United States v. Lujan: Prejudicial Aggravating Factors and Ineffective Limiting Instructions in the Sentencing Phases of Capital Cases

Jim Henderson[1]

Imagine for a moment that you have been called to serve as a juror in a murder trial. The crime was brutal, the details horrific, and you and your peers have found the defendant guilty beyond a reasonable doubt. Now comes the sentencing phase of the trial and the government is asking you to conclude that this brutal crime merits the death penalty. To support this assertion, the prosecution presents new information that you had not been privy to during earlier phases of the trial: the defendant has allegedly committed additional murders for which he has yet to be tried or convicted. And these additional murders were unimaginably horrific and depraved. Upon hearing this new information, your desire to punish the defendant for his violence and cruelty increases exponentially.

The judge explains that you may only use this new information to determine the presence or absence of an “aggravating factor” that might justify the imposition of the death penalty. The whole process is foreign and confusing: all you know is that the defendant has apparently murdered several people in a particularly gruesome manner, and the government is asking you to sentence him to death . . .

United States v. Lujan[2]

Larry Lujan was charged with the kidnapping and murder of Dana Joe Grauke after failing to collect on a drug-related debt.[3] Seeking the death penalty, the government requested permission to admit evidence during the sentencing phase of the trial of Lujan’s alleged killing of two other individuals seven years earlier. The government’s aim in presenting this information was to demonstrate the “future dangerousness” of Lujan, a common aggravating factor considered in capital murder cases.[4] The United States District Court for the District of New Mexico denied the request, holding that: 1) admitting the evidence would impinge upon the defendant’s presumption of innocence since Lujan had not yet been convicted of the previous murders; 2) presenting such evidence to the jury would be unfairly prejudicial to Lujan; and 3) despite any limiting instructions the court might provide, the jury would be confused by the evidence of the additional crimes and seek to punish Lujan for all of the murders instead of simply considering the earlier homicides as evidence supporting the finding of the aggravating factor.[5]

In a decision delivered by Senior Judge David M. Ebel, a three-judge panel of the Tenth Circuit reversed the holding of the district court, finding the court’s exclusion of evidence relating to the unadjudicated offenses to be an abuse of discretion.[6] The Court noted that “[n]either the Supreme Court nor this Court has ever held that admitting evidence at sentencing that tends to prove the defendant engaged in other unadjudicated criminal conduct infringes on the defendant’s presumption of innocence pertaining to the other unadjudicated conduct.”[7] Further, the majority dismissed the district court’s concerns regarding unfair prejudice by asserting that the lower court could “use a limiting instruction to channel the jury to consider th[e] evidence properly.”[8]

In a dissenting opinion, Chief Judge Robert H. Henry argued that the district court had taken the appropriate issues into consideration and had come to the reasonable conclusion that the potential unfair prejudice created by admitting evidence of the unadjudicated offenses did indeed outweigh its probative value.[9] That being the case, reversing the lower court’s ruling as an “abuse of discretion” unnecessarily infringed upon that court’s properly allotted discretionary power concerning the admissibility of evidence.[10]

The majority erred in finding an abuse of discretion on behalf of the district court, and more importantly, missed a propitious opportunity to re-examine the usefulness (and appropriate limits) of aggravating factors during the sentencing phase of capital cases. Given the substantial debate over the efficacy and fairness of aggravating factors, and the inadequacy of limiting instructions to mitigate the prejudicial effect of admitting evidence of unadjudicated offenses, the lower court’s ruling was reasonable and certainly did not amount to an abuse of discretion.

A. Aggravating Factors in the Sentencing Phase of Capital Trials

The sentencing process for capital cases differs from those for less severe crimes because the death penalty is “different in both its severity and its finality.”[11] Thus, when the government seeks the death penalty during a capital murder trial, it must demonstrate the presence of aggravating factors that would justify such an extreme punishment.[12] One of the most common aggravating factor—used in nearly every capital jurisdiction and present in most capital murder trials—is the “future dangerousness” of the defendant.[13] In order to support a finding of “future dangerousness,” the government may present evidence of the defendant’s prior criminal history,[14] and many jurisdictions permit evidence of unadjudicated crimes for the limited purpose of demonstrating the presence of the aggravating factor.[15]

Ironically, what was intended to provide an additional level of scrutiny before the application of the death penalty actually increased the likelihood that such a punishment will be imposed by interjecting inherently prejudicial evidence into the jurors’ thought process moments before sentencing decisions are made. Recent studies support this assertion, indicating that jurors are confused by and unable to properly apply aggravating factors.[16] On account of this, many scholars and practitioners have expressed concern regarding the equity of permitting this sort of inflammatory evidence to be introduced at such a critical moment in the trial. This being the case, the Tenth Circuit ought not to have invalidated the lower court’s decision as ‘an abuse of discretion’ in an area where reasonable judicial minds can – and do – disagree.

B. The Effectiveness of Limiting Jury Instructions

Having decided the issue of the admissibility of Lujan’s unadjudicated offenses, the majority addressed the issue of properly limiting its application:

We are confident that this experienced and well respected district court judge can form a jury instruction that will make it clear to the jury that the double homicide evidence is being admitted on the issue of whether the government has proven the non-statutory aggravating factor of future dangerousness and that its consideration is limited to that purpose only.[17]

But if the district court did issue such a limiting instruction, would (or could) the jury actually follow it? In answer to this question, the majority simply notes, “We presume the jury will follow those instructions.”[18] However, the presumption that jurors will understand and adhere to limiting instructions has been challenged by a number of sources.[19] It is widely believed that limiting instructions have the opposite effect of that intended because they draw the jurors’ attention to evidence that is only intended to be considered in a specific and limited manner.[20] Erik Lillquist, Professor at Seton Hall University School of Law, warns that “[t]he use of a limiting instruction is at best a compromise between admission and exclusion because the general understanding is that limiting instructions have only a small impact on the decisions of jurors.”[21] Professor Lillquist concludes, “The practical result is that the admission of the evidence with a limiting instruction is little different than admission without such a limiting instruction.”[22] Seventh Circuit Judge Richard Posner agrees:

Empirical evidence as well as common sense suggests that courts exaggerate the efficacy of limiting instructions . . . . If [a piece of evidence] is probative (or emotionally compelling), though inadmissible, the limiting instruction is more likely to rivet the jurors’ attention to the evidence than to persuade them to disregard it, even if the judge explains the basis for the instruction.[23]

Similarly, Supreme Court Justice Robert Jackson observed, “The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction.”[24] Given the number of scholars and practitioners who have challenged the effectiveness of such instructions, the majority’s cursory treatment of the subject was woefully inadequate.

C. An Abuse of Discretion?

As the dissent notes, “A district court abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.”[25] Chief Judge Henry explains, “[T]his court may find an abuse of discretion where a district court ‘commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling.’”[26] Based on this standard, the court “necessarily recognize[s] that there may be no single right answer to the question at hand, but a range of possible outcomes sustainable on the law and facts.”[27]

Regardless of whether the Chief Judge agreed with the district court’s ruling, he acknowledged that the “court reasonably assessed [the countervailing considerations listed in the statute]-in particular, concerns about confusion and unfair prejudice,” and he recognized that “[t]he district court’s fine opinion squarely addressed these concerns, as the statute requires.”[28] Given the thoughtful treatment of the issues by the district court, taken together with the ongoing debate regarding the usefulness of limiting instructions, the majority ought to have concluded, as did the dissent, that, “[w]hen reasonable judges can reasonably disagree, [there is] no abuse of discretion.”[29]


[1] J.D. Candidate, 2012, University of Denver Sturm College of Law.

[2] 603 F.3d 850 (10th Cir. 2010), cert. denied, 131 S. Ct. 1718 (2011).

[3] Id. at 852.

[4] Id.

[5] Id. at 855.

[6] Id. at 852-53.

[7] Id. at 856.

[8] Id. at 860.

[9] Id. at 863 (Henry, C.J., dissenting).

[10] Id. at 864.

[11] Gardner v. Florida, 430 U.S. 349, 357-58 (1977).

[12] Anne-Marie von Aschwege, Comment, In the Prosecutor we Trust? A Case Against Permitting Evidence of Unadjudicated Criminal Conduct into the Sentencing Phase of Capital Trials, 26 St. Louis U. Pub. L. Rev. 157, 159 (2007).

[13] Meghan Shapiro, An Overdose of Dangerousness: How “Future Dangerousness” Catches the Least Culpable Capital Defendants and Undermines the Rationale for the Executions it Supports, 35 Am. J. Crim. L. 145, 146 (2008).

[14] Capital Punishment, 39 Geo. L.J. Ann. Rev. Crim. Proc. 804, 814 (2010).

[15] von Aschwege, supra note 12, at 158.

[16] Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation Requires Death; and Mitigation is No Excuse, 66 Brook. L. Rev. 1011, 1031, 1041-42, 1057, 1068 (2001).

[17] Lujan, 603 F.3d at 860.

[18]Id. (citing Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985); U.S. v. Hamilton, 587 F.3d 1199, 1219 (10th Cir. 2009); U.S. v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998)).

[19] Steven Paul Smith, Note, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phases of Capital Trials, 93 Colum. L. Rev. 1249, 1299 (1993).

[20] Tamara L. Graham, Death by Ambush: A Plea for Discovery of Evidence in Aggravation, 17 Cap. Def. J. 321, 323 (2005).

[21] Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N.C. L. Rev. 621, 681-82 (2004).

[22] Id. at 682.

[23] Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1520 (1999).

[24] Krulewitch v. U.S., 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (citations omitted).

[25] Lujan, 603 F.3d at 862 (Henry, C.J., dissenting) (quoting U.S. v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)).

[26] Id. (quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)).

[27] Id.

[28] Id.

[29]Id. at 864.