legal term of art, meaning “deliberately and not
by accident.” United States v. Fuller, 162 F.3d 256, 260 (4th Cir. 1998). In § 247(a)(2),
the word modifies the subsequent phrase “obstructs, by force or threat of force” and serves
as the only mens rea requirement for that section of the statute. There is no argument that
Roof’s acts were accidental rather than deliberate, and his novel interpretation of the statute,
which seeks to insert a new mens rea element of “hostility,” finds no support in the text.
That might be why Roof centers his argument on legislative history. He cites a
Senate Report indicating that the statute was promulgated with the aim to “make violence
motivated by hostility to religion a Federal offense.” S. Rep. No. 100-324, at 2 (1988).
49 Again, the statute prohibits “intentionally obstruct[ing], by force or threat of
force, including by threat of force against religious real property, any person in the
enjoyment of that person’s free exercise of religious beliefs, or attempts to do so.” 18
U.S.C. § 247(a)(2).
50 Questions of statutory interpretation are reviewed de novo. United States v.
Savage, 737 F.3d 304, 306-07 (4th Cir. 2013).
120
Even assuming, however, that the quotation were an expression of the sole intent of all who
voted to pass the statute, that concept did not make it into the legislation as passed. The
text of a statute necessarily takes precedence over unenacted congressional intent. See
Wills, 234 F.3d at 178. And because we take it as a given that Congress knows how to say
something when it wants to, its silence controls when it chooses to stay silent. Discover
Bank v. Vaden, 396 F.3d 366, 370 (4th Cir. 2005). Accordingly, proof of religious hostility
is not required for a conviction under § 247(a)(2).
Roof’s arguments concerning the evidence of religious hostility—or the lack of such
evidence—thus do not prevail.
C. Issue 17: Congress Did Not Exceed Its Thirteenth Amendment
Authority in Enacting the Hate Crimes Prevention Act, 18 U.S.C. § 249
1. Hate Crimes Background
In 2009, Congress enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes
Prevention Act (“HCPA”), 18 U.S.C. § 249, pursuant to its constitutional authority under
the Thirteenth Amendment. U.S. Const. amend. XIII, § 2. The HCPA authorizes federal
prosecution of whoever “willfully causes bodily injury to any person or . . . attempts to
cause bodily injury to any person, because of the actual or perceived race, color, religion,
or national origin of any person.” 18 U.S.C. § 249(a)(1).
In enacting the HCPA, Congress found that “[s]lavery and involuntary servitude
were enforced, both prior to and after the adoption of the 13th [A]mendment . . . , through
widespread public and private violence directed at persons because of their race, color, or
ancestry, or perceived race, color, or ancestry,” and that “eliminating racially motivated
121
violence is an important means of eliminating, to the extent possible, the badges, incidents,
and relics of slavery and involuntary servitude.” 34 U.S.C. § 30501(7). Congress also
made clear that the HCPA was intended to assist states’ efforts to combat hate crimes,
saying:
State and local authorities are now and will continue to be responsible for
prosecuting the overwhelming majority of violent crimes in the United States,
including violent crimes motivated by bias. These authorities can carry out
their responsibilities more effectively with greater Federal assistance.
. . .
Federal jurisdiction over certain violent crimes motivated by bias enables
Federal, State, and local authorities to work together as partners in the
investigation and prosecution of such crimes.
The problem of crimes motivated by bias is sufficiently serious, widespread,
and interstate in nature as to warrant Federal assistance to States, local
jurisdictions, and Indian tribes.
Id. § 30501(3), (9)-(10).
Counts 1 through 12 of the indictment charge Roof with violations of the HCPA.
He moved to dismiss them, arguing that the HCPA is unconstitutional because it is not
“appropriate legislation” to enforce the Thirteenth Amendment. He further argued that the
statute does not meet the Supreme Court’s tests for evaluating the limits of congressional
power under the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. In
particular, he said that those Amendments authorize legislation only if it meets the
“congruence and proportionality” test set forth in City of Boerne v. Flores, 521 U.S. 507,
520 (1997), and the “current needs” test of Northwest Austin Municipal Utility District
Number One v. Holder, 557 U.S. 193, 203 (2009). The district court rejected those
arguments, and the jury convicted Roof on all the HCPA counts of the Indictment.
122
2. The HCPA Is Appropriate Legislation Under Controlling Thirteenth
Amendment Precedent
On appeal, Roof again argues that the HCPA is not “appropriate legislation,” is not
justified by “current needs,” and is not a “congruent and proportional” response to slavery
or a badge of slavery, and is thus facially unconstitutional. (Opening Br. at 245.) That
position, in essence, asks us to extend Fourteenth and Fifteenth Amendment caselaw to the
Thirteenth Amendment. We decline to do so and will affirm Roof’s convictions under
prevailing Thirteenth Amendment standards.51
a) The HCPA is appropriate legislation under Jones v. Alfred H. Mayer Co.
Ratified during the reconstruction era after the Civil War, the Thirteenth
Amendment provides that “[n]either slavery nor involuntary servitude . . . shall exist
within the United States.” U.S. Const. amend. XIII, § 1. This profoundly important
constitutional provision was intended
to abolish slavery of whatever name and form and all its badges and
incidents; to render impossible any state of bondage; to make labor free, by
prohibiting that control by which the personal service of one man is disposed
of or coerced for another’s benefit, which is the essence of involuntary
servitude.
Bailey v. Alabama, 219 U.S. 219, 241 (1911). The Amendment, in its § 2, grants Congress
the “power to enforce [it] by appropriate legislation.” U.S. Const., amend XIII, § 2.
After striking down multiple pieces of civil rights legislation under a restrictive
interpretation of § 2’s enforcement power, the Supreme Court in 1968 “adopted a more
51 We review a defendant’s preserved challenge to a statute’s constitutionality de
novo. See United States v. Hager, 721 F.3d 167, 182 (4th Cir. 2013); see also supra note
41.
123
generous approach . . . , giving Congress relatively wide latitude both to determine what
qualifies as a badge or incident of slavery and how to legislate against it.” United States v.
Hatch, 722 F.3d 1193, 1198-99 (10th Cir. 2013) (explaining the history of the Thirteenth
Amendment and noting that pre-1968 caselaw narrowly defined the badges and incidents
of slavery). Specifically, in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the
Supreme Court held that the Thirteenth Amendment empowers Congress to prohibit racial
discrimination in the public or private sale or rental of real estate. Id. at 437-39. The Court
explained that § 2 gave Congress not only the authority to abolish slavery, but also the
“power to pass all laws necessary and proper for abolishing all badges and incidents of
slavery in the United States.” Id. at 439 (citing Civil Rights Cases, 109 U.S. 3, 20 (1883)).
Rather than itself define the “badges and incidents of slavery,” the Court wrote that,
“[s]urely Congress has the power under the Thirteenth Amendment rationally to determine
what are the badges and the incidents of slavery, and the authority to translate that
determination into effective legislation.” Id. at 440. It went on to reason that the legislation
at issue was an appropriate exercise of congressional authority (that is, it was rational
legislation aimed at eliminating the badges and incidents of slavery), because “whatever
else they may have encompassed, the badges and incidents of slavery—its ‘burdens and
disabilities’—included restraints upon [property rights].” Id. at 441 (citation omitted).
Today, Jones remains the seminal Supreme Court case on Congress’s enforcement
power under § 2 of the Thirteenth Amendment, providing the governing standard for
Roof’s challenge. See, e.g., Runyon v. McCrary, 427 U.S. 160, 168, 179 (1976) (relying
on Jones to uphold 42 U.S.C. § 1981’s prohibition of racial discrimination in making and
124
enforcing private contracts); Griffin v. Breckenridge, 403 U.S. 88, 105 (1971) (reaffirming
that Congress is empowered to “rationally . . . determine what are the badges and the
incidents of slavery” and “translate that determination into effective legislation” (citation
omitted)); Hatch, 722 F.3d at 1201 (applying Jones to determine the constitutionality of
the HCPA).
In light of Jones, it is abundantly clear that the HCPA is appropriate legislation. To
prove otherwise, Roof would need to show that Congress acted irrationally in deeming
racially motivated violence a badge or incident of slavery, but over a century of sad history
puts the lie to any such effort. Congress had ample grounds for finding that “[s]lavery and
involuntary servitude were enforced . . . through widespread public and private violence
directed at persons because of their race, color, or ancestry.” 34 U.S.C. § 30501(7).
Congress also concluded that “eliminating racially motivated violence is an important
means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and
involuntary servitude.” Id. Those findings are universally accepted by courts analyzing
hate-crimes legislation.52 If the point were not already obvious, we state here emphatically
that concluding there is a relationship between slavery and racial violence “is not merely
rational, but inescapable.” See United States v. Beebe, 807 F. Supp. 2d 1045, 1052 (D.N.M.
52 Indeed, every court to address the constitutionality of 18 U.S.C. § 249(a)(1) has
upheld it. See, e.g., United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018); United
States v. Cannon, 750 F.3d 492, 502 (5th Cir. 2014); United States v. Hatch, 722 F.3d 1193,
1206 (10th Cir. 2013); United States v. Bowers, 495 F. Supp. 3d 362, 365-68 (W.D. Pa.
2020); United States v. Diggins, 435 F. Supp. 3d 268, 274 (D. Me. 2019); United States v.
Henery, 60 F. Supp. 3d 1126, 1130 (D. Idaho 2014).
125
2011) (discussing the history of racially motivated violence and its status as a badge or
incident of slavery), aff’d sub nom. Hatch, 722 F.3d 1193. (See also J.A. at 3512-15
(analyzing the history of racially motived violence).) The HCPA is thus “appropriate” in
exactly the manner envisioned in Jones.
b) City of Boerne and Shelby County are not applicable to Thirteenth
Amendment legislation, absent clear direction from the Supreme Court53
No doubt recognizing the impossible task of establishing that Congress irrationally
declared racially motivated violence to be a badge and incident of slavery, Roof contends
that the “congruence and proportionality” test from City of Boerne v. Flores, 521 U.S. at
520, and the “current needs” test from Shelby County v. Holder, 570 U.S. 529, 542 (2013),
apply to Thirteenth Amendment legislation. Specifically, he contends that those tests—
created in the context of the Fourteenth and Fifteenth Amendments, respectively—clarify
the governing standards for the reconstruction era Amendments and therefore apply to the
HCPA. Roof emphasizes similarities among the Amendments. Having been ratified in
relatively rapid succession after the Civil War, the Thirteenth, Fourteenth, and Fifteenth
Amendments formed a trilogy aimed at eliminating legal impediments to freed slaves’ full
enjoyment of the rights of citizenship. The Amendments all have similarly worded
enforcement clauses: § 2 of the Thirteenth Amendment states that “Congress shall have
power to enforce this article by appropriate legislation”; § 5 of the Fourteenth Amendment
53 Roof’s “current needs” argument before the district court focused on Northwest
Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009). On appeal,
Roof shifts his attention to the Supreme Court’s more recent Fifteenth Amendment case,
Shelby County v. Holder, 570 U.S. 529 (2013).
126
states that “Congress shall have power to enforce, by appropriate legislation, the provisions
of this article”; and § 2 of the Fifteenth Amendment states that “Congress shall have power
to enforce this article by appropriate legislation.” Roof thus asserts that any precedent
limiting enforcement of one Amendment must limit the others as well.
Accordingly, with no support for his attack on the HCPA in Thirteenth Amendment
precedents, Roof turns to Supreme Court cases discussing legislation passed pursuant to
the Fourteenth and Fifteenth Amendments. In City of Boerne, 521 U.S. at 512, the Court
evaluated the constitutionality of the Religious Freedom Restoration Act (“RFRA”), which
was Congress’s attempt to legislatively overrule Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Smith had abrogated much of
the Supreme Court’s earlier jurisprudence regarding how to assess whether a statute was
an unconstitutional burden on a person’s First Amendment right to the free exercise of
religion. City of Boerne, 521 U.S. at 513-15. Before Smith, laws that burdened religious
exercise were subject to strict scrutiny. See, e.g., Sherbert v. Verner, 374 U.S. 398, 406
(1963) (considering whether a compelling state interest justified a South Carolina law
infringing the free exercise of religion by Seventh-day Adventists). Smith overturned that
jurisprudence and substituted for it a regime of rational-basis review. 494 U.S. at 884-86.
Congress responded to Smith by enacting RFRA, reimposing a stricter standard on the
states, in effect returning to the pre-Smith understanding of the First and Fourteenth
Amendments. City of Boerne, 521 U.S. at 515-16. Congress sought to justify RFRA as
“appropriate legislation” under § 5 of the Fourteenth Amendment. Id. at 517.
127
The Supreme Court disagreed, holding that Congress had actually attempted to
amend the Constitution legislatively. Id. at 532. The Court acknowledged that § 5 of the
Fourteenth Amendment gives Congress important powers, but said that “[i]f Congress
could define its own powers by altering the Fourteenth Amendment’s meaning, no longer
would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’”
Id. at 529 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)). Consistent with that
limitation, the Court insisted on “a congruence and proportionality between the injury to
be prevented or remedied and the means adopted to that end.” Id. at 520. The City of
Boerne Court ultimately struck down RFRA as unconstitutional because it was “so out of
proportion to [its] supposed remedial or preventive object” that it could not “be understood
as responsive to, or designed to prevent, unconstitutional behavior.”54 Id. at 532. As
relevant here, nowhere does City of Boerne mention the Thirteenth Amendment or Jones.
In Shelby County, 570 U.S. at 557, a Fifteenth Amendment case, the Supreme Court
invalidated § 4(b) of the Voting Rights Act of 1965, 42 U.S.C. § 1973, transferred to 52
U.S.C. § 10303. That Act prescribed a formula to identify jurisdictions that had to obtain
federal permission before enacting any law related to voting. Shelby County, 570 U.S. at
537. The Act as reauthorized by legislation in 2006 was challenged in Shelby County. Id.
at 540-41. At the outset of its opinion, the Court characterized the assertion of
54 Smith remains the governing case in free-exercise jurisprudence and is still
controversial. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876-77 (2021)
(“[Plaintiff] urges us to overrule Smith, and the concurrences in the judgment argue in favor
of doing so. But we need not revisit that decision here.” (citation omitted)).
128
congressional power in the Voting Rights Act as “a drastic departure from basic principles
of federalism,” justified by the “insidious and pervasive evil” of entrenched racial
discrimination in the regulation of elections. Id. at 535 (citation omitted). Under those
facts, the Court addressed the scope of Congress’s power to pass “appropriate legislation”
enforcing the Fifteenth Amendment’s protections of the right to vote, and explained that
Congress should have justified the reauthorization based on conditions then, not conditions
that prevailed when the legislation was first enacted. See id. at 557. It found that
Congress’s reliance on “decades-old data and eradicated practices” could not justify
reenacting provisions designed for the 1960s. Id. at 551. The Court concluded that
“Congress must ensure that the legislation it passes to remedy [racial discrimination in the
regulation of elections] speaks to current conditions.” Id. at 557. Like City of Boerne,
Shelby County nowhere mentions the Thirteenth Amendment or Jones.
In this appeal, Roof asks us to incorporate the limitations from City of Boerne and
Shelby County into the analysis of Thirteenth Amendment cases. We decline to do so,
absent clear direction from the Supreme Court. Cf. Shalala v. Ill. Council on Long Term
Care, Inc., 529 U.S. 1, 18 (2000) (“[The] Court does not normally overturn, or so
dramatically limit, earlier authority sub silentio.”). As noted, neither case mentions the
Thirteenth Amendment, neither cites Jones, and neither discusses Congress’s power to
identify and legislate against the badges and incidents of slavery. Accordingly, we leave
it to the Supreme Court to make adjustments, if any, to well-established Thirteenth
Amendment jurisprudence. See United States v. Cannon, 750 F.3d 492, 505 (5th Cir. 2014)
(recognizing that City of Boerne “never mentioned the Thirteenth Amendment or Jones,
129
and did not hold that the ‘congruence and proportionality’ standard was applicable beyond
the Fourteenth Amendment”); United States v. Metcalf, 881 F.3d 641, 645 (8th Cir. 2018)
(“[N]either Shelby County nor [City of Boerne] addressed Congress’s power to legislate
under the Thirteenth Amendment,” and “Jones constitutes binding precedent.”); Hatch,
722 F.3d at 1204 (“[T]he Supreme Court has never revisited the rational determination test
it established in Jones.”).
Roof’s arguments to the contrary are unpersuasive. He asserts that failing to extend
City of Boerne or Shelby County to Thirteenth Amendment legislation conflicts with our
rule that we “do[] not have license to reject the generally applicable reasoning set forth in
a Supreme Court opinion.” United States v. Hill, 927 F.3d 188, 199 n.3 (4th Cir. 2019).
That argument, however, suffers from at least two flaws. First, it presupposes that the
reasoning in City of Boerne and Shelby County should be considered generally applicable
to the Thirteenth Amendment. Second, it ignores Supreme Court precedent unambiguously
stating that, “[i]f a precedent of [the] Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to [the Supreme] Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989); see also Hohn v. United States, 524 U.S. 236, 252-53 (1998) (The
Supreme Court’s “decisions remain binding precedent until [it] see[s] fit to reconsider them,
regardless of whether subsequent cases have raised doubts about their continuing vitality.”).
In sum, we will affirm Roof’s convictions under the HCPA because the HCPA is
appropriate legislation under § 2 of the Thirteenth Amendment and Jones. It was not
130
irrational for Congress to deem racially motivated violence a badge and incident of slavery,
and the “congruence and proportionality” test from City of Boerne and the “current needs”
test from Shelby County need not be applied to legislation enacted under the Thirteenth
Amendment, absent clear direction to that effect from the Supreme Court.55
D. Issue 18: The Attorney General Did Not Erroneously Certify Roof’s
Federal Prosecution
1. Certification Background
The HCPA requires the Attorney General, or a designee, to certify that at least one
of four conditions exists before a case may be federally prosecuted: (1) the state does not
have jurisdiction; (2) the state requested the federal government to assume jurisdiction;
(3) the verdict or sentence obtained under state charges left a federal interest in eradicating
bias-motivated violence demonstrably unvindicated; or (4) a federal prosecution is “in the
public interest and necessary to secure substantial justice.” 18 U.S.C. § 249(b)(1)(A)-(D).
To prosecute violations of the religious-obstruction statute, the Attorney General must
certify that, “in his judgment a prosecution by the United States is in the public interest and
necessary to secure substantial justice.” 18 U.S.C. § 247(e).
For the HCPA charges against Roof under § 249(a)(1), the Attorney General
certified that South Carolina “lacks jurisdiction to bring a hate crime prosecution” and that
Roof’s prosecution “is in the public interest and is necessary to secure substantial justice.”
55 Roof also argues that the certification process (see infra Section VI.D) does not
save the HCPA from unconstitutionality because it does not provide any meaningful limits
on federal jurisdiction. Because we uphold the HCPA on its own terms, we need not reach
that argument.
131
(J.A. at 62.) For the religious-obstruction charges under § 247(a)(2), the Attorney General
certified that Roof’s prosecution “is in the public interest and is necessary to secure
substantial justice.” (J.A. at 63.) In the district court, Roof unsuccessfully challenged the
§ 249(a)(1) certification, 56 arguing that the Court should look beyond § 249’s facial
certification requirements and review whether—in light of the parallel state proceeding—
the state actually lacked jurisdiction to prosecute a hate crime and whether his prosecution
truly was in the public interest. Roof mounted no challenge to the § 247(a)(2)
certification.57
2. The Attorney General Did Not Erroneously Certify Roof’s Federal Prosecution
On appeal, Roof argues that given South Carolina’s efforts to prosecute him—
including seeking the death penalty—the Attorney General had no basis for certifying the
charges against him and therefore we should reverse his convictions on Counts 1 through
24. According to Roof, “[t]here was no additional public interest that the federal
prosecution could have vindicated,” and the lack of a separate hate-crimes statute is
irrelevant. (Opening Br. at 259.) The government responds that the Attorney General’s
56 To be more precise, the certification is under § 249(b), but is made with respect
to the § 249(a)(1) charges. Likewise, the certification with respect to the § 247(a)(2)
charges is made pursuant to § 247(e).
57 Accordingly, if reviewable at all, Roof’s unpreserved challenge to the § 247(a)(2)
certification is reviewed under the plain-error standard. See supra Section V.C.2
(articulating the plain-error standard). As explained further herein, whether a standard
exists to review the Attorney General’s certifications is contested.
132
discretionary certifications are not subject to judicial review and, even if they were, the
Attorney General properly certified the prosecution.
Beginning with the justiciability challenge, the government does not argue that the
alleged nonreviewability of the Attorney General’s certifications is jurisdictional, i.e., that
we lack authority under Article III of the Constitution to review the certifications. (Oral
Arg. at 2:36:45-2:38:40.) As a result, we may assume without deciding that Roof’s claims
are reviewable. Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018) (assuming
reviewability without deciding it, where the government did not argue that justiciability
issues were jurisdictional); see also United States v. F.S.J., 265 F.3d 764, 768 (9th Cir.
2001) (collecting cases and noting that “[o]nly the Fourth Circuit has held that the
government’s certification of a substantial federal interest [in a juvenile prosecution under
18 U.S.C. § 5032] is subject to judicial review”); United States v. Bowers, 495 F. Supp. 3d
362, 375 (W.D. Pa. 2020) (holding that certifications under § 247(e) and § 249 are not
reviewable); United States v. Diggins, 435 F. Supp. 3d 268, 276 (D. Me. 2019) (collecting
cases and finding that, like certifications under § 5032, § 249 certifications are
unreviewable acts of prosecutorial discretion).
Having assumed justiciability, our scope of review is limited because the Attorney
General’s certifications must be afforded substantial deference. See United States v. T.M.,
413 F.3d 420, 425 (4th Cir. 2005) (“Whether a ‘substantial Federal interest’ exists is similar
to the ‘sort of discretionary decision more commonly thought of as the type of prosecutorial
decisions that are immune from judicial review,’ so we give the government’s decision in
that regard more deference.” (quoting United States v. Juv. Male No. 1, 86 F.3d 1314, 1319
133
(4th Cir. 1996))). Applying that standard, we are unpersuaded that the government
improperly certified Roof’s prosecution under the HCPA. Because South Carolina does
not have a hate-crimes statute, it was unable to charge Roof for a crime that considers his
alleged discriminatory intent as an element of the offense. That statutory difference, along
with the highly aggravated nature of Roof’s crimes (aptly described by the district court as
“a mass murder at a historic African-American church for the avowed purpose of
reestablishing the white supremacy that was the foremost badge of slavery in America”),
clearly implicated a substantial federal interest in eradicating the badges and incidents of
slavery. (J.A. at 3518.) We accordingly will not second guess the Attorney General’s
determination that prosecution under § 249(a)(1) was in the public interest and necessary
to secure substantial justice. And for similar reasons, it certainly does not constitute plain
error for the district court to have foregone any questioning of the § 247(a)(2) certification.
In short, although there might be federal certifications that raise close questions, this
case is not one of them, given the character of the crimes and the confessed motives behind
them. We therefore decline to vacate Roof’s convictions on Counts 1 through 24 on the
basis of improper certifications.
E. Issue 19: Roof’s 18 U.S.C. § 924(j)(1) Firearm Convictions Are Valid
1. Firearm Offense Background
Counts 25 through 33 of the indictment charged Roof with firearm offenses, in
violation of 18 U.S.C. § 924(j)(1). The jury found him guilty on all nine counts, which
served as the basis for nine of his death sentences, one death sentence for each firearm
offense that resulted in murder. Section 924 proscribes the use of a firearm “during and in
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relation to any crime of violence” resulting in murder, and it authorizes the imposition of
the death penalty. 18 U.S.C. § 924(c)(1)(A), (j)(1) (incorporating 18 U.S.C. § 924(c) and
§ 1111(a) by reference). 58 On appeal, Roof challenges the validity of those firearm
convictions, contending that neither of the alternative predicate crimes underlying them—
the HCPA and religious-obstruction offenses—are crimes of violence under the provisions
of § 924. 59 He therefore requests vacatur of the convictions and corresponding death
sentences. We see no merit in his contentions.
2. Legal Framework
To qualify as a crime of violence under 18 U.S.C. § 924(c)(3), which is the
controlling definition for purposes of § 924(j)(1), a predicate offense must have “as an
element the use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A); see also United States v. Robinson, 275
F.3d 371, 378 (4th Cir. 2001) (explaining that proof of a § 924(j) violation requires “the
commission of a § 924(c) violation”). We commonly refer to § 924(c)(3)(A) as the “force
58 See 18 U.S.C. § 924(j)(1) (“A person who, in the course of a violation of
subsection (c), causes the death of a person through the use of a firearm shall[,] if the killing
is a murder (as defined in section 1111), be punished by death or by imprisonment for any
term of years or for life.”); id. § 924(c)(1)(A) (penalizing “any person who, during and in
relation to any crime of violence . . . for which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm”); id. § 1111(a) (defining “murder” as “the unlawful killing of a human
being with malice aforethought”).
59 “[W]hether a particular criminal offense qualifies as a crime of violence under
Section 924(c) presents a legal question, which we review de novo.” United States v.
Evans, 848 F.3d 242, 245 (4th Cir. 2017).
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clause” or the “elements clause” of the statute. United States v. Mathis, 932 F.3d 242, 263
(4th Cir. 2017); United States v. Allred, 942 F.3d 641, 646 (4th Cir. 2019).60 To determine
whether a charged offense is a “crime of violence” under the elements clause, we apply the
categorical approach, which requires us to “ask whether the most innocent conduct that the
law criminalizes requires proof of the use, attempted use, or threatened use of force
sufficient to satisfy the [elements] clause.” Allred, 942 F.3d at 648 (internal quotation
marks and citation omitted) (interpreting the definition of “violent felony” in the elements
clause of the Armed Career Criminal Act (“ACCA”)).
61 If the answer is yes, then the
offense categorically qualifies as a crime of violence. Id. But if the “statute defines an
offense in a way that allows for both violent and nonviolent means of commission,” then
that predicate “offense is not ‘categorically’ a crime of violence under the [elements]
clause.” United States v. Simms, 914 F.3d 229, 233 (4th Cir. 2019) (en banc). “Importantly,
60 Section 924(c)(3)(B) also defines a crime of violence as a felony offense “that by
its nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).
That subsection, commonly known as the “residual clause,” United States v. Mathis, 932
F.3d 242, 263 (4th Cir. 2017), was deemed unconstitutionally vague in United States v.
Davis, 139 S. Ct. 2319, 2336 (2019). Our analysis is accordingly limited to determining
whether Roof’s predicate offenses qualify as crimes of violence under the elements clause.
Mathis, 932 F.3d at 263-64.
61 Because the definition of “crime of violence” is almost identical to the definition
of “violent felony” in the ACCA, our “decisions interpreting one such definition are
persuasive as to the meaning of the others.” United States v. McNeal, 818 F.3d 141, 153
n.9 (4th Cir. 2016); compare 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” as
having “as an element the use, attempted use, or threatened use of physical force against
the person of another”), with id. § 924(c)(3)(A) (defining “crime of violence” as having
“as an element the use, attempted use, or threatened use of physical force against the person
or property of another”).
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in undertaking this inquiry, ‘there must be a realistic probability, not a theoretical
possibility,’ that the minimum conduct would actually be punished under the statute.”
Allred, 942 F.3d at 648 (citation omitted).
Because the categorical approach requires us to “analyze only the elements of the
offense in question, rather than the specific means by which the defendant committed the
crime,” United States v. Evans, 848 F.3d 242, 245-46 (4th Cir. 2017), our analysis must
vary when the statute at issue is divisible; that is, when it “lists potential offense elements
in the alternative, and thus includes multiple, alternative versions of the crime.” United
States v. Bryant, 949 F.3d 168, 173 (4th Cir. 2020) (internal quotation marks and citation
omitted). A divisible statute “renders opaque which element played a part in the
defendant’s conviction,” and thus we “cannot tell, simply by looking at a divisible statute,
which version of the offense a defendant was convicted of.” Descamps v. United States,
570 U.S. 254, 255, 260 (2013). So, “as a tool for implementing the categorical approach,”
id. at 262, we are permitted, under what is called the modified categorical approach, “to
consult a limited set of record documents (such as the indictment, jury instructions, or plea
agreement) for the sole purpose of determining what crime, with what elements, a
defendant was convicted of.” Allred, 942 F.3d at 648 (internal quotation marks and citation
omitted).
With that in mind, we address what conduct amounts to a crime of violence under
the elements clause of § 924(c)(3), and then turn to a consideration of the statutory
language for each predicate offense and whether each predicate offense satisfies the
elements clause.
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3. “Crime of Violence” Jurisprudence
The Supreme Court has discussed, and so have we, the meaning of the elements
clause in ways pertinent to this appeal. First, as described by the Supreme Court in Johnson
v. United States, the term “physical force” indicates that the degree of force employed must
be “capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010)
(interpreting the definition of “violent felony” in the elements clause of the ACCA).
Physical force does not, however, “require any particular degree of likelihood or
probability that the force used will cause physical pain or injury; only potentiality.”
Stokeling v. United States, 139 S. Ct. 544, 554 (2019). Thus, “instead of relying solely on
the quantum of force required under the [predicate offense statute],” United States v.
Dinkins, 928 F.3d 349, 355 (4th Cir. 2019), the Court has concluded that “the force
used . . . to overcome a victim’s resistance, ‘however slight,’ ‘is inherently violent in the
sense contemplated by . . . Johnson.’” United States v. Rumley, 952 F.3d 538, 549 (4th Cir.
2020) (quoting Stokeling, 139 S. Ct. at 550, 553). That is so “because overpowering even
a weak-willed victim necessarily involves a physical confrontation and struggle.” Dinkins,
928 F.3d at 354 (internal quotation marks and citation omitted). “The altercation need not
cause pain or injury or even be prolonged; it is the physical contest between the criminal
and the victim that is itself ‘capable of causing physical pain or injury.’”62 Stokeling, 139
S. Ct. at 553 (citation omitted).
62 “[D]ifferent in kind from the violent force necessary to overcome resistance by a
victim” is the “nominal contact” that will sustain a battery at common law, since that “does
not require resistance or even physical aversion on the part of the victim.” Stokeling v.
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Second, “[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands
that the perpetrator direct his action at, or target, another individual.” Borden v. United
States, 141 S. Ct. 1817, 1825 (2021). That means the “use of force” requires a higher
degree of intent than reckless, negligent, or merely accidental conduct. Id. at 1824; Leocal
v. Ashcroft, 543 U.S. 1, 9 (2004). Consequently, “an offense will not have as an element
the ‘use’ of force sufficient to qualify as a [crime of violence] if it does not have the
requisite level of mens rea.” Allred, 942 F.3d at 652 (considering the definition of “violent
felony” under the ACCA). Thus, even if the statute governing the predicate offense
requires that the proscribed conduct result in death, it must also indicate a higher degree of
intent than reckless, negligent, or merely accidental conduct in order to satisfy the elements
clause. Borden, 141 S. Ct. at 1824; United States v. Runyon, 994 F.3d 192, 200 (4th Cir.
2021).
Third, “regardless of whether an injury resulted from direct or indirect means,”
United States v. Battle, 927 F.3d 160, 165 (4th Cir. 2019), an offense “that has as an
element the intentional or knowing causation of bodily injury categorically requires the use
of ‘force capable of causing physical pain or injury to another person.’” Allred, 942 F.3d
at 654 (citation omitted); see also United States v. Reid, 861 F.3d 523, 527-29 (4th Cir.
2017) (concluding that an offense that “requires that the defendant ‘knowingly and
United States, 139 S. Ct. 544, 553 (2019). “[T]he ‘unwanted’ nature of the physical contact
itself suffices to render [a battery] unlawful.” Id. Such “mere ‘offensive touching’” does
not, however, satisfy the elements clause. United States v. Rumley, 952 F.3d 538, 549 (4th
Cir. 2020) (citation omitted).
139
willfully inflict bodily injury’” falls within the ACCA’s “violent felony” definition “and
therefore serves as a predicate offense under § 924(e)(1)” (citation omitted)).
4. “Death Results” Offenses Under § 249(a)(1) Are Crimes of Violence
a) Section 249(a)(1) is divisible
Section 249(a)(1) of Title 18—part of the HCPA—criminalizes conduct that
“willfully causes bodily injury to any person or, through the use of fire, a firearm, a
dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to
any person, because of the actual or perceived race, color, religion, or national origin of
any person.” If “death results from the offense,” the maximum sentence of imprisonment
increases from ten years to life. 18 U.S.C. § 249(a)(1)(A)-(B). The “death results” element
“imposes . . . a requirement of actual causality, i.e., but-for causation.” United States v.
Simmons, 999 F.3d 199, 217 (4th Cir. 2021) (alteration in original) (internal quotation
marks and citation omitted). And “[w]hen a crime requires ‘not merely conduct but also a
specified result of conduct,’ a defendant generally may not be convicted unless” that causal
element is satisfied. Burrage v. United States, 571 U.S. 204, 210 (2014) (citation omitted).
Thus, § 249(a)(1) is a divisible statute, with one version of the offense having as an element
that death resulted from the crime’s commission and carrying a maximum sentence of life
imprisonment, and the other version excluding the death-results element and carrying a
ten-year maximum sentence.
In assessing the § 249(a)(1) convictions as predicate offenses for the § 924(j)(1)
convictions, then, the modified categorical approach is applicable, but “only to determine
which statutory phrase was the basis for the conviction.” United States v. Hemingway, 734
140
F.3d 323, 331 (4th Cir. 2013) (internal quotation marks and citation omitted). In other
words, we may consult the record “for the sole purpose of determining ‘what crime, with
what elements, a defendant was convicted of.’” Allred, 942 F.3d at 648 (citation omitted).
And we need look no further than the indictment to determine that Roof was charged with
the “death results” version of the HCPA offense. Our “crime of violence” determination
with respect to § 249(a)(1) is therefore limited to the “death results” version of the offense.
b) The “death results” offense under § 249(a)(1) requires the use of physical
force
To convict a defendant of a “death results” offense under § 249(a)(1), the
government must establish, beyond a reasonable doubt, that the defendant: (1) “willfully
cause[d] bodily injury to any person”63; (2) because of that person’s “actual or perceived
race, color, religion, or national origin”; and (3) the injury resulted in the person’s death.
18 U.S.C. § 249(a)(1). That offense, according to Roof, is not a crime of violence because
63 A defendant may commit a crime under § 249(a)(1) by “attempt[ing] to cause
bodily injury” or “willfully caus[ing] bodily injury.” See United States v. Cannon, 750
F.3d 492, 506 (5th Cir. 2014) (holding that a jury could rationally conclude that a defendant
committed a crime under § 249(a)(1) just by attempting to willfully cause bodily injury).
Those two methods represent alternative means as opposed to alternative elements. Cf.
United States v. Drummond, 925 F.3d 681, 689 (4th Cir. 2019) (applying the ACCA to a
state domestic-violence offense and stating that “[r]ather than effectively creating several
different crimes, the statute addresses a single crime . . . , which can be committed by any
one of three means—an offer, attempt, or actual causation of physical harm or injury.”);
see also infra Section VI.E.5.a & note 66. Nevertheless, under the “death results” version
of the offense, we need consider only actual causation. If one “attempts to cause bodily
injury” and “death results” from that attempt, then the offender has clearly caused bodily
injury. See Burrage v. United States, 571 U.S. 204, 210-11 (2014) (explaining that the
causation element must be satisfied for a crime requiring a specific result, which “requires
proof that the harm would not have occurred in the absence of—that is, but for—the
defendant’s conduct” (internal quotation marks and citation omitted)).
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one can violate § 249(a)(1) using de minimis force, no force, or unintentional force. We
disagree. Our precedent makes clear that a statute having “as an element the intentional or
knowing causation of bodily injury categorically requires the use of ‘force capable of
causing physical pain or injury to another person.’” Allred, 942 F.3d at 654 (citation
omitted); see Battle, 927 F.3d at 166 (“[A] crime requiring the ‘intentional causation’ of
injury requires the use of physical force” within the meaning of the ACCA. (citation
omitted)). So, when a defendant “willfully causes bodily injury” and “death results” from
the defendant’s conduct, that offense satisfies the “use of physical force” requirement and
of course constitutes a crime of violence under the elements clause. See RSM, Inc. v.
Herbert, 466 F.3d 316, 320-21 (4th Cir. 2006) (defining the term “willful” as intentional
and purposeful, noting that the term “‘willfully’ has been held to denote a mental state of
greater culpability than the closely related term, ‘knowingly’” (citation omitted)).
Rather than follow that straightforward reasoning, Roof would have us consider
each element in isolation. He divorces the “willfully causes bodily injury” element from
the “death results” element, and then points to the broad statutory definition of “bodily
injury” as a basis for claiming that § 249(a)(1) “only requires intentional use of de minimis
force or no force.” (Opening Br. at 267-69 (emphasis omitted).) Specifically, because the
statutory definition of “bodily injury” includes anything from “a bruise” to “any other
injury to the body, no matter how temporary,” Roof contends that bodily injury
encompasses squeezing an arm or “touching a bruise” and, therefore, § 249(a)(1)
proscribes a broader range of conduct than the “physical force” requirement. (Opening Br.
at 268.) See 18 U.S.C. § 249(c)(1) (defining, by reference, “bodily injury” to include cuts,
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abrasions, bruises, burns, or disfigurements; physical pain; illness; impairment of the
function of a bodily member, organ, or mental faculty; or any other injury to the body, no
matter how temporary; but excluding “solely emotional or psychological harm to the
victim”).
He also argues that the “‘willfulness’ (intentional) mens rea . . . does not attach to
the ‘death results’ element.” (Opening Br. at 269.) And without the mens rea attached, the
“death results” element “requires violent physical force” only, not “intentional use of
violent physical force.” (Opening Br. at 269-70.) On that basis, and because “intentional
infliction of ‘bodily injury’ . . . only requires intentional use of de minimis force or an
intentional act of omission,” Roof contends that, “at most, the ‘bodily injury’ and ‘death
results’ elements each come halfway toward satisfying the [elements] clause, though
neither contains both requirements at the same time.” (Opening Br. at 269-70.)
But we do not view each element of the crime in isolation. See Runyon, 994 F.3d
at 204; In re Irby, 858 F.3d 231, 236 & n.2 (4th Cir. 2017). Roof’s rigid division of the
elements ignores the interrelated character that elements of a crime can share, and his farfetched examples of potential § 249(a)(1) violations illustrate the absurd results that arise
from analyzing each element in the way that he wants. For example, he asserts that “a
defendant squeezing someone’s arm because of her race, causing her to lose her balance
and fall to her death” constitutes a “death results” offense under § 249(a)(1). (Opening Br.
at 270.) But that hypothetical does not represent “a realistic probability” of “the minimum
conduct [that] would actually be punished under the statute.” Allred, 942 F.3d at 648. And
contrary to Roof’s position, we often look at the elements of an offense as a whole when
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deciding if that offense meets the requirements of the elements clause.64 Doing so here,
“[w]e find it difficult to imagine a realistic scenario” where a defendant could engage in
conduct with the specific intent to cause bodily injury to a person, could then kill the victim,
and yet do so “without knowing or intending to inflict upon that person far more than a
mere touch or scratch.” Id. at 654-55.
Put simply, even if Roof’s emphasis on the broad definition of “bodily injury” had
any merit when considered in isolation, it has none when considered in conjunction with
the “death results” element. Accordingly, we conclude that a “death results” offense under
§ 249(a)(1) is categorically a crime of violence.
5. “Death Results” Offenses Under § 247(a)(2) Are Crimes of Violence
a) Section 247(a) is divisible
Section 247(a) of Title 18—part of the religious-obstruction statute—criminalizes
conduct that “(1) intentionally defaces, damages, or destroys any religious real property,
64 See United States v. Runyon, 994 F.3d 192, 202-03 (4th Cir. 2021) (considering
conspiracy in the context of an offense that “has heightened mens rea elements, as well as
the element that ‘death results’”—i.e., “conspiracy to use facilities of commerce with the
intent that a murder be committed for hire where death results”—and deciding that, “in any
realistic case,” those mens rea elements, though “not explicitly tied to the resulting-in-death
element, . . . must nonetheless carry forward to the resulting-in-death element”); United
States v. Allred, 942 F.3d 641, 654 (4th Cir. 2019) (“Although there is no mens rea
specified for the element of causation, the statute contains not one, but two heightened
mens rea requirements. . . . We find it difficult to imagine a realistic scenario in which a
defendant would knowingly engage in conduct with the specific intent to retaliate against
a witness and thereby only recklessly or negligently cause bodily injury.”); see also
Stokeling, 139 S. Ct. at 553 (considering robbery as a whole and concluding that “the force
necessary to overcome a victim’s physical resistance [in a robbery] is inherently ‘violent’”
because “overpower[ing] . . . even a feeble or weak-willed victim . . . necessarily involves
a physical confrontation and struggle”).
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because of the religious character of that property, or attempts to do so; or (2) intentionally
obstructs, by force or threat of force, including by threat of force against religious real
property, any person in the enjoyment of that person’s free exercise of religious beliefs, or
attempts to do so.”65 Again, when “faced with an alternatively phrased statute,” we must
determine whether the disjunctive language represents alternative means or alternative
elements. Allred, 942 F.3d at 649.
Beginning with the disjunctive statutory subsections, § 247(a)(1) and § 247(a)(2),
we conclude that those subsections are divisible. When analyzing a statute’s divisibility,
“[t]he nature of the behavior that likely underlies a statutory phrase matters.” Id. at 650
(alteration in original) (citation omitted). Where the behavior typically “underlying
damage to property” “differs so significantly from” the obstruction of a person using force
or threat of force (resulting in death), we “must treat the two as different crimes.” Id.
(citations omitted). The former deals solely with damage to religious real property, while
65 The religious-obstruction statute we recite here is an amended version that had
not yet been enacted at the time of Roof’s conviction. Nevertheless, “when an amendment
alters, even ‘significantly alters,’ the original statutory language, this does ‘not necessarily’
indicate that the amendment institutes a change in the law.” Brown v. Thompson, 374 F.3d
253, 259 (4th Cir. 2004) (citation omitted). To determine “whether an amendment clarifies
or changes an existing law, a court, of course, looks to statements of intent made by the
legislature that enacted the amendment.” Id. Here, the legislative history expressly stated
that “[t]he changes adopted . . . are intended to clarify that a ‘threat of force’ under
subparagraph (a)(2) includes ‘threats of force’ made against religious real property.”
S. Rep. No. 115-325, at 2 (2018) (emphasis added). “As a clarification rather than a
substantive change,” the amendment amounts to a declaration, and “[t]he Supreme Court
has long instructed that such declarations—i.e., ‘[s]ubsequent legislation declaring the
intent of an earlier statute’—be accorded ‘great weight in statutory construction.’” Brown,
374 F.3d at 260 (second alteration in original) (citation omitted). We therefore consider
the amended version of the religious-obstruction statute.
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the latter is concerned with conduct that, at a minimum, causes “fear of bodily harm” so as
to “obstruct an individual’s ability to exercise his or her religious beliefs.” H.R. Rep. No.
115-456, at 2 (2017). Accordingly, those statutory phrases are alternative elements, not
alternative means.
In addition, because § 247(a)(2) criminalizes both obstruction of the free exercise
of religion and “attempts to do so,” it sets out multiple elements in the alternative and thus
creates multiple versions of the crime, the statute being divisible along the lines separating
completed and attempted versions of the crime.66 Descamps, 570 U.S. at 262. Furthermore,
and of highest importance, the “death results” offense under § 247(a)(2) is divisible for the
same reasons described when discussing § 249(a)(1)—namely that death is an added
element. See supra Section VI.E.4.a & notes 63, 66; see also 18 U.S.C. § 247(d)
(authorizing the imposition of the death penalty “if death results from acts committed in
violation of” § 247(a)(2)). Therefore, applying the modified categorical approach, we
consider whether the “death results” offense under § 247(a)(2) satisfies the “use of physical
force” requirement.
b) The “death results” offense under § 247(a)(2) requires the use of physical
force
To convict a defendant for a “death results” offense under § 247(a)(2), the
government must establish, beyond a reasonable doubt, that the defendant: (1) intentionally
obstructed “any person in the enjoyment of that person’s free exercise of religious beliefs”;
66 We need not further concern ourselves with the divisibility of § 247(a)(2) between
inchoate and completed crimes because this case deals only with the latter. The multiple
murders at issue here represent the ultimate obstruction of religious practice.
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(2) did so “by force or threat of force, including by threat of force against religious real
property”; (3) resulting in that person’s death. 18 U.S.C. § 247(a)(2), (d)(1). (See J.A. at
5139-40.) Additionally, the religious-obstruction offense must be in or must affect
interstate or foreign commerce. 18 U.S.C. § 247(a)(2), (b).
According to Roof, § 247(a)(2) is not a crime of violence because although it
“requires either intentional attempted threat of force or intentional use of de minimis force
against one’s own property,” it does not require the intentional infliction of death. (Reply
Br. at 135.) More specifically, Roof contends that the “force” element criminalizes
“intentional de minimis (not violent) force or attempted (not actual) threat of force against
one’s own property (not another’s), while the ‘death results’ element requires only
unintentional force.” (Reply Br. at 129-35.) In other words, the least culpable conduct that
will amount to a “death results” offense under § 247(a)(2) does not satisfy both the mens
rea requirement and the physical-force requirement under the elements clause. Isolating
the “force” element from the “death results” element, Roof argues that the “force” element
cannot satisfy the elements clause because it criminalizes conduct that meets the mens rea
requirement but not the physical-force requirement. Conversely, he asserts that the “death
results” element fails to satisfy the elements clause because it criminalizes conduct that
meets the physical-force requirement but not the mens rea requirement.
If all of this sounds strained, that is because it is, and we reject it for the same reason
that we rejected Roof’s effort to rigidly separate each element of the § 249(a)(1) offenses.
See Runyon, 994 F.3d at 204 (“[The] mens rea elements [of the statute in question] cannot
be limited to their individual clauses. If a defendant willingly agrees to enter into a
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conspiracy with the specific intent that a murder be committed for money and death results
from that agreement, it follows that the defendant acted with specific intent to bring about
the death of the conspiracy’s victim.”).
In short, when a defendant has the specific intent to obstruct one or more persons
from exercising their religious beliefs and he uses force or threatens the use of force as the
means to achieve his intention, it follows that the defendant has acted with the specific
intent to use or threaten the use of force. And intentional use or threatened use of force
resulting in the victim’s death necessitates the use of violent force. See id.; Allred, 942
F.3d at 654-55. Thus, a “death results” offense under § 247(a)(2) satisfies the elements
clause and constitutes a crime of violence.
Roof would have us describe the least culpable conduct as the “intentional attempted
threat of force” (Reply Br. at 135), and then rely on United States v. Taylor, where we held
that “an attempt to threaten force does not constitute an attempt to use force,” to conclude
that a “death results” offense under § 247(a)(2) is not a crime of violence. 979 F.3d 203,
209 (4th Cir. 2020). But we concluded in Taylor that the least culpable conduct necessary
to commit attempted Hobbs Act robbery is “an attempt to threaten force.” Id. That is not
so with the predicate offense here. We are not reviewing an attempt crime; we are
reviewing a death-results § 247(a)(2) crime, which by definition is a completed rather than
inchoate crime. See supra notes 63, 66. Our categorical analysis thus better parallels
United States v. Mathis, which held that completed Hobbs Act robbery categorically
qualifies as a crime of violence. 932 F.3d at 265-66. As in Mathis, we consider the
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completed crime and conclude that religious obstruction, committed by “force or
threatened use of force,” constitutes a crime of violence. Id. at 266.
Roof also contends that the intentional use of de minimis force against one’s own
property is all that is required to commit a “death results” offense under § 247(a)(2). But
that contention cannot plausibly survive without isolating each element, which, again, we
do not do.67 See supra Section VI.E.4.b. We therefore reject Roof’s contention that only
de minimis force is required, 68 and we conclude that a “death results” offense under
§ 247(a)(2) is categorically a crime of violence.
The consequence of all this is that Roof’s firearms convictions stand.
67 Even if we assume that a defendant could use force against his own property—as
opposed to the property of another” like the elements clause requires, 18 U.S.C.
§ 924(c)(3)(A)—as a means to obstruct another person from exercising his or her religious
beliefs, that force would necessarily amount to a threat of force against that person as well,
since a threat to property must “cause[] such intimidation to intentionally obstruct an
individual’s ability to exercise his or her religious beliefs.” See H.R. Rep. No. 115-456, at
2 (2017) (explaining that threats covered under § 247(a)(2) “include threats to property,
such as bomb threats, so long as the threat causes such intimidation to intentionally obstruct
an individual’s ability to exercise his or her religious beliefs,” which “[i]n
practice, . . . would only arise in the case of a threat so serious that it caused someone to
feel fear of bodily harm”); S. Rep. No. 115-325, at 2 (2018) (“While the legislation does
not specifically define the term, ‘threats of force,’ the substitute amendment should not be
read to encroach on protected speech,” which “[c]ourts have long distinguished [from] ‘true
threats.’” (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992))); cf. Stokeling, 139
S. Ct. at 553.
68 In addition, Roof wrongly asserts that the term “force” is “a term of art that
includes de minimis force” because “legislative history demonstrates the statute was
intended to cover ‘simple vandalism,’ including ‘defacing the walls of a synagogue with a
swastika’ and ‘anti-Semitic graffiti.’” (Opening Br. at 271 (citing legislative history);
Reply Br. at 132.) But the term “de minimis force” is found nowhere in the statute, and
we cannot read it in. See Borden v. United States, 141 S. Ct. 1817, 1828 (2021) (“The first
precondition of any term-of-art reading is that the term be present in the disputed statute.
Outcome: Dylann Roof murdered African Americans at their church, during their Bible-study
and worship. They had welcomed him. He slaughtered them. He did so with the express
intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America. He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.) When apprehended, he frankly confessed, with barely a hint of remorse.
No cold record or careful parsing of statutes and precedents can capture the full
horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself. For the reasons given, we will affirm.
AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: