United States v. Higgs ( 2003 )


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  •                                                      Volume 1 of 2
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 01-3
    DUSTIN JOHN HIGGS,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Maryland, at Greenbelt.
    Peter J. Messitte, District Judge.
    (CR-98-520-PJM)
    Argued: June 4, 2003
    Decided: December 22, 2003
    Before WILKINS, Chief Judge, and LUTTIG and
    TRAXLER, Circuit Judges.
    Affirmed by published opinion. Judge Traxler wrote the opinion, in
    which Chief Judge Wilkins and Judge Luttig joined.
    COUNSEL
    ARGUED: Timothy Joseph Sullivan, SULLIVAN & SULLIVAN,
    College Park, Maryland, for Appellant. Deborah A. Johnston, Assis-
    tant United States Attorney, Greenbelt, Maryland, for Appellee. ON
    BRIEF: Barbara L. Hartung, Richmond, Virginia, for Appellant.
    2                      UNITED STATES v. HIGGS
    Thomas M. DiBiagio, United States Attorney, Sandra Wilkinson,
    Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
    OPINION
    TRAXLER, Circuit Judge:
    During the early morning hours of January 27, 1996, Tanji Jack-
    son, Tamika Black, and Mishann Chinn were found murdered in the
    Patuxent National Wildlife Refuge in Prince George’s County, Mary-
    land. Dustin John Higgs was subsequently convicted by a federal jury
    of three counts of first-degree premeditated murder, see 
    18 U.S.C.A. § 1111
    (a) (West 2000), three counts of first-degree murder committed
    in the perpetration or attempted perpetration of a kidnapping, see 
    id.,
    and three counts of kidnapping resulting in death, see 
    18 U.S.C.A. § 1201
    (a)(2) (West 2000), all of which are punishable by life impris-
    onment or death. Higgs was also convicted of three counts of using
    a firearm "during and in relation to [a] crime of violence." 
    18 U.S.C.A. § 924
    (c) (West 2000). Ultimately, Higgs received nine
    death sentences under the Federal Death Penalty Act of 1994, see 
    18 U.S.C.A. § 3591
     - 3598 (West 2000 & Supp. 2003) (the "FDPA" or
    "Act"), one for each murder and kidnapping count, and a consecutive
    45-year sentence for the firearm convictions. See 
    18 U.S.C.A. § 924
    (c)(1). On appeal, Higgs challenges his convictions and sen-
    tences on multiple grounds. Having considered all issues raised by
    Higgs on appeal, as well as the question of "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 con-
    sidered under section 3592," we find no reversible error. Accordingly,
    we affirm Higgs’s convictions and the sentences of death imposed by
    the district court.
    I. Background
    A. The Murders
    On Friday evening, January 26, 1996, Higgs, Willie Mark Haynes
    UNITED STATES v. HIGGS                          3
    and Victor Gloria drove from Higgs’s apartment at 13801 Briarwood
    Drive in Laurel, Maryland, to Washington D.C. to pick up Tanji Jack-
    son, Tamika Black, and Mishann Chinn. Higgs knew Jackson and
    they had arranged dates for Haynes and Gloria with Black and Chinn.
    They were traveling in Higgs’s blue Mazda MPV van. After stopping
    at a liquor store, the three couples returned to Higgs’s apartment to
    drink alcohol and listen to music. While there, the men also smoked
    marijuana.1
    At some point during the early morning hours of January 27, Higgs
    and Jackson began to argue. Jackson retrieved a knife from the
    kitchen and Haynes, who had been in the bedroom with Black, heard
    the commotion and came out to break up the fight. Haynes talked to
    Jackson and got the knife away from her. However, Jackson was still
    angry and the three women left the apartment. According to Gloria,
    as Jackson was walking out, "[s]he stopped at the door and said some-
    thing like I am going to get you all f---ed up or robbed" or made
    "some kind of threat." J.A. 473. In response, Higgs commented to the
    other two men that Jackson "do know a lot of n-----s." J.A. 474. As
    Higgs was watching the women leave, he saw Jackson stop and
    appear to write down the license plate number of his van. This
    angered Higgs, who commented to Haynes and Gloria that Jackson
    was "writing down [his] sh--." J.A. 474. Gloria interpreted Higgs’s
    comments as concern that Jackson intended to retaliate against Higgs.
    At that point, "Higgs said f---- that, and grabbed his coat and said
    come on." J.A. 474. He also retrieved a silver .38 caliber firearm from
    the end table drawer and put it in his pocket. The three men got into
    Higgs’s van, with Higgs driving, Haynes in the front passenger seat,
    1
    After he was arrested in the fall of 1998 on federal charges of illegal
    distribution of crack cocaine, Victor Gloria agreed to cooperate with the
    government in the murder case against Higgs and Haynes. Most of the
    facts surrounding the murders of the three women were obtained from
    his eyewitness testimony. However, Gloria’s testimony was partially cor-
    roborated by a friend of the Jackson family and Chinn’s mother, both of
    whom observed the girls being picked up by a man or men in a blue
    Mazda MPV van. Gloria ultimately pled guilty to being an accessory
    after the fact to the murders and was sentenced to eighty-four months
    incarceration with three years supervised release.
    4                       UNITED STATES v. HIGGS
    and Gloria sitting behind Higgs. Higgs drove the van to where the
    three women were walking on the side of the road and told Haynes
    to get them in the vehicle. After Haynes spoke to them, the three
    women got into the back seat of the vehicle and Higgs started driving
    towards Washington, D.C. Neighbors in the area heard and saw the
    three girls laughing and talking around 3:30 that morning.
    According to Gloria, while en route to Washington, D.C., Higgs
    and Haynes leaned towards each other and engaged in a quiet conver-
    sation that Gloria could not hear. The women were whispering in the
    back of the van and apparently believed they were being taken home.
    Higgs, however, drove past the Baltimore-Washington Parkway exit,
    which would have taken them directly into Washington, D.C., and
    instead drove the van into the Patuxent National Wildlife Refuge, a
    federal property within the jurisdiction of the United States Park
    Police. Eventually, Higgs pulled over at a secluded location. One of
    the girls asked if they were trying to "make [them] walk from [t]here,"
    and Higgs responded, "something like that." J.A. 482. After the
    women got out of the van, Higgs pulled out the pistol and handed it
    to Haynes, who put it behind his back and also exited the van. Within
    moments, Gloria heard a gunshot and wiped the mist off the back
    window in time to see Haynes shoot one of the women in the chest.
    Gloria turned to ask Higgs what he was doing, but saw Higgs holding
    the steering wheel and watching the shootings from the rearview mir-
    ror. Gloria put his head down, heard more shots, and heard a woman
    screaming.
    After firing a few more shots, Haynes got into the van and closed
    the door. According to Gloria, either Higgs or Haynes then com-
    mented that they had to "get rid of the gun," J.A. 485, and Higgs
    drove to the Anacostia River where, according to Gloria, either Higgs
    or Haynes got out and threw the gun into the water. Higgs then drove
    back to his apartment where the three men began to clean up. Among
    other things, they wiped down the patio doors and "everything else,
    the bathroom, the doorknobs, the stereo," and threw away any items
    the women might have touched, such as liquor bottles, CDs, and
    rented videotapes. J.A. 487. The men then left the apartment and
    dropped the trash by a dumpster. Higgs and Haynes dropped Gloria
    off at a fast food restaurant, where he was told by Higgs to "keep [his]
    mouth shut." J.A. 489.
    UNITED STATES v. HIGGS                        5
    At about 4:30 a.m., a motorist found the bodies of the three women
    strewn about the roadway and contacted the Park Police. Jackson’s
    day planner was found at the scene with Higgs’s nickname —
    "Bones" — and telephone number recorded in it. On another page
    was written "13801 ‘MAZDA’ 769GRY" — Higgs’s address number
    on Briarwood Drive and the tag number for his Mazda van. A .38 cal-
    iber wadcutter bullet was also found there. According to the medical
    examiner, Jackson and Black had each been shot once in the chest and
    once in the back. Chinn had been shot once in the back of the head.
    B. The Investigation
    Although Higgs was almost immediately a suspect, the investiga-
    tion into the murders continued for nearly three years before an arrest
    was made. On March 21, 1996, Park Police officers first interviewed
    Higgs at his apartment. At that time, Higgs acknowledged that he
    knew Jackson and that he may have talked to her the night before she
    died, but he denied that she had ever been in his apartment. Higgs told
    the officers that he first heard about the murders while watching the
    ten o’clock news on Saturday, January 27, while attending a party at
    the home of Phyllis Smith, who was his girlfriend at the time. Higgs
    also told the officers that he had immediately commented to a party
    guest that he thought he knew "that Tanji girl." J.A. 672. According
    to the chief investigator, however, the names and photographs of the
    three victims were not released to the media until January 28.
    After the interview of Higgs was concluded, the officers executed
    an arrest and search warrant arising from Higgs’s suspected involve-
    ment in unrelated bank fraud violations. In addition to a variety of
    documents and cash bundles, the officers seized crack cocaine, a .380
    semiautomatic firearm, and boxes of ammunition for .380, .45 and .38
    caliber weapons. Higgs was arrested on federal drug charges and, on
    May 12, 1997, pled guilty to possession with intent to distribute
    cocaine base. He was ultimately sentenced to seventeen years impris-
    onment for the charge. Higgs has remained in the custody of either
    state or federal law enforcement officials since that arrest.
    After Higgs was interviewed and arrested, the Park Police turned
    their attention to Phyllis Smith. Smith initially provided a false alibi
    for Higgs on the night of the murders. She claimed that Higgs had
    6                      UNITED STATES v. HIGGS
    been with her and her family members the entire night of January 26,
    helping her clean her home in preparation for the party that was to be
    held the following night. She also instructed her family members to
    confirm the alibi. In April 1996, however, Smith testified before the
    grand jury that Higgs was only with her at 5 a.m. on January 27.
    Ultimately, Smith recanted both accounts. She testified that Higgs
    called her when he was arrested in March 1996 and asked her to tell
    officials that he had been with her the entire night of January 26. She
    did as she was instructed, but believed at the time that she was being
    interviewed in connection with the drug charges that had been filed
    against Higgs. When Smith later learned that the questions pertained
    to the triple murder investigation, Higgs told her that he did not know
    the murdered women, but that Haynes had known them. When Smith
    was called before the grand jury in late 1998, she admitted her earlier
    lies about Higgs’s whereabouts that night. Although she and several
    of her family members had been cleaning her home on the evening
    of January 26, Higgs was not with them. Nor was Higgs at her house
    in the early morning hours of January 27. At trial, Smith again testi-
    fied that Higgs had not helped her prepare for the party that night and
    was not with her when she went to bed at 1:30 a.m. on January 27.
    Nor was he in her home when she awoke, as she routinely did, at 5
    a.m. to care for her disabled son. Smith returned to bed shortly there-
    after and awoke at 10:00 a.m., when she first found Higgs and Haynes
    present in her home. Thus, Higgs must have arrived at Smith’s home
    sometime between 5 a.m. and 10 a.m. on the morning of January 27.
    Smith did confirm that Higgs and Haynes were at her house that night
    for the party and that the television was on during the party.
    Officers also interviewed Enidsia Darby, a former girlfriend of
    Higgs and the mother of his son, Daquon. Darby testified that Higgs
    contacted her by telephone after his March 1996 arrest and told her
    that he had been arrested for drugs. Darby, however, had seen news
    reports of Higgs’s arrest that contained photographs of the three mur-
    dered women and she asked Higgs about them. In response, Higgs
    asked Darby if she remembered that he had been with her at the hos-
    pital on the night of the murders, which was not true. When Darby
    visited Higgs in jail, Higgs admitted that he had been present when
    Haynes shot the women. He told Darby that Jackson had been invited
    over to his house to smoke and drink because she had been "snitching
    UNITED STATES v. HIGGS                          7
    on one of them." J.A. 759. He told her that he did not know the other
    two girls; "[t]hey were just for his friends." J.A. 761.
    In addition to her testimony regarding Higgs’s drug activities,
    Darby offered testimony regarding a bank fraud scheme and credit
    card scheme that she and Higgs had conducted in the fall of 1995.
    Higgs deposited checks into accounts that had been opened by Darby
    and Andrea Waters, one of Darby’s friends. The women, in turn,
    would withdraw the cash and give it to Higgs. Waters was paid a por-
    tion of the money withdrawn from her account, but when the checks
    deposited in her account bounced and Higgs refused to return the
    money, she threatened to go to the police. Higgs responded with a
    threat to kill her. Darby also testified that, while employed in the elec-
    tronics department of a retail department store, she charged merchan-
    dise for Higgs to a credit card number Higgs had given her. Months
    later, when Darby was contacted by the police about the matter, Higgs
    threatened to kill her if she identified him from the surveillance pho-
    tographs.
    The investigation into Higgs’s possible involvement in the murders
    also uncovered his participation in two prior shooting incidents
    involving a .38 caliber weapon. The incidents were significant
    because the same caliber weapon had been used to murder the three
    women.
    The first incident occurred on November 20, 1995, approximately
    two months before the murders. Higgs got into an argument outside
    the Chaconia Nightclub in Washington, D.C., and shot out the win-
    dows of a vehicle in a drive-by shooting. After Higgs’s arrest on the
    federal drug charges and while the murder investigation was still
    underway, the vehicle was searched and the police recovered a .38
    caliber bullet. Wondwossen Kabtamu, who was with Higgs at the
    time of the Chaconia shooting, testified that he drove Higgs’s Mazda
    MPV van while Higgs did the shooting. Kabtamu threw the gun out
    the window after the shooting, but they returned to get it at Higgs’s
    insistence.
    Higgs was ultimately charged with the Chaconia shooting in the
    D.C. Superior Court. In late 1998, while housed at a D.C. jail, Higgs
    had a number of discussions about the Chaconia charges with Domen-
    8                       UNITED STATES v. HIGGS
    ick Williams, a fellow inmate and "jailhouse lawyer." Higgs never
    admitted involvement in the Chaconia shooting to Williams, but he
    did tell Williams "[t]hat he didn’t want to plead guilty because they
    would try to use the gun in another case." J.A. 975. After Williams
    learned through a press report that Higgs was being indicted for the
    murders of the three women, Higgs commented to Williams, "you see
    why I can’t plead guilty to that charge?" J.A. 979. Higgs also advised
    Williams that he had rebuffed the authorities’ attempts to strike a deal
    with him to cooperate against his co-defendant Haynes. When Wil-
    liams advised Higgs that the authorities would likely offer Haynes a
    deal to cooperate if Higgs refused, Higgs told Williams "that his
    youngan would hold up," J.A. 984, and "that the government
    wouldn’t offer a deal to the trigger man," J.A. 985.
    Williams also testified that Higgs asked him what the chances
    would be "if the witness after the fact wasn’t there," J.A. 982, refer-
    ring to Gloria. Williams told him that "his chances would be good."
    J.A. 983. Higgs later "explained to [Williams] that he wasn’t worry-
    ing about the [murder] case because Mel and T would be out there."
    J.A. 987. Melvin Grayson and "T" were former inmates at the jail
    where Williams and Higgs were incarcerated. Higgs told Williams
    "[t]hat Mel would be out there to handle anything that he needed and
    that he could rely on him." J.A. 992.
    Williams later notified the authorities of his conversations with
    Higgs and produced letters that Higgs had written to him in which
    Higgs reported that the Chaconia case had been dismissed, that Higgs
    had not heard from "T", but that "Mel has been in my corner." J.A.
    1011. Through visitation records, authorities learned that Melvin
    Grayson had visited Higgs in the D.C. jail in February 1999 and again
    in March 1999. The Chaconia charges against Higgs were dismissed
    in D.C. Superior Court in May 1999.
    The second shooting incident occurred on December 10, 1995,
    approximately a month after the Chaconia nightclub shooting. Haynes
    went to the home of Rodney Simms on Cherry Lane in Laurel, Mary-
    land, and argued with Simms about a woman. During the argument,
    Haynes took out a 9mm handgun and began shooting. Higgs came out
    from a nearby shed and also began firing shots. Haynes and Higgs
    were charged in Maryland state court for the shooting. Police recov-
    UNITED STATES v. HIGGS                          9
    ered 9mm and .38 caliber bullets and bullet casings from the Cherry
    Lane crime scene. Forensic evidence revealed that the .38 caliber bul-
    lets fired from the weapons at the Cherry Lane and Chaconia sites had
    five "lands and grooves," with a right twist.2 Although forensics could
    not definitively conclude that the bullets had been fired from the same
    weapon, the .38 caliber bullets recovered from the Patuxent murder
    scene and the murder victims were also .38 caliber bullets shot from
    a gun with five lands and grooves with a right twist.
    In April 1997, Higgs pled guilty to the Cherry Lane shooting and
    was sentenced to 18 months imprisonment. During the plea hearing,
    the prosecutor stated that Haynes had fired the 9mm handgun and that
    Higgs had fired the .38 caliber handgun. Higgs offered no contest to
    the facts underlying the Cherry Lane shooting, with the single excep-
    tion of gratuitously asserting that he "didn’t have a .38. It was the
    other way around." J.A. 1104.
    C. The Indictment
    On December 21, 1998, Higgs and Haynes were indicted for three
    counts each of first-degree premeditated murder, see 
    18 U.S.C.A. § 1111
    (a), first-degree murder committed in the perpetration or
    attempted perpetration of a kidnapping, see id, kidnapping resulting
    in death, see 
    18 U.S.C.A. § 1201
    (a), and using a firearm in the com-
    mission of a crime of violence, see 
    18 U.S.C. § 924
    (c). On October
    22, 1999, the government filed the statutorily-required notice of its
    intent to seek a death sentence for the murder and kidnapping charges.
    See 
    18 U.S.C.A. § 3593
    (a). On December 20, 1999, the grand jury
    returned a second superseding indictment, and the government filed
    an amended death notice on February 8, 2000.3
    2
    According to the testimony, "lands and grooves" refer to the rifling
    marks that are "pressed onto a bullet when it travels down a barrel of a
    firearm." J.A. 1137. Because "[d]ifferent manufacturers will have differ-
    ent numbers of lands and grooves, different directions of twist, right or
    left, and different sizes," J.A. 1123-24, the marks allow forensic investi-
    gators to compare firearms with fired bullets and cartridge cases, and to
    compare fired bullets and cartridge cases from different crime scenes to
    one another.
    3
    All references made to the indictment or death notice hereafter refer
    to the amended documents.
    10                       UNITED STATES v. HIGGS
    The cases were severed for trial. Haynes was tried first and con-
    victed of first-degree murder, kidnapping, and use of a firearm during
    a crime of violence. During the penalty phase of Haynes’s trial for the
    murder and kidnapping counts, however, the jury was unable to reach
    a unanimous verdict on the death sentence. Accordingly, on August
    24, 2000, the district court sentenced Haynes to concurrent life terms
    for the first-degree murder and kidnapping counts and to a forty-five
    year consecutive sentence for the firearm offenses. His convictions
    and sentences were affirmed on appeal. See United States v. Haynes,
    
    26 Fed. Appx. 123
    , 
    2001 WL 1459702
     (4th Cir. 2001), cert. denied,
    
    535 U.S. 979
     (2002).
    D. The Trial
    Jury selection in Higgs’s trial began on September 5, 2000, and the
    jury returned guilty verdicts on all charges on October 11, 2000. The
    case then proceeded to the penalty phase. On October 26, 2000, after
    hearing evidence on aggravating and mitigating factors, the jury
    returned a sentence of death for each of the murder and kidnapping
    counts.
    In order to impose a sentence of death under the FDPA, a jury is
    required to find at least one "intent" factor enumerated by Congress,
    see 
    18 U.S.C.A. § 3591
    (a)(2), and at least one statutory "aggravating"
    factor, see 
    18 U.S.C.A. § 3592
    (c). Once the jury finds the requisite
    intent and statutory aggravating factors, the crime is death-eligible.
    The jury must then determine the existence of any nonstatutory aggra-
    vating factors submitted to it for consideration, provided the govern-
    ment has given the appropriate notice of its intent to submit such
    additional factors, see 
    18 U.S.C.A. § 3592
    (c), as well as any mitigat-
    ing factors, see 
    18 U.S.C.A. § 3592
    (a), and "consider whether all the
    aggravating factor or factors found to exist sufficiently outweigh all
    the mitigating factor or factors found to exist to justify a sentence of
    death," 
    18 U.S.C.A. § 3593
    (e).
    As to all victims and offenses, the jury in Higgs’s case determined
    that the government had proven two intent factors beyond a reason-
    able doubt: (1) that Higgs had "intentionally participated in . . . act[s],
    contemplating that the [lives] of [the victims] would be taken or
    intending that lethal force would be used in connection with [the vic-
    UNITED STATES v. HIGGS                        11
    tims]"; and (2) that Higgs had "intentionally and specifically engaged
    in . . . act[s] of violence, knowing that the act[s] created a grave risk
    of death to the [victims]." See 
    18 U.S.C.A. § 3591
    (a)(2)(C) & (D).
    The jury also found that the government had proven beyond a rea-
    sonable doubt four statutory aggravating factors: (1) that the deaths
    occurred during the commission of another crime (kidnapping), for
    the first-degree murder counts only, see 
    18 U.S.C.A. § 3592
    (c)(1); (2)
    that Higgs had a previous conviction of a violent felony involving a
    firearm, based on Higgs’s guilty plea to assault and reckless endan-
    germent for his participation in the Cherry Lane shooting, see 
    18 U.S.C.A. § 2592
    (c)(2); (3) that Higgs had a previous conviction for
    a serious federal drug offense, based on Higgs’s March 1996 arrest
    and subsequent conviction for possession with intent to distribute
    cocaine base, see 
    18 U.S.C.A. § 3592
    (c)(12); and (4) that the crime
    for which he was on trial involved multiple killings in a single crimi-
    nal episode, see 
    18 U.S.C.A. § 3592
    (c)(16). The jury found that the
    government had also proven two nonstatutory aggravating factors
    beyond a reasonable doubt: (1) that Higgs had caused harm and loss
    to each victim and their families, based on the effect of the offense
    on the victims, their personal characteristics as individual human
    beings, and the impact of the death upon the victims and their families
    ("victim impact"); and (2) that Higgs obstructed the investigation into
    the kidnappings and murders by tampering or attempting to tamper
    with evidence and witnesses ("obstruction of justice").
    Members of the jury also found three mitigating factors by a pre-
    ponderance of the evidence: (1) that Higgs was not the sole proximate
    cause of the victims’ deaths (12 jurors); (2) that Higgs was impaired
    by alcohol and marijuana at the time of the murders (2 jurors); and
    (3) that a sentence of death would have an adverse impact on Higgs’s
    son (4 jurors). See 
    18 U.S.C.A. § 3592
    (a). However, the jury unani-
    mously rejected three additional mitigating factors: (1) that Haynes
    was an equally culpable defendant who had not been sentenced to
    death for the murders; (2) that Higgs’s family history, including the
    abandonment by his father and the death of his mother at a young age,
    influenced the direction his life had taken; and (3) that other factors
    in Higgs’s background, record, or character or other circumstances of
    the offense mitigated against imposition of the death sentence.
    12                      UNITED STATES v. HIGGS
    Ultimately, the jury recommended that Higgs be sentenced to death
    for each death-eligible conviction and, on January 3, 2001, the district
    court imposed nine death sentences. The district court also imposed
    sentences of five years, twenty years, and twenty years for the three
    § 924(c) convictions, respectively, directing that the sentences be
    served consecutively. Additionally, the court imposed a three-year
    term of supervised release and directed Higgs to pay restitution of
    $13,687. On appeal, Higgs presents twenty separate assignments of
    error to his convictions and sentences, which we address in turn.
    II. The Sufficiency of the Indictment
    We first consider Higgs’s claim that his capital convictions and
    death sentences must be vacated because the indictment failed to
    charge Higgs specifically with the intent factors required under 
    18 U.S.C.A. § 3591
    (a)(2) and the aggravating factors required under 
    18 U.S.C.A. § 3592
    (c) to impose a sentence of death under the FDPA.
    We review the legal sufficiency of an indictment de novo. See United
    States v. Bolden, 
    325 F.3d 471
    , 486 (4th Cir. 2003).
    A. The Indictment Clause
    The Indictment Clause of the Fifth Amendment provides, in perti-
    nent part, that "[n]o person shall be held to answer for a capital, or
    otherwise infamous crime, unless on a presentment or indictment of
    a Grand Jury." U.S. Const. amend. V. Its purpose is to ensure that a
    defendant’s jeopardy is limited "to offenses charged by a group of his
    fellow citizens acting independently of either prosecuting attorney or
    judge." Stirone v. United States, 
    361 U.S. 212
    , 218 (1960). In con-
    junction with the notice requirement of the Sixth Amendment,4 the
    Indictment Clause provides two additional protections: the right of a
    defendant to be notified of the charges against him through a recita-
    tion of the elements, and the right to a description of the charges that
    is sufficiently detailed to allow the defendant to argue that future pro-
    ceedings are precluded by a previous acquittal or conviction. See Rus-
    sell v. United States, 
    369 U.S. 749
    , 763-64 (1962); see also Hamling
    4
    The Sixth Amendment provides that "[i]n all criminal prosecutions,
    the accused shall enjoy the right . . . to be informed of the nature and
    cause of the accusation." U.S. Const. amend. VI.
    UNITED STATES v. HIGGS                         13
    v. United States, 
    418 U.S. 87
    , 117 (1974) ("[A]n indictment is suffi-
    cient if it, first, contains the elements of the offense charged and fairly
    informs a defendant of the charge against which he must defend, and,
    second, enables him to plead an acquittal or conviction in bar of
    future prosecutions for the same offense"); United States v. Carring-
    ton, 
    301 F.3d 204
    , 209-10 (4th Cir. 2002) (same). In this case, we are
    presented with the question of whether Higgs’s federal indictment
    sufficiently alleged the nine murder and kidnapping counts as death-
    eligible, capital offenses — an inquiry that places us squarely within
    the arena of Apprendi and its progeny. See Apprendi v. New Jersey,
    
    530 U.S. 466
     (2000).
    In Apprendi, the defendant was convicted of second-degree posses-
    sion of a firearm, punishable by a term of imprisonment of between
    five and ten years. However, he was sentenced to twelve years impris-
    onment under New Jersey’s "hate crime" law, which authorized an
    enhanced sentence of between ten and twenty years if the sentencing
    judge found, by a preponderance of the evidence, that the crime was
    motivated by racial animus. The Supreme Court reversed and
    remanded, concluding that the Sixth Amendment mandated that,
    "other than the fact of a prior conviction, any fact that increases the
    penalty for a crime beyond the prescribed statutory maximum must
    be submitted to a jury, and proved beyond a reasonable doubt." 
    Id. at 490
    .
    A similar mandate flows from the Fifth Amendment’s Indictment
    Clause: "In federal prosecutions, such facts must also be charged in
    the indictment." United States v. Cotton, 
    535 U.S. 625
    , 627 (2002);
    see also United States v. Promise, 
    255 F.3d 150
    , 156-57 (4th Cir.
    2001) (en banc) (holding that, when applying Apprendi to a federal
    prosecution, a fact that increases the maximum penalty "must be
    treated as an element of an aggravated . . . offense, i.e., charged in the
    indictment and proved to the jury beyond a reasonable doubt" (foot-
    note omitted)); id at 157 n.6 (rejecting argument that "a fact that
    increases the maximum penalty must be treated as an element for pur-
    poses of some rights guaranteed by the Fifth Amendment (e.g. the
    right to a determination of guilt beyond a reasonable doubt) but not
    others (e.g., the right to indictment by a grand jury)").
    These cases stand for the settled proposition that, with the excep-
    tion of the fact of a prior conviction, a defendant may not be exposed
    14                      UNITED STATES v. HIGGS
    "to a penalty exceeding the [statutory] maximum he would receive if
    punished according to the facts reflected in the jury’s verdict alone."
    Apprendi, 
    530 U.S. at 483
    . In determining whether a particular fact
    is to be treated as an element of the offense, as opposed to a sentenc-
    ing factor, "the relevant inquiry is one not of form, but of effect —
    does the required finding expose the defendant to a greater punish-
    ment than that authorized by the jury’s guilty verdict?" 
    Id. at 494
    .
    In Ring v. Arizona, 
    536 U.S. 584
     (2002), the Supreme Court had
    occasion to consider the effect of Apprendi’s holding upon Arizona’s
    capital sentencing scheme, which allowed the trial judge alone to
    determine the presence of aggravating factors required for imposition
    of the sentence of death. Overruling its prior decision in Walton v.
    Arizona, 
    497 U.S. 639
     (1990),5 the Court struck down the scheme,
    holding that the Sixth Amendment mandates that "[c]apital defen-
    dants, no less than non-capital defendants, . . . are entitled to a jury
    determination of any fact on which the legislature conditions an
    increase in their maximum punishment." Ring, 
    536 U.S. at 589
    . "If a
    State makes an increase in a defendant’s authorized punishment con-
    tingent on the finding of a fact, that fact . . . must be found by a jury
    beyond a reasonable doubt. A defendant may not be exposed to a pen-
    alty exceeding the maximum he would receive if punished according
    to the facts reflected in the jury verdict alone." 
    Id. at 602
     (internal
    citation, quotation marks and alterations omitted). "Because Arizona’s
    enumerated aggravating factors operate as the functional equivalent of
    an element of a greater offense," the Court held that "the Sixth
    Amendment requires that they be found by a jury." 
    Id. at 609
     (internal
    quotation marks omitted).
    The Arizona sentencing scheme at issue in Ring did not directly
    implicate the Fifth Amendment Indictment Clause. See Ring, 
    536 U.S. at
    597 n.4 (noting that Ring "does not contend that his indict-
    ment was constitutionally defective" and that "the Fourteenth Amend-
    5
    In Walton v. Arizona, the Court had held that Arizona’s sentencing
    scheme did not run afoul of the Sixth Amendment because the aggravat-
    ing factors were not "element[s] of the offense of capital murder." 
    497 U.S. 639
    , 649 (1990). The Ring Court concluded that this holding was
    "irreconcilable" with Apprendi’s reasoning. See Ring v. Arizona, 
    536 U.S. 584
    , 589 (2002).
    UNITED STATES v. HIGGS                           15
    ment has not been construed to include the Fifth Amendment right to
    presentment or indictment of a Grand Jury" (internal quotation marks
    and ellipsis omitted)). Thus, the Supreme Court has not yet addressed
    the precise issue of whether, and to what extent, the Indictment
    Clause requires that the intent and aggravating factors be charged in
    the indictment. Higgs asserts that the principles of Apprendi and Ring
    dictate that any factor required to be submitted to the jury must be
    included in the indictment. We agree.
    Higgs’s indictment charged him with three counts each of premedi-
    tated murder, murder committed in the perpetration of a kidnapping,
    and kidnapping resulting in death. Like the Arizona criminal statutes
    at issue in Ring, the federal statutes setting forth these offenses pro-
    vide that the offender shall be punished by either death or life imprison-
    ment.6
    6
    Section 1111 of Title 18 provides as follows:
    (a) Murder is the unlawful killing of a human being with
    malice aforethought. Every murder perpetrated by poison, lying
    in wait, or any other kind of willful, deliberate, malicious, and
    premeditated killing; or committed in the perpetration of, or
    attempt to perpetrate, any arson, escape, murder, kidnapping,
    treason, espionage, sabotage, aggravated sexual abuse or sexual
    abuse, burglary, or robbery; or perpetrated from a premeditated
    design unlawfully and maliciously to effect the death of any
    human being other than him who is killed is murder in the first
    degree.
    ....
    (b) Within the special maritime and territorial jurisdiction of
    the United States,
    Whoever is guilty of murder in the first degree shall be pun-
    ished by death or by imprisonment for life.
    
    18 U.S.C.A. § 1111
     (emphasis added). Section 1201 of Title 18 provides
    that:
    (a) Whoever unlawfully seizes, confines, inveigles, decoys,
    kidnaps, abducts, or carries away and holds for ransom or reward
    or otherwise any person, except in the case of a minor by the par-
    ent thereof, when —
    16                       UNITED STATES v. HIGGS
    A defendant does not become eligible for the death penalty, how-
    ever, unless the jury finds at least one statutory intent factor, see 
    18 U.S.C.A. § 3591
    (a)(2), and at least one statutory aggravating factor,
    see 
    18 U.S.C.A. § 3592
    (c). See Jones v. United States, 
    527 U.S. 373
    ,
    376-377 (1999); see also 
    18 U.S.C.A. § 3593
    . Because a defendant
    may be sentenced only to life imprisonment unless the jury finds the
    existence of at least one intent factor and one statutory aggravating
    factor, we have little trouble concluding that such factors increase the
    penalty for the crimes of first-degree murder and kidnapping resulting
    in death beyond the otherwise maximum sentence of life imprison-
    ment. Accordingly, with the exception of the fact of prior convictions,
    those intent and aggravating factors which the government intends to
    rely upon to render a defendant death-eligible under the FDPA are the
    functional equivalent of elements of the capital offenses and must be
    charged in the indictment, submitted to the petit jury, and proved
    beyond a reasonable doubt.
    We reject, however, Higgs’s claim that the Indictment Clause
    requires that nonstatutory aggravators relied upon by the government
    at trial be included in the indictment. The finding of a nonstatutory
    aggravator alone will not support imposition of the death penalty.
    Rather, the purpose of nonstatutory aggravators is to aid the factfinder
    in selecting the appropriate sentence from the available options, i.e.,
    death or life imprisonment. Thus, "the sentencer determines whether
    a defendant eligible for the death penalty should in fact receive that
    sentence. What is important at the selection stage is an individualized
    determination on the basis of the character of the individual and the
    circumstances of the crime." Tuilaepa v. California, 
    512 U.S. 967
    ,
    ...
    (2) any such act against the person is done within the special
    maritime and territorial jurisdiction of the United States;
    ...
    shall be punished by imprisonment for any term of years or for
    life and, if the death of any person results, shall be punished by
    death or life imprisonment.
    
    18 U.S.C.A. § 1201
    (a)(2) (emphasis added).
    UNITED STATES v. HIGGS                       17
    972 (1994) (internal quotation marks omitted); see also Jones, 
    527 U.S. at 376-379
     (discussing the FDPA decisionmaking process and
    the distinction between the "eligibility" decision and the "selection"
    decision); Zant v. Stephens, 
    462 U.S. 862
    , 878-79 (1983) (discussing
    difference between "eligibility" and "selection" factors); cf. United
    States v. Tipton, 
    90 F.3d 861
    , 893-94 (4th Cir. 1996) (discussing the
    decisionmaking process under the analogous death sentencing pro-
    ceedings of 
    21 U.S.C. § 848
    ). Because nonstatutory aggravating fac-
    tors do not increase the available punishment to which a defendant
    might be subjected, they are not required to be alleged in the indict-
    ment.
    B. The Indictment for Capital Murder
    We now turn to the issue of whether Higgs’s indictment for the
    capital crimes was in fact constitutionally defective under the Indict-
    ment Clause because it failed to allege the statutory intent and aggra-
    vating factors relied upon by the government.
    1. The Intent Factors
    We begin with the intent factors of 
    18 U.S.C.A. § 3591
    (a)(2). In
    returning the verdict of death for each of the murder and kidnapping
    charges, the jury found that the government had proven two such fac-
    tors beyond a reasonable doubt — intentional acts to take a life and
    intentional acts of violence creating a grave risk of death. See 
    18 U.S.C.A. § 3591
    (a)(2). In the indictment, Higgs is charged with kill-
    ing each of the three women, "by shooting [them] with a firearm,
    willfully, deliberately, maliciously, and with premeditation," and "in
    the perpetration of . . . kidnapping." J.A. 135-36, 140-41, 145-46.
    Hence, the indictment sufficiently alleged that Higgs engaged in
    intentional acts to take the lives of the three women and intentional
    acts of violence that created a grave risk of death to the three women.
    2. The Statutory Aggravating Factors
    The question of whether the indictment sufficiently alleged the
    statutory aggravating factor required under 
    18 U.S.C.A. § 3592
    (c) to
    impose a death sentence is more difficult to answer.
    18                       UNITED STATES v. HIGGS
    We reject at the outset Higgs’s contention that the indictment failed
    to sufficiently charge each of the capital murder and kidnapping
    counts because it failed to allege all of the statutory aggravating fac-
    tors which were ultimately found by the petit jury. The FDPA sets
    forth sixteen potentially aggravating factors for a homicide convic-
    tion. See 
    18 U.S.C.A. § 3592
    (c). However, only one such aggravating
    factor need be found for the jury to recommend a sentence of death.
    See 
    18 U.S.C.A. § 3593
    (d) & (e). Because only one statutory aggra-
    vating factor is required under the Act to render a defendant death-
    eligible, we hold that the indictment need only allege one such aggra-
    vating factor. See United States v. Jackson, 
    327 F.3d 273
    , 287 (4th
    Cir. 2003) (Niemeyer, J., concurring) ("[W]hen the death penalty is
    dependent on a finding of an aggravated offense, then the core statu-
    tory elements of that offense, as well as at least one aggravating fac-
    tor, must be charged in the indictment and found by the jury."). There
    is no requirement that the indictment allege all of the factors that
    might be weighed by the jury when deciding whether to impose a
    death sentence. So long as one statutory aggravating factor is alleged
    in the indictment and the petit jury finds that statutory aggravating
    factor to exist, the indictment is not defective as to the capital offense
    charged. See 
    id.
     The elements of the offense of conviction have been
    charged in the indictment, submitted to the jury, and proven beyond
    a reasonable doubt. Any additional statutory or nonstatutory aggravat-
    ing factors may be fairly viewed as sentencing considerations.7
    With regard to the six counts of murder and the three counts of kid-
    napping resulting in death with which Higgs was charged, the petit
    jury found the existence of three statutory aggravating factors: (1)
    multiple killings in a single criminal episode under 
    18 U.S.C.A. § 3592
    (c)(16); (2) previous conviction of a violent felony involving
    a firearm under § 3592(c)(2), based on Higgs’s guilty plea to assault
    and reckless endangerment arising from the Cherry Lane shooting;
    and (3) previous conviction for a serious federal drug offense under
    § 3592(c)(12), based on Higgs’s federal conviction for possession
    7
    This is not to say, of course, that such a limited indictment would be
    the better course. In order to render the offense death-eligible, the petit
    jury must find the statutory aggravating factor relied upon by the govern-
    ment in the indictment. Thus, the better practice would obviously be to
    allege all potential statutory aggravating circumstances in the indictment.
    UNITED STATES v. HIGGS                       19
    with intent to distribute cocaine base. With regard to the six first-
    degree murder counts, the jury also found that the government had
    proven, as an additional statutory aggravating factor, that the deaths
    occurred during the commission of another crime, specifically, a kid-
    napping. See 
    18 U.S.C.A. § 3592
    (c)(1).
    The government argues that the indictment is not defective because
    it alleges facts which, if found by the jury, support two of these
    § 3592(c) aggravating factors — multiple killings in a single criminal
    episode and death during the commission of a kidnapping. In the
    alternative, the government argues that the indictment is not defective
    because the Fifth Amendment does not require that the prior convic-
    tion aggravators be alleged in the indictment.
    For the reasons that follow, we agree that the indictment was not
    constitutionally deficient. However, the multiple killings aggravator,
    while adequately alleged in the indictment, cannot serve as the requi-
    site statutory aggravator for any of the charges because it was not a
    statutory aggravator at the time the murders were committed. Rather,
    the indictment is not defective because the "other crime" aggravator
    was adequately alleged in the indictment to support a death sentence
    for the six first-degree murder charges and because the prior convic-
    tion aggravators, which support a death sentence for all charges, were
    not required to be alleged in the indictment at all.
    a. The "Multiple Killings" Aggravator
    We begin by rejecting the government’s contention that the indict-
    ment is not defective as to either the § 1111(a) murder or § 1201(a)
    kidnapping charges because it alleges facts supporting the statutory
    aggravator of multiple killings in a single criminal episode. See 
    18 U.S.C.A. § 3592
    (c)(16). Although the indictment sufficiently alleged
    the aggravating factor, "multiple killings" was not added to the FDPA
    as a statutory aggravating factor until April 1996, three months after
    the murders were committed.
    Article 1, § 9 of the United States Constitution provides that "[n]o
    Bill of Attainder or ex post facto Law shall be passed." Pursuant to
    the Clause, "‘any statute which punishes as a crime an act previously
    committed, which was innocent when done; which makes more bur-
    20                      UNITED STATES v. HIGGS
    densome the punishment for a crime, after its commission, or which
    deprives one charged with crime of any defense available according
    to law at the time when the act was committed, is prohibited as ex
    post facto.’" Dobbert v. Florida, 
    432 U.S. 282
    , 292 (1977) (quoting
    Beazell v. Ohio, 
    269 U.S. 167
    , 169-170 (1925)). In short, the Ex Post
    Facto Clause prohibits "laws that retroactively alter the definition of
    crimes or increase the punishment for criminal acts." California Dep’t
    of Corr. v. Morales, 
    514 U.S. 499
    , 504 (1995) (internal quotation
    marks omitted). A new law may not alter the elements of the offense
    or the quantum of punishment, nor may it deprive the defendant of a
    defense to which he would otherwise be entitled. See id.; Carmell v.
    Texas, 
    529 U.S. 513
    , 521-525 (2000).
    Although the prohibition against the use of ex post facto laws "does
    not give a criminal a right to be tried, in all respects, by the law in
    force when the crime charged was committed," Dobbert, 
    432 U.S. at 293
     (internal quotation marks omitted), it does "assure that legislative
    Acts give fair warning of their effect and permit individuals to rely
    on their meaning until explicitly changed." Weaver v. Graham, 
    450 U.S. 24
    , 28-29 (1981). The Clause operates to "forbid[ ] the imposi-
    tion of punishment more severe than the punishment assigned by law
    when the act to be punished occurred. Critical to relief under the Ex
    Post Facto Clause is not an individual’s right to less punishment, but
    the lack of fair notice and governmental restraint when the legislature
    increases punishment beyond what was prescribed when the crime
    was consummated." 
    Id. at 30
     (emphasis added).
    In view of the Supreme Court’s jurisprudence in Apprendi and
    Ring, we agree that the government cannot solely rely upon "multiple
    killings" as a statutory aggravating factor for a crime committed
    before its adoption without violating the Ex Post Facto Clause. With
    the exception of the prior conviction aggravators, statutory aggravat-
    ing factors which render an offense of conviction death-eligible
    clearly "increase the punishment for criminal acts." Morales, 
    514 U.S. at 504
    . Accordingly, we hold that the "multiple killings" aggravator
    cannot act as the sole statutory aggravator which rendered these mur-
    ders death-eligible.
    b. The "Other Crime" Aggravator
    The indictment is not defective as to the first-degree murder
    charges because it sufficiently alleged the "death during commission
    UNITED STATES v. HIGGS                       21
    of another crime" aggravator. The indictment specifically alleges that
    Higgs killed the three women "in the perpetration of, and attempted
    perpetration of a felony, to wit, kidnapping," J.A. 136, 141, 146, and
    charges further that Higgs "did knowingly, willfully and unlawfully
    seize, confine, inveigle, decoy, kidnap, abduct, carry away and hold
    [the women] for a reason which was of benefit to [him]." J.A. 138,
    143, 148. Because the indictment charges facts supporting at least one
    aggravating factor, it is not defective as to the six capital murder
    counts charged under § 1111(a). This aggravator cannot, however,
    suffice to render the indictment sufficient for purposes of the three
    capital counts for kidnapping resulting in death charged under
    § 1201(a). Even if we assume that the statutory aggravator could have
    been submitted in support of the kidnapping counts, it was only sub-
    mitted to the jury in connection with the § 1111(a) first-degree mur-
    der counts.
    c. The Prior Conviction Aggravators
    This leaves us with the government’s argument that the indictment
    is not defective as to either the first-degree murder counts or the
    kidnapping-resulting-in-death counts because both categories of
    crimes carry the sentence of death as the statutory maximum and
    because two of the statutory aggravators found by the jury — Higgs’s
    prior conviction for a violent felony involving a firearm and Higgs’s
    prior conviction for a serious federal drug offense — fall within the
    Apprendi and Almendarez-Torres exception for prior convictions. See
    Apprendi, 
    530 U.S. at 490
    ; Almendarez-Torres v. United States, 
    523 U.S. 224
    , 226-27 (1998). In a nutshell, the government contends that
    the indictment is not defective because these "prior conviction" aggra-
    vators, both of which were found by the jury and either of which ren-
    dered the offenses death eligible, are not required to be alleged in the
    indictment to authorize imposition of the maximum penalty of death.
    We agree.
    In Almendarez-Torres, the Supreme Court was squarely presented
    with the question of whether a federal indictment must allege the fact
    of a prior conviction to expose a defendant to an enhanced sentence.
    Under 
    8 U.S.C.A. § 1326
    (a), a deported alien who returned to the
    United States without special permission was subject to imprisonment
    for up to two years. Under subsection (b) of the same statute, how-
    22                      UNITED STATES v. HIGGS
    ever, such a deported alien could be imprisoned for up to twenty years
    "if the initial deportation was subsequent to a conviction for commis-
    sion of an aggravated felony." Almendarez-Torres, 
    523 U.S. at 226
    (internal quotation marks omitted). As framed by the Court, the issue
    was
    whether th[e] latter provision defines a separate crime or
    simply authorizes an enhanced penalty. If the former, i.e., if
    it constitutes a separate crime, then the Government must
    write an indictment that mentions the additional element,
    namely, a prior aggravated felony conviction. If the latter,
    i.e., if the provision simply authorizes an enhanced sentence
    when an offender also has an earlier conviction, then the
    indictment need not mention that fact, for the fact of an ear-
    lier conviction is not an element of the present crime.
    
    Id. at 226
    . The court held that subsection (b) was "a penalty provision,
    which simply authorizes a court to increase the sentence for a recidi-
    vist. It does not define a separate crime. Consequently, neither the
    statute nor the Constitution required the Government to charge the
    factor that it mentions, an earlier conviction, in the indictment." 
    Id. at 226-27
    .
    The distinction between prior convictions and other facts that
    might expand a penalty range, first made in Almendarez-Torres, was
    addressed by the Court again in Jones v. United States, 
    526 U.S. 227
    (1999). In the wake of its recognition of the constitutional concerns
    raised by the "diminishment of the jury’s significance by removing
    control over facts determining a statutory sentencing range," the
    Court reiterated that Almendarez-Torres "stands for the proposition
    that not every fact expanding a penalty range must be stated in a fel-
    ony indictment." Jones, 
    526 U.S. at 248
     (emphasis added). The Court
    explained:
    [T]he precise holding [in Almendarez-Torres] that recidi-
    vism increasing the maximum penalty need not be so
    charged . . . rested in substantial part on the tradition of
    regarding recidivism as a sentencing factor, not as an ele-
    ment to be set out in the indictment. The Court’s repeated
    emphasis on the distinctive significance of recidivism leaves
    UNITED STATES v. HIGGS                          23
    no question that the Court regarded that fact as potentially
    distinguishable for constitutional purposes from other facts
    that might extend the range of possible sentencing. See [523
    U.S.] at 230 ("At the outset, we note that the relevant statu-
    tory subject matter is recidivism"); 
    ibid.
     ("With recidivism
    as the subject matter in mind, we turn to the statute’s lan-
    guage"); 
    id. at 243
     ("First, the sentencing factor at issue here
    — recidivism — is a traditional, if not the most traditional,
    basis for a sentencing court’s increasing an offender’s sen-
    tence"); 
    id. at 245
     (distinguishing McMillan [v. Pennsylva-
    nia, 
    477 U.S. 79
     (1986)] "in light of the particular
    sentencing factor at issue in this case — recidivism"). One
    basis for that possible constitutional distinctiveness is not
    hard to see: unlike virtually any other consideration used to
    enlarge the possible penalty for an offense, . . . a prior con-
    viction must itself have been established through procedures
    satisfying the fair notice, reasonable doubt, and jury trial
    guarantees.
    Id. at 248-249. And, in Apprendi, the Court again distinguished the
    recidivism at issue in Almendarez-Torres from the "hate crime"
    enhancer before it:
    Whereas recidivism does not relate to the commission of the
    offense itself, New Jersey’s biased purpose inquiry goes
    precisely to what happened in the commission of the
    offense. Moreover, there is a vast difference between
    accepting the validity of a prior judgment of conviction
    entered in a proceeding in which the defendant had the right
    to a jury trial and the right to require the prosecutor to prove
    guilt beyond a reasonable doubt, and allowing the judge to
    find the required fact under a lesser standard of proof.
    
    530 U.S. at 496
     (citation and internal quotation marks omitted); see
    also 
    id. at 488
     (noting that "Almendarez-Torres turned heavily upon
    the fact that the additional sentence to which the defendant was sub-
    ject was the prior commission of a serious crime" and explaining that
    "[b]oth the certainty that procedural safeguards attached to any ‘fact’
    of prior conviction, and the reality that Almendarez-Torres did not
    challenge the accuracy of that fact in his case, mitigated the due pro-
    24                      UNITED STATES v. HIGGS
    cess and Sixth Amendment concerns otherwise implicated in allowing
    a judge to determine a fact increasing punishment beyond the maxi-
    mum of the statutory range." (internal quotation marks omitted)).
    Higgs acknowledges the Supreme Court’s recidivism exception to
    the Apprendi mandate, but asserts that the Court’s holding in Ring has
    placed on shaky ground the Almendarez-Torres proposition that prior
    convictions that increase the maximum penalty need not be alleged in
    the indictment, much like the defendant in Ring alleged that Walton’s
    holding was irreconcilable with Apprendi’s reasoning. That may or
    may not be so, but we are not at liberty to conclude that Almendarez-
    Torres is irreconcilable with Ring and grant him relief. Nor would we
    do so in view of the fact that the Ring Court specifically reserved the
    question of whether a judge may find the fact of prior convictions to
    be an aggravating circumstance in the death penalty context:
    Ring’s claim is tightly delineated: He contends only that the
    Sixth Amendment required jury findings on the aggravating
    circumstances asserted against him. No aggravating circum-
    stance related to past convictions in his case; Ring therefore
    does not challenge Almendarez-Torres v. United States, 
    523 U.S. 224
     (1998), which held that the fact of prior conviction
    may be found by the judge even if it increases the statutory
    maximum sentence.
    Ring, 
    536 U.S. at
    597 n.4. Until the Supreme Court overrules
    Almendarez-Torres, we are bound to follow its holding. The indict-
    ment against Higgs alleged crimes for first-degree murder and kid-
    napping resulting in death, all of which authorized a sentence of life
    imprisonment or death. By virtue of the FDPA, life imprisonment is
    the maximum sentence that may be imposed unless the facts support
    a finding of at least one enumerated statutory aggravating factor.
    However, while statutory aggravators must be alleged in the indict-
    ment, submitted to the jury, and proven beyond a reasonable doubt,
    current Supreme Court jurisprudence excepts from this mandate the
    fact of a prior conviction. The Fifth Amendment Indictment Clause
    does not require an indictment to allege prior convictions that expose
    a defendant to an enhanced penalty.
    UNITED STATES v. HIGGS                        25
    C. Harmless Error
    Even assuming that the indictment was defective because it failed
    to allege the requisite statutory aggravating factor or factors, Higgs
    would not be entitled to have his convictions or sentences overturned.
    It has long been "recognized that most constitutional errors can be
    harmless." See Neder v. United States, 
    527 U.S. 1
    , 8 (1999) (internal
    quotation marks omitted); Delaware v. Van Arsdall, 
    475 U.S. 673
    ,
    681 (1986) (noting the settled "principle that an otherwise valid con-
    viction should not be set aside if the reviewing court may confidently
    say, on the whole record, that the constitutional error was harmless
    beyond a reasonable doubt"); Fed. R. Crim. P. 52(a) (providing that
    "[a]ny error, defect, irregularity, or variance that does not affect sub-
    stantial rights must be disregarded"). To determine whether a consti-
    tutional error is harmless, we ask "whether it appears beyond a
    reasonable doubt that the error complained of did not contribute to the
    verdict obtained." Neder, 
    527 U.S. at 15
     (internal quotation marks
    omitted). Higgs contends that such a "harmless error" inquiry is inap-
    propriate because the indictment’s failure to charge the aggravating
    factors ultimately relied upon by the jury to impose a sentence of
    death is a structural error that mandates summary reversal of his capi-
    tal convictions. We disagree.
    Unlike the vast majority of trial errors which are reviewed for
    harmlessness, structural errors are conclusively presumed to affect the
    substantial rights of the defendant because they "deprive defendants
    of ‘basic protections’ without which ‘a criminal trial cannot reliably
    serve its function as a vehicle for determination of guilt or innocence.
    . . and no criminal punishment may be regarded as fundamentally
    fair.’" Neder, 527 U.S. at 8-9 (quoting Rose v. Clark, 
    478 U.S. 570
    ,
    577-78 (1986)). The Supreme Court has repeatedly stated that most
    constitutional errors are not structural and may, instead, be reviewed
    for harmlessness. See, e.g., id. at 8. "If the defendant had counsel and
    was tried by an impartial adjudicator, there is a strong presumption
    that any other constitutional errors that may have occurred are subject
    to harmless-error analysis." Id. (alterations and internal quotation
    marks omitted) (emphasis added). The "very limited class of cases"
    in which the Court has found structural error are those in which there
    was "a defect affecting the framework within which the trial proceed-
    26                       UNITED STATES v. HIGGS
    [ed], rather than simply an error in the trial process itself." Id. (inter-
    nal quotation marks omitted). Such defects include such things as the
    failure to honor the core principle of proof beyond a reasonable doubt,
    the complete deprivation of counsel, the denial of the right to self-
    representation at trial, a biased trial judge, and the failure to preserve
    open and public trials. See Sullivan v. Louisiana, 
    508 U.S. 275
    (1993); Arizona v. Fulminante, 
    499 U.S. 279
    , 309-10 (1991); McK-
    askle v. Wiggins, 
    465 U.S. 168
     (1984); Waller v. Georgia, 
    467 U.S. 39
     (1984), Gideon v. Wainwright, 
    372 U.S. 335
     (1963); Tumey v.
    Ohio, 
    273 U.S. 510
     (1927).
    As correctly pointed out by Higgs, the Supreme Court has thus far
    found two grand jury errors to be structural — racial discrimination
    in the selection of grand jurors, see Vasquez v. Hillery, 
    474 U.S. 254
    ,
    260-64 (1986), and sex discrimination in the selection of grand jurors,
    see Ballard v. United States, 
    329 U.S. 187
    , 195-96 (1946). However,
    only a month after Vasquez was decided, the Supreme Court found
    that a procedural error in a grand jury proceeding — allowing two
    witnesses to be in the grand jury room at the same time — was sub-
    ject to harmless error review. See United States v. Mechanik, 
    475 U.S. 66
    , 70-71 (1986). The Court found the error harmless in view of the
    subsequent jury verdict. Although the error
    had the theoretical potential to affect the grand jury’s deter-
    mination whether to indict [the defendants] . . . the petit
    jury’s subsequent guilty verdict means not only that there
    was probable cause to believe that the defendants were
    guilty as charged, but also that they are in fact guilty as
    charged beyond a reasonable doubt. Measured by the petit
    jury’s verdict, then, any error in the grand jury proceeding
    connected with the charging decision was harmless beyond
    a reasonable doubt.
    
    Id. at 70
    . The Court rejected the argument that an indictment error
    could not be held harmless on the basis of evidence presented at trial,
    reasoning that "even if this argument were accepted, there is no sim-
    ple way after the verdict to restore the defendant to the position in
    which he would have been had the indictment been dismissed before
    trial." 
    Id. at 71
    . In light of this fact, the Court saw "no reason not to
    UNITED STATES v. HIGGS                         27
    apply" the general rule "that errors not affecting substantial rights
    shall be disregarded." 
    Id.
    The Mechanik Court also distinguished Vasquez, noting that the
    rationale of the Vasquez decision had "little force outside the context
    of racial discrimination in the composition of the grand jury," where
    automatic reversal was called for by the perniciousness of the prob-
    lem and the impracticability of other remedies. 
    Id.
     at 70 n.1. "[T]he
    societal interest in deterring" the error before it, the Court held, "d[id]
    not rise to the level of [society’s] interest in deterring racial discrimi-
    nation." 
    Id.
    Most recently, in United States v. Cotton, the Supreme Court was
    presented with a conceded indictment error; i.e., the indictment did
    not allege the drug quantity that increased the statutory maximum
    sentence as required by Apprendi and Jones. Although the court
    declined to explicitly resolve the question of whether an indictment
    error was structural or subject to harmless error review, the Court did
    apply the plain error test and, having assumed that the defendant
    could establish that the error affected his substantial rights, held that
    "the error did not seriously affect the fairness, integrity, or public rep-
    utation of judicial proceedings." 
    535 U.S. at 632-33
    .
    The statements of the Supreme Court in Mechanik and Cotton indi-
    cate that it is far from settled under Supreme Court precedent that
    indictment errors are structural. Indeed, we think it more likely that
    this is not the case, given the Court’s reluctance to identify new struc-
    tural errors. Cf. Mitchell v. Esparza, 
    124 S. Ct. 7
    , 11-12 (2003) (per
    curiam) (holding that state court’s determination that failure to charge
    aggravating factor for capital murder in indictment and to submit it
    to the jury was subject to harmless error review was not "contrary to,"
    or "an unreasonable application of" its precedents governing harmless
    error review); 
    id. at 11
     ("We cannot say that because the violation
    occurred in the context of a capital sentencing proceeding that our
    precedent [on harmless error review] requires [an] opposite result.").
    In the end, we are persuaded by the reasoning of our sister circuits,
    which have held that indictment error, and in particular the failure of
    an indictment to allege an element of a charged offense, may be
    reviewed for harmlessness:
    28                      UNITED STATES v. HIGGS
    [T]he Court in Neder held that the failure to instruct the jury
    on every element of an offense "does not necessarily render
    a criminal trial fundamentally unfair or an unreliable vehicle
    for determining guilt or innocence." Neder, 
    527 U.S. at 9
    (emphasis in original). To us, a defendant’s right to have a
    petit jury find each element of the charged offense beyond
    a reasonable doubt is no less important than a defendant’s
    right to have each element of the same offense presented to
    the grand jury. If denial of the former right is subject to
    harmless error analysis, we believe denial of the latter right
    must be as well.
    United States v. Prentiss, 
    256 F.3d. 971
    , 984 (10th Cir. 2001) (en
    banc) (per curiam); see also United States v. Mojica-Baez, 
    229 F.3d 292
    , 311 (1st Cir. 2000) (holding that the distinction between the trial
    judge’s failure in Neder "to submit an element of the offense to the
    petit jury at trial" and "the failure to present an element to the grand
    jury to secure an indictment" on the offense is not "significant where
    the indictment provided the defendant with fair notice of the charges
    against him").
    In this case, Higgs was charged with nine first-degree murder and
    felony murder charges, all of which carried a penalty of life imprison-
    ment or death. Even if we assume that all of the aggravators relied
    upon by the jury to impose the sentence of death (including prior con-
    victions) are to be treated as elements of the offenses that should have
    been alleged in the indictment, the indictment would only be defec-
    tive because it failed to allege those essential elements of the offenses,
    not because it charged an offense different from the one for which he
    was ultimately convicted and sentenced. Such error is harmless
    because "it appears beyond a reasonable doubt that the error com-
    plained of did not contribute to the verdict obtained." Neder, 527 U.S.
    at 15 (internal quotation marks omitted).
    First, the primary function of an indictment is to notify the defen-
    dant of the charges against him and provide a sufficient basis upon
    which the defendant can plead the defense of former jeopardy. See
    Russell, 
    369 U.S. at 763-64
    ; Carrington, 
    301 F.3d at 209-10
    ; see also
    Mojica-Baez, 
    229 F.3d at 310
     (noting that the most serious harm that
    can result from a defective indictment "may be when a defendant is
    UNITED STATES v. HIGGS                       29
    without fair notice of the charges against him"). These purposes were
    served by the indictment’s reference to statutes for which death is the
    maximum possible penalty and the government’s notice of its intent
    to seek the death penalty, which notified Higgs of all of the aggravat-
    ing factors the government would seek to prove at trial to obtain that
    maximum sentence. Thus, while the indictment failed to specify every
    aggravating circumstance that the prosecutor intended to pursue in
    support of the statutorily-authorized penalty of death, Higgs was pro-
    vided with fair notice of the charges against him, the prosecutor’s
    intent to pursue the sentence of death, and each and every statutory
    and nonstatutory aggravating circumstance that the prosecutor
    intended to prove at trial.
    Second, the petit jury’s finding of all the aggravating factors
    beyond a reasonable doubt demonstrates that Higgs was not preju-
    diced by the lack of an independent judgment of the grand jury. See
    Mechanik, 
    475 U.S. at 70
     (holding grand jury error harmless in light
    of subsequent finding of guilt beyond a reasonable doubt by petit
    jury); cf. United States v. Patterson, 
    241 F.3d 912
    , 914 (7th Cir.) (per
    curiam) ("Once the petit jury finds beyond a reasonable doubt . . . that
    a particular [fact] was involved, we can be confident in retrospect that
    the grand jury (which acts under a lower burden of persuasion) would
    have reached the same conclusion."), cert. denied, 
    122 S. Ct. 124
    (2001).
    Finally, the record evidence of Higgs’s previous convictions for a
    violent felony involving a firearm and for a serious federal drug
    offense, either of which would have been sufficient to meet the "ag-
    gravating factor" requirement, was not contested. Cf. Neder, 
    527 U.S. at 16
     (holding that harmlessness test was met when the record evi-
    dence supporting the element was "so overwhelming" that the defen-
    dant had not even contested it); 
    id. at 19
     ("[W]here a defendant did
    not, and apparently could not, bring forth facts contesting the omitted
    element, answering the question whether the jury verdict would have
    been the same absent the error does not fundamentally undermine the
    purposes of the jury trial guarantee.").
    In sum, we hold that any alleged indictment error was harmless
    beyond a reasonable doubt. The indictment’s failure to specify every
    aggravating factor "did not necessarily render the indictment unfair or
    30                      UNITED STATES v. HIGGS
    make it an unreliable vehicle with which to commence the proceed-
    ings in this case." Mojica-Baez, 
    229 F.3d at 312
    . Nor can we say the
    indictment error contributed to the verdict ultimately obtained from
    the petit jury.
    III. Change of Venue
    Prior to his trial, Higgs filed a motion for a change of venue from
    Greenbelt, Maryland, to Baltimore, Maryland, based on the extensive
    media coverage of the case. The district court denied the motion. On
    appeal, Higgs argues that he was denied his constitutional right to a
    fair and impartial jury in violation of the Fifth and Sixth Amendments
    because the media coverage rendered a fair trial in the Greenbelt
    Division impossible. We review the district court’s denial of Higgs’s
    motion for a change of venue for abuse of discretion. See United
    States v. Bailey, 
    112 F.3d 758
    , 770 (4th Cir. 1997).
    As a general premise, a change of venue is warranted when the
    court is satisfied that there exists in the district where the prosecution
    is pending "so great a prejudice against the defendant" that "the
    defendant cannot obtain a fair and impartial trial." Fed. R. Crim. P.
    21(a). The determination of whether a change of venue is required as
    a result of pretrial publicity involves a two-step process. See United
    States v. Bakker, 
    925 F.2d 728
    , 732 (4th Cir. 1991). First, the district
    court must determine "whether the publicity is so inherently prejudi-
    cial that trial proceedings must be presumed to be tainted," and, if so,
    grant a change of venue prior to jury selection. 
    Id.
     However, "[o]nly
    in extreme circumstances may prejudice to a defendant’s right to a
    fair trial be presumed from the existence of pretrial publicity itself."
    Wells v. Murray, 
    831 F.2d 468
    , 472 (4th Cir. 1987); see also United
    States v. Jones, 
    542 F.2d 186
    , 193) (4th Cir. 1976) (noting that cases
    in which prejudice will be presumed will be rare). Ordinarily, the trial
    court must "conduct[ ] a voir dire of prospective jurors to determine
    if actual prejudice exists." Bakker, 
    925 F.2d at 732
    . If "voir dire
    reveals that an impartial jury cannot be impanelled," the trial court
    should then grant the motion. 
    Id.
    Higgs first asserts that he satisfied the presumed prejudice test
    based upon the volume of news media coverage that occurred during
    the four-plus years that elapsed between the time of the murders and
    UNITED STATES v. HIGGS                         31
    the time that jury selection began in his case. In particular, he points
    to the fact that Higgs and Haynes were the first federal defendants in
    the Greenbelt Division to face the death penalty, that Haynes had just
    been tried and convicted on the same murder charges, and that news
    stories released just prior to his trial reported that Haynes claimed that
    Higgs ordered the murders and that both men were local drug dealers
    serving federal sentences. As evidence of the volume of coverage, he
    points to the fact that 130 prospective jurors and seven of those ulti-
    mately seated had read or heard about the case prior to the trial.
    Although Higgs is correct that there was a large amount of media
    coverage when the murders occurred in late January 1996, the district
    court did not abuse its discretion in ruling that the coverage did not
    rise to the level necessary to require a change of venue. Here,
    although the coverage was not entirely dispassionate and factual, nei-
    ther was it highly inflammatory. See United States v. De La Vega, 
    913 F.2d 861
    , 864 (11th Cir. 1990) (finding "several hundred news
    reports" over two years which were "largely dispassionate" but "occa-
    sionally punctuated by editorial remarks" insufficient to establish pre-
    sumed prejudice). In addition, the bulk of the coverage occurred
    contemporaneously with the murders, four years before Higgs’s trial.
    There was additional coverage on the one-year anniversary of the
    murders and when the indictment was issued. However, there was no
    evidence of any media coverage between the time of the indictment
    and the November 15, 1999, initial hearing on the motion for a
    change of venue.
    Higgs also cannot establish presumed prejudice based on the addi-
    tional coverage that occurred around the time of Haynes’s trial. The
    additional coverage was not extensive and, as found by the district
    court, was more factual than inflammatory. See Bakker, 
    925 F.2d at 732
     (holding that extensive initial coverage of alleged crime a few
    years earlier coupled with more recent coverage of criminal proceed-
    ings which was factual was insufficient to establish presumed preju-
    dice).
    We are also unpersuaded by Higgs’s assertion that he demonstrated
    actual prejudice because voir dire revealed that the majority of the
    prospective jurors knew about the case and because several prospec-
    tive jurors stated that they had formed an opinion about the case based
    32                      UNITED STATES v. HIGGS
    on the media reports. Under the second prong of Bailey, the district
    court may order a change of venue if voir dire reveals that an impar-
    tial jury cannot be impaneled due to actual prejudice of the venire
    members. To demonstrate actual prejudice, the defendant must show
    that a prospective juror has formed an pre-trial opinion that the defen-
    dant is guilty and cannot "lay aside his impression or opinion and ren-
    der a verdict based on the evidence presented in court." Irvin v. Dowd,
    
    366 U.S. 717
    , 723 (1961).
    The voir dire of the jury members failed to demonstrate that an
    impartial jury could not be seated. Of the seated members of the jury,
    seven acknowledged that they had heard of the case. However, it is
    a long-settled proposition that mere knowledge of a case is insuffi-
    cient to support a finding of actual prejudice. See Irvin, 
    366 U.S. at 722-23
    ; Murphy v. Florida, 
    421 U.S. 794
    , 799-80 (1975) ("Qualified
    jurors need not . . . be totally ignorant of the facts and issues
    involved."). During voir dire, the district court excused those prospec-
    tive jurors who had expressed an inability to be fair and impartial.
    Each of the seven seated jurors who had some knowledge of the case
    stated that they could decide the case based solely on the evidence
    presented at trial. Accordingly, we affirm the district court’s denial of
    Higgs’s motion for a change of venue.
    IV. Guilt Phase Challenges
    We next address Higgs’s challenges to various district court rulings
    during the guilt phase of his trial.
    A. The Telephone Conversation between Higgs and Grayson
    Higgs contends that his rights under the Fifth and Sixth Amend-
    ments were violated by the district court’s admission of a taped tele-
    phone conversation that took place between Higgs and his former
    D.C. jailhouse friend, Melvin Grayson, as well as the district court’s
    instruction to the jury that Higgs’s silence during the conversation
    could constitute an admission. Because Higgs did not object to the
    admission of the tape recording at trial, we review the admission of
    the evidence for plain error. See Fed. R. Crim. P. 52(b); United States
    v. Olano, 
    507 U.S. 725
    , 732-35 (1993). We review the district court’s
    decision to give a particular instruction and its content for abuse of
    UNITED STATES v. HIGGS                         33
    discretion. See United States v. Stotts, 
    113 F.3d 493
    , 496 (4th Cir.
    1997). We review jury instructions to determine "whether, taken as a
    whole, the instruction fairly states the controlling law." United States
    v. Cobb, 
    905 F.2d 784
    , 789 (4th Cir. 1990). An error in the jury
    instruction will warrant reversal of the conviction only if "the error
    is prejudicial based on a review of the record as a whole." United
    States v. Ellis, 
    121 F.3d 908
    , 923 (4th Cir. 1997).
    On May 20, 2000, after Higgs was transferred to a federal peniten-
    tiary, he placed a telephone call to Grayson. During the conversation,
    which was recorded pursuant to prison policy, Higgs and Grayson
    discussed Haynes’s conviction for the murders, which had been
    handed down the previous day. Higgs commented that Haynes’s attor-
    ney had blamed the murders on Higgs and complained that the lawyer
    "got the whole joint twisted." J.A. 1337. Grayson subsequently read
    Higgs a newspaper article reporting Haynes’s conviction, including
    the report that Haynes had claimed that he only shot the women
    because he was afraid of Higgs. Higgs did not respond to Grayson’s
    reading of the article.
    Higgs did not object to the admission of the tape recording at trial.
    At the conclusion of the trial, the district court instructed the jury that
    Higgs’s silence during Grayson’s reading of the newspaper article
    could be considered an admission of guilt by Higgs under Federal
    Rule of Evidence 801(d)(2)(B):
    Now there has been testimony that while incarcerated, the
    defendant was silent when statements were made in his
    presence implicating him in the commission of the acts
    charged in the indictment.
    If you find that the defendant was actually present and
    heard the statements and understood them, then you may
    consider the defendant’s silence as an admission of their
    truth if you find, in accordance with your common sense
    and experience, that the defendant would have denied the
    statements had they been untrue.
    However, you should bear in mind that some people will
    remain silent even if they are innocent. For example, an
    34                      UNITED STATES v. HIGGS
    inmate who knows that his telephone calls will be monitored
    or recorded may choose to remain silent.
    J.A. 1282-83. Higgs unsuccessfully objected to the 801(d)(2)(B)
    charge.
    Under Rule 801(d)(2)(B), "[a] statement is not hearsay if . . . [t]he
    statement is offered against a party and is . . . a statement of which
    the party has manifested an adoption or belief in its truth." "A party
    may manifest adoption of a statement in any number of ways, includ-
    ing [through] words, conduct, or silence." United States v. Robinson,
    
    275 F.3d 371
    , 383 (4th Cir. 2001).
    When a statement is offered as an adoptive admission, the
    primary inquiry is whether the statement was such that,
    under the circumstances, an innocent defendant would nor-
    mally be induced to respond, and whether there are suffi-
    cient foundational facts from which the jury could infer that
    the defendant heard, understood, and acquiesced in the state-
    ment.
    
    Id. at 383
     (quoting United States v. Jinadu, 
    98 F.3d 239
    , 244 (6th Cir.
    1996)).
    We find no error in the district court’s decision to admit the
    recorded telephone conversation between Higgs and Grayson. Higgs
    and Grayson were freely discussing the trial of Haynes and the accu-
    sations made against Higgs in the course of those proceedings. Higgs
    gave no indication that he was being silent in the face of those accusa-
    tions because he knew he was being recorded. On the contrary, the
    recording demonstrates that Higgs not only heard and understood the
    statements made by Grayson, but commented upon them to some
    extent. Thus, we are satisfied that the district court appropriately
    allowed the jury the opportunity to conclude, as instructed, either that
    Higgs would have made his disagreement known if such existed or
    that he chose to remain silent because of the knowledge that he was
    being recorded. In view of the district court’s instruction, which cor-
    rectly stated the law, the district court did not abuse its discretion in
    admitting the evidence and charging the jury that Higgs’s silence
    could be considered an admission under Rule 801(d)(2)(B).
    UNITED STATES v. HIGGS                        35
    B. Admission of Evidence of the Chaconia Shooting
    and the Bank Fraud Scheme
    Higgs also contends that the district court’s admission of evidence
    of the Chaconia nightclub shooting and the bank fraud scheme that
    Higgs carried out with Darby and Waters violated his rights to due
    process and a fair trial. At the conclusion of the government’s case,
    the defense presented no witnesses and Higgs did not testify. With
    regard to the government’s evidence of unrelated offenses, the court
    charged the jury as follows:
    Now there has been evidence received during the trial that
    the defendant engaged in a shooting outside the Chaconia’s
    Nightclub in November 1995, also a shooting at Cherry
    Lane in December 1995, bank fraud, firearm possession and
    also drug activity. The defendant is not on trial for these
    matters. They may not be used to show the bad character of
    the defendant on prior occasions.
    Accordingly, you may not consider the evidence of these
    acts as substitute for proof that he committed the crimes
    charged in this case, nor may you consider this evidence as
    proof that the defendant has a criminal personality, bad
    character or propensity to commit crimes.
    The evidence . . . may, however, be considered to estab-
    lish the defendant’s identity, his motive, intent, and knowl-
    edge on January 27, 1996. The evidence may also be
    considered by you to show, one, the defendant’s relationship
    with Willis Mark Haynes and with Victor Gloria and with
    Wondwossen Kabtamu, and with Enidsia Darby in criminal
    activity, and it may also be evidence of defendant’s owner-
    ship of a firearm.
    J.A. 1296-97. Higgs asserts that the district court abused its discretion
    in admitting this evidence during the guilt phase because it was nei-
    ther intrinsic to the crimes charged nor admissible under Rule 404(b).
    Reviewing the district court’s admission of this evidence for an
    abuse of discretion, see United States v. Chin, 
    83 F.3d 83
    , 87 (4th Cir.
    36                       UNITED STATES v. HIGGS
    1996), we find none. "[W]here testimony is admitted as to acts intrin-
    sic to the crime charged, and is not admitted solely to demonstrate
    bad character, it is admissible." 
    Id. at 88
    . "Evidence of uncharged
    conduct is not considered evidence of other crimes where it is neces-
    sary to complete the story of the crime on trial." United States v. Stitt,
    
    250 F.3d 878
    , 888 (4th Cir. 2001) (internal quotation marks omitted).
    "Evidence of other crimes, wrongs, or acts" that is not intrinsic to the
    crime may still be admissible if it demonstrates "proof of motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence
    of mistake or accident." Fed. R. Crim. P. 404(b). Rule 404(b) is "an
    inclusive rule, admitting all evidence of other crimes or acts except
    that which tends to prove only criminal disposition." United States v.
    Young, 
    248 F.3d 260
    , 271-72 (4th Cir. 2001) (internal quotation
    marks omitted) (emphasis added). Specifically, the evidence is admis-
    sible if (1) it is "relevant to an issue, such as an element of an offense,
    and [is not] offered to establish the general character of the defen-
    dant"; (2) it is "necessary in the sense that it is probative of an essen-
    tial claim or an element of the offense"; (3) it is reliable; and (4) its
    "probative value [is not] substantially outweighed by confusion or
    unfair prejudice in the sense that it tends to subordinate reason to
    emotion in the factfinding process." United States v. Queen, 
    132 F.3d 991
    , 997 (4th Cir. 1997).
    1. The Chaconia Shooting
    The shooting at the Chaconia nightclub in Washington, D.C., took
    place approximately two months before the murders. According to the
    testimony of Wondwossen Kabtamu, Higgs got into an argument with
    another man and, as Kabtamu was driving away in Higgs’s van,
    Higgs fired several shots at another vehicle with a .38 caliber hand-
    gun. According to the testimony of Domenick Williams, with whom
    Higgs was housed at the D.C. jail while awaiting trial on the Chaconia
    charges, Higgs expressed great reluctance to plead guilty to the Cha-
    conia charges "because they would try to use the gun in another case."
    J.A. 975. After Williams learned that Higgs was being indicted for the
    murders of the three women in this case, Higgs commented to Wil-
    liams, "you see why I can’t plead guilty to that charge?" J.A. 979.
    The victims in the case before us were indeed murdered with a .38
    caliber weapon. The bullet recovered from the Chaconia shooting was
    UNITED STATES v. HIGGS                         37
    forensically similar to those recovered from the Patuxent murder
    scene and the victims, in that they shared the same rifling characteris-
    tics — five lands and grooves with a right twist. Thus, the evidence
    of Higgs’s participation in the Chaconia Nightclub shooting was
    properly introduced by the government as a means to link Higgs to
    the same caliber weapon that Gloria testified Higgs owned and
    retrieved from the drawer on the night of the murders, and one which
    shared the same rifling characteristics as did the murder weapon. See
    United States v. Grimmond, 
    137 F.3d 823
    , 831-32 (4th Cir. 1998)
    (upholding admission of prior shooting incidents to establish the
    defendant’s possession of a firearm). In addition, the evidence was
    admissible under Rule 404(b) as it and the Cherry Lane evidence
    placed the murder weapon, which was disposed of in the Anacostia
    River and never found, in Higgs’s hand a short time before the mur-
    ders and, therefore, served the necessary function of proving his iden-
    tity as one of the murderers and his use of the firearm in connection
    with the murders. Consequently, we hold the district court did not
    abuse its discretion in ruling that the evidence was admissible, nor in
    ruling that its probative value outweighed its prejudicial effect under
    Rule 403.
    2. The Bank Fraud Scheme
    Higgs also challenges the district court’s admission of Darby’s tes-
    timony about the unrelated bank fraud scheme that she and Waters
    had engaged in with Higgs. In particular, Higgs points to the death
    threats that ensued when authorities began to look into the matter and
    Higgs became concerned that the women might implicate him in the
    scheme. The district court admitted the evidence after concluding that
    it demonstrated a possible motive for the murders, and Higgs’s modus
    operadi of issuing death threats to those that might be inclined to
    "snitch" on him.
    We find no abuse of discretion. Gloria testified that just prior to the
    murders, Higgs and Jackson violently argued at Higgs’s apartment,
    prompting Jackson to retrieve a knife from the kitchen. When the
    women left, Higgs made the comment to Gloria and Haynes that Jack-
    son "do know a lot of n——-s," and expressed anger that she
    appeared to be "writing down [his] sh—." J.A. 474. Darby testified
    that Higgs told her shortly after his arrest that Jackson had been
    38                      UNITED STATES v. HIGGS
    invited to his apartment because she had been "snitching on one of
    them," J.A. 759, suggesting that retaliation may have been a motive
    for the murders. Thus, the challenged bank fraud and related death
    threats that Higgs issued when he became concerned that his partners
    in the fraud scheme might "snitch" on him were admissible to show
    Higgs’s motive and intent to murder Jackson to likewise keep her
    from taking steps that might implement him in criminal activities or
    otherwise harm him in some way. Cf. United States v. Van Metre, 
    150 F.3d 339
    , 350-51 (4th Cir. 1998) (holding that evidence of a prior kid-
    napping and sexual assault committed by the defendant was admissi-
    ble to establish his motive and intent to sexually assault the deceased
    victim in a kidnapping-resulting-in-death case); Queen, 
    132 F.3d at 993-94
     (upholding admission of evidence, in a witness tampering
    case, that the defendant had intimidated two witnesses in an unrelated,
    earlier prosecution); United States v. Clark, 
    988 F.2d 1459
    , 1465 (6th
    Cir. 1993) (per curiam) (upholding admission of evidence of threats
    and plans to harm other witnesses to establish motive and intent to
    murder where the defendant was charged with the murder of a person
    he wanted to silence).
    C. Sufficiency of the Evidence
    Finally, Higgs contends that the evidence was insufficient to sup-
    port each of his convictions. In determining the sufficiency of the evi-
    dence supporting a conviction, this court must determine whether
    "there is substantial evidence, taking the view most favorable to the
    Government, to support it." Glasser v. United States, 
    315 U.S. 60
    , 80
    (1942); see also United States v. Perry, 
    335 F.3d 316
    , 320 (4th Cir.
    2003). "[S]ubstantial evidence is evidence that a reasonable finder of
    fact could accept as adequate and sufficient to support a conclusion
    of a defendant’s guilt beyond a reasonable doubt." United States v.
    Burgos, 
    94 F.3d 849
    , 862 (4th Cir. 1996) (en banc).
    1. Evidence of Kidnapping and Felony Murder
    Higgs claims that the evidence was legally insufficient to convict
    him of kidnapping the victims under 
    18 U.S.C.A. § 1201
     or of first-
    degree murder occurring during the perpetration of a kidnapping
    under 
    18 U.S.C.A. § 1111
    (a). In order to establish that Higgs kid-
    napped the victims, the government was required to prove that each
    UNITED STATES v. HIGGS                       39
    victim was "(1) unlawfully seized, confined, inveigled, decoyed, kid-
    napped, abducted or carried away by any means whatsoever; and (2)
    was held for ransom or reward or otherwise." Chatwin v. United
    States, 
    326 U.S. 455
    , 459 (1946) (internal quotation marks omitted);
    United States v. Lewis, 
    662 F.2d 1087
    , 1088 (4th Cir. 1981).
    According to the testimony of Gloria, after the argument between
    Higgs and Jackson was broken up by Haynes, the women left the
    apartment on foot. After expressing anger about one of the women
    writing down his license plate number, Higgs retrieved the .38 caliber
    weapon before leaving the apartment, moments before instructing
    Haynes to get the women into the van. Shortly after Higgs drove past
    the most direct route back to the homes of the three young women,
    he stopped the van on the side of the road in a desolate stretch of the
    Patuxent National Wildlife Refuge. Aware at that point that some-
    thing was amiss, one of the women asked if they were going to have
    to "walk from here" and Higgs responded "something like that." J.A.
    482. Higgs then handed the gun to Haynes and Haynes got out of the
    van and shot the three women.
    Higgs claims that this evidence is insufficient to show that he "un-
    lawfully seized, confined, inveigled, decoyed, kidnapped, abducted or
    carried away" the three women because they voluntarily got into
    Higgs’s van based upon what Haynes told them and that it was also
    insufficient to establish that the women were "held for ransom or
    reward or otherwise." Chatwin, 
    326 U.S. at 459
    . We disagree. The
    evidence presented was more than sufficient to support the conclusion
    that the three women, who had left the apartment on foot during the
    early morning hours after the argument, were tricked or lured by
    Haynes, at Higgs’s direction, into getting into the van with the prom-
    ise of a ride home and, therefore, that Higgs and Haynes "inveigled"
    or "decoyed" them within the meaning of § 1201, and that Higgs at
    least was prepared to confine them at gunpoint if necessary. See
    United States v. Boone, 
    959 F.2d 1550
    , 1555 (11th Cir. 1992) (To
    determine whether there has been inveigling for purposes of a kidnap-
    ping conviction, the "fact finder must ascertain whether the alleged
    kidnapper had the willingness and intent to use physical or psycholog-
    ical force to complete the kidnapping in the event that his deception
    failed."). The evidence was also sufficient to support the conclusion
    that Higgs and Haynes, after confining the women in the van under
    40                      UNITED STATES v. HIGGS
    the pretense of taking them home and then stopping on the side of the
    road against their wishes, held and ultimately killed the women to
    avenge Higgs’s fight with Jackson, or perhaps to retaliate against
    Jackson for an earlier action or threat she had made, and to prevent
    Jackson and her friends from retaliating against Higgs. See United
    States v. Healy, 
    376 U.S. 75
    , 81 (1964) (holding a victim "for ransom,
    reward or otherwise" under § 1201 encompasses holding a victim for
    any reason which was of benefit to the defendant); United States v.
    Childress, 
    26 F.3d 498
    , 503 (4th Cir. 1994) (stating that kidnapping
    need not be performed for pecuniary gain; "ransom or otherwise" ele-
    ment is satisfied if "the defendant acted for any reason which would
    in any way be of benefit"). Accordingly, we conclude that the evi-
    dence was sufficient to convict Higgs of the kidnapping and felony
    murder counts.
    2. Evidence of First-Degree Premeditated Murder
    Higgs also claims that the evidence was legally insufficient to con-
    vict him of first-degree premeditated murder under 
    18 U.S.C.A. § 1111
    (a), because there was no evidence that he knew Haynes was
    going to shoot the women, even though he provided Haynes with the
    murder weapon moments before the killings. We disagree.
    In order to convict Higgs of first-degree premeditated murder, the
    government was required to prove that Higgs "in some sort associ-
    ate[d] himself with the venture, that he participate[d] in it as in some-
    thing that he wishe[d] to bring about, that he [sought] by his action
    to make it succeed." United States v. Horton, 
    921 F.2d 540
    , 543
    (1990) (internal quotation marks omitted). The government clearly
    satisfied this standard. Contrary to Higgs’s contention, his handing
    the murder weapon to Haynes was not the only evidence of his partic-
    ipation in the premeditated murder of the three women. The jury
    could easily have concluded that the murders were motivated by
    Higgs’s fight with Jackson and her copying down Higgs’s license
    plate number. Higgs retrieved the gun used to commit the murders
    from a drawer in his apartment in the first instance, and instructed
    Haynes to lure the women into the van. After engaging in a whispered
    conversation with Haynes, Higgs also drove the van to the location
    of the murders, passing the most direct route back to the victims’
    homes. After Higgs pulled the van over to the side of the road on an
    UNITED STATES v. HIGGS                       41
    isolated stretch of highway, Jackson asked him if they were being put
    out, and Higgs replied "something like that." J.A. 482. At that point,
    he supplied the gun used to commit the murders to Haynes, mere
    moments before Haynes shot and killed the women. Clearly, there
    was sufficient evidence for the jury to convict Higgs of the charged
    offenses.
    3. Evidence of Section 924(c) Violations
    For the same reasons, we likewise reject Higgs’s challenge to the
    sufficiency of the evidence proffered to convict him of the firearm
    violations. In order to establish a violation of 
    18 U.S.C.A. § 924
    (c),
    the government was required to prove that Higgs (1) "used or carried
    a firearm," and (2) that he "did so during and in relation to" the mur-
    ders. See United States v. Mitchell, 
    104 F.3d 649
    , 652 (4th Cir. 1997).
    Higgs retrieved the gun from a drawer in his apartment before leaving
    the apartment to pursue the three women and kept the gun in his pos-
    session until after he had pulled off the road and instructed the women
    to get out of the van. Thus, it is clear that substantial evidence sup-
    ports the jury’s verdict on these counts as well.
    V. Sentencing Phase Challenges
    We now turn to Higgs’s challenges to various rulings pertaining to
    the capital penalty phase of his trial.
    A. Challenges to the Statutory Aggravating Factors
    We begin with Higgs’s independent challenges to the four statutory
    aggravating factors that were submitted to the jury for consideration
    during the capital penalty phase. Prior to the hearing, Higgs moved
    to strike each of the proposed statutory aggravating factors, and each
    motion was denied by the district court. We review the district court’s
    legal conclusions de novo. See United States v. Helem, 
    186 F.3d 449
    ,
    454 (4th Cir. 1999).
    1. Death During the Commission of a Kidnapping
    For the charges of first-degree premeditated murder and first-
    degree murder committed in the perpetration or attempted perpetra-
    42                      UNITED STATES v. HIGGS
    tion of a kidnapping, see 
    18 U.S.C.A. § 1111
    (a), the court submitted
    as a statutory aggravating factor the fact that "the death[s] . . .
    occurred during the commission or attempted commission of . . . an
    offense under . . . section 1201 (kidnapping)," 
    18 U.S.C.A. § 3592
    (c)(1).
    Higgs argues that this aggravating factor merely repeated the sub-
    stantive elements of the section 1201 kidnapping counts for which he
    was also found guilty during the guilt phase of the trial and, therefore,
    failed to narrow or channel the jury’s discretion to impose the sen-
    tence of death. See Zant, 
    462 U.S. at 877
     (holding that "an aggravat-
    ing circumstance must genuinely narrow the class of persons eligible
    for the death penalty and must reasonably justify the imposition of a
    more severe sentence on the defendant compared to others found
    guilty of murder"). In other words, Higgs asserts that the aggravating
    factor served no narrowing function because the government improp-
    erly used the fact that death occurred during the commission of a kid-
    napping as both an element of the substantive crimes for which he
    was charged and as an aggravating factor for his crimes.
    This claim is without merit. "Death during commission of another
    crime" was not submitted as an aggravating factor for the substantive
    kidnapping counts charged under 
    18 U.S.C.A. § 1201
    . It was only
    submitted as an aggravating factor for the first-degree premeditated
    murder and first-degree murder committed in the perpetration of a
    kidnapping charged under 
    18 U.S.C.A. § 1111
    (a). As to the § 1111(a)
    murder counts for which it was submitted, the kidnapping factor
    clearly did serve the requisite narrowing function for the jury. In order
    to convict Higgs of the § 1111(a) first-degree murder committed in
    the perpetration of a kidnapping charge, the jury had to find that a
    kidnapping had occurred. However, the "narrowing function" man-
    dated by the Eighth Amendment in death penalty cases "may . . . be
    performed by jury findings at either the sentencing phase of the trial
    or the guilt phase." Lowenfield v. Phelps, 
    484 U.S. 231
    , 244-45
    (1988). And, the Eighth Amendment does not prohibit the use of an
    aggravating factor during the sentencing phase that duplicates one or
    more elements of the offense of the crime found at the guilt phase.
    See 
    id. at 246
    ; see also United States v. Hall, 
    152 F.3d 381
    , 416-17
    (5th Cir. 1998) (upholding submission of the § 3592(c)(1) statutory
    aggravating factor in prosecution for kidnapping resulting in death);
    UNITED STATES v. HIGGS                         43
    United States v. Jones, 
    132 F.3d 232
    , 249 (5th Cir. 1998) (rejecting
    defendant’s contention that a statutory aggravating factor providing
    that the defendant caused the death of the victim during the commis-
    sion of a kidnapping failed to genuinely narrow the class of persons
    eligible for the death penalty); Deputy v. Taylor, 
    19 F.3d 1485
    , 1502
    (3rd Cir. 1994) (noting that "federal courts of appeals have consis-
    tently held that a sentencing jury can consider an element of the capi-
    tal offense as an aggravating circumstance even if it is duplicitous").
    Accordingly, we find no error in the district court’s submission of the
    statutory aggravating factor to the jury.
    2. Previous Conviction of a Violent Felony
    Involving a Firearm
    Higgs next challenges the district court’s submission as a statutory
    aggravating factor the fact that Higgs had been previously convicted
    of a violent felony involving a firearm. See 
    18 U.S.C.A. § 3592
    (c)(2).
    The aggravating factor was based upon Higgs’s participation in the
    December 1995 Cherry Lane shooting. Higgs pleaded guilty in Mary-
    land state court to assault and reckless endangerment for the offense
    in April 1997. During the plea colloquy, which was admitted into evi-
    dence in Higgs’s sentencing proceeding, the prosecutor stated that
    Higgs had fired a .38 caliber handgun and Haynes had fired a 9 mm
    handgun during the incident. In response, Higgs claimed that he
    "didn’t have a .38. It was the other way around." J.A. 1104.
    On appeal, Higgs argues that the court must take a "categorical"
    approach to determining whether a prior felony conviction involved
    the use of a firearm, i.e., the court may only look to the fact of convic-
    tion and the statutory definition of the crime of conviction to deter-
    mine whether a firearm was involved, not to the particular facts of the
    case. Cf. Taylor v. United States, 
    495 U.S. 575
    , 588-89 (1990) (hold-
    ing that courts must employ a categorical approach when determining
    whether burglary was a predicate crime of violence for armed career
    offender status under 
    18 U.S.C.A. § 924
    (e)); United States v. Pierce,
    
    278 F.3d 282
    , 286 (4th Cir. 2002) (holding that, in determining
    whether a state felony offense of taking indecent liberties with a child
    falls within the federal definition of a "crime of violence" for pur-
    poses of U.S.S.G. § 4B1.1, the court must employ a similar "categori-
    cal approach, which takes into account only the definition of the
    44                      UNITED STATES v. HIGGS
    offense and the fact of conviction"). According to Higgs, because use
    of a firearm is not a specific element of the Maryland offenses of
    assault and reckless endangerment, the crimes to which he pled guilty,
    and he did not specifically admit the use of a firearm during the
    Cherry Lane incident, the prior conviction did not "involv[e] the use
    or attempted or threatened use of a firearm . . . against another per-
    son" as required by § 3592(c)(2).
    We reject this claim as well. Higgs correctly points out that the
    Supreme Court has called for such a categorical approach when Con-
    gress has specified that a predicate offense have certain elements. See,
    e.g., Taylor, 
    495 U.S. at 588
    ; Pierce, 
    278 F.3d at 286
    ; United States
    v. Ward, 
    171 F.3d 188
    , 192 (4th Cir. 1999). However, this same
    approach is not required under § 3592(c)(2) of the federal death pen-
    alty scheme. Section 3592(c)(2) provides, as a statutory aggravator,
    the fact that
    the defendant has previously been convicted of a Federal or
    State offense punishable by a term of imprisonment of more
    than 1 year, involving the use or attempted or threatened use
    of a firearm (as defined in section 921) against another per-
    son.
    
    18 U.S.C.A. § 3592
    (c)(2) (emphasis added). Because the language
    quite plainly requires only that the previous conviction "involv[e] the
    use or attempted or threatened use of a firearm," it authorizes and
    likely requires the court to look past the elements of the offense to the
    offense conduct. See United States v. Chong, 
    98 F. Supp. 2d 1110
    ,
    1120 (D. Haw. 1999). Additionally, whereas the court in Taylor noted
    that the categorical approach was proper to avoid "the practical diffi-
    culties and potential unfairness of a factual approach," Taylor, 
    495 U.S. at 601
    , the Court has made it clear that an individualized deter-
    mination is required in the death penalty context, Zant, 
    462 U.S. at 877-79
    . Accordingly, we hold that the district court did not err in sub-
    mitting the challenged statutory aggravating factor to the jury for its
    consideration.
    UNITED STATES v. HIGGS                       45
    Volume 2 of 2
    3. Previous Conviction of a Serious Federal Drug Offense
    Higgs next claims that the district court erred in refusing to strike
    as an aggravating factor the fact that he "had previously been con-
    victed" of a serious drug offense carrying a potential sentence of five
    years or more. See 
    18 U.S.C.A. § 3592
    (c)(12).
    46                      UNITED STATES v. HIGGS
    The federal drug offense at issue involved Higgs’s conviction for
    possession with intent to distribute cocaine base, which arose from
    the drugs seized during the search of his apartment on March 21,
    1996. Higgs pled guilty in May 1997 to the drug offense, and judg-
    ment was entered in December 1997. Higgs argues that, for purposes
    of the death penalty statute, a defendant has been "previously con-
    victed" of a federal drug offense only if the predicate drug conviction
    occurred prior to the conduct giving rise to capital murder. Had Con-
    gress intended to include any conviction prior to the sentencing hear-
    ing, the argument goes, it would have framed the issue as whether the
    defendant "has been convicted" of a predicate offense, rather than
    "had previously been convicted" of a predicate offense. Because his
    drug arrest and conviction for a serious drug offense occurred after
    the murders, Higgs asserts that the statutory aggravator was improp-
    erly submitted for consideration by the jury. The district court dis-
    agreed, ruling that the aggravator refers to any conviction for a
    serious drug offense that occurred prior to sentencing and, therefore,
    denied the motion to strike the factor.
    As support for their respective interpretations of the language of
    the statute, the parties direct us to analogous language and practice
    under the United States Sentencing Guidelines. The government, for
    example, points us to U.S.S.G. § 4A1.2 (2002), which provides that,
    for purposes of calculating a defendant’s criminal history category
    under the United States Sentencing Guidelines, a "prior sentence"
    includes "any sentence previously imposed upon adjudication of guilt,
    whether by guilty plea, trial, or plea of nolo contendere, for conduct
    not part of the instant offense." As correctly pointed out by the gov-
    ernment, the commentary makes clear that "[a] sentence imposed
    after the defendant’s commencement of the instant offense, but prior
    to sentencing on the instant offense, is a prior sentence if it was for
    conduct other than conduct that was part of the instant offense."
    U.S.S.G. § 4A1.2, cmt. n.1. For purposes of establishing whether a
    defendant is a career offender, however, the guidelines are equally
    clear that "prior convictions" only count if they occurred before com-
    mission of the federal crime. See U.S.S.G. § 4B1.2(c).
    Higgs, for his part, points us to the case of United States v. Barton,
    
    100 F.3d 43
     (6th Cir. 1996), which interprets a more ambiguous pro-
    vision of a now-defunct guideline, U.S.S.G. § 2K2.1, which provided
    UNITED STATES v. HIGGS                       47
    for an increase in the base offense level for a firearms offense if the
    defendant "had one prior felony conviction of either a crime of vio-
    lence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2000).
    The Barton court held that the use of the words "had" and "prior"
    reflected an intent to only encompass predicate convictions occurring
    prior to the conduct which formed the basis for the federal offense.
    See Barton, 
    100 F.3d at 46
    . Those circuits that have addressed the
    issue of whether use of the past-tense verb "had" when referring to
    prior convictions under § 2K2.1 encompassed post-offense convic-
    tions, however, ultimately reached differing results. Compare United
    States v. Oetken, 
    241 F.3d 1057
    , 1058-60 (8th Cir. 2001) (reaching
    same conclusion as Barton court), with United States v. Laihben, 
    167 F.3d 1364
    , 1366 (11th Cir. 1999) (holding that post-offense convic-
    tions do count as prior felony convictions for purposes of § 2K2.1);
    United States v. Pugh, 
    158 F.3d 1308
    , 1309-1312 (D.C. Cir. 1998)
    (same); United States v. Gooden, 
    116 F.3d 721
    , 724-725 (5th Cir.
    1997)(same); United States v. McCary, 
    14 F.3d 1502
    , 1505-06 (10th
    Cir. 1994)(same).
    In 2001, the Sentencing Commission put an end to the difference
    of opinion, amending § 2K2.1 to provide that a defendant’s base
    offense level would be increased where "the defendant committed any
    part of the instant offense subsequent to sustaining one felony convic-
    tion of either a crime of violence or a controlled substance offense."
    U.S.S.G. § 2K2.1(a)(4)(2001) (emphasis added). Thus, the Sentencing
    Commission adopted the minority view, but it did not make that view
    retroactive. See Cofske v. United States, 
    290 F.3d 437
    , 442 (1st Cir.
    2002) (adopting the "minority view" for purposes of sentencings
    which occurred prior to the amendment, but noting that "[o]ne could
    as easily call [the change] a revision as a clarification").
    In the end, we find the parties’ reliance upon the sentencing guide-
    lines to be of limited utility. We hold that the § 3592(c)(12) statutory
    aggravating factor encompasses all predicate convictions occurring
    prior to sentencing, even those occurring after the conduct giving rise
    to the capital charges. In short, we can discern no basis upon which
    to conclude that Congress intended that the prior serious drug offense
    aggravator encompass only drug offenses or convictions that occurred
    prior to the conduct giving rise to the murder or kidnapping charges.
    Unlike others contained within § 3592(c), the aggravator does not
    48                      UNITED STATES v. HIGGS
    concern matters directly related to the death penalty offense. Rather,
    it is concerned with the characteristics of the offender as of the time
    that he is sentenced. Although it easily could have done so, Congress
    did not specify that either the prior offense or conviction had to occur
    before the death penalty offense. On the contrary, the entire section
    speaks in terms of those things that must be considered when the
    death sentencing hearing is conducted and the petit jury begins its
    weighing process. And, we note that where Congress has intended a
    different practice in other circumstances, it has made that intent clear.
    See, e.g., 
    21 U.S.C.A. § 841
    (b)(1)(C) (West Supp. 2003) (providing
    for an enhanced penalty "[i]f any person commits such a violation
    after a prior conviction for a felony drug offense has become final";
    
    18 U.S.C.A. § 922
    (g)(1) (West 2000) (stating "[i]t shall be unlawful
    for any person . . . who has been convicted . . . to [commit specified
    violations]").
    At bottom, Higgs’s argument is that the prior drug conviction
    aggravator of § 3592(c)(12) is to be treated differently than every
    other prior conviction aggravator because it directs us to inquire as to
    whether the defendant "had previously been convicted," (i.e., uses the
    past-perfect tense), rather than "has previously been convicted" (as
    does every other statutory, prior conviction aggravator contained
    within § 3592(c), as well as § 3592(b) and (d)).8 This grammatical dif-
    ference is far too tenuous a basis upon which to conclude that Con-
    gress intended that the prior serious drug offense aggravating factor
    for homicide was to be treated differently than every other prior con-
    viction aggravating factor and every other prior serious drug offense
    aggravating factor for other crimes under the FDPA.9
    8
    
    18 U.S.C.A. § 3592
    (b) and (d) address aggravating factors for espio-
    nage and treason and the aggravating factors for drug offense death pen-
    alties. They contain identical aggravators for a previous conviction of a
    serious drug offense, but use the term "has" instead of "had" when refer-
    ring to them.
    9
    Higgs contends that this reading of § 3592(c)(12) would be inconsis-
    tent with Ring v. Arizona, 
    536 U.S. 584
     (2002), because statutory aggra-
    vators must be found by the grand jury and included within the
    indictment. Because we have concluded that prior convictions need not
    be alleged in the indictment, submitted to the jury, or proven beyond a
    reasonable doubt, see Almendarez-Torres, 
    523 U.S. at 226-27
    , we need
    not interpret § 3592(c)(12) as requiring prior convictions to be prior to
    the grand jury’s indictment in order to pass constitutional muster.
    UNITED STATES v. HIGGS                       49
    Finally, even if the aggravator was improperly submitted for con-
    sideration, the error was harmless. The prior drug offense aggravator
    was only one of six aggravating factors submitted to and found by the
    jury, and the jury found only three mitigating factors (and only one
    of these unanimously — that Higgs was not the sole proximate cause
    of the deaths). Accordingly, Higgs would not be entitled to relief on
    this basis.
    4. Multiple Killings
    Finally, Higgs contests the district court’s denial of his motion to
    strike multiple killings in a single criminal episode as a statutory
    aggravating factor, see 
    18 U.S.C.A. § 3592
    (c)(16), because reliance
    upon the aggravating factor violated his rights under the Ex Post
    Facto Clause. The district court denied the motion, ruling that the
    aggravating factor was not a substantive change because it did not
    increase the punishment that was available when the murder was
    committed.
    As discussed earlier, we agree that the "multiple killings" aggrava-
    tor was improperly submitted to the jury as a statutory aggravating
    factor. Reliance upon a statutory aggravating factor that was added to
    the death-penalty statute after a murder is committed would run afoul
    of the Ex Post Facto Clause if the aggravating factor served as the
    sole aggravating factor that rendered the crime death-eligible because
    it would clearly "increase the punishment for [the] criminal acts."
    Morales, 
    514 U.S. at 504
    ; see Carmell, 
    529 U.S. at 521-525
    . It does
    not follow, however, that Higgs’s death sentences are infirm.
    In Higgs’s case, the jury found the existence of four statutory
    aggravators for the first-degree murder convictions and three statutory
    aggravators for the kidnapping conviction. Accordingly, although the
    district court’s submission of the "multiple killings" aggravating fac-
    tor as a statutory aggravating factor was error, its submission as such
    was harmless error. See Zant, 
    462 U.S. at 884
     ("[A] death sentence
    supported by at least one valid aggravating circumstance need not be
    set aside . . . simply because another aggravating circumstance is
    ‘invalid’ in the sense that it is insufficient by itself to support the
    death penalty."); United States v. Paul, 
    217 F.3d 989
    , 1001 (8th Cir.
    2000) (consideration of inapplicable statutory aggravator was harm-
    50                       UNITED STATES v. HIGGS
    less error where jury found two other statutory aggravators existed).
    Because the jury found the existence of at least one intent factor and
    at least one other properly-submitted statutory aggravating factor, the
    murder was death-eligible. Any additional statutory and nonstatutory
    aggravating factors did not increase the available punishment and
    were, instead, appropriately considered by the jury in determining
    whether to impose the death sentence.
    B. Constitutional Challenges to the
    Nonstatutory Aggravators
    The government submitted two nonstatutory aggravating factors
    for the jury’s consideration — victim impact and obstruction of jus-
    tice — after having given appropriate notice to the defendant.10 On
    appeal, Higgs asserts that the statute’s authorization of the jury’s con-
    sideration of nonstatutory aggravating factors is unconstitutional for
    four separate reasons. We also review these challenges de novo. See
    Helem, 
    186 F.3d at 454
    .
    1. The Consideration of Nonstatutory Aggravators
    by the Jury
    First, Higgs argues that the FDPA violates the Eighth and Four-
    teenth Amendments to the Constitution because the submission of
    nonstatutory aggravating factors at the penalty phase allows for the
    random and unguided imposition of the death penalty by jurors. See
    McCleskey v. Kemp, 
    481 U.S. 279
    , 304 (1987) (providing that the
    jury’s decision to impose death must be guided by "carefully defined
    standards that must narrow a sentencer’s discretion"). We disagree.
    Once a defendant has been rendered eligible for the death penalty by
    the jury’s finding of a statutory aggravating factor, the use of nonsta-
    tutory aggravating factors serves only to individualize the sentencing
    determination.11 See Zant, 
    462 U.S. at 878-79
     (holding that the use of
    10
    Prior to the start of the penalty phase, the government withdrew
    future dangerousness, for which notice had also been given, as an addi-
    tional nonstatutory aggravating factor.
    11
    A nonstatutory aggravating factor is improper if it is not "relevant to
    the character of the defendant or the circumstances of the crime." Bar-
    clay v. Florida, 
    463 U.S. 939
    , 967 (1983) (Stevens, J., concurring).
    Higgs does not claim that either of the nonstatutory aggravating circum-
    stances submitted to the jury was invalid on this basis.
    UNITED STATES v. HIGGS                       51
    nonstatutory aggravating factors is appropriate after the jury finds the
    existence of at least one statutory aggravating factor that narrows the
    class of defendants eligible for the death penalty); United States v.
    McCullah, 
    76 F.3d 1087
    , 1106-07 (10th Cir. 1996) ("The Supreme
    Court has dealt with the issue of non-statutory aggravating factors in
    state capital punishment statutes and has held the use of non-statutory
    aggravating factors permissible."). Thus, we reject the contention that
    the FDPA is unconstitutional merely because it allows the sentencing
    jury to weigh nonstatutory aggravating factors when deciding whether
    to impose the sentence of death upon a defendant convicted of a
    death-eligible offense.
    2. Proportionality Review by the Court
    Higgs next claims that the FDPA is facially unconstitutional
    because it does not require proportionality review of a death sentence.
    Although acknowledging that the Supreme Court has held that the
    Eighth Amendment does not require state courts to conduct such a
    review, see Pulley v. Harris, 
    465 U.S. 37
    , 43 (1984), Higgs asserts
    such review is required when a death penalty scheme allows a jury
    to weigh nonstatutory aggravating factors in deciding whether to
    impose a death sentence.
    Higgs bases this argument on two cases in which the Supreme
    Court observed that proportionality review is a useful safeguard
    against arbitrary imposition of the death penalty. See Zant, 
    462 U.S. at 890
    ; Gregg v. Georgia, 
    428 U.S. 153
    , 198 (1976). Neither case,
    however, holds that proportionality review is mandated, and both pre-
    date the Court’s decision in Pulley. As noted by the Court in Pulley,
    "that some schemes providing proportionality review are constitu-
    tional does not mean that such review is indispensable. . . . Examina-
    tion of our [prior] cases makes clear that they do not establish
    proportionality review as a constitutional requirement." Pulley, 
    465 U.S. at 44-45
    . Nor are we persuaded by Higgs’s attempt to distinguish
    Pulley because it did not deal with a death penalty scheme involving
    nonstatutory aggravating factors. See Jones, 
    132 F.3d at 240-41
    (rejecting attempt to distinguish Pulley from application to the FDPA
    on this basis, and holding that "the Constitution does not mandate
    proportionality review when the capital sentencing scheme permits
    the jury to consider nonstatutory aggravating factors as long as the
    52                      UNITED STATES v. HIGGS
    statute provides for other safeguards against an arbitrary imposition
    of the death penalty"); see also United States v. Allen, 
    247 F.3d 741
    ,
    760 (8th Cir. 2001) (holding "that the FDPA has sufficient safeguards
    —notably the requirements that a jury find beyond a reasonable doubt
    the existence of one statutory aggravating factor and at least one of
    four requisite levels of specific intent on the part of a defendant, not
    to mention various other procedural protections—such that propor-
    tionality review is not required in order for the FDPA to pass constitu-
    tional muster"), vacated on other grounds, 
    536 U.S. 953
     (2002).
    Accordingly, we reject Higgs’s claim that the FDPA violates the
    Eighth Amendment because it does not require proportionality
    review.
    3. Improper Delegation by Congress
    Higgs next contends that, by affording prosecutors virtually unlim-
    ited discretion in identifying and defining nonstatutory aggravating
    factors, the FDPA impermissibly delegates legislative power to gov-
    ernment prosecutors in violation of the separation-of-powers doctrine.
    We likewise reject this argument. First, the statute does not dele-
    gate a legislative function to the prosecutor. The prosecutor’s discre-
    tion with regard to defining what is a death-eligible offense is wholly
    circumscribed by the statute’s requirement that the jury unanimously
    find at least one intent factor and one statutory aggravating factor
    before the defendant becomes death eligible. Cf. Jones, 527 U.S. at
    376-77 (noting that, "[e]ven on a finding of intent, . . . a defendant
    is not death eligible unless the sentencing jury also finds that the Gov-
    ernment has proved beyond a reasonable doubt at least one of the stat-
    utory aggravating factors set forth at § 3592"). Only after the selection
    of those critical, legislatively-defined factors is made is the prosecutor
    afforded discretion to argue that additional nonstatutory aggravators
    combine with the statutory aggravators to outweigh any mitigating
    factors that have been submitted for consideration, thus assisting the
    jury in its task of determining whether a death-eligible defendant
    should indeed receive that maximum sentence. See, e.g., id. at 377-78;
    Jones, 
    132 F.3d at 240
    .
    Moreover, to the extent that this discretion could be viewed as a
    delegation of legislative power, such delegation is constitutionally
    UNITED STATES v. HIGGS                       53
    permissible. See Tipton, 
    90 F.3d at 895
     (rejecting facial challenge to
    the death sentencing provisions of 
    21 U.S.C.A. § 848
    , which also per-
    mits the consideration of nonstatutory aggravating factors, because
    "any delegation involved was sufficiently circumscribed by ‘intelligi-
    ble principles’ to avoid violating separation of powers principles");
    Paul, 
    217 F.3d at 1003
     ("[T]he prosecutor’s authority to define non-
    statutory aggravating factors is a constitutional delegation of Con-
    gress’ legislative power."); Jones, 
    132 F.3d at 239-40
     (same); McCul-
    lah, 
    76 F.3d at 1106
     (holding that "[t]he prosecutorial discretion to
    promulgate non-statutory aggravating factors falls squarely within the
    permissible delegation of power to the Executive Branch").
    4. Violation of the Ex Post Facto Clause
    Higgs’s final constitutional challenge to the FDPA’s authorization
    of the use of nonstatutory aggravating factors centers on his claim that
    the statute violates the Ex Post Facto Clause because it allows the
    prosecution to define aggravating factors after the crime was commit-
    ted. The district court rejected this argument based on Walton v. Ari-
    zona, 
    497 U.S. 639
     (1990).
    Although Higgs correctly points out that Walton was overruled by
    Ring, he is not entitled to relief. Although aggravating factors do
    "make[ ] more burdensome the punishment for [the] crime," Dobbert,
    
    432 U.S. at 292
    , nonstatutory aggravating factors and mitigating fac-
    tors are weighed by the jury to make the individualized determination
    to impose the death sentence upon a defendant who has already been
    found eligible. They do not increase the possible punishment or alter
    the elements of the offense.
    C. Evidentiary Challenges to the Obstruction Aggravator
    Higgs also raises challenges to the evidence admitted by the district
    court in support of the nonstatutory aggravating factor of obstruction
    of justice. The government argued that Higgs obstructed the investi-
    gation into and prosecution of the murders based upon evidence that
    Higgs, along with Haynes and Gloria, got rid of the .38 caliber mur-
    der weapon and disposed of any physical evidence that the three
    women had been in Higgs’s apartment that evening; that Higgs solic-
    ited false statements and testimony from Phyllis Smith, Smith’s fam-
    54                      UNITED STATES v. HIGGS
    ily members, and Darby concerning his whereabouts on the night of
    the murder in order to establish an alibi; that Higgs, while incarcer-
    ated, made plans with at least one accomplice to eliminate Gloria as
    a witness; and that Higgs attempted to intimidate an eyewitness to the
    Chaconia shooting to help defeat the D.C. charges against him. We
    review the district court’s rulings for an abuse of discretion. See
    United States v. Lancaster, 
    96 F.3d 734
    , 744 (4th Cir. 1996) (en
    banc).
    1. Admission of Evidence of Unadjudicated Crimes
    We begin with Higgs’s contention that it was improper to allow the
    government to introduce evidence that Higgs engaged in obstruction
    of justice by getting rid of the murder weapon, destroying the physical
    evidence of the victims’ presence in his apartment, directing Smith
    and her family to lie to the police and the grand jury regarding his
    whereabouts on the night of the murder, and planning the elimination
    of Gloria as an eyewitness against him. Because prior convictions are
    specifically included as statutory aggravating factors, see 
    18 U.S.C.A. § 3592
    (c), Higgs asserts that only conduct that results in a conviction
    for listed crimes may constitute an aggravating factor. Accordingly,
    the argument goes, the district court erred in admitting evidence of an
    uncharged and unadjudicated offense of obstruction of justice.
    This argument is plainly without merit. Although the FDPA does
    specify certain types of convicted criminal conduct that may be used
    as a statutory aggravating factor authorizing imposition of the death
    penalty, it also provides that "[t]he jury . . . may consider whether any
    other aggravating factor for which notice has been given exists" when
    making the individualized decision of whether the authorized sen-
    tence of death should indeed be imposed. 
    18 U.S.C.A. § 3592
    (c).
    There is no question that the government gave Higgs appropriate
    notice that it would pursue obstruction of justice as an additional,
    nonstatutory aggravator, and we have no doubt that Higgs’s destruc-
    tion of evidence and tampering with witnesses in order to cover his
    tracks, impede the investigation into the murders, and increase his
    chances of being acquitted were highly relevant aggravating circum-
    stances which were properly submitted to the jury for its consider-
    ation in making the requisite individualized determination. For the
    same reasons, we also reject Higgs’s contention that its probative
    UNITED STATES v. HIGGS                       55
    value was outweighed by the dangers of unfair prejudice and confu-
    sion.
    We may summarily reject Higgs’s assertion that introduction of the
    evidence was prohibited by the Fifth, Sixth, and Eighth Amendments
    to the Constitution because the evidence lacked the requisite indicia
    of reliability necessary to impose a sentence of death and because the
    jury would be unable to fairly evaluate that evidence. The jury was
    carefully instructed that the government was required to "prove
    beyond a reasonable doubt that the defendant tampered and attempted
    to tamper with evidence and witnesses for the purpose of obstructing
    the investigation of the kidnappings and murders" of the three
    women. J.A. 1932. Accordingly, we find no error or abuse of discre-
    tion in the district court’s submission of this evidence to the jury for
    its consideration as a nonstatutory aggravating factor.
    2. Admission of Evidence Referring to
    Haynes’s Confession
    Higgs next challenges the district court’s decision to allow Captain
    Robert Rule of the United States Park Police to introduce statements
    made by Haynes in his confession, which corroborated the testimony
    of Gloria and others, regarding the actions they took to eliminate
    physical evidence immediately after the murders. During the guilt
    phase, Gloria testified that either Higgs or Haynes disposed of the
    murder weapon in the Anacostia River immediately after the murders
    and that the three men then returned to the apartment to clean it and
    dispose of any items the women might have touched. Corroborating
    testimony was also introduced that the rented videotapes were never
    returned to the video store and that no victim fingerprints were found
    in the apartment. According to Captain Rule, Haynes’s statements
    corroborated Gloria’s testimony that Higgs drove from the murder
    scene to the Anacostia River, where Haynes threw the gun into the
    water, and that the three men then returned to Higgs’s apartment
    where they cleaned it of potentially incriminating evidence.
    Higgs objected to Captain Rule’s testimony regarding Haynes’s
    statements, asserting that the testimony was more prejudicial than
    probative. The district court rejected this assertion and admitted the
    testimony because, even if the rules of evidence applied, the statement
    56                       UNITED STATES v. HIGGS
    was a declaration against interest. See 
    18 U.S.C.A. § 3593
    (c)
    ("Information is admissible regardless of its admissibility under the
    rules of evidence governing admission of evidence at criminal trials
    except that information may be excluded if its probative value is out-
    weighed by the danger of creating unfair prejudice, confusing the
    issues, or misleading the jury.").
    On appeal, Higgs now argues that the admission of Haynes’s state-
    ments through Captain Rule violated the Confrontation Clause of the
    Sixth Amendment, which he contends does remain applicable during
    the penalty phase of the proceedings. Because this constitutional
    claim was not raised below, we review it only for plain error. See
    Olano, 
    507 U.S. at 732
    . In order to prevail under this standard, Higgs
    must establish that an error occurred, that it was plain, and that it
    affected his substantial rights. 
    Id.
     Further, even if Higgs can make
    such a showing, we would exercise our discretion to correct such
    error only if it seriously affected the fairness, integrity, or public repu-
    tation of judicial proceedings. 
    Id.
    The Sixth Amendment provides that "[i]n all criminal prosecutions,
    the accused shall enjoy the right . . . to be confronted with the wit-
    nesses against him." U.S. Const. Amend. VI. Assuming arguendo that
    the admission of Haynes’s statements would be a violation of Higgs’s
    rights under the Confrontation Clause during the guilt phase, see Lilly
    v. Virginia, 
    527 U.S. 116
    , 139 (1999) (plurality) (holding that a defen-
    dant’s Sixth Amendment right to confront the witnesses against him
    was violated when an out-of-court statement made by his non-
    testifying co-defendant, which incriminated the defendant, was admit-
    ted into evidence at their joint trial), such presumed error was not
    plain in the context of Higgs’s sentencing phase. It is far from clear
    that the Confrontation Clause applies to a capital sentencing proceed-
    ing. Cf. United States v. Terry, 
    916 F.2d 157
    , 160-61 (4th Cir. 1990)
    ("United States courts have a long history of using reliable hearsay for
    sentencing" and a "trial court may properly consider uncorroborated
    hearsay evidence that the defendant has had an opportunity to rebut
    or explain") (internal quotation marks omitted). In Bassette v. Thomp-
    son, we rejected an argument that the admission of a psychiatrist’s
    report during a capital sentencing proceeding violated the defendant’s
    confrontation rights, relying in part on the Supreme Court’s prior
    holding that the rules of evidence do not apply in such proceedings.
    UNITED STATES v. HIGGS                         57
    See 
    915 F.2d 932
    , 939 (4th Cir. 1990) (citing Williams v. New York,
    
    337 U.S. 241
    , 251 (1949)); but see Proffitt v. Wainwright, 
    685 F.2d 1227
    , 1254 (11th Cir. 1982) (reaching contrary conclusion). And, in
    Maynard v. Dixon, 
    943 F.2d 407
    , 414 n.5 (4th Cir. 1991), we noted
    that the question of whether the Confrontation Clause applies in sen-
    tencing proceedings remains undecided.
    Thus, even if the introduction of Haynes’s statements through Cap-
    tain Rule during the sentencing proceeding was error, we cannot say
    that the error was plain since it even now remains unclear whether the
    Confrontation Clause applies in this circumstance. See Promise, 
    255 F.3d at 160
     (An error is plain "when the settled law of the Supreme
    Court or this circuit establishes that an error has occurred."). In addi-
    tion, even if we were to assume error that was plain, we would not
    grant relief. Haynes’s statements were merely corroborative of Glo-
    ria’s eyewitness testimony regarding Haynes’s and Higgs’s acts of
    disposing of the gun and any physical evidence in the apartment, as
    well as the corroborative testimony that no fingerprints were found
    and that the videotapes were indeed never returned. Given the cumu-
    lative nature of the precise evidence challenged, and the overwhelm-
    ing evidence otherwise proffered in support of the obstruction
    aggravator, we cannot say that Rule’s limited testimony regarding
    Haynes’s statements affected Higgs’s substantial rights, nor would we
    exercise our discretion to correct the error as it did not seriously affect
    the fairness, integrity or public reputation of the judicial proceedings.
    3. Admission of Evidence Pertaining To
    The Chaconia Shooting
    Higgs also challenges the admission of evidence that he attempted
    to obstruct the prosecution of charges filed against him related to the
    Chaconia Nightclub shooting, in order to minimize the damaging
    effect of that looming conviction in his murder case.
    Higgs was charged with the Chaconia shooting in the D.C. Supe-
    rior Court and housed at the D.C. jail. Higgs’s counsel for the Cha-
    conia charges believed that Richard Diolamou, who was at the
    Chaconia Nightclub on the night of the shooting and incarcerated
    elsewhere on unrelated charges, could offer testimony that would be
    helpful to Higgs’s case. Thus, Diolamou was transferred to the D.C.
    58                      UNITED STATES v. HIGGS
    jail in April 1999, pursuant to a writ issued on Higgs’s behalf, and
    was questioned by Higgs’s counsel on three occasions. On the first
    two occasions, Diolamou failed to offer any helpful information. On
    the third occasion, Higgs personally attended the meeting with his
    attorney, but Diolamou again failed to offer any helpful information.
    Later, Higgs and another inmate, known by the name "Doc" to Diola-
    mou, entered the room where Diolamou was watching television.
    After Higgs and Doc conversed privately for a short time, Doc left the
    room and returned with a screwdriver or shank. According to Diola-
    mou, Higgs had "a smirk on his face." J.A. 1555. Diolamou became
    concerned about his safety and asked to be moved away from Higgs.
    He was not moved from Higgs’s unit, but after the Chaconia case was
    dismissed in May 1999, Higgs wrote Diolamou a note stating that
    there were "no hard feelings" between them and wishing him luck on
    the street. J.A. 1537. The government argued that Higgs’s intimida-
    tion of Diolamou was designed to obtain either a dismissal or acquit-
    tal on the Chaconia charges so that it would not harm his case on the
    murder charges.
    Higgs first complains that the district court abused its discretion in
    admitting Diolamou’s testimony because he did not receive pretrial
    notice that the government intended to introduce evidence concerning
    Diolamou or the Chaconia shooting in support of the obstruction of
    justice nonstatutory aggravator. This argument is plainly without
    merit. The FDPA and the Constitution require that the defendant
    receive adequate notice of the aggravating factor, which Higgs admit-
    tedly received in this case, not notice of the specific evidence that will
    be used to support it. See 
    18 U.S.C.A. § 3593
    (a) (requiring only that
    the government’s notice "set[ ] forth the aggravating factor or factors
    that the government, if the defendant is convicted, proposes to prove
    as justifying a sentence of death"); United States v. Battle, 
    173 F.3d 1343
    , 1347 (11th Cir. 1999) (observing that notice given to a defen-
    dant of the applicable aggravating factors in a death penalty case is
    not the same as notice of the specific evidence that the government
    intends to present at a sentencing hearing), cert. denied, 
    529 U.S. 1022
     (2000); cf. Gray v. Netherland, 
    518 U.S. 152
    , 167-68 (1996)
    (noting that there is no constitutional right to advance notice of the
    government’s evidence in aggravation at a capital sentencing hear-
    ing).
    UNITED STATES v. HIGGS                        59
    Higgs also challenges the district court’s conclusion that the evi-
    dence was relevant to the obstruction aggravator because it reflected
    Higgs’s attempts "to dissociate himself from the bullet in the Cha-
    conia shooting that is tied to the deaths." J.A. 1394. Higgs asserts that
    no such relevance exists because the bullet recovered from the Cha-
    conia shooting was not the same type of bullets used to murder the
    three women, i.e., it was not a wadcutter bullet. While true, this dis-
    tinction does not render the evidence irrelevant. The bullet used in the
    .38 caliber revolver during the Chaconia shooting was only of a dif-
    ferent type than those used in the murders. Indeed, while forensic evi-
    dence could not establish an exact match, the bullets examined from
    the murders, the Chaconia shooting, and the Cherry Lane shooting all
    had the same land and groove impressions, consistent with being fired
    from the same .38 caliber weapon. Accordingly, we hold that the dis-
    trict court did not abuse its discretion in admitting the evidence.
    D. Challenges to the Mitigation Case
    1. Challenges to Rulings Regarding Higgs’s Culpability
    As a mitigating factor in his case, Higgs argued that Haynes was
    equally culpable in the crimes, but had not been sentenced to death.
    See 
    18 U.S.C.A. §3592
    (a)(4). On appeal, Higgs contends that the dis-
    trict court violated his rights to due process and a fair trial by (1)
    denying his motion to preclude the government from offering the con-
    trary argument that Higgs was more culpable than Haynes, the admit-
    ted triggerman, and (2) denying his motion to introduce arguments
    made by the government during Haynes’s trial about the relative cul-
    pability of the two men, which Higgs believed to be irreconcilable
    with the government’s current position. We review the district court’s
    rulings for an abuse of discretion. See United States v. Barnette, 
    211 F.3d 803
    , 816 (4th Cir. 2000).
    In some situations, the Due Process Clause prohibits the govern-
    ment from presenting mutually inconsistent theories of the same case
    against different defendants. For example, due process may be vio-
    lated if "an inconsistency . . . exist[s] at the core of the prosecutor’s
    cases against the defendants for the same crime," see Smith v. Groose,
    
    205 F.3d 1045
    , 1052 (8th Cir. 2000) (finding due process violation
    where prosecution obtained two convictions for the same murder
    60                     UNITED STATES v. HIGGS
    based on conflicting statements from the same cooperating codefen-
    dant) (emphasis added), or where the evidence used at the two trials
    is "factually inconsistent and irreconcilable," Paul, 
    217 F.3d at 998
    (holding that government’s argument that both defendants were the
    triggerman and killed the victim was not inconsistent). See also
    United States v. GAF Corp., 
    928 F.2d 1253
    , 1260 (2d Cir. 1991)
    (holding that the defendant could inform the jury that the government
    had pursued a different theory during a previous trial).
    No such inconsistency exists in this case. The "inconsistent" argu-
    ments relied upon by Higgs stem from arguments the government
    made in response to Haynes’s tactic of conceding that he was the trig-
    german, but arguing that he committed the murders under duress from
    Higgs. Specifically, the government argued that, even though Higgs
    may have told Haynes to shoot the women, Haynes acted of his own
    free will and made the voluntary choice to commit three brutal acts
    of violence. Higgs asserts that the government’s argument that Higgs
    was the mastermind and driving force behind the murders, and, there-
    fore more culpable than Haynes because he ordered Haynes to kill the
    women, was inconsistent with the argument it advanced in Haynes’s
    trial.
    We disagree. The government argued precisely the same factual
    predicate for Haynes’s and Higgs’s convictions, i.e., that Higgs
    retrieved the gun from his apartment, drove the van to the murder
    scene, and handed the gun to Haynes after the women got out of the
    vehicle. And, the government has consistently represented that
    Haynes was the sole triggerman in the murders. The government did
    not argue at Haynes’s trial that Haynes was more culpable than Higgs,
    but rather that Haynes deserved the death penalty because he was no
    less than an equal partner in crime with Higgs. Nor did the govern-
    ment take any other position in the prior trial that would preclude it
    from arguing that Higgs was actually more culpable than Haynes. In
    short, the argument that Haynes was a "partner in crime" with Higgs
    because he could have chosen not to murder the women is not incon-
    sistent with the argument that Higgs was more culpable because he
    brought the murder weapon to the scene and told Haynes to do it. It
    was certainly not so inconsistent as to amount to a due process viola-
    tion.
    UNITED STATES v. HIGGS                         61
    2. The Jury’s Failure to Find Equal Culpability
    In a similar vein, Higgs argues that his death sentence must be
    vacated and the case remanded because the jurors failed to find as a
    mitigating factor that Haynes was equally culpable in the crime, but
    did not receive a death sentence. Higgs contends that the mitigating
    factor was established by uncontradicted evidence and, therefore, that
    the jury’s failure to find the factor reflects an arbitrary and unreliable
    decision requiring us to vacate the sentence. See 
    18 U.S.C.A. § 3595
    (c)(2)(A) ("Whenever the court of appeals finds that . . . the
    sentence of death was imposed under the influence of passion, preju-
    dice, or any other arbitrary factor[,] . . . the court shall remand the
    case for consideration under section 3593 or imposition of a sentence
    other than death.").
    Under 
    18 U.S.C.A. § 3592
    (a)(4), the jury is to consider, as a miti-
    gating factor, whether "[a]nother defendant or defendants, equally
    culpable in the crime, will not be punished by death." 
    18 U.S.C.A. § 3592
    (a)(4). At Higgs’s request, the district court submitted the fac-
    tor to the jury. However, although the jury unanimously found that
    Higgs was not the sole proximate cause of the victims’ deaths, it
    unanimously refused to find that Haynes was equally culpable in the
    commission of the three capital murders.
    Higgs argues that his death sentence must be reversed because the
    mitigating factor was supported by uncontradicted evidence that
    Haynes had been convicted on identical charges and sentenced to life.
    This argument fails, however, because the Constitution only requires
    that the jury be allowed to consider evidence that is proffered as miti-
    gating. See generally Lockett v. Ohio, 
    438 U.S. 586
    , 605 (1978) (plu-
    rality). There is no constitutional requirement that the jury find a
    mitigating factor even when it is supported by uncontradicted evi-
    dence. See Paul, 
    217 F.3d at 999-1000
    . In addition, the jury’s failure
    to find that Haynes’s life sentence was a mitigating factor for Higgs
    was supported by the evidence. Although it was undisputed that
    Haynes was the triggerman, a rational juror could well have found
    that Higgs had the dominant role in the murders and, therefore, that
    Higgs and Haynes were not "equally culpable in the crime." 
    18 U.S.C.A. § 3592
    (a)(4). Equal culpability was simply not established
    by uncontradicted evidence.
    62                      UNITED STATES v. HIGGS
    3. Evidence of Higgs’s Death-Eligibility under Maryland Law
    We review de novo Higgs’s claim that the district court violated
    the Eighth Amendment by refusing to submit to the jury, as a mitigat-
    ing circumstance, that Higgs would not have been eligible for the
    death penalty if the murders had occurred within the jurisdiction of
    the State of Maryland. Higgs sought to introduce expert testimony
    that, under Maryland law, the death penalty may only be imposed on
    the "triggerman" in cases such as this and to argue that, because the
    murders took place in an area where Maryland had an easement over
    federal property, he could not have known that he was on federal land
    when he committed the murders.
    We find no error in the district court’s refusal to submit the pro-
    posed mitigating factor to the jury. Section 3592(a) provides that "[i]n
    determining whether a sentence of death is to be imposed on a defen-
    dant, the finder of fact shall consider any mitigating factor." 
    18 U.S.C.A. § 3592
    (a). In addition to seven enumerated factors, the stat-
    ute requires consideration of "[o]ther factors in the defendant’s back-
    ground, record, or character or any other circumstances of the offense
    that mitigate against imposition of the death sentence." 
    Id.
     Higgs
    asserts that his unknowing presence within federal jurisdiction, as
    opposed to the jurisdiction of the State of Maryland where he would
    have been ineligible for a death sentence, is a "circumstance[ ] of the
    offense that mitigate[s] against imposition of the death sentence." 
    Id.
    We disagree.
    The Constitution requires that the jury "not be precluded from con-
    sidering as a mitigating factor, any aspect of a defendant’s character
    or record or any of the circumstances of the offense that the defendant
    proffers as a basis for a sentence less than death." Lockett, 
    438 U.S. at 604
    . However, evidence not falling within these categories may be
    excluded as irrelevant. See Lockett, 
    438 U.S. at
    604 n.12.
    We are satisfied that the district court properly rejected Higgs’s
    request. An assertion that the death penalty is improper in one juris-
    diction because it is not allowed in another is, at bottom, a reflection
    of the debate surrounding the propriety of the death penalty, which is
    a matter of policy for the legislative branch. Cf. United States v. John-
    son, 
    223 F.3d 665
    , 675 (7th Cir. 2000) (affirming the district court’s
    UNITED STATES v. HIGGS                        63
    refusal to allow the defendant to argue that life imprisonment was suf-
    ficient punishment because such an argument was better addressed to
    the legislature). As such, it was not error to refuse to submit it as a
    mitigating factor in this case.
    E. Challenge to the Government’s Rebuttal Evidence
    Higgs also contends that the district court erred in allowing the
    government to introduce as rebuttal evidence numerous prison infrac-
    tions committed by Higgs while he was incarcerated.
    In support of his mitigation case, Higgs presented testimony of a
    mitigation expert and family members regarding his family history
    and educational background. This evidence revealed that Higgs was
    born to a single mother and that his father was uninvolved in his
    childhood. When Higgs was ten years old, his mother died of breast
    cancer. Higgs went to live with his aunt and uncle, Constance and
    Hugh McKinnon, and was cared for by his extended family. When
    Higgs was eleven years old, another uncle was killed in a mugging
    and his grandmother died. His grandfather died a few years later.
    With regard to his educational background, Higgs repeated the second
    grade because of reading difficulties. However, he was an average
    student in high school, played high school sports, and graduated at the
    age of nineteen.
    Mrs. McKinnon, Higgs’s aunt, testified that Higgs assisted his
    mother during the last days of her battle with cancer, but that money
    he received from a medical malpractice suit after his mother’s death,
    in her opinion, had a negative effect upon Higgs’s work ethic. How-
    ever, Mrs. McKinnon offered positive testimony concerning Higgs’s
    relationship with his four-year-old son Daquon and testified that she
    believed the contacts between Daquon and Higgs were important for
    Daquon. Higgs’s cousins, Gerard McKinnon and Alexa Cave, both
    testified that they viewed Higgs as their brother and were supportive
    of him. Cave testified that Higgs also had a positive relationship with
    her son, whom she refers to as Higgs’s nephew, which had continued
    during his incarceration. In support of her testimony, three letters that
    Higgs had written to Cave while he was incarcerated were introduced
    into evidence. In the letters, Higgs wrote that he was "try[ing] to stay
    out of trouble" and that he was trying to be the best "father, uncle and
    64                      UNITED STATES v. HIGGS
    brother" that he could be. J.A. 1802. In short, Higgs sought to estab-
    lish, as potentially mitigating factors, the fact that a sentence of death
    would have an adverse impact on Higgs’s son and Cave’s son, that
    he was trying to be a good prisoner, and that other factors in Higgs’s
    background, record, character, or other circumstances of the offense
    mitigated against imposition of the death sentence.
    In rebuttal, the government elicited testimony about a sealed juve-
    nile adjudication for an armed robbery committed by Higgs when he
    was a senior in high school, as well as information that Higgs had
    been arrested in 1996 for possession of a gun on college grounds. The
    government also presented evidence of multiple prison infractions
    that Higgs had committed while incarcerated. Among other incidents,
    the government introduced evidence that Higgs had failed to cooper-
    ate with an institutional count; had demonstrated disorderly, disrup-
    tive, and disrespectful behavior on a number of occasions; had been
    caught in possession of a weapon; had engaged in a theft and fighting
    incidents; had thrown a cup of urine on another inmate; and had
    refused to provide information or cooperate in the investigation of a
    stabbing of Higgs by another inmate. Higgs objected to the introduc-
    tion of his prison infractions, contending that the evidence lacked any
    nexus with Higgs’s mitigation case and amounted instead to the
    improper admission of evidence of his future dangerousness, a non-
    statutory aggravator that the government had withdrawn prior to start-
    ing the penalty phase. The district court admitted the evidence, over
    Higgs’s objection, ruling that it was proper and fair "evidence to rebut
    the picture that the defendant has drawn with regard to who he is now
    and his future relationship with his son." J.A. 1803.
    "[W]hen otherwise inadmissible, rebuttal evidence must be reason-
    ably tailored to the evidence it seeks to refute." Stitt, 
    250 F.3d at 897
    (footnote omitted). Rebuttal evidence is "[e]vidence given to explain,
    repel, counteract, or disprove facts given in evidence by the opposing
    party" or "which tends to explain or contradict or disprove evidence
    offered by the adverse party." 
    Id.
     (alterations in original). "Rulings
    related to admission and exclusion of evidence are addressed to the
    sound discretion of the trial judge and will not be reversed absent an
    abuse of that discretion." 
    Id. at 896
    .
    Here, we find no error in the district court’s decision to allow evi-
    dence of Higgs’s prison infractions as rebuttal to his mitigation case.
    UNITED STATES v. HIGGS                          65
    Higgs’s mitigation evidence was directed in part to establish that he
    was attempting to stay out of trouble while incarcerated and that he
    was and intended to continue to be a good influence on his son and
    his nephew from prison. By presenting such evidence, Higgs opened
    the door to the subject of his "staying out of trouble" in prison and
    the evidence of Higgs’s numerous infractions of prison rules at vari-
    ous facilities was reasonably tailored to refute the image Higgs
    attempted to create in mitigation. In addition, the district court gave
    the jury a limiting instruction prior to admission of the evidence,
    informing them that the rebuttal evidence could "only be considered
    by [them] insofar as it may rebut the mitigating factors that ha[d] been
    specified by the defendant" and was "not to be considered by [the
    jury] for any other purpose." J.A. 1835. Accordingly, we hold that the
    district court did not abuse its discretion in admitting the rebuttal evi-
    dence.
    F. The Penalty Phase Summation
    Higgs next contends that the government engaged in improper
    argument during its penalty phase summation and rebuttal that
    deprived Higgs of a fair sentencing hearing. Specifically, Higgs
    claims that the prosecutor (1) improperly argued that the jurors were
    required by the law and their oath to impose a sentence of death, (2)
    improperly argued that Higgs was more culpable than Haynes for
    what occurred that night and that the jury should disregard the
    "equally culpable" mitigating factor argued by the defense, (3)
    improperly argued that the jury could not consider mercy in rendering
    its decision, (4) improperly interjected her personal opinion of Higgs
    and the verdict in her argument, and (5) improperly argued that Higgs
    would lead a soft life in prison if not executed.
    "Improper remarks during closing argument do not always mandate
    retrial. The relevant question is whether the prosecutors’ comments so
    infected the trial with unfairness as to make the resulting conviction
    a denial of due process." United States v. Mitchell, 
    1 F.3d 235
    , 240
    (4th Cir. 1993) (internal quotation marks omitted). In order to obtain
    a new trial on the basis of prosecutorial misconduct, Higgs must dem-
    onstrate (1) that the government’s remarks were in fact improper and
    (2) that the remarks "prejudicially affected the defendant’s substantial
    rights so as to deprive the defendant of a fair trial." 
    Id.
     (internal quota-
    66                      UNITED STATES v. HIGGS
    tion marks omitted). In evaluating prejudice, a number of factors
    should be considered:
    (1) the degree to which the prosecutor’s remarks have a ten-
    dency to mislead the jury and to prejudice the accused; (2)
    whether the remarks were isolated or extensive; (3) absent
    the remarks, the strength of competent proof introduced to
    establish the guilt of the accused; and (4) whether the com-
    ments were deliberately placed before the jury to divert
    attention to extraneous matters.
    
    Id. at 241
     (internal quotation marks omitted). Ultimately, "[t]he issue
    of whether improper argument by government counsel has so preju-
    diced the trial process as to require reversal must be gauged from the
    facts of each trial." 
    Id.
     (internal quotation marks and alterations omit-
    ted).
    1. The Jurors’ Duty to Impose Death
    Higgs’s first claim of prosecutorial misconduct, that the govern-
    ment improperly argued that the jurors were required by their oath
    and law to impose the death penalty, is without merit. In support of
    this claim, Higgs points to a number of statements in which the gov-
    ernment reminds the jury of its oath to impose the death sentence if
    justified by the facts and the court’s instructions and to the govern-
    ment’s argument that the death penalty is the only just resolution of
    the case. The government’s arguments strongly urged imposition of
    the death penalty given the egregious nature of the murders. However,
    they did not contradict the instructions given by the trial court regard-
    ing aggravating and mitigating circumstances or exceed the bounds of
    proper argument concerning the propriety of imposing the sentence
    under those instructions. Nor, in any event, would we conclude that
    the comments "so prejudiced the trial process as to require reversal."
    
    Id.
     (internal quotation marks omitted). The complained-of comments
    were isolated, did not rise to the level of argument that might mislead
    or inflame the jury concerning its duty or divert it from its task, and
    were made in the context of a case involving compelling evidence of
    numerous aggravating factors.
    UNITED STATES v. HIGGS                       67
    2. The "Equal Culpability" Factor
    We also reject Higgs’s contention that the prosecution improperly
    argued that Higgs was more culpable than Haynes for what occurred
    that night and that the jury should disregard the "equally culpable"
    mitigating factor argued by the defense. The first claim essentially
    repeats Higgs’s argument that the government impermissibly pre-
    sented contradictory theories of the case in the trials of Haynes and
    Higgs and, for the reasons previously set forth in the discussion of
    that issue, is also without merit. The related second claim likewise
    fails. The government did not tell the jury that it should disregard the
    proffered mitigating factor, i.e., that Haynes was an "equally culpa-
    ble" defendant who received a life sentence. Rather, the government
    argued that the jury was not required to reach the conclusion that
    Haynes was equally culpable or otherwise reach the same sentencing
    result in Higgs’s case as the jury did in Haynes’s case. There was
    nothing improper about this argument.
    3. The Consideration of Mercy
    Higgs next contends that the government impermissibly made the
    following argument during summation:
    [M]ercy is not what this case is about. Mercy is not in the
    instructions. It is not something you do in this case. Put
    aside all of those things.
    J.A. 2037. Higgs contends that this statement was improper because
    it misrepresented and misstated the law concerning capital sentencing.
    The district court instructed the jury that, regardless of the findings
    on aggravating and mitigating circumstances, the death penalty was
    not required to be imposed. In a nutshell, Higgs argues that mercy is
    always an implicit sentencing consideration, and that the government
    improperly argued that the jury should set aside such a consideration.
    See 
    18 U.S.C.A. § 3592
    (a)(8); Nelson v. Nagle, 
    995 F.2d 1549
    , 1555-
    57 (11th Cir. 1993).
    Higgs correctly argues that the jury is empowered to show mercy
    to reject a death sentence. Here, the prosecutor appropriately argued
    68                     UNITED STATES v. HIGGS
    that "mercy is not what this case is about" and that the jury should
    "[p]ut aside all of those things." J.A. 2037. However, the prosecutor’s
    statements that "mercy is not in the instructions," and "not something
    you do in this case" (as opposed to not something it should do) argu-
    ably crossed into an argument in contradiction of the district court’s
    instructions. However, we need not definitively determine whether
    the prosecutor’s remarks were improper. Even if Higgs could demon-
    strate that the comments amounted to error, they did not prejudicially
    affect Higgs’s substantial rights so as to deprive him of a fair trial.
    The challenged remarks amounted to isolated statements in a lengthy
    closing argument. There is no indication that the comments were
    made to confuse or mislead the jury, and the district court explicitly
    instructed the jury that it need not impose the death sentence regard-
    less of the findings on mitigation and aggravation. See J.A. 1996
    ("Even if you find that all of the aggravating factors are established
    beyond a reasonable doubt and that none of you ha[ve] [found] that
    any mitigation has been established at all, you still have the right to
    decide against the death penalty in the case. . . .").
    4. The Expression of Personal Opinion
    Higgs next argues that the prosecutor improperly injected her per-
    sonal opinion about Higgs by repeatedly using the personal pronoun
    "I." In particular, Higgs objects to the following statement from the
    conclusion of the prosecutor’s argument:
    I keep coming back to these beautiful young women and I
    look at them and I can’t believe . . . Mr. Higgs has caused
    this hell for so many people, that he has ruined so many
    lives with his actions and the way he has chosen to live his
    life. I have to think, ladies and gentlemen, this world would
    have been a better place without Dustin Higgs. The hard
    truth is, ladies and gentlemen, it would be a better world in
    the future without Dustin Higgs.
    J.A. 1982.
    As a general premise, a prosecutor’s repeated references to his or
    her personal opinion about a defendant may indeed be found
    improper. See Boyd v. French, 
    147 F.3d 319
    , 328-329 (4th Cir. 1998).
    UNITED STATES v. HIGGS                       69
    However, a prosecutor’s "use [of] the phrase ‘I think’ in an innocu-
    ous, conversational sense" does not violate due process because such
    use "do[es] not suggest an attempt to replace the evidence with the
    prosecutor’s personal judgments." United States v. Adam, 
    70 F.3d 776
    , 780 (4th Cir. 1995). Prosecutors must remain mindful to avoid
    the expression of personal opinions. However, in this case, the prose-
    cutor’s statements did not "so infect[ ] the trial with unfairness as to
    make the resulting conviction a denial of due process." Mitchell, 
    1 F.3d at 240
    .
    5. Higgs’s Life in Prison
    We summarily reject Higgs’s final claim that the government
    improperly argued that life imprisonment would be soft because
    Higgs could go to school, have a job, establish friendships, talk on the
    phone to his friends and family, eat food, watch television, read the
    newspaper, and generally establish a life within the prison commu-
    nity. We find no impropriety in the government’s argument, much of
    which followed similar, but opposing, notions argued by Higgs that
    life in prison meant life in a high security place of confinement where
    Higgs would be continuously monitored. In any event, we would not
    grant him relief. The remarks did not so prejudicially affect Higgs’s
    substantial rights so as to deprive him of a fair sentencing hearing.
    G. Passion and Prejudice
    The FDPA requires us to "consider whether the sentence of death
    was imposed under the influence of passion, prejudice, or any other
    arbitrary factor," 
    18 U.S.C.A. § 3595
    (c)(1), in violation of the Fifth,
    Sixth, and Eighth Amendments. In undertaking this duty, "we look to
    the record to see if these factors motivated the jury’s recommendation
    of the death penalty, including an analysis of the aggravating factors
    to see if the jury had an abundance of evidence to support imposition
    of the death penalty." Barnette, 
    211 F.3d at 821
    . Higgs argues that the
    emotional content of this case was so extreme as to render his death
    sentences invalid under this provision. We disagree. We find no basis
    upon which to conclude that the jury imposed the death penalty under
    improper influence. "[W]hile [death penalty] proceedings must be
    free from passion, prejudice, and other arbitrary factors, a death pen-
    alty case will not be emotionless." 
    Id.
     Here, we find no indication that
    70                     UNITED STATES v. HIGGS
    the jury was swayed by emotion rather than reason in deciding to
    impose the sentences of death upon Higgs.
    H. Cruel and Unusual Punishment
    Higgs preserves for appellate review his argument that the death
    penalty is cruel and unusual punishment under all circumstances and,
    therefore, violates the Eight Amendment. As acknowledged by Higgs,
    this argument is foreclosed by Supreme Court precedent. See
    McCleskey, 
    481 U.S. at 300-03
    ; Gregg, 
    428 U.S. at 187
    ; Jones, 
    132 F.3d at 242
    .
    VI. Firearm Sentences
    Finally, we review de novo Higgs’s challenge to the term of
    imprisonment imposed for the three § 924(c) firearm convictions. The
    district court imposed consecutive sentences of five years imprison-
    ment, twenty years imprisonment, and twenty years imprisonment on
    Count Five (use of a firearm during and in relation to the murder and
    kidnapping of Black), Count Ten (use of a firearm during and in rela-
    tion to the murder and kidnapping of Chinn), and Count Fifteen (use
    of a firearm during and in relation to the murder and kidnapping of
    Jackson), respectively. The twenty-year sentences were imposed pur-
    suant to § 924(c)’s requirement of such enhanced penalties for all
    "second or subsequent" convictions. See 
    18 U.S.C.A. § 924
    (c)(1). On
    appeal, Higgs challenges the enhanced twenty-year sentences, arguing
    that they were not "second or subsequent" within the meaning of the
    statute because all three counts arose from one criminal episode in
    which a single gunman fired multiple shots.
    In Deal v. United States, 
    508 U.S. 129
     (1993), the defendant com-
    mitted six armed bank robberies over the course of four months. He
    was charged in a single indictment with six § 924(c)(1) violations,
    each of which corresponded to one of the bank robberies also
    charged. After Deal was convicted on all counts, the district court
    sentenced him to consecutive sentences for each § 924(c)(1) violation.
    On appeal, Deal argued that the second through sixth § 924(c) convic-
    tions were not "second or subsequent" to the first because they had
    been charged in the same indictment and sentenced at the same time.
    The Supreme Court rejected this argument, concluding the language
    UNITED STATES v. HIGGS                       71
    of § 924(c)(1) only requires "a conviction after the first conviction."
    Id. at 135 (emphasis omitted). It does not speak in terms of criminal
    episodes.
    In the wake of Deal, at least two courts have rejected the argument
    Higgs makes here: that multiple consecutive sentences cannot be
    imposed for § 924(c)(1) convictions arising out of the same criminal
    episode. See United States v. Casiano, 
    113 F.3d 420
    , 424-26 (3d Cir.
    1997); United States v. Andrews, 
    75 F.3d 552
    , 557-58 (9th Cir. 1996);
    cf United States v. Burnette, 
    170 F.3d 567
    , 572 (6th Cir. 1999) ("It
    is now firmly established that the imposition of separate consecutive
    sentences for multiple § 924(c) violations occurring during the same
    criminal episode are lawful."); United States v. Camps, 
    32 F.3d 102
    ,
    109 (4th Cir. 1994) (holding that enhanced sentences for consecutive
    § 924(c) convictions arising out of a single predicate offense were not
    error). Accordingly, we reject Higgs’s challenge to the enhanced
    twenty-year sentences imposed for his second and third § 924(c) con-
    victions.
    VII. Conclusion
    For the foregoing reasons, we find no reversible error with respect
    to the issues that Jackson has raised on appeal. As set forth above, the
    evidence clearly supports the jury’s special findings of the existence
    of at least one of the aggravating factors listed in § 3592 for each
    murder and kidnapping conviction. Having reviewed the entire record
    in accordance with § 3592(b), we are also satisfied that the sentences
    of death handed down were not imposed under the influence of pas-
    sion, prejudice, or any other arbitrary factor. Accordingly, we affirm
    the convictions and sentences imposed upon Higgs in their entirety.
    AFFIRMED