United States v. Jones ( 1998 )


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  •              REVISED, February 10, 1998
                     UNITED STATES COURT OF APPEALS
    
                             FOR THE FIFTH CIRCUIT
    
    
    
                         No. 96-10113 and No. 96-10448
    
    
                           UNITED STATES OF AMERICA,
    
                                                       Plaintiff-Appellee,
    
    
                                    VERSUS
    
    
                               LOUIS JONES, JR.,
    
                                                       Defendant-Appellant.
    
    
    
    
              Appeals from the United States District Court
                    for the Northern District of Texas
                                January 5, 1998
    
    
    Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.
    
    Robert M. Parker, Circuit Judge:
    
    
         The defendant, Louis Jones, appeals from a conviction of
    
    kidnapping with death resulting, in violation of 18 U.S.C. § 1201.
    
    After a post-conviction sentencing hearing, the jury recommended
    
    the death penalty.    The defendant challenges the sentence of death
    
    imposed by the court pursuant to the Federal Death Penalty Act of
    
    1994 (“FDPA”), 18 U.S.C. §§ 3591-97.      After considering all the
    
    issues raised by the defendant on appeal, we affirm both the
    
    conviction and the sentence of death.
                                 I.   Background
    
         On February 18, 1995, Pvt. Tracie Joy McBride was abducted at
    
    gunpoint from Goodfellow Air Force Base.              During the abduction,
    
    Pvt. Michael Peacock was assaulted by McBride’s attacker and
    
    severely injured     while   attempting    to   aid    McBride.     The   base
    
    launched an intense investigation into the abduction of McBride.
    
         On March 1, 1995, Sgt. Sandra Lane informed investigators of
    
    the Office of the Air Force Special Investigations (“OSI”), who
    
    were investigating the abduction of Pvt. McBride, that her ex-
    
    husband, Louis Jones, had attacked her on February 16, 1995, two
    
    days before McBride’s disappearance. After convincing Lane to file
    
    a complaint, the OSI investigators summoned San Angelo Police who
    
    took a sworn statement from Lane.       An arrest warrant was issued for
    
    Jones based on the statement made by Lane. Jones was arrested later
    
    that evening.
    
         While in state custody for the abduction and sexual assault of
    
    Sandra Lane, investigators from the OSI questioned Jones as a
    
    possible suspect in the abduction of Pvt. McBride.                   The OSI
    
    investigators advised Jones of his Miranda rights, but Jones
    
    indicated that he did not want an attorney and that he was willing
    
    to   answer   questions.     In   response      to    questioning    by   OSI
    
    investigators, Jones gave a written statement admitting to the
    
    abduction and murder of McBride.        In his statement, Jones admitted
    
    to taking McBride back to his apartment, tying her up, and placing
    
    her in the closet.     Jones stated that he then drove McBride to a
    
    
                                        2
    remote location where he repeatedly struck her over the head with
    
    a tire iron until she was dead.               Although Jones could not give
    
    investigators        directions    to    where   the     body   was   located,    he
    
    indicated that he could show them.               Subsequently, Jones lead law
    
    enforcement officials to a bridge located twenty miles outside San
    
    Angelo under which the body of Tracie McBride was discovered.                     An
    
    autopsy revealed that McBride died due to blunt force trauma to the
    
    head.      The autopsy also revealed evidence of sexual assault.
    
          Louis Jones was indicted in an instrument that charged him
    
    with kidnapping McBride with her death resulting, in violation of
    
    18 U.S.C. § 1201(a)(2).           The government alleged that the offense
    
    occurred within the special maritime and territorial jurisdiction
    
    of   the    United    States.     Conviction      for    kidnapping    with    death
    
    resulting under the Federal Kidnapping Statute, 18 U.S.C. § 1201,
    
    could      result    in   a   sentence   of   life      imprisonment   or     death.
    
    Exercising the discretion granted by the Federal Death Penalty Act,
    
    the United States Attorney prosecuting the case decided to seek the
    
    death penalty. As required by 18 U.S.C. § 3593(a), the prosecution
    
    filed its Notice of Intent to Seek the Death Penalty.                    The jury
    
    trial commenced on October 16, 1995 and resulted in a guilty
    
    verdict on October 23, 1995.
    
          Following Jones’s conviction, a separate sentencing hearing
    
    was conducted to determine whether Jones would receive a sentence
    
    of death. See 18 U.S.C. § 3593.           To obtain a sentence of death, the
    
    government had the burden of proving the following: the death of
    
    McBride was an intentional killing; and the existence of one or
    
    
                                              3
    more aggravating factors make the defendant death-eligible. 18
    
    U.S.C. § 3591(a).      In the first stage of the sentencing hearing,
    
    the   jury   was     required    to   determine    whether     Louis   Jones
    
    intentionally caused the death of Tracie McBride. 18 U.S.C. §
    
    3591(a). Regarding the intent element, the jury unanimously found:
    
    (1) Jones intentionally killed McBride; and (2) Jones intentionally
    
    inflicted seriously bodily injury that resulted in the death of
    
    McBride.
    
          The second stage of the sentencing hearing required the jury
    
    to weigh any aggravating factors against any mitigating factors to
    
    determine whether a sentence of death was appropriate. 18 U.S.C. §
    
    3593(e). The government, in its notice of intent to seek the death
    
    penalty, set forth four statutory aggravating factors1 and three
    
    non-statutory      aggravating   factors.2   In   order   to   consider   an
    
    
    
          1
           The government alleged the following four statutory aggravating
    factors:
             (1) the defendant caused the death or injury resulting in
         the death of Tracie Joy McBride during the commission of the
         offense of kidnapping;
             (2) the defendant, in the commission of the offense,
         knowingly created a grave risk of death to one or more persons
         in addition to the victim of the offense, Tracie Joy McBride;
             (3) the defendant committed the offense in an especially
         heinous, cruel, and depraved manner in that it involved torture
         and serious physical abuse to the victim, Tracie Joy McBride;
         and
             (4) the defendant committed the offense after substantial
         planning and premeditation to cause the death of Tracie Joy
         McBride.
          2
            The three non-statutory aggravating factors are as follows:
             (1) the defendant’s future dangerousness to the lives and
          safety of other persons;
             (2) Tracie Joy McBride’s young age, her slight stature, her
          background, and her unfamiliarity with San Angelo, Texas; and
             (3) Tracie Joy McBride’s personal characteristics and the
          effect of the instant offense on Tracie Joy McBride’s family.
    
                                          4
    aggravating        factor,    the   jury   must   unanimously     find   that    the
    
    government established the existence of an aggravating factor
    
    beyond a reasonable doubt. 18 U.S.C. § 3593(c).                    The jury made
    
    unanimous findings regarding the following two statutory factors:
    
    Jones caused the death of the victim or the injury resulting in the
    
    death of the victim during the commission of the offense of
    
    kidnapping; and Jones committed the offense in an especially
    
    heinous, cruel, and depraved manner.              The jury also made unanimous
    
    findings regarding the following two non-statutory aggravating
    
    factors: McBride’s young age, her slight stature, her background,
    
    and       her   unfamiliarity   with   San     Angelo,   Texas;    and   McBride’s
    
    personal characteristics and the effect of the offense on her
    
    family.
    
              Once the jury found aggravating factors to exist, the jury
    
    next had to determine whether any mitigating factors existed.                     To
    
    consider a mitigating factor in jury deliberations, only one juror
    
    must find        that   the   defendant    established    the     existence     of a
    
    mitigating factor by a preponderance of the evidence.                      Of the
    
    eleven mitigating factors proposed by the defendant, ten mitigating
    
    factors were found to exist by at least one or more jurors.3                      In
    
    
          3
         The defendant proposed eleven mitigating factors, ten of which were
    found to exist by one or more jurors (the number of jurors finding each
    mitigating factor is enclosed in brackets):
            (1) the defendant Louis Jones did not have a significant prior
         criminal record [6];
            (2) the defendant’s capacity to appreciate the wrongfulness
         of the defendant’s conduct or to conform to the requirements of
         the law was significantly impaired, regardless of whether the
         capacity was so impaired as to constitute a defense to the
         charge [2];
            (3) the defendant committed the offense under severe mental
    
                                               5
    deliberations, the jury was asked to weigh the aggravating factors
    
    against any mitigating factors to determine the propriety of a
    
    death sentence. The jury returned a unanimous verdict recommending
    
    death on November 3, 1995.
    
    
    
           II.   Constitutionality of Federal Death Penalty Act
    
         The defendant challenges the constitutionality of the Federal
    
    Death Penalty Act, 18 U.S.C. §§ 3591-97, on the following four
    
    grounds: (1) the prosecutor’s ability to define non-statutory
    
    aggravating factors amounts to an unconstitutional delegation of
    
    legislative power; (2) the lack of proportionality review combined
    
    with prosecutor’s unrestrained authority to allege non-statutory
    
    aggravating factors renders the statute unconstitutional; (3) the
    
    relaxed evidentiary standard at the sentencing hearing combined
    
    with the unrestrained use of non-statutory aggravating factors
    
    renders the jury’s recommendation arbitrary; and (4) the death
    
    
         or emotional disturbance [1];
            (4) the defendant was subjected to physical, sexual, and
         emotional abuse as a child (and was deprived of sufficient
         parental protection that he needed)[4];
            (5) the defendant served his country well in Desert Storm,
         Grenada, and for 22 years in the United States Army [8];
            (6) the defendant is likely to be a well-behaved inmate [3];
            (7) the defendant is remorseful for the crime he committed
         [4];
            (8) the defendant’s daughter will be harmed by the emotional
         trauma of her father’s execution [9];
            (9) the defendant was under unusual and substantial internally
         generated duress and stress at the time of the offense [3];
            (10) the defendant suffered from numerous neurological or
         psychological disorders at the time of the offense [1]; and
            (11) other factors in the defendant’s background or character
         militate against the death penalty [0].
    
    Additionally, seven jurors added Jones’s ex-wife Sandra Lane as a
    mitigating factor.
    
                                        6
    penalty is unconstitutional under all circumstances.                             We review
    
    constitutional challenges to federal statutes de novo. United
    
    States v. Bailey, 
    115 F.3d 1222
    , 1225 (5th Cir. 1997).
    
    
    
                                                A.
    
          First, the defendant asserts that the prosecutor’s authority
    
    to   define    non-statutory       aggravating             factors    results      from    an
    
    unconstitutional         delegation         of        legislative         power.          The
    
    nondelegation doctrine arises from the constitutional principle of
    
    separation of powers, specifically Article 1, § 1, which provides
    
    that “all legislative Powers herein granted shall be vested in a
    
    Congress of the United States.”                 See    Touby v. United States, 
    500 U.S. 160
    , 165 (1991); United States v. Mistretta, 
    488 U.S. 361
    , 371
    
    (1989).       Under   the   nondelegation             doctrine,      Congress      may    not
    
    constitutionally delegate its legislative power to another branch
    
    of government. See Mistretta, 488 U.S. at 372. Congress, however,
    
    may seek assistance, within limits, from coordinate branches of
    
    government.        See   id.       So   long          as    Congress      formulates      “an
    
    intelligible principle to which the person or body authorized to
    
    exercise the delegated authority is directed to conform, such
    
    legislative action is not a forbidden delegation of legislative
    
    power.” Id.
    
          Jones    asserts      that    Congress               failed    to    formulate       an
    
    “intelligible      principle”      in   §    3592(c)          when   it    delegated      the
    
    authority     to   define      additional         aggravating          factors     to     the
    
    
    
    
                                                7
    Department of Justice.4           On the contrary, the delegated authority
    
    is sufficiently circumscribed by “intelligible principles” to avoid
    
    violating the nondelegation doctrine. See United States v. Tipton,
    
    
    90 F.3d 861
    ,    895   (4th    Cir.    1996).    The   authority    to     define
    
    nonstatutory        aggravating     factors     falls      squarely    within    the
    
    Executive’s broad prosecutorial discretion, much like the power to
    
    decide whether to prosecute an individual for a particular crime.
    
    See United States v. Armstrong, __ U.S. __, 
    116 S. Ct. 1480
    , 1486
    
    (1996)(noting the prosecutor’s broad discretion in deciding whether
    
    to prosecute); United States v. Johnson, 
    91 F.3d 695
    , 698 (5th Cir.
    
    1996)(stating that “[a] prosecutor has broad discretion during
    
    pretrial      proceedings to determine the extent of the societal
    
    interest in         prosecution.")        Obviously, Congress could not list
    
    every possible aggravating factor.              An exclusive list of factors
    
    would bind the hands of the prosecutor in deciding whether to
    
    pursue the death penalty.
    
             Nevertheless, the prosecution does not have carte blanche in
    
    devising     non-statutory        aggravating       factors.     At    least    four
    
    limitations guide the prosecution in exercising its delegated
    
    authority.      First, the statute limits the scope of aggravating
    
    factors to those for which prior notice has been given by the
    
    
    
    
         4
          In reviewing similar challenges to the death penalty provisions of
    the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e), two other circuits
    rejected this argument. United States v. McCullah, 
    76 F.3d 1087
     (10th Cir.
    1996); United States v. Tipton, 
    90 F.3d 861
    , 895 (4th Cir. 1996).
    
                                               8
    prosecution.5       See 18 U.S.C. § 3593(a).    Second, the death penalty
    
    jurisprudence devised by the Supreme Court guides the prosecution
    
    in formulating nonstatutory aggravating factors.            For example, due
    
    process      requires   that    information    submitted    as     aggravating
    
    genuinely narrow the class of persons eligible for the death
    
    penalty.     See Zant v. Stephens, 
    462 U.S. 862
    , 877 (1983).           Third,
    
    the district court functions as a gatekeeper to limit the admission
    
    of useless and impermissibly prejudicial information.                  See 18
    
    U.S.C. § 3593(c).       And fourth, the requirement that the jury find
    
    at least one statutory aggravating factor beyond a reasonable doubt
    
    before it may consider the non-statutory factors further limits the
    
    delegated authority.       See 18 U.S.C. § 3593(d).      The requirement of
    
    at   least    one   statutory   aggravating    factor    secures   sufficient
    
    Congressional guidance in classifying death-eligible offenders.
    
    Consequently, these limitations provide the prosecution with an
    
    “intelligible principle” so that an unconstitutional delegation
    
    does not occur.
    
    
    
                                          B.
    
          Second, the defendant argues the lack of proportionality
    
    review combined with the prosecutor’s unrestrained authority to
    
    allege    non-statutory     aggravating    factors   renders     the   statute
    
    unconstitutional.         Proportionality       review      examines      the
    
    appropriateness of a sentence for a particular crime by comparing
    
          5
           Section 3592(c) allows the jury to consider “whether any other
    aggravating factor for which notice has been given exists.” 18 U.S.C. §
    3592(c).
    
                                          9
    the gravity of the offense and the severity of the penalty with
    
    sentencing practices in other prosecutions for similar offenses.
    
    See Pulley v. Harris, 
    465 U.S. 37
    , 43 (1984).                Although the Court
    
    has upheld capital sentencing schemes requiring proportionality
    
    review,      the     Court    has     never      required     such     review     as
    
    constitutionally mandated. See Gregg v. Georgia, 
    428 U.S. 153
    , 204-
    
    05     (1976)      (plurality       opinion)     (noting     the     benefits     of
    
    proportionality review as a means of preventing arbitrary death
    
    sentences, but not mandating such review).                 See also Pulley, 465
    
    U.S. at 44-45 (“that some [capital sentencing] schemes providing
    
    proportionality review are constitutional does not mean that such
    
    review is indispensable”). Thus, the Constitution does not require
    
    comparative proportionality review in every capital case, but only
    
    that the death penalty not be imposed arbitrarily or capriciously.
    
    See Pulley, 465 at 49-50.
    
           The FDPA is not so lacking in other checks on arbitrariness
    
    that    it   fails     to    pass    constitutional     muster       for   lack   of
    
    proportionality review.            See id. at 880.    The FDPA bifurcates the
    
    penalty phase from guilt determination.              During the penalty phase,
    
    the jury must first determine whether the defendant intentionally
    
    killed the victim, or intentionally committed or participated in an
    
    act that resulted in the death of the victim.               18 U.S.C. § 3591(a).
    
    Then the jury must make a finding, beyond a reasonable doubt, of
    
    the existence of any aggravating factor or factors enumerated in §
    
    3592(c).     After finding the existence of at least one statutory
    
    aggravating        factor,   the    jury   may   consider    the     existence    of
    
    
                                               10
    nonstatutory aggravating factors for which notice has been given by
    
    the government.      See 18 U.S.C. § 3593(d).          Individual jurors must
    
    then consider evidence of any mitigating factor that he or she has
    
    found to exist by a preponderance of the evidence.                      Prior to
    
    imposing a     sentence    of    death,   the   jurors    must    conclude   that
    
    evidence of the aggravating factors unanimously found to exist
    
    beyond    a   reasonable   doubt,     both    statutory    and    nonstatutory,
    
    outweighs the mitigating factors any individual juror has found to
    
    exist by a preponderance of the evidence.                  Additionally, the
    
    statute provides for appellate review to determine whether the
    
    death    sentence    was   imposed    under     the   influence    of    passion,
    
    prejudice or any other arbitrary factor.              18 U.S.C. § 3595.
    
           Jones argues that the Constitution requires proportionality
    
    review when the capital sentencing procedure allows the jury to
    
    consider nonstatutory aggravating factors because of the danger
    
    that the death penalty will be imposed arbitrarily, capriciously,
    
    or freakishly.      As long as the statute prevents an arbitrary death
    
    sentence,     the   inclusion    of   relevant    nonstatutory      aggravating
    
    factors at the sentencing stage does not render the death penalty
    
    scheme unconstitutional.         See Barclay v. Florida, 463 U.S. 939,957
    
    (1983)(citing Zant v. Stephens, 
    462 U.S. 862
    , 878-89 (1983)).                 The
    
    FDPA    provides    sufficient    safeguards     to   prevent     the   arbitrary
    
    imposition of the death penalty.            First, the legislature designed
    
    a narrow statute by applying the death penalty to a limited number
    
    
    
    
                                           11
    of criminal offenses.6     See 18 U.S.C. § 3591.      Second, the statute
    
    further narrows the class of persons eligible for the death penalty
    
    by requiring a finding of at least one statutory aggravating
    
    factor.    See 18 U.S.C. § 3593(d).     And third, the statute provides
    
    for appellate review to determine whether the evidence supports the
    
    special finding of an aggravating factor and to ensure that the
    
    death sentence was not imposed under the influence of passion,
    
    prejudice or any other arbitrary factor.         See 18 U.S.C. § 3595.
    
    Consequently, we hold 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 statute provides for other safeguards against an arbitrary
    
    imposition of the death penalty.
    
    
    
                                       C.
    
         Third, Jones argues that the relaxed evidentiary standard at
    
    the sentencing hearing combined with the unrestrained use of non-
    
    statutory aggravating factors renders the jury’s recommendation
    
    arbitrary and unreliable.     The Federal Death Penalty Act provides
    
    for a relaxed evidentiary standard during the sentencing hearing in
    
    order to give the jury an opportunity to hear all relevant and
    
    reliable    information,   unrestrained    by   the   Federal   Rules   of
    
    Evidence.    The FDPA provides:
    
         6
           A defendant may be sentenced to death if convicted of the
    following offenses: espionage, 18 U.S.C. § 794; treason, 18 U.S.C.
    § 2381; or intentionally murdering     or causing the death of a
    person during the commission of certain crimes, see, e.g.,
    kidnapping with death resulting, 18 U.S.C. § 1201.
    
                                       12
          The government may present any information relevant to an
          aggravating factor for which notice has been provided
          under subsection (a).        Information is admissible
          regardless of its admissibility under the rules governing
          admission of evidence at criminal trials except that
          information may be excluded if its probative value is
          outweighed by the danger of creating unfair prejudice,
          confusing the issues, or misleading the jury.         The
          government and the defendant shall be permitted to rebut
          any information received at the hearing, and shall be
          given fair opportunity to present argument as to the
          adequacy of the information to establish the existence of
          any aggravating or mitigating factor, and as to the
          appropriateness in the case of imposing a sentence of
          death.
    
    18 U.S.C. § 3593(c).         Therefore, the defendant and the government
    
    may   introduce   any    relevant     information       during   the   sentencing
    
    hearing limited by the caveat that such information be relevant,
    
    reliable, and its probative value must outweigh the danger of
    
    unfair prejudice.7
    
          Although    the        Eighth   Amendment      requires     a    heightened
    
    reliability standard in capital sentencing proceedings, the jury
    
    must also receive sufficient information regarding the defendant
    
    and   the   offense     in    order   to    make   an   individual     sentencing
    
    determination.     See Lowenfield v. Phelps, 
    484 U.S. 231
    , 238-239
    
    (1988)(the    “qualitative        difference       between   death     and   other
    
    penalties calls for a greater degree of reliability when the death
    
    sentence is imposed”). The Court has recognized that the defendant
    
    must be given the opportunity to introduce information regarding
    
    
          7
           The relevancy standard enunciated in § 3593(c) actually excludes
    a greater amount of prejudicial information than the Federal Rules of
    Evidence because it permits the judge to exclude information where the
    “probative value is outweighed by the danger of creating unfair prejudice”
    rather than “substantially outweighed.” See Fed. R. Evid. 403. See also
    Anti-Drug Abuse Act, 21 U.S.C. § 848(j) (codifying Fed. R. Evid. 403
    standard of “substantially outweighs”).
    
                                               13
    mitigating factors, without traditional evidentiary restraints, in
    
    order to provide the jury with the fullest possible information
    
    about the defendant.     See Gregg v. Georgia, 
    428 U.S. 153
    , 204
    
    (1976) (“So long as the evidence introduced and the arguments made
    
    at the presentence hearing do not prejudice a defendant, it is
    
    preferable not to impose restrictions.     We think it desirable for
    
    the jury to have as much information before it as possible when it
    
    makes the sentencing decision.”).       See also Jurek v. Texas, 
    428 U.S. 262
    , 276 (1976) (stating that it is “essential . . . that the
    
    jury have before it all possible relevant information about the
    
    individual defendant whose fate it must determine”).      Although the
    
    sentencing hearing will not be governed by traditional evidentiary
    
    restraints, the district court will prevent the evidentiary free-
    
    for-all prophesied by Jones by excluding unfairly prejudicial
    
    information   under    the   standard   enunciated   in   §   3593(c).
    
    Consequently, the relaxed evidentiary standard does not impair the
    
    reliability or relevance of information at capital sentencing
    
    hearings, but helps to accomplish the individualized sentencing
    
    required by the constitution.     See United States v. Nguyen, 
    928 F. Supp. 1525
    , 1546-47 (D.Kan. 1996).
    
    
    
                                      D.
    
         Finally, the defendant argues that the death penalty is
    
    unconstitutional under all circumstances.     We are bound by Supreme
    
    Court precedent which forecloses any argument that the death
    
    penalty violates the Constitution under all circumstance.          See
    
    
                                      14
    McCleskey v. Kemp, 
    481 U.S. 279
    , 300-03 (1987); Gregg v. Georgia,
    
    
    428 U.S. 153
     (1976).
    
    
    
                               III.    Jury Instructions
    
                                              A.
    
            The defendant claims that the district court erred by failing
    
    to give the defendant’s requested instructions.                      We review the
    
    district court’s refusal to give a requested instruction for abuse
    
    of discretion. See United States v. Townsend, 
    31 F.3d 262
    , 270 (5th
    
    Cir.    1994).      A    refusal   to    give    a   requested      instruction      is
    
    reversible       error   only     if    the    proposed       instruction    was   (1)
    
    substantively correct, (2) not substantively covered in the jury
    
    charge, and (3) concerned an important issue in the trial, such
    
    that failure to give the requested instruction seriously impaired
    
    the presentation of a defense. Id.
    
            The actual jury instructions given by the district court
    
    repeated the sentencing options available under the FDPA.                          The
    
    instructions traced 18 U.S.C. § 3593(e) by informing the jury that
    
    it could recommend death, life without the possibility of release,
    
    or some lesser sentence. The defendant, however, contends that the
    
    jury    should    have   been   instructed       that     a   failure   to   reach    a
    
    unanimous verdict recommending the death penalty would result in
    
    the court automatically imposing a sentence of life without the
    
    possibility of release.8           The defendant’s proposed instructions
    
        8
          The defense proposed two jury instructions regarding the unanimity
    requirement. Requested instruction number five, entitled “Unanimity
    Required Only for Death Sentence,” provided in relevant part as follows:
    
                                              15
    were not substantively correct because the proposed instructions
    
    informed the jury that the failure to return a unanimous verdict
    
    would   result   in   an    automatic     sentence   of   life   without     the
    
    possibility of release.          Such is not the case under § 3593, which
    
    requires   unanimity       for   every   sentence    rendered    by   the   jury
    
    regardless of whether the verdict is death, life without the
    
    possibility of release, or, if possible under the substantive
    
    criminal statute, any other lesser sentence.               Life without the
    
    possibility of release was not the default penalty in the event of
    
    non-unanimity.    On the contrary, the failure to reach a unanimous
    
    decision regarding sentencing would result in a hung jury with no
    
    verdict rendered.     As such, a second sentencing hearing would have
    
    to be held in front of a second jury impaneled for that purpose.
    
    See 18 U.S.C. § 3593(b)(2)(C).           Therefore, the district court did
    
    not err by refusing to give the defendant’s requested instructions
    
    because such instructions were not substantively correct.
    
    
    
    
         In the event, after due deliberation and reflection, the jury
         is unable to agree on a unanimous decision as to the sentence
         to be imposed, you should so advise me and I will impose a
         sentence of life imprisonment without possibility of release.
    
    The defense’s requested jury instruction number four provided in relevant
    part as follows:
    
         If, after fair and impartial consideration of all the evidence
         in this case, any one of you is not persuaded that justice
         demands Mr. Jones’s execution, then the jury must return a
         decision against capital punishment and must fix Mr. Jones’s
         punishment at life in prison without the possibility of release.
    
                                             16
                                           B.
    
          Additionally, the defendant contends that the district court
    
    committed reversible error with the instructions actually given for
    
    the   following     two    reasons:    First,      Jones     argues    that   the
    
    instructions actually given by the district court caused the jurors
    
    to recommend the death penalty under the false impression that the
    
    failure to reach a unanimous verdict would automatically result in
    
    the imposition of some lesser sentence.            Second, Jones argues that
    
    the instructions incorrectly informed the jury they had the option
    
    of recommending some lesser sentence, in addition to the death
    
    penalty or life imprisonment options.             Thus, the defendant claims
    
    that the instruction resulted in an arbitrary and capricious
    
    imposition    of   the    death   penalty    in   violation    of     the   Eighth
    
    Amendment and Due Process.
    
          We review all alleged errors in jury instructions for abuse of
    
    discretion. United States v. Townsend, 
    31 F.3d 262
    , 270 (5th Cir.
    
    1994).    A   conviction     will     not   be    reversed   unless     the   jury
    
    instructions, when viewed in their entirety, failed to correctly
    
    state the law.     See United States v. Flores, 
    63 F.3d 1342
    , 1374(5th
    
    Cir. 1995).    Thus, even if a portion of the jury instructions are
    
    not technically perfect, the district court’s instructions will be
    
    affirmed on appeal if the charge in its entirety presents the jury
    
    with a reasonably accurate picture of the law. See id. (citing
    
    United States v. Branch, 
    46 F.3d 440
    , 442 n. 2 (5th Cir. 1995)).
    
    The district court will be reversed, however, if the interpretation
    
    urged by the appellant is one that a “reasonable jury could have
    
    
                                           17
    drawn from the instructions given by the trial judge and from the
    
    verdict form[s] employed in this case.” Id. at 175 (citing Mills v.
    
    Maryland, 
    486 U.S. 367
    , 375-76 (1988)).
    
           If the defendant did not object below, we review for plain
    
    error.    See Flores, 63 F.3d at 1374 (citing United States v.
    
    Willis, 
    38 F.3d 170
    , 179 (5th Cir. 1994)).      Under the plain error
    
    standard, there must be an error that is plain and that affects
    
    substantial rights.    See Fed. R. Crim. P. 52(b).    See also United
    
    States v. Olano, 
    507 U.S. 725
    , 731 (1993)(explaining plain error
    
    standard). Thus, an appellate court may correct a plain error only
    
    if it meets the following criteria: (1) there must be an error,
    
    which is defined as a deviation from a legal rule in the absence of
    
    a valid waiver; (2) the error must be clear or obvious error under
    
    current law; and (3) the error must have been prejudicial or
    
    affected the outcome of the district court proceedings. See Olano,
    
    507 U.S. at 732-35; United States v. Dupre, 
    117 F.3d 810
    , 816 (5th
    
    Cir. 1997); United States v. Calverley, 
    37 F.3d 160
    , 162-64 (5th
    
    Cir.   1994)(en   banc).   Additionally,   an   appellate   court   has
    
    discretion in deciding whether to correct a plain error.            See
    
    Olano, 507 U.S. at 735-36. Such discretion should not be exercised
    
    unless the error “seriously affect[s] the fairness, integrity or
    
    public reputation of judicial proceedings.” Id. (citing United
    
    States v. Young, 
    470 U.S. 1
    , 15 (1985).
    
           The district court instructed the jury as follows:
    
                After you have completed your findings as to the
           existence or absence of any aggravating or mitigating
           factors, you will then engage in a weighing process. In
           determining whether a sentence of death is appropriate,
    
                                     18
    you must weigh any aggravating factors that you
    unanimously   find   to  exist--whether   statutory   or
    nonstatutory--against any mitigating factors that any of
    you find to exist. You shall consider whether all the
    aggravating factors found to exist sufficiently outweigh
    all the mitigating factor or factors found to exist to
    justify a sentence of death, or, in the absence of a
    mitigating factor, whether the aggravating factor or
    factors alone are sufficient to justify a sentence of
    death. Based upon this consideration, you the jury, by
    unanimous vote, shall recommend whether the defendant
    should be sentenced to death, sentenced to life
    imprisonment without the possibility of release, or
    sentenced to some other lesser sentence.
    
         If you unanimously conclude that the aggravating
    factors found to exist sufficiently outweigh any
    mitigating factor or factors found to exist, or in the
    absence of any mitigating factors, the aggravating
    factors are themselves sufficient to justify a sentence
    of death, you may recommend a sentence of death. Keep in
    mind, however, that regardless of your findings with
    respect to aggravating and mitigating factors, you are
    never required to recommend a death sentence.
    
          If you recommend the imposition of a death sentence,
    the court is required to impose that sentence. If you
    recommend a sentence of life without the possibility of
    release, the court is required to impose that sentence.
    If you recommend that some other lesser sentence be
    imposed, the court is required to impose a sentence that
    is   authorized    by  the   law.     In   deciding   what
    recommendation to make, you are not to be concerned with
    the question of what sentence the defendant might receive
    in the event you determine not to recommend a death
    sentence or a sentence of life without the possibility of
    release. That is a matter for the court to decide in the
    event you conclude that a sentence of death or life
    without the possibility of release should not be
    recommended.
    
         . . . .
    
         In order to bring back a verdict recommending the
    punishment of death or life without the possibility of
    release, all twelve of you must unanimously vote in favor
    of such specific penalty.
    
    
    
    
                               19
                                    i.
    
         We must first decide whether the instructions given by the
    
    district court could have led a reasonable jury to believe that the
    
    court would automatically impose some lesser sentence if the jury
    
    failed to reach a unanimous verdict, as alleged by the defendant.
    
    As we have previously stated, § 3593(e) requires the jury to return
    
    a unanimous verdict regardless of whether the jury recommends
    
    death, life without the possibility of release, or some other
    
    lesser sentence. In arguing that the jury instructions and verdict
    
    forms caused the jury confusion, the defendant points to the
    
    following: (1) the district court did not repeat the unanimity
    
    requirement each time the court mentioned the lesser sentence
    
    option in the instruction; (2) decision forms B and C, which
    
    recommended the death sentence and life imprisonment without the
    
    possibility of release, required the signature of all twelve
    
    jurors, while decision form D which recommended a lesser sentence
    
    only required the signature of the foreman; (3) the court erred by
    
    declining to instruct the jury on the effect of the failure to
    
    arrive at a unanimous decision; and (4) after the sentencing
    
    hearing, two jurors gave statements to defense attorneys attesting
    
    to the confusion caused by the jury instructions.
    
         Regarding the district court’s failure to repeat the unanimity
    
    requirement each time the court mentioned the lesser sentence
    
    option, the instructions could not have led a reasonable jury to
    
    conclude that non-unanimity would result in the imposition of a
    
    lesser sentence.    See Flores, 63 F.3d at 1375.       Reading the
    
    
                                    20
    instructions in their entirety, the court clearly stated that the
    
    jury must reach a unanimous verdict.         At no time were the jurors
    
    ever informed that the failure to reach a unanimous verdict would
    
    result in the imposition of a term less than life imprisonment. As
    
    such, we hold that the district court did not abuse its discretion
    
    by failing to repeat the unanimity requirement.
    
         Additionally, the defendant argues that the disparity of the
    
    verdict forms caused the jury to assume that nonunanimity would
    
    result in a lesser sentence because form D only required the
    
    signature of the jury foreperson, when forms B and C required all
    
    twelve juror signatures.        The defendant did not object to the
    
    format of the verdict forms; therefore, we review for plain error.
    
    See Flores, 63 F.3d at 1374.       Although the verdict forms standing
    
    alone could have persuaded a jury to conclude that unanimity was
    
    not required for the lesser sentence option, any confusion created
    
    by the verdict forms was clarified when considered in light of the
    
    entire jury instruction.        Consequently, we hold that no error
    
    occurred.
    
         Next, Jones argues that the failure to instruct the jury of
    
    the consequences of not reaching a unanimous verdict resulted in a
    
    violation   of   the   Eight   Amendment   proscription   against   cruel,
    
    unusual, and excessive punishment.           Jones requested, but was
    
    denied, an instruction on the failure to arrive at a unanimous
    
    decision.   Jones points to State v. Williams, 
    392 So. 2d 619
     (La.
    
    1980), where the Louisiana Supreme Court held that juries must be
    
    informed of the consequences of failing to achieve a unanimous
    
    
                                        21
    verdict.    The defendant does not persuade us by invoking Williams
    
    because the Louisiana death penalty act, under which Williams was
    
    sentenced, expressly provided that life imprisonment resulted when
    
    the jury could not unanimously agree on the death penalty.            Unlike
    
    the Louisiana statute, the Federal Death Penalty Act requires the
    
    jury to achieve unanimity or no verdict results.          See 18 U.S.C. §
    
    3593(e).    Although the use of instructions to inform the jury of
    
    the consequences of a hung jury have been affirmed, federal courts
    
    have never been affirmatively required to give such instructions.
    
    See Allen v. United States, 
    164 U.S. 492
    , 501-02 (1896) (upholding
    
    the use of supplemental instructions to inform the jury of the
    
    effect of a hung jury); United States v. Sutherland, 
    463 F.2d 641
    ,
    
    648 (5th Cir. 1972)(allowing use of Allen charge).          Consequently,
    
    we hold that no constitutional violation occurs when a district
    
    court refuses to inform the jury of the consequences of failing to
    
    reach a unanimous verdict.
    
            Finally, the defendant attempts to prove the instructions
    
    caused    jury   confusion   through   the   use   of   juror    affidavits.
    
    Following     the   sentencing    hearing,     two      jurors     initiated
    
    communications with defense attorneys in which the jurors referred
    
    to alleged confusion caused by the instructions regarding the
    
    unanimity requirement.9      Jones cannot utilize juror affidavits to
    
    
        9
          Juror Christie Beauregard called the office of the Federal Public
    Defender and spoke with attorney Carlton McLarty and investigator Daniel
    Salazar. Mr. Salazar executed an affidavit detailing the conversation he
    had with Ms. Beauregard in which she stated that she was pressured into
    changing her vote by other jurors who believed that the court would impose
    a lesser sentence if the jury did not reach a unanimous verdict.
         Juror Cassandra Hastings contacted defense attorney Daniel Hurley.
    
                                       22
    undermine the jury verdict. See Fed. R. Evid. 606(b); United States
    
    v. Ruggiero, 
    56 F.3d 647
    , 652 (5th Cir. 1995).           Federal Rule of
    
    Evidence 606(b) bars juror testimony regarding at least four
    
    topics: (1) the method or arguments of the jury’s deliberations,
    
    (2) the effect of any particular thing upon an outcome in the
    
    deliberations, (3) the mindset or emotions of any juror during
    
    deliberations, and (4) the testifying juror’s own mental process
    
    during the deliberations. See Ruggiero, 56 F.3d at 652.          Under the
    
    rule, a juror may only testify to extraneous forces which influence
    
    jury deliberations. See Tanner v. United States, 
    483 U.S. 107
    , 121
    
    (1987)(juror use of alcohol and drugs not extraneous influence on
    
    jury deliberations).     Allegations of jury confusion caused by jury
    
    instructions would not be an outside influence about which a juror
    
    could competently testify.     See Peveto v. Sears Roebuck & Co., 
    807 F.2d 486
    , 489 (5th Cir. 1987).       An “outside influence” refers to a
    
    factor originating outside of normal courtroom proceedings which
    
    influences jury deliberations, such as a statement made by a
    
    bailiff to the jury or a threat against a juror.        Id. (citing Fed.
    
    R. Evid. 606(b) Advisory Committee Note and Judiciary Committee
    
    Note).    Rule 606(b) has consistently been used to bar testimony
    
    when the jury misunderstood instructions. See, e.g., Robles v.
    
    Exxon Corp., 
    862 F.2d 1201
    , 1204          (5th Cir. 1989) (holding that
    
    juror    testimony   regarding      misunderstanding    of   instructions
    
    prohibited   by   rule   606(b)).     The   defendant   argues   that   the
    
    
    Ms. Hastings executed an affidavit stating that she changed her vote to
    death under the mistaken belief that if the jury could not reach a
    unanimous decision, then the court would impose a lesser sentence.
    
                                         23
    inapplicability of the Federal Rules of Evidence during sentencing
    
    hearings precludes the use of Rule 606(b) to bar juror affidavits
    
    impeaching the sentence.   See 18 U.S.C. § 3593(c).    The reasons for
    
    not allowing jurors to undermine verdicts in jury trials, however,
    
    apply with equal force to sentencing hearings.         See Silagy v.
    
    Peters, 
    905 F.2d 986
    , 1009 (7th Cir. 1990) (holding that a juror's
    
    statements could not be used in a habeas corpus proceeding to
    
    impeach the jury's sentencing determination).         Noting that the
    
    Eighth Amendment requires a “greater degree of reliability when the
    
    death sentence is imposed,” we are convinced that Rule 606(b) does
    
    not harm but helps guarantee the reliability of jury determinations
    
    in death penalty cases.     See Lockett v. Ohio, 
    438 U.S. 586
    , 604
    
    (1978) (stating that the qualitative difference with the death
    
    penalty requires a greater degree of reliability).
    
         Jury deliberations entail delicate negotiations where majority
    
    jurors try to sway dissenting jurors in order to reach certain
    
    verdicts or sentences.     An individual juror no longer exposed to
    
    the dynamic offered by jury deliberations often may question his
    
    vote once the jury has been dismissed.     Such self-doubt would be
    
    expected once extrinsic influences bear down on the former jurors,
    
    especially in decisions of life and death. When polled, each juror
    
    affirmatively indicated that he had voted for the death penalty.
    
    We will not allow a juror to change his mind after the jury has
    
    rendered a verdict.   In this situation, the outcome could just as
    
    easily have turned out the other way with the jurors not supporting
    
    the death sentence convincing the death-prone jurors to impose life
    
    
                                     24
    without the possibility of release.          If the jury truly feared that
    
    the district court would impose some lesser sentence in the absence
    
    of a unanimous recommendation, then the jury had the option of
    
    imposing life without the possibility of release. Furthermore, the
    
    jury never sought a clarifying instruction to remedy the alleged
    
    confusion.      Consequently, the affidavits do not convince us that
    
    the   instructions    given   by    the    district    court   could   lead   a
    
    reasonable jury to believe that the failure to reach a unanimous
    
    decision would result in the imposition of a lesser sentence.
    
    
    
                                         ii.
    
          Additionally, the defendant contends that the district court
    
    erred because the instructions misinformed the jury that three
    
    sentencing options were available, when in fact only two sentencing
    
    options existed under the substantive criminal statute--death and
    
    life imprisonment.     See 18 U.S.C. § 1201.           When a statute allows
    
    the jury to exercise sentencing powers, due process requires that
    
    a jury must be informed of all available sentencing options. See
    
    Hicks v. Oklahoma, 
    447 U.S. 343
    , 346 (1980).            At Jones’ sentencing
    
    hearing   the    district   court    informed    the    jury   of   the   three
    
    sentencing options available under § 3593 of the federal death
    
    penalty provisions rather than limiting the instructions to the two
    
    sentencing options available under § 1201, the substantive criminal
    
    statute for which the defendant was convicted.             The defendant did
    
    not object to the inclusion of the “lesser sentence” option below;
    
    
    
    
                                          25
    therefore, we review for plain error.10        See Flores, 63 F.3d at
    
    1374.
    
          We must first determine whether the district court committed
    
    error by instructing the jury of the sentencing options available
    
    under § 3593, rather than limiting the instructions to the two
    
    sentencing options which existed under the substantive criminal
    
    statute.   See Olano, 507 U.S. at 732-33.       If any error occurred
    
    regarding the available sentencing options, the error was caused by
    
    the disparate sentencing options provided for in the Federal
    
    Kidnapping statute, 18 U.S.C. § 1201, and the Federal Death Penalty
    
    Act, 18 U.S.C. § 3593(e)(3).     Under § 1201, a defendant convicted
    
    of kidnapping with the death of the victim resulting shall be
    
    punished by death or life imprisonment.         See 18 U.S.C. § 1201.
    
    Under the federal death penalty provisions, however, the jury may
    
    recommend that the court sentence the defendant to death, to life
    
    imprisonment without the possibility of release, or some other
    
    lesser sentence, upon the unanimous recommendation of the jury. See
    
    18 U.S.C. § 3593(e).
    
          The defendant argues that the language of the kidnapping
    
    
    
        10
          At the charge conference, and in written objections, the defendant
    objected to the court’s refusal to include the language “rather than a
    sentence of life imprisonment without the possibility of release or a
    lesser sentence” whenever the instructions referred to the jury’s
    responsibility to determine whether the defendant should be sentenced to
    death. If the district court had actually used the defendant’s requested
    instruction, then we would review under the invited error doctrine. See
    United States v. Baytank (Houston), Inc., 
    934 F.2d 599
    , 606 (5th Cir.
    1991). The district court, however, did not use the defendant’s requested
    language. Furthermore, the defendant did not object to other references
    in the instructions to the “lesser sentence” option. Consequently, we
    review for plain error.
    
                                       26
    statute clearly limits the possible sentences to death or life
    
    imprisonment.    Moreover, the defendant argues that the term “life
    
    imprisonment” in the kidnapping statute actually means life without
    
    the possibility of release because parole no longer exists in the
    
    federal system.      Thus, the jury actually had only two sentencing
    
    options--death    or    life     without     the     possibility   of   release.
    
    Conversely, the government argues that the jury in fact had three
    
    options because Congress distinguishes between “life” and “life
    
    without the possibility of release.”           The government raises § 3594
    
    as an example of the qualitative difference between life and life
    
    without the possibility of release.            Section 3594 states that if
    
    the jury recommends a lesser sentence, then “the court shall impose
    
    any lesser sentence that is authorized by law . . . . if the
    
    maximum term of imprisonment is life imprisonment, the court may
    
    impose a sentence of life imprisonment without the possibility of
    
    release.”   18 U.S.C. § 3594.       Thus, the government argues that the
    
    jury in fact had the option of recommending death, life without the
    
    possibility of release, or a lesser sentence, but the district
    
    court was obligated to impose life without the possibility of
    
    release as the only “lesser sentence” authorized by law.
    
         In   deciding     whether    the   FDPA       or   §   1201   provides   the
    
    appropriate sentencing options, we must first determine what effect
    
    the death penalty scheme has on the substantive criminal law.                 The
    
    FDPA acts like a sentence enhancement provision in that it does not
    
    add to or otherwise affect the penalties available under the
    
    substantive criminal statutes.           See United States v. Branch, 91
    
    
                                            
    27 F.3d 699
    , 738-40 (5th Cir. 1996)(holding that 18 U.S.C. § 924(c)
    
    does not create separate offense).               Although the FDPA does not
    
    function exactly as a sentence enhancement provision, we will
    
    utilize the sentence enhancement analysis in order to determine the
    
    effect of the death penalty provisions on the substantive criminal
    
    law.        In determining whether a statute creates a separate offense
    
    or is merely a sentence enhancement provision, the court has
    
    suggested the following four factors: (1) whether the statute
    
    predicates punishment upon conviction under another section; (2)
    
    whether the statute multiplies the penalty received under another
    
    section; (3) whether the statute provides guidelines for the
    
    sentencing hearing; and (4) whether the statute is titled as a
    
    sentencing provision. Id. at 738 (citing United States v. Jackson,
    
    
    891 F.2d 1151
    , 1152 (5th Cir. 1989)).                 These factors complement
    
    traditional tools of statutory interpretation, namely, the text and
    
    legislative history. Id. at 738.           As with the sentence enhancement
    
    provisions applicable to the use of a firearm during the commission
    
    of   a      drug   crime,   the   FDPA   does   not   create   a   separate   and
    
    independent offense, but depends upon a conviction under another
    
    section.        See Branch, 91 F.3d at 738.           Additionally, the death
    
    penalty statute merely provides guidelines and procedures for the
    
    sentencing hearing.          Nothing in the text or legislative history
    
    indicates that Congress intended to create new, separate offenses
    
    under the death penalty scheme.11
    
           11
            The legislative history also supports a holding that § 3593 was
    intended to create procedures for imposing the death penalty rather than
    create additional substantive crimes. See House Report No. 103-467, 103rd
    
                                             28
         Although all three sentencing options were available to the
    
    jury under § 3593, the defendant could only receive death or life
    
    imprisonment under § 1201, the substantive criminal statute for
    
    which Jones was convicted. Contrary to the government’s assertion,
    
    no meaningful distinction exists between “life” and “life without
    
    the possibility of release.”        Thus, had the jury recommended some
    
    lesser sentence, the court would have been obligated to impose life
    
    without the possibility of release as the only authorized lesser
    
    sentence.     Because     the     substantive    criminal    statute   takes
    
    precedence   over   the   death    penalty   sentencing     provisions,   the
    
    district court should have instructed the jury of the sentencing
    
    options available under § 1201.        Consequently, the district court
    
    committed error by informing the jury of the lesser sentence option
    
    available under § 3593.
    
         After determining that error occurred, we must next determine
    
    whether the error was clear or obvious error under current law.
    
    See Olano, 507 U.S. at 734; Dupre, 117 F.3d at 817.            Prior to this
    
    appeal, the death penalty sentencing provisions under which Jones
    
    was sentenced had never been reviewed on appeal.                 No clearly
    
    established law answered the question of whether § 3593 or the
    
    substantive criminal statute under which the defendant is convicted
    
    provides the correct sentencing options.            The error was not so
    
    obvious, clear, readily apparent, or conspicuous that the judge was
    
    derelict by not recognizing the error.          Consequently, we hold that
    
    
    
    
    Cong., 2d Sess. (1994).
    
                                         29
    instructing the jury as to the sentencing options available under
    
    § 3593 was not plain error.
    
    
    
                        IV.    Statutory Aggravating Factors
    
         The    defendant      argues   that       the   district   court    committed
    
    reversible error by submitting statutory aggravating factors to the
    
    jury which     failed     genuinely       to   narrow   or   channel    the   jury’s
    
    discretion.    The government submitted four statutory aggravating
    
    factors to the jury during the penalty phase of the trial.                      The
    
    jury made unanimous findings regarding two statutory aggravating
    
    factors.
    
    
    
                                              A.
    
         Jones argues that the inclusion of statutory aggravating
    
    factor 2(A), which merely repeated the elements of the crime, did
    
    nothing to narrow the jury’s discretion, and thus, violated the
    
    Eighth Amendment.         Statutory aggravating factor 2(A), based on §
    
    3592(c)(1), provides: “The defendant Louis Jones caused the death
    
    of Tracie Joy McBride, or injury resulting in the death of Tracie
    
    Joy McBride, which occurred during the commission of the offense of
    
    Kidnapping.”
    
         As    stated    previously,      a    capital      sentencing     scheme   must
    
    genuinely narrow the class of persons eligible for the death
    
    penalty.    Zant v. Stephens, 
    462 U.S. 862
    , 877 (1983).                 The use of
    
    aggravating factors helps to narrow the class of death-eligible
    
    persons and thereby channels the jury’s discretion. See Lowenfield
    
    
                                              30
    v. Phelps, 
    484 U.S. 231
    , 244 (1987).             An aggravating factor which
    
    merely repeats an element of the crime passes constitutional muster
    
    as long as it narrows the jury’s discretion.                See id. at 246.        In
    
    Lowenfield, the Court held that the constitutionally required
    
    narrowing    function    in     a    capital    punishment       regime    could   be
    
    performed in either of two ways: “The legislature may itself narrow
    
    the definition of capital offenses, . . . so that the jury finding
    
    of guilt responds to this concern, or the legislature may more
    
    broadly define capital offenses and provide for narrowing by jury
    
    findings    of    aggravating       circumstances     at   the    penalty   phase.”
    
    Lowenfield, 484 U.S. at 246.           Thus, the requisite narrowing can be
    
    done at either the guilt or penalty phase of trial.
    
         The FDPA channels the jury’s discretion during the penalty
    
    phase to ensure that the death penalty is not arbitrarily imposed.
    
    The federal death penalty regime establishes the class of persons
    
    eligible for the death penalty through its definition of capital
    
    offenses,    to    include      only    treason,      espionage,     and     certain
    
    intentional killings.         See 18 U.S.C. § 3591.        Although the federal
    
    death   penalty     regime    defines    capital      offenses,     the    narrowing
    
    function does not occur until the penalty phase of the trial.                      In
    
    narrowing the jury’s discretion in federal homicide prosecutions,
    
    the FDPA requires the jury first to find that the defendant had the
    
    requisite intent.      18 U.S.C. § 3591.         The FDPA further narrows the
    
    jury’s discretion with the requirement the jury find at least one
    
    statutory    aggravating      factor    prior    to    recommending       the   death
    
    penalty. See 18 U.S.C. § 3592(c).                Thus, the FDPA narrows the
    
    
                                             31
    jury’s discretion through the findings of intent and            aggravating
    
    factors. Repetition of the elements of the crime as an aggravating
    
    factor helps to channel the jury’s discretion by allowing the jury
    
    to consider the circumstances of the crime when deciding the
    
    propriety of the death sentence.       The jury may constitutionally
    
    consider the circumstances of the crime when deciding whether to
    
    impose the death penalty.      See Tuilaepa v. California, 
    512 U.S. 967
    , 976 (1994).
    
         The narrowing function was not performed at the guilt phase
    
    when the jury convicted Jones of kidnapping with death resulting,
    
    but at the penalty phase when the jury found Jones intentionally
    
    killed McBride and two statutory aggravating factors existed.
    
    Although the   jury   had   already   found   the   defendant    guilty   of
    
    kidnapping with death resulting at the guilt phase of the trial,
    
    the jury did not consider whether Jones caused the death of the
    
    victim during the commission of the crime of kidnapping until the
    
    penalty phase of the trial.    The jury could have convicted Jones of
    
    kidnapping with death resulting in the guilt phase of the trial and
    
    still answered “no” to statutory aggravating factor 2(A) in the
    
    penalty phase if the jury found that Jones did not cause the death
    
    of the victim during the commission of the crime of kidnapping.
    
    The submission of the elements of the crime as an aggravating
    
    factor merely allowed the jury to consider the circumstances of the
    
    crime when deciding whether to impose the death penalty. Thus, the
    
    kidnapping was weighed only once by the jury during the penalty
    
    phase of the trial.   Consequently, the repetition of the elements
    
    
                                      32
    of the crime as an aggravating factor did not contradict the
    
    constitutional    requirement    that     aggravating   factors      genuinely
    
    narrow the jury’s discretion.
    
    
    
                                        B.
    
         Jones contends that the district court committed reversible
    
    error by allowing statutory aggravating factor 2(C).                 Statutory
    
    factor 2(C), based on § 3592(c)(6), provides: “The defendant Louis
    
    Jones committed the offense in an especially heinous, cruel, and
    
    depraved manner in that it involved torture or serious physical
    
    abuse to Tracie Joy McBride.”      Jones argues that the language used
    
    in aggravating factor 2(C) was unconstitutionally vague, resulting
    
    in the arbitrary imposition of the death penalty in violation of
    
    the Eighth Amendment.       As the Supreme Court stated in Maynard v.
    
    Cartwright:
    
         Claims of vagueness directed at aggravating circumstances
         defined in capital punishment statutes are analyzed under
         the Eighth Amendment and characteristically assert that
         the challenged provision fails adequately to inform
         juries what they must find to impose the death penalty
         and as a result leaves them and appellate courts with the
         kind of open-ended discretion which was held invalid in
         Furman v. Georgia.
    
    Maynard v. Cartwright, 
    486 U.S. 356
    , 361-62 (1988) (citation
    
    omitted).    Due to the difficulty in precisely defining aggravating
    
    factors, however, “our vagueness review is quite deferential.”
    
    United States v. Flores, 
    63 F.3d 1342
    , 1373 (5th Cir. 1995)
    
    (quoting    Tuilaepa   v.   California,    
    512 U.S. 967
    ,   975    (1994)).
    
    Consequently, an aggravating factor will be upheld as long as it
    
    has some “common-sense core meaning . . . that criminal juries
    
                                        33
    should be capable of understanding.” Id.
    
         The language “especially heinous, cruel, and depraved” without
    
    a limiting instruction would be unconstitutionally vague.         See
    
    Maynard v. Cartwright, 486 U.S. at 364; King v. Puckett, 
    1 F.3d 280
    , 284 (5th Cir. 1993).   Any vagueness in the language, however,
    
    is cured by the limitation in the statute that the offense involve
    
    torture or serious physical abuse. See Walton v. Arizona, 
    497 U.S. 639
    , 654-55 (1990) (citing Maynard v. Cartwright, 486 U.S. at 364-
    
    65). Moreover, the district court defined each term in aggravating
    
    factor 2(C) which resolved any possible vagueness or ambiguity of
    
    the language.12   The statutory limitation, along with the district
    
    
          12
             The district court gave the following limiting instruction to
    explain statutory aggravating factor 2(C):
          To establish that the defendant killed the victim in an
       especially heinous, cruel, or depraved manner, the government must
       prove that the killing involved either torture or serious physical
       abuse to the victim. The terms “heinous, cruel, or depraved” are
       stated in the disjunctive: any one of them individually may
       constitute an aggravating circumstance warranting imposition of the
       death penalty.
          “Heinous” means extremely wicked or shockingly evil, where the
       killing was accompanied by such additional acts of torture or
       serious physical abuse of the victim as set apart from other
       killings.
          “Cruel” means that the defendant intended to inflict a high
       degree of pain by torturing the victim in addition to killing the
       victim.
          “Depraved” means that the defendant relished the killing or
       showed indifference to the suffering of the victim, as evidenced
       by torture or serious physical abuse of the victim.
          “Torture” includes mental as well as physical abuse of the
       victim. In either case, the victim must have been conscious of the
       abuse at the time it was inflicted; and the defendant must have
       specifically intended to inflict severe mental or physical pain or
       suffering upon the victim, apart from killing the victim.
          “Serious physical abuse” means a significant or considerable
       amount of injury or damage to the victim’s body which involves a
       substantial risk of death, unconsciousness, extreme physical pain,
       protracted and obvious disfigurement, or protracted loss or
       impairment of the function of a bodily member, organ, or mental
       faculty. Serious physical abuse--unlike torture--may be inflicted
       either before or after death and does not require that the victim
    
                                     34
    court’s instruction, gave the jury an aggravating factor with a
    
    “common-sense     core    meaning”    that   they   were    capable     of
    
    understanding.    Thus, the language of statutory aggravating factor
    
    2(C) was not unconstitutionally vague and did not lead to the
    
    arbitrary imposition of the death penalty in violation of the
    
    Eighth Amendment.
    
    
    
                     V.   Non-statutory Aggravating Factors
    
         Jones argues that the death sentence must be reversed because
    
    the nonstatutory aggravating factors considered by the jury were
    
    unconstitutionally vague, overbroad, and duplicative. After giving
    
    the appropriate notice required by § 3593(a), the government
    
    submitted the following nonstatutory aggravating factors:
    
         3(A). The defendant constitutes a future danger to the
         lives and safety of other persons as evidenced by
         specific acts of violence by the defendant Louis Jones.
    
         3(B). Tracie Joy McBride’s young age, her slight stature,
         her background, and her unfamiliarity with San Angelo,
         Texas.
    
         3(C). Tracie Joy McBride’s personal characteristics and
         the effect of the instant offense on Tracie Joy McBride’s
         family constitute an aggravating factor of the offense.
    
    The jury unanimously found nonstatutory aggravating factor 3(B) and
    
    
      be conscious of the abuse at the time it was inflicted. However,
      the defendant must have specifically intended the abuse apart from
      the killing.
         Pertinent factors in determining whether a killing was
      especially heinous, cruel, or depraved include: infliction of
      gratuitous violence upon the victim above and beyond that necessary
      to commit the killing; needless mutilation of the victim’s body;
      senselessness of the killing; and helplessness of the victim.
         The word “especially” should be given its ordinary, everyday
      meaning of being highly or unusually great, distinctive, peculiar,
      particular, or significant.
    
                                         35
    3(C) to exist beyond a reasonable doubt.
    
          The government contends that factors 3(B) and 3(C) apply to
    
    entirely different areas of aggravation--3(B) applies to McBride’s
    
    vulnerability, while 3(C) applies to “victim impact” or the impact
    
    of   the    murder    on   McBride’s     family.         Although    the      use    of
    
    vulnerability and victim impact evidence has been upheld on appeal,
    
    the language used in 3(B) and 3(C) does not accomplish this goal.
    
    See Payne v. Tennessee, 
    501 U.S. 808
    , 827 (1991) (victim impact);
    
    Tuilaepa, 512 U.S. at 977 (vulnerability through age of victim).
    
    The plain meaning of the term “personal characteristics,” used in
    
    3(C), necessarily includes “young age, slight stature, background,
    
    and unfamiliarity,” which the jury was asked to consider in 3(B).
    
    Thus,      nonstatutory    aggravating       factors      3(B)    and       3(C)    are
    
    duplicative.      As the Tenth Circuit recently stated, “Such double
    
    counting     of   aggravating   factors,      especially     under      a    weighing
    
    scheme, has a tendency to skew the weighing process and creates the
    
    risk that the death sentence will be imposed arbitrarily and thus,
    
    unconstitutionally.” United States v. McCullah, 
    76 F.3d 1087
    , 1111
    
    (10th Cir. 1996).      We agree.    Such double-counting of aggravating
    
    factors creates the risk of an arbitrary death sentence.                       If the
    
    jury has been asked to weigh the same aggravating factor twice, the
    
    appellate     court   cannot    assume      that   “it    would     have     made   no
    
    difference if the thumb had been removed from death’s side of the
    
    scale.” Stringer v. Black, 
    503 U.S. 222
    , 232 (1992). Consequently,
    
    the district court erred by submitting the duplicative aggravating
    
    factors to the jury.
    
    
                                           36
         Additionally, the defendant contends that the nonstatutory
    
    aggravating factors are vague and overbroad, in violation of the
    
    Eighth Amendment.     See Maynard v. Cartwright, 
    486 U.S. 356
    , 361-62
    
    (1988).   We agree.      Non-statutory aggravating factors 3(B) and
    
    3(C) fail to guide the jury’s discretion, or distinguish this
    
    murder from any other murder.         We fail to see how the victim’s
    
    “background,” her “personal characteristics,” or her “unfamiliarity
    
    with San Angelo” made the defendant more death-worthy than other
    
    murderers.   Furthermore, the district court offered no additional
    
    instructions    to   clarify   the     meaning   of   the   non-statutory
    
    aggravating factors.     The use of the terms “background,” “personal
    
    characteristics,” and “unfamiliarity” without further definition or
    
    instruction left the jury with “the kind of open-ended discretion
    
    which was held invalid in Furman v. Georgia.” See Maynard, 486 U.S.
    
    at 361-62 (1988).    Consequently, aggravating factors 3(B) and 3(C)
    
    were invalid.
    
         After determining that the non-statutory aggravating factors
    
    submitted to the jury were invalid, we must next determine whether
    
    the death sentence may stand.        The Federal Death Penalty Act sets
    
    up a weighing scheme in which the jury is asked to weigh any
    
    aggravating factors found to exist beyond a reasonable doubt
    
    against any mitigating factors found to exist by a preponderance of
    
    the evidence.   If the aggravating factors outweigh the mitigating
    
    evidence, then the jury may recommend the death penalty.            In a
    
    weighing scheme, aggravating factors lie at the very heart of the
    
    
    
    
                                         37
    jury’s       ultimate      decision      to    impose       a   death    sentence.13    See
    
    Stringer, 503 U.S. at 230.                Under a weighing statute, affirming a
    
    death sentence when an aggravating factor has been found invalid
    
    requires the appellate court to scrutinize the role which the
    
    invalid aggravating factor played in the sentencing process in
    
    order        to   comply     with       the    Eighth       Amendment     requirement    of
    
    individualized sentencing determinations in death penalty cases.
    
    See Stringer, 503 U.S. at 230.                   A rule automatically affirming a
    
    death sentence in a weighing scheme as long as one aggravating
    
    factor remained would violate the requirement of individualized
    
    sentencing.          See    Clemons      v.    Mississippi,        
    494 U.S. 738
    ,   752
    
    (1990)(citing Lockett v. Ohio, 
    438 U.S. 586
     (1978) and Eddings v.
    
    Oklahoma, 
    455 U.S. 104
     (1982)). When the jury considers an invalid
    
    aggravating factor at the sentencing hearing, the appellate court
    
    must        strike   the    invalid      factor       and   then    either    reweigh   the
    
    remaining aggravating factors against the mitigating evidence or
    
    apply harmless error review.                  See Clemons v. Mississippi, 
    494 U.S. 738
    , 741 (1990); Wiley v. Puckett, 
    969 F.2d 86
    , 92 (5th Cir. 1992).
    
            If the appellate            court      chooses      to   reweigh the remaining
    
    aggravating factors against the mitigating evidence, the court must
    
    determine         what     the   jury    would       have   done   absent     the   invalid
    
    aggravating factor.              See Stringer, 503 U.S. at 230.               On the other
    
    
           13
           In non-weighing statutes, the jury must find the existence of one
    aggravating factor before imposing the death penalty, but such factors play
    no additional role in the jury’s determination of whether a defendant
    eligible for the death penalty should receive it under the circumstances
    of the case.     See Stringer v. Black, 
    503 U.S. 222
    , 229-30 (1992)
    (discussing the Georgia non-weighing death penalty statute at issue in Zant
    v. Stephens, 
    462 U.S. 862
     (1983)).
    
                                                    38
    hand, if the appellate court chooses to apply harmless error
    
    review, then the harmless error analysis can be applied in the
    
    following two ways:   First, the appellate court may inquire into
    
    whether, beyond a reasonable doubt, the death sentence would have
    
    been imposed had the invalid aggravating factor been properly
    
    defined in the jury instructions. See Clemons, 494 U.S. at 754;
    
    Wiley, 969 F.2d at 92-93.   Second, the appellate court may inquire
    
    into whether, beyond a reasonable doubt, the death sentence would
    
    have been imposed absent the invalid aggravating factor.          See
    
    Clemons, 494 U.S. at 753; Wiley, 969 F.2d at 91.   If the government
    
    establishes that an error regarding aggravating factors is harmless
    
    beyond a reasonable doubt, then the appellate court may not reverse
    
    or vacate the death sentence, unless of course such error rises to
    
    the level of a denial of constitutional rights.       See 18 U.S.C. §
    
    3595.
    
         At this point, the appellate court may either reweigh the
    
    aggravating and mitigating evidence or apply one of the methods of
    
    harmless error review.   See Wiley, 969 F.2d at 92.    It matters not
    
    which standard of review an appellate court chooses to apply
    
    because all three standards lead to the same conclusion.        If a
    
    death sentence would be overturned under harmless error review,
    
    then the death sentence would be overturned after reweighing, and
    
    vice versa. The government asserts that we must apply the harmless
    
    error standard.   Although the statute provides that an appellate
    
    court “shall not reverse or vacate a sentence of death on account
    
    of any error which can be harmless,” 18 U.S.C. § 3595(c), the
    
    
                                     39
    statute does not establish a standard of review.                  Therefore, an
    
    appellate court can choose to apply any of the available forms of
    
    review    as     long   as    the   defendant      receives     an    individual
    
    determination of the propriety of his death sentence.
    
           In affirming the defendant’s death sentence, we apply the
    
    second method of harmless error review.               In applying the second
    
    method of harmless error review, an appellate court must inquire
    
    into whether, beyond a reasonable doubt, the death sentence would
    
    have been imposed absent the invalid aggravating factors.                      See
    
    Clemons, 494 U.S. at 753; Wiley, 969 F.2d at 91.              This second form
    
    of harmless error review requires the appellate court to redact the
    
    invalid aggravating factors and “reconsider the entire mix of
    
    aggravating and mitigating circumstances presented to the jury.”
    
    See Wiley, 969 F.2d at 93.
    
           After removing the offensive non-statutory aggravating factors
    
    from the balance, we are left w i t h t w o s t a t u t o r y a g g r a v a t i n g
    
    factors and eleven mitigating factors to consider when deciding
    
    whether, beyond a reasonable doubt, the death sentence would have
    
    been   imposed    had   the   invalid    aggravating      factors    never   been
    
    submitted to the jury.        At the sentencing hearing, the government
    
    placed great emphasis on the two statutory aggravating factors
    
    found unanimously by the jury--Jones caused the death of the victim
    
    during the commission of the offense of kidnapping; and the offense
    
    was committed in an especially heinous, cruel, and depraved manner
    
    in that it involved torture or serious physical abuse of the
    
    victim.    Under part two of the Special Findings Form, if the jury
    
    
                                            40
    had failed to find that the government proved at least one of the
    
    statutory aggravating factors beyond a reasonable doubt, then the
    
    deliberations would have ceased leaving the jury powerless to
    
    recommend the death penalty. Therefore, the ability of the jury to
    
    recommend the death penalty hinged on a finding of a least one
    
    statutory aggravating factor.     Conversely, jury findings regarding
    
    the nonstatutory aggravating factors were not required before the
    
    jury could recommend the death penalty.        After removing the two
    
    nonstatutory aggravating factors from the mix, we conclude that the
    
    two remaining statutory aggravating factors unanimously found by
    
    the jury support the sentence of death, even after considering the
    
    eleven    mitigating   factors    found   by   one   or   more    jurors.
    
    Consequently, the error was harmless because the death sentence
    
    would have been imposed beyond a reasonable doubt had the invalid
    
    aggravating factors never been submitted to the jury.
    
    
    
                                VI.   Conclusion
    
         After considering the eighteen issues raised by the appellant
    
    on appeal, we conclude that the sentencing provisions of the
    
    Federal   Death   Penalty   Act   are   constitutional    and    that   the
    
    defendant’s death sentence was not imposed under the influence of
    
    passion, prejudice, or any other arbitrary factor.        Consequently,
    
    the conviction and the sentence of death is
    
         AFFIRMED.
    
    
    
    
                                       41