Submitted: January 15, 2019
from United States District Court for the Western District of
Missouri - Southern Division
LOKEN, GRASZ, and STRAS, Circuit Judges.
Paul Coonce, Jr. appeals the district
court's judgment sentencing him to death for his
role in the murder of Victor Castro-Rodriguez
("Castro"). We affirm.
and Castro were inmates in a locked ward that housed mental
health patients at the U.S. Medical Center for Federal
Prisoners in Springfield, Missouri ("FMC
Springfield"). Coonce was serving a life sentence for
kidnapping and carjacking, while Castro was committed due to
his mental health and had no projected release date.
officials found Castro dead in his cell on January 26, 2010.
The responding staff found Castro unconscious, with his hands
tied behind his back with medical tape, feet bound at his
ankles with shoelaces, and a brown cloth wrapped around his
neck. Medical staff tried to resuscitate him to no avail. Dr.
Carl Stacy, the government's expert pathologist,
testified that Castro died from asphyxiation due to a
compressed larynx. He opined that the strangulation occurred
from a "larger object," not hands, because of blunt
force trauma to the neck and the lack of any broken hyoid
rings. He also noted blunt force trauma to the chin and
injuries to the upper chest, lower neck, and back of the
head. He estimated Castro died within three to five minutes.
evidence supported the conclusion that Coonce and another
inmate, Charles Hall, had killed Castro by standing on his
neck. Both Coonce's right boot and Hall's shoes
tested positive for a substance containing Castro's DNA.
Coonce had two pairs of shoes in his cell that were missing
their shoelaces. Coonce also showed Federal Bureau of
Investigation ("FBI") Agent Rick McLain where he
had placed his hand on the wall to balance while standing on
camera provided additional circumstantial evidence that
Coonce and Hall killed Castro. The prison did not have
cameras that could see inside Castro's cell or the door
to his cell at the time of the murder. Nevertheless, a camera
showed the only people that approached Castro's cell
during the time of the murder were Coonce and Hall. After a
few minutes, Coonce left the cell for about a minute to talk
to another inmate. He rejoined Hall in Castro's cell, and
both of them were there for about nine additional minutes.
Coonce left again, made a throat-slashing sign to another
inmate and then returned to the cell. Both Coonce and Hall
left the cell a couple minutes later.
repeatedly claimed responsibility for Castro's murder.
His first admissions came shortly after FMC Springfield
officials discovered Castro's body. He particularly
described that he tied up Castro's hands and feet and
stomped on Castro's neck. He explained Castro was a
snitch. That same night, he told an investigating FBI agent
that he kicked Castro in the neck and stood on his throat
until he stopped breathing. Coonce also claimed both he and
another person, which other evidence showed to be Hall, stood
on Castro's neck until Castro stopped breathing. Coonce
explained that interactions with other inmates had upset him
and that he decided to retaliate against Castro for
previously telling prison staff about a minor offense. The
next day, he told a Bureau of Prisons ("BOP")
psychologist that he killed a man and that it was by his
choice. He told the FBI in a subsequent interview that he had
no regrets about killing Castro. Coonce also bragged about
the murder to inmates and admitted it in letters and calls to
friends and family.
2011, a grand jury indicted Coonce on one count of murder in
the first degree within the special maritime and territorial
jurisdiction of the United States, in violation of 18 U.S.C.
§§ 1111 and 2, and one count of murder by a federal
prisoner serving a life sentence, in violation of 18 U.S.C.
§ 1118. The indictment included special findings of the
statutory factors under 18 U.S.C. § 3591 and aggravating
factors under 18 U.S.C. § 3592(c) that made the charged
offenses eligible for the death penalty.
filed a motion for a separate trial from co-defendant Hall.
The district court denied the motion. It concluded that
redacting statements with Bruton risks and
properly instructing the jury would resolve any potential
pre-trial disclosures, the government asked for discovery on
Coonce's mental health evidence and for an
Atkins hearing on whether Coonce was
"mentally retarded." Coonce responded that "the
defense will not be asserting Mr. Coonce is mentally
retarded" and "no Atkins hearing is
an eight-day trial in April and May of 2014, the jury found
Coonce guilty on both counts in the indictment. The district
court then retained the same jury for the capital sentencing
proceeding, where the jury would decide whether to impose the
government alleged Coonce was eligible for the death penalty
based on his crime satisfying the required mental state for
the death penalty and based on his conduct satisfying eight
aggravating factors. Four of the aggravating factors were from
the Federal Death Penalty Act of 1994 ("FDPA"): (1)
causing death during the commission of another crime; (2)
having two or more prior convictions for violent felonies;
(3) committing murder "in an especially heinous, cruel,
or depraved manner in that it involved torture or serious
physical abuse;" and (4) committing murder "after
substantial planning and premeditation." 18 U.S.C.
§ 3592(c)(1), (c)(4), (c)(6), (c)(9). The other four
aggravating factors were "non-statutory" as they
are not listed in the FDPA: (1) future dangerousness, (2)
conduct suggesting a grave indifference to human life, (3)
lack of remorse about Castro's death, and (4) obstructing
justice by retaliating against Castro for reporting
alleged that thirty-three mitigating factors weighed against
the death penalty being an appropriate punishment for him,
twenty-six of which were submitted to the jury. The first ten
of these factors focused extensively on his chaotic and
abusive childhood. Two factors sought to rebut the
government's factors. They alleged Coonce showed remorse
for Castro's death and that he would have help from
loving family and foster family relationships. Six factors
focused on his mental state and on injuries that may have
caused traumatic brain injuries. Three factors alleged he had
a lesser role in the murder. One of these factors suggested
he killed Castro out of a desire to escape abuse from other
inmates due to the sexual offenses in his history. Another
noted Coonce's repeated attempts at suicide. Two factors
alleged he had improved in the two years prior to trial.
Finally, one catch-all factor allowed the jury to acknowledge
"other reasons that weigh against the imposition of a
sentence of death for Defendant Coonce."
hearing all of the penalty phase evidence, the jury
unanimously decided the death penalty should be imposed on
Coonce. They found the government proved all eight
aggravating factors. The entire jury found one mitigating
factor: "Defendant Coonce's childhood was marked by
chaos, abuse (both physical and sexual), as well as neglect
and abandonment." Individual jurors found other
mitigating factors. Eleven jurors found "[t]he chaotic
and abusive life that Defendant Coonce endured as a young
child increased his risk for emotional and mental
disturbances in his adult life." Eight jurors found
"[d]efendant Coonce has suffered from mental and
emotional impairments from a very young age." One juror
found "[d]efendant Coonce's mother, Linda Coonce,
was addicted to illegal drugs and alcohol." In light of
those findings, all of the jurors weighed the aggravating
factors against the mitigating factors and agreed the death
penalty was appropriate.
district court imposed the death penalty as determined by the
jury. Coonce timely appealed.
FDPA requires this court to perform three tasks on review:
(1) "address all substantive and procedural issues
raised on appeal," (2) "consider whether the
sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor," and (3)
assess "whether the evidence supports the special
finding of the existence of an aggravating factor . . . under
section 3592." 18 U.S.C. § 3595(c)(1). The court
may "not reverse or vacate a sentence of death on
account of any error which can be harmless," and the
government bears the burden of proving beyond a reasonable
doubt that the error was harmless. Id. §
raises sixteen arguments on appeal. We address them in order.
Eligibility for the Death Penalty
first argues that he meets the "mentally retarded"
exception to the FDPA and is not eligible for the death
penalty. The FDPA states "[a] sentence of death shall
not be carried out upon a person who is mentally
retarded." 18 U.S.C. § 3596(c). "[C]linical
definitions of mental retardation require not only 
subaverage intellectual functioning, but also  significant
limitations in adaptive skills . . . that  became manifest
before age 18." Atkins v. Virginia, 536 U.S.
304, 318 (2002). Both the Supreme Court and this court have
repeatedly noted the consensus that mental retardation must,
as a definitional matter, onset before age eighteen. See,
e.g., id.; Ortiz v. United States, 664
F.3d 1151, 1158 (8th Cir. 2011). Coonce conceded below, and
concedes on appeal, that his intellectual deficits were onset
at age twenty. Thus, his argument relies on changing the
prevailing understanding of the statutory exception to
encompass an age of onset after eighteen.
response to the government's request for discovery of
mental health evidence, Coonce stated he would not be
asserting that he is "mentally retarded" and that
no Atkins hearing was necessary. Then, on day
fourteen of the capital sentencing proceeding, Coonce filed a
motion requesting an order barring the government from
seeking the death penalty, arguing that the Supreme
Court's decision against a firm IQ score cutoff in
Hall v. Florida, 134 S.Ct. 1986 (2014) also
supported eliminating the firm age cutoff in the definition
of intellectual disability. The motion conceded Coonce did
not meet the medical community's definition of age of
onset but argued for a fluid definition anyway.
assume, without deciding, Coonce preserved his argument and
we hold the age of onset requirement remains before the age
of eighteen. Coonce's main argument to evade the
precedent construing the FDPA is to assert that the age of
onset requirement is not rigid or will change in the near
future. This argument disregards "a 'fundamental
canon of statutory construction' that words generally
should be 'interpreted as taking their ordinary . . .
meaning . . . at the time Congress enacted the
statute.'" New Prime Inc. v. Oliveira, 139
S.Ct. 532, 539 (2019) (ellipses in original) (quoting
Wisconsin Central Ltd. v. United States, 138 S.Ct.
2067, 2074 (2018)). Both the American Psychiatric Association
("APA") and the American Association on
Intellectual and Developmental Disabilities
("AAIDD") agreed at the time Congress enacted the
FDPA's "mentally retarded" exception that the
impairment must onset by definition before
eighteen. Thus, as a matter of statutory
construction, Coonce's argument is meritless.
cites two other sources to persuade us to interpret the FDPA
as having his preferred age of onset requirement: the text of
the Rehabilitation Act of 1973, and a rule promulgated by the
Social Security Administration ("SSA"). We find
Rehabilitation Act evidence is unhelpful because it involves
a policy context that compels no legal conclusion. Coonce is
correct that Congress amended the Rehabilitation Act of 1973
to expand eligibility for disability benefits from those with
a disability onset before eighteen to those with a disability
onset before twenty-two. Rehabilitation, Comprehensive
Services, and Developmental Disabilities Amendments of 1978,
Pub. L. 95-602, 92 Stat. 2955, 3004-05 (1978). He does not
explain how this policy choice defining eligibility for
benefits for physical and mental disabilities constitutes a
medical judgment about mental disability. Because
developmental disability is inherently a legal term, not a
medical one, see Tennessee Prot. & Advocacy,
Inc. v. Wells, 371 F.3d 342, 349 n.5 (6th Cir. 2004),
Congress could redefine the term when it wanted as a matter
of policy. We see no indication in the FDPA that Congress
intended to adopt its policy judgments in other areas in lieu
of the definition that prevailed at the time, especially when
it did not specify that same policy judgment here.
is correct that the Social Security Administration defines
intellectual disability as onset before age twenty-two.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.05. The SSA's rule is unhelpful because it cites no
basis at all for its definition. There is no discussion in
the Federal Register of why that rule was adopted.
See Federal Old-Age, Survivors, and Disability
Insurance; Listing of Impairments-Mental Disorders, 50 Fed.
Reg. 35038, 35049-50 (Aug. 28, 1985). Thirty-one years later,
the SSA did posit a reason for its age of onset: that it
obtained that definition from the American Psychological
Association (as opposed to the American Psychiatric
Association). See Revised Medical Criteria for
Evaluating Mental Disorders, 81 Fed. Reg. 66138, 66155 n.16
(Sept. 26, 2016). This explanation is implausible on its face
because it cites a 1996 manual to justify a 1985 definition.
See id. This does not necessarily harm the
SSA's rule because the agency could adopt a minority view
with its rulemaking authority even when the APA and AAIDD do
not agree. This does harm Coonce's argument, though,
because this court does not promulgate administrative rules
and because Coonce still lacks evidence of experts defining
the age of onset as before age twenty-two at the time
Congress adopted the FDPA. Neither this court nor any
professional association or administrative body has been
delegated the legislative authority to redefine a term
adopted by Congress.
alternatively raises this argument as an Eighth Amendment
challenge. He tells us about recent changes in the debate
over defining disabilities, describing how the APA has
recently changed its definition for the age of onset from
before eighteen to "during the developmental
period," defined as "during childhood or
adolescence." In Coonce's view, this change leaves
open the question of whether the APA still believes the
developmental period is before eighteen. He also tells us
about literature suggesting the AAIDD, which still defines
the age of onset as before eighteen, will eventually shift to
a more vague standard. Both of these arguments are
predictions that medical experts will agree with Coonce's
view in the future. Such evidence is not sufficient for us to
divine any current Eighth Amendment limitation on the
we agree with the district court that the age of onset is
eighteen, we affirm its decision not to hold an
Atkins hearing and not to consider whether Coonce
satisfies the other factors for intellectual ...