1. Whether the crime of possession with intent to distribute under 21 U.S.C. $959(c)(2) applies extraterritorially.

2. Whether a non-testifying analyst’s statements in a cellphone extraction report are testimonial hearsay, rather than “raw, machine-created data,” and are thus subject to the Sixth Amendment’s Confrontation Clause.

Petitioner Christopher Henderson, and his co-defendant, Rhonda Carlson, were both charged with capital murder in this case, but only Mr. Henderson was sentenced to death. Ms. Carlson agreed to testify for the State in exchange for a sentence of life without parole. Yet, other than Ms. Carlson’s self-serving testimony, there was no evidence that showed Mr. Henderson was more culpable or more deserving of death. In order to persuade jurors that Mr. Henderson should be sentenced to death, even though Ms. Carlson was not, the prosecution relied on the fact that Mr. Henderson had invoked his right to remain silent, while Ms. Carlson had accepted responsibility. Under these circumstances, and where the prosecution was unable to secure a unanimous death verdict, the question presented 1s:

In the sentencing phase of a capital trial, where the defendant

exercises his right to remain silent and to plead not guilty, does the

Fifth Amendment prohibit the prosecution and the sentencing court

from drawing adverse inferences about a defendant’s lack of remorse

or acceptance of responsibility from his silence?

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In Iowa v. Tovar, 541 U.S. 77, 88 (2004), the Court noted that it “has not …prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel.” The inquiry will depend on the “particular facts and circumstances surrounding the case.” Id. at 92. Case specific factors the trial court should consider include “the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Id. at 88.

While Circuit courts have developed lines of questioning, the requirements are uncertain and result in a wide range of considerations. Often, the inquiry is criticized but rationalized in hindsight. In this case, the Fourth Circuit questioned the extent of the inquiry but upheld the conviction, which does nothing to ensure that the waiver was knowing in this case or that the inquiry will improve for the next.

The question presented follows:

Whether the Court should prescribe more specific requirements to ensure consistency and that defendants’ waivers are knowing, voluntary, and intelligent.

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