Second Circuit opinion affirming a federal death sentence, June 2008

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Westlaw¶

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531 F.3d 197¶

(Cite as: 531 F.3d 197)¶

United States Court of Appeals,¶

Second Circuit.¶

UNITED STATES of America, Appellee,¶

Donald FELL, Defendant-Appellant.¶

Docket No. 06-2882-cr.¶

Argued: June 27, 2007.¶

Decided: June 27, 2008.¶

Background: Defendant was convicted in the United States District Court for the District of Vermont, William K. Sessions III, Chief Judge, of murder in course of carjacking and kidnapping, and he was sentenced to death. Defendant appealed.¶

Parker, Jr., Circuit Judge, held that:¶

(1) prospective juror who strongly opposed death penalty and was unprepared to conclude that defendant deserved death simply because murder was premeditated and simultaneously claimed that she could impose death penalty as part of her responsibilities as juror in spite of her expressed reluctance to do so had views that might have substantially impaired her duties as juror:¶

(2) prospective juror whose voir dire responses were not consistent or clear on whether he understood that death penalty could be imposed for murder resulting from reckless disregard for human life and whether he would be able to apply it under such circumstances could be excluded for cause;¶

(3) prospective juror who provided inconsistent and generally negative responses when asked whether she would consider imposing death penalty for single murder could be excluded for cause;¶

agreement with defendant was within its traditional authority to exclude evidence of questionable relevance;¶

(4) district court’s decision to exclude opinions of prosecutors set forth in draft plea¶

(5) defendant had not been prejudiced by exclusion of draft plea agreement;¶

(6) prosecutor’s arguments were reasonable responses to defendant’s use of stipulation;¶

(7) defendant’s Fifth Amendment right to fair sentencing hearing had not been prejudiced by prosecutor’s allegedly plainly erroneous closing comments; and¶

(8) evidence of defendant’s satanic beliefs was not admissible to show motive in penalty phase for lack of relevance.¶

Affirmed.¶

West Headnotes¶

[1] Criminal Law 110 ⇌ 1152.2(2)¶

110 Criminal Law¶

110XXIV Review¶

110XXIV(N) Discretion of Lower Court¶

110k1152 Conduct of Trial in General¶

110k1152.2 Jury¶

110k1152.2(2) k. Selection and Impaneling. Most Cited Cases¶

(Formerly 110k1152(2))¶

Challenges to a juror’s excusal are reviewed for abuse of discretion, inquiring whether the trial court’s findings are fairly supported by the record.¶

[2] Criminal Law 110 ⇌ 1153.1¶

110 Criminal Law¶

110XXIV Review¶

110XXIV(N) Discretion of Lower Court¶

110k1153 Reception and Admissibility of Evidence¶

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1788(3)¶

350H Sentencing and Punishment¶

350HVIII The Death Penalty¶

350HVIII(G) Proceedings¶

350HVIII(G)4 Determin¶

350HVIII(G)4 Determination and Disposition¶

Disposition¶

350Hk1788 Review of Death Sentence¶

350Hk1788(3) k. Presentation and Reservation in Lower Court of Grounds of Review. Most Cited Cases¶

Provision of Federal Death Penalty Act (FDPA) under which appellate court shall remand a case if it finds that death sentence was imposed under influence of passion, prejudice, or any other arbitrary factor does not create exception to rule under which unpreserved objections to jury instructions may be reviewed only for plain error. 18 U.S.C.A. § 3595(c)(2).¶

[9] Jury 230 ⇐108¶

230 Jury¶

230V Competency of Jurors, Challenges, and Objections¶

230k104 Personal Opinions and Conscientious Scruples¶

230k108 k. Punishment Prescribed for Offense. Most Cited Cases¶

Not all prospective jurors who oppose the death penalty are subject to removal for cause in capital cases; instead, those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.¶

[10] Jury 230 ⇐ 108¶

230 Jury¶

230V Competency of Jurors, Challenges, and Objections¶

230k104 Personal Opinions and Conscientious Scruples¶

230k108 k. Punishment Prescribed for Offense. Most Cited Cases¶

A juror’s views on capital punishment prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath, subjecting the juror to exclusion for cause, when those views create an obstacle to a prospective juror’s impartial consideration of the law and the facts.¶

[11] Criminal Law 110 ❑ 1166.17¶

110 Criminal Law¶

110XXIV Review¶

110XXIV(Q) Harmless and Reversible Error¶

110k1166.5 Conduct of Trial in General¶

110k1166.17 k. Sustaining Challenges to Jurors. Most Cited Cases¶

Erroneously excluding a prospective juror based on her view on the death penalty is reversible error.¶

[12] Jury 230 ⇐ 108¶

230 Jury¶

230V Competency of Jurors, Challenges, and Objections¶

230k104 Personal Opinions and Conscientious Scruples¶

230k108 k. Punishment Prescribed for Offense. Most Cited Cases¶

To survive review of a challenge to a district court’s exclusion of a prospective juror based on her view on the death penalty, voir dire need not establish juror partiality with unmistakable clarity; rather, it must be sufficient to permit a trial judge to form a definite impression that a prospect-¶

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fendant with murder resulting from reckless disregard for human life. 18 U.S.C.A. §§ 2119(2,3), 3591(a)(2)(D).¶

[18] Jury 230 ⇐ 128¶

230 Jury¶

230V Competency of Jurors, Challenges, and Objections¶

230k124 Challenges for Cause¶

230k128 k. Order of Challenges.¶

Most Cited Cases¶

A juror’s voir dire responses that are ambiguous or reveal considerable confusion may demonstrate that the performance of his duties as a juror in accordance with his instructions and his oath may be substantially impaired, subjecting the juror to exclusion for cause.¶

[19] Jury 230 ⇐ 108¶

230 Jury¶

230V Competency of Jurors, Challenges, and Objections¶

230k104 Personal Opinions and Conscientious Scruples¶

230k108 k. Punishment Prescribed for Offense. Most Cited Cases¶

Prospective juror who provided inconsistent and generally negative responses when asked whether she would consider imposing death penalty for single murder could be excluded for cause in death penalty case charging defendant with murder in course of carjacking and kidnapping. 18 U.S.C.A. §§ 2119(2, 3), 3591.¶

[20] Sentencing and Punishment 350H¶

1652¶

350H Sentencing and Punishment¶

350HVIII The Death Penalty¶

350HVIII(C) Factors Affecting Imposition in General¶

350Hk1652 k. Aggravating Circumstances in General. Most Cited Cases¶

Sentencing and Punishment 350H 1667¶

350H Sentencing and Punishment¶

350HVIII The Death Penalty¶

350HVIII(D) Factors Related to Offense¶

Offense

350Hk1666 Nature or Degree of

350Hk1667	k.	In	General.
Most Cited Cases

Sentencing and Punishment 350H 1670¶

350H Sentencing and Punishment¶

350HVIII The Death Penalty¶

350HVIII(D) Factors¶

350HVIII(D) Factors Related to Offense¶

350Hk1670 k. Intent of Offender.¶

Most Cited Cases¶

Under the Federal Death Penalty Act (FDPA), a defendant is eligible for the death penalty if the jury finds the charged homicide, a statutory intent element or threshold mental culpability factor, and at least one of the statutory aggravating factors. 18 U.S.C.A. §§ 3591(a)(2), 3592(c).¶

[21] Sentencing and Punishment 350H¶

1757¶

350H Sentencing and Punishment

350HVIII The Death Penalty

350HVIII(G) Proceedings

350HVIII(G)2 Evidence

350Hk1755 Admissibility

350Hk1757 k. Evidence in

Mitigation in General. Most Cited Cases¶

District court’s decision to exclude opinions of prosecutors set forth in draft¶

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guilty to prove acceptance of responsibility as mitigating factor, that capital murder defendant offered to plead guilty in exchange for minimum penalty authorized for his conduct only when faced with overwhelming evidence of his guilt and that government proceeded to trial that defendant could have avoided by pleading unconditionally when offer was not accepted, were reasonable responses to defendant’s use of stipulation, where jury repeatedly had been told that arguments were not evidence.¶

[26] Criminal Law 110 ⇌ 1171.1(2.1)¶

110 Criminal Law¶

110XXIV Review¶

110XXIV(Q) Harmless and Reversible Error¶

110k1171 Arguments and Conduct of Counsel¶

General. Most Cited Cases¶

In order to prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s remarks were improper and that the remarks, taken in the context of the entire trial resulted in substantial prejudice.¶

[27] Constitutional Law 92 4745¶

92 Constitutional Law¶

92XXVII Due Process¶

92XXVII(H) Criminal Law¶

92XXVII(H)6 Judgment and Sentence¶

92k4741 Capital Punishment;¶

Death Penalty¶

92k4745 k. Proceedings.¶

Most Cited Cases¶

Sentencing and Punishment 350H 1780(2)¶

350H Sentencing and Punishment

350HVIII The Death Penalty

350HVIII(G) Proceedings

350HVIII(G)3 Hearing

350Hk1780 Conduct of Hear-

350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases¶

Capital murder defendant’s Fifth Amendment right to fair sentencing hearing had not been prejudiced by prosecutor’s allegedly plainly erroneous closing comments, allegedly suggesting that relevance of his mitigating evidence depended on its connection with his crimes of conviction, where jury had been given thorough instructions, prosecutor’s comments formed very brief part of his summation and were not repeated during his rebuttal, and great amount of time and attention had been devoted to defendant’s early life experiences by both parties. U.S.C.A. Const.Amend. 5.¶

[28] Sentencing and Punishment 350H¶

1757¶

350H Sentencing and Punishment

350HVIII The Death Penalty

350HVIII(G) Proceedings

350HVIII(G)2 Evidence

350Hk1755 Admissibility

350Hk1757 k. Evidence in

Mitigation in General. Most Cited Cases¶

Before imposing the death penalty, a jury must be able to consider and give effect to a defendant’s mitigating evidence. 18 U.S.C.A. §§ 3592(a)(8), 3593(c).¶

[29] Sentencing and Punishment 350H¶

1757¶

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350Hk1762 k. Other Offenses, Charges, or Misconduct. Most Cited Cases¶

Testimony during sentencing phase of capital murder trial indicating that interest of defendant in Native American and Muslim religions was cynical or feigned, and that his multiple religiously-related grievances reflected failure to adjust to incarceration, was relevant, and did not result in denial of due process or violate his associational or religious rights under First Amendment, in context of testimony that defendant had successfully adjusted to prison, was genuinely interested in several religions, and filed grievances for entirely legitimate purposes. U.S.C.A. Const.Amends. 1, 5.¶

[33] Constitutional Law 92 ❑ 1170¶

92 Constitutional Law¶

92X(B) Particular Issues and Applications¶

92k1170 k. In General. Most Cited Cases¶

[34] Constitutional Law 92 ❑ 1170¶

The First Amendment forbids the uncabined reliance on a defendant’s abstract beliefs at sentencing. U.S.C.A. Const.Amend. 1.¶

92 Constitutional Law¶

92X First Amendment in General¶

92X(B) Particular Issues and Applications¶

92k1170 k. In General. Most Cited Cases¶

Constitutional Law 92 🏆 1440¶

92 Constitutional Law¶

92XVI Freedom of Association¶

92k1440 k. In General. Most Cited Cases¶

The government may introduce evidence of beliefs or associational activities without violating a defendant’s First Amendment rights, so long as they are relevant to prove, for example, motive or aggravating circumstances, to illustrate future dangerousness, or to rebut mitigating evidence. U.S.C.A. Const.Amend. 1.¶

[35] Sentencing and Punishment 350H¶

1789(3)¶

350H Sentencing and Punishment¶

350HVIII The Death Penalty¶

350HVIII(G) Proceedings¶

350HVIII(G)4. Determin¶

350HVIII(G)4 Determination and Disposition¶

350Hk1789 Review of Proceedings to Impose Death Sentence¶

350Hk1789(3) k. Presentation and Reservation in Lower Court of Grounds of Review. Most Cited Cases¶

Trial memorandum that specifically objected to introduction of satanic evidence on basis that it “would create a new aggravating circumstances [sic] which the government ha[d] not previously alleged,” and therefore would have violated requirement of formal notice under Federal Death Penalty Act (FDPA), was not sufficient to preserve First Amendment or due process challenge to testimony during sentencing phase of capital murder trial regarding defendant’s cynical or feigned interest in Native American and Muslim religions. U.S.C.A. Const.Amend. 1; 18 U.S.C.A. §3593(a).¶

[36] Sentencing and Punishment 350H¶

1789(3)¶

350H Sentencing and Punishment¶

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An excited utterance need not be contemporaneous with the startling event to be admissible; rather, the key question governing admission is whether the declarant was under the stress of excitement caused by the event or condition. Fed.Rules Evid.Rule 803(2), 28 U.S.C.A.¶

[40] Sentencing and Punishment 350H¶

1766¶

350H Sentencing and Punishment
350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)2 Evidence
350Hk1755 Admissibility
350Hk1766 k. Hearsay.
¶

Most Cited Cases¶

Statement of highly distraught mother of capital murder defendant to bartender after mother called for assistance from police after defendant had aggressively struck his mother inside bar and then assaulted her once they were outside of bar, that “she was afraid of [defendant],” was relevant in penalty phase of trial that charged defendant with murder of other person in course of carjacking and kidnapping to rebut mitigating factor that defendant had truthfully admitted responsibility for victim’s murder.¶

18 U.S.C.A. §§ 2119(2, 3), 3593(c);¶

Fed.Rules Evid.Rule 401, 28 U.S.C.A.¶

[41] Sentencing and Punishment 350H¶

1766¶

350H Sentencing and Punishment

350HVIII The Death Penalty

350HVIII(G) Proceedings

350HVIII(G)2 Evidence

350Hk1755 Admissibility

350Hk1766 k. Hearsay.

Most Cited Cases

Statement of highly distraught mother¶

of capital murder defendant to bartender after mother called for assistance from police after defendant had aggressively struck his mother inside bar and then assaulted her once they were outside of bar, that “she was afraid of [defendant],” was not unduly prejudicial and would not have misled jury in penalty phase of trial that charged defendant with murder of other person in course of carjacking and kidnapping, where it was clear from plethora of evidence that defendant and his mother had estranged and pathological relationship and such statement did little other than confirm what jury already knew. 18 U.S.C.A. §§ 2119(2,3), 3593(c); Fed.Rules Evid.Rule 403, 28 U.S.C.A.¶

[42] Sentencing and Punishment 350H¶

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350H Sentencing and Punishment
350HVIII The Death Penalty
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350HVIII(G)2 Evidence
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. Most Cited Cases
¶

Prior statements conveying willingness of capital murder defendant to commit multiple murders and his desire to kill his mother, offered at sentencing phase in response to defendant’s showing concerning abuse and neglect he suffered at hands of his parents, was relevant to defendant’s background and general character and was not unduly prejudicial with regard to defendant’s murder of other person in course of carjacking and kidnapping, where government never alleged premeditated murder as aggravating factor and did not argue in closing that defendant ever intended to kill his mother and jury was instructed to only consider charged aggravating factors. 18 U.S.C.A. §§ 2119(2, 3), 3591; Fed.Rules¶

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motive for defendant’s murder of victim did not subsume factor which provided that defendant “participated in the murder of [victim] after substantial premeditation to commit the crime of carjacking”; although addressing same carjacking conduct as other factors, including abduction of victim, premeditation factor for carjacking did not focus on motive for murder and prosecutor’s statements did not encourage jury to confuse those factors, and thus similar but nonetheless distinct concepts justified separate consideration and separate findings. 18 U.S.C.A. § 3591 et seq.¶

[48] Sentencing and Punishment 350H¶

1789(9)¶

350H Sentencing and Punishment¶

350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)4 Determin¶

350HVIII(G)4 Determination and Disposition¶

350Hk1789 Review of Proceedings to Impose Death Sentence¶

350Hk1789(9) k. Harmless and Reversible Error. Most Cited Cases¶

Any constitutional error in submission of aggravating factors in death penalty phase would not have affected fairness of proceedings in light of instructions to jury, where jurors had been instructed to not simply count number of aggravating factors in reference to mitigators, but to “consider the weight and value of each”; thus, jury would have known going into deliberations that, in reaching verdict, it should make qualitative assessment of aggravating and mitigating evidence as whole, rather than focusing on number of factors on each side of scale. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. § 3591 et seq.¶

[49] Indictment and Information 210¶

113¶

210 Indictment and Information¶

210V Requisites and Sufficiency of Accusation¶

210k113 k. Matter of Aggravation in General. Most Cited Cases¶

Government’s failure to include non-statutory aggravating factors in indictment did not violate Fifth Amendment’s Indictment Clause, where jury, not judge, found both statutory and non-statutory aggravating factors beyond reasonable doubt and Federal Death Penalty Act (FDPA) required only that jury sentencing defendant find mental culpability and at least one statutory aggravator, both charged in superseding indictment, before finding him “eligible” for death penalty; thus, factors that jury assessed when determining permissibility of death penalty did not change maximum sentence authorized under statute. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. § 3591(a)(2).¶

[50] Indictment and Information 210¶

113¶

210 Indictment and Information¶

210V Requisites and Sufficiency of Accusation¶

210k113 k. Matter of Aggravation in General. Most Cited Cases¶

The government must charge statutory aggravating factors under the Federal Death Penalty Act (FDPA) in the indictment. 18 U.S.C.A. § 3591 et seq.¶

[51] Sentencing and Punishment 350H¶

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350H Sentencing and Punishment¶

350HVIII The Death Penalty¶

350HVIII(A) In General¶

350Hk1622 Validity of Statute or¶

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errors in the admission of certain evidence, prejudicial comments by the prosecutors, and the violation of certain provisions of the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 et seq. We affirm.¶

BACKGROUND¶

This case stems from the brutal murders by Fell and his accomplice Robert Lee in November 2000 of Fell’s mother Debra, her companion Charles Conway, and King. The facts are largely undisputed. Fell, who was 20 years old at the time of the murders, does not contest his guilt and the government does not contest much of the evidence of the troubled childhood and adolescence that Fell adduced in an effort to avoid the death penalty.¶

Fell spent his early years in Pennsylvania with parents who were chronic alcoholics. Both Fell and his sister were raped by babysitters when they were young children, abandoned by their parents, and raised by relatives. Fell had frequent brushes with the law of increasing seriousness and, for a period of time, was committed to a home for delinquent youth. After his release, his involvement with the law continued to escalate and was punctuated by serious drug and alcohol abuse.¶

Fell’s mother moved to Rutland, Vermont in the fall of 1996 and Fell joined her in 2000. Their stormy relationship continued. Fell and his mother (and their friends) drank heavily, argued frequently, and abused drugs. For example, in November 2000, in an incident that was the subject of disputed trial testimony, Fell assaulted his mother in a bar. After taking his mother’s drink and attempting to rob her, Fell punched her in the head, knocked her to the ground and was arrested.¶

On the evening of November 26, 2002,¶

Fell, Lee, Debra Fell, and Charles Conway were playing cards at her residence. All were drinking heavily and some were using drugs. For reasons not reflected in the record, a violent altercation ensued. Fell produced a kitchen knife and stabbed Conway approximately 50 times causing his death. Lee began stabbing Debra Fell and killed her with multiple wounds to the head and neck. Fell and Lee then showered, took a shotgun that Fell had brought from Pennsylvania, and left on foot at approximately 3:30 am for a local mall in search of shells for the gun.¶

Fell and Lee first went to Wal-Mart, but were turned away by a cleaning crew that informed them that the store was closed. Fell and Lee then approached a Price Chopper convenience store, where they found King, a 53 year old grandmother, just arriving for work in her car. Fell and Lee stole her car and forced her into the backseat at gunpoint. King attempted to escape while on the highway but Fell restrained her. After driving for several hours and entering New York state, Fell told King that she would be released. As they stopped the car to do so, Lee apparently had second thoughts and convinced Fell that they should kill her to prevent her from identifying them. The two *206 forced King out of her car into the adjoining woods where they repeatedly kicked her and Lee struck her around the head and face with a rock. After killing her, Fell wiped his boots on her clothing. The two proceeded to Pennsylvania where they stole license plates, placed them on King’s car, and drove to Arkansas where they were arrested on November 30th. Following questioning by the Arkansas police and the FBI, Fell, verbally and in a written statement, confessed to the murder of Conway, described Debra Fell’s murder, and¶

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of such act or acts; and (4) intentionally and specifically engaged in one or more acts of violence, knowing that the act or acts created a grave risk of death to a person, other than one of the participants in the offense, such that participation in such act or acts constituted a reckless disregard for human life, and Teresca King died as a direct result of such act or acts. See 18 U.S.C. §3591(a)(2)(A)-(D).¶

FN2. The statutory aggravating factors were: (1) “The death of Teresca King occurred during the commission of a kidnapping”; (2) “Donald Fell committed the offense in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to Teresca King”; and (3) “Donald Fell intentionally killed or attempted to kill more than one person in a single criminal episode.” See 18 U.S.C. §§ 3592(c)(1), (6) & (16).¶

FN3. The non-statutory aggravating factors were: (1) “Donald Fell participated in the abduction of Teresca King to facilitate his escape from the area in which he and an accomplice had committed a double murder”; (2) “Donald Fell participated in the murder of King to prevent her from reporting the kidnapping and carjacking”; (3) “Donald Fell participated in the murder of King after substantial premeditation to commit the crime of carjacking”; and (4) “As reflected by the victim’s personal characteristics as an individual human being and the impact of the offense on the victim and the victim’s family, the Defendant¶

caused loss, injury and harm to the victim and the victim’s family, including but not limited to the following: a) Infliction of distress on the victim b) Impact of the offense on the family of the victim…” See 18 U.S.C. § 3593(a).¶

Fell, represented by the Federal Public Defender for the Northern District of New York, moved to dismiss the indictment on a number of grounds. He contended that the FDPA was unconstitutional because it permitted imposition of the death penalty on the basis of evidence that had not been tested according to the Sixth Amendment’s guarantee of confrontation or the Fifth Amendment’s guarantee of due process, or that would have been deemed inadmissible under the Federal Rules of Evidence. Id. at 489. The district court granted the motion. See United States v. Fell, 217 F.Supp.2d 469, 491 (D.Vt.2002). FN4¶

FN4. The painstaking work of Chief Judge Sessions generated a number of published opinions. United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002), rev’d United States v. Fell, 360 F.3d 135 (2d Cir.2004); United States v. Fell, 372 F.Supp.2d 753 (D.Vt.2005); 372 F.Supp.2d 773 (D.Vt.2005); and United States v. Fell, 372 F.Supp.2d 766 (D.Vt.2005); United States v. Fell, 372 F.Supp.2d 786 (D.Vt.2005).¶

The government appealed and we reversed. See United States Fell, 360 F.3d 135 (2d Cir.2004) (“Fell I”), cert. denied, 543 U.S. 946, 125 S.Ct. 369, 160 L.Ed.2d 259 (2004). We held that the Constitution did not require adherence to the Federal Rules of Evidence. We also found the FDPA’s evidentiary provisions constitutional because they were consistent with¶

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counts one and two relating to carjacking and kidnapping. On the gun charges, the court sentenced Fell to 120 months’ imprisonment on count four, and 84 months’ imprisonment on count three, consecutive to count four.¶

DISCUSSION¶

Fell raises a number of issues each of which we must consider separately. 18 U.S.C. § 3595. $^{FN6}$ Most of our discussion *209 considers the district court’s exclusion of three jurors, its exclusion of the draft plea agreement, the admission of evidence of a religious nature, the government’s compliance with the court’s instruction regarding mental health experts, and several allegedly improper arguments made by the prosecution, as well as Fell’s challenges to the superseding indictment.$^{FN7}$¶

FN6. Specifically, Fell argues that:¶

(1) the district court erred in dismissing three prospective jurors and¶

(2) by excluding a draft plea agreement;¶

(3) the government impermissibly argued that Fell’s exercise of his right to a jury trial was inconsistent with acceptance of responsibility;¶

(4) the government impermissibly told the jury that it could ignore certain mitigating evidence;¶

(5) the district court’s orders and the government’s conduct regarding mental health experts in the penalty phase violated the Fifth and Eighth Amendments;¶

(6) the government violated the First, Fifth, and Eighth Amendments through its reliance on Fell’s interest in satanism and other religions;¶

(7) the district court erred in admitting a hearsay statement made by Debra Fell;¶

(8) the district court erred in admitting testimony¶

by a former friend of Fell’s as proof of premeditation; (9) the cumulative impact of the government’s misconduct and the district court’s errors violated the constitution and the Federal Death Penalty Act (FDPA); (10) duplicative aggravating factors unconstitutionally skewed the jury’s weighing process towards the death penalty; (11) the government was required to allege the non-statutory aggravating factors in the indictment; and (12) the bifurcated capital trial mandated by the FDPA violates the Fifth and Sixth Amendments. This opinion resolves each of these issues.¶

FN7. 18 U.S.C. § 3595(c)(1) also requires that a reviewing court consider whether a death sentence was “imposed under the influence of passion, prejudice, or any other arbitrary factor[.]” The record reveals no evidence that any of those factors led to Fell’s sentence. Indeed, there is every indication that the jury carefully considered the district court’s instructions. Significantly, it sua sponte found mitigating factors in addition to those proposed by defense counsel. “Viewed collectively, these findings suggest that the jury considered the evidence in a thorough, evenhanded, and dispassionate manner.” United States Sampson, 486 F.3d 13, 52 (1st Chr.2007). Additionally, we must independently determine that the evidence supported the finding of at least one of the charged statutory aggravating factors under 18 U.S.C. § 3592. 18 U.S.C. § 3595(c)(1). Given that Fell confessed to the crime, we have¶

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that juror would react. See Fell, 372 F.Supp.2d at 770. Each potential juror was then questioned individually, rather than in an array, first by the court, which generally inquired into exposure to pre-trial publicity and views on the death penalty, and then by the parties.¶

Fell contends that the district court improperly excused three qualified prospective jurors, numbers 64, 141 and 195, in violation of Witherspoon Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Wainwright Witt, 469 U.S. 412, 420-21, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Prospective Juror 64, Fell argues, was excused based on her general disfavor of capital punishment. Prospective Jurors 141 and 195 were, Fell contends, excused for expressing reservations about applying the death penalty under specific factual circumstances not presented by this case, even though they affirmed that they could consider and impose a death sentence if warranted by the evidence.¶

[9][10] Under Witherspoon and its progeny, “not all [prospective jurors] who oppose the death penalty are subject to removal for cause in capital cases.” Lockhart McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Instead, “those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Id. In Witt, the Supreme Court explained that “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment … is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 469 U.S. at 424, 105 S.Ct. 844 (internal quotation marks omitted); see also Uttecht Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007). That impairment occurs when those views “create an obstacle” to a prospective juror’s impartial consideration of the law and the facts. Witt, 469 U.S. at 434, 105 S.Ct. 844.¶

[11][12][13] Erroneously excluding a prospective juror based on her view on the death penalty is reversible error, see Gray Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), and we review *211 challenges to a district court’s exclusion of a juror on that basis for abuse of discretion. United States Quinones, 511 F.3d 289, 304 (2d Cir.2007). To survive our review, “voir dire need not establish juror partiality with ‘unmistakable clarity.’ Rather, it must be sufficient to permit a trial judge to form ‘a definite impression that a prospective juror would be unable to faithfully and impartially apply the law.’” Quinones, 511 F.3d at 301 (quoting Witt, 469 U.S. at 424, 426, 105 S.Ct. 844). As the Supreme Court explained in Witt:¶

Many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law… [T]his is why deference must be paid to the trial judge who sees and hears the juror.¶

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that she could not “say to [the court] that [she] absolutely and unequivocally do[es] not believe in the death sentence.” When pressed further by the court on whether she could impose the death penalty under circumstances where that penalty would be appropriate under the law, she responded equivocally that she “probably could, yes.”¶

The government then asked a series of questions, culminating in whether Juror 64 could impose a death sentence if the government carried its burden. She responded:¶

“In theory, I’m very opposed to the death penalty, but it’s part of the process of this government, and so I guess if I was sitting as a juror, that-and that was part of the process, and I had made that decision to do that, then, yes, I could make that decision” but then further explained:¶

Well, I am just playing the question over that you asked me in terms of if I could do that, and, you know, again, I would much more lean towards someone being [sentenced to] life without parole, but I think that if … I had to make that decision, that I could be able to make that decision, yes.¶

Defense counsel asked Juror 64 whether she could honestly consider imposing the death penalty, and she responded, “Yes.”¶

Before excusing Juror 64 from the courtroom, the court made a final inquiry:¶

“[D]o you think that, based on your views, you might lean unfairly … toward one side or the other? Or do you feel that you could put aside any views … [and] be very impartial in your decision about whether the death penalty is appropriate or whether life imprisonment is appropriate?”¶

In response, she stated, “I guess I would have to say that I would definitely lean more towards life imprisonment than I would towards the death sentence, yes.”¶

After counsel for both sides declined the court’s invitation to ask follow-up questions, Juror 64 was excused from the courtroom, and the government then moved to exclude her for cause. The court granted the government’s motion, explaining that it could not rely on Juror 64’s pledge to follow the court’s instructions:¶

99 percent of the juror[s] would say that they can follow [the instructions of the court]. The question is whether somebody, in light of their own particular views, can be impartial and fair. And, I really wanted an honest response and I think I got an honest response at the very end… I asked whether she could be fair, and her response was, “I would lean toward life imprisonment.” … I appreciate that she said she could follow instructions but … I think my responsibility … is to make an analysis of whether somebody really could be fair and impartial… I think that in context,*213 she could not be fair and impartial, and so that’s the Court’s ruling, and she is excused.¶

Defense counsel objected to the exclusion.¶

[16] A prospective juror is not required to affirm that she would favor, or lean toward, the death penalty under any particular circumstances in order to serve. Even “those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases,” as long as they are able to subjugate their own beliefs to the need to follow the court’s instructions.¶

Lockhart McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).¶

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Fell, 372 F.Supp.2d at 770, the government asked Juror 141 whether he could consider the death penalty in a case that “didn’t involve murder, but simply involved someone engaging in violence, knowing that the act created a grave risk of death-not premeditated murder.” Juror 141 responded “no” without qualification or elaboration. The government then asked whether he would consider the death penalty in a case where the defendant committed an act that “constituted a reckless disregard for human life [but] not first degree or premeditated murder.” Juror 141 again replied, unequivocally, “No.”¶

Defense counsel objected to the government’s line of questioning. In response, the government argued that because reckless disregard for human life under 18 U.S.C. § 3591(a)(2)(D) was alleged in the indictment as a gatekeeping factor, the government had the right to pursue questions related to whether the juror could impose the death penalty absent evidence of intent. Defense counsel then complained that this approach constituted a “stake-out” to determine whether Juror 141 would impose the death penalty if Fell were found guilty of reckless disregard for human life rather than whether he could impose death in that situation. The district court disagreed, stating that, in conformity with its prior ruling on case-specific questioning, see Fell, 372 F.Supp.2d at 770, the government could ask questions relating to its theory that Fell could be sentenced to the death penalty for conduct demonstrating recklessness. The court noted that defense counsel would have the opportunity to rehabilitate the juror and allowed the government to proceed.¶

In the course of the government’s continued questioning, Juror 141 reiterated¶

that “I just … I really feel that the person, in order to be convicted of a death penalty, needs to have known what they were doing, to realize the consequences of what they were doing.” Defense counsel then inquired into whether Juror 141 could infer intent from a description of the violence inflicted and “the resulting damage or injury.” Juror 141 indicted that he could. Juror 141 also expressed a willingness to weigh aggravating and mitigating factors, pursuant to the instructions of the court, when considering whether death should be imposed. After this exchange, the district court returned to the issue of whether Juror 141 would consider imposing the death penalty for a killing that was reckless but not intentional, describing the reckless acts as “kicking or stomping.” Juror 141 reversed course and claimed that he could consider imposing the death penalty on the basis of such violence, acknowledging that he was “somewhat contradicting [himself].” FN9¶

FN9. Specifically, the following colloquy took place:¶

THE COURT: If the evidence showed that the defendant did not intentionally kill … in other words, did not think about killing … but intentionally engaged in an act of violence, knowing that the act created a grave risk of death, and that is, I think the facts, at least the defense is suggesting here, involved kicking or stomping, and that is that there wasn’t necessarily an intent to kill, but that it was an intent … intentionally acted with a grave risk of death to a person.¶

JUROR 141: Right.¶

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[18] We see no error in the district court’s decision to exclude this prospective juror. Juror 141’s responses were not consistent or clear on whether he understood that the death penalty could be imposed for murder resulting from reckless disregard for human life and whether he would be able to apply it under such circumstances. A juror’s voir dire responses that are ambiguous or reveal considerable confusion may demonstrate substantial impairment. Uttecht, 127 S.Ct. at 2229 (“[A juror’s] assurances that he would consider imposing the death penalty and would follow the law do not overcome the reasonable inference from his other statements that in fact he would be substantially impaired in this case…”). The district court properly considered all of Juror 141’s responses in the context in which they were given and did not err in concluding that his views would significantly interfere with his duties as juror. See Witt, 469 U.S. at 434, 105 S.Ct. 844; Darden, 477 U.S. at 178, 106 S.Ct. 2464. We find no abuse of discretion.¶

3. Prospective Juror 195¶

[19] Prospective Juror 195 rated herself as an eight on the ten-point scale of support for the death penalty contained in the juror questionnaire. Despite her support for the death penalty “[a]t a philosophical level,” she noted that she was unsure whether she “could vote in favor of *216 it when the decision is in [her] hands.” In response to the court’s questions about whether she could impose the death penalty if the circumstances warranted, she repeatedly answered “I don’t know” or “more yes than no” and gauged her ability to do so as “60/40.”¶

The district court’s decision to excuse Juror 195 turned on her inconsistent and generally negative responses when asked¶

whether she would consider imposing the death penalty for a single murder. Juror 195 felt that the death penalty was “not appropriate for every murder” but would be justified “if it was a serial killer or mass murder, say on a mass shooting spree.” She also stated that she did not think she would vote in favor of the death penalty “for one killing.” The government moved to exclude her for cause following this exchange:¶

THE COURT: The question is whether you could follow the instruction and consider the possible death penalty for one … if there’s only one death.¶

JUROR 195: Probably not. I would probably not be in favor of the death penalty in that scenario.¶

[20] Under the FDPA, a defendant is eligible for the death penalty if the jury finds the charged homicide, a statutory intent element or threshold mental culpability factor under § 3591(a)(2), and at least one of the statutory aggravating factors in § 3592(c). Although Fell was charged with three statutory aggravating factors-including committing multiple killings in a single criminal episode under § 3592(c)-two of the factors related to the death of King. In the event that the jury found that the killings were not part of a single criminal episode, Fell would still be eligible for the death penalty if the jury found at least one of the threshold mental culpability factors and that he had caused King’s death during the commission of a kidnapping or that he had committed the offense in an especially cruel or depraved manner. Therefore, the government argued that if Juror 195 could not consider imposing the death penalty without finding that Fell engaged in multiple killings, she would be substantially impaired in her ability to follow the law.¶

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9-10.01-05. The material is reviewed by a Committee appointed by the Attorney General, which makes a recommendation to the Attorney General, who then decides whether the Government will seek the death penalty. After considering the committee’s recommendation, the views of the relevant U.S. Attorney, and the advice of the Deputy Attorney General, the Attorney General will make the final decision on whether the government should file a notice of intention to seek the death penalty in a particular case. Id. at § 9-10.120.¶

In a pre-trial submission, the government moved to bar admission of the draft agreement as well as information surrounding plea negotiations at the guilt and penalty phases of the trial. Fell, 372 F.Supp.2d at 781. The government characterized the plea agreement, a conditional offer that was subject to acceptance by the Attorney General, as containing the unendorsed opinion of the prosecution and embodying inchoate compromise negotiations barred by Federal Rules of Evidence 408 and 410. Fell agreed that the evidence was irrelevant at the guilt phase, but opposed the motion, claiming that the proposed agreement contained binding judicial admissions that substantial mitigating factors existed. He also contended that the Fifth and Eighth Amendments as well as § 3593(c) of theFDPA compelled admission of the draft.¶

On May 26, 2005, the district court excluded the draft plea agreement-and statements made during plea negotiations-as irrelevant because “a prosecutor’s statements of personal belief regarding [aggravating and mitigation] factors should have no bearing on the jury’s independent evaluation of the evidence.” United States v. Fell, 372 F.Supp.2d 773, 783 (D.Vt.2005). The court also emphasized that the statements in the proposed plea agreement were never adopted by the government. See id. It concluded that while the draft’s probative value was negligible*218 because “the opinions of the prosecutors [did not] make the existence or non-existence of any mitigating factor more probable or less probable,” id., it could prejudicially distract the jury from making its own independent evaluation of the mitigating and aggravating factors. Finally, the court determined that public policy disfavored evidence that would deter plea bargaining.¶

However, the district court permitted Fell to introduce during the penalty phase a stipulation that he had offered to plead guilty to Count 2 in exchange for a sentence of life imprisonment without parole. In the court’s view, Fell’s “offer [was] relevant to the mitigating factor of acceptance of responsibility.” Id. The stipulation informed the jury that “on May 18th, 2001, Donald Fell, through his attorneys and in writing, offered to plead guilty to Count II of the indictment, kidnapping, death resulting, in exchange for a life sentence without the possibility of release. The government refused that offer.” In summation, defense counsel contended that Fell’s attempt to plead guilty demonstrated that he had accepted responsibility, assisted law enforcement, and felt remorse. In response, the government argued in closing:¶

Ladies and gentlemen, the judge instructed you. You know the law. Life imprisonment without the possibility of release is the minimum sentence that Donald Fell faces for kidnapping with death resulting. It’s the minimum sentence. When he offered to make that plea, he knew the¶

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ter or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”¶

FN12 Lockett Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (emphasis in original). The Supreme Court recognized, however, that its holding did not “limit[ ] the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Id. at 604 n. 12, 98 S.Ct. 2954. Likewise, the FDPA’s evidentiary standards do “not mean that the defense has carte blanche to introduce any and all evidence that it wishes.” United States Purkey, 428 F.3d 738, 756 (8th Cir.2005). Nor does the FDPA “eliminate th[e] function of the judge as gatekeeper of constitutionally permissible evidence.” Fell I, 360 F.3d at 145.¶

FN12. In Fell I, we concluded that “to achieve such ‘heightened reliability’ [as required in considering a sentence of death], more evidence, not less, should be admitted on the presence or absence of aggravating and mitigating factors.” Fell I, 360 F.3d at 143 (emphasis in original); see also Gregg Georgia, 428 U.S. 153, 203-04, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (“So long as the evidence introduced … at the presentence hearing do[es] not prejudice a defendant, it is preferable not to impose restrictions … [and] desirable for the jury to have as much information before it as possible when it makes the sentencing decision.”). However, even though the FDPA purportedly allows more evidence to be considered in the penalty phase of a capital case, “the presumption of admissibility of relevant evidence is actually narrower under the FDPA than under the FRE.” Fell I, 360 F.3d at 145. “[T]he balancing test set forth in the FDPA is, in fact, more stringent than its counterpart in the FRE, which allows the exclusion of relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ ” Id. (citing Fed.R.Evid. 403) (emphasis added). The FDPA requires only that the probative value be “outweighed” by such dangers. See 18 U.S.C. § 3593(c).¶

The court’s exclusion of the draft agreement was within its “traditional authority” to exclude evidence of questionable relevance. The district court appropriately concluded that, pursuant to 18 U.S.C. §3593(c), the draft agreement’s inclusion of the unadopted statements of the prosecutors lacked evidentiary value and that it would distract the jury from an independent assessment of the mitigating factors. In addition, admission of the draft would *220 authorize a confusing and unproductive inquiry into incomplete plea negotiations. See Berger United States, 295 U.S. at 88, 55 S.Ct. 629 (stating that the opinions of prosecutors should properly carry no weight with the jury); accord United States Melendez, 57 F.3d 238, 240-41 (2d Cir.1995). For these reasons, we see no error-much less abuse of discretion-in the district court’s decision to exclude the opinions of the prosecutors set forth in the draft plea agreement.¶

[24] Fell next argues that the prosecutor misrepresented his willingness to plead guilty by stating, in closing argument, that “if [Fell] wanted to plead guilty he could¶

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Fell accepts responsibility for what he did. But he pleaded not guilty. And that’s why we’re here. And that’s why you are here. And let’s think a little bit about that. Think about the very nature of the crimes that he’s charged with. They are all about evasion, about escape, about trying to avoid responsibility for what he did.¶

[26] We have held that, when addressing the jury, a prosecutor “must avoid commenting in a way that trenches on the defendant’s constitutional rights and privileges. For example, [ ]he may not permissibly comment on the failure of the defendant to testify, or invite the jury to ‘presume’ in the absence of countervailing evidence that the government’s view of the case is correct, or suggest that the defendant has any burden of proof or any obligation to adduce any evidence whatever.”¶

United States. Parker, 903 F.2d 91, 98 (2d Cir.1990). In order to prevail on a claim of prosecutorial misconduct, a defendant must demonstrate “that the prosecutor’s remarks were improper and … that the remarks, taken in the context of the entire trial resulted in substantial prejudice.”¶

United States. Bautista, 23 F.3d 726, 732 (2d Cir.1994).¶

The challenged comments occurred in response to Fell’s endeavor to use the stipulation of his offer to plead guilty to prove acceptance of responsibility as a mitigating factor. In summation, the prosecution sought to place the stipulation in context by noting that, when faced with overwhelming evidence of his guilt, Fell offered to plead guilty in exchange for the minimum penalty authorized for his conduct. When this offer was not accepted, the government proceeded to a trial that Fell¶

could have avoided by pleading unconditionally. At that trial, the government was put to a burden which it met. We believe these arguments-which the jury was repeatedly told were not evidence-were reasonable responses to Fell’s use of the stipulation. No error occurred. See Darden, 477 U.S. at 183, 106 S.Ct. 2464.¶

III. PROSECUTOR’S STATEMENTS REGARDING CONSIDERATION OF MITIGATING FACTORS¶

[27] Fell next contends that he was denied a fair sentencing hearing because the prosecutor erroneously argued that the jury could not consider mitigating evidence that was unrelated to the crimes for which he had been found guilty. During summation, the prosecutor made the following arguments:¶

[Y]ou should consider, one, [w]hat do these factors have to do with the crimes in this case? And do these factors actually lessen the defendant’s responsibility and culpability for these crimes? …¶

[E]ven if you find evidence of some of those mitigating factors, we submit to you that the weight of these factors is not that heavy, and you need not give them much, if any, weight based upon those two questions …¶

… you have heard so much about the defendant’s childhood, so much about his background, and again, let me just remind you, the question is, we submit to you, what’s the connection between his background and childhood and these crimes? What about his background and childhood makes him less responsible, less culpable? What about them means that he should receive a less-a lesser sentence?¶

The question is, what does that sexual as-¶

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court relied deal with the scope of a court’s authority to exclude evidence that “[r]easonable jurists could conclude … was relevant mitigating evidence.” Tennard, 542 U.S. at 288, 124 S.Ct. 2562; McKoy, 494 U.S. at 442, 110 S.Ct. 1227 (“Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an evidentiary ruling.” (quoting Mills, 486 U.S. at 375, 108 S.Ct. 1860 (citations omitted))). They further note that the Supreme Court has never held that, when arguing the weight of the evidence, a prosecutor may not question the connection between mitigating evidence and the defendant’s crime of conviction. Finally, they conclude that the prosecutorial comments at issue in the instant case do not differ in substance from the comments that the Supreme Court found acceptable in Boyde. See, e.g., 494 U.S. at 385, 110 S.Ct. 1190 (noting that the prosecutor had “argued to the jury that the mitigating evidence did not ‘suggest that [Boyde’s] crime is less serious or that the gravity of the crime is any less’ and that ‘[n]othing I have heard lessens the seriousness of this crime’”) (quoting Boyde trial record). In sum, they do not see the prosecutor’s observations about the lack of nexus between Fell’s mitigating evidence and Fell’s crime of conviction as “separate” from the prosecutor’s arguments about the weight that the jury should accord¶

to that mitigating evidence. It is not improper for a prosecutor to argue that, because such a nexus is absent, the mitigating evidence should be given little or no weight.¶

Judge Parker, on the other hand, agrees with the district court that the prosecutor permissibly argued that the weight of the mitigating evidence did not lessen Fell’s culpability, see Boyde, 494 U.S. at 385, 110 S.Ct. 1190, but impermissibly suggested that the juror should disregard the mitigating evidence because it did not “connect” to the charged crimes. He focuses on the prosecution’s language: “What’s the evidence of mitigating factors? To the extent that you find some, there are not that many, respectfully, and they don’t really relate to the crimes” as demonstrating that the prosecution improperly contended that mitigation evidence could be ignored because it bore no nexus to the crime. See Tennard, 542 U.S. at 285, 124 S.Ct. 2562 (concluding that “the Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant’s mitigating evidence”) (internal citations omitted). He further believes that Boyde has no applicability where a prosecutor makes, in addition to an argument challenging the weight of the mitigating evidence, a separate argument questioning the relevance of that evidence.¶

Regardless, we need not resolve these differences as we find that¶

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IV. MENTAL HEALTH EVIDENCE¶

[30] Fell next argues that the government committed misconduct by violating a district court order concerning mental health evaluations. During the course of plea negotiations in 2001, the defense provided a variety of mitigation information to the government, including the disclosure that it had hired experts to conduct mental health evaluations of Fell. After rejecting the proposed plea agreement and filing its notice of intent to seek the death penalty, the government moved for discovery of all mental health evidence and for Fell to submit to an examination by a government expert. Although the court never ruled on this motion, the defense voluntarily produced the reports and agreed to limited evaluations by two government experts, doctors Richard Wetzel and John Rabun. Fell, 372 F.Supp.2d at 758. The district court later observed that the limitations were appropriate because “in absence of Fed.R.Crim.P. 12.2(c), Fell’s statements could be used as evidence against him at trial.” Fell, 372 F.Supp.2d at 758. Drs. Wetzel and Rabun both produced reports based on their examinations of Fell.¶

FN15. In late 2002, Federal Rule of Criminal Procedure 12.2 was amended to codify a common-law sanctioned practice of the court ordering discovery and mental health examinations by the government’s experts upon notice by the defendant of intent to produce mental health evidence. FED.R.CRIM.P. 12.2 advisory committee’s note (2002)¶

FN16. The 2002 amendments to Rule 12.2 also allowed the government to admit statements made by a defendant during a medical examination by a government expert if the defendant had introduced his own expert mental health evidence. FED R.CRIM. P. 12.2 advisory committee’s note (2002). The rule now provides that:¶

No statement made by a defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on the statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on which the defendant:¶

(A) has introduced evidence of incompetency or evidence requiring notice under Rule 12.2(a) or (b)(1), or¶

(B) has introduced expert evidence in a capital sentencing proceeding requiring notice under Rule 12.2(b)(2).¶

FED.R.CRIM.P.¶

(emphasis added).¶

After we decided Fell I, in December 2004, the defense gave formal notice that it planned to introduce expert evidence on Fell’s mental condition. See FED.R.CRIM.P. 225 12.2(b). Subsequent to that announcement, the government moved for a court-ordered examination of Fell’s mental health pursuant to Federal Rule of Criminal Procedure 12.2(c)(1)(B). The government then requested an unrestricted examination of Fell by a third expert, Dr. Michael Welner, it¶

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agreement with the *226 defense by deciding after two years that it wanted a new expert. Id. The court also denied as premature Fell’s motion to exclude Welner’s testimony, holding that the nature and scope of Welner’s anticipated rebuttal testimony was unclear but that, even without interviewing Fell, his testimony might “shed light on Fell’s upbringing and other relevant factors concerning sentencing.” Id. Accordingly, the court declined to rule on admissibility prior to the government’s disclosure of the scope of Welner’s projected testimony.¶

Pursuant to the court’s April 7, 2005 order, Wetzel interviewed Fell and prepared a report explaining his findings. Fell, 2006 U.S. Dist. LEXIS 24707, at 8. A video recording of the Wetzel interview was subsequently provided to Welner who compiled a report based on that interview. At the sentencing phase of the trial, Fell moved to exclude parts of Wetzel’s report and also sought a copy of Welner’s report. On July 5, 2005, after the government had rested, it disclosed Welner’s report as ordered by the district court. The report revealed that Welner had supplied questions for Wetzel to ask Fell and had administered psychological tests that had not been previously disclosed to the defense-the Psychopathy Checklist-Revised (“PCL-R”), the Violent Risk Appraisal Guide (“VRAG”), and the Historical/Clinical/Risk Management (HCR-20)-to assess Fell’s capacity for future violence. Id. at 13. Welner admitted that in scoring the PCL-R, he relied on Wetzel’s videotaped interview. Welner’s assessment based on these tests was that Fell was a psychopath and that sexual and physical abuse had played little role in his development.¶

The following day, Fell moved to exclude Welner’s report and testimony, arguing that by supplying questions for Wetzel to ask him, Welner had used Wetzel as a proxy for interviewing Fell in violation of the court’s April 7 order and that the government administered new testing without providing notice. The court scheduled a hearing on July 11 to address this issue and others regarding Welner’s proposed testimony. Before the hearing took place, however, Fell changed course and elected not to call a mental health expert. $^{FN18}$ Id. at *15. The next day, the defense and the government entered into a stipulation to the effect that Fell suffered from no mental disease or defect and knew the difference between right and wrong at the time of the murders.$^{FN19}$ As a result, the government presented no mental health evidence during the penalty phase. Id. at *15-16.¶

FN18. Prior to this, Fell had already decided not to call another mental health expert, Dr. Mills, as part of its mitigation case. Mills was scheduled to testify on the first day of the defense’s case, but the defense decided that it would save Mills’s testimony for surrebuttal.¶

FN19. The full stipulation provided:¶

[A]fter his arrest in late 2000, Donald Fell was subjected to full psychological and psychiatric examinations. Those examinations determined that, one, he had no cognitive or neurological deficits; two, his intellect and cognitive functions were intact; three, he did not suffer from any mental disease or defect. The examination also found that fell was competent to stand trial, and knew the difference between right and wrong at the time of offenses on November 27, 2000.¶

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they were growing up, she testified that Fell initially did not believe in God and on several occasions jokingly characterized Satan as “the kindest beast.” She also testified that Fell had a tattoo of an upside-down cross with “666,” which she believed he had gotten when he was 15 or 16 years old. However, Teri Fell explained that she did not believe that Fell worshiped Satan.¶

James Rushlow testified on direct examination as to Fell’s adjustment in prison and his participation in certain religious and educational opportunities afforded by the institution. On cross-examination, the prosecution confirmed that Fell had signed *228 up for Christian Bible Studies, and asked Rushlow: “During your time working with Mr. Fell, has he also claimed to practice Native American rituals?” In response, Rushlow testified that Fell had filed a grievance and a lawsuit seeking the right to perform Native American rituals. With no objection from the defense, the government introduced into evidence a certified copy of the record in that litigation.¶

Rushlow further stated that Fell had wanted to participate in Ramadan, as a Muslim, and that he had filed numerous other grievances for himself and on behalf of others. In addition, Rushlow testified, without objection, that Fell had both a “666” tattoo and one of an anarchy symbol.¶

FN20. Defense counsel stated that he had no objection to the certified record being entered into evidence but he “may well” have an objection to Rushlow being asked to comment on it.¶

The defense called James Aiken to testify further about Fell’s positive adjustment in prison. The government cross-examined Aiken regarding the possibility of Fell committing future assaults, and¶

asked him to describe the significance of Fell’s “666” tattoo. He responded:¶

Well, the 666 denotes possible involvement in some type of relationship with an organization. I will leave it at that because I have not dwelled into that from the intelligence reports. Number two is that I am more concerned about who he’s controlling at the prison. And he’s not controlling anybody.¶

The prosecutor’s summation made no reference to Fell’s tattoos or Fell’s purported satanic interest and made no attempt to explain the relevance of this evidence to the murders. The prosecutor did, however, argue that Fell had not made positive contributions while incarcerated because he generated numerous grievances and filed a lawsuit which was predicated on a feigned interest in multiple religions.¶

FN21. Specifically, the government argued that:¶

They want to claim that he is [sic] a positive contribution in resolving grievances? You heard from Jason Rushlow. The man generated grievances. Are you kidding me? You saw the lawsuit. You can read it for yourself when you go back there. This man signs up for bible study, and then files a lawsuit claiming to be American … a Native American. He files a lawsuit so that he can practice his Native American religion on the yard. It’s bogus, ladies and gentlemen. You know it’s even more bogus, because, believe it or not, he observes Ramadan as a Muslim.¶

[33][34] The First Amendment forbids¶

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other grounds, Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir.1997) (distinguishing Dawson based on the fact that the government presented evidence that defendant was a member of a gang that had committed violent and unlawful acts); Wainwright v. Lockhart, 80 F.3d 1226, 1234 (8th Cir.1996) (ruling that questioning of defendant on involvement in street gang “did not serve any proper rebuttal purpose” where “[t]here was no credible, admissible evidence that [the defendant’s] crime was gang-related, that [the defendant] belonged to a gang or that gang membership would impeach [the defendant’s testimony] about his religious beliefs”); United States v. Robinson, 978 F.2d 1554, 1565 (10th Cir.1992) (rejecting a First Amendment challenge because “the government presented adequate expert testimony as to the meaning of the gang affiliation evidence”).¶

1. Native American and Muslim Religious Interests¶

We conclude that the testimony regarding Fell’s interest in Native American and Muslim religions was relevant in the context in which the testimony was elicited. Fell undertook to prove the following mitigating factor: “Donald Fell has made positive contributions to the Northwest Correctional Facility by working, gaining an education, and helping to resolve inmate grievances.” In support of this factor, Rushlow testified that Fell was picked by management to act as a unit representative for other inmates, took part in Bible study and other educational opportunities, and¶

had a disciplinary record reasonably free of infractions. However, on crossexamination, Rushlow retreated from several of his prior assertions. He conceded that Fell did not “resolve inmate grievances” but instead manufactured grievances based on his purported religious beliefs. The government also showed that while Fell participated in Bible studies, he simultaneously filed grievances and a lawsuit demanding that “sweat lodges” and “talking circles” be made available in the prison so that he could engage in Native American religious practices. During that same *230 period, Fell also participated in Ramadan. The government elicited testimony that Fell was appointed unit manager in part because his familiarity with the administrative procedures, due to his constant filing of complaints, made it easier to have the other inmates funnel their grievances through him.¶

The jury was free to find that Fell had successfully adjusted to prison, was genuinely interested in several religions, and filed grievances for entirely legitimate purposes. By the same token, the jury was also free to find that Fell’s interest in multiple religions was cynical or feigned and that his multiple grievances reflected a failure to adjust to incarceration. Contrary to Fell’s contention that the evidence was intended to incite religious prejudice, the testimony was reasonably elicited to present a more complete picture of Fell that belied the one of a well-adjusted inmate offered by the defense. In any event, the evidence played a very minor role in the trial and added little to the quantum of evidence before the jury. We see no error and certainly no plain error in its admission.¶

2. Satanic Beliefs and “666” Tattoo¶

[36] We are more troubled by the testimony that the government elicited regard-¶

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account of his relationship with his mother. In this confession, he recalled an incident at a local bar involving a physical altercation in which his mother was the aggressor.¶

The government called Thompson, the bartender at the local bar, to show that Fell had not given a truthful account of the altercation to the authorities investigating King’s murder. Thompson testified that Fell aggressively struck his mother inside the bar and then assaulted her once they were outside of the bar. Thompson stated that she then called 911. After the police arrived and arrested Fell, his mother, highly distraught, returned to the bar and told Thompson that:¶

She couldn’t take it. She didn’t want to go back home. She was afraid to go home. And I said to her, why don’t you have him leave your home if you are afraid of him. She said I can’t he’s my son and I love him.¶

Prior to Thompson’s testimony, the district court ruled that Fell’s mother’s statement that “she was afraid of [Fell]” qualified as an excited utterance under Federal Rule of Evidence 803(2), a “firmly rooted” hearsay exception under Ohio Roberts, 448 U.S. 56, 63-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that the Confrontation Clause requires that a hearsay exception be firmly rooted and reliable). The court concluded that Thompson’s testimony was relevant to impeach aspects of Fell’s confession-particularly “to rebut the defense’s claim that Donald Fell gave a truthful confession”-was reliable for Confrontation Clause purposes and was not unduly prejudicial under 18 U.S.C. § 3593(c). Because Fell preserved his objection to this testimony at trial, we review this evidentiary ruling for abuse of discretion. Yousef, 327 F.3d at 156.¶

[39][40][41] No abuse of discretion occurred here. First, although Fell claims that his mother’s statement was too attenuated to qualify as an excited utterance, “an excited utterance need not be contemporaneous with the startling event to be admissible.” United States. Jones, 299 F.3d 103, 112 (2d Cir.2002). Rather, the key question governing admission is “whether the declarant was, within the meaning of Rule 803(2), ‘under the stress of excitement caused by the event or condition.’” Id. (quoting United States. Scarpa, 913 F.2d 993, 1017 (2d Cir.1990)). We find that the stressful events surrounding the statement support applying the excited utterance rule. See id. at 113. In any event, the FDPA permits the admission of evidence at the penalty phase *232 regardless of its admissibility under the Federal Rules of Evidence. See Fell I, 360 F.3d at 144. The district court correctly admitted this statement because it was relevant to rebut the mitigating factor that Fell had truthfully admitted responsibility for Teresca King’s murder. The statement was not unduly prejudicial and would not have misled the jury. See 18 U.S.C. § 3593(c). It was clear from a plethora of evidence that Fell and his mother had an estranged and pathological relationship and Thompson’s testimony did little other than confirm what the jury already knew.¶

[42] Fell also challenges the admission, through the testimony of Matt Cunningham-a teenage friend of Fell’s-of prior statements conveying Fell’s willingness to commit multiple murders and his desire to kill his mother. The evidence was offered in response to Fell’s showing concerning the abuse and neglect he suffered at the hands of his parents. Fell argued that because the prejudicial value of the evidence exceeded its probative value, its admission¶

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prejudice from a “bleed-over” effect potentially allowing the jury to find the unalleged aggravating factor-that the murders were premeditated-we are confident that the court’s instruction that the jury only consider the charged aggravating factors adequately dealt with this remark. FN25 Finally, it is unquestioned that the jury knew from other testimony that Fell was “extraordinarily angry” with his mother and that he watched Lee stab her multiple times without intervention.¶

FN25. Although Fell summarily alleges Fifth and Eighth Amendment violations related to the admission of Cunningham’s testimony, he offers no supporting arguments.¶

“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.” Norton . Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998); see United States . Crispo, 306 F.3d 71, 86 (2d Cir.2002) (applying this rule to a criminal appeal); Fed. R.App. P. 28(b).¶

VII. CUMULATIVE EFFECT¶

[44] Fell contends that even if none of the alleged errors warrants reversal, the cumulative effect of the government’s misconduct and the district court’s erroneous admission of evidence rendered the proceedings fundamentally unfair. It is well-settled in this circuit that the effect of multiple errors in a single trial may cast such doubt on the fairness of the proceedings that a new trial is warranted, even if no single error requires reversal. United States Rahman, 189 F.3d 88, 145 (2d Cir.1999); see also United States Salameh, 152 F.3d 88, 157 (2d Cir.1998).¶

[45] Nonetheless, not every error-whether alone or in combination with others-warrants a new trial. Cf. Delaware Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.”). As we have discussed, the trial conduct challenged by Fell either was not improper, was not prejudicial, or fails plain error review. The district court’s evidentiary rulings were thoughtful and meticulous; none approached an abuse of its broad discretion. Because considered singly, none of the errors claimed by Fell undermine our confidence in the fairness of the proceeding, we similarly conclude that, given the care and soundness with which this trial was conducted, “the cumulative error doctrine finds no foothold in this appeal,” Sampson, 486 F.3d at 51. We now turn to Fell’s remaining challenges.¶

VIII. OVERLAP OF AGGRAVATING FACTORS¶

[46] During the penalty phase, the district court instructed the jury to consider three statutory aggravating factors and four non-statutory aggravating factors, as well as nineteen mitigating factors. Fell argues that three of the non-statutory aggravating factors substantially overlapped because they rest on the same factual predicate-that Fell intentionally participated*234 in the death of King. He maintains that by finding this fact, the jury could more easily find aggravating factors and then more easily find that those factors outweighed the mitigating factors presented by Fell. Accordingly, Fell contends, the overlap of aggravating factors necessarily skewed the jury’s decision-making in favor of the death penalty. We disagree.¶

The factors in question are:¶

(1) Donald Fell participated in the abduction of Teresca King to facilitate his es-¶

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factors are used in the penalty phase, a reviewing court must re-weigh the factors and perform a harmless error analysis. Id. Applying this analysis, the McCullah court found that two sets of aggravating factors were duplicative because in each of them, “while the factors are not identical per se, [one] factor necessarily subsumes the [other] factor.” Id. at 1111.¶

Three years after the Tenth Circuit’s decision in McCullah, the issue of duplicative aggravating factors was considered by the Supreme Court in Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), a case that reviewed a Fifth Circuit decision applying McCullah. The Fifth Circuit had found that two of the aggravating factors charged by the government were unconstitutionally duplicative. The Supreme Court declined to decide whether the Tenth Circuit’s double-counting theory was either valid or appropriately applied by the Fifth Circuit. Id. at 398-99, 119 S.Ct. 2090. Instead, the Court stated that “[w]e have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid… What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor.” Id. at 398 (citing Stringer, 503 U.S. at 232, 112 S.Ct. 1130). Assuming for the sake of argument that the Tenth Circuit’s theory in McCullah applied in Jones, the Court found that the two non-statutory aggravating factors at issue-(I) the victim’s “young age, her slight stature, her background, and her unfamiliarity with San Angelo, Texas” and (ii) the victim’s “personal characteristics and the effect of the instant offense on [her] family”-were not duplicative. Jones, 527 U.S. at 378 n. 3, 119 S.Ct. 2090. Instead, “at best, certain evidence was relevant to two different aggravating factors.” Id. at 399-400, 119 S.Ct. 2090. The Court also noted that “any risk that the weighing process would be skewed was eliminated by the District Court’s instruction” to the jury that it should weigh the value of each factor rather than counting the number of factors on each side. Id. FN26¶

FN26. Currently, the circuit courts are split as to whether duplicative aggravating factors are unconstitutional and as to the meaning of the Supreme Court’s decision in Jones. The Fourth and Ninth Circuits have aligned with the Tenth Circuit and adopted their own variations of the rule in McCullah. See Allen v. Woodford, 395 F.3d 979, 1012-13 (9th Cir.2005) (finding that it was unconstitutional for the court and the prosecutor to present the defendant’s prior crimes as the heart of three different aggravating factors); United States v. Tipton, 90 F.3d 861, 900 (4th Cir.1996) (“We agree with the McCullah court that … a submission … that permits and results in cumulative findings of more than one of the [statutory aggravating factors] is constitutional error.”). In contrast, the Eighth Circuit has rejected the duplicative aggravating factor theory when applied to theFDPA, see Purkey, 428 F.3d at 762, and the Fifth Circuit has withdrawn its support of the double-counting theory in light of Jones, see United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir.2004) (“Although our case law once [supported the theory], the Supreme Court recently admonished that it does not support that theory of review.”)¶

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IX. SUFFICIENCY OF THE INDICTMENT¶

[49] Fell next complains that the government was required to charge the non-statutory aggravating factors in the indictment and that its failure to do so violates the Fifth Amendment’s Indictment Clause.¶

Four courts of appeals have considered*237 the issue of whether non-statutory aggravators must be submitted to a grand jury and included in an indictment, and all four have held that the FDPA does not expressly include this requirement. See United States. LeCroy, 441 F.3d 914, 922 (11th Cir.2006), cert. denied, --- U.S. ----, 127 S.Ct. 2096, 167 L.Ed.2d 816 (2007); Purkey, 428 F.3d at 749-50, cert. denied, 549 U.S. 975, 127 S.Ct. 433, 166 L.Ed.2d 307 (2006); United States. Bourgeois, 423 F.3d 501, 507-08 (5th Cir.2005), cert. denied, 547 U.S. 1132, 126 S.Ct. 2020, 164 L.Ed.2d 786 (2006); United States. Higgs, 353 F.3d 281, 298 (4th Cir.2003), cert. denied, 543 U.S. 999, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004).¶

FN27. Fell contends that he raised this issue pretrial and it was denied, citing the district court’s September 2002 order, 217 F.Supp.2d at 483-84. It appears, however, that the precise issue the district court addressed in that order was whether the FDPA precluded the government from including aggravating factors in a grand jury indictment and was thus facially unconstitutional. See id. The district court held that the statute suffered from no such constitutional infirmity. See id.; Fell, 360 F.3d at 138. All courts of appeals to have considered that argument have likewise rejected it. See Sampson, 486 F.3d at 21.¶

Fell, relying on Cunningham California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), Ring Arizona, and related Supreme Court precedents, urges us to reach a different conclusion. In Apprendi New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court emphasized that “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt.” Ring, 536 U.S. at 602, 122 S.Ct. 2428 (citing Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348). Two years later, in Ring, the Supreme Court held that an aggravating factor rendering a defendant death-eligible “operate[s] as the functional equivalent of an element of a greater offense” and, therefore, must be found by a jury. Id. at 609, 122 S.Ct. 2428 (internal quotation marks and citation omitted).¶

[50] Although Ring said nothing regarding the Indictment Clause of the Fifth Amendment, some courts of appeals have interpreted the decision as applying with equal force at the indictment stage as at the penalty stage of a trial. Accordingly, several circuits, including our own, require the government to charge statutory aggravating factors under the FDPA in the indictment. See, e.g., Quinones, 313 F.3d at 53 n. 1 (noting that, pursuant to Ring Arizona, “statutory aggravating factors … must now be alleged in the indictment and found by a jury in capital cases”); see also Bourgeois, 423 F.3d at 507; Brown, 441 F.3d at 1367 (collecting cases).¶

Here, the district court noted that the government “implicitly conceded” that the Fifth Amendment requires that statutory aggravating factors be charged in the indictment when, following Ring, it obtained¶

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gravating factors beyond a reasonable doubt. Regardless, the FDPA requires only that the jury sentencing Fell find mental culpability and at least one statutory aggravator, both charged in the superseding indictment, before finding him “eligible” for the death penalty. See 18 U.S.C. § 3593(e). Whether or not Fell should be sentenced to death was a calculation made by the jury based on a variety of statutory and non-statutory considerations. Accordingly, the factors that Fell’s jury assessed when determining the permissibility of the death penalty in his case did not change the maximum sentence authorized under the statute. We find that the government’s failure to include the non-statutory aggravating factors in the indictment did not violate the Fifth Amendment.¶

X. CONSTITUTIONALITY OF THE FDPA¶

[51] On appeal, Fell renews his claim that the FDPA violates the Fifth and Sixth Amendments by requiring in a single penalty phase, not governed by the Federal *239 Rules of Evidence, the presentation of prejudicial evidence relevant to determining whether a defendant should be sentenced to death at the same time that the jury makes findings regarding the “gateway” factors allowing his statutory eligibility for the death penalty. This argument is necessarily predicated on the facial unconstitutionality of the FDPA, a premise that we rejected in an earlier opinion. Fell, 360 F.3d at 144. In any event, the presentation of victim impact and character evidence to the jury during Fell’s sentencing hearing caused no prejudice.¶

After Fell I, the district court rejected numerous other constitutional challenges to the FDPA. See Fell, 372 F.Supp.2d at 753. Fell now renews his contention that the¶

FDPA’s bifurcated trial procedure violates the Fifth and Sixth Amendments. He claims that the procedure allows for the introduction of potentially prejudicial sentencing evidence relating to character, prior uncharged conduct, and victim impact at the same time that the government is attempting to prove death-eligibility factors—the elements of capital murder-beyond a reasonable doubt.¶

When a jury reaches the penalty phase, it often decides death eligibility after it hears “selection” evidence relating to whether the death penalty is appropriate. This approach may prejudice juror deliberations. Ring and its progeny suggest that the FDPA’s aggravating factors should be proven to a jury in the same manner as the other elements of the crime. Writing for the majority in Sattazahn v. Pennsylvania, Justice Scalia explained that before Ring, “capital-sentencing proceedings were understood to be just that: sentencing proceedings.” 537 U.S. 101, 110, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (internal citation omitted). In contrast, after Ring, factors that make a defendant eligible for a death sentence are treated as “elements” of a crime. Id. at 111, 123 S.Ct. 732.¶

Fell contends that because these eligibility factors are considered elements of the crime, they should be subject to the same constitutional protections at trial, including the Sixth Amendment guarantee that the evidence against a defendant be proven beyond a reasonable doubt and be probative of an element of the crime. See Ring, 536 U.S. at 609, 122 S.Ct. 2428. In contrast, the victim impact evidence and character evidence constitutionally required for sentencing purposes can sometimes be unduly prejudicial, inflammatory, or irrelevant to guilt. Accordingly, “[m]uch of the¶

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generally Blake Carbone, 489 F.3d 88, 100 (2d Cir.2007). We find no error in the district court’s implementation of the FDPA’s sentencing procedures.¶

[53] Regardless, Fell suffered no prejudice as a consequence of the manner in which the sentencing hearing was conducted. At sentencing, the government submitted three statutory aggravating factors, only one of which had to be found beyond a reasonable doubt to render Fell eligible for the death penalty: (1) “The death of Teresca King occurred during the commission of a kidnapping;” (2) “Donald Fell committed the offense in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to Teresca King;” and (3) “Donald Fell intentionally killed or attempted to kill more than one person in a single criminal episode.” Fell did not contest factors one or three during the sentencing phase; given his confessed participation in the kidnapping and murder of Ms. King, it would have been hard to do so. Presented with two uncontested factors, and needing to find only one to deem Fell “death eligible,” the jury, in our view, was unlikely to have been swayed by the additional “death-selection” evidence-mainly victim impact and character evidence-when deliberating on whether Fell was “death eligible.” Accordingly, we conclude that Fell suffered no unfair prejudice resulting from the district court’s implementation of the FDPA’s sentencing procedures.¶

CONCLUSION¶

Chief Judge Sessions presided over this complicated and difficult trial with care, fairness, and an exemplary concern for the protection of Fell’s rights. The judgment of the District Court is affirmed.¶

C. A.2 (Vt.),2008.¶

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West Headnotes¶

[1] Criminal Law 110 ⇌ 1152.2(2)¶

[2] Criminal Law 110 ⇌ 1153.1¶

[9] Jury 230 ⇐108¶

[10] Jury 230 ⇐ 108¶

[11] Criminal Law 110 ❑ 1166.17¶

[12] Jury 230 ⇐ 108¶

[19] Jury 230 ⇐ 108¶

[20] Sentencing and Punishment 350H¶

Sentencing and Punishment 350H 1667¶

Sentencing and Punishment 350H 1670¶

[21] Sentencing and Punishment 350H¶

[26] Criminal Law 110 ⇌ 1171.1(2.1)¶

[33] Constitutional Law 92 ❑ 1170¶

[35] Sentencing and Punishment 350H¶

[40] Sentencing and Punishment 350H¶

350H Sentencing and Punishment350HVIII The Death Penalty350HVIII(G) Proceedings350HVIII(G)2 Evidence350Hk1755 Admissibility350Hk1766 k. Hearsay.¶

[42] Sentencing and Punishment 350H¶

350H Sentencing and Punishment350HVIII The Death Penalty350HVIII(G) Proceedings350HVIII(G)2 Evidence350Hk1755 Admissibility350Hk1765 k. Declarations. Most Cited Cases¶

[48] Sentencing and Punishment 350H¶

350H Sentencing and Punishment¶

[49] Indictment and Information 210¶

[50] Indictment and Information 210¶

BACKGROUND¶

DISCUSSION¶

3. Prospective Juror 195¶

III. PROSECUTOR’S STATEMENTS REGARDING CONSIDERATION OF MITIGATING FACTORS¶

IV. MENTAL HEALTH EVIDENCE¶

FN19. The full stipulation provided:¶

1. Native American and Muslim Religious Interests¶

2. Satanic Beliefs and “666” Tattoo¶

VII. CUMULATIVE EFFECT¶

VIII. OVERLAP OF AGGRAVATING FACTORS¶

The factors in question are:¶

IX. SUFFICIENCY OF THE INDICTMENT¶

X. CONSTITUTIONALITY OF THE FDPA¶

CONCLUSION¶

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